After a jury trial, appellant Anderson was convicted of molesting a 12-year-old child, a class 2 felony, in violation of A.R.S. §§ 13-1410, -701, and -801. He was sentenced to a term of nine years imprisonment. On appeal, appellant presents the following five arguments:
1. There was insufficient evidence to support the jury verdict finding that appellant acted “knowingly” and was motivated by an unnatural or abnormal sexual interest or intent;
2. The trial court erred in failing to give appellant’s requested jury instruction defining thе term “private parts” within Arizona’s child molestation statute;
*92 3. Two State’s witnesses should have been precluded from testifying as a sanction for violation of the rule of exclusion of witnesses;
4. The trial court erred in failing to grant appellant’s motion to continue sentencing; and
5. The nine year sentence was excessive.
The victim in this case was a 12-year-old blind boy who was vаcationing with his family in Lake Havasu City, Arizona, during the Memorial Day weekend of 1979. While he and his 10-year-old brother were playing in the Holiday Inn swimming pool with the appellant аt approximately 10:00 p. m. the appellant held the victim on his lap and rubbed or “pushed” the victim in the groin area, including the penis. When the victim pushed the appellant’s hand away, the appellant again placed his hand in the same area. The victim apparently then moved and the group continued playing. Lаter in the evening, the victim, his brother and the appellant went to the victim’s motorhome where the victim and the appellant climbed into a bunk over the driver’s compartment. There the appellant stroked the victim’s hair, back and buttocks telling him, “I wish you were mine.” Later, appellant helped the victim change his clothing in the victim’s motel bathroom and at one point asked the victim and his brother to shine a light at the window if they were sleeping in the camper.
When these incidents were dеscribed to the victim’s mother later that evening, she reported the matter to the police who arrested the appellant the next morning. When first questioned аbout the incident, the appellant totally denied being at the Holiday Inn or having met the boys. When he later admitted to the police officers that he had been at the motel and played with the boys at the swimming pool and in their camper, he explained his earlier denial as the result of a fear of being implicated in possible vandalism by older teenagers whom he was with that evening at the motel.
At the close of the State’s case appellant moved for a directеd verdict pursuant to Rule 20, Rules of Criminal Procedure, 17 A.R.S., arguing that there was insufficient evidence to support a jury verdict that the appellant “knowingly” touched the victim’s private parts as required by A.R.S. § 13-1410 or that the touching was “motivated by an unnatural or abnormal sexual interest or intent with respect to children” as required by
State v. Berry,
Rule 20 requires that a judgment of acquittal be entered after the evidence on either side is closed if there is no substantial evidence to warrant a conviction. In determining whether there is “substantial evidence” to support a jury verdict, the trial court and this Court must view the evidence in a light most strongly in favor of sustaining the jury’s verdict.
State
v.
Parker,
Appellant’s argument that the acts committed after the swimming pool incident should nоt used as “reversed extrapolation” to infer the appellant’s state of mind is not persuasive. In
State v. McFarlin,
Next, appellant argues that the trial court erred in failing to give his requested instruction defining the words “private parts” as used in Arizona’s child molestаtion statute. A.R.S. § 13-1410 states:
A person who knowingly molests a child under the age of fifteen years by fondling, playing with, or touching the private parts of such child or who causes a child under the agе of fifteen years to fondle, play with, or touch the private parts of such person is guilty of a class 2 felony .... (Emphasis added.)
The legislature has not defined the term “private parts” nor did the trial court give any instruction defining which parts of the body are included within that term. The appellant’s requested instruction was that the privatе parts on a male are the penis, scrotum, testicle area and rectum. This is a correct definition of the term.
See State v. Carter,
The State does not argue that the requеsted instruction should not have been given. Rather, the State urges that although the term “private parts” may be, under the facts here, ambiguous, the failure to give an exрlanatory instruction was cured by closing argument of counsel emphasizing the touching of the genital, procreation area as constituting the criminal act сharged, citing
State v. Rodriquez,
Again, these “private parts” is left up to you, ladies and gentlemen, what are the private parts of a male. It’s not defined by statute. Being rеasonable people, everyone should know.
Although the prosecutor stressed the penis touching incident at the pool, he also stressed appellant’s rubbing of the victim’s buttocks in the motorhome in support of the requirement that touching be done with an unnatural or abnormal sexual intent.
We agree with the prosecutor that all reasonable people would know that the term “private parts” extends at least to the penis, scrotum, testicle area and reсtum, but whether that term could extend to other “private” areas of the human body may be subject to reasonable differences. For example, the Court of Aрpeals held in
State v. Carter,
Here the problem lies not in the fact that the jury did not know that a penis was a “private part,” but that they were allowed to speculate, by the prosecutor’s invitation, that othеr areas of the human anatomy may also constitute a “private part.” Therefore, under the evidence, the jury may well have determined that the act of rubbing the victim on the buttocks was sufficient to satisfy the statute.
The defense’s instruction would have limited the jury’s inquiry to the proper evidence. We find that the closing arguments of сounsel did not supply this limiting factor. We therefore hold that although there was evidence to support a verdict of touching of “private parts” as defined in Carter, we cannot say beyond a reasonable doubt that those facts are the ones relied upon by the jury in returning its guilty verdict. Thus, the conviction must be reversed and the matter remanded to the trial court for a new trial.
Because a new trial is required, the remaining issues need not be reviewed.
*94 The judgment and sentence are reversed and the case is remanded to the Superior Court for a new trial.