State v. Causbie

• Decision Date: 05 December 2016
• Docket Number: No. 2 CA–CR 2016–0106,2 CA–CR 2016–0106
• Citation: 753 Ariz. Adv. Rep. 4,241 Ariz. 173,384 P.3d 1253
• Parties: The State of Arizona, Appellee, v. Earl Jefferson Causbie, Appellant.
• Court: Arizona Court of Appeals

241 Ariz. 173

384 P.3d 1253

753 Ariz. Adv. Rep. 4

The State of Arizona, Appellee,

v.Earl Jefferson Causbie, Appellant.

No. 2 CA–CR 2016–0106

Court of Appeals of Arizona, Division 2.

Filed December 5, 2016

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Jonathan Bass, Assistant Attorney General, Tucson, Counsel for Appellee

Kuykendall & Associates, Tucson, By Gregory J. Kuykendall and Amy P. Knight, Counsel for Appellant

Judge Miller authored the opinion of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.

OPINION

MILLER, Judge:

¶ 1 Earl Causbie appeals from his conviction for sexual assault, for which he was sentenced to 5.25 years' imprisonment. He argues the trial court erred by refusing his proposed jury instructions on the meaning of “without consent” in the context of alcohol consumption by the victim. Alternatively, he contends the statutory definition of “without consent” is unconstitutionally vague. For the reasons that follow, we affirm.

Factual and Procedural Background

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the jury's verdict. See State v. Inzunza , 234 Ariz. 78, ¶ 2, 316 P.3d 1266, 1268–69 (App. 2014)

. In October 2011, the victim, J.D., went to a party at the home of G.J., whom she was just “in the beginning stages of kind of dating.” When J.D. arrived, she did not know anyone at the party other than G.J., but she met some of the other guests as the evening went on, including Causbie and A.G.

¶ 3 Many of the guests were already intoxicated by the time J.D. arrived. Most or all of the guests drank whiskey shots during the evening, and others played drinking games. G.J. drank so much that he vomited and then retired to his upstairs bedroom, where he remained for the rest of the night even as the party continued. Over the course of the evening, J.D. drank about six shots of cinnamon-flavored whiskey (about one ounce each), as well as one mixed drink containing a “three-second pour” of whiskey.¹

¶ 4 Causbie flirted with J.D. throughout the party. He flicked and played with her hair, which she did not like. He also tried to hug her from behind—“she laughed but she pulled away ... like she didn't like it,” according to A.G. Causbie's advances made J.D. feel uncomfortable, as she expressed to A.G. about four different times. At one point, Causbie asked J.D. to have a shot of whiskey with him, which she did. Then J.D. decided to send G.J. a photo of her breasts to “show him what he was missing.” She lifted her shirt and bra and told Causbie to photograph her bare breasts and send the photo by text message to G.J., and he did. Causbie then called J.D. a “MILF”² and tried to kiss her, but she said “No, I don't kiss married men. I'm here, like, with [G.J.].”

¶ 5 J.D. then felt that it was time to go. She later said she had been “tipsy,” but not “falling down drunk,” at that point. She got her things and began to leave, but A.G. felt J.D. might have had a lot to drink and wanted to make sure she was okay to drive. With A.G. in the car, J.D. drove a short distance in a circle, which led her to conclude she was not sober enough to drive home safely. A.G. suggested J.D. spend the night on the couch at G.J.'s house. Causbie and another guest also came out to the car and encouraged J.D. to stay there that night. J.D. was “torn”—on the one hand she did not feel safe driving, but on the other hand, she did not feel safe staying over because Causbie's advances had given her the “heebie jeebies.” J.D. expressed her concern to A.G., but A.G. reassured her that she would be safe if she stayed, so she did.

¶ 6 J.D. came back inside, at which point she vomited into a trash can. A.G. got J.D. some water and a blanket, and she lay down on a couch on her stomach “like she was ready to go to sleep.” A.G. saw J.D. close her eyes; she fell asleep “[a]lmost instantly.” A.G. went upstairs, and when she came down about half an hour later to get a drink, J.D. was still asleep—she was “just out,” A.G. explained. A.G. went back upstairs.

¶ 7 Sometime later, A.G. heard a male voice coming from downstairs, so she went down again. As A.G. came down the stairs, she saw J.D. on the couch where she had fallen asleep, lying on her back with her pants and underwear pulled down, her legs about shoulder-width apart, and her knees bent. Causbie was kneeling beside the couch and repeatedly “putting his hand up [J.D.'s] vagina very roughly.” Although A.G. could not tell whether J.D. was awake or asleep when she saw her, J.D. did not appear to be participating in any way, nor was she making any sounds. In fact, J.D. had awakened around the time A.G. came downstairs or shortly before to the feeling of “a thrusting fist pain” or “pounding in [her] vagina area.” She unsuccessfully attempted to push Causbie away.

