                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                     EARL JEFFERSON CAUSBIE,
                            Appellant.

                     No. 2 CA-CR 2016-0106
                     Filed December 5, 2016

         Appeal from the Superior Court in Pima County
                      No. CR20141960001
                The Honorable Scott Rash, Judge

                           AFFIRMED


                           COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee

Kuykendall & Associates, Tucson
By Gregory J. Kuykendall and Amy P. Knight
Counsel for Appellant
                        STATE v. CAUSBIE
                        Opinion of the Court



                             OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.


M I L L E R, Judge:

¶1            Earl Causbie appeals from his conviction for sexual
assault, for which he was sentenced to 5.25 years’ imprisonment. He
argues the trial court erred by refusing his proposed jury
instructions on the meaning of “without consent” in the context of
alcohol consumption by the victim. Alternatively, he contends the
statutory definition of “without consent” is unconstitutionally
vague. For the reasons that follow, we affirm.

                Factual and Procedural Background

¶2          We view the facts and all reasonable inferences
therefrom in the light most favorable to upholding the jury’s verdict.
See State v. Inzunza, 234 Ariz. 78, ¶ 2, 316 P.3d 1266, 1268-69
(App. 2014). In October 2011, the victim, J.D., went to a party at the
home of G.J., whom she was just “in the beginning stages of kind of
dating.” When J.D. arrived, she did not know anyone at the party
other than G.J., but she met some of the other guests as the evening
went on, including Causbie and A.G.

¶3           Many of the guests were already intoxicated by the time
J.D. arrived. Most or all of the guests drank whiskey shots during
the evening, and others played drinking games. G.J. drank so much
that he vomited and then retired to his upstairs bedroom, where he
remained for the rest of the night even as the party continued. Over
the course of the evening, J.D. drank about six shots of cinnamon-




                                  2
                             STATE v. CAUSBIE
                             Opinion of the Court

flavored whiskey (about one ounce each), as well as one mixed
drink containing a “three-second pour” of whiskey.1

¶4           Causbie flirted with J.D. throughout the party. He
flicked and played with her hair, which she did not like. He also
tried to hug her from behind—“she laughed but she pulled away . . .
like she didn’t like it,” according to A.G. Causbie’s advances made
J.D. feel uncomfortable, as she expressed to A.G about four different
times. At one point, Causbie asked J.D. to have a shot of whiskey
with him, which she did. Then J.D. decided to send G.J. a photo of
her breasts to “show him what he was missing.” She lifted her shirt
and bra and told Causbie to photograph her bare breasts and send
the photo by text message to G.J., and he did. Causbie then called
J.D. a “MILF”2 and tried to kiss her, but she said “No, I don’t kiss
married men. I’m here, like, with [G.J.].”

¶5            J.D. then felt that it was time to go. She later said she
had been “tipsy,” but not “falling down drunk,” at that point. She
got her things and began to leave, but A.G. felt J.D. might have had a
lot to drink and wanted to make sure she was okay to drive. With
A.G. in the car, J.D. drove a short distance in a circle, which led her
to conclude she was not sober enough to drive home safely. A.G.
suggested J.D. spend the night on the couch at G.J.’s house. Causbie
and another guest also came out to the car and encouraged J.D. to
stay there that night. J.D. was “torn”—on the one hand she did not
feel safe driving, but on the other hand, she did not feel safe staying
over because Causbie’s advances had given her the “heebie jeebies.”
J.D. expressed her concern to A.G., but A.G. reassured her that she
would be safe if she stayed, so she did.

¶6          J.D. came back inside, at which point she vomited into a
trash can. A.G. got J.D. some water and a blanket, and she lay down
on a couch on her stomach “like she was ready to go to sleep.” A.G.


         1 J.D.   had not had anything to drink before arriving at the
party.
         2 J.D.
           testified that she understood “MILF” to be a slang
acronym for “A mother I’d like to f***.”


                                      3
                        STATE v. CAUSBIE
                        Opinion of the Court

saw J.D. close her eyes; she fell asleep “[a]lmost instantly.” A.G.
went upstairs, and when she came down about half an hour later to
get a drink, J.D. was still asleep—she was “just out,” A.G. explained.
A.G. went back upstairs.

