State v. Flores

Arizona, Appellee, STATE of FLORES, Appellant.

Ricardo Gutierrez No. 1 12012. CA-CR Appeals Arizona, Court of 1, Department Division B. April Gen., Ramsey, Atty.

and Diane M. Asst. Phoenix, appellee. for Trebesch, Maricopa County

Dean W. Rood, III, Public Defender John W. Phoenix, Defender, Deputy ap- Public for pellant.

OPINION

GREER, Presiding Judge. Defendant Flores was a convicted jury degree burglary, of second a class 3 felony, public indecency, sexual a class acquitted misdemeanor. He was on a misdemeanor theft count. The facts ad- duced at trial were brief follow.

FACTS

Early morning, the victim went to investigate apartment movements in her standing and discovered defendant in the stroking exposed penis. kitchen area intruder, past pushed The victim ran side, him to the and moved toward her purse where a can mace was attached get key her chain. Before she could to the however, purse, defendant ran out of the apartment. She then noticed her wallet missing purse. from her was apartment After the victim contacted the notified, manager, police were who ar- twenty rived minutes later and inter- about provided viewed the victim. The victim police physical description a of defen- with possibly indicated he dant. She clothing groundskeeper of his because mower the fact that an unattended lawn apartment. A was near her lawn crew was assembled, positively and the victim identi- Shortly the intruder. fied defendant as incident, after the the victim’s wallet was laundry in a room. About the same found incident, a had seen time of the witness laundry in the of this room. defendant area verdicts, jury returned its de- After prior felony agreed fendant to admit to two exchange for dismissal of the convictions allegation that defendant committed the present parole. on The trial offenses while accepted admissions and defendant’s Corbin, presumptive term of 11.25 imposed the Atty. K. Gen. William Robert Counsel, burglary and 159 III, years Div. for the conviction J. Schafer Chief sug prosecutor prohibited A days jail the misdemeanor conviction for indecency, guilty simply served gesting an accused because concurrently. rights. Defendant was credited his Miranda he invoked State time served. Moore, with case, Moore, However, in this as in no appeal, defendant contends: On elec the defendant’s evidence established (1) prosecutor improperly the commented coop his refusal to tion to remain silent or silent; remaining on the defendant hence, police; we find no erate with the

(2) the trial court should have allowed an error. exculpatory hearsay statement into jurors today surely know it is com- Most evidence; suspect police practice to inform a mon (3) prior the use of defendant’s convic- rights his Miranda and the fact that improper tions was because no show- here, voluntarily the defendant who was repre- was made defendant was in, turning giving gun the himself the by priors; counsel on these sented police, was in fact read his Miranda rights surprise. no should come as Un- (4) granted should the trial court circumstances, der the this was neither judgment of defendant’s motion for prejudicial. error nor inde- acquittal on the Id., 112 Ariz. at 540 P.2d at 1255. count, cency in- as the evidence was Later, Mann, sufficient. (App.1977), the court that, prose- stated in situations where the DEFENDANT COMMENT ON cution has made reference to defendant REMAINING SILENT being rights, the aware Miranda During cross-examination of the investi- for the remarks called test error whether officer, gating questioned defense counsel jury’s the attention to the fact the defen- sufficiency procedure the of the offi- in his dant has not testified own behalf. investigations. During cer’s redirect exam- case, prosecu ination, In this it is clear the following exchange transpired: the question the the tor’s answer wit Q. Juharos, you Officer take jury’s ness did not focus the attention on prints from other areas of the door as alleged right of his defendant’s exercise up? well as the area 22 inches Although probative it is remain silent. A. Yes. and, therefore, preferable no relevant fact Q. they And where were taken from? reference, such mere mention of to avoid Up handle, A. inside and around the fact the defendant was advised of outside on the frame. rights under these circumstances Miranda Q. you And when arrested the defen- Moore, error. was not reversible dant, rights? was he read his Miranda 271, 540 P.2d 1252. Yes, A. he was read his Miranda rights at the station. EXCULPATORY HEARSAY

Q. Okay. STATEMENT questions. No further PROSECUTOR: ' Any THE COURT: recross. trial, During defense counsel made an No, Your Hon- DEFENSE COUNSEL: proof. A civilian witness offer of over- or. police heard defendant tell a officer at the go he build- scene saw someone Defense counsel moved for a mistrial ings and over the fence at about the time exchange, claiming a viola- based on this granted of the incident. The trial court Ohio, Doyle tion of 426 U.S. 96 S.Ct. limine, precluding motion in de- state’s 49 L.Ed.2d 91 The trial instruction, eliciting fense this statement. cautionary counsel offered a which was that, counsel, light and then de- Defendant contends refused defense. indicating testimony nied the motion for mistrial. defendant was aware However, rights, imperative if of his Miranda it was even the record were silent regarding representation, supreme jury be allowed to hear defendant’s Anderson, court held in State v. police. statement when confronted that a convic- prosecutor’s ques- Defendant asserts the tion, challenged in the trial court as an rights tioning opened about the Miranda conviction, uncounseled pre- is entitled to a proffered testimony, the door to the even sumption regularity purposes for though defendant’s statement was made sentence enhancement. warnings. prior to the Miranda We dis- agree. ruling

