Pima County Juvenile Appeal No. 74802-2, Matter of

Citation164 Ariz. 25,790 P.2d 723
Decision Date04 April 1990
Docket NumberNo. CV-89-0159-PR,CV-89-0159-PR
PartiesIn the Matter of PIMA COUNTY JUVENILE APPEAL NO. 74802-2, Petitioner.
CourtSupreme Court of Arizona
OPINION

MOELLER, Justice.

JURISDICTION

The petitioner is a sixteen-year-old male juvenile who was on probation as a result of shoplifting. The juvenile court revoked his probation based on a finding that he had sexually abused a fourteen-year-old girl. The factual basis for the finding was that the boy had fondled the girl's breasts with her consent. On appeal, the juvenile challenged both the applicability and the constitutionality of the sexual abuse statute, A.R.S. § 13-1404. The court of appeals affirmed in a published opinion, In the Matter of Pima County Juvenile Action No. 74802-2, 162 Ariz. 97, 781 P.2d 74 (App.1989). We granted the juvenile's petition for review and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

QUESTIONS PRESENTED

The petition presents the following questions for our resolution:

1. Whether A.R.S. § 13-1404 is unconstitutionally vague as applied to petitioner.

2. Whether A.R.S. § 13-1404 is unconstitutionally overbroad.

3. Whether the legislature intended A.R.S. § 13-1404 to apply to minor offenders.

Because the petition presents no challenge to the order revoking probation assuming the validity of the underlying finding of sexual abuse, we do not consider whether probation revocation was a proper disposition for the violation. The petition does not present and we do not consider any question relating to the interpretation, applicability or constitutionality of any statute requiring the reporting of sexual activities of juveniles; nor do we consider any constitutional issues except those specified above.

FACTS AND PROCEDURAL HISTORY

Petitioner was charged in Pima County Juvenile Court with violating his juvenile probation by committing sexual abuse in violation of A.R.S. § 13-1404. The incident occurred during the early morning hours of August 21, 1988, when petitioner entered the girl's bedroom and fondled her breasts. Both juveniles were staying at a foster home in which they had been placed by the Department of Economic Security. At the time of the incident, petitioner was sixteen and the girl was fourteen.

The judge found that the touching of the girl's breasts was consensual, but that the consent of the girl was not a defense because she was fourteen years of age. The judge denied petitioner's motion to dismiss which was urged on the grounds that A.R.S. § 13-1404 is unconstitutional. Based on the finding of a violation, the juvenile's probation was revoked.

On appeal, the court of appeals held that A.R.S. § 13-1404 is not unconstitutionally vague as applied to juveniles engaging in consensual "petting." Juvenile Action No. 74802-2, 162 Ariz. at 98, 781 P.2d at 75. Rejecting an argument of overbreadth, the court of appeals found that sexual contact with a minor, as described and prohibited by § 13-1404, is conduct that the state can constitutionally proscribe. Id. The court of appeals also held that the specific language of § 13-1404 indicated a legislative intent that the section apply to consenting minors engaging in sexual contact. Id. Consequently, the court of appeals found no error in the juvenile court's finding of sexual abuse under A.R.S. § 13-1404. Id. We granted review to consider the issues advanced by the juvenile and now affirm.

DISCUSSION
1. Vagueness

The statute at issue, A.R.S. § 13-1404, provides:

A. A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person 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. 1

B. Sexual abuse is a class 5 felony unless the victim is under fifteen years of age in which case sexual abuse is a class 3 felony punishable pursuant to § 13-604.01.

"Sexual contact" referred to in subsection A of the statute is in turn defined in A.R.S. § 13-1401 subd. 2 which provides:

"sexual contact" means any direct or indirect fondling or manipulating of any part of the genitals, anus, or female breast.

