IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

EARL JEFFERSON CAUSBIE,

Appellant.

No. 2 CA-CR 2016-0106

Filed December 5, 2016

Appeal from the Superior Court in Pima County

No. CR20141960001

The Honorable Scott Rash, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Jonathan Bass, Assistant Attorney General, Tucson

Counsel for Appellee

Kuykendall & Associates, Tucson

By Gregory J. Kuykendall and Amy P. Knight

Counsel for Appellant
STATE v. CAUSBIE

Opinion of the Court

2

OPINION

Judge Miller authored the opinion of the Court, in which Presiding 

Judge Vásquez and Chief Judge Eckerstrom concurred.

M I L L E R, Judge:

¶1 Earl Causbie appeals from his conviction for sexual 

assault, for which he was sentenced to 5.25 years’ imprisonment. He 

argues the trial court erred by refusing his proposed jury 

instructions on the meaning of “without consent” in the context of 

alcohol consumption by the victim. Alternatively, he contends the 

statutory definition of “without consent” is unconstitutionally 

vague. For the reasons that follow, we affirm. 

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences 

therefrom in the light most favorable to upholding the jury’s verdict. 

See State v. Inzunza, 234 Ariz. 78, ¶ 2, 316 P.3d 1266, 1268-69 

(App. 2014). In October 2011, the victim, J.D., went to a party at the 

home of G.J., whom she was just “in the beginning stages of kind of 

dating.” When J.D. arrived, she did not know anyone at the party 

other than G.J., but she met some of the other guests as the evening 

went on, including Causbie and A.G. 

¶3 Many of the guests were already intoxicated by the time 

J.D. arrived. Most or all of the guests drank whiskey shots during 

the evening, and others played drinking games. G.J. drank so much 

that he vomited and then retired to his upstairs bedroom, where he 

remained for the rest of the night even as the party continued. Over 

the course of the evening, J.D. drank about six shots of cinnamon-
STATE v. CAUSBIE

Opinion of the Court

3

flavored whiskey (about one ounce each), as well as one mixed 

drink containing a “three-second pour” of whiskey.1 

¶4 Causbie flirted with J.D. throughout the party. He 

flicked and played with her hair, which she did not like. He also 

tried to hug her from behind—“she laughed but she pulled away . . . 

like she didn’t like it,” according to A.G. Causbie’s advances made 

J.D. feel uncomfortable, as she expressed to A.G about four different 

times. At one point, Causbie asked J.D. to have a shot of whiskey 

with him, which she did. Then J.D. decided to send G.J. a photo of 

her breasts to “show him what he was missing.” She lifted her shirt 

and bra and told Causbie to photograph her bare breasts and send 

the photo by text message to G.J., and he did. Causbie then called 

J.D. a “MILF”2 and tried to kiss her, but she said “No, I don’t kiss 

married men. I’m here, like, with [G.J.].” 

¶5 J.D. then felt that it was time to go. She later said she 

had been “tipsy,” but not “falling down drunk,” at that point. She 

got her things and began to leave, but A.G. felt J.D. might have had a 

lot to drink and wanted to make sure she was okay to drive. With 

A.G. in the car, J.D. drove a short distance in a circle, which led her 

to conclude she was not sober enough to drive home safely. A.G. 

suggested J.D. spend the night on the couch at G.J.’s house. Causbie 

and another guest also came out to the car and encouraged J.D. to 

stay there that night. J.D. was “torn”—on the one hand she did not 

feel safe driving, but on the other hand, she did not feel safe staying 

over because Causbie’s advances had given her the “heebie jeebies.” 

J.D. expressed her concern to A.G., but A.G. reassured her that she 

would be safe if she stayed, so she did. 

¶6 J.D. came back inside, at which point she vomited into a 

trash can. A.G. got J.D. some water and a blanket, and she lay down 

on a couch on her stomach “like she was ready to go to sleep.” A.G. 

 

1J.D. had not had anything to drink before arriving at the 

party. 

2 J.D. testified that she understood “MILF” to be a slang 

acronym for “A mother I’d like to f***.” 
STATE v. CAUSBIE

Opinion of the Court

4

saw J.D. close her eyes; she fell asleep “[a]lmost instantly.” A.G. 

went upstairs, and when she came down about half an hour later to 

get a drink, J.D. was still asleep—she was “just out,” A.G. explained. 

A.G. went back upstairs. 

