IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

JERRY CHARLES HOLLE,

Appellant.

No. 2 CA-CR 2014-0268

Filed September 16, 2015

Appeal from the Superior Court in Pima County

No. CR20131185001

The Honorable Richard D. Nichols, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Diane Leigh Hunt, Assistant Attorney General, Tucson

Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender

By Erin K. Sutherland, Assistant Public Defender, Tucson

Counsel for Appellant
STATE v. HOLLE

Opinion of the Court

2

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in 

which Judge Howard and Judge Kelly1 concurred.

V Á S Q U E Z, Presiding Judge:

¶1 After a jury trial, Jerry Holle was convicted of 

molestation of a child and sexual abuse of a minor under the age of 

fifteen. The trial court sentenced him to a ten-year term of 

imprisonment for molestation, followed by a five-year term of 

probation for sexual abuse. On appeal, Holle argues the court erred 

when it instructed the jury that “lack of sexual motivation [is] an 

affirmative defense to be proven by the defendant.” In the 

alternative, he argues “the legislature has overstepped its 

constitutional authority” by redefining sexual interest as an 

affirmative defense. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to 

sustaining Holle’s convictions. See State v. Haight-Gyuro, 218 Ariz. 

356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In February 2013, M.H. 

disclosed to a friend and school counselor that her grandfather, 

Holle, had touched her breasts, buttocks, and vagina on several 

occasions. After an investigation, a grand jury indicted Holle for 

molestation of a child, sexual abuse of a minor under fifteen, sexual 

conduct with a minor under fifteen, and aggravated assault of a 

minor under fifteen. The state alleged the first three charges were 

dangerous crimes against children (DCAC) and the fourth offense 

was committed for the purpose of sexual gratification.

¶3 Before trial, Holle filed an “objection to [the] statutory 

elements of the offense,” arguing the statutes for molestation and 

 

1The Hon. Virginia C. Kelly, a retired judge of this court, is 

called back to active duty to serve on this case pursuant to orders of 

this court and our supreme court.
STATE v. HOLLE

Opinion of the Court

3

sexual abuse “exclude[] the central element defining mens rea . . . [,] 

sexual interest, and shift[] the burden to the defendant to prove lack 

of sexual interest in violation of the Due Process Clause of the Fifth 

and Fourteenth Amendments.” Based on that argument, he 

requested a jury instruction stating, “The State must prove beyond a 

reasonable doubt that the defendant was sexually motivated to 

commit” the offenses. The trial court denied the request.

¶4 At the close of the state’s case at trial, Holle moved for a 

judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., on all 

counts. The court granted the motion only as to aggravated assault. 

In his defense on the remaining charges, Holle presented the 

testimony of his daughters and M.H.’s uncle, all of whom stated 

they had no reason to believe Holle was sexually interested in M.H. 

or other children. The court instructed the jury regarding Holle’s 

defense as follows:

It is a defense to sexual abuse and 

molestation of a child if the defendant was 

not motivated by a sexual interest.

. . . The burden of proving each 

element of the offenses beyond a 

reasonable doubt always remains on the 

State. However, the burden of proving the 

affirmative defense of sexual abuse and 

molestation of a child is on the defendant. 

The defendant must prove the affirmative 

defense of no sexual interest by a 

preponderance of the evidence. If you find 

that the defendant has proven the 

affirmative defense of no sexual interest by 

a preponderance of the evidence you must 

find the defendant not guilty of the 

offenses of sexual abuse and molestation of 

a child.

Despite this instruction, the jury submitted a question to the court 

shortly after deliberations began, asking, “For these accusations to 
STATE v. HOLLE

Opinion of the Court

4

be a crime, must there be sexual intent proven[?]” The court 

referred the jury back to their original instructions.

¶5 The jury found Holle guilty of molestation and sexual 

abuse of a minor, both DCAC, but was unable to reach a verdict on 

the charge of sexual conduct with a minor. Upon the state’s request, 

the trial court later dismissed the sexual-conduct charge with 

prejudice. The court sentenced Holle as described above. This 

appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-

120.21(A)(1), 13-4031, and 13-4033(A)(1).

Jury Instruction

¶6 Holle argues “sexual interest is, and always has been, 

an element of the offense of Child Molestation” and therefore the 

trial court erred by instructing the jury that he had the burden to 

prove his lack of sexual interest. We review de novo whether a jury 

instruction accurately stated the law. State v. Paredes-Solano, 223 

Ariz. 284, ¶ 24, 222 P.3d 900, 908 (App. 2009). “[T]he test is whether 

the instructions [as a whole] adequately set forth the law applicable 

to the case.” State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 

1009-10 (1998).

