                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                      JERRY CHARLES HOLLE,
                            Appellant.

                     No. 2 CA-CR 2014-0268
                     Filed September 16, 2015


         Appeal from the Superior Court in Pima County
                      No. CR20131185001
           The Honorable Richard D. Nichols, Judge

                           AFFIRMED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
                         STATE v. HOLLE
                        Opinion of the Court


                             OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Judge Howard and Judge Kelly1 concurred.


V Á S Q U E Z, Presiding Judge:

¶1           After a jury trial, Jerry Holle was convicted of
molestation of a child and sexual abuse of a minor under the age of
fifteen. The trial court sentenced him to a ten-year term of
imprisonment for molestation, followed by a five-year term of
probation for sexual abuse. On appeal, Holle argues the court erred
when it instructed the jury that “lack of sexual motivation [is] an
affirmative defense to be proven by the defendant.” In the
alternative, he argues “the legislature has overstepped its
constitutional authority” by redefining sexual interest as an
affirmative defense. For the following reasons, we affirm.

                Factual and Procedural Background

¶2          We view the facts in the light most favorable to
sustaining Holle’s convictions. See State v. Haight-Gyuro, 218 Ariz.
356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In February 2013, M.H.
disclosed to a friend and school counselor that her grandfather,
Holle, had touched her breasts, buttocks, and vagina on several
occasions. After an investigation, a grand jury indicted Holle for
molestation of a child, sexual abuse of a minor under fifteen, sexual
conduct with a minor under fifteen, and aggravated assault of a
minor under fifteen. The state alleged the first three charges were
dangerous crimes against children (DCAC) and the fourth offense
was committed for the purpose of sexual gratification.

¶3          Before trial, Holle filed an “objection to [the] statutory
elements of the offense,” arguing the statutes for molestation and

      1The  Hon. Virginia C. Kelly, a retired judge of this court, is
called back to active duty to serve on this case pursuant to orders of
this court and our supreme court.

                                  2
                          STATE v. HOLLE
                         Opinion of the Court

sexual abuse “exclude[] the central element defining mens rea . . . [,]
sexual interest, and shift[] the burden to the defendant to prove lack
of sexual interest in violation of the Due Process Clause of the Fifth
and Fourteenth Amendments.” Based on that argument, he
requested a jury instruction stating, “The State must prove beyond a
reasonable doubt that the defendant was sexually motivated to
commit” the offenses. The trial court denied the request.

¶4           At the close of the state’s case at trial, Holle moved for a
judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., on all
counts. The court granted the motion only as to aggravated assault.
In his defense on the remaining charges, Holle presented the
testimony of his daughters and M.H.’s uncle, all of whom stated
they had no reason to believe Holle was sexually interested in M.H.
or other children. The court instructed the jury regarding Holle’s
defense as follows:

                  It is a defense to sexual abuse and
             molestation of a child if the defendant was
             not motivated by a sexual interest.

                    . . . The burden of proving each
             element of the offenses beyond a
             reasonable doubt always remains on the
             State. However, the burden of proving the
             affirmative defense of sexual abuse and
             molestation of a child is on the defendant.
             The defendant must prove the affirmative
             defense of no sexual interest by a
             preponderance of the evidence. If you find
             that the defendant has proven the
             affirmative defense of no sexual interest by
             a preponderance of the evidence you must
             find the defendant not guilty of the
             offenses of sexual abuse and molestation of
             a child.

Despite this instruction, the jury submitted a question to the court
shortly after deliberations began, asking, “For these accusations to



                                   3
                          STATE v. HOLLE
                         Opinion of the Court

be a crime, must there be sexual intent proven[?]”           The court
referred the jury back to their original instructions.

¶5           The jury found Holle guilty of molestation and sexual
abuse of a minor, both DCAC, but was unable to reach a verdict on
the charge of sexual conduct with a minor. Upon the state’s request,
the trial court later dismissed the sexual-conduct charge with
prejudice. The court sentenced Holle as described above. This
appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A)(1).

                           Jury Instruction

¶6           Holle argues “sexual interest is, and always has been,
an element of the offense of Child Molestation” and therefore the
trial court erred by instructing the jury that he had the burden to
prove his lack of sexual interest. We review de novo whether a jury
instruction accurately stated the law. State v. Paredes-Solano, 223
Ariz. 284, ¶ 24, 222 P.3d 900, 908 (App. 2009). “[T]he test is whether
the instructions [as a whole] adequately set forth the law applicable
to the case.” State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006,
1009-10 (1998).