¶7 Sometime later, A.G. heard a male voice coming from 

downstairs, so she went down again. As A.G. came down the stairs, 

she saw J.D. on the couch where she had fallen asleep, lying on her 

back with her pants and underwear pulled down, her legs about 

shoulder-width apart, and her knees bent. Causbie was kneeling 

beside the couch and repeatedly “putting his hand up [J.D.’s] vagina 

very roughly.” Although A.G. could not tell whether J.D. was 

awake or asleep when she saw her, J.D. did not appear to be 

participating in any way, nor was she making any sounds. In fact, 

J.D. had awakened around the time A.G. came downstairs or shortly 

before to the feeling of “a thrusting fist pain” or “pounding in [her] 

vagina area.” She unsuccessfully attempted to push Causbie away. 

¶8 A.G. walked past them into the kitchen before Causbie 

realized she was there. A.G. felt “nervous” because she had “just 

caught two people doing stuff, private stuff, and [she] didn’t need to 

see that.” She called out, “[J.D.], are you okay?” J.D. said no. After 

hearing this, A.G. “felt dirty” and went into the bathroom to wash 

her hands. When she came back out, Causbie, who had been 

kneeling beside J.D.’s midsection, was now kneeling beside her

head. 

¶9 A.G. asked Causbie to give them a moment alone, and 

he walked away without saying a word. A.G. asked J.D. if she was 

okay. J.D. was “confused, and was saying like, where am I? Like 

she didn’t know what was going on.” A.G. had to explain to J.D. 

where she was multiple times. J.D. said she thought Causbie had 

pulled down her pants, and asked A.G. to help her pull them back 

up, which she did. J.D. vomited into the trash can again. Then J.D. 

thanked A.G. and told her she was “a good girl,” and went back to 

sleep. 

¶10 The next morning, J.D. awoke to Causbie touching her 

shoulder. He told her he left her some water on the table, and then 

he left. J.D. left later, at about 7:30 that morning, and while driving
STATE v. CAUSBIE

Opinion of the Court

5

home, pulled over and vomited and urinated on herself. She found 

blood in her underwear later that day, although she was not 

menstruating. She also had bruises on her inner thighs, and pelvic 

pain that lasted for about a week. Feeling “dirty and ashamed,” she

took “probably like [twenty]” baths the day after the incident

because she “just wanted everything gone from that guy.” J.D. 

subsequently asked A.G. what had happened the night before

because she could not remember everything. A.G. told J.D. what she 

had seen. J.D. then reported the incident to law enforcement. 

¶11 Causbie was charged with sexual assault in violation of 

A.R.S. § 13-1406, and the case proceeded to a jury trial at which he

advanced a consent theory of defense. On the second day of trial, 

out of the jury’s presence, court and counsel discussed jury 

instructions. The court suggested the following instruction

regarding the absence of consent, which tracks A.R.S. § 13-

1401(A)(7)(b)3 almost verbatim: 

“Without consent” means the victim is 

incapable of consent by reason of mental 

disorder, mental defect, drugs, alcohol, 

sleep or any other similar impairment of 

cognition and such condition is known or 

should have reasonably been known to the 

defendant. “Mental defect” means the 

victim is unable to comprehend the 

distinctively sexual nature of the conduct 

or is incapable of understanding or 

exercising the right to refuse to engage in 

the conduct with another. 

Causbie objected, and proffered an alternative instruction:

 

3A.R.S. § 13-1407 has been amended and renumbered since the 

date of the crime, but no substantive changes were made to the 

applicable subsections. See 2015 Ariz. Sess. Laws, ch. 209, § 2. We 

cite the current version of the statute throughout unless otherwise 

indicated.
STATE v. CAUSBIE

Opinion of the Court

6

In order for you to find that [J.D.] could not 

consent to sexual activity due to her use of 

alcohol you must find beyond a reasonable 

doubt that she was unable to comprehend 

the distinctively sexual nature of the 

conduct or was incapable of understanding 

or exercising her right to refuse to engage 

in that conduct with another. 

The court rejected Causbie’s proposed instruction, overruled his 

objection, and selected its originally proposed instruction.

4 

¶12 The next day, Causbie requested another instruction to 

supplement, rather than replace, the court’s “without consent” 

definition. Defendant’s proposed supplemental instruction read:

“The mere fact that [J.D.] may have consumed alcohol does not 

mean that she could not give consent to sexual activity.” The court 

declined to give that instruction, stating it was “covered by the other 

instruction.” 

