State v. Hixson

• Decision Date: 17 January 1972
• Docket Number: CA-CR,No. 1,1
• Citation: 492 P.2d 747,16 Ariz.App. 251
• Parties: STATE of Arizona, Appellee, v. John HIXSON, Appellant. 358.
• Court: Arizona Court of Appeals

Page 747

492 P.2d 747

16 Ariz.App. 251

STATE of Arizona, Appellee, v. John HIXSON, Appellant.

No. 1 CA-CR 358.

Court of Appeals of Arizona, Division 1.

Jan. 17, 1972.

Rehearing Denied Feb. 25, 1972.

Gary K. Nelson, Atty. Gen., by William P. Dixon, Asst. Atty. Gen., Phoenix, for appellee; William Koscska, Third Year Law Student, College of Law, University of Ariz., of counsel.

Otto H. Linsenmeyer and Frank E. Dickey, Jr., Phoenix, for appellant.

HATHAWAY, Judge.

The defendant was charged by direct information with the crime of contributing to the delinquency of a minor. The information alleged that on or about June 2, 1970, the defendant by wrongful and improper acts and conduct, wilfully and unlawfully encouraged and contributed to the delinquency of a named female child of 13 years, hereinafter referred to as C., all in violation of A.R.S. §§ 13--821, 13--822. It further alleged that the defendant's acts tended to debase and injure the morals, health and welfare of the said minor female.

The defendant filed a 'combined motion,' the essence of which was a request for discovery of certain matters in the hands of the prosecutor. The motion indicated that the requested materials were necessary for preparation of the defense. The minute entry of the hearing on this motion recites:

"Mr. Dickey has asked for a Bill of Particulars and, after discussion, the State has agreed that they will limit themselves to the contents of the file which includes departmental reports by the Maricopa County Sheriff's Office, and statements by the parties involved, to wit: John Hixson, Alex Ramirez or Alex Hernandez (the names of C, and two other female minors were also included), and this shall constitute the evidence upon which the State is presenting these charges.'

Mr. Dickey advises 'It is agreed by counsel for the Defendant that the State's file, as it presently exists, may be submitted in lieu of the Bill of Particulars and that defense counsel rely on the contents of the file as being the evidence to constitute the particulars to be offered at trial."

The defendant subsequently filed a motion to quash on the ground that the evidence, as indicated in the prosecutor's file, would be insufficient to establish a prima facie case of contributing to the delinquency of a minor, or to establish the offense beyond a reasonable doubt. The court, after being furnished with copies of the police report and witness' statements, denied the motion to quash. At the commencement of the trial, the defendant renewed his motion to quash and made a motion in limine to restrict the testimony of the state's witnesses to the acts alleged in the information as supplemented by the bill of particulars. The court denied the motion to quash and granted the motion in limine. The case was tried to a jury which returned a guilty verdict. This appeal followed.

The defendant attacks his conviction on various grounds. He contends that A.R.S. § 13--822, when the facts of this case are applied to it, becomes unconstitutionally vague and indefinite. He argues that the alleged misconduct consisted of kissing, touching and providing the minor female with a cigarette and the statute fails to give notice that kissing, touching and offering a cigarette constitute acts which tend to injure or debase the health, morals and welfare of a child. The constitutionality of A.R.S. § 13--822 has already been considered by the Arizona Supreme Court in Brockmueller v. State, 86 Ariz. 82, 340 P.2d 992 (1959) wherein the contention was made that the statute fails to prescribe the conduct which is prohibited. The court stated:

'The Arizona statutes prohibit only the causing or encouraging of acts which have the effect of injuring the morals, health or welfare of a child. Such statutes have a long history of common-law interpretation which renders sufficiently clear and meaningful language which might otherwise be vague and uncertain. * * * We hold that the Arizona statutes are sufficiently certain and definite to apprise men of ordinary intelligence of the conduct which the statute prohibits.' 86 Ariz. at 84, 340 P.2d at 994.

Concededly a myriad of acts might satisfy the statutory definition of 'delinquency:'

"Delinquency' means any act which tends to debase or injure the morals, health or welfare of a child.' A.R.S. § 13--821, subsec. C.

Although we agree that kissing per se may not tend to debase or injure the morals of a child, it is not necessary that the statutory definition of 'delinquency' delineate the various and numerous acts which might tend to have bad effects. We have held that when the information and the bill of particulars fail to state the offense of contributing to the delinquency of a minor, a motion to quash must be granted. State v. Cutshaw, 7 Ariz.App. 210, 437 P.2d 962 (1968). The Cutshaw holding is not apposite here since the acts alleged are such that fair-minded people could find that they would tend to persuade the 13 year old girl to commit an immoral act. In other words, whether or not, under the particular circumstances, the act falls within the statutory prohibition is a question for the trier of fact. Bonnie v. Gladden, 240 Or. 462, 402 P.2d 237 (1965).

The defendant also contends that the trial court erred in refusing to direct a verdict for the reason that, as a matter of law, his conduct did not have the effect of injuring the morals, health or welfare of This child.

Briefly, the record reflects the following. The defendant, a 29 year old police officer, took his children, C. and her two minor sisters, and Alex Ramirez to a drive-in movie. The defendant at that time was separated from his wife. At the drive-in movie, he sat in the front seat with C. while Alex and the sisters occupied the back seat. The defendant's two small children alternated between the front seat and the back seat. At the conclusion of the movie, the defendant took one sister and his children to his wife's home and proceeded to Estrella Mountain Park where they parked the car. Both couples, Alex and C.'s sister in the back seat and the defendant and C. in the front seat, proceeded to...