Mejak v. Granville, CV-05-0299-PR.

CourtSupreme Court of Arizona
Citation212 Ariz. 555,136 P.3d 874
Docket NumberNo. CV-05-0299-PR.,CV-05-0299-PR.
PartiesJeremy MEJAK, Petitioner, v. The Honorable Warren J. GRANVILLE, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona ex rel. Andrew Thomas, Maricopa County Attorney, Real Party in Interest.
Decision Date24 May 2006

Michael Terribile, P.C. by Michael Terribile, Phoenix, Attorney for Jeremy Mejak.

Andrew P. Thomas, Maricopa County Attorney by Arthur G. Hazelton, Jr., Phoenix, Attorneys for State of Arizona.

OPINION

RYAN, Justice.

¶ 1 In Arizona, a person "offering or soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor" can be charged with "luring a minor for sexual exploitation" ("luring") under Arizona Revised Statutes ("A.R.S.") section 13-3554(A) (Supp.2003). "It is not a defense to a prosecution . . . [for luring a minor if] the other person was a peace officer posing as a minor." Id. § 13-3554(B).

¶ 2 This case requires us to decide whether luring is committed when the person solicited is an adult posing as a minor, but is not a peace officer. We hold that under such circumstances, a person cannot be charged with luring.1

I

¶ 3 In April 2003, a local television news reporter, pretending to be a thirteen-year-old girl, engaged in Internet "chat room" discussions as part of an investigation into how the Internet can be used to lure minors for sexual contact. The petitioner, Jeremy Mejak, chatted online with the reporter, believing her to be a thirteen-year-old girl; and arranged to meet her for purposes of engaging in sexual conduct.2 When Mejak arrived at the agreed-upon location, he was greeted by news cameras. The police were given videotapes of the confrontation and transcripts of the online conversations. A grand jury indicted Mejak for violating A.R.S. § 13-3554.

¶ 4 Mejak filed a motion to dismiss, arguing that the statute did not criminalize his conduct because there was no minor or peace officer lured, and therefore the indictment was insufficient as a matter of law. See Ariz. R.Crim. P. 16.6(b) & cmt. If a defendant can admit to all the allegations charged in the indictment and still not have committed a crime, then the indictment is insufficient as a matter of law. See, e.g., U.S. v. Sampson, 371 U.S. 75, 76-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); Lowe v. State, 276 Ga. 538, 579 S.E.2d 728, 729-30 (2003) (quoting Dunbar v. State, 209 Ga.App. 97, 432 S.E.2d 829, 831 (1993)); State v. Green, 207 Ind. 583, 194 N.E. 182, 184 (1935); State v. Anderson, 242 Or. 457, 410 P.2d 230, 233 (1966); 42 C.J.S. Indictments & Informations § 180 (1991).

¶ 5 The superior court denied the motion, reasoning that the intent of the statute was "to criminalize the offer of sexual conduct with a person a Defendant believes to be a minor." Relying on State v. Carlisle, 198 Ariz. 203, 207, ¶ 17, 8 P.3d 391, 395 (App. 2000), the court also found that it is no defense that the person "lured" is not a minor. Mejak then filed a petition for special action with the court of appeals, which declined jurisdiction without comment.

¶ 6 We granted Mejak's petition for review because it presents an issue of statewide importance and first impression. We have jurisdiction under Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II

¶ 7 Determining whether the superior court erred in denying Mejak's motion to dismiss requires us to interpret A.R.S. § 13-3554. Issues of statutory interpretation are purely legal issues, which we review de novo. Dressler v. Morrison, 212 Ariz. 279, ¶ 11, 130 P.3d 978, 980 (2006) (citing State ex rel. Dep't of Econ. Sec. v. Hayden, 210 Ariz. 522, 523, ¶ 7, 115 P.3d 116, 117 (2005)).

¶ 8 When interpreting a statute, we make every effort to give effect to the intent of the legislature. State v. Lamar, 210 Ariz. 571, 575, ¶ 16, 115 P.3d 611, 615 (2005) (quoting Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1043 (1988)). The best indicator of that intent is the statutory language. State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997). When the language of the statute is clear and unambiguous, this Court need go no further to ascertain the legislative intent. State ex rel. Romley v. Hauser, 209 Ariz. 539, 541, ¶ 10, 105 P.3d 1158, 1160 (2005) (quoting State v. Christian, 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003)).