Petitioner concedes that the statute is clear as applied to an adult engaging in sexual contact with a minor. However, he contends that the same statute is unconstitutionally vague as applied to consensual petting between two minors. Citing newspaper articles stating that a substantial number of teenagers are sexually active, he argues that applying § 13-1404 to a sixteen-year-old boy gives the state unfettered discretion to arrest and convict juveniles. He argues that the statute casts a wide net to ensnare the innocent as well as the guilty and, therefore, the statute is unconstitutionally vague. We disagree and think petitioner misapplies the vagueness analysis.

The legislature has wide discretion in delineating innocent from culpable conduct. State ex rel. Hamilton v. Superior Court of Maricopa County, 128 Ariz. 184, 185, 624 P.2d 862, 863 (1981); State v. Scofield, 7 Ariz.App. 307, 310, 438 P.2d 776, 779 (1968). Petitioner asserts that teenage "petting" is, by some objective standard, innocent conduct, and, therefore, a statute criminalizing such conduct is necessarily vague. This circular reasoning is legally unsound for purposes of analyzing a vagueness argument.

The earmark of an unconstitutionally vague statute is that it defines the proscribed conduct in terms so indefinite that people of common intelligence must necessarily guess at its meaning. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954); State v. Varela, 120 Ariz. 596, 599, 587 P.2d 1173, 1176 (1978). Vague statutes lack ascertainable standards of guilt; therefore, ordinary people cannot conform their conduct to their legal obligations. Papachristou v. City of Jacksonville, 405 U.S. 156, 165, 92 S.Ct. 839, 845, 31 L.Ed.2d 110, 117-18 (1972); Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). The United States Supreme Court summarized the vagueness analysis in the following statement:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is forced to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972); see also State v. Locks, 97 Ariz. 148, 150-51, 397 P.2d 949, 951 (1964).

The challenged statute, A.R.S. § 13-1404, provides clearly ascertainable standards of guilt, whether one is considering adult or juvenile conduct. The statute is phrased with specificity so that reasonable persons will know exactly what is demanded of them. Whatever arguments might be available under the statute for other factual situations, one thing is clear: if the sexual contact involves the breast of a girl under fifteen years of age, then the consent of the girl is immaterial. State v. Superior Court of State of Ariz. In And For Santa Cruz County, 154 Ariz. 624 628, 744 P.2d 725, 729 (App.1987). Furthermore, the legislature has carefully exempted from the statute physical contact that has a legitimate medical basis (A.R.S. § 13-1407(A) and (C)) or that is unmotivated by sexual interest (A.R.S. § 13-1407(E)). Additionally, although the legislature provided a defense if the person charged did not know and could not reasonably have known the age of the victim, A.R.S. § 13-1407(B), it did not provide a defense based on the age of the defendant. Thus, the statute quite clearly differentiates between conduct that is proscribed and conduct that is not proscribed. Therefore, no possibility exists that conduct falling outside the purview of the statute will be affected. "Sexual contact," a significant component of A.R.S. § 13-1404, has already been held not to be void for vagueness in the context of the public indecency statute. Hamilton, 128 Ariz. at 187, 624 P.2d at 865. Petitioner provides us with no new arguments prompting us to reconsider our earlier holding. 2

Petitioner, however, cites Papachristou in support of his argument that § 13-1404 is vague because it encourages arbitrary and erratic arrests and convictions. Petitioner contends that because sexual conduct by minors is so prevalent, the state will capriciously pick and choose whom to prosecute. The state conceded in oral argument that it does not attempt to apply § 13-1404 to all juveniles who violate it, nor does it intend to.

Nevertheless, whatever potential for arbitrary enforcement exists does not originate from any vagueness in the statute itself. Rather, such potential originates from the prevalence of the conduct sought to be proscribed and the frequency with which such conduct is ignored. Nothing in the language of the statute itself promotes arbitrariness, which is the test for unconstitutional vagueness. The fact that certain conduct is common is not proper grounds for holding a statute unconstitutionally vague. For example, the fact that a...

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