                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                                  JOHN DOE,
                               Plaintiff/Appellant,

                                        v.

                     ARIZONA BOARD OF REGENTS,
                          Defendant/Appellee.

                             No. 1 CA-CV 18-0784
                               FILED 12-24-2019


           Appeal from the Superior Court in Maricopa County
                        No. LC2017-000365-001
                 The Honorable Patricia A. Starr, Judge

      AFFIRMED IN PART; VACATED IN PART; REMANDED


                                   COUNSEL

Hagens, Berman, Sobol, Shapiro, LLP, Phoenix
By Robert B. Carey, Leonard W. Aragon
Counsel for Plaintiff/Appellant

Cohen, Dowd, Quigley, PC, Phoenix
By Rebecca L. van Doren, Daniel G. Dowd
Counsel for Defendant/Appellee
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                            Decision of the Court



                       MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


J O H N S E N, Judge:

¶1            John Doe ("Respondent") appeals from the superior court's
judgment affirming the decision by Arizona State University to expel him
for violating the Arizona Board of Regents' Student Code of Conduct.
Although we affirm ASU's finding that Respondent violated the Code by
serving alcohol to a minor, its finding that he engaged in sexual misconduct
is not supported by substantial evidence. Accordingly, we affirm in part,
vacate in part and remand so that ASU may reconsider an appropriate
sanction.

             FACTS AND PROCEDURAL BACKGROUND

¶2            "[W]e view the evidence in a light most favorable to
upholding the [agency's] decision." Baca v. Ariz. Dep't of Econ. Sec., 191 Ariz.
43, 46 (App. 1997). Respondent, a male ASU student, invited Complainant,
a female ASU student, to a small social gathering at a friend's home. There,
Complainant drank a substantial amount of alcohol. At some point,
according to Complainant, Respondent and another male ("Participant")
led her to a bedroom, undressed her, put her on the bed and had sex with
her. The following afternoon, Complainant reported the incident to the
Tempe Police Department and underwent a Sexual Assault Examination
Report ("SANE") examination. Although Tempe police eventually referred
the case to the Maricopa County Attorney's Office for a charging decision,
no criminal charges were brought against Respondent.

¶3             Five months after the incident, Complainant filed a report
with the ASU Police Department, which forwarded it to the ASU Dean of
Students Office. The Dean of Students Office notified Respondent it had
received a report that he "provided alcohol to a minor female student" and
"[a]fter she became heavily intoxicated, [Respondent] and another male
took her to a room . . . where [they] engaged in oral and vaginal sex without
her consent." Based on those allegations, the Dean of Students Office




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accused Respondent of violating Code § F(15) (furnishing alcohol to
underage person) and § F(23) (sexual misconduct).1

¶4            Following an investigation, the Dean of Students Office
notified Respondent that "[o]ur review has determined that it was more
likely than not that you engaged in non-consensual sexual activity with a
woman whom you were aware was incapacitated, making her unable to
provide consent." The Dean of Students Office found Respondent
responsible for violating Code §§ F(15) and F(23) and ordered him expelled.
Respondent requested a hearing by the University Hearing Board
("Board"), which makes recommendations in such matters to the ASU
Senior Vice President for Educational Outreach and Student Services, James
Rund, who is the final decision-maker. At the ensuing hearing, ASU's
representative – the Dean of Students Office – had the burden of proving
by a preponderance of the evidence that Respondent violated the Code.

¶5            Although the Dean of Students Office had accused
Respondent of violating Code § F(23) by engaging in sex with Complainant
when she was incapacitated and therefore unable to consent, after the
hearing, the Board concluded it was unable to determine whether
Complainant was "incapacitated and thus was unable to provide consent."
In describing the conflicting evidence on that issue, the Board noted that at
the time of the incident, "Complainant was lucid and able to verbally
communicate." Nevertheless, the Board found Respondent violated § F(23)
by engaging in "sexual contact . . . perpetrated against a person by force."
Code § E(20)(a).2 It also concluded Respondent violated § F(15) by
distributing alcohol to Complainant because she was underage. The Board
recommended expulsion.

