State of Arizona v. Bayron Perez Agueda ( 2022 )


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  •                                 IN THE
    SUPREME COURT OF THE STATE OF ARIZONA
    STATE OF ARIZONA,
    Appellee,
    v.
    BAYRON PEREZ AGUEDA,
    Appellant.
    No. CR-21-0097-PR
    Filed August 4, 2022
    Appeal from the Superior Court in Maricopa County
    The Honorable George H. Foster, Judge
    No. CR2018-112053-001
    Opinion of the Court of Appeals, Division One
    
    250 Ariz. 504
     (App. 2021)
    VACATED AND REMANDED
    COUNSEL:
    Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor
    General/Section Chief of Criminal Appeals, Joshua C. Smith (argued),
    Assistant Attorney General, Criminal Appeals Section, Phoenix, Attorneys
    for State of Arizona
    James J. Haas, Maricopa County Public Defender, Mikel Steinfeld (argued),
    Deputy Public Defender, Phoenix, Attorneys for Bayron Perez Agueda
    STATE V. BAYRON PEREZ AGUEDA
    Opinion of the Court
    JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
    JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
    BOLICK, LOPEZ, KING, and PELANDER (RETIRED) * joined.
    JUSTICE BEENE, Opinion of the Court:
    ¶1              Bayron Perez Agueda was convicted of two counts of sexual
    conduct with a minor under age fifteen and other charges. Here, we
    consider whether contributing to the delinquency of a minor, A.R.S.
    § 13-3613, is a lesser-included offense of sexual conduct with a minor, A.R.S.
    § 13-1405. Because the former contains elements not found in the latter, we
    hold that it is not.
    BACKGROUND
    ¶2            In 2014, Agueda met the victim, Maya. 1 At the time, Agueda
    was twenty-seven years old, and Maya was thirteen or fourteen years old.
    When Maya was fourteen, Agueda and Maya engaged in at least one act of
    sexual intercourse. In July 2015, Maya gave birth. Agueda was listed as the
    father on the birth certificate, and DNA testing confirmed his paternity.
    When Maya was fifteen years old, she moved into an apartment with
    Agueda. They lived together for one year until Maya moved out in July
    2017.
    ¶3            After Maya moved out, her mother argued with Agueda over
    custody of the baby. Maya’s mother contacted the police, and a sex-crimes
    investigation was initiated. A detective interviewed Agueda, and during
    the interview Agueda admitted that he had sex with Maya. He claimed
    *      Justice William G. Montgomery recused himself from this matter.
    Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
    Justice John Pelander (Ret.) was designated to sit in this matter.
    1    We refer to the victim, who was a minor when the crimes were
    committed, by a pseudonym to protect her identity.
    2
    STATE V. BAYRON PEREZ AGUEDA
    Opinion of the Court
    Maya became pregnant at fourteen years old because of a single act of
    sexual intercourse. Agueda also maintained that he did not have sex with
    Maya again until she was fifteen years old.
    ¶4          The State charged Agueda with two counts of sexual conduct
    with a minor under the age of fifteen, and two counts of sexual conduct
    with a minor age fifteen or older. 2 § 13-1405(A)–(B). As relevant here,
    Count 5 charged Agueda with committing sexual conduct with a minor
    against Maya when she was fourteen years old.
    ¶5            At trial, Maya testified that when she was fourteen, she and
    Agueda began going out, holding hands, and kissing. She also testified that
    they started having sex when she was fourteen and had sex more than once
    before discovering she was pregnant.
    ¶6             Agueda also testified. He claimed that Maya became
    pregnant after the only time they had sex when she was fourteen. Agueda
    testified that Maya moved in with him after their baby’s birth, and they
    continued their sexual relationship while living together.
    ¶7          Agueda requested a jury instruction on contributing to the
    delinquency of a minor as a lesser-included offense of sexual conduct with
    a minor under age fifteen. The trial court denied the request.
    ¶8          The jury found Agueda guilty on all counts relating to Maya.
    He was subsequently sentenced to a lengthy prison term.
    ¶9            Agueda appealed. The court of appeals held that contributing
    to the delinquency of a minor was a lesser-included offense of sexual
    conduct with a minor under age fifteen. State v. Agueda, 
    250 Ariz. 504
    , 506
    ¶ 1 (App. 2021). Accordingly, the court vacated Agueda’s conviction on
    Count 5. 
