State v. Brock ( 2020 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee/Cross-Appellant,
v.
RONALD MARVIN BROCK, Appellant/Cross-Appellee.
No. 1 CA-CR 17-0455
No. 1 CA-CR 17-0466
(Consolidated)
FILED 3-12-2020
Appeal from the Superior Court in Yavapai County
No. P1300CR201600850
The Honorable Jeffrey G. Paupore, Judge Pro Tempore (Retired)
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By Michael P. McGill
Co-counsel for Appellee/Cross-Appellant
Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Co-counsel for Appellee/Cross-Appellant
Craig Williams Attorney at Law PLLC, Prescott Valley
By Craig Williams
Counsel for Appellant/Cross-Appellee
STATE v. BROCK
Opinion of the Court
OPINION
Judge Randall M. Howe delivered the opinion of the Court, in which Judge
Maria Elena Cruz joined. Presiding Judge Diane M. Johnsen 1 concurred in
part and dissented in part.
H O W E, Judge:
¶1 Ronald Marvin Brock appeals his convictions and sentences
for molestation of a child, sexual exploitation of a minor, and possession of
drug paraphernalia. He asserts that the statute proscribing sexual
exploitation of a minor is unconstitutional and contends that the trial court
erroneously denied his requested jury instruction and motion for acquittal.
The State also appeals, arguing that the court erred in sentencing Brock to
concurrent terms of imprisonment.2
1 Judge Johnsen was a sitting member of this Court when the matter
was assigned to this panel of the Court. She retired effective February 28,
2020. In accordance with the authority granted by Article VI, Section 3, of
the Arizona Constitution and pursuant to A.R.S. § 12–145, Chief Justice of
the Arizona Supreme Court has designated Judge Johnsen as a judge pro
tempore in the Court of Appeals, Division One, for the purpose of
participating in the resolution of cases assigned to this panel during her
term in office.
2 Although a defendant will normally file a notice of appeal from his
conviction and sentence before the State files a notice of cross-appeal
seeking to correct a trial court error, in this case the State filed its notice of
appeal before Brock filed his notice of appeal. To avoid confusion, this
Court will use the term “appeal” for both parties. The filing anomaly does
not affect our analysis of Brock’s or the State’s issues on appeal.
Brock argues, however, that this Court should dismiss the State’s
appeal as untimely because it filed its notice of appeal before he filed his.
But nothing precludes the State from filing a notice of appeal challenging
an adverse legal ruling or an allegedly illegal sentence regardless whether
or when a defendant files a notice of appeal challenging a conviction or
sentence, see A.R.S. § 13–4032(3), (5), as long as it files the notice within 20
2
STATE v. BROCK
Opinion of the Court
¶2 We affirm Brock’s convictions and sentences it part but
remand for resentencing of his child-molestation convictions because those
sentences must be consecutive to each other rather than concurrent. Under
the plain language of A.R.S. § 13–705(M), a defendant who commits two
counts of child molestation upon the same victim must receive mandatory
consecutive sentences, an outcome that is also consistent with the purpose
of the dangerous crimes against children statute.
FACTS AND PROCEDURAL HISTORY
¶3 We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013). In 2011, the
13-year-old victim frequently webcast herself singing and playing the piano
on a public website. Brock visited that website, viewed the victim’s
performances and contacted her online. Initially, he identified himself as a
man in his early 20s, although he was actually in his mid-30s, and the victim
likewise misrepresented her age, claiming to be 19 years old.
¶4 During the weeks that followed, Brock and the victim
regularly communicated online, primarily discussing music. About six
weeks after their initial contact, the victim revealed her true age to Brock.
Undeterred, Brock continued to contact the victim, talked to her about
sexual topics, and encouraged her to engage in online sexual activity with
him.
¶5 For the next 18 months, Brock and the victim used webcams
to engage in sexual activity with each other online, including mutual
masturbation. Over time, the relationship distressed the victim, and she
repeatedly tried to end it. Each time she told Brock she wanted out of the
relationship, he “lashed out” and threatened to reveal the victim’s sexual
activity to her family, post nude pictures of her online, and harm himself,
her, or her family. Eventually, however, the victim told her father what had
happened, and he notified the police.
¶6 Officers interviewed Brock and executed a search warrant on
his home. During the interview, Brock readily acknowledged that he had
engaged in an online relationship with the victim but claimed that he had
days of the pronouncement of sentence, Ariz. R. Crim. P. 31.2(a)(2)(A). The
State’s notice of appeal was timely because it filed the notice one week after
the sentence was pronounced. Brock had sufficient notice of the State’s
appeal, and we have no reason to dismiss it.
3
STATE v. BROCK
Opinion of the Court
ended it once he learned her true age. When pressed, however, Brock
eventually admitted that he had maintained a sexual relationship with the
victim even after he had found out she was a minor. During their search of
Brock’s home, officers seized various electronics as well as small plastic
bags of marijuana, pipes, and bongs. Subsequent forensic analysis of the
electronics revealed a document titled “[Victim’s] Countdown Clock,”
which identified the victim’s eighteenth birthday and calculated the days
until she reached the age of majority. Police also found numerous screen
images showing the victim naked, many of which also included an image
from a small camera feed in the lower right-hand corner showing Brock as
he viewed the victim’s webcast. The State charged Brock with one count of
continuous sexual abuse of a child, two counts of molestation of a child, one
count of sexual exploitation of a minor, one count of possession or use of
marijuana, and one count of possession of drug paraphernalia.
¶7 Before trial, Brock moved to dismiss the sexual exploitation of
a minor charge, asserting that A.R.S. § 13–3553 infringes upon protected
expression in violation of the First Amendment by criminalizing “mere
nudity” and unspoken “thoughts.” After hearing argument, the trial court
denied the motion, finding that one of the seized images (Exhibit 19), which
was found in a folder Brock had labeled “[Victim]-Sexy,” focused directly
on the victim’s pubic area and therefore “likely” constituted “child
pornography” rather than “mere nudity.”
¶8 At trial, defense counsel acknowledged in his opening
statement that Brock had engaged in online sexual activity with the victim
even after he had learned she was only 13 years old. Defense counsel
admitted that Brock had threatened the victim after she had repeatedly
tried to “shut[] him down[.]” Nonetheless, defense counsel denied that
Brock had “caused” the victim to engage in the sexual activity and argued
that they had “clearly” shared a “consensual” sexual relationship. After the
State rested, Brock moved for a judgment of acquittal pursuant to Arizona
Rule of Criminal Procedure 20. “[V]iewing the evidence in the light most
favorable to the prosecution,” the trial court found that substantial evidence
supported the charges and denied the motion. During closing argument,
Brock argued extensively the theory that Exhibit 19 was merely a nude
photo rather than child pornography.
¶9 The jury acquitted Brock of continuous sexual abuse and
possession or use of marijuana but convicted him of the remaining charges.
