State v. Moninger

Citation251 Ariz. 487,494 P.3d 74
Decision Date08 June 2021
Docket NumberNo. 1 CA-CR 19-0353,1 CA-CR 19-0353
CourtCourt of Appeals of Arizona
Parties STATE of Arizona, Appellee, v. Kevin Harry MONINGER, Appellant.

251 Ariz. 487
494 P.3d 74

STATE of Arizona, Appellee,
Kevin Harry MONINGER, Appellant.

No. 1 CA-CR 19-0353

Court of Appeals of Arizona, Division 1.

FILED June 8, 2021

Arizona Attorney General's Office, Phoenix, By Casey D. Ball, Counsel for Appellee

Mohave County Legal Advocate, Kingman, By Jill L. Evans, Counsel for Appellant

Judge Paul J. McMurdie delivered the Court's opinion, in which Judge Maria Elena Cruz joined. Presiding Judge James B. Morse Jr. concurred in part and dissented in part.

McMURDIE, Judge:

¶1 Kevin Harry Moninger appeals from his convictions and sentences for three counts of luring a minor for sexual exploitation. Because we conclude the term "solicit" in luring a minor under A.R.S. § 13-3554(A) refers to a course of conduct that may include a series of statements, we hold that the trial evidence established only one violation of the statute, not three. Therefore, we vacate two of Moninger's luring convictions and remand for resentencing.


¶2 In September 2018, Moninger, a Las Vegas resident in his early sixties, placed an advertisement on a website seeking sexual encounters with women. Users of the site agreed that they were adults, but the site did not monitor or otherwise enforce that requirement.

¶3 As part of an operation targeting child predators, a detective with the Mohave County Sheriff's Office responded to Moninger's advertisement as "Sabrina," whose email handle was "sabrinalteenwitch13." Over the following week, Moninger and Sabrina exchanged a blizzard of more than 1300 text messages. Right away, Sabrina told Moninger she was 13 years old. She said she lived with her mother in Kingman, was not allowed

494 P.3d 77

to have a boyfriend, and was too young to drive. Moninger's responses to Sabrina indicated he recognized her young age. On September 30, Moninger suggested they meet in person, and Sabrina immediately responded, "If u want to come down this week Friday [October 5] is good." On October 3, they agreed to try to meet in Kingman that Friday. After Sabrina asked Moninger what they would do when they were able to get together, he texted, "You decide we can hold cuddle kiss if u want to make love u decide just be mine." Sabrina responded, "We can make love just need 2 go slow." On Friday, officers arrested Moninger when he arrived at the arranged meeting place in Kingman. Moninger was carrying clothing and a purse for Sabrina, a "Sabrina the Teenage Witch" doll, and a Viagra pill.

¶4 The State charged Moninger with three counts of luring a minor under the age of 15 for sexual exploitation and one count of attempted sexual conduct with a minor under 15, all class 3 felonies and dangerous crimes against children. See A.R.S. §§ 13-1001(C)(2), -1405(B), - 3554(C). The State alleged Moninger committed the crime of luring, A.R.S. § 13-3554, by soliciting sexual intercourse with Sabrina on three consecutive days in 2018: October 3 (count one), October 4 (count two), and October 5 (count three). Only the offense date differentiated the three counts.

¶5 Moninger testified at his trial to support an entrapment defense. He admitted he solicited sexual conduct with Sabrina and attempted to have sexual conduct with her while having reason to know she was younger than 15 years old. Moninger did not specifically admit to soliciting Sabrina on any day or through any specific text message. He testified he believed Sabrina was an adult who was simply role-playing as a minor. Given Moninger's testimony claiming he thought Sabrina was an adult, the superior court could have declined to give an entrapment instruction. See A.R.S. § 13-206(A) ("To claim entrapment, the person must admit by the person's testimony or other evidence the substantial elements of the offense charged."). However, the State wanted the instruction because jurors might find Moninger not guilty based on entrapment if they did not understand the defense's requirements. The State did not present evidence that Moninger had previously engaged in misconduct involving minors.

¶6 Jurors rejected Moninger's entrapment defense, finding him guilty on all counts. The superior court sentenced him to three consecutive prison terms totaling 22 years for the luring convictions and to a fourth consecutive prison term of 9 years for the attempt conviction. Moninger appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).


A. Moninger Committed Only One Violation of A.R.S. § 13-3554.

¶7 At trial, the State pointed during closing argument to three texts or brief sets of texts; one sent on October 3, one on October 4, and one on October 5, and urged the jury to convict Moninger of three separate offenses based on them. In each of the texts, Moninger described the sex he and Sabrina would have when they met in Kingman as planned.1 Based on the three exchanges, the jurors convicted Moninger of committing three separate violations of luring a minor for sexual exploitation under A.R.S. § 13-3554. Moninger contends this court must vacate two of those convictions because he committed only one act of luring. First, he argues his convictions violate the Double Jeopardy Clause because his texts to Sabrina were part of a continuous conversation showing just one violation of the luring statute. In the alternative, Moninger argues there was

494 P.3d 78

insufficient evidence that he made separate solicitations of sexual intercourse to support the second and third luring counts. We hold Moninger's luring convictions for counts two and three placed him in double jeopardy because the evidence underlying those counts constituted the same conduct in support of the luring conviction for count one.