¶7           The issue presented here primarily involves the
interpretation of A.R.S. §§ 13-1404 and 13-1410. Our goal in
interpreting statutes is to “give effect to the legislature’s intent.”
State v. Hinden, 224 Ariz. 508, ¶ 9, 233 P.3d 621, 623 (App. 2010).
“[W]e look first to the plain language of the statute as the most
reliable indicator of its meaning.” State v. Givens, 206 Ariz. 186, ¶ 5,
76 P.3d 457, 459 (App. 2003). If the plain language of the statute is
clear, unambiguous, and susceptible to only one reasonable
interpretation, “we need look no further to ascertain the legislative
intent” and will apply the language as written. State v. Peek, 219
Ariz. 182, ¶ 11, 195 P.3d 641, 643 (2008); State v. Gomez, 212 Ariz. 55,
¶ 11, 127 P.3d 873, 875 (2006). If the statute’s language is
ambiguous, however, we must turn to other tools of statutory
interpretation. State v. Ross, 214 Ariz. 280, ¶ 22, 151 P.3d 1261, 1264
(App. 2007).




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                         Opinion of the Court

Plain-Meaning Rule

¶8            To determine whether a statute is unambiguous and
susceptible to only one reasonable interpretation, we must give
words their plain, ordinary, or “‘commonly accepted meaning[]’”
unless a statutory term is defined, in which case we apply that
meaning. State v. Bon, 236 Ariz. 249, ¶ 6, 338 P.3d 989, 991 (App.
2014), quoting State v. Petrak, 198 Ariz. 260, ¶ 10, 8 P.3d 1174, 1178
(App. 2000). This general rule has a critical purpose in the criminal-
law context—our criminal statutes must warn the public “of the
nature of the conduct proscribed” by our legislature. A.R.S. § 13-
101(2); see also A.R.S. §§ 1-211(C) (“Penal statutes shall be construed
according to the fair import of their terms, with a view to effect their
object and to promote justice.”), 13-101(3) (criminal statutes “define
the act or omission and the accompanying mental state which
constitute each offense and limit the condemnation of conduct as
criminal when it does not fall within the purposes set forth”). Thus,
in determining whether a statute fulfills this purpose, we consider
how “‘a person of ordinary or average intelligence’” would interpret
the statute’s language. State v. Getz, 189 Ariz. 561, 565, 944 P.2d 503,
507 (1997), quoting Barbone v. Superior Court, 11 Ariz. App. 152, 154,
462 P.2d 845, 847 (1969).

¶9           With these principles in mind, we turn to §§ 13-1404(A)
and 13-1410(A).      A defendant commits child molestation 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.” § 13-1410(A).
Similarly, a defendant commits sexual abuse by “intentionally or
knowingly engaging in sexual contact . . . with any person who is
under fifteen years of age if the sexual contact involves only the
female breast.” § 13-1404(A). And, the term “sexual contact” is
defined 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(A)(3).

¶10        In State v. Simpson, another department of this court
concluded the language in the molestation statute was “clear and
unambiguous.” 217 Ariz. 326, ¶ 18, 173 P.3d 1027, 1029 (App. 2007).

                                   5
                           STATE v. HOLLE
                          Opinion of the Court

The court noted that the statute, § 13-1410, does not refer to “sexual
interest” under A.R.S. § 13-1407(E), which provides: “It is a defense
to a prosecution [for sexual abuse] or [molestation] that the
defendant was not motivated by a sexual interest.” Id. Therefore,
the court determined “[t]he ‘sexual interest’ provision of § 13-
1407(E) is not an element of the offense.” Id. ¶ 19.

