State of Arizona v. Roberto Rosadillo Aguilar ( 2008 )

FILED BY CLERK
MAR 19 2008
IN THE COURT OF APPEALS
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2007-0126
Appellant, ) DEPARTMENT A
)
v. ) OPINION
)
ROBERTO ROSADILLO AGUILAR, )
)
Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20063709
Honorable Stephen C. Villarreal, Judge
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines Tucson
Attorneys for Appellant
Robert J. Hooker, Pima County Public Defender
By Frank P. Leto Tucson
Attorneys for Appellee
P E L A N D E R, Chief Judge.
¶1 In several recent cases, this court has addressed the meaning and effect of
A.R.S. § 13-107, the statute of limitations that applies to criminal actions. See State v.
Gum, 214 Ariz. 397, 153 P.3d 418 (App. 2007); Taylor v. Cruikshank, 214 Ariz. 40, 148
P.3d 84 (App. 2006); State v. Jackson, 208 Ariz. 56, 90 P.3d 793 (App. 2004). In this
appeal by the state, we must once again determine whether a criminal prosecution is time-
barred under § 13-107. The trial court ruled it was and, therefore, dismissed all charges
against defendant/appellee Roberto Aguilar.
¶2 The primary issue raised is whether a reasonable-diligence standard for
discovering that a criminal offense has been committed, as adopted in Jackson, 208 Ariz. 56,
¶¶ 30, 37, 41, 90 P.3d at 802, 803, 804, also applies under § 13-107(E) to the state’s
identification of the suspect to be charged with the crime, as the trial court ruled. For the
reasons stated below, we conclude the court erred in applying Jackson’s reasonable-
diligence standard to subsection (E), which the legislature added in 1997. See 1997 Ariz.
Sess. Laws, ch. 135, § 1. And, contrary to Aguilar’s position, we find no reason to reject
or deviate from Gum. Accordingly, although we affirm the trial court’s dismissal of the
sexual abuse and burglary charges against Aguilar because § 13-107(E) does not apply to
them, we reverse the dismissal of the sexual assault and kidnapping charges against him and
remand the case for further proceedings consistent with this opinion.
Background
¶3 The pertinent facts and procedural background are undisputed. Two different
victims were sexually assaulted in their homes on September 9 and October 12, 1993.
Police officers collected bedding, clothing, and physical evidence from both victims and
crime scenes and also obtained deoxyribonucleic acid (DNA) evidence. At the time, police
could not match the DNA samples to any particular person.
2
¶4 In November 2000, the Tucson Police Department (TPD) joined the Combined
DNA Index System (CODIS), a comprehensive database of DNA samples supplied by local,
state, and national agencies. On November 27, 2002, in an unrelated case, police officers
collected a sample of Aguilar’s DNA. In November 2003, officers asked the TPD crime
laboratory to analyze for a possible match the DNA samples from the earlier, unsolved
sexual assault cases. In March and April 2006, a senior TPD criminalist matched Aguilar’s
DNA with the samples taken from the two 1993 crime scenes. At an evidentiary hearing
held below, the criminalist explained that the delay between 2003 and 2006 had occurred
because the crime laboratory had been “swamped” with handling current cases, processing
samples, and responding to various requests in other cases.
¶5 In October 2006, a grand jury indicted Aguilar on four counts of sexual
assault, three counts of sexual abuse, two counts of kidnapping, and two counts of second-
degree burglary arising from the 1993 crimes. Aguilar moved to dismiss the charges,
contending the prosecution was time-barred under the seven-year statute of limitations
prescribed in § 13-107(B)(1). In response, the state argued the limitations period had not
expired because law enforcement had diligently pursued an indictment and because the
statute did not begin to run until the spring of 2006, when the state actually discovered
Aguilar’s identity. After an evidentiary hearing at which the TPD criminalist testified, the
trial court dismissed all charges, finding them time-barred. We have jurisdiction of the
state’s appeal pursuant to A.R.S. § 13-4032(1).
3
Legal Framework
¶6 The current version of § 13-107(B) is unchanged from 1993, when the crimes
were committed. See 1985 Ariz. Sess. Laws, ch. 223, § 1; see also Taylor, 214 Ariz. 40,
¶ 19, 148 P.3d at 89. It provides:
Except as otherwise provided in this section,
prosecutions for other offenses [not included in § 13-107(A)]
must be commenced within the following periods after actual
discovery by the state or the political subdivision having
jurisdiction of the offense or discovery by the state or the
political subdivision that should have occurred with the exercise
of reasonable diligence, whichever first occurs.
Because all of the charges against Aguilar fall within § 13-107(B)(1), a seven-year
limitations period applies to each.
¶7 In 1997, the legislature amended § 13-107 by adding subsection (E), which
provides: “The period of limitation does not run for a serious offense as defined in [A.R.S.]
§ 13-604 during any time when the identity of the person who commits the offense or
offenses is unknown.” 1997 Ariz. Sess. Laws, ch. 135, § 1. That provision took effect on
July 21, 1997, and applies to charges of sexual assault and kidnapping, both of which are
statutorily defined as serious offenses. § 13-604(W)(4)(e) and (j).
¶8 Seven years after the statute was amended, this court decided Jackson, in
which the alleged victim had for several years denied that any offense had been committed
against her. There, we concluded “the seven-year limitation period under [§ 13-107(B)]
begins ‘when the authorities know or should know in the exercise of reasonable diligence
that there is probable cause to believe a criminal [offense] has been committed.’” 208 Ariz.
56, ¶ 30, 90 P.3d at 802, quoting State v. Wilson, 573 N.W.2d 248, 254 (Iowa 1998)
4
(second alteration in Jackson). We further stated “[p]robable cause exists ‘when reasonably
trustworthy information and circumstance would lead a person of reasonable caution to
believe that a suspect has committed an offense.’” Id. ¶ 31, quoting State v. Hoskins, 199
Ariz. 127, ¶ 30, 14 P.3d 997, 1007-08 (2000).
¶9 In Jackson, assuming any offense had been committed, the identity of the
suspect was known. Id. n.3 & n.14. Therefore, we did not address the question whether it
is the government’s discovery of only an offense or of both the offense and the offender that
triggers the running of the limitations period. Id. n.14. Nor did we address the effect, if any,
of § 13-107(E), because the state conceded that the 1997 statutory amendment did not affect
the case. Jackson, 208 Ariz. 56, n.3, 90 P.3d at 796 n.3.
