State v. Clow , 242 Ariz. 68 ( 2017 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
PAUL PATRICK WAYNE CLOW, Appellant.
No. 1 CA-CR 16-0033
FILED 3-14-2017
Appeal from the Superior Court in Yavapai County
No. P1300CR201401153
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee
Yavapai County Public Defender’s Office, Prescott
By Nicole S. Murray, Michelle DeWaelsche, John Napper
Counsel for Appellant
STATE v. CLOW
Opinion of the Court
OPINION
Judge Jennifer B. Campbell1 delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Margaret H. Downie
joined.
C A M P B E L L, Judge:
¶1 Following a jury trial, Paul Patrick Wayne Clow was
convicted of a single count of continuous sexual abuse of a child. On appeal,
Clow argues the court misinterpreted Arizona Revised Statutes (“A.R.S.”)
section 13-1417(A) (2010)2, which requires the sexual conduct to span a
period of three months. This is the sole issue addressed in this opinion.3 For
the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND4
¶2 In July 2014, Clow placed an ad to rent out two rooms of his
house. The ad specifically stated that the space would accommodate a
single-parent family. The victim’s mother (“Mother”) was the first person
to respond to the ad, and she and her three sons, T.F. (age 10), J.F. (age 7 –
the victim), and A.F. (age 5), moved in on August 2, 2014. Because Mother
1The Honorable Jennifer B. Campbell, Judge of the Arizona
Superior Court, has been authorized to sit in this matter pursuant to Article
VI, Section 3 of the Arizona Constitution.
2Absent material revisions after the relevant dates, statutes
and rules cited refer to the current version unless otherwise indicated.
3Ina separate memorandum decision, State v. Clow, 1 CA-CR
16-0033 (Ariz. App. May 14, 2017), filed simultaneously with the opinion,
we reject Clow’s remaining arguments. Additional factual and procedural
history is provided therein. See Ariz. R. Sup. Ct. 111; Ariz. R. of Crim. P.
31.26.
4We view the facts in the light most favorable to sustaining
the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93, 314 P.3d 1239, 1264 (2013).
2
STATE v. CLOW
Opinion of the Court
did not have rent money at the time of move-in, Clow agreed that Mother
could pay rent as soon as she was able.
¶3 Mother testified at trial that within a “couple [of] days,” she
began a sexual relationship with Clow, and Clow let the rent “slide.” Clow
also immediately became involved with the children, taking them to parks,
stores, and other outings. Clow also supervised the children while Mother
interviewed for jobs. By the end of August, Clow regularly participated in
the children’s bath and bedtime routines, including lying down with the
children and “rub[bing] their back[s] [to] help them to fall asleep.”
¶4 On November 9, 2014, while driving in the car with the
children, Mother asked the victim whether Clow had ever told him “to keep
secrets from mommy.” The victim answered “yes.” When Mother asked
what type of secrets, the victim answered that Clow had told him how to
have sex. At that point, Mother stopped the car and spoke with the victim
outside the presence of the other children. Mother asked the victim whether
Clow had touched him inappropriately and the victim stated that Clow had
touched his penis both over and under his clothing.
¶5 Mother immediately contacted the police. The next day,
Detective P.E. conducted a forensic interview of the victim. In response to
questioning, the victim said Clow had touched his “private part,” and
pointed to his genitals. Detective P.E. asked when the touching started and
he responded “August 1st.” When asked about the frequency of the
touching, the victim said Clow either touched the victim’s penis or rubbed
his own erect penis against the victim “every day.”
¶6 The State charged Clow with one count of continuous sexual
abuse of a child. At trial, the victim testified that Clow repeatedly touched
and rubbed his penis and did so “[a]bout 24 times.” During follow-up
questioning, the victim clarified that he was unsure of the exact number of
times, but knew it happened “a lot.” Initially, the victim testified that he did
not know when the molestation began, but, later, recalled that he had told
Detective P.E. the touching started at the beginning of August 2014, and
confirmed that he had told her the truth. The victim testified that Clow
touched his penis every day until Mother reported the touching to the
police. Mother testified that she reported the touching to the police on
November 9, 2014.
¶7 After a five-day trial, the jury convicted Clow as charged. The
court sentenced Clow to a term of twenty-five years’ flat time in prison, an
aggravated sentence. Clow timely appealed. We have jurisdiction pursuant
3
STATE v. CLOW
Opinion of the Court
to A.R.S. § 12-120.21(A)(1) (2016), A.R.S. §§ 13-4031 (2010), -4033(A)(1)
(2010).
DISCUSSION
¶8 Clow argues the State presented insufficient evidence to
sustain his conviction for continuous sexual abuse of a child. Specifically,
Clow contends he did not sexually abuse the victim for “a period of three
months or more” as required under the relevant statute, A.R.S. § 13-
1417(A), an issue he raised in his motion for judgment of acquittal. See Ariz.