¶7 The issue presented here primarily involves the 

interpretation of A.R.S. §§ 13-1404 and 13-1410. Our goal in 

interpreting statutes is to “give effect to the legislature’s intent.” 

State v. Hinden, 224 Ariz. 508, ¶ 9, 233 P.3d 621, 623 (App. 2010). 

“[W]e look first to the plain language of the statute as the most 

reliable indicator of its meaning.” State v. Givens, 206 Ariz. 186, ¶ 5, 

76 P.3d 457, 459 (App. 2003). If the plain language of the statute is 

clear, unambiguous, and susceptible to only one reasonable 

interpretation, “we need look no further to ascertain the legislative 

intent” and will apply the language as written. State v. Peek, 219 

Ariz. 182, ¶ 11, 195 P.3d 641, 643 (2008); State v. Gomez, 212 Ariz. 55, 

¶ 11, 127 P.3d 873, 875 (2006). If the statute’s language is 

ambiguous, however, we must turn to other tools of statutory 

interpretation. State v. Ross, 214 Ariz. 280, ¶ 22, 151 P.3d 1261, 1264 

(App. 2007).
STATE v. HOLLE

Opinion of the Court

5

Plain-Meaning Rule

¶8 To determine whether a statute is unambiguous and 

susceptible to only one reasonable interpretation, we must give 

words their plain, ordinary, or “‘commonly accepted meaning[]’”

unless a statutory term is defined, in which case we apply that 

meaning. State v. Bon, 236 Ariz. 249, ¶ 6, 338 P.3d 989, 991 (App. 

2014), quoting State v. Petrak, 198 Ariz. 260, ¶ 10, 8 P.3d 1174, 1178 

(App. 2000). This general rule has a critical purpose in the criminallaw context—our criminal statutes must warn the public “of the 

nature of the conduct proscribed” by our legislature. A.R.S. § 13-

101(2); see also A.R.S. §§ 1-211(C) (“Penal statutes shall be construed 

according to the fair import of their terms, with a view to effect their 

object and to promote justice.”), 13-101(3) (criminal statutes “define 

the act or omission and the accompanying mental state which 

constitute each offense and limit the condemnation of conduct as 

criminal when it does not fall within the purposes set forth”). Thus,

in determining whether a statute fulfills this purpose, we consider 

how “‘a person of ordinary or average intelligence’” would interpret 

the statute’s language. State v. Getz, 189 Ariz. 561, 565, 944 P.2d 503, 

507 (1997), quoting Barbone v. Superior Court, 11 Ariz. App. 152, 154, 

462 P.2d 845, 847 (1969).

¶9 With these principles in mind, we turn to §§ 13-1404(A)

and 13-1410(A). A defendant commits child molestation by 

“intentionally or knowingly engaging in or causing a person to 

engage in sexual contact, except sexual contact with the female 

breast, with a child who is under fifteen years of age.” § 13-1410(A). 

Similarly, a defendant commits sexual abuse by “intentionally or 

knowingly engaging in sexual contact . . . with any person who is 

under fifteen years of age if the sexual contact involves only the 

female breast.” § 13-1404(A). And, the term “sexual contact” is 

defined as “any direct or indirect touching, fondling or 

manipulating of any part of the genitals, anus or female breast by 

any part of the body or by any object or causing a person to engage 

in such contact.” A.R.S. § 13-1401(A)(3).

¶10 In State v. Simpson, another department of this court 

concluded the language in the molestation statute was “clear and 

unambiguous.” 217 Ariz. 326, ¶ 18, 173 P.3d 1027, 1029 (App. 2007). 
STATE v. HOLLE

Opinion of the Court

6

The court noted that the statute, § 13-1410, does not refer to “sexual 

interest” under A.R.S. § 13-1407(E), which provides: “It is a defense 

to a prosecution [for sexual abuse] or [molestation] that the 

defendant was not motivated by a sexual interest.” Id. Therefore, 

the court determined “[t]he ‘sexual interest’ provision of § 13-

1407(E) is not an element of the offense.” Id. ¶ 19.

¶11 Although Simpson provides one reasonable

interpretation of § 13-1410(A), to the extent it concludes this is the 

only reasonable interpretation, we respectfully disagree. See State v. 