¶10 Two years after Jackson, this court decided Taylor. There, unlike in Jackson,
the state knew immediately that offenses had been committed. Taylor, 214 Ariz. 40, ¶¶ 3,
5, 148 P.3d at 85, 86. The issue presented in Taylor, and not addressed in Jackson, was
“whether the statute requires discovery of an offense or discovery of the offender.” Id. ¶ 13.
Based on “the language, historical context, and purposes” of § 13-107(B), we concluded
that “the limitation period run[s] from the time the state either discovered or, with the
exercise of reasonable diligence should have discovered, that an offense had been
committed.” Taylor, 214 Ariz. 40, ¶ 27, 148 P.3d at 91. Because the state knew the crimes
in Taylor had been committed in 1994, the indictments filed in 2006, after completion of
DNA analyses, were untimely. Id. ¶¶ 3, 5-6, 29.
¶11 Significantly, in Taylor, as in Jackson, the state did not argue § 13-107(E)
applied to toll the statute of limitations. Rather, the parties agreed that the case was
5
governed by the version of § 13-107 in effect in 1994, when the offenses were committed.
Taylor, 214 Ariz. 40, ¶ 8, 148 P.3d at 86.
¶12 More recently, in Gum, two victims were sexually assaulted in 1991, but the
assailant’s identity was not discovered until 2002. 214 Ariz. 397, ¶¶ 2-3, 153 P.3d at 420.
Shortly thereafter the defendant was indicted. Id. ¶ 4. Upholding the trial court’s refusal
to dismiss the charges as time-barred, Division One of this court concluded that § 13-107(E)
“applies to cases in which the existing limitations period had not yet expired on the
amendment’s effective date” and “extends the limitations period in such cases.” Id. ¶ 13.
The court stated: “Whether characterized as a tolling provision or an extension of the
limitations period, A.R.S. § 13-107(E) serves to extend the limitations period for all offenses
included in subsection (E) for which the limitations period was unexpired on July 21, 1997.”
Gum, 214 Ariz. 397, ¶ 29, 153 P.3d at 426. Because the seven-year limitations period for
Gum’s offenses had not expired by that date and because the sexual assault charges were
serious offenses within subsection (E), the court ruled “the limitations period was extended
and Gum’s prosecution was not time-barred.” Id.
Discussion
¶13 The state argues the trial court erroneously dismissed the sexual assault and
kidnapping charges against Aguilar because the legislature’s addition of § 13-107(E) in 1997
tolled or extended the limitations period for those serious offenses until the state discovered
Aguilar’s identity in 2006 through DNA testing. The state also argues that, contrary to our
holding in Taylor, the limitations period did not commence until “discovery of [both] the
crimes and Defendant’s identity” and, therefore, none of the charges should have been
6
dismissed on limitations grounds. We address those contentions in reverse order, guided by
the following principles.
¶14 “We review an order granting a motion to dismiss criminal charges for an abuse
of discretion or for the application of an incorrect legal interpretation.” State v. Lemming,
188 Ariz. 459, 460, 937 P.2d 381, 382 (App. 1997); see also Taylor, 214 Ariz. 40, ¶ 10,
148 P.3d at 87. We construe criminal statutes of limitations “liberally in favor of the
accused and against the prosecution.” State v. Fogel, 16 Ariz. App. 246, 248, 492 P.2d
742, 744 (1972); see also Taylor, 214 Ariz. 40, ¶ 9, 148 P.3d at 86. When a defendant
“presents some reasonable evidence to support [a statute of limitations defense], the state
bears the burden of establishing by a preponderance of the evidence that the prosecution is
not time barred.” Jackson, 208 Ariz. 56, ¶ 26, 90 P.3d at 800.
¶15 “Interpretation of statutes is subject to our de novo review.” Id. ¶ 13. More
specifically, “[w]hether a particular statute of limitations applies is a question of law, which
we review de novo.” Harris Trust Bank v. Superior Court, 188 Ariz. 159, 162-63, 933
P.2d 1227, 1230-31 (App. 1996); see also Logerquist v. Danforth, 188 Ariz. 16, 18, 932
P.2d 281, 283 (App. 1996) (we “independently review any questions of law relating to the
statute of limitations defense”).
¶16 In interpreting statutes, “our primary goal is to discern and give effect to the
legislature’s intent.” State v. Fell, 203 Ariz. 186, ¶ 6, 52 P.3d 218, 220 (App. 2002).
Under “‘fundamental principles of statutory construction, . . . the best and most reliable
index of a statute’s meaning is its language and, when the language is clear and unequivocal,
it is determinative of the statute’s construction.’” State v. Aguilar, 209 Ariz. 40, ¶ 26, 97
7
P.3d 865, 873 (2004), quoting Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222,
1223 (1991); see also State v. Sepahi, 206 Ariz. 321, ¶ 16, 78 P.3d 732, 735 (2003); State
v. Mangum, 214 Ariz. 165, ¶ 12, 150 P.3d 252, 256 (App. 2007). But, if “the statute’s
language is not clear, we determine legislative intent by reading the statute as a whole, giving
meaningful operation to all of its provisions, and by considering factors such as the statute’s
context, subject matter, historical background, effects and consequences, and spirit and
purpose.” Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996).
A. Commencement of statute of limitations
¶17 Relying on Taylor, the trial court ruled that the seven-year limitations period
began to run on the 1993 offenses on the dates they were committed. Claiming “Taylor was
wrongly decided,” the state challenges that ruling and argues the statute did not begin to run
until the state had discovered not only the crimes but also the assailant’s identity.
Contending it “did not and could not have probable cause to identify [Aguilar] as a suspect
until the DNA match was made in March 2006,” the state argues the indictment was timely
and none of the charges is time-barred.
¶18 In support of its argument, the state points out that § 13-107(B) requires timely
“prosecutions.” Citing Jackson, 208 Ariz. 56, ¶¶ 30-31, 90 P.3d at 801-02, it maintains that
“[a] prosecution requires probable cause 1) that a crime has been committed and 2) that a
certain person committed that crime.” The state also notes that, under § 13-107(C), “a
prosecution is commenced when an indictment, information or complaint is filed,” none of
which can occur until a defendant has been identified. Further, according to the state, the
8
tolling provision in § 13-107(D) “would be meaningless” absent prior knowledge of the
defendant’s identity.1
¶19 In Taylor, this court already considered and rejected virtually identical
arguments. Finding the language of § 13-107(B) unclear, we examined the history and
purpose of the statute, Taylor, 214 Ariz. 40, ¶¶ 13-23, 148 P.3d at 87-90, concluding that,
“under the version of § 13-107 applicable [there], the limitation period begins to run from
the date the authorities knew or should have known the offense was committed.” 214 Ariz.