The trial court sentenced him to a mitigated term of 13 years’ imprisonment
on one molestation of a child count; a concurrent, mitigated term of 10 years
on the other molestation of a child count; a consecutive, mitigated term of
4
STATE v. BROCK
Opinion of the Court
10 years for sexual exploitation of a minor; and a 10-day period of
unsupervised probation for possession of drug paraphernalia, to
commence upon his release from prison. The State timely appealed the trial
court’s imposition of concurrent sentences for Brock’s child-molestation
convictions. Brock timely appealed his convictions and sentences.
DISCUSSION
1. Constitutional Validity of A.R.S. § 13–3553
¶10 Brock argues that the trial court erred by denying his motion
to dismiss the sexual exploitation of a minor count because the statute,
A.R.S. § 13–3553, is unconstitutionally overbroad.3 We review the denial of
a motion to dismiss an indictment for an abuse of discretion, State v. Pecard,
196 Ariz. 371, 376 ¶ 24 (App. 1999), but review de novo whether a law is
unconstitutionally overbroad, State v. Boehler, 228 Ariz. 33, 35 ¶ 4 (App.
2011). “A statute is unconstitutionally over broad when it prohibits or
deters conduct protected by the First Amendment.” State v. Carrasco, 201
Ariz. 220, 224 ¶ 14 (App. 2001). We presume a statute is constitutional, and
the challenging party “bears the burden of establishing its invalidity.”
Boehler, 228 Ariz. at 35 ¶ 4. “[C]ourts will invalidate a statute that reaches a
substantial amount of constitutionally protected conduct,” even if it also
has lawful applications. Id. at ¶ 5 (internal quotation omitted). Nonetheless,
a statute is unconstitutionally overbroad only if “its deterrent effect on
legitimate expression [is] not only real, but substantial as well.” State v.
Ochoa, 189 Ariz. 454, 459 (App. 1997) (internal quotation omitted).
¶11 As Brock notes, the right of freedom of expression enshrined
in the First Amendment outweighs the State’s limited interest in regulating
private in-home possession of adult obscenity. See State v. Emond, 163 Ariz.
138, 139, 141 (App. 1989). But the State has a compelling interest in
combating the sexual abuse and exploitation of children that underlie child
pornography. Osborne v. Ohio, 495 U.S. 103, 108 (1990); New York v. Ferber,
458 U.S. 747, 762–63 (1982); see also State v. Berger, 212 Ariz. 473, 477 ¶ 19 n.2
(2006); Emond, 163 Ariz. at 139–40. Because the State’s interest in protecting
children far exceeds any de minimis expressive value that may be found in
3 As a preliminary matter, we reject the State’s contention that Brock
lacks standing to challenge the statute’s constitutionality. Brock argues that
the trial court construed the statute in a manner that violated his
constitutional rights, and he therefore has standing to argue that the statute
is overbroad as applied to him. See Brown v. McClennen, 239 Ariz. 521, 526
¶ 19 (2016).
5
STATE v. BROCK
Opinion of the Court
possessing sexually explicit images of children, the First Amendment does
not protect child pornography. Id. For that reason, the State may criminalize
possession of “works that visually depict sexual conduct by children” as
long as it “adequately define[s]” the proscribed material. Ferber, 458 U.S. at
764; State v. Hazlett, 205 Ariz. 523, 527 ¶ 11 (App. 2003) (“[A] state can
penalize conduct relating to [nude images of children] without meeting the
more exacting standard for obscenity because the material involves actual
children actually participating in the acts depicted. The crime is the abuse
of the children.”).
¶12 Brock contends that A.R.S. § 13–3553 is overbroad, both on its
face and as applied to him. First, he asserts the statute proscribes not only
child pornography, but the possession of images depicting “merely nude”
minors, which he claims are constitutionally protected expression.
Employing the same reasoning, he then argues that applying the statute to
criminalize his possession of Exhibit 19 impinges on his First Amendment
rights because it depicts the victim’s pubic region, rather than her genitals,
and displays no overt sexual activity.
¶13 We review statutory interpretation de novo. State v. Burbey,
243 Ariz. 145, 146 ¶ 5 (2017). In construing a statute, this Court’s primary
purpose is to effectuate the Legislature’s intent. State ex rel. Montgomery v.
Harris, 237 Ariz. 98, 100 ¶ 8 (2014). “To determine a statute’s meaning, we
look first to its text[,]” Burbey, 243 Ariz. at 147 ¶ 7, and construe statutes that
“relate to the same subject matter or have the same general purpose as one
another” as though they constitute one law, State v. Gamez, 227 Ariz. 445,
449 ¶ 27 (App. 2011). “When the text is clear and unambiguous, we apply
the plain meaning and our inquiry ends.” Burbey, 243 Ariz. at 147 ¶ 7.
¶14 Contrary to Brock’s contentions, A.R.S. § 13–3553 does not
criminalize conduct involving “merely nude” images of minors. The statute
prohibits, among other things, the knowing possession of “any visual
depiction in which a minor is engaged in exploitive exhibition or other
sexual conduct.” A.R.S. § 13–3553(A)(2). “Exploitive exhibition” means “the
actual or simulated exhibition of the genitals or pubic or rectal areas of any
person for the purpose of sexual stimulation of the viewer.” A.R.S.
§ 13–3551(5). The statutory definition of “exploitive exhibition”
substantially circumscribes A.R.S. § 13–3553’s scope, excluding nude
images of minors that are created for non-sexual purposes. See Hazlett, 205
Ariz. at 531 ¶ 27. Because the challenged statute does not constrain
protected expression and a person does not commit sexual exploitation of
a minor unless he or she possesses a nude image of a minor that was created
for the purpose of sexual stimulation, A.R.S. § 13–3553 is not overbroad.
6
STATE v. BROCK
Opinion of the Court
¶15 Nor is the statute unconstitutional as applied in Brock’s case.
The State presented evidence that Brock captured a screenshot from his
computer showing both an image that clearly and directly focused on the
victim’s pubic region and his own reaction to that image. Although the
screenshot does not expressly depict any sexual activity, Brock and the
victim indisputably engaged in an online sexual relationship. Viewed
within this context, a jury could have reasonably found that the victim
webcast the image at issue and that he recorded it, for the purpose of his
sexual stimulation. Indeed, Brock saved the image in a folder he named
“[Victim]-Sexy.” Given these facts, Brock has failed to demonstrate that the
statute is unconstitutionally overbroad as applied to him. Therefore, the
trial court did not err in denying the motion to dismiss the count of sexual
exploitation of a minor.