¶13 In its closing argument the state contended J.D. had 

lacked capacity to consent to the sexual intercourse because of both 

alcohol and sleep. The jury found Causbie guilty of sexual assault

on a general verdict form, and he was sentenced as described above. 

Sections 13-4031 and 13-4033(A)(1), A.R.S., give us jurisdiction over 

his appeal. 

 

4The state also requested a consent instruction. The state’s 

proposed instruction provided: “‘Without consent’ includes, but is 

not limited to, any of the following,” and then substantially followed 

the full text of A.R.S. § 13-1401(A)(7)(a)-(d). In this respect, it 

substantially followed State Bar of Arizona’s Revised Arizona Jury 

Instructions (“RAJI”) Statutory Criminal 14.01.07 (4th ed. 2012). 

However, the state’s proposed instruction added a final sentence not 

found in the Revised Arizona Jury Instruction: “The words ‘without 

consent’ should be given their ordinary meaning.” The court 

declined to give the state’s instruction as well. 
STATE v. CAUSBIE

Opinion of the Court

7

Analysis

Vagueness and Instruction Adequacy

¶14 This case raises an issue not yet squarely addressed in 

our case law: the appropriate jury instruction for incapacity to 

consent by reason of alcohol. Causbie argues the phrase “incapable 

of consent by reason of . . . alcohol” in § 13-1401(A)(7)(b) is 

unconstitutionally vague 5 on its face 6 without a narrowing 

instruction or a more detailed definition. His constitutional 

argument is intertwined with a state law contention that the 

statutory definition of “without consent” is insufficient. Thus we 

address both arguments together. 

¶15 We review de novo whether a statute is 

unconstitutionally vague. See State v. Mutschler, 204 Ariz. 520, ¶ 4, 

65 P.3d 469, 471 (App. 2003). There is a strong presumption that a 

challenged statute is not unconstitutionally vague, State v. Kaiser, 204 

Ariz. 514, ¶ 8, 65 P.3d 463, 466 (App. 2003), and it is the defendant’s 

burden to show otherwise, see State v. Okken, 238 Ariz. 566, ¶ 9, 364 

 

5 The state argues Causbie’s vagueness challenge is not 

properly preserved for review. But Causbie expressly invoked the 

Fourteenth Amendment of the United States Constitution and 

Article II, Section 4 of the Arizona Constitution, arguing the court’s 

instruction was unconstitutional because it left “the jury to on an ad 

hoc basis determine what being incapable of consent by reason of . . . 

alcohol . . . means” in a given case without a definite standard. He 

raised this constitutional vagueness argument again in his motion 

for a new trial. The issue is preserved.

6Although at oral argument defense counsel characterized the 

argument as an as-applied challenge, examination of the structure of 

the argument reveals it is actually a facial challenge. Counsel 

maintained that Causbie’s proposed instructions are required in 

every case involving incapacity to consent by reason of alcohol, not 

merely upon the facts of this particular case. See, e.g., Sabri v. 

United States, 541 U.S. 600, 609 (2004) (argument that “no application 

of the statute could be constitutional” is a facial challenge).
STATE v. CAUSBIE

Opinion of the Court

8

P.3d 485, 488 (App. 2015). We review a court’s refusal to give a

requested jury instruction for an abuse of discretion,7 but consider 

de novo whether the instructions given were legally sufficient when 

viewed as a whole. See State v. Miller, 234 Ariz. 31, ¶ 41, 316 P.3d 

1219, 1231 (2013). 

¶16 To ensure due process of law, a criminal statute must 

not be “so vague that it fails to give ordinary people fair notice of the 

conduct it punishes, or so standardless that it invites arbitrary 

enforcement.” Johnson v. United States, ___ U.S. ___, ___, 135 S. Ct. 

2551, 2556 (2015); accord State v. Schmidt, 220 Ariz. 563, ¶ 5, 208 P.3d 

214, 216 (2009); see U.S. Const. amend. XIV, § 1; Ariz. Const. art. II, 

§ 4. But the requirement of fair and reasonable notice is not a 

requirement of “perfect notice or absolute precision of language.” 