40, ¶ 19, 148 P.3d at 89. We find no reason to depart from that holding now.2
¶20 Therefore, the trial court correctly determined here that the statute of
limitations began to run on September 9 and October 12, 1993, when the state discovered
the crimes. Any tolling or extension of the limitations period pursuant to § 13-107(E)
applies only to crimes listed as serious offenses in § 13-604. Sexual assault and kidnapping
are listed, but sexual abuse and second-degree burglary are not. See § 13-604(W)(4)(e) and
(j) (formerly A.R.S. § 13-604(U)(2)(e) and (j) (1997)). Accordingly, the sexual abuse and
second-degree burglary charges against Aguilar are subject to the seven-year statute of
limitations in § 13-107(B)(1), which expired on September 9 and October 12, 2000, long
1
Section 13-107(D) states: “The period of limitation does not run during any time
when the accused is absent from the state or has no reasonably ascertainable place of abode
within the state.”
2
In Gum, 214 Ariz. 397, ¶ 11 & n.3, 153 P.3d at 421 & n.3, the court “agree[d] with
Taylor’s holding” and, “[f]or the reasons set forth in Taylor,” disagreed with the trial court’s
finding in Gum “that the limitations period did not commence until authorities discovered
the identity of the offender.”
9
before he was indicted. We affirm the court’s dismissal of those particular counts as time-
barred.
B. Tolling of limitations period
¶21 Stating it was “attempt[ing] to reconcile” Taylor with Gum, the trial court
ruled that the running of the statute of limitations was tolled by the enactment of § 13-
107(E) in 1997, but only “until the time that the State should reasonably be able to identify
the offender,” that is, until the state had probable cause to charge Aguilar. Relying on Gum,
the state argues it may prosecute Aguilar on the sexual assault and kidnapping charges
because § 13-107(E) applies to those charges and tolled or extended the limitations period
until Aguilar was identified as the offender. Aguilar, however, responds that applying § 13-
107(E) to him would “violat[e] Arizona case law, A.R.S. § 1-244 and § 1-249, and the Ex
Post Facto Clause of the Arizona and U[nited] S[tates] Constitutions.” See U.S. Const. art.
I, § 9, cl. 3; U.S. Const. art. I, § 10, cl. 1; Ariz. Const. art. II, § 25.
¶22 Although the trial court did not expressly address Aguilar’s various statutory
and constitutional arguments in dismissing the charges against him, we can uphold the
court’s ruling if it was legally correct on any ground, even if the court’s reasoning was not.
See State v. Cañez, 202 Ariz. 133, ¶ 51, 42 P.3d 564, 582 (2002) (“we are obliged to
uphold the trial court’s ruling if legally correct for any reason”); State v. King, 213 Ariz.
632, ¶ 8, 146 P.3d 1274, 1277 (App. 2006). Because we agree with the state and the trial
court that, under Gum, § 13-107(E) at least applies to toll the limitations period as of the
subsection’s effective date, we address Aguilar’s contention that Gum was “wrongly decided
and [is] inapplicable to [this] case.” We address his statutory arguments first because, if
10
correct, “[they] would obviate the need to reach the constitutional issues he raises.” Emmett
McLoughlin Realty, Inc. v. Pima County, 212 Ariz. 351, n.2, 132 P.3d 290, 293 n.2 (App.
2006).
1. Statutory claims
¶23 Aguilar contends the court in Gum deviated from the reasoning and result in
Garcia v. Browning, 214 Ariz. 250, 151 P.3d 533 (2007), and “ignored the clear and
unambiguous text of A.R.S. § 1-244,” which provides that “[n]o statute is retroactive unless
expressly declared therein.” We disagree. Though not “‘absolutely bound’” by Gum, we
adopt its reasoning and result here because we cannot say the decision rests “‘upon clearly
erroneous principles, or conditions have changed so as to render [it] inapplicable.’”
Danielson v. Evans, 201 Ariz. 401, ¶ 28, 36 P.3d 749, 757 (App. 2001), quoting Castillo
v. Indus. Comm’n, 21 Ariz. App. 465, 471, 520 P.2d 1142, 1148 (1974). In fact, we find
the result in Gum not only compatible with Garcia but also wholly consistent with
retroactivity principles recognized in Arizona and elsewhere.
¶24 As Aguilar correctly notes, when adding subsection (E) to § 13-107, the
legislature did not expressly state “that the amendment was to have a retroactive
application.” Absent any such express declaration, Aguilar argues, applying the amendment
retroactively to him would violate the clear prohibition in § 1-244. See Garcia, 214 Ariz.
250, ¶ 19, 151 P.3d at 537 (“§ 1-244 plainly requires an express declaration from the
legislature before a law can apply retroactively”); see also State v. Coconino County
Superior Court (Mauro), 139 Ariz. 422, 427, 678 P.2d 1386, 1391 (1984) (statutory
11
changes to Arizona’s insanity defense, A.R.S. § 13-502, did not apply to defendant when
no clear expression of “legislative intent to make the new provisions retroactive”).
¶25 Assuming that is so, “[a]lthough the mandate of A.R.S. § 1-244 is clear, that
does not end our analysis.” Garcia, 214 Ariz. 250, ¶ 12, 151 P.3d at 536. Rather, we must
determine whether the state’s reliance on § 13-107(E) to extend the allowable time for
charging Aguilar necessarily results in retroactive application of the new statute to him. See
id. As the court stated in Garcia, “[a] statute is not necessarily ‘“retroactive in application
simply because it may relate to antecedent facts.”’” 214 Ariz. 250, ¶ 12, 151 P.3d at 536,
quoting Aranda v. Indus. Comm’n, 198 Ariz. 467, ¶ 24, 11 P.3d 1006, 1011 (2000),
quoting Tower Plaza Invs. Ltd. v. DeWitt, 109 Ariz. 248, 250, 508 P.2d 324, 326 (1973);
see also Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994). Rather, “legislation may
not disturb vested substantive rights by retroactively changing the law that applies to
completed events.” San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, ¶ 15, 972
P.2d 179, 189 (1999). And, “[a] statute is not impermissibly retroactive if it is merely
procedural and does not affect an earlier established substantive right.” Gum, 214 Ariz.
