State of Arizona v. Hon. James Marner; Hanees Mohamed Haniffa ( 2024 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
STATE OF ARIZONA,
Petitioner,
v.
HON. JAMES E. MARNER, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent,
and
HANEES MOHAMED HANIFFA,
Real Party in Interest.
No. 2 CA-SA 2024-0037
Filed October 30, 2024
Special Action Proceeding
Pima County Cause No. CR20240488001
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Laura Conover, Pima County Attorney
By Tai Summers, Deputy County Attorney, Tucson
Counsel for Petitioner
Law Office of Hernandez & Hamilton PC, Tucson
By Joshua F. Hamilton and Carol Lamoureux
Counsel for Real Party in Interest
STATE v. HON. MARNER
Opinion of the Court
OPINION
Judge Eckerstrom authored the opinion of the Court, in which Chief Judge
Staring concurred in part, and Presiding Judge Gard dissented.
E C K E R S T R O M, Judge:
¶1 In this special action, the state seeks review of the respondent
judge’s ruling dismissing a dangerous crime against children (DCAC)
allegation against defendant Hanees Haniffa on a charge of luring a minor
for sexual exploitation pursuant to A.R.S. § 13-3554(C). The respondent
reasoned that the statutory scheme requires an actual minor victim under
the age of fifteen but, in this case, an adult police officer posed as a child
online, making the DCAC sentencing enhancement inapplicable. For the
following reasons, we accept special action jurisdiction, but, because we
agree with the respondent’s conclusion, we deny relief.
Factual and Procedural History
¶2 The relevant facts are undisputed. Haniffa was indicted on
one count of luring a minor for sexual exploitation, specifically, by “offering
or soliciting sexual conduct with ‘Sadie’ (undercover officer), a minor under
fifteen years of age, knowing or having reason to know that . . . she was a
minor.” The state alleged the offense was a DCAC. Haniffa filed a motion
to dismiss the DCAC allegation because “luring of a minor is not subject to
DCAC enhanced sentencing unless it is committed against an actual minor
under the age of 15.” After briefing and oral argument, the respondent
judge granted the motion to dismiss. This petition for special action
followed.
Special Action Jurisdiction
¶3 “Our decision to accept jurisdiction of a special action is
highly discretionary.” League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556,
¶ 4 (2009); see also Ariz. R. P. Spec. Act. 1(a) (special action not available if
“equally plain, speedy, and adequate remedy” exists on appeal). Special
action jurisdiction is appropriate “in matters of statewide importance,
issues of first impression, cases involving purely legal questions, or issues
that are likely to arise again.” State ex rel. Romley v. Martin, 203 Ariz. 46, ¶ 4
(App. 2002).
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STATE v. HON. MARNER
Opinion of the Court
¶4 We agree with the parties that this case involves several
factors supporting special action review, specifically, the issue presented is
a matter of statewide importance and a pure question of law that is likely
to recur. As the state also points out, resolution of this issue now is
particularly important because it “informs plea negotiations and is
necessary to the calculus of a defendant’s balancing of the risks and benefits
of accepting a plea or opting for trial.” Indeed, we have previously
addressed similar issues in special action proceedings. See, e.g., State v.
Roylston, 135 Ariz. 566, 566 (App. 1983) (trial court granted defendant’s
motion to dismiss dangerous-nature allegation, state sought special action
review, which this court accepted). We therefore exercise our discretion
and accept special action jurisdiction.
Discussion
¶5 This case involves the interpretation of two statutes: A.R.S.
§ 13-3554, which prohibits luring a minor for sexual exploitation, and A.R.S.
§ 13-705, which prescribes a range of punishments for dangerous crimes
against children. We review issues of statutory interpretation de novo.
State v. Hall, 234 Ariz. 374, ¶ 3 (App. 2014). When the language of a statute
is clear, “we need not look further to determine the statute’s meaning and
apply its terms as written.” State v. Lee, 236 Ariz. 377, ¶ 16 (App. 2014); see
also A.R.S. § 13-104 (provisions of title 13 “must be construed according to
the fair meaning of their terms to promote justice and effect the objects of
the law”). We also construe statutes that relate to the same subject matter
together, “as though they constituted one law.” State ex rel. Thomas v.
Ditsworth, 216 Ariz. 339, ¶ 12 (App. 2007) (quoting Pinal Vista Props., L.L.C.
v. Turnbull, 208 Ariz. 188, ¶ 10 (App. 2004)). Simply put, “[w]hen
construing statutes, we seek to harmonize them.” Midtown Med. Grp., Inc.
v. State Farm Mut. Auto. Ins. Co., 220 Ariz. 341, ¶ 22 (App. 2008); see also State
v. Bowsher, 225 Ariz. 586, ¶ 14 (2010) (“When construing two statutes, this
Court will read them in such a way as to harmonize and give effect to all of
the provisions involved.”).