State v. McDermott, 208 Ariz. 332, ¶ 13, 93 P.3d 532, 536 (App. 2004), 

quoting Kaiser, 204 Ariz. 514, ¶ 9, 65 P.3d at 466. A statute can give

 

7Causbie also contends we should view the evidence in the 

light most favorable to him as the party requesting jury instructions, 

citing State v. Almeida, 238 Ariz. 77, ¶ 2, 356 P.3d 822, 823-24 

(App. 2015), and State v. Nottingham, 231 Ariz. 21, ¶ 14, 289 P.3d 949, 

954 (App. 2012). Those cases are distinguishable, however, because 

those defendants requested jury instructions that are appropriate 

only if reasonable evidence supports the theory they set forth. 

See Almeida, 238 Ariz. 77, ¶¶ 1, 9, 356 P.3d at 823, 824 (justification 

instruction, which is appropriate only upon slightest evidence of 

justification); Nottingham, 231 Ariz. 21, ¶¶ 4, 6, 289 P.3d at 951-52 

(Dessureault instruction appropriate only upon evidence supporting 

suggestive pretrial identification process). Here, Causbie brings a 

facial vagueness challenge to the alcohol incapacity statute 

underlying the instructions given. Whether Causbie’s requested 

instructions should have been given turns not on whether there was 

a sufficient quantum of evidence to support a particular theory 

therein, but rather on issues of constitutional and statutory 

interpretation explored below. Therefore, we continue to view the 

facts and all reasonable inferences therefrom in the light most 

favorable to upholding the verdict. See Inzunza, 234 Ariz. 78, ¶ 2, 316 

P.3d at 1268-69.
STATE v. CAUSBIE

Opinion of the Court

9

fair notice of the conduct prohibited even if it can be interpreted in 

more than one way or it does not define a particular term. Id. 

Moreover, although there may be borderline cases in which it is 

difficult to decide whether or not certain conduct violated a statute, 

it does not follow that as a result that statute is unconstitutionally 

vague. Kaiser, 204 Ariz. 514, ¶ 9, 65 P.3d at 467; see McLamb, 

188 Ariz. at 5, 932 P.2d at 270 (“If a statute gives notice of prohibited 

conduct, it is not void for vagueness ‘simply because it may be 

difficult to determine how far one can go before the statute is

violated.’”), quoting State v. Phillips, 178 Ariz. 368, 370, 873 P.2d 706, 

708 (App. 1994).

¶17 “A person commits sexual assault by intentionally or 

knowingly engaging in sexual intercourse . . . with any person 

without consent of such person.” A.R.S. § 13-1406(A) (emphasis 

added). “Sexual intercourse” includes digital penetration of the 

vulva. See A.R.S. § 13-1401(A)(4). Under the statutory definition, 

“‘[w]ithout consent’ includes” a situation in which

[t]he victim is incapable of consent by 

reason of mental disorder, mental defect, 

drugs, alcohol, sleep or any other similar 

impairment of cognition and such 

condition is known or should have 

reasonably been known to the defendant. 

For the purposes of this subdivision, 

“mental defect” means the victim is unable 

to comprehend the distinctively sexual 

nature of the conduct or is incapable of 

understanding or exercising the right to 

refuse to engage in the conduct with 

another.

§ 13-1401(A)(7)(b). This list is not exhaustive, but merely 

illustrative—“[t]he word ‘includes’ [in the definition] is a term of 

enlargement which conveys the idea that conduct which does not 

fall within the listed behavior may also violate the statute.” State v. 

Witwer, 175 Ariz. 305, 307-08, 856 P.2d 1183, 1185-86 (App. 1993).
STATE v. CAUSBIE

Opinion of the Court

10

¶18 Causbie first argues the term “consent” itself is 

unconstitutionally vague. We disagree. As we have observed, 

“[t]he words ‘without consent’ are easily understood as they are 

ordinarily used.” Id. at 308, 856 P.2d at 1186; see also State v. Sharma, 

216 Ariz. 292, ¶ 15, 165 P.3d 693, 697 (App. 2007), citing Random 

House Webster’s College Dictionary 2891 (1995) (“‘[W]ithout consent’ 

. . . generally mean[s] without agreement or permission.”); see also

McDermott, 208 Ariz. 332, ¶ 13, 93 P.3d at 536 (statute need not 

define every term to avoid vagueness). Section 13-1401(A)(7) further 

clarifies what “consent” means in the sex offense context by 

providing numerous specific examples of its absence. See Witwer, 

175 Ariz. at 307-08, 856 P.2d at 1185-86. The phrase “without 

consent” in § 13-1406(A) gives a person of ordinary intelligence fair 

notice of the conduct prohibited. 