¶6            Rund accepted all the Board's factual findings and its
determination that Respondent violated § F(23) by engaging in sexual
contact by force, as well as the Board's findings and recommendations on
the alcohol charge under § F(15). But Rund rejected the Board's conclusion
that the evidence did not prove incapacitation. Instead, Rund found
Complainant was incapacitated and Respondent knew she was
incapacitated. Finally, Rund upheld the sanction of expulsion. Respondent
submitted a Request for Review and Rehearing, which Rund denied. In

1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.

2      Although this provision was relocated from Code § E(17)(a) to
§ E(20)(a) since the relevant date, its text has not changed.


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denying Respondent's request, Rund elaborated on his reasoning regarding
incapacitation and cited additional evidence in support of his decision.

¶7            Respondent sought review of the decision in superior court.
The court affirmed ASU's decision, concluding it was supported by
substantial evidence and was not arbitrary, capricious, contrary to law or
an abuse of discretion. Respondent timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019) and -913 (2019).3

                               DISCUSSION

¶8             We will affirm an agency's decision unless it "is contrary to
law, is not supported by substantial evidence, is arbitrary and capricious or
is an abuse of discretion." A.R.S. § 12-910(E) (2019). "We defer to the
agency's factual findings if they are supported by substantial evidence,
even if other evidence before the agency would support a different
conclusion." Waltz Healing Ctr., Inc. v. Ariz. Dep't of Health Servs., 245 Ariz.
610, 613, ¶ 9 (App. 2018). "[W]e review questions of law de novo." Raven
Rock Constr., L.L.C. v. Bd. of Supervisors of Maricopa County, 207 Ariz. 135,
138, ¶ 9 (App. 2004).

A.     The Student Code of Conduct.

¶9             Section F(23) of the Student Code of Conduct prohibits
"[s]exual misconduct," defined, in relevant part, as "[s]exual violence and
other non-consensual sexual contact – actual or attempted physical sexual
acts perpetrated against a person by force or without consent." Code §
E(20)(a). In turn, § E(4) defines "[c]onsent" as the following:

       "Consent" in the context of sexual activity means informed
       and freely given words or actions that indicate a willingness
       to participate in mutually agreed upon sexual activity.

       Consent may not be inferred from: 1) silence, passivity or lack
       of resistance, 2) a current or previous dating or sexual




3      Although § 12-913 expressly allows a party to appeal to the "supreme
court," we have construed this provision as "also allowing an appeal to the
court of appeals, which was created after § 12-913 was enacted." Svendsen
v. Ariz. Dep't of Transp., Motor Vehicle Div., 234 Ariz. 528, 533, ¶ 13 (App.
2014).


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                            Decision of the Court

       relationship, 3) acceptance or provision of gifts, meals, drinks,
       or other items or 4) previous consent to sexual activity.

       Consent may be withdrawn during sexual activity. Consent
       to one form of consensual sexual activity does not imply
       consent to any other form of sexual activity.

       Consent may not be obtained through physical force,
       violence, duress, intimidation, coercion, or an express or
       implied threat of injury.

       Consent may never be given by a person who is: incapacitated
       (by drugs, alcohol or otherwise), unconscious, asleep, or
       otherwise physically or mentally unable to make informed,
       rational judgments. The use of alcohol or drugs does not
       diminish one's responsibility to obtain consent and does not
       excuse conduct that violates this Student Code of Conduct.

Code § G(1) provides that the Dean of Students "may impose" sanctions,
including expulsion, "for any violation of the Student Code of Conduct."