Patterson, 222 Ariz. 574, ¶ 19, 218 P.3d 1031, 1037 (App. 2009) 

(decisions of coordinate courts are “‘persuasive and binding, unless 

we are convinced that the prior decisions are based upon clearly 

erroneous principles’”), quoting Scappaticci v. Sw. Sav. & Loan Ass’n, 

135 Ariz. 456, 461, 662 P.2d 131, 136 (1983); cf. Ariz. Citizens Clean 

Elections Comm’n v. Brain, 234 Ariz. 322, ¶ 34, 322 P.3d 139, 146 (2014) 

(Bales, J., dissenting) (“When . . . a statute may reasonably be 

interpreted more than one way, determining its meaning is not 

advanced by assertions that one plausible interpretation must be 

right because it reflects the ‘plain meaning.’”). A person of ordinary 

or average intelligence would infer a fundamental connection exists 

between sexual interest and the type of contact prohibited under 

§§ 13-1404(A) and 13-1410(A)—“molestation,” “sexual abuse,”

“sexual contact,” “touching,” “fondling,” and “manipulating.” See 

also § 13-1401(A)(3). We agree with Holle that contact motivated by 

sexual interest is precisely what distinguishes innocent and criminal

conduct under these statutes. See Getz, 189 Ariz. at 565, 944 P.2d at 

507. We thus conclude the statutes are susceptible to more than one 

reasonable interpretation, including the one advanced by Holle.

¶12 Our supreme court reached the same conclusion when

addressing similar language in State v. Berry, 101 Ariz. 310, 313, 419 

P.2d 337, 340 (1966). See also United States v. Hester, 719 F.2d 1041, 

1043-44 (9th Cir. 1983) (noting “‘a rational connection’” between 

“[t]he acts of touching, fondling, or playing with the private parts of 

a child” and “sexual interest”), quoting Leary v. United States, 395 U.S. 

6, 33 (1969); State ex rel. Hamilton v. Superior Court, 128 Ariz. 184, 187, 

624 P.2d 862, 865 (1981) (suggesting former sexual-contact statute 

refers to conduct “of a sexual nature”). Notably, the jury in this case 
STATE v. HOLLE

Opinion of the Court

7

made this rational connection. As we noted above, during its

deliberations, the jury sent the following question to the court: “For 

these accusations to be a crime, must there be sexual intent 

proven[?]” During a discussion between the court and counsel, the 

prosecutor stated “I’m not sure that the instructions said [sexual 

interest is] not an element of the offense. And that may be why 

they’re getting hung up.” When the court noted that “[t]he 

instructions clearly don’t list that as an element,” the prosecutor 

responded that lawyers might understand sexual interest is not an 

element of the offense, but “I just am not sure the lay people 

understand that.”

Statutory History

¶13 Because we conclude §§ 13-1404 and 13-1410 are 

susceptible to more than one reasonable interpretation, we look 

beyond the statutes’ language to determine their meaning. See Peek, 

219 Ariz. 182, ¶ 11, 195 P.3d at 643; Gomez, 212 Ariz. 55, ¶ 11, 127 

P.3d at 875. We consider “‘the statutory scheme as a whole and 

consider [each] statute’s context, subject matter, historical

background, effects and consequences, and spirit and purpose’” to 

determine the legislature’s intent. Ross, 214 Ariz. 280, ¶ 22, 151 P.3d 

at 1264, quoting Hughes v. Jorgenson, 203 Ariz. 71, ¶ 11, 50 P.3d 821, 

823 (2002).

¶14 In 1939, our legislature enacted a statute making it a 

crime to “annoy[] or molest[] a school child.” 1939 Ariz. Sess. Laws, 

ch. 13, § 1. In 1965, the legislature enacted a new molestation statute, 

which provided:

A person who molests a child under 

the age of fifteen years by fondling, playing 

with, or touching the private parts of such 

child or who causes a child under the age 

of fifteen years to fondle, play with, or 

touch the private parts of such person shall 

be guilty of a felony . . . .

1965 Ariz. Sess. Laws, ch. 20, § 3.
STATE v. HOLLE

Opinion of the Court

8

¶15 In Berry, 101 Ariz. at 312, 419 P.2d at 339, our supreme 

court considered whether this statutory language was 

unconstitutionally vague or “inexplicit.” The court suggested the 

statute’s use of the word “molests” to describe the proscribed 

contact was ambiguous on its face. Id. But, applying principles of 

statutory interpretation, the court concluded the statute was 

constitutional. Id. It first identified the legislature’s purpose in 

enacting such a criminal statute: “the protection of the young from 

improper advances.” Id. Next, the court observed that the statute 

specified several “easily recognized acts which combined with a 

necessary intent constitute a violation.” Id. at 313, 419 P.2d at 340. 

