Opposition Brief — May v. Arizona (No. 08-1393)

Supteme Court, U.S.

FILED

(2 AUG 1 4 2009

No. 08-1393

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

STEPHEN EDWARD MAY,

Petitioner,

VS.

STATE OF ARIZONA,

Respondent.

On Petition for Writ of Certiorari

to Division One of the Court of Appeals

of the State of Arizona

BRIEF IN OPPOSITION

TERRY GODDARD

Attorney General

MARY R. O’GRADY

Solicitor General

KENT E. CATTANI

Chief Counsel

Criminal Appeals

(Attorney of Record)

Capital Litigation Section

ROBERT A. WALSH

Assistant Attorney General

Criminal Appeals

Capital Litigation Section

1275 W. Washington

Phoenix, Arizona 85007-2997

Telephone: (602) 542-4686

QUESTION PRESENTED

Durning trial, in his opening and reply briefs to the

Arizona Court of Appeals, and in his petition for review to

the Arizona Supreme Court, Petitioner maintained that,

contrary to state law, the jury instructions on the charged

child-molestation offenses incorrectly identified “lack of

sexual motivation” as an affirmative defense that he had to

prove by a preponderance of the evidence. In an untimely

motion for reconsideration of the Arizona Supreme Court’s

order denying his petition for review, Petitioner presented the

new argument that the child-molestation statutes in effect

when he committed his crimes unconstitutionaliy lowered the

State’s burden of proof by designating “lac’: of sexual

motivation” an affirmative defense. The Anzsna Supreme

Court denied this motion, as well as the Arizona Attorneys

for Criminal Justice’s affiliated motion for leave to appear as

amicus curiae. Petitioner now seeks a writ of certiorari from

this Court to challenge the constitutionality of Anzona’s

child-molestation statutes under the Fourteenth

Amendment’s Due Process Clause.

Does this Court lack jurisdiction under 28 U.S.C.

§ 1257(a) to grant a wmt of certiorari in this case?

Alternatively, should this Court deny review because

Petitioner's constitutional argument was neither pressed nor

passed upon by the Arizona judiciary as a result of his failure

to challenge Armzona’s molestation statutes on Fourteenth

Amendment grounds until he filed his untimely motion for

reconsideration from the state supreme court’s summary

denial of discretionary review?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

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REASONS FOR DENYING THE WRIT

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APPENDIX

TABLE OF AUTHORITIES

CASES PAGE

Adams v. Robertson,

$20 U.S. 83 (1997) 18,19, 20, 21, 22, 28

Anderson v. Harless, 459 U.S. 4 (1982) ....... occ es eeeee cones 29

Apprendi v. New Jersey, 530 U.S. 466 (2000) .. 16, 33, 34, 35

Bankers Life & Casualty Co. v. Crenshaw,

486 U.S. 71 (1988) 19, 20, 30

Blakely v. Washington, 542 U.S. 296 (2004)...............0...... 34

Board of Directors of Rotary Int’] v. Rotary Club of Duarte,

ARES a Pies isthe hececeuahncumentceavsaiaceeenie: untae 21

Bryan v. State, 745 P.2d 905 (Wyo. 1987).................... 31, 32

Campbell v. Louisiana, 523 U.S. 392 (1998) 19

Cardinale v. Louisiana, 394 U.S. 437 (1969) cociecexae” Gu

Castille v. Peoples, 489 U.S. 346 (1989) me .

Charleston Federal Savings & Loan Ass’n v. Alderson,

DAWU, FE Ca iivvsnvnsississcininseasivsrccace hae seenaeirerie raf

City of Tempe v. Prudential Ins. Co.,

SAF Fe Fe OI, Fe boc vnes oven sntiveinseccsvatvsossdasanioaavens

Chark& V;, Asem, SOS UF... Fo CAGE oviccscaccccccccancseccoesascess

Clark v. Jeter, 486 U.S. 456 (1988) :

Cunningham v. California, 549 U.S. 270 (2007)................. ;

Cutter v. Wilkinson, 544 U.S. 709 (2005)...................0cccesee.

Pex parte Rovall, 157 US. 260 CERO ocsccccccccsisecsccensesesseecees

Exxon Corp. v. Eagerton, 462 U.S. 176 (1983).........00...... 2

FCC v. Fox Television Stations, Inc.,

129 S.Ct. 1800 (2009)

Fuller v. Oregon, 417 U.S. 40 (1974)

Garcia v. Browning, 151 P.3d 533 (Ariz. 2007)................

Gray v. Netherland, 518 U.S. 152 (1996)... 29

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund,

NG SF as FO Ch oitsssissaviniccavonesidisawviecdciiene Zz

Harris v. United States, 536 U.S. 545 :

Herndon v. State of Georgia, 295 U.

Howell v. Mississippi, 543 U.S. 440 (2005)

Illinois v. Gates, 462 U.S. 213 (1983)

op, ot Me SRR ae | ’y 2 re shoe

In re Winship, 397 U.S. 358 (1970) , 24, 27

Kentucky v. Stincer, 482 U.S. 730 (1987) 18

Landrigan v. Schnro, 550 U.S. 465 (2007)... eens 25

Lopez v. Davis, 531 U.S. 230 (2001) 29

Mallory v. Smith, 27 F.3d 991 (C.A.4 1994) 25

Martens v. Shannon, 836 F.2d 715 (C.A.1 1988) 25

McGoldrick v. Compagnie Generale Atlantique,

309 U.S. 430 (1940)..... , 20

McNair v. Campbell, 416 F.3d 1291 (C.A.11 2005) 25

Monks v. New Jersey, 398 U.S. 71 (1970)............ccceeeeeeeeeee 20

Montejo v. Louisiana, 129 S.Ct. 2079 (2009)................2... .18

Mullaney v. Wilbur, 421 U.S. 684 (1975)... eee 25

National Collegiate Athletic Ass’n v. Smith,

Pe ee Me ia a inast casevinacaesieeadubiawicsesesdsinuccussnckoan 29

©’Sullivan v. Boerckel, 526 U.S. 838 (1999) 19

Pacific Bell Tel. Co. v. Linkline Communications, Inc.,

129 S.Ct. 1109 (2009) 18

Patterson v. New York, 432 U.S. 197 (1 977) a0

People v. Piper, 567 N.W.2d 483 (Mich. App. 1997)....31, 32

People v. West, 724 P.2d 623 (Colo. 1986) .................. Si, ae

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) 28

Picard v. Connor, 404 U.S. 270 (1971) 19

Ring v. Arizona, 536 U.S. 584 (2002)..............0 ee. 34, 35

Rose v. Lundy, 455 U.S. 509 (1982) 19

Sandstrom v. Montana, 442 U.S. 510 (1979)... 29

SU Vi. TO, Fe te Be CE PE Ns cessiccesncieisesicccacesevesseness 20

State v. Brooks, 586 P.2d 1270 (Anz. 1978) 11

State v. Helffnch, 846 P.2d 151 (Ariz. App. 1992)............. 2¢

State v. Johnson, 570 P.2d 503 (Anz. App. 1977)

seme V. FOROS, © P50 SAS CI) voaessssccncccnctessccconesceoneness Se ae

State v. Lee, 542 P.2d 413 (Ariz. 1975).........cccccsccacesses ee 26

State v. May,

2008 WL 2917111 (Ariz. App. Jul. 24, 2008) .........2cc..

State v. McKinley, 755 P.2d 440 (Anz. App. 1988) ........... 24

State v. Mercado-Torres, 955 P.2d 35 (App. Anz. 1997)....23

State v. Montano, 65 P.3d 61 (Ariz. 2003) ...00......ccceeeeeeeeee 23

State v. Nye, 302 N.W.2d 83 (Wis. App. 1981)......31, 32, 40

State v. Osborn, 490 N.W.2d 160 (Neb. 1992)........ 31, 32, 40

State v. Ramsey, 124 P.3d 756 (Ariz. App. 2005)

State v. Ray, 966 A.2d 148 (Conn. 2009)......00.....0000.ceeee.

State v. Sepahi, 78 P.3d 732 (Anz. 2003)

State v. Simpson, 173 P.3d 1027 (Anz. App. 2

State v. Spreitz, 945 P.2d 1260 (Anz. 1997)

State v. Schwartz, 935 P.2d 891 (Ariz. App. 1996)............. )

State v. Takacs, 819 P.2d 878 (Ariz. App. 1991) ................ |

State v. Tankersley, 956 P.2d 486 (Anz. 1998)........0..........

State v. Tibbetts, 281 N.W.2d 499 (Minn. 1979)

State v. Tison, 633 P.2d 335 (Ariz. 1981) ...0.... cc eee

State v. Trostle, 951 P.2d 869 (Ariz. 1997)

State v. Whipple, 866 P.2d 1358 (Anz. App. 1993)

Street v. New York, 394 U.S. 576 (1969)

Swoopes v. Sublett, 196 F.3d 1008 (C.A.9 1999)...

United States v. Cameron, 907 F.2d 1051 (C.A.11 1990)...

United States v. Dunkel, 927 F.2d 955 (C.A.7 1991)

United States v. Toliver, 351 F.3d 423 (C. A. 9 2003)...

United States v. United Foods, Inc., 533 U.S. 405 (2001) .. 29

State v. Turrentine, 730 P.2d 238 (Ariz. App. 1986) :

Webb v. Webb, 451 U.S. 493 (1981) 20

Williams v. Taylor, 529 U.S. 420 (2000)

Yollen v. City of Glendale,

191 P.3d 1040, 1051 (Anz. App. 2008)

Statutes

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A_R.S. § 13-205(A) eee ey,

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A.R.S. |

ARS. §

ARS. §

ARS. §

ARS. §

A.R.S. §

ARS. §

ARS. §

28 U.S.A

Rules

Anz.

Ariz.

Ariz.

Ariz.

Ariz

Anz.

Ariz.

Ariz.

3—1407(E)...... 7, Bi M 10, 41, FZ, 15,

13—1410.............2, 4, 6, 8, 10, 12, 13, 14, 2

13—1410(A).............8, 10, 18, 24, 26, 27, :

§ 1257(a) ... ERY DP ROUEN a :.

. Crim.

.Crnim.

_ Crim.

_Cnim.

.Cnim.

.Crim.

. Crim.

.Cnim. F

Constitutional Provisions

Ariz. Co

nst. art 2, § ¢

U.S. Const. Amends. 5,

OPINION BELOW

The Court of Appeals’ memorandum decision, Stale v

May, 2008 WL 2917111 (Anz. App. Jul. 24, 2008), is

unreported. Pet. App. 1-11. The Arizona Supreme Court’s

order denying review without comment is also not reported.

Pet. App. 24; Resp. App. 29a.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the United

States Constitution states:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges and immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

The version of A.R.S. § 13-103 in effect at the time of

Petitioner’s offenses provided as follows:

A. All common law offenses are hereby

abolished. No conduct or omission constitutes an

offense unless it is an offense under this title or

under another statute or ordinance.

B. For the purposes of this section, “affirmative

defense” means a defense that is offered and that

attempts to justify the criminal actions of the

accused or another person for whose actions the

accused may be deemed to be accountable.

Affirmative defense does not include any defense

that either denies an element of the offense charged

or denies responsibility, including alibi,

misidentification or lack of intent.’

Arizona’s child-molestation statute, A.R.S. § 13-1410,

reads, in pertinent part, as follows:

A. A person commits molestation of a child by

intentionally or knowingly engaging in or causing a

person to engage in sexual contact, except sexual

contact with the female breast, with a child who is

under fifteen years of age.

A.R.S. § 13-105.10, which defines “intentionally” and

“knowingly” as the “culpable mental state[s]” applicable to

Arizona’s criminal offenses, reads as follows:

“Culpable mental state” means intentionally,

knowingly, recklessly or with criminal negligence as

those terms are defined in this paragraph:

(a) “Intentionally” or “with the intent to”

means, with respect to a result or to conduct

described by a statute defining an offense, that a

person’s objective is to cause that result or to

engage in that conduct.

' After Petitioner’s commission of the charged offenses, but before

his trial, the Arizona Legislature amended A.R.S. § 13—103(B) by

substituting “excuse” for “justify.” See 2006 Laws Ch. 199, § 2, effective

April 24, 2006; Resp. App. 34a. The Arizona Supreme Court

subsequently held that Senate Bill 1145, which included this amendment

to A.R.S. § 13-103(B), lacked retroactive effect and would thus “apply

only to offenses occurring on or after its effective date of April 24, 2006.”

Garcia v. Browning, 151 P.3d 533, 537, § 20 (Ariz. 2007).

(b) “Knowingly” means, with respect to

conduct or to a circumstance described by a

statute defining an offense, that a person is aware

or believes that the person’s conduct is of that

nature or that the circumstance exists. It does not

require any knowledge of the unlawfulness of the

act or Omission.

The version of A.R.S. § 13-205 in effect at the time of

Petitioner’s offenses provided as follows:

A. Except as otherwise provided by law, a

defendant shall prove any affirmative defense

raised by a preponderance of the evidence,

including any justification defense under chapte

4 of this title.

B. This section does not affect the

presumption contained in § 13-411, subsection C

and § 13-503.

A.R.S. § 13-—1401.2, which sets forth the statutory

definition of “sexual contact,” provides:

s

“Sexual contact” means any direct or indirect

* After Petitioner committed the charged offenses, but before his

trial, the Arizona Legislature amended A.R.S. § 13~205(A) by striking

the text identifying justification defenses as affirmative defenses, and by

requiring the prosecution to disprove beyond a reasonable doubt any

justification defense that the defendant raised at trial. See 2006 Laws Ch

199, § 2, effective Apri] 24, 2006; Resp. App. 35a. Because the legislature

did not give this statute retroactive effect, the post-April 24, 2006 version

of A.R.S. § 13-205 that Petitioner appended to his brief, Pet. App. 27, is

inapposite. See Garcia, 151 P.3d at 536-37, §] 14-21

touching, fondling or manipulating of any part of

. the genitals, anus or female breast by any part of the

body or by any object or causing a person to engage

in such contact.