2. Denial of Requested Jury Instruction
¶16 Brock next contends that the trial court erroneously denied
his requested jury instruction regarding “mere nudity.” We review a trial
court’s denial of a requested jury instruction for an abuse of discretion,
deferring to the court’s evaluation of the evidence, State v. Wall, 212 Ariz. 1,
3, 5 ¶¶ 12, 23 (2006), and will not reverse a court’s “refusal unless the
defendant suffered prejudice as a result,” State v. Garfield, 208 Ariz. 275, 278
¶ 11 (App. 2004). A party is entitled to a jury instruction on any theory the
evidence reasonably supports, State v. Moody, 208 Ariz. 424, 467 ¶ 197
(2004), but a court does not err by refusing to give a jury instruction that
“does not fit the facts of the particular case, or is adequately covered by the
other instructions,” State v. Hussain, 189 Ariz. 336, 337 (App. 1997); see also
State v. Mott, 187 Ariz. 536, 546 (1997) (“A trial court is not required to give
a proposed instruction when its substance is adequately covered by other
instructions.”).
¶17 We review de novo whether instructions accurately and
adequately state the law. State v. Fierro, 220 Ariz. 337, 338 ¶ 4 (App. 2008).
We review the instructions in their entirety and will not reverse a jury
verdict based on an erroneous instruction unless the instructions, taken as
a whole, could reasonably mislead a jury. State v. Hoskins, 199 Ariz. 127, 145
¶ 75 (2000); State v. Gallegos, 178 Ariz. 1, 10 (1994). If a jury instruction is
“substantially free from error,” the defendant generally suffers no
prejudice. Gallegos, 178 Ariz. at 10 (internal quotation omitted).
¶18 Before trial, Brock submitted his requested jury instructions,
which included the following “special instruction” on exploitive exhibition:
7
STATE v. BROCK
Opinion of the Court
“Exploitive exhibition” means the lewd exhibition of the
genitals or pubic areas of any person. “Lewd” connotes sexual
suggestiveness, sexual activity, sexually explicit situations,
hard core pornography, and material that is the product of
sexual abuse. The following factors, and any other factors you
determine are relevant, may be considered by you in deciding
whether the photograph in this case involves the lewd
exhibition of the genitals or pubic area:
1. Whether the focal point of the picture is on the minor’s
genitals or pubic area. Merely because the picture shows the
genitals does not necessarily mean that the genitals are the
focus of the photograph;
2. Whether the setting is sexually suggestive. For example, in a
place or pose generally associated with sexual activity;
3. Whether the minor is depicted in an unnatural pose,
considering the age of the minor;
4. Whether the minor was fully or partially clothed, or nude;
5. Whether the picture suggests sexual coyness or a willingness
to engage in sexual activity. Sexual coyness is an expression
outside the minor’s range of experience;
6. Whether the picture is intended or designed to elicit a sexual
response from the viewer. You should not focus on the actual
effect of the photograph on the viewer, but instead on the
intended effect on the viewer;
7. Whether the picture portrays the minor as a sexual object;
8. Whether the photograph contains a caption, title or name and,
if so, the nature of such caption, title or name.
A visual depiction need not involve all of these factors in
order to be a lewd exhibition, but they are factors you may
consider. No single factor should be given undue weight.
More than one factor must be present in order to establish
lewdness. The weight or lack of weight which you may give
to any one of these factors is for you to decide. You may not
determine the picture to be lewd merely because it depicts
nudity. Mere nudity is not equivalent to lewdness or to sexual
8
STATE v. BROCK
Opinion of the Court
activity. You may not determine the picture to be lewd
because you do not like it or because you find it to be in bad
taste. The determination should be made based on the overall
content of the visual depiction, taking into account the age of
the minor.
During the settling of the final jury instructions, defense counsel urged the
court to give his requested instruction on exploitive exhibition to remedy
what counsel argued were the “unconstitutional dimensions” of A.R.S.
§ 13–3553. In its final instructions to the jury, the trial court set forth the
statutory elements of sexual exploitation of a minor and provided a
definition of “exploitive exhibition” as follows:
The crime of sexual exploitation of a minor requires proof that
the Defendant knowingly:
Possessed any visual depiction, in which a minor was
engaged in exploitive exhibition, or other sexual conduct.
“Visual depiction” includes each visual image that is
contained in an undeveloped film, videotape or photograph
or data stored in any form, and that is capable of conversion
into a visual image.
“Exploitive exhibition” means the actual or simulated
exhibition of the genitals or pubic or rectal areas of any person
for the purpose of sexual stimulation of the viewer.
The following factors may be considered by you:
1) whether the focal point of the pictures is on the child’s
genitals, pubic or rectal area;
2) whether the setting is sexually suggestive;
3) whether the child is depicted in an unnatural pose,
considering the age of the child;
4) whether the child was clothed or nude;
5) whether the pictures suggest a willingness to engage in sexual
activity;
6) whether the pictures are intended or designed to elicit a
sexual response from the viewer;
9
STATE v. BROCK
Opinion of the Court
7) whether the pictures portray the child as a sexual object.
¶19 Viewed in its entirety, the trial court’s instruction on sexual
exploitation of a minor adequately and accurately reflected the law. The
instruction identified all elements of the offense, included a definition of
“exploitive exhibition” that tracked A.R.S. § 13–3551(5), and incorporated
the factors that Brock had requested as discussed in United States v. Dost,
636 F. Supp. 828, 832 (S.D. Cal. 1986). See State v. Rodriguez, 192 Ariz. 58, 61
¶ 16 (1998) (holding a trial court need not give every specific instruction
requested by the defense: “the test is whether the [given] instructions
adequately set forth the law applicable to the case”).
¶20 Although Brock’s proposed instruction more directly stated
that possession of a “merely nude” image of a minor does not constitute
sexual exploitation of a minor, the court’s instruction clearly informed the
jurors that they could convict Brock only if the State proved that the image
was created for a sexual purpose. Moreover, the court’s instruction did not
preclude Brock from arguing that Exhibit 19 was merely a nude photo and
not child pornography. Indeed, defense counsel repeatedly made that
argument during closing argument. Therefore, the trial court did not err by
instructing the jury or abuse its discretion by denying, in part, Brock’s
special “exploitive exhibition” instruction. See Com. v. Sullivan, 972 N.E.2d
476, 488 (Mass. App. Ct. 2012) (trial court did not err in refusing to give a
“mere nudity” instruction because the given instructions tracked the
statutory requirements and the Dost factors).
3. Denial of Motion for Judgment of Acquittal
¶21 Brock asserts that the trial court applied an incorrect legal
standard in denying his motion for judgment of acquittal. We generally
review de novo a trial court’s ruling on a Rule 20 motion. State v. West, 226
Ariz. 559, 562 ¶ 15 (2011). Because Brock did not object to the standard of
review the court applied at trial, however, we review his appellate claim
only for fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135,
140 ¶ 12 (2018).
¶22 When considering a motion for judgment of acquittal, “the
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” West, 226 Ariz.
at 562 ¶ 16 (internal quotation omitted). In reviewing the sufficiency of the
evidence, we compare the evidence “against the statutorily required
elements of the offense[,]” State v. Pena, 209 Ariz. 503, 505 ¶ 8 (App. 2005),
10
STATE v. BROCK
Opinion of the Court
and neither reweigh conflicting evidence nor assess the credibility of
witnesses, see State v. Buccheri-Bianca, 233 Ariz. 324, 334 ¶ 38 (App. 2013).
