State of Arizona v. Bayron Perez Agueda

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.

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 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.

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 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).

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 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.).

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 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

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 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).

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 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.

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 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.

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