                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                   OSCAR CASTILLO MENDOZA,
                          Appellant.

                     No. 2 CA-CR 2013-0083
                      Filed March 14, 2014

         Appeal from the Superior Court in Pima County
                      No. CR20111912001
        The Honorable Teresa Godoy, Judge Pro Tempore

                          AFFIRMED


                           COUNSEL

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

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


                           OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.
                        STATE v. MENDOZA
                         Opinion of the Court


E C K E R S T R O M, Judge:

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

                   Factual and Procedural Background

¶2           We view the evidence presented at trial in the light
most favorable to upholding the verdict, drawing all reasonable
inferences against the defendant. See State v. Roberts, 126 Ariz. 92,
95, 612 P.2d 1055, 1058 (1980). The victim in this case was a thirteen-
year-old girl who was spending the night at Mendoza’s residence
for a sleepover with her best friend, Mendoza’s daughter. After the
victim had fallen asleep, her friend went to watch television in
another room with her mother, leaving the victim alone. The victim
testified Mendoza then came into the bedroom, woke her, lay on top
of her, and “started humping” her, meaning he was “rubbing his
penis on [her] butt.”

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

¶4          In his defense, Mendoza argued the victim was not
credible and the incident did not happen as she recalled. He also
argued to the jury—and to the court, as part of his motion for
judgment of acquittal under Rule 20, Ariz. R. Crim. P.—that the facts


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                          Opinion of the Court

presented did not meet the definition of child molestation. After the
court denied the motion, the jury found him guilty. This timely
appeal followed the entry of judgment and sentence.

                     Sufficiency of the Evidence

¶5            Mendoza first contends the evidence that he “‘humped’
the fully clothed victim with his ‘crotch’ or ‘genital area’” through a
blanket was insufficient to establish child molestation “because there
was no proof of indirect touching, fondling, or manipulating of the
genitals.” The sufficiency of evidence is a question of law we review
de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011).
“[T]he controlling question is solely whether the record contains
‘substantial evidence to warrant a conviction.’” Id. ¶ 14, quoting
Ariz. R. Crim. P. 20(a). Substantial evidence exists if a rational juror
could find the elements of the crime proved beyond a reasonable
doubt. Id. ¶ 16. If “‘reasonable minds may differ on inferences
drawn from the facts,’” the evidence is substantial and the
conviction must be upheld. Id. ¶ 18, quoting State v. Lee, 189 Ariz.
590, 603, 944 P.2d 1204, 1217 (1997).

¶6           Child molestation under A.R.S. § 13-1410(A) occurs if a
defendant “intentionally or knowingly engag[es] in or caus[es] a
person to engage in sexual contact . . . with a child who is under
fifteen years of age.” Section 13-1401(2), A.R.S., defines sexual
contact, in part, as “any direct or indirect touching, fondling or
manipulating of any part of the genitals . . . [or] anus . . . by any part
of the body or by any object or causing a person to engage in such
contact.” Indirect touching includes touching through clothing,
State v. Pennington, 149 Ariz. 167, 168-69, 717 P.2d 471, 472-73 (App.
1985), and the “person” referred to in § 13-1410(A) can mean the
child who is the victim of the molestation offense. State v. Marshall,
197 Ariz. 496, ¶¶ 26-27, 4 P.3d 1039, 1046-47 (App. 2000). The crime
may be committed, therefore, either by the perpetrator indirectly
touching the victim’s genitals or by causing the victim to indirectly
touch those of the perpetrator.

¶7          Here, the state maintained Mendoza had committed
child molestation not by touching the victim’s genitals or anus, but



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                         Opinion of the Court

rather by indirectly rubbing his genitals against the victim.        We
agree.