A.R.S. § 13-1407, the statute setting forth the

“Defenses” available for the sexual offenses defined in

Chapter 14 of Anzona’s criminal code, reads, in pertinent

part, as follows:

FE. It is a defense to a prosecution pursuant to

§ 13-1404 or 13-1410 that the defendant was not

motivated by a sexual interest.

Arizona Rule of Criminal Procedure 16.1 provides, in

pertinent part, as follows:

a. Scope of rule. This rule shall govern the

procedure to be followed in cases between

arraignment and trial, unless specifically provided

by another rule. Rules 16.1 and 16.2 shall apply to

criminal proceedings in ail courts

b. Making of motions before trial. All motions

shall be made no later than 20 days prior to trial, or

at such other time that the court may direct. .. .

c. Effect of failure to make motions in timely

manner. Any motion, defense, objection, request not

timely raised under Rule 16.1(b) shall be precluded,

unless the basis therefor was not then known, and by

exercise of reasonable diligence could not then have

been known, and the party raises it promptly upon

learning of it.

Arizona Rule of Criminal Procedure 31.25, which

governs the filing of amicus bnefs on direct review, 1s

|

lengthy and thus has been reproduced in the attached

appendix Resp App 36a-37a

STATEMENT OF THE CASE

On February 15, 2006, the State charged Petitioner,

Stephen Edward May, with eight counts of child molestation,

ciass 2 felonies and dangerous crimes against children, in

violation of A.R.S. §§ 13-1410 and —604.01. (P.I., Item 1.)

The indictment alleged that Petitioner had committed these

crimes between the dates of June 1, 2005, and September 30,

2005. (/d.) After the trial court granted Petitioner’s motion to

sever Count 8 from the other charges, Petitioner’s trial on

Counts | through 7 commenced on January 2, 2007. Ud,

Item 29; M.E., Items 43, 47.) The jury ultimately acquitted

Petitioner on Counts 5 and 6, but convicted him of molesting

three children no older than 9 years old—-Luis A., Danielle

A., and Taylor S.° (R.T. 1/3/07, at 47, 66, 113-14; M.E., Item

233.)

Luis testified at trial that Petitioner, then an aide at Taven

Elementary school, molested him inside a classroom by

slipping his left hand underneath Luis’ desk and resting it on

top of Luis’ “private part” (penis) while helping Luis solve a

computer problem. (R.T. 1/3/07, at 21-26, 33, 36-38, 40-44,

51-52; R.T. 1/4/07, at 7-9, 20.) Both Danielle and Taylor

testified that Petitioner had manually touched their vaginas

over their bathing suits on two separate occasions, at their

apartment complex’s swimming pool. (R.T. 1/3/07, at 70-77,

83-84, 100, 105-06, 116-25, 135-37; R.T. 1/4/07, at 109, 114;

R.T. 1/8/07, at 83-85; R.T. 1/9/07, at 44-49, 54-55.) During

pretrial interviews, Petitioner claimed not to remember Luis

and denied even accidentally touching Danielle and Taylor’s

genitalia while in the swimming pool. (R.T. 1/8/07, at 89-90,

93.) During trial, however, Petitioner acknowledged the

possibility that he might “have touched [Danielle and Taylor]

> The State dismissed Count 8 after Petitioner's trial. (R.T. 1/18/07,

at 4-12.)

in the general areas of their genitals,” but disavowed ever

touching their vaginas intentionally, knowingly, or with any

sexual motivation. (R.T. 1/10/07, at 39-41, 56.)

Petitioner requested a jury instruction that required the

State to prove “beyond a reasonable doubt that [he]

intentionally or knowingly, and with the motivation of a

sexual interest, directly or indirectly touched . . . any part of

the genitals .. . of a child under 15 years of age.” Pet. App.

35. In support of his position that “the State [was] obligated

tO prove a motivation of sexual interest as an element of the

offense,” Pet. App. 38, Petitioner relied exclusively upon

Senate Bill 1145’s amendments to the statutory definition of

“affirmative defense” set forth in A.R.S. § 13—103 (B):

My reference is to the amended Senate Bill

1145,‘ effective date April 24, °06, which, in effect,

abolishes common law and affirmative defenses. In

pertinent part, the amended Arizona Revised

Statutes 13—103B states [that an] affirmative

defense does not include any justification defense or

[a] defense that either denies an element of the

offense charged or denies responsibility, including

misidentification or lack of intent.

My view is that that establishes that there is no

necessity remaining as there was under the previous

circumstance where lack of intent would be an

affirmative defense for the defendant to prove by a

preponderance of the evidence that allegation. |

believe that with the amendment to the statute, the

State is obliged to prove beyond a reasonable doubt

* The appendix to this brief reproduces the pertinent text of SB 1145

Resp. App. 34a-35a

that the defendant was motivated by sexual interest.

I think that is part of the offense that’s charged.

Pet. App. 38-39.

The trial court deferred ruling on Petitioner’s proposed

instruction to afford the State time to respond. Pet. App. 39-

40. The prosecutor ultimately opposed this instruction on

three grounds: (1) A.R.S. § 13-1410 (A) did not include

sexual motivation as an element of child molestation; (2)

A.R.S. § 13-1407 (E) established “lack of sexual motivation”

as an affirmative defense that A.R.S. § 13-205 (A) required

Petitioner to prove by a preponderance of the evidence; and

(3) the recent amendments to A.R.S. §§ 13-103 and —205(A)

affected only the justification defenses set forth in Chapter 4

of Arizona’s criminal code. Pet. App. 41-42, 45-51.

Petitioner responded by reiterating his position that, under

“the current state of [A.R.S. Section] 13-103, it is the state’s

burden to prove a lack of sexual motivation beyond a

reasonable doubt.” Pet. App. 43.

The trial court sustained the State’s objection to

Petitioner’s submitted child-molestation instruction. Pet.

App. 41-42. Because Petitioner intended to argue his lack of

sexual motivation to the jury, Pet. App. 42-43, the trial court

gave the following jury instructions, over his objection:

The crime of molestation of a child requires

proof that the defendant knowingly touched, directly

or indirectly, the genitals of a child under the age of

15. It’s a defense to child molestation that the

defendant was not motivated by sexual interest.

The defendant has raised the affirmative defense

of lack of sexual motivation with respect to the

charged offense of child molestation. The burden of

proving each element of the offense beyond a

reasonable doubt always remains on the State.

However, the burden of proving the affirmative

defense of lack of sexual motivation is on the

defendant. The defendant must prove the affirmative

defense of lack of sexual motivation by a

preponderance of the evidence. If you find that the

defendant has proved the affirmative defense of lack

of sexual motivation by a preponderance of the

evidence, you must find the defendant not guilty of

the offense of molestation of a child.

Pet. App. 53-54.

In his subsequent motion for a new trial, Petitioner

alleged that this jury instruction incorrectly restated “the

burden of proof and standard of proof .. . regarding the

defense of sexual motivation or sexual interest.” Resp. App.

2a. Once again, Petitioner relied exclusively upon “Senate

Bill 1145” and “the most recent amendments to A.R.S. § 13—

103” to argue that “the defense of lack of sexual moti. ation

or sexual interest [] codified in A.R.S. § 13-1407 (E)” was

no longer an affirmative defense that defendants had to

prove. Resp. App. 2a-3a. Petitioner predicated this statutory-

construction argument upon the legisiature’s substitution of

the word “excuse” for “justify” in A.R.S. § 13-—103(B),

which redefined ‘affirmative defense’ as including only

those defenses “that attempt[] to EXCUSE the criminal

actions of the accused.” Resp. App. 3a (emphasis in original.)

Petitioner concluded that the court should have instructed the

jury that the State had to prove his sexual motivation beyond

a reasonable doubt because: (1) the lack of sexual motivation

was a justification defense falling outside the amended

statutory definition for “affirmative defense”; and (2)

Petitioner’s conduct was justified because he “acknowledged

the possibility of unintended or accidental touching” during

the charged molestation incidents. /d.

Despite being afforded an opportunity to supplement his

written arguments, Petitioner elected to “rest on the content

of his motion [for new trial].” Resp. App. 6a. Thus, Petitioner

never contended before the trial court that Arizona’s child-

molestation statutes violated the Fourteenth Amendment’s

Due Process Clause by requiring defendants to prove the

non-existence of “sexual motivation” as an affirmative

defense, pursuant to A.R.S. § 13-1407 (E).

Before the Arizona Court of Appeals, Petitioner likewise

failed to challenge the constitutionality of Anzona’s child-

molestation statutes, A.R.S. §§ 13-1410 (A) and —1407(E).

Instead, Petitioner relied upon these statutes tc argue that the

trial court’s jury instructions contradicted the Arizona

Legislature’s alleged intent to assign the prosecution the

burden of proving sexual motivation. Petitioner accordingly

framed his opening brief’s first issue as follows: “Isn’t the

defendant entitled to a new trial when the trial judge placed

the burden on him to prove lack of sexual motivation?” Resp.

App. 12a (emphasis added). Petitioner thereafter argued that

“the jury instructions unconstitutionally placed the burden of

proof on fhiml,” because the tral court allegedly

misconstrued the type of defense that the Arizona Legislature

intended to establish in A.R.S. § 13-1407 (E). Resp. App.

12a-15a (emphasis added).

Petitioner preliminarily noted the existence of two

different types of defenses: (1) “affirmative defenses,” which

are “specifically recognized and defined by the legislature,

must be raised by the defendant and can ‘justify’ or ‘excuse’

conduct that is otherwise criminal”; and (2) “legal defenses,”

which “gof] specifically to whether the prosecution has

Ll

carried its burden of proving each essential element to the

crime—at least when specific intent is at issue.” Resp. App.

12a-13a (quoting United States v. Cameron, 907 F.2d 1051,

1063 (C.A.11 1990)). Petitioner asserted that A.R.S. § 13-

1407 (E) established a “legal defense” to an element of child

molestation that the State needed to disprove beyond a

reasonable doubt because: (1) this statute allowed defendants

to “raise the defense that any touching of a child under the

age of 15 was not sexually motivated,” Resp. App. 13a-14a;

and (2) Arizona “{cJase law explains that sexual motivation

constitutes a specific intent component of [child molestation],

and is an essential element of it,” Resp. App. 14a (citing

State v. Brooks, 586 P.2d 1270 (Ariz. 1978), and State v.

Turrentine, 730 P.2d 238 (Ariz. App. 1986)).

Petitioner next claimed that the Arizona [Legislature

manifested its intention to designate “lack of sexual

motivation” a “legal defense” in two additional ways. First,

Petitioner noted that A.R.S. § 13-1407 (E) labeled the “lag¢k

of sexual motivation” a “defense,” not an “affirmative

defense,” and claimed that this “word choice” “illuminatied

the legislature’s intent.” Resp. App. 14a. Second, Petitioner

contended that the defense of “lack of sexual motivation” fel]

outside A.R.S. § 13--103 (B)’s definition of “affirmative

defense,” which excluded “any defense that denies an

element to the offense charged ... including . . . lack of

intent.” (Emphasis added.) Characterizing “lack of sexual

motivation” as a defense that alleged such a “lack of intent,”

Petitioner argued that A.R.S. § 13—-103(B)’s text constituted

‘yet another illustration of . . . the legislative intent” not to

classify “lack of sexual motivation” as an affirmative

defense. Resp. App. 14a-1Sa.

After concluding that A.R.S. § 13-1407 (E) established a

“legal defense,” Petitioner asserted that this “distinction”

between “affirmative” and “legal” defenses made a “big

12

—

(difference]” in his case because “A.R.S. § 13-205 applying

as it does to only affirmative defenses, did not shift the

burden of proof, by a preponderance or otherwise, to [him].”

Resp. App. 15a. Petitioner consequently concluded, “This

means that we are left with the cherished principle and

constitutional due process right, imposing upon the state the

burden to establish each element of the offense beyond a

reasonable doubt.” /d. (citing In re Winship, 397 U.S. 358,

364 (1970); U.S. Const. Amends. 5, 14; and Ariz. Const. Art

2, § 4). Accordingly, Petitioner argued that “the relief” to

which he was entitled was not the invalidation of Arizona’s

molestation statutes, but rather “[a] new trial with instruction

that the state must prove the presence of sexual motivation

beyond a reasonable doubt.” Resp. App. 16a.

After Petitioner filed his opening brief, the Anzona

Court of Appeals issued an opinion in a different child-

molestation case, wherein it held that the trial court was not

required to instruct the jury that the State had to prove the

defendant’s sexual interest in child-molestation cases

because: (1) A.R.S. § 13-1407 (E) established an affirmative

defense that the defendant had to prove by a preponderance

of the evidence; and (2) the Arizona cases that required proof

of the defendant’s “motivation by sexual interest” as an

element of child molestation were “not persuasive” in

construing “the current version of A.R.S. § 13-1410 enacted

in 1993, which differs from the previous version as the

current version does not contain the language ‘knowingly

molests.’” State v. Simpson, 173 P.3d 1027, 1029-31, 9§ 15-

22 (Anz. App. 2007).

In its answering brief, Respondent accordingly cited

Simpson to refute Petitioner’s contention that sexual

motivation was an element of the current child-molestation

statute, and thus maintained that the tmnal court’s jury

instructions properly allocated to Petitioner the burden of

13

proving the “lack of sexual motivation” affirmative defense

by a preponderance of the evidence. Resp. App. 19a;

Answering Brief, at 15-17.

In his reply brief, Petitiouer did not argue that, if

Simpson were correct, the Arizona Legislature had violated

the Fourteenth Amendment’s Due Process Clause by deleting

‘knowingly molests” from its current version of A.R.S. § 13-

1410. Instead, Petitioner resorted to several rules of statutory

construction to argue that the Arizona Legislature’s true

intent was to retain sexual motivation as an element of the

current child-molestation statute:

A key point that the State fails to address is that

both the title of A.R.S. §13-—1410.A and its contents

refer to “molestation.” The word choice formed the

keystone of State v. Brooks and State v. Turrentine,

where the statute in question used the word

“molests.” Oddly, the cases upon which the State

relies fail to mention ihis fact. /f is important to

remember that the legislature is presumed to know

of the judicial interpretation of a statute and to

approve it when it retains the same language in the

statute after amendment. That principle applies

here, so that the term “molestation” retains an

element of sexual motivation.

