State v. Winkler

• Decision Date: 29 June 2021
• Docket Number: No. 2 CA-CR 2019-0284,2 CA-CR 2019-0284
• Parties: THE STATE OF ARIZONA, Appellee, v. PATRICK MICHAEL WINKLER, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. PATRICK MICHAEL WINKLER, Appellant.

No. 2 CA-CR 2019-0284

ARIZONA COURT OF APPEALS DIVISION TWO

June 29, 2021

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).

Appeal from the Superior Court in Pima County

No. CR20183949001

The Honorable James E. Marner, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Mark Brnovich, Arizona Attorney General

Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals

By Mariette S. Ambri, Assistant Attorney General, Tucson

Counsel for Appellee

Joel Feinman, Pima County Public Defender

By Michael J. Miller, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred.

VÁSQUEZ, Chief Judge:

¶1 After a jury trial, Patrick Winkler¹ was convicted of ten counts of sexual exploitation of a minor, two counts of luring a minor for sexual exploitation, three counts of unlawful age misrepresentation, and failure to register as a sex offender. The trial court sentenced her to consecutive and concurrent, presumptive prison terms totaling 173.5 years. On appeal, Winkler argues the court erred by ordering restitution for one of the sexual exploitation victims and by denying her motion for a judgment of acquittal because the state failed to present sufficient evidence to support her luring and age-misrepresentation convictions. Winkler also challenges the constitutionality of the luring statute, contending it is overbroad. For the following reasons, we affirm in part and vacate in part.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the convictions and the trial court's restitution order. State v. Hollenback, 212 Ariz. 12, ¶ 2 (App. 2005); State v. Lewis, 222 Ariz. 321, ¶ 2 (App. 2009). In 2017, Winkler was on parole and housed at a reentry center "primarily for sex offenders." As part of her parole and admission to the center, she was subject to certain conditions, including being prohibited from visiting "adult websites or websites known to cater to criminal behavior."

¶3 Winkler briefly moved to another facility before returning to the reentry center in March 2018. Upon her return, Winkler provided her parole officer, who was responsible for electronic monitoring, with updated information that included an "on-line identifier." Investigation of this identifier led the parole officer to conclude that Winkler was in violation of her parole by "using the Internet to lure minors." When confronted with this information, Winkler "just kind of . . . grunted yes . . . admitting to what happened." At this point, the parole officer's supervisor obtained a warrantand searched Winkler's phone, revealing "downloaded pornographic material" and two "concerning" text messages, one that included a profile of a minor female and another with an image of a "naked upper torso."

¶4 The phone was then turned over to the police for further investigation. The Internet Crimes Against Children Unit conducted a "download and analysis" of the phone's contents that uncovered "over 650 images and videos" of child pornography, internet searches containing "terms that corresponded to child pornography," visits to websites that "appeared consistent with child pornography," and "98 chats of a sexual nature" in Whisper, a private messaging application. Winkler was indicted on ten counts of sexual exploitation of a minor, four counts of luring a minor for sexual exploitation, three counts of unlawful age misrepresentation, and one count of failure to register as a sex offender. She was tried, convicted, and sentenced as described above. On the state's motion, the trial court ordered Winkler to pay restitution to one of the victims depicted in the child pornography. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1), (3).²

Restitution

¶5 Winkler contends the trial court erred by ordering restitution because her conduct was not the "but-for" cause of the victim's economic losses. She further maintains that even if there were a showing of causation, her act of viewing the image did not directly cause any damages. We review a restitution order for an abuse of discretion, viewing the evidence in the light most favorable to sustaining the court's order. Lewis, 222 Ariz. 321, ¶ 5. However, we review de novo questions of statutory interpretation. State v. Lapan, 249 Ariz. 540, ¶ 30 (App. 2020).

