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Fushek v. State - 6/14/2007

Arizona Court of Appeals Division One Holds that Potential for Mandatory Registration as a Sex Offender Does Not Entitle Defendant to Trial by Jury for Misdemeanors Allegedly Committed With Sexual Motive.

Defendant was charged with misdemeanor assault, indecent exposure and contributing to the delinquency of a minor. The charges arose out of Defendant’s service as a Catholic pastor and leader of a church youth organization. Pursuant to A.R.S. § 13-118, the State alleged a sexual motivation with respect to each of the charges. Because of the sexual motive allegations, Defendant may be required to register as a convicted sex offender pursuant to A.R.S. § 13-3821(C) if found guilty. The Justice Court ruled that the indecent exposure count would be tried to a jury, but that the other charges were not jury eligible and would be tried to the judge. Defendant filed a special action in Superior Court requesting a jury trial on all counts in light of the potential consequence of a mandatory sex offender registration. The Superior Court accepted jurisdiction and ruled that Defendant was entitled to a trial by jury on all charges. The State appealed, arguing that Defendant was entitled to a jury trial for the indecent exposure charge only.

The Court of Appeals reversed the Superior Court and held that Defendant was not entitled to a jury trial for the misdemeanor charges of assault and contributing to the delinquency of a minor. The right to trial by jury, as guaranteed by the Arizona Constitution, preserves the right as it existed at the time Arizona adopted its Constitution. Under the first prong of the test established by Derendal v. Griffith, 209 Ariz. 416 (2005), to determine whether Defendant is entitled to a trial by jury, the charges of assault and contributing to the delinquency of a minor do not have jury-eligible common law antecedents. Under the second prong of that test, the charges are not sufficiently serious to give a right to trial by jury because 1) they each carry a maximum jail term of less than six months, and 2) the potential consequence of being forced to register as a sex offender is not “uniformly applied” as contemplated by Derendal because the judge retains discretion whether to order a convicted defendant to register under A.R.S. § 13-3821(C) upon conviction.

Presiding Judge Winthrop wrote the opinion for the panel and was joined by concurring Judges Ehrlich and Weisberg.

Posted On: 6/22/2007