State of Arizona v. Jerry Charles Holle, CR-15-0348-PR

Background

Defendant Jerry Holle was charged with sexual abuse (A.R.S. § 13-1404) and child molestation (A.R.S. § 13-1410) after his 11-year-old step-granddaughter reported inappropriate touching/kissing.
At trial Holle requested an instruction that the State must prove sexual motivation as an element; the trial court instead instructed that lack of sexual motivation is an affirmative defense under A.R.S. § 13-1407(E), which Holle must prove by a preponderance.
The jury convicted Holle of child molestation and sexual abuse (one charge was later dismissed), and he was sentenced to prison and probation.
The court of appeals held § 13-1407(E) was a defense but not an affirmative defense, and ruled that once a defendant makes some showing the State must then prove sexual motivation beyond a reasonable doubt; it found the trial instruction erroneous but harmless.
The Arizona Supreme Court granted review to resolve whether lack of sexual motivation is an affirmative defense the defendant must prove, and whether treating it as such is constitutional; the Court vacated the court of appeals and affirmed Holle’s convictions.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Holle)	Held
Whether lack of sexual motivation under A.R.S. § 13-1407(E) is an affirmative defense or an element of sexual-abuse/child-molestation offenses	§ 13-1407(E) is an affirmative defense the defendant must prove by a preponderance; it is not an element the State must prove	Sexual motivation is a necessary element of the offenses; the State cannot shift burden to defendant without violating due process	Held: § 13-1407(E) is an affirmative defense; sexual motivation is not an element the State must prove
Whether statutes defining sexual abuse and child molestation implicitly require sexual motivation	The statutes unambiguously set elements (intent/knowledge + sexual contact) and do not include motive; motive appears only in § 13-1407 as a defense	Holle: historical reading/implied mens rea makes sexual motivation an element to avoid absurd or overbroad application	Held: statutes are clear; motive is not an element and § 13-1407(E) is a statutory affirmative defense
Whether placing burden on defendant to prove lack of sexual motivation violates due process	Permissible: states may require defendants to prove affirmative defenses by preponderance so long as those defenses do not negate an element	Holle: shifting burden to prove absence of motive wrongly assigns burden on what distinguishes innocent from criminal conduct	Held: constitutional—Supreme Court precedent permits requiring defendant to prove affirmative defenses by preponderance when they do not negate an element
Whether the trial court’s instruction (defendant must prove lack of sexual motivation) was proper and whether any error was harmless	Instruction was proper; § 13-1407(E) required defendant to prove lack of sexual motivation	Instruction violated due process if motive is an element	Held: Instruction proper; convictions affirmed and court of appeals opinion vacated

Key Cases Cited

State v. Simpson, 217 Ariz. 326 (App. 2007) (held § 13-1407(E) creates affirmative defense regarding motive)
State v. Getz, 189 Ariz. 561 (1997) (refused to import § 13-1407 defenses into the definitional statute for sexual abuse)
State v. Berry, 101 Ariz. 310 (1966) (earlier decision reading an implied sexual-motivation element into prior "molest" statute)
Martin v. Ohio, 480 U.S. 228 (1987) (states may require defendant to prove an affirmative defense by a preponderance)
Patterson v. New York, 432 U.S. 197 (1977) (permitted states to assign burden of proving certain defenses to defendant)
Smith v. United States, 133 S. Ct. 714 (2013) (distinguishes elements from affirmative defenses for constitutional burden rules)
In re Pima Cty. Juvenile Appeal No. 74802-2, 164 Ariz. 25 (1990) (interpreting sexual-abuse statute and refusing to read additional motive element)