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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVID HARVEY, Appellant.

No. 1 CA-CR 22-0067 

Appeal from the Superior Court in Yavapai County

No. P1300CR202000898

The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

Nicole Countryman, Phoenix

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in 

which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.

FILED 10-18-2022
STATE v. HARVEY

Decision of the Court

2

T H U M M A, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) 

and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant David Harvey 

has advised the court that, after searching the entire record, she has found 

no arguable question of law and asks this court to conduct an Anders review 

of the record. Harvey was given the opportunity to file a supplemental brief 

on his own behalf but did not do so. This court has reviewed the record and 

found no reversible error. Accordingly, Harvey’s convictions for one count 

of sexual conduct with a minor and six counts of molestation of a child, as 

well as his resulting prison sentences, are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 On June 22, 2019, the victim, a female who was then ten years 

old, told her Mother “Uncle Dave touches me.” “Uncle Dave” referred to 

Harvey, who is married to Mother’s sister. Mother contacted the police, 

who arranged for a family advocacy specialist to conduct forensic 

interviews of the victim. During those interviews, the victim discussed a 

long history of Harvey inappropriately touching her. This included 

separate incidents from 2015 to 2019 where Harvey touched her genitals, 

including penetrating her while in his truck. All of the reported incidents 

took place in Yavapai County. Later, at trial where the victim testified, these 

forensic interviews were admitted into evidence and played for the jury.

¶3 After the first forensic interview, a nurse practitioner also 

performed a sexual assault examination on victim. Mother then 

participated in several recorded confrontation calls with Harvey, excerpts 

of which were later admitted in evidence at trial and played for the jury. 

After first denying allegations made by Mother, but before she mentioned 

that at least one incident occurred in his truck, Harvey spontaneously

volunteered that the victim “sat on my lap in the truck just like everyone 

else did.”

¶4 The State charged Harvey with one count of sexual conduct 

with a minor, a Class 2 felony and a dangerous crime against children 

(DCAC) offense, for penetrating the victim in his truck and six counts of 

molestation of a child, each a Class 2 felony and a DCAC offense. Before 

trial, following a hearing, the superior court granted the State’s motion to 

present evidence under Arizona Rule of Evidence 404(b) and (c) about 

uncharged actions Harvey undertook with the victim, making findings 

indicated by those rules. The court denied the State’s request to use 
STATE v. HARVEY

Decision of the Court

3

evidence of additional 404(b) and (c) acts that were disclosed to Harvey the 

night before trial began. 

¶5 At trial, the victim testified about Harvey’s conduct, 

describing in some detail evidence supporting each of the seven charges. 

Along with the nurse practitioner, Harvey’s wife and others testified. The 

State’s forensic scientist testified there was no male DNA present on the 

swabs taken during the sexual assault examination, adding that the length 

of time between the assault and the examination made it less likely DNA 

would be detected. After the State rested in its case in chief, Harvey called 

his own DNA expert, who testified that Harvey’s DNA would be present 

on the swabs if Harvey had penetrated the victim as alleged. Harvey moved 

for a judgment of acquittal, which the superior court denied. See Ariz. R. 

Crim. P. 20. Harvey declined to testify, as was his right.

¶6 After deliberation, the jury found Harvey guilty as charged. 

The court polled the jury and each juror answered individually that these 

were their true verdicts. Before sentencing, the court ordered and received 

a pre-sentence report. The court sentenced Harvey to 15 years for the sexual 

conduct with a minor conviction and 12 years for each of the six molestation 

of a child convictions. All of the sentences are flat-time and consecutive. The 

court properly awarded Harvey 536 days of pre-sentence incarceration 

credit on the sexual conduct with a minor conviction and imposed financial 

consequences.

¶7 This court has jurisdiction over Harvey’s timely appeal

pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona 

Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A)

(2022).

DISCUSSION

¶8 The record shows that Harvey was present for and 

represented by counsel at all critical stages of the proceedings. The court 

properly instructed the 12-person jury on the elements of the charged 

offenses, the State’s burden of proof, Harvey’s presumption of innocence 

and other applicable law. The record contains substantial evidence 

supporting the verdicts. The sentences imposed were within statutory 

limits. The award of presentence incarceration credit was accurate. From 

the court’s review of the record, all of the proceedings were conducted in 

compliance with the Arizona Rules of Criminal Procedure.
STATE v. HARVEY

Decision of the Court

4

CONCLUSION

¶9 This court has read and considered counsel’s brief and has 

searched the record provided for reversible error and has found none. Leon, 

104 Ariz. at 300; State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999). 

Accordingly, Harvey’s convictions and resulting sentences are affirmed. 

¶10 Upon the filing of this decision, defense counsel is directed to 

inform Harvey of the status of the appeal and of his future options. Defense 

counsel has no further obligations unless, upon review, counsel identifies 

an issue appropriate for submission to the Arizona Supreme Court by 

petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Harvey

shall have 30 days from the date of this decision to proceed, if he desires, 

with a pro se motion for reconsideration or petition for review.