¶6 Section 13-3554 provides:
A. 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.
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STATE v. HON. MARNER
Opinion of the Court
B. It is not a defense to a prosecution for a
violation of this section that the other person is
not a minor.
C. Luring a minor for sexual exploitation is a
class 3 felony, and if the minor is under fifteen
years of age it is punishable pursuant to
§ 13-705. A person who is convicted of a
violation of this section is not eligible for
suspension of sentence, probation, pardon or
release from confinement on any basis except as
specifically authorized by § 31-233, subsection
A or B until the sentence imposed by the court
has been served or commuted.
The relevant portions of § 13-705 provide:
R. A dangerous crime against children is in the
first degree if it is a completed offense and is in
the second degree if it is a preparatory offense,
except attempted first degree murder is a
dangerous crime against children in the first
degree.
S. It is not a defense to a dangerous crime
against children that the minor is a person
posing as a minor or is otherwise fictitious if the
defendant knew or had reason to know the
purported minor was under fifteen years of age.
T. For the purposes of this section:
1. “Dangerous crime against children” means
any of the following that is committed against a
minor who is under fifteen years of age:
....
(s) Luring a minor for sexual exploitation.
¶7 The respondent judge applied the plain language of
§ 13-3554(C) to conclude that “because there is not an actual minor under
the age of 15 in this case, . . . § 13-705 does not apply.” The respondent
further determined that “no conflict exists” between § 13-3554(C) and
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Opinion of the Court
§ 13-705(T) because they both require “an actual minor under 15 years of
age.” However, the respondent reflected that “the issue becomes murky”
when considering § 13-705(S). Nonetheless, he concluded that accepting
the state’s argument that the DCAC designation applies in this case would
require him to “ignore the language” in § 13-705(T)(1), which “defines a
dangerous crime against children as one ‘that is committed against a minor
who was under fifteen years of age.’” Instead, the respondent adopted
Haniffa’s suggestion that § 13-705(S) “is more properly focused on section
(R) of the statute, which distinguishes between completed/first degree
offenses and preparatory/second degree offenses, as opposed to section (T)
which defines dangerous crimes against children as those listed and which
were committed against a minor who was under fifteen years of age.” And
because luring under § 13-3554 is a completed offense, Mejak v. Granville,
212 Ariz. 555, ¶ 18 (2006), the respondent concluded that § 13-705(S) does
not apply.
I.
¶8 We agree with the trial court’s reading of § 13-3554,
subsections (B) and (C). Subsection (B) plainly states that defendants may
be convicted of luring even if their target is a fictitious minor. § 13-3554(B).
In equally plain language, subsection (C) states that enhanced sentencing
under the DCAC statute applies only when the defendant has targeted an
actual minor under the age of fifteen. § 13-3554(C) (“if the minor is under
fifteen years of age” luring for sexual exploitation “is punishable pursuant
to § 13-705”). This has been our court’s settled understanding of that
provision. See State v. Regenold, 227 Ariz. 224, ¶ 4 (App. 2011) (“use of the
word ‘minor’ in § 13-3554(C) refers to an actual child”); State v. Villegas, 227
Ariz. 344, ¶ 3 (App. 2011) (same); see also Boynton v. Anderson, 205 Ariz. 45,
¶ 15 (App. 2003) (“Although luring a minor for sexual exploitation is not a
‘dangerous crime against children,’ the legislature has prescribed that it is
punishable in accordance with [§ 13-705] under certain circumstances, i.e.
when the minor is under fifteen years of age.”). The legislature has had
ample opportunity to amend the plain language of § 13-3554(C) if it
intended to extend DCAC sentencing enhancement beyond our reading of
it.
¶9 The state contends, however, that we should instead construe
the term “minor” as used in subsection (C) as a term of art that encompasses
both actual and fictitious minors. Specifically, the state asserts that
subsections (A) and (B) of § 13-3554 use the term “a minor,” while
subsection (C) uses the term “the minor.” The state reasons that “the word
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STATE v. HON. MARNER
Opinion of the Court
‘the’ in ‘the minor’ refers to the person who is the object of the offense
(Subsection (A)), whom the offender knows or has reason to know is ‘a
minor.’” But, we decline to speculate that our legislature intended to
articulate the sentencing consequences of a serious criminal act with such
subtle changes in its use of articles. Rather, the term “minor,” whether
preceded by either “the” or “a,” has an established meaning in Arizona
statutes: “a person under eighteen years of age.” A.R.S. § 1-215(21).
¶10 Perhaps more importantly, when drafting § 13-3554, the
legislature capably articulated distinctions between minors and those
posing as minors, using plain and unambiguous language. See § 13-3554(B)
(no defense to criminal liability that “the other person is not a minor”).
However, no such distinctions appear in subsection (C). Cf. State v.
Mahaney, 193 Ariz. 566, ¶ 15 (App. 1999) (if legislature “had intended to
prohibit probable harm rather than possible harm, it would have clearly
said so,” as it did in another statute). In essence, the state ultimately
maintains that subsection (C) requires DCAC enhancement for those who
target minors under fifteen years of age or those posing as minors under fifteen.