B.     Rund's Findings and Conclusions Regarding Incapacitation.

¶10           Respondent argues substantial evidence does not support
Rund's finding that Complainant could not consent to the sex because she
was incapacitated. "'Substantial evidence' is defined as any 'relevant
evidence from which a reasonable mind might draw a conclusion.'"
Troutman v. Valley Nat'l Bank of Ariz., 170 Ariz. 513, 518 (App. 1992) (quoting
In re Estate of Mustonen, 130 Ariz. 283, 285 (App. 1981)). "In reviewing
factual determinations by an administrative agency, this court does not
reweigh the evidence or substitute its judgment for that of the agency."
Culpepper v. State, 187 Ariz. 431, 436 (App. 1996). "If two inconsistent factual
conclusions could be supported by the record, then there is substantial
evidence to support an administrative decision that elects either
conclusion." DeGroot v. Ariz. Racing Comm'n, 141 Ariz. 331, 336 (App. 1984)
(citation omitted).

       1.     "Incapacitation" as it relates to consent to sexual conduct.

¶11             The Code does not define "incapacitated" or "incapacitation,"
but states that in "interpreting words and phrases not otherwise defined,"
"every day [sic] and common usages and understanding shall apply, and
external sources may be consulted for guidance." Code § A(4). Examining
the text of § E(4), the Code provision defining consent, see supra ¶ 9, we infer


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                            Decision of the Court

that a person is incapacitated when he or she is "otherwise physically or
mentally unable to make informed, rational judgments." See Pawn 1st,
L.L.C. v. City of Phoenix, 231 Ariz. 309, 312, ¶ 18 (App. 2013) (citing Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147
(2012) (under "series-qualifier" canon of interpretation, "[w]hen there is a
straightforward, parallel construction that involves all nouns or verbs in a
series, a prepositive or postpositive modifier normally applies to the entire
series")).

¶12            As applied here, in considering whether ASU proved
Complainant was "unable to make informed, rational judgments," we
examine whether the evidence supported the conclusion that she was
unaware of the nature and consequences of her decision to engage in sexual
activity with Respondent on the night in question or was unable to
consciously exercise her personal will to decide to do so. See Incapacitated
Person, Black's Law Dictionary (11th ed. 2019) ("someone who is impaired
by an intoxicant, by mental illness or deficiency, or by physical illness or
disability to the extent that personal decision-making is impossible").

¶13          As acknowledged by Kendra Hunter, ASU's chief witness
concerning its investigation, the issue of incapacitation is not whether, in
hindsight, the person made a smart decision. Instead, it is whether the
person had the cognitive ability at the time to make the decision for herself
or himself. Put differently, a "rational judgment" in this context is not one
that an observer would deem a "good judgment" but instead is one made
by a person who is able to comprehend the nature and consequences of the
matter. See State v. Gunter, 132 Ariz. 64, 71 (App. 1982) (when defendant
argued he was impaired by medication when he consented to plea
agreement, the result would turn in part on whether he had the "ability to
make a rational judgment and understand the consequences of his plea");
Palumbo v. Norstar Bank Upstate N.Y., 622 N.Y.S.2d 263, 264 (App. Div. 1995)
(person not incapacitated when "he comprehended the nature and
consequences of his actions and made a rational judgment" to enter
settlement).

¶14          Moreover, as Hunter also acknowledged, there is a difference
between being under the influence of alcohol and being incapacitated. A
person who is intoxicated may or may not be incapacitated for purposes of
the Code. Here, the issue was whether the alcohol Complainant had
consumed rendered her incapacitated and therefore unable to consent to
sex with Respondent on the night at issue.




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                            Decision of the Court

       2.     Evidence bearing on incapacitation.

¶15             In his initial decision after receiving the Board's Findings and
Recommendations, Rund cited evidence of the number of shots
Complainant had drunk and her purported inexperience with alcohol. He
also credited Complainant's testimony that she was "extremely drunk,"
could not stand up straight and needed to support herself against a wall.
As Rund noted, Complainant also testified that while inside the bedroom,
she felt like she was going to throw up and was "concentrating hard on not
blacking out." Rund also cited Complainant's statements to police that she
"didn't know what was going on" and "was so intoxicated that she was
unable to move or try to physically prevent the incident while it was
occurring." Finally, Rund also noted another witness's account that after
Complainant left the bedroom where the sex had occurred, she was "really
drunk" and "needed help standing up."