Resp. App. 20a-2la (footnotes omitted; emphasis

added).’

* Petitioner alternatively sought to distinguish Simpson on the ground

that the defendant in that case had not “raise[d] the defense [of lack of

sexual motivation], either legally or affirmatively,” and classify its

holdings as “obiter dictum.” Resp. App. 19a.

14

On July 24, 2008, the Arizona Court of Appeals affirmed

Petitioner's convictions in an unpublished memorandum

decision. Pet. App. 1-11. The court first addressed

Petitioner's argument that “the superior court erred in

instructing the jury that lack of sexual motivation is an

affirmative defense that he was required to prove by a

preponderance of the evidence [because] the State should

have the burden to prove beyond a reasonable doubt that he

acted with the requisite sexual motivation.” Pet. App. 3.

Finding “no reason why Simpson does not dispose of this

issue,” the court held that “the superior court did not abuse its

discretion in instructing the jury that [Petitioner] had the

burden to prove he was not motivated by sexual interest

when he touched the victims’ genitals through their clothes.”

Pet. App. 4-5. Because Petitioner never alternatively

challenged the constitutionality of Arizona’s_ child-

molestation statutes, the memorandum decision was silent on

whether the Arizona Legislature’s 1993 amendment to

A.R.S. § 13-1410 (a) violated the Fourteenth Amendment. In

fact, the court of appeals disposed of Petitioner’s argument

exclusively on _ statutory-construction grounds and

consequently never referenced the federal constitution at all.

Id.

In his petition for review to the Anzona Supreme Court,

Petitioner once again failed to argue that Arizona’s child-

molestation statutes, as construed by Simpson, violated the

Fourteenth Amendment’s Due Process Clause. Instead,

Petitioner claimed that the characterization of “the defenses

in A.R.S. § 13-1407” as “affirmative defenses that the

defendant, not the state must prove” was a “result

imposed by the appellate courts, not by the legislature.”

Resp. App. 24a (emphasis added). Petitioner consequently

framed the issue on review as follows: “Did the Court of

Appeals erroneously shift the burden of proof to the

15

defendant, to prove that he was not sexually motivated?”

Resp. App. 25a (emphasis added). Petitioner thereafter

resorted to several rules of statutory construction to challenge

the court of appeals’ determinations in Simpson and his own

case that A.R.S. § 13-1407(E) established an “affirmative,”

as opposed to a “‘legal,” defense. Resp. App. 26a-28a.

Petitioner concluded that he was “entitled to a new trial, with

the burden of proof properly allocated to the state, beyond a

reasonable doubt.” Resp. App. 28a. Petitioner, however, did

not cite any federal cases or constitutional provisions in

support of his request for review of the trial court’s jury

instructions, despite the fact that he expressly invoked “the

state and federal constitutions” while framing the second

issue that his petition for review presented to the Arizona

Supreme Court.° Resp. App. 25a.

On February 10, 2009, the Arizona Supreme Court

denied review summarily and without comment. Resp. App.

29a.

On March 24, 2009, Petitioner filed with the Arizona

Supreme Court a “Motion for Reconsideration of Denial of

Review.” Resp. App. 30a-33a. For the first time ever,

Petitioner chailenged the constitutionality of the child-

molestation statute:

The child molestation statute violates due

process because it relieves the state from proving

every element of the charged crime beyond a

reasonable doubt. First, the statute does this by

making too many everyday and innocent acts fall

° In his petition for review, Petitioner prefaced the second issue as

follows: “Under the state and federal constitutions, a defendant is

guaranteed a trial by a fair and impartial jury, including a jury free from

taint by outside sources.” Resp. App. 25a

16

within its definition of child molestation. Second,

although the legislature has broad authority to

define the elements of a crime, it may not lower the

State’s burden of proof by calling an “element”

something else.

Resp. App. 32a (citing Apprendi v. New Jersey, 530 U.S.

466, 476 (2000)).

In concert with Petitioner, the Arizona Attorneys for

Criminal Justice (“AACJ”) lodged with the Anzona Supreme

Court a simultaneously-filed motion for leave to appear as

Amicus Curiae, to which AACJ’s attorneys attached a

proposed amicus brief, which raised the arguments presented

in the pending petition for certiorari. Pet. App. 25-26; Resp.

App. 30a-32a. The State opposed all of these motions and

also moved the Arizona Supreme Court to strike the amicus

brief. Pet. App. 25.

On March 27, 2009, the Arizona Supreme Court

summiarily denied Petitioner’s motion for reconsideration and

AACJ’s request for leave to appear as amicus curiae. Id. The

Court therefore deemed the State’s motion to strike as

“moot.” Id.

In recapitulation, Petitioner’s sole contention in state

court—until his untimely motion for reconsideration of the

Arizona Supreme Court’s denial of review—was that the tnal

court’s jury instructions conflicted with the Arizona

Legislature’s true intention to require the State to bear the

burden of proof regarding his sexual interest. While

advancing this statutory-construction argument before all

three tiers of the state judiciary, Petitioner not only eschewed

attacking the constitutionality of Arizona’s molestation

statutes, he expressly relied upon the very statutes challenged

here to buttress his position that the lower courts had

17

misidentified the defendant as the party to whom the Arizona

Legislature had actually intended to assign the burden of

proof regarding his sexual motivation. Pet. App. 38-39, 41-

42; Resp. App. 2a-4a, 10a-16a, 19a- 21a, 23a-24a, 26a-28a

REASONS FOR DENYING THE WRIT

Petitioner’s Fourteenth Amendment Due Process

challenge to Arizona’s child-molestation statutes was neither

addressed by, nor properly presented to, the Arizona Court of

Appeals. Consequently, this Court lacks jurisdiction to grant

the requested writ under 28 U.S.C. § 1257(a). Alternatively,

this Court, as one of final review and not of first view, should

deny the writ because granting review would render this

Court the first to consider the constitutionality of Arizona’s

child-molestation laws, despite the hallowed principle of

federal-state comity. Moreover, Petitioner’s reliance on this

Court’s Sixth Amendment jury-trial jurisprudence is

inapposite. Finally, granting a writ in this case will not

resolve the particular conflict identified in the pending

petition because the cases cited by Petitioner involve

differently-worded statutory definitions and do not address

the precise federa] due process claim that Petitioner raises in

his pending petition.

PETITIONER DID NOT PROPERLY RAISE HIS

CONSTITUTIONAL CHALLENGE TO ARIZONA’S

CHILD-MOLESTATION STATUTES IN STATE

COURTS.

First, this Court simply lacks jurisdiction under 28 U.S.C.

§ 1257(a) to grant the requested writ of certiorari because

Petitioner’s Fourteenth Amendment Due Process challenge to

Arizona’s child-molestation statutes was neither pressed nor

passed upon by the Arizona Court of Appeals. “Under

that statute and its predecessors, this Court has almost

18

unfailingly refused to consider any federal-law challenge to a

state-court decision unless the federal claim ‘was either

addressed by or properly presented to the state court that had

rendered the decision [it] ha[s] been asked to review.’”

Howell v. Mississippi, 543 U.S. 440, 443 (2005) (quoting

Adams v. Robertson, 520 U.S. 83, 86 (1997), and citing

Illinois v. Gates, 462 U.S. 213, 218 (1983)). Accord

Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (collecting

cases). Based on this jurisdictional deficiency alone, this

Court should decline review.

Lack of jurisdiction aside, the requested writ should be

denied because granting review would render this Court the

very first to address Petitioner’s belated constitutional

challenge to A.R.S. §§ 13-1410 and —1407(E), a posture that

would contradict this Court’s most recent and increasingly

frequent explanations for refusing to address issues not

decided by any lower court: “({t]his Court. . . is one of final

review, ‘not of first view.’” FCC v. Fox Television Stations,

Inc., 129 S.Ct. 1800, 1819 (2009) (quoting Cutter v

Wilkinson, 544 U.S. 709, 718 n.7 (2005)). Accord Monteje v

Louisiana, 129 S.Ct. 2079, 2092 (2009) (same); Pacific Bell

Tel. Co. v. Linkline Communications, Inc., 129 S.Ct. 1109,

1123 (2009) (same). Indeed, “‘it is the settled practice of this

Court, in the exercise of its appellate jurisdiction, that in only

exceptional cases, and then only in cases coming from

federal courts, that it considers questions. urged by a

petitioner or appellant not pressed or passed upon in the

courts below.” Kentucky v. Stincer, 482 U.S. 730, 747 n.22

(1987) (quoting McGoldrick v. Compagnie Generale

Atlantique, 309 U.S. 430, 434 (1940)).

The principle of federal-state comity further compels the

conclusion that Petitioner should not be permitted to

challenge the state-court judgment against him with a new

claim that he never presented properly to the state judiciary

first.’ “Under our federal system, the federal and state courts

are equally bound to guard and protect nghts secured by the

Constitution.” Rose v. Lundy, 455 U.S. 509, 518 (1982)

(quoting Ex parte Royall, 117 U.S. 241, 251 (1886)).

“Comity . dictates that when a prisoner alleges that his

continued confinement for a state court conviction violates

federal law, the state courts should have the first opportunity

to review this claim and provide any necessary relief.”

Williams v. Taylor, 529 U.S. 420, 437 (2000) (quoting

O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)). Thus, this

Court should decline Petitioner’s invitation to consider the

federal constitutional question that he never properly

presented to Arizona’s courts, for “‘it would be unseemly in

our dual system of government’ to disturb the finality of state

judgments on a federal ground that the state court did not

have occasion to consider.” Adams, 520 U.S. at 90 (quoting

Webb v. Webb, 451 U.S. 493, 500 (1981) (quoting Picard v

Connor, 404 U.S. 270, 275 (1971)). Accord Bankers Life &

Casualty Co., 486 U.S. at 79 (same).

The doctrine of state-federal comity applies with its

greatest force in this case because Petitioner seeks certiorari

to invalidate Arizona’s child-molestation statutes on a federal

constitutional ground never properly raised in state court.

“Apart from the reluctance with which every court should

proceed to set aside legislation as unconstitutional on

grounds not properly presented, due regard for the

appropriate relationship of this Court to state courts requires

” See ( ‘ampbell v. Louisiana, $23 U.S. 392, 403 (1998) C*With ‘very

rare exceptions’ we will not consider a petitioner’s federal claim

unless it was either addressed by or properly presented to the state court

that rendered the decision that we have been asked to review.’’) (quoting

4dams, 520 U.S. at 86); Clark v. Jeter, 486 U.S. 456, 458 (1988) (“It is

our practice, when reviewing decisions by state courts, not to decide

federal claims that were not ‘pressed or passed upon below.’”’) (quoting

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 79-80 (1988))

20

{it} to decline to consider and decide questions affecting the

validity of state statutes not urged or considered there.’

McGoldrick, 309 U.S. at 434. See also Monks v. New Jersey,

398 U.S. 71 (1970); Slagle v. Ohio, 366 U.S. 259, 264

(1961). By failing to properly present his federal due-process

challenge to Arizona’s molestation statutes to the state courts,

Petitioner frustrated the following important policies

underlying the doctrine of federal-state comity:

(1) Giving state courts the opportunity to

address federal claims by implementing “a number

of less intrusive, and possibly, more appropriate,

resolutions,” Bankers Life & Casualty Co., 486 U.S.

at 79-80, including resorting to “independent and

adequate state grounds that would pretermit the

federal issuc.” Webb, 451 U.S. at 500. See also

Adams, 520 U.S. at 90; Gates, 462 U.S. at 222

(2) Allowing “state courts to exercise their

authority, which federal courts, including this

[Court], do not have to the same extent, to construe

State statutes so as to avoid or obviate federal

constitutional challenges.” Webb, 451 U.S. at 500

See also Cardinale, 394 U.S. at 439

(3) Affording state courts the opportunity to

address a federal claim’s merits in a reasoned

opinion, the generation of which would beneficially

expound the state-law provisions at issue and create

an adequate legal record that would obviate the need

for this Court to engage in labor-intensive plenary

review. See Adams, 520 U.S. at 91; Bankers Life &

Casualty C'o., 486 U.S. at 79-80; Webb, 451 US. at

500-0 |]

2)

a

Because the Arizona Court of Appeals’ memorandum

decision was silent on the constitutionality of Arizona’s

child-molestation statutes under the Fourteenth Amendment’s

Due Process Clause, longstanding precedent requires

Petitioner to overcome the presumption that the state court’s

failure to address this federal question was attributable to his

own failure to present it in timely, procedurally proper

fashion.® This burden Petitioner cannot carry.

Petitioner’s motion for reconsideration of the Arizona

Supreme Court’s order denying review constituted the sole

time in state court that he ever explicitly argued that

Anzona’s child molestation statutes violated due process by

relieving the state of its burden to prove every element of this

crime beyond a reasonable doubt. Resp. App. 32a.

Petitioner’s motion for reconsideration, however, did not

properly present this federal question to the Arizona

judiciary.

First, the Arnzona Supreme Court has deemed waived

claims that the defendant failed to first raise in the lower

courts. See State v. Sepahi, 78 P.3d 732, 735, § 19 n.3 (Ariz.

2003) (“This issue was not raised either in the superior court

or the court of appeals, and therefore was not preserved for

our review.”); State v. Tankersley, 956 P.2d 486, 498, 4 48

(Ariz. 1998) (“Because he did not assert this argument in the

® See Adams, 520 U.S. at 86-87 (“When ‘the highest state court has

failed to pass upon a federal question, it will be assumed that the

omission was due to want of proper presentation in the state courts,

unless the aggrieved party in this Court can affirmatively show the

contrary.””) (quoting Board of Directors of Rotary Int'l v. Rotary Club of

Duarte, 48) U.S. 547, 550 (1987)); Charleston Federal Savings & Loan

Ass'n v. Alderson, 324 U.S. 182, 185 (1945) (“it is essential to our

jurisdiction on appeal under [§ 1257's predecessor statute] that there be

explicit and timely insistence in the state courts, as applied, is repugnant

to the federa] Constitution, treaties, or laws.”’).

trial court, however, the issue is waived.”); State v. Spreitz,

945 P.2d 1260, 1276 (Ariz. 1997) (finding defendant’s due-

process claim not raised below to be waived).’