    Id.
     at 510 ¶ 24.
    2      The State charged Agueda with other crimes relating to Maya’s sister
    that are not relevant to this appeal.
    3
    STATE V. BAYRON PEREZ AGUEDA
    Opinion of the Court
    ¶10             We granted review to determine whether contributing to the
    delinquency of a minor is a lesser-included offense of sexual conduct with
    a minor, an issue of statewide importance. We have jurisdiction under
    article 6, section 5(3) of the Arizona Constitution.
    DISCUSSION
    ¶11            “An instruction on an offense other than that charged is
    proper if the offense is included within the charged offense and the
    evidence supports giving the instruction.” State v. Lua, 
    237 Ariz. 301
    , 303
    ¶ 5 (2015); see also Ariz. R. Crim. P. 21.4(a)(1) (requiring court to submit
    verdict forms for “all offenses necessarily included in the offense charged”).
    Whether one offense is included within another offense is an issue of
    statutory construction, which we review de novo. State v. Geeslin, 
    223 Ariz. 553
    , 555 ¶ 9 (2010).
    ¶12            Under Arizona law, “[a] lesser-included offense is one
    ‘composed solely of some but not all of the elements of the greater crime so
    that it is impossible to have committed the crime charged without having
    committed the lesser one.’” Lua, 237 Ariz. at 303 ¶ 7 (quoting State v. Celaya,
    
    135 Ariz. 248
    , 251 (1983)); see also State v. Garcia, 
    235 Ariz. 627
    , 629–30 ¶ 6
    (App. 2014) (“[T]he greater offense must require each element of the lesser
    offense plus one or more additional elements not required by the lesser
    offense.”), overruled on other grounds by State v. Carter, 
    249 Ariz. 312
     (2020).
    This principle was recently discussed in Carter, where this Court reiterated
    that “[a]n offense is ‘lesser included’ when the ‘greater offense cannot be
    committed without necessarily committing the lesser offense,’” and we
    confirmed that courts should use Blockburger’s same-elements test when
    conducting this analysis. See 
    id.
     at 315–16 ¶¶ 9–10 (quoting State v. Wall,
    
    212 Ariz. 1
    , 3 ¶ 14 (2006)) (“A necessarily included offense for jury
    instruction purposes must be a lesser-included offense under Blockburger’s
    same-elements test.”); see Blockburger v. United States, 
    284 U.S. 299
    , 304
    (1932). And the same-elements test asks “whether each provision requires
    proof of a fact which the other does not.” 
    Id.
     at 315 ¶ 9 (quoting Blockburger,
    284 U.S. at 304).
    4
    STATE V. BAYRON PEREZ AGUEDA
    Opinion of the Court
    ¶13            The court of appeals correctly identified Blockburger’s
    same-elements test as the appropriate standard in determining whether an
    offense is lesser included but failed to apply it. Agueda, 250 Ariz. at 508–09
    ¶¶ 15–19. Instead of employing the same-elements test, the court reasoned
    that, because child molestation is a lesser-included offense of sexual
    conduct with a minor, see State v. Ortega, 
    220 Ariz. 320
    , 328 ¶ 25 (App. 2008),
    and contributing to a minor’s delinquency is a lesser-included offense of
    molestation, see State v. Sutton, 
    104 Ariz. 317
    , 318–19 (1969), “[i]t logically
    follows that contributing to the delinquency of a minor is a lesser-included
    offense of sexual conduct with a minor under 15.” Agueda, 250 Ariz. at 508
    ¶ 16. Although the court of appeals’ syllogism appears correct based on
    Sutton, which the court of appeals is bound to follow, see McKay v. Indus.
    Comm’n, 
    103 Ariz. 191
    , 192–93 (1968), a closer examination of Sutton reveals
    that its conclusion does not comport with Arizona law. Because Sutton was
    indispensable to the court’s decision below, we begin our analysis with that
    case.
    ¶14            In Sutton, the defendant was convicted of child molestation,
    A.R.S. § 13-653 (1965). 3 
    104 Ariz. at 318
    . At trial, Sutton asked the court to
    instruct the jury that contributing to the delinquency of a minor is a lesser-
    included offense of child molestation. 
    Id.