¶8            The victim’s testimony and description of the defendant
“humping” her provided sufficient evidence of indirect genital
touching to sustain the conviction. See State v. Jerousek, 121 Ariz. 420,
427, 590 P.2d 1366, 1373 (1979) (“In child molestation cases, the
defendant can be convicted on the uncorroborated testimony of the
victim.”). The verb “hump,” in one of its slang senses, means “[t]o
engage in sexual intercourse,” The American Heritage Dictionary 858
(5th ed. 2011), or “‘to copulate with.’” State v. Ernesto P., 41 A.3d
1115, 1121 n.8 (Conn. App. Ct. 2012), quoting Webster’s Third New
International Dictionary 1102 (2002). But the term does not always
denote sexual penetration, as demonstrated by the victim’s
testimony here. See, e.g., State v. Allen, 157 Ariz. 165, 168, 755 P.2d
1153, 1156 (1988) (using word “hump[]” to describe defendant
rubbing penis against victim’s leg); Downey v. State, 726 N.E.2d 794,
797-98 (Ind. Ct. App. 2000) (finding insufficient evidence of contact
with victim’s anus, as opposed to buttocks, when defendant “put his
penis between her cheeks of her bottom . . . and started . . . humping
her”). The word “hump” can also refer to bodily movements that
rub or stimulate a person’s genitals through layers of fabric or
clothing. See, e.g., Ernesto P., 41 A.3d at 1118, 1121 n.8 (noting word,
in context, meant holding the victim “in a sexual embrace”); State v.
Liberty, 370 S.W.3d 537, 543, 545 (Mo. 2012) (finding description of
young boys “humping [defendant’s] back” referred to physical
contact that “represented apparent acts of sexual stimulation or
gratification”); State ex rel. Nasal v. BJS No. 2, Inc., 806 N.E.2d 208,
¶ 18 (Ohio Ct. Common Pleas 2003) (describing “[f]riction dances” at
nude-dancing establishment that involved women “humping their
vaginal areas on the seated patrons’ clothed genitals with the
purpose to ejaculate the patrons”). In all of its slang senses,
however, the word “hump” denotes both a sexual motivation and
some touching, manipulation, or physical stimulation of the genitals.

¶9          Case law from our supreme court illustrates the point.
In the dual decisions of State v. Detrich, 188 Ariz. 57, 62-63, 932 P.2d
1328, 1333-34 (1997) and 178 Ariz. 380, 384, 873 P.2d 1302, 1306
(1994), the court determined that a witness’s testimony of


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                        STATE v. MENDOZA
                         Opinion of the Court

“humping” was sufficient evidence of sexual contact to support the
defendant’s conviction for sexual abuse. The crimes of sexual abuse
and child molestation share the element of sexual contact. See A.R.S.
§§ 13-1404(A), 13-1410(A). Accordingly, while the “humping”
described here “fell short of . . . completed sexual intercourse,”
Detrich, 188 Ariz. at 63, 932 P.2d at 1334, it nevertheless represented
a form of sexual contact that was sufficient to support the guilty
verdict, because the jury rationally could infer that Mendoza was
rubbing his crotch or genital area against the victim’s body to
indirectly touch or manipulate his genitals. Indeed, little else could
be accomplished by such behavior.

¶10           Contrary to Mendoza’s suggestion, a victim is not
required to “feel” or “detect” a perpetrator’s penis or testes, as this
simply is not an element of the offense. Furthermore, the fact that
the “humping” here occurred through clothing and a blanket is
irrelevant, as the state points out, because the action still amounts to
“indirect touching” proscribed by § 13-1401(2). “[T]ouching does
not lose its sexual character merely by the imposition of a thickness
of cloth,” Moss v. Dist. Court of Tulsa Cnty., 795 P.2d 103, 105 (Okla.
Crim. App. 1989), and we recognized in Marshall that “the potential
for emotional harm is manifest notwithstanding the lack of direct
physical contact with the molester.” 197 Ariz. 496, ¶ 29, 4 P.3d at
1047.

¶11           Although Mendoza discusses in his opening brief
certain hypothetical scenarios where other types of touching might
not be deemed criminal, we are not presented here with a close case
concerning the “limit as to how ‘indirect’ the touching can be.” The
overtly sexual and criminal nature of Mendoza’s conduct was
evident in this case, such that it would be “difficult to conceive of a
jury placing an innocent construction on the acts testified to.”
Roberts, 126 Ariz. at 95, 612 P.2d at 1058. In sum, the evidence was
sufficient for the jury to find him guilty of child molestation under
§ 13-1410.

                             Instructions

¶12           Mendoza next presents two arguments concerning the
trial court’s instructions to the jury. Specifically, he contends (1) the


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                        STATE v. MENDOZA
                         Opinion of the Court

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

¶13            Because the issues raised on appeal were not presented
and preserved below in accordance with Rules 21.2 and 21.3(c), Ariz.
R. Crim. P., we review only for fundamental, prejudicial error. See
State v. Valverde, 220 Ariz. 582, ¶¶ 12, 14, 208 P.3d 233, 237-38 (2009);
see also State v. Moore, 222 Ariz. 1, ¶¶ 84-85, 213 P.3d 150, 165 (2009);
State v. Tucker, 215 Ariz. 298, ¶¶ 65-69, 160 P.3d 177, 195-96 (2007).1
Although novel assignments of instruction-related error can
sometimes rise to this level, we will grant appellate relief only in
those rare cases where a defendant has made “[a] particular
showing of prejudice.” State v. Eddington, 226 Ariz. 72, ¶ 22, 244
P.3d 76, 84 (App. 2010), aff’d, 228 Ariz. 361, 266 P.3d 1057 (2011). We
are not presented with such a case here.