A trial court’s on the ad DEFENDANT’S MOTION FOR JUDG- ACQUITTAL THE missibility of evidence will not be disturbed MENT OF ON an of discretion. PUBLIC SEXUAL INDECENCY absent abuse State v. 92, 94, 645, Robles, COUNT 135 Ariz. 659 P.2d 647 (1983). argues Defendant for the first in II charged Defendant was Count with appeal time on that his statement was ad having “intentionally knowingly en- Because missible as an excited utterance. gaged in an act of sexual intercourse argument this is raised for the first time on per- such other was reckless about whether appeal, need not address it. we State v. son, person, a would be of- as reasonable 248, Burton, (App. 144 Ariz. 697 P.2d 331 act, in violation fended or alarmed the 1985). waived, however, if Even not no 13-1401, 13-1403, 13-3821, of A.R.S. §§ indicated that ex evidence defendant was added.) (Emphasis 13-707 and 13-802.” by police. or startled cited when confronted case, At the conclusion of the state’s such, we cannot conclude As the trial court judgment acquit- defendant moved for a in precluding abused its discretion the ad 20, pursuant to Rule Arizona Rules of tal missibility of the statement. See State v. Procedure, contending that “sexu- Conn, 152, (App. 137 Ariz. 669 P.2d 585 public used in the inde- al intercourse” as 1982), part on in and remanded aff'd statute, 13-1403(A)(3),cov- cency A.R.S. § 148, grounds, other 137 Ariz. only masturba- ered those situations where (1983); 409, Rivera, 678 State At trial tion occurred individuals. (1984). P.2d 1373 did Nor the trial court appeal, defendant contends his con- and on precluding in ad abuse its discretion the the evidence viction cannot stand because missibility of the statement under acting and did not clear he was alone was 804(b)(5), catch-all Ari Rule engage in of “sexual intercourse” as an act Evidence, zona Rules of since the state contemplated by A.R.S. We carry particularized ment did not with it agree. guarantees reliability or trustworthi argues The the definition of sexual state Robinson, Ariz. ness. 153 See State v. enough encompass intercourse is broad (1987); 191, 201, 811 State v. persons acting alone. The state contends 171, 176-77, Ramirez, language in that State ex rel. Hamilton v. Court, 184, 624 P.2d Superior (1981), indicating 862 that DEFENDANT’S PRIOR

USE OF 13-1401(3) in course as defined A.R.S. § CONVICTIONS contemplates the involvement of at least and, therefore, people, is dictum not two During sentencing, the trial court controlling. not determine defendant was whether in prior pro supreme court Hamilton decided represented by counsel clearly constitutionality of A.R.S. 13-1403. ceedings. Because the record by Caryl paragraph as well as the represented At issue was states defendant was convictions, In of “sexual contact.” discuss- on definition Preusch-Sanchez both statute, constitutionality of the priors improper, use of the therefore, noted: not error. interpretation of “sexual acknowledge the it is clear that the stat-

We believe that acting in A.R.S. person one intercourse” ute can be violated §§ alone, here, 13-1403(A)(3)may An case with one or be uncertain. ambi- as was the watching. people guity may The statute is found to exist where there is more be intercourse, terms uncertainty with sexual as to the not concerned Sweet, which as defined A.R.S. 143 Ariz. at of a statute. require persons, but Accordingly, would at least two discuss rules P.2d at 924. we more) (or actions that interpretation. statutory by others. may seen or observed statute, construing In courts (em- Id., 128 Ariz. at 624 P.2d at 864 construc give should the statute a sensible added). Although state- phasis the court’s accomplish legislative inter tion which will Hamilton, may have dictum in ment been purpose, and will avoid ab est and conclude it is a correct statement of the City v. Mo surd results. Lake Havasu in the case now before us. law County, 138 Ariz. 13-1403 is de While A.R.S. Schoner, (App.1983); shocking signed protect to 528, 530, 1305, P.2d 1307 121 Ariz. 591 embarrassing displays and of sexual activi legislative (App.1979). The intent can be ties, masturbating presence in oneself by discovered an examination of the devel contemplated by of another is not subsec Sweet, opment particular 143 of a statute. (A)(3). tion 271, Ariz. at 693 P.2d at 926. No rely exists on which we can related law (1988) 13-1401(3) A.R.S. states: § interpreting Conse A.R.S. § penetration intercourse’ means ‘Sexual to the re quently, we direct our attention penis, by any part into the vulva or anus port Arizona Code Commis of the body by any object or or manual sion, provides the sources from which masturbatory penis contact with the or present our Criminal Code is derived. which vulva. adapted We find the term “sexual inter A.R.S. § Code,1 13-1401(3) in part course” as defined in A.R.S. from the Delaware Criminal § Code,2 ambiguous. the Texas Penal Only to be where a statute is the Hawaii Penal Code,3 ambiguous liberty Kentucky Penal Code.4 or unclear is a court at and exception, de statutory interpreta jurisdictions, to resort to rules of These without Sweet, 266, 269, occurring intercourse” as be tion. State v. 143 Ariz. fine “sexual 921, (1985). jurisdictions 924 the state individuals. Other also 693 Because tween argues masturbatory “sexual intercourse” in a that manual contact define the term acting ordinary its meani by person one alone constitutes manner consistent with statute, adopted ng.5 “sexual intercourse” under the we A statute from another state inter- 1. The Delaware Code defined “sexual inter- 3. The Texas Penal Code defines "sexual meaning act of coitus between male and of the fe- course" as course" as "any penetration "any organ.” organ female____” 773(b) the male sex Tex.Pe- male sex 11, § Del.Code Ann. tit. 21.01(3) (Vernon 1974). (1979) added). § nal Code Atm. (emphasis Del. 65 Subsequently, (1986) Laws, c. 494 amended and re-enacted "sexual in- 4. The Penal Code defines Kentucky (D) substituting Code, of the Delaware subpart ordinary tercourse” as "sexual intercourse in its to 773. §§ 761 to 775 for former 761 §§ present be- sense but is limited to sexual- intercourse "sexual intercourse” 761 defines § present other____” persons tween married to each physical union meaning act of as "any 1988) 510.010(9) (Michie § Ky.Rev.Stat.Ann. [one]person with genitalia the mouth, or anus added). (emphasis person." Del.Code of another genitalia or anus added). 761(e) (1988) (emphasis § Ann. tit. 11 Washington Criminal Code dic- The state ordinary (a) intercourse has its tates that "sexual meaning defines “sexual 2. The Hawaii Penal Code ... and occurs upon any penetration, ordinary (b) course” as "sexual intercourse its means ... when and [a]lso any penetration another, meaning person by (c) one ... intrusion or ... of or committed on any penetration, of sexual contact genital of a ... into the means act [a]lso any any part person’s body, 44.010(1) opening § of another Haw.Rev.Stat. ...” Wash.Rev.Code 9A. person____" persons added.) added). (1989) (emphasis (emphasis 240 presumed adopted been with a should be resolved in favor of the defen- previously placed upon

