In Re Jerry C

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) In re JERRY C. 1 CA-JV 06-0104 DEPARTMENT A OPINION FILED 1/25/07 Appeal from the Superior Court in Mohave County Cause No. JV 2005-7037 The Honorable Richard Weiss, Judge AFFIRMED _______________________________________________________________ Phillips & Associates, P.C. By Alan R. Hock Attorneys for Juvenile Phoenix Matthew J. Smith, Mohave County Attorney By Jason R. Mullis, Deputy County Attorney Attorneys for Appellee Kingman K E S S L E R, Judge ¶1 Jerry adjudication C. ( Jerry ) finding him appeals delinquent the on juvenile three court s counts of molestation of a child in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1410 (2001). He contends the juvenile court molestation erred in classifying child included offense of sexual conduct with a minor. as a lesser A.R.S. section 13-1405 (2001). We affirm the juvenile court s adjudication and hold that child molestation is a lesser included offense of sexual conduct with a minor in this case under the charging documents test. FACTUAL AND PROCEDURAL HISTORY ¶2 The with three State alleged siblings, C, Jerry K, and engaged M. in Jerry sexual was activity charged with molestation of a child, in violation of A.R.S. section 13-1410 (Count I) and sexual conduct with a minor in violation of A.R.S. section 13-1405 (Count II) for acts engaged in with C. He was charged with two additional counts of sexual conduct with a minor for acts engaged in with K and M (Counts III and IV respectively), Jerry denied and the one count of allegations criminal and the damage matter (Count was set for V). an adjudicatory hearing. ¶3 During the adjudication, Jerry moved for a judgment of acquittal as to the molestation and sexual conduct charges related to C (Counts I and II), the charge of sexual conduct with K (Count III), and the criminal damage charge (Count V). The State had no objection to an damage charge and it was dismissed. acquittal on the criminal As to Count III, the court ruled that the evidence presented did not fit a charge of sexual conduct with a minor, but the evidence was sufficient for a molestation charge, a lesser 2 included offense of sexual conduct with a minor. Jerry argued that molestation was not a lesser included offense of sexual conduct with a minor. He also argued that Arizona law required that a defendant be put on notice of pending charges and he did not have notice of any additional charge of molestation. The court held the elements of A.R.S. sections 13-1405 and -1410 were the same excluding the word oral and that Jerry was on notice that molestation of a child was a lesser included offense of sexual conduct with a minor. The court denied Jerry s motion for a judgment of acquittal as to the molestation charge for acts involving C (Count I) and the charge of sexual conduct with C (Count II). The court granted the motion as to sexual conduct with K (Count III), but allowed the State to proceed with molestation as a lesser included offense of sexual conduct with a minor as to K. ¶4 The court found Jerry delinquent of molestation of C (Count I), but held the State did not meet its burden of proof on the charge of sexual conduct as it related to C (Count II). The court reiterated that the charge relating to K (Count III) was no longer sexual conduct, but molestation, for which the court proof, and adjudicated Jerry delinquent of the charge of molestation. The court found also the State adjudicated had Jerry met its burden delinquent 3 for of molestation, a lesser included disposition offense hearing relating Jerry was to placed M (Count on IV).1 intensive At the probation, which included sex offender management terms and conditions, and registration as a sex offender until he was twenty-five. timely appealed. Jerry We have jurisdiction of this appeal pursuant to Article 6, Section 9, Arizona Constitution, A.R.S. sections 12-120.21 (2003), 13-4031, -4033 (2001), and Arizona Rule of Procedure for the Juvenile Court 88. ANALYSIS ¶5 Jerry argues that his adjudication in Counts III and IV must be reversed because molestation is not a lesser included offense of sexual conduct with a child. Jerry further argues that the juvenile court committed fundamental error because he did not have notice of any additional charges of molestation. 1 The minute entry verifies the court s intention that the lesser included charge of molestation applied to charges related to Jerry s conduct with K (Count III) as well as M (Count IV). The later disposition contains a typographical error, holding that the court found Jerry delinquent of the lesser included offense in Count II. This is not supported by the record. The court found Jerry delinquent of molestation as to C (Count I) and the lesser included offense of molestation as to K (Count III) and M (Count IV). To clarify this discrepancy, we modify the judgment to comport with the juvenile court s findings. A.R.S. § 12-2103 (2003); see Dolph v. Cortez, 8 Ariz. App. 429, 430, 446 P.2d 939, 940 (1968) (where no further proceedings are required in lower court, reviewing court has power to modify judgment). 4 ¶6 novo. (2006). Questions of statutory interpretation are reviewed de State v. Gomez, 212 Ariz. 55, 56, ¶ 3, 127 P.3d 873, 874 We will, however, affirm decision is correct for any reason. the trial court if its State v. Rojas, 177 Ariz. 454, 460, 868 P.2d 1037, 1043 (App. 1993). ¶7 The first issue is whether molestation of a child is a lesser included offense of sexual conduct with a minor. There are two tests used to determine lesser included offenses: the elements test and the charging documents test. molestation, in this case, is a lesser included We hold offense of sexual conduct with a minor only under the charging documents test. ¶8 Under the elements test, we must determine whether the purported lesser included offense is, by its nature, always a constituent part of the greater offense. State v. Siddle, 202 Ariz. 512, 516, ¶ 10, 47 P.3d 1150, 1154 (App. 2002) (quoting State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 12, 965 P.2d 94, 97 (App. 1998)). And, conversely, it must also be shown that the lesser cannot be committed without always satisfying the corresponding elements of the greater. State v. Brown, 204 Ariz. 405, 410, ¶ 21, 64 P.3d 847, 