¶11          Although       Simpson     provides     one     reasonable
interpretation of § 13-1410(A), to the extent it concludes this is the
only reasonable interpretation, we respectfully disagree. See State v.
Patterson, 222 Ariz. 574, ¶ 19, 218 P.3d 1031, 1037 (App. 2009)
(decisions of coordinate courts are “‘persuasive and binding, unless
we are convinced that the prior decisions are based upon clearly
erroneous principles’”), quoting Scappaticci v. Sw. Sav. & Loan Ass’n,
135 Ariz. 456, 461, 662 P.2d 131, 136 (1983); cf. Ariz. Citizens Clean
Elections Comm’n v. Brain, 234 Ariz. 322, ¶ 34, 322 P.3d 139, 146 (2014)
(Bales, J., dissenting) (“When . . . a statute may reasonably be
interpreted more than one way, determining its meaning is not
advanced by assertions that one plausible interpretation must be
right because it reflects the ‘plain meaning.’”). A person of ordinary
or average intelligence would infer a fundamental connection exists
between sexual interest and the type of contact prohibited under
§§ 13-1404(A) and 13-1410(A)—“molestation,” “sexual abuse,”
“sexual contact,” “touching,” “fondling,” and “manipulating.” See
also § 13-1401(A)(3). We agree with Holle that contact motivated by
sexual interest is precisely what distinguishes innocent and criminal
conduct under these statutes. See Getz, 189 Ariz. at 565, 944 P.2d at
507. We thus conclude the statutes are susceptible to more than one
reasonable interpretation, including the one advanced by Holle.

¶12           Our supreme court reached the same conclusion when
addressing similar language in State v. Berry, 101 Ariz. 310, 313, 419
P.2d 337, 340 (1966). See also United States v. Hester, 719 F.2d 1041,
1043-44 (9th Cir. 1983) (noting “‘a rational connection’” between
“[t]he acts of touching, fondling, or playing with the private parts of
a child” and “sexual interest”), quoting Leary v. United States, 395 U.S.
6, 33 (1969); State ex rel. Hamilton v. Superior Court, 128 Ariz. 184, 187,
624 P.2d 862, 865 (1981) (suggesting former sexual-contact statute
refers to conduct “of a sexual nature”). Notably, the jury in this case


                                    6
                          STATE v. HOLLE
                         Opinion of the Court

made this rational connection. As we noted above, during its
deliberations, the jury sent the following question to the court: “For
these accusations to be a crime, must there be sexual intent
proven[?]” During a discussion between the court and counsel, the
prosecutor stated “I’m not sure that the instructions said [sexual
interest is] not an element of the offense. And that may be why
they’re getting hung up.”         When the court noted that “[t]he
instructions clearly don’t list that as an element,” the prosecutor
responded that lawyers might understand sexual interest is not an
element of the offense, but “I just am not sure the lay people
understand that.”

Statutory History

¶13          Because we conclude §§ 13-1404 and 13-1410 are
susceptible to more than one reasonable interpretation, we look
beyond the statutes’ language to determine their meaning. See Peek,
219 Ariz. 182, ¶ 11, 195 P.3d at 643; Gomez, 212 Ariz. 55, ¶ 11, 127
P.3d at 875. We consider “‘the statutory scheme as a whole and
consider [each] statute’s context, subject matter, historical
background, effects and consequences, and spirit and purpose’” to
determine the legislature’s intent. Ross, 214 Ariz. 280, ¶ 22, 151 P.3d
at 1264, quoting Hughes v. Jorgenson, 203 Ariz. 71, ¶ 11, 50 P.3d 821,
823 (2002).

¶14           In 1939, our legislature enacted a statute making it a
crime to “annoy[] or molest[] a school child.” 1939 Ariz. Sess. Laws,
ch. 13, § 1. In 1965, the legislature enacted a new molestation statute,
which provided:

                    A person who molests a child under
             the age of fifteen years by fondling, playing
             with, or touching the private parts of such
             child or who causes a child under the age
             of fifteen years to fondle, play with, or
             touch the private parts of such person shall
             be guilty of a felony . . . .

1965 Ariz. Sess. Laws, ch. 20, § 3.



                                      7
                          STATE v. HOLLE
                         Opinion of the Court

¶15          In Berry, 101 Ariz. at 312, 419 P.2d at 339, our supreme
court considered whether this statutory language was
unconstitutionally vague or “inexplicit.” The court suggested the
statute’s use of the word “molests” to describe the proscribed
contact was ambiguous on its face. Id. But, applying principles of
statutory interpretation, the court concluded the statute was
constitutional. Id. It first identified the legislature’s purpose in
enacting such a criminal statute: “the protection of the young from
improper advances.” Id. Next, the court observed that the statute
specified several “easily recognized acts which combined with a
necessary intent constitute a violation.” Id. at 313, 419 P.2d at 340.
Although finding the “statute fail[ed] to expressly state a necessary
element of intent or scienter,” the court determined: “‘When the
words annoy or molest are used in reference to offenses against
children, there is a connotation of abnormal sexual motivation on
the part of the offender.’” Id., quoting State v. Trenary, 79 Ariz. 351,
354, 290 P.2d 250, 252 (1955). The court reasoned that, because this
implied element of intent narrowed the scope of conduct punishable
under the statute, it was not impermissibly vague or overbroad. Id.