Sufficient evidence upon which a reasonable jury can convict may be direct
or circumstantial, West, 226 Ariz. at 562 ¶ 16, and a judgment of acquittal is
appropriate only when “there is no substantial evidence to support a
conviction,” Ariz. R. Crim. P. 20(a).
¶23 Contrary to Brock’s contention, the trial court explicitly
applied the correct legal standard when it stated on the record that it
evaluated the sufficiency of the evidence by viewing that evidence in the
light most favorable to the prosecution. Nonetheless, to the extent Brock
arguably challenges the court’s denial of his motion for judgment of
acquittal more generally, the remaining question is whether sufficient
evidence existed to support his convictions for child molestation, sexual
exploitation of a minor, and possession of drug paraphernalia.
¶24 Child molestation requires proof that a person “intentionally
or knowingly engag[ed] in or caus[ed] a person to engage in sexual contact
. . . with a child who is under fifteen years of age.” A.R.S. § 13–1410(A).
“Sexual contact” is “any direct or indirect touching, fondling or
manipulating of any part of the genitals, anus or female breast by any part
of the body or by any object or causing a person to engage in such conduct.”
A.R.S. § 13–1401(A)(3)(a). At trial, the victim testified that although she and
Brock had never met, Brock had introduced a sexual component to their
online relationship by causing her to engage in frequent masturbatory
conduct and responding with threats when she attempted to end it.
Viewing the record in its entirety, substantial evidence existed from which
a reasonable jury could find that Brock intentionally caused the minor
victim to engage in sexual contact.
¶25 A person commits sexual exploitation of a minor by, as
relevant here, knowingly possessing “any visual depiction” of a minor’s
genital, pubic, or rectal region “for the purpose of sexual stimulation of the
viewer.” A.R.S. §§ 13–3551(5), –3553. In this case, police officers seized
numerous nude images of the minor victim from Brock’s electronic devices,
including Exhibit 19, as discussed above. Given the image, the victim’s
testimony about her online sexual activity with Brock and Brock’s own
placement of the image in a folder titled “[Victim]-Sexy,” substantial
evidence existed from which a reasonable jury could find that Brock
knowingly possessed an image of the victim engaged in exploitive
exhibition.
11
STATE v. BROCK
Opinion of the Court
¶26 A person commits possession of drug paraphernalia by
possessing with an intent to use, any items that “introduce into the human
body a [proscribed] drug[.]” A.R.S. § 13–3415(A). At trial, an officer testified
that in the course of executing a search warrant on Brock’s home, he seized
multiple pipes and bongs as well as a substance that he recognized as
marijuana. On this record, substantial evidence existed from which a
reasonable jury could find that Brock possessed pipes and bongs with the
intent to use marijuana. Therefore, the trial court did not err when it denied
Brock’s motion for judgment of acquittal.4
4. Imposition of Concurrent Sentences
¶27 The State argues in its appeal that the trial court misconstrued
A.R.S. § 13–705(M) to allow concurrent, rather than consecutive, sentences
for Brock’s two convictions of child molestation, dangerous crimes against
children. “The failure to impose a sentence in conformity with mandatory
sentencing statutes makes the resulting sentence illegal.” State v. Carbajal,
184 Ariz. 117, 118 (App. 1995). Whether the trial court correctly construed
the sentencing statute is a question of law we review de novo. State ex rel.
Polk v. Campbell, 239 Ariz. 405, 406 ¶ 4 (2016).
¶28 The statutes proscribing child molestation, A.R.S. § 13–1410,
and sexual exploitation of a minor, A.R.S. § 13–3553, provide that offenses
involving a minor victim under 15 years of age shall be punished as
dangerous crimes against children pursuant to A.R.S. § 13–705. A.R.S.
§ 13–1410(B); A.R.S. § 13–3553(C). Subsection (M) of A.R.S. § 13–705 sets
forth the circumstances that determine when sentences for dangerous
crimes against children may be imposed concurrently or consecutively with
sentences for other convictions:
The sentence imposed on a person by the court for a
dangerous crime against children under subsection D of this
section involving child molestation or sexual abuse pursuant
to subsection F of this section may be served concurrently
with other sentences if the offense involved only one victim.
The sentence imposed on a person for any other dangerous
crime against children in the first or second degree shall be
4 Brock also requests that this Court search the entire record for
fundamental error. We need not do so, however, because “[w]hen an
advocate’s brief has been filed on behalf of a defendant, we presume that
counsel has raised all arguably meritorious issues[.]” State v. Scott, 187 Ariz.
474, 478 (App. 1996).
12
STATE v. BROCK
Opinion of the Court
consecutive to any other sentence imposed on the person at
any time, including child molestation and sexual abuse of the
same victim.
¶29 Subsection (M)’s language is clear. The first sentence provides
that if a defendant is convicted of child molestation, sentenced under A.R.S.
§ 13–705(D), or sexual abuse, sentenced under A.R.S. § 13–705(F), the court
may make the sentences imposed for those offenses concurrent with
sentences for other offenses the defendant was convicted of “if the offense
involved only one victim.” The second sentence of Subsection (M) limits the
application of the first sentence: The sentence imposed on a person “for any
other dangerous crime against children in the first or second degree” shall
be consecutive “to any other sentence imposed on the person at any time,
including child molestation and sexual abuse of the same victim.” (Emphasis
added.) So, if a defendant is convicted of child molestation or sexual abuse,
dangerous crimes against children, the court has the discretion to make the
sentences for those offenses concurrent with the sentences for any other
offenses if they involved the same victim. However, if the defendant is
convicted of any other dangerous crime against children in the first or
second degree, the sentence for that conviction must be consecutive to any
other sentence, even if the offense is child molestation or sexual abuse against the
same victim.
¶30 This reading of the statute is consistent with earlier decisions
from this Court and the Arizona Supreme Court. In State v. Tsinnijinnie, this
Court considered whether A.R.S. § 13–604(K)—the predecessor to
§ 13-705(M) and worded substantially similarly to it—required the trial
court to impose consecutive sentences for convictions for sexual assault and
molestation of the same victim on different occasions. 206 Ariz. 477, 478 ¶ 6
(App. 2003). This Court held that the sentences should have been
consecutive to each other because
[w]hen the two sentences of subsection (K) are considered
together, the sentencing discretion granted to the trial court
by the first sentence is limited by the second sentence. If a
defendant is convicted of child molestation or sexual abuse
along with another offense that is not a dangerous crime
against children, the trial court has discretion to order that the
sentences be served concurrently if only one victim is
involved. If, however, a defendant is convicted of any “other”
dangerous crime against children, the sentence for each such
offense must be served consecutively to any other sentence
imposed.