397, ¶ 23, 153 P.3d at 424, citing In re Shane B., 198 Ariz. 85, ¶ 8, 7 P.3d 94, 96 (2000);
see also State v. Warner, 168 Ariz. 261, 264, 812 P.2d 1079, 1082 (App. 1990) (although
legislation generally will only apply prospectively, “the rule is otherwise where the
legislation is merely procedural in nature and does not affect substantive rights”).
¶26 Aguilar essentially claims to have a vested, substantive right to assert a
limitations defense to all charges based on the pre-1997 version of § 13-107 in effect at the
time the offenses were committed, unaffected by the 1997 amendment in § 13-107(E). But
12
a criminal statute is generally deemed substantive if it “‘defines a crime or involves the
length or type of punishment.’” In re Shane B., 198 Ariz. 85, ¶ 9, 7 P.3d at 97, quoting
Lamb v. Kansas Parole Bd., 812 P.2d 761, 764 (Kan. Ct. App. 1991); see also Gum, 214
Ariz. 397, ¶ 24, 153 P.3d at 425. Section 13-107(E) does not fall within that category in
that it does not alter the elements of an offense, redefine a crime or substantive defense in
some other manner, reallocate burdens of proof, or otherwise affect a substantive right such
as the length or type of punishment that might be imposed for prior conduct. And, as in
Gum, Aguilar’s “limitations defense had not vested at the time the 1997 amendment became
effective.” 214 Ariz. 397, ¶ 28, 153 P.3d at 425. In short, at that point in time, Aguilar had
no vested, substantive right to any fixed or unchangeable statute of limitations because “the
seven-year period had not expired” and, therefore, he “could not have asserted a valid
limitations defense.” Id.
¶27 We also agree with the suggestion in Gum that § 13-107(E) constitutes a
procedural change in the law and, as such, does not raise retroactivity concerns. See 214
Ariz. 397, ¶¶ 23-24, 153 P.3d at 424-25. The United States Supreme Court has observed
that “[c]hanges in procedural rules may often be applied in suits arising before their
enactment without raising concerns about retroactivity.” Landgraf, 511 U.S. at 275.
“Because rules of procedure regulate secondary rather than primary conduct,” the Court
stated, “the fact that a new procedural rule was instituted after the conduct giving rise to the
suit does not make application of the rule at trial retroactive.” Id. But even if it did, our
supreme court has stated that “‘[e]nactments that are procedural only, and do not alter or
affect earlier established substantive rights may be applied retroactively.’” City of Tucson
13
v. Clear Channel Outdoor, Inc., 209 Ariz. 544, ¶ 11, 105 P.3d 1163, 1166 (2005), quoting
Aranda, 198 Ariz. 467, ¶ 11, 11 P.3d at 1009; see also In re Shane B., 198 Ariz. 85, ¶ 8,
7 P.3d at 96. Moreover, “Arizona courts have traditionally viewed statutes of limitations as
procedural for retroactivity purposes.” Clear Channel Outdoor, 209 Ariz. 544, ¶ 11, 105
P.3d at 1167. Therefore, even if application of § 13-107(E) to Aguilar results in the statute
being given retroactive effect, Arizona law would not necessarily prohibit it.
¶28 Aguilar correctly points out that Arizona courts have characterized the
criminal statute of limitations in § 13-107 as jurisdictional. See Taylor, 214 Ariz. 40, ¶ 9,
148 P.3d at 86; Jackson, 208 Ariz. 56, ¶ 18, 90 P.3d at 798. That a statute relates to a
court’s jurisdiction, however, does not necessarily mean the statute is substantive rather than
procedural in nature. See ¶ 26, supra, see also Landgraf, 511 U.S. at 274 (Court noted it
had “regularly applied intervening statutes conferring or ousting jurisdiction, whether or not
jurisdiction lay when the underlying conduct occurred or when the suit was filed,” “because
jurisdictional statutes ‘speak to the power of the court rather than to the rights or obligations
of the parties.’”), quoting Republic Nat’l Bank v. United States, 506 U.S. 80, 100 (1992)
(Thomas, J., concurring); Tex. Tech Univ. Health Sciences Ctr. v. Lucero, 234 S.W.3d 158,
166 (Tex. App. 2007) (“A statute conferring or ousting jurisdiction applies to existing suits
because such laws generally do not affect substantive rights.”); Tex. Dep’t of Criminal
Justice v. Simons, 197 S.W.3d 904, 907 (Tex. App. 2006) (“jurisdictional statutes are
procedural”). And even if a new procedural statute affects a court’s jurisdiction, but not “an
earlier established substantive right,” Gum, 214 Ariz. 397, ¶ 23, 153 P.3d at 424, it may be
14
applied to legal proceedings in which pre-statute conduct is at issue without implicating or
violating retroactivity principles. See Landgraf, 511 U.S. at 275.
¶29 Analysis of the concept relating to “completed events,” San Carlos Apache
Tribe, 193 Ariz. 195, ¶ 15, 972 P.2d at 189, also supports our conclusion that application
of § 13-107(E) to Aguilar does not produce an illegal retroactive effect. In analyzing
whether the statute at issue in Garcia was impermissibly applied retroactively, in violation
of § 1-244, our supreme court implicitly differentiated primary from secondary conduct.
The court said if a new law “regulates primary conduct, then it cannot be applied to
antecedent acts” absent an express legislative declaration. Garcia, 214 Ariz. 250, ¶ 12, 151
P.3d at 536. And, the court further stated, “Arizona cases have consistently held that the
date of the offense is the operative event for retroactivity analysis when a new statute
regulates primary conduct.” Id. ¶ 14.
¶30 The two Arizona cases the Garcia court cited for that proposition, however,
did not expressly use or define the phrase “primary conduct.” See In re Shane B., 198 Ariz.