¶ 9 Also, in interpreting a statute, this Court must, to the extent possible, give effect to every provision in the statute. See State v. Pitts, 178 Ariz. 405, 407, 874 P.2d 962, 964 (1994). We must interpret the statute so that no provision is rendered meaningless, insignificant, or void. State v. Superior Court for Maricopa County, 113 Ariz. 248, 249, 550 P.2d 626, 627 (1976); see also Ruiz v. Hull, 191 Ariz. 441, 450, ¶ 35, 957 P.2d 984, 993 (1998).

¶ 10 With these principles in mind, we first turn to the language of A.R.S. § 13-3554 and then examine the parties' arguments regarding its interpretation.

A

¶ 11 Section 13-3554 states:

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.

B. It is not a defense to a prosecution for a violation of this section that the other person was a peace officer posing as 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 § 13-604.01, subsection I.

We conclude that the language of the statute requires that the person lured be a minor or a peace officer posing as a minor. A brief review of the three subsections of A.R.S. § 13-3554 supports this conclusion.

¶ 12 First, subsection (A) requires that the person charged with the crime of luring "know[] or hav[e] reason to know that the [person being lured] is a minor." A.R.S. § 13-3554(A) (emphasis added). The use of the phrase "is a minor" suggests that the crime cannot be committed without the luring of an actual minor. Second, subsection (B) prevents a defendant from escaping criminal responsibility if the person lured is "a peace officer posing as a minor." A.R.S. § 13-3554(B). Read in conjunction with subsection (A), this provision further supports the conclusion that unless the purported victim is a peace officer posing as a minor, the crime of luring requires that an actual minor be lured.

¶ 13 Third, subsection (C), the penalty provision of A.R.S. § 13-3554, states that "if the minor is under fifteen years of age" the crime is punishable under the provisions of A.R.S. § 13-604.01(I) (Supp.2003),3 a subsection of the sentencing statute for Dangerous Crimes Against Children. (Emphasis added.) The use of the phrase "the minor" in subsection (C) signals the legislature's intention that, unless subsection (B) applies, the statute is violated only when an actual minor is lured. Thus, when § 13-3554 is considered as a whole, the language requires that the person lured be a minor, or a peace officer posing as a minor, before a person can be charged with luring a minor for sexual exploitation.

B

¶ 14 The State argues that Mejak can be charged under the plain language of A.R.S § 13-3554 because he had "reason to know that the person was a minor." The State also contends that this crime is like a preparatory offense and all of the elements were completed during Mejak's online discussions with the person he believed to be a thirteen-year-old girl. Based on the language of the statute, we disagree with both propositions.

¶ 15 The State's first argument equates the "having reason to know" language in subsection (A) with "believing," Such an interpretation of the statute would require us to conclude that Mejak could be convicted of luring if he believed that a fact necessary for the commission of the crime indeed existed, when in reality it did not. Although a person may subjectively believe, as Mejak did, something that is not true, it is entirely different to have knowledge or a reason to know a fact.4 We cannot agree with the State's position that a defendant may be held responsible for a completed offense, rather than a preparatory offense, when the facts required for the commission of the completed offense are not present, even though the defendant may believe so.

¶ 16 State v. McElroy, 128 Ariz. 315, 625 P.2d 904 (1981), so teaches. We stated there "that the defendant could never have been convicted of possession of dangerous drugs" when the material he possessed was not illegal, even though he believed it to be. Id. at 317, 625 P.2d at 906. Rather, the defendant could be charged only with attempted possession. Id. at 316-17, 625 P.2d at 905-06. Likewise, A.R.S. § 13-3554(A) does not support the interpretation the State urges; it requires that a defendant know or have reason to know the person being lured is a minor. Subsection (A) says nothing about what a defendant may believe.

¶ 17 Moreover, if we concluded that subsection (A) permitted the State to pursue the charge against Mejak, subsection (B) would be superfluous—a result we must avoid. See Ruiz, 191 Ariz. at 450, ¶ 35, 957 P.2d at 993; Pitts, 178 Ariz. at 407, 874 P.2d at 964; Superior Court for Maricopa County, 113 Ariz. at 249, 550 P.2d at 627. If the statute could be violated by luring any adult who poses as a minor, it would be unnecessary to except peace officers posing as minors. The inclusion of subsection (B) necessarily suggests that the legislature realized that the crime of luring under subsection (A) could not be committed when the person lured was any adult posing as a child. See Champlin v. Sargeant, 192 Ariz. 371, 374, ¶ 16, 965 P.2d 763, 766 (1998) (discussing the doctrine of expressio unius est exclusio alterius the expression of one item implies the exclusion of others). Therefore, to permit law enforcement to investigate Internet...

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