State v. Hummer

911 P.2d 609, 184 Ariz. 603, 202 Ariz. Adv. Rep. 90, 1995 Ariz. App. LEXIS 243
CourtCourt of Appeals of Arizona
DecidedOctober 31, 1995
Docket2 CA-CR 93-0596
StatusPublished
Cited by13 cases

This text of 911 P.2d 609 (State v. Hummer) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hummer, 911 P.2d 609, 184 Ariz. 603, 202 Ariz. Adv. Rep. 90, 1995 Ariz. App. LEXIS 243 (Ark. Ct. App. 1995).

Opinion

OPINION

FERNANDEZ, Judge.

Jack Hubert Hummer was convicted following a jury trial of two counts of sexual conduct with a minor, A.R.S. § 13-1405 (counts one and three), three counts of furnishing obscene material to a minor, A.R.S. § 13-3506 (counts four, five, and six), and one count of molestation of a minor, A.R.S. § 13-1410 (count seven). The jury found that he had two prior felony convictions, and the trial court sentenced him to three consecutive life terms on counts one, three, and seven. Hummer also received concurrent, aggravated sentences of twelve years each on counts four, five, and six, to run consecutively to the life sentences. On appeal, Hummer makes numerous assignments of error, none of which merits reversal.

BACKGROUND

The evidence, viewed in the light most favorable to sustaining the verdict, State v. Zmich, 160 Ariz. 108, 770 P.2d 776 (1989), shows that Hummer was arrested in August 1992, after more than one year of sexual behavior with four boys.

*606 At trial, brothers J. and J.H., both minors, testified to several instances in which Hummer had engaged in sexual behavior with them. The boys, who lived in the same trailer park as Hummer, described how Hummer had, at various times in 1991 and 1992, placed his penis inside their bottoms. The brothers further testified that Hummer had, at various times, made them watch pornographic videos while he masturbated. These activities sometimes involved another minor, C., 1 a friend of J. and J.H. In February 1992, the boys’ mother noticed bite marks on J.’s neck and asked about them. J. said that Hummer had bitten him. 2 A week later, under further questioning by their mother, J. and J.H. disclosed the extent of Hummer’s sexual behavior with them. The Pima County Sheriffs Department was contacted; the boys and Hummer were questioned, but Hummer was not arrested.

Hummer then moved to another trailer park and befriended G., a minor. G. testified Hummer had asked him to visit him to do yard work for pay. While there, G. was persuaded to massage Hummer’s legs and to touch Hummer under his shorts. G. said that Hummer told him that the massage was what G. was being paid for. In addition, G. testified that Hummer moved in such a way that he could not avoid touching Hummer’s penis. Later that day, G. accompanied Hummer to a theater where, during the movie, Hummer put his arm around G. and squeezed his leg. G. reported this behavior to his mother. Hummer was arrested after G.’s mother called authorities.

JURY INSTRUCTIONS

a. Attempt instruction

Hummer contends that the trial court deprived him of a fair trial by denying his request for a jury instruction on the lesser-included offense of attempted molestation of a child. A criminal defendant is entitled to a jury instruction on any theory of the case reasonably supported by competent evidence. State v. Reid, 155 Ariz. 399, 747 P.2d 560 (1987). See also State v. Celaya, 135 Ariz. 248, 660 P.2d 849 (1983) (reversible error to deny request for lesser-included theft instruction where evidence supported it).

Hummer argues that the instruction on attempted child molestation was warranted by G.’s testimony that he “accidentally bumped” Hummer’s penis. We disagree. G.’s state of mind is not at issue; we review for evidence that Hummer knowingly caused G. “to directly or indirectly touch [his] private parts.” A.R.S. § 13-1410. The evidence shows that G. touched Hummer as he rubbed Hummer’s legs under his shorts. G. testified that Hummer moaned when he touched him and said that “it felt good.” Even if G. had not intended to touch Hummer’s penis, the evidence shows that Hummer knowingly caused the contact by telling G. where to rub him and allowing him to do so. On this record, we conclude that no evidence supported the instruction on the attempt offense. The trial court, therefore, did not err by denying the instruction.

b. Unanimous verdict

Similarly, we reject as meritless Hummer’s contention that the trial court erroneously failed to instruct the jury in writing that its verdicts had to be unanimous. Because Hummer neither requested the instruction, nor objected when one was not given, the issue is waived. State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991).

In any event, the trial court instructed the jury from the bench that “[a]ll twelve of you must agree on a verdict. All twelve of you must agree whether the verdict is guilty or not guilty.” Moreover, the jury was instructed in writing to “not hesitate to change an opinion if you are convinced it is erroneous. However, you should not be influenced to decide any question in a particular way because a majority of the jurors, or any of them, favor such a decision.”

We conclude that the jury was properly instructed as to how to reach its verdicts.

*607 VIDEOTAPE

Hummer next raises two arguments pertaining to the pornographic videotape the state placed in evidence. The state alleged that Hummer was guilty of furnishing harmful materials to minors because he had played the tape for three boys. Portions of the tape, which contained commercially produced movies entitled Deep Inside Her, Tracy and the Bandit, and She’s So Fine, were played at trial and were available to jurors during deliberations.

Hummer first contends that the trial court erred by allowing the jury to determine without expert testimony if the tape contained material that was harmful to minors. We disagree. To convict Hummer of furnishing obscene or harmful material to minors, the jury had to, in pertinent part, “apply! ] contemporary state standards with respect to what is suitable for minors____” A.R.S. § 13-3501(l)(a). Expert testimony is appropriate when the trier of fact cannot understand the evidence or determine a fact in issue without specialized knowledge. Ariz. R.Evid. 702, 17A A.R.S. Hummer cites no authority, nor are we aware of any, to support the proposition that expert testimony is required before the jury can apply this standard. Indeed, there is case law to the contrary. See, e.g., State ex rel. Collins v. Superior Court, 163 Ariz. 246, 787 P.2d 1042 (1986) (jurors do not need expert testimony to determine what is obscene).

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Bluebook (online)
911 P.2d 609, 184 Ariz. 603, 202 Ariz. Adv. Rep. 90, 1995 Ariz. App. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hummer-arizctapp-1995.