State v. Trujillo

430 P.3d 379

The STATE of Arizona, Appellee,

v.Oscar Pena TRUJILLO, Appellant.

No. 2 CA-CR 2017-0241

Court of Appeals of Arizona, Division 2.

Filed September 17, 2018

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Amy Pignatella Cain, Assistant Attorney General, Tucson, Counsel for Appellee

Joel Feinman, Pima County Public Defender, By David J. Euchner and Michael J. Miller, Assistant Public Defenders, Tucson, Counsel for Appellant

Presiding Judge Vásquez authored the opinion of the Court, in which Judge Espinosa and Judge Eppich concurred.

VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Oscar Trujillo was convicted of sexual abuse. The trial court suspended the imposition of sentence and placed him on three years' probation. On appeal, Trujillo argues the court erred by ordering him to register as a sex offender pursuant to A.R.S. § 13-3821(A)(3) because there was no jury determination of the victim’s age. He also contends the court erred in precluding impeachment evidence about a state witness. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to affirming Trujillo’s conviction. See State v. Granados , 235 Ariz. 321, ¶ 2, 332 P.3d 68, 70 (App. 2014). In April 2015, fifteen-year-old M.A.C. left his home in Honduras to seek asylum in the United States. When he walked across the United States-Mexico border into McAllen, Texas, United States Border Patrol agents took him to an immigration office in Texas, where he stayed for three days before being transferred to a refugee facility in Tucson called Southwest Key. A social worker told M.A.C. he would stay there until his father "had all the necessary paperwork in order" and then M.A.C. could go live with him.

¶3 One morning, M.A.C. was lying on his bed when Trujillo, a youth-care worker at Southwest Key, entered the room. According to Trujillo’s supervisor, workers at Southwest Key are not allowed to enter the children’s bedrooms "for any reason unless it’s [an] emergency," and then "they are to request a witness as they're going into the room so they're not alone." When M.A.C. asked if it was time to get up, Trujillo said, "No.... I'm going to tickle you," and proceeded to touch M.A.C.’s chest and stomach over his clothing. Trujillo left, and M.A.C. stayed in bed awaiting instructions to get up. A few minutes later, Trujillo returned and "tickl[ed]" M.A.C.’s penis over his clothing. Trujillo left, and M.A.C. remained in bed. Shortly thereafter, Trujillo returned a third time and again touched M.A.C.’s penis over his clothing. Trujillo tried to "lift" M.A.C.’s underwear, but M.A.C. told him to stop.

¶4 Trujillo then responded that "he thought [M.A.C.] wanted him to do that." Trujillo told M.A.C. not to tell anyone because "[Trujillo] would get into trouble" and be "suspended from his job." Although M.A.C. agreed, he later that day asked to speak with a counselor and reported the incident.

¶5 A grand jury indicted Trujillo for one count of sexual abuse. While testifying at trial, Trujillo denied touching M.A.C. in any way and instead explained that he went "in and out" of M.A.C.’s room that morning to "give him hair gel and toothpaste." Trujillo was convicted as charged and placed on probation as described above. At sentencing, the trial court ordered him to register as a sex offender pursuant to § 13-3821(A)(3). Trujillo objected, arguing the statute did not apply because there was no jury finding of M.A.C.’s age. The court disagreed that a jury finding was necessary but stated it would modify its order if convinced the ruling was erroneous.

¶6 The next day, Trujillo filed a "Motion for Modification of Sentence," requesting that the trial court "remove the registration requirement imposed." He maintained, "The Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant’s maximum potential sentence." Citing Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Southern Union Co. v. United States , 567 U.S. 343, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012), he argued that a jury must make the necessary factual determinations for "any penalties inflicted for the commission of an offense," and he asserted that "[r]egistration is a penalty." "[B]ecause the age of the victim was not implicit in the offense and there was no jury finding of the victim’s age being under eighteen," Trujillo reasoned that § 13-3821(A)(3) did not apply.

