State v. Mortimer

• Decision Date: 01 April 1970
• Docket Number: No. 2103,2103
• Citation: 105 Ariz. 472,467 P.2d 60
• Parties: STATE of Arizona, Plaintiff, v. Ronald Raymond MORTIMER and Simon Ortiz Perez, Defendants.
• Court: Arizona Supreme Court

Page 60

467 P.2d 60

105 Ariz. 472

STATE of Arizona, Plaintiff, v. Ronald Raymond MORTIMER and Simon Ortiz Perez, Defendants.

No. 2103.

Supreme Court of Arizona, In Banc.

April 1, 1970.

Rose Silver, Pima County Atty., by William Randolph Stevens, Jr., Asst. Pima County Atty., Tucson, for plaintiff.

Leon Thikoll, Tucson, for Ronald Raymond Mortimer.

Paul Wolf, Tucson, for Simon Ortiz Perez.

HAYS, Justice.

Pursuant to Rule 346 of the Rules of Criminal Procedure, 17 A.R.S., the following question was certified to the Supreme Court:

'Is the act of masturbation by one adult male upon another adult male, with the latter's consent, where the intent of arousing, appealing to or gratifying the lust, passion or sexual desires of either of such persons is admitted, a lewd or lascivious act within the proscription of A.R.S. § 13-652, as amended?'

The statute in question, A.R.S. § 13--652 as amended, reads as follows:

'A person who wilfully commits, in any unnatural manner, any lewd or lascivious act upon or with the body or any part or member thereof of a male or female person, with the intent of arousing, appealing to or gratifying the lust, passion or sexual desires of either of such persons, is guilty of a felony punishable by imprisonment for not less than one nor more than five years. If such person commits the act as described in this section upon or with a child under the age of fifteen years, such person shall be punished by imprisonment in the state prison for not less than five years nor more than life without the possibility of parole until the minimum sentence has been served.'

The facts which brought rise to the question submitted are these: At approximately 10:00 p.m. on August 19, 1969, two Tucson police officers observed the defendants sitting on a bus stop bench in front of a bar; the defendants were embracing and kissing each other on the lips; the defendant Mortimer unzipped the trousers of the defendant Perez, and commenced manually masturbating Perez. The defendants were charged under A.R.S. § 13--652 and after a trial to the court sitting without a jury, were found guilty. Thereafter, prior to sentencing, the question was certified to this court.

Previously, we have upheld this statute against attacks contending that by reason of vagueness it is unconstitutional. Lovelace v. Clark, 83 Ariz. 27, 315 P.2d 876 (1957). The defendant Perez, in his Memorandum on Certified Question, takes the position that only those lewd and lascivious acts which are committed 'in any unnatural manner' are proscribed by the statute.

Responding to this contention, we hold that the act of masturbation by one adult male upon another adult male is an act committed in an unnatural manner. We are aware of a rising school of thought which decries the stigma placed by society upon homosexual activity, but our sole mission here is to interpret the statute as enacted by the legislature. In contemporary Arizona, and as of the date this statute was last amended (1965), homosexual activity is and was considered unnatural. In 13 UCLA Law Review at p. 643...