State v. Kessler

Decision Date14 November 2000
Docket NumberNo. 1 CA-CR 99-0988.,1 CA-CR 99-0988.
Citation13 P.3d 1200,199 Ariz. 83
PartiesSTATE of Arizona, Appellee, v. Scott Aaron KESSLER, Appellant.
CourtArizona Court of Appeals

Janet A. Napolitano, Attorney General By Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Robert A. Walsh, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Richard D. Engler, Yuma, Attorney for Appellant.

OPINION

EHRLICH, Judge.

¶ 1 Scott Aaron Kessler appeals from the trial court's order revoking his probation due to his violation of one of its terms. He specifically challenges the constitutionality of the condition that he have "no contact with any child" as is imposed upon participants in Yuma County's Sex Offender Supervision Program. Finding no merit in his contentions, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Kessler was indicted in September 1997 for sexual abuse arising from an incident in which he rubbed the breasts of a thirteen-year-old girl. A few months later, he pled guilty to aggravated assault, a class 6 felony. The trial court suspended the imposition of sentence and placed Kessler on supervised probation for a period of 36 months.

¶ 3 A special condition of Kessler's probation was that he "[a]bide by all written sex offender regulations of probation imposed by [his] probation officer," including Regulation Number 1 of Yuma County's "Special Regulations of Probation for Sex Offenders." Regulation Number 1 in part provides that a probationer "[n]ot initiate, establish, or maintain contact whatsoever with any child (under the age of 18) nor attempt to do so ... except under circumstances approved in advance and in writing by the probation officer."

¶ 4 A document entitled "Definition of Terms Regarding Contact With Minors" ("Definitions") supplements Regulation Number 1 by providing a more detailed explanation of the types of conduct prohibited by the regulation.1 According to the Definitions, Regulation Number 1 proscribes any form of direct, indirect or proximate contact, whether in a public or non-public area, regardless whether the minor is known to the probationer, unless the probationer is supervised or chaperoned. The Definitions further provide detailed explanations of the various types of "contact," the necessary qualifications of a "supervisor/chaperone" and examples of prohibited contact in public and non-public areas.

¶ 5 In early September 1999, Kessler requested permission from his probation officer, Cathy Dryer, to attend a Labor Day weekend church retreat in California. Kessler told Dryer that he would be riding to California with a father and son, ages 51 and 31, and that he would be camping with these two men during the retreat. Dryer contacted the associate pastor of Kessler's church to explain the circumstances of Kessler's probation and to determine whether, in light of that information, the pastor was comfortable with having Kessler attend the retreat. Dryer's conversation with the pastor left her with the impression that the pastor would be attending the retreat and that he would act as "somewhat of a chaperone" for Kessler.2 Accordingly, Dryer gave Kessler permission to attend the retreat "provided that he not be around children." She specifically instructed him that, if children were present at the retreat, he was not to play with them, sit with them or speak with them.

¶ 6 When Kessler returned from the retreat, he told Dryer that "everything went fine." The next day, however, Dryer received a telephone call from the pastor, who informed her that he had not attended the retreat and that he had learned that Kessler had driven to California with a married couple and their three minor children. The pastor also reported that, contrary to Kessler's claim that he would be camping with a man and his adult son, Kessler had in fact shared a tent with a man and his thirteen-year-old son. The pastor further advised Dryer that Kessler had been observed during the retreat pushing children on a swing set outside the presence of other adults.

¶ 7 When confronted by Dryer, Kessler admitted the truth of the pastor's allegations. He also told her that, while on the retreat, he had seen a group of approximately five children "wandering around the public restroom" without adult supervision, that he had decided to act as the children's "protector," supervising them for approximately fifteen minutes.

¶ 8 Kessler further admitted to Dryer that a young boy, who was not affiliated with the church group, had approached him and eventually asked him to meet his father. Agreeing, Kessler accompanied the boy to the boy's campsite, where the boy's father told Kessler to stay away from that father's children.

¶ 9 Relying on the information that she received from the pastor and from Kessler, Dryer filed a petition to revoke Kessler's probation for a violation of Regulation Number 1. She alleged that, during the Labor Day weekend retreat, Kessler had "initiated, established, and maintained contact with minors."3

¶ 10 At the hearing on the petition to revoke probation, Kessler did not attempt to refute the State's allegations regarding his contact with children during the retreat. Rather, he contested the petition on the basis that Regulation Number 1 and the Definitions were unenforceable because they unjustly prohibited his "innocent physical presence" among minors and thereby violated his constitutional rights, including his right to the free exercise of his religion. He argued in the alternative that any violation of the terms of his probation during the Labor Day weekend fell under a "good faith exception" because he had obtained his probation officer's permission to attend the retreat.

¶ 11 The trial court found that Kessler had violated the terms of his probation. It once again suspended the imposition of sentence, placed Kessler on Intensive Probation and extended his probationary period by 55 days. Kessler appealed.