Moreover, Petitioner’s motion for reconsideration did not

fairly present the pending due-process challenge to the state

courts because he raised this claim, for the first time ever,

before the Arizona Supreme Court, a court of a discretionary

review in non-capital cases. See Castille v. Peoples, 489 U.S.

346, 351 (1989) (holding that the submission of a new claim

to a State’s highest court on discretionary review does not

constitute fair presentation); Swoopes v. Sublett, 196 F.3d

1008, 1009-10 (C.A.9 1999) (collecting Arizona cases,

statutes, and constitutional provisions showing that the

Arizona Supreme Court has discretionary review in all but

life-sentence or capital cases); State v. Whipple, 866 P.2d

1358, 1360 (Ariz. App. 1993) (acknowledging that the

Ar:zona Supreme Court has discretionary-review powers in

non-capital cases).

Furthermore, the Arizona Supreme Court denied this

motion for reconsideration of its denial of review without

comment. “The long-established general rule is that the

attempt, to raise a federal question after judgment, upon a

petition for rehearing, comes too late, unless the court

actually entertains the question and decides it.” Herndon v.

State of Georgia, 295 U.S. 441, 443 (1935) (collecting

cases). See also Adams, 520 U.S. at 89 n.3 (collecting

cases).'° Indeed, in the analogous post-conviction review

* Respondents shall demonstrate below that Petitioner did not

challenge Arizona’s molestation statutes in the lower courts.

'° Besides suffering from the same infirmities as Petitioner’s

untimely motion for reconsideration, the AACJ’s simultaneously-filed

amicus curiae brief did not adequately present the Arizona Supreme

Court with the pending Fourteenth Amendment challenge because:

23

context, this Court recently recognized, “Under Arizona law,

a defendant cannot raise new claims in a motion for

rehearing.” Landrigan v. Schriro, 550 U.S. 465, 478 n.3

(2007) (concluding that state prisoner’s motion for rehearing

failed to present the new claim to Arizona’s courts).

To avoid preclusion of any constitutional challenge to

Arizona’s molestation statutes, Arizona law required

Petitioner to file a motion no later than 20 days before his

trial. See Ariz. R. Crim. P. 16.1(b); State v. Montano, 65 P.3d

61, 67, J§ 17-18 (Ariz. 2003) (rejecting an untimely motion

to dismiss on Sixth Amendment pretrial delay grounds and

approvingly citing State v. Mercado-Torres, 955 P.2d 35, 37

(App. Ariz. 1997), which upheld the trial court’s denial of a

defendant’s untimely day-of-trial oral motion to dismiss a

weapons charge on the basis that the underlying statute was

unconstitutional). Instead, Petitioner’s sole argument—both

during and after trial—was that the court’s child-molestation

jury instructions misstated Anzona law because lack of

sexual motivation was no longer an affirmative defense as a

result of recent legislation, Senate Bill 1145. Pet. App. 38-39,

41-43; Resp. App. 2a-4a. Indeed, Petitioner’s trial counsel

never argued that the jury instructions to which he took

objection violated the Fourteenth Amendment’s Due Process

Clause. Pet. App. 38-40, 42-43; Resp. App. 2a-4a.

(1) Arizona courts do not address new issues raised by the amicus curiae,

but not the parties, see Cin’ of Tempe v. Prudential Ins. Co., 510 P.2d

745, 748 (Ariz. 1973); Yollen v. City of Glendale, 191 P.3d 1040, 1051, 4

39 n.39 (Ariz. App. 2008); (2) the Arizona Supreme Court denied

AACJ’s motion for leave to appear as amicus curiae, which was filed

without the State’s foreknowledge, see Ariz. R. Crim. P. 31.2S(a)

(requiring either consent of opposing party or leave of the court to appear

aS amicus curiae in a case); and (3) AAC) filed its motion after the

Arizona Supreme Court denied review, while Rule 31.25(b) provides that

amicus briefs are to be filed after the supreme court grants review. Resp.

App. 36a-37a

24

Because Petitioner failed to raise a federal due-process

challenge to A.R.S. §§ 13-1410 (A) and —1407(E) before the

trial court, he effectively waived on direct appeal the very

constitutional claim he now presents to this Court. See State

v. Schwartz, 935 P.2d 891, 898 (Ariz. App. 1996) (finding

waived constitutional challenge to statute not raised below);

State v. Helffrich, 846 P.2d 151, 153 n.3 (Ariz. App. 1992)

(same); State v. Takacs, 819 P.2d 878, 985 (Ariz. App. 1991)

(same).'' Nor did Petitioner challenge Arizona’s child-

molestation statutes as unconstitutional on any basis in the

opening and reply briefs that he filed with the Anzona Court

of Appeals, and when he subsequently petitioned the Arizona

Supreme Court to review the court of appeals’ memorandum

decision. Resp. App. 10a-l6a, 19a-28a. Indeed, Petitioner’s

sole citation to federal constitutional law in state courr—

made in the seventy-ninth footnote of his opening brief

without accompanying argument—gave the Arizona Court of

Appeals no reason to construe Petitioner’s argument as

extending beyond whether the trial court’s jury instructions

correctly stated Arizona law. Resp. App. 15a, n.79 (citing Jn

re Winship, 397 U.S. at 364; and U.S. Const. Amends. 5, 14.)

Besides the court of appeals’ silence regarding the

constitutionality of Arizona’s child molestation laws, the

following facts demonstrate that Petitioner’s unexplicated

citation to Winship did not squarely present the constitutional

claim presented in his petition for a writ of certiorari.

'' Cf State v. Trostle, 951 P.2d 869, 878 (Ariz. 1997) (pre-trial

publicity not raised below was forfeited); State v. Tison, 633 P.2d 335,

344 (Ariz. 1981) (“The preclusion of issues applies to constitutional

objections as well as statutory objections because an adherence to

procedural rules serves a legitimate state interest in the timely and

efficient presentation of issues.”); State v. Ramsey, 124 P.3d 756, 766, §

30 n.6 (Ariz. App. 2005) (defendant waived due-process claim not raised

below); State v. McKinley, 755 P.2d 440, 443 (Ariz. App. 1988)

(defendant waived Confrontation Ciause claim not raised at trial).

25

First, Winship did not confront a claim that the state

legislature had engaged in unconstitutional burden-shifting,

but instead answered in the affirmative “the single, narrow

question whether proof beyond a reasonable doubt is ‘among

the essentials of due process and fair treatment’ required

during the adjudicatory stage when a juvenile is charged with

an act which would constitute a crime if committed by an

adult.” 397 U.S. at 360 (quoting Jn re Gault, 387 U.S. 1, 30

(1967)). If Petitioner had wished to argue that the 1993

amendments to A.R.S. § 13-1410 (A) unconstitutionally

shifted to him the burden of proving the mens rea element of

child-molestation, he should have made such intention clear

to the Arizona Court of Appeal by citing post-Winship cases

that directly raised that type of claim, such as Patterson v.

New York, 432 U.S. 197 (1977), and Mullaney v. Wilbur, 421

U.S. 684 (1975). Indeed, Petitioner’s unexplicated citation to

Winship, which predates the authorities he cites now before

this Court, would not even satisfy the exhaustion requirement

governing the closely analogous context of federal habeas

review. See McNair v. Campbell, 416 F.3d 1291, 1303

(C.A.11 2005) (“The exhaustion doctrine requires a habeas

applicant to do more than scatter some makeshift needles in

the haystack of the state court record.”); Mallory v. Smith, 27

F.3d 991, 995 (C.A.4 1994) (‘The ground relied upon must

be presented face-up and squarely; the federal question must

be plainly defined. Oblique references which hint that a

theory may be lurking in the woodwork will not tum the

trick.”) (quoting Martens v. Shannon, 836 F.2d 715, 717

(C.A.1 1988)). Cf United States v. Dunkel, 927 F.2d 955,

956 (C.A.7 1991) (“Judges are not like pigs, hunting for

truffles buried 1n briefs.’’).

Furthermore, the context of Petitioner’s citation to

Winship in his opening brief likewise gave the Arizona Court

of Appeals no reason to discern a federal constitutional

26

challenge to A.R.S. § 13-1410 (A).'? At the outset, Petitioner

framed the issue on appeal as whether he was “entitled to a

new trial when the trial judge placed the burden on him to

prove a lack of sexual motivation.” Resp. App. 12a

(emphasis added). Petitioner prefaced his “legal discussion”

by forewarning the court of appeals, “The jury instructions in

issue lead us to wade in the murky waters of the difference

between an affirmative defense and a legal defense. The

difference is critical as it defines who bears the burden of

proof.” /d. Petitioner thereafter relied upon three state-law

sources that he claimed illuminated the Arizona Legislature’s

intent to make “lack of sexual motivation” a “legal defense”

negating an element of child molestation, instead of an

“affirmative defense” that A.R.S. § 13-205 (A) required him

to prove by a preponderance of the evidence: (1) the statutory

definition of ‘affirmative defense” set forth in A.R.S. § 13-

103 (B); (2) Arizona precedent identifying motivation by

sexual interest as an element of prior versions of Arizona’s

child-molestation statute; and (3) the nomenclature used in

the title of A.R.S. § 13-1407. Resp. App. 12a-15a. Only after

concluding that lack of sexual motivation was not an

affirmative defense under Arizona law did Petitioner cite

'2 Arizona courts have no duty to raise issues not raised by the

defendant in criminal cases. See, e.g., State v. Jones, 4 P.3d 345, 357, 4

2? (2000) (“No court has held that the constitutional burden to meet the

Sixth Amendment’s Confrontation Clause shifts to the trial court in the

absence of the defense counsel’s motion or request to grant such

immunity.”); State v. Johnson, 570 P.2d 503, 505 (Ariz. App. 1977)

(holding that the trial court “is not obligated . . . to raise and adjudicate

sua sponte an insanity defense of a competent defendant based or the

theory of the defendant’s insanity at the time of the crime’); State v. Lee,

542 P.2d 413, 417 (Ariz. 1975) (holding that Arizona Rule of Criminal

Procedure 8.6 does not require the trial court “to search out possible time

violations on its own initiative” and reasoning that it is “unreasonable to

require reversal when the trial court does not perform a function which

properly belongs to defendant’s counsel”).

Winship for the unremarkable proposition that the State must

prove all elements of child molestation beyond a reasonable

doubt:

This brings us to the key question: what

difference does the distinction [between affirmative

and legal defenses] make? A big one. A.R.S. § 13-

205, applying as it does to only affirmative

defenses, did not shift the burden of proof, by a

preponderance or otherwise, to the defendant.

This means that we are left with the cherished

principle and constitutional due process right,

imposing upon the state the burden to establish each

element of the offense beyond a reasonable doubt.

[FN 79: In re Winship, 397 U.S. 358, 364 (1970);

U.S. Const. Amendments 5, 14; Ariz. Const. Art. 2,

§ 4.]

This was not done in this case. Not only was the

burden on the wrong party, it was the wrong

standard.

Resp. App. 15a. Significantly, Petitioner’s opening brief—

like his subsequent reply brief and petition for review—did

not alternatively contend that the Fourteenth Amendment’s

Due Process Clause would invalidate A.R.S. § 13-1410 (A)

if the court of appeals reached the opposite conclusion that

the Arizona Legislature had intended to establish “lack of

sexual motivation” as an affirmative defense instead.

Given the fact that Petitioner’s challenge to the jury

instruction rested exclusively upon his claim that the trial

¢~art misconstrued the legislative intent underlying A.R.S.

§§ 13-103(B), -1410(A), and —1407(E), the Arizona Court

of Appeals had no reason to understand Petitioner’s citation

28

to Winshio as raising the unrelated and broader federal claim

that these very statutes collectively violated due process. See

Adams, 520 U.S. at 88-89 (holding that petitioners never

properly presented the Alabama Supreme Court “the broader

federal claim” that “minimum due process requires Class

Members be given the right to opt out or exclude themselves

from the class,” where the petitioners cited Phillips

Petroleum Co. v. Shutts, 472 U.S. 797 (1985), for an entirely

different argument, and their ensuing discussion addressed

only the narrower question of whether non-resident class

members were afforded due process); Jeter, 486 U.S. at 459-

60 (holding that petitioner’s federal preemption challenge to

Pennsylvania’s former 6-year statute of limitations for

paternity suits was neither pressed nor passed upon below,

where the litigation in state court centered upon whether the

Pennsylvania Legislature had intended to give retroactive

effect to its new state statute complying with Congress’ 18-

year statute of limitations); Alderson, 324 U.S. at 186

(finding no jurisdiction to review constitutionality of statute

where “it does not appear from the opinion of the state court

of appeals that the federal question was presented to or

considered by that court” [because] “[w]hile the opinion

intimates that appellants’ objection was made to the

administration of the statute, it nowhere indicates that they

contended that, as applied, the statute was invalid as

repugnant to the federal Constitution’’).

Nor may Petitioner argue that his pending federal

constitutional challenge to Arizona’s_ child-molestation

Statutes was “pressed or passed upon” by the Arizona Court

of Appeals because his opening brief cited Winship and the

Fourteenth Amendment’s Due Process Clause for the

different proposition that the State must prove all elements of

child molestation beyond a reasonable doubt. This Court’s

own precedent conclusively demonstrates that a party’s

presentation of one type of a federal-due process claim in

29

state court does not render every other conceivable due-

process argument properly presented to the state judiciary.

See Clark v. Arizona, 548 U.S. 735, 764-65 (2006) (declining

to review a due-process challenge to trial court’s possible

restriction of observation evidence that “was neither pressed

nor passed upon in the Arizona Court of Appeals,” despite

addressing the merits of other due-process arguments that

petitioner properly presented to the state courts); Gray v.

Netherland, 518 U.S. 152, 162-65 (1996) (recognizing that

the habeas petitioner’s brief had presented two “separate”

due-process claims with “two particular analyses,” one

governing the petitioner’s “notice of evidence” claim, and the

other his “misrepresentation of evidence” claim); Anderson v.

