State v. Anderson ( 2016 )


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  •                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    JACK E. ANDERSON, Appellant.
    No. 1 CA-CR 15-0102
    FILED 2-9-2016
    Appeal from the Superior Court in Coconino County
    No. S0300CR201300773
    The Honorable Jacqueline Hatch, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Robert A. Walsh
    Counsel for Appellee
    Coconino County Public Defender’s Office, Flagstaff
    By Brad Bransky
    Counsel for Appellant
    STATE v. ANDERSON
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Andrew W. Gould delivered the decision of the Court, in
    which Judge John C. Gemmill and Judge Margaret H. Downie joined.
    G O U L D, Judge:
    ¶1           Appellant Jack E. Anderson appeals his conviction and
    sentence for one count of child molestation. Anderson argues the trial
    court erred in denying his motion to dismiss the indictment and in
    denying his motions for mistrial. For the following reasons, we affirm.
    FACTS AND PROCEDURAL HISTORY1
    ¶2           Anderson is the minor victim’s step-grandfather. In 2010,
    while Anderson and the victim were in a Jacuzzi, Anderson pulled the
    victim onto his lap and began touching and rubbing her vagina over her
    swimsuit. Anderson also allegedly “pushed [the victim] down onto him”
    causing the victim’s vagina to touch his erect penis for “a couple
    minutes.” The State subsequently charged Anderson with two counts of
    child molestation. Count 1 was based on Anderson touching the victim’s
    vagina, and Count 2 was based on the allegation Anderson touched her
    vagina with his penis.
    ¶3            The case proceeded to trial, and the jury found Anderson
    guilty of Count 1, but acquitted him of Count 2. During the sentencing
    phase, the jury acquitted Anderson of causing emotional harm to the
    victim, the sole aggravating circumstance alleged by the State. The court
    sentenced Anderson to a 14-year prison term, and Anderson timely
    appealed.
    1       We view the evidence in the light most favorable to sustaining the
    conviction and resulting sentence. See State v. Guerra, 
    161 Ariz. 289
    , 293
    (1989).
    2
    STATE v. ANDERSON
    Decision of the Court
    DISCUSSION
    A.     Denial of Motion to Dismiss
    ¶4            Prior to trial, Anderson moved to dismiss the indictment.2
    Anderson argued that pursuant to Arizona Revised Statutes (“A.R.S.”)
    section 13-1410,3 sexual interest is an element of child molestation. As a
    result, Anderson contended the court should dismiss the indictment
    because it did not allege he acted with a sexual interest in committing the
    charged offenses.
    ¶5            The trial court denied Anderson’s motion. Relying on our
    holding in State v. Simpson, 
    217 Ariz. 326
    (App. 2007), the court
    determined that: (1) sexual interest is not an element of child molestation,
    and (2) lack of sexual interest is an affirmative defense under § 13-1407(E)
    that a defendant must prove by a preponderance of evidence. 
    Id., 217 Ariz.
    at 328-29, ¶¶ 18-19.
    ¶6            On appeal, Anderson argues that the trial court erred in
    denying his motion to dismiss because § 13-1410 is unconstitutionally
    vague and overbroad. Specifically, he contends, “Arizona now authorizes
    criminal punishment for every intentional touching of a child’s genitals . .
    . unless the accused can thereafter carry the burden to disprove his sexual
    intent.” Similarly, he asserts the holding in Simpson unconstitutionally
    shifts the burden of proving lack of sexual interest to defendants.
    1.     Vagueness and Overbreadth
    ¶7           The State argues that Anderson waived his vagueness and
    overbreadth arguments because, as the trial court found, he did not timely
    raise them. The State claims that Anderson first raised these arguments
    2      Alternatively, Anderson requested the indictment be amended to
    reflect sexual interest as an element of child molestation. Anderson
    subsequently withdrew his request to amend the indictment and sought
    dismissal arguing that A.R.S. § 13-1410 is unconstitutional because it
    “lacks a mens rea[.]”
    3      Unless otherwise specified, we cite to the current version of the
    applicable statutes.
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    STATE v. ANDERSON
    Decision of the Court
    on October 31, 2014, or less than twenty days before trial.4 See Ariz. R.
    Crim. P. 16.1(c) (“Any motion, defense, objection, or request . . . raised
    [later than the 20 days before trial] shall be precluded, unless the basis
    therefor was not then known, and by the exercise of reasonable diligence
    could not then have been known, and the party raises it promptly upon
    learning of it.”).
