                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                 ROBERT ANGEL GOMEZ, Appellant.

                         No. 1 CA-CR 17-0774
                           FILED 2-26-2019


          Appeal from the Superior Court in Maricopa County
                       No. CR2015-144306-001
         The Honorable James R. Rummage, Judge Pro Tempore

                              AFFIRMED


                              COUNSEL

Arizona Attorney General's Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant



                              OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.
                              STATE v. GOMEZ
                             Opinion of the Court

J O H N S E N, Judge:

¶1            Robert Angel Gomez was convicted of two counts of
aggravated driving while under the influence with a passenger under 15
years of age. He now argues Arizona Revised Statutes ("A.R.S.") section 28-
1383(A)(3) (2019) required the State to prove he knew his passenger was
younger than 15 and that the superior court erred by failing to so instruct
the jury.1 We hold the defendant's knowledge of the passenger's age is not
an element of the offense and affirm the convictions.

              FACTS AND PROCEDURAL BACKGROUND

¶2           Gomez crashed his car while driving a 14-year-old girl home
from a party one night. He did not know the girl well and did not know
how old she was. At the scene, police found a bottle of pills in Gomez's car
and he admitted smoking marijuana earlier in the day.

¶3            As relevant here, Gomez was charged with two counts of
aggravated driving while under the influence ("DUI") with a passenger
under 15 years of age, each a Class 6 felony. A.R.S. § 28-1383(A)(3). Before
trial, Gomez asked the superior court to instruct the jury that the State must
prove he knew his passenger was younger than 15. The court declined to
give the instruction, and the jury convicted him of both charges, along with
four other felony offenses. The superior court sentenced him on the DUI
offenses to two concurrent one-year terms of imprisonment.

¶4             Gomez timely appealed, challenging only his convictions
under § 28-1383(A)(3). We have jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2019), 13-4031
(2019) and -4033(A)(1) (2019).

                                DISCUSSION

¶5             Gomez argues § 28-1383 required the State to prove he knew
his passenger was younger than 15 at the time he committed the DUI
offenses. This is a legal issue that we review de novo. See State v. Falcone,
228 Ariz. 168, 170, ¶ 9 (App. 2011). "Our task in interpreting the meaning
of a statute is to fulfill the intent of the legislature that wrote it." State v.
Williams, 175 Ariz. 98, 100 (1993). We first examine the statute's words. Id.
If the meaning of the text is unclear, we then consider other factors such as
the statute's context, history, subject matter, effects and consequences, spirit

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


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                              STATE v. GOMEZ
                             Opinion of the Court

and purpose. Mail Boxes v. Indus. Comm'n, 181 Ariz. 119, 122 (1995).
Toward that end, we also examine statutes that are in pari materia, meaning
those of the same subject or general purpose. See Stambaugh v. Killian, 242
Ariz. 508, 509, ¶ 7 (2017).

¶6            In relevant part, § 28-1383 states:

       A. A person is guilty of aggravated driving . . . while under
       the influence of intoxicating liquor or drugs if the person does
       any of the following:

                                 *      *      *

       3. While a person under fifteen years of age is in the vehicle,
       commits [driving under the influence under A.R.S. §§ 28-1381
       (2019) or -1382 (2019).]

¶7              The statute specifies no mens rea for the crime. When a statute
defines an offense but "does not expressly prescribe a culpable mental state
that is sufficient for commission of the offense, no culpable mental state is
required . . . , and the offense is one of strict liability unless the proscribed
conduct necessarily involves a culpable mental state." A.R.S. § 13-202(B)
(2019); see also State v. Parker, 136 Ariz. 474, 475 (App. 1983) (§ 13-202 applies
to Title 28 offenses). Under § 13-202(B), we will construe a statute to create
a strict-liability offense "only when there appears to be a clear legislative
intent not to require any particular mental state for the commission of the
crime." State v. Slayton, 214 Ariz. 511, 514, ¶ 12 (App. 2007).

¶8            Applying § 13-202(B), because § 28-1383(A)(3) does not
specify a culpable mental state, the statute creates a strict-liability offense
"unless the proscribed conduct necessarily involves a culpable mental
state." Gomez argues we must imply a mens rea in § 28-1383(A)(3) based on
the legislature's intent, as evidenced by the statutory scheme and history.

¶9             We begin by observing that the statute's two predicate
offenses do not require proof of a culpable mental state. See A.R.S. §§ 28-
1381 (driving under the influence); -1382 (driving under extreme influence);
State v. Zaragoza, 221 Ariz. 49, 54, ¶ 20 (2009). Section 28-1383(A) provides
that one who commits either of those two DUI offenses under one of five
specific circumstances will be guilty of "aggravated driving or actual
physical control while under the influence." See A.R.S. § 28-1383(A)(1)
("while the person's driver license . . . is suspended, canceled, revoked or
refused" as a result of a prior DUI offense); -(A)(2) (with multiple prior DUI
violations within 84 months); -(A)(3) (with a passenger under 15 years of


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                             STATE v. GOMEZ
                            Opinion of the Court

age); -(A)(4) (while required to use an interlock device); -(A)(5) (while
driving the wrong way on a highway).

