State v. Valdez
| Decision Date | 30 January 2015 |
| Docket Number | No. 2 CA-CR 2013-0463,2 CA-CR 2013-0463 |
| Parties | THE STATE OF ARIZONA, Appellee, v. GERMAN B. VALDEZ, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in santa Cruz County
The Honorable Anna M. Montoya-Paez, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Joseph L. Parkhurst, Assistant Attorney General, Tucson
Counsel for Appellee
Law Office of Thomas E. Higgins, P.L.L.C., Tucson
By Thomas E. Higgins
Counsel for Appellant
Judge Espinosa authored the decision of the Court, in which Presiding Judge Miller and Chief Judge Eckerstrom concurred.
¶1 After a jury trial, German Valdez was convicted of one count of sexual conduct with a minor under fifteen years of age, a class two felony. The trial court sentenced him to a mitigated thirteen-year prison term and later modified the sentence to require sex offender registration. On appeal, Valdez challenges the court's ruling denying his motion in limine to require the state to prove scienter as to the victim's age, and he contests several of the court's rulings on evidentiary issues. For the following reasons, we affirm.
¶2 We view the facts in the light most favorable to sustaining the jury's verdict. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). Between mid-August and early September 2010, Valdez had sexual intercourse with A.U., a fourteen-year-old girl, four times. A.U. subsequently learned she was pregnant and when Valdez failed to "take responsibility" for the baby, A.U.'s parents called police. Following the birth of the child, DNA1 testing indicated Valdez was the father.
¶3 In May 2012, Valdez was charged with sexual conduct with a minor under fifteen years of age pursuant to A.R.S. § 13-1405.2 He was later convicted and sentenced as describedabove. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
A.R.S. § 13-1405 and Scienter of Age
¶4 Valdez first argues the trial court erred in denying his motion in limine to require the state to prove scienter as to A.U.'s age. In support, he advances four related arguments: (1) the First Amendment requires the state to prove scienter; (2) "strict liability" under § 13-1405 chills constitutionally protected, intimate relationships; (3) the trial court misinterpreted the mens rea requirements of § 13-1405; and (4) offenses not requiring mens rea are disfavored. We review a trial court's denial of a motion in limine for an abuse of discretion, State v. Gamez, 227 Ariz. 445, ¶ 25, 258 P.3d 263, 267 (App. 2011), but review de novo questions of constitutional law and statutory interpretation, see id. ¶ 26; State ex rel. Thomas v. Klein, 214 Ariz. 205, ¶ 5, 150 P.3d 778, 780 (App. 2007).
¶5 Arizona's courts have determined that § 13-1405 does not require the state to prove scienter of age. See Gamez, 227 Ariz. 445, ¶ 38, 258 P.3d at 269; State v. Falcone, 228 Ariz. 168, 172-73, ¶ 18, 264 P.3d 878, 882-83 (App. 2011); see also State v. Superior Court, 104 Ariz. 440, 441-42, 454 P.2d 982, 983-84 (1969) (). Valdez, however, argues that not requiring the state to prove scienter or allowing an affirmative defense of mistake of fact as to the victim's age violates the First Amendment of the United States Constitution. In support, he cites United States v. United States District Court for the Central District of California, 858 F.2d 534 (9th Cir. 1988), in which pornographers using a sixteen-year-old actress were charged with violating 18 U.S.C. § 2251(a), which imposes strict liability for sexually exploiting children, and the defendants offered as a defense that she had provided falsedocumentation of her age. Reasoning "the first amendment does not permit the imposition of criminal sanctions on the basis of strict liability where doing so would seriously chill protected speech," the court held that a defendant charged with violating § 2251(a) may avoid liability with "clear and convincing evidence [ ] that he did not know, and could not reasonably have learned, that the actor or actress was under 18 years of age." Id. at 540, 543.
