State v. Florez

• Citation: 241 Ariz. 121,750 Ariz. Adv. Rep. 4,384 P.3d 335
• Decision Date: 25 October 2016
• Docket Number: No. 2 CA–CR 2015–0480,2 CA–CR 2015–0480
• Parties: The State of Arizona, Appellee, v. Manuel Fernando Florez, Appellant.
• Court: Court of Appeals of Arizona

241 Ariz. 121

384 P.3d 335

750 Ariz. Adv. Rep. 4

The State of Arizona, Appellee,

v.Manuel Fernando Florez, Appellant.

No. 2 CA–CR 2015–0480

Court of Appeals of Arizona, Division 2.

Filed October 25, 2016

Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender, By David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant

Judge Miller authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Kelly¹ concurred.

OPINION

MILLER, Judge:

¶ 1 Manuel Florez appeals his convictions, following a jury trial, for three counts of molestation of a child and two counts of sexual conduct with a minor under age fifteen, for which he received concurrent and consecutive sentences totaling thirty-six years' imprisonment. He argues that the evidence was insufficient to support his convictions for sexual conduct with a minor and that his sentences amount to unconstitutional cruel and unusual punishment. We affirm for the reasons stated below.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to sustaining the verdicts. See State v. Crane , 166 Ariz. 3, 5, 799 P.2d 1380, 1382 (App. 1990)

. M., the victim and Florez's stepsister, testified in 2015 when she was thirteen about sexual episodes with Florez that had begun five years earlier. The first time, Florez touched her genitals² under her clothes with his hand. During that incident, Florez threatened to hurt M.'s family if she did not acquiesce. She later testified this was the reason she “kept doing” what he wanted. In a later incident, when M. was nine, Florez lay behind M. on a couch, positioned his clothed penis against her clothed buttocks, and put his hands on her waist and moved her body back and forth along his, parallel to the length of the couch.

¶ 3 In April 2014, when M. was eleven years old, Florez went to M.'s bed, touched her genitals over her clothes, and moved his clothed penis up and down against her legs or buttocks. At some point, he grabbed her hair and “kneel [ed] [her] back real hard.” A few days later, Florez put his hand under M.'s pajamas and underwear, placed it on her genitals, and began “moving [his hand] up and down.” When M. rolled onto her stomach, he got on top of her. In that position, he moved his clothed erect penis “up and down” against M.'s clothed buttocks.

¶ 4 M.'s grandmother walked in and saw what she later described as Florez “humping” M. as though “having sex through behind.” M.'s grandmother told Florez to “get the hell out of [her] house.” “[I]t's not what it looks like,” said Florez. He “apologized a whole bunch of times” and pleaded with M.'s grandmother not to call the police.

¶ 5 A grand jury indicted Florez, charging him with one count of molestation of a child for the time he touched M.'s genitals when she was eight years old, one count of molestation of a child arising out of the incident on the couch, two counts of molestation of a child for touching M.'s genitals during the two April 2014 incidents, two counts of sexual conduct with a minor under age fifteen for masturbatory contact with his penis during the two April 2014 incidents, and one count of continuous sexual abuse of a child. On the first day of trial, the trial court dismissed the continuous sexual abuse count at the state's request. The jury was unable to reach a verdict on the count of child molestation that allegedly occurred when M. was eight years old, and the court dismissed that count upon the state's request. Florez was convicted of the other five offenses and sentenced to three concurrent ten-year terms of imprisonment for the molestation counts, to run consecutively to two consecutive thirteen-year terms of imprisonment for sexual conduct with a minor. After sentencing, the trial court sua sponte issued an order pursuant to A.R.S. § 13–603(L)

, allowing Florez to petition the Board of Clemency for a commutation of his sentence. It described the sentence as “clearly excessive,” particularly in view of the state's plea offer that limited the term to 3.75 years. We have jurisdiction over Florez's appeal pursuant to A.R.S. §§ 13–4031 and 13–4033(A)(1).

Sufficiency of the Evidence

¶ 6 Florez argues that, as a matter of law, “humping” through clothing cannot satisfy the statutory definition of “sexual intercourse,” which is a necessary element of sexual conduct with a minor; therefore, the trial court erred by denying his motion for a directed verdict pursuant to Rule 20(a), Ariz. R. Crim. P

., as to those two counts.³ He asks us to reduce his convictions for sexual conduct with a minor to the lesser-included offense of molestation of a child and remand for resentencing.⁴ The state maintains the evidence was sufficient to sustain the convictions.

