IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Appellee, v. CRAIG ALAN NOCHUMSON, Appellant. No. 2 CA-CV 2015-0102 Filed July 31, 2015 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County No. A20140036001 The Honorable Carmine Cornelio, Judge REVERSED AND REMANDED COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Appellee The Law Offices of David Michael Cantor, Phoenix By Stephen Garcia Counsel for Appellant STATE v. NOCHUMSON Decision of the Court MEMORANDUM DECISION Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Brammer1 concurred. H O W A R D, Judge: ¶1 Appellant Craig Nochumson appeals from the trial court’s denial of his petition to terminate his sex offender registration. The state has conceded that the elements of Nochumson’s underlying Illinois conviction do not necessarily prove the corresponding Arizona offense and has noted that this court, in its discretion, could review the issue despite Nochumson’s failure to argue it below. We therefore reverse the trial court’s ruling and remand for further proceedings consistent with this decision. Factual and Procedural Background ¶2 In 2004, Nochumson was convicted of attempted indecent solicitation of a child in Illinois pursuant to 720 Ill. Comp. Stat. Ann. 5/11-6. As part of his sentence, he was required to register with the Illinois Sex Offender Registry. Later that same year, Nochumson moved to Arizona and, in accordance with A.R.S. § 13-3821(A), registered as a sex offender. ¶3 In 2014, Nochumson received a notice from the State of Illinois that he no longer was required to register as a sex offender. He then filed a petition in the trial court to terminate the registration requirement in Arizona. After a hearing, the court denied Nochumson’s petition, finding that, based on the arguments presented, a violation of 720 Ill. Comp. Stat. Ann. 5/11-6 would constitute a violation of A.R.S. § 13-3554. See § 13-3821(A). 1 The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court. 2 STATE v. NOCHUMSON Decision of the Court Nochumson timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-2101(A)(1) and 12-120.21(A)(1). Discussion ¶4 Although the issue was not presented to the trial court or raised in Nochumson’s opening brief, in the course of our review we ordered supplemental briefing on the issue of whether a violation of 720 Ill. Comp. Stat. Ann. 5/11-6 would necessarily be a violation of § 13-3554 based on the applicable definitions of “sexual conduct” and what effect, if any, that issue should have on this appeal. In his supplemental brief, Nochumson argued that we should address the issue, despite his failure to raise it below, as fundamental error, citing State v. Henderson, 210 Ariz. 561, 115 P.3d 601 (2005). But he argued previously that this case was civil. 2 Fundamental error review “is sparingly applied in civil cases.” Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 420, 758 P.2d 1313, 1322 (1988); see also Dawson v. Withycombe, 216 Ariz. 84, n.20, 163 P.3d 1034, 1056 n.20 (App. 2007) (declining fundamental error review in civil case when appellant “failed to provide any substantive argument in support of applying fundamental error review to this case”). ¶5 In the state’s supplemental brief, it notes this court could, “in the interests of justice,” reverse the trial court’s order, despite the waiver, and the state then submits the issue to the discretion of the court.3 See Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 17, 160 P.3d 223, 228 (App. 2007) (issues not raised below 2This case originally was assigned a criminal case number, but Nochumsom implied in his opening brief he was appealing a civil judgment. After we requested supplemental briefing on the matter, the parties agreed the case was civil in nature. The appeal then was stayed pending the trial court’s modification of the judgment to include language of finality pursuant to Rule 54(c), Ariz. R. Civ. P., and it was re-numbered as a civil case. 3We commend the state on its candor with the court and its pursuit of justice. 3 STATE v. NOCHUMSON Decision of the Court waived for review on appeal). The rule that this court may, in its discretion, decline to address issues raised for the first time on appeal is procedural and not jurisdictional. Id. It is “for the benefit of the party against whom the defense is newly asserted on appeal and is intended to prevent surprise.” Stokes v. Stokes, 143 Ariz. 590, 592, 694 P.2d 1204, 1206 (App. 1984). An exception to this rule exists to “redress a wrong . . . where the facts of a particular case so warrant and the question is one of substantive law presenting no dispute as to the facts.” Id. ¶6 The facts in this case are undisputed. The issue presented is one of substantive law. Despite Nochumson’s failure to bring it to the trial court’s attention, we address the issue for the first time on appeal to “redress a wrong.” Id. ¶7 Nochumson now argues that he is not required to register as a sex offender in Arizona because “differing acts that could constitute” a violation of 720 Ill. Comp. Stat. Ann. 5/11-6 “would not necessarily be” a violation of § 13-3554. The state concedes he is correct and “if those [differing] definitions had been presented to the trial court, it should have granted relief.” “Whether the trial court properly applied § 13-3821(A) is a question of law that we review de novo.” State v. Kuntz, 209 Ariz. 276, ¶ 5, 100 P.3d 26, 28 (App. 2004). ¶8 Pursuant to § 13-3821(A)(13), a person living in Arizona who was convicted in another jurisdiction of a crime must register as a sex offender here if: (1) they are “required to register by the convicting or adjudicating jurisdiction,” or, as relevant here, (2) the underlying offense, “if committed in this state[,] would be a violation or attempted violation of [§ 13-3554].” To determine whether the foreign conviction would constitute a violation of § 13-3554, the elements of the foreign offense at the time the crime was committed necessarily must prove the Arizona offense that was in effect at that same time. See Kuntz, 209 Ariz. 276, ¶¶ 5, 9, 100 P.3d at 28-29. Put another way, a person is not required to register if he could violate the foreign statute but not violate the corresponding Arizona statute. Id. ¶ 12. 4 STATE v. NOCHUMSON Decision of the Court ¶9 In Illinois, a person commits indecent solicitation of a child, as relevant here, if he “knowingly solicits a child or one whom he . . . believes to be a child to perform an act of . . . sexual conduct.” 720 Ill. Comp. Stat. Ann. 5/11-6(a). Under Illinois law, “Sexual conduct” means any knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus, or breast of the victim or the accused, or any part of the body of a child under 13 years of age, or any transfer or transmission of semen by the accused upon any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the victim or the accused. 720 Ill. Comp. Stat. Ann. 5/11-0.1. ¶10 In Arizona, “[a] person commits luring a minor for sexual exploitation by offering or soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor.” § 13-3554(A). “Sexual conduct” under the relevant chapter is defined as actual or simulated . . . [s]exual intercourse, including genital-genital, oral-genital, analgenital or oral-anal, whether between persons of the same or opposite sex[, p]enetration of the vagina or rectum by any object except when done as part of a recognized medical procedure[, m]asturbation . . . [, s]adomasochistic abuse . . . [or d]efecation or urination for the purpose of sexual stimulation of the viewer. A.R.S. § 13-3551(10). 5 STATE v. NOCHUMSON Decision of the Court ¶11 Consequently, Nochumson could have violated 720 Ill. Comp. Stat. Ann. 5/11-6 in several ways that would not have constituted a violation of § 13-3554. Cf. State v. Yegan, 223 Ariz. 213, ¶ 16, 221 P.3d 1027, 1032 (App. 2009) (noting Chapter 35.1’s definition of “‘sexual conduct’ for offenses related to sexual exploitation of children” narrower than definition found in Chapter 35 “for crimes related to obscenity”). Thus, under § 13-3821(A), Nochumson was not required to register as a sex offender. See Kuntz, 209 Ariz. 276, ¶ 12, 100 P.3d at 30. Disposition ¶12 For the foregoing reasons, we reverse the trial court’s order and remand to allow the trial court to take any steps necessary to terminate Nochumson’s registration requirement. 6