State of Arizona v. Oscar Castillo Mendoza
321 P.3d 424
Ariz. Ct. App.
2014
Check Treatment

The STATE of Arizona, Appellee, v. Oscar Castillo MENDOZA, Appellant.

No. 2 CA-CR 2013-0083.

Court of Appeals of Arizona, Division 2.

March 14, 2014.

321 P.3d 424

further proceedings consistent with this opinion.

Vice Chief Justice BALES authored the opinion of the Court, in which Chief Justice BERCH, Justice PELANDER, Justice BRUTINEL, and Justice TIMMER joined.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, By David A. Simpson, Assistant Attorney General, Phoenix, Counsel for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, Tucson, Counsel for Appellant.

OPINION

ECKERSTROM, Judge.

¶1 Following a jury trial, appellant Oscar Mendoza was convicted of child molestation and sentenced to a ten-year term of imprisonment. On аppeal, he argues the type of touching that was established at trial does not meet the legal definition of the offense, rendering his conviction unsupported by sufficient evidence. He also contends the trial court erred in instructing the jury. We affirm for the reasons that follоw.

Factual and Procedural Background

¶2 We view the evidence presented at trial in the light most favorable to upholding the verdict, drawing all reasonable inferences against the defendant. See . The victim in this case was a thirteen-year-old girl who was spending the night at Mendoza‘s residence for a sleepover with her best friend, Mendoza‘s daughter. After the victim had fallen asleep, her friend went to watch television in another room with her mother, leaving the victim alone. The victim testified Mendoza then came into the bedroom, woke her, lay on top of her, and “started humping” her, meаning he was “rubbing his penis on [her] butt.”

¶3 The victim testified she had been lying on her stomach and underneath a blanket when the incident occurred. Both she and Mendoza were wearing clothes. She did not feel his penis during the episode, but she felt his “cro[t]ch” or “genital area” touching her butt and moving аgainst it. When she spoke and tried to get up, Mendoza ran out of the room. The victim then went into another bedroom where Mendoza‘s daughter was with her mother. The victim was crying and hysterical, and she reported what had happened to her. The mother locked the two girls in the bedroom with her, and Mendoza was reported to the police later that day.

¶4 In his defense, Mendoza argued the victim was not credible and the incident did not happen as she recalled. He also argued to the jury—and to the court, as part of his motion for judgment of acquittal under Rule 20, Ariz. R.Crim. P.—that the facts presented did not meet the definition of child molestation. After the court denied the motion, the jury found him guilty. This timely appeal followed the entry of judgment and sentence.

Sufficiency of the Evidence

[2-4] ¶5 Mendoza first contends the evidence that he “‘humped’ the fully clothed victim with his ‘crotch’ or ‘genital area‘” through a blanket was insufficient to establish child molestation “because there was no proof of indirect touching, fondling, or manipulating of the genitals.” The sufficiency of evidence is a question of law we review de novo. . “[T]he controlling question is solely whether the record contains ‘substantial evidence to warrant a conviction.‘” , quoting Ariz. R.Crim. P. 20(a). Substantial evidence exists if a rational juror could find ‍​​‌‌​‌‌​​​​‌‌​‌‌‌‌​​​​‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​​​‌‌‍the elements of the crime proved beyond a reasonable doubt. . If “reasonable minds may differ on inferences drawn from the facts,” the evidеnce is substantial and the conviction must be upheld. , quoting .

¶6 Child molestation under A.R.S. § 13-1410(A) occurs if a defendant “intentionally or knowingly engag[es] in or caus[es] a person to engage in sexual contact ... with a child who is under fifteen years of age.” Section 13-1401(2), A.R.S., defines sexual contact, in part, as “any direct or indirect tоuching, fondling or manipulating of any part of the genitals ... [or] anus ... by any part of the body or by any object or causing a person to engage in such contact.” Indirect touching includes touching through clothing, , and the “person” referred to in § 13-1410(A) can mean the child who is the victim of the molestation offense. . The crime may be committed, therefore, either by the perpetrator indirect-ly touching the victim‘s genitals or by causing the victim to indirectly touch those of the perpetrator.

¶7 Here, the state maintained Mendoza had committed child molestation not by touching the victim‘s genitals or аnus, but rather by indirectly rubbing his genitals against the victim. We agree.