85, ¶ 7, 7 P.3d at 96; Mauro, 139 Ariz. at 427, 678 P.2d at 1391. The Garcia court also
cited Justice Scalia’s concurring opinion in Landgraf, 511 U.S. at 291, in which he stated,
“[m]ost statutes are meant to regulate primary conduct, and hence will not be applied in
trials involving conduct that occurred before their effective date.” In that same passage,
however, Justice Scalia also stated “other statutes have a different purpose and therefore a
different relevant retroactivity event,” noting that “[t]he critical issue . . . is not whether the
rule affects ‘vested rights,’ or governs substance or procedure, but rather what is the relevant
activity that the rule regulates.” Id. at 291 (Scalia, J., concurring in the judgments). And,
15
as noted above, the majority opinion in Landgraf recognized that procedural laws, such as
statutes of limitations, “regulate secondary rather than primary conduct” and, therefore, do
not pose retroactivity concerns. 511 U.S. at 275.
¶31 Unlike this case and Gum, Garcia did not involve an amended statute of
limitations.3 But other jurisdictions that have addressed retroactivity questions in the context
of newly enacted statutes of limitations have noted, “[i]n applying legislatively amended
periods of limitation, courts typically construe them as ‘govern[ing] the secondary conduct
of filing suit, not the primary conduct of the [parties].’” Cook v. Stegall, 295 F.3d 517, 520
(6th Cir. 2002), quoting St. Louis v. Tex. Worker’s Comp. Comm’n, 65 F.3d 43, 46 (5th
Cir. 1995) (alterations in Cook); see also Brown v. Angelone, 150 F.3d 370, 373 (4th Cir.
1998); W.R. Huff Asset Mgmt. Co. v. Kohlberg Kravis Roberts & Co., 234 F. Supp. 2d
1218, 1226 (N.D. Ala. 2002); Grygorwicz v. Trujillo, 140 P.3d 550, 555 (N.M. Ct. App.
2006). Consistent with these authorities, we conclude the “primary conduct” here consisted
solely of the criminal offenses with which Aguilar is charged. But the legislature’s 1997
amendment in § 13-107(E) merely “govern[s] the secondary conduct” of the state’s filing
of those charges, “not the primary conduct” of the unlawful acts underlying this prosecution.
3
The statutory amendments addressed in Garcia related to justification defenses and
“not only shift[ed] the burden of proof from the defendant to the state, . . . but also
declar[ed] that conduct that is justified ‘does not constitute criminal or wrongful conduct.’”
Garcia v. Browning, 214 Ariz. 250, ¶ 14, 151 P.3d 533, 536 (2007), quoting A.R.S. § 13-
205(A). In contrast, as the court concluded in Gum and as we discuss below, § 13-107(E)
does not “regulate[] primary conduct.” Id.; see also Gum, 214 Ariz. 397, ¶ 27, 153 P.3d
at 425.
16
Cook, 295 F.3d at 520, quoting St. Louis, 65 F.3d at 46; see also Landgraf, 511 U.S. at
275; see also Gum, 214 Ariz. 397, ¶ 27, 153 P.3d at 425.
¶32 We are not persuaded by Aguilar’s related argument that application of § 13-
107(E) to him is impermissibly retroactive because it “alters the legal consequences that
attached to [his] conduct at the time it was committed.” Garcia, 214 Ariz. 250, ¶ 14, 151
P.3d at 536. That standard for determining retroactivity inevitably requires a determination
of the relevant “completed event[],” San Carlos Apache Tribe, 193 Ariz. 195, ¶ 15, 972
P.2d at 189, or “primary conduct.” Garcia, 214 Ariz. 250, ¶ 14, 151 P.3d at 536. The
“completed event” for purposes of our retroactivity analysis is not, as Aguilar urges, the
offenses committed in 1993; rather, as the court in Gum concluded, “the operative event for
the purpose of precluding the use of § 13-107(E) to extend the limitations period was . . .
the date when [Aguilar’s] limitations defense would have vested,” that is, seven years after
the offense date. 214 Ariz. 397, ¶ 27, 153 P.3d at 425. And, as we concluded above, § 13-
107(E) only regulates secondary conduct, not any primary conduct that resulted in this
prosecution.
¶33 Moreover, as Justice Scalia noted in his concurring opinion in Landgraf, “the
test [for retroactivity] as being ‘whether the new provision attaches new legal consequences
to events completed before its enactment’” was “borrowed directly from [the Court’s] Ex
Post Facto Clause jurisprudence.” 511 U.S. at 290 (Scalia, J., concurring in the judgments).
And, as discussed below, federal and state courts have uniformly rejected arguments, such
as Aguilar’s, that application of new statutes of limitations to past crimes violates ex post
facto principles, provided the prosecution is not already time-barred when the new statute
17
becomes effective. See ¶ 42, infra. That is particularly important inasmuch as “[t]he Ex
Post Facto Clause flatly prohibits retroactive application of penal legislation.” Landgraf,
511 U.S. at 266. Because the “alteration of legal consequence” test emanates directly from
ex post facto jurisprudence, and because courts applying that test have consistently rejected
ex post facto challenges to legislative extensions of unexpired statutes of limitations in
criminal cases, we see no reason to apply the test differently under § 1-244. A fair reading
of Garcia and the cases on which it relied does not support that type of variation and
inconsistency.
¶34 Nor do the other cases cited in Garcia support a conclusion that application
of § 13-107(E) to Aguilar would somehow violate § 1-244. For example, in Zuther v. State,
199 Ariz. 104, ¶ 21, 14 P.3d 295, 302 (2000), the court concluded that Arizona’s new,
inmate “gate money” statute could be applied to Zuther without violating retroactivity
principles. The court ruled that the relevant “completed event” was not the crime he had
committed, but rather, “the completion of all requirements necessary to make an inmate
eligible for release from prison.” Id. ¶ 15. That was so, the court noted, “because nothing
is due any inmate until the date of release.” Id. ¶ 16. Similarly, for statute of limitations
purposes, “nothing is due” a defendant who seeks dismissal based on the prosecution being
time-barred unless and until the limitations period has, in fact, expired. Id.; see also
Longhibler v. State, 832 S.W.2d 908, 909 (Mo. 1992) (prosecution not time-barred when
“limitations period was extended before it lapsed”); Grygorwicz, 140 P.3d at 555
(distinguishing cases “in which the cause of action was already barred by preexisting law
before the amendment of the law enlarging the time in which the action may be
18
commenced”); Rice v. Louis A. Williams & Assocs., 86 S.W.3d 329, 335-36 (Tex. App.
