State v. Bieganski, 1 CA-CR 18-0093

• Decision Date: 03 September 2019
• Docket Number: No. 1 CA-CR 18-0093,1 CA-CR 18-0093
• Parties: STATE OF ARIZONA, Appellee, v. BRADLEY BIEGANSKI, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee, v. BRADLEY BIEGANSKI, Appellant.

No. 1 CA-CR 18-0093

ARIZONA COURT OF APPEALS DIVISION ONE

September 3, 2019

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Navajo County

No. S0900CR201400118 S0900CR201500721

The Honorable Ralph E. Hatch, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Robert A. Walsh

Counsel for Appellee

Lou Spivack PC, Tucson

By Louis M. Spivack

Counsel for Appellant

Law Office of Lawrence Y. Gee PC, Tucson

By Lawrence Y. Gee

Counsel for Appellant

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Maria Elena Cruz joined.

McMURDIE, Judge:

¶1 Bradley Bieganski appeals his convictions and sentences for three counts of child molestation. Relying on May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017), affirmed in part, vacated in part, 76 Fed. Appx. 505, 506-07 (9th Cir. 2019), Bieganski contends that Arizona Revised Statutes ("A.R.S.") sections 13-1401, -1410, and -1407(E) (collectively, "child molestation statutes") were unconstitutional¹ and urges us to reconsider our supreme court's decision in State v. Holle ("Holle II"), 240 Ariz. 300 (2016). Bieganski further asserts that the superior court erred when it denied his motion for a new trial. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND²

¶2 From 2011 until his arrest in 2013, Bieganski operated a girls-only private Christian home-school called Kingdom Flight along with his wife and son. The arrest occurred after three girls attending KingdomFlight (A.G., Y.L., and J.C.) accused Bieganski of touching their genitals when the victims were between the ages of 6 and 9. The genital contact primarily occurred during a Sunday morning bathing practice that Bieganski referred to as an "assembly line" in which he would hurriedly bathe six to eight Kingdom Flight girls in pairs within 30 minutes before departing for a church service.

¶3 The genital contact involved Bieganski touching and manually washing the girls' vaginas with his bare hand. In addition to the genital contact that occurred during the "assembly line" baths, Y.L. also accused Bieganski of touching her genitals on two other occasions: once when she was getting dressed after swimming and another time when she was in the Kingdom Flight girls' room.

¶4 Bieganski admitted at trial that he washed the girls' genitals with his bare hand during the Sunday baths, but under the affirmative defense provided by A.R.S. § 13-1407(E), asserted he was not motivated by a sexual interest. In a third indictment³ resulting from the investigation of Bieganski, the grand jury charged him with seven counts of child molestation, class 2 felonies and dangerous crimes against children, and two counts of continuous sexual abuse of a minor, class 2 felonies and dangerous crimes against children.

¶5 At the conclusion of the State's case, the court granted Bieganski's motion for a judgment of acquittal regarding the continuous sexual abuse of a minor charges, and the State's motion to dismiss one of the child molestation charges involving J.C. The jury then convicted Bieganski of three counts of child molestation involving victims A.G. and J.C. but returned not guilty verdicts for the charges involving Y.L. Pursuant to A.R.S. § 13-705(M), the court sentenced Bieganski to two consecutive terms of 17 years' imprisonment, with 1576 days' presentence incarceration credit given to the first 17-year term. See State v. Jackson, 170 Ariz. 89, 94 (App. 1991) (presentence incarceration credit is applied only to one of the defendant's sentences if consecutive sentences are imposed). Bieganski timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

A. The Child Molestation Statutes Did Not Violate Due Process by Shifting the Burden of Proof to Bieganski.

¶6 Relying on the federal district court's rationale in May, Bieganski argues that the child molestation statutes violate due process because they shift the burden of proof to the defendant regarding the issue of sexual motivation.⁴ 245 F. Supp. 3d at 1164 ("[T]he burden-shifting scheme of Arizona's child molestation law . . . violates due process . . . ."). Our supreme court expressly rejected this argument in Holle II. 240 Ariz. at 308, ¶ 40 ("Treating lack of sexual motivation under [A.R.S.] § 13-1407(E) as an affirmative defense which a defendant must prove does not offend due process.").