¶7           Sometime later, A.G. heard a male voice coming from
downstairs, so she went down again. As A.G. came down the stairs,
she saw J.D. on the couch where she had fallen asleep, lying on her
back with her pants and underwear pulled down, her legs about
shoulder-width apart, and her knees bent. Causbie was kneeling
beside the couch and repeatedly “putting his hand up [J.D.’s] vagina
very roughly.” Although A.G. could not tell whether J.D. was
awake or asleep when she saw her, J.D. did not appear to be
participating in any way, nor was she making any sounds. In fact,
J.D. had awakened around the time A.G. came downstairs or shortly
before to the feeling of “a thrusting fist pain” or “pounding in [her]
vagina area.” She unsuccessfully attempted to push Causbie away.

¶8           A.G. walked past them into the kitchen before Causbie
realized she was there. A.G. felt “nervous” because she had “just
caught two people doing stuff, private stuff, and [she] didn’t need to
see that.” She called out, “[J.D.], are you okay?” J.D. said no. After
hearing this, A.G. “felt dirty” and went into the bathroom to wash
her hands. When she came back out, Causbie, who had been
kneeling beside J.D.’s midsection, was now kneeling beside her
head.

¶9          A.G. asked Causbie to give them a moment alone, and
he walked away without saying a word. A.G. asked J.D. if she was
okay. J.D. was “confused, and was saying like, where am I? Like
she didn’t know what was going on.” A.G. had to explain to J.D.
where she was multiple times. J.D. said she thought Causbie had
pulled down her pants, and asked A.G. to help her pull them back
up, which she did. J.D. vomited into the trash can again. Then J.D.
thanked A.G. and told her she was “a good girl,” and went back to
sleep.

¶10           The next morning, J.D. awoke to Causbie touching her
shoulder. He told her he left her some water on the table, and then
he left. J.D. left later, at about 7:30 that morning, and while driving


                                  4
                        STATE v. CAUSBIE
                        Opinion of the Court

home, pulled over and vomited and urinated on herself. She found
blood in her underwear later that day, although she was not
menstruating. She also had bruises on her inner thighs, and pelvic
pain that lasted for about a week. Feeling “dirty and ashamed,” she
took “probably like [twenty]” baths the day after the incident
because she “just wanted everything gone from that guy.” J.D.
subsequently asked A.G. what had happened the night before
because she could not remember everything. A.G. told J.D. what she
had seen. J.D. then reported the incident to law enforcement.

¶11           Causbie was charged with sexual assault in violation of
A.R.S. § 13-1406, and the case proceeded to a jury trial at which he
advanced a consent theory of defense. On the second day of trial,
out of the jury’s presence, court and counsel discussed jury
instructions.    The court suggested the following instruction
regarding the absence of consent, which tracks A.R.S. § 13-
1401(A)(7)(b)3 almost verbatim:

            “Without consent” means the victim is
            incapable of consent by reason of mental
            disorder, mental defect, drugs, alcohol,
            sleep or any other similar impairment of
            cognition and such condition is known or
            should have reasonably been known to the
            defendant. “Mental defect” means the
            victim is unable to comprehend the
            distinctively sexual nature of the conduct
            or is incapable of understanding or
            exercising the right to refuse to engage in
            the conduct with another.

Causbie objected, and proffered an alternative instruction:



      3A.R.S. § 13-1407 has been amended and renumbered since the
date of the crime, but no substantive changes were made to the
applicable subsections. See 2015 Ariz. Sess. Laws, ch. 209, § 2. We
cite the current version of the statute throughout unless otherwise
indicated.


                                  5
                        STATE v. CAUSBIE
                        Opinion of the Court

             In order for you to find that [J.D.] could not
             consent to sexual activity due to her use of
             alcohol you must find beyond a reasonable
             doubt that she was unable to comprehend
             the distinctively sexual nature of the
             conduct or was incapable of understanding
             or exercising her right to refuse to engage
             in that conduct with another.

The court rejected Causbie’s proposed instruction, overruled his
objection, and selected its originally proposed instruction.4

¶12          The next day, Causbie requested another instruction to
supplement, rather than replace, the court’s “without consent”
definition. Defendant’s proposed supplemental instruction read:
“The mere fact that [J.D.] may have consumed alcohol does not
mean that she could not give consent to sexual activity.” The court
declined to give that instruction, stating it was “covered by the other
instruction.”