¶16           In his later ruling denying Respondent's Request for Review
and Rehearing, Rund cited additional evidence that he found supported his
conclusion. As in his initial decision, Rund relied nearly exclusively on
Complainant's own statements, rather than accounts by other witnesses, in
concluding that "the weight of the credible evidence leads to the conclusion
that it is more likely than not that the Complainant was incapacitated by
alcohol to the point that she was unable to make informed, rational
judgments."

¶17           A careful review of the record, however, focusing in
particular on other statements by Complainant about the incident, shows
that ASU failed to prove she lacked the capacity to make an informed choice
to engage in sex with Respondent on the night in question. Rund's findings
to the contrary are simply unsupported by substantial evidence.

¶18           There is no question that Complainant had consumed a
considerable amount of alcohol before she entered the bedroom with
Respondent and Participant – by her own account, she had drunk seven
shots in the 90 minutes before. She rated her impairment at "8/9 out of 10"
and said she needed to lean against the wall of the hallway leading into the
bedroom because she was not stable on her feet. She also testified she felt
close to blacking out and vomiting. The record, however, belies Rund's
conclusion that Complainant was so intoxicated that she could not make an
informed, reasoned choice to enter the bedroom and engage in sexual
activity with Respondent and Participant.




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                           Decision of the Court

¶19            To begin with, although Complainant responded "[y]es" to
questions about whether the sex occurred while she was incapacitated, no
one else from the gathering testified Complainant was incapacitated on the
night in question. Although Complainant testified she needed to use the
wall to steady herself to walk, no one else testified she was stumbling before
she entered the bedroom. No witness testified she was asleep or passed
out. No other witness testified she was unable to communicate. No one
testified she was even slurring her words before she entered the bedroom.

¶20            As noted, in finding Complainant must have been
incapacitated, Rund relied not on the accounts of other witnesses, but
instead accepted at face value Complainant's statements that she did not
know what was going on and that "she was too intoxicated to stop
[Respondent and Participant] physically or even tell them to stop." But
Complainant's own accounts of what went on in the bedroom disprove her
after-the-fact characterizations of her mental and physical state at the time.

¶21            As for whether Complainant knew what was going on,
although Rund cited her testimony that she could not remember how she
became undressed in the bedroom, Complainant recounted what happened
in the bedroom in great detail to police the next afternoon and again during
the hearing. As the Board concluded, based on the same evidence
considered by Rund, "[a]ccounts of the encounter provided by all parties
indicate that the Complainant was lucid and able to verbally communicate."
Complainant described the arrangement of the furniture in the room, the
bed and even the color of the sheets and the color of Participant's shirt. She
knew that as the sex began, Participant was positioned in back of her and
entered her from behind. She knew that neither Respondent nor Participant
wore a condom. She knew that neither of them ejaculated. She even
remembered that Respondent asked her to allow Participant to ejaculate,
and she refused. She told police she remembered that at one point during
the encounter, Participant pulled out his cellphone and began taking
pictures, and she told him to stop. She remembered that when the vaginal
sex became painful because she was not aroused, she told Respondent and
Participant to stop. She remembered that as they remained in the bedroom
after the sex ended, Respondent called her "dramatic," she called him "an
asshole," then he responded, "No you're an asshole." And finally, even
though she was not familiar with the home, Complainant was able to dress




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herself after the sex ended and then find her way to another bedroom to
rouse her friend ("Girlfriend") so they could leave.4

¶22             Nor, contrary to Rund's findings, is there evidence to support
Complainant's assertion that she was too intoxicated to stop the sex from
happening, to say the words "I don't want to have sex" or to "tell
[Respondent and Participant] to stop." Complainant told police and
testified that she engaged in simultaneous sexual conduct with Respondent
and Participant. By her own account, she was on her hands and knees,
"dogg[y] style," and performed oral sex on one male's penis while the other
male penetrated her from behind with his penis. The sex went on for 20-25
minutes, during which she remained on all fours, long enough to develop
bruises on both knees. From time to time, the males switched positions to
allow oral sex with the other male while the second male entered her from
behind.

