State v. Hon ainley/head

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA ex rel. SHEILA SULLIVAN POLK,
Yavapai County Attorney, Petitioner,
v.
THE HONORABLE TINA R. AINLEY, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of YAVAPAI,
Respondent Judge,
DANIEL NEWTON HEAD,
Real Party in Interest.
No. 1 CA-SA 15-0110
FILED 10-29-2015
Petition for Special Action from the Superior Court in Yavapai County
No. P1300CR201400418
The Honorable Tina R. Ainley, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Yavapai County Attorney’s Office, Prescott
By Robert J. Johnson
Counsel for Petitioner
Law Office of David Michael Cantor, PC, Phoenix
By Michael Alarid, III
Counsel for Real Party in Interest
STATE v. HON. AINLEY/HEAD
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.
K E S S L E R, Judge:
¶1 The State seeks special action relief from the superior court’s
order regarding the sentencing range available for the crime of knowingly
engaging in prostitution with a police officer posing as a minor who is 15,
16, or 17 years old. See Ariz. Rev. Stat. (“A.R.S.”) § 13-3212(B)(2) (Supp.
2014).1 Daniel Newton Head was indicted for allegedly soliciting two
undercover police officers for sex after the officers represented they were
each 16 years old. In light of our decision in State v. Campbell (Kraps), 1 CA-
SA 15-0107, 2015 WL 4626844 (Ariz. App. Aug. 4, 2015), we hold an
individual convicted under A.R.S. § 13-3212(B)(2) for engaging in
prostitution with a police officer posing as a 16-year-old, is sentenced as a
class 2 felony subject to the sentencing enhancements in A.R.S. § 13-3212(G).
Accordingly, we accept special action jurisdiction and grant relief.
FACTUAL AND PROCEDURAL HISTORY
¶2 In a sting operation, police officers posed as 16-year-olds in
online advertisements and offered to engage in sexual conduct for money.
Head allegedly called the “minors,” they told him they were 16 years old,
and he ultimately agreed to meet them at a Prescott hotel room. At that
meeting, Head allegedly offered them money for sex. After his arrest, Head
was indicted on two class 2 felony charges of child prostitution under A.R.S.
§ 13-3212(B)(2). Head sought clarification of the applicable sentencing
range, and the superior court held that the enhanced sentence provided by
A.R.S. § 13-3212(G) required the other person to actually be 15, 16, or 17
years old. The court stayed its ruling while the State sought special action
1The legislature has revised the statute effective July 24, 2014. This case
concerns A.R.S. § 13-3212, as it was in effect from July 20, 2011 to July 23,
2014. See generally State v. Campbell (Kraps), 1 CA-SA 15-0107, 2015 WL
4626844, at *1 n.1, ¶ 1 (Ariz. App. Aug. 4, 2015) (quoting version of A.R.S. §
13-3212 in existence from July 20, 2011 to July 23, 2014).
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STATE v. HON. AINLEY/HEAD
Decision of the Court
relief. While the State’s petition was pending, we held this matter in
abeyance until we could decide the identical issue in Campbell, 2015 WL
4626844, at *1, ¶ 5. Once Campbell was decided, we asked all parties to
address the applicability of Campbell to this action.
JURISDICTION
¶3 Special action jurisdiction is available when there is no other
equally plain, speedy or adequate remedy by appeal. Ariz. R.P. Spec. Act.
1(a). Special action jurisdiction is appropriately invoked when there is an
issue of statewide importance. See State v. Bernini (Lopez), 230 Ariz. 223, 225,
¶ 5, 282 P.3d 424, 426 (App. 2012) (determining special action jurisdiction
appropriate in case involving pure issue of law that had arisen at least twice
within several months); State ex rel. Romley v. Martin, 203 Ariz. 46, 47, ¶ 4,
49 P.3d 1142, 1143 (App. 2002) (“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.”), aff’d on other
grounds, 205 Ariz. 279, 69 P.3d 1000 (2003). Given the reoccurring nature of
this type of case, to avoid conflicting decisions by the superior court, and
given the serious nature of child prostitution, we accept jurisdiction.
