State v. Fischer

• Decision Date: 05 August 2008
• Docket Number: No. 1 CA-CR 06-0682.,1 CA-CR 06-0682.
• Citation: 199 P.3d 663,219 Ariz. 408
• Parties: STATE of Arizona, Appellee, v. Kelly FISCHER, Appellant.
• Court: Arizona Court of Appeals

199 P.3d 663

219 Ariz. 408

STATE of Arizona, Appellee, v. Kelly FISCHER, Appellant.

No. 1 CA-CR 06-0682.

Court of Appeals of Arizona, Division 1, Department E.

August 5, 2008.

As Amended August 6, 2008.

Review Denied December 4, 2008.

Terry Goddard, Attorney General by Kent Cattani, Chief Counsel, and Randall M. Howe, Former Chief Counsel, Criminal Appeals Section, Phoenix, Attorneys for Appellee.

David Goldberg, Flagstaff, Attorney for Appellant.

OPINION

KESSLER, Presiding Judge.

¶ 1 Kelly Fischer (Defendant) appeals from his convictions and resulting sentences for sexual conduct with a minor and conspiracy to commit sexual conduct with a minor, each a class 6 undesignated offense. For reasons that follow, we affirm.

ISSUES PRESENTED

¶ 2 Defendant raises five issues:

1. Whether his convictions violate the right to free exercise of religion under the First and Fourteenth Amendments to the United States Constitution.

2. Whether his convictions violate the right to substantive due process under the Fourteenth Amendment.

3. Whether the trial court erred in ruling that the statutory "spouse" defense was not available.

4. Whether the trial court erred by admitting hearsay testimony.

5. Whether there was sufficient evidence to support the convictions.

FACTUAL AND PROCEDURAL HISTORY¹

¶ 3 Defendant is a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS Church) and lived with his wife Alison in Colorado City from 1997 to 2005. Although polygamy or "plural marriage" is prohibited in Arizona, the practice remains a tenet of the FLDS Church. In 1997 or 1998, Defendant took Lujean as a plural wife, and she moved in with Defendant and his legal wife. J.S., Lujean's thirteen- or fourteen-year old daughter from a prior marriage, also moved into the home with her mother. Defendant later accepted J.S. as another of his plural wives. On August 31, 2001, at the age of seventeen, J.S. gave birth to a baby girl. The birth certificate for the child listed Defendant as the father.

¶ 4 On May 26, 2005, the Mohave County grand jury indicted Defendant on one count of sexual conduct with a minor for having sexual intercourse with J.S. between October 1, 2000, and March 1, 2001; and one count of conspiracy to commit sexual conduct with a minor between July 12, 1999, and March 1, 2001, for conspiring with another to engage in sexual conduct with J.S. while she was under eighteen years of age. Prior to trial, Defendant moved to dismiss the prosecution on grounds that it violated his rights to free exercise of religion and personal liberty and because the statutory "spouse" defense was unconstitutionally vague. See Arizona Revised Statutes ("A.R.S.") § 13-1407(D) (Supp.2007).² Defendant also filed several motions including a motion in limine seeking to include evidence of FLDS history, culture and practices. At the argument on the motion the State maintained that such evidence was irrelevant to the charges that Defendant faced, and Defendant argued that he was "simply seeking ... to introduce [such evidence] ... so that the jury will have an appreciation for why certain fact patterns have arisen...." The superior court denied all of Defendant's motions but granted his motion in limine to introduce evidence of FLDS practice.³

¶ 5 Defendant then sought to preclude evidence of polygamy by another motion in limine arguing that no elements of the charges required proof of Defendant's religion and the admission of such evidence would be highly prejudicial. After oral argument, the court denied Defendant's motion in limine and reserved the right to restrict any evidence regarding polygamy. The superior court opined that the only evidence that would be necessary as far as Defendant's religion and polygamist practices would relate to "the conspiracy and the likelihood that the Defendant would engage in sex in [Defendant's] home in the community with a young underaged girl because this was acceptable under their religious beliefs ... those are two things that I can think of specifically that I would allow the State to pursue."