Harless, 459 U.S. 4, 7 (1982) (holding that habeas

petitioner’s citation to a Michigan case holding that the

defendant had “a broad federal due process right to jury

instructions that properly explain state law” in his appellate

briefing before the Michigan Court of Appeals failed to

exhaust the different due-process claim that the jury

instruction relieved the prosecution of proving every element

of the crime under “the more particular analysis developed in

cases such as Sandstrom [v. Montana, 442 U.S. 510

(1979)]”).

The foregoing conclusively demonstrates that Petitioner

is seeking a writ of certiorari, based upon arguments that he

never properly presented to the state courts. This Court,

however, has repeatedly declined similar invitations to

entertain “new substantive arguments attacking, rather than

defending, the judgment when those arguments were not

pressed in the court whose opinion we are reviewing, or at

least passed upon by it.” United States v. United Foods, Inc.,

533 U.S. 405, 416-17 (2001) (citing Lopez v. Davis, 531 U.S.

230, 244, n.6 (2001)). Accord Grupo Mexicano de

Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308,

318 n.3 (1999); National Collegiate Athletic Ass'n v. Smith,

30

525 U.S. 459, 469-70 (1999). Because the constitutional

validity of Arizona’s child-molestation statutes is a matter of

great importance, this Court should honor the Arizona

judiciary’s place in our federal system by denying certiorari

and granting Arizona courts the first opportunity to assess the

constitutionality of its child-molestation statute in the first

instance.’ See Bankers Life & Casualty Co., 486 U.S. at 79;

Gates, 462 US. at 224.

II. THE CONFLICT THAT PETITIONER CLAIMS TO

EXIST AMONG LOWER COURTS IS ILLUSORY

AND INAPPOSITE TO A.RS. § 13-1410(A).

Although Petitioner contends that the granting of

certiorari in the instant case would resolve a conflict among

several state courts regarding the ability of legislatures to

“tamper with the prosecution’s burden of proof in child

molestation cases,” this argument has two flaws: (1) the

statutes at issue in the cases that Petitioner has cited contain

language not found in Arizona’s child-molestation laws; and

(2) none of these cases address the question presented in this

petition for writ of certiorai—whether the Arizona

Legislature violated the Fourteenth Amendment’s Due

Process Clause by amending its child-molestation statutes to

require the defendant to prove as an affirmative defense,

“lack of sexual motivation,” a fact the converse of which had

formerly constituted an element of the crime, “motivation by

sexual interest.”

First, granting review in this case would not resolve any

conflict among lower courts because the statutory definition

of “sexua] contact” in Arizona substantially differs from the

> Indeed, as of the time of the filing of this brief in opposition,

Arizona courts have mot published any opinions addressing the

constitutionality of A.R.S. § 13-1410

3]

definitions employed in the jurisdictions that generated the

opinions cited by Petitioner. All of these cited cases present

various legal questions stemming from variations of the

phrase, “can [or could] be reasonably construed as being for

the purpose of sexual arousal or gratification,” included in

the statutory definitions of “sexual contact” codified by the

legislatures of Colorado, Michigan, Minnesota, Nebraska,

Wisconsin, and Wyoming. '* Arizona, however, defines

‘sexual contact” as “any direct or indirect touching, fondling

Or manipulating of any part of the genitals, anus or female

breast by any part of the body or by any object or causing a

person to engage in such contact.” A.R.S. § 13-1401.2.

Furthermore, none of Petitioner’s cited cases involve a

challenge to the constitutionality of a state child-molestation

'* See People v. West, 724 P.2d 623, 627 (Colo. 1986) (statutorily

defining “sexual contact” as “intentional acts” that “can reasonably be

construed as being for the purposes of sexual arousal, gratification, or

abuse’) (quoting Colo. Rev. Stat. § 18—3-401(3) (1978)); People v

Piper, 567 N.W.2d 483, 485 (Mich. App. 1997) (statutory definition of

“sexual contact” requires proof of “intentional touching [that] can be

reasonably construed for the purpose of sexual arousal or gratification’’)

(quoting Mich. Comp. Laws. Ann. § 750.520c); Strate v. Tibbetts, 28)

N.W.2d 499, 500-01 (Minn. 1979) (statutorily defining “sexual contact”

as acts that “can reasonably be construed as being for the purpose of

satisfying the actor’s sexual or aggressive impulses”) (quoting Minn. Stat.

Ann § 609.341.11); State v. Osborn, 490 N.W.2d 160, 167 (Neb. 1992)

(defining “sexual contact” as including ‘only such conduct which can be

reasonably construed as being for the purpose of sexual arousal! or

gratification of either party”) (quoting Neb. Rev. Stat. § 28-318(5)); State

v. Nye, 302 N.W.2d 83, 84-85 (Wis. App. 1981) (statutory definition of

“sexual contact” requires proof of “intentional touching [that] can be

reasonably construed for the purpose of sexual arousal or gratification’)

(quoting Wis. Stat. Ann. § 940.20), aff'd, 312 N.W.2d 826 (Wis. 1981);

Bryan vy. State, 745 P.2d 905, 908 (Wyo. 1987) (defining “sexual

intrusion” as requiring proof that the intrusion “can reasonably be

construed as being for the purposes of sexual arousal, gratification or

abuse’) (quoting Wyo. Stat. Ann. § 6—2—301(a)(vit)(A))

statute on the ground that legislative amendments shifted to

the defendant the burden of disproving the existence of a fact

that had onginally been an element of that crime. Instead,

Petitioner’s cited cases resolved the following inapposite

legal issues: (1) whether the state’s statutory definition of

“sexual contact” was void on vagueness grounds, see West,

724 P.2d at 624-27; Piper, 567 N.W.2d at 645-47; (2)

whether the jury instructions on child-molestation “obscured

and diluted” the reasonable-doubt standard by allowing

convictions based upon a finding that the defendant’s

touching “could reasonably be construed as being for the

purpose of” satisfying the defendant’s sexual gratification,

see Tibbetts, 281 N.W.2d at 500-01; Nye, 302 N.W.2d at 84-

87; (3) whether the defendant gave an adequate factual basis

to support his guilty pleas to sexual crimes other than child

molestation, see Osborn, 490 N.W.2d at 166-68 (sexual

assault); Bryan, 745 P.2d at 908-09 (first-degree sexual

assault). Thus, these cases likewise fail to demonstrate the

existence of a lower-court conflict that this Court could

resolve by granting a writ for certiorari in this case.

Il. PETITIONER’S RELIANCE ON APPRENDI AND

ITS PROGENY IS MISPLACED.

Relying upon this Court’s recent jurisprudence

construing the Sixth Amendment’s jury-trial guarantee,

Petitioner analogizes the fact of “motivation by sexual

interest” to a “functional equivalent of an element” of the

crime of child molestation in Arizona. Building upon this

analogy, Petitioner maintains that the Arizona Legislature’s

revisions to the statutory text of A.R.S. § 13-1410(A)

which effectively transformed the “lack of sexual

motivation” defense in A.R.S. § 13-1407(E) into an

“affirmative defense” that the defendant must prove by a

preponderance of the evidence—impermissibly relabeled the

“sexual motivation” element as an affirmative defense and

consequently violated his Sixth Amendment right to have a

jury find this “functional equivalent of an element” of child

molestation proven beyond a reasonable doubt. Petitioner’s

reliance on Apprendi and its progeny, however, is misplaced

because he misconstrues the true definition of the term

“functional equivalent of an element” and fails to recognize

that this Court’s recent Sixth-Amendment opinions focused

upon vindicating constitutiona] guarantees not at issue here.

In Apprendi, this Court observed that during this

Nation’s founding years, “[t]he substantive criminal law

tended to be sanction-specific,” and thus both the indictment

and the jury verdict necessarily reflected all of the facts

necessary to impose the punishment prescribed for he

charged offense. 530 U.S. at 478-81. “The mid-19" century

produced a general shift in this country from criminal statutes

‘providing fixed term sentences to those providing judges

discretion within a permissible range.’” Harris v. United

States, 536 U.S. 545, 558 (2002) (quoting Apprendi, 530

U.S. at 481). This new trend in American sentencing laws

created a “distinction between an ‘element’ and a ‘sentencing

factor’ [that] was unknown .. . during the years surrounding

our Nation’s founding,” and ultimately led some legislatures

to enact statutory schemes that effectively obliterated “the

historical link between verdict and judgment and _ the

constitutional limitation on judges’ discretion to operate

within the limits of the legal penalties provided” by

“remov{ing]} the jury from the determination of a fact that, if

found, exposes the criminal defendant to a penalty exceeding

the maximum he would receive if punished according to the

facts reflected in the jury verdict alone.” Apprendi, 530 U.S

at 482-83 (emphasis in original). To invalidate sentencing

Statutes that sanctioned the imposition of sentences

exceeding the maximum authorized by the jury’s verdict,

based upon judicially-found facts, this Court held that the

Sixth Amendment's jury-tria) guarantee requires that,

44

“fo}ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proven

beyond a reasonable doubt.” Blakely v. Washington, 542 U.S.

296, 301 (2004) (quoting Apprendi, 530 U.S. at 490). Accord

Cunningham vy. California, 549 U.S. 270, 282 (2007); Harris,

536 U.S. at 563.

The rationale underlying these cases is that any fact that

increases the defendant’s punishment above the maximum

prescribed for his crime of conviction, regardless of their

statutory label, constitutes the “functional equivalent of an

element of a greater offense,” Ring v. Arizona, 536 U.S. 584,

609 (2002) (quoting Apprendi, 530 U.S. at 494 n.19)

(emphasis added), which a jury must find beyond a

reasonable doubt:

Those facts, Apprendi held, were what the

Framers had in mind when they spoke of “crimes”

and “criminal prosecutions” in the Fifth and Sixth

Amendments: A crime was not alleged, and a

criminal prosecution not complete, unless the

indictment and the jury verdict included all the facts

to which the legislature had attached the maximum

punishment. Any “fact that ... exposes the criminal

defendant to a penalty exceeding the maximum he

would receive if punished according to the facts

reflected in the jury verdict alone,” the Court

concluded, id., at 483, 120 S.Ct. 2348, would have

been, under the prevailing historical practice, an

element of an aggravated offense.

Harris, 536 U.S. at 563 (emphasis added). See also Ring, 536

U.S. at 605 (‘When the term ‘sentence enhancement’ is used

to describe an increase beyond the maximum authorized

Statutory sentence, it is the functional quivalent of an element

35

of a greater offense than the one covered by the jury’s guilty

verdict.”) (quoting Apprendi, 530 U.S. at 494 n.19)

(emphasis added); Harris, 536 U.S. at 557 (“Apprendi said

that any fact extending the defendant's sentence beyond the

maximum authorized by the jury’s verdict would have been

considered an element of an aggravated crime-—and thus the

domain of the jury—by those who framed the bill of rights.”’)

(emphasis added); Apprendi, 530 U.S. at 501 (Thomas, J.,

concurring) (“[J}f the legislature defines some core crime and

then provides for increasing the punishment of that crime

upon a finding of some aggravating fact|,] ... the core crime

and the aggravating fact together constitute an aggravated

crime, just as much as grand larceny is an aggravated form of

petit larceny. The aggravating fact is an eiement of the

aggravated crime.”) (emphasis added).

Hence, Petitioner’s argument that “sexual motivation” is

the “functional equivalent of an element” of child

molestation is incorrect because: (1) the Anzona Legislature

did not authorize increasing Petitioner’s sentence above the

maximum penalty prescribed for violations of A.R.S. § 13-

1410, based upon a judicial finding of his sexual motivation;

and (2) this “functional equivalent of an element” term refers

only to those facts that, if found, have the effect of exposing

the defendant to a greater punishment than that authorized by

the jury's guilty verdict and effectively serve as an element

that distinguishes the crime of conviction from an aggravated

offense. See Ring, 536 U.S. at 609 (finding that ‘“Arizona’s

enumerated aggravating circumstances operate as ‘the

functional equivalent of a greater offense’) (quoting

Apprendi, 530 U.S. at 494 n.19). Stated differently, Apprendi

is inapplicable because Petitioner’s sentences were based

exclusively upon those facts that were alleged in the

indictment and found by the jury beyond a reasonable doubt,

and none that could be deemed “the functional equivalent of

an element” of a greater offense.

36

“Thus, while we may label a fact as the ‘functional

equivalent of an element’ for purposes of Apprendi, that does

not transform the fact into an offense “element” for purposes

of Winship.” United States v. Toliver, 351 F.3d 423, 430

(C.A.9 2003). “It is clear, therefore, that Apprendi’

prohibition on re-labeling facts that could be treated as

elements as something else applies solely to sentence

enhancement provisions that increase the range of

punishment beyond that authorized by the jury’s verdict, and

did not overrule the conclusion in Patterson that the states

constitutionally may ‘reallocate burdens of proof by labeling

as affirmative defenses at least some elements of the crimes

now defined in their statutes.’” State v. Ray. 966 A.2d 148,

161 n.15 (Conn. 2009) (quoting Patterson, 432 U.S. at 210).

37

CONCLUSION

For these reasons, the State respectfully requests that this

Court deny Petitioner’s petition for writ of certiorari.

Respectfully submitted

TERRY GODDARD

Attorney General

MARY R. O’GRADY

Solicitor General

KENT E. CATTANI

Chief Counsel

(Attorney of Record)

Criminal Appeals/

Capital Litigation Section

ROBERT A. WALSH

Assistant Attorney General

Criminal Appeals/

Capital Litigation Section

1275 W. Washington

Phoenix, Arizona 85007-2997

Telephone: (602) 542-4686

5288 19v2

- la-

PHILLIPS & ASSOCIATES

By: Joel Erik Thompson, SBAZ 4079

3030 N. 3™ Street, Suite 1100

Phoenix, AZ 85012

Phone: (602) 288-1678 Fax: (602) 266-5400

Paralegal: Maggie Jangula

e-mail: joelt@phillipslaw ws

Attorneys for Defendant

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

STATE OF ARIZONA, ) No. CR2006-030290-001SE

Plaintiff, |

-VS- , MOTION FOR NEW TRIAL

STEPHEN MAY (The Hon. Sherry Stephens)

Defendant.

