NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

KELLY, Presiding Judge.

¶1 Antoinne Jolly appeals from his convictions and sentences for two counts of sexual assault. He argues: (1) the trial court erred by improperly instructing the jury on the elements of sexual assault; (2) there was insufficient evidence to support the state's theory about the victim's capacity to consent and Jolly's knowledge of it; and (3) the court erred by imposing consecutive sentences. We affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding Jolly's convictions and sentences. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App. 2013). On New Year's Eve in 2011, the victim, S., and her husband had "a few drinks" and took "Percocets"1 before going to a friend's house and having more to drink. They then went to a bar, where S. drank "heavily." The two left the bar after midnight and got into an argument while waiting for a cab. S.'s husband told her to wait there for the cab and he began walking home.

¶3 Jolly and his fiancée, G., were walking through the parking lot after leaving a nearby bar and saw S. crying. Jolly told G. they should take S. home, and S. got in their car. It was apparent to G. that S. was "clearly out of it" and "[i]ntoxicated." As Jolly drove, G. asked S. for her address, but S. was "completely drunk," falling against the front seat, and could not provide more than a two-digit number and "southwest" before she "just went out." Jolly and G. took her to their apartment, where she laid down on a futon in the living room and began to fall asleep. When G. went to the bedroom, Jolly told her he was going to stay up to play a video game and then come to bed. G. woke up a couple hours later, came out of the bedroom, and saw Jolly on the futon "leaning over" S. "very close to her face" and "rubbing her shoulders." S. had her face in a pillow and was crying. Jolly told G. that S. had a panic attack and he was "just trying to comfort her." He told G. to go back to bed, which she did. Later, G. woke up to a "kissing" and "sucking sound." When she walked into the living room, she saw S. "laying down but leaning into [Jolly's] lap" and performing oral sex. Jolly looked up and said "Oh, that was wrong." G. told S. to leave and S. "scrambled up and took off."

¶4 S. "woke up vomiting" in a laundry room in the apartment complex. She did not know where she was or how she had gotten there, but had a vague recollection of waking up earlier to "somebody having sex with [her]." She was missing her underwear and shoes. She searched for the string of the tampon she had been wearing but "didn't feel it" and "freaked out." Her vagina "felt sore." She crouched under a stairway until the sun came up, found someone with a phone, and called her husband to pick her up. When he arrived, she told him she "needed to go to the hospital." A medical examination revealed genital tears and swelling, "consistent with penetration or blunt-force trauma" within the preceding twenty-four hours. Her tampon was "tucked in a fold," "really tight" against her cervix, which likely caused the pelvic pain S. reported. DNA2 matching Jolly's profile was found on both of S.'s breasts.

¶5 Jolly was charged with one count of sexual assault for engaging in an act of sexual intercourse with S. without her consent, and one count of sexual assault for engaging in an act of oral sexual contact with S. without her consent. After a four-day jury trial, he was convicted as charged and sentenced to consecutive prison terms totaling 10.5 years. This appeal followed.

Jury Instruction

¶6 Jolly argues the trial court committed fundamental error by instructing the jury on the elements of sexual assault because the instructions misstated the law as interpreted by State v. Kemper, 229 Ariz. 105, 271 P.3d 484 (App. 2011), and were "inconsistent" with Revised Arizona Jury Instruction (RAJI) 14.06.01. State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 14.06.01 (2012). Because Jolly failed to object to the jury instructions below, we review only for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005).

¶7 Whether jury instructions correctly state the law, however, invokes our de novo review. State v. Roque, 213 Ariz. 193, ¶ 138, 141 P.3d 368, 401 (2006). "[T]he test is whether the instructions adequately set forth the law applicable to the case," when viewed in their entirety. State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009 (1998); see also State v. Musgrove, 223 Ariz. 164, ¶ 6, 221 P.3d 43, 46 (App. 2009).

¶8 The trial court instructed the jury as follows:

¶9 Section 13-1406(A), A.R.S., provides "A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person." Pursuant to A.R.S. § 13-1401(5)(b), "without consent" includes a circumstance where:

(Emphasis added.)

¶10 Although the jury instructions closely tracked the relevant statutory language provided in §§ 13-1406 and 13-1401(5)(b), Jolly contends the definition of "without consent" in § 13-1401(5)(b) is "legally incorrect" to the extent it requires only that the defendant reasonably should have known about the victim's incapacity. He argues Kemper held that the state must prove the defendant had actual knowledge of the victim's lack of consent, even where the state's theory is lack of capacity to consent. We disagree.

