                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                 v.

                     CRAIG VICTOR COLEMAN,
                            Appellant.

                     No. 2 CA-CR 2015-0419
                     Filed November 22, 2016


         Appeal from the Superior Court in Pima County
                      No. CR20123419001
         The Honorable Howard Fell, Judge Pro Tempore

                            AFFIRMED


                            COUNSEL

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

Steven R. Sonenberg, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
                        STATE v. COLEMAN
                        Opinion of the Court


                             OPINION

Presiding Judge Howard authored the opinion of the Court, in
which Judge Espinosa and Judge Staring concurred.


H O W A R D, Presiding Judge:

¶1           Following a jury trial, Craig Coleman was convicted of
unlawful imprisonment of a minor under fifteen, aggravated assault
of a minor under fifteen, assault, and burglary. On appeal, he
argues the trial court violated his equal protection and substantive
due process rights by requiring him to register pursuant to A.R.S.
§ 13-3821(A)(1) absent a jury finding the unlawful imprisonment
was sexually motivated.        Because we find no constitutional
violation, we affirm.

                Factual and Procedural Background

¶2          We view the facts in the light most favorable to
upholding the jury verdicts. State v. Haverstick, 234 Ariz. 161, ¶ 2,
318 P.3d 877, 880 (App. 2014). In September 2012, C.B. was holding
her three-year-old daughter, H.T., when Coleman entered her
backyard, “grabbed the baby’s arm” and tried to pull her away from
C.B. Coleman punched C.B. in the face, causing her to fall down and
on top of H.T. He punched C.B. again and then ran away.

¶3           Coleman was charged with kidnapping and aggravated
assault as to H.T., aggravated assault causing temporary and
substantial disfigurement as to C.B., and burglary. A jury found
him guilty of unlawful imprisonment of a minor under fifteen as a
lesser-included offense of kidnapping, but found the state did not
prove it was committed with sexual motivation beyond a reasonable
doubt. The jury also found him guilty of aggravated assault of a
minor under fifteen, of assault of C.B. as a lesser-included offense of
the aggravated assault, and of burglary.

¶4          The trial court sentenced Coleman to concurrent prison
terms, the longest of which is 2.5 years. It also ordered him to


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                         STATE v. COLEMAN
                         Opinion of the Court

register pursuant to § 13-3821(A)(1) for a period of ten years.
§ 13-3821(A)(1), (M). We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1) and 13-4033(A).

                               Discussion

¶5           Coleman argues the trial court’s order that he register
pursuant to § 13-3821 violates his substantive due process and equal
protection rights under the United States and Arizona constitutions.
He reasons that subjecting him to § 13-3821’s registration
requirements and labeling him a “sex offender” when sexual
conduct is not an element of unlawful imprisonment and the jury
failed to find the crime was sexually motivated is not rationally
related to the legislature’s purpose in establishing the registry.

¶6            Coleman raised his equal protection argument below,
thus preserving it for review, but forfeited any review of whether his
substantive due process rights have been violated except for
fundamental, prejudicial error.1 See State v. Henderson, 210 Ariz. 561,
¶ 19, 115 P.3d 601, 607 (2005); see also State v. Lopez, 217 Ariz. 433, ¶ 4,
175 P.3d 682, 683 (App. 2008) (“objection on one ground does not
preserve the issue on another ground”). However, under either
standard of review, Coleman must first establish error occurred.
See State v. Katzorke, 167 Ariz. 599, 600, 810 P.2d 597, 598 (App. 1990)
(violation of equal protection reversible error); see also State v. Avila,

      1 The state asks us to ignore Coleman’s substantive due
process argument as not raised below, and contends that addressing
it would turn this court into the “court of first resort for
[constitutional] claims.”     Our supreme court, however, has
established that appellate courts will consider constitutional claims
raised for the first time on appeal, but our review is limited to
determining whether fundamental, prejudicial error occurred.
See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005).
Because Coleman has argued that requiring him to register
constitutes fundamental, prejudicial error, we will review his claim
accordingly. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17,
185 P.3d 135, 140 (App. 2008) (review for fundamental, prejudicial
error waived if not argued).


