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State v. Trujillo

Court of Appeals of Arizona, Second Division

September 17, 2018

The State of Arizona, Appellee,
v.
Oscar Pena Trujillo, Appellant.

          Appeal from the Superior Court in Pima County No. CR20152255001 The Honorable Howard Fell, Judge Pro Tempore

          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.

          OPINION

          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 (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 (2000), and Southern Union Co. v. United States, 567 U.S. 343 (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 "[registration 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 (App. 2004); see also State v. Benenati, 203 Ariz. 235, ¶ 7 (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 ...

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