State v. Davis
In State v. Davis, 206 Ariz. 377, 389, P54, 79 P.3d 64, 76 (2003), the defendant was charged with four counts of sexual conduct with a minor. Id. at 380, P7, 79 P.3d at 67.
In support of count one, the State offered evidence of two separate instances that occurred on two separate days, in both of which Davis was alleged to have committed the complete offense. Id. at 388-89, P51-52, 79 P.3d at 75-76.
Davis had an alibi as to one of those days, and he offered evidence that the victim had sex with someone else on the other. Id. at 389, P58, 79 P.3d at 76.
The supreme court concluded that because Davis had an alibi defense for one of the alleged acts, some of the jurors might have believed the alibi defense while others did not, thus presenting the possibility of a non-unanimous jury verdict. See id. at P59, 79 P.3d at 76.
In the absence of appropriate curative measures by the trial court, such an error required reversal.
Davis acknowledges that it is not reversible error for a trial court to fail to take curative action in circumstances in which there is no reasonable basis for distinguishing between the acts admitted into evidence to establish a single charge. 206 Ariz. at 390, P65, 79 P.3d at 77.
For example, Davis explicitly recognizes and implicitly accepts the single transaction exception set forth in State v. Counterman.
While in Counterman the court upheld the defendant's conviction because it determined that the series of events formed a single transaction, such is not the situation in Davis's case. The two acts that the State relied upon to support the charge involving the victim occurred approximately eleven days apart and were not part of a single transaction. Id.
The State recommended mitigated sentences, the probation officer who prepared the pre-sentence report stated that the mandatory sentences were not warranted and even the victims' mothers did not want Davis to be sentenced to a long prison term. Id. at 380 P9, 79 P.3d at 67.
Also, when the jurors learned of the minimum sentences, "all twelve jurors submitted a note to the trial judge stating their belief that 'the punishment for the crime is excessive.'
Two jurors submitted individual letters expressing their dismay and strong belief that the potential sentences for Davis were too harsh." Id.
Further, upon sentencing, the trial judge entered an order allowing Davis to apply for executive clemency within ninety days of sentencing. Id. at 380 P10, 79 P.3d at 67.