State v. Buffington ( 2021 )


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  •                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    CHARLES BUFFINGTON, Appellant.
    No. 1 CA-CR 19-0449
    FILED 6-15-2021
    Appeal from the Superior Court in Yavapai County
    No. P1300CR201700322
    The Honorable Tina R. Ainley, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Casey Ball
    Counsel for Appellee
    The Zickerman Law Office PLLC, Flagstaff
    By Adam Zickerman
    Counsel for Appellant
    STATE v. BUFFINGTON
    Decision of the Court
    MEMORANDUM DECISION
    Judge Michael J. Brown delivered the decision of the Court, in which
    Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
    B R O W N, Judge:
    ¶1            Charles Buffington appeals the superior court’s judgment of
    guilt and sentencing on various offenses related to sex trafficking,
    prostitution, and pandering. For the following reasons, we affirm.
    BACKGROUND
    ¶2             In November 2015, Buffington and his friend William Wilson,
    together with two females, S.F. and K.A., met at a hotel and engaged in
    sexual activity. At the time, K.A. was 16 years old. Buffington and Wilson
    later persuaded S.F. and K.A. to work as prostitutes, posting provocative
    pictures of S.F. and K.A. on websites commonly used to solicit “johns” and
    arranging for prostitution “dates” using discreet phone applications. S.F.
    and K.A. engaged in frequent acts of prostitution under Buffington and
    Wilson’s direction for approximately seven months.
    ¶3            In September 2016, an adult victim (S.C.) informed the police
    about this prostitution operation. The State charged Buffington with two
    counts of sex trafficking (Counts 1 and 3), two counts of conspiracy to
    commit sex trafficking (Counts 2 and 4), child prostitution (Count 5),
    conspiracy to commit child prostitution (Count 6), three counts of
    conspiracy to commit receiving earnings of a prostitute (Counts 7–9), one
    count of receiving earnings of a prostitute (Count 10), conspiracy to commit
    transporting persons for purpose of prostitution or other immoral purpose
    (Count 11), and four counts of conspiracy to commit pandering (Counts 12–
    15).
    ¶4           At trial, the superior court granted Buffington’s motion for
    judgment of acquittal on Count 8 and dismissed Count 15 on the State’s
    motion. The jury acquitted Buffington of Counts 1 and 3 but convicted him
    of the remaining charges. The court sentenced Buffington to an aggregate
    prison term of 19.5 years and he timely appealed.
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    STATE v. BUFFINGTON
    Decision of the Court
    DISCUSSION
    A.    Mens Rea for Child Prostitution
    ¶5            We review issues of statutory interpretation de novo. State v.
    Dann, 
    220 Ariz. 351
    , 369, ¶ 96 (2009). We review the superior court’s denial
    of a jury instruction for an abuse of discretion, but we review de novo
    whether jury instructions accurately state the law. State v. Johnson, 
    212 Ariz. 425
    , 431, ¶ 15 (2006).
    ¶6             As stated in A.R.S. § 13-3212(A)(1),1 a person commits child
    prostitution by “knowingly . . . causing any minor to engage in
    prostitution.” Minor is defined as “a person under the age of eighteen
    years.” A.R.S. § 1-215(21). The superior court instructed the jury that “[t]he
    crime of Child Prostitution requires proof that the defendant knowingly
    caused a minor to engage in prostitution,” mirroring § 13-3212(A)(1). The
    court also told the jury “[i]t is not a defense to the charges involving a Minor
    or a Child that the defendant did not know or had no reason to know the
    age of the Minor or Child.”
    ¶7             Buffington argues the “knowingly” mental state contained in
    § 13-3212(A)(1) necessarily applies to each element of the offense. He
    contends the superior court erred by (1) denying his request to instruct the
    jury the State was required to prove he “knew or should have known” K.A.
    was a minor for Counts 5 and 6, and (2) sentencing him to consecutive
    prison terms on those counts because the State failed to prove he knew
    K.A.’s age.
    ¶8             This issue, however, was recently addressed by this court in
    State v. Hood, 
    251 Ariz. 57
     (App. 2021). In Hood, we held that the crime of
    child prostitution does “not require proof that a defendant knew the victim
    was a minor at the time of the sexual conduct.” Id. at 59, ¶ 1. We reasoned
    that the plain language of § 13-3212(A)(1) “only requires proof that the
    defendant intentionally or knowingly engaged in sexual conduct with the
    1       When Buffington committed these crimes, § 13-3212 used the term
    “child prostitution” to describe the offense. Effective August 9, 2017, the
    legislature amended the statute and changed the name of the offense to
    “child sex trafficking.” 2017 Ariz. Sess. Laws, ch. 167, § 10 (1st Reg. Sess.).
    Because the amendment did not substantively alter the statutory provisions
    material to this decision, we cite the current version of the statute. For
    consistency with the record, however, we use “child prostitution” to
    describe the offenses in this case.
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    STATE v. BUFFINGTON
    Decision of the Court
    victim,” and “[h]ad the legislature intended to require the State to prove a
    defendant knew the victim was a minor, . . . it would have said so explicitly
    in the statute.” Id. at 60, ¶ 9 (citing State v. Gamez, 
    227 Ariz. 445
    , 450, ¶ 30
    (App. 2011)). We see no reason to depart from this analysis.
    ¶9            Because knowledge of a victim being a minor is not an
    element of § 13-3212(A)(1), the superior court’s jury instructions accurately
    stated the law. Likewise, the court did not err in imposing consecutive
    sentences on Counts 5 and 6.
    B.    Racial Composition of the Jury
    ¶10            Buffington, who is African American, argues he was “unduly
    prejudiced by an all-white jury pool.” We review constitutional challenges
    de novo, Dann, 220 Ariz. at 373, ¶ 127, but we review arguments raised for
    the first time on appeal for fundamental, prejudicial error, State v. Escalante,
    
    245 Ariz. 135
    , 142, ¶ 21 (2018).