¶16          In 1977, the legislature enacted the sexual-abuse and
sexual-contact statutes, using language that substantially mirrors the
language in the current statutes.2 1977 Ariz. Sess. Laws, ch. 142,
§ 63. At that time, however, sexual abuse of a child under fifteen
years of age was not limited to “sexual contact involv[ing] only the
female breast.” § 13-1404(A); see 1977 Ariz. Sess. Laws, ch. 142, § 63.
Therefore, despite some differences, the sexual-abuse statute applied
to the same conduct prohibited by the molestation statute. See State
v. Aguirre, 130 Ariz. 54, 58, 633 P.2d 1047, 1051 (App. 1981) (“These
two offenses are virtually identical as they apply to a victim less
than 15 years old.”). Compare 1977 Ariz. Sess. Laws, ch. 142, § 63


      2Former   § 13-1401(2) defined “sexual contact” as “any direct
or indirect fondling or manipulating of any part of the genitals, anus
or female breast,” and § 13-1404 prohibited “sexual abuse by
intentionally or knowingly engaging in sexual contact . . . with any
person who is under fifteen years of age and who is not his or her
spouse.” 1977 Ariz. Sess. Laws, ch. 142, § 63.


                                   8
                          STATE v. HOLLE
                         Opinion of the Court

(defining sexual contact under sexual-abuse statute as “direct or
indirect fondling or manipulating of any part of the genitals, anus or
female breast”), with 1965 Ariz. Sess. Laws, ch. 20, § 3 (describing
molestation as “fondling, playing with, or touching the private
parts”); see also State v. Carter, 123 Ariz. 524, 525, 601 P.2d 287, 288
(1979) (interpreting “private parts” as “limited to the genital and
excretory organs and does not include the female breast”).

¶17           Also during this period, the legislature added the word
“knowingly” to the molestation statute. 1978 Ariz. Sess. Laws, ch.
201, § 133. Because Berry relied on the absence of an element of
scienter in the former statute, this amendment could be interpreted
as negating our supreme court’s reasoning that “‘there is a
connotation of abnormal sexual motivation on the part of the
offender.’” See Berry, 101 Ariz. at 313, 419 P.2d at 340, quoting
Trenary, 79 Ariz. at 354, 290 P.2d at 252. Nonetheless, our courts
continued to treat sexual interest as an “essential element” of the
offense. State v. Brooks, 120 Ariz. 458, 460, 586 P.2d 1270, 1272 (1978);
see State v. Madsen, 137 Ariz. 16, 18, 667 P.2d 1342, 1344 (App. 1983);
State v. Anderson, 128 Ariz. 91, 92, 623 P.2d 1247, 1248 (App. 1980).

¶18          The legislature codified the term “sexual interest” when
it enacted § 13-1407(E) in 1983. See 1983 Ariz. Sess. Laws, ch. 202,
§ 10. And, in 1985, the legislature brought the sexual-abuse and
molestation statutes into accord with one another. First, it amended
the sexual-abuse statute so that abuse of a child occurred when a
person had “sexual contact involv[ing] only the female breast.” 1985
Ariz. Sess. Laws, ch. 364, § 17. Second, the legislature amended § 13-
1407(E) to provide that a lack of sexual interest is a defense to both
sexual abuse and molestation.3 1985 Ariz. Sess. Laws, ch. 364, § 20.

¶19          For practical purposes, however, the enactment of § 13-
1407(E) did not significantly change the way courts treated sexual
interest. At that time, “Arizona common law governed the
allocation of the burden of proving” a justification defense, and “[a]

      3In this amendment, the legislature also removed “fondling”
and “playing with” from the molestation statute and added “direct[]
or indirect[]” touching. 1985 Ariz. Sess. Laws, ch. 364, § 21.