DISCUSSION
¶4 The issue presented is whether the enhanced sentencing
provisions in A.R.S. § 13-3212(G) that apply to convictions based on
engaging in prostitution with minors who are age 15, 16, or 17 also apply to
convictions for engaging in prostitution with adult police officers posing as
minors of those same ages. This is an issue of statutory construction which
we review de novo. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz.
526, 529, 869 P.2d 500, 503 (1994). In construing statutes, statutory language
is “the best and most reliable index of a statute’s meaning.” State v. Cramer,
192 Ariz. 150, 152, ¶ 10, 962 P.2d 224, 226 (App. 1998) (internal quotation
marks and citation omitted). We construe statutes in a practical, common-
sense manner so as to fulfill the legislative intent and avoid absurd results.
See A.R.S. § 1-211 (2002); State v. Cornish, 192 Ariz. 533, 537, ¶ 16, 968 P.2d
606, 610 (App. 1998) (“Courts will apply constructions that make practical
sense rather than hypertechnical constructions that frustrate legislative
intent.”); State v. Flores, 160 Ariz. 235, 239, 772 P.2d 589, 593 (App. 1989) (“In
construing a statute, courts should give the statute a sensible construction
which will accomplish legislative interest and purpose, and which will
avoid absurd results.”). Whenever possible, we will give meaningful
operation to all of the statutory provisions. Wyatt v. Wehmueller, 167 Ariz.
281, 284, 806 P.2d 870, 873 (1991).
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STATE v. HON. AINLEY/HEAD
Decision of the Court
¶5 In Campbell, we held that the enhanced sentencing provisions
in A.R.S. § 13-3212(G) apply when the defendant is led to believe that the
other person is 15, 16, or 17 years old even though the other person is an
adult police officer posing as 15, 16, or 17 years old. 2015 WL 4626844, at
*4, ¶ 13. Head argues that Campbell was wrongly decided. The State argues
that Campbell was correctly decided and controls the result in this case. We
agree with the State, adopt the reasoning in Campbell, and reaffirm the
holding in Campbell.
¶6 The crime at issue is “[e]ngaging in prostitution with a minor
who the person knows is fifteen, sixteen or seventeen years of age.” A.R.S.
§ 13-3212(B)(2). As in Campbell, we conclude “the statutory language is
clear: Subsection (B)(2) crimes must be punished under Subsection (G)”
when the defendant engages in prostitution knowing the other person is
age 15, 16, or 17, even if the other person is in fact an adult police officer.
2015 WL 4626844, at *4, ¶ 13. The plain language of Subsection (G)
provides: “If the minor is fifteen, sixteen or seventeen years of age, child
prostitution pursuant to subsection A and subsection B, paragraph 2 of this
section is a class 2 felony, the person convicted shall be sentenced pursuant to this
section and the person is not eligible for . . . release . . . .” (Emphasis added.) A
defendant knows the person is 15, 16, or 17 years old if “with respect to . . .
a circumstance described by a statute defining an offense . . . a [defendant]
is aware or believes that the . . . circumstance exists,” A.R.S. § 13-105(10)(b)
(Supp. 2015).2
¶7 Head argues that Campbell was wrongly decided because, in
his view, we emphasized the wrong statutory language. Rather than
focusing on the sentence applicable to a violation of A.R.S. § 13-3212(B)(2),
see supra emphasized language ¶ 6, Head argues we should focus on the
conduct that triggers the increased penalty. Thus, according to Head,
because A.R.S. § 13-3212 consistently refers to the term “minors,” and
Subsection (C) only precludes a defense for a defendant if the other person
is a police officer posing as a minor age 15, 16, or 17, the legislature must
have intended that the enhanced sentencing provisions in Subsection (G)
be limited solely to true minors age 15, 16, or 17.
¶8 We agree with the result and reasoning in Campbell. If we
were to adopt Head’s argument we would be rewriting A.R.S. § 13-3212(G)
to add a final sentence that the legislature did not include: “If the minor is
fifteen, sixteen or seventeen years of age, child prostitution pursuant to
2We cite the current version of the applicable statute because no revisions
material to this decision have occurred.
