State of Arizona v. Carl W. Morgan, Jr

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO

THE STATE OF ARIZONA, ) 2 CA-CR 2000-0216
) 2 CA-CR 2001-0300-PR
Appellee/Respondent, ) (Consolidated)
) DEPARTMENT A
v. )
) OPINION
CARL WASHINGTON MORGAN, JR., )
)
Appellant/Petitioner. )
)

APPEAL AND PETITION FOR REVIEW
FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR-62744

Honorable Bernardo P. Velasco, Judge
Honorable Jane L. Eikleberry, Judge

AFFIRMED;
PETITION FOR REVIEW GRANTED; RELIEF DENIED

Janet Napolitano, Arizona Attorney General
By Randall M. Howe and John L. Saccoman Phoenix
Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
By Alex D. Heveri Tucson
Attorneys for Appellant/Petitioner

H O W A R D, Judge.

¶1 After a jury trial, appellant Carl Morgan was convicted of two counts of sexual

conduct with a minor under fifteen years of age, one count each of child molestation, sexual

assault of a minor under the age of fifteen years, and kidnapping. He was sentenced to various

concurrent and consecutive prison terms totaling forty-nine years. On appeal, he contends the trial

court erred by r efusing to give lesser-included offense instructions on certain charges and by

failing to grant his motion for judgment of acquittal on the sexual conduct and child molestation

charges. Finding no err or, we affirm.

¶2 In his consolidated petition for review from the trial court’s denial of relief on his

petition for post-conviction relief, Morgan contends his trial counsel was ineffective in failing to

move to exclude certain evidence and in failing to cite the appropriate authority on the necessity

of proof of the corpus delicti. We grant review, but, because we find the trial court did not abuse

its discretion in dismissing the petition, we deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶3 We view the facts in the light most favorable to sustaining the convictions. State

v. Powers, 200 Ar iz. 123, ¶2, 23 P.3d 668, ¶2 (App. 2001). One evening in 1998, Morgan and

his half-brother, Carl Watkins, approached two girls, the victim Y., age twelve, and her

acquaintance B., age fourteen, and asked the girls if they wanted to drink alcohol and go

“cr uising.” The girls agreed and got into the back seat of the men’s car. Watkins bought alcohol,

and the two men and the girls drank it.

¶4 They then drove to a park, where Y. and B. used the restroom. Y. was so

intoxicated that she could not walk without assistance. B. asked the men to take the girls home,

but Watkins refused, saying it was “too early to leave.” Morgan and Y. walked back to the car,

and, when B. attempted to follow them, Watkins grabbed her arm and tried to stop her. B.

eventually returned to the car where she saw Morgan in the back seat with Y., who was naked

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from the waist down. B. saw that Y. was str addling Morgan, whose pants were pulled down, and

that Morgan’s hands were ar ound Y.’s midsection. B. rapped on the window and asked Y. to

open the car door, which was locked, and Y. and Morgan then pulled up their pants.

¶5 The four then drove to a gr ocery store, where Watkins told B. to go buy a soda

because her breath smelled of alcohol. Y. was near ly unconscious in the back seat. B. walked

to a soda machine but, when she turned around, the car was gone. Later that night, the two men

left Y. naked on a deser t road, where she then lost consciousness.

¶6 The next day, Y. underwent a medical examination, which showed she had been

vaginally and anally penetrated. Deoxyribonucleic acid (DNA) testing was conducted on semen

found in Y.’s vagina and anus. After Y. identified Mor gan in a photographic line-up, he agreed

to speak with police. He confessed that he and Y. had engaged in oral sex with each other, that

he had digitally penetrated her and fondled her breasts, and that he had ejaculated on her. The

DNA on the vaginal swab did not match Morgan’s, but the DNA on the anal swab did.