13
STATE v. BROCK
Opinion of the Court
Id. at 479 ¶ 14.5 The Arizona Supreme Court cited this analysis favorably
when it considered whether A.R.S. § 13–116, the statute prohibiting double
punishment for single criminal acts, took precedence over Subsection (M)’s
requirement that sentences for certain dangerous crimes against children
convictions be consecutive to other sentences: “Section 13–705(M) allows a
concurrent sentence only for child molestation and sexual abuse involving
one victim and when the ‘other’ crime is not dangerous.” State v. Jones, 235
Ariz. 501, 503 ¶ 7 n.1 (2014).
¶31 Under a plain reading of Subsection (M)’s language, as
recognized in Tsinnijinnie and Jones, the trial court erred in making Brock’s
sentence for two separate counts of child molestation concurrent with each
other. Brock was convicted of one count of child molestation occurring
between June 4, 2012, and August 15, 2012, and one count of child
molestation occurring on August 16, 2012. Although the first sentence of
Subsection (M) would allow the court to impose concurrent sentences for
those convictions because they involve the same victim, the second
sentence prohibits that because a sentence imposed for “any other
dangerous crime against children in the first or second degree”—as either
molestation conviction in this case is—“shall be consecutive to any other
sentence imposed on the person at any time, including child molestation and
sexual abuse of the same victim.” (Emphasis added.) Consequently, the trial
court erred in imposing concurrent sentences for the molestation
convictions.
¶32 Brock nevertheless argues that the trial court had discretion
to impose concurrent sentences. He reads Subsection (M) to create a
discretionary exception to the general rule of mandatory consecutive
sentences for dangerous crimes against children for child molestation or
sexual abuse offenses if they were committed against the same victim. He
claims that the second child molestation conviction is not “any other
dangerous crime against children,” but the same crime. He provides no
rationale for such an interpretation, other than contending that in
Tsinnijinnie and Jones, the two dangerous crimes against children offenses
at issue in each case were different from each other.
¶33 But nothing in Subsection (M)’s plain language supports this
interpretation. “Words are to be understood in their ordinary everyday
5 In its analysis, this Court declined to consider whether the sentence
for a separate child molestation conviction involving the same victim
should have been consecutive because the State did not challenge that
sentence on appeal. Tsinnijinnie, 206 Ariz. at 478 ¶ 6 & n.3.
14
STATE v. BROCK
Opinion of the Court
meanings—unless the context indicates they bear a technical sense.”
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 69 (2012). The “ordinary everyday meaning” of “other” is “being one
(as of two or more) left”; “not the same”; or “more, additional.” Webster’s
Third New International Dictionary 1598 (2002). Because the two offenses
were committed on different occasions, the second one is “left” after the
first is named or considered; it is not “the same” because it was not
committed on the same occasion or by the same act; and it is “additional”
to the first. Moreover, Subsection (M) expressly recognizes that its
requirement that sentences for “any other dangerous crime against
children” must be consecutive applies even to “child molestation and sexual
abuse of the same victim.” Brock’s second conviction for child molestation is
thus an “other dangerous crime against children” that requires an
imposition of a consecutive sentence.
¶34 Tsinnijinnie’s and Jones’s interpretations of Subsection (M)
and its predecessor also do not support Brock’s interpretation. This Court
stated in Tsinnjinnie that a trial court has discretion to impose concurrent
sentences if the defendant was convicted of child molestation or sexual
abuse and of an offense that was not a dangerous crime against children if
the same victim was involved; “[i]f, however, a defendant is convicted of
any ’other’ dangerous crime against children,” the sentence for each offense
must be served consecutively. 206 Ariz. at 479 ¶ 14. The supreme court
explicitly recognized that only sentences for offenses involving the same
victim that are not dangerous crimes against children may be served
concurrently with sentences for dangerous crimes against children offenses.
Jones, 235 Ariz. at 503 ¶ 7 n.1.
¶35 Beyond this, Brock’s interpretation is at war with the purpose
of dangerous crimes against children statutes. The statutes “were adopted
as a response to the increase in the number of sexual offenses reportedly
committed against children and constitute an attempt to punish severely
those persons who commit such crimes, particularly recidivist child
molesters.” State v. Arnoldi, 176 Ariz. 236, 242 (App. 1993) overruled on other
grounds, Jones, 235 Ariz. at 503 ¶ 10. Interpreting Subsection (M) to allow
concurrent sentences merely because the offenses are both child
molestation offenses—without a rationale why two child molestation
offenses against the same victim are worthy of less punishment than two
different dangerous crimes against children against the same victim—runs
counter to that purpose. This is especially true here where Brock engaged
in an 18-month webcast sexual relationship with a child under 15 years old.
Nothing shows that the nature of Brock’s conduct merits less punishment.
15
STATE v. BROCK
Opinion of the Court
¶36 Brock’s interpretation also leads to perverse results. Under his
interpretation, a person could commit as many acts of molestation as he
chose and still receive concurrent sentences for those offenses as long as he
molested the same victim. He would risk the increased punishment of
consecutive sentences only if he committed a different dangerous crime
against children offense against the same victim or chose a new victim. The
result would be that two people who committed the same number of
dangerous crimes against children would receive different punishments
depending on whether they chose one or multiple victims or committed
different dangerous crimes against children against the same victim. Such
a sentencing scheme would be senseless, especially given the purpose of
the dangerous crimes against children statute, to increase the punishment
on recidivist child molesters. Arnoldi, 176 Ariz. at 242.
¶37 The supreme court addressed an analogous issue in State
v. Noble, 152 Ariz. 284 (1987). There, a defendant argued that a particular
sentencing statute required the imposition of concurrent sentences for
convictions for offenses committed against the same victim on the same
occasion. Id. at 288. The court recognized that such an interpretation would
allow persons who committed the same number of offenses against a victim
to receive a different punishment depending on whether the crimes were
committed on the same occasion. Id. Such a reading, the court found, would
send a message that
[i]f you must yield to temptation, purge yourself of all
criminal tendencies “on the same occasion” and receive only
concurrent sentences regardless of the number of charges on
which you are convicted. We caution you against fulfilling
your criminal desires on separate occasions. To do so could
result in imposition of consecutive sentences.
Id. The court chose not to send that message. Id. Likewise, interpreting
Subsection (M) as Brock suggests would send a message that persons who
commit child molestation or sexual abuse may receive less punishment if
they choose one victim to attack multiple times than if they choose multiple
victims. That is not what the Legislature intended in enacting Subsection
(M). We reject Brock’s interpretation.
¶38 The dissent, however, agrees with Brock’s interpretation. It
reasons that because the first sentence of Subsection (M) specifically
provides that sentences for child molestation and sexual abuse may be
served concurrently with other sentences for offenses against the same
victim, the limitation in the second sentence that a sentence for “any other
16
STATE v. BROCK
Opinion of the Court
dangerous crime against children” must be served consecutively to “any
other sentence” imposed necessarily excludes sentences for child
molestation or sexual abuse and applies only to sentences for dangerous
crimes against children not mentioned in the first sentence. Infra ¶¶ 48–50.