¶19 Causbie next argues the phrase “incapable of consent by 

reason of . . . alcohol,” § 13-1401(A)(7)(b), is unconstitutionally vague

as a whole. He primarily relies on State v. Johnson, 155 Ariz. 23, 

24-25, 745 P.2d 81, 82-83 (1987), a sexual assault case applying 

“mental disorder” in a prior version of the “without consent” 

definition. When Johnson was decided, the definition included 

neither the term “mental defect” nor a definition thereof. See id. at 

25, 745 P.2d at 83; see also Inzunza, 234 Ariz. 78, ¶ 19 & n.4, 316 P.3d 

at 1272 & n.4, citing 1998 Ariz. Sess. Laws, ch. 281, § 2. The state 

contended the victim could not consent because a trauma-induced 

mental disability rendered her incapable of consent. Johnson, 155 

Ariz. at 25-26, 745 P.2d at 83-84. The court held the instruction the 

trial court gave, which said “‘[w]ithout consent’ means . . . [t]he 

other person could not consent because of a mental disorder,” was 

not sufficiently narrow or particular as a matter of statutory 

interpretation (not vagueness doctrine). Id. at 25-26, 745 P.2d at 

83-84. “[W]hen the state asserts that the victim was incapable of 

consenting due to a mental disorder,” our supreme court held, “it 

must prove that the mental disorder was an impairment of such a 

degree that it precluded the victim from understanding the act of 

intercourse and its possible consequences.” Id. at 26, 745 P.2d at 84. 

The court also ruled the evidence before it was insufficient as a 

matter of law to establish that the victim had such a mental disorder, 

even though a prior head injury had affected her memory, 
STATE v. CAUSBIE

Opinion of the Court

11

concentration, and abstract thinking, and had rendered her “easily 

influenced.” Id. The possibility the jury convicted Johnson based on 

that insufficient evidence, as permitted by the erroneous instruction, 

required reversal. Id. 

¶20 Causbie contends, without citation to authority, that 

there is “[n]o principled reason” to require more specific guidance

about the necessary degree of cognitive impairment to show

incapacity due to mental disorder than the degree needed to show 

incapacity due to alcohol. We disagree. See, e.g., Allison C. Nichols, 

Note, Out of the Haze: A Clearer Path for Prosecution of AlcoholFacilitated Sexual Assault, 71 N.Y.U. Ann. Surv. Am. L. 213, 233-34 

(2015). First, we agree with the state that mental diseases and

defects are more long-standing as compared to the immediate 

cognitive effects of alcohol.

8 Thus, constitutional concerns that 

arguably could arise in a mental disease or defect incapacity case are 

not implicated in the context of temporary incapacity due to 

alcohol.

9

¶21 Second, incapacity resulting from mental disease or 

defect is not a matter within the everyday knowledge and 

experience of most jurors. For this reason, the state will often rely on

 

8The record does not present and we do not address mental 

defects caused by long-term use of alcohol or circumstances where 

the amount of alcohol consumed in one setting causes permanent 

bodily damage.

9 Significant constitutional issues might arise under an 

incapacity-to-consent instruction like that in Johnson, which is 

susceptible to an interpretation that individuals with mental disease 

or defect can never consent to sex. See State v. Olivio, 589 A.2d 597, 

604-05 (N.J. 1991) (narrowly construing mental defect incapacity 

because mentally disabled people have fundamental rights 

regarding procreation and contraception); see also Anderson v. 

Morrow, 371 F.3d 1027, 1040-41 (9th Cir. 2004) (Berzon, J., concurring 

in part and dissenting in part) (analyzing intellectually disabled 

victim’s capacity to consent under substantive due process 

framework).
STATE v. CAUSBIE

Opinion of the Court

12

expert testimony to explain the nature, extent, and implications of a 

victim’s mental disorder or defect. E.g., Inzunza, 234 Ariz. 78, ¶ 20, 

316 P.3d at 1272 (psychiatrist and social worker testified regarding 

victim’s capacity to consent). In contrast, jurors understand the 

temporary effects of alcohol on the mind and body from their 

common knowledge and experience. State v. Randles, 235 Ariz. 547, 

¶ 17, 334 P.3d 730, 733-34 (App. 2014); see also State v. Rivera, 

152 Ariz. 507, 514-15, 733 P.2d 1090, 1097-98 (1987). They are 

adequately equipped to assess whether a victim’s cognition was so 

impaired by alcohol that he or she was unable to give legal consent

at the relevant time. Unlike the jury in Johnson, which required 

additional guidance in order to gauge the “degree or severity” of the

victim’s mental disorder, 155 Ariz. at 25, 745 P.2d at 83, this jury 

required no additional guidance to determine whether J.D. lacked 

capacity to consent due to impairment caused by alcohol 

consumption. 