¶7 The state charged Morgan with: 1) two counts of sexual conduct with a minor

under the age of fifteen for engaging in oral sexual contact with Y. and forcing her to have oral

sexual contact with him; 2) one count of child molestation for touching Y.’s genitals with his

hand; 3) one count of sexual assault of a minor under the age of fifteen for engaging in sexual

intercourse with Y. without her consent; and 4) one count of kidnapping. At trial, Y.’s memory

of what had occurred that night was not entirely clear. But she did remember Mor gan’s having

been on top of her in the back seat, hurting her in a manner “ similar to sex,” r epeatedly pushing

her down when she tried to get up, and having his penis “in [her]. ” She also remembered

Morgan’s having kissed her, touched her breasts when all her clothes were off, and touched her

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“in [her] legs. ” The last thing she remembered was being shoved out of the car by Morgan,

getting tangled in the seat belt, and being left naked on a deser t road. The jury found Morgan

guilty on all counts.

APPEAL

1. Lesser-included Offense Instruction

¶8 Morgan first argues the trial court err ed by refusing to give lesser-included offense

jury instructions he had requested for certain charges. We review a trial court’s refusal to give

a requested instruction for an abuse of discretion. State v. Bolton, 182 Ar iz. 290, 309, 896 P.2d

830, 849 (1995).

¶9 Although Morgan complains that the trial court refused to give a lesser-included

instruction on sexual abuse, as the state points out in its answering br ief, no sexual abuse charge

was submitted to the jury. Morgan has not filed a reply brief to explain this discrepancy.

Accordingly, we reject his argument that he was entitled to a lesser-included instruction on sexual

abuse.

¶10 Morgan also contends that the trial court erroneously refused to instruct the jury

on attempted sexual conduct as a lesser-included offense of the sexual conduct charges. The state

counters that Morgan has waived appellate review of this issue because he argued below that the

insufficiency of the evidence of sexual conduct justified the attempt instruction, rather than that

the evidence affirmatively supported giving an attempt instruction. Although the state has

identified a distinction, we believe Mor gan’s argument below sufficiently presented the issue to

the trial court, and we thus review it.

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¶11 Morgan contends that an attempt is a lesser-included offense of the completed

offense, relying on State v. McCurdy, 15 Ar iz. App. 227, 487 P.2d 764 (1971). He claims that

Y. remembered only that he had kissed her, touched her in her legs, and fondled her breasts, but

“could not remember if he was the one that raped her,” reasoning that the jury could have found

he had merely attempted to commit sexual conduct.

¶12 The state points out that, although an attempt can be a lesser-included offense, the

evidence still must support conviction of the lesser-included offense in order to merit an

instruction. See State v. Lara, 183 Ar iz. 233, 235, 902 P.2d 1337, 1339 (1995); State v.

Marshall, 197 Ariz. 496, ¶ 35, 4 P.3d 1039, ¶35 (App. 2000). “ A person commits sexual conduct

with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact”

with a minor. A.R. S. § 13-1405(A).

¶13 The sexual conduct with a minor charges against Morgan were based on alleged

oral sexual contact. Although she testified that Morgan had had intercour se with her, Y. did not

testify about any acts of oral sexual contact that constituted sexual conduct. But Morgan admitted

to the police officers that he had engaged in oral sexual contact with Y. and that Y. had had oral

sexual contact with him. This was evidence of completed offenses of sexual conduct with a minor,

but not of lesser-included offenses of attempted sexual conduct. And, as the state points out, Y.’s

testimony that Morgan had kissed and fondled her is evidence of other completed crimes, not of

attempted sexual conduct with a minor. Neither the state nor Morgan argued differ ently below.

By virtue of his confession, Morgan was either guilty of the greater offenses or not guilty at all.

Under these circumstances, the trial court properly refused to instruct the jury on the lesser-

included offenses of attempted sexual conduct. See State v. Dickens, 187 Ar iz. 1, 23, 926 P.2d

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468, 490 (1996) (lesser-included offense instruction not required if defendant is either guilty of

greater offense or not at all); Lara; Marshall.

2. Corpus Delicti

¶14 Morgan argues the trial court er red by allowing the state to introduce his confession

into evidence without first proving by independent evidence the corpus delicti of the crimes of

sexual conduct, stemming from the alleged oral sexual contact, and child molestation, stemming

from the alleged touching of Y.’s genitals. Although he did not raise this issue in an earlier

motion to suppress his statements to police, Morgan did raise it in his motion for judgment of

acquittal, made pursuant to Rule 20, Ariz. R. Crim. P. , 17 A.R. S., at the close of the state’s case.