Child Molestation

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

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




      1 As  our discussion below indicates, contrary to Mendoza’s
contention, this case does not involve structural error that precludes
an analysis of prejudice, see Arizona v. Fulminante, 499 U.S. 279, 309-
10 (1991), as with an instruction that improperly reduces the state’s
burden of proof. State v. Glassel, 211 Ariz. 33, ¶ 74, 116 P.3d 1193,
1213 (2005); see State v. Torres, 208 Ariz. 340, ¶ 11, 93 P.3d 1056, 1060
(2004).


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                        STATE v. MENDOZA
                         Opinion of the Court

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

                    2. The child was under 15 years of
             age.

(Emphasis omitted.) This instruction combines language from the
statutes noted above, §§ 13-1410(A) and 13-1401(2), and Mendoza
concedes it is “technically accurate as a cut-and-paste job.” He
nonetheless argues the instruction was confusing—or “unintelligible
gibberish,” in his words—because it “failed to explain the elements
of the crime in understandable English.” He suggests that rather
than providing the jury with “one indecipherable run-on sentence,”
the court instead should have given separate instructions defining
child molestation and sexual contact. But “[w]e will not reverse
simply because a better instruction could have been given.” State v.
Turrentine, 152 Ariz. 61, 68, 730 P.2d 238, 245 (App. 1986).

¶15           Jury instructions must “adequately set forth the law
applicable to the case.” State v. Rosas-Hernandez, 202 Ariz. 212, ¶ 31,
42 P.3d 1177, 1185 (App. 2002). As the state points out, it is difficult
to characterize the instruction here as being decidedly more complex
or awkward than the relevant criminal statutes, and Mendoza has
failed to articulate how the language of the instruction misstated the
law or caused him prejudice. We therefore find no prejudice from
the instruction, see Eddington, 226 Ariz. 72, ¶ 22, 244 P.3d at 84, and
no basis to disturb the verdict.

Defense

¶16          Section 13-1407(E), A.R.S., provides that a lack of sexual
motivation or interest is a defense to a charge of child molestation.
Division One of this court upheld this portion of the statute in State
v. Sanderson, 182 Ariz. 534, 541-42, 898 P.2d 483, 490-91 (App. 1995),
and later specified that a defendant must prove this affirmative


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                         Opinion of the Court

defense by a preponderance of the evidence. State v. Simpson, 217
Ariz. 326, ¶ 19, 173 P.3d 1027, 1030 (App. 2007); see A.R.S. § 13-
205(A).

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

¶18          Here, as in Valverde, 220 Ariz. 582, ¶¶ 15-17, 208 P.3d at
237, and State v. Karr, 221 Ariz. 319, ¶¶ 13, 15-16, 212 P.3d 11, 14-15
(App. 2008), the lack of further instructions did not result in any
prejudice, but most likely benefitted the defendant by relieving him
of any burden of proof.2 During closing argument, defense counsel
told the jury, “[I]t is your job to determine whether or not anything
that happened was motivated by any kind of sexual interest.” His
other remarks suggested such motivation was an element of the

      2We  assume without deciding that a lack of sexual interest is
an affirmative defense. Mendoza has not argued, and we therefore
do not address, whether shifting the burden of proof to a defendant
on a defining feature of child molestation—sexual motivation for the
touching of a child—would violate federal due process rights. See In
re Winship, 397 U.S. 358, 361, 364 (1970) (holding “Due Process
Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged” and observing such standard of
proof is accepted “as the measure of persuasion by which the
prosecution must convince the trier of all the essential elements of
guilt”) (emphasis added); see also Simpson, 217 Ariz. 326, ¶¶ 11-24,
173 P.3d at 1029-31 (interpreting lack of sexual motivation as
affirmative defense and concluding such motivation not described
as element of statutory offense); Sanderson, 182 Ariz. at 542, 898 P.2d
at 491 (concluding lack of sexual motivation an affirmative defense,
but approving jury instruction that nonetheless required state to
prove sexual motivation beyond a reasonable doubt once defense
had been raised).


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                       STATE v. MENDOZA
                        Opinion of the Court

offense to be proven by the state beyond a reasonable doubt. The
state simply responded that Mendoza had a sexual interest and that
the evidence proved, beyond a reasonable doubt, he had molested
the victim. The state did not suggest that the defendant carried any
burden or that a special standard of proof applied with respect to his
sexual interest or motivation. The trial court’s instructions likewise
suggested no burden existed except the ordinary one placed on the
state. The instructions instead emphasized that “the defendant is
not required to . . . produce any evidence” and that “the state must
prove all of its case against the defendant with its own evidence.”
We therefore find no prejudice from the instructions here.

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

                            Disposition

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




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