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                        STATE v. COLEMAN
                        Opinion of the Court

217 Ariz. 97, ¶ 9, 170 P.3d 706, 708 (App. 2007) (under fundamental
error review, defendant must establish error occurred). We review
issues of constitutional law de novo. State v. Ramsey, 211 Ariz. 529,
¶ 5, 124 P.3d 756, 759 (App. 2005).

¶7           The equal protection guarantees of the Arizona and
United States constitutions “are essentially the same” and require
similarly situated people be treated alike. State v. Lowery, 230 Ariz.
536, ¶ 13, 287 P.3d 830, 835 (App. 2012), quoting State v. Bonnewell,
196 Ariz. 592, ¶ 15, 2 P.3d 682, 686 (App. 1999); see also U.S. Const.
amend. XIV, § 1; Ariz. Const. art. II, § 13. These guarantees do not
prohibit all classifications, however, but only those which are
“unreasonable.” Lowery, 230 Ariz. 536, ¶ 13, 287 P.3d at 835.

¶8           Substantive due process ensures that the government’s
actions are fundamentally fair, “regardless of the fairness of the
procedures used to implement them.” Martin v. Reinstein, 195 Ariz.
293, ¶ 66, 987 P.2d 779, 800 (App. 1999), quoting Zinermon v. Burch,
494 U.S. 113, 125 (1990); see also U.S. Const. amend. XIV, § 1;
Ariz. Const. art. II, § 4; Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1,
7-8 (2003) (statutory registration requirements question of
“substantive, not procedural, due process”). It thus “prevents the
government from engaging in arbitrary, wrongful actions.” Martin,
195 Ariz. 293, ¶ 66, 987 P.2d at 800. “It precludes conduct that
‘shocks the conscience’ or interferes with rights ‘implicit in the
concept of ordered liberty.’” Id., quoting United States v. Salerno,
481 U.S. 739, 746 (1987).

¶9           Our review of equal protection and substantive due
process claims are “conceptually” similar, with the level of scrutiny
dependent upon the classification or right at issue. Governale v.
Lieberman, 226 Ariz. 443, ¶ 13, 250 P.3d 220, 225 (App. 2011); see also
State v. Russo, 219 Ariz. 223, ¶ 5, 196 P.3d 826, 828 (App. 2008).
Coleman concedes he is not a member of a suspect class and no
fundamental right 2 is at issue, and therefore “we will uphold the


      2Because Coleman conceded no fundamental right was
involved, he may not be entitled to any further fundamental error
review as to any substantive due process violation. Nevertheless,

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                         STATE v. COLEMAN
                         Opinion of the Court

statute so long as it is ‘rationally related to a legitimate government
purpose.’” State v. Panos, 239 Ariz. 116, ¶ 8, 366 P.3d 1006, 1008-09
(App. 2016), quoting State v. Navarro, 201 Ariz. 292, ¶ 25, 34 P.3d 971,
977 (App. 2001). Rational basis review “is a paradigm of judicial
restraint.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993).
And, in an equal protection review, the statute is presumed valid “if
the classification drawn by the statute is rationally related to a
legitimate state interest.” City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432, 440 (1985). Coleman must show “beyond a reasonable
doubt [the statute is] wholly unrelated to any legitimate legislative
goal.” Martin, 195 Ariz. 293, ¶ 52, 987 P.2d at 796.

¶10            Coleman argues that requiring him to register is not
rationally related to the goal of regulating sex offenders. But only
under a strict scrutiny review would we need, first, to determine
whether the legislature’s specific purpose was exclusively to protect
communities from known sex offenders and, second, whether
requiring those convicted of unlawful imprisonment of a minor
absent a finding of sexual motivation is narrowly tailored to that
purpose. Id. ¶ 51. In a rational basis review, we need only consider
whether the requirement is rationally related to “any legitimate
legislative goal.” Id. ¶ 52 (emphasis added); see also Lowery, 230 Ariz.
536, ¶ 15, 287 P.3d at 835 (in rational basis review, court may
“consider either the legislature’s stated goal or any hypothetical
basis for its action”).