¶ 6 The jury convicted Defendant on both counts as charged. The superior court suspended sentence on both counts and placed Defendant on probation for a total of three years with the condition that he serve a forty-five day jail term.

¶ 7 Defendant filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, -4033(A)(1) (2001).

DISCUSSION

1. Free Exercise of Religion Claim

¶ 8 Defendant argues that his prosecution for sexual conduct with J.S. violates his right to religious freedom under the First and Fourteenth Amendments. In particular, he challenges the provision in the Arizona Constitution prohibiting polygamy or plural marriage.⁴ Defendant contends that this provision interferes with the exercise of his religious belief in plural marriage. Specifically, he argues if he had been able to enter into a legal plural marriage with J.S., the charged conduct would be immunized pursuant to A.R.S. § 13-1407(D), which provides "[i]t is a defense to a prosecution pursuant to § 13-1404 or 13-1405 that the person was the spouse of the other person at the time of commission of the act." Thus, Defendant argues that it was an error for the superior court to deny his use of the affirmative defense — that J.S. was his "spouse" — resulting from their "celestial marriage." We review issues of constitutional law de novo. State v. McGill, 213 Ariz. 147, 159, ¶ 53, 140 P.3d 930, 942 (2006). For the reasons stated below, we disagree with Defendant.

¶ 9 Before discussing Defendant's constitutional challenge to the polygamy provision in the Arizona Constitution, we note that Defendant did not unequivocally assert that but for the antipolygamy law he would have lawfully married J.S. Rather, Defendant merely argued below that a "celestial marriage" should be recognized under the statutory definition of "spouse." See A.R.S. §§ 13-1407(D), -1401(4) (2001) (legally married and cohabitating), 25-111(B)(1) (2007) (marriage not valid without license); -102(C) (2007) (no marriage shall take place if prohibited by law). Accordingly, the constitutional challenge may not have been preserved because Defendant did not show he would have had a statutory defense but for the prohibition of polygamy.

¶ 10 The Free Exercise Clause of the First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. This provision has been made applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The free exercise of religion encompasses two concepts — "the right to believe and profess whatever religious doctrine one desires" and the right to "the performance of (or abstention from) physical acts .... for religious reasons ...." Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (Smith II). "The first is absolute but, in the nature of things, the second cannot be." Cantwell, 310 U.S. at 303, 60 S.Ct. 900. Thus, the government is prohibited from any regulation of religious beliefs as such, and the government may not penalize or discriminate against individuals or groups because of their religious views. Smith II, 494 U.S. at 877-78, 110 S.Ct. 1595; Sherbert v. Verner, 374 U.S. 398, 402, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In contrast, the right to engage in actions or conduct prompted by religious beliefs or principles "`is not totally free from legislative restrictions.'" Sherbert, 374 U.S. at 403, 83 S.Ct. 1790 (quoting Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961)). "Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection." Cantwell, 310 U.S. at 304, 60 S.Ct. 900.

¶ 11 The United States Supreme Court has declined to extend the protection of the Free Exercise Clause of the First Amendment to the practice of polygamy. In Reynolds v. United States, 98 U.S. 145, 98 U.S. 145, 25 L.Ed. 244 (1878), the Court upheld the federal bigamy conviction of a member of the Church of Jesus Christ of Latter-Day Saints for practicing polygamy in accord with religious beliefs. The Court traced the genesis of the First Amendment and the historical treatment of polygamy and held that the practice of polygamy was not protected by the First Amendment. Reynolds, 98 U.S. at 162-66. In reaching this result, the Court distinguished between belief and conduct and concluded that "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." Id. at 164. The Court explained:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.

.... Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Id. at 166-67.

¶ 12 While conceding that Reynolds has never been explicitly overruled, Defendant argues it should not be binding because it cannot withstand modern constitutional analysis. It is true that Reynolds was decided more than a century ago, nevertheless, despite subsequent decisions modifying the strict belief/conduct distinction adopted in Reynolds, "the underlying reasoning of Reynolds remains valid." Barlow v. Blackburn, 165 Ariz. 351, 356, 798 P.2d 1360, 1365 (App.1990). The Supreme Court has not moved away from its holding on the issue of polygamy, and the Court has continued...