¶7 We are required to follow our supreme court's decisions. State v. Smyers, 207 Ariz. 314, 318, ¶ 15, n.4 (2004) ("The courts of this state are bound by the decisions of [our supreme] court and do not have the authority to modify or disregard [its] rulings."). While we consider the opinions of the lower federal courts regarding the interpretation of the Constitution, such authority is not controlling on Arizona courts. State v. Montano, 206 Ariz. 296, 297, ¶ 1, n.1 (2003) ("We are not bound by the Ninth Circuit's interpretation of what the Constitution requires."); State v. Vickers, 159 Ariz. 532, 543, n.2 (1989) (declining to follow a Ninth Circuit decision which held Arizona's death penalty statute unconstitutional because that decision rested on "grounds on which different courts may reasonably hold differing views of what the Constitution requires"); State v. Chavez, 243 Ariz. 313, 314, ¶ 4, n.2, 318-19, ¶ 17 (App. 2017) (declining to follow district court decision that disagreed with Arizona Supreme Court authority). Accordingly, no error occurred, and we will not reexamine our supreme court's decision in Holle II.

B. The Child Molestation Statutes Did Not Violate Bieganski's "Right to Remain Silent."

¶8 Bieganski next argues that the child molestation statutes violated his "right to remain silent," an issue he did not raise in the superiorcourt. Therefore, we will review Bieganski's self-incrimination claim for fundamental error only. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). To prevail upon a claim of fundamental error, a defendant must first show that trial error exists. Id. at 142, ¶ 21. Once trial error has been established, we must determine whether the error is fundamental. Id.

¶9 The Fifth and Fourteenth Amendments protect individuals from compelled self-incrimination at the federal and state levels. U.S. Const. amends. V, XIV, § 1; see Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding "that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States"). The child molestation statutes contained no terms of compulsion, and furthermore, former A.R.S. § 13-1407(E) did not require a defendant to admit the underlying elements of the offense. Bieganski argues, nonetheless, that the child molestation statutes "virtually require[d]" a defendant's testimony. Any "virtual" effect is not protected by the privilege against compelled self-incrimination.

¶10 Assigning the burden of production or persuasion to a defendant to prove an affirmative defense does not violate the privilege against self-incrimination. See United States v. Rylander, 460 U.S. 752, 758 (1983) (holding that the Fifth Amendment privilege should not be "convert[ed] from the shield . . . which it was intended to be into a sword whereby a claimant asserting the privilege would be freed from adducing proof in support of a burden which would otherwise have been his. None of our cases support this view.") (collecting cases); Corbitt v. New Jersey, 439 U.S. 212, 218 (1978) (holding a statute that made first-degree murder defendants who pleaded no contest eligible for sentence of less than life imprisonment did not violate Fifth Amendment privilege); Williams v. Florida, 399 U.S. 78, 84 (1970) ("That the defendant faces . . . a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination."); State v. Gray, 239 Ariz. 475, 479, ¶ 18 (2016) (requiring a defendant asserting an entrapment defense to admit the elements of the offense is not compelled self-incrimination). The child molestation statutes, therefore, did not violate Bieganski's privilege against compelled self-incrimination by requiring him to prove the affirmative defense. See Gray, 239 Ariz. at 479, ¶ 18.

¶11 Moreover, Bieganski's argument ignores the evidentiary avenues available to prove the affirmative defense without a defendant's testimony. Bieganski utilized one such avenue by providing evidence from a forensic psychologist as an expert witness. Emphasizing this point, thedefendant in Holle II did not testify but instead presented his defense through other witnesses, which further confirms the absence of testimonial compulsion or necessity arising from the child molestation statutes. State v. Holle ("Holle I"), 238 Ariz. 218, 220-21, ¶ 4 (App. 2015), vacated by Holle II, 240 Ariz. at 311, ¶ 50; accord Yee Hem v. United States, 268 U.S. 178, 185 (1925) ("If the accused happens to be the only repository of the facts necessary to negate the presumption arising from his [drug] possession, that is a misfortune which the statute under review does not create but which is inherent in the case."). We find no trial error, much less fundamental error.

C. The Child Molestation Statutes Did Not Violate Due Process "As Applied" to Bieganski.

¶12 Bieganski also contends that the statutes are unconstitutional "as applied" to him. To support his contention, Bieganski relies on the discussion in Holle II concerning the possibility of an "as applied" constitutional challenge for a parent performing a caregiving task such as changing diapers. Holle II, 240 Ariz. at 310-11, ¶ 49 ("But if a prosecution actually were to result from such innocent behavior (no such case has...