But that is simply not the language the legislature has provided us.
¶11 The state also contends that our supreme court’s reasoning in
State ex rel. Polk v. Campbell, 239 Ariz. 405 (2016), demonstrates the term
“minor” may be understood in some contexts as a term of art that includes
those posing as minors. In Polk, the court determined that “minor,” as used
in the child prostitution statute, “means a person who is fifteen, sixteen, or
seventeen years of age, a peace officer posing as a minor aged fifteen to
seventeen years, or someone assisting a peace officer by posing as a minor
aged fifteen to seventeen years.” Id. ¶ 17. However, the court also
recognized that “the luring and child prostitution statutes are materially
different.” Id. ¶ 15. And, in a later case, our supreme court rejected the
application of Polk’s reasoning to § 13-705(T).1 Wright v. Gates, 243 Ariz. 118,
¶ 15 (2017). There, it reasoned that “[t]he context and history of the DCAC
statute do not support reading the phrase ‘minor who is under fifteen years
of age’ to include fictitious children.” Id. In light of that reasoning, coupled
with the plain text of § 13-3554(C), we cannot agree that the term “minor,”
as used in the luring statute, includes a police officer posing as one.
1Section 13-705 has since been renumbered. See, e.g., 2017 Ariz. Sess.
Laws, ch. 167, § 3. We refer to the current subsections throughout this
opinion.
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STATE v. HON. MARNER
Opinion of the Court
¶12 The state also contends our reading of § 13-3554(C) places that
provision at odds with the more recently enacted § 13-705(S). It plausibly
reads the latter statute as globally providing that DCAC sentencing
enhancements apply equally to those who target actual children and
fictitious ones. See § 13-705(S) (no defense to a DCAC “that the minor is a
person posing as a minor or is otherwise fictitious”); see also
§ 13-705(T)(1)(s) (listing “luring a minor for sexual exploitation” as a
DCAC). But this reasoning overlooks that, pursuant to the express
instruction of § 13-3554(C), no part of § 13-705 is implicated unless the
victim is an actual minor. § 13-3554(C) (only “if the minor is under fifteen
years of age” is luring “punishable pursuant to § 13-705”). Only then would
we turn to § 13-705 to determine the appropriate sentencing range. Because
the language of § 13-3554(C) is plain and unambiguous, because its
language instructs us that § 13-705 plays no role in sentencing unless the
victim is an actual minor under the age of fifteen, and because the person
Hannifa allegedly lured here was not an actual minor, we need not resort
to other methods of statutory interpretation or harmonization to determine
the applicability of § 13-705 to the instant case. See Lee, 236 Ariz. 377, ¶ 16.
II.
¶13 Even assuming the meaning of § 13-3554(C) were subject to
two reasonable interpretations, we should reach the same conclusion in
construing § 13-3554 and § 13-705 together. See Thomas, 216 Ariz. 339, ¶ 12.
As the respondent judge pointed out, § 13-3554(C) and § 13-705(T) are
harmonious when each is read to require an actual minor under fifteen
years of age.
¶14 Section 13-705(S) does not change this result. As stated above,
that statute provides that “[i]t is not a defense to a dangerous crime against
children that the minor is a person posing as a minor or is otherwise
fictitious if the defendant knew or had reason to know the purported minor
was under fifteen years of age.” But, as the respondent judge pointed out,
the subsequent subsection, § 13-705(T)(1), simultaneously provides the
definition of “dangerous crime against children” as one of the enumerated
offenses that is committed against an actual minor who is under fifteen
years of age.2 We should read these provisions in harmony with each other.
2We do not further debate whether this language in § 13-705(T) refers
only to an actual minor. In Wright, 243 Ariz. 118, ¶¶ 1, 17-18, our supreme
court expressly so held. This was the settled meaning of subsection (T)
when the legislature adopted § 13-705(S) without amending subsection (T).
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STATE v. HON. MARNER
Opinion of the Court
See State v. Thomason, 162 Ariz. 363, 366 (App. 1989) (“Courts construe
seemingly conflicting statutes in harmony when possible.”). We should
therefore understand subsection (S) to address threshold criminal liability
for dangerous crimes against children, while subsection (T) provides the
requirements for sentencing enhancement.
¶15 In context, then, § 13-705(S) applies the principle of
§ 13-3554(B)—that it is not a defense to a prosecution for luring that the
minor was fictitious—to other potential DCAC offenses, specifically
preparatory ones.3 Notably, the operative language of § 13-705(S), using
the word “defense,” closely tracks the language of § 13-3554(B), a provision
which, in context, plainly defines the elements of criminal liability for luring
as distinguished from the appropriate sentencing range once convicted, the
topic of § 13-3554(C).
¶16 My dissenting colleague would read § 13-705(S) more broadly
to mean it is not a defense to any DCAC sentencing enhancement that a minor
is fictitious. That argument is not trivial. Indeed, the legislature placed that
provision in the part of our code that addresses sentencing enhancement.