¶ 7 We review a trial court's ruling on a Rule 20

motion de novo, asking “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. West , 226 Ariz. 559, ¶¶ 15–16, 250 P.3d 1188, 1191 (2011), quoting

State v. Mathers , 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). “Substantial evidence” under Rule 20 is “such proof that ‘reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.’ ” Mathers , 165 Ariz. at 67, 796 P.2d at 869, quoting

State v. Jones , 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980) ; see also

West , 226 Ariz. 559, ¶ 16, 250 P.3d at 1191 (substantial evidence inquiry encompasses both direct and circumstantial evidence). When reasonable minds can draw different inferences from the evidence adduced, the trial court is without discretion to grant a Rule 20 motion and must submit the case to the jury. West , 226 Ariz. 559, ¶ 18, 250 P.3d at 1192.

¶ 8 A person commits sexual conduct with a minor under age fifteen by “intentionally or knowingly engaging in sexual intercourse ... with any person” under age fifteen. A.R.S. § 13–1405(A)–(B)

. “Sexual intercourse” is statutorily defined as “penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.” A.R.S. § 13–1401(A)(4).⁵ The definition makes no distinction between the victim's penis, vulva, or anus and the perpetrator's. See id.

¶ 9 A person commits the lesser-included offense of molestation of a child by “intentionally or knowingly engaging in or causing a person to engage in sexual contact” with a child under age fifteen. A.R.S. § 13–1410(A)

; see also

State v. Ortega , 220 Ariz. 320, ¶¶ 24–25, 206 P.3d 769, 777 (App. 2008) (molestation of child is lesser-included offense of sexual conduct with minor under age fifteen); In re Jerry C. , 214 Ariz. 270, ¶ 13, 151 P.3d 553, 557 (App. 2007) (same). “Sexual contact” is defined by statute in relevant part as “any direct or indirect touching, fondling or manipulating of any part of the genitals[ ] [or] anus ... by any part of the body or by any object or causing a person to engage in such contact.” § 13–1401(A)(3). Again, the definition does not distinguish between the victim's genitals or anus and the perpetrator's. See id. ; State v. Mendoza , 234 Ariz. 259, ¶ 6, 321 P.3d 424, 425–26 (App. 2014).

¶ 10 The state relies on State v. Crane , 166 Ariz. 3, 799 P.2d 1380 (App. 1990)

, to argue that non-oral, non-penetrative masturbatory contact with the body of another meets the statutory definition of “sexual intercourse.” In Crane, the state charged the defendant with two counts of sexual conduct with a minor. Id. at 5, 799 P.2d at 1382. The evidence showed that on separate occasions the defendant had skin to skin contact with the minor female victim, placing his penis close to her genitalia. Id. at 8, 799 P.2d at 1385. We affirmed the trial court's denial of the defendant's motion for a directed verdict on both counts, concluding that “sexual intercourse” under the statute does not require penetration, but also encompasses “masturbative contact with the body of another.” Id. at 9, 799 P.2d at 1386 ; see § 13–1401(A)(4) (“sexual intercourse” defined as “penetration ... or masturbatory contact with the penis or vulva” (emphasis added)); see also

State v. Flores , 160 Ariz. 235, 240, 772 P.2d 589, 594 (App. 1989) (masturbatory contact must involve at least two persons to constitute “sexual intercourse”). We observed that there is “no difference between a case where a defendant has a child manually masturbate him and where defendant positions the child's body, and his own, in such a way that contact with her body accomplishes the same purpose.” Crane , 166 Ariz. at 9, 799 P.2d at 1386. We recognize, as Florez contends, that the conduct in Crane is arguably different from “humping” as described by the witnesses in this case, and we look to the statute for guidance.

¶ 11 When Crane

was decided, the statutory definition of “sexual intercourse” required “penetration into the penis, vulva or anus by any part of the body or by any object or manual masturbatory contact with the penis or vulva.” See 1993 Ariz. Sess. Laws, ch. 255, § 23 (emphasis added); see also

Crane , 166 Ariz. at 7, 799 P.2d at 1384.

¶ 12 The legislature removed “manual” from the definition not long after Crane

, see 1993 Ariz. Sess. Laws, ch. 255, § 23, thus establishing the definition's current text, see A.R.S. § 13–1401(A)(4). This amendment removed an arguably limiting term and reaffirmed the inclusion of “masturbatory contact” with the victim as an act of sexual intercourse. Because the 1993 amendment occurred after Crane, we must assume the legislature understood conduct like simulated intercourse to be masturbatory contact. See

State v. Pennington , 149 Ariz. 167, 168, 717 P.2d 471, 472 (App. 1985) (in enacting sexual touching statute, it is presumed legislature is aware of...