¶39 But such a reading is unjustified. Simply because the first
sentence of Subsection (M) allows for concurrent sentences when a
defendant has committed other offenses against a victim in addition to child
molestation or sexual abuse does not exempt those offenses from the
limitation of the second sentence that a sentence for “any other dangerous
crime against children” must be consecutive to any other sentence imposed
on the defendant. Nothing in the text of the second sentence compels such
an interpretation.
¶40 More important, the consideration of the entire text of second
sentence defeats such an interpretation. After providing that sentences for
“any other dangerous crime against children” must be consecutive to any
other sentence imposed, the second sentence appends “including child
molestation and sexual abuse of the same victim.” Thus, contrary to the
dissent’s reading, the text of the second sentence of Subsection (M)
specifically includes other child molestation and sexual abuse offenses
against the same victim within its ambit. The dissent’s reading of the
sentence makes the final clause of the second sentence superfluous,
violating a “cardinal principle of statutory interpretation.” Nicaise v.
Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019); see also Scalia & Garner, Reading
Law, 174 (“Whenever a reading arbitrarily ignores linguistic components or
inadequately accounts for them, the reading may be presumed
improbable.”) (citation and footnote omitted).
¶41 The dissent also fails to identify a reason that the Legislature
would intend to exclude from the requirement of consecutive sentences
multiple convictions for child molestation or sexual abuse against the same
victim. The dissent calls “unwise” the consideration of the Legislature’s
intent and the effects of interpreting Subsection (M) as Brock and the dissent
suggests. Infra ¶ 61. But far from unwise, when interpreting statutes, our
goal is to effectuate legislative intent. Harris, 237 Ariz. at 100 ¶ 8. And a
recognized canon of construction is that an interpretation that furthers a
statute’s purpose is favored over one that does not. Scalia & Garner, Reading
Law, 56. Although we need not go beyond Subsection (M)’s plain language
to determine that multiple convictions for child molestation or sexual abuse
of the same victim require consecutive sentences, see Dignity Health v.
Farmers Ins. Co. of Ariz., 247 Ariz. 39, 42 ¶ 7 (App. 2019) (recognizing that
consideration of statute’s purpose and effects is unnecessary if its language
17
STATE v. BROCK
Opinion of the Court
is clear), the fact that our interpretation furthers the Legislature’s intent and
avoids Brock’s and the dissent’s perverse results confirms the validity of
our reading of the plain language.
¶42 The dissent also relies extensively on State v. Supinger, 190
Ariz. 326 (App. 1997), which interpreted A.R.S. § 13–604.01(I) (1996), an
apparent ancestor to Subsection (M). Infra ¶¶ 53–59. But Supinger has little
value today. First, A.R.S. § 13–604.01(I) is different from Subsection (M).
Section 13–604(I) provided that the sentence imposed on a person “for a
dangerous crime against children . . . involving child molestation . . . shall
be consecutive to any other sentence imposed on the person . . . if the offense
involved more than one victim. (Emphasis added.) Because § 13–604.01(I)
called for consecutive sentences when the child molestation offense
involved more than one victim, this Court held that concurrent sentences
were allowed when child molestation involved only one victim. Supinger,
190 Ariz. at 330. Subsection (M), in contrast, imposes consecutive sentences
when two dangerous crimes against children involve the same victim,
including child molestation. The differing language between the two
statutes makes the applicability of Supinger’s analysis to Subsection (M)
dubious.
¶43 Second, even if Supinger’s analysis of the ancestor statute was
correct, it means little in the face of Tsinnijinnie and Jones. The dissent claims
that Tsinnijinnie and Jones do not squarely address the issue here, but
Tsinnijinnie interpreted the substantially identical statute the way that we
interpret Subsection (M) today, 206 Ariz. at 47 ¶ 14, and our supreme court
cited Tsinnijinnie favorably in noting that Subsection (M) allows a
concurrent sentence for child molestation when the “other” crime is not a
dangerous crime against children, Jones, 235 Ariz. at 503 ¶ 7 n.1. If the
supreme court, upon further reflection, determines that its statement
should not be read as we have read it today, it will certainly say so. See, e.g.,
Allen v. Sanders, 240 Ariz. 569, 574 ¶¶ 26–27 (2016) (Bolick, J., concurring)
(noting that the supreme court, in addressing “categorical language” from
an earlier decision, “today walks back its broad interpretation” of the rule
of procedure at issue in that case). Until then, we are bound to follow our
supreme court. State v. Lucero, 223 Ariz. 129, 137 ¶ 24 (App. 2009).
¶44 For these reasons, we are, with respect, unpersuaded by the
dissent’s analysis. We conclude that because the second child molestation
offense in this case constitutes another dangerous crime against children,
the trial court did not have discretion to give a concurrent sentence under
Subsection (M). Because we do not know how the trial court would have
sentenced Brock had it known that it did not have discretion to impose
18
STATE v. BROCK
Opinion of the Court
concurrent sentences for the child molestation offenses under Subsection
(M), we remand for resentencing. See State v. Stroud, 209 Ariz. 410, 414 ¶ 21
(2005) (“When a trial court labors under a misunderstanding of the
sentencing law . . . that portion of the sentence . . . should be set aside and
the matter remanded for sentencing.”).
CONCLUSION
¶45 For the foregoing reasons, we affirm Brock’s convictions and
sentences in part but remand for resentencing of his child-molestation
convictions because those two sentences must run consecutively.
J O H N S E N, concurring in part, dissenting in part
¶46 I agree with ¶¶ 3–26 of the majority’s opinion affirming
Brock’s convictions. I disagree, however, with the majority’s conclusion
that the trial court lacked discretion to impose concurrent sentences for his
two child-molestation convictions. Supra ¶ 2.
¶47 There is no question that, in the usual case, the first sentence
of A.R.S. § 13–705(M) allows a court to impose a concurrent sentence for a
conviction of child molestation when, as here, a defendant is convicted of
multiple offenses involving “only one victim.”6 Likewise, under the second
sentence of that provision, there is no question that when a defendant is
convicted of child molestation and a dangerous crime against children
other than child molestation or sexual abuse, the court must impose a
consecutive sentence. See State v. Tsinnijinnie, 206 Ariz. 477, 479 ¶ 15 (App.
2003) (sentence for sexual assault of a minor must be consecutive to
sentence for sexual molestation of a minor). The issue on which I disagree
with the majority is whether the second sentence of subsection (M) requires
consecutive sentences when a defendant is convicted of two child-
molestation charges involving the same victim.
¶48 The majority concludes, supra ¶ 31, that the superior court
erred in sentencing Brock because his second child-molestation conviction
constituted “any other dangerous crime against children” that required a
6 Section 13–705(M) mandates special treatment of the two dangerous
crimes against children of child molestation and sexual abuse. For
simplicity, in the discussion that follows I sometimes will address the child-
molestation convictions that are at issue here without referring to sexual
abuse even though the statute treats the two crimes the same.
