LAW OFFICE OF TAMARA D. BROOKS-PRIMERA 2111 E. Baseline Suite A-4 Tempe, Arizona 85283 (602) 705-8890 Tamara D. Primera, Bar #011811 Attorney for Defendant Xxxx IN THE PHOENIX MUNICIPAL COURT STATE OF ARIZONA - COUNTY OF MARICOPA STATE OF ARIZONA, ) ) No. CR Plaintiff, ) ) MEMORANDUM IN SUPPORT OF: ) MOTION FOR JUDGMENT OF v. ) ACQUITTAL, OR IN THE ALTERNATIVE ) MOTION FOR NEW TRIAL ) Xxxx Xxxx, ) (Assigned to the Honorable ) KARYN KLAUSNER) Defendant. ) ) The defendant, by and through his attorney undersigned, hereby files this Supplemental Memorandum in Support of his Motion for Judgment of Acquittal pursuant to Rule 20(b) of the Arizona Rules of Criminal Procedure, or in the alternative, for a New Trial pursuant to Rule 24.1(c)(4), in this matter. Mr. Xxxx submits that the Court erred when it determined  4-244.9 was a strict liability statute, and asks the Court to reverse that ruling and find him not guilty. In the alternative, he asks for a new trial. RESPECTFULLY SUBMITTED this 30th day of November, 1998. LAW OFFICE OF TAMARA D. BROOKS-PRIMERA By Tamara D. Primera MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND: This Court sat as the trial judge on October 15, 1998, in the case sub judice. For this reason, Mr. Xxxx incorporates by reference the evidence adduced at that trial, as well as those facts highlighted in his initial Memorandum filed October 27, 1998, with this Court. LEGAL ARGUMENT: Initial Matters. Mr. Xxxx set forth both the law regarding a Motion for Judgment of Acquittal and a Motion for New Trial in his original Motion. For this reason, he does not repeat it here and asks the Court to incorporate it by reference herein. Mr. Xxxx is entitled to a judgment of acquittal, or in the alternative, a new trial. 1. A.R.S.  4-244.9 is not a strict liability offense. This Court apparently based its' ruling on A.R.S.  13- 202(B): If a statute defining an offense does not expressly prescribe a culpable mental state that is sufficient for commission of the offense, no culpable mental state is required for the commission of such offense, and the offense is one of strict liability unless the proscribed conduct necessarily involves a culpable mental state. However, this statute does not abrogate the common law requirement that criminal cases are presumed to require mens rea. It is well settled in Arizona that while it is within the power of the states to make certain offenses criminal regardless of intent, "the rule, barring a few exceptions, is that wrongful intent or mens rea is required before there can be criminal punishment. State v. Mincey, 115 Ariz. 472, 478, 566 P.2d 273 (1977) citing State v. Cutshaw, 7 Ariz. App. 210, 220, 437 P.2d 962 (1968). These exceptions occur only when the legislature has expressly so determined and where the statute is silent, the Court will infer scienter from the statutory language and from legislative intent. Id; accord State v. Williams, 144 Ariz. 487, 488, 698 P.2d 732 (1985). It is undisputed that the statute does not specifically prescribe a mental state. A.R.S.  4-244.9. The question then is whether  4-244.9 is a statute which is an exception to the general rule requiring mens rea (one that the legislature has expressly, by words of statute and legislative intent declared to be such), or is it required by constitutional principles (one of the general rule) to require a mental state. The answer is the latter and not the former. Mr. Xxxx stated in his initial brief that an interpretation of the mens rea for  4-244.9 is one of first impression. Further research shows this to be inaccurate. In fact, the Arizona Supreme Court squarely addressed the issue of whether a defendant's knowledge is a defense in Spitz v. Municipal Court of the City of Phoenix, 127 Ariz. 405, 621 P.2d 911 (1980) (attached hereto for the Court's convenience). The Spitz Court was faced with a licensee who relied on the identification of an individual that she was of legal age that later turned out to be fictitious. The defendant sought to introduce evidence of ignorance or lack of knowledge based on the belief that the individual was of age, evidence which the trial court, apparently refused to consider. The Supreme Court held that although the statute, undisputed as it is in this case, precribed no mental state, "[i]t was error for the trial court to deny Spitz the right to show ignorance or lack of knowledge as a defense." Id. at 408. The issue of knowledge, mistake or ignorance was thus clearly decided in Spitz to constitute a defense to  4-244.9. Mr. Xxxx's lack of knowledge, as demonstrated by the evidence and the circumstances surrounding this incident, was the entire issue in this case. Mr. Xxxx therefore respectfully requests this Court, having erroneously found  4-244.9 a strict liability offense, to either grant Mr. Xxxx a judgment of acquittal (Mr. Xxxx submits that the issue of his lack of knowledge was clear in the trial), or grant him a new trial. 