2002) (defendant has vested right to assert limitations defense based on prior statute if action
already time-barred when new statute of limitations takes effect).
¶35 In our view, the court in Gum correctly adhered to these principles in
concluding that no violation of § 1-244 resulted from applying § 13-107(E) to prosecutions
for which the statute of limitations had not yet expired as of the amendment’s effective date.
As the court noted, application of subsection (E) to extend the limitations period under
those circumstances neither “disturbs vested substantive rights by retroactively changing the
law that applies to completed events” nor “regulates primary conduct.” Gum, 214 Ariz.
397, ¶¶ 26, 27, 153 P.3d at 425. Likewise, we find no violation of § 1-244 in this case.
¶36 Still, citing Garcia, 214 Ariz. 250, ¶ 14, 151 P.3d at 536, Aguilar contends
his “right to interpose the jurisdictional requirement of timely prosecution vested at the time
the State discovered the offenses in question.” He argues the court in Gum erroneously
“reli[ed] on the civil law concept of vested rights” in concluding that “Gum’s limitations
defense had not vested at the time the 1997 amendment became effective.” Gum, 214 Ariz.
397, ¶ 28, 153 P.3d at 425; see also id. ¶ 26, citing San Carlos Apache Tribe, 193 Ariz.
195, ¶ 15, 972 P.2d at 189; Hall v. A.N.R. Freight Sys., Inc., 149 Ariz. 130, 139-40, 717
P.2d 434, 443-44 (1986). But in Garcia, which arose from an underlying criminal case, our
supreme court drew on civil case law in determining that “applying the amended statutes
[t]here to conduct that occurred before [the effective date of those amendments], alters the
legal consequences that attached to such conduct at the time it was committed, giving the
statutes retroactive effect.” 214 Ariz. 250, ¶ 14, 151 P.3d at 536, citing Zuther, 199 Ariz.
19
104, ¶ 15, 14 P.3d at 300; San Carlos Apache Tribe, 193 Ariz. 195, ¶ 15, 972 P.2d at 189;
Tower Plaza Invs. Ltd., 109 Ariz. at 250, 508 P.2d at 326.
¶37 Moreover, even if civil law principles of vested rights do not squarely apply
to Aguilar’s argument under § 1-244, we find support in neither Garcia nor the other cases
he cites for the assertion that his “rights under the pre-1997 statute of limitations fully vested
when the police discovered his offense.”4 Rather, as noted earlier, we agree with the Gum
court’s observation that, “unlike the statute at issue in Garcia, amended § 13-107 does not
regulate primary or any other conduct or attach new legal consequences” to the 1993
offenses for which Aguilar is charged. 214 Ariz. 397, ¶ 27, 153 P.3d at 425. In sum,
applying § 13-107(E) to toll or extend the running of the limitations period, when that
period had not yet expired as of the effective date of subsection (E), does not violate § 1-
244.5
4
See Garcia, 214 Ariz. 350, ¶ 14, 151 P.3d at 536; State v. Moody, 208 Ariz. 424,
¶ 191, 94 P.3d 1119, 1161 (2004) (change in law on temporary intoxication “was
substantive because it deprived Moody of a defense” and, therefore, did not apply to his
case); State v. Correll, 148 Ariz. 468, 481-82, 715 P.2d 721, 734-35 (1986) (retroactive
application of new, statutory sentencing aggravator violated constitutional ex post facto
prohibition); State v. Coconino County Superior Court, 139 Ariz. 422, 427, 678 P.2d
1386, 1391 (1984) (change in statute on insanity defense not retroactive).
We acknowledge that, in Taylor, this court “agree[d]” with “[t]he parties[’]
5
agree[ment] that the applicable statute of limitation is the statute in effect when the offenses
were committed.” 214 Ariz. 40, ¶ 8, 148 P.3d at 86; see also State v. Escobar-Mendez, 195
Ariz. 194, n.6, 986 P.2d 227, 231 n.6 (App. 1999) (citing Martin and noting that § 13-
107(E) “does not apply to the present case because statutes of limitations only apply to
offenses committed after their adoption”). That statement in Taylor, however, was merely
based on the parties’ accord rather than on any extensive analysis. And, because the
statement was unnecessary to this court’s reasoning or result in Taylor, it was merely
dictum. See Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324,
1327 (1981) (dictum is court’s statement on question not necessarily involved in case, is
20
¶38 Martin v. Superior Court, 135 Ariz. 99, 659 P.2d 652 (1983), does not alter
our conclusion. At oral argument in this court, Aguilar contended Martin was “on all fours
with this case and absolutely controls the outcome.” We disagree. The court in Martin held
that the then-new version of § 13-107, which extended the statute of limitations for felonies
from five years to seven years, “applies only to those offenses allegedly committed on or
after the new criminal code’s effective date of October 1, 1978.” Id. at 100, 659 P.2d at
653. That holding, however, was based solely on several clear legislative pronouncements
in the session laws relating to enactment of the 1978 criminal code. See id., quoting 1977
Ariz. Sess. Laws, ch. 142, § 179(A), (C). According to the court, those express provisions
made “clear that the legislature has directed that the new criminal code shall only operate
prospectively.” Id.
¶39 As noted in Gum, 214 Ariz. 397, ¶ 20, 153 P.3d at 424, no such directive
accompanied the legislature’s 1997 amendment of § 13-107 adding subsection (E).
Moreover, the result in Martin was not based on § 1-244 or on any broad, generally
established, common-law rule that the statute of limitations in effect at the time of an offense
“without force of adjudication,” and “not controlling as precedent”). In addition, this court
noted in Jackson, albeit again in dicta, that “the tolling provision in current § 13-107(E)
now controls cases in which serious offenses have been committed by unidentified persons.”
208 Ariz. 56, n.14, 90 P.3d at 801 n.14. After oral argument in this court, Aguilar filed
supplemental authorities for the propositions that “it is the court’s duty to decide the
applicable law” and that “[p]arties cannot properly bind the court as to the law governing
their case.” State v. Stone, 151 Ariz. 455, 460, 728 P.2d 674, 679 (App. 1986). Although
we certainly agree with those propositions, we disagree with Aguilar’s apparent suggestion
that the statements in ¶ 8 of Taylor are not dicta. And to the extent Taylor, Escobar-
Mendez, or any other court of appeals’ decision supposedly announces a broad common-law
rule that a statute of limitations in effect at the time of a criminal offense is necessarily frozen
and beyond legislative change as applied to that offense, we also disagree.