                                   9
                          STATE v. HOLLE
                         Opinion of the Court

criminal defendant who presented ‘any evidence’ [to support such a
defense] triggered the State’s obligation to prove beyond a
reasonable doubt that the defendant’s conduct was not justified.”
State v. Farley, 199 Ariz. 542, ¶ 7, 19 P.3d 1258, 1259-60 (App. 2001).4
In State v. Byrd, in the context of a conviction for molestation of a
child, the defendant argued the trial court’s instruction, which
mirrored the language of § 13-1407(E), constituted unconstitutional
burden shifting. 160 Ariz. 282, 283, 772 P.2d 1135, 1136 (App. 1988).
This court disagreed, however, concluding that the jury instructions
as a whole correctly instructed the jury on the state’s burden of
proof while permitting the defendant to assert the statutory defense.
Id.; see also In re Maricopa Cnty. Juv. Action No. JV-121430, 172 Ariz.
604, 606-07, 838 P.2d 1365, 1367-68 (App. 1992) (“logical correlation”
to § 13-1407(E) “is that the intent necessary to commit . . .
molestation is . . . that the actor be motivated by a ‘sexual interest’”);
State v. Turrentine, 152 Ariz. 61, 67, 730 P.2d 238, 244 (App. 1986)
(sufficient evidence to support finding of sexual interest).

¶20          Similarly, in In the Matter of Pima County Juvenile Action
No. 74802-2, our supreme court considered whether the sexual-abuse
statute was unconstitutionally vague. 164 Ariz. 25, 28-30, 790 P.2d
723, 726-28 (1990), abrogated by Getz, 189 Ariz. at 563-65, 944 P.2d at
505-07. In its analysis, the court noted that “the legislature ha[d]
carefully exempted from the statute physical contact . . . that is
unmotivated by sexual interest,” and the court ultimately concluded
the statute was not unconstitutional. Id. at 28-29, 790 P.2d at 726-27.
In other words, the court treated sexual interest as an element under
the criminal statute, not a separate affirmative defense. See id.;


      4Farley  refers to “justification” instead of the more general
term, “defense,” which we use above. 199 Ariz. 542, ¶ 7, 19 P.3d at
1259-60. Although there are substantive differences between the
different types of defenses today, see A.R.S. § 13-103(B), this
distinction was not made at that time, see, e.g., Farley, 199 Ariz. 542,
¶ 14, 19 P.3d at 1261; State ex rel. Romley v. Superior Court, 172 Ariz.
232, 238, 836 P.2d 445, 451 (App. 1992) (“With regard to the
justification defense, self-defense is a statutory affirmative defense in
Arizona.”).


                                   10
                          STATE v. HOLLE
                         Opinion of the Court

Kolender v. Lawson, 461 U.S. 352, 357 (1983) (“[V]agueness doctrine
requires that a penal statute define the criminal offense with sufficient
definiteness . . . .”) (emphasis added).

¶21           Our courts continued to apply § 13-1407(E) in this
manner, even after the legislature amended the molestation statute
in 1993 to conform with the language used under the sexual-abuse
statute.5 See 1993 Ariz. Sess. Laws, ch. 255, § 29 (“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 under fifteen years of age.”);
Senate Fact Sheet, S.B. 1049, 41st Leg., 1st Reg. Sess. (Ariz. Feb. 5,
1993) (describing bill as making “a number of technical and
conforming changes”); State v. Lujan, 192 Ariz. 448, 451, 967 P.2d 123,
126 (1998); State v. Sanderson, 182 Ariz. 534, 542, 898 P.2d 483, 491
(App. 1995). Notably, in Sanderson, another department of this court
referred to § 13-1407(E) as “an affirmative defense regarding
motive” and not an element of the offenses. 182 Ariz. at 542,
898 P.2d at 491. But, the court nevertheless approved of a jury
instruction that stated, “the State must prove beyond a reasonable
doubt that any defense raised by the defendant is not valid.” Id.;
see State v. Duarte, 165 Ariz. 230, 232, 798 P.2d 368, 370 (1990). It
necessarily follows that, although Sanderson correctly identified
§ 13-1407(E) as a “defense” to molestation, the distinction between
an element and a defense amounted to a change in the burden of
production, not the burden of proof. See Farley, 199 Ariz. 542, ¶ 7,
19 P.3d at 1259-60.

