State v. Toney

── State v. Toney ── Court: Court of Appeals of Arizona Date: May 11, 2026 Category: General 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 E. TONEY, JR., Appellant. No. 1 CA-CR 25-0251 FILED 05-11-2026 Appeal from the Superior Court in Maricopa County No. CR2023-007738-001 The Honorable Pamela Hearn Dunne, Judge, Retired AFFIRMED COUNSEL Maricopa County Public Defender’s Office, Phoenix By Abigail Smith Counsel for Appellant Arizona Attorney General’s Office, Phoenix By Rebecca Jones Counsel for Appellee  STATE v. TONEY Decision of the Court MEMORANDUM DECISION Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge Andrew M. Jacobs and Judge James B. Morse Jr. joined. F U R U Y A, Judge: ¶1 David E. Toney, Jr. (“Toney”) appeals his convictions for two counts of molestation of a child. He does not appeal the related sentences. He contends that being convicted of both counts violates the Double Jeopardy Clauses in the United States Constitution and the Arizona Constitution (collectively, “the Double Jeopardy Clause”). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We view the facts in the light most favorable to sustaining the jury’s verdict and resolve all inferences against Toney. State v. Allen, 253 Ariz. 306, 339 ¶ 99 (2022). ¶3 Around 2004 or 2005, Toney moved in with his then-girlfriend (“Ex-Girlfriend”) and her three children. A few years later, Ex-Girlfriend’s thirteen- or fourteen-year-old niece, Tess,1 also moved in. Ex-Girlfriend and Toney lived together until 2012 but continued in an on-again, off-again relationship until 2015. ¶4 In 2018, Tess and Ex-Girlfriend’s two daughters disclosed that while they lived together Toney sexually assaulted them. After a lengthy investigation, a grand jury indicted Toney in August 2023 on three counts of sexual conduct with a minor and five counts of molestation of a child. As relevant to this appeal, Counts 5 and 6 concerned the molestation of Tess. ¶5 Trial began in March 2025. After a seven-day trial, the jury found Toney guilty on seven of the eight counts, including Counts 5 and 6. Toney received multiple consecutive sentences ranging from seventeen years in prison to life with the possibility of release after thirty-five years. 1 We use pseudonyms to protect the victim’s privacy. See Ariz. R. Sup. Ct. 111(i); Ariz. R. Crim. P. 31.10(f). 2  STATE v. TONEY Decision of the Court ¶6 Toney timely appealed. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes Sections 13-4031 and -4033(A). DISCUSSION ¶7 Toney argues his convictions for Count 5 and Count 6 violate the Double Jeopardy Clause because Tess’s testimony allegedly establishes that both counts refer to the same incident. The State counters it “was clear about which (separate) sets of facts applied to specific counts” and Tess’s testimony established two separate incidents. ¶8 Because Toney did not raise a double jeopardy issue at trial, we review for fundamental error only. State v. Henderson, 210 Ariz. 561, 567 ¶ 19 (2005). A double jeopardy violation constitutes reversible error, and we review de novo whether a violation occ