R. Crim. P. 20.
¶9 We review a trial court’s denial of a Rule 20 motion for a
judgment of acquittal de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250
P.3d 1188, 1191 (2011) (citation omitted). “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 562, ¶ 16, 250 P.3d
at 1191 (quotations and citations omitted). Sufficient evidence upon which
a reasonable jury can convict may be direct or circumstantial. Id. (citation
omitted). A judgment of acquittal is appropriate only when “there is no
substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).
¶10 We also interpret statutes de novo. State v. Neese, 239 Ariz. 84,
86, ¶ 8, 366 P.3d 561, 563 (App. 2016) (citation omitted). When the language
of a statute is clear, “we need not look further to determine the statute’s
meaning and apply its terms as written.” State v. Lee, 236 Ariz. 377, 383, ¶
16, 340 P.3d 1085, 1091 (App. 2014) (citation omitted). Unless the legislature
clearly expresses an intent to give a term a special meaning, we ascribe the
plain and ordinary meaning to statutory terms. State v. Dixon, 216 Ariz. 18,
20, ¶ 7, 162 P.3d 657, 659 (App. 2007) (quotation and citation omitted). “In
determining the ordinary meaning of a word, we may refer to an
established and widely used dictionary.” State v. Mahaney, 193 Ariz. 566,
568, ¶ 12, 975 P.2d 156, 158 (App. 1999) (citation omitted).
¶11 As applicable here, “[a] person who over a period of three
months or more in duration engages in three or more acts [of sexual
conduct, sexual assault, or molestation] with a child who is under fourteen
years of age is guilty of continuous sexual abuse of a child.” A.R.S. § 13-
1417(A). Clow does not challenge the jury’s finding that he perpetrated at
least three qualifying acts of sexual abuse against the victim or that the
victim is a child under fourteen years of age. Instead, his challenge is
4
STATE v. CLOW
Opinion of the Court
confined to the meaning of the phrase “over a period of three months or
more in duration.”
¶12 According to Clow, the term “month” is defined “as the
entirety of the month,” such that “portions of differing months” may not be
combined to constitute a month. Applying this definition to the facts, Clow
contends he only had access to the victim during two entire “months,”
September and October 2014, and during the “portions” of August and
November 2014 when the victim’s family shared his home. Clow contends
that the portions of August and November cannot be added together to
comprise an additional “month” within the meaning of A.R.S. § 13-1417(A).
¶13 Title 13 does not expressly define “month.” Common
definitions of “month” include: (1) one of the twelve divisions of a year; (2)
a period extending from a date in one calendar month to the corresponding
date the next month; (3) four weeks; and (4) thirty days. Webster’s II New
College Dictionary (3d ed. 2005). Under Clow’s interpretation of A.R.S. §
13-1417(A), “month” is defined as one of the twelve divisions of a year.
Although that is a common definition for the term, in application here, such
a construction is untenable. See State v. Barragan-Sierra, 219 Ariz. 276, 282,
¶ 17, 196 P.3d 879, 885 (App. 2008) (explaining courts “employ a common
sense approach” to interpreting a statute, “reading the statute in terms of
its stated purpose and the system of related statutes of which it forms a part,
while taking care to avoid absurd results”) (citations omitted).
¶14 For example, under Clow’s interpretation, a person who
commences sexual abuse of a child on January 2nd and continues to abuse
that child daily until April 29th (118 days) would not be guilty of
continuous sexual abuse of a child because the duration of the abuse
included only two full “months.” In contrast, a person who commences
sexual abuse of a child on January 1st and continues to abuse the child daily
until March 31st (90 days) would be guilty of continuous sexual abuse of a
child because the period of abuse encompassed three full “months.” Thus,
Clow’s interpretation operates to exclude sexual abuse that occurs for a
duration greater than 90 days, but involves partial calendar months, and
such a reading is therefore inconsistent with the intent of the legislation.
¶15 Adopting any of the three remaining common definitions, see
supra ¶ 13, on the other hand, would lead to consistent, logical results.
Therefore, to avoid an absurd result, we conclude a “month,” for purposes
of A.R.S. § 13-1417(A), is a period extending from a date in one calendar
month to the corresponding date the next month. See A.R.S. § 1-211(C)
(2016) (“Penal statutes shall be construed according to the fair import of
5
STATE v. CLOW
Opinion of the Court
their terms, with a view to effect their object and to promote justice.”);
A.R.S. § 1-215, -(23) (Supp. 2016) (if not otherwise expressed, defining
“’month’” to mean calendar month unless “context otherwise requires”).
¶16 In this case, the record reflects that the victim’s family moved
in with Clow on August 2, 2014. The victim testified that the sexual abuse
began in early August and did not end until Mother reported the abuse to
the police, which other evidence shows occurred on November 9, 2014.
This trial record provides sufficient evidence from which a reasonable jury
could find that Clow began sexually abusing the victim by August 9, 2014,
and continued sexually abusing the victim until November 9, 2014.
Therefore, because the trial evidence was sufficient to support the guilty
verdict, Clow has not shown the court erred by denying his motion for
judgment of acquittal.
CONCLUSION
¶17 Clow’s conviction and sentence are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
6