And, subsection (S) refers specifically to dangerous crimes against
children—a category of offenses defined by the sentencing enhancements
attached to them. But the state’s reading—that § 13-705(S) precludes any
distinction whatsoever between actual children and fictitious ones for
DCAC sentencing enhancement purposes—would make § 13-705(S)
directly conflict with the jurisprudentially settled meaning of § 13-705(T),
see supra n.2, a provision the legislature chose not to amend when it enacted
3The dissenting opinion mischaracterizes this reading of § 13-705(S)
as applying exclusively to preparatory offenses. To be sure, many criminal
acts that target children, but do not ultimately involve harming an actual
child, are most logically charged as preparatory offenses. For this reason,
the language in § 13-705(S) clarifying that defendants face criminal liability
for preparatory crimes—even in the absence of an actual child victim—may
well have been the legislature’s primary motivation in enacting that
provision. Both the legislative history of § 13-705(S), and its placement
adjacent to § 13-705(R), further support that as a plausible legislative
purpose. See infra ¶¶ 16-19. Nonetheless, the final language contains no
such limitation. In my view, the plain language of § 13-705(S) establishes
criminal liability for both preparatory and completed potential DCAC
crimes in the absence of an actual child victim. Contrary to the state’s
contention, this reading does not render § 13-705(S) a nullity.
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STATE v. HON. MARNER
Opinion of the Court
subsection (S). Further, the legislature’s use of the phrase “[i]t is not a
defense” in § 13-705(S) semantically reinforces that its topic was criminal
liability rather than sentencing enhancement. See Defense, Black’s Law
Dictionary (12th ed. 2024) (defining the term as “[a] defendant’s stated
reason why the . . . prosecutor has no valid case”). Elsewhere in our
criminal statutes and rules, as in § 13-3554(B), “a defense” typically refers
to a potential exemption from criminal liability that must be litigated to a
fact-finder, not to grounds for the ultimate judicial determination of the
applicable sentencing range once such liability has been established.4
¶17 The legislative history of § 13-705(S) further supports this
analysis. The legislature drafted and enacted that provision in response to
our supreme court’s opinion in Wright. See 2018 Ariz. Sess. Laws, ch. 181,
§ 1; see also H. Summary of H.B. 2244, 53rd Leg., 2d Reg. Sess. (Ariz. Apr. 3,
2018). There, as discussed above, the court concluded that § 13-705(T)(1)
“requires an actual child victim for DCAC enhanced sentences to apply to
the enumerated offenses.” Wright, 243 Ariz. 118, ¶ 18. The court further
observed, “[I]f the legislature intended to include fictitious children within
the DCAC sentencing scheme, it would have included language such as ‘a
person posing as a minor under the age of fifteen’” in § 13-705(T)(1). Id.
¶ 17.
¶18 The initial version of the proposed bill amending § 13-705
included the exact language suggested by our supreme court. See H.B. 2244,
53rd Leg., 2d Reg. Sess. (Ariz. 2018) (adding “including a person posing as
a minor who is under fifteen years of age” to § 13-705(T)(1)). However, the
legislature ultimately declined to so amend the definitional language in
§ 13-705(T)—which Wright had determined required an actual minor. It
instead adopted the different language of § 13-705(S), paralleling the
language used in § 13-3554(B), focused on defenses. This change is
significant. Notably, our supreme court has “urge[d] the legislature to be
as explicit as possible in specifying criminal penalties” because of the
“importance of providing clear notice of the consequences for criminal
4See, e.g., A.R.S. §§ 13-205 (burden of proof for “affirmative defenses”
in chapter labeled “General Principles of Criminal Liability”), 13-206(A)
(entrapment is “affirmative defense to a criminal charge” set forth in same
chapter), 13-304 (“[n]ondefenses to criminal liability”), 13-401 through
13-421 (identifying justification defenses); Ariz. R. Crim. P. 15.2(b) (setting
forth defendant’s obligation to provide “notice of defenses” to criminal
liability), 15.7(c)(1) (sanctions for failing to timely disclose defenses).
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conduct.” Polk, 239 Ariz. 405, ¶ 17. Accordingly, if the legislature intended
to alter the definitional requirements of § 13-705(T) to apply to fictitious
minors, we should insist that it plainly say so—as indeed it contemplated
in the original bill. Instead, it chose to leave § 13-705(T), and our supreme
court’s binding construction of it, untouched.
¶19 The placement of § 13-705(S) immediately after § 13-705(R),
which addresses completed and preparatory offenses, likewise supports
Haniffa’s argument—and the respondent judge’s reasoning—that
subsection (S) was primarily adopted to address criminal liability for
preparatory offenses, like those at issue in Wright.5 Put another way,
§ 13-705(S) provides that it is not a defense to a preparatory or completed
DCAC offense that the minor is fictitious if the defendant knew or had
reason to know that the purported minor was under the age of fifteen.