¶22 Having distinguished Johnson, we find the reasoning in 

a recent decision of the U.S. Navy-Marine Corps Court of Criminal 

Appeals to be more applicable. In United States v. Solis, 75 M.J. 759

(N.-M. Ct. Crim. App. 2016), the defendant challenged as 

unconstitutionally vague a sexual assault statute similar to our own. 

It provided:

Any person . . . who . . . commits a sexual 

act upon another person when the other 

person is incapable of consenting to the 

sexual act due to . . . impairment by any 

drug, intoxicant, or other similar substance, 

and that condition is known or reasonably 

should be known by the person . . . is guilty 

of sexual assault.

Id. at 763, quoting 10 U.S.C. § 920(b)(3). The defendant argued 

§ 920(b)(3) is unconstitutionally vague on its face because it provides

“no way for a person of common intelligence to determine when 

another person is impaired by alcohol such that they are incapable 

of consenting to a sexual act.” Solis, 75 M.J. at 763. He emphasized 

the statute does not “draw the line” as to the threshold of 

impairment beyond which the victim was not capable of consenting. 
STATE v. CAUSBIE

Opinion of the Court

13

Id. The court rejected the defendant’s reading of the statute as 

myopic, focusing too much on the word “impairment” and not 

enough on the more central issue of incapacity to consent. Id. The 

court held the statute provides fair notice to a person of ordinary 

intelligence that it proscribes sexual conduct with a person who 

lacks the ability to consent. Id.; see also McLamb, 188 Ariz. at 5, 932 

P.2d at 270 (fact that line-drawing may be difficult does not mean 

statute is unconstitutionally vague).

¶23 The Solis court further held § 920(b)(3) was not so 

standardless as to invite arbitrary enforcement. Solis, 75 M.J. at 

763-64. It underscored that the statute “does not require a person to 

arbitrarily determine how impaired another person must be before 

they are too impaired,” but rather to “determine if a sexual partner 

is capable of consenting.” Id. at 764. Coupled with the requirement 

that the defendant knew or should have known of the victim’s 

incapacity to consent, which further narrows the statute’s scope and 

guides prosecutors and juries, the statute provides constitutionally 

definite enforcement standards, the court ruled. Id. 

¶24 Like the statute at issue in Solis, §§ 13-1401(A)(7)(b) and 

13-1406(A) provide sufficiently clear notice to a person of ordinary 

intelligence of what conduct is prohibited, namely, sexual 

intercourse with a person the defendant knows or reasonably should 

know is impaired by alcohol beyond the point of legal capacity to 

consent. See Solis, 75 M.J. at 763-64; cf. Glover v. State, 760 N.E.2d 

1120, 1123-24 (Ind. Ct. App. 2002) (person of ordinary intelligence 

would understand that statute outlawing sexual intercourse with 

victim who is “unaware” proscribes sex with victim who is 

unconscious due to inebriation); State v. Blount, 770 P.2d 852, 855-56 

(Kan. Ct. App. 1989) (person of common intelligence can readily 

understand what constitutes lack of consent due to fear of violence). 

In addition, § 13-1401(A)(7)(b) turns not on a certain threshold level 

of alcohol consumption or intoxication,10 but rather on the victim’s 

 

10The parties agree that the incapacity-to-consent statute need 

not furnish a quantitative measure, such as a certain breath alcohol 

content or number of drinks consumed, in order to avoid 

unconstitutional vagueness. 
STATE v. CAUSBIE

Opinion of the Court

14

legal capacity to consent. See Solis, 75 M.J. at 764. It therefore does 

not invite arbitrary enforcement against intoxicated persons 

engaging in consensual sex. See id. 

¶25 We hold that the phrase “incapable of consent by reason 

of . . . alcohol” in § 13-1401(A)(7)(b) is not unconstitutionally vague. 

