State v. Kemper
229 Ariz. 105
| Ariz. Ct. App. | 2011Background
- Kemper was convicted of sexual assault under A.R.S. § 13-1406(A).
- The trial court instructed the jury using RAJI 14.06.01 but omitted the mens rea for the “without consent” element.
- The State conceded the instruction was erroneous but Kemper did not object at trial.
- The Arizona appellate court found the error to be fundamental and prejudicial.
- The court vacated the conviction and remanded for a new trial; a memorandum decision addressed prejudice.
- Concurrences noted the factual background was not relevant to the legal issue addressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the omission of the consent mens rea element was fundamental error | Kemper: error goes to essential element | State conceded error; procedure denied rights | Yes; error fundamental and prejudicial |
Key Cases Cited
- State v. Henderson, 210 Ariz. 561 (Ariz. 2005) (establishes fundamental-error standard and prejudice showing)
- United States v. Gaudin, 515 U.S. 506 (1995) (jury must determine all elements beyond a reasonable doubt)
- State v. Witwer, 175 Ariz. 305 (Ariz. App. 1993) (prosecution must prove mens rea for consent in sexual offenses)