¶13          In its closing argument the state contended J.D. had
lacked capacity to consent to the sexual intercourse because of both
alcohol and sleep. The jury found Causbie guilty of sexual assault
on a general verdict form, and he was sentenced as described above.
Sections 13-4031 and 13-4033(A)(1), A.R.S., give us jurisdiction over
his appeal.




      4The  state also requested a consent instruction. The state’s
proposed instruction provided: “‘Without consent’ includes, but is
not limited to, any of the following,” and then substantially followed
the full text of A.R.S. § 13-1401(A)(7)(a)-(d). In this respect, it
substantially followed State Bar of Arizona’s Revised Arizona Jury
Instructions (“RAJI”) Statutory Criminal 14.01.07 (4th ed. 2012).
However, the state’s proposed instruction added a final sentence not
found in the Revised Arizona Jury Instruction: “The words ‘without
consent’ should be given their ordinary meaning.” The court
declined to give the state’s instruction as well.


                                   6
                         STATE v. CAUSBIE
                         Opinion of the Court

                               Analysis

Vagueness and Instruction Adequacy

¶14         This case raises an issue not yet squarely addressed in
our case law: the appropriate jury instruction for incapacity to
consent by reason of alcohol. Causbie argues the phrase “incapable
of consent by reason of . . . alcohol” in § 13-1401(A)(7)(b) is
unconstitutionally vague 5 on its face 6 without a narrowing
instruction or a more detailed definition.       His constitutional
argument is intertwined with a state law contention that the
statutory definition of “without consent” is insufficient. Thus we
address both arguments together.

¶15          We review de novo whether a statute is
unconstitutionally vague. See State v. Mutschler, 204 Ariz. 520, ¶ 4,
65 P.3d 469, 471 (App. 2003). There is a strong presumption that a
challenged statute is not unconstitutionally vague, State v. Kaiser, 204
Ariz. 514, ¶ 8, 65 P.3d 463, 466 (App. 2003), and it is the defendant’s
burden to show otherwise, see State v. Okken, 238 Ariz. 566, ¶ 9, 364


      5 The state argues Causbie’s vagueness challenge is not
properly preserved for review. But Causbie expressly invoked the
Fourteenth Amendment of the United States Constitution and
Article II, Section 4 of the Arizona Constitution, arguing the court’s
instruction was unconstitutional because it left “the jury to on an ad
hoc basis determine what being incapable of consent by reason of . . .
alcohol . . . means” in a given case without a definite standard. He
raised this constitutional vagueness argument again in his motion
for a new trial. The issue is preserved.
      6Although   at oral argument defense counsel characterized the
argument as an as-applied challenge, examination of the structure of
the argument reveals it is actually a facial challenge. Counsel
maintained that Causbie’s proposed instructions are required in
every case involving incapacity to consent by reason of alcohol, not
merely upon the facts of this particular case. See, e.g., Sabri v.
United States, 541 U.S. 600, 609 (2004) (argument that “no application
of the statute could be constitutional” is a facial challenge).


                                   7
                         STATE v. CAUSBIE
                         Opinion of the Court

P.3d 485, 488 (App. 2015). We review a court’s refusal to give a
requested jury instruction for an abuse of discretion,7 but consider
de novo whether the instructions given were legally sufficient when
viewed as a whole. See State v. Miller, 234 Ariz. 31, ¶ 41, 316 P.3d
1219, 1231 (2013).

¶16          To ensure due process of law, a criminal statute must
not be “so vague that it fails to give ordinary people fair notice of the
conduct it punishes, or so standardless that it invites arbitrary
enforcement.” Johnson v. United States, ___ U.S. ___, ___, 135 S. Ct.
2551, 2556 (2015); accord State v. Schmidt, 220 Ariz. 563, ¶ 5, 208 P.3d
214, 216 (2009); see U.S. Const. amend. XIV, § 1; Ariz. Const. art. II,
§ 4. But the requirement of fair and reasonable notice is not a
requirement of “perfect notice or absolute precision of language.”
State v. McDermott, 208 Ariz. 332, ¶ 13, 93 P.3d 532, 536 (App. 2004),
quoting Kaiser, 204 Ariz. 514, ¶ 9, 65 P.3d at 466. A statute can give