We review a trial court’s denial of a Rule 20 motion based on the corpus delicti doctrine for an

abuse of discretion. State v. Jones, 198 Ariz. 18, ¶ 13, 6 P.3d 323, ¶13 (App. 2000) (“[T]he

sufficiency of the evidence of the corpus delicti are matters within the discretion of the trial

court. ”).

¶15 A defendant may not be convicted of a crime based on an uncorroborated

confession without independent proof of the corpus delicti, or the “body of the crime.” State v.

Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983); Jones, 198 Ariz. 18, ¶ 12, 6 P.3d 323,

¶12. The state “must establish the corpus delicti by showing proof of a crime and that someone

is responsible for that crime.” Jones, 198 Ar iz. 18, ¶12, 6 P.3d 323, ¶ 12. Ultimately, “ only a

reasonable inference” that the corpus delicti exists is sufficient to permit the fact-finder to consider

the defendant’s confession. State v. Janise, 116 Ar iz. 557, 559, 570 P.2d 499, 501 (1977).

¶16 The purpose of the corpus delicti rule is to prevent a defendant from being

convicted based on a coerced or other wise untrue confession. Smith v. United States, 348 U.S.

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147, 75 S. Ct. 194, 99 L. Ed. 192 (1954); State v. Gerlaugh, 134 Ar iz. 164, 654 P.2d 800

(1982); Jones. But the rule has been the subject of criticism claiming that other safeguards exist

to prevent convictions based on coerced confessions and that the rule can impede the truth-finding

process. See, e.g. , 1 John W. Strong et al., McCormick on Evidence § 145, at 520 (5th ed. 1999);

Developments in the Law—Confessions, 79 Harv. L. Rev. 938, 1084 (1966).

¶17 The corpus delicti rule has been applied in numerous ways. See State v. Parker,

337 S.E. 2d 487 (N.C. 1985); Strong, supra, at 521 (“ There are several quite different

formulations of the [corpus delicti] requirement.”). The traditional, and majority, approach

“r equires there be corroborative evidence, independent of the defendant’s confession, which tends

to prove the commission of the crime charged. ” Parker, 337 S. E.2d at 491; Strong, supra, at

525. Another variation, abandoned by many courts, requires that independent proof support each

and every element of the crime. Parker, 337 S.E. 2d at 491; Strong, supra, at 526. And yet

another approach requires independent proof that the confession be trustworthy, rather than

requiring proof of the corpus delicti. Parker, 337 S. E.2d at 492; Strong, supra, at 527-29.

Arizona cases have indicated that a corrobor ated confession may be used to establish proof of an

element of the crime. See State v. Flores, 202 Ar iz. 221, ¶5, 42 P.3d 1186, ¶ 5 (App. 2002),

citing Jones, 198 Ar iz. 18 n. 6, 6 P.3d 323 n. 6.

¶18 Both Flores and Jones rely on Smith. In Smith, the United States Supreme Court

stated:

In addition to differing views on the substantiality of specific
independent evidence, the debate has center ed largely about two
questions: (1) whether corrobor ation is necessary for all elements
of the offense established by admissions alone, and (2) whether it
is sufficient if the corroboration merely fortifies the truth of the

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confession, without independently establishing the crime charged.
We answer both in the affirmative. All elements of the offense must
be established by independent evidence or corrobor ated admissions,
but one available mode of corroboration is for the independent
evidence to bolster the confession itself and thereby prove the
offense “through” the statements of the accused.

348 U.S. at 156, 75 S. Ct. at 199, 99 L. Ed. at 200 (citations omitted); see also Opper v. United

States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954). After Smith, most feder al courts

adopted this “trustworthiness” approach. See, e.g. , United States v. Shunk, 881 F. 2d 917, 918-20

(10th Cir. 1989); United States v. O’Connell, 703 F .2d 645, 648 (1st Cir. 1983); United States

v. Vega-Limon, 548 F .2d 1390, 1391 (9th Cir. 1977); United States v. Seckler, 431 F .2d 642, 643

(5th Cir. 1970).