    ¶8            We agree that Anderson was dilatory in raising these
    arguments, but we disagree that the issues are waived. Rather, because
    the issues of vagueness and overbreadth regarding A.R.S. § 13-1410
    involve an issue of public policy and broad, general statewide concern, we
    conclude such constitutional questions “can be raised for the first time on
    appeal.” State v. Junkin, 
    123 Ariz. 288
    , 290 (App. 1979).
    ¶9            A person commits child molestation “by intentionally or
    knowingly engaging in or causing a person to engage in sexual contact . . .
    .” A.R.S. § 13-1410(A). “’Sexual contact’ means any direct or indirect
    touching, fondling or manipulating of any part of the genitals, . . . by any
    part of the body . . . .” A.R.S. § 13-1401(3). “It is a defense to a prosecution
    pursuant to . . . § 13-1410 that the defendant was not motivated by a
    sexual interest.” A.R.S. § 13-1407(E).
    ¶10           We conclude Anderson lacks standing to challenge § 13-
    1410’s constitutionality.5 “Generally only those who are injured by an
    unconstitutional statute may object to its constitutionality.” State v. Delk,
    
    153 Ariz. 70
    , 71 (App. 1986) (quoting State v. Burns, 
    121 Ariz. 471
    , 473
    (App. 1979)). As we explain infra, any constitutional infirmities in the
    statute did not harm Anderson. Whether the statute may be vague as to
    4      Anderson first “made reference” to vagueness and overbreadth at
    the oral argument on October 21, 2014, addressing his motion to dismiss.
    He did not make substantive arguments on vagueness and overbreadth
    until he filed his supplemental authority/argument on October 31, 2014,
    which was 13 days before trial.
    5      We also agree with the State that Anderson does not properly
    address vagueness and overbreadth in his opening brief. Anderson
    merely cites to arguments he raised in superior court and incorporates
    them into his brief by reference. This is improper appellate practice. See
    State v. Dominguez, 
    236 Ariz. 226
    , 230, ¶ 8 (App. 2014) (noting arguments
    and supporting authority must be provided in the body of the opening,
    and incorporation by reference is forbidden).
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    STATE v. ANDERSON
    Decision of the Court
    some forms of touching, Anderson’s conduct underlying Count 1,
    manually rubbing the minor victim’s vagina, is clearly proscribed by § 13-
    1410. See State v. Baldenegro, 
    188 Ariz. 10
    , 14 (App. 1996) (“A defendant
    whose conduct is clearly proscribed by the core of the statute has no
    standing to attack the statute.”).
    ¶11            In terms of overbreadth, Anderson lacks standing because
    he does not claim his conduct - touching the victim’s vagina - is
    potentially innocent conduct that should not be prosecuted. A person
    who lacks standing may, in some cases, challenge a statute criminalizing
    conduct for being overbroad; however, such challenges only apply to
    statutes that regulate conduct protected by the First Amendment. State v.
    Watson, 
    198 Ariz. 48
    , 54, ¶¶ 19-20 (App. 2000). Anderson has provided no
    authority, and we are aware of none, that touching a child’s vagina
    implicates an interest protected by the First Amendment.              
    Id. Consequently, Anderson
    also lacks standing to dispute the
    constitutionality of § 13-1410 on overbreadth grounds.
    2.     Burden Shifting
    ¶12           The State has the burden of proving every element of a
    criminal offense beyond a reasonable doubt. State v. Seyrafi, 
    201 Ariz. 147
    ,
    150, ¶ 7 (App. 2001). “A statute that shifts the burden of persuasion on an
    element of an offense to a criminal defendant violates due process.” 
    Id. at ¶
    8.
    ¶13            After Anderson filed his opening brief in this appeal,
    another panel of this court disagreed with Simpson’s holding that sexual
    interest is an affirmative defense. State v. Holle, 
    238 Ariz. 218
    , ___, ¶ 11,
    (App. 2015). In Holle, the court held that sexual interest is an element of
    child molestation, and although § 13-1407 provides a defense to a charge
    of child molestation, the defense is not an affirmative one. 
    Id. at ¶
    26.
    Thus, the court concluded:
    If, during a prosecution for molestation of a child or sexual
    abuse of a minor under fifteen, a defendant satisfies the
    burden of production to raise the defense listed under § 13–
    1407(E), then the state must prove beyond a reasonable
    doubt that the defendant’s conduct was motivated by a
    sexual interest. 
