NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

EDWARD FIONNE COLLINS
, Appellant

.

No. 1 CA

- CR 23

- 0042

Appeal from the Superior Court in Maricopa County

No. CR2020

- 107297

- 001 The Honorable Jeffrey A. Rueter
, Judge

AFFIRMED

COUNSEL
Arizona Attorney General’s Office
, Phoenix By Kevin M. Morrow Counsel for Appellee

The Susser Law Firm, PLLC
, Chandler By Adam M. Susser C ounsel for Appellant FILED 3-7-2024STATE v. COLLINS Decision of the Court

2 MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Andrew M. Jacobs and Judge Jennifer M. Perkins joined.

W E I N Z W E I G , Judge:

¶1 Edward Collins appeals his convictions and sentences for one count of molestation and one count of sexual conduct with a minor

. He argues the conviction s and sentence s violate principles of double jeopardy. We disagree and thus affirm.

FACTS AND PROCEDUR AL BACKGROUND

¶2 Collins lived with his girlfriend and her eleven

- year

- old daughter, along with other minors

. Because h is girlfriend worked an overnight shift, Collins regularly watched her daughter at night. On one such night in May 2017, Collins inappropriately touched the daughter and forced her to perform sexual acts on him

. ¶3 After returning to school the next day , the victim told a friend, patrol officer
, detective
, and school officials what happened

. According to the victim, Collins touched her private area (first act) and then forced her
to touch his penis ( second act) while on the couch. Collins was charged with sexual conduct with a minor for touching the child inappropriately (Count 1), and molestation for forcing the child to touch him (Count 2). T he child returned to her bedroom , but Collins summoned her back to the couch, where he fo rced her to masturbate him until he ejaculated ( third act)

. Collins was also charged with sexual conduct with a minor for th is act (Count 5)

. Police matched Collins’ DNA to DNA on a blanket at the crime

scene. Collins fled the state , but was later appre hended.

¶4 A five

- day jury trial was held in October 2022

. Collins was convicted of one count of molestation (Count 2) and two counts of sexual conduct with a minor under the age of twelve (Counts 1 and 5)

. He was sentenced to life with the possibility of parole after 35 years for Count 1 ; 17 years for Count 2 ; and 20 years for Count 5
, to run con secutively

. ¶5 Collins timely appealed his convictions and sentences for molestation (Count 2) and one count of sexual conduct with a minor under the a ge of twelve (Count 5). Collins does not contest his conviction andSTATE v. COLLINS Decision of the Court

3 sentence for one count of sexual conduct with a minor (Count 1). We have jurisdiction. See Ariz. Const. art. VI, § 9; A.R.S. § 12

- 120 .21(A)(1), A.R.S. § § 13

- 4031
, - 4033(A).

DISCUSSION

¶6 C ollins argues that double jeopardy precludes his convictions and sentences. Because Collins failed to raise the issue of double jeopardy at trial, we review for fundamental error. State v. Henderson , 210 Ariz. 561, 567, ¶ 19 (2005). A double jeopardy vi olation is fundamental error. State v. McGill , 213 Ariz. 147, 153, ¶ 21 (2006).

¶7 Collins contends his convictions and sentences for molestation (Count 2) and sexual conduct with a minor (Count 5) violate the right to be free from double jeopardy. He contends that molestation is a lesser

- included offense of sexual conduct with a minor and that the same act was used to prove his guilt on both charges.

¶8 The d ouble j eopardy c lauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the “ same offense. ” U.S. Const. amend. V; Ariz. Const. art. II, § 10. A defendant may not be convicted for both an offense and its lesser

included offense because th ey are considered the “same offense” for double jeopardy purposes. State v. Ortega , 220 Ariz. 320, 324, ¶ 9 (App. 2008); see also Blockburger v. United States , 284 U.S. 299 , 304 (1932 ).

¶9 M olestation is a lesser

- included offense of sexual conduct with a minor. Ortega , 220 Ariz. at 32 8, ¶¶ 24

– 25. But a conviction for both is proper if there is evidence for a reasonable jury to conclude
, beyond a reasonable doubt
, that the defendant committed two separ ate acts. Id

. at 329, ¶¶ 2 7

– 28; see also State v. Boldrey , 176 Ariz. 378, 381 (App. 1993) (multiple sexual acts that occur during the same incident may be treated as separate crimes).

¶10 That is what happened here. According to trial testimony, Collins touc hed the child inappropriately (first act) and then forced her to touch his penis (second act) while on the couch

. T he child returned to her bedroom , but Collins later summoned her back to the couch and forced her to masturbate him until he ejaculated (third act) . Collins was convicted of sexual conduct with a minor for the first act (Count 1), molestation for the second act (Count 2), and sexual conduct with a minor for the third act
, which occurred after the child returned to bed (Count 5)

. The verdict form s identified the se separate events , as the prosecutor did during closing
statements

. The record had sufficient evidence for a reasonable jury toSTATE v. COLLINS Decision of the Court

4 conclude that Collins committed three separate acts giving rise to three separate convictio ns. V iewing the facts in the light most favorable to sustain the jury’s verdicts, State v. Miles , 211 Ariz. 475, 476, ¶ 2 (App. 2005), we find no violation of double jeopardy.

CONCLUSION

¶11 Collins’ convictions and sentences are affirmed.