¶19 Many courts have also been willing to accept what is, in essence, a trustworthiness

approach for closely related offenses. For instance, in Drumbarger v. State, 716 P.2d 6, 12

(Alaska Ct. App. 1986), the court found that an independent witness’s testimony that she had seen

the defendant engaged in one incident of sexual assault on a child sufficiently corroborated the

defendant’s confession to two other incidents that were “ so closely allied in time and circumstance

. . . that the trustworthiness of [the] confession as a whole was sufficiently established.” In West

v. Johnson, 92 F. 3d 1385 (5th Cir. 1996), the cour t found that, although the only evidence of theft

was the defendant’s confession, through evidence bolstering the confession, the state had

sufficiently proved theft as the felony underlying burglary to suppor t the defendant’s conviction

for felony murder. In Willoughby v. State, 552 N.E.2d 462, 467 (Ind. 1990), the court, accepted

the defendant’s confession, explaining its rationale as follows:

We are persuaded that where a defendant confesses to
several crimes of varying severity within a single criminal episode,

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strict and separate application of the corpus delicti rule to each
offense adds little to the ultimate reliability of the confession once
independent evidence of the principal crimes is introduced. The
confession at that point has been substantially corroborated. In such
a case the confession stands as direct evidence of each crime, even
those not separately corr oborated, if the independent evidence
establishes the corpus delicti of the principal crime or crimes.

And, after reviewing the differing versions of the corpus delicti rule, the court in Parker decided:

We therefore hold that under the particular facts presented
in this case, wher e the defendant was charged with multiple crimes;
the corpus delicti as to the more serious offenses was established
independently of the defendant’s confession; an element of the
crime, use of a deadly weapon, was also established by independent
evidence; and the State’s evidence closely paralleled the defendant’s
statements as to the manner in which he committed the offenses,
there was sufficient corroborative evidence to bolster the
truthfulness of the defendant’s confession and to sustain a conviction
as to the Herring armed robber y even though there was no
independent evidence tending to prove the corpus delicti of that
crime.

337 S.E. 2d at 496-97.

¶20 Of particular significance in the present case, one cour t, in upholding a conviction

for sexual assault when evidence independent of the defendant’s conviction supported the corpus

delicti for murder but not for sexual assault, stated:

“An exception to the corpus delicti rule known as the closely related
crime exception was specifically approved of by this Court . . . .
This exception comes into play where an accused is charged with
more than one crime, and the accused makes a statement related to
all the crimes charged, but the prosecution is only able to establish
the corpus delicti of one of the crimes charged. Under those
circumstances where the relationship between the crimes is
sufficiently close so that the introduction of the statement will not
violate the purpose underlying the corpus delicti rule, the statement
of the accused will be admissible as to all the crimes charged. ”

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Commonwealth v. Bardo, 709 A. 2d 871, 874 (Pa. 1998), quoting Commonwealth v. Verticelli,

706 A.2d 820, 823 (Pa. 1998) (citation omitted).

¶21 Courts have also recognized that, in sexual offenses, the victim may not be

available to testify or may not be able to testify truthfully. In a case with facts similar to those

before us, the California Supreme Court found sufficient proof of the corpus delicti of forcible

oral copulation despite the lack of any evidence of semen in the victim’s mouth. People v. Jones,

949 P.2d 890 (Cal. 1998). The court stated that only “minimal” evidence is necessary to

corrobor ate a confession and that evidence that the victim had been beaten, shot in the head, and

had semen on other parts of her body was sufficient. Id. at 903. As the court further stated:

“This circumstantial evidence of multiple forcible sexual acts sufficiently establishes the requisite

prima facie showing of both (i) an injury, loss or harm, and (ii) the involvement of a criminal

agency.” Id. Although, in Jones, no semen was found in the victim’s mouth, the court held the

corpus delicti rule did not require independent evidence of every physical act constituting an

element of the offense.

