State v. Agueda

• Decision Date: 11 February 2021
• Docket Number: No. 1 CA-CR 20-0020,1 CA-CR 20-0020
• Citation: 481 P.3d 1179
• Parties: STATE of Arizona, Appellee, v. Bayron Perez AGUEDA, Appellant.
• Court: Arizona Court of Appeals

481 P.3d 1179

STATE of Arizona, Appellee,

v.Bayron Perez AGUEDA, Appellant.

No. 1 CA-CR 20-0020

Court of Appeals of Arizona, Division 1.

FILED February 11, 2021

Arizona Attorney General's Office, Phoenix By Joshua C. Smith Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Scott L. Boncoskey Counsel for Appellant

Presiding Judge Paul J. McMurdie delivered the Court's opinion, in which Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.

McMURDIE, Judge:

¶1 Bayron Perez Agueda asks this court to reverse one of his convictions for sexual conduct with a minor under age 15, claiming that the superior court abused its discretion by denying his request for a lesser-included offense instruction. We hold that contributing to the delinquency of a minor is a lesser-included offense of sexual conduct with a minor under age 15. Because there was sufficient evidence to support the lesser-included offense instruction, the superior court erred by failing to give it. Therefore, we reverse Perez Agueda's conviction on Count 5 and remand to the superior court for further proceedings consistent with this opinion. We affirm the remaining convictions and sentences.

FACTS¹ AND PROCEDURAL BACKGROUND

¶2 In 2014, when Perez Agueda was 27 years old, he met the victim, Maya,² who was 13 or 14 years old at the time. Perez Agueda and Maya engaged in at least one instance of sexual intercourse while she was 14, and she gave birth in July 2015. Perez Agueda was listed as the father on the baby's birth certificate, and DNA testing confirmed his paternity. When Maya was 15, she moved into an apartment with Perez Agueda. Maya and Perez Agueda lived together for another year until Maya moved out in June 2017. Perez Agueda and Maya continued having sexual intercourse during their cohabitation.

¶3 After Maya moved out, Perez Agueda and Maya's mother argued over custody of the baby. After speaking with Maya's mother, police officers initiated a sex-crimes investigation. During the investigation, a detective conducted a forensic interview with Maya's younger sister, Julia. Julia told the detective that Perez Agueda had sexual intercourse with her as well.

¶4 A detective interviewed Perez Agueda. During the interview, Perez Agueda admitted to having sex with Maya. He claimed she became pregnant at age 14 because of a single act of intercourse and that he did not have sex with her again until she was 15. He denied ever touching Julia and claimed the actions she alleged never happened.

¶5 The State charged Perez Agueda with four crimes committed against Julia: two counts of sexual abuse, one count of molestation of a child, and one count of sexual conduct with a minor. For his conduct with Maya, the State charged Perez Agueda with four counts of sexual conduct with a minor. One of those charges, Count 5, charged him with committing the offense between January 30, 2014, and January 29, 2015, while she was under the age of 15 and specified "(TO WIT: first time when victim was fourteen)." Count 6 referenced the same date range in Count 5 but specified "(TO WIT: time which resulted in victim getting pregnant)." Count 7 charged him with committing the offense between January 30, 2015, and January 29, 2016 "(TO WIT: first time when victim was fifteen)." And Count 8 charged him with committing the offense between January 30, 2016, and January 29, 2017 "(TO WIT: first time when victim was sixteen)."

¶6 At the trial, Maya testified that when she was 14, she and Perez Agueda began going out and holding hands and kissing. She also testified that she and Perez Agueda started having sex when she was 14 and had sex more than once before discovering she was pregnant.

¶7 Julia testified that, around her 11th birthday, she visited Maya and Perez Agueda at their apartment. She said that when Maya left the house to pick up her birthday cake, Perez Agueda took her to his bedroom, where they had sexual intercourse. She also testified that she went to a movie with Perez Agueda and Maya and that while Maya was getting popcorn, Perez Agueda asked her to be his girlfriend and kissed her and touched her chest under her clothes.

¶8 Perez Agueda also testified. He claimed that Maya became pregnant after their first and only sexual intercourse while she was 14. He admitted she moved in with him after their baby's birth, and they had sex while living together. He denied he ever touched or had sex with Julia.