¶11 In Kemper, the trial court had instructed the jury regarding the elements of sexual assault as follows:

229 Ariz. 105, ¶ 3, 271 P.3d at 485. There was no instruction articulating the mental state applicable to the "without consent" element of the charge or defining "without consent." Id. ¶ 3 & n.2. The court concluded the incomplete jury instruction constituted fundamental error because it "improperly relieved the State of its burden of proving an element of the offense." Id. ¶ 5. In reaching its conclusion, the court cited by analogy State v. Witwer, 175 Ariz. 305, 308, 856 P.2d 1183, 1186 (App. 1993), which states that, to prove sexual abuse, the state must show "the defendant knew [the sexual] contact was without the consent of the victim." Kemper, 229 Ariz. 105, ¶ 5, 271 P.3d at 485-86.

¶12 Neither Kemper nor Witwer addressed or altered the culpable mental state specifically articulated by the legislature in § 13-1401(5)(b) regarding a victim who is incapable of consent. Kemper merely articulated the more general rule that the mental state of "intentionally or knowingly" applies to each element of sexual assault pursuant to the language of § 13-1406. 229 Ariz. 105, ¶ 5, 271 P.3d at 485-86. The court noted it did not "need [to] decide" whether instructing the jury on the definitions contained in § 13-1401(5) would have cured the deficiency. Id. n.2. Similarly, Witwer held generally that the prescribed mental state for a crime applies to all elements of that crime, including lack of consent, if "no contrary legislative purpose plainly appears." 175 Ariz. at 308, 856 P.2d at 1186; see also A.R.S. § 13-202(A).

¶13 Section 13-1401(5)(b), which was not discussed in Kemper or Witwer, applies a specific culpable mental state to the "without consent" element of sexual assault when a victim lacks capacity to consent. To the extent §§ 13-1406 and 13-1401(5)(b) conflict as to the mental state required to show "without consent," § 13-1401(5)(b) controls. See A.R.S. § 13-202(A) (culpable mental state of offense applies to each element unless "contrary legislative purpose plainly appears"); State v. Ray, 209 Ariz. 429, ¶ 5, 104 P.3d 160, 162 (App. 2004) (when two statutes conflict, we apply more specific statute); see also State v. Windsor, 224 Ariz. 103, ¶ 6, 227 P.3d 864, 865 (App. 2010) (we interpret statutes to avoid rendering any part superfluous).

¶14 For similar reasons, we reject Jolly's argument that the jury instructions were improper as "inconsistent" with RAJI 14.06.01, which includes as an element of sexual assault that "the defendant knew the act was without the consent of the other person." We note first that the RAJIs do not control our analysis, as they are not law and have not been approved by the Arizona Supreme Court. State v. Logan, 200 Ariz. 564, ¶ 12, 30 P.3d 631, 633 (2001). But we also observe the RAJIs are not inconsistent with the instructions given in this case. They merely set out both the general and specific provisions we have discussed above. RAJI 14.06.01 indicates that the mental state of "intentionally or knowingly" generally applies to each element of sexual assault. But RAJI 14.01.05 acknowledges that, in the specific circumstance where the victim is incapable of consent, an act is "without consent" if "such condition is known or should have reasonably been known to the defendant." State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 14.01.05 (2012).

¶15 In this case, the state proceeded on the theory that S. was incapable of consent. The jury was instructed on the proper culpable mental state for each element of the offense, including that the state generally had the burden to prove "the defendant intentionally or knowingly engaged in the act without the consent of the other person." It also was instructed that "without consent" includes a circumstance where the victim is incapable of consent and such condition "is known or should have reasonably been known to the defendant." These instructions adequately set forth the relevant portions of the law. See Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d at 1009. Therefore, we find no error, let alone fundamental error. See State v. Lowery, 230 Ariz. 536, ¶ 11, 287 P.3d 830, 834 (App. 2012) (to establish fundamental error, appellant must first prove error).

Sufficiency of the Evidence

¶16 Jolly next argues the state presented insufficient evidence that S. had lacked capacity to consent and insufficient evidence that Jolly had known she was incapable of consent. He contends the trial court therefore erred by denying his Rule 20, Ariz. R. Crim. P., motion for judgment of acquittal.

¶17 A motion for judgment of acquittal should be granted only when "`there is no substantial evidence to warrant a conviction.'" State v. Gray, 231 Ariz. 374, ¶ 2, 295 P.3d 951, 952 (App. 2013), quoting Ariz. R. Crim. P. 20(a). "Substantial evidence" is "`evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mwandishi, 229 Ariz. 570, ¶ 6, 278 P.3d 912, 913 (App. 2012), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). We review the denial of a Rule 20 motion de novo. Id. We must uphold the court's denial if reasonable minds could "`differ on the inferences to be drawn from the evidence.'" Gray, 231 Ariz. 374, ¶ 2, 295 P.3d at 952-53, quoting State v. Alvarez, 210 Ariz. 24, ¶ 10, 107 P.3d 350, 353 (App. 2005), vacated in part on other grounds, 213 Ariz. 467, 143 P.3d 668 (App. 2006).