    Id. ¶14 Clearly,
    there is a conflict between the holdings in Simpson
    and Holle. However, we need not resolve this conflict, because even if we
    5
    STATE v. ANDERSON
    Decision of the Court
    assume the trial court erred in shifting the burden of proof to Anderson,
    given the facts of this case, any error is harmless.
    ¶15            Omitting an element from a criminal jury instruction is
    reviewed for harmless error. Holle, 238 Ariz. at __, ¶¶ 30-31; Neder v.
    United States, 
    527 U.S. 1
    , 10–11, 15 (1999); see State v. Dann, 
    205 Ariz. 557
    , ¶
    18 (2003) (erroneous jury instructions subject to harmless-error review).
    Under this standard of review, the omission is harmless if no reasonable
    jury could find the State failed to prove the omitted element beyond a
    reasonable doubt. Holle, 238 Ariz. at __, ¶ 30; State v. Lewis, 
    236 Ariz. 336
    ,
    345-46, ¶ 38 (App. 2014).
    ¶16            Here, overwhelming evidence shows that Anderson was
    motivated by sexual interest when he touched the victim’s vagina in the
    Jacuzzi. The victim testified that, on the day of the Jacuzzi incident, she
    was wearing a bikini, and Anderson said she “filled it out well [,]” causing
    the victim to feel “[u]ncomfortable.” The record also shows the Jacuzzi
    incident was not an accidental touching; the victim testified that after
    Anderson touched and rubbed her vagina, she “got up and swam away
    and [Anderson] pulled [her] by [her] ankles to try to get [her] to sit back
    on his lap[.]”
    ¶17           The evidence established that Anderson touched the victim’s
    vagina on three prior occasions, and on another occasion, demanded that
    she lick his private parts. See, infra at ¶ 23.     The victim eventually
    disclosed the molestation incidents to her grandmother, the wife of
    Anderson, after watching a movie about a girl who committed suicide
    because her father sexually abused her. The day after the victim’s
    disclosure, Grandmother confronted Anderson, and was “stunned by his
    lack of emotion, [and] matter of factness” regarding the allegations.
    ¶18            Grandmother testified that on another occasion, she asked
    Anderson if he told the victim “not to say anything” about the alleged
    molestations. In response, Anderson stated the victim was the one who
    initiated the contact when “she took his hand and ran it down in front of
    her,” and that he told her if “she was going to do that, she couldn’t tell.”
    Finally, after Grandmother told Anderson the victim wanted an apology
    from him, Anderson wrote a letter to the victim stating: “Dear B., I’m
    sorry. Please forgive me. I love you, Papa[.]”
    ¶19           Finally, when Anderson testified at trial, he did not claim he
    accidentally touched the victim, or that he lacked sexual interest when he
    touched her. Rather, Anderson completely denied touching or rubbing
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    STATE v. ANDERSON
    Decision of the Court
    the victim’s vagina; indeed, it was his position the victim lied about the
    incident in the Jacuzzi.
    ¶20            The foregoing evidence shows that Anderson knew he was
    engaging in sexually motivated conduct when he touched the victim in
    the Jacuzzi. Based on the overwhelming evidence, we conclude any error
    in the jury instructions was harmless. See Harrington v. California, 
    395 U.S. 250
    , 256 (1969) (“constitutional error in the trial of a criminal offense may
    be held harmless if there is ‘overwhelming’ untainted evidence to support
    the conviction.”); State v. Bible, 
    175 Ariz. 549
    , 588 (1993) (”Error, be it
    constitutional or otherwise, is harmless if we can say beyond a reasonable
    doubt, that the error did not contribute to or affect the verdict.”); see also
    Holle, 238 Ariz. at ___, ¶¶ 26-31 (affirming conviction for child molestation
    based on harmless error review despite legal error in instructing jury that
    defendant bore the burden of proving his conduct was not motivated by
    sexual interest).
    B.     Denial of Motions for Mistrial
    ¶21           Anderson argues the trial court erred in denying his motions
    for mistrial. Specifically, Anderson claims the court should have granted
    a mistrial when the victim testified about certain undisclosed details
    concerning four prior extrinsic acts.