¶23          On this point, Respondent offered testimony by Cindi
Nannetti, who retired in 2014 from the Maricopa County Attorney's Office
after more than 32 years prosecuting sex crimes and sexual assaults. Rund
did not address Nannetti's expert testimony, which sharply called into
question Complainant's account that she was so drunk that she could not
stand without support:

       [O]ne of the other key things is that if somebody is so
       incapacitated that the complainant says that she had to use
       the wall to go down the hall, I don't know how somebody
       would maintain a doggy-style-type position for 20, 25
       minutes if she's so incapacitated, why you wouldn't just fall
       down, and be able to do that while having vaginal and oral
       sex.

¶24            In sum, the undisputed evidence of what happened in the
bedroom is that Complainant was not too intoxicated to actively participate
in at least 20 minutes of strenuous sex. The same evidence also disproves




4       The Board chose not to credit any statements by Complainant or
Respondent during a "one party consent call" Complainant made after the
fact at the suggestion of police. We likewise conclude those statements are
entirely unreliable. As Complainant testified, that call was "staged" and
both parties made admittedly false or misleading statements during the
call.


                                      9
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                            Decision of the Court

her contention that she was too intoxicated to decline to participate in the
sex at the outset.

¶25           Nor does the evidence support Rund's conclusion that
Complainant lacked the capacity to say no. At the hearing, Complainant
testified she was not able to say the words, "I don't want to have sex." To
the contrary, the evidence is undisputed that at some point during the
sexual encounter, she did tell Respondent and Participant to stop – and they
did.5 Complainant also noticed that Participant was taking pictures with
his cellphone and told him to stop doing so. Further, Complainant testified
she was "more drunk going out of the room than [she] was going in." The
only reasonable conclusion to be drawn from that admission is that if she
was able to say she wanted to stop after some 20-25 minutes of sex, even
though she was "more drunk" at the end than when the sex began, she had
the capacity to say no in the beginning. Even the manner in which she
described how she told the males to stop implies that she earlier had the
capacity to consent to sex: She testified that when Respondent asked her if
Participant could continue with the sex long enough to ejaculate, she
responded, "no, I don't want to do this anymore."6

¶26            At oral argument, ASU argued evidence that Complainant
may have made rational, informed judgments at the end of the encounter
does not undermine the conclusion that, at a minimum, she was
incapacitated at the outset. But the record belies any contention
Complainant was incapacitated when the sex began. First, Complainant
herself told police she was "coherent" at the time she entered the bedroom.
In addition, as noted, after the fact she was quite capable of reporting
specific details about the beginning of the encounter: She told police that (1)

5      Complainant told police and testified at the hearing that the vaginal
contact grew uncomfortable for her because she was not aroused. As the
police report recounted, "[Complainant] said she started crying and she told
them to stop because it was hurting."

6      Inexplicably, Rund based his decision in part on his finding that
Respondent "has no credible explanation for why [Complainant] ended [the
encounter] abruptly, started crying, and left the room." It was not
Respondent's burden to prove why the sexual conduct ended, but, as noted,
see supra ¶ 25, n.5, Complainant testified she ended the encounter because
it had become painful. By Complainant's account, after she began to cry
because of the pain, Respondent behaved rudely – he called her "dramatic"
and they exchanged insults. None of that evidence shows Complainant was
incapacitated when the sex began.


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                            Decision of the Court

Participant and Respondent undressed her and then undressed themselves,
(2) she was on all fours, (3) Participant first had vaginal sex with her while
Respondent had oral sex, and that they switched, and (4) neither male wore
a condom.

¶27           Rund found it compelling that, by Complainant's account, she
had rejected an earlier attempt by Respondent to have sex with her that
evening. As Rund put it, "I do not find it plausible that the Complainant
would tell the Respondent she did not want to sleep with him and then
subsequently and with no explanation agree to participate in intercourse
with not just Respondent, but also with [Participant]. The only variable in
circumstances was Complainant's consumption of seven shots of [v]odka."

