State v. Getz
| Decision Date | 14 August 1997 |
| Docket Number | No. CR-96-0595-PR,CR-96-0595-PR |
| Citation | 944 P.2d 503,189 Ariz. 561 |
| Parties | , 250 Ariz. Adv. Rep. 10 STATE of Arizona, Appellee/Respondent. v. Robert GETZ, II, Appellant/Petitioner. |
| Court | Arizona Supreme Court |
Robert Getz (defendant) was charged with and convicted of conspiracy to commit sexual exploitation of a minor (count five), three counts of sexual exploitation of a minor (counts three, four, and ten), and four counts of sexual abuse (counts six through nine). He was sentenced to presumptive sentences, some concurrent and some consecutive, requiring him to serve 72.5 years. On appeal, the court of appeals reversed two of the convictions, and remanded for resentencing.
The bases of defendant's convictions are that he videotaped a three-year-old and a four-year-old lewdly exhibiting their genitals, and also videotaped himself touching and having oral contact with the breasts of a sixteen-year-old consenting female. On this petition for review, only the counts relating to the sixteen-year old are at issue; thus we confine our discussion to those counts.
The four counts relating to the sixteen-year-old alleged that defendant committed sexual abuse on her in violation of A.R.S. § 13-1404(A) by touching her breasts (count six), having oral contact with her left breast (count seven), having oral contact with her right breast (count eight), and again touching her breasts (count nine). A.R.S. § 13-1404(A), at the time, read: "A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fourteen or more years of age without consent of that person or with any person who is under fourteen years of age if the sexual contact involves only the female breast." 1990 Ariz. Sess. Laws, 39th Leg.2d Reg. Sess. Ch. 384, Sec. 1 [hereinafter Ch. 384] (current version at A.R.S. § 13-1404(A) (Supp.1996)).
Before trial, defendant moved to dismiss the four counts involving the sixteen-year-old. His theory was that, because the alleged victim was sixteen, the state had to prove lack of consent. The state countered with the theory that the affirmative defense statute, A.R.S. § 13-1407(B), negated consent as a defense where the victim was fourteen, fifteen, sixteen or seventeen unless the defendant did not know and could not reasonably have known the victim's age. A.R.S. § 13-1407(B) provides:
It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405, in which the victim's lack of consent is based on incapacity to consent because the victim was fourteen, fifteen, sixteen or seventeen years of age, if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim.
Ch. 384, Sec. 3. Defendant argued that reading section 13-1407(B) into section 13-1404 would render the latter statute unconstitutionally vague.
The trial court denied defendant's motion to dismiss. The state then moved to exclude consent as a defense altogether, contending that a sixteen-year-old was legally incapable of giving consent to having her breasts touched. The trial court also denied the state's motion, ruling instead that the state needed to prove either lack of consent or that defendant knew that the victim was under eighteen.
The trial evidence showed that the girl was sixteen and consented to the acts. Defendant moved for a directed verdict of acquittal, contending that the state did not prove that defendant knew the age of the victim. The directed verdict was denied. The trial court instructed the jury in the language of both A.R.S. §§ 13-1404(A) and 13-1407(B). Given the jury's guilty verdict, it must be assumed the jury rejected defendant's argument that he did not know the girl was only sixteen, an unremarkable conclusion given the fact he had known her since she was eleven.
On appeal, the court of appeals disposed of the issue as follows: State v. Getz, No. 2 CA-CR 94-0184/ 2 CA-CR 95-0543-PR (Consolidated), (Ariz.Ct.App. July 30, 1996) (memorandum decision at 4).
We granted defendant's petition for review limited to the single issue of whether consent is a defense under section 13-1404 if the victim-participant is fourteen, fifteen, sixteen or seventeen years of age. We did so in the hope of providing some guidance concerning the proper interpretation of these confusing statutes and the equally confusing case law they have produced. We have jurisdiction pursuant to Arizona Constitution article VI, section 5(3) and Arizona Rules of Criminal Procedure 31.19.