      7Causbie   also contends we should view the evidence in the
light most favorable to him as the party requesting jury instructions,
citing State v. Almeida, 238 Ariz. 77, ¶ 2, 356 P.3d 822, 823-24
(App. 2015), and State v. Nottingham, 231 Ariz. 21, ¶ 14, 289 P.3d 949,
954 (App. 2012). Those cases are distinguishable, however, because
those defendants requested jury instructions that are appropriate
only if reasonable evidence supports the theory they set forth.
See Almeida, 238 Ariz. 77, ¶¶ 1, 9, 356 P.3d at 823, 824 (justification
instruction, which is appropriate only upon slightest evidence of
justification); Nottingham, 231 Ariz. 21, ¶¶ 4, 6, 289 P.3d at 951-52
(Dessureault instruction appropriate only upon evidence supporting
suggestive pretrial identification process). Here, Causbie brings a
facial vagueness challenge to the alcohol incapacity statute
underlying the instructions given. Whether Causbie’s requested
instructions should have been given turns not on whether there was
a sufficient quantum of evidence to support a particular theory
therein, but rather on issues of constitutional and statutory
interpretation explored below. Therefore, we continue to view the
facts and all reasonable inferences therefrom in the light most
favorable to upholding the verdict. See Inzunza, 234 Ariz. 78, ¶ 2, 316
P.3d at 1268-69.


                                   8
                         STATE v. CAUSBIE
                         Opinion of the Court

fair notice of the conduct prohibited even if it can be interpreted in
more than one way or it does not define a particular term. Id.
Moreover, although there may be borderline cases in which it is
difficult to decide whether or not certain conduct violated a statute,
it does not follow that as a result that statute is unconstitutionally
vague. Kaiser, 204 Ariz. 514, ¶ 9, 65 P.3d at 467; see McLamb,
188 Ariz. at 5, 932 P.2d at 270 (“If a statute gives notice of prohibited
conduct, it is not void for vagueness ‘simply because it may be
difficult to determine how far one can go before the statute is
violated.’”), quoting State v. Phillips, 178 Ariz. 368, 370, 873 P.2d 706,
708 (App. 1994).

¶17          “A person commits sexual assault by intentionally or
knowingly engaging in sexual intercourse . . . with any person
without consent of such person.” A.R.S. § 13-1406(A) (emphasis
added). “Sexual intercourse” includes digital penetration of the
vulva. See A.R.S. § 13-1401(A)(4). Under the statutory definition,
“‘[w]ithout consent’ includes” a situation in which

             [t]he victim is incapable of consent by
             reason of mental disorder, mental defect,
             drugs, alcohol, sleep or any other similar
             impairment of cognition and such
             condition is known or should have
             reasonably been known to the defendant.
             For the purposes of this subdivision,
             “mental defect” means the victim is unable
             to comprehend the distinctively sexual
             nature of the conduct or is incapable of
             understanding or exercising the right to
             refuse to engage in the conduct with
             another.

§ 13-1401(A)(7)(b).     This list is not exhaustive, but merely
illustrative—“[t]he word ‘includes’ [in the definition] is a term of
enlargement which conveys the idea that conduct which does not
fall within the listed behavior may also violate the statute.” State v.
Witwer, 175 Ariz. 305, 307-08, 856 P.2d 1183, 1185-86 (App. 1993).




                                    9
                         STATE v. CAUSBIE
                         Opinion of the Court

¶18            Causbie first argues the term “consent” itself is
unconstitutionally vague. We disagree. As we have observed,
“[t]he words ‘without consent’ are easily understood as they are
ordinarily used.” Id. at 308, 856 P.2d at 1186; see also State v. Sharma,
216 Ariz. 292, ¶ 15, 165 P.3d 693, 697 (App. 2007), citing Random
House Webster’s College Dictionary 2891 (1995) (“‘[W]ithout consent’
. . . generally mean[s] without agreement or permission.”); see also
McDermott, 208 Ariz. 332, ¶ 13, 93 P.3d at 536 (statute need not
define every term to avoid vagueness). Section 13-1401(A)(7) further
clarifies what “consent” means in the sex offense context by
providing numerous specific examples of its absence. See Witwer,
175 Ariz. at 307-08, 856 P.2d at 1185-86. The phrase “without
consent” in § 13-1406(A) gives a person of ordinary intelligence fair
notice of the conduct prohibited.