DISCUSSION

¶ 12 Kessler presents three arguments on appeal. First, he contends that Regulation Number 1 and the Definitions are so broadly written as to necessarily prohibit him from engaging in constitutionally protected activity, including the free exercise of his religion and his freedom of association. Second, he argues that Regulation Number 1 and the Definitions are "so overreaching" in their scope that they necessarily result in selective enforcement by the State. Third, he insists that it is fundamentally unfair to conclude that he violated the terms of his probation because his probation officer had granted him permission to attend the retreat. We reject each of these arguments.

A. Overbreadth

¶ 13 Relying primarily on this Court's opinion in State v. Martin, 171 Ariz. 159, 829 P.2d 349 (App.1992), Kessler argues that Regulation Number 1 and the Definitions are unenforceable because they improperly "regulate or burden virtually every aspect of a probationer's conduct simply because children may be present." He particularly contends that Regulation Number 1 and the Definitions unnecessarily infringe upon his First Amendment rights of freedom of religion and freedom of association.

¶ 14 In Martin, we addressed an individual's claim that the State had presented insufficient evidence that he had violated a term of his probation prohibiting him from having any "contact with children under the age of eighteen years." Martin, who was on probation for attempted molestation of a child, on one occasion had been present with other adults in the same house as two minor children, but he had spent no time alone with the children, and the State presented "no evidence of any physical or even verbal contact by Martin with these children nor of any setting conducive to improper behavior." Id. at 160, 829 P.2d at 350. In holding that the State had presented insufficient evidence that Martin had violated the "no contact" term of his probation, we stated that, in the context in which it was used, "the word `contact' [was] so vague as to fail to provide Martin with notice about what kind of group association [was] prohibited." Id. We further observed:

While the term understandably intends to prohibit potential sexual contact with minors, the language is so broad as to also prohibit Martin from merely being present with minors in conventional places such as schools, shopping malls, churches, sporting events, or social events. More qualified language is needed regarding "contact" to avoid penalizing such innocent physical presence with other human beings.

Id. This language indicates our concern that the term of probation at issue was both impermissibly vague and overbroad.

¶ 15 Overbreadth and vagueness challenges often appear in tandem. The two concepts, however, implicate different constitutional infirmities. "An overbroad statute is one designed to burden or punish activities which are not constitutionally protected, but the statute includes within its scope activities which are protected by the First Amendment." State v. Jones, 177 Ariz. 94, 99, 865 P.2d 138, 143 (App.1993), quoting John E. Nowak, et al., CONSTITUTIONAL LAW, ch. 18, § III at 868 (2d ed.1983). In comparison, an unconstitutionally vague statute fails to give a person of average intelligence reasonable notice of what behavior is prohibited or permits arbitrary and discriminatory enforcement. State v. Steiger, 162 Ariz. 138, 141-42, 781 P.2d 616, 619-20 (App.1989).

¶ 16 In relying on Martin, Kessler does not argue that Regulation Number 1 or the Definitions are unconstitutionally vague. These Definitions explain what type of contact was prohibited, whereas in Martin there were no explanations regarding what type of contact was barred. Moreover, in a recent decision, this Court found that probation conditions virtually identical to Regulation Number 1 and the Definitions were not unconstitutionally vague. State v. Maggio, 196 Ariz. 321, 323, 996 P.2d 122, 124 (App.2000)(finding no vagueness because...

To continue reading

Request your trial
27 cases
  • Brush & Nib Studio, LC v. City of Phx.
    • United States
    • Court of Appeals of Arizona
    • 7 June 2018
    ...(App. 1991) ). ¶ 38 A statute is unconstitutionally overbroad if it burdens or punishes constitutionally protected activities. State v. Kessler , 199 Ariz. 83, 87, ¶ 15, 13 P.3d 1200, 1205 (App. 2000) (quoting State v. Jones , 177 Ariz. 94, 99, 865 P.2d 138, 143 (App. 1993) ). To determine ......
  • Wilfong v. Com., 2002-CA-000535-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 16 November 2005
    ...of Anchorage, 641 P.2d 1267 (Alaska Ct.App.1982); People v. Lopez, 66 Cal.App.4th 615, 78 Cal.Rptr.2d 66 (1998); State v. Kessler, 199 Ariz. 83, 13 P.3d 1200 (App.2000); and Neil P. Cohen, The Law of Probation and Parole (2nd 57. See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 58......
  • Reed-Kaliher v. Hoggatt
    • United States
    • Court of Appeals of Arizona
    • 25 July 2014
    ...the question remains one of reasonableness. That standard has been applied to other probation requirements as well. See State v. Kessler, 199 Ariz. 83, ¶ 21, 13 P.3d 1200, 1205 (App.2000). In determining whether a probation condition is permissible, the test “ ‘is whether there is a reasona......
  • Mario W. v. Kaipio, s. 1 CA–SA 11–0016
    • United States
    • Court of Appeals of Arizona
    • 27 October 2011
    ...entitled to the full panoply of rights and protections possessed by the general public.” Kincade, 379 F.3d at 833; see, e.g., State v. Kessler, 199 Ariz. 83, 88, ¶ 20, 13 P.3d 1200, 1205 (App.2000) (“[A] probationer is subject to restriction of his constitutional rights to a greater degree ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT