State v. Brock

• Decision Date: 12 March 2020
• Docket Number: No. 1 CA-CR 17-0466 (Consolidated),No. 1 CA-CR 17-0455,1 CA-CR 17-0455
• Citation: 463 P.3d 207,248 Ariz. 583
• Parties: STATE of Arizona, Appellee/Cross-Appellant, v. Ronald Marvin BROCK, Appellant/Cross-Appellee.
• Court: Arizona Court of Appeals

248 Ariz. 583

463 P.3d 207

STATE of Arizona, Appellee/Cross-Appellant,

v.Ronald Marvin BROCK, Appellant/Cross-Appellee.

No. 1 CA-CR 17-0455

No. 1 CA-CR 17-0466 (Consolidated)

Court of Appeals of Arizona, Division 1.

FILED March 12, 2020

OPINION

HOWE, Judge:

¶1 Ronald Marvin Brock appeals his convictions and sentences for molestation of a child, sexual exploitation of a minor, and possession of drug paraphernalia. He asserts that the statute proscribing sexual exploitation of a minor is unconstitutional and contends that the trial court erroneously denied his requested jury instruction and motion for acquittal. The State also appeals, arguing that the court erred in sentencing Brock to concurrent terms of imprisonment.²

¶2 We affirm Brock's convictions and sentences in part but remand for resentencing of his child-molestation convictions because those sentences must be consecutive to each other rather than concurrent. Under the plain language of A.R.S. § 13–705(M), a defendant who commits two counts of child molestation upon the same victim must receive mandatory consecutive sentences, an outcome that is also consistent with the purpose of the dangerous crimes against children statute.

FACTS AND PROCEDURAL HISTORY

¶3 We view the facts in the light most favorable to sustaining the verdicts. State v. Payne , 233 Ariz. 484, 509 ¶ 93, 314 P.3d 1239, 1264 (2013). In 2011, the 13-year-old victim frequently webcast herself singing and playing the piano on a public website. Brock visited that website, viewed the victim's performances and contacted her online. Initially, he identified himself as a man in his early 20s, although he was actually in his mid-30s, and the victim likewise misrepresented her age, claiming to be 19 years old.

¶4 During the weeks that followed, Brock and the victim regularly communicated online, primarily discussing music. About six weeks after their initial contact, the victim revealed her true age to Brock. Undeterred, Brock continued to contact the victim, talked to her about sexual topics, and encouraged her to engage in online sexual activity with him.

¶5 For the next 18 months, Brock and the victim used webcams to engage in sexual activity with each other online, including mutual masturbation. Over time, the relationship distressed the victim, and she repeatedly tried to end it. Each time she told Brock she wanted out of the relationship, he "lashed out" and threatened to reveal the victim's sexual activity to her family, post nude pictures of her online, and harm himself, her, or her family. Eventually, however, the victim told her father what had happened, and he notified the police.

¶6 Officers interviewed Brock and executed a search warrant on his home. During the interview, Brock readily acknowledged that he had engaged in an online relationship with the victim but claimed that he had ended it once he learned her true age. When pressed, however, Brock eventually admitted that he had maintained a sexual relationship with the victim even after he had found out she was a minor. During their search of Brock's home, officers seized various electronics as well as small plastic bags of marijuana, pipes, and bongs. Subsequent forensic analysis of the electronics revealed a document titled "[Victim's] Countdown Clock," which identified the victim's eighteenth birthday and calculated the days until she reached the age of majority. Police also found numerous screen images showing the victim naked, many of which also included an image from a small camera feed in the lower right-hand corner showing Brock as he viewed the victim's webcast. The State charged Brock with one count of continuous sexual abuse of a child, two counts of molestation of a child, one count of sexual exploitation of a minor, one count of possession or use of marijuana, and one count of possession of drug paraphernalia.

¶7 Before trial, Brock moved to dismiss the sexual exploitation of a minor charge, asserting that A.R.S. § 13–3553 infringes upon protected expression in violation of the First Amendment by criminalizing "mere nudity" and unspoken "thoughts." After hearing argument, the trial court denied the motion, finding that one of the seized images (Exhibit 19), which was found in a folder Brock had labeled "[Victim]-Sexy," focused directly on the victim's pubic area and therefore "likely" constituted "child pornography" rather than "mere nudity."

¶8 At trial, defense counsel acknowledged in his opening statement that Brock had engaged in online sexual activity with the victim even after he had learned she was only 13 years old. Defense counsel admitted that Brock had threatened the victim after she had repeatedly tried to "shut[ ] him down[.]" Nonetheless, defense counsel denied that Brock had "caused" the victim to engage in the sexual activity and argued that they had "clearly" shared a "consensual" sexual relationship. After the State rested, Brock moved for a judgment of acquittal pursuant to Arizona Rule of Criminal Procedure 20. "[V]iewing the evidence in the light most favorable to the prosecution," the trial court found that substantial evidence supported the charges and denied the motion. During closing argument, Brock argued extensively the theory that Exhibit 19 was merely a nude photo rather than child pornography.