¶19            Causbie next argues the phrase “incapable of consent by
reason of . . . alcohol,” § 13-1401(A)(7)(b), is unconstitutionally vague
as a whole. He primarily relies on State v. Johnson, 155 Ariz. 23,
24-25, 745 P.2d 81, 82-83 (1987), a sexual assault case applying
“mental disorder” in a prior version of the “without consent”
definition. When Johnson was decided, the definition included
neither the term “mental defect” nor a definition thereof. See id. at
25, 745 P.2d at 83; see also Inzunza, 234 Ariz. 78, ¶ 19 & n.4, 316 P.3d
at 1272 & n.4, citing 1998 Ariz. Sess. Laws, ch. 281, § 2. The state
contended the victim could not consent because a trauma-induced
mental disability rendered her incapable of consent. Johnson, 155
Ariz. at 25-26, 745 P.2d at 83-84. The court held the instruction the
trial court gave, which said “‘[w]ithout consent’ means . . . [t]he
other person could not consent because of a mental disorder,” was
not sufficiently narrow or particular as a matter of statutory
interpretation (not vagueness doctrine). Id. at 25-26, 745 P.2d at
83-84. “[W]hen the state asserts that the victim was incapable of
consenting due to a mental disorder,” our supreme court held, “it
must prove that the mental disorder was an impairment of such a
degree that it precluded the victim from understanding the act of
intercourse and its possible consequences.” Id. at 26, 745 P.2d at 84.
The court also ruled the evidence before it was insufficient as a
matter of law to establish that the victim had such a mental disorder,
even though a prior head injury had affected her memory,


                                   10
                         STATE v. CAUSBIE
                         Opinion of the Court

concentration, and abstract thinking, and had rendered her “easily
influenced.” Id. The possibility the jury convicted Johnson based on
that insufficient evidence, as permitted by the erroneous instruction,
required reversal. Id.

¶20           Causbie contends, without citation to authority, that
there is “[n]o principled reason” to require more specific guidance
about the necessary degree of cognitive impairment to show
incapacity due to mental disorder than the degree needed to show
incapacity due to alcohol. We disagree. See, e.g., Allison C. Nichols,
Note, Out of the Haze: A Clearer Path for Prosecution of Alcohol-
Facilitated Sexual Assault, 71 N.Y.U. Ann. Surv. Am. L. 213, 233-34
(2015). First, we agree with the state that mental diseases and
defects are more long-standing as compared to the immediate
cognitive effects of alcohol. 8 Thus, constitutional concerns that
arguably could arise in a mental disease or defect incapacity case are
not implicated in the context of temporary incapacity due to
alcohol.9

¶21         Second, incapacity resulting from mental disease or
defect is not a matter within the everyday knowledge and
experience of most jurors. For this reason, the state will often rely on


      8The record does not present and we do not address mental
defects caused by long-term use of alcohol or circumstances where
the amount of alcohol consumed in one setting causes permanent
bodily damage.
      9 Significant constitutional issues might arise under an
incapacity-to-consent instruction like that in Johnson, which is
susceptible to an interpretation that individuals with mental disease
or defect can never consent to sex. See State v. Olivio, 589 A.2d 597,
604-05 (N.J. 1991) (narrowly construing mental defect incapacity
because mentally disabled people have fundamental rights
regarding procreation and contraception); see also Anderson v.
Morrow, 371 F.3d 1027, 1040-41 (9th Cir. 2004) (Berzon, J., concurring
in part and dissenting in part) (analyzing intellectually disabled
victim’s capacity to consent under substantive due process
framework).


