ARS Code 13-1410 Interpretation

In State v. Simpson, 217 Ariz. 326,18, 173 P.3d 1027, 1029 (App. 2007) the court concluded the language in the molestation statute was "clear and unambiguous." 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 "the 'sexual interest' provision of 13-1407(E) is not an element of the offense." Id.19. 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(2).