from the Superior Court in Pima County The Honorable Richard
D. Nichols, Judge No. CR20131185-001
of the Court of Appeals, Division Two 238 Ariz. 218, 358 P.3d
639 (App. 2015)
Brnovich, Arizona Attorney General, John R. Lopez IV,
Solicitor General, Joseph T. Maziarz, Section Chief Counsel,
Criminal Appeals Section, Diane L. Hunt (argued), Assistant
Attorney General, Tucson, Attorneys for State of Arizona
R. Sonenberg, Pima County Public Defender, David J. Euchner,
Erin K. Sutherland (argued), Assistant Public Defenders,
Tucson, Attorneys for Jerry C. Holle
Steinfeld (argued), Arizona Attorneys for Criminal Justice,
Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for
PELANDER VICE CHIEF JUSTICE
Under A.R.S. § 13-1407(E), "[i]t is a defense to a
prosecution" for sexual abuse or child molestation
"that the defendant was not motivated by a sexual
interest." We hold that lack of such motivation is an
affirmative defense that a defendant must prove, and thus the
state need not prove as an element of those crimes that a
defendant's conduct was motivated by a sexual interest.
We view the evidence and all reasonable inferences in the
light most favorable to sustaining the jury's verdicts.
State v. Cropper, 205 Ariz. 181, 182 ¶ 2, 68
P.3d 407, 408 (2003). Jerry Charles Holle's eleven
year-old step-granddaughter, M., told a friend and then the
police that Holle had inappropriately touched and kissed her.
The State charged Holle with sexual abuse of a minor under
age fifteen, A.R.S. § 13-1404; sexual conduct with a
minor, A.R.S. § 13-1405; and child molestation, A.R.S.
Before trial, Holle asked the court to instruct the jury that
the State must prove beyond a reasonable doubt sexual
motivation as an element of the sexual abuse and child
molestation charges. He argued that imposing the burden on
him to prove lack of sexual motivation would violate his due
process rights. Relying on State v. Simpson, 217
Ariz. 326, 173 P.3d 1027 (App. 2007), the trial court
disagreed, ruling that under § 13-1407(E) a defendant
must prove a lack of sexual motivation by a preponderance of
the evidence. The court instructed the jurors to that effect
at the close of trial and also instructed them on the
elements of the charged offenses, including the statutory
definition of "sexual contact, " A.R.S. §
At trial, Holle argued that the allegations against him were
"blown out of proportion" and that he had always
engaged in sexually normal behavior. Holle's two
daughters testified that he never sexually assaulted them or
any other children. Other relatives likewise testified about
Holle's sexual normalcy. Early in its deliberations, the
jury submitted the following question: "For these
accusations to be a crime, must there be sexual intent
proven?" The trial court told the jurors to follow the
instructions they previously had been given.
The jury found Holle guilty of child molestation and sexual
abuse of a minor under age fifteen but was unable to reach a
verdict on the charge of sexual conduct with a minor (the
trial court, at the State's request, later dismissed that
charge with prejudice). The court sentenced Holle to a
ten-year prison term for molestation, followed by a five-year
term of probation for sexual abuse.
The court of appeals concluded that the trial court erred in
instructing the jury that Holle bore the burden of proving
"his conduct was not motivated by a sexual
interest." State v. Holle, 238 Ariz. 218, 226
¶ 26, 358 P.3d 639, 647 (App. 2015). Disagreeing with
Simpson, 217 Ariz. at 326 ¶ 19, 173 P.3d at
1030, the court held that "§ 13-1407(E) is a
defense but not an affirmative defense." Holle,
238 Ariz. at 226 ¶¶ 25-26, 358 P.3d at 647. Rather,
the court stated, if a defendant charged with sexual abuse or
child molestation "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. at ¶ 26. Because the record
reflected "overwhelming evidence that Holle's
conduct was motivated by a sexual interest, " however,
the court of appeals found that the trial court's
instructional error was harmless and therefore affirmed.