¶22 Likewise, in Morning v. Commonwealth, 561 S. E.2d 23 (Va. Ct. App. 2002), the

court held that the victim’s statement confirming all details of the defendant’s confession except

for the sexual activity was sufficient corroboration of the confession to satisfy the corpus delicti

rule. Finally, in Arizona, the Gillies court found that evidence that the victim’s body had not had

on underpants, that her shoe had been inside her pantyhose, that seminal fluid had been found in

her vagina, and that for eign pubic hairs had been found in her pubic area was altogether sufficient

to overcome a motion for directed verdict of acquittal on a sexual assault charge, despite the lack

of any specific evidence of sexual assault.

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¶23 Here, based on his confession that he had engaged in oral sexual contact with Y.

and had forced her to do so with him, Morgan was charged with two counts of sexual conduct

with a minor, which, as stated, occurs when “ [a] person . . . intentionally or knowingly engag[es]

in . . . or al sexual contact” with a minor. § 13-1405(A). Y. did not testify about any oral sexual

contact, nor did B. But Morgan’s semen was found in Y.’s anus, and she testified that he had

forcefully had intercourse with her. And B. testified that she had seen Y. in the back seat of the

car straddling Morgan and that both of them were naked from the waist down. Y. ’s and B.’s

testimony was very similar to Morgan’s confession concerning facts that each remembered or had

witnessed. Y. was unable to r emember some events because Morgan had supplied her with

alcoholic beverages and encouraged her to become intoxicated. Independent evidence established

the commission of several sexual crimes closely related to the sexual conduct. Although, absent

Morgan’s confession, the evidence did not show that Y. and Morgan had any oral sexual contact,

the confession was sufficiently corroborated to eliminate any concer n that it could be untrue and,

thus, supported a “ reasonable inference” that the offense had occurred. Janise; see also Gillies.

Accordingly, the trial court did not err in denying Morgan’s Rule 20 motion.

¶24 Nevertheless, Morgan also complains that the state failed to establish the corpus

delicti for child molestation. “A per son commits molestation of a child by intentionally or

knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with

the female breast, with a child under fifteen years of age. ” A. R.S. § 13-1410. “‘Sexual contact’

means any direct or indir ect touching, fondling or manipulating of any part of the genitals, anus

or female breast by any par t of the body or by any object or causing a person to engage in such

contact.” A.R. S. § 13-1401(2). Y. testified that Morgan had touched her between her legs.

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Consequently, the state presented adequate proof of the molestation without Morgan’s confession,

and Morgan’s argument is without merit.

PETITION FOR REVIEW

¶25 In his petition for post-conviction relief, filed pursuant to Rule 32, Ar iz. R. Crim.

P., 17 A.R. S., Morgan argued he had received ineffective assistance of counsel at trial. The

judge dismissed the petition, summarily denying relief. This petition for review followed, in

which Morgan now argues he presented colorable claims warranting an evidentiary hear ing. We

review for an abuse of discretion a trial court’s ruling on a petition for post-conviction relief.

State v. Watton, 164 Ar iz. 323, 325, 793 P.2d 80, 82 (1990).

¶26 To state a colorable claim of ineffective assistance of counsel, a defendant must

show that counsel’s performance fell below objectively reasonable standards and that the deficient

performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984); State v. Nash, 143 Ariz. 392, 692 P.2d 222 (1985). A colorable claim

of post-conviction relief is “one that, if the allegations are true, might have changed the outcome.”

State v. Runningeagle, 176 Ar iz. 59, 63, 859 P.2d 169, 173 (1993).

¶27 Morgan first argues, as he did below, that his trial counsel was ineffective because

he failed to move to exclude DNA evidence. At trial, the state’s expert testified that DNA

evidence had been obtained from semen found in Y.’s vagina and anus and that the odds were

35,000 to 1 that Morgan was the donor of the anal semen. On cross-examination, the expert

admitted she had used a DNA sample smaller than the amount directed to be used by the testing

kit manufacturer and the Tucson Police Department. Nevertheless, in her opinion, the amount

used was still sufficient for the test to be valid.

