State v. Mendoza

• Decision Date: 14 March 2014
• Docket Number: No. 2 CA–CR 2013–0083.,2 CA–CR 2013–0083.
• Citation: 321 P.3d 424,234 Ariz. 259,682 Ariz. Adv. Rep. 5
• Parties: The STATE of Arizona, Appellee, v. Oscar Castillo MENDOZA, Appellant.
• Court: Arizona Court of Appeals

234 Ariz. 259

321 P.3d 424

682 Ariz. Adv. Rep. 5

The STATE of Arizona, Appellee,

v.Oscar Castillo MENDOZA, Appellant.

No. 2 CA–CR 2013–0083.

Court of Appeals of Arizona, Division 2.

March 14, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, By David A. Simpson, Assistant Attorney General, Phoenix, Counsel for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, Tucson, Counsel for Appellant.

OPINION

ECKERSTROM, Judge.

¶ 1 Following a jury trial, appellant Oscar Mendoza was convicted of child molestation and sentenced to a ten-year term of imprisonment. On appeal, he argues the type of touching that was established at trial does not meet the legal definition of the offense, rendering his conviction unsupported by sufficient evidence. He also contends the trial court erred in instructing the jury. We affirm for the reasons that follow.

Factual and Procedural Background

¶ 2 We view the evidence presented at trial in the light most favorable to upholding the verdict, drawing all reasonable inferences against the defendant. See State v. Roberts, 126 Ariz. 92, 95, 612 P.2d 1055, 1058 (1980). The victim in this case was a thirteen-year-old girl who was spending the night at Mendoza's residence for a sleepover with her best friend, Mendoza's daughter. After the victim had fallen asleep, her friend went to watch television in another room with her mother, leaving the victim alone. The victim testified Mendoza then came into the bedroom, woke her, lay on top of her, and “started humping” her, meaning he was “rubbing his penis on [her] butt.”

¶ 3 The victim testified she had been lying on her stomach and underneath a blanket when the incident occurred. Both she and Mendoza were wearing clothes. She did not feel his penis during the episode, but she felt his “cro [t]ch” or “genital area” touching her butt and moving against it. When she spoke and tried to get up, Mendoza ran out of the room. The victim then went into another bedroom where Mendoza's daughter was with her mother. The victim was crying and hysterical, and she reported what had happened to her. The mother locked the two girls in the bedroom with her, and Mendoza was reported to the police later that day.

¶ 4 In his defense, Mendoza argued the victim was not credible and the incident did not happen as she recalled. He also argued to the jury—and to the court, as part of his motion for judgment of acquittal under Rule 20, Ariz. R.Crim. P.—that the facts presented did not meet the definition of child molestation. After the court denied the motion, the jury found him guilty. This timely appeal followed the entry of judgment and sentence.

Sufficiency of the Evidence

¶ 5 Mendoza first contends the evidence that he “ ‘humped’ the fully clothed victim with his ‘crotch’ or ‘genital area’ ” through a blanket was insufficient to establish child molestation “because there was no proof of indirect touching, fondling, or manipulating of the genitals.” The sufficiency of evidence is a question of law we review de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). “[T]he controlling question is solely whether the record contains ‘substantial evidence to warrant a conviction.’ ” Id. ¶ 14,quotingAriz. R.Crim. P. 20(a). Substantial evidence exists if a rational juror could find the elements of the crime proved beyond a reasonable doubt. Id. ¶ 16. If “ ‘reasonable minds may differ on inferences drawn from the facts,’ ” the evidence is substantial and the conviction must be upheld. Id. ¶ 18,quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).

¶ 6 Child molestation under A.R.S. § 13–1410(A) occurs if a defendant “intentionally or knowingly engag[es] in or caus[es] a person to engage in sexual contact ... with a child who is under fifteen years of age.” Section 13–1401(2), A.R.S., defines sexual contact, in part, as “any direct or indirect touching, fondling or manipulating of any part of the genitals ... [or] anus ... by any part of the body or by any object or causing a person to engage in such contact.” Indirect touching includes touching through clothing, State v. Pennington, 149 Ariz. 167, 168–69, 717 P.2d 471, 472–73 (App.1985), and the “person” referred to in § 13–1410(A) can mean the child who is the victim of the molestation offense. State v. Marshall, 197 Ariz. 496, ¶¶ 26–27, 4 P.3d 1039, 1046–47 (App.2000). The crime may be committed, therefore, either by the perpetrator indirectly touching the victim's genitals or by causing the victim to indirectly touch those of the perpetrator.

¶ 7 Here, the state maintained Mendoza had committed child molestation not by touching the victim's genitals or anus, but rather by indirectly rubbing his genitals against the victim. We agree.