                                  11
                        STATE v. CAUSBIE
                        Opinion of the Court

expert testimony to explain the nature, extent, and implications of a
victim’s mental disorder or defect. E.g., Inzunza, 234 Ariz. 78, ¶ 20,
316 P.3d at 1272 (psychiatrist and social worker testified regarding
victim’s capacity to consent). In contrast, jurors understand the
temporary effects of alcohol on the mind and body from their
common knowledge and experience. State v. Randles, 235 Ariz. 547,
¶ 17, 334 P.3d 730, 733-34 (App. 2014); see also State v. Rivera,
152 Ariz. 507, 514-15, 733 P.2d 1090, 1097-98 (1987). They are
adequately equipped to assess whether a victim’s cognition was so
impaired by alcohol that he or she was unable to give legal consent
at the relevant time. Unlike the jury in Johnson, which required
additional guidance in order to gauge the “degree or severity” of the
victim’s mental disorder, 155 Ariz. at 25, 745 P.2d at 83, this jury
required no additional guidance to determine whether J.D. lacked
capacity to consent due to impairment caused by alcohol
consumption.

¶22          Having distinguished Johnson, we find the reasoning in
a recent decision of the U.S. Navy-Marine Corps Court of Criminal
Appeals to be more applicable. In United States v. Solis, 75 M.J. 759
(N.-M. Ct. Crim. App. 2016), the defendant challenged as
unconstitutionally vague a sexual assault statute similar to our own.
It provided:

            Any person . . . who . . . commits a sexual
            act upon another person when the other
            person is incapable of consenting to the
            sexual act due to . . . impairment by any
            drug, intoxicant, or other similar substance,
            and that condition is known or reasonably
            should be known by the person . . . is guilty
            of sexual assault.

Id. at 763, quoting 10 U.S.C. § 920(b)(3). The defendant argued
§ 920(b)(3) is unconstitutionally vague on its face because it provides
“no way for a person of common intelligence to determine when
another person is impaired by alcohol such that they are incapable
of consenting to a sexual act.” Solis, 75 M.J. at 763. He emphasized
the statute does not “draw the line” as to the threshold of
impairment beyond which the victim was not capable of consenting.

                                  12
                         STATE v. CAUSBIE
                         Opinion of the Court

Id. The court rejected the defendant’s reading of the statute as
myopic, focusing too much on the word “impairment” and not
enough on the more central issue of incapacity to consent. Id. The
court held the statute provides fair notice to a person of ordinary
intelligence that it proscribes sexual conduct with a person who
lacks the ability to consent. Id.; see also McLamb, 188 Ariz. at 5, 932
P.2d at 270 (fact that line-drawing may be difficult does not mean
statute is unconstitutionally vague).

¶23          The Solis court further held § 920(b)(3) was not so
standardless as to invite arbitrary enforcement. Solis, 75 M.J. at
763-64. It underscored that the statute “does not require a person to
arbitrarily determine how impaired another person must be before
they are too impaired,” but rather to “determine if a sexual partner
is capable of consenting.” Id. at 764. Coupled with the requirement
that the defendant knew or should have known of the victim’s
incapacity to consent, which further narrows the statute’s scope and
guides prosecutors and juries, the statute provides constitutionally
definite enforcement standards, the court ruled. Id.

¶24          Like the statute at issue in Solis, §§ 13-1401(A)(7)(b) and
13-1406(A) provide sufficiently clear notice to a person of ordinary
intelligence of what conduct is prohibited, namely, sexual
intercourse with a person the defendant knows or reasonably should
know is impaired by alcohol beyond the point of legal capacity to
consent. See Solis, 75 M.J. at 763-64; cf. Glover v. State, 760 N.E.2d
1120, 1123-24 (Ind. Ct. App. 2002) (person of ordinary intelligence
would understand that statute outlawing sexual intercourse with
victim who is “unaware” proscribes sex with victim who is
unconscious due to inebriation); State v. Blount, 770 P.2d 852, 855-56
(Kan. Ct. App. 1989) (person of common intelligence can readily
understand what constitutes lack of consent due to fear of violence).
In addition, § 13-1401(A)(7)(b) turns not on a certain threshold level
of alcohol consumption or intoxication,10 but rather on the victim’s

      10The parties agree that the incapacity-to-consent statute need
not furnish a quantitative measure, such as a certain breath alcohol
content or number of drinks consumed, in order to avoid
unconstitutional vagueness.


                                  13
                         STATE v. CAUSBIE
                         Opinion of the Court

legal capacity to consent. See Solis, 75 M.J. at 764. It therefore does
not invite arbitrary enforcement against intoxicated persons
engaging in consensual sex. See id.

