State v. Valdez
| Citation | 894 P.2d 708,182 Ariz. 165 |
| Decision Date | 30 December 1994 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Carl Michael VALDEZ, Appellant. 93-0094. |
| Court | Court of Appeals of Arizona |
Carl Michael Valdez appeals from the judgments of conviction and sentences entered on jury verdicts finding him guilty of one count of commercial sexual exploitation of a minor and eight counts of sexual exploitation of a minor. The primary issue on appeal is whether Ariz.Rev.Stat.Ann. ("A.R.S.") section 13-3553.A.2, which forbids possessing any visual or print medium in which minors are engaged in sexual conduct, permits multiple convictions for possessing one roll of undeveloped film that is capable of being used to produce more than one photographic image. Given our decision on this issue, we conclude that the evidence presented at trial was insufficient to support four of appellant's convictions for sexual exploitation of a minor. Accordingly, we vacate those convictions and their respective sentences. We find no merit to the other issues raised on appeal and affirm appellant's five remaining convictions and sentences.
On May 11, 1990, appellant, posing as "Mr. Green," left three rolls of 35mm film and one reel of 8mm film at a Phoenix Walgreen's store for developing. 1 After developing the film, Walgreen's notified the police that the film involved possible child pornography. The police seized the film, prints, and negatives from the laboratory and instructed the store manager to attempt to identify appellant when he returned.
When appellant returned to Walgreen's to pick up the developed film, the manager telephoned the police while a clerk tried to obtain appellant's identification. Appellant became nervous and left without picking up the films or giving the clerk any information. The manager, however, recorded the license number of appellant's vehicle. The police traced the license number and obtained a search warrant for appellant's home and storage shed. The search revealed eight additional rolls of undeveloped film and two framed negatives depicting a nude child.
The grand jury indicted appellant on one count of commercial sexual exploitation of a minor (count I), A.R.S. section 13-3552, and ten counts of sexual exploitation of a minor (counts II through XI), A.R.S. section 13-3553.A.2, all class 2 felonies and dangerous crimes against children. Count I alleged that appellant induced a minor to engage in sexual conduct for purposes of producing the photographs and film that were the subject of counts II through VII. Each of the five counts numbered II through VI relied upon five pictures developed from the 35mm film that appellant dropped off at Walgreen's. Count VII pertained to the reel of 8mm film that appellant left at Walgreen's for developing. Counts VIII and IX involved allegations concerning two photographs of other children developed from the film found in the search of appellant's residence. Finally, counts X and XI were based on two framed negatives found inside a briefcase discovered in appellant's storage shed. The state subsequently amended the indictment to allege that appellant had two prior felony convictions.
A jury found appellant guilty of counts I through VII and counts X and XI but acquitted him of counts VIII and IX. Appellant waived his right to a jury trial on the allegation of the two prior convictions. The trial court subsequently found that appellant had one prior conviction. The trial court sentenced appellant to nine consecutive twenty-three-year prison terms, the minimum sentence permitted pursuant to A.R.S. section 13-604.01.
The trial court granted appellant leave to file a delayed appeal. We have jurisdiction pursuant to A.R.S. sections 12-120.21.A.1, 13-4031, and 13-4033.A.
All ten sexual exploitation of a minor counts alleged that appellant violated A.R.S. section 13-3553.A.2, which provides:
A. A person commits sexual exploitation of a minor by knowingly:
...
2. Distributing, transporting, exhibiting, receiving, selling, purchasing, possessing or exchanging any visual or print medium in which minors are engaged in sexual conduct.
The statutory reference to "visual or print medium," in turn, means:
(a) Any film, photograph, videotape, negative, slide or
(b) Any book, magazine or other form of publication or photographic reproduction containing or incorporating in any manner any film, photograph, videotape, negative or slide.
