State v. Long

• Decision Date: 03 February 2004
• Docket Number: No. 1 CA-CR 02-0960.,1 CA-CR 02-0960.
• Citation: 207 Ariz. 140,83 P.3d 618
• Parties: STATE of Arizona, Appellee, v. Jason Everette LONG, Appellant.
• Court: Arizona Court of Appeals

83 P.3d 618

207 Ariz. 140

STATE of Arizona, Appellee, v. Jason Everette LONG, Appellant.

No. -0960.

Court of Appeals of Arizona, Division 1, Department D.

February 3, 2004.

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Joseph T. Maziarz, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Ballecer and Segal by Natalee Segal and Neal W. Bassett, Phoenix, Attorneys for Appellant.

OPINION

WINTHROP, Judge.

¶ 1 A jury convicted Jason Everette Long of Count One, sexual exploitation of a minor under the age of fifteen; Count Two, sexual conduct with a minor under the age of fifteen; and Count Three, sexual conduct with a minor aged fifteen or older. The trial court sentenced Long to consecutive terms of twenty years' imprisonment in the Arizona Department of Corrections for Count One; twenty-four years' imprisonment for Count Two; and lifetime probation for Count Three. Long contends that the twenty-year sentence imposed for Count One violates the provisions of the United States and Arizona constitutions prohibiting cruel and unusual punishment,¹ and he argues that the trial court abused its discretion in sentencing him to an aggravated term of imprisonment. For the following reasons, we affirm Long's convictions and sentences.

BACKGROUND

¶ 2 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App.1994).

¶ 3 A grand jury indicted Long, charging him with three counts of sexual exploitation of a minor under fifteen years of age, class two felonies and dangerous crimes against children (initially Counts One through Three); one count of sexual conduct with a minor under the age of fifteen, a class two felony and dangerous crime against children (initially Count Four); and one count of sexual conduct with a minor aged fifteen years or over, a class six felony (initially Count Five). The trial court later granted the State's motion to amend the date of offense alleged in Count One, dismiss Counts Two and Three, and renumber Counts Four and Five as Counts Two and Three. A jury trial ensued.

¶ 4 The following evidence was presented at trial: The victim ("Erika") was born on January 27, 1986. Long met Erika's mother ("Diana") in December 1993 and began a relationship with Diana. In August 1994, Diana and her children, Erika and Matthew, moved from Arizona to Idaho with Long. They then moved to Oregon and, in August 1995, Long, Diana, and Matthew returned to Arizona; Erika moved to Minnesota to live with her grandmother. In October 1999, Long, Diana, and Matthew moved to Ohio. In January 2000, Erika moved in with them.

¶ 5 While living in Ohio, Diana rented a computer with a "web camera" that Long principally used and was kept in their bedroom. Diana often worked long hours, leaving Long at home alone or with the children.

¶ 6 On January 26, 2000, the day before Erika's fourteenth birthday, Long demanded that Erika engage in sex with him or "he would kill [her] mom and the people closest to [her]." Erika, fearful of Long's threat, "went along with what he said," and engaged in sexual intercourse with Long. Long and Erika engaged in sexual conduct "a lot" while in Ohio.

¶ 7 In November 2000, Long, Diana, Erika, and Matthew returned to Arizona, initially staying with Diana's friends, Audry and T.R. On January 19, 2001, Diana went looking for a job, and Erika stayed home from school. Erika was sleeping on the sofa, and Long approached her and demanded sex. Long threatened Erika that, if she refused, Diana "wouldn't have to worry about looking for a job because she wouldn't be around anymore." Long and Erika then engaged in sexual intercourse.

¶ 8 On January 26, 2001, the day before Erika's fifteenth birthday, Long, Diana, Erika, and Matthew moved in with Long's mother for two to three weeks. While they were living with his mother, Long and Erika continued to engage in sexual intercourse. In mid-February 2001, Diana rented a house, and she, her children, and Long moved into the house. In May 2001, a few months after Erika turned fifteen, Erika and Long again engaged in sexual intercourse.

¶ 9 In late September 2001, Diana first became aware that some sort of relationship existed between Long and Erika because she found a letter from Long to Erika, in which Long professed his love to her. A couple of days later, Diana confronted Long and ordered him to move out within two weeks. Long tried to convince Diana that she had misinterpreted the letter, but she refused to reconsider and, about one week later, Long began to pack his belongings.