¶20 At oral argument, the state contended that our supreme court
had recently adopted its understanding of subsection (S) in State v.
Moninger, ___ Ariz. ___, 552 P.3d 519 (2024). The state specifically argued
that if our supreme court had thought the luring of a fictitious minor could
not be classified as a DCAC offense, it would have said so when
determining the appropriate sentencing range in that case. In Moninger, the
court addressed whether a luring conviction was probation eligible under
§ 13-705(K). ___ Ariz. ___, ¶ 36, 552 P.3d at 526-27. The court concluded
that the completed offense of luring a minor under the age of fifteen—in
that case, an undercover officer posing as a thirteen-year-old girl—is a
first-degree DCAC offense and is therefore ineligible for probation. Id.
¶¶ 3, 39. Although Moninger involved the luring of a fictitious minor in the
context of the DCAC statute, the issue currently before us—whether such
an offense is DCAC eligible under § 13-3554(C)—was neither raised nor
litigated. The court in Moninger therefore had no reason to address it and,
not surprisingly, made no statement on it. Moninger therefore provides no
authority, dicta, or reasoning pertinent to the issue before us.
¶21 Our legislature could reasonably conclude that those who
intend to commit a criminal act against a fictitious child should suffer equal
sentencing consequences to those who have the same intent and victimize
an actual child. But the legislature could also reasonably conclude that,
although the former should be found equally liable for the same serious
5In Wright, our supreme court determined that solicitation of an
enumerated DCAC offense, which is a preparatory as opposed to
completed offense, is a second-degree DCAC. 243 Ariz. 118, ¶¶ 9-12.
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Opinion of the Court
criminal offense as the latter, the most severe sentencing consequences
should be reserved for those who actually harm a child. This is how our
supreme court has interpreted the subsection currently codified as
§ 13-705(T). See Wright v. Gates, 243 Ariz. 118, ¶¶ 15-16 (reasoning
legislative scheme of “graduated sanctions” in § 13-705 suggest intent to
impose “less severe punishment when there is no actual child victim”;
further observing that original legislative history of DCAC reinforces that
understanding). In my view, we are bound to construe § 13-705(S) in
harmony with our supreme court’s understanding of § 13-705(T). State v.
Smyers, 207 Ariz. 314, n.4 (2004).
¶22 In sum, both the plain language of § 13-3554(C) and our
supreme court’s settled understanding of § 13-705(T) instruct that luring a
minor for sexual exploitation is only eligible for a DCAC sentencing
enhancement if the act has been committed against an actual minor victim
under the age of fifteen. And because it is undisputed that no such victim
existed in this case, the respondent judge did not err in granting Haniffa’s
motion to dismiss the DCAC sentencing enhancement allegation. See Hall,
234 Ariz. 374, ¶ 3.
Disposition
¶23 For the reasons set forth in Part I of this opinion,6 we accept
special action jurisdiction, deny relief, and hold that DCAC sentencing
enhancements do not apply to a conviction pursuant to § 13-3554 unless the
defendant targeted an actual child under the age of fifteen.
S T A R I N G, Chief Judge, concurring in part:
¶24 I concur with Judge Eckerstrom in the result. But I would
conclude the majority opinion at the end of paragraph 12. Because the
disposition of this matter does not require us to go beyond plain language
analysis, I do not join in the analysis in paragraphs 13-22.
G A R D, Presiding Judge, dissenting:
¶25 The legislature has adopted a comprehensive statutory
scheme to prosecute and punish those who sexually exploit children.
See A.R.S. §§ 13-3551−13-3562. This scheme includes A.R.S. § 13-3554,
6Neither Chief Judge Staring nor Presiding Judge Gard join in Part II
of the foregoing opinion.
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Opinion of the Court
which establishes the offense of luring a minor for sexual exploitation, and
A.R.S. § 13-705, which establishes enhanced sentencing ranges for specific
enumerated offenses—including luring—designated dangerous crimes
against children (DCAC). See §§ 13-3554(C), 13-705(G), (T)(1)(s). And in
both the luring and DCAC statutes, the legislature expressly provided that
it is “not a defense” that the minor victimized was not, in reality, a minor.
§§ 13-3554(C), 13-705(S). Despite this language, however, the majority
effectively concludes that a minor’s fictitious nature is a defense to a DCAC
allegation against a defendant charged with luring. Because I believe the
majority misinterprets the relevant statutes, I respectfully dissent.