¶6 Valdez asserts the same rationale should apply to other activities protected by the First Amendment such as freedom of association, the right to marry and the "derivative" "right to date." As the state points out, however, the core concern of District Court was the statute's chilling effect on freedom of expression, and sexual conduct is not protected by the First Amendment. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 289 n.8 (6th Cir. 1998) (); Recreational Devs. of Phoenix, Inc. v. City of Phoenix, 83 F.Supp.2d 1072, 1092 (D. Ariz. 1999) (); State v. Conforti, 688 So.2d 350, 355 (Fla. Dist. Ct. App. 1997) ();3 see also IDK, Inc. v. Clark County, 836 F.2d 1185, 1192-93 (9th Cir. 1988) ().
¶7 Further, since District Court was decided, every circuit court of appeals to consider the issue has rejected mistake-of-age as a defense in § 2251(a) cases. See United States v. Fletcher, 634 F.3d 395, 404 (7th Cir. 2011) (); United States v. Humphrey, 608 F.3d 955, 960 (6th Cir. 2010) (); see also United States v. Malloy, 568 F.3d 166, 173 n.2 (4th Cir. 2009) ( mistake-of-age defense); United States v. Wilson, 565 F.3d 1059, 1069 (8th Cir. 2009) (same); United States v. Deverso, 518 F.3d 1250, 1258 (11th Cir. 2008) (same). And the United States Supreme Court has noted, albeit in dicta, that Congress acted with deliberate intent when it omitted knowledge of the victim's age from the elements of § 2251(a). United States v. X-Citement Video, Inc., 513 U.S. 64, 76-77 (1994) (). We therefore reject Valdez's claims based on District Court and the First Amendment. See also State v. Montano, 206 Ariz. 296, n.1 , 77 P.3d 1246, 1247 (2003) ().
¶8 In a similar vein, Valdez claims that § 13-1405, imposed without a mens rea requirement as to age, constitutes a "statutory intrusion into the First Amendment protected relationships of dating, procreation and close relationships." He cites IDK, Inc., 836 F.2d 1185, for the proposition that a dating relationship is recognized under the First Amendment for purposes of freedom of association.
¶9 Valdez correctly notes that IDK, Inc. held that intimate relationships such as "those that attend the creation and sustenance of a family" and "similar 'highly personal relationships'" are protected. 836 F.2d at 1193. But the source of that protection was the due process clause of the Fourteenth Amendment,4 see Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984); IDK, Inc., 836 F.2d at 1193, and the protection is not unqualified, see Lawrence v. Texas, 539 U.S. 558, 578 (2003) (). Indeed, this court has held that sexual conduct with a minor is not protected by the Fourteenth Amendment. See State v. Fischer, 219 Ariz. 408, ¶ 17, 199 P.3d 663, 669 (App. 2008). And we have long recognized "the right of the state in the area of sexual activity to regulate the wellbeing of children and protect them from potential harm . . . ." State v. Snyder, 25 Ariz.App. 406, 407, 544 P.2d 230, 231 (1976). Accordingly, we reject Valdez's claim that § 13-1405 impermissibly interfered with his right to engage in a constitutionally protected relationship.
¶10 Valdez next contends the Supreme Court's decision in Flores-Figueroa v. United States, 556 U.S. 646 (2009), dictates that when a criminal statute introduces the elements of a crime with the word "knowingly," the word applies to each element. Interpretation of state statutes, however, is the province of state courts. See State v. Hardesty, 222 Ariz. 363, n.7, 214 P.3d 1004, 1008 n.7 (2009) (); State v. Locks, 91 Ariz. 394, 395-96, 372 P.2d 724, 725 (1962) (). Even the Supreme Court is bound by a state court's construction of a state statute. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 483 (1993) (). Consequently, we are not persuaded the trial court misinterpreted § 13-1405 in light of Arizona's own precedent. See Gamez, 227 Ariz. 445, ¶¶ 37-38, 258 P.3d at 269 (); Falcone, 228 Ariz. 168, ¶ 18, 264 P.3d at 882-83 (...
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