)

Defendant, Stephen May, by and through counsel undersigned,

hereby moves this Court for an Order granting a new trial pursuant to

Rule 24.1 of the Arizona Rules of Criminal Procedure. The

grounds supporting this motion are that the verdict is contrary to law

or to the weight of the evidence; that the Court erred in the decision of

a matter of Jaw and in the instruction to the jury on a matter of law to

the substantial prejudice of Defendant; and for reasons not due to the

Defendant’s own fault, he has not received a fair and impartial trial.

The verdict is contrary to law or the weight of the evidence:

Nothing in the evidence, either directly or inferentially,

established that Stephen May was motivated by sexual interest in his

dealings with these children. His testimony was specific and

oie.

uncontradicted that any “touching” that occurred was [2] unintended,

accidental and devoid of sexual interest on his part. Further, no

testimony or evidence established any peripheral conduct that would

support a finding of such sexual interest. For example, no evidence of

any conversation with the children at the time of the alleged touching

or thereafter; no movement of his hand during the touching consistent

with fondling or manipulating the children’s genitals; all touching was

described by the children as of short duration; no threats to the

children not to tell anyone what occurred; in short, no indications of

any sexual interest or intent was shown by Stephen was shown by any

evidence. The weight of the evidence supports Stephen’s testimony of

innocent and incidental or accidental contact, and fails to support the

jury’s guilty verdicts.

Given the above, together with the jury’s questions, the jury’s

verdict is not supported by the weight of evidence, but only by

speculation of the jury.

The Court erred in a decision of a matter of law:

Following a hearing on Defendant’s Motion to Sever, the Court

declined to sever the unrelated allegation of Count 7 from the other

counts of the indictment. As clearly shown by the jury’s questions

during its deliberations, it utilized evidence as to Count 7 to

“corroborate” the allegations in the other counts, and utilized the

allegations of the other counts to “corroborate” the allegation of Count

7. Because of the Court’s error in failing to sever Count 7, evidence as

to that count was misapplied to the finding of guilt. The Court also

erred in failing to grant Defendant’s motion for judgment of acquittal

pursuant to Rule 20 at the end of the State’s case.

The Court erred in the instruction of the jury on a matter of law

to the substantial prejudice to Defendant.

Over objection, the Court gave erroneous instructions to the jury

regarding [3] the burden of proof and the standard of proof required

for their consideration regarding the defense of lack of sexual

motivation or sexual interest. The defense is codified in A. RS. § 13-

1

(J

pa)

t

1407E and, pursuant to the most recent amendments to A. RS. § 13-

103, such a defense is not an “affirmative defense” requiring a

defendant to prove the defense by “clear and convincing evidence.”

Traditionally, affirmative dcfenses were always the defendant’s

burden of proof by a preponderance of the evidence. That situation

changed substantially with the passage of Senate Bill 1145, an

amendment to A.R.S. § 13-103 and other Arizona statutes. The

amendment above-referenced made a significant change in the

definition of “affirmative defense.” Previous to the amendment,

“affirmative defense” was defined as “a defense that is offered and

that attempts to justify the criminal actions of the accused.” (Emphasis

added). Following the amendment, that definition clearly was changed

to mean a defense that attempts to EXCUSE the criminal actions of

the accused. (Emphasis added). As a result of the amendment, an

“affirmative defense” no longer includes a defense that “justifies”

action otherwise criminal or “any defense that either denies an

element of the offense charged or denies responsibility . . . or lack of

intent.”

Indirect touching of the genitals is justified during a playful

interaction, such as in this case, if it is not motivated by sexual

interest, even if undertaken intentionally. Here, Defendant

acknowledged the possibility of unintended or accidental touching

during play with the girls in the pool in Counts 1-4, and while

assisting with computer skills in the classroom in Count 7. However,

he was clear that not only was such contact unintended or accidental,

it would have been without any motivation of sexual [4] interest.

Because his conduct would have been justified under such

Circumstance, the amendment to A.R.S. § 13-103 required that the

State prove beyond a reasonable doubt that Defendant was motivated

by sexual interest. The Court’s instruction was in error, the jury was

misled, and the Defendant was substantially prejudiced as a result.

The clearest indication of the level of prejudice to Defendant was

the jury’s chart on the wall cf the deliberations room, which set torth

the elements of the charged crimes as they understood the instructions

to require. The last element they had written was “motivation of

- 49 -

sexual interest” following which they had written “Defendant must

disprove” with the word “disprove” double underlined. The jury was

mis-instructed to the point that they believed Defendant had the

obligation to disprove that he was motivated by sexual interest.

Discussion:

For all of the reasons set forth in detail above, and for the reasons

not due to his own fault, Stephen May did not receive a fair and

impartial trial. This Court is urged to order a new trial so that he may

receive that fair and impartial trial.

RESPECTFULLY SUBMITTED this 26” day of February, 2007.

PHILLIPS & ASSOCIATES

By /s Joel Erik Thompson

Chief Trial Attorney for the Firm

Certified Specialist in Criminal Law

By the Anzona Board of Legal Specialization

ae

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA, ) COURT OF APPEALS

) DIVISION ONE

Plaintiff, ) No. 1 CA-CRO07-0144

)

VS. ) Supenor Court

) No. CR2006-030290-001 SE

STEPHEN EDWARD MAY, )

)

Defendant. __)

Mesa, Arizona

FEBRUARY 16, 2007

BEFORE: THE HONORABLE SHERRY K. STEPHENS

Judge of the Supenor Court

REPORTER’S TRANSCRIPT OF PROCEEDINGS

(Sentencing)

REPORTED BY:

Dana D. Smith

Cert. No. 50566

Official Court Reporter

Prepared for Appeal

[2] APPEARANCES

For the State:

JOHN BEATTY

Deputy County Attorney

For the Defendant:

JOEL THOMPSON

Attorney at Law

[6] THE COURT: The Court has reviewed the letters submitted

by Daniel Antkiwicz.

All nght. Before we proceed to sentencing, the Court will

hear arguments on the motion for new tnal. Court has reviewed

the written motion submitted by defense counsel and the State’s

response to that motion

Mr. Thompson, ts there anything that you want to [7] say in

support of your motion?

MR. THOMPSON: Your Honor, our position is set forth in

the motion. I didn’t find anything in the State’s response that

really altered the issues that ] presented or specifically

addressed anything to respond to it. | will stand on the content

of the motion.

THE COURT: All nght. Mr. Beatty, anything to put on the

record?

MR. BEATTY: The State stands by its response as well.

-la

THE COURT: All mght. The Court is going to deny the

motion. Most of the issues were discussed and resolved at trial.

The Court finds there was sufficient evidence to support the

verdicts.

All right. Let’s proceed with sentencing. . . .

- $a -

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

STATE OF ARIZONA, ) No. 1CA-CRO7-0144

) Supenor Court No. CR2006-030290

Appellee, )-001SE

)

V )

)

Stephen Edward May, )

)

Appellant. )

)

Appellant’s Opening Brief

Tracey Westerhausen, Esq.,

Debus, Kazan & Westerhausen, Ltd

335 E. Palm Lane, Phoenix, AZ 85004

602-257-8900

State Bar No. 10158

Attorney for Appellant

- 9a -

[i] Table of Authorities

Blevins v. State, 591 N.E.2d 562 (Ind. App. 1992)............ 18

Garcia v. Browning, 214 Ariz. 250, 254, 4 20, 151 P.3d 533,

SF Fi NE savedpddevdcsvecnucuuevaasssanecsqeenayegacsninen 1S

Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991)..24

OIG FG FT ee BIE Cla ove ccnccscsincansctscrccetecns 16

Solm v. Helm, 463 U.S. 277, 103 S.Ct. 3001 (1983)......24, 25

State v. Bartlett, 165 Ariz. 229, 792 P.2d 692 (1990)......24-26

State v. Berger, 209 Ariz. 386, 103 P.3d 298 (App. 2004). ...23,

29, 30

State v. Brooks, 120 Ariz. 458, 486 P.2d 1270 (1978)..........14

State v. Crumley, 128 Ariz. 302, 625 P.2d 891 (1981)......... 18

State v. Davis, 206 Anz. 377, 79 P.3d 64 (2003)................ 24,

25, 29-31

State v. Dixon, 216 Ariz. 18, 162 P.3d 657 (App. 2007).......15

State v. Evanson, 201 Anz. 209, 33 P.3d 780 (App. 2001)...30

State v. Fillmore, 187 Anz. 1174, 927 P.2d 1303 (App.1996)..21

State v, Greer, FID SB. WF SPT oc cc cvccvccccsccccscccececcses 17,19

State v. Johnson, 212 Aniz. 425, 133 P.3d 735, cert. denied, --

Cale, Lake lads EE nve-snckcacendecueesebnaccounsareestecl 13

State v. Turrentine, 152 Ariz. 61,730 P.2d 238 (App.1986)....14

United States v. Aiello, 864 F.2d 257 (2™ Cir. 1988)..... 30

United States v. Cameron. 907 F.2d 1051 (11 Cir. 1990)....13-

15

[i] Other

Ariz. Const., Art. 2,§10.......... zs / ...18

Anz. Const., Art. 2, § 15 | sok

Anz. Const., Art. 2, § 24. 17

U.S. Const., Amendment 6 oe Sinkssnaenaee

U.S. Const., Amendment 8... 23,24

U.S. Const., Amendment 14 youn eee

U.S. Const., Amendment 5. ? in arg ee

1\OQa

[1] Statement of the Case

[7] B. Jury Instructions.

The one debate over jury instructions centered on those

regarding the defense to child molestation that the “defendant

was not motivated by a sexual interest.’””” It was the position of

the defense that the burden was on the state to [8] prove that the

act was sexually motivated beyond a reasonable doubt.*° The

defense also argued*’ that the defense was not an affirmative

defense, relying upon A.R.S. § 13-103.B, “‘Affirmative

defense’ means a defense that is offered and that attempts to

justify the criminal actions of the accused. . . . Affirmative

defense does not include any defense that denies responsibility,

including alibi, misidentification, or lack of intent.”

The question of whether the defense was an affirmative one

raised the issue of burden of proof: for an affirmative defense,

the burden is placed on the defense, by a preponderance of the

evidence. The rule is embodied in A.R.S. § 13-205.A, which the

state cited,** “Except as otherwise provided by law, a defendant

shall prove any affirmative defense raised by a preponderance

of the evidence....” The prosecutor added, “] just wasn’t aware

that .. . molestation had acquired a new element, Judge. ... It

certainly is not in my statute book (that) there is anew element

in that statute.”

*° A.R.S. § 13-1407.E

*©T Jan. 9, 2007, at 70-73, T. Jan. 10, 2007, at 100

*’ T. Jan. 10, 2007, at 100

**T Jan 10, 2007, at 100

*’ T. Jan. 9, 2007, at 73

The judge concurred with the state, so that the instructions

given the jurors at the close of the case were

The crime of molestation of a child requires

proof that the defendant [9] knowingly touched,

directly or indirectly, the genitals of a child under the

age of 15, It’s a defense to child molestation that the

defendant was not motivated by sexual interest.

The defendant has raised the affirmative

defense of lack of sexual motivation with respect to

the charged offenses of molestation of a child. The

burden of proving each element of the offense beyond

a reasonable doubt always remains on the state.

However, the burden of proving the affirmative

defense of lack of sexual motivation ts on the

defendant. The defendant must prove the affirmative

defense of lack of sexual motivation by a

preponderance of the evidence. If you find that the

defendant has proved the affirmative defense of lack

of sexual motivation by a preponderance of the

evidence, you must find the defendant not guilty of the

offense of molestation of a child.”

[he defense re-urged the issue in its motion for new tnal.

[he judge again ruled tn favor of the State.~

°F Jan. 2007. at 107-108

IR 24]

2 IR 250 at 2

[12] Statement cf Issues

1. The crime of child molestation has, as an essential

element and as specific intent, a requirement that the touching

was motivated by sexual interest. The lack of sexual motivation

is a defense. The burden is on the prosecution to prove the

existence of sexual motivation beyond a reasonable doubt. Isn’t

the defendant entitled to a new trial when the trial judge placed

the burden on him to prove lack of sexual motivation?

[13] Argument

A. The jury instructions unconstitutionally placed the

burden of proof on the defendant.

1. Standard of review. The appellate courts review de novo

whether jury instructions adequately state the law.”'

2. Legal discussion. [he jury instructions in issue lead us to

wade in the murky waters of the difference between an

affirmative defense and a legal defense. A.R.S. § 13-1407.E,

upon which the instruction was in part based, sets forth a legal,

rather than affirmative defense. The difference is critical, as it

defines who bears the burden of proof.

In a different context, the Eieventh Circuit, in United States

v. Cameron,” discussed the difference in these two classes of

defenses. The Court addressed the debate of using psychiatric

state v. Johnson, 212 Ariz. 425, 431,915, 133 P.3d 735, 741, cert

Jenied. {7S 127 S.Ct. 559 (2006)

United States v. Cameron, 907 F.2d 1051, 1063 (11™ Cir. 1990)

- }3a-

testimony for the affirmative defense of insanity, versus its use

as a legal defense to negate a specific intent crime via

diminished [14] capacity. While the topic may be different, the

analysis 1s on point:

[B]Joth Congress and the courts have recognized

the crucial distinction between evidence of

psychological impairment that supports an

“affirmative defense,” and psychological evidence that

negates an element of the offense charged.

“Affirmative defense” evidence of mental impairment,

when specifically recognized and defined by the

legislature, must be raised by the defendant and can

“Justify” or “excuse” conduct that is otherwise

criminal.”

The Cameron court then contrasted this with the definition

of legal defense:

Psychological evidence that aids the trier in

determining the defendant's specific state of mind with

regard to the actions she took at the time the charged

offense was committed, by contrast, is not an

affirmative defense but is evidence that goes

specifically to whether the prosecution has carried its

burden of proving each essential element of the crime-

at least when specific intent is at issue.”

[he state law analysis begins with A.R.S. § 13—1407.E. It

provides a defendant may raise the defense that any touching of

a child under the age of 15 was not sexually motivated. Case

* Cameron. 907 F.2d at 1063

" Cameron, 907 F.2d at 1063

- 14a-

law explains that sexual motivation constitutes a specific intent

component of the crime,” and is an essentiai element of it.”

This [15] means that the statute meets the Cameron definition

of a legal detense, rather than an affirmative one.