¶25            We hold that the phrase “incapable of consent by reason
of . . . alcohol” in § 13-1401(A)(7)(b) is not unconstitutionally vague.
Accordingly, the trial court did not abuse its discretion by
instructing the jury with that phrase. The court also did not abuse
its discretion by declining to define the phrase further via
defendant’s alternative jury instruction. Cf. State v. Requena, 41 P.3d
862, 866 (Kan. Ct. App. 2001) (Kansas statutory term “‘incapable of
giving consent’ is one which people of common intelligence and
understanding can comprehend and is not a term that requires
definition” by way of more specific jury instructions).

¶26          Causbie cites case law from Massachusetts to support
his argument that further instruction was required, pointing to the
instruction given in Commonwealth v. LeBlanc, 921 N.E.2d 933, 938
(Mass. 2010). We do not find Massachusetts law persuasive on this
issue, however, because Massachusetts applies a significantly
different test for incapacity to consent than Arizona does. See, e.g.,
Commonwealth v. Urban, 853 N.E.2d 594, 596-97 (Mass. App. Ct. 2006)
(reaffirming standard that victim is incapable of consent only if
“wholly insensible . . . in a state of utter stupefaction” from alcohol),
citing Commonwealth v. Burke, 105 Mass. 376, 380-81 (1870).

The Supplemental Instruction

¶27          Causbie also argues that the state’s failure to address his
proposed supplemental instruction is an admission of error. Indeed,
the answering brief argues only that the court did not err by refusing
the proposed instruction, and does not address whether the court
erred by refusing the supplemental instruction. Yet we will affirm
the court’s ruling if legally correct for any reason. State v. Perez, 141
Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). And a court need not give
a requested instruction if its substance is adequately covered by the
other instructions. State v. Almeida, 238 Ariz. 77, ¶ 17, 356 P.3d 822,
826 (App. 2015).




                                   14
                         STATE v. CAUSBIE
                         Opinion of the Court

¶28           The effect of Causbie’s proposed supplemental
instruction was to inform the jury that alcohol consumption in and
of itself does not mean a victim cannot consent.11 The trial court did
not disagree with the factual proposition, but ruled the instruction it
gave adequately covered that possibility. We agree. By their terms,
both the statute and the instruction given focused on incapacity to
consent as a result of consuming alcohol, not alcohol consumption
itself. See § 13-1401(A)(7)(b); cf. Solis, 75 M.J. at 764. The court’s
instruction did not state or suggest that alcohol consumption by the
victim is sufficient to prove the absence of consent. Cf. Solis, 75 M.J.
at 764 (statute focuses on capacity to consent, not “subjective sense
of how impaired is too impaired”). Nor did the prosecutor argue in
closing that J.D. lacked capacity to consent merely because she had
consumed alcohol.12 Thus, the trial court did not abuse its discretion

      11 Causbie  suggests, for the first time on appeal, that the
prosecutor’s statement in closing argument “[h]e knew it was
without her consent because she couldn’t drive home” improperly
invited the jury to apply the “impaired to the slightest degree”
standard from our driving under the influence (DUI) statute, A.R.S.
§ 28-1381(A)(1), to the incapacity issue. But the prosecutor never
mentioned the DUI standard, and in context this comment was just
one of a long list of facts she used to argue incapacity to consent.
Causbie has not shown fundamental, prejudicial error. See State v.
Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005).
      12The  prosecutor did argue in closing that rapists often use
alcohol because, among other reasons, “[a]lcohol renders a victim
unable to resist.” But the broader context of the argument made
clear to the jury that the state did not mean J.D. could not consent
merely because she had consumed alcohol. For instance, the state
argued the intercourse at issue “was without consent because of the
amount of alcohol [J.D.] had to drink that night.” (Emphasis added).
And as the prosecutor summarized her own closing argument:
“[J.D.]’s inability to consent, [her] level of intoxication, her being
passed out on the couch, [her] inability to resist, that does not equal
consent.” (Emphasis added). Causbie also argued his position in
closing, saying “It is not the law in this state that when somebody is
drunk, you can’t have sex.”


                                  15
                       STATE v. CAUSBIE
                       Opinion of the Court

by declining the supplemental instruction. See Almeida, 238 Ariz. 77,
¶ 17, 356 P.3d at 826.

                            Disposition

¶29          We affirm Causbie’s conviction and sentence for the
reasons stated.




                                 16