Although finding the “statute fail[ed] to expressly state a necessary 

element of intent or scienter,” the court determined: “‘When the 

words annoy or molest are used in reference to offenses against 

children, there is a connotation of abnormal sexual motivation on 

the part of the offender.’” Id., quoting State v. Trenary, 79 Ariz. 351, 

354, 290 P.2d 250, 252 (1955). The court reasoned that, because this 

implied element of intent narrowed the scope of conduct punishable 

under the statute, it was not impermissibly vague or overbroad. Id.

¶16 In 1977, the legislature enacted the sexual-abuse and 

sexual-contact statutes, using language that substantially mirrors the 

language in the current statutes.

2 1977 Ariz. Sess. Laws, ch. 142, 

§ 63. At that time, however, sexual abuse of a child under fifteen 

years of age was not limited to “sexual contact involv[ing] only the 

female breast.” § 13-1404(A); see 1977 Ariz. Sess. Laws, ch. 142, § 63. 

Therefore, despite some differences, the sexual-abuse statute applied 

to the same conduct prohibited by the molestation statute. See State 

v. Aguirre, 130 Ariz. 54, 58, 633 P.2d 1047, 1051 (App. 1981) (“These 

two offenses are virtually identical as they apply to a victim less 

than 15 years old.”). Compare 1977 Ariz. Sess. Laws, ch. 142, § 63 

 

2Former § 13-1401(2) defined “sexual contact” as “any direct 

or indirect fondling or manipulating of any part of the genitals, anus 

or female breast,” and § 13-1404 prohibited “sexual abuse by 

intentionally or knowingly engaging in sexual contact . . . with any 

person who is under fifteen years of age and who is not his or her 

spouse.” 1977 Ariz. Sess. Laws, ch. 142, § 63.
STATE v. HOLLE

Opinion of the Court

9

(defining sexual contact under sexual-abuse statute as “direct or 

indirect fondling or manipulating of any part of the genitals, anus or 

female breast”), with 1965 Ariz. Sess. Laws, ch. 20, § 3 (describing 

molestation as “fondling, playing with, or touching the private 

parts”); see also State v. Carter, 123 Ariz. 524, 525, 601 P.2d 287, 288 

(1979) (interpreting “private parts” as “limited to the genital and 

excretory organs and does not include the female breast”).

¶17 Also during this period, the legislature added the word 

“knowingly” to the molestation statute. 1978 Ariz. Sess. Laws, ch. 

201, § 133. Because Berry relied on the absence of an element of 

scienter in the former statute, this amendment could be interpreted 

as negating our supreme court’s reasoning that “‘there is a 

connotation of abnormal sexual motivation on the part of the 

offender.’” See Berry, 101 Ariz. at 313, 419 P.2d at 340, quoting 

Trenary, 79 Ariz. at 354, 290 P.2d at 252. Nonetheless, our courts 

continued to treat sexual interest as an “essential element” of the 

offense. State v. Brooks, 120 Ariz. 458, 460, 586 P.2d 1270, 1272 (1978); 

see State v. Madsen, 137 Ariz. 16, 18, 667 P.2d 1342, 1344 (App. 1983); 

State v. Anderson, 128 Ariz. 91, 92, 623 P.2d 1247, 1248 (App. 1980).

¶18 The legislature codified the term “sexual interest” when 

it enacted § 13-1407(E) in 1983. See 1983 Ariz. Sess. Laws, ch. 202, 

§ 10. And, in 1985, the legislature brought the sexual-abuse and 

molestation statutes into accord with one another. First, it amended 

the sexual-abuse statute so that abuse of a child occurred when a 

person had “sexual contact involv[ing] only the female breast.” 1985 

Ariz. Sess. Laws, ch. 364, § 17. Second, the legislature amended § 13-

1407(E) to provide that a lack of sexual interest is a defense to both 

sexual abuse and molestation.3 1985 Ariz. Sess. Laws, ch. 364, § 20.

¶19 For practical purposes, however, the enactment of § 13-

1407(E) did not significantly change the way courts treated sexual 

interest. At that time, “Arizona common law governed the 

allocation of the burden of proving” a justification defense, and “[a] 

 

3In this amendment, the legislature also removed “fondling” 

and “playing with” from the molestation statute and added “direct[] 

or indirect[]” touching. 1985 Ariz. Sess. Laws, ch. 364, § 21.
STATE v. HOLLE

Opinion of the Court

10

criminal defendant who presented ‘any evidence’ [to support such a 

defense] triggered the State’s obligation to prove beyond a 

reasonable doubt that the defendant’s conduct was not justified.” 