¶28           Nothing in the evidence, however, shows that the vodka
rendered Complainant incapable of deciding to change her mind. As
Complainant acknowledged, when she and Respondent first spent time
together a couple of days before the gathering, she initially declared to him
that they would not have sex, but then – free of any influence of alcohol –
she willingly engaged in oral sex with him.7

¶29           Finally, Rund characterized the three-way encounter in the
bedroom on the night in question as "outrageous behavior," and from that
concluded Complainant would have participated only if she was
incapacitated. But Hunter, the witness ASU called to testify about its
investigation, testified that a reasonable person exercising free will could
decide to participate in a "threesome."

¶30           In sum, a handful of statements by Complainant are the only
evidence in the record supporting the conclusion that she was so drunk that
she was incapacitated on the night in question. But other statements by
Complainant – statements she made to police and under oath at the hearing


7      The relevance of this evidence is not that Complainant's consent to
oral sex with Respondent a few days before shows that she consented to
oral and vaginal sex with Respondent and Participant on the night in
question. See Code § E(4) ("Consent may not be inferred from . . . previous
consent to sexual activity."). It is that on the earlier occasion, when she had
not been drinking, Complainant apparently changed her mind about
whether to engage in sexual conduct with Respondent. If she exercised her
independent judgment to change her mind and engage in sexual conduct
on the earlier occasion, it can hardly be said to be "[im]plausible" that she
could not exercise her independent judgment to change her mind on the
later occasion.


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                           Decision of the Court

– along with undisputed other evidence, entirely disprove her bare
assertions that she was incapacitated. On appeal, Respondent vigorously
contests Rund's findings, pointing to his own testimony and that of other
witnesses who saw Complainant that night. We reach our conclusion
without weighing the testimony of other witnesses against that of
Complainant.

¶31            Based solely on undisputed accounts of the events that night
and on statements by Complainant that are entirely inconsistent with those
on which Rund relied, we conclude the evidence at the hearing could not
lead a reasonable mind to conclude ASU proved Complainant was unable
to make "informed, rational judgments" on the night in question. Code §
E(4); see also Troutman, 170 Ariz. at 518. Because we conclude Rund's
finding that Complainant was incapacitated is not supported by substantial
evidence, his conclusion that Respondent violated Code § F(23) because
Complainant was incapacitated was an abuse of discretion. See A.R.S. § 12-
910(E); Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40 (App. 1982) (abuse
of discretion is "discretion manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons").8

C.    Rund's § F(23) Findings and Conclusions Regarding Force.

¶32            Relying on Complainant's statements and various accounts of
her injuries from the encounter, the Board found that Respondent "engaged
the Complainant by force," and Rund adopted this finding without
modification. Respondent argues Rund's finding is not supported by
substantial evidence.

¶33          We conclude the finding that Respondent engaged in sex with
Complainant by force was not supported by substantial evidence because a
reasonable mind could not reach that conclusion based on the evidence. See
Troutman, 170 Ariz. at 518.

¶34          In the first place, there was no evidence that Complainant
ever asserted that Respondent and Participant used violence, threats,
intimidation or weapons to compel her to have sex with them. Indeed,
Complainant told police "she was not held down or threatened to stay in


8      Because we conclude Rund's incapacitation finding lacks substantial
evidence, we do not address Respondent's argument that Rund improperly
rejected the Board's credibility findings; nor do we address Rund's
conclusion that Respondent was aware that Complainant was
incapacitated.


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                            Decision of the Court

the room." Although Complainant answered "[y]es" to the SANE
examiner's question of whether there was "any use of force," when asked to
"[d]escribe," Complainant only answered that "I was really intoxicated."
She answered "[n]o" when asked whether threats, intimidation or weapons
were used.