¶7 At the end of the hearing on Trujillo’s motion, the trial court stated it had directed the probation officer not to require Trujillo to register as a sex offender until the matter was fully resolved. The court ultimately issued an under-advisement ruling denying Trujillo’s motion and ordering him to register as a sex offender in accordance with its original order at sentencing. This appeal followed.¹ We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Sex-Offender Registration

¶8 Relying on Apprendi and Southern Union Co. , as he did below, Trujillo argues "[t]he trial court erred in ordering sex offender registration when there had not been a jury determination of M.A.C.’s age." Because this argument presents a question of law involving § 13-3821, our review is de novo. See State v. Kuntz , 209 Ariz. 276, ¶ 5, 100 P.3d 26, 28 (App. 2004) ; see also State v. Benenati , 203 Ariz. 235, ¶ 7, 52 P.3d 804, 806–07 (App. 2002).

¶9 Pursuant to § 13-3821(A) :

A person who has been convicted of ... a violation or attempted violation of any of the following offenses ... within ten days after the conviction or adjudication or within ten days after entering and remaining in any county of this state, shall register with the sheriff of that county:

....

3. Sexual abuse pursuant to [A.R.S.] § 13-1404 if the victim is under eighteen years of age.

And "[a] person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person who is fifteen or more years of age without consent of that person." § 13-1404(A).

¶10 In Apprendi , after reexamining its cases and the history "upon which they rely," the Supreme Court held that, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. In Southern Union Co. , the Court extended Apprendi to criminal fines imposed on an organizational defendant, explaining that "juries must determine facts that set a fine’s maximum amount." 567 U.S. at 346, 356, 132 S.Ct. 2344. The Court pointed out, "Criminal fines, like ... other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses." Id. at 349, 132 S.Ct. 2344. Indeed, this is particularly true for "organizational defendants who cannot be imprisoned." Id. In the present case, the issue is whether the jury requirement set forth in Apprendi applies to sex-offender registration under § 13-3821(A)(3).

¶11 To answer this question, the trial court focused on "whether sex registration is a penalty." It compared State v. Noble , 171 Ariz. 171, 829 P.2d 1217 (1992), upon which the state relied, with Fushek v. State , 218 Ariz. 285, 183 P.3d 536 (2008), upon which Trujillo relied. In rejecting Trujillo’s argument, the court found Noble controlling because the context of that case was "more closely analogous" and it therefore concluded that sex-offender registration was not punishment. For the reasons discussed below, we conclude neither Noble nor Fushek directly address what is, at bottom, an Apprendi issue: Whether a trial court may find the victim’s age for purposes of registration under § 13-3821(A)(3), or must that determination be made by a jury. However, both decisions are instructive, and, because Trujillo’s argument on appeal focuses on these cases, we turn to them.

¶12 In Noble , the issue was whether requiring the defendants to register as sex offenders pursuant to § 13-3821, enacted after they committed their offenses, violated the Ex Post Facto Clause of the state or federal constitutions. 171 Ariz. at 171-72, 829 P.2d at 1217–18. Our supreme court first noted that retroactive application of the statute "violates the ex post facto clause only if it is a ‘law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed.’ " Id. at 174, 829 P.2d at 1220 (quoting Calder v. Bull , 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) ). The court then addressed "whether registration under § 13-3821 constitutes punishment." Id. at 175, 829 P.2d at 1221. After finding "[t]he legislative history behind § 13-3821 does not indicate whether the statute was intended to be punitive or regulatory," the court applied the Mendoza-Martinez² factors, which include, among other things, " ‘whether [the sanction] has historically been regarded as a punishment’ " and " ‘whether its operation will promote the traditional aims of punishment—retribution and deterrence.’ " Id. (quoting Kennedy v. Mendoza-Martinez , 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) ).

¶13 In balancing the Mendoza-Martinez factors, the supreme court determined § 13-3821"has both punitive and regulatory effects." Id. at 178, 83 S.Ct. 554. However, the court concluded that "[t]he most significant factor in this case is [the] determination that ... the overriding purpose of § 13-3821 is facilitating the location of child sex offenders by law enforcement personnel, a purpose unrelated to punishing [the defendants] for past offenses." Id. The court additionally noted that the "potentially punitive aspects of the statute have been mitigated" because "the information provided by sex offenders ... is kept confidential." Id. Although recognizing that the "decision is close," ...