State v. Maggio, 1 CA-CR 99-0406.

• Citation: 996 P.2d 122,196 Ariz. 321
• Decision Date: 17 February 2000
• Docket Number: No. 1 CA-CR 99-0406.,1 CA-CR 99-0406.
• Parties: STATE of Arizona, Appellee, v. Timothy MAGGIO, Appellant.
• Court: Court of Appeals of Arizona

996 P.2d 122

196 Ariz. 321

STATE of Arizona, Appellee, v. Timothy MAGGIO, Appellant.

No. -0406.

Court of Appeals of Arizona, Division 1, Department E.

February 17, 2000.

Janet Napolitano, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and John L. Saccoman, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Cameron A. Morgan, Scottsdale, Attorney for Appellant.

OPINION

KLEINSCHMIDT, Judge.¹

¶ 1 The Defendant, Timothy Maggio, was on lifetime probation following his conviction for sexual conduct with a minor. The trial court found him in violation of the terms of his probation forbidding him from having contact with or residing with children. It ordered him to serve thirty days in the county jail and placed him on lifetime intensive probation. The Defendant appeals on the grounds that the provisions forbidding such contact and residence are too vague to be enforceable and that, in any event, he did not have any contact with or reside with a minor. We affirm.

¶ 2 The Defendant's version of the facts is as follows. In February, 1999, the Defendant was released from jail and moved in with his girlfriend, who was renting a room in a house owned by a person named Sam Williams. Williams and another adult male lived at the house. In the early morning hours of March 12, 1999, the Defendant and his girlfriend came home to find two children sleeping on the floor of the living room. The Defendant later learned that the children were the daughters of a house cleaning woman hired by Williams and were there with Williams' permission. The Defendant knew that he was not to reside with children but he had no driver's license and no money to rent a hotel room, so instead of leaving the house, he went into his bedroom with his girlfriend and went to sleep without talking to the children or having anything to do with them. When he arose in the morning, the children were gone. The same thing happened again the next night. The Defendant was not able to discuss the matter with Williams because Williams was not at the house at the time. The following week, the Defendant notified his probation officer that the children were again at the house and said that he was trying to find another place to stay.

¶ 3 The State adds some facts. A surveillance officer said that she went to the Defendant's residence on March 16, 1999, and found three minor females who had been living there for the preceding four days. She notified the Defendant's probation officer of the circumstances, and it was not until after this that the Defendant contacted his probation officer.

¶ 4 The two pertinent terms of probation are:

Do not initiate, establish or maintain contact with any male or female child under the age of 18, or attempt to do so, without the prior written approval of the probation officer. Sign and abide by the probation department definition of "no contact."

Notwithstanding any court order to the contrary, you shall not reside with any child under the age of 18 or contact your children in any manner, without the prior written approval of [the] probation officer.

¶ 5 At the time he was placed on probation, the Defendant received and acknowledged the following definition and instructions relating to these terms of his probation.

DEFINITION OF TERMS REGARDING CONTACT WITH MINORS

A minor or child is defined as anyone under [the age of] 18 years old. Any form of proximity contact is prohibited. Contact can mean several things:

(1) Actual physical touching.

(2) Association or relationship; taking any action which furthers a relationship with [a] minor such as writing letters, sending messages, buying presents, etc.

(3) Communication in any form is contact. This includes verbal communication such as talking, and/or written communication such as letters, etc. This also includes non-verbal communication such as body language (waving, gesturing) and facial expressions, such as winking.

In Public: Minor not known:

If you are in a public place such as a shopping mall, a grocery store, church, movies, park, arcade, etc., and you encounter a child whom you do not know, just do not initiate contact. Do not pay attention to the child; do not look at the child; do not talk to the child; no communication at all, verbal or non-verbal.

All efforts should be made to minimize such contact with minors whom you don't know by timing visits to public places when minors are least likely to be present. Example: Do not go to Saturday afternoon matinee movies where children are most likely to be present. If a minor is still encountered, do not initiate any communication, verbal or non-verbal.

If a minor initiates communication, tell them you cannot help them,

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