¶26 “Statutory interpretation requires us to determine the
meaning of the words the legislature chose to use.” S. Ariz. Home Builders
Ass’n v. Town of Marana, 254 Ariz. 281, ¶ 31 (2023). “We do so neither
narrowly nor liberally, but rather according to the plain meaning of the
words in their broader statutory context, unless the legislature directs us to
do otherwise.” Id. “We do not . . . consider words in isolation when
interpreting statutes.” Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323,
¶ 12 (2011); see In re Drummond, ___ Ariz. ___, ¶ 9, 543 P.3d 1022, 1026 (2024)
(when interpreting statutes, “[w]e do not view statutory words in isolation,
but rather draw their meaning from the context in which they are used”
(quoting DBT Yuma, L.L.C. v. Yuma Cnty. Airport Auth., 238 Ariz. 394, ¶ 10
(2015))). Instead, we “view ‘the statute as a whole’ to ‘give meaningful
operation to all of its provisions.’” Columbus Life Ins. Co. v. Wilmington
Trust, N.A., 255 Ariz. 382, ¶ 11 (2023) (quoting Wyatt v. Wehmueller, 167 Ariz.
281, 284 (1991)). Put simply, “[w]ords in statutes should be read in context
in determining their meaning.” Stambaugh v. Killian, 242 Ariz. 508, ¶ 7
(2017).
¶27 And when two statutes are interrelated, we treat them as part
of the same statutory scheme. See SolarCity Corp. v. Ariz. Dep’t of Revenue,
243 Ariz. 477, ¶ 8 (2018) (“The best indicator of [the legislature’s] intent is
the statute’s plain language, which we read in context with other statutes
relating to the same subject or having the same general purpose . . . .”). We
therefore consider “statutes that are in pari materia—of the same subject or
general purpose—for guidance and to give effect to all of the provisions
involved.” Stambaugh, 242 Ariz. 508, ¶ 7.
¶28 Sections 13-3554 and 13-705 are interrelated and therefore
must be considered together. See id.; SolarCity Corp., 243 Ariz. 477, ¶ 8.
Section 13-3554 consists of three subsections. The first, § 13-3554(A),
defines the elements of luring: “A person commits luring a minor for sexual
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Opinion of the Court
exploitation by offering or soliciting sexual conduct with another person
knowing or having reason to know that the other person is a minor.” The
second, § 13-3554(B), establishes that a defendant may be prosecuted for
luring even when the person lured is an adult posing as a minor: “It is not
a defense to a prosecution for a violation of this section that the other person
is not a minor.” And the third, § 13-3554(C), designates luring as a class 3
felony and further provides, in relevant part: “[I]f the minor is under fifteen
years of age it is punishable pursuant to § 13-705.”
¶29 Section 13-705, in turn, enumerates the offenses qualifying for
the DCAC enhancement and establishes their sentencing ranges. Section
13-705(T)(1) provides: “For the purposes of this section . . . ‘[d]angerous
crime against children’ means any of the following that is committed
against a minor who is under fifteen years of age.” Luring is included in
the enumerated offenses, see § 13-705(T)(1)(s), and § 13-705(G) establishes
the enhanced sentencing range applicable to that offense. And of particular
relevance here, § 13-705(S) provides: “It is not a defense to a dangerous
crime against children that the minor is a person posing as a minor or is
otherwise fictitious if the defendant knew or had reason to know the
purported minor was under fifteen years of age.”
¶30 “Reading these statutes in concert [thus] indicates,” at least in
my view, “a comprehensive statutory scheme governing” both the
prosecution of and sentencing for luring. Columbus Life Ins. Co., 255 Ariz.
382, ¶ 15. Under this scheme, § 13-3554(B) makes clear that a defendant
cannot escape liability for a violation of § 13-3554 if the minor he lured was
fictitious. Both § 13-3554(C) and § 13-705(T)(1)(s) identify luring as a DCAC
offense when it involves a minor younger than the age of fifteen. And the
DCAC statute provides that a defendant may not evade the DCAC
enhancement if he had reason to believe the targeted minor was younger
than fifteen years of age, even if that person was not, in fact, a minor at all.
§ 13-705(S).
¶31 The majority, however, opines that the analysis should begin
and end with § 13-3554 because subsection (C) of that statute, by its plain
terms, does not permit the DCAC enhancement unless the targeted minor
is actually under the age of fifteen years. And even if § 13-3554 could be
read to make a defendant eligible for the DCAC enhancement, my colleague
opines that § 13-705 independently requires an actual minor’s existence for
the enhancement to apply. For the reasons explained above, I do not believe
we should read § 13-3554 in isolation from § 13-705. Nonetheless, I address
each statute separately below.
13
STATE v. HON. MARNER
Opinion of the Court
I. Section 13-3554
¶32 Section 13-3554(C) does not expressly distinguish between
actual and fictitious minors. But neither does § 13-3554(A), which
encompasses fictitious minors by virtue of § 13-3554(B). Unlike the
majority, I do not read subsection (B) as applying only to subsection (A),
nor do I discern anything in the text of subsection (C) dictating that
§ 13-705’s enhancement applies only when the person lured is actually
younger than fifteen years of age.
¶33 The majority turns to A.R.S. § 1-215(21) to define the word
“minor,” as used in § 13-3554(C), as a person under the age of eighteen
years. I agree that when the legislature has defined a statutory term, we
must apply that definition. See Zumar Indus., Inc. v. Caymus Corp., 244 Ariz.