¶ 8 The victim's testimony and description of the defendant “humping” her provided sufficient evidence of indirect genital touching to sustain the conviction. See State v. Jerousek, 121 Ariz. 420, 427, 590 P.2d 1366, 1373 (1979) (“In child molestation cases, the defendant can be convicted on the uncorroborated testimony of the victim.”). The verb “hump,” in one of its slang senses, means “[t]o engage in sexual intercourse,” The American Heritage Dictionary 858 (5th ed.2011), or “ ‘to copulate with.’ ” State v. Ernesto P., 135 Conn.App. 215, 41 A.3d 1115, 1121 n. 8 (2012), quoting Webster's Third New International Dictionary 1102 (2002). But the term does not always denote sexual penetration, as demonstrated by the victim's testimony here. See, e.g., State v. Allen, 157 Ariz. 165, 168, 755 P.2d 1153, 1156 (1988) (using word “hump[ ]” to describe defendant rubbing penis against victim's leg); Downey v. State, 726 N.E.2d 794, 797–98 (Ind.Ct.App.2000) (finding insufficient evidence of contact with victim's anus, as opposed to buttocks, when defendant “put his penis between her cheeks of her bottom ... and started ... humping her”). The word “hump” can also refer to bodily movements that rub or stimulate a person's genitals through layers of fabric or clothing. See, e.g., Ernesto P., 41 A.3d at 1118, 1121 n. 8 (noting word, in context, meant holding the victim “in a sexual embrace”); State v. Liberty, 370 S.W.3d 537, 543, 545 (Mo.2012) (finding description of young boys “humping [defendant's] back” referred to physical contact that “represented apparent acts of sexual stimulation or gratification”); State ex rel. Nasal v. BJS No. 2, Inc., 127 Ohio Misc.2d 101, 806 N.E.2d 208, ¶ 18 (Ohio Ct. Common Pleas 2003) (describing “[f]riction dances” at nude-dancing establishment that involved women “humping their vaginal areas on the seated patrons' clothed genitals with the purpose to ejaculate the patrons”). In all of its slang senses, however, the word “hump” denotes both a sexual motivation and some touching, manipulation, or physical stimulation of the genitals.

¶ 9 Case law from our supreme court illustrates the point. In the dual decisions of State v. Detrich, 188 Ariz. 57, 62–63, 932 P.2d 1328, 1333–34 (1997) and 178 Ariz. 380, 384, 873 P.2d 1302, 1306 (1994), the court determined that a witness's testimony of “humping” was sufficient evidence of sexual contact to support the defendant's conviction for sexual abuse. The crimes of sexual abuse and child molestation share the element of sexual contact. SeeA.R.S. §§ 13–1404(A), 13–1410(A). Accordingly, while the “humping” described here “fell short of ... completed sexual intercourse,” Detrich, 188 Ariz. at 63, 932 P.2d at 1334, it nevertheless represented a form of sexual contact that was sufficient to support the guilty verdict, because the jury rationally could infer that Mendoza was rubbing his crotch or genital area against the victim's body to indirectly touch or manipulate his genitals. Indeed, little else could be accomplished by such behavior.

¶ 10 Contrary to Mendoza's suggestion, a victim is not required to “feel” or “detect” a perpetrator's penis or testes, as this simply is not an element of the offense. Furthermore, the fact that the “humping” here occurred through clothing and a blanket is irrelevant, as the state points out, because the action still amounts to “indirect touching” proscribed by § 13–1401(2). “[T]ouching does not lose its sexual character merely by the imposition of a thickness of cloth,” Moss v. Dist. Court of Tulsa Cnty., 795 P.2d 103, 105 (Okla.Crim.App.1989), and we recognized in Marshall that “the potential for emotional harm is manifest notwithstanding the lack of direct physical contact with the molester.” 197 Ariz. 496, ¶ 29, 4 P.3d at 1047.

¶ 11 Although Mendoza discusses in his opening brief certain hypothetical scenarios where other types of touching might not be deemed criminal, we are not presented here with a close case concerning the “limit as to how ‘indirect’ the touching can be.” The overtly sexual and criminal nature of Mendoza's conduct was evident in this case, such that it would be “ difficult to conceive of a jury placing an innocent construction on the acts testified to.” Roberts, 126 Ariz. at 95, 612 P.2d at 1058. In sum, the evidence was sufficient for the jury to find him guilty of child molestation under § 13–1410.

Instructions

¶ 12 Mendoza next presents two arguments concerning the trial court's instructions to the jury. Specifically, he contends (1) the child molestation instruction was “fatally flawed” and (2) the court erred “in failing to instruct the jury on the burden and standard of proof for [his] affirmative defense of lack of sexual motivation.” As to the first issue, Mendoza did not object to the court's instruction defining the offense; as to the second, the court apparently provided Mendoza's proposed instruction on this defense over the state's objection. He did not request, nor did he object to the absence of, any additional instructions on the topic.

¶ 13 Because the issues raised on appeal were not presented and preserved below in accordance with Rules 21.2 and 21.3(c),...