State v. Paredes-Solano

• Citation: 222 P.3d 900
• Decision Date: 24 December 2009
• Docket Number: No. 2 CA-CR 2008-0341.,2 CA-CR 2008-0341.
• Parties: The STATE of Arizona, Appellee, v. Maxamilano PAREDES-SOLANO, Appellant.
• Court: Court of Appeals of Arizona

222 P.3d 900

The STATE of Arizona, Appellee, v. Maxamilano PAREDES-SOLANO, Appellant.

No. 2 CA-CR 2008-0341.

Court of Appeals of Arizona, Division 2, Department B.

December 24, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson, Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender By M. Edith Cunningham, Tucson, Attorneys for Appellant.

OPINION

VÁSQUEZ, Judge.

¶ 1 Maxamilano Paredes-Solano appeals his convictions for two counts of sexual exploitation of a minor under fifteen years of age and a single count of child molestation, for which he was sentenced to serve thirty-four years in prison. He contends the trial court's sexual exploitation instructions to the jury were erroneous because they rendered the charges duplicitous and permitted the jury to reach potentially nonunanimous verdicts.¹ He also contends the court erred in giving the reasonable doubt instruction required by State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995), and asserts he was entitled to an instruction on jury nullification. For the reasons set forth below, we affirm Paredes-Solano's conviction and sentence for child molestation but vacate his convictions and accompanying sentences for sexual exploitation of a minor and remand to the trial court for further proceedings.

Facts and Procedure

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the jury's verdicts. See State v. Tucker, 205 Ariz. 157, n. 1, 68 P.3d 110, 113 n. 1 (2003). On February 23, 2007, Paredes-Solano took two rolls of film into a Walgreens store to be developed. After developing the film, a Walgreens employee called the police because some of the pictures depicted what appeared to be a young girl's genitalia and the same girl holding a man's penis. Paredes-Solano, whose appearance matched that of the man in the photographs, was arrested at the Walgreens on February 26 when he returned to pick up the pictures. Detectives later identified the child in the photographs who was five years old when they were taken.

¶ 3 Paredes-Solano was charged with two counts of sexual exploitation of a minor and one count of child molestation; the indictment alleged all three offenses were dangerous crimes against children. The jury found Paredes-Solano guilty of all three charges as alleged in the indictment, and the trial court sentenced him to an enhanced, presumptive seventeen-year prison term on each count. See A.R.S. § 13-705(D) (providing presumptive sentence of seventeen years for specified dangerous crimes against children). The court ordered the two sentences for sexual exploitation served consecutively to each other and the sentence for child molestation served concurrently with the sentences imposed on the other two counts. This appeal followed.

Discussion

I. Duplicitous Indictment

¶ 4 Both parties have characterized the issue here as whether the jury instruction on sexual exploitation of a minor resulted in a duplicitous charge. A duplicitous charge exists "[w]hen the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." State v. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d 844, 847 (App.2008). A duplicitous charge is different than a duplicitous indictment, which "charges `two or more distinct and separate offenses in a single count.'" Id. ¶ 10, quoting State v. Schroeder, 167 Ariz. 47, 51, 804 P.2d 776, 780 (App.1990).

¶ 5 The indictment alleged that Paredes-Solano had committed sexual exploitation by "possessing, recording, filming, photographing, developing or duplicating" visual depictions of a minor "engaged in exploitive exhibition or other sexual conduct." Paredes-Solano argues that, because "`[p]hotographing' and `developing' appear in A.R.S. § 13-3553(A)(1) while `transporting' and `possessing' appear in subsection (A)(2)[, t]his evidences a legislative intent to create separate offenses," which he contends cannot be charged in a single count.² Because he challenges the joinder in a single count of the indictment of multiple criminal acts described in two subsections of the statute, his argument is not that the evidence introduced at trial rendered the charge duplicitous, but, rather, that the indictment is duplicitous on its face. See, e.g., Klokic, 219 Ariz. 241, ¶¶ 10-13, 196 P.3d at 846-47 (finding defendant raised claim of duplicity to charge rather than indictment where indictment charged single act of aggravated assault by intentionally placing victim in reasonable apprehension of imminent physical injury and state produced evidence defendant had pointed gun at victim on two separate occasions).