163, ¶ 14 (App. 2017) (“When a statutory scheme expressly defines certain
terms, we are bound by those definitions in construing a statute within that
scheme.” (quoting State v. Wilson, 200 Ariz. 390, ¶ 20 (App. 2001))). But
here, the legislature expressly provided that the definitions in § 1-215 apply
“unless the context otherwise requires.” (Emphasis added.) See also A.R.S.
§ 13-3551(6) (“In this chapter, unless the context otherwise requires . . .
‘[m]inor’ means a person or persons who were under eighteen years of age
at the time a visual depiction was created, adapted or modified.”)
(emphasis added). And in my opinion, the context of the word “minor” in
§ 13-3554(C) requires that the term be defined to include both actual and
fictitious minors.
¶34 The majority correctly acknowledges that a defendant may be
found guilty of luring under § 13-3554 regardless whether the minor lured is
actual or fictitious. By so doing, the majority necessarily agrees that the
word “minor,” as used in subsection (A), includes both chronological
minors and persons posing as such. After all, if the majority is correct in its
interpretation of subsection (C), any other construction of subsection (A)
would make subsection (B) superfluous. See Nicaise v. Sundaram, 245 Ariz.
566, ¶ 11 (2019) (“A cardinal principle of statutory interpretation is to give
meaning, if possible, to every word and provision so that no word or
provision is rendered superfluous.”).
¶35 Because the word “minor” in § 13-3554(A) must be read to
include both actual and fictitious minors, the word must carry the same
meaning in § 13-3554(C). As the state correctly recognizes, subsection (A)
establishes the luring offense and introduces “a minor” as the object of that
offense. Subsection (C), in turn, identifies the offense’s felony class and
makes the DCAC enhancement available if “the minor”—meaning the
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STATE v. HON. MARNER
Opinion of the Court
minor already identified in subsection (A) as the offense’s object—is
younger than fifteen years of age. See Smith v. Melson, Inc., 135 Ariz. 119,
121 (1983) (“Unlike the indefinite article ‘a,’ ‘the’ is a definite article used in
reference to a particular thing.”). Because the “minor” referenced in
subsection (A) may be either actual or fictitious, it follows that the “minor”
in subsection (C)—being the same minor already identified in subsection
(A)— includes both actual and fictitious minors younger than fifteen years
of age.
¶36 I am likewise not persuaded by the majority’s conclusion that
§ 13-3554(B) pertains to the substantive elements of the offense but not the
DCAC enhancement. The majority relies on language in subsection (B)
providing that it is not a “defense” that the lured minor is not, in fact, a
minor. (Emphasis added.) But a criminal defendant may “defend” against
any allegation brought against him by the state, including a sentencing
allegation. See Defense, Merriam-Webster, https://merriam-webster.com
(last visited Sept. 22, 2024) (defining “defense” as “the denial, answer, or
plea of one against whom a criminal or civil action is brought.”); Defense,
Black’s Law Dictionary (12th ed. 2024) (defining “defense” as “[a]
defendant’s stated reason why the plaintiff or prosecutor has no valid case;
esp., a defendant’s answer, denial, or plea”). And the majority’s reliance on
statutes and procedural rules using the word “defense” in connection with
the guilt-innocence question does not exclude the term from applying to the
state’s sentencing allegations.
¶37 Accordingly, for the reasons I have explained, “the minor”
referenced in § 13-3554(C) must include both actual and fictitious minors. I
therefore cannot join the majority’s conclusion that subsection (C), standing
alone, precludes enhanced DCAC sentencing when there is no actual minor
under the age of fifteen. Rather, I would conclude that, even when read
outside of the context of § 13-705, § 13-3554 authorizes a defendant to
receive a DCAC enhancement when he lures a fictitious minor younger
than fifteen years of age.7
7In this vein, I disagree with our decisions in State v. Villegas, 227
Ariz. 344 (App. 2011), and State v. Regenold, 227 Ariz. 224 (App. 2011),
insofar as they rely on § 13-3554’s language to conclude that an actual minor
victim is required to trigger the DCAC enhancement. But for the reasons I
discuss in Section II of this dissent, the legislature’s addition of § 13-705(S)
after we decided Villegas and Regenold makes those cases of little import
here.
15
STATE v. HON. MARNER
Opinion of the Court
II. Section 13-705
¶38 I also disagree with my colleague’s separate conclusion that,
even considering § 13-3554 in conjunction with § 13-705, a defendant may
not receive the DCAC enhancement if he lures a fictitious minor. In my
opinion, to the extent there is any ambiguity in § 13-3554, § 13-705 resolves
it by providing that offenses involving fictitious minors are subject to the
DCAC enhancement. See SolarCity Corp., 243 Ariz. 477, ¶ 8; Stambaugh, 242
Ariz. 508, ¶ 7. Specifically, § 13-705(T)(1) defines the offenses subject to the
enhancement and independently designates luring as a DCAC offense
when the minor involved is younger than fifteen years of age. Section
13-705(S), in turn, provides that it is no defense to any dangerous crime
against children—including, necessarily, luring—that the targeted minor is
not, in fact, a minor.