Although appellant concedes that he possessed the three rolls of undeveloped 35mm film, he notes that he never took possession of any of the developed photographs because police seized the film directly from Walgreen's. He further observes, and the state does not dispute, that no evidence shows that the five photographs that are the subject of counts II through VI came from more than one of the rolls of the 35mm film. Resolution of this appeal therefore turns on whether appellant's possession of one roll of undeveloped 35mm film could give rise to more than one violation of A.R.S. section 13-3553.A.2.
The state advances several arguments to support its contention that section 13-3553.A.2 permits multiple counts based upon a defendant's possession of one roll of undeveloped film. We conclude that none of the arguments find support in the statute's purpose or language.
Our supreme court has stated:
The primary rule of statutory interpretation is to determine and give effect to the legislative intent behind the statute. Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1043 (1988); Calvert v. Farmers Ins. Co., 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985). To determine legislative intent, we consider the statute's context, the language used, the subject matter, the historical background, the statute's effects and consequences, and the statute's spirit and purpose. Martin, 156 Ariz. at 457, 752 P.2d at 1043; Calvert, 144 Ariz. at 294, 697 P.2d at 687; Arizona Newspapers Ass'n v. Superior Court, 143 Ariz. 560, 562, 694 P.2d 1174, 1176 (1985). Additionally, we consider the policy behind the statute and the evil it was designed to remedy. Calvert, 144 Ariz. at 294, 697 P.2d at 687. We give words their usual and commonly understood meaning unless the legislature clearly intended a different meaning. Kilpatrick v. Superior Court, 105 Ariz. 413, 421, 466 P.2d 18, 26 (1970).
State v. Korzep, 165 Ariz. 490, 493, 799 P.2d 831, 834 (1990).
The state first argues that because A.R.S. section 13-3551(4) includes "negative" in the definition of "visual or print medium," a defendant may be separately convicted for each negative on an undeveloped roll of film. The central flaw in the state's argument is that the undeveloped film appellant left at Walgreen's did not constitute negatives any more than the undeveloped film constituted photographs. 2 The word "negative" as commonly used with respect to photography refers to "a developed negative image [in which the tones or colors of the subject are reversed], usually on a transparent base from which positive prints may be made." The New Lexicon Webster's Dictionary 669 (1989). As expert testimony established at trial, undeveloped film has no visible image of any kind; no image, positive or negative, appears until the film is developed. In addition, section 13-3551(4) lists both film and negative as examples of "visual or print medium," further indicating that an undeveloped film is not the statutory equivalent of a negative. 3
The fact that an undeveloped film may, when developed, reveal more than one image does not change our analysis, because we interpret the phrase "visual or print medium"" as referring to the physical object that depicts the prohibited image rather than the image itself. The language chosen by the legislature to define the offense supports that conclusion. In defining the offense, A.R.S. section 13-3553.A.2 uses the term "medium" rather than "image" or "depiction." 4 We afford words in statutes their usual and common meaning, absent some clear indication to the contrary. Korzep, 165 Ariz. at 493, 799 P.2d at 834. "Medium" in this context refers to the "material" of expression, not to the actual expression itself. See The New Lexicon Webster's Dictionary 621 (1989). Applying the common meaning, we conclude that the phrase "visual or print medium" refers to the physical item or object that depicts the prohibited image, not the image itself.
Moreover, section 13-3553.A.2 refers to possessing any medium in which "minors" are engaged in sexual conduct. The reference to "minors" in the plural but to "visual or print medium" in the singular indicates that a person who possesses a single "visual or print medium" containing multiple images should be subject to only one prosecution. Cf. State v. Shepler, 141 Ariz. 43, 44, 684 P.2d 924, 925 (App.1984) (); A.R.S. § 1-214.B ().
Finally, each word, phrase, and clause in a statute is to be given meaning so that no part is inert, trivial, or redundant. Walker v. City of Scottsdale, 163 Ariz. 206, 210, 786 P.2d 1057, 1061 (App.1989). Section 13-3551(4) defines "visual or print medium" in terms of physical items, including "[a]ny book, magazine or other form of publication." Such language would be mere surplusage if the legislature had intended that the term "medium" refer to the image rather than to the physical object that depicted the image. We conclude that, under the clear language of...
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