¶6 The trial court shall order a defendant once convicted to "make restitution to the person who is the victim of the crime . . . in the full amount of the economic loss as determined by the court." A.R.S. § 13-603(C); see Ariz. Const. art. II, § 2.1(8) (victims have right to receive restitution from person convicted of crime that caused victim's harm). "'Economic loss' means any loss incurred by a person as a result of the commission of an offense," including "lost interest, lost earnings and other losses that would not have been incurred but for the offense" but not "consequential damages." A.R.S. § 13-105(16). Damages are consequential when "the loss results from the concurrence of some causal event other than the defendant's criminal conduct." State v. Wilkinson, 202 Ariz. 27, ¶ 7 (2002). In calculating restitution, "the court shall consider all losses caused by the criminal offense or offenses for which the defendant has been convicted." A.R.S. § 13-804(B).

¶7 The mere existence of child pornography causes its victim ongoing harm. See State v. Paredes-Solano, 223 Ariz. 284, ¶ 11 (App. 2009). This harm is not only caused by the victim's actual abuser or those involved in the production and distribution of child pornography, but by possessors as well. See Paroline v. United States, 572 U.S. 434, 457 (2014) ("The unlawful conduct of everyone who reproduces, distributes, or possesses the images of the victim's abuse . . . plays a part in sustaining and aggravating this tragedy."). The victim "must go through life knowing that the [photo] is circulating within the mass distribution system for child pornography," "pos[ing] an even greater threat to the child victim than [the] sexual abuse." New York v. Ferber, 458 U.S. 747, 759 n.10 (1982) (quoting Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981)). The possession of child pornography is a direct cause of this harm. See State v. Berger, 212 Ariz. 473, ¶ 18 (2006) ("[c]hild pornography not only harms children in its production" but also by continued possession of such images); United States v. Norris, 159 F.3d 926, 930 (5th Cir. 1998) ("The consumer who 'merely' or 'passively' receives orpossesses child pornography directly contributes to this continuing victimization."); United States v. Sherman, 268 F.3d 539, 547 (7th Cir. 2001) ("The possession . . . of child pornography directly victimizes the children portrayed by violating their right to privacy . . . .").

¶8 The jury found Winkler guilty of possessing an image from the "Vicky Series," which is one of the most commonly traded child pornography series online.³ After Winkler's conviction, the victim sought restitution, providing the trial court with a victim impact statement that detailed the extent of her ongoing harm caused by continued consumption of her images and an accounting of her medical, psychological, and vocational losses in this case.

¶9 In the trial court, Winkler argued that "neither [her] offense nor any of [her] other conduct caused the victim's economic losses." Citing Wilkinson, she further argued that any damages suffered by the victim as a result of her viewing the image are unrecoverable consequential damages because the victim was unaware that Winkler possessed it. See 202 Ariz. 27, ¶ 7. The court rejected these arguments and found the evidence supported the restitution award because the victim's "knowledge about the ongoing distribution, downloading, and/or viewing of these videos by people, including the defendant, continue[d] to cause significant emotional harm."

¶10 Winkler raises these same general arguments on appeal. Winkler first contends that the United States Supreme Court's decision in Paroline does not apply in Arizona because § 13-105(16) requires "but-for" causation, which cannot be established in this case, and thus the victim is not entitled to restitution. In Paroline, the Court addressed the "causal relationship [that] must be established between the defendant's conduct and a victim's losses for purposes of determining the right to, and the amount of, restitution under" the federal statute requiring restitution for "child-pornography possession." 572 U.S. at 439; see 18 U.S.C. § 2259. In addressing the first part of this inquiry, the Court found that the statute is "intended to compensate victims for losses caused by the offense of conviction" and that strict but-for causation is not required for a victim to be entitled to restitution. 572 U.S. at 445, 450-52. Similarly, in Arizona, neither §§ 13-603(C), 13-804(B), nor 13-105(16) explicitly require but-forcausation to have a right to restitution. Although § 13-105(16) "includes" several types of losses "that would not have been incurred but for the offense," it encompasses "any loss incurred by a person as a result of the commission of an offense." The victim's losses in this case were caused by Winkler's possession of the photo. See Berger, 212 Ariz. 473, ¶ 18; Paroline, 572 U.S. at 457. Section 13-603(C) requires restitution to such a victim in the "full amount of [her] economic loss."

¶11 We disagree with Winkler's interpretation of the "but-for" causation requirement under § 13-105(16). See Wilkinson, 202 Ariz. 27, ¶ 7 (losses awarded as restitution must be "economic," ones that the victim...