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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                      JACK E. ANDERSON, Appellant.

                             No. 1 CA-CR 15-0102
                              FILED 2-9-2016


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201300773
                The Honorable Jacqueline Hatch, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                          STATE v. ANDERSON
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Margaret H. Downie joined.


G O U L D, Judge:

¶1           Appellant Jack E. Anderson appeals his conviction and
sentence for one count of child molestation. Anderson argues the trial
court erred in denying his motion to dismiss the indictment and in
denying his motions for mistrial. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2           Anderson is the minor victim’s step-grandfather. In 2010,
while Anderson and the victim were in a Jacuzzi, Anderson pulled the
victim onto his lap and began touching and rubbing her vagina over her
swimsuit. Anderson also allegedly “pushed [the victim] down onto him”
causing the victim’s vagina to touch his erect penis for “a couple
minutes.” The State subsequently charged Anderson with two counts of
child molestation. Count 1 was based on Anderson touching the victim’s
vagina, and Count 2 was based on the allegation Anderson touched her
vagina with his penis.

¶3            The case proceeded to trial, and the jury found Anderson
guilty of Count 1, but acquitted him of Count 2. During the sentencing
phase, the jury acquitted Anderson of causing emotional harm to the
victim, the sole aggravating circumstance alleged by the State. The court
sentenced Anderson to a 14-year prison term, and Anderson timely
appealed.




1       We view the evidence in the light most favorable to sustaining the
conviction and resulting sentence. See State v. Guerra, 161 Ariz. 289, 293
(1989).



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                           Decision of the Court

                              DISCUSSION

      A.     Denial of Motion to Dismiss

¶4            Prior to trial, Anderson moved to dismiss the indictment.2
Anderson argued that pursuant to Arizona Revised Statutes (“A.R.S.”)
section 13-1410,3 sexual interest is an element of child molestation. As a
result, Anderson contended the court should dismiss the indictment
because it did not allege he acted with a sexual interest in committing the
charged offenses.

¶5            The trial court denied Anderson’s motion. Relying on our
holding in State v. Simpson, 217 Ariz. 326 (App. 2007), the court
determined that: (1) sexual interest is not an element of child molestation,
and (2) lack of sexual interest is an affirmative defense under § 13-1407(E)
that a defendant must prove by a preponderance of evidence. Id., 217
Ariz. at 328-29, ¶¶ 18-19.

¶6            On appeal, Anderson argues that the trial court erred in
denying his motion to dismiss because § 13-1410 is unconstitutionally
vague and overbroad. Specifically, he contends, “Arizona now authorizes
criminal punishment for every intentional touching of a child’s genitals . .
. unless the accused can thereafter carry the burden to disprove his sexual
intent.” Similarly, he asserts the holding in Simpson unconstitutionally
shifts the burden of proving lack of sexual interest to defendants.

             1.     Vagueness and Overbreadth

¶7           The State argues that Anderson waived his vagueness and
overbreadth arguments because, as the trial court found, he did not timely
raise them. The State claims that Anderson first raised these arguments


2      Alternatively, Anderson requested the indictment be amended to
reflect sexual interest as an element of child molestation. Anderson
subsequently withdrew his request to amend the indictment and sought
dismissal arguing that A.R.S. § 13-1410 is unconstitutional because it
“lacks a mens rea[.]”

3      Unless otherwise specified, we cite to the current version of the
applicable statutes.




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                            Decision of the Court

on October 31, 2014, or less than twenty days before trial.4 See Ariz. R.
Crim. P. 16.1(c) (“Any motion, defense, objection, or request . . . raised
[later than the 20 days before trial] shall be precluded, unless the basis
therefor was not then known, and by the exercise of reasonable diligence
could not then have been known, and the party raises it promptly upon
learning of it.”).