     The trial court’s refusal to give
    the instruction was the sole issue raised on appeal. 
    Id.
    ¶15           After quoting the statutory definitions for “contributing to the
    delinquency of a minor” and “delinquency,” the Sutton court devoted a
    single sentence to analyze the statutes and concluded “contributing to the
    delinquency of a minor is a lesser included offense of child molesting, since
    a person who molests a child necessarily performs an act which ‘tends to
    debase or injure the morals, health or welfare of a child.’” 
    104 Ariz. at
    318–
    19 (quoting A.R.S. § 13-821). 4 A more comprehensive review of these
    statutes shows that Sutton’s analysis is incorrect.
    3      After Sutton was decided, the legislature renumbered the statute as
    A.R.S. § 13-1410. See 1977 Ariz. Sess. Laws ch. 142, § 66 (1st Reg. Sess.).
    4     The legislature later renumbered the statute as A.R.S. § 13-3612. See
    1977 Ariz. Sess. Laws ch. 142, § 99 (1st Reg. Sess.).
    5
    STATE V. BAYRON PEREZ AGUEDA
    Opinion of the Court
    ¶16             A person is guilty of contributing to the delinquency of a
    minor when a person “by any act, causes, encourages or contributes to
    the . . . delinquency of a child, as defined by § 13-3612.” § 13-3613(A). And
    § 13-3612(1) defines “delinquency” as “any act that tends to debase or injure
    the morals, health or welfare of a child.”
    ¶17           Reading the statutes together and in context makes clear that
    Sutton misconstrued the elements for contributing to the delinquency of a
    minor by failing to recognize that “delinquency of a minor” in § 13-3613
    refers to an act or anticipated act committed by the minor. The Sutton court
    incorrectly considered whether the defendant’s act alone tended to debase
    or injure the morals, health, or welfare of a child, rather than whether it
    caused, contributed to, or encouraged a child to engage in delinquency. See
    Sutton, 
    104 Ariz. at 319
     (“[A] person who molests a child necessarily
    performs an act which tends to debase or injure the morals, health or
    welfare of a child.” (internal citation and quotation marks omitted)).
    Because the delinquency is “of a child,” the definition of “delinquency” in
    § 13-3612(1) necessarily refers to an act by a child and the offense in § 13-
    3613 punishes those who cause, contribute to, or encourage children to act
    in a way tending to debase or injure their morals, health, or welfare.
    ¶18            This interpretation finds support in Brockmueller v. State,
    where this Court determined that the offense and definition of delinquency
    “taken together, serve to prohibit the encouragement of any act which tends
    to debase or injure the morals, health or welfare of a child.” 
    86 Ariz. 82
    , 83
    (1959). In Brockmueller, the defendant’s “act” was encouraging a seventeen-
    year-old “to allow certain motion pictures to be taken of her in the nude.”
    
    Id.
     The victim went ahead with the pictures without the defendant’s
    assistance or participation. See 
    id.
     This Court determined that encouraging
    the victim’s “act” was sufficient to violate the statute for contributing to the
    delinquency of a minor. 
    Id.
     at 83–84; see also Loveland v. State, 
    53 Ariz. 131
    ,
    137 (1939) (“[U]nder the plain language of [§§ 13-3612 and -3613] it is no
    longer necessary to allege or prove that the child was a delinquent
    person . . . but that it is sufficient . . . to allege and prove simply that the
    accused caused, encouraged or contributed to some ‘act which tends to
    6
    STATE V. BAYRON PEREZ AGUEDA
    Opinion of the Court
    debase or injure the morals, health or welfare of a child.’” (quoting 1933
    Ariz. Sess. Laws ch. 91, § 1(c) (Reg. Sess.))).