construction Pena, 545, 549, it v. dant. State the courts 744, of that state. Jackson Phoe (App.1983), 683 P.2d approved, Productions, Inc., nixflight Ariz. Based 1342, 1345(1985). Since case foregoing, on the we find that sexual inter- interpreting law A.R.S. 13-1401 is course, as defined in A.R.S. § sparse, and because the statute modeled requirement includes a that manual mas- herein, after other state statutes cited we turbatory contact occur “another”. adopt interpreting their construction our Despite attempt an by the state to broad- Moreover, of a statute. the words statute statutory en the definition term ordinary given meaning, are to be their “sexual intercourse” to include sole manual appears unless it from the context a differ contact, masturbatory we deem the term Schoner, ent should control. plain ordinary meaning. its retains To Ariz. at 591 P.2d at 1307. “Sexual defy rule otherwise would both the dictio- ordinarily intercourse” means heterosexual nary Supreme the Arizona Court. relations between individuals. Webster’s Therefore, conclude A.R.S. (9th 1986). Collegiate New ed. Dictionary 13-1403(A)(3) cannot violated strong presumption A exists that person acting through alone manual mas- legislatures do not create statutes contain turbatory penis. contact with Accord- are redundant triv ingly, we conclude the state incorrectly Kozlowski, ial. State v. charged violating defendant with A.R.S. (App.1984). A.R.S. 13-1403(A)(3); the evidence is insuffi- 13-1401(2) (1988) defines “sexual con § support cient to a conviction under subsec- tact” as: (A)(3). tion any or fondling manipu- direct indirect or opinion, For reasons stated this lating any part genitals, of anus degree burglary the second conviction is female breast. affirmed; and the of sex- conviction If we construe A.R.S. as the § vacated, indecency ual is with instructions interpreted, state contends it should be grant to the trial court to defendant’s mo- there would be no difference between “sex- judgment acquittal tion for based on ual contact” as defined A.R.S. evidence, insufficiency of the to set 13-1401(2) and latter part of A.R.S. § 159-day aside sentence on the misde- 13-1401(3) which defines “sexual § meanor conviction. masturbatory course” as “manual contact.” legislature We find the to not intend CORCORAN, J., concurs. perform by defining a futile act HAIRE, J., concurring. specially already conduct defined under only. I concur the result Last, turn to NOTE: The Honorable ROBERT J. COR- A.R.S. 13-104, CORAN, Supreme pertinent analysis, our Justice the Arizona to Court, provides: has been authorized Administra- Justice, Order tive No. 89-3 of the Chief to general penal rule that a statute participate in the resolution of this case strictly apply to to be construed does assigned him previously which was to as a title, this herein but must judge department this court or according be construed to the fair Thursday, January before promote jus- their terms to law____ objects and effect the tice added). (emphasis A.R.S. Tramble, also

See Where statute susceptible interpreta more than one tion, any of lenity rule dictates doubt

Case Details

Case Name: State v. Flores

Court Name: Court of Appeals of Arizona

Date Published: Apr 11, 1989

Citation: 772 P.2d 589

Docket Number: 1 CA-CR 12012

Court Abbreviation: Ariz. Ct. App.