¶11          Section 13-3821(A) prescribes which offenses require
registration, the majority of which are sex-related. In 1998, the
legislature amended § 13-3821(A) and added unlawful imprisonment
and kidnapping of a minor by a non-parent to the list of offenses
requiring registration. 1998 Ariz. Sess. Laws, ch. 291, § 2. It did not
require a finding of sexual motivation. § 13-3821(A). Unlawful
imprisonment requires the state to show the defendant “knowingly”
restrained another person. A.R.S. § 13-1303(A). Thus, by the plain
terms of § 13-3821(A)(1), a defendant convicted of unlawful
imprisonment of a minor when the defendant is not the minor’s

because the state did not argue this concession precluded review,
and we find no error in any event, we do not decide this issue.


                                    5
                        STATE v. COLEMAN
                        Opinion of the Court

parent is required to register without any showing of a sexual
component.

¶12            The legislature’s only statement on the 1998 amendment
was that it was meant to “[b]ring Arizona’s sex offender registration
and community notification laws into compliance with . . . the
federal Jacob Wetterling Act” (JWA). Senate Fact Sheet, S.B. 1333,
43rd Leg., 2nd Reg. Sess. (July 7, 1998). We thus turn to the
Congressional history of the JWA. See People v. Johnson, 870 N.E.2d
415, 425 (Ill. 2007) (“If Congress had a reasonable basis for requiring
child abductors to register, it necessarily follows that legislation
intended to bring New York into compliance with [the JWA] shares
that basis.”), quoting People v. Cintron, 827 N.Y.S.2d 445, 457 (Sup. Ct.
2006) (second alteration in Johnson).

¶13          When Congress was considering the JWA, one
representative stated the law was necessary “because of the high
rate of recidivism in persons who have committed crimes against
children, and it is not just sex crimes against children but all crimes
against children. The recidivism rate is probably higher in this area
of our criminal justice system or in violations of the criminal code.”
139 Cong. Rec. H10319-02 (daily ed. Nov. 20, 1993) (statement of
Rep. Sensenbrenner). He noted that “time is of the essence” when a
child is abducted, and a registry would enable law enforcement “to
track down known child offenders to see if they were involved in an
abduction or another crime against a child.” Id. And a House
Report cites a Department of Justice study estimating that “[t]wo-
thirds of the cases of non-family child abduction reported to police
involve sexual assault.” H.R. Rep. No. 103-392 (1993).

¶14          The purpose of the JWA was thus “to protect [children
and their families] from child abductors and molesters” and provide
law enforcement “a resource for investigating child abduction and
molestation cases.” 140 Cong. Rec. H8968-01 (daily ed. Aug. 21,
1994) (statement of Rep. Ramstad). Consequently, requiring all non-
parents convicted of unlawful imprisonment of a minor to register,
even if the crime was not sexually motivated, is rationally related to
the legislative goal of protecting minors from abduction and
potential sexual harm. See State v. Noble, 171 Ariz. 171, 177, 829 P.2d
1217, 1223 (1992) (§ 13-3821 rationally related to aiding law

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                         STATE v. COLEMAN
                         Opinion of the Court

enforcement’s investigative work); see also Lowery, 230 Ariz. 536, ¶ 17,
287 P.3d at 542 (§ 13-3821 rationally related to legitimate state
interest in protecting communities); Martin, 195 Ariz. 293, ¶ 61, 987
P.2d at 798 (state has “significant interest in protecting its citizens
from” dangerous individuals).

¶15           Coleman argues, however, the statute unfairly requires
some defendants convicted of offenses without a sexual component
or motivation to register, while others are not required to register.
But Congress clearly found kidnapping and unlawful imprisonment
of a child by a non-parent, in particular, had high risks of recidivism
and an increased risk of future sexual harm to children. Thus, the
choice to limit unlawful imprisonment and kidnapping of a minor
by a non-parent as offenses requiring registration is neither arbitrary
nor irrational. See Panos, 239 Ariz. 116, ¶ 9, 366 P.3d at 1009. On the
contrary, it demonstrates the legislature’s intent to limit the
registration requirements to those offenses with high rates of
recidivism and a high risk of sexual harm to children. Because the
classification is rationally related to the state’s legitimate interest, it
does not offend equal protection guarantees. See City of Cleburne,
Tex., 473 U.S. at 439.