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STATE v. HON. AINLEY/HEAD
Decision of the Court
subsection A and subsection B, paragraph 2 of this section is a class 2 felony,
the person convicted shall be sentenced pursuant to this section and the
person 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 presumptive term may be aggravated or
mitigated within the range under this section pursuant to § 13-701,
subsections C, D and E. [These sentencing provisions do not apply if the person
is not in fact a minor, but rather a police officer posing as a minor.]” (Additional
language shown in brackets and italics.)3 We will not rewrite a statute
“under the guise of judicial interpretation.” Alliance TruTrus, L.L.C. v.
Carlson Real Estate Co., 229 Ariz. 84, 87, ¶ 12, 270 P.3d 911, 914 (App. 2012).
¶9 Head also argues that Campbell incorrectly distinguished State
v. Regenold, 227 Ariz. 224, 226, ¶ 4, 255 P.3d 1028, 1030 (App. 2011), and State
v. Villegas, 227 Ariz. 344, 345, ¶ 3, 258 P.3d 162, 163 (App. 2011). We
disagree. Campbell succinctly explained that those cases dealt with a
different and distinguishable statute, luring a minor for sexual exploitation,
A.R.S. § 13-3554 (Supp. 2014). 2015 WL 4626844, at *2, ¶¶ 7-8.
¶10 Finally, Head argues Campbell misinterpreted State v. Hazlett,
205 Ariz. 523, 73 P.3d 1258 (App. 2003). Hazlett is distinguishable from the
issues here. In Hazlett, we upheld the constitutionality of Arizona’s sexual
exploitation of minors statute, A.R.S. § 13-3553 (Supp. 2002), in the context
of child pornography. 205 Ariz. at 531, ¶ 29, 73 P.3d at 1266. We held that
the statute was not constitutionally overbroad because its reference to
minors in such pornography was limited to actual minors as opposed to
simulations. Id. at 526, ¶ 7, 73 P.3d at 1261. We pointed out that a different
statute in the same scheme expressly defined a “minor” as a person “under
the age of eighteen of years of age at the time [the pornography] was
created, adapted or modified,” and that the general definitional statute in
the criminal code defined “person . . . as a human being.” Id. at 527, ¶ 9, 73
P.3d at 1262 (quoting A.R.S. §§ 13-3551 (Supp. 2002) and -105(26) (2001)).
The child pornography statutes at issue in Hazlett did not preclude a
3Head argues that under Campbell, we are essentially rewriting Subsection
(G) to read: “If the minor is fifteen, sixteen or seventeen years of age, [or the
peace officer is posing as a minor who is fifteen, sixteen or seventeen years of
age] . . . .” (Additional language shown in brackets and italics.) Our
holding in Campbell and our conclusion here do not rewrite the statute.
They give effect to the legislative intent that the reference to “minor”
throughout the statute refers to either a minor or a police officer posing as
a minor who is 15, 16, or 17 years old.
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STATE v. HON. AINLEY/HEAD
Decision of the Court
defense that the person in the depiction was an adult, but only provided
that if the person in the depiction was represented to be a minor, the finder
of fact may draw an inference that the person was a minor. Id. at 529, ¶ 16,
73 P.3d at 1264 (citing A.R.S. § 13-3556 (2010)). Since the statutes at issue in
Hazlett have no counterpart to A.R.S. § 13-3212(C), the Hazlett analysis does
not apply here.
¶11 For all of the foregoing reasons, we agree with Campbell and
hold that Subsection (G) is the appropriate sentencing regime for all
Subsection (B)(2) crimes. When the defendant knowingly seeks out a minor
for prostitution purposes, the defendant, if convicted, is subject to the
enhanced sentencing provisions of Subsection (G) even if the “victim” is an
adult undercover police officer.
CONCLUSION
¶12 For the reasons stated, we accept special action jurisdiction
and grant relief.
:ama
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