State v. Farley, 199 Ariz. 542, ¶ 7, 19 P.3d 1258, 1259-60 (App. 2001).4 

In State v. Byrd, in the context of a conviction for molestation of a 

child, the defendant argued the trial court’s instruction, which 

mirrored the language of § 13-1407(E), constituted unconstitutional 

burden shifting. 160 Ariz. 282, 283, 772 P.2d 1135, 1136 (App. 1988). 

This court disagreed, however, concluding that the jury instructions 

as a whole correctly instructed the jury on the state’s burden of 

proof while permitting the defendant to assert the statutory defense. 

Id.; see also In re Maricopa Cnty. Juv. Action No. JV-121430, 172 Ariz. 

604, 606-07, 838 P.2d 1365, 1367-68 (App. 1992) (“logical correlation” 

to § 13-1407(E) “is that the intent necessary to commit . . . 

molestation is . . . that the actor be motivated by a ‘sexual interest’”);

State v. Turrentine, 152 Ariz. 61, 67, 730 P.2d 238, 244 (App. 1986) 

(sufficient evidence to support finding of sexual interest).

¶20 Similarly, in In the Matter of Pima County Juvenile Action 

No. 74802-2, our supreme court considered whether the sexual-abuse 

statute was unconstitutionally vague. 164 Ariz. 25, 28-30, 790 P.2d 

723, 726-28 (1990), abrogated by Getz, 189 Ariz. at 563-65, 944 P.2d at

505-07. In its analysis, the court noted that “the legislature ha[d] 

carefully exempted from the statute physical contact . . . that is 

unmotivated by sexual interest,” and the court ultimately concluded 

the statute was not unconstitutional. Id. at 28-29, 790 P.2d at 726-27. 

In other words, the court treated sexual interest as an element under

the criminal statute, not a separate affirmative defense. See id.; 

 

4Farley refers to “justification” instead of the more general 

term, “defense,” which we use above. 199 Ariz. 542, ¶ 7, 19 P.3d at 

1259-60. Although there are substantive differences between the 

different types of defenses today, see A.R.S. § 13-103(B), this 

distinction was not made at that time, see, e.g., Farley, 199 Ariz. 542, 

¶ 14, 19 P.3d at 1261; State ex rel. Romley v. Superior Court, 172 Ariz. 

232, 238, 836 P.2d 445, 451 (App. 1992) (“With regard to the 

justification defense, self-defense is a statutory affirmative defense in 

Arizona.”).
STATE v. HOLLE

Opinion of the Court

11

Kolender v. Lawson, 461 U.S. 352, 357 (1983) (“[V]agueness doctrine 

requires that a penal statute define the criminal offense with sufficient 

definiteness . . . .”) (emphasis added).

¶21 Our courts continued to apply § 13-1407(E) in this 

manner, even after the legislature amended the molestation statute 

in 1993 to conform with the language used under the sexual-abuse 

statute.

5 See 1993 Ariz. Sess. Laws, ch. 255, § 29 (“A person commits 

molestation of a child by intentionally or knowingly engaging in or 

causing a person to engage in sexual contact, except sexual contact 

with the female breast, with a child under fifteen years of age.”); 

Senate Fact Sheet, S.B. 1049, 41st Leg., 1st Reg. Sess. (Ariz. Feb. 5, 

1993) (describing bill as making “a number of technical and 

conforming changes”); State v. Lujan, 192 Ariz. 448, 451, 967 P.2d 123, 

126 (1998); State v. Sanderson, 182 Ariz. 534, 542, 898 P.2d 483, 491 

(App. 1995). Notably, in Sanderson, another department of this court 

referred to § 13-1407(E) as “an affirmative defense regarding 

motive” and not an element of the offenses. 182 Ariz. at 542, 

898 P.2d at 491. But, the court nevertheless approved of a jury 

instruction that stated, “the State must prove beyond a reasonable 

doubt that any defense raised by the defendant is not valid.” Id.; 

see State v. Duarte, 165 Ariz. 230, 232, 798 P.2d 368, 370 (1990). It 

necessarily follows that, although Sanderson correctly identified 

§ 13-1407(E) as a “defense” to molestation, the distinction between 

an element and a defense amounted to a change in the burden of 

production, not the burden of proof. See Farley, 199 Ariz. 542, ¶ 7, 

19 P.3d at 1259-60.

¶22 For our purposes, the 1993 amendment represents the 

last significant change to §§ 13-1401(A)(3), 13-1404(A), 13-1407(E), or

 

5In the 1993 amendment, the legislature also amended the 

definition of “sexual contact,” combining the various terms used by 

former molestation and sexual-abuse statutes to describe prohibited 

conduct, with the exception of the term “playing with.” See 1993 

Ariz. Sess. Laws, ch. 255, § 23 (“‘Sexual contact’ means any direct or 

indirect touching, fondling or manipulating of any part of the 

genitals, anus or female breast . . . .”).
STATE v. HOLLE

Opinion of the Court

12

13-1410(A).

