State v. Bieganskl, 090319 AZAPP1, 1 CA-CR18-0093

Docket Nº:1 CA-CR18-0093
Opinion Judge:MCMURDIE, JUDGE
Party Name:STATE OF ARIZONA, Appellee, v. BRADLEY BIEGANSKL Appellant.
Attorney: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
Judge Panel:Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Maria Elena Cruz joined.
Case Date:September 03, 2019
Court:Court of Appeals of Arizona

STATE OF ARIZONA, Appellee,

v.

BRADLEY BIEGANSKL Appellant.

No. 1 CA-CR18-0093

Court of Appeals of Arizona, First Division

September 3, 2019

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Navajo County No. S0900CR201400118 S0900CR201500721 The Honorable Ralph E. Hatch, Judge

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

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

MEMORANDUM DECISION

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 Kingdom Flight (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 superior court. 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 "converted] from the shield . . . which it was intended to be into a sword whereby a claimant asserting the privilege would be freed from...

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