State v. Holle

• Decision Date: 13 September 2016
• Docket Number: No. CR–15–0348–PR,CR–15–0348–PR
• Citation: 240 Ariz. 300,379 P.3d 197
• Parties: STATE of Arizona, Appellee, v. Jerry Charles HOLLE, Appellant.
• Court: Arizona Supreme Court

240 Ariz. 300

379 P.3d 197

STATE of Arizona, Appellee,

v.Jerry Charles HOLLE, Appellant.

No. CR–15–0348–PR

Supreme Court of Arizona.

Filed September 13, 2016

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals Section, Diane L. Hunt (argued), Assistant Attorney General, Tucson, Attorneys for State of Arizona

Steven R. Sonenberg, Pima County Public Defender, David J. Euchner, Erin K. Sutherland (argued), Assistant Public Defenders, Tucson, Attorneys for Jerry C. Holle

Mikel Steinfeld (argued), Arizona Attorneys for Criminal Justice, Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which JUSTICES TIMMER and BOLICK joined, and CHIEF JUSTICE BALES and JUSTICE BRUTINEL dissented in part and concurred in the result.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶ 1 Under A.R.S. § 13–1407(E), "[i]t is a defense to a prosecution" for sexual abuse or child molestation "that the defendant was not motivated by a sexual interest." We hold that lack of such motivation is an affirmative defense that a defendant must prove, and thus the state need not prove as an element of those crimes that a defendant's conduct was motivated by a sexual interest.

I.

¶ 2 We view the evidence and all reasonable inferences in the light most favorable to sustaining the jury's verdicts. State v. Cropper , 205 Ariz. 181, 182 ¶ 2, 68 P.3d 407, 408 (2003). Jerry Charles Holle's eleven year-old step-granddaughter, M., told a friend and then the police that Holle had inappropriately touched and kissed her. The State charged Holle with sexual abuse of a minor under age fifteen, A.R.S. § 13–1404 ; sexual conduct with a minor, A.R.S. § 13–1405 ; and child molestation, A.R.S. § 13–1410.

¶ 3 Before trial, Holle asked the court to instruct the jury that the State must prove beyond a reasonable doubt sexual motivation as an element of the sexual abuse and child molestation charges. He argued that imposing the burden on him to prove lack of sexual motivation would violate his due process rights. Relying on State v. Simpson , 217 Ariz. 326, 173 P.3d 1027 (App. 2007), the trial court disagreed, ruling that under § 13–1407(E) a defendant must prove a lack of sexual motivation by a preponderance of the evidence. The court instructed the jurors to that effect at the close of trial and also instructed them on the elements of the charged offenses, including the statutory definition of "sexual contact," A.R.S. § 13–1401(A)(3).

¶ 4 At trial, Holle argued that the allegations against him were "blown out of proportion" and that he had always engaged in sexually normal behavior. Holle's two daughters testified that he never sexually assaulted them or any other children. Other relatives likewise testified about Holle's sexual normalcy. Early in its deliberations, the jury submitted the following question: "For these accusations to be a crime, must there be sexual intent proven?" The trial court told the jurors to follow the instructions they previously had been given.

¶ 5 The jury found Holle guilty of child molestation and sexual abuse of a minor under age fifteen but was unable to reach a verdict on the charge of sexual conduct with a minor (the trial court, at the State's request, later dismissed that charge with prejudice). The court sentenced Holle to a ten-year prison term for molestation, followed by a five-year term of probation for sexual abuse.

¶ 6 The court of appeals concluded that the trial court erred in instructing the jury that Holle bore the burden of proving "his conduct was not motivated by a sexual interest." State v. Holle , 238 Ariz. 218, 226 ¶ 26, 358 P.3d 639, 647 (App. 2015). Disagreeing with Simpson , 217 Ariz. at 326 ¶ 19, 173 P.3d at 1030, the court held that " § 13–1407(E) is a defense but not an affirmative defense." Holle , 238 Ariz. at 226 ¶¶ 25–26, 358 P.3d at 647. Rather, the court stated, if a defendant charged with sexual abuse or child molestation "satisfies the burden of production to raise the defense listed under § 13–1407(E), then the state must prove beyond a reasonable doubt that the defendant's conduct was motivated by a sexual interest." Id. at ¶ 26. Because the record reflected "overwhelming evidence that Holle's conduct was motivated by a sexual interest," however, the court of appeals found that the trial court's instructional error was harmless and therefore affirmed. Id. at 227–28 ¶¶ 31–32, 358 P.3d at 648–49.