6 And, none of the amendments discussed above

signaled a departure from the first interpretation provided by our 

supreme court in Berry, which established the constitutionality of the 

statute that created the offense of molestation, see Berry, 101 Ariz. at 

313, 419 P.2d at 340, much less any of the other case law referring to 

sexual interest in this context, see Lujan, 192 Ariz. 448, ¶ 7, 967 P.2d 

at 126; Maricopa Cnty. No. JV-121430, 172 Ariz. at 606-07, 838 P.2d at 

1367-68; see also State v. Pennington, 149 Ariz. 167, 168, 717 P.2d 471, 

472 (App. 1985) (“It is presumed the legislature is aware of existing 

case law when it passes a statute; and that it is aware of court 

decisions interpreting the language of the statute; and when it 

retains the language upon which those decisions are based, it 

approves the interpretations.”) (citation omitted). But see Simpson, 

217 Ariz. 326, ¶ 22, 173 P.3d at 1030 (describing 1993 amendment as 

significant departure from previous language). Nor do we believe 

the legislature intended by enacting § 13-1407(E) to significantly 

alter the elements of molestation under § 13-1410(A). If it had, it 

would have done so in the text of the molestation statute itself. 

Cf. Getz, 189 Ariz. at 565, 944 P.2d at 507 (“If the legislature intended 

to implicitly raise the age [of consent] to eighteen by enacting 

[§] 13-1407(B), which we doubt, it can do so explicitly by amending 

[§] 13-1404.”). Thus, at that point in the evolution of the molestation 

and sexual-abuse statutes, sexual interest remained an implicit 

element of the offenses, and, if a defendant raised the defense under 

§ 13-1407(E), the state was required to prove beyond a reasonable 

doubt that the conduct in question was sexually motivated. 

See Duarte, 165 Ariz. at 232, 798 P.2d at 370; Sanderson, 182 Ariz. at 

542, 898 P.2d at 491.

Burden Shifting

¶23 In 1997, however, our legislature enacted A.R.S. §§ 13-

103(B) and 13-205, which set aside the common law approach to 

 

6The legislature has since changed the conditions under which 

a person can consent to sexual contact and made other technical 

amendments. See 2015 Ariz. Sess. Laws, ch. 209, § 3; 2008 Ariz. Sess. 

Laws, ch. 301, §§ 57, 60; 2005 Ariz. Sess. Laws, ch. 185, § 4; 1999 Ariz. 

Sess. Laws, ch. 261, § 17.
STATE v. HOLLE

Opinion of the Court

13

defenses. See 1997 Ariz. Sess. Laws, ch. 136, §§ 3, 4. At that time, 

§ 13-103(B) provided:

For the purposes of this section, 

“affirmative defense” means a defense that 

is offered and that attempts to justify the 

criminal actions of the accused or another 

person for whose actions the accused may 

be deemed to be accountable. Affirmative 

defense does not include any defense that 

either denies an element of the offense 

charged or denies responsibility, including 

alibi, misidentification or lack of intent.

1997 Ariz. Sess. Laws, ch. 136, § 3. Section 13-205(A) further 

provided that “a defendant shall prove any affirmative defense 

raised by a preponderance of the evidence, including any 

justification defense under chapter 4 of this title.”7 1997 Ariz. Sess. 

Laws, ch. 136, § 4.

¶24 The second sentence of § 13-103(B), which excludes any 

defense that “denies an element of the offense charged or denies 

responsibility, including . . . lack of intent,” ensures that this shift in 

the burden of proof is constitutional. See Farley, 199 Ariz. 542, 

¶¶ 11-14, 19 P.3d at 1260-61. “[T]he Due Process Clause requires the 

prosecution to prove beyond a reasonable doubt all of the elements 

included in the definition of the offense of which the defendant is 

charged.” Patterson v. New York, 432 U.S. 197, 210 (1977); see State v. 

