State v. Ortega
220 Ariz. 320, 206 P.3d 769, 541 Ariz. Adv. Rep. 3 (2008)
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Rule of Law:
Under the Double Jeopardy Clause, a defendant cannot be convicted of both a greater offense and a lesser included offense for the same act. An offense is considered a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense, as determined by comparing the statutory elements of each crime.
Facts:
- On August 20, 2006, Luis Ortega touched thirteen-year-old C.Q.'s arms, buttocks, and legs while she was sleeping on a couch.
- A few days later, on August 25, Ortega again touched C.Q. while she was sleeping, this time touching her breasts and vagina over her clothes, and warned her not to tell anyone.
- In December 2006, Ortega took C.Q. to an abandoned trailer where he forcibly removed her clothes, touched her breasts, back, and legs, and had sexual intercourse with her.
- Following the December incident, Ortega threatened to kill C.Q.'s mother or harm C.Q. and her brother, F.Q., if they revealed what had happened.
- Ortega engaged in similar acts with C.Q. on subsequent visits in February and March or April of 2007, each time threatening her mother's safety if C.Q. spoke out.
- On April 9, 2007, C.Q.'s mother witnessed Ortega touch C.Q.'s buttocks over her pajamas, leading to an argument and Ortega fleeing the house after the mother called the police.
Procedural Posture:
- A grand jury indicted Luis Ortega on nine counts, including molestation of a child (count four) and sexual conduct with a minor under fifteen (count five) related to a December 2006 incident.
- The case was tried before a jury in an Arizona superior court (the trial court of first instance).
- During trial, the court granted Ortega’s motion for acquittal on one count (count seven).
- The jury convicted Ortega of the remaining eight charges, including counts four and five.
- The trial court sentenced Ortega to a total of fifty-seven years in prison.
- Ortega (appellant) appealed his convictions and sentences to the Arizona Court of Appeals, arguing that his convictions on counts four and five violated his double jeopardy rights.
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Issue:
Do convictions for both molestation of a child and sexual conduct with a minor under fifteen, arising from a single act of sexual intercourse, violate the Double Jeopardy Clause's prohibition against multiple punishments for the same offense?
Opinions:
Majority - Vásquez, J.
Yes, convictions for both molestation and sexual conduct with a minor under fifteen based on a single act violate the Double Jeopardy Clause because molestation is a lesser included offense of sexual conduct with a minor under fifteen. The court's reasoning follows the Blockburger 'same elements' test, which asks if each offense requires proof of a fact the other does not. First, the court determines that the victim's age ('under fifteen') in the sexual conduct statute is an element of a greater offense, not merely a sentencing factor, because it dramatically increases the statutory sentencing range. Second, comparing the elements, sexual conduct with a minor under fifteen requires 'sexual intercourse' with a person under fifteen, while molestation requires 'sexual contact' with a person under fifteen. Since 'sexual intercourse' (penetration) necessarily involves 'sexual contact' (touching of genitals), it is impossible to commit the former without committing the latter. Therefore, molestation is a lesser included offense, and convictions for both constitute impermissible multiple punishments for the same offense.
Concurring - Espinosa, J.
Yes, the convictions violate double jeopardy, but the majority's extensive analysis was unnecessary. Under well-established Arizona law, an offense is a lesser included one if the greater offense cannot be committed without also committing the lesser. It is a matter of simple logic that one cannot have sexual intercourse with a child without also touching that child's genitals. Therefore, molestation is clearly a lesser included offense of sexual conduct with a minor in this context, and the double jeopardy violation is straightforward without a lengthy analysis of federal precedent.
Analysis:
This case clarifies the application of the 'same elements' test for double jeopardy in Arizona, particularly for statutes with tiered punishments based on specific facts. By treating a fact that dramatically increases a penalty (the victim being under fifteen) as an element of a distinct, greater offense, the decision strengthens protections against multiplicitous convictions. This precedent requires prosecutors to choose the most appropriate charge for a single criminal act rather than stacking charges where one offense is definitionally included within another. It reinforces that the substance of the criminal act, as defined by its statutory elements, is paramount in double jeopardy analysis.
