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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

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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[7] 29.36.11 9677
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A_R.S. § 13-205(A) eee ey,
We ec ccivacscinnccncse evcesccival dh clones 3

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0509%3A2. Public record. Not legal advice.