¶9 The jury acquitted Brock of continuous sexual abuse and possession or use of marijuana but convicted him of the remaining charges. The trial court sentenced him to a mitigated term of 13 years’ imprisonment on one molestation of a child count; a concurrent, mitigated term of 10 years on the other molestation of a child count; a consecutive, mitigated term of 10 years for sexual exploitation of a minor; and a 10-day period of unsupervised probation for possession of drug paraphernalia, to commence upon his release from prison. The State timely appealed the trial court's imposition of concurrent sentences for Brock's child-molestation convictions. Brock timely appealed his convictions and sentences.

DISCUSSION

1. Constitutional Validity of A.R.S. § 13–3553

¶10 Brock argues that the trial court erred by denying his motion to dismiss the sexual exploitation of a minor count because the statute, A.R.S. § 13–3553, is unconstitutionally overbroad.³ We review the denial of a motion to dismiss an indictment for an abuse of discretion, State v. Pecard , 196 Ariz. 371, 376 ¶ 24, 998 P.2d 453, 458 (App. 1999), but review de novo whether a law is unconstitutionally overbroad, State v. Boehler , 228 Ariz. 33, 35 ¶ 4, 262 P.3d 637, 639 (App. 2011). "A statute is unconstitutionally over broad when it prohibits or deters conduct protected by the First Amendment." State v. Carrasco , 201 Ariz. 220, 224 ¶ 14, 33 P.3d 791, 795 (App. 2001). We presume a statute is constitutional, and the challenging party "bears the burden of establishing its invalidity." Boehler , 228 Ariz. at 35 ¶ 4, 262 P.3d 637. "[C]ourts will invalidate a statute that reaches a substantial amount of constitutionally protected conduct," even if it also has lawful applications. Id . at ¶ 5 (internal quotation omitted). Nonetheless, a statute is unconstitutionally overbroad only if "its deterrent effect on legitimate expression [is] not only real, but substantial as well." State v. Ochoa , 189 Ariz. 454, 459, 943 P.2d 814, 819 (App. 1997) (internal quotation omitted).

¶11 As Brock notes, the right of freedom of expression enshrined in the First Amendment outweighs the State's limited interest in regulating private in-home possession of adult obscenity. See State v. Emond , 163 Ariz. 138, 139, 141, 786 P.2d 989, 990, 992 (App. 1989). But the State has a compelling interest in combating the sexual abuse and exploitation of children that underlie child pornography. Osborne v. Ohio , 495 U.S. 103, 108, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) ; New York v. Ferber , 458 U.S. 747, 762–63, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ; see also State v. Berger , 212 Ariz. 473, 477 ¶ 19 n.2, 134 P.3d 378, 382 (2006) ; Emond , 163 Ariz. at 139–40, 786 P.2d at 990–91. Because the State's interest in protecting children far exceeds any de minimis expressive value that may be found in possessing sexually explicit images of children, the First Amendment does not protect child pornography. Id . For that reason, the State may criminalize possession of "works that visually depict sexual conduct by children" as long as it "adequately define[s]" the proscribed material. Ferber , 458 U.S. at 764, 102 S.Ct. 3348 ; State v. Hazlett , 205 Ariz. 523, 527 ¶ 11, 73 P.3d 1258, 1262 (App. 2003) ("[A] state can penalize conduct relating to [nude images of children] without meeting the more exacting standard for obscenity because the material involves actual children actually participating in the acts depicted. The crime is the abuse of the children.").

¶12 Brock contends that A.R.S. § 13–3553 is overbroad, both on its face and as applied to him. First, he asserts the statute proscribes not only child pornography, but the possession of images depicting "merely nude" minors, which he claims are constitutionally protected expression. Employing the same reasoning, he then argues that applying the statute to criminalize his possession of Exhibit 19 impinges on his First Amendment rights because it depicts the victim's pubic region, rather than her genitals, and displays no overt sexual activity.

¶13 We review statutory interpretation de novo. State v. Burbey , 243 Ariz. 145, 146 ¶ 5, 403 P.3d 145, 146 (2017). In construing a statute, this Court's primary purpose is to effectuate the Legislature's intent. State ex rel. Montgomery v. Harris , 237 Ariz. 98, 100 ¶ 8, 346 P.3d 984, 986 (2014). "To determine a statute's meaning, we look first to its text[,]" Burbey , 243 Ariz. at 147 ¶ 7, 403 P.3d 145, and construe statutes that "relate to the same subject matter or have the same general purpose as one another" as though they constitute one law, State v. Gamez , 227 Ariz. 445, 449 ¶ 27, 258 P.3d 263,...