from the Superior Court in Pima County No. CR20141960001 The
Honorable Scott Rash, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Section
Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney
General, Tucson Counsel for Appellee
Kuykendall & Associates, Tucson By Gregory J. Kuykendall
and Amy P. Knight Counsel for Appellant
Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.
Earl Causbie appeals from his conviction for sexual assault,
for which he was sentenced to 5.25 years' imprisonment.
He argues the trial court erred by refusing his proposed jury
instructions on the meaning of "without consent" in
the context of alcohol consumption by the victim.
Alternatively, he contends the statutory definition of
"without consent" is unconstitutionally vague. For
the reasons that follow, we affirm.
and Procedural Background
We view the facts and all reasonable inferences therefrom in
the light most favorable to upholding the jury's verdict.
See State v. Inzunza, 234 Ariz. 78, ¶
2, 316 P.3d 1266, 1268-69 (App. 2014). In October 2011,
the victim, J.D., went to a party at the home of G.J., whom
she was just "in the beginning stages of kind of
dating." When J.D. arrived, she did not know anyone at
the party other than G.J., but she met some of the other
guests as the evening went on, including Causbie and A.G.
Many of the guests were already intoxicated by the time J.D.
arrived. Most or all of the guests drank whiskey shots during
the evening, and others played drinking games. G.J. drank so
much that he vomited and then retired to his upstairs
bedroom, where he remained for the rest of the night even as
the party continued. Over the course of the evening, J.D.
drank about six shots of cinnamon- flavored whiskey (about
one ounce each), as well as one mixed drink containing a
"three-second pour" of whiskey.
Causbie flirted with J.D. throughout the party. He flicked
and played with her hair, which she did not like. He also
tried to hug her from behind-"she laughed but she pulled
away . . . like she didn't like it, " according to
A.G. Causbie's advances made J.D. feel uncomfortable, as
she expressed to A.G about four different times. At one
point, Causbie asked J.D. to have a shot of whiskey with him,
which she did. Then J.D. decided to send G.J. a photo of her
breasts to "show him what he was missing." She
lifted her shirt and bra and told Causbie to photograph her
bare breasts and send the photo by text message to G.J., and
he did. Causbie then called J.D. a
"MILF" and tried to kiss her, but she said
"No, I don't kiss married men. I'm here, like,
J.D. then felt that it was time to go. She later said she had
been "tipsy, " but not "falling down drunk,
" at that point. She got her things and began to leave,
but A.G. felt J.D. might have had a lot to drink and wanted
to make sure she was okay to drive. With A.G. in the car,
J.D. drove a short distance in a circle, which led her to
conclude she was not sober enough to drive home safely. A.G.
suggested J.D. spend the night on the couch at G.J.'s
house. Causbie and another guest also came out to the car and
encouraged J.D. to stay there that night. J.D. was
"torn" -on the one hand she did not feel safe
driving, but on the other hand, she did not feel safe staying
over because Causbie's advances had given her the
"heebie jeebies." J.D. expressed her concern to
A.G., but A.G. reassured her that she would be safe if she
stayed, so she did.
J.D. came back inside, at which point she vomited into a
trash can. A.G. got J.D. some water and a blanket, and she
lay down on a couch on her stomach "like she was ready
to go to sleep." A.G. saw J.D. close her eyes; she fell
asleep "[a]lmost instantly." A.G. went upstairs,
and when she came down about half an hour later to get a
drink, J.D. was still asleep-she was "just out, "
A.G. explained. A.G. went back upstairs.
Sometime later, A.G. heard a male voice coming from
downstairs, so she went down again. As A.G. came down the
stairs, she saw J.D. on the couch where she had fallen
asleep, lying on her back with her pants and underwear pulled
down, her legs about shoulder-width apart, and her knees
bent. Causbie was kneeling beside the couch and repeatedly
"putting his hand up [J.D.'s] vagina very
roughly." Although A.G. could not tell whether J.D. was
awake or asleep when she saw her, J.D. did not appear to be
participating in any way, nor was she making any sounds. In
fact, J.D. had awakened around the time A.G. came downstairs
or shortly before to the feeling of "a thrusting fist
pain" or "pounding in [her] vagina area." She
unsuccessfully attempted to push Causbie away.
A.G. walked past them into the kitchen before Causbie
realized she was there. A.G. felt "nervous" because
she had "just caught two people doing stuff, private
stuff, and [she] didn't need to see that." She
called out, "[J.D.], are you okay?" J.D. said no.
After hearing this, A.G. "felt dirty" and went into
the bathroom to wash her hands. When she came back out,
Causbie, who had been kneeling beside J.D.'s midsection,
was now kneeling beside her head.
A.G. asked Causbie to give them a moment alone, and he walked
away without saying a word. A.G. asked J.D. if she was okay.
J.D. was "confused, and was saying like, where am I?
Like she didn't know what was going on." A.G. had to
explain to J.D. where she was multiple times. J.D. said she
thought Causbie had pulled down her pants, and asked A.G. to
help her pull them back up, which she did. J.D. vomited into
the trash can again. Then J.D. thanked A.G. and told her she
was "a good girl, " and went back to sleep.
The next morning, J.D. awoke to Causbie touching her
shoulder. He told her he left her some water on the table,
and then he left. J.D. left later, at about 7:30 that
morning, and while driving home, pulled over and vomited and
urinated on herself. She found blood in her underwear later
that day, although she was not menstruating. She also had
bruises on her inner thighs, and pelvic pain that lasted for
about a week. Feeling "dirty and ashamed, " she
took "probably like [twenty]" baths the day after
the incident because she "just wanted everything gone
from that guy." J.D. subsequently asked A.G. what had
happened the night before because she could not remember
everything. A.G. told J.D. what she had seen. J.D. then
reported the incident to law enforcement.
Causbie was charged with sexual assault in violation of
A.R.S. § 13-1406, and the case proceeded to a jury trial
at which he advanced a consent theory of defense. On the
second day of trial, out of the jury's presence, court
and counsel discussed jury instructions. The court suggested
the following instruction ...