State v. Hamilton

• Decision Date: 26 August 1993
• Docket Number: No. 1,CA-CR,1
• Citation: State v. Hamilton, 868 P.2d 986, 177 Ariz. 403 (Ariz. App. 1993)
• Parties: STATE of Arizona, Appellee, v. James Russell HAMILTON, Appellant. 92-0176.
• Court: Arizona Court of Appeals

Page 986

868 P.2d 986

177 Ariz. 403

STATE of Arizona, Appellee, v.James Russell HAMILTON, Appellant.

No. 1 CA-CR 92-0176.

Court of Appeals of Arizona Division 1, Department B.

Aug. 26, 1993.

Review Denied Feb. 15, 1994.

[177 Ariz. 404] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Linda L. Knowles, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Helene F. Abrams, Deputy Public Defender, Phoenix, for appellant.

OPINION

JACOBSON, Judge.

AppellantJames Russell Hamilton(defendant) raises the following issues on appeal:

(1) as to counts I, II, and IV, for child molestation,

(a) whether those convictions should be vacated because the conduct constituting the offenses charged is no longer a crime, and

(b) whether the sentences imposed constitute cruel and unusual punishment;

(2) whether testimony by the state's expert was properly admitted; and

(3) whether the trial court erred in denying his motion to dismiss counts II through VI of the indictment.

FACTS AND PROCEDURAL BACKGROUND

On appeal from a guilty verdict, we view the facts in the light most favorable to sustaining that verdict.State v. Zmich, 160 Ariz. 108, 109, 770 P.2d 776, 777(1989).

Approximately one week after they met, defendant moved in with his girlfriend, V., and her three children.At that time, V.'s daughters, J. and C., were 12 and 9 years old respectively, and V.'s son was 5. V. worked full time.Defendant did not work steadily and began taking control of the house and children.Soon thereafter, defendant began demanding sexual favors from V.'s daughters in exchange for his permission to do something the girls wanted to do.

Over the years, defendant threatened the girls to keep them silent about the molestations.On one occasion, defendant threatened to slit J.'s throat if she told her natural father what had been going on.On another occasion, defendant hit J. in the face, giving her a black eye, after J. told him she was going to tell that he had been molesting them.C. finally reported the abuse to a church counselor, who notified Child Protective Services.

Defendant was indicted on June 3, 1991 on three counts of child molestation, class 2 felonies and dangerous crimes against children in the first degree (counts I, II, and IV), and three counts of sexual conduct with a minor, also class 2 felonies and dangerous crimes against children in the first degree (counts III, V, and VI).Defendant subsequently moved to dismiss counts II-VI, arguing that those counts were duplicitous and vague; the trial court denied the motion.

Defendant's trial commenced on December 11 and concluded on December 18, 1991.The jury found defendant guilty as charged on counts I, II, IV, V, and VI, and not guilty on count III.

On January 24, 1992, after weighing the aggravating and mitigating factors, seeA.R.S. § 13-702(C), the trial court sentenced defendant to aggravated terms of 20 years on counts I, II, and IV, and 25 years on count V and VI.Defendant was given 286 days of presentence incarceration credit on count I.The court ordered the sentences imposed to run consecutively, and further ordered defendant to pay $500 in felony assessments and an $8 time payment fee.¹Defendant timely appealed.

DISCUSSION

Counts I, II, and IV

Although put forth by defendant as one argument, defendant actually raises two arguments with regard to the child molestation counts.We address each in turn.

A.Judgment of Conviction

Counts I and II alleged that defendant had committed the crimes of child molestation against J. between October 1, 1986 and May 31, 1987; count IV alleged that defendant had committed the crime of child molestation against C. between June 15, 1990 and July 15, 1990.At the times the offenses were alleged to have occurred, both J. and C. were more than 14 but not yet 15 years old.These three counts were charged under A.R.S. § 13-1410 which, prior to September 1990, provided:

A person who knowingly molests a child under the age of fifteen years by directly or indirectly touching the private parts of such child or who causes a child under the age of fifteen years to directly or indirectly touch the private parts of such person is guilty of a class 2 felony and is punishable pursuant to § 13-604.01.

(Emphasis added.)In September 1990, the legislature amended § 13-1410 to read "under the age of fourteen years."Laws 1990, ch. 384, § 4(emphasis added).Defendant was indicted in June 1991, after the effective date of the amendment.