Portillo, 182 Ariz. 592, 594, 898 P.2d 970, 972 (1995). But, due process 

“does not require the state to disprove a defendant’s affirmative 

defense unless the defense negates ‘any facts of the crime which the 

State [must] prove.’” State v. Jeffrey, 203 Ariz. 111, ¶¶ 7, 9, 50 P.3d 

861, 863-64 (App. 2002), quoting Patterson, 432 U.S. at 207 (alteration 

in Jeffrey).

 

7The legislature has since amended §§ 13-103(B) and 13-205(A)

to exclude justification defenses under chapter 4. See 2006 Ariz. Sess. 

Laws, ch. 199, §§ 1, 2.
STATE v. HOLLE

Opinion of the Court

14

¶25 In Simpson, the court relied on § 13-205(A) and 

Sanderson’s characterization of § 13-1407(E) as an “affirmative 

defense” to conclude the burden of proof must lie with the 

defendant. See 217 Ariz. 326, ¶ 19, 173 P.3d at 1030. But Sanderson

was decided before the term “affirmative defense” took on the 

significance it has today under § 13-103(B).

8 See 1997 Ariz. Sess. 

Laws, ch. 136, §§ 3, 4. More importantly, however, sexual interest

under § 13-1407(E) has always been treated as an “element,” Byrd,

160 Ariz. at 283, 772 P.2d at 1136, an “exempt[ion],” Pima Cnty. No. 

74802-2, 164 Ariz. at 29, 790 P.2d at 727, or, at a minimum, a defense 

that the state must nevertheless disprove beyond a reasonable 

doubt, see Sanderson, 182 Ariz. at 542, 898 P.2d at 491. Therefore, 

sexual interest appears to be the type of defense that “either denies 

an element of the offense charged or denies responsibility, including 

. . . lack of intent.” § 13-103(B). To conclude otherwise would force 

defendants to negate a “fact[] of the crime which the State is to prove 

in order to convict.’” Farley, 199 Ariz. 542, ¶ 11, 19 P.3d at 1260, 

quoting Patterson, 432 U.S. at 207; see also State v. Lockwood, 222 Ariz. 

551, ¶ 9, 218 P.3d 1008, 1011 (App. 2009) (“‘[I]f possible, this court 

construes statutes to avoid rendering them unconstitutional’ and ‘to 

avoid unnecessary resolution of constitutional issues.’”), quoting 

Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 272-73, 872 P.2d 668, 676-77 

(1994) (alteration in Lockwood).

¶26 In sum, we hold that § 13-1407(E) is a defense but not an 

affirmative defense. See § 13-103(B); Ross, 214 Ariz. 280, ¶ 22, 151 

P.3d at 1264. If, during a prosecution for molestation of a child or 

sexual abuse of a minor under fifteen, a defendant satisfies the 

burden of production to raise the defense listed under § 13-1407(E), 

then the state must prove beyond a reasonable doubt that the 

defendant’s conduct was motivated by a sexual interest. See Duarte, 

 

8Simpson similarly notes that Getz refers to “[t]he affirmative 

defenses . . . set forth in . . . § 13-1407.” 217 Ariz. 326, ¶ 17, 173 P.3d 

at 1029; see Getz, 189 Ariz. at 506, 944 P.2d at 564. However, the 

opinion in Getz was released less than a month after §§ 13-103(B) 

and 13-205 became effective, and, therefore, those statutes were not 

at issue in that case.
STATE v. HOLLE

Opinion of the Court

15

165 Ariz. at 232, 798 P.2d at 370. Accordingly, although the trial 

court properly instructed the jury pursuant to Simpson, 217 Ariz. 326, 

¶ 19, 173 P.3d at 1030, cf. Sell v. Gama, 231 Ariz. 323, ¶ 31, 295 P.3d 

421, 428 (2013) (“Trial courts are required to follow the decisions of a 

higher court . . . .”), it was legal error to place the burden of proof on 

Holle to prove his conduct was not motivated by a sexual interest. 

See Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d at 1009-10; Paredes-Solano, 

223 Ariz. 284, ¶ 24, 222 P.3d at 908.

Harmless Error

¶27 Holle argues that the erroneous instruction in this case 

amounts to structural error, and, therefore, prejudice is presumed, 

and we need not consider whether the error was harmless. 