¶ 10 On the last Sunday in September, Long decided that he would not leave, and an argument ensued between Long and Diana. Long said that he would let Erika decide whether he had to leave, and he awakened her. Diana called 911 and, while she was talking to the police, Long grabbed some weapons from the house and threatened to break the windows. The police arrived and took Long away.

¶ 11 Diana eventually obtained a restraining order and decided to pack up the rest of Long's belongings. While Diana was packing, she found some CDs. Diana wanted copies of any family photographs that were on the CDs, but she no longer had her computer, so she took the CDs to T.R. and asked that he copy any family photos for her.

¶ 12 T.R. later telephoned Diana and told her that there was something she needed to see. Diana returned to T.R.'s house, and T.R. began playing a CD video that he found amongst Long's CDs. The video was made in the master bedroom of the house in Ohio and shows Long adjusting and focusing the camera on himself, then walking over to Erika, who appears to be asleep, and waking her. The video (which was played for the jury) also shows Long and Erika engaging in sexual intercourse. Erika was fourteen years old at the time this sexual conduct occurred.

¶ 13 Diana did not view the entire video. Instead, she called the Maricopa County Sheriff's Office and gave the CD and some of Long's other belongings to a deputy sheriff. The video on the CD was the basis for the subsequent sexual exploitation of a minor charge.

¶ 14 Some time later, Maricopa County Sheriff's detectives executed a search warrant on Diana's house. The detectives found a letter from Long to Erika in a silver metal box in Erika's bedroom. In the letter, Long makes numerous references to sexual activity with Erika, both in Ohio and Arizona.

¶ 15 Additionally, another CD acquired by detectives contained a document entitled "Wish" that was initially created on December 28, 1999 (shortly before Erika moved in with Long, Diana, and Matthew in Ohio), and begins with the heading, "Things to Do to or with Erika.... If I can." The sexually explicit document lists twenty sexually related activities, and beside eighteen of those activities, the word "DONE" is typed in. Additionally, the document contains what appears to be a sort of diary, or running commentary, of Long's sexual activities with Erika.

¶ 16 Long was arrested and subsequently interrogated by a detective with the Maricopa County Sheriff's Office. The detective informed Long that she was investigating a sex crime involving a minor, and Long stated "that it was probably Erika because she was [almost] 16." When asked whether he remembered having sexual intercourse with Erika or making the video, Long eventually replied, "I didn't remember making the video." Long also admitted "that he was 27 and Erika was 15, and he knew it was wrong, but he couldn't help who he fell in love with"; he eventually admitted engaging in sexual relations with Erika. Long stated that he did not remember writing the letters to Erika and claimed that, although he "did pressure her," he never "forced" her to engage in sex. When asked to estimate how many times he had engaged in sex with Erika, Long told the detective that he "[c]ouldn't guess," and that he knew it was illegal to engage in sex with Erika, but that he loved her.

¶ 17 The jury found Long guilty of Count One, sexual exploitation of a minor under the age of fifteen, a class two felony and dangerous crime against children, in violation of Arizona Revised Statutes ("A.R.S.") section 13-3553(A)(2), (C) (2001 & Supp.2003); Count Two, sexual conduct with a minor under the age of fifteen, a class two felony and dangerous crime against children, in violation of A.R.S. § 13-1405 (2001); and Count Three, sexual conduct with a minor aged fifteen years or older, a class six felony in violation of A.R.S. § 13-1405. Long filed a motion to declare the sentencing provisions of Arizona's sexual exploitation statute unconstitutional as cruel and unusual punishment. The trial court denied the motion.

¶ 18 At sentencing, the trial court found three aggravating circumstances and "no significant mitigati[n]g circumstances," then sentenced Long to consecutive aggravated terms in the Arizona Department of Corrections of twenty years for Count One and twenty-four years for Count Two, and lifetime probation for Count Three. The court also credited Long for 223 days of pre-sentence incarceration.

¶ 19 Long filed a timely notice of appeal. We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A)(3) (2001).

ANALYSIS

I. Constitutionality of Appellant's Sentence

¶ 20 The trial court sentenced Long to a twenty-year term of incarceration for Count One, sexual exploitation of a minor under fifteen years of age. The conviction for Count One was based on Long's possession of the CD that showed his sexual encounter with Erika. The sentencing range available to the trial court was ten to twenty-four years, which had to be served consecutively to Long's other convictions. See A.R.S. §§ 13-604.01(D), (F), (K) (2001 & Supp.2003), 13-3553(C).

¶ 21 Long contends that...