Whether the trial court erred in ruling that the state need not prove lack of consent in a prosecution for sexual abuse under A.R.S. § 13-1404(A) where the victim/participant is fourteen, fifteen, sixteen, or seventeen years of age. 1
We restate the statutory definition of the crime of sexual abuse:
A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fourteen or more years of age without consent of that person or with any person who is under fourteen years of age if the sexual contact involves only the female breast.
Ch. 384, Sec. 1, supra (emphasis added) (current version at A.R.S. § 13-1404 (Supp.1996)). The term "sexual contact" referred to in section 13-1404 is defined in A.R.S. § 13-1401(2) and includes touching, fondling or manipulating the female breast by any part of the body.
At first blush, the statute's treatment of victims under fourteen seems anomalous. However, the seeming anomaly is explained by the fact that, with respect to victims under fourteen, sexual activities considered more serious than female breast contact are dealt with in other statutes. See, e.g., Ch. 384, Sec. 4, supra (current version at A.R.S. § 13-1410 (Supp.1996)) (Molesting a child under the age of fourteen by directly or indirectly touching the private parts of such child or causing the child to touch the private parts of the person is a class two felony.); Ch. 384, Sec. 2, supra (current version at A.R.S. § 13-1405 (Supp.1996)) (Sexual intercourse or oral contact with a minor under fourteen years of age is a class two felony.).
In recent years, the legislature has amended the sexual abuse statute twice. An earlier version of the sexual abuse statute established the age of consent as fifteen, but the legislature amended the age to fourteen in 1990, presumably as a result of our decision in Matter of Pima County Juvenile Appeal No. 74802-2, 164 Ariz. 25, 790 P.2d 723 (1990). The statute has since been amended again in 1993, reverting to the original age of consent of fifteen. Hereafter, in referring to A.R.S. § 13-1404, we will be referring to the 1990 version, the law in existence at the time defendant committed the charged acts.
We are resolving an issue of statutory interpretation. Therefore, we review the trial court's conclusion de novo. See Chaparral Dev. v. RMED Int'l, Inc., 170 Ariz. 309, 311, 823 P.2d 1317, 1319 (App.1991).
Section 1-211(C) of the Arizona Revised Statutes states that penal statutes must be construed according to the fair import of their terms. We have held that where the language of the statute is clear and unequivocal, the court must abide by the language of the statute. In Matter of Pima Cty. Juv. App. No. 74802-2, 164 Ariz. 25, 790 P.2d 723 (1990), we stated:
We are guided by the fundamental rules of statutory construction. It is our duty to ascertain the intent of the legislature in interpreting a statute. The best and most reliable index of a statute's meaning is its language and, where the language is clear and unequivocal, it is determinative of a statute's construction.
Id. at 33, 790 P.2d at 731 (citations omitted); see also Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994) (). We are not at liberty to impose our view about the way we feel things should be "simply because that's what must have been intended, otherwise no statute, contract or recorded word, no matter how explicit, could be saved from judicial tinkering." Kilpatrick v. Superior Ct., 105 Ariz. 413, 422, 466 P.2d 18, 27 (1970).
The language of A.R.S. § 13-1404 is plain on its face. See Matter of Pima Cty. Juv. App. No. 74802-2, 164 Ariz. at 33, 790 P.2d at 731. A.R.S. § 13-1404(A) states that a person commits sexual abuse "by intentionally or knowingly engaging in sexual contact with any person fourteen or more years of age without consent of that person." Ch. 384, Sec. 1, supra (emphasis added). A.R.S § 13-1401(5) defines "without consent" as including any of the following:
(a) The victim is coerced by the immediate use or threatened use of force against a person or property.
(b) The victim is incapable of consent by reason of mental disorder, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant.
(c) The victim is intentionally deceived as to the nature of the act.
(d) The victim is intentionally deceived to erroneously believe that the person is the victim's spouse.
A.R.S. § 13-1401(5) (Supp.1996). "Without consent" is not defined as occurring because one is under eighteen. 2
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