¶ 6 Objections to an indictment must be raised at least twenty days before trial, Ariz. R.Crim. P. 13.5(e), 16.1(b); see also State v. Anderson, 210 Ariz. 327, ¶ 16, 111 P.3d 369, 377-78 (2005), and the failure to do so forfeits the objection absent fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Although Paredes-Solano did not object here until the close of evidence,³ at oral argument before this court, defense counsel argued a harmless error standard should apply because Paredes-Solano preserved the issue below by bringing the possibility of a nonunanimous jury verdict to the court's attention before it instructed the jury. Counsel conceded the indictment was duplicitous on its face but argued "that is not the issue here. The issue here is whether there was the possibility of a nonunanimous verdict." And she contended jury unanimity is a "separate issue which can arise from a duplicitous indictment but need not arise from a duplicitous indictment." Thus, she maintains this court should consider the issue preserved because the "duplicitous indictment wouldn't have caused a problem if the [trial] court had heeded defense counsel's advice that the way that it was instructing the jury would create the possibility of a nonunanimous verdict."

¶ 7 "We require pretrial objections to an indictment in order to allow correction of any alleged defects before trial begins. If a defendant makes a timely objection, the State can remedy any duplicity by filing a new indictment charging multiple counts, thus exposing a defendant to multiple penalties." Anderson, 210 Ariz. 327, ¶ 17, 111 P.3d at 378. Yet, Paredes-Solano failed until the last moment to bring the issue to the court's attention, thus "avoiding the potential of multiple punishments by depriving the State of an opportunity to amend." Id. He cannot now benefit from that gamble. Id. ¶ 8 The possibility of a nonunanimous jury verdict was a direct result of the duplicitous indictment. That the error may have been curable at a later stage of the proceedings does not relieve Paredes-Solano of his burden to object to the indictment in a timely manner. Thus, by failing to object before trial, he has waived all but fundamental error review. Cf. Klokic, 219 Ariz. 241, ¶ 13, 196 P.3d at 847 (defendant preserved duplicity objection not raised prior to trial because "asserted error [went] not to the indictment on its face, but to the evidence presented to prove a count of the indictment"). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice."⁴ Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607.

¶ 9 As noted above, a duplicitous indictment charges two or more separate offenses within a single count. In this case, both counts of sexual exploitation in the indictment alleged acts that violated two different subsections of § 13-3553(A). "[T]here is a class of criminal statutes that defines a specific crime and provides ways in which the crime may be committed, and another class that may set forth several distinctive acts and make the commission of each a separate crime, all in one statute." State v. Dixon, 127 Ariz. 554, 561, 622 P.2d 501, 508 (App. 1980). It is thus our task to interpret the language of this statute and determine in which class the legislature intended § 13-3553 to fall. See State v. Fell, 209 Ariz. 77, ¶ 33, 97 P.3d 902, 911 (App.2004).

¶ 10 We begin with the language of the statute. Section 13-3553 provides, in pertinent part:

A. A person commits sexual exploitation of a minor by knowingly:

1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

These two subsections identify a variety of discrete actions involving visual images of minors engaged in "exploitive exhibition or other sexual conduct." The text reveals a difference in the types of actions listed in the two subsections: the acts listed in subsection (A)(1) are directed at the creation of a visual image whereas those in subsection (A)(2) can only occur after an image has been created. Thus, the statute addresses two separate harms—the creation of visual images and their subsequent distribution and viewing. This suggests a legislative intention to create two separate offenses, each encompassing a distinct phase of the child pornography production and distribution process. See State v. Taylor, 160 Ariz. 415, 420, 773 P.2d 974, 979 (1989) ("The legislature has provided for separate punishment for sexual exploitation of a minor by photographing the minor, A.R.S. § 13-3553(A)(1), and sexual exploitation of a minor by possessing a photograph of the minor[,] A.R.S. § 13-3553(A)(2).").

¶ 11 Many courts, including both the United States and Arizona Supreme Courts, have recognized these harms as distinct, separable injuries to the child victim. In New York v. Ferber, the Supreme Court acknowle...