State v. Hollenback

• Decision Date: 29 December 2005
• Docket Number: No. 2 CA-CR 2004-0139.,2 CA-CR 2004-0139.
• Citation: 126 P.3d 159,212 Ariz. 12
• Parties: The STATE of Arizona, Appellee, v. Robert Michael HOLLENBACK, Appellant.
• Court: Arizona Supreme Court

126 P.3d 159

212 Ariz. 12

The STATE of Arizona, Appellee, v. Robert Michael HOLLENBACK, Appellant.

No. 2 CA-CR 2004-0139.

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

December 29, 2005.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Joseph L. Parkhurst, Tucson, for Appellee.

Isabel G. Garcia, Pima County Legal Defender, By Joy Athena, Tucson, for Appellant.

OPINION

ESPINOSA, Presiding Judge.

¶ 1 Appellant Robert Hollenback was convicted after a jury trial of molestation of a child, sexual conduct with a minor, and luring a minor for sexual exploitation. All three offenses were dangerous crimes against children, and the jury found that each of the two victims was under the age of twelve. Hollenback had one predicate felony conviction and the court imposed a life sentence, followed by consecutive, presumptive prison terms totaling thirty-eight years. Hollenback contends the trial court erred in denying his motion for judgment of acquittal on the luring charge because A.R.S. § 13-3554 did not apply to his conduct. He also claims the court erred by utilizing a jury interrogatory on the age of the victims and by sentencing him to the mandatory term of life imprisonment under A.R.S. § 13-604.01(A). Finding no merit to any of these arguments, we affirm the convictions and sentences.

Factual Background

¶ 2 We view the facts and any reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Henry, 205 Ariz. 229, 68 P.3d 455 (App.2003). In March 2003, Tucson police officers were called to a trailer park to investigate allegations of child molestation. Several children were subsequently interviewed, and two of them, J. and Z., stated that Hollenback had touched them in sexual ways; Z. also admitted having witnessed Hollenback touching J. Hollenback was arrested and charged with molestation of a child, sexual conduct with a minor under the age of fifteen, and luring a minor for sexual exploitation. He was convicted of all the charges and sentenced as noted above. This appeal followed.

A.R.S. § 13-3554

¶ 3 Hollenback contends the trial court erroneously denied his motion for judgment of acquittal on the luring charge, pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S., arguing § 13-3554 only applies to the production of pornographic material. The state responds that the text of the statute is clear and it specifically proscribes Hollenback's conduct. We review the denial of a Rule 20 motion for an abuse of discretion. State v. Carlos, 199 Ariz. 273, 17 P.3d 118 (App.2001). But we review de novo the interpretation of a statute. See State v. Fell, 203 Ariz. 186, 52 P.3d 218 (App.2002).

¶ 4 Section 13-3554(A) provides: "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." Hollenback argues that "the offense requires some sort of intent to photograph or otherwise record a minor's image," citing the legislative findings relating to the harmful effects of child pornography and the exploitation of children, promulgated when Chapter 35.1, A.R.S., was enacted. Hollenback also points out that both the statute and its title contain the term "sexual exploitation"; thus, he maintains, to violate the statute requires an intent to commit sexual exploitation as set forth in A.R.S. § 13-3553, which defines that offense in terms of producing and distributing child pornography.¹

¶ 5 When we construe a statute, we first consider its plain language. See Fell. Only when that language is not clear will we look to other sources, "such as the statute's context, history, subject matter, effects and consequences, spirit, and purpose." Id. ¶ 6. Section 13-3554 expressly prohibits requesting sexual conduct with a minor. Although the offense is titled "luring a minor for sexual exploitation," and the statutory text delineates the crime in those terms, the statute does not incorporate or refer to the provisions of § 13-3553; nor does it require that the offering or soliciting occur for the purpose of violating those provisions. The state argues that the use of the term "sexual exploitation" is not a sufficient reason to find the statute ambiguous when the prohibited conduct is plainly and clearly described. We agree. See State v. Sepahi, 206 Ariz. 321, ¶ 16, 78 P.3d 732, 735 (2003) ("[A] statute's language is the most reliable index of its meaning"). Moreover, as the state points out, "[t]he criminal act occurs whether or not it leads to sexual exploitation as defined in § 13-3553." Had the legislature intended to restrict the offense to conduct violating § 13-3553, it could easily have included language to that effect. See Sepahi; see also State v. Brown, 204 Ariz. 405, ¶ 28, 64 P.3d 847, 854 (App.2003) (Howard, J., concurring)("Had the legislature desired the facilitation portion of § 13-1805(I) to include a mens rea of intentionally, it most likely would have utilized precise language defined by statute."). We also note the heading of a statute is not part of the law and may only aid in clarifying ambiguity if such exists. See State v. Hauser, 209 Ariz. 539, 105 P.3d 1158 (2005); State v. Barnett, 142 Ariz. 592, 691 P.2d 683 (1984); see also A.R.S. § 1-212 (headings not part of the law, but merely for reference purposes). Finding no ambiguity in the text of § 13-3554, we see no reason to limit it in the way Hollenback suggests when the legislature did not. Sepahi; Brown.