Structural errors “are those which ‘deprive defendants of basic 

protections without which a criminal trial cannot reliably serve its 

function as a vehicle for guilt or innocence.’” State v. Henderson, 210 

Ariz. 561, ¶ 12, 115 P.3d 601, 605 (2005), quoting State v. Ring, 204 

Ariz. 534, ¶ 45, 65 P.3d 915, 933 (2003). In contrast, other errors that 

cannot be classified as structural are subject to a harmless error 

analysis when the defendant has timely objected below. “Error is 

harmless if the reviewing court can say beyond a reasonable doubt 

that the error did not contribute to the verdict.” State v. Davolt, 207 

Ariz. 191, ¶ 39, 84 P.3d 456, 470 (2004).

¶28 Holle relies primarily on Sullivan v. Louisiana, 508 U.S. 

275 (1993). There, the parties agreed the trial court had provided an 

erroneous reasonable-doubt instruction to the jury. Id. at 277. The 

issue, then, was whether such error was structural or subject to 

harmless-error review. Id. at 278-79. The Supreme Court concluded 

a harmless-error analysis in that case would be “illogic[al].” Id. at 

280. It explained that, under harmless-error review, the court would 

need to consider “whether the guilty verdict actually rendered in 

this trial was surely unattributable to the [erroneous instruction].”

Id. at 279 (emphasis omitted). But, because the erroneous 

reasonable-doubt instruction rendered the verdict defective as a 

whole, there was “no jury verdict within the meaning of the Sixth 

Amendment” to consider under harmless-error review. Id. at 280.
STATE v. HOLLE

Opinion of the Court

16

¶29 In Neder v. United States, however, the Supreme Court 

concluded that “the omission of an element [of a criminal offense in 

a jury instruction] is subject to harmless-error analysis” because the 

error “did not ‘vitiat[e] all the jury’s findings.’” 527 U.S. 1, 10-11

(1999), quoting Sullivan, 508 U.S. at 281 (alteration in Neder; emphasis 

omitted). Thus, the Court rejected the argument that, without a 

“‘complete verdict’ on every element of the offense,” structural error 

must apply. Id. at 11 (emphasis omitted).

¶30 Because the error here amounts to an omission of an 

element, Neder is controlling, and we review for harmless error. 

See State v. Dann, 205 Ariz. 557, ¶ 18, 74 P.3d 231, 239 (2003) 

(erroneous jury instructions subject to harmless-error review); State 

v. Yazzie, 232 Ariz. 615, ¶¶ 10-12, 307 P.3d 1042, 1044-45 (App. 2013) 

(conducting harmless-error review after concluding “the court did 

not instruct jurors regarding an element of the offense that the State 

was required to prove beyond a reasonable doubt”). Under this 

standard of review, the state must show that no reasonable jury 

“could find that the element omitted from the jury instructions had 

not been established beyond a reasonable doubt.” State v. Lewis, 236 

Ariz. 336, ¶ 38, 340 P.3d 415, 424-25 (App. 2014). As our supreme 

court has explained:

Following a thorough examination of the 

trial court record, [we] must determine 

“whether the record contains evidence that 

could rationally lead to a contrary finding 

with respect to the omitted element. If the 

answer to that question is ‘no,’ holding the 

error harmless does not reflec[t] a 

denigration of the constitutional rights 

involved.”

Dann, 205 Ariz. 557, ¶ 18, 74 P.3d at 239, quoting Neder, 527 U.S. at 19

(second alteration in Neder).

¶31 In this case, the record contains overwhelming evidence 

that Holle’s conduct was motivated by a sexual interest. At trial, the

state played a video recording of Holle’s interview with a detective, 

in which Holle described the two incidents for which he was 
STATE v. HOLLE

Opinion of the Court

17

convicted. In the first, Holle denied M.H. had “ever ask[ed him] 

about humping” but conceded he had “showed her.” He then 

described “play acting” with M.H. on a day shortly after Christmas,

wherein M.H. was on his bed, she pulled down her pants, and he

“rubbed up against her” buttocks two or three times with his 

covered penis. During the second incident, M.H. ran into his room 

naked, Holle grabbed her and threw her up in the air, then kissed 

her on her belly, two inches below her navel, and chest, specifically 

“on the side of her breast.” When asked why he had acted this way 

with M.H. and not another child, he explained, “She’s wanting to be 

with . . . a male.” Although Holle denied being aroused and, at trial,

his relatives testified that he had never displayed any sexual interest 

in M.H., there is no rational explanation for Holle’s conduct other 

than he was motivated by sexual interest. See id. Therefore, we 

conclude the error did not contribute to the guilty verdicts. 

See Davolt, 207 Ariz. 191, ¶ 39, 84 P.3d at 470.

Disposition

¶32 For the foregoing reasons, we affirm Holle’s convictions 

and sentences.