    ¶11           We first note that transcripts of the voir dire proceedings were
    not made part of the appellate record, and the available record does not
    disclose the racial composition of the venire. “It is the duty of counsel who
    raise objections on appeal to see that the record before us contains the
    material to which they take exception. Where matters are not included in
    the record on appeal, the missing portions of the record will be presumed
    to support the action of the trial court.” State v. Zuck, 
    134 Ariz. 509
    , 512–13
    (1982).
    ¶12             During voir dire, Buffington objected “to the jury pool as
    having no minorities” and “nary a black person at all.” The superior court
    first clarified that “[t]here was, in fact, one who asked to be excused for
    cause and a number of other Hispanics, a couple of who asked to be excused
    for cause, so I did make note of that.” The court also pointed out that the
    minority venire members were excused because the jurors “said they
    couldn’t be fair and impartial” and neither party objected. Buffington did
    not move to strike the panel, nor did he raise a challenge under Batson v.
    Kentucky, 
    476 U.S. 79
     (1986).
    ¶13           Buffington does not challenge the superior court’s decision to
    excuse various minority venire members for cause. Regardless, the court
    acted within its discretion by dismissing jurors who could not be fair and
    impartial. See Ariz. R. Crim. P. 18.4(b) (stating that the superior court must
    excuse a potential juror if there is a “reasonable ground to believe” the juror
    “cannot render a fair and impartial verdict”); State v. Medina, 
    232 Ariz. 391
    ,
    403, ¶ 38 (2013) (striking a prospective juror for cause is appropriate if the
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    STATE v. BUFFINGTON
    Decision of the Court
    juror’s opinions would substantially impair the performance of the juror’s
    duties).
    ¶14           Despite not raising a Batson challenge at trial, on appeal
    Buffington relies on Batson to contend he was unduly prejudiced by the
    composition of the venire because “peremptory challenges may [not] be
    used to discriminate against and eliminate potential jurors on the basis of
    sex, race, ethnicity, or religion.” We review his argument only for
    fundamental, prejudicial error. See Escalante, 245 Ariz. at 142, ¶ 21.
    ¶15            A peremptory strike to exclude a potential juror solely
    because of race violates the Equal Protection Clause of the Fourteenth
    Amendment. Batson, 
    476 U.S. at 89
    . A Batson challenge is composed of
    three steps: (1) the defendant must make a prima facie showing of racial
    discrimination; (2) if such a showing is made, the prosecutor must provide
    a race-neutral reason for the strike; (3) if the prosecutor provides a facially
    neutral basis, the “court must determine whether ‘the defendant has
    established purposeful discrimination.’” State v. Newell, 
    212 Ariz. 389
    , 401,
    ¶ 53 (2006) (citation omitted).
    ¶16            First, Buffington cites no evidence that the State peremptorily
    struck any minority venireperson, much less that the prosecutor did so for
    a discriminatory purpose. Buffington therefore fails to establish a prima
    facie case that the prosecutor violated Batson by excluding a juror on the
    basis of race. See 
    id.
    ¶17            Second, to the extent Buffington argues he was prejudiced
    solely because the empaneled jury had no minority members, our supreme
    court has rejected that proposition. See State v. Tucker, 
    118 Ariz. 76
    , 80 (1978)
    (holding that “[t]he fact that appellant was tried by an all[-]white jury does
    not, in itself, give grounds for a claim of error”). Moreover, “[t]he
    defendant is not entitled to a jury that is composed of the exact proportion
    of his race as exists in the general population. All that is required is a jury
    selected by a process from which members of his [or her] race are not
    systematically excluded.” State v. Williams, 
    111 Ariz. 175
    , 178 (1974).
    ¶18             Buffington neither alleges nor demonstrates that Yavapai
    County engages in systematic exclusion of minority jurors when selecting
    its juries. See 
    id.
     Nonetheless, he asserts that racial underrepresentation in
    the jury selection process violated his right to a fair and impartial jury.
    ¶19          The Sixth Amendment right to a fair and impartial jury
    requires that a venire consist of a representative cross-section of the
    community. See Duren v. Missouri, 
    439 U.S. 357
    , 358–59 (1979). A defendant
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    STATE v. BUFFINGTON
    Decision of the Court
    must meet a three-prong test to establish a prima facie violation of the fair-
    cross-section requirement, proving: (1) the group alleged to be excluded is
    “distinctive” in the community, (2) the group’s representation “in venires
    from which juries are selected is not fair and reasonable” in proportion to
    the community, and (3) the underrepresentation results from “systematic
    exclusion” in the jury-selection process. 
    Id. at 364
    . Buffington makes no
    showing at all under the second and third prongs. See 
    id.
     Thus, we reject
    Buffington’s contention that underrepresentation in his trial violated his
    right to a fair jury. See id.; see also State v. Doerr, 
    193 Ariz. 56
    , 65, ¶ 40 (1998)
    (“The Sixth Amendment guarantees a fair and impartial jury, but not one
    having a specific makeup.”).
    ¶20            Finally, Buffington’s general assertion that the jurors were
    inherently biased, without citing any supporting evidence from the record,
    is insufficient to establish prejudice. See State v. Tison, 
    129 Ariz. 526
    , 535
    (1981) (“Unless there are objective indications of jurors’ prejudice, we will
    not presume its existence.”); State v. Arnett, 
    119 Ariz. 38
    , 50 (1978) (“[U]nless
    the record affirmatively shows that . . . a fair and impartial jury was not
    secured, the conviction must be affirmed.”).
    CONCLUSION
    ¶21            We affirm Buffington’s convictions and sentences.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
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