¶22           For our purposes, the 1993 amendment represents the
last significant change to §§ 13-1401(A)(3), 13-1404(A), 13-1407(E), or


      5In  the 1993 amendment, the legislature also amended the
definition of “sexual contact,” combining the various terms used by
former molestation and sexual-abuse statutes to describe prohibited
conduct, with the exception of the term “playing with.” See 1993
Ariz. Sess. Laws, ch. 255, § 23 (“‘Sexual contact’ means any direct or
indirect touching, fondling or manipulating of any part of the
genitals, anus or female breast . . . .”).


                                   11
                          STATE v. HOLLE
                         Opinion of the Court

13-1410(A).6 And, none of the amendments discussed above
signaled a departure from the first interpretation provided by our
supreme court in Berry, which established the constitutionality of the
statute that created the offense of molestation, see Berry, 101 Ariz. at
313, 419 P.2d at 340, much less any of the other case law referring to
sexual interest in this context, see Lujan, 192 Ariz. 448, ¶ 7, 967 P.2d
at 126; Maricopa Cnty. No. JV-121430, 172 Ariz. at 606-07, 838 P.2d at
1367-68; see also State v. Pennington, 149 Ariz. 167, 168, 717 P.2d 471,
472 (App. 1985) (“It is presumed the legislature is aware of existing
case law when it passes a statute; and that it is aware of court
decisions interpreting the language of the statute; and when it
retains the language upon which those decisions are based, it
approves the interpretations.”) (citation omitted). But see Simpson,
217 Ariz. 326, ¶ 22, 173 P.3d at 1030 (describing 1993 amendment as
significant departure from previous language). Nor do we believe
the legislature intended by enacting § 13-1407(E) to significantly
alter the elements of molestation under § 13-1410(A). If it had, it
would have done so in the text of the molestation statute itself.
Cf. Getz, 189 Ariz. at 565, 944 P.2d at 507 (“If the legislature intended
to implicitly raise the age [of consent] to eighteen by enacting
[§] 13-1407(B), which we doubt, it can do so explicitly by amending
[§] 13-1404.”). Thus, at that point in the evolution of the molestation
and sexual-abuse statutes, sexual interest remained an implicit
element of the offenses, and, if a defendant raised the defense under
§ 13-1407(E), the state was required to prove beyond a reasonable
doubt that the conduct in question was sexually motivated.
See Duarte, 165 Ariz. at 232, 798 P.2d at 370; Sanderson, 182 Ariz. at
542, 898 P.2d at 491.

Burden Shifting

¶23        In 1997, however, our legislature enacted A.R.S. §§ 13-
103(B) and 13-205, which set aside the common law approach to

      6The legislature has since changed the conditions under which
a person can consent to sexual contact and made other technical
amendments. See 2015 Ariz. Sess. Laws, ch. 209, § 3; 2008 Ariz. Sess.
Laws, ch. 301, §§ 57, 60; 2005 Ariz. Sess. Laws, ch. 185, § 4; 1999 Ariz.
Sess. Laws, ch. 261, § 17.


                                   12
                           STATE v. HOLLE
                          Opinion of the Court

defenses. See 1997 Ariz. Sess. Laws, ch. 136, §§ 3, 4. At that time,
§ 13-103(B) provided:

                    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.

1997 Ariz. Sess. Laws, ch. 136, § 3. Section 13-205(A) further
provided that “a defendant shall prove any affirmative defense
raised by a preponderance of the evidence, including any
justification defense under chapter 4 of this title.”7 1997 Ariz. Sess.
Laws, ch. 136, § 4.

¶24           The second sentence of § 13-103(B), which excludes any
defense that “denies an element of the offense charged or denies
responsibility, including . . . lack of intent,” ensures that this shift in
the burden of proof is constitutional. See Farley, 199 Ariz. 542,
¶¶ 11-14, 19 P.3d at 1260-61. “[T]he Due Process Clause requires the
prosecution to prove beyond a reasonable doubt all of the elements
included in the definition of the offense of which the defendant is
charged.” Patterson v. New York, 432 U.S. 197, 210 (1977); see State v.
Portillo, 182 Ariz. 592, 594, 898 P.2d 970, 972 (1995). But, due process
“does not require the state to disprove a defendant’s affirmative
defense unless the defense negates ‘any facts of the crime which the
State [must] prove.’” State v. Jeffrey, 203 Ariz. 111, ¶¶ 7, 9, 50 P.3d
861, 863-64 (App. 2002), quoting Patterson, 432 U.S. at 207 (alteration
in Jeffrey).