Id. at 227-28 ¶¶ 31-32, 358 P.3d at
Holle petitioned for review regarding the court of
appeals' finding of harmless error, and the State filed a
cross-petition for review regarding the court's
application of § 13-1407(E). We granted both petitions
to resolve a split of authority between Simpson and
the court of appeals' opinion in this case. We have
jurisdiction under article 6, section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.
We review questions of statutory interpretation and
constitutional issues de novo. State v. Dann, 220
Ariz. 351, 369 ¶ 96, 207 P.3d 604, 622 (2009). We also
review de novo "whether jury instructions correctly
state the law." State v. Bocharski, 218 Ariz.
476, 487 ¶ 47, 189 P.3d 403, 414 (2009).
In Arizona, "[a]ll common law offenses and affirmative
defenses [have been] abolished." A.R.S. §
13-103(A). The legislature is empowered to define what
constitutes a crime in this state and to prescribe the
punishment for criminal offenses. State v. Bly, 127
Ariz. 370, 371, 621 P.2d 279, 280 (1980); see State v.
Casey, 205 Ariz. 359, 363 ¶ 15, 71 P.3d 351, 355
(2003) (superseded by statute, A.R.S. § 13-205(A)) (the
legislature, not the judiciary, has "constitutional
authority to define crimes and defenses"); State v.
Viramontes, 204 Ariz. 360, 362 ¶ 12, 64 P.3d 188,
190 (2003) ("It is not our place to pass on the wisdom
of" legislative decisions concerning criminal
procedure). This power also extends, at least within
constitutional bounds, to defenses. Cf. State v.
Mott, 187 Ariz. 536, 540-41, 931 P.2d 1046, 1050-51
(1997) (the legislature decides whether "to adopt the
defense of diminished capacity" and the "Court does
not have the authority" to do so).
Criminal statutes must "give fair warning of the nature
of the conduct proscribed." A.R.S. § 13-101(2). And
"[p]enal statutes shall be construed according to the
fair import of their terms, with a view to effect their
object and to promote justice." A.R.S. § 1-211(C).
When interpreting a statute, we start with the text because
it is the most reliable indicator of a statute's meaning.
State v. Christian, 205 Ariz. 64, 66 ¶ 6, 66
P.3d 1241, 1243 (2003). When the text is clear and
unambiguous, we need not resort to other methods of statutory
interpretation to discern the legislature's intent
because "its intent is readily discernable from the face
of the statute." Id.; see also Sell v. Gama,
231 Ariz. 323, 327 ¶ 16, 295 P.3d 421, 425 (2013) (if a
statute's language is clear, "it controls unless an
absurdity or constitutional violation results").
Holle was convicted of child molestation and sexual abuse.
The child molestation statute, A.R.S. § 13-1410(A),
provides: "A person commits molestation of a child by
intentionally or knowingly engaging in or causing a person to
engage in sexual contact, except sexual contact with the
female breast, with a child who is under fifteen years of
age." The sexual abuse statute, A.R.S. §
13-1404(A), provides: "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 or with any person who is under
fifteen years of age if the sexual contact involves only the
Both statutes require "sexual contact" that the
defendant "intentionally or knowingly engag[ed]
in." A.R.S. §§ 13-1404(A), -1410(A).
"Sexual contact" is defined as "any direct or
indirect touching, fondling or manipulating of any part of
the genitals, anus or female breast by any part of the body
or by any object or causing a person to engage in such
contact." A.R.S. § 13-1401(A)(3).
"Intentionally" means "with respect to a
result or to conduct described by a statute defining an
offense, that a person's objective is to cause that
result or to engage in that conduct." A.R.S. §
13-105(10)(a). And "knowingly" means "with
respect to conduct or to a circumstance described by a
statute defining an offense, that a person is aware or
believes that the person's conduct is of that nature or
that the circumstance exists. It does not require any
knowledge of the unlawfulness of the act or omission."
A.R.S. § 13-105(10)(b).
Section 13-1407(E) sets forth a defense to child molestation
and sexual abuse:
It is a defense to a prosecution pursuant to § 13-1404
or 13-1410 that the defendant was not motivated by a sexual
interest. It is a defense to a prosecution pursuant to §
13-1404 involving a victim under fifteen years of age ...