¶8            We agree that Anderson was dilatory in raising these
arguments, but we disagree that the issues are waived. Rather, because
the issues of vagueness and overbreadth regarding A.R.S. § 13-1410
involve an issue of public policy and broad, general statewide concern, we
conclude such constitutional questions “can be raised for the first time on
appeal.” State v. Junkin, 123 Ariz. 288, 290 (App. 1979).

¶9            A person commits child molestation “by intentionally or
knowingly engaging in or causing a person to engage in sexual contact . . .
.” A.R.S. § 13-1410(A). “’Sexual contact’ means any direct or indirect
touching, fondling or manipulating of any part of the genitals, . . . by any
part of the body . . . .” A.R.S. § 13-1401(3). “It is a defense to a prosecution
pursuant to . . . § 13-1410 that the defendant was not motivated by a
sexual interest.” A.R.S. § 13-1407(E).

¶10           We conclude Anderson lacks standing to challenge § 13-
1410’s constitutionality.5 “Generally only those who are injured by an
unconstitutional statute may object to its constitutionality.” State v. Delk,
153 Ariz. 70, 71 (App. 1986) (quoting State v. Burns, 121 Ariz. 471, 473
(App. 1979)). As we explain infra, any constitutional infirmities in the
statute did not harm Anderson. Whether the statute may be vague as to

4      Anderson first “made reference” to vagueness and overbreadth at
the oral argument on October 21, 2014, addressing his motion to dismiss.
He did not make substantive arguments on vagueness and overbreadth
until he filed his supplemental authority/argument on October 31, 2014,
which was 13 days before trial.

5      We also agree with the State that Anderson does not properly
address vagueness and overbreadth in his opening brief. Anderson
merely cites to arguments he raised in superior court and incorporates
them into his brief by reference. This is improper appellate practice. See
State v. Dominguez, 236 Ariz. 226, 230, ¶ 8 (App. 2014) (noting arguments
and supporting authority must be provided in the body of the opening,
and incorporation by reference is forbidden).



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                          STATE v. ANDERSON
                           Decision of the Court

some forms of touching, Anderson’s conduct underlying Count 1,
manually rubbing the minor victim’s vagina, is clearly proscribed by § 13-
1410. See State v. Baldenegro, 188 Ariz. 10, 14 (App. 1996) (“A defendant
whose conduct is clearly proscribed by the core of the statute has no
standing to attack the statute.”).

¶11            In terms of overbreadth, Anderson lacks standing because
he does not claim his conduct - touching the victim’s vagina - is
potentially innocent conduct that should not be prosecuted. A person
who lacks standing may, in some cases, challenge a statute criminalizing
conduct for being overbroad; however, such challenges only apply to
statutes that regulate conduct protected by the First Amendment. State v.
Watson, 198 Ariz. 48, 54, ¶¶ 19-20 (App. 2000). Anderson has provided no
authority, and we are aware of none, that touching a child’s vagina
implicates an interest protected by the First Amendment.              Id.
Consequently, Anderson also lacks standing to dispute the
constitutionality of § 13-1410 on overbreadth grounds.

             2.     Burden Shifting

¶12           The State has the burden of proving every element of a
criminal offense beyond a reasonable doubt. State v. Seyrafi, 201 Ariz. 147,
150, ¶ 7 (App. 2001). “A statute that shifts the burden of persuasion on an
element of an offense to a criminal defendant violates due process.” Id. at
¶ 8.

¶13            After Anderson filed his opening brief in this appeal,
another panel of this court disagreed with Simpson’s holding that sexual
interest is an affirmative defense. State v. Holle, 238 Ariz. 218, ___, ¶ 11,
(App. 2015). In Holle, the court held that sexual interest is an element of
child molestation, and although § 13-1407 provides a defense to a charge
of child molestation, the defense is not an affirmative one. Id. at ¶ 26.
Thus, the court concluded:

      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. Id.

¶14         Clearly, there is a conflict between the holdings in Simpson
and Holle. However, we need not resolve this conflict, because even if we



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                           STATE v. ANDERSON
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assume the trial court erred in shifting the burden of proof to Anderson,
given the facts of this case, any error is harmless.