Accordingly, the trial court did not abuse its discretion by 

instructing the jury with that phrase. The court also did not abuse 

its discretion by declining to define the phrase further via 

defendant’s alternative jury instruction. Cf. State v. Requena, 41 P.3d 

862, 866 (Kan. Ct. App. 2001) (Kansas statutory term “‘incapable of 

giving consent’ is one which people of common intelligence and 

understanding can comprehend and is not a term that requires 

definition” by way of more specific jury instructions). 

¶26 Causbie cites case law from Massachusetts to support 

his argument that further instruction was required, pointing to the 

instruction given in Commonwealth v. LeBlanc, 921 N.E.2d 933, 938 

(Mass. 2010). We do not find Massachusetts law persuasive on this

issue, however, because Massachusetts applies a significantly 

different test for incapacity to consent than Arizona does. See, e.g., 

Commonwealth v. Urban, 853 N.E.2d 594, 596-97 (Mass. App. Ct. 2006) 

(reaffirming standard that victim is incapable of consent only if 

“wholly insensible . . . in a state of utter stupefaction” from alcohol),

citing Commonwealth v. Burke, 105 Mass. 376, 380-81 (1870).

The Supplemental Instruction

¶27 Causbie also argues that the state’s failure to address his

proposed supplemental instruction is an admission of error. Indeed, 

the answering brief argues only that the court did not err by refusing 

the proposed instruction, and does not address whether the court

erred by refusing the supplemental instruction. Yet we will affirm 

the court’s ruling if legally correct for any reason. State v. Perez, 141 

Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). And a court need not give 

a requested instruction if its substance is adequately covered by the 

other instructions. State v. Almeida, 238 Ariz. 77, ¶ 17, 356 P.3d 822, 

826 (App. 2015).
STATE v. CAUSBIE

Opinion of the Court

15

¶28 The effect of Causbie’s proposed supplemental 

instruction was to inform the jury that alcohol consumption in and 

of itself does not mean a victim cannot consent.11 The trial court did 

not disagree with the factual proposition, but ruled the instruction it 

gave adequately covered that possibility. We agree. By their terms, 

both the statute and the instruction given focused on incapacity to 

consent as a result of consuming alcohol, not alcohol consumption 

itself. See § 13-1401(A)(7)(b); cf. Solis, 75 M.J. at 764. The court’s 

instruction did not state or suggest that alcohol consumption by the 

victim is sufficient to prove the absence of consent. Cf. Solis, 75 M.J. 

at 764 (statute focuses on capacity to consent, not “subjective sense 

of how impaired is too impaired”). Nor did the prosecutor argue in 

closing that J.D. lacked capacity to consent merely because she had 

consumed alcohol.

12 Thus, the trial court did not abuse its discretion 

 

11 Causbie suggests, for the first time on appeal, that the 

prosecutor’s statement in closing argument “[h]e knew it was 

without her consent because she couldn’t drive home” improperly 

invited the jury to apply the “impaired to the slightest degree” 

standard from our driving under the influence (DUI) statute, A.R.S. 

§ 28-1381(A)(1), to the incapacity issue. But the prosecutor never 

mentioned the DUI standard, and in context this comment was just 

one of a long list of facts she used to argue incapacity to consent. 

Causbie has not shown fundamental, prejudicial error. See State v. 

Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005).

12The prosecutor did argue in closing that rapists often use 

alcohol because, among other reasons, “[a]lcohol renders a victim 

unable to resist.” But the broader context of the argument made 

clear to the jury that the state did not mean J.D. could not consent 

merely because she had consumed alcohol. For instance, the state 

argued the intercourse at issue “was without consent because of the 

amount of alcohol [J.D.] had to drink that night.” (Emphasis added). 

And as the prosecutor summarized her own closing argument: 

“[J.D.]’s inability to consent, [her] level of intoxication, her being 

passed out on the couch, [her] inability to resist, that does not equal 

consent.” (Emphasis added). Causbie also argued his position in 

closing, saying “It is not the law in this state that when somebody is 

drunk, you can’t have sex.” 
STATE v. CAUSBIE

Opinion of the Court

16

by declining the supplemental instruction. See Almeida, 238 Ariz. 77, 

¶ 17, 356 P.3d at 826. 

Disposition

¶29 We affirm Causbie’s conviction and sentence for the 

reasons stated.