¶ 8 A.G. walked past them into the kitchen before Causbie realized she was there. A.G. felt “nervous” because she had “just caught two people doing stuff, private stuff, and [she] didn't need to see that.” She called out, “[J.D.], are you okay?” J.D. said no. After hearing this, A.G. “felt dirty” and went into the bathroom to wash her hands. When she came back out, Causbie, who had been kneeling beside J.D.'s midsection, was now kneeling beside her head.

¶ 9 A.G. asked Causbie to give them a moment alone, and he walked away without saying a word. A.G. asked J.D. if she was okay. J.D. was “confused, and was saying like, where am I? Like she didn't know what was going on.” A.G. had to explain to J.D. where she was multiple times. J.D. said she thought Causbie had pulled down her pants, and asked A.G. to help her pull them back up, which she did. J.D. vomited into the trash can again. Then J.D. thanked A.G. and told her she was “a good girl,” and went back to sleep.

¶ 10 The next morning, J.D. awoke to Causbie touching her shoulder. He told her he left her some water on the table, and then he left. J.D. left later, at about 7:30 that morning, and while driving home, pulled over and vomited and urinated on herself. She found blood in her underwear later that day, although she was not menstruating. She also had bruises on her inner thighs, and pelvic pain that lasted for about a week. Feeling “dirty and ashamed,” she took “probably like [twenty]” baths the day after the incident because she “just wanted everything gone from that guy.” J.D. subsequently asked A.G. what had happened the night before because she could not remember everything. A.G. told J.D. what she had seen. J.D. then reported the incident to law enforcement.

¶ 11 Causbie was charged with sexual assault in violation of A.R.S. § 13–1406

, and the case proceeded to a jury trial at which he advanced a consent theory of defense. On the second day of trial, out of the jury's presence, court and counsel discussed jury instructions. The court suggested the following instruction regarding the absence of consent, which tracks A.R.S. § 13–1401(A)(7)(b)³ almost verbatim:

“Without consent” means the victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant. “Mental defect” means the victim is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in the conduct with another.

Causbie objected, and proffered an alternative instruction:

In order for you to find that [J.D.] could not consent to sexual activity due to her use of alcohol you must find beyond a reasonable doubt that she was unable to comprehend the distinctively sexual nature of the conduct or was incapable of understanding or exercising her right to refuse to engage in that conduct with another.

The court rejected Causbie's proposed instruction, overruled his objection, and selected its originally proposed instruction.⁴

¶ 12 The next day, Causbie requested another instruction to supplement, rather than replace, the court's “without consent” definition. Defendant's proposed supplemental instruction read: “The mere fact that [J.D.] may have consumed alcohol does not mean that she could not give consent to sexual activity.” The court declined to give that instruction, stating it was “covered by the other instruction.”

¶ 13 In its closing argument the state contended J.D. had lacked capacity to consent to the sexual intercourse because of both alcohol and sleep. The jury found Causbie guilty of sexual assault on a general verdict form, and he was sentenced as described above. Sections 13–4031

and 13–4033(A)(1), A.R.S., give us jurisdiction over his appeal.

Analysis

Vagueness and Instruction Adequacy

¶ 14 This case raises an issue not yet squarely addressed in our case law: the appropriate jury instruction for incapacity to consent by reason of alcohol. Causbie argues the phrase “incapable of consent by reason of ... alcohol” in § 13–1401(A)(7)(b)

is unconstitutionally vague⁵ on its face⁶ without a narrowing instruction or a more detailed definition. His constitutional argument is intertwined with a state law contention that the statutory definition of “without consent” is insufficient. Thus we address both arguments together.

¶ 15 We review de novo whether a statute is unconstitutionally vague. See State v. Mutschler , 204 Ariz. 520, ¶ 4, 65 P.3d 469, 471 (App. 2003)

. There is a strong presumption that a challenged statute is not unconstitutionally vague, State v. Kaiser , 204 Ariz. 514, ¶ 8, 65 P.3d 463, 466 (App. 2003), and it is the defendant's burden to show otherwise, see

State v. Okken , 238 Ariz. 566, ¶ 9, 364 P.3d 485, 488 (App. 2015). We review a court's refusal to give a requested jury instruction for an abuse of discretion,⁷ but consider de novo whether the instructions given were legally sufficient when viewed as a whole. See

State v. Miller , 234 Ariz....