Court of Appeals of Arizona, First Division, Department C
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Coconino County Cause No. S0300CR201100785 The Honorable Jacqueline Hatch, Judge
Thomas C. Horne, Arizona Attorney General, by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Michael T. O'Toole, Assistant Attorney General Attorneys for Appellee
H. Allen Gerhardt, Coconino County Public Defender, Attorney for Appellant
PETER B. SWANN, Presiding Judge
¶1 Robb Gary Evans appeals from his conviction and probation term for sexual abuse. Evans contends that his conviction must be vacated because the superior court failed sua sponte to instruct the jury on the burden of proof applicable to his defense under A.R.S. § 13-1407(E). We affirm the conviction because Evans has not shown that the omitted instruction caused him prejudice.
FACTS AND PROCEDURAL HISTORY
¶2 In November 2011, a grand jury indicted Evans for sexual abuse, a class 5 felony under A.R.S. § 13-1404. Evans pled not guilty and the matter proceeded to a jury trial.
¶3 At trial, the state presented evidence of the following facts. On the evening of July 30, 2011, G.M., an adult woman, was standing in a bar when she felt someone's hand come underneath her skirt, grab the front of her vagina, and swipe back to her anus, touching both her underwear and her skin. G.M. exclaimed, turned around quickly, and saw Evans (whom she vaguely remembered having met the night before) standing behind her.
¶4 G.M. promptly reported the incident to the bar's bouncers and pointed Evans out to them. The bouncers escorted Evans out of the bar and called the police. Police responded and Evans agreed to an interview with a detective. Evans, who smelled of alcohol and had bloodshot eyes and impaired speech, told the detective that he had "just rubbed [G.M.] kind of on the butt" with his knee, "no hands [were] involved, " and "everything that happened . . . was totally innocent." For his defense at trial, Evans similarly testified that he had approached G.M. and touched his knee to her left hamstring and buttock as a form of greeting.
¶5 Pursuant to Evans's request and without objection by the state, the final jury instructions included the following: "It is a defense to sexual abuse if the defendant was not motivated by a sexual interest." Evans did not request and the court did not give any instruction concerning the burden of proof for that defense. But the court did instruct the jury that it was the state's burden to prove Evans's guilt beyond a reasonable doubt, and both the state and Evans emphasized that burden in their closing arguments. In the state's closing argument, the prosecutor stated: "[T]he legal standard puts the burden of proof always on the State. It never changes. The defendant need not prove anything in this trial. So it's our burden. The State's burden to prove beyond a reasonable doubt." In Evans's closing argument, defense counsel explained the reasonable doubt standard, reiterated that the burden was on the state, and further suggested that the state's burden applied to the "sexual interest" defense:
It is a Defense to sexual abuse if the defendant was not motivated by a sexual interest. There's nobody here arguing that if he went up, bumped her with his knee that he was motivated by sexual interest. And I don't think there's anybody that argues that if somebody purposefully sticks their hand underneath a skirt and gropes genitals, that the opposite isn't true. That they aren't motivated by sexual interest.
So if you find reason to believe that there's doubt about his motivation because there's reason to doubt whether he used his hand as opposed to bump[ed] her, then this instruction applies.
So if there's a reason to doubt about that, this instruction says it's only if you find that he was not motivated by a sexual interest. That's a Defense. That's what this whole case has been about, that he wasn't motivated because that's not ...