      7The  legislature has since amended §§ 13-103(B) and 13-205(A)
to exclude justification defenses under chapter 4. See 2006 Ariz. Sess.
Laws, ch. 199, §§ 1, 2.


                                    13
                           STATE v. HOLLE
                          Opinion of the Court

¶25             In Simpson, the court relied on § 13-205(A) and
Sanderson’s characterization of § 13-1407(E) as an “affirmative
defense” to conclude the burden of proof must lie with the
defendant. See 217 Ariz. 326, ¶ 19, 173 P.3d at 1030. But Sanderson
was decided before the term “affirmative defense” took on the
significance it has today under § 13-103(B).8 See 1997 Ariz. Sess.
Laws, ch. 136, §§ 3, 4. More importantly, however, sexual interest
under § 13-1407(E) has always been treated as an “element,” Byrd,
160 Ariz. at 283, 772 P.2d at 1136, an “exempt[ion],” Pima Cnty. No.
74802-2, 164 Ariz. at 29, 790 P.2d at 727, or, at a minimum, a defense
that the state must nevertheless disprove beyond a reasonable
doubt, see Sanderson, 182 Ariz. at 542, 898 P.2d at 491. Therefore,
sexual interest appears to be the type of defense that “either denies
an element of the offense charged or denies responsibility, including
. . . lack of intent.” § 13-103(B). To conclude otherwise would force
defendants to negate a “fact[] of the crime which the State is to prove
in order to convict.’” Farley, 199 Ariz. 542, ¶ 11, 19 P.3d at 1260,
quoting Patterson, 432 U.S. at 207; see also State v. Lockwood, 222 Ariz.
551, ¶ 9, 218 P.3d 1008, 1011 (App. 2009) (“‘[I]f possible, this court
construes statutes to avoid rendering them unconstitutional’ and ‘to
avoid unnecessary resolution of constitutional issues.’”), quoting
Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 272-73, 872 P.2d 668, 676-77
(1994) (alteration in Lockwood).

¶26         In sum, we hold that § 13-1407(E) is a defense but not an
affirmative defense. See § 13-103(B); Ross, 214 Ariz. 280, ¶ 22, 151
P.3d at 1264. If, during a prosecution for molestation of a child or
sexual abuse of a minor under fifteen, a defendant satisfies the
burden of production to raise the defense listed under § 13-1407(E),
then the state must prove beyond a reasonable doubt that the
defendant’s conduct was motivated by a sexual interest. See Duarte,


      8Simpson    similarly notes that Getz refers to “[t]he affirmative
defenses . . . set forth in . . . § 13-1407.” 217 Ariz. 326, ¶ 17, 173 P.3d
at 1029; see Getz, 189 Ariz. at 506, 944 P.2d at 564. However, the
opinion in Getz was released less than a month after §§ 13-103(B)
and 13-205 became effective, and, therefore, those statutes were not
at issue in that case.


                                    14
                          STATE v. HOLLE
                         Opinion of the Court

165 Ariz. at 232, 798 P.2d at 370. Accordingly, although the trial
court properly instructed the jury pursuant to Simpson, 217 Ariz. 326,
¶ 19, 173 P.3d at 1030, cf. Sell v. Gama, 231 Ariz. 323, ¶ 31, 295 P.3d
421, 428 (2013) (“Trial courts are required to follow the decisions of a
higher court . . . .”), it was legal error to place the burden of proof on
Holle to prove his conduct was not motivated by a sexual interest.
See Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d at 1009-10; Paredes-Solano,
223 Ariz. 284, ¶ 24, 222 P.3d at 908.

                            Harmless Error

¶27          Holle argues that the erroneous instruction in this case
amounts to structural error, and, therefore, prejudice is presumed,
and we need not consider whether the error was harmless.
Structural errors “are those which ‘deprive defendants of basic
protections without which a criminal trial cannot reliably serve its
function as a vehicle for guilt or innocence.’” State v. Henderson, 210
Ariz. 561, ¶ 12, 115 P.3d 601, 605 (2005), quoting State v. Ring, 204
Ariz. 534, ¶ 45, 65 P.3d 915, 933 (2003). In contrast, other errors that
cannot be classified as structural are subject to a harmless error
analysis when the defendant has timely objected below. “Error is
harmless if the reviewing court can say beyond a reasonable doubt
that the error did not contribute to the verdict.” State v. Davolt, 207
Ariz. 191, ¶ 39, 84 P.3d 456, 470 (2004).