¶15            Omitting an element from a criminal jury instruction is
reviewed for harmless error. Holle, 238 Ariz. at __, ¶¶ 30-31; Neder v.
United States, 527 U.S. 1, 10–11, 15 (1999); see State v. Dann, 205 Ariz. 557, ¶
18 (2003) (erroneous jury instructions subject to harmless-error review).
Under this standard of review, the omission is harmless if no reasonable
jury could find the State failed to prove the omitted element beyond a
reasonable doubt. Holle, 238 Ariz. at __, ¶ 30; State v. Lewis, 236 Ariz. 336,
345-46, ¶ 38 (App. 2014).

¶16            Here, overwhelming evidence shows that Anderson was
motivated by sexual interest when he touched the victim’s vagina in the
Jacuzzi. The victim testified that, on the day of the Jacuzzi incident, she
was wearing a bikini, and Anderson said she “filled it out well [,]” causing
the victim to feel “[u]ncomfortable.” The record also shows the Jacuzzi
incident was not an accidental touching; the victim testified that after
Anderson touched and rubbed her vagina, she “got up and swam away
and [Anderson] pulled [her] by [her] ankles to try to get [her] to sit back
on his lap[.]”

¶17           The evidence established that Anderson touched the victim’s
vagina on three prior occasions, and on another occasion, demanded that
she lick his private parts. See, infra at ¶ 23.     The victim eventually
disclosed the molestation incidents to her grandmother, the wife of
Anderson, after watching a movie about a girl who committed suicide
because her father sexually abused her. The day after the victim’s
disclosure, Grandmother confronted Anderson, and was “stunned by his
lack of emotion, [and] matter of factness” regarding the allegations.

¶18            Grandmother testified that on another occasion, she asked
Anderson if he told the victim “not to say anything” about the alleged
molestations. In response, Anderson stated the victim was the one who
initiated the contact when “she took his hand and ran it down in front of
her,” and that he told her if “she was going to do that, she couldn’t tell.”
Finally, after Grandmother told Anderson the victim wanted an apology
from him, Anderson wrote a letter to the victim stating: “Dear B., I’m
sorry. Please forgive me. I love you, Papa[.]”

¶19           Finally, when Anderson testified at trial, he did not claim he
accidentally touched the victim, or that he lacked sexual interest when he
touched her. Rather, Anderson completely denied touching or rubbing



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                           STATE v. ANDERSON
                            Decision of the Court

the victim’s vagina; indeed, it was his position the victim lied about the
incident in the Jacuzzi.

¶20            The foregoing evidence shows that Anderson knew he was
engaging in sexually motivated conduct when he touched the victim in
the Jacuzzi. Based on the overwhelming evidence, we conclude any error
in the jury instructions was harmless. See Harrington v. California, 395 U.S.
250, 256 (1969) (“constitutional error in the trial of a criminal offense may
be held harmless if there is ‘overwhelming’ untainted evidence to support
the conviction.”); State v. Bible, 175 Ariz. 549, 588 (1993) (”Error, be it
constitutional or otherwise, is harmless if we can say beyond a reasonable
doubt, that the error did not contribute to or affect the verdict.”); see also
Holle, 238 Ariz. at ___, ¶¶ 26-31 (affirming conviction for child molestation
based on harmless error review despite legal error in instructing jury that
defendant bore the burden of proving his conduct was not motivated by
sexual interest).

       B.     Denial of Motions for Mistrial

¶21           Anderson argues the trial court erred in denying his motions
for mistrial. Specifically, Anderson claims the court should have granted
a mistrial when the victim testified about certain undisclosed details
concerning four prior extrinsic acts.