Defendant argues that his sentences on count I, II, and IV constitute cruel and unusual punishment because the conduct constituting the offenses charged in those counts--molestation of a child older than 14 years of age--was "no longer criminal" at the time of these proceedings.However, rather than attacking the sentences imposed on these counts, defendant more precisely attacks the judgments of conviction themselves, contending that he should not have been convicted at all based on conduct that was not legislatively proscribed at the time the indictment was issued.In this regard, defendant contends that the judgments of conviction on counts I, II, and IV must be vacated.

In Arizona, statutes do not apply retroactively unless they specifically so provide.A.R.S. § 1-244.In the context of criminal law, an offender must be punished under the law in force when the offense was committed and is not exempted from punishment by a subsequent amendment to the applicable statutory provision.A.R.S. §§ 1-246 and -247.See alsoA.R.S. § 1-105(effect of repeal by revised statutes on prior offenses and punishment).Another department of this court has recently held that these general savings statutes apply here because the 1990amendment to § 13-1410 changed the penalty for the molestation of a 14-year old, but did not decriminalize the conduct.State v. Serna, 175 Ariz. 332, 857 P.2d 384(App.1993).We agree that these general savings statutes apply in this case even though, in our opinion, the amendment"decriminalized" the conduct of molestation of a 14-year old child.

The 1990amendment to § 13-1410 changed more than the classification of the felony or the statutory range of sentences.That amendment changed an element of the crime of child molestation by decreasing the requisite age of the victim from under 15 to under 14 years.One who today directly or indirectly touches the private parts of a 14-year old, or who causes that child to directly or indirectly touch such person's private parts, quite simply has not committed the crime of child molestation under § 13-1410.That that conduct today may constitute some other crime, such as sexual abuse, ² does not alter the fact that it no longer meets the elements of the crime of child molestation.Thus, in our opinion, the legislative amendment to § 13-1410 did more than change the penalty for the conduct alleged here: it "decriminalized" that conduct insofar as § 13-1410 is concerned.

Nevertheless, despite our disagreement with the Serna court on this point, we see no reason why A.R.S. §§ 1-246 and -247 should not be applied in this case.A legislative amendment that is substantive in nature, as this one undoubtedly is, will not be applied retroactively absent a legislative direction to the contrary.Cf.State v. Winton, 153 Ariz. 302, 305, 736 P.2d 386, 389(App.1987).Absent that legislative direction, even an outright "decriminalization" of conduct will not open the prison doors to those defendants convicted for conduct that was legislated "criminal" when it occurred.SeeMidkiff v. State, 43 Ariz. 323, 326, 30 P.2d 1057, 1058(1934)(defendant could be punished for pretending to be an attorney under the law in effect at the time of the alleged offense, even though that law was repealed before sentence was imposed).Such a legislative direction of retroactivity is conspicuously absent with regard to the 1990amendment to § 13-1410.

Defendant makes much of the fact that the amendment here became effective before he was even indicted.We acknowledge that this makes defendant's argument more facially persuasive than if it had become effective, for example, just prior to sentencing.However, that defendant was indicted after the amendment lowered the operative age from 15 to 14 years does not change the fact that, at the time defendant committed the acts alleged in counts I, II, and IV, it was a class 2 felony to commit those acts against a child under the age of 15.We find no error on this basis.

B.Sentence of Imprisonment: Bartlett Analysis

Defendant next attacks the length of his sentences as constituting cruel and unusual punishment based primarily on an analysis set forth in State v. Bartlett, 171 Ariz. 302, 830 P.2d 823, cert. denied, 506 U.S. 992, 113 S.Ct. 511, 121 L.Ed.2d 445(1992)(Bartlett II ).SeeU.S. Const. amend. VIII;Ariz. Const. art. 2, § 15.In State v. Bartlett, 164 Ariz. 229, 792 P.2d 692(1990)(Bartlett I ), the Arizona Supreme Court held that Bartlett's sentences totalling 40 years for two counts of sexual conduct with a minor constituted cruel and unusual punishment.In so doing, the court applied the three-prong test of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637(1983), specifically analyzing (1) the gravity of the offense and the harshness of the penalty, (2) a comparison of other sentences imposed in the same jurisdiction for more serious crimes, and (3) a comparison of sentences in other jurisdictions for the same crime.Bartlett I, 164 Ariz. at 233-34, 792 P.2d at 696-97;Solem, 463 U.S. at 292, 103 S.Ct. at 3010.

Bartlett I was vacated and remanded by the United States Supreme Court with directions to reconsider in light of that Court's holding in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836(1991).Arizona v. Bartlett, 501 U.S. 1246, 111 S.Ct. 2880, 115 L.Ed.2d 1046(1991).Upon remand,...