¶8 The victim‘s testimony and description of the defendant “humping” her provided sufficient evidence of indirect genital touching to sustain the conviction. See (“In child molestation cases, the defendant can be convicted оn the uncorroborated testimony of the victim.“). The verb “hump,” in one of its slang senses, means “[t]o engage in sexual intercourse,” The American Heritage Dictionary 858 (5th ed.2011), or “to copulate with.” , quoting Webster‘s Third New International Dictionary 1102 (2002). But the term does not always denote sexual рenetration, as demonstrated by the victim‘s testimony here. See, e.g., (using word “hump[]” to describe defendant rubbing penis against victim‘s leg); (finding insufficient evidence of contact with victim‘s anus, as opposed to buttocks, when defendant “put his penis between her cheeks of her bottom ... and stаrted ... humping her“). The word “hump” can also refer to bodily movements that rub or stimulate a person‘s genitals through layers of fabric or clothing. See, e.g., (noting word, in context, meant holding ‍​​‌‌​‌‌​​​​‌‌​‌‌‌‌​​​​‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​​​‌‌‍the victim “in a sexual embrace“); (finding description of young boys “humping [defendant‘s] back” referred to physical contact that “represented apparent acts of sexual stimulation or gratification“); (describing “[f]riction dances” at nude-dancing establishment that involved women “humping their vaginal areas on the seated patrons’ clothed genitals with the purpose to ejaculate the patrons“). In all of its slang senses, however, the word “hump” denotes both a sexual motivation and some touching, manipulation, or physical stimulation of the genitals.

¶9 Case law from our supreme court illustrates the point. In the dual decisions of and , the court determined that a witness‘s testimony of “humping” was sufficient evidence of sexual contact to support the defendant‘s conviction for sexual abuse. The crimes of sexual abuse and child molestation share the element of sexual contact. See A.R.S. §§ 13-1404(A), 13-1410(A). Accordingly, while the “humping” described here “fell short of ... completed sexual intercourse,” , it nevertheless represented a form of sexual contact that was sufficient to support the guilty verdict, because the jury rationally could infer that Mendoza was rubbing his crotch or genital аrea against the victim‘s body to indirectly touch or manipulate his genitals. Indeed, little else could be accomplished by such behavior.

¶10 Contrary to Mendoza‘s suggestion, a victim is not required to “feel” or “detect” a perpetrator‘s penis or testes, as this simply is not an element of the offense. Furthermore, the fact that the “humping” here occurred through clothing and a blanket is irrelevant, as the state points out, because the action still amounts to “indirect touching” proscribed by § 13-1401(2). “[T]ouching does not lose its sexual character merely by the imрosition of a thickness of cloth,” , and we recognized in that “the potential for emotional harm is manifest notwithstanding the lack of direct physical contact with the molester.” .

¶11 Although Mendoza discusses in his opening brief certain hypothetical scenarios where other types of touching might not bе deemed criminal, we are not presented here with a close case concerning the “limit as to how ‘indirect’ the touching can be.” The overtly sexual and criminal nature of Mendoza‘s conduct was evident in this case, such that it would be “difficult to conceive of a jury placing an innocent construction on the acts testified to.” . In sum, the evidence was sufficient for the jury ‍​​‌‌​‌‌​​​​‌‌​‌‌‌‌​​​​‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​​​‌‌‍to find him guilty of child molestation under § 13-1410.

Instructions

¶12 Mendoza next presents two arguments concerning the trial court‘s instructions to the jury. Specifically, he contends (1) the child molestation instruction was “fatally flawed” and (2) the court erred “in failing to instruct the jury on the burden and standard of proof for [his] affirmative defense of lack of sexual motivation.” As to the first issue, Mendoza did not object to the court‘s instruction defining the offense; as to the second, the court apparently provided Mendoza‘s proposed instruction on this defense over the state‘s objection. He did not request, nor did he object to the absence of, any additional instructions on the topic.

¶13 Because the issues raised on appeal were not presented and preserved below in accordance with Rules 21.2 and 21.3(c), Ariz. R.Crim. P., we review only for fundamental, prejudicial error. See ; see also ; .1 Although novel assignments of instruction-related error can sometimes rise to this level, we will grant appellate relief only in those rare cases where a defendant has made “[a] particular showing of prejudice.” , aff‘d, . We are not presented with such a case here.

Child Molestation

¶14 The triаl court instructed the jury on the elements of the offense as follows:

The crime of molestation of a child requires proof of the following:

  1. The defendant intentionally or knowingly engaged in or caused a person to engage in any direct or indirect touching, fondling or manipulation of any part of the genitals or anus by any part of the body or by any object or causing a person to engage in such contact with a child; and
  2. The child was under 15 years of age.