¶28          Holle relies primarily on Sullivan v. Louisiana, 508 U.S.
275 (1993). There, the parties agreed the trial court had provided an
erroneous reasonable-doubt instruction to the jury. Id. at 277. The
issue, then, was whether such error was structural or subject to
harmless-error review. Id. at 278-79. The Supreme Court concluded
a harmless-error analysis in that case would be “illogic[al].” Id. at
280. It explained that, under harmless-error review, the court would
need to consider “whether the guilty verdict actually rendered in
this trial was surely unattributable to the [erroneous instruction].”
Id. at 279 (emphasis omitted).         But, because the erroneous
reasonable-doubt instruction rendered the verdict defective as a
whole, there was “no jury verdict within the meaning of the Sixth
Amendment” to consider under harmless-error review. Id. at 280.




                                   15
                          STATE v. HOLLE
                         Opinion of the Court

¶29           In Neder v. United States, however, the Supreme Court
concluded that “the omission of an element [of a criminal offense in
a jury instruction] is subject to harmless-error analysis” because the
error “did not ‘vitiat[e] all the jury’s findings.’” 527 U.S. 1, 10-11
(1999), quoting Sullivan, 508 U.S. at 281 (alteration in Neder; emphasis
omitted). Thus, the Court rejected the argument that, without a
“‘complete verdict’ on every element of the offense,” structural error
must apply. Id. at 11 (emphasis omitted).

¶30           Because the error here amounts to an omission of an
element, Neder is controlling, and we review for harmless error.
See State v. Dann, 205 Ariz. 557, ¶ 18, 74 P.3d 231, 239 (2003)
(erroneous jury instructions subject to harmless-error review); State
v. Yazzie, 232 Ariz. 615, ¶¶ 10-12, 307 P.3d 1042, 1044-45 (App. 2013)
(conducting harmless-error review after concluding “the court did
not instruct jurors regarding an element of the offense that the State
was required to prove beyond a reasonable doubt”). Under this
standard of review, the state must show that no reasonable jury
“could find that the element omitted from the jury instructions had
not been established beyond a reasonable doubt.” State v. Lewis, 236
Ariz. 336, ¶ 38, 340 P.3d 415, 424-25 (App. 2014). As our supreme
court has explained:

             Following a thorough examination of the
             trial court record, [we] must determine
             “whether the record contains evidence that
             could rationally lead to a contrary finding
             with respect to the omitted element. If the
             answer to that question is ‘no,’ holding the
             error harmless does not reflec[t] a
             denigration of the constitutional rights
             involved.”

Dann, 205 Ariz. 557, ¶ 18, 74 P.3d at 239, quoting Neder, 527 U.S. at 19
(second alteration in Neder).

¶31          In this case, the record contains overwhelming evidence
that Holle’s conduct was motivated by a sexual interest. At trial, the
state played a video recording of Holle’s interview with a detective,
in which Holle described the two incidents for which he was


                                  16
                         STATE v. HOLLE
                        Opinion of the Court

convicted. In the first, Holle denied M.H. had “ever ask[ed him]
about humping” but conceded he had “showed her.” He then
described “play acting” with M.H. on a day shortly after Christmas,
wherein M.H. was on his bed, she pulled down her pants, and he
“rubbed up against her” buttocks two or three times with his
covered penis. During the second incident, M.H. ran into his room
naked, Holle grabbed her and threw her up in the air, then kissed
her on her belly, two inches below her navel, and chest, specifically
“on the side of her breast.” When asked why he had acted this way
with M.H. and not another child, he explained, “She’s wanting to be
with . . . a male.” Although Holle denied being aroused and, at trial,
his relatives testified that he had never displayed any sexual interest
in M.H., there is no rational explanation for Holle’s conduct other
than he was motivated by sexual interest. See id. Therefore, we
conclude the error did not contribute to the guilty verdicts.
See Davolt, 207 Ariz. 191, ¶ 39, 84 P.3d at 470.

                             Disposition

¶32         For the foregoing reasons, we affirm Holle’s convictions
and sentences.




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