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¶28 Morgan’s expert testified at his trial, confirming that the amount of DNA material

used in the state’s testing was below the amount prescribed. He stated that testing using an

insufficient amount of DNA is unreliable because it “ could produce a false incrimination.” He

also stated he had considered the test results from Y. ’s anal swab to be distorted and inconclusive.

He added that, if he had conducted the DNA testing in Morgan’s case, he “would have indicated

in the report . . . that caution needs to be taken in interpreting” the results because there had been

insufficient DNA to test with the kit the state had used.

¶29 In his Rule 32 petition, Morgan argued that his trial counsel had been ineffective

because he had failed to move before trial to suppress the DNA tests under Frye v. United States,

293 F. 1013 (D. C. Cir. 1923). In an affidavit attached to his Rule 32 petition, another DNA

expert stated that, because an insufficient amount of DNA had been used, the test results “should

be considered with great skepticism.” Morgan claimed that, under Frye, the DNA evidence was

inadmissible and that, but for its admission, the trial court would have directed a verdict in his

favor on the sexual assault charge.

¶30 In summarily denying Morgan’s petition, the judge stated there was “no evidence”

that the DNA testing failed to meet the Frye standard and that “it appears using a smaller sample

can result in false negative results, but not false positive results.” The judge concluded that “the

testimony of the State’s DNA expert was based upon generally accepted scientific evidence and

was properly admitted. ” Morgan argues the judge erred in summarily denying relief, reiterating

his claim that, under Frye, the DNA evidence was inadmissible and the outcome of his trial would

have been different had counsel moved to suppress the evidence.

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¶31 Frye establishes the “standard in r uling on the admissibility of novel scientific

evidence.” State v. Lehr, 201 Ariz. 509, ¶ 17, 38 P.3d 1172, ¶17 (2002). To be admissible, the

evidence and its application must be generally accepted in the scientific community. Id. at ¶17.

Furthermore, “ther e needs to be a foundational showing that correct procedures were followed

in a given case.” Id. However, “[t]his foundation is distinct from the Frye finding itself and, in

the judge’s discretion, may initially be provided at trial in front of the jury rather than at a separate

hearing. ” Id.

¶32 Generally, DNA testing is “a technique that meets Frye standards in Arizona.”

State v. Marshall, 193 Ar iz. 547, ¶6, 975 P.2d 137, ¶ 6 (App. 1998); see also State v. Bible, 175

Ariz. 549, 858 P.2d 1152 (1993). Morgan does not argue that the type of testing performed here

was novel scientific evidence. As a result, no separate pretr ial Frye hearing was requir ed. See

Lehr. Accordingly, Morgan’s trial counsel was not ineffective for failing to request such a

hearing.

¶33 Morgan also challenges the foundation of the state’s DNA evidence by claiming it

used an insufficient amount of DNA and followed incorrect procedures. But the expert testified

that the amount was sufficient, and that testimony provided a sufficient basis for the trial court to

admit the evidence. F urther, Morgan’s trial counsel pr esented his challenge at trial through his

expert. Any disagreement between the experts about the procedure used went to the weight, not

the admissibility, of the evidence. See State v. Morgan, 128 Ariz. 362, 371, 625 P.2d 951, 960

(App. 1981). Accordingly, Morgan did not present a colorable claim because he failed to show

he was prejudiced by his attorney’s failure to request a Frye hearing, see Strickland;

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Runningeagle; Nash, and the trial court did not abuse its discretion in denying r elief on this claim.

See Watton.

¶34 Morgan also argues his trial counsel was ineffective “in failing to direct the trial

court to appropriate law in support” of his claim in his Rule 20 motion that the state had failed to

establish the corpus delicti because only Morgan’s confession supported the sexual conduct and

child molestation counts. Because we have already rejected Morgan’s corpus delicti argument,

he cannot show prejudice resulting from his attorney’s conduct, and his claim fails. See

Strickland; Nash.

¶35 Morgan’s convictions and sentences are affirmed. We grant his petition for review,

but deny relief.

_______________________________________
JOSEPH W. HOWARD, Judge

CONCURRING:

_______________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge

_______________________________________
M. JAN FLÓREZ, Judge

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