(Emphasis omitted.) This instruction combines language from the statutes noted above, §§ 13-1410(A) and 13-1401(2), and Mendoza concedes it is “technicаlly accurate as a cut-and-paste job.” He nonetheless argues the instruction was confusing or “unintelligible gibberish,” in his words—because it “failed to explain the elements of the crime in understandable English.” He suggests that rather than providing the jury with “one indecipherable run-on sentence,” the court instead should have given separate instructions defining child molestation and sexual contact. But “[w]e will not reverse simply because a better instruction could have been given.” .

¶15 Jury instructions must “adequately set forth the law applicable to the case.” . As the statе points out, it is difficult to characterize the instruction here as being decidedly more complex or awkward than the relevant criminal statutes, and Mendoza has failed to articulate how the language of the instruction misstated the law or caused him prejudice. We therеfore find no prejudice from the instruction, see , and no basis to disturb the verdict.

Defense

¶16 Section 13-1407(E), A.R.S., provides that a lack of sexual motivation or interest is a defense to a charge of child molestation. Division One of this court upheld this portion of the statute in , and later specified that a defendant must prove this affirmative defense by a prеponderance of the evidence. ; see A.R.S. § 13-205(A).

¶17 The trial court here instructed the jury that “it is a defense to molestation of a child if the defendant was not motivated by a sexual interest.” Mendoza argues the lack ‍​​‌‌​‌‌​​​​‌‌​‌‌‌‌​​​​‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​​​‌‌‍of further instructions on the topic might have caused the jury to mistakenly believe that he had the burden to prove his defense beyond a reasonable doubt. We disagree.

¶18 Here, as in , , and , the lack of further instructions did not result in any prejudice, but most likely benefitted the defendant by relieving him of any burden of proof.2 During closing argument, defense counsel told the jury, “[I]t is your job to determine whether or not anything that happened was motivated by any kind of sexual interest.” His other remarks suggested such motivation was an element of the offense to be proven by the state beyond a reasonable doubt. The state simply responded that Mendoza had a sexual interest and that the evidence proved, beyond a reasonable doubt, he had molested the victim. The state did not suggest that the defendant carried any burden or that a special standard of proof applied with respect to his sexual interest or motivation. Thе trial court‘s instructions likewise suggested no burden existed except the ordinary one placed on the state. The instructions instead emphasized that “the defendant is not required to ... produce any evidence” and that “the state must prove all of its case against the defеndant with its own evidence.” We therefore find no prejudice from the instructions here.

¶19 Our conclusion is reinforced by the fact that Mendoza did not emphasize and rely on a defense that he had innocently touched the victim‘s genitals or had innocently caused the victim to touch his own. His primary defense challenged the credibility or accuracy of the victim‘s testimony and essentially denied that any genital contact had occurred. In short, this case did not hinge on the question of sexual interest or motivation. Thus, the omission of further instructions on this matter did not result in prejudice.

Disposition

¶20 For the foregoing reasons, Mendoza‘s conviction and sentence are affirmed.

STATE of Arizona, Appellee, v. Mark Anthony LUCAS, Appellant.

No. 1 CA-CR 13-0215.

Court of Appeals of Arizona, Division 1.

March 20, 2014.

321 P.3d 428

Notes

1
As our discussion below indicates, contrary to Mendoza‘s contention, this case does not involve structural error that precludes an analysis of prejudice, see , as with an instruction that improperly reduces the state‘s burden of proof. ; see .
2
We assume without deciding that a lack of sexual interest is an affirmative defense. Mendoza has not argued, and we therefore do not address, whether shifting the burden of proof to a defendant on a defining feature of child molestation—sexual motivation for the touching of a child—would violate federal due process rights. See (holding “Due Process Clause protects the accused against conviction except upоn proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged” and observing such standard of proof is accepted “as the measure of persuasion by which the prosecution must convince the trier of all thе essential elements of guilt“) (emphasis added); see also (interpreting lack of sexual motivation as affirmative defense and concluding such motivation not described as element of statutory offense); (concluding lack of sexual motivation an affirmative defense, but approving jury instruction that nonetheless ‍​​‌‌​‌‌​​​​‌‌​‌‌‌‌​​​​‌​‌‌​​​​‌​‌​‌‌‌​​​‌‌​​​​‌‌‍required state to prove sexual motivation beyond a reasonable doubt once defense had been raised).
Read the detailed case summary