¶22           Pursuant to Arizona Rule of Evidence (“Rule”) 404(c), the
State sought a pre-trial ruling allowing it to present evidence of six prior
extrinsic sexual incidents involving Anderson and the victim. Rule 404(c)
“permits the admission of evidence of uncharged acts to establish ‘that the
defendant had a character trait giving rise to an aberrant sexual
propensity to commit the offense charged.’” State v. Garcia, 200 Ariz. 471,
475, ¶ 26 (App. 2001) (quoting Rule 404(c)).

¶23            After considering recordings and transcripts of the victim’s
police interviews and a signed statement prepared by Anderson, the court
granted the State’s motion in part, and admitted evidence regarding four
prior incidents: (1) when the victim was approximately 5 years old,
Anderson rubbed his hand over her underwear in her vaginal area; (2)
when the victim was in 2nd or 3rd grade, Anderson demanded that she
lick his private parts: (3) when the victim was approximately 11 years old,
while she was lying on his bed, Anderson grabbed her by the ankles, held
her by her wrists, and touched her vagina; and (4) on one occasion,
Anderson played a “game” with the victim where he tied her up and
touched her vagina.



                                       7
                           STATE v. ANDERSON
                            Decision of the Court

¶24            In admitting these extrinsic acts, the court directed the State
to limit its evidence to the specific details presented at the hearing.
However, during the victim’s testimony, she added additional details
about three of the prior extrinsic acts. Regarding the second incident, the
victim testified that Anderson wanted her to lick chocolate sauce and
whipped cream off his penis. The victim also testified that during the
third incident, Anderson pressed his erect penis against her vaginal area,
and “it was like dry sex.” As for the fourth incident, the victim testified
she was wearing a T-shirt, underwear and pants when her grandmother
left the house, but that when Anderson tied her up, she was wearing “less
than that,” i.e., indicating that Anderson had removed her pants.

¶25          When the victim testified to these additional details,
Anderson moved for a mistrial, or alternatively to strike the testimony on
the grounds of lack of disclosure and violation of the court’s order. Each
time, the court ordered the testimony stricken, admonished the jury to
disregard the stricken testimony, and denied Anderson’s requests for a
mistrial.

¶26           A declaration of mistrial is “the most dramatic remedy for
trial error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.” State v.
Dann, 205 Ariz. 557, 570, ¶ 43 (2003) (citation omitted). We review a trial
court’s denial of a motion for mistrial for abuse of discretion and reverse
only where there is a “‘reasonable probability’ that the verdict would have
been different had the [error not occurred].” State v. Hoskins, 199 Ariz.
127, 142–43, ¶ 57 (2000) (citation omitted).

¶27            A mistrial is not required every time a witness unexpectedly
volunteers an inadmissible statement. State v. Adamson, 136 Ariz. 250, 262
(1983). Instead, the remedy rests within the sound discretion of the trial
court, which must evaluate the situation and decide an appropriate course
of action in light of the specific facts and circumstances presented. Id. We
give deference to the trial court’s ruling because it is in the best position to
evaluate “the atmosphere of the trial, the manner in which the
objectionable statements were made, and the possible effect it had on the
jury and the trial.” Bible, 175 Ariz. at 598 (citation omitted).

¶28          We find no abuse of discretion. The evidence, as noted
above, overwhelmingly supports the guilty verdict. Thus, the victim’s
testimony about the additional details of the extrinsic acts did not
reasonably affect the verdict.




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                           Decision of the Court

¶29           Additionally, each time Anderson challenged the victim’s
testimony, the court ordered the testimony stricken and instructed the
jury not to consider the statements. Moreover, the jurors demonstrated
the stricken testimony had no inflammatory effect on their deliberations
by acquitting Anderson of Count 2, and also finding the State did not
prove the aggravating circumstance of emotional harm to the victim. See
United States v. Miller, 116 F.3d 641, 683 (2nd Cir. 1997) (“An acquittal by
the jury on some counts may be evidence that the trial was not unfair.”).

                             CONCLUSION

¶30           For the foregoing reasons, Anderson’s conviction and
sentence are affirmed.




                                  :ama




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