1. A.R.S. § 13-3554 Allows Separate Convictions for Distinct Offers or Solicitations of Sexual Conduct.

¶8 Imposing multiple punishments for a single offense runs afoul of the Double Jeopardy Clause and constitutes fundamental error. Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ; State v. Jurden , 239 Ariz. 526, 528–29, ¶¶ 7, 10, 373 P.3d 543, 545–46 (2016) ; State v. Soza , 249 Ariz. 13, 15, ¶ 6, 464 P.3d 696, 698 (App. 2020). When a defendant claims to have been punished multiple times under a single statute for committing just one offense, we must determine "the scope of conduct for which a discrete charge can be brought"—or, put another way, the statute's "allowable unit of prosecution." Jurden , 239 Ariz. at 529, ¶ 11, 373 P.3d at 546 (quoting United States v. Universal C.I.T. Credit Corp. , 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952) ).

¶9 Whether a defendant's conduct "involves one or more distinct ‘offenses’ " is a matter of statutory interpretation, which we review de novo . Sanabria v. United States , 437 U.S. 54, 70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) ; Jurden , 239 Ariz. at 528, ¶ 7, 373 P.3d at 545. Our purpose is to advance the legislature's intent, Jurden , 239 Ariz. at 530, ¶ 15, 373 P.3d at 547, and our analysis begins with the statute's text, State v. Burbey , 243 Ariz. 145, 147, ¶ 7, 403 P.3d 145, 147 (2017). Unless the context directs otherwise, we give the words of the statute their ordinary meaning. State v. Sharma , 216 Ariz. 292, 296, ¶ 14, 165 P.3d 693, 697 (App. 2007). If that meaning is clear and unambiguous, we apply it and terminate our analysis. Burbey , 243 Ariz. at 147, ¶ 7, 403 P.3d at 147. But if the language is reasonably susceptible to different meanings, we consider secondary interpretation methods, including "the context of the statute, the language used, the subject matter, its historical background, its effects and consequences, and its spirit and purpose." Jurden , 239 Ariz. at 530, ¶ 15, 373 P.3d at 547 ; see also A.R.S. § 13-104 (requiring criminal statutes to "be construed according to the fair meaning of their terms to promote justice and effect the objects of the law"); Universal C.I.T. , 344 U.S. at 221, 73 S.Ct. 227 (court resolves statutory ambiguity by considering "all the light relevantly shed upon the words and the clause and the statute that express the purpose of [the legislature]").

¶10 A.R.S. § 13-3554(A) reads: "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." A defendant may be convicted under A.R.S. § 13-3554 even if the victim is not a minor. A.R.S. § 13-3554(B). The plain language of A.R.S. § 13-3554(A) makes each distinct "offer" or "solicitation" of sexual conduct with a minor a punishable offense. See Mejak v. Granville , 212 Ariz. 555, 558, ¶ 18, 136 P.3d 874, 877 (2006) (offense under A.R.S. § 13-3554 "is complete when a person offers or solicits sexual conduct with a minor or a peace officer posing as a minor").

2. Soliciting Under A.R.S. § 13-3554 Refers to a Course of Conduct.2

¶11 Although A.R.S. § 13-3554 permits separate convictions for each "offer" or "solicitation," that leaves open the more pressing question this case poses—namely, what is the scope of "solicitation" conduct that may give rise to a discrete offense? As the United States Supreme Court stated in Blockburger...

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4 cases
  • State v. Reed
    • United States
    • Arizona Court of Appeals
    • November 2, 2021 sexual acts.¶3 Reed was arrested and charged with luring a minor under 15 for sexual exploitation. See A.R.S. § 13-3554 ; State v. Moninger , 251 Ariz. 487, 500, ¶ 49, 494 P.3d 74, 77 (App. 2021) ( A.R.S. § 13-3554 defines luring by reference to the defendant's actions and "allows for pr......
  • State v. Rix
    • United States
    • Arizona Court of Appeals
    • August 29, 2023
    ...Barred His Prosecution. ¶13 At the close of the State's case-in-chief, Rix moved to dismiss Count Two based on State v. Moninger, 251 Ariz. 487 (App. 2021). Rix argued that multiple convictions and sentences for a single "continued" series of conversations with the undercover persona violat......
  • State v. Reed
    • United States
    • Arizona Court of Appeals
    • November 2, 2021 sexual acts. ¶3 Reed was arrested and charged with luring a minor under 15 for sexual exploitation. See A.R.S. § 13-3554; State v. Moninger, 251 Ariz. 487, 500, ¶ 49 (App. 2021) (A.R.S. § 13-3554 defines luring by reference to the defendant's actions and "allows for prosecution of a defe......
  • State v. Leeman
    • United States
    • Arizona Court of Appeals
    • April 7, 2022
    ... ... offender. Each of these offenses, however, are ... distinguishable ...           ¶21 ... In determining that a defendant could only be charged with ... one count of luring a minor for sexual exploitation, the ... court in State v. Moninger determined that the term ... "soliciting" could be read to refer to either a ... course of conduct or to discrete text messages. 251 Ariz ... 487, ¶ 14 (App. 2021). The court noted that the criminal ... code did not define "solicit," and it therefore ... looked to ... ...

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