State v. Coleman

241 Ariz. 190

385 P.3d 420

752 Ariz. Adv. Rep. 8

The STATE of Arizona, Appellee,

v.Craig Victor COLEMAN, Appellant.

No. 2 CA–CR 2015–0419

Court of Appeals of Arizona, Division 2.

Filed November 22, 2016

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

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

OPINION

HOWARD, 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 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 , 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, 110 S.Ct. 975, 108 L.Ed.2d 100 (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, 123 S.Ct. 1160, 155 L.Ed.2d 98 (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, 107 S.Ct. 2095, 95 L.Ed.2d 697 (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 right² is at issue, and therefore "we will uphold the 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, 113 S.Ct. 2096, 124 L.Ed.2d 211 (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, 105 S.Ct. 3249, 87 L.Ed.2d 313 (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 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 , 225 Ill.2d 573, 312 Ill.Dec. 350, 870 N.E.2d 415, 425 (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 , 13 Misc.3d 833, 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 ...