¶16          As support for his position that no rational basis exists
for the registration requirement here, Coleman cites three out-of-
state cases 3 in which courts found that requiring defendants
convicted of either unlawful imprisonment or kidnapping of a

      3Coleman    additionally cites Doe v. Moore, 410 F.3d 1337, 1340
n.1 (11th Cir. 2005), which stated “[w]hen a person is convicted of
kidnapping, false imprisonment, or luring or enticing a child into a
dwelling or conveyance, there must be a sexual component shown
in addition to the predicate offense before designating that person as
a sex offender.” That statement, however, was merely dicta in a
footnote and the court cited only Raines v. State, 805 So. 2d 999, 1003
(Fla. Dist. Ct. App. 2001), for that proposition. Because the Eleventh
Circuit relied on a case which we disagree with for reasons
explained below, and engaged in no substantive analysis of either
equal protection or substantive due process concerns as they relate
to this case, we decline to address it.


                                    7
                        STATE v. COLEMAN
                        Opinion of the Court

minor, without any showing of a sexual element or motivation,
violated guarantees of equal protection or substantive due process.
See Raines v. State, 805 So. 2d 999, 1003 (Fla. Dist. Ct. App. 2001)
(defining “sexual offender” to include defendants “convicted of false
imprisonment” and requiring defendant to register where “it is clear
that the predicate crime is totally devoid of a sexual component”
violates equal protection rights because not rationally related to
state’s “interest in protecting the public from sexual offenders”);
see also State v. Small, 833 N.E.2d 774, 782 (Ohio Ct. App. 2005)
(“absent evidence that [defendant] committed the kidnapping of the
minor victim with sexual motivation, denominating defendant a
‘sexually oriented offender’ is not rationally related to a legitimate
state interest” of “alert[ing] citizenry to the presence of sex offenders
within their midst” and thus violates substantive due process);
ACLU of N.M. v. City of Albuquerque, 137 P.3d 1215, ¶ 25 (N.M.
Ct. App. 2006) (city’s stated purpose of statutes requiring
registration of persons convicted of “sex offenses,” “which is the
‘protection of the victims and potential victims of sex offenders’ is
not furthered by the inclusion of crimes that are not sexually
motivated” and defendants’ equal protection and substantive due
process rights violated).

¶17          The most notable distinction between those cases and
this one is that the registration statutes of those states utilize sex-
related language to define either who must register or the offenses
requiring registration. See Fla. Stat. § 943.0435(h)(a)(I) (defining
those convicted of offenses requiring registration as “[s]exual
offender”); Ohio Rev. Code. Ann. 2950.01(A) (defining offense
requiring registration as “[s]exually oriented offense”); N.M. Stat.
Ann. § 29-11A-3(H), (I) (defining those who must register as “sex
offender” and offense requiring registration as “sex offense”).
Although Arizona’s article 3 is denominated “Registration of Sex
Offenders and Offender Monitoring,” none of the statutes in the
article categorically define the offenses or those required to register
in any such terms. See §§ 13-3821 through 13-3829; see also A.R.S.
§ 1-212 (“headings to sections . . . do not constitute part of the law”).

¶18         Coleman’s argument, and reliance on these cases,
therefore asks this court to read a limitation—a finding of sexual


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                         STATE v. COLEMAN
                         Opinion of the Court

motivation—into the statute which is not present on its face,
something we will not do. See Cicoria v. Cole, 222 Ariz. 428, ¶ 15,
215 P.3d 402, 405 (App. 2009). Section 13-3821 is titled generally
“Persons required to register,” and includes three offenses which are
not necessarily sex-related: kidnapping and unlawful imprisonment
of a minor by a non-parent, and “[u]nlawful age misrepresentation.”
§ 13-3821(A)(1), (2), (20). The plain language of the statute therefore
contradicts Coleman’s interpretation and instead demonstrates the
legislature, in fact, intended to require all those convicted of certain
non-sex-related offenses to register.

