358 P.3d 639 (Ariz.App. Div. 2 2015), 2 CA-CR 2014-0268, State v. Holle

Docket Nº:2 CA-CR 2014-0268
Citation:358 P.3d 639
Opinion Judge:VÁ SQUEZ, Presiding Judge:
Party Name:THE STATE OF ARIZONA, Appellee, v. JERRY CHARLES HOLLE, Appellant
Attorney:For Appellee: Diane Leigh Hunt, Assistant Attorney General, Tucson, Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix. For Appellant: Erin K. Sutherland, Assistant Public Defender, Tucson, Steven R. Sonenberg, Pima County Public Defender.
Judge Panel:Presiding Judge Vá squez authored the opinion of the Court, in which Judge Howard and Judge Kelly[1] concurred.
Case Date:September 16, 2015
Court:Court of Appeals of Arizona
 
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Page 639

358 P.3d 639 (Ariz.App. Div. 2 2015)

THE STATE OF ARIZONA, Appellee,

v.

JERRY CHARLES HOLLE, Appellant

No. 2 CA-CR 2014-0268

Court of Appeals of Arizona, Second Division

September 16, 2015

Appeal from the Superior Court in Pima County. No. CR20131185001. The Honorable Richard D. Nichols, Judge.

Page 640

For Appellee: Diane Leigh Hunt, Assistant Attorney General, Tucson, Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix.

For Appellant: Erin K. Sutherland, Assistant Public Defender, Tucson, Steven R. Sonenberg, Pima County Public Defender.

Presiding Judge Vá squez authored the opinion of the Court, in which Judge Howard and Judge Kelly1 concurred.

OPINION

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VÁ SQUEZ, Presiding Judge:

[¶1] After a jury trial, Jerry Holle was convicted of molestation of a child and sexual abuse of a minor under the age of fifteen. The trial court sentenced him to a ten-year term of imprisonment for molestation, followed by a five-year term of probation for sexual abuse. On appeal, Holle argues the court erred when it instructed the jury that " lack of sexual motivation [is] an affirmative defense to be proven by the defendant." In the alternative, he argues " the legislature has overstepped its constitutional authority" by redefining sexual interest as an affirmative defense. For the following reasons, we affirm.

Factual and Procedural Background

[¶2] We view the facts in the light most favorable to sustaining Holle's convictions. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In February 2013, M.H. disclosed to a friend and school counselor that her grandfather, Holle, had touched her breasts, buttocks, and vagina on several occasions. After an investigation, a grand jury indicted Holle for molestation of a child, sexual abuse of a minor under fifteen, sexual conduct with a minor under fifteen, and aggravated assault of a minor under fifteen. The state alleged the first three charges were dangerous crimes against children (DCAC) and the fourth offense was committed for the purpose of sexual gratification.

[¶3] Before trial, Holle filed an " objection to [the] statutory elements of the offense," arguing the statutes for molestation and sexual abuse " exclude[] the central element defining mens rea. . . [,] sexual interest, and shift[] the burden to the defendant to prove lack of sexual interest in violation of the Due Process Clause of the Fifth and Fourteenth Amendments." Based on that argument, he requested a jury instruction stating, " The State must prove beyond a reasonable doubt that the defendant was sexually motivated to commit" the offenses. The trial court denied the request.

[¶4] At the close of the state's case at trial, Holle moved for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., on all counts. The court granted the motion only as to aggravated assault. In his defense on

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the remaining charges, Holle presented the testimony of his daughters and M.H.'s uncle, all of whom stated they had no reason to believe Holle was sexually interested in M.H. or other children. The court instructed the jury regarding Holle's defense as follows:

It is a defense to sexual abuse and molestation of a child if the defendant was not motivated by a sexual interest.

. . . The burden of proving each element of the offenses beyond a reasonable doubt always remains on the State. However, the burden of proving the affirmative defense of sexual abuse and molestation of a child is on the defendant. The defendant must prove the affirmative defense of no sexual interest by a preponderance of the evidence. If you find that the defendant has proven the affirmative defense of no sexual interest by a preponderance of the evidence you must find the defendant not guilty of the offenses of sexual abuse and molestation of a child.

Despite this instruction, the jury submitted a question to the court shortly after deliberations began, asking, " For these accusations to be a crime, must there be sexual intent proven[?]" The court referred the jury back to their original instructions.

[¶5] The jury found Holle guilty of molestation and sexual abuse of a minor, both DCAC, but was unable to reach a verdict on the charge of sexual conduct with a minor. Upon the state's request, the trial court later dismissed the sexual-conduct charge with prejudice. The court sentenced Holle as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. § § 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Jury Instruction

[¶6] Holle argues " sexual interest is, and always has been, an element of the offense of Child Molestation" and therefore the trial court erred by instructing the jury that he had the burden to prove his lack of sexual interest. We review de novo whether a jury instruction accurately stated the law. State v. Paredes-Solano, 223 Ariz. 284, ¶ 24, 222 P.3d 900, 908 (App. 2009). " [T]he test is whether the instructions [as a whole] adequately set forth the law applicable to the case." State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009-10 (1998).

