State of Arizona v. Manuel Fernando Florez
241 Ariz. 121
Ariz. Ct. App.2016Background
- Victim M., Florez’s stepsister, testified at trial that sexual contact began when she was about eight and continued through age eleven; incidents included touching of her genitals and Florez pressing or rubbing his clothed penis against her clothed buttocks ("humping") and threats/coercion.
- A grand jury charged multiple counts: three counts of molestation of a child and two counts of sexual conduct with a minor under age fifteen (plus other counts later dismissed); jury convicted five counts and acquitted/dismissed others.
- Sentences: three concurrent 10-year terms for molestation, consecutive to two consecutive 13-year terms for sexual conduct with a minor (aggregate 36 years). The trial court later noted the sentence was "clearly excessive" and permitted a clemency petition.
- Florez moved for a Rule 20 directed verdict arguing "humping" through clothing cannot satisfy the statutory definition of "sexual intercourse," so convictions for sexual conduct with a minor lacked sufficient evidence.
- He also challenged his aggregate consecutive sentence as cruel and unusual punishment under the Eighth Amendment and Arizona Constitution.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Florez) | Held |
|---|---|---|---|
| Sufficiency: whether "humping" through clothing can constitute "sexual intercourse" (masturbatory contact) supporting sexual conduct with a minor convictions | Evidence showed masturbatory contact: a jury could find Florez intentionally stimulated his penis by rubbing it against a child under 15, even through clothing; statutory text and precedent allow non-penetrative masturbatory contact | "Humping" through clothes is at most indirect touching/"sexual contact," not "masturbatory contact" constituting "sexual intercourse;" skin-on-skin contact should be required | Affirmed: viewing evidence in the light most favorable to the State, a reasonable jury could conclude the acts were masturbatory contact under A.R.S. §13-1401(A)(4); clothing does not per se negate sexual intercourse. |
| Cruel and Unusual Punishment: whether mandatory consecutive enhanced terms produced grossly disproportionate punishment | Statutes designating these offenses as dangerous crimes against children have rational penological goals; sentences do not raise a threshold inference of gross disproportionality | Aggregate 36-year sentence (mandatory consecutive terms) is grossly disproportionate given circumstances (young defendant, limited maturity, trial court’s view that sentence was excessive) | Affirmed: no fundamental error. Court applied Eighth Amendment proportionality framework, found no threshold inference of gross disproportionality given harm, coercion, victim age, and legislative purpose; Davis distinguished and Berger controlling on deference to legislature. |
Key Cases Cited
- State v. Crane, 166 Ariz. 3 (App. 1990) (held nonpenetrative masturbatory contact with a minor can satisfy statutory "sexual intercourse")
- State v. Berger, 212 Ariz. 473 (2006) (Eighth Amendment review; courts defer to legislative sentencing judgments and declined to find disproportionality for lengthy child-pornography sentences)
- State v. Davis, 206 Ariz. 377 (2003) (found gross disproportionality for consecutive mandatory sentences in a case with factors reducing culpability)
- State v. Mendoza, 234 Ariz. 259 (2014) (upheld molestation conviction for "humping" through clothing; clothing does not necessarily negate sexual character of touching)
- Ewing v. California, 538 U.S. 11 (2003) (plurality on narrow proportionality principle and deference to legislative sentencing choices)
- Harmelin v. Michigan, 501 U.S. 957 (1991) (upheld severe mandatory sentence under Eighth Amendment)