¶ 6 Hollenback argues, however, that solicitation for sexual conduct is already prohibited by A.R.S. §§ 13-1002 and 13-1405(A), and therefore § 13-3554 cannot also have been intended to prohibit such conduct. Section 13-1002 is the general solicitation statute applicable to any Arizona crime,² and § 13-1405(A) prohibits defined sexual conduct with a minor. But § 13-3554 is a more specific statute that expressly prohibits "offering or soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor," and provides for sentencing under A.R.S. § 13-604.01, the dangerous crimes against children statute, when the victim is under the age of fifteen. See Calik v. Kongable, 195 Ariz. 496, 990 P.2d 1055 (1999) (specific statute governs over more general one).

¶ 7 Furthermore, although both § 13-3554 and the combination of §§ 13-1002 and 13-1405(A) prohibit the solicitation of "sexual conduct" from a minor, the definition of sexual conduct that applies to § 13-3554 is a broad one that includes simulated intercourse, oral sexual contact, and other sexual acts "for the purpose of sexual stimulation of the viewer." A.R.S. § 13-3551(9). Such acts are not included in the definitions of "sexual conduct" and "oral sexual contact," which apply to § 13-1405, and no simulated conduct is prohibited by that statute. See A.R.S. § 13-1401(3), (1). Accordingly, although Hollenback insists that luring "does not entail mere solicitation for sexual conduct," the language of § 13-3554 plainly prohibits just that, while covering additional types of offering or requesting conduct not prohibited by the combination of §§ 13-1002 and 13-1405.

¶ 8 One of Hollenback's victims, Z., who was eight at the time of the offenses, testified that Hollenback had asked him repeatedly on multiple occasions to participate in oral sex. Thus, substantial evidence supported this charge, and the trial court did not err in denying the Rule 20 motion.³ See Carlos.

Sentence Enhancement

¶ 9 Hollenback next contends the trial court erred by enhancing his sentence as a result of responses to interrogatories submitted to the jury as part of the verdict forms. The forms asked the jury to determine whether the state had proven the victims were less than twelve years of age. Hollenback argues he had no notice the state intended to seek an enhanced penalty applicable to offenses against victims that young because his indictment charged offenses against minors under fifteen years of age.⁴ He concedes his indictment included citations to § 13-604.01, but counters that those references "did not place [him] on notice that [the state] sought the enhanced sentencing penalties under [the statute] for minors under 12." We review a trial court's sentencing decisions for an abuse of discretion. See State v. Ward, 200 Ariz. 387, 26 P.3d 1158 (App.2001).

¶ 10 Hollenback's reliance on State v. Guytan, 192 Ariz. 514, 968 P.2d 587 (App.1998) to support his lack of notice argument is misplaced. Guytan involved a defendant who had been charged with aggravated assault, among other offenses. Nine days after the jury had been impaneled, the trial court permitted the state to amend the indictment to allege gang motivation as a potential sentence enhancement. Division One of this court held that permitting the amendment was improper because the request to amend had been untimely under Rule 16.1, Ariz. R.Crim. P., 16A A.R.S., and Guytan had not received the required notice that the state would seek enhanced sentences. Here, the state separately alleged each offense was a dangerous crime against children and each count of the indictment included a reference to § 13-604.01, the dangerous crimes against children statute, which provides an enhanced penalty when a defendant is convicted of sexual conduct with a minor twelve years of age or younger.

¶ 11 Our supreme court has held that a "reference in the indictment to the number of the statute providing for enhanced punishment ... is adequate notice of the state's intent to enhance [the defendant's] sentence under that statute." State v. Waggoner, 144 Ariz. 237, 239, 697 P.2d 320, 322 (1985); see also State v. Barrett, 132 Ariz. 88, 89, 644 P.2d 242, 243 (1982) ("Th[e] recital of A.R.S. § 13-604 [in the information] was sufficient to put [defendant] on notice that the prosecutor would seek an enhanced sentence."), overruled on other grounds by State v. Burge, ...