A.R.S. § 13-1407.E’s plain language 1s consistent with this.

The statute says that it is a “defense” to molestation that there is

a lack of sexual motivation. It does not say it is an “affirmative

defense.” The word choice illuminates the legislature’s intent.”’

A.R.S. § 13—103.B, in the version applicable to this case,”

only bolsters the defense argument. Its last sentence reads,

‘Affirmative defense does not include any defense that either

denies an element of the offense charged or denies

responsibility, including alibi, misidentification, or lack of

intent.’ (Emphasis added.) The provision is, then, yet another

illustration of the difference between a legal defense and an

affirmative defense, and of the legislative intent. And, it

demonstrates that once again, A.R.S. § 13-1407.E confers a

legal defense. Its principle, if not its words, track the same

distinction made by the Cameron court.

"> State v. Turrentine, 152 Ariz. 61,67, 730 P.2d 238, 245 (App. 1986)

(“evidence was sufficient for the jury to have found that appellant was

motivated by an unnatural or abnormal sexual interest with respect to

children and therefore is sufficient to support a finding of specific intent

under A.R.S. § 13-1410”).

6 State v. Brooks, t20 Ariz. 458, 460, 586 P.2d 1270, 1272 (1978)

(‘An essential element of the offense of child molestation under § 13-653 is

that the acts involved be motivated by an unnatural or abnormal sexual

interest or intent with respect to children.’’)

” State v. Dixon, 216 Ariz. 18, 20, §.7, 162 P.3d 657, 659, 9 7 (App

2007)

”® Amendments to A.R.S. § 13-103.B took effect April 24, 2006. Garcia

v. Browning, 214 Ariz. 250, 254, § 20, 151 P.3d $33, 537, § 20 (2007)

- 15a -

This brings us to the key question: what difference does

the distinction make? A big one. A.R.S. § 13-205, applying as it

does to only affirmative defenses, did not shift the burden of

proof, by a preponderance or otherwise, to the defendant.

[16] This means that we are left with the chenshed pnnciple

and constitutional due process nght, imposing upon the state the

burden to establish each element of the offense beyond a

reasonable doubt.”

This was not done in this case. Not only was the burden on

the wrong party, it was the wrong standard.

The legal error is hardly harmless here. The allegations each

concerned bref contact—which could have been accidental,

particularly in light of Mr. May’s neurological problems. The

events occurred in settings where it was natural for Mr. May

and the children to come into contact with each other. Mr. May

never threatened the children or made sexual remarks to them.

The state would have been hard pressed to meet its burden.

This most serious of legal errors entitles Mr. May to a new

trial, with instruction to the jury that the state must prove sexual

motivation beyond a reasonable doubt

[32] Conclusion

[he errors in this case entitle Mr. May to the following

relief:

* Inre Winship, 397 U.S. 358, 364 (1970); U.S. Const. Amendments 5

and 14; Anz. Const. Art. 2, § 4

- l6a-

|. A new trial with instruction that the state must

prove the presence of sexual motivation beyond a

reasonable doubt.

—

Ww

2

|

RESPECTFULLY SUBMITTED this 11" day of

October 2007.

DEBUS, KAZAN, & WESTERHAUSEN, LTD.

By /s/ Tracey Westerhausen

Tracey Westerhausen #010518

Attorneys for Appellant

-l7a-

2008 WL 933139

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

STATE OF ARIZONA, _) No. 1CA-CRO07-0144

) Supenor Court No. CR2006-030290

Appelice, ) -001SE

)

Vv; )

)

Stephen Edward May, ’

)

Appellant. ;

)

Appellant’s Reply Brief

Tracey Westerhausen, Esq..,

Debus, Kazan & Westerhausen, Ltd

335 E. Palm Lane, Phoenix, AZ 85004

602-257-8900

State Bar No. 10158

Attorney for Appellant.

- 18a-

TABLE OF CONTENTS

.able of Authonties

Facts Reply

The Legal versus Affirmative Defense of Lack of Sexual

I cs ss cvcincuuivedciueanatacenvenne eieani aueuemae ieee x

The Discharged Jury Issue is One of Fundamental Error......

The Sentence for the Crimes is Too Harsh.................cssecsees

Conclusion

Certificate of Compliance

Certificate of Mailing

[ii] TABLE OF AUTHORITIES

Cases

E.g., State v. Hughes, 125 S.W.2d 66, (Mo. 1939).. cca

Ewing v. California, 538 U.S. 11,123 S.Ct. 1179, 155 ‘ Ed.2d

108 (2003)

Jeter v. Mayo Clinic Arizona, 211 Anz. 386, 121 P.3d 1256

(App. 2005)

Lemke v. Rayes, 213 Ariz. 232, 141 P.3d 407 (App. 2006)

State v. Berger, 212 Anz. 473, 134 P.3d 378 (2006)

State v. Brooks, 120 Ariz. 458, 586 P.2nd 1270 (1978)

State v. Crumley, 128 Anz. 302, 625 P.2d 891

State v. Henderson, 210 Ariz. 561,115 P.3d 601 (2005).......... 1

State v. Logan, 200 Ariz. 564, 30 P.3d 631 (2001)

State v. McPhaul, 174 Ariz. 561, 851 P.2d 860 (App. 1992)..5, 6

State vs. Sanderson, 182 Anz. 531, 898 P.2d 483.......00..000..... 4

State v. Simpson, 217 Ariz. - 173 P.3d 1027 (App. 2007)

State v. Turrentine, 152 Ariz. 61, 730 P.2d 238 (App. 1986).....5

———

ARS. 13 1407.E..

A.R.S. § 13-601.01.

ARS. §13-1410.A

- 19a

[isi] Other

Webster's New World College Dictionary, 2000......... ee er 4

(2] 11. The Legal versus Affirmative Defense of Lack of

Sexual Motivation.

In the instant case, the defense raised the issue of burden of

proof regarding sexual] motivation before the trial court. It urged

that the burden was on the state to prove, beyond a reasonable

doubt, the presence of sexual motivation.

[3] In response, the state relies heavily on this Court’s recent

opinion, State v. Simpson."' In that case, the defendant argued

on appeal that the tnal court should have instructed the jury that

his actions were motivated by sexual interest, pursuant to

A.R.S. § 13-1407.E.'* But at the time of trial, the defendant

didn't raise the defense, either legally or affirmatively.”

Because of this, the appellate court concluded that there was no

error, fundamental or otherwise.'* The consequence of the

procedural posture of Simpson renders the entire analysis of

motive versus intent as obiter dictum.'”

'' State v. Simpson, 217 Ariz. 326, 173 P.3d 1027 (App. 2007)

'? Simpson, 217 Ariz. at 328 9 11, 173 P.3d at 1029 § 11

'> Simpson, 217 Ariz. at 330 4 23, 173 P.3d at 1031 § 23

'“ Simpson, 217 Ariz. at 330 § 23, 173 P.3d at 1032 § 23

' Black's Law Dictionary, obiter dictum: “A judicial comment made

while delivering a judicial opinion, but one that 1s unnecessary to the

decision in the case and therefore not precedential (although it may be

(Continued)

- 20a -

The state does raise an interesting point, not one

addressed by Arizona appellate courts: the distinction, if any,

between motive and intent.'® Others states, [4] as cited in the

answering brief, provide judicial definitions for the terms.'’ But

there is no need to create a judicial definition for “motive,” as,

“Words and phrases shall be construed according to the

common and approved use of the language.””®

Applying this rule to the word “motive,” the dictionary

defines it as, “some inner drive, impulse, intention, etc., that

causes a person to do something or act in a certain way;

incentive; goal.”’? Thus, for our purposes, the difference

between motive and intent ts too close to be the basis to reject

A.R.S. § 13-1407.E as a legal defense.

A key point that the State fails to address is that both the

title of A.R.S. §13-1410.A and its contents refer to

“molestation.” The word choice formed the keystone of State v.

Brooks’’ and State v. Turrentine,’' where the statute in question

_ (Continued)

considered persuasive.), 8th Ed 2004

'© State vs. Sanderson, 182 Ariz. 531, 542, 548, 898 P2d 483, 491,

refers in passing to A.R_S. § 13-1407.E as an affirmative defense regarding

motive

I7 po , nee U- , os

E.g., State v. Hughes, 425 S.W.2d 66, 70 (Mo. 1939) (“Motive ts the

moving cause which induces action... Intent 1s the purpose or design with

which an act is donc....’’)

"ASS. § 1.213

WERSTER'S NEW WorRID COLLEGE DICTIONARY, 2000, at 940

(emphasis added)

~ State v. Brooks. 120Anz. 458. 586 P.2d 1270 (1978)

-2la-

used the word “molests.” Oddly, the cases upon which the State

relies fail to mention this fact. It is important to remember that

the legislature is presumed to [5] know of the judicial

interpretation of a statute and to approve it when it retains the

same language in the statute after amendment.” That principle

applies here, so that the term “molestation” retains an element

of sexual motivation.

Contrary to the state's assertion, Mr. May was indeed

entitled to the instruction that he was not motivated by a sexual

interest, as the trial court correctly concluded. He admitted at

trial that he might have touched the genital areas of the two

girls, but accidentally and not sexually motivated.*? He was

entitled to the lack of motivation instruction because it was a

theory of defense reasonably supported by the evidence.”*

In State v. McPhaul, for example, the trial court refused

to give a lesser-included robbery instruction in an armed

robbery case, because the defendant said he wasn’t there. This

Court reversed, holding, “We see nothing inconsistent, illogical

or improper about a defendant saying, “1 was not the person

who committed the robbery, but even if you do not believe me,

the evidence shows that whoever did commit it was not

armed.””’??

eee ee __(Continued)

ol Srate v Turrentine, 152 Ariz. 61, 730 P.2d 238 (App. 1986)

** Jeter v. Mayo Clinic Arizona, 211 Ariz. 386, 393 431, 121 P.3d 1256,

1253 931 (App. 2005)

ik January 10, 2007 at 39-41, 56

4 State v. McPhaul, 174 Anz. 561, $62, 851 P.2d 860, 861 (App. 1992)

> McPhaul, 174 Ariz. at 562, 851 P.2d at 861

Here, Mr. May admitted that the touching might have

occurred. If so, it was [6] without sexual intent. He clearly falls

under the reasoning of McPhaul, and was entitled to the

instruction.

Ill. The Discharged Jury Issue is One of Fundamental

Error.

Conclusion. For the error in the jury instruction and in

the jury discharge matter, Mr. May is entitled to a new trial. In

the alternative, he is entitled to a new sentencing.

RESPECTFULLY SUBMITTED this 5" day of March

2008.

DEBUS, KAZAN, & WESTERHAUSEN, LTD

By /s/ Tracey Westerhausen

Tracey Westerhausen #010518

Attormeys for Appellant

2008 WL 5585284

Debus, Kazan & Westerhausen, Ltd

Lawyers

335 East Palm Lane

Phoenix, Anzona 85004

(602) 257-8900

State Bar Code: 010518

Attorneys for: Defendant

[IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

STATE OF ARIZONA, _ ) No. 1CA-CRO7-0144

) Superior Court No. CR2006-030290

Plaintiff, )-OOISE

Petition for Review to the Arizona

Supreme Court

)

)

)

Stephen Edward May, )

)

Detendant )

)

Reasons why the petition should be granted (a

preview). Mr. May’s petition presents two issues to this Court

The first is an opportunity to address the operation of the

defenses that appear in A.R.S. § 13-1407 to child molestation

(and other sex offenses). On its face, the child molestation

~ 24a -

statute has few defenses.’ For example, a person engaged in

lawful medical examinations or emergency help, who contacts a

child’s genitals, is subject to prosecution, as their acts fall

within the litera! confines of the statute. For example, a person

engaged in lawful medical examinations or emergency help,

who contacts a child’s genitals, is subject to prosecution, as

their acts fa}] within the literal confines of the statute.

[2] One might think, well, that is silly. The state would

never file such a charge; it would have to prove that the person

acted with a sexual motivation. That assumption is wrong. Not

because of a statute, however, but because of case law. Under

A.R.S. § 13-1407, there are defenses to sex offenses such as

child molestation, for medical and emergency personnel, and

for a person, as in the instant matter, who lacks a sexual

motivation.” But case law in the instant matter and in State v

Simpson’ says that the defenses in A.R.S. § 13-1407 are instead

affirmative defenses that the defendant, not the state, must

prove. The statute is entitled “Defenses,” and the paragraphs of

the statute use the word “defense,” but the appellate courts have

held that A.R.S. § 13-1407 really establishes affirmative

defenses. This result was imposed by the appellate courts, not

by the legislature.

The second situation concerns dismissed jurors who are

allowed to re-deliberate and reach a verdict, without any inquiry

into possible taint between dismissal and re-deliberation. This

case presents an opportunity to provide further assistance to

' A.R.S. § 13-1410.A. “Molestation of child... E. A person commits

molestation of a child by intentionally or knowingly engaging in sexual

contact ... with a child under fifteen years of age.”’

" A.R.S. § 13-1407. Defenses. “... It is a defense to a prosecution (for

child molestation) that the defendant was not motivated by a sexual interest.”’

State v Simpson, 217 Anz. 326, 173 P.3d 1027 (App. Dec. 18, 2007)

- Sa :

judges and lawyers faced with a request by a discharged hung-

jury, asking the trial court if it may “deliberate” again after all.

2. Issues presented to and decided by the Court of

Appeals.

A. A.R.S. § 13-1407, entitled “Defenses,” enumerates

defenses to child molestation. Subpart E provides that, “it is a

defense” to child molestation “that [3] the defendant was not

motivated by a sexual interest.” The Court of Appeals held that

A.R.S. § 13-1407.E created an affirmative defense, thus shifting

the burden of proof to the defendant. Did the Court of Appeals

erroneously shift the burden of proof to the defendant, to prove

that he was not sexually motivated?

B. Under the state and federal] constitutions, a defendant

is guaranteed a tnal by a fair and impartial jury, including a jury

free from taint by outside sources. The jurors here were

discharged, minutes passed, and the dismissed jurors were

allowed to re-deliberate. Is Mr. May entitled to a new trial

because the trial court failed to explore jury taint that may have

deprived Mr. May of a fair tnal?