¶39 My colleague maintains that § 13-705(S) concerns only the
“elements of criminal liability” for the offenses enumerated in § 13-705(T),
not the DCAC enhancement. This construction, though, rests on subsection
(S)’s use of the word “defense,” which, as I have explained, is not limited to
the guilt-innocence question but may also include a defendant’s “defense”
against a sentencing allegation. Moreover, subsection (S) is embedded
within a statutory provision relating to DCAC sentencing, which, in turn, is
located within a chapter of our criminal code relating exclusively to
sentencing and imprisonment. See State v. Soza, 249 Ariz. 13, ¶ 21 (App. 2020)
(considering relevant statute’s “place in the statutory scheme” to conclude
that it was most “reasonably read as a complement to other drug laws”).
¶40 I also cannot agree with my colleague that reading § 13-705(S)
to apply to the DCAC enhancement would bring that provision into conflict
with § 13-705(T). Citing Wright v. Gates, 243 Ariz. 118, ¶¶ 1, 17-18 (2017),
my colleague contends that subsection (T)(1)—which in his view concerns
the DCAC enhancement, not the elements of the individual offenses—has
been interpreted by our supreme court to exclude fictitious minors. My
colleague notes that the legislature did not change subsection (T)’s wording
when adopting subsection (S) in response to Wright.
¶41 But notwithstanding the lack of changes to § 13-705(T)’s
wording, § 13-705(S) broadly provides that it is not a defense to a dangerous
crime against children—including, necessarily, all of those enumerated in
subsection (T)—that a minor is fictitious. Moreover, my colleague’s
interpretation of subsections (S) and (T) would, as the state recognizes,
nullify subsection (S) because there would be “no scenario in which [it]
could ever apply.” See Nicaise, 245 Ariz. 566, ¶ 11. In other words, if
16
STATE v. HON. MARNER
Opinion of the Court
subsection (T) requires an actual minor before an offense may qualify for
the DCAC enhancement, there is no circumstance in which a defendant
could receive that enhancement for victimizing a fictitious minor. “[W]e
avoid constructions that would render statutes invalid or parts of them
meaningless.” State v. Thompson, 204 Ariz. 471, ¶ 10 (2003). My colleague’s
construction does just that to subsection (S).
¶42 Finally, § 13-705(S)’s legislative history does not persuade me
to a different result.8 Primarily, as I have explained, the statutory text and
its context answers the question here, making the legislative history
irrelevant. See State v. Ewer, 254 Ariz. 326, ¶ 20 (2023) (“We do not consider
legislative history when the correct legal interpretation can be determined
from the plain statutory text and the context of related statutes.”). But even
were we to consider that history, it would not, in my view, support my
colleague’s interpretation.
¶43 My colleague observes that an early version of the
amendment would have added language to § 13-705(T)(1) clarifying that a
crime is a DCAC even if it involves a fictitious minor, but the legislature
struck this language and adopted § 13-705(S) instead. See H.B. 2244, 53rd
Leg., 2d Reg. Sess. (Ariz. 2018). As the state recognizes, however, the record
is silent as to why the legislature made this change, and we should not
speculate about those reasons. And were we to so speculate, it is equally
likely that the legislature believed, as I do, that § 13-705(S) adequately
8My colleague relies on Wright and § 13-705(S)’s placement after
§ 13-705(R), which creates different classes for completed and preparatory
DCAC offenses, to conclude that subsection (S) reflects the legislature’s
primary intent “to address criminal liability for preparatory offenses, like
those at issue in Wright.” But unlike subsection (R), subsection (S) does not
distinguish between completed and preparatory offenses and instead
applies, by its plain terms, to all DCAC offenses. See City of Flagstaff v.
Mangum, 164 Ariz. 395, 398 (1990) (“Where the legislature uses a term
within one [subsection] and excludes it from another, the term usually will
not be read into the provision from which it was excluded.”). Nor is there
anything in the larger statutory structure suggesting that the legislature
intended subsection (S) to apply primarily to preparatory offenses. “Courts
will not read into a statute something that is not within the manifest intent
of the legislature as indicated by the statute itself, nor will the courts inflate,
expand, stretch, or extend a statute to matters not falling within its express
provisions.” Cicoria v. Cole, 222 Ariz. 428, ¶ 15 (App. 2009).
17
STATE v. HON. MARNER
Opinion of the Court
addressed the issue. See City of Flagstaff v. Mangum, 164 Ariz. 395, 402 (1990)
(observing that a bill’s rejection by the legislature “is an unsure and
unreliable guide to statutory construction” because “one could also argue
that the legislature considered the proposed legislation unnecessary”).
¶44 For these reasons, I would conclude that § 13-3554, standing
alone or viewed in conjunction with § 13-705, permits a defendant to receive
the DCAC enhancement for luring a fictitious minor. I therefore
respectfully dissent.
18