19
STATE v. BROCK
Johnsen, J., Concurring in Part and Dissenting in Part
consecutive sentence. A.R.S. § 13–705(M). I construe the two sentences of
subsection (M) together and come to a different conclusion. I believe the
reference in the second sentence of subsection (M) to “any other dangerous
crime against children” means any crime other than the crimes of “child
molestation or sexual abuse” that are referenced in the first sentence of the
provision. As applied, therefore, I would affirm the concurrent sentences
the court imposed for Brock’s two child-molestation convictions because
both “involved only one victim.” Id.
¶49 As the majority states, supra ¶ 27, when we interpret a statute,
we first carefully consider its text. See State v. Lee, 236 Ariz. 377, 383 ¶ 16
(App. 2014). The statute here defines 23 distinct “[d]angerous crime[s]
against children,” A.R.S. § 13–705(Q), then sets out special sentencing rules
to be applied to persons convicted of such crimes. The focus of the first
sentence of the relevant subsection here, § 13–705(M), is the prison sentence
to be imposed on a person convicted of child molestation or sexual abuse
as a dangerous crime against children. The second sentence of the
subsection concerns the sentence imposed “for any other dangerous crime
against children.” Notwithstanding the majority’s lengthy discussion of the
meaning of “other,” supra ¶¶ 33–34, it seems plain to me that the reference
to “any other dangerous crime against children” in the second sentence of the
provision must mean any of the 23 dangerous crimes against children other
than the crimes of child molestation or sexual abuse referenced in the first
sentence. A.R.S. § 13–705(M) (emphasis added).
¶50 To explain, the first sentence of subsection (M) introduces the
subject of the provision by referring to a “sentence imposed on a person . .
. for a dangerous crime against children . . . involving child molestation or
sexual abuse.” The second sentence echoes the language of the first sentence
by referring to “any other dangerous crime against children.” Id. (emphasis
added). The drafters did not refer in the second sentence to “any second (or
other) conviction of a dangerous crime against children,” nor did they
choose to reference a “second (or other) offense under this statute.”
Applying the language of the statute as written, and reading the two
sentences of (M) together, the term “other” limits the scope of qualifying
dangerous crimes against children to those different or distinct from child
molestation or sexual abuse, so that a second conviction of child
molestation is not “any other dangerous crime against children” that would
require a consecutive sentence. See Trisha A. v. Dep’t of Child Safety, 247 Ariz.
84, 88 ¶ 17 (2019) (explaining under presumption of consistent-usage canon
that “a word or phrase is presumed to bear the same meaning throughout
a text” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 170 (2012))).
20
STATE v. BROCK
Johnsen, J., Concurring in Part and Dissenting in Part
¶51 The majority states that its interpretation of the statute is
supported by the final clause of subsection (M). Supra ¶ 29. I disagree. The
reference to “child molestation and sexual abuse of the same victim” in that
sentence only makes clear the indisputable proposition that when a
defendant is convicted of two dangerous crimes against children—child
molestation and “any other dangerous crime against children”—the court
must impose consecutive sentences.
¶52 Contrary to the majority’s contention, supra ¶ 40, my
interpretation does not render the final clause of the second sentence
superfluous. See Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019) (courts
should “give meaning, if possible, to every word and provision [in a statute]
so that no word or provision is rendered superfluous”). The fact is that the
majority accords the phrase no more meaning than I do. Under either
interpretation, the final phrase clarifies what comes before. My view is that
the most logical reading of the statute is that the final phrase modifies the
penultimate phrase (“any other sentence imposed on the person at any
time”) and clarifies that when a defendant is sentenced on two convictions,
the first being a dangerous crime against children other than child
molestation or sexual abuse, and the second being any crime against
children—including child molestation and sexual abuse—the sentences
must be consecutive.7
¶53 Our decision in State v. Supinger, 190 Ariz. 326 (App. 1997),
further supports my construction of the statute. In that case, we interpreted
A.R.S. § 13–604.01(I) (1996), the predecessor to A.R.S. § 13–705(M). The
former statute provided:
The sentence imposed on a person by the court for a
dangerous crime against children in the first or second degree
shall be consecutive to any other sentence imposed on the
person at any time except that the sentence imposed on a
person by the court for a dangerous crime against children
under subsection B of this section involving child molestation
or sexual abuse pursuant to subsection C of this section shall
7 Thus, the majority and I both view the final clause as explaining or
clarifying “any other.” See Scalia & Garner, supra, at 176–77 (explaining the
surplusage canon “cannot always be dispositive” because “[s]ometimes
drafters do repeat themselves and do include words that add nothing of
substance, either out of a flawed sense of style or to engage in the ill-
conceived but lamentably common belt-and-suspenders approach”).
21
STATE v. BROCK
Johnsen, J., Concurring in Part and Dissenting in Part
be consecutive to any other sentence imposed on the person
at any time if the offense involved more than one victim.
A.R.S. § 13–604.01(I) (1996).
¶54 Supinger described this language as creating a “general rule”
(the first clause) and “an exception” (the second clause). 190 Ariz. at 330.
The general rule required consecutive sentences for all dangerous crimes
against children; the exception allowed concurrent sentences for the crimes
of child molestation and sexual abuse involving a single victim. Id. The
defendant in that case was convicted of child molestation and sexual
conduct with a minor, both dangerous crimes against children. Id. We held
the exception did not apply because the rule mandated that the sexual-
conduct sentence “be served consecutive to any other sentence.” Id.
Allowing the exception to prevail (i.e., allowing the sexual-molestation
sentence to run concurrently with the sexual-conduct sentence) “would
nullify the requirement for a consecutive sentence on the sexual conduct.”
Id.
¶55 In summarizing its reasoning, Supinger addressed the issue
now presented:
We therefore conclude that the exception . . . applies only
when two or more sentences are within the exception, or
when one of the sentences is not a dangerous crime against
children. For example, a sentence for child molestation . . . may
be served concurrent with a sentence for another count of child
molestation, which also falls within the exception, or a drug
offense not involving a minor, which is not a dangerous crime
against children. Such a sentence may not, however, be served
concurrently with a sentence for another dangerous crime
against children that does not fall within the exception.
Id. (emphasis added).8
¶56 As noted, the version of the statute that Supinger analyzed has
been amended. See 1997 Ariz. Sess. Laws, ch. 179, § 1 (1st Reg. Sess.). But
8 In a footnote, we restated the same point: “We note, however, that if
a defendant has multiple convictions for dangerous crimes against children
and more than one falls within the exception, those sentences falling within
the exception may be concurrent with each other but must be consecutive to
any other sentence(s) for a dangerous crime against children not falling
within the exception.” 190 Ariz. at 331 n.3.