¶10           Section 28-1383 does not specify a culpable mental state for
any of the five means of committing the crime of aggravated driving under
the influence. In State v. Williams, 144 Ariz. 487 (1985), however, our
supreme court held that a conviction under § 28-1383(A)(1) requires proof
the defendant knew or should have known his or her license was
suspended, canceled, revoked or refused for a prior DUI offense. 144 Ariz.
at 489. At issue in that case was a predecessor of § 28-1383(A)(1), which,
like the current version of the statute, omitted any mens rea for the offense.
144 Ariz. at 489. Nevertheless, the court held the offense required proof of
a culpable mental state and reversed the defendant's conviction. Id. The
court reasoned that the Arizona Department of Transportation will not
suspend, cancel or revoke a driver's license without giving notice to the
driver. Id. Because it follows that a driver necessarily will know when his
or her license is suspended, canceled or revoked, the court concluded that
aggravated DUI under what is now § 28-1383(A)(1) "necessarily involves a
culpable mental state" within the meaning of § 13-202(B). 144 Ariz. at 489.
Acknowledging the potential for administrative error by the Department of
Transportation, the court also observed that "the danger of unknown or
mistaken suspensions is too great to allow a felony conviction to be based
upon suspensions without knowledge." Id.

¶11           Applying that reasoning here, aggravated DUI under § 28-
1383(A)(3) does not "necessarily involve" a culpable mental state about the
age of the passenger – indeed, before trial Gomez argued that he did not
know how old the girl was, and there was no evidence to suggest he
necessarily `knew she was only 14. Gomez argues children under 15 are
most likely to be driven around by their parents, who of course will know
how old they are. That may be usually so, but as this case shows, not
everyone who transports a child "necessarily" knows whether the child is
younger than 15. See A.R.S. § 13-202(B).

¶12            Gomez argues we should imply a mens rea requirement in §
28-1383(A)(3) because the provision was enacted after our supreme court
issued its decision in Williams in 1985. The legislature enacted the
predecessor to § 28-1383(A)(3) in 1996, and the following year, moved it to
its current location in the code. See 1996 Ariz. Sess. Laws, ch. 76, § 29 (2d
Reg. Sess.); 1997 Ariz. Sess. Laws, ch. 1, §§ 108, 112 (1st Reg. Sess.). We
cannot infer that when the legislature enacted the subsection at issue
without specifying a mens rea requirement, it knew or expected from
Williams that courts would require the prosecution to prove a culpable


                                      4
                              STATE v. GOMEZ
                             Opinion of the Court

mental state. The opposite conclusion is just as likely: The legislature might
have concluded that because the youthful-passenger provision came with
none of the notice guarantees the court identified in Williams, consistent
with § 13-202(B), courts would refrain from implying a mental-state
requirement when the statute omitted one. This is particularly so, given
that lawmakers knew of the mandate of § 13-202, which was enacted in
1977, when they first adopted § 28-1383(A)(3). See State v. Garza-Rodriguez,
164 Ariz. 107, 111 (1990) (courts presume legislature is aware of existing
laws when it enacts new ones); State v. Gamez, 227 Ariz. 445, 449, ¶ 27 (App.
2011) (same).

¶13            Gomez cites Slayton, where we reviewed a conviction for
unauthorized hunting, for the proposition that strict liability offenses are
"disfavored." 214 Ariz. at 516, ¶ 20. Our conclusion that § 28-1383(A)(3)
does not require proof the defendant knew the child's age, however, is
consistent with cases interpreting other statutes that create crimes with
child victims. See, e.g., Williams, 175 Ariz. at 101, 103 (A.R.S. § 13-705 (2019),
which establishes penalty for a "dangerous crime against children" when
victim is of a certain age, does not require proof defendant knew victim's
age because defendant "assumes the risk" the child falls within the statute);
Gamez, 227 Ariz. at 450, ¶¶ 29-30 (sexual conduct with minor under A.R.S.
§ 13-1405(A) (2019) does not require proof defendant knew age of victim:
"When the legislature intends that the mens rea apply to the status of the
victim, it says so explicitly."); State v. Denning, 155 Ariz. 459, 461 (App. 1987)
(same outcome under A.R.S. § 13-1406(B) (2019), specifying penalty for
sexual assault against a victim under 15 years of age); see also Spitz v. Mun.
Court of Phoenix, 127 Ariz. 405, 407 (1980) (guilt without mens rea "is allowed
in certain cases, frequently involving the protection of children"); State v.
Cutshaw, 7 Ariz. App. 210, 221 (1968) ("When a person does an act which
reasonable persons should recognize will harm the health or morals of a
youth, there is sufficient criminal intent to warrant conviction though the
actor for good reason does not realize that the child is below the particular
age selected by law as the threshold for criminal sanction."), superseded in
part by Ariz. R. Crim. P. 15.1.

¶14            By contrast to § 28-1383(A)(3) and the other statutes at issue
in ¶ 13, the legislature has been clear elsewhere when it means to require
the State to prove the defendant knew the victim was a minor. See, e.g.,
A.R.S. § 13-3212(B)(2) (2019) ("A person who is at least eighteen years of age
commits child sex trafficking by knowingly: . . . Engaging in prostitution
with a minor who the person knows or should have known is fifteen,
sixteen or seventeen years of age."); see also A.R.S. § 13-1204(A)(8)(a) (2019)



                                        5
                             STATE v. GOMEZ
                            Opinion of the Court

(aggravated assault of victim the defendant "know[s] or ha[s] reason to
know" is a peace officer).

¶15            In sum, the plain language of § 28-1383(A)(3) does not state a
mens rea element, and we "assum[e] that the legislature has said what it
means." State v. Ross, 214 Ariz. 280, 283, ¶ 22 (App. 2007) (quotation
omitted). Further, applying § 13-202(B), the crime does not "necessarily"
involve a culpable mental state. Accordingly, we conclude the State did not
need to prove Gomez knew his victim was under 15, and the superior court
did not err in denying Gomez's requested jury instruction.

                               CONCLUSION

¶16          For the above reasons, we affirm Gomez's convictions and
sentences.




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




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