¶19           Given the high risk that sexual assault occurs during
the commission of unlawful imprisonment of a minor and its high
rates of recidivism, the legislature could “have rationally decided
that, on balance, it is important to warn the public and law
enforcement about those criminals, like [Coleman], who falsely
imprison a minor, regardless of whether the State can prove a sexual
component.” 4 State v. Smith, 780 N.W.2d 90, ¶ 31 (Wis. 2010).
“[E]nsuring [Arizona’s] registration scheme is not under-inclusive”
is rationally related to the state’s legitimate interest in protecting its
communities and aiding law enforcement. Lowery, 230 Ariz. 536,
¶ 17, 287 P.3d at 542; see also Noble, 171 Ariz. at 177, 829 P.2d at 1223;
see also Washburn v. Pima County, 206 Ariz. 571, ¶ 28, 81 P.3d 1030,
1039 (App. 2003) (“A perfect fit is not required; a statute that has a
rational basis will not be overturned ‘merely because it is not made
with mathematical nicety, or because in practice it results in some
inequality.’”), quoting Big D Constr. Corp. v. Court of Appeals,
163 Ariz. 560, 566, 789 P.2d 1061, 1067 (1990).

¶20          Furthermore, assuming arguendo that being required to
register has labeled Coleman a “sex offender,” the legislature could
have concluded that label was appropriate regardless of a proven
sexual motivation.     Based on the Congressional history, the
legislature could have found that “child abductions are often

      4We  note, however, that although the jury did not find sexual
motivation beyond a reasonable doubt, there was testimony that,
preceding the altercation, Coleman had said “I want to f--- your little
girl.”


                                    9
                        STATE v. COLEMAN
                        Opinion of the Court

precursors to sexual offenses.” Smith, 780 N.W.2d 90, ¶¶ 30, 32. Or
“that sexual assault occurs in many cases where there is no direct
evidence of it—in cases where the victim is killed, or remains
missing, or is unable or unwilling to recount his or her ordeal.”
People v. Knox, 903 N.E.2d 1149, 1153 (N.Y. 2009).

¶21           Similarly, it could have found that a defendant who
abducted a child intended to sexually assault that child, but was
prevented by intervening circumstances, such as his arrest or the
child’s escape. Or “that a child cut off from the safety of everyday
surroundings is vulnerable to sexual abuse even if the offender’s
sexual desires are not the motive of the crime.” Id. at 1153-54. Thus,
even if the effect was to label Coleman a sex offender, it was
rational for the legislature to classify him as such. See id. at 1154.

¶22          The majority of courts confronted with this same issue
have concluded, as do we, that the registration requirement at issue
here does not run afoul of substantive due process or equal
protection guarantees. See, e.g., Rainer v. State, 690 S.E.2d 827, 829-30
(Ga. 2010) (registration requirement for defendant’s conviction of
false imprisonment of a minor did not violate substantive due
process); Johnson, 870 N.E.2d at 426 (holding that the inclusion of
“aggravated kidnapping of a minor by a nonparent” in sex offender
registration act not violative of substantive due process “regardless
of whether [the offender’s] conduct was sexually motivated”);
Moffitt v. Commonwealth, 360 S.W.3d 247, 255-57 (Ky. Ct. App. 2012)
(requirement of registration for certain offenses against minors,
regardless of a sexual component, did not offend substantive due
process); Knox, 903 N.E.2d at 1153-54 (neither substantive due
process nor equal protection violated by requiring those convicted of
unlawful imprisonment or kidnapping of minor to register as sex
offenders); Smith, 780 N.W.2d 90, ¶ 36 (requiring defendant to
register as a sex offender following his conviction for false
imprisonment of a minor rationally related to government interest in
protecting public and did not violate defendant’s right to due
process or equal protection); People v. Bosca, 871 N.W.2d 307, 356
(Mich. Ct. App. 2015) (inclusion of false imprisonment on sex
offender registration statute not violation of substantive due
process). We agree with the reasoning of those decisions.


                                   10
                        STATE v. COLEMAN
                        Opinion of the Court

¶23         Accordingly, we conclude that requiring Coleman to
register based on his conviction for unlawful imprisonment of a
minor who is not his child without a finding that it was committed
with sexual motivation does not violate either equal protection
guarantees or substantive due process. It does not shock our
conscience or interfere with rights that are implicit in the concept of
ordered liberty. Martin, 195 Ariz. 293, ¶ 66, 987 P.2d at 800. The trial
court thus did not err in ordering Coleman to register pursuant to
§ 13-3821(A)(1).

                             Disposition

¶24          For the foregoing reasons, we affirm Coleman’s
convictions, sentences, and order to register.




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