¶18 As discussed above, to prove its theory, the state was required to show S. was incapable of consent and Jolly knew or should have known her condition. See §§ 13-1406(A), 13-1401(5)(b). Substantial evidence in the record supports a conclusion that the state proved both elements. Before leaving her house, S. had "a few drinks," and took a Percocet for "recreational drug use." She also took "propranolol" to treat "[r]apid heart rate."3 She then had another drink at a friend's house and drank "heavily" at the bar. By the time she met Jolly and G., she felt "intoxicated" and "drunk." She did not recall getting into Jolly's car. When G. asked S. for her address, S. "toppled over and hit her head on the front seat." G. testified it was "just a complete fall-out" and that S. did not "put her hands up" to break her fall, but fell face-first into the seat. At that point, G. knew S. "was completely drunk." When G. asked again for her address, S. gave "a two-digit number," said "southwest," and then "just went out." G. told Jolly, "we need to get rid of her somehow, because I don't want to be liable if there's something else that she took." G. was scared about what S. may have ingested and told Jolly about her concerns, but Jolly suggested they take her to their apartment.

¶19 Once they arrived at the apartment, Jolly offered to carry S. up the stairs. S. ultimately walked up the stairs, but she "needed help" and was "leaning on" Jolly, who "had his hand around her back." S. felt like she "was having a dream," and recalled "crying and saying, I want to go home, I want to go home." She remembered coming "to consciousness again, and somebody was having sex with [her]." Her next recollection was when she "woke up vomiting . . . in a laundry room."

¶20 Jolly acknowledges the state presented evidence of S.'s impairment from prescription drugs and alcohol. However, he argues there was insufficient evidence to establish he knew of her incapacity to consent, "[b]ased on the descriptions of both [G.] and [S.'s husband]." For example, he cites testimony that S.'s husband thought she was "in control . . . [f]or the most part" when he left her in the parking lot. He cites S.'s ability to get up the stairs to Jolly's apartment without being carried. And he emphasizes that G.'s description of S. performing oral sex on Jolly did not involve any "sign of struggle," "force," or an "unconscious victim."

¶21 Jolly essentially asks us to reweigh the evidence, which we will not do. State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997) (appellate court does not reweigh evidence on review). The jury was entitled to weigh the evidence and to resolve any conflicts therein. See State v. Manzanedo, 210 Ariz. 292, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). Indeed, "[i]f conflicts in evidence exist, the appellate court must resolve such conflicts in favor of sustaining the verdict and against the defendant." State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Because the state presented substantial evidence to support Jolly's convictions on both counts, the trial court did not err by denying his Rule 20 motion. Gray, 231 Ariz. 374, ¶ 2, 295 P.3d at 952.

Consecutive Sentences

¶22 The trial court imposed consecutive sentences for Jolly's two sexual assault convictions pursuant to A.R.S. § 13-1406(C), which provides "[t]he sentence imposed on a person for a sexual assault shall be consecutive to any other sexual assault sentence imposed on the person at any time." Jolly argues § 13-1406(C) "does not apply" to his convictions because "the oral sexual contact and the penile penetration both occurred in the same place within a short span of time" and therefore were "really a single incident and not two separate sexual assaults," although he acknowledges it was proper to impose separate punishments for the two offenses.

¶23 We need not reach this argument because Jolly has waived it on appeal. The pre-sentence report reflected that, for each count, the "[s]entence imposed shall be consecutive to any other sexual assault sentence imposed." At the sentencing hearing, the trial court first expressed an intent to impose two concurrent seven-year sentences. The state objected and reminded the court that concurrent sentences were not permitted. After reviewing the statute, the court agreed and imposed two consecutive 5.25-year sentences. At no point did Jolly object to the court's interpretation of the statute as requiring consecutive sentences. Because the basis for Jolly's claim was apparent in the pre-sentence report and during a discussion at the sentencing hearing, see State v. Vermuele, 226 Ariz. 399, ¶ 6, 249 P.3d 1099, 1101 (App. 2011) (where basis of claim not apparent until final pronouncement of sentence, lack of objection may not waive argument on appeal), his failure to object has waived the argument on appeal absent fundamental, prejudicial error. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. Because Jolly does not contend on appeal that any alleged error was fundamental, and because no error is apparent, we do not address his argument. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (failure to allege fundamental error waives issue on review); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (we "will not ignore [fundamental error] when we find it").

Disposition

¶24 For the foregoing reasons, Jolly's convictions and sentences are affirmed.