852 (App. 2003) (quoting In re Victoria K., 198 Ariz. 527, 531, ¶ 17, 11 P.3d 1066, 1070 (App. 2000)) (internal quotations omitted). In applying the elements test, we focus on the elements of each provision 5 without regard to the particular facts of the case before us. Siddle, 202 Ariz. at 516, ¶ 10, 47 P.3d at 1154 (quoting State v. Cook, 185 Ariz. 358, 361, 916 P.2d 1074, 1077 (App. 1995)). ¶9 The elements of our focus sections 13-1405, -1410, and -1401. are provided in A.R.S. Arizona Revised Statutes section 13-1405(A) provides: [a] person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen person years commits of age. Section molestation of a 13-1410(A) child by provides: [a] intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child under fifteen years of age. Section 13-1401(1)-(3) provides pertinent definitions: 1. Oral sexual contact means oral contact with the penis, vulva or anus. 2. Sexual contact means any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact. 3. Sexual intercourse means penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva. ¶10 Comparing the above statutes, we find the mens rea of A.R.S. sections 13-1405 and -1410 is the same. Similarly, one could not commit sexual conduct by having intercourse (which requires penetration or masturbatory 6 conduct) without also committing molestation genitalia). (which requires touching the victim s Molestation, however, cannot be a lesser included offense of sexual conduct with a minor under the elements test because of the different age requirements of a victim. Pursuant to A.R.S. section 13-1405 sexual conduct can be with any person who is under eighteen years of age. In contrast, A.R.S. section 13-1410 provides molestation can be with a child under fifteen years of age. Thus, one can commit sexual conduct with a minor by having intercourse with a seventeen-year-old without committing molestation of a child.2 Accordingly, molestation is not a lesser included offense of sexual conduct with a minor under the elements test.3 ¶11 Under the charging documents test the offense is also lesser included when the charging document describes the 2 The State argues that the age limit of A.R.S. section 13-1405 is with any child under the age of fifteen pursuant to section 13-1405(B). We disagree. Section 13-1405(B) classifies punishment for sexual conduct with a minor and is not part of the elements of section 13-1405(A). 3 Jerry cites State v. Superior Court, 154 Ariz. 624, 627-28, 744 P.2d 725, 728-29 (App. 1987), disapproved on other grounds by State v. Getz, 189 Ariz. 561, 944 P.2d 503 (1997), arguing that because the court held that sexual assault and sexual conduct with a minor are separate offenses which must be charged separately, that is analogous to his argument that molestation is not a lesser included offense of sexual conduct. We agree that molestation is not a lesser included offense of sexual conduct under the elements test. In Superior Court, however, the court compared the elements of sexual conduct with a minor and sexual assault; here, we compare sexual conduct with a minor to molestation of a child which has different elements. 7 lesser offense even though the lesser offense would not always form a constituent part of the greater offense. Brown, 204 Ariz. at 410, ¶ 21, 64 P.3d at 852 (citing State v. Enis, 142 Ariz. 311, 314, 689 quotations omitted). P.2d 570, 573 (App. 1984)) (internal In other words, a court may inquire as to whether the greater offense, as described by a statute or as charged, can be committed without necessarily committing the lesser offense. Once the determination is made that the offense is a lesser-included whether the offense, evidence the supports court the must requested Ennis, 142 Ariz. at 314, 689 P.2d at 573. that lesser courts have offenses focused were on described language by that defendant's conduct or mental state. then a consider instruction. In cases holding charging explicitly document, alleged the State v. Garcia, 176 Ariz. 231, 233, 860 P.2d 498, 500 (App. 1993). ¶12 The charging document states: COUNT III: SEXUAL CLASS 2 FELONY CONDUCT WITH A MINOR, On or about the 14th day of July, 2004, in the [jurisdiction of this court], said juvenile, [Jerry C.], intentionally or knowingly engaged in sexual intercourse or oral sexual contact with [K], a child who is under the age of fifteen years of age, all in violation of A.R.S. §§ 13-1405, 13-1401, 13-604.01, a Class 2 felony. (emphasis added). The charging conduct as to M (Count IV). 8 document alleges the same ¶13 Here, we focus on the language document that alleges Jerry s conduct. 233, 860 P.2d at 500. of the charging Garcia, 176 Ariz. at What is relevant is the language oral sexual contact and under the age of fifteen . . . . Pursuant to A.R.S. section 13-1410(A), the victim being under fifteen is an element of molestation, as is oral sexual contact (as defined by A.R.S. section 13-1401 (1)-(2)). The charging document, therefore, describes the lesser included offense of molestation. Accordingly, molestation of a child, in this case, is a lesser included offense of sexual conduct with a minor because the charging charge. document sufficiently describes the lesser included In re Isaac G., 189 Ariz. 634, 637, 944 P.2d 1248, 1251 (1997). ¶14 Jerry also argues that the juvenile court committed fundamental error because he did additional charges of molestation. ¶15 acts not have notice of any We disagree. When the juvenile court amends the petition alleging of should delinquency permit the on the parties part of the sufficient allegations of the amended charges. juvenile, time to the address court the In re Appeal in Maricopa County, Juvenile Action No. J-75755, 111 Ariz. 103, 106, 523 P.2d 1304, 1307 (1974). As outlined above the molestation charges were lesser included offenses of sexual conduct with a minor as sufficiently described 9 in the charging document notifying Jerry of the charges pending against him. Accordingly, there is no error. CONCLUSION ¶16 We affirm the juvenile court s judgment. We hold that the charging document sufficiently described the lesser included charge of molestation of a minor. DONN KESSLER, Judge CONCURRING: G. MURRAY SNOW, Presiding Judge DANIEL A. BARKER, Judge 10

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