[¶7] The issue presented here primarily involves the interpretation of A.R.S. § § 13-1404 and 13-1410. Our goal in interpreting statutes is to " give effect to the legislature's intent." State v. Hinden, 224 Ariz. 508, ¶ 9, 233 P.3d 621, 623 (App. 2010). " [W]e look first to the plain language of the statute as the most reliable indicator of its meaning." State v. Givens, 206 Ariz. 186, ¶ 5, 76 P.3d 457, 459 (App. 2003). If the plain language of the statute is clear, unambiguous, and susceptible to only one reasonable interpretation, " we need look no further to ascertain the legislative intent" and will apply the language as written. State v. Peek, 219 Ariz. 182, ¶ 11, 195 P.3d 641, 643 (2008); State v. Gomez, 212 Ariz. 55, ¶ 11, 127 P.3d 873, 875 (2006). If the statute's language is ambiguous, however, we must turn to other tools of statutory interpretation. State v. Ross, 214 Ariz. 280, ¶ 22, 151 P.3d 1261, 1264 (App. 2007).

Plain-Meaning Rule

[¶8] To determine whether a statute is unambiguous and susceptible to only one reasonable interpretation, we must give words their plain, ordinary, or " 'commonly accepted meaning[]'" unless a statutory term is defined, in which case we apply that meaning. State v. Bon, 236 Ariz. 249, ¶ 6, 338 P.3d 989, 991 (App. 2014), quoting State v. Petrak, 198 Ariz. 260, ¶ 10, 8 P.3d 1174, 1178 (App. 2000). This general rule has a critical purpose in the criminal-law context--our criminal statutes must warn the public " of the nature of the conduct proscribed" by our legislature. A.R.S. § 13-101(2); see also A.R.S. § § 1-211(C) (" Penal statutes shall be construed according to the fair import of their terms, with a view to effect their object and to promote justice." ), 13-101(3) (criminal statutes " define the act or omission and the accompanying mental state which constitute each offense and limit the condemnation of conduct as criminal when it does not fall within the purposes set forth" ). Thus, in determining whether a statute fulfills this purpose, we consider how " 'a person of ordinary or average intelligence'" would interpret

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the statute's language. State v. Getz, 189 Ariz. 561, 565, 944 P.2d 503, 507 (1997), quoting Barbone v. Superior Court, 11 Ariz.App. 152, 154, 462 P.2d 845, 847 (1969).

[¶9] With these principles in mind, we turn to § § 13-1404(A) and 13-1410(A). A defendant commits child molestation by " intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age." § 13-1410(A). Similarly, a defendant commits sexual abuse by " intentionally or knowingly engaging in sexual contact . . . with any person who is under fifteen years of age if the sexual contact involves only the female breast." § 13-1404(A). And, the term " sexual contact" is defined as " any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact." A.R.S. § 13-1401(2).

[¶10] In State v. Simpson, another department of this court concluded the language in the molestation statute was " clear and unambiguous." 217 Ariz. 326, ¶ 18, 173 P.3d 1027, 1029 (App. 2007). The court noted that the statute, § 13-1410, does not refer to " sexual interest" under A.R.S. § 13-1407(E), which provides: " It is a defense to a prosecution [for sexual abuse] or [molestation] that the defendant was not motivated by a sexual interest." Id. Therefore, the court determined " [t]he 'sexual interest' provision of § 13-1407(E) is not an element of the offense." Id. ¶ 19.

[¶11] Although Simpson provides one reasonable interpretation of § 13-1410(A), to the extent it concludes this is the only reasonable interpretation, we respectfully disagree. See State v. Patterson, 222 Ariz. 574, ¶ 19, 218 P.3d 1031, 1037 (App. 2009) (decisions of coordinate courts are " 'persuasive and binding, unless we are convinced that the prior decisions are based upon clearly erroneous principles'" ), quoting Scappaticci v. Sw. Sav. & Loan Ass'n, 135 Ariz. 456, 461, 662 P.2d 131, 136 (1983); cf. Ariz. Citizens Clean Elections Comm'n v. Brain, 234 Ariz. 322, ¶ 34, 322 P.3d 139, 146 (2014) (Bales, J., dissenting) (" When . . . a statute may reasonably be interpreted more than one way, determining its meaning is not advanced by assertions that one plausible interpretation must be right because it reflects the 'plain meaning.'" ). A person of ordinary or average intelligence would infer a fundamental connection exists between...

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