¶35            In the absence of any allegation by Complainant that
Respondent used force to compel her to have sex, Rund relied on the
Board's citation of her statement to ASU that while having sex with the two
males, she wanted "to throw-up [sic] because . . . they were pushing on her
gag reflexes with their penises." (Ellipses in original.) This statement does
not demonstrate or even suggest that Respondent forced Complainant to
have sex with him, and neither the Board nor Rund attempted to explain
how it might evince the conclusion that the sex was forced rather than
merely vigorous. In addition, in recounting Complainant's statement, the
Board omitted three relevant words from Complainant's full statement.
The ASU investigation reported Complainant's statement as follows:
"[Complainant] stated she remembers wanting to throw-up [sic] because
she was drunk and they were pushing on her gag reflexes with their penises."

¶36            Second, Rund relied on Complainant's statement to the ASU
investigator that "[t]he pain was caused because [Respondent] and
[Participant] were not using condoms or lube, and she was dry." Along the
same lines, Complainant testified that the SANE nurse told her she had a
"very large bruise in my vagina due to them having sex with me and me not
being ready." (Emphasis added.) But those statements do not suggest
Respondent forced Complainant to have sex. The self-described cause of
Complainant's pain was not force, but the males' failure to use condoms
and lubrication. The same holds true for other statements regarding
Complainant's pain and crying during the encounter: Complainant told
police she "started crying and she told them to stop because it was hurting,"
and Participant told police that "after a while [sic], [Complainant] started to
say that it was hurting" and "[o]nce [Complainant] said it was hurting, they
all stopped having sex." Although this evidence does not describe a
comfortable sexual experience, it does not support the conclusion that
Respondent used force to compel Complainant to have sex.

¶37           Third, the final category of evidence on which Rund relied,
accounts of Complainant's injuries from the encounter, likewise does not
evince a forcible sexual attack. Although Complainant texted Girlfriend
that the SANE nurse "said I have a lot of abrasions on my vagina and a lot
of big ones" and "it looked really tender," the actual SANE report concluded
she suffered only a "[m]inor physical injury by exam," a "[m]inor genital


                                      13
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                           Decision of the Court

injury by exam," and "[e]vidence of penetration of the vulva by exam." And
Nannetti, the only expert witness at the hearing with experience in sexual-
assault investigations, agreed with the proposition that the SANE report's
diagnosis of only minor injuries did not "indicate anything other than a
consensual sexual encounter."         Viewing these injuries in light of
Complainant's account that she participated in oral and vaginal sex while
on all fours for 20-25 minutes, along with the absence of condoms and
lubrication, see supra ¶¶ 21-24, 35, her injuries cannot reasonably be a basis
on which to conclude Respondent used force to compel her to have sex.

¶38           In sum, Rund's finding that Respondent had sex with
Complainant by force is not supported by substantial evidence. Thus,
Rund's conclusion that Respondent violated Code § F(23) by "engaging in
sexual acts against the Complainant by force" was an abuse of discretion.
See A.R.S. § 12-910(E); Torres, 135 Ariz. at 40.9

D.     Rund's § F(15) Findings and Conclusions Regarding Distribution
       of Alcohol.

¶39          Respondent argues there is no substantial evidence to support
Rund's finding that Respondent provided alcohol to Complainant. The
Board found that Respondent "admit[ted] that he distributed alcohol to the
Complainant, who [was] underage." Rund accepted the Board's findings
and recommendations on that charge.

¶40            Code § F(15) prohibits "[v]iolation of the Board or university
rules or applicable laws governing alcohol, including consumption,
distribution, unauthorized sale, or possession of alcoholic beverages." In
turn, ASU's Student Services Manual § 106-03 states that "[n]o person . . .
may sell, furnish, or give alcoholic beverages to any person under the age
of 21, except as otherwise permitted by law." Student Services Manual (SSM),
Arizona                            State                          University,




9       Because we reverse Rund's decision concerning use of force, we need
not consider Respondent's argument that ASU deprived him of due process
by failing to provide adequate notice of that charge. Further, because we
conclude substantial evidence does not support Rund's finding that
Respondent violated § F(23), we need not consider Respondent's
contentions that ASU made these findings without defining "force" and
"incapacitation" and that we should interpret these terms according to the
guidelines of the Association of Title IX Administrators.


