In re Jerry C
In In re Jerry C., 214 Ariz. 270, 151 P.3d 553 (App. 2007), the juvenile's charges included two counts of sexual conduct with a minor involving victims who were both under the age of fifteen. Id. PP 2, 12.
During the adjudication hearing, the juvenile court ruled that the evidence on these counts did not "fit" the charge of sexual conduct with a minor, but it was sufficient for molestation, which the court found to be a lesser included offense. Id. P 3.
The juvenile appealed, arguing molestation is not a lesser included offense of sexual conduct with a minor, and because the state had not given proper notice of the molestation charges, his delinquency adjudications for those charges should be reversed. Id. P 5.
Division One of this court disagreed, concluding that, as alleged in the charging document, it was not possible for the juvenile to commit sexual conduct with a minor without also committing molestation of a child and, therefore, the juvenile court properly had treated molestation as a lesser included offense. Id. P 13.
Division One applied what it described as two separate tests for determining whether an offense is a lesser included offense of another: the "same elements" test promulgated in Blockburger and the "charging documents" test. Id. P 7.
Applying the same elements test, the court considered the statutory elements for the two offenses in determining whether one could commit sexual conduct with a minor without also committing molestation of a child. Id. P 9.
It concluded that molestation could not be a lesser included offense of sexual conduct under the same elements test because molestation involves only victims under the age of fifteen, whereas sexual conduct can be committed against a victim under the age of eighteen. Id. P 10; see also A.R.S. 13-1405 (sexual conduct), 13-1410 (molestation).