In Re Pima County Juvenile Appeal No. 74802-2

790 P.2d 723, 164 Ariz. 25, 58 Ariz. Adv. Rep. 3, 1990 Ariz. LEXIS 61
CourtArizona Supreme Court
DecidedApril 4, 1990
DocketCV-89-0159-PR
StatusPublished
Cited by57 cases

This text of 790 P.2d 723 (In Re Pima County Juvenile Appeal No. 74802-2) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Pima County Juvenile Appeal No. 74802-2, 790 P.2d 723, 164 Ariz. 25, 58 Ariz. Adv. Rep. 3, 1990 Ariz. LEXIS 61 (Ark. 1990).

Opinions

OPINION

MOELLER, Justice.

JURISDICTION

The petitioner is a sixteen-year-old male juvenile who was on probation as a result [27]*27of shoplifting. The juvenile court revoked his probation based on a finding that he had sexually abused a fourteen-year-old girl. The factual basis for the finding was that the boy had fondled the girl’s breasts with her consent. On appeal, the juvenile challenged both the applicability and the constitutionality of the sexual abuse statute, A.R.S. § 13-1404. The court of appeals affirmed in a published opinion, In the Matter of Pima County Juvenile Action No. 74802-2, 162 Ariz. 97, 781 P.2d 74 (App.1989). We granted the juvenile’s petition for review and have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3) and A.R.S. § 12-120.24.

QUESTIONS PRESENTED

The petition presents the following questions for our resolution:

1. Whether A.R.S. § 13-1404 is unconstitutionally vague as applied to petitioner.
2. Whether A.R.S. § 13-1404 is unconstitutionally overbroad.
3. Whether the legislature intended A.R.S. § 13-1404 to apply to minor offenders.

Because the petition presents no challenge to the order revoking probation assuming the validity of the underlying finding of sexual abuse, we do not consider whether probation revocation was a proper disposition for the violation. The petition does not present and we do not consider any question relating to the interpretation, applicability or constitutionality of any statute requiring the reporting of sexual activities of juveniles; nor do we consider any constitutional issues except those specified above.

FACTS AND PROCEDURAL HISTORY

Petitioner was charged in Pima County Juvenile Court with violating his juvenile probation by committing sexual abuse in violation of A.R.S. § 13-1404. The incident occurred during the early morning hours of August 21, 1988, when petitioner entered the girl’s bedroom and fondled her breasts. Both juveniles were staying at a foster home in which they had been placed by the Department of Economic Security. At the time of the incident, petitioner was sixteen and the girl was fourteen.

The judge found that the touching of the girl’s breasts was consensual, but that the consent of the girl was not a defense because she was fourteen years of age. The judge denied petitioner’s motion to dismiss which was urged on the grounds that A.R.S. § 13-1404 is unconstitutional. Based on the finding of a violation, the juvenile’s probation was revoked.

On appeal, the court of appeals held that A.R.S. § 13-1404 is not unconstitutionally vague as applied to juveniles engaging in consensual “petting.” Juvenile Action No. 74802-2, 162 Ariz. at 98, 781 P.2d at 75. Rejecting an argument of overbreadth, the court of appeals found that sexual contact with a minor, as described and prohibited by § 13-1404, is conduct that the state can constitutionally proscribe. Id. The court of appeals also held that the specific language of § 13-1404 indicated a legislative intent that the section apply to consenting minors engaging in sexual contact. Id. Consequently, the court of appeals found no error in the juvenile court’s finding of sexual abuse under A.R.S. § 13-1404. Id. We granted review to consider the issues advanced by the juvenile and now affirm.

DISCUSSION

1. Vagueness

The statute at issue, A.R.S. § 13-1404, provides:

A. A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fifteen or more years of age without consent of that person or with any person who is under fifteen years of age if the sexual contact involves only the female breast.1
[28]*28B. Sexual abuse is a class 5 felony unless the victim is under fifteen years of age in which case sexual abuse is a class 3 felony punishable pursuant to § 13-604.01.

“Sexual contact” referred to in subsection A of the statute is in turn defined in A.R.S. § 13-1401 subd. 2 which provides:

“sexual contact” means any direct or indirect fondling or manipulating of any part of the genitals, anus, or female breast.

Petitioner concedes that the statute is clear as applied to an adult engaging in sexual contact with a minor. However, he contends that the same statute is unconstitutionally vague as applied to consensual petting between two minors. Citing newspaper articles stating that a substantial number of teenagers are sexually active, he argues that applying § 13-1404 to a sixteen-year-old boy gives the state unfettered discretion to arrest and convict juveniles. He argues that the statute casts a wide net to ensnare the innocent as well as the guilty and, therefore, the statute is unconstitutionally vague. We disagree and think petitioner misapplies the vagueness analysis.

The legislature has wide discretion in delineating innocent from culpable conduct. State ex rel. Hamilton v. Superior Court of Maricopa County, 128 Ariz. 184, 185, 624 P.2d 862, 863 (1981); State v. Scofield, 7 Ariz.App. 307, 310, 438 P.2d 776, 779 (1968). Petitioner asserts that teenage “petting” is, by some objective standard, innocent conduct, and, therefore, a statute criminalizing such conduct is necessarily vague. This circular reasoning is legally unsound for purposes of analyzing a vagueness argument.

The earmark of an unconstitutionally vagjue statute is that it defines the proscribed conduct in terms so indefinite that people of common intelligence must necessarily guess at its meaning. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954); State v. Varela, 120 Ariz. 596, 599, 587 P.2d 1173, 1176 (1978). Vague statutes lack ascertainable standards of guilt; therefore, ordinary people cannot conform their conduct to their legal obligations. Papachristou v. City of Jacksonville, 405 U.S. 156, 165, 92 S.Ct. 839, 845, 31 L.Ed.2d 110, 117-18 (1972); Winters v. People of State of New York,

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Bluebook (online)
790 P.2d 723, 164 Ariz. 25, 58 Ariz. Adv. Rep. 3, 1990 Ariz. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pima-county-juvenile-appeal-no-74802-2-ariz-1990.