¶ 7 Holle petitioned for review regarding the court of appeals' finding of harmless error, and the State filed a cross-petition for review regarding the court's application of § 13–1407(E). We granted both petitions to resolve a split of authority between Simpson and the court of appeals' opinion in this case. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12–120.24.

II.

¶ 8 We review questions of statutory interpretation and constitutional issues de novo. State v. Dann , 220 Ariz. 351, 369 ¶ 96, 207 P.3d 604, 622 (2009). We also review de novo "whether jury instructions correctly state the law." State v. Bocharski , 218 Ariz. 476, 487 ¶ 47, 189 P.3d 403, 414 (2009).

¶ 9 In Arizona, "[a]ll common law offenses and affirmative defenses [have been] abolished." A.R.S. § 13–103(A). The legislature is empowered to define what constitutes a crime in this state and to prescribe the punishment for criminal offenses. State v. Bly , 127 Ariz. 370, 371, 621 P.2d 279, 280 (1980) ; see State v. Casey , 205 Ariz. 359, 363 ¶ 15, 71 P.3d 351, 355 (2003) (superseded by statute, A.R.S. § 13–205(A) ) (the legislature, not the judiciary, has "constitutional authority to define crimes and defenses"); State v. Viramontes , 204 Ariz. 360, 362 ¶ 12, 64 P.3d 188, 190 (2003) ("It is not our place to pass on the wisdom of" legislative decisions concerning criminal procedure). This power also extends, at least within constitutional bounds, to defenses. Cf. State v. Mott , 187 Ariz. 536, 540–41, 931 P.2d 1046, 1050–51 (1997) (the legislature decides whether "to adopt the defense of diminished capacity" and the "Court does not have the authority" to do so).

¶ 10 Criminal statutes must "give fair warning of the nature of the conduct proscribed." A.R.S. § 13–101(2). And "[p]enal statutes shall be construed according to the fair import of their terms, with a view to effect their object and to promote justice." A.R.S. § 1–211(C).

¶ 11 When interpreting a statute, we start with the text because it is the most reliable indicator of a statute's meaning. State v. Christian , 205 Ariz. 64, 66 ¶ 6, 66 P.3d 1241, 1243 (2003). When the text is clear and unambiguous, we need not resort to other methods of statutory interpretation to discern the legislature's intent because "its intent is readily discernable from the face of the statute." Id. ; see also Sell v. Gama , 231 Ariz. 323, 327 ¶ 16, 295 P.3d 421, 425 (2013) (if a statute's language is clear, "it controls unless an absurdity or constitutional violation results").

A.

¶ 12 Holle was convicted of child molestation and sexual abuse. The child molestation statute, A.R.S. § 13–1410(A), provides: "A person commits molestation of a child 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." The sexual abuse statute, A.R.S. § 13–1404(A), provides: "A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person who is fifteen or more years of age without consent of that person or with any person who is under fifteen years of age if the sexual contact involves only the female breast."

¶ 13 Both statutes require "sexual contact" that the defendant "intentionally or knowingly engag[ed] in." A.R.S. §§ 13–1404(A), –1410(A). "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(A)(3). "Intentionally" means "with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct." A.R.S. § 13–105(10)(a). And "knowingly" means "with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission." A.R.S. § 13–105(10)(b).

¶ 14 Section 13–1407(E) sets forth a defense to child molestation and sexual abuse:

It is a defense to a prosecution pursuant to § 13–1404 or 13–1410 that the defendant was not motivated by a sexual interest. It is a defense to a prosecution pursuant to § 13–1404 involving a victim under fifteen years of age that the defendant was not motivated by a sexual interest.

B.

1.

¶ 15 The court of appeals noted that, with the exception of Simpson , "sexual interest under § 13–1407(E) has always been treated as an ‘element’ " or as "a defense that the state must nevertheless disprove beyond a reasonable doubt." Holle , 238 Ariz. at 226 ¶ 25, 358 P.3d at 647. It therefore concluded that "sexual interest [under § 13–1407(E) ] appears to be the type of defense that ‘either denies an element of the offense charged or denies responsibility, including ... lack of intent.’ " Id. (quoting § 13–103(B) ). Holle agrees and further contends that sexual motivation is an element of sexual abuse and molestation, requiring the state to prove that element beyond a reasonable doubt if the defendant raises the defense of lack of sexual motivation. "Because sexual motivation is what makes the conduct at issue criminal," Holle argues, "proof of that fact cannot be shifted...