21
is the only statute that governs and applies to any prosecution for that offense. Accordingly,
for these reasons and those discussed in Gum, 214 Ariz. 397, ¶¶ 18-21, 153 P.3d at 423-24,
we likewise find Martin distinguishable and not controlling here.
¶40 Citing A.R.S. § 1-249 and Brunet v. Murphy, 212 Ariz. 534, 135 P.3d 714
(App. 2006), Aguilar alternatively argues that his “right to the seven year statute of
limitation protection accrued when the police discovered the offenses in question in
September and October 1993,” even if that right was not fully vested at that time. Section
1-249, provides: “No action or proceeding commenced before a repealing act takes effect,
and no right accrued[,] is affected by the repealing act, but proceedings therein shall
conform to the new act so far as applicable.” On its face, however, § 1-249 does not apply
here because there is no “repealing act,” only the addition of subsection (E) to § 13-107.
Moreover, even if the concept of an “accrued right” applies in this context, any right Aguilar
might have had to a dismissal of the charges against him on statute-of-limitations grounds
did not arise or become enforceable until 2000, three years after § 13-107(E) was enacted.
See Black’s Law Dictionary 22 (8th ed. 2004) (defining “accrue” as “[t]o come into
existence as an enforceable claim or right; to arise”). Therefore, even assuming the addition
of subsection (E) constituted a “repealing act,” Aguilar had no accrued right to exclusion
from any post-1993 change in the applicable statute of limitations.
¶41 Our conclusion is not altered by Brunet. The statutory amendments at issue
there “eliminated the right under the [prior statute] to sue physicians unless they belonged
to one of the limited categories designated by the statute.” 212 Ariz. 534, ¶ 5, 135 P.3d at
716. Because the statutory amendments addressed in Brunet expressly “eliminate[d] [a]
22
previously existing right,” they were deemed “repealing acts.” Id. ¶¶ 22, 23. Moreover, the
court’s conclusion in Brunet that § 1-249 prevented the new statute from barring the estate’s
accrued cause of action was based on the long-standing principle that personal injury claims
accrue upon actual or constructive discovery of an injury. See id. ¶ 21. That principle has
no application here and does not support Aguilar’s claim that he has an accrued right to a
particular statute of limitations, frozen in time as of the offense date.
2. Constitutional claim
¶42 Having rejected Aguilar’s statutory arguments, we now turn to his
constitutional claim. He urges us to affirm the trial court’s ruling based on ex post facto
principles, contending “retroactive application of amended A.R.S. § 13-107(E) to the
circumstances of [this] case would violate” both the federal and the state constitutions. See
U.S. Const. art. I, § 9, § 10, cl. 1; Ariz. Const. art. II, § 25. The court in Gum squarely
addressed and rejected an identical argument. 214 Ariz. 397, ¶¶ 14-17, 155 P.3d at 422-23.
As the Gum court stated, “Extension of the limitations period does not criminalize
previously innocent conduct, does not increase the punishment for an existing crime, and
as applied to Gum’s case, does not deprive him of any defense available according to the law
at the time he committed the crimes.” Id. ¶ 14. Because we agree with that reasoning and
with the many courts that have rejected ex post facto arguments in similar cases,6 we likewise
6
See Gum, 214 Ariz. 397, n.7, 155 P.3d at 422 n.7 (citing numerous cases upholding
amended statutes of limitation against challenges on ex post facto grounds); see also
Longhibler v. State, 832 S.W.2d 908, 909 (Mo. 1992) (no ex post facto violation when “the
original three-year period had not expired at the time the new ten-year statute of limitations
was enacted”); cf. Stogner v. California, 539 U.S. 607, 618 (2003) (implicitly approving
numerous federal and state cases that “have upheld extensions of unexpired statutes of
23
conclude that “neither the United States Constitution nor the Arizona Constitution is
violated by the application of A.R.S. § 13-107(E)” to the state’s prosecution here. Gum,
214 Ariz. 397, ¶ 17, 155 P.3d at 423.
C. Recommencement of limitations period
¶43 The final issue we must address is what “re-triggers” the limitations period to
begin running again, or anew, for prosecution of crimes covered by § 13-107(E).7 Citing
Jackson, the trial court ruled that the 1997 statutory amendment “causes the running of the
Statute to be tolled until the time that the State should reasonably be able to identify the
offender.” Engrafting a “reasonable due diligence” requirement and probable-cause
standard onto § 13-107(E), the court further ruled the limitations period here “was re-
triggered on November 27, 2002,” the date on which “the exercise of reasonable due
diligence would have given rise to probable cause to charge” Aguilar. As of that date, the
court noted, the state “had access to all of the following: the crime scene samples, the
limitations” to criminal prosecutions, provided “the prior limitations periods have not
expired” when new law took effect); id. at 634 (Kennedy, J., dissenting) (same and citing
additional cases in which “extensions of unexpired statutes of limitations” were upheld
against ex post facto challenges).
7
Having concluded that § 13-107(E) applies to the state’s prosecution of Aguilar on
the sexual assault and kidnapping charges, and because those charges were not time-barred
when subsection (E) took effect, arguably that amendment provided a new, seven-year
“period of limitation” that was unaffected by the time between the date the offenses were
committed and the amendment’s effective date. § 13-107(E). In other words, the limitations
period arguably did not start to run until the identity of the person who allegedly had
committed the offenses was known. We do not address or decide that issue here, however,
because it is unnecessary for us to do so.
24
CODIS database, and a known sample of [Aguilar’s] DNA,” “albeit pursuant to a different
case.”
¶44 In challenging that ruling, the state argues § 13-107(E) imposes “no
requirement that the State exercise reasonable diligence in discovering the person’s identity.”
Therefore, the state asserts, “the [limitations] time should not have been re-triggered until
the day the State had actual knowledge of [Aguilar’s] identity—in March 2006.” Based on
the plain, unambiguous language of § 13-107(E), we agree.
¶45 For serious offenses such as sexual assault and kidnapping, see § 13-
604(W)(4)(e) and (j), “[t]he period of limitation does not run . . . during any time when the
identity of the person who commits the offense or offenses is unknown.” § 13-107(E).
