State v. Jackson, 2

• Citation: 124 Ariz. 206,603 P.2d 98
• Decision Date: 10 October 1978
• Docket Number: CA-CR,No. 2,2
• Parties: The STATE of Arizona, Appellee, v. Reynolds Heath JACKSON, Appellant. 1333.
• Court: Arizona Court of Appeals

Page 98

603 P.2d 98

124 Ariz. 206

The STATE of Arizona, Appellee, v. Reynolds Heath JACKSON, Appellant.

No. 2 CA-CR 1333.

Court of Appeals of Arizona, Division 2.

Oct. 10, 1978.

Rehearing Denied Nov. 29, 1978.

Review Granted Dec. 19, 1978.

John A. LaSota, Jr., Atty. Gen., by William J. Schafer, III, and Gregory A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.

[124 Ariz. 207] John M. Neis, Pima County Public Defender, by Michael P. Roca, Asst. Public Defender, Tucson, for appellant.

OPINION

RICHMOND, Chief Judge.

Reynolds Heath Jackson appeals from his convictions of rape, child molesting, burglary, and lewd and lascivious acts, arising out of three separate incidents, and the sentences imposed. He challenges the sufficiency of the evidence on the rape and burglary charges, the refusal of a jury instruction on child molesting, and the admission of evidence of unrelated acts leading to his apprehension more than two years after the crimes were committed. We find no error and affirm.

Appellant first contends there was no substantial evidence to support the rape conviction because the victim neither resisted nor was prevented from resisting by threat of immediate and great bodily harm, accompanied by apparent power of execution, as required by A.R.S. § 13-611 at the time of the alleged rape in February, 1974. The victim testified that she entered her apartment with an armload of groceries, leaving the door open, and was putting the groceries away when someone came up behind her and put his arm around her neck. She was told that if she was quiet and did as she was told she would not be hurt. She described her assailant as "stocky, . . . big, kind of big man, taller than myself," and testified that she did not struggle or scream "because I was so frightened." Her testimony was sufficient to sustain the jury's conclusion under proper instructions on the absence of consent or consent induced by force or fear. State v. Kidwell, 106 Ariz. 257, 475 P.2d 241 (1970).

Appellant attacks his burglary convictions because he was charged with burglary of a dwelling house in each instance but the only evidence was of apartment burglaries. In instructing the jury on the elements of burglary, the court referred to neither a dwelling house nor an apartment, but to entry into a building. Appellant did not move for a judgment of acquittal on the burglary charges or object to the instruction, and has waived any possible error arising from the designation in the indictment, which clearly was not of fundamental nature. State v. Coward, 108 Ariz. 270, 496 P.2d 131 (1972).

On the charge of child molesting, the court instructed the jury as to the elements of the crime set forth in A.R.S. § 13-653 as follows:

"I will next define for you and set out the elements of molestation of a child. A person who molests a child under the age of fifteen years by fondling, playing with, or touching the private parts of such child, or who causes a child under the age of fifteen years to fondle, play with, or touch the private parts of such person, is guilty of the crime of molestation of a child."

The court refused an instruction offered by appellant which contained as an additional element:

"(w)here said fondling, playing or touching is caused by unnatural or abnormal sexual interest or intentions with respect to children."

Appellant, in objecting to the refusal of the instruction and on appeal, relies on the supreme court's interpretation of the child molesting statute in State v. Trenary, 79 Ariz. 351, 290 P.2d 250 (1955); State v. Berry, 101 Ariz. 310, 419 P.2d 337 (1966), and State v. Stinson, 105 Ariz. 174, 461 P.2d 472 (1969). In both Berry and Stinson, attacks on the statute for vagueness were rejected with a reference to the following language from Trenary, quoting in turn from People v. Pallares, 112 Cal.App.2d Supp. 895, 246 P.2d 173 (1952):

" 'When the words annoy or molest are used in reference to offenses against children, there is a connotation of abnormal sexual motivation on the part of the offender. Although no specific intent is prescribed as an element of this particular offense, a reading of the section as a whole in...