22
STATE v. BROCK
Johnsen, J., Concurring in Part and Dissenting in Part
close analysis shows that the operative language of the older statute is
virtually identical to that of current § 13–705(M). In the first place, setting
aside the exceptions for child molestation and sexual abuse, both versions
of the statute use identical language to state that when a person is convicted
of any dangerous crime against children, the resulting sentence must be
“consecutive to any other sentence imposed on the person at any time.”
A.R.S. § 13–705(M); A.R.S. § 13–604.01(I) (1996).
¶57 Further, under both versions of the statute, the court must
impose consecutive sentences when a person is convicted of child
molestation or sexual abuse and “any other dangerous crime against
children.” A.R.S. § 13–705(M) (“sentence imposed on a person for any other
dangerous crime against children . . . shall be consecutive to any other
sentence imposed on the person at any time, including child molestation
and sexual abuse of the same victim”); see Supinger, 190 Ariz. at 331 n.3 (“[I]f
a defendant has multiple convictions for dangerous crimes against children
. . . , those sentences falling within the exception . . . must be consecutive to
any other sentence(s) for a dangerous crime against children not falling
within the exception.”).
¶58 As for child molestation and other crimes involving the same
victim, the prior version of the statute stated that “the sentence imposed . .
. shall be consecutive to any other sentence imposed on the person at any
time if the offense involved more than one victim.” A.R.S. § 13–604.01(I)
(1996) (emphasis added). We held in Supinger that the implication of that
provision was that a person convicted of child molestation could be
sentenced to a concurrent sentence if the “any other” offense involved the
same child. 190 Ariz. at 330. After the 1997 amendment, current § 13–705(M)
uses like language in expressly stating the implication we drew in Supinger:
“The sentence imposed on a person [convicted of child molestation] may be
served concurrently with other sentences if the offense involved only one
victim.” (Emphasis added.)
¶59 Given the similarity of the two statutes, and in the absence of
any indication the legislature intended the revision to effect a substantive
change, I believe that when we construe the current version of § 13–705(M),
we must be guided by what we said about its predecessor in Supinger.9
9 There can be no contention that the amendment was in response to
our decision in Supinger. We issued our decision in that case on July 29,
1997, a few months after the legislature amended the sentencing provision
23
STATE v. BROCK
Johnsen, J., Concurring in Part and Dissenting in Part
¶60 In coming to the opposite conclusion about how to construe §
13–705(M), the majority relies on State v. Jones, 235 Ariz. 501 (2014), and
Tsinnijinnie, supra ¶¶ 30–31, 34, but neither case addresses the question
presented here. In Jones, our supreme court held that the consecutive-
sentence mandate in § 13–705(M) prevailed over A.R.S. § 13–116 (2020),
which generally requires concurrent sentences when multiple convictions
result from a single act or omission. Jones, 235 Ariz. at 503 ¶¶ 8, 11. The
majority cites a footnote in Jones that described § 13–705(M) as allowing “a
concurrent sentence only for child molestation and sexual abuse involving
one victim and when the ‘other’ crime is not dangerous.” 235 Ariz. at 194
n.1; supra ¶ 30. But I do not understand that footnote to say anything more
or less than what subsection (M) itself says (“sentence imposed on a person
for any other dangerous crime against children in the first or second degree
shall be consecutive to any other sentence”). And Tsinnijinnie, the only case
Jones cited in its description of § 13–705(M) in that footnote, specifically left
open the issue we now address. 206 Ariz. at 477–78 ¶¶ 2, 6 n.3 (declining to
decide whether concurrent sentences could be imposed under current
subsection (M) for two child-molestation convictions).
¶61 Turning to the majority’s other explanations, I suggest that its
reliance on the purpose of § 13–705 is unwise. Supra ¶¶ 35–36. I do not
question that the purpose of the statute is to protect children by punishing
dangerous crimes against children more severely than other crimes. But
that does not mean that we must always construe the statute to require the
more severe of two possible punishments. “[N]o legislation pursues its
purposes at all costs. Deciding what competing values will or will not be
that is now codified as A.R.S. § 13–705(M). See Supinger, 190 Ariz. 326; see
also 1997 Ariz. Sess. Laws, ch. 179 (1st Reg. Sess.). Further, as we noted in
Tsinnijinnie, “[t]he legislative history is inconclusive regarding the purpose
of the 1997 amendment.” 206 Ariz. at 479 ¶ 11 n.4; see also Ariz. State Senate
Fact Sheet for H.B. 2016, 43d Leg., 1st Reg. Sess. (Mar. 24, 1997) (stating the
amendment “[c]larifies sentencing language involving sexual child
molestation and sexual abuse of the same victim”). In short, we have been
presented with neither argument, citation nor logic for the proposition that
the legislature intended a substantive change when it enacted the 1997
amendment. See State v. Sweet, 143 Ariz. 266, 271 (1985) (contrasting
legislative decision to change an existing statute from legislative decision to
merely clarify the statute); Clarify, Random House Webster’s Unabridged
Dictionary 380 (2001) (“to make (an idea, statement, etc.) clear or
intelligible; to free from ambiguity”); see also, e.g., In re Marriage of Waldren,
217 Ariz. 173, 176 ¶ 15 (2007) (citing legislative fact sheet in concluding
amendment was not intended to change statute but merely to clarify it).
24
STATE v. BROCK
Johnsen, J., Concurring in Part and Dissenting in Part
sacrificed to the achievement of a particular objective is the very essence of
legislative choice—and it frustrates rather than effectuates legislative intent
simplistically to assume that whatever furthers the statute’s primary
objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525–26
(1987).
¶62 The majority questions why the statute might treat two child-
molestation convictions differently than convictions of any other two
dangerous crimes against children. See supra ¶ 35. Respectfully, we have no
mandate to divine “a reason” the legislature might have had for enacting a
particular provision. Supra ¶ 41; see Hughes v. Jorgenson, 203 Ariz. 71, 73 ¶
11 n.5 (2002) (“We cannot be asked to guess at the legislature’s subjective
intent. Stated succinctly, we must be able to reach our conclusion by
analysis of the statute instead of by psychoanalysis of the legislature.”
(quotation omitted)). There is no dispute that the legislature has chosen to
treat sentencing for child-molestation convictions differently; the only issue
is the extent to which it has done so. As for the so-called perverse result of
my construction of the statute (i.e., concurrent sentences possible for any
number of child-molestation convictions committed against the same
victim), supra ¶¶ 36, 41, the statute allows the sentencing court discretion to
impose consecutive sentences in such a case, thereby avoiding the posited
result. See A.R.S. § 13–705(M). Finally, the majority cites State v. Noble, 152
Ariz. 284 (1987), about the “message” a court sends by construing a
sentencing statute. Supra ¶ 37. Noble did not construe § 13–705 and I see no
textual analysis in that case that is relevant here.
¶63 For these reasons, although I concur with the majority insofar
as it affirms Brock’s convictions, I dissent from the majority’s decision to
remand his two concurrent child-molestation sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
25