    ¶22           Pursuant to Arizona Rule of Evidence (“Rule”) 404(c), the
    State sought a pre-trial ruling allowing it to present evidence of six prior
    extrinsic sexual incidents involving Anderson and the victim. Rule 404(c)
    “permits the admission of evidence of uncharged acts to establish ‘that the
    defendant had a character trait giving rise to an aberrant sexual
    propensity to commit the offense charged.’” State v. Garcia, 
    200 Ariz. 471
    ,
    475, ¶ 26 (App. 2001) (quoting Rule 404(c)).
    ¶23            After considering recordings and transcripts of the victim’s
    police interviews and a signed statement prepared by Anderson, the court
    granted the State’s motion in part, and admitted evidence regarding four
    prior incidents: (1) when the victim was approximately 5 years old,
    Anderson rubbed his hand over her underwear in her vaginal area; (2)
    when the victim was in 2nd or 3rd grade, Anderson demanded that she
    lick his private parts: (3) when the victim was approximately 11 years old,
    while she was lying on his bed, Anderson grabbed her by the ankles, held
    her by her wrists, and touched her vagina; and (4) on one occasion,
    Anderson played a “game” with the victim where he tied her up and
    touched her vagina.
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    STATE v. ANDERSON
    Decision of the Court
    ¶24            In admitting these extrinsic acts, the court directed the State
    to limit its evidence to the specific details presented at the hearing.
    However, during the victim’s testimony, she added additional details
    about three of the prior extrinsic acts. Regarding the second incident, the
    victim testified that Anderson wanted her to lick chocolate sauce and
    whipped cream off his penis. The victim also testified that during the
    third incident, Anderson pressed his erect penis against her vaginal area,
    and “it was like dry sex.” As for the fourth incident, the victim testified
    she was wearing a T-shirt, underwear and pants when her grandmother
    left the house, but that when Anderson tied her up, she was wearing “less
    than that,” i.e., indicating that Anderson had removed her pants.
    ¶25          When the victim testified to these additional details,
    Anderson moved for a mistrial, or alternatively to strike the testimony on
    the grounds of lack of disclosure and violation of the court’s order. Each
    time, the court ordered the testimony stricken, admonished the jury to
    disregard the stricken testimony, and denied Anderson’s requests for a
    mistrial.
    ¶26           A declaration of mistrial is “the most dramatic remedy for
    trial error and should be granted only when it appears that justice will be
    thwarted unless the jury is discharged and a new trial granted.” State v.
    Dann, 
    205 Ariz. 557
    , 570, ¶ 43 (2003) (citation omitted). We review a trial
    court’s denial of a motion for mistrial for abuse of discretion and reverse
    only where there is a “‘reasonable probability’ that the verdict would have
    been different had the [error not occurred].” State v. Hoskins, 
    199 Ariz. 127
    , 142–43, ¶ 57 (2000) (citation omitted).
    ¶27            A mistrial is not required every time a witness unexpectedly
    volunteers an inadmissible statement. State v. Adamson, 
    136 Ariz. 250
    , 262
    (1983). Instead, the remedy rests within the sound discretion of the trial
    court, which must evaluate the situation and decide an appropriate course
    of action in light of the specific facts and circumstances presented. 
    Id. We give
    deference to the trial court’s ruling because it is in the best position to
    evaluate “the atmosphere of the trial, the manner in which the
    objectionable statements were made, and the possible effect it had on the
    jury and the trial.” 
    Bible, 175 Ariz. at 598
    (citation omitted).
    ¶28          We find no abuse of discretion. The evidence, as noted
    above, overwhelmingly supports the guilty verdict. Thus, the victim’s
    testimony about the additional details of the extrinsic acts did not
    reasonably affect the verdict.
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    STATE v. ANDERSON
    Decision of the Court
    ¶29           Additionally, each time Anderson challenged the victim’s
    testimony, the court ordered the testimony stricken and instructed the
    jury not to consider the statements. Moreover, the jurors demonstrated
    the stricken testimony had no inflammatory effect on their deliberations
    by acquitting Anderson of Count 2, and also finding the State did not
    prove the aggravating circumstance of emotional harm to the victim. See
    United States v. Miller, 
    116 F.3d 641
    , 683 (2nd Cir. 1997) (“An acquittal by
    the jury on some counts may be evidence that the trial was not unfair.”).
    CONCLUSION
    ¶30           For the foregoing reasons, Anderson’s conviction and
    sentence are affirmed.
    :ama
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