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                              DOE v. ABOR
                           Decision of the Court

https://www.asu.edu/aad/manuals/ssm/ssm106-03.html (last updated
July 1, 2018).

¶41           Substantial evidence supports Rund's finding that
Respondent provided alcohol to Complainant when she was underage.
Complainant testified at the hearing that she was 19 at the time of the
incident and Respondent provided alcohol to Complainant by "pour[ing]
shots." Respondent also testified he "just poured her a shot" to play a
drinking game. For these reasons, Rund's conclusion regarding the § F(15)
charge was not contrary to law, arbitrary, capricious or an abuse of
discretion. See A.R.S. § 12-910(E).

¶42           Respondent, however, argues Rund's finding that
Respondent "distributed" alcohol to someone underage was contrary to
law, arbitrary, capricious and an abuse of discretion because ASU did not
argue "distribut[ion]" but rather that Respondent "provided, gave, received,
or influenced Complainant's alcohol consumption," thus changing the
applicable standard.

¶43            We are not persuaded. As noted above, supra ¶ 11, "[f]or
purposes of interpreting words and phrases not otherwise defined in the
[Code], every day [sic] and common usages and understanding shall apply,
and external sources may be consulted for guidance." Code § A(4). To
"distribute" alcohol at a social gathering has the same "every day [sic] and
common" meaning as to "give" or "provide" alcohol in the context of
pouring shots for another person. We need not address whether
Respondent "influenced Complainant's alcohol consumption" because
neither the Board nor Rund relied on that language in deciding Respondent
violated § F(15).

E.    ASU's Investigation.

¶44           Respondent argues ASU deprived him of due process by
failing to conduct a fair and impartial investigation. Specifically,
Respondent argues the ASU investigator told Complainant it was "up to
[Complainant] to submit information instead of [the investigator] being
able to go get it," while telling Respondent ASU would conduct a "'fair and
impartial' investigation" by a "'neutral, third-party investigator' whose
responsibility was to 'collect information'"; he argues this "deception
enabled Complainant to direct the course of the investigation" and deterred
Respondent from gathering and presenting exculpatory evidence. He also
argues ASU violated due process by denying him the opportunity to cross-




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                               DOE v. ABOR
                            Decision of the Court

examine the ASU investigator and by refusing to compel Girlfriend to
testify at the hearing.

¶45             Respondent, however, does not argue his defense of the
alcohol charge was prejudiced by the purported due-process violation. See
Bills v. Ariz. State Bd. of Educ., 169 Ariz. 366, 369 (App. 1991) (no due-process
violation where no prejudice occurred). He does not identify what evidence
he would have sought or presented to contest ASU's allegation he provided
alcohol to Complainant. Indeed, Respondent admitted at the hearing he
provided Complainant alcohol, and it is uncontested Complainant was
underage at the time.10 Because we have found the sexual misconduct
charge was not supported by substantial evidence and Respondent does
not argue a failure of due process prejudiced his defense of the alcohol
charge, we decline to address Respondent's remaining due-process
arguments.

                               CONCLUSION

¶46           Because Rund's findings concerning force and incapacitation
are not supported by substantial evidence, he abused his discretion by
concluding Respondent violated the Student Code of Conduct § F(23). By
contrast, Rund's findings on the § F(15) alcohol violation are supported by
substantial evidence and his conclusion on that charge was not contrary to
law, arbitrary, capricious or an abuse of discretion. See A.R.S. § 12-910(E).
Accordingly, we vacate the superior court's judgment upholding




10     For the same reason, we reject Respondent's contention that he was
deprived of due process by the Board's decision to limit the hearing to a
single day. See Bills, 169 Ariz. at 369.


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                              DOE v. ABOR
                           Decision of the Court

Respondent's expulsion from ASU and remand to ASU to redetermine the
appropriate sanction for Respondent's sole remaining Code violation under
§ F(15). See Code § G(1) (outlining available sanctions). We grant
Respondent his costs on appeal, but reject his request for attorney's fees,
which is unsupported by any relevant statutory authority.




                       AMY M. WOOD • Clerk of the Court
                        FILED: AA




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