When “a statute’s language is clear and unambiguous, we must give effect to that language
and need not employ other rules of statutory construction.” State v. Riggs, 189 Ariz. 327,
333, 942 P.2d 1159, 1165 (1997); see also Cundiff v. State Farm Mut. Auto. Ins. Co., 217
Ariz. 358, ¶ 8, 174 P.3d 270, 272 (2008) (“When the language of a statute is clear and
unambiguous, a court should not look beyond the language, but rather ‘simply “apply it
without using other means of construction,” assuming that the legislature has said what it
means.’”), quoting Hughes v. Jorgenson, 203 Ariz. 71, ¶ 11, 50 P.3d 821, 823 (2002),
quoting UNUM Life Ins. Co. v. Craig, 200 Ariz. 327, ¶ 12, 26 P.3d 510, 513 (2001);
Sepahi, 206 Ariz. 321, ¶ 16, 78 P.3d at 735; Taylor, 214 Ariz. 40, ¶ 10, 148 P.3d at 87
(“the best evidence” of legislature’s intent “is the statutory language”).
¶46 When construing more than one subsection of a statute, “[w]e presume the
legislature did not intend to write a statute that contains a void, meaningless, or futile
25
provision.” State v. Pitts, 178 Ariz. 405, 407, 874 P.2d 962, 964 (1994); see also Taylor,
214 Ariz. 40, ¶ 18, 148 P.3d at 88-89. “[W]e look to the statute as a whole and give
harmonious effect to all its sections.” State v. Ball, 157 Ariz. 382, 384, 758 P.2d 653, 655
(App. 1988).
¶47 As Aguilar acknowledges, the trial court “based its re-triggering of the statute
of limitations” on Jackson “by finding the police should have had probable cause to act at
the time they obtained [Aguilar’s] DNA sample.” According to Aguilar, the court’s
“synthesis of Arizona statutory and case law is not inappropriate.” We disagree.
¶48 In our view, because § 13-107(E) is “clear and unambiguous,” it is not
reasonably susceptible to the judicial gloss the trial court superimposed on it. Riggs, 189
Ariz. at 333, 942 P.2d at 1165; see also Cundiff, 217 Ariz. 358, ¶ 8, 174 P.3d at 272. As
the state points out, the “discovery” and “reasonable diligence” language found in § 13-
107(B) is noticeably absent from § 13-107(E). In other words, as the state correctly argues,
§ 13-107(E) “does not require constructive knowledge or reasonable diligence, as subsection
(B) does—only actual knowledge.” If the legislature had intended to qualify subsection (E)
by implicitly imposing a reasonable-diligence requirement on the state so that the time-
limitations clock would begin to run again as soon as the state should have been able to
identify a suspect, the legislature presumably would have said that expressly. It did not. See
State v. Jennings, 150 Ariz. 90, 93, 722 P.2d 258, 261 (1986) (“If the legislature had
intended to have [certain] language,” found in one statute but not in related statute, “apply
to both [statutes], it could have simply placed it in both sections.”). Absent any such
26
qualifying language, we will not deviate from the statute’s plain wording by imposing
conditions or requirements that the legislature did not see fit to impose.
¶49 We also find misplaced the trial court’s reliance on Jackson in imposing a
reasonable-diligence requirement on § 13-107(E). Jackson dealt solely with the meaning
and effect of § 13-107(B), which contains express “discovery” and “reasonable diligence”
language. Unlike this case, in Jackson the identity of the alleged offender was not in issue,
and the state conceded that § 13-107(E) did not affect that particular case. 208 Ariz. 56,
nn.3,14, 90 P.3d at 796 n.3, 801 n.14. Again, under § 13-107(E), the limitations period
begins to run only when the state acquires actual knowledge of the offender’s identity, not
merely constructive knowledge based on what it could or should have known had it
exercised reasonable diligence.8
¶50 In addition, engrafting a reasonable-diligence requirement onto § 13-107(E)
would directly negate its express provision that the limitations period “does not run . . .
during any time that the identity of the person who commits the offense or offenses is
unknown,” undermining the contrary presumption our case law requires. See Pitts, 178
Ariz. at 407, 874 P.2d at 964. On the other hand, by recognizing that the legislature
deliberately imposed such a requirement on the discovery of less serious offenses under
8
As Aguilar suggests, this statutory rule arguably undermines the various policy
factors on which criminal statutes of limitations are based. See Taylor, 214 Ariz. 40, ¶¶ 20-
21, 148 P.3d at 89-90; Jackson, 208 Ariz. 56, n.5, 90 P.3d at 796 n.5. “But when, as here,
the legislature has clearly spoken on a matter within its domain, its word constitutes public
policy on that subject and controls, assuming no constitutional impediments exist.” Taylor
v. Graham County Chamber of Commerce, 201 Ariz. 184, ¶ 27, 33 P.3d 518, 525 (App.
2001).
27
§ 13-107(B) but imposed no such conditions for serious offenses under § 13-107(E), we
ascribe meaning to both subsections. See Pitts, 178 Ariz. at 407, 874 P.2d at 964.
¶51 In this case, the limitations period began to run when the two incidents
occurred on September 9 and October 12, 1993. See Taylor, 214 Ariz. 40, ¶ 19, 148 P.3d
at 89. Because the limitations period had not yet expired when § 13-107(E) took effect on
July 21, 1997, the running of the statute, at a minimum, was tolled until the state actually
discovered Aguilar’s identity in March and April 2006. See Gum, 214 Ariz. 397, ¶¶ 28-29,
153 P.3d at 425-26; 1997 Ariz. Sess. Laws, ch. 135, § 1; see also n.7, supra. Only then did
the seven-year limitations period recommence, or begin to run anew, see n.7, supra, making
the charges filed in October 2006 timely. Accordingly, we reverse the trial court’s order
dismissing the sexual assault and kidnapping charges against Aguilar.
Disposition
¶52 For the reasons stated above, we affirm the trial court’s dismissal of all counts
charging sexual abuse and second-degree burglary. We reverse the dismissal of the sexual
assault and kidnapping charges, however, and remand the case for further proceedings
consistent with this opinion.
____________________________________
JOHN PELANDER, Chief Judge
CONCURRING:
____________________________________
JOSEPH W. HOWARD, Presiding Judge
28
____________________________________
J. WILLIAM BRAMMER, JR., Judge
29