¶9 Before the closing arguments, Perez Agueda requested an instruction on contributing to the delinquency of a minor as a lesser-included offense to sexual conduct with a minor under 15. The court denied the requested instruction, explaining it rejected the instruction for Count 5 because Perez Agueda denied committing that offense. Regarding Count 6, Perez Agueda admitted during the trial he had sex with Maya when she was 14 resulting in the pregnancy; therefore, the court reasoned, he was not entitled to a lesser-included instruction on that count. See State v. Dugan , 125 Ariz. 194, 195–96, 608 P.2d 771, 772–73 (1980) ("The determination which must be made before the lesser included instruction is proper is whether on the evidence the jury could rationally find that the state failed to prove an element of the greater offense. Such element must be required to convict of the greater, but not to convict of the lesser offense. It must be an element which necessarily distinguishes the greater from the lesser.").

¶10 During its closing argument, the State emphasized that Counts 5 and 6 were based on separate acts. It noted Maya's testimony that she did not become pregnant because of the first instance of intercourse. The State explained:

So with [Maya], you have Count five, which is the first time when she was 14, and [Count 6] the time she became pregnant when she was 14. So two separate instances there identified as Counts five and six.

The jury instructions did not inform the jurors they had to determine if separate acts supported Count 5 from Count 6.

¶11 During deliberations, the jury asked if "Counts 5 and 6 happen[ed] at the same time" or if they were "considered separate events." The court discussed the question with counsel, and the State indicated that it would be appropriate to tell the jury the two counts were based on separate events. Instead, the court proposed referring the jury back to the separate-counts instruction and reiterating that the jury would have to determine the facts based on the evidence presented. Counsel for both parties agreed.³

¶12 Shortly after receiving the court's response, the jury asked what steps should be taken if not all jurors agreed on a count. The court responded that if the jury could not decide on a count, it should advise the bailiff, and the court would give it further instructions. The jury then informed the court that it could not agree on one count, and the court provided an impasse instruction. See Ariz. R. Crim. P. 22.4. After deliberating further, the jury acquitted Perez Agueda on the counts relating to his alleged conduct with Julia and convicted him on the four counts relating to Maya. The court sentenced Perez Agueda to mitigated 15 years’ imprisonment on Counts 5 and 6 to be served consecutively.

¶13 Perez Agueda appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶14 Perez Agueda argues the superior court abused its discretion by denying his request for a lesser-included offense instruction on contributing to the delinquency of a minor. We agree.

¶15 We review the superior court's denial of a requested jury instruction for an abuse of discretion. State v. Price , 218 Ariz. 311, 316, ¶ 21, 183 P.3d 1279, 1284 (App. 2008). "On request by any party and if supported by the evidence, the court must submit forms of verdicts to the jury for[ ] all offenses necessarily included in the offense charged[.]" Ariz. R. Crim. P. 21.4(a)(1). An offense is necessarily included for jury instruction purposes if it is a lesser-included offense under Blockburger ’s same-elements test and there is sufficient evidence to support giving the instruction. State v. Carter , 249 Ariz. 312, 316, ¶ 10, 469 P.3d 449, 453 (2020) ; see also Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). "An offense is lesser included when the greater offense cannot be committed without necessarily committing the lesser offense." Carter , 249 Ariz. at 316, ¶ 10, 469 P.3d at 454 (quotation omitted) (quoting State v. Wall , 212 Ariz. 1, 3, ¶ 14, 126 P.3d 148, 150 (2006) ).

¶16 Under the Blockburger test, molestation is a lesser-included offense of sexual conduct with a minor under 15. State v. Ortega , 220 Ariz. 320, 328, ¶ 25, 206 P.3d 769, 777 (App. 2008). Our supreme court has held that contributing to a minor's delinquency is a lesser-included offense of molestation. State v. Sutton , 104 Ariz. 317, 319, 452 P.2d 110, 112 (1969). It logically follows that contributing to the delinquency of a minor is a lesser-included offense of sexual conduct with a minor under 15. See State v. Kinkade , 147 Ariz. 250, 253, 709 P.2d 884, 887 (1985) (Theft is a lesser-included offense of robbery and robbery is a lesser-included offense of armed robbery; therefore, theft is a lesser-included offense of armed robbery.).

¶17 The State argues that Sutton is no longer good law due to the supreme court's Carter decision.⁴ In Carter , the court explained that " Blockburger ’s same-elements test is the only permissible interpretation of the double jeopardy clause." 249 Ariz. at 316, ¶ 9, 469 P.3d at 454 (quotation omitted). The same-elements test asks "whether each provision requires proof of a fact which the other does not." Id. (quoting Blockburger , 284 U.S. at 304, 52 S.Ct. 180 ).

¶18 To prove a defendant has contributed to the delinquency of a minor, the State must prove that a defendant has acted to "debase or injure the morals, health or welfare of a child" with general...