2. The lack of knowledge is an element of the offense. While on the facts of this case, Mr. Xxxx believing that his innocence is clear, it is irrelevant which "defense" standard is applied to the statute, a discussion of the standard appears mandated by the confusion in this area. As this Court is well aware, different standards exist when a defendant raises a defense. In some instances, such as driving with a suspended licence, a rebuttable presumption of knowledge is created once the state demonstrates notice. State v. Williams, 144 Ariz. 487, 698 P.2d 732 (1985). On the other hand under some statutes, if there is credible evidence of a certain defense, then the state must prove beyond a reasonable doubt the defense is not true. See State v. Duarte, 165 Ariz. 230, 798 P.2d 368 (1990)(holding burden remains on state to prove affirmative defense of self-defense not true); State v. Superior Court in and for County of Yavapai, 179 Ariz. 343, 878 P.2d 1381 (App. 1994) (holding affirmative defense in  28-692(a)(2) charge required state to prove beyond reasonable doubt that not true). Thus, the question becomes #1. is knowledge an element of the statute; #2. is knowledge a rebuttable presumption of some type; or #3. once credible evidence of knowledge is established, must the state show it did not exist beyond a reasonable doubt? Mr. Xxxx submits that the first option makes the most sense under the general rule requiring mens rea for a conviction. He cites this Court to State v. Williams, supra, for support of this proposition. The Williams court addressed the long troubling issue of whether the state must prove knowledge for a conviction of driving on a suspended license. It also directly addressed  13- 202(B), as applied to the suspended license statute because it had no knowledge requirement, and held that the state must prove that a defendant knew or should have known that his license was suspended. State v. Williams. 144 Ariz. at 488-489. Following this decision, the Court further held in State v. Jennings, 150 Ariz. 90, 722 P.2d 258 (1986) that compliance with  28-446(B) created a rebuttable presumption of knowledge, thereby placing the burden on the defendant to demonstrate lack of notice/knowledge. It is this evolution of the suspended license case law that shows this Court that knowledge must be an element of the offense. Williams, in interpreting a statute much like the one sub judice finds that such knowledge is a requisite element. The later decision of Jennings reaffirms this holding but allows for a presumption of knowledge upon the proper showing of compliance with  28-446. It is only the existence of a specific statute that changes the state's proof. No such statute exists in the matter before the court. Thus, option #2 is unavailable to the Court. This leaves then the question of option #3. Since the statute is silent on mens rea, naturally it is silent on this issue as well. The case law that creates these changing of burden (to proving beyond a reasonable doubt that the defense is not true) issues springs from statutory provisions. For example, the Duarte decision is based on  13-404, the justification statutes. State v. Duarte, supra. Likewise, the Yavapai County decision springs directly from the language of the DUI statutes and the courts' ensuring that  28-692(a)(2) does not improperly shift the burden to the defense. State v. Superior Court in and for Yavapai County, supra. Clearly no such statute exists in the matter before the Court. Therefore, option #3 appears to be inapplicable. The language in Spitz notwithstanding, it is apparent that knowledge must be an element of  4-244.9. Any other result would either run afoul of the constitutional prohibition against improper burden shifting, add an additional and unwarranted burden to the state's proof, and is not supported by any specific case law. The State must accordingly prove that Mr. Xxxx knew that the "cub" was under the legal drinking age: a fact that was established to be quite the opposite during the trial. CONCLUSION: Based on the foregoing, the trial and the original Memorandum in this case, Mr. Xxxx requests the Court to set aside his guilty verdict, and enter a judgment of acquittal. While Mr. Xxxx believes that the evidence clearly established his innocence, or at a minimum, the failure to establish his guilt beyond a reasonable doubt, he asks the Court for a new trial in the alternative, as the Court deems appropriate. RESPECTFULLY SUBMITTED this 30th day of November, 1998. LAW OFFICE OF TAMARA D. BROOKS-PRIMERA By Tamara D. Primera Copy of the foregoing Motion mailed/delivered this 30th day of November, 1998, to: City of Phoenix Prosecutor 400 North 7th Street Phoenix, AZ 85006 By Tamara D. Primera