    ¶19           The statutory interpretation employed in Brockmueller gives
    effect to both statutes, §§ 13-3612 and -3613. See State v. Francis, 
    243 Ariz. 434
    , 435 ¶ 6 (2018) (“As this case involves the intersection of multiple
    statutes, we construe them together, seeking to give meaning to all
    provisions.” (internal citation omitted)). If “act” in the definition of
    “delinquency” referred to the defendant’s act, rather than the child’s, this
    interpretation would make the word “act” in § 13-3613(A) superfluous, see
    Nicaise v. Sundaram, 
    245 Ariz. 566
    , 568 ¶ 11 (2019) (“A cardinal principle of
    statutory interpretation is to give meaning, if possible, to every word and
    provision so that no word or provision is rendered superfluous.”), because
    a person would not “encourage” his or her own act to debase or injure the
    morals, health, or welfare of a child. Additionally, interpreting “act” in
    § 13-3612(1) as the child’s act aligns with the “dependency” portion of the
    offense, which references the child’s actions in doing things like begging,
    hanging out with criminals, and other bad influences. See A.R.S. §§ 13-
    3612(3), -3618 (providing that the delinquency and dependency laws here
    are intended to protect the child from, among other things, “the effects of
    the improper conduct, acts or bad example of any person which may be
    calculated to cause, encourage or contribute to, the dependency or
    delinquency of children” (emphasis added)).
    ¶20           Because Sutton’s statutory interpretation was conclusory,
    clearly wrong, and would make contributing to the delinquency of a minor
    a lesser-included offense of virtually every crime in which a child was the
    victim, Sutton is overruled. “Generally, the doctrine of stare decisis
    cautions us against overruling former decisions.” E.H. v. Slayton, 
    249 Ariz. 248
    , 254 ¶ 13 (2020). However, our decision to overrule Sutton does not
    offend the principles underlying stare decisis. “[T]he degree of adherence
    demanded by a prior judicial decision depends upon its merits, and it may
    be abandoned if the reasons for it have ceased to exist or if it was clearly
    erroneous or manifestly wrong.” Lowing v. Allstate Ins., 
    176 Ariz. 101
    , 107
    (1993).
    7
    STATE V. BAYRON PEREZ AGUEDA
    Opinion of the Court
    ¶21           As previously shown, supra ¶¶ 17–19, Sutton’s statutory
    analysis regarding the elements of contributing to a minor’s delinquency is
    manifestly incorrect and frustrates the statutes’ focus to protect children
    from the improper conduct of others. See § 13-3618. Also, in discarding
    Sutton, we return to Brockmueller’s interpretation which is better supported
    and reasoned. Although we do not casually overrule our prior precedent,
    continued adherence to Sutton is no longer justified.
    ¶22           Turning to the issue presented in this case—whether
    contributing to the delinquency of a minor is a lesser-included offense of
    sexual conduct with a minor—we must determine under the same-elements
    test whether the greater offense requires proof of a fact which the lesser
    offense does not. Carter, 249 Ariz. at 315–16 ¶¶ 9–10.
    ¶23           As previously noted, a person commits contributing to the
    delinquency of a minor when a person “by any act, causes, encourages or
    contributes to the . . . delinquency of a child.” § 13-3613(A). A person
    commits sexual conduct with a minor under fifteen by “intentionally or
    knowingly engaging in sexual intercourse . . . with any person who . . . is
    under fifteen years of age.” § 13-1405(A)–(B).
    ¶24            Applying Blockburger’s same-elements test, along with the
    statutory analysis regarding “contributing to the delinquency of a minor”
    and “delinquency,” supra ¶¶ 17–19, we conclude that contributing to a
    minor’s delinquency is not a lesser-included offense of sexual conduct with
    a minor. A child’s act or anticipated act, which is an element of contributing
    to the delinquency of a minor, is not an element of sexual conduct with a
    minor. Put another way, sexual conduct with a minor and contributing to
    the delinquency of a minor each require proof of elements that the other
    does not. Thus, it is possible to commit the greater offense, sexual conduct
    with a minor, without committing the lesser offense, contributing to the
    delinquency of a minor. Carter, 249 Ariz. at 316 ¶ 10. Accordingly,
    contributing to the delinquency of a minor is not a lesser-included offense
    of sexual conduct with a minor, and the trial court did not err by refusing
    to give the lesser-included instruction.
    8
    STATE V. BAYRON PEREZ AGUEDA
    Opinion of the Court
    CONCLUSION
    ¶25           Because contributing to the delinquency of a minor is not a
    lesser-included offense of sexual conduct with a minor, we vacate the court
    of appeals’ opinion. We remand to the court of appeals so it may consider
    whether the trial court committed prejudicial error by failing to correctly
    answer a juror question, an issue that the court of appeals did not address.
    Agueda, 250 Ariz. at 507 ¶ 11 & n.3.
    9