3. Facts.

Mr. May was charged with seven counts of child

molestation, and went to tnal. During jury instructions, the

defense argued that the jurors must be instructed that the state

bore the burden of proving beyond a reasonable doubt that Mr

May was motivated by sexual interest during the incidents. This

was in accordance with A.R.S. § 13-1407.E. The trial judge

rejected the argument, finding that lack of sexual motivation

was an affirmative defense that must be established by the

defense, and by a preponderance of evidence

The Court of Appeals affirmed the convictions. For the

sexual motivation issue, the decision relied on a recent opinion,

State v. Simpson." For the second issue, the Court rejected a

large body of case law cautioning against re-deliberation by a

discharged jury without inquiry of taint, including State v.

Crumley. ,

4. Reasons why the Court should grant review.

A. Defenses v. affirmative defenses. The defenses statute,

A.R.S. § 13- 1407, operates in tandem with predicate offense

statutes, such as sexual abuse®, sexual conduct with a minor’.

and child molestation.’ Previously, in State v. Getz’, [5] this

‘Court accepted a petition addressing the interaction between a

§ 13-1407 defense and a charge of sexual abuse. ““We did so,”

the Court said, “in the hope of providing some guidance

concerning the proper interpretation of these confusing statues

and the equally confusing case law they have produced.”"°

With Mr. May’s case, the Court can correct an important

issue of law that was wrongly decided. The jack of sexual

motive defense under A.R.S. § 13-1407.E is just that, a defense,

and not an affirmative defense, to the predicate offense.

* State v. Simpson, 2\7 Ariz. 326, 173 P.3d 1027 (App. Dec. 18, 2007)

° State v. Crumley, 128 Ariz. 302. 305-06. 625 P.2d 819. 894-95 (1981)

° A.ROS. § 13-1404

ARS &§ 13-1405

A.RS. § 13-1410

State v Getz, 189 Ariz. S61, 562, 944 P.2d S01, 504 (1997) (holding

that judgment of acquittal should have been granted where undisputed

vidence showed that 16 year old victim consented to conduct)

Getz, 189 Ariz. at S62, 944 P.2d at 504

What reasons support this argument? There are at least four.

First, in looking at the language of the statute, it is labeled

as defense, and the word “affirmative” nowhere appears in the

text. If statutory language 1s clear, the courts need not resort to

other methods of statutory construction." The legislature has

said that A.R.S. § 13-1407 is comprised of defenses.

Second, the courts “discem and give effect to the

legislature’s intent.”’* Unless the language of a statute is

unclear, there is no need to look beyond its plain meaning.'’ As

was argued above, A.R.S. § [13-1407] nowhere uses the word

“affirmative” in listing defenses.

[6] Third, the statutory definitions of a legal defense and

affirmative defense are consistent with the defense position.

The legislature defined a legal defense as one that “either denies

an element of the offense charged or denies responsibility,

including alibi, misidentification or lack of intent.”'* (Emphasis

added.) In contrast, the legislature delineated an “affirmative

defense” as one that “‘attempts to justify the cnminal action of

the accused.”””

Fourth, statutes on the same subject matter are read together

and harmonized to avoid an absurd result.'® Interpreting A.R.S.

§ 13-1407 as a list of “affirmative defenses” leads to the absurd

result that every person who touches a child’s genitals whether

State v Riggs, 189 Anz. 327, 333, 942 P.2d 1159, 1165 (1997)

* State vs. Dixon, 2\6 Anz. 18, 20,47, 162 P.3d 657, 659, § 7 (App. 2007)

» Dixon. 217 Ariz. at 18.97. 162 P.3d at 659.€ 7

“ARS § 13-103.B

ARS § 13-103.B

State v. Johnson, 17) Anz. 39, 42, 827 P.2d 1134, 1137 (App. 1992)

- 28a -

at a doctor’s office or rescue scene may be charged with child

molestation and then must prove the defense. That incongruous

result falls away if the statute provides, as it says it does, a list

of defenses which the state much [sic] prove, and prove beyond

a reasonable doubt

Mr. May is entitled to a new trial, with the burden of proof

properly allocated to the state, beyond a reasonable doubt.

[7] B. Discharged jury. From the record, it is true that it

appears only a few minutes passes between the jurors

announcing their deadlock and their request to return to

deliberations. On this basis, the Court of Appeals rejected Mr.

May’s argument.

RESPECTFULLY SUBMITTED this 29" day of

September, 2008.

DEBUS, KAZAN, & WESTERHAUSEN, LID.

By /s/ Tracey Westerhausen

Tracey Westerhausen

Attorneys for Defendant

29a

Supreme Court

State of Arizona

402 Arizona State Courts Building

1501 West Washington Street

Phoenix, Arnizona 85007-323)

February 10, 2009

RE: STATE OFARIZONAvV STEPHEN EDWARD MAY

Arizona Supreme Court No. CR-08-0281-PR

Court of Appeals Division One No. 1 CA-CR 07-0144

Maricopa County Superior Court No. CR2006-030290-

001 SE

GREETINGS:

The following action was taken by the Supreme Court of the

State of Anzona on February 10, 2009, in regard to the above-

referenced cause:

ORDERED: Petition for Review to the Arizona Supreme

Court = DENIED.

Record returned to the Court of Appeals, Division One,

Phoenix, this 10" day of February 2009.

Rachelle M. Resnick, Clerk

TO:

Robert A. Walsh, Assistant Attorney General, Anzona Attorney

General’s Office

Tracey Westerhausen, Debus, Kazan & Westerhausen LTD

Stephen Edward May, ADOC #214465, Anzona State Prison,

Florence Eyman Complex-Meadows Unit

West Publishing Company

Lexis Nexis

Philip G Urry, Clerk, Court of Appeals, Division One, Phoenix

~ 30a -

Tracey Westerhausen, SBN 010518

Debus, Kazan & Westerhausen, Ltd.

335 East Palm Lane

Phoenix, Arizona 85004

602.257.8900

602.257.0723 (fax)

tw@dkwlawyers.com

Attomeys for: Defendant

IN THE SUPREME COURT

STATE OF ARIZONA

STATE OF ARIZONA, ) No. CR-02811CA-CR07-0144

)

Plaintiff, ) Court of Appeals No. 1 CA-CR

). 2006-0144

v. )

) Supenor Court No. CR2006-030290

Stephen Edward May, )-O01SE

)

Defendant. ) Mbotion for Reconsideration of

) Denial of Review

Defendant Stephen May asks this Court to revisit its

decision to decline review. Mr. May’s situation presents

significant, recurring legal issues regarding two of the most

important constituticnal protections that our system of justice

guarantees to criminal defendants: the nght to convicted only

upon proof beyond a reasonable doubt and the tried to be tried

before an impartial jury. Underscoring the significance of the

statewide constitutional issues presented on this case, the

Arizona Attomeys for Cnminal Justice, sumultaneously with the

filing of [2] the motion, have asked leave to file an amicus

-3la-

curiae bnef to assist in bringing to the attention the important

questions presented by Mr. May’s case.

Current Procedural Posture

This Court denied review of Mr. May’s petition on February

10, 2009. He asked the Court of Appeals to stay the issuance of

the mandate. The Court granted the motion on February 27,

2009, providing a 90-day window for further action. That same

date, the state filed an opposition to the defense stay request. It

then followed with a motion to reconsider the grant of the stay

of mandate. The defense advised that it would file nothing

further regarding the stay unless requested by the Court. The

Court of Appeals has not ruled on the state’s motion to

reconsider the stay issue.

A. Summary of the Facts.

To refresh the Court’s recollection, here’s a synopsis of the

facts.

Mr. May was charged with seven counts of child

molestation,’ and went to trial. During jury instructions, the

defense argued that the jurors must be instructed that the state

bore the burden of proving beyond a reasonable doubt that Mr.

May was motivated by sexual interest during the incidents. This

was in accordance with [3] A.R.S. § 13-1407.E.* The trial judge

rejected the argument, finding that lack of sexual motivation

' A.R.S. § 13-1410.A. “Molestation of child. “A person commits

molestation of a child by intentionally or knowingly engaging in. . . sexual

contact... with a child under fifteen years of age.”

? A.R.S. § 13-1407. Defenses. “... It is a defense to a prosecution (for

child molestation) that the defendant was not motivated by a sexual interest.”

was an affirmative defense that must be established by the

defense, and by a preponderance of the evidence.

The Court of Appeals affirmed the convictions. For the

sexual motivation issue, the decision relied on a recent opinion,

State v. Simspon. .

[4] The Issues Presented

1. The child molestation statute violates due process

because it relieves the state from proving every element of the

charged crime beyond a reasonable doubt. First, the statute does

this by making too many everyday and innocent acts fall within

its definition of child molestation. Second, although the

legislature has broad authonty to define the elements of a cnme,

it may not lower the state’s burden of proof by calling an

“element” something else."

Conclusion

The facts and the law join here to give this Court the

opportunity to scrutinize and clarify re-appearing constitutiona!

issues of statewide importance. AACJ has [5] offered its aid in

doing so. Certainly, the issues and AACJ’s interest in them are

reasons justifying a reconsideration of the denial of review. If

’ State v. Simpson, 217 Ariz. 326, 173 P.3d 1027 (App. Dec. 18, 2007)

‘ Apprendi v. New Jersey, 530 U.S. 466, 476 (2000)

there were ever a case about which the denial of review should

be reconsidered, it is this one.

RESPECTFULLY SUBMITTED this 24” day of March,

2009.

DEBUS, KAZAN, & WESTERHAUSEN, LTD.

By /s/ Tracey Westerhausen

Tracey Westerhausen

Attorneys for Defendant

- 34a -

2006 Ariz. Legis. Serv. Ch. 199 (S.B. 1145)

CHAPTER 199

S.B. 1145

DEFENSES OF CRIMINAL CONDUCT

AN ACT AMENDING SECTIONS 13-103, 13-205 AND 13-

411, ARIZONA REVISED STATUTES; AMENDING TITLE

13, CHAPTER 4, ARIZONA REVISED STATUTES, BY

ADDING SECTIONS 13-418, 13-419 AND 13-420;

AMENDING LAWS 1983, CHAPTER 255, SECTION 1, AS

AMENDED BY LAWS 1990, CHAPTER 410, SECTION 3;

RELATING TO DEFENSES OF CRIMINAL CONDUCT.

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-103, Anzona Revised Statutes, is

amended to read:

§ 13-103. Abolition of common law offenses and

affirmative defenses; definition

A. All common law offenses and affirmative defenses are

abolished. No conduct or omission constitutes an offense or an

affirmative defense unless it is an offense or an affirmative

defense under this title or under another statute or ordinance.

B. For the purposes of this section, “affirmative defense”

means a defense that is offered and that attempts to justify

excuse the cnmuinal actions of the accused or another person for

whose actions the accused may be deemed to be accountable

Affirmative defense does not include any justification defense

pursuant to chapter 4 of this title or any defense that either

denies an element of the offense charged or denies

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responsibility, including alibi, misidentification or lack of

intent

Sec. 2. Section 13-205. Anzona Revised Statutes, is amended to

read:

§ 13-205. Affirmative defenses; burden of proof

A. Except as otherwise provided by law, a defendant shall

prove any affirmative defense raised by a preponderance of the

evidence, tretidine any pusttication defenseainder chapter of

thistle. Justification defenses under chapter 4 of this title are

not affirmative defenses. Justification defenses describe conduct

thai, if not justified, would constitute an offense but, if justified,

does not constitute criminal or wrongful conduct. If evidence of

justification pursuant to chapter 4 of this title is presented by

the defendant, the state must prove beyond a reasonable doubt

B. This section does not affect the presumption contained in

section 13-411, subsection C and section 13-503.

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Anzona Rule of Criminal! Procedure 31.25:

a. Filing and Form of Brief; Participation in Oral

Argument. A brief of an amicus curiae may be filed only if

accompanied by written consent of all parties or by leave of

court granted upon motion. The bref shall be lodged with the

motion, if any. The motion for leave shall identify the interest of

the applicant, state that the applicant has read the relevant brief,

petition or motion and shall state the reasons accepting

applicant’s amicus curiae brief would be desirable. A party

desiring to respond to the amicus brief shall file the response

within 20 days of service of a bref filed with consent, or within

20 days of the Court’s order granting a motion for leave to file

an amicus brief. Rules 31.13, Anzona Rules of Cnmunal

Procedure shall govern the form of an amicus brief, except that

it shall not exceed 12,000 words in length if done in

proportionately spaced typeface, or 35 pages if done im

monospaced typeface, unless otherwise permitted by the court

An amicus curiae may participate in the oral argument only by

leave of the appellate court

b. Time and Length Limits Applicable to Amicus Briefs

in the Supreme Court. Parties desiring to file an amicus curiae

brief shall file such briefs as provided by this rule, except that

an amicus curiae brief relating to a special action petition shall

be filed as expeditiously as possible after the special action

petition is filed, as provided for in Rule 7(g), Rules of

Procedure for Special Actions

(1) Briefs filed prior to a decision by the Court to grant

review. Unless otherwise ordered by the Court, an amicus brief

In support Of a netition for review or a response to a petition for

review accompamed by written consent of all parties, or a

motion for leave to file the bnef shall be filed no later than 2 |

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days after the filing of the response to the petition for review

Such briefs shall comply with the form and length requirements

of Rule 31.19(c) exclusive of any appendix.

(2) Briefs filed after the Court has granted review. After

the Court has granted review, and unless otherwise ordered, an

amicus brief accompanied by written consent of all parties, or a

motion for leave to file an amicus brief, shall be filed no later

than 10 days after the date ordered by the Court at the time

review was granted for filing supplemental briefing by the

parties in the particular case. Such briefs shall comply with rule

31.13 and shall not exceed the page limitation imposed for the

parties’ supplemental briefs

(3) Responses to amicus curiae briefs. A party wishing to

respond to an amicus brief shall file the response within 20 days

of service of a bnef filed with consent or within 20 days of the

court's order granting a motion for leave to file an amicus briet

The response shall comply with the page and formatting

requirements imposed on the particular amicus brief to which it

relates

(4) Late-filed briefs and responses. Leave for filing a late

amicus or response brief shall be granted only for good cause

shown