State v. Yegan

• Decision Date: 08 December 2009
• Docket Number: No. 1 CA-CR 08-0455.,1 CA-CR 08-0455.
• Citation: 221 P.3d 1027
• Parties: STATE of Arizona, Plaintiff/Appellee, v. Sama YEGAN, Defendant/Appellant.
• Court: Arizona Court of Appeals

221 P.3d 1027

STATE of Arizona, Plaintiff/Appellee, v. Sama YEGAN, Defendant/Appellant.

No. 1 CA-CR 08-0455.

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

December 8, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel, and Sherri Tollar Rollison, Assistant Attorney General, Criminal Appeals/Capital Litigation Section, Phoenix, Attorneys for Plaintiff/Appellee.

Phil Noland, Attorney at Law By Phil Noland, Phoenix, Attorney for Defendant/Appellant.

OPINION

BROWN, Judge.

¶ 1 Sama Yegan appeals from his convictions and sentences on four counts of luring a minor for sexual exploitation. He asserts that the trial court lacked subject matter jurisdiction because the conduct for which he was charged occurred in California. He also contends that the court erred in denying his motion for judgment of acquittal. For the following reasons, we affirm.

BACKGROUND

¶ 2 Yegan met "Erica" during an online chat session on April 27, 2005. He initiated contact with her from his home in California. The chat room was in the "Arizona" section of the web site and was designated "Romance." His screen name was "Sammythe-BullofLasVegas" and hers was "az_erica_az." During the first few minutes of their conversation, Yegan learned that Erica, allegedly age fourteen, lived in Phoenix. Yegan told Erica he was thirty years old and that she could see a picture of him by viewing his "profile." Erica, in turn, sent Yegan her picture, a photo of a girl holding a teddy bear. Even though Yegan knew Erica was allegedly only fourteen years old, he continued to engage in instant messenger chat sessions with her over the next several weeks. Some chats included talk of sexual activities and innuendo. Yegan eventually arranged to travel to Phoenix to meet Erica in person so they could "hang out." When Yegan arrived in the parking lot of a fast-food restaurant for what he thought would be a meeting with Erica, he was confronted by police officers and placed under arrest.¹ After obtaining a warrant to search his rental car, police found a napkin with Erica's name and the restaurant's address written on it, some unused condoms, and two laptop computers.

¶ 3 After advising Yegan of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a detective interviewed Yegan. Still unaware that Erica was a police officer, Yegan admitted that he knew Erica was only fourteen years old. He acknowledged making inappropriate comments to her via his computer but claimed he was drunk during their first chat session. He further explained that he wanted to know why someone of Erica's age would participate in an adult chat room and that his sexual comments were just "frolicking." When the detective confronted Yegan with a transcript of the first chat session, Yegan admitted his behavior was wrong but denied any intent to solicit sex.

¶ 4 Based on the content of the chat sessions, Yegan was charged with four counts of luring a minor for sexual exploitation, having reason to know that the minor was under fifteen ("luring"), in violation of Arizona Revised Statutes ("A.R.S.") section 13-3554 (2001). After a four-day trial, a jury found Yegan guilty as charged, and the court sentenced him to lifetime probation, including a twelve-month jail term, and registration as a sex offender. Yegan timely appealed.

DISCUSSION

A. Subject Matter Jurisdiction

¶ 5 Yegan argues the superior court erred in exercising jurisdiction over this matter because no element of the crimes he was charged with occurred in Arizona. See State v. Suarez, 137 Ariz. 368, 375, 670 P.2d 1192, 1199 (App.1983) (focusing analysis on whether any element of criminal fraud occurred in Arizona). He asserts that luring is a substantive offense under A.R.S. § 13-3554 and is therefore completed when a person solicits sexual conduct with a minor having reason to know the person solicited was under fifteen.² See Mejak v. Granville, 212 Ariz. 555, 558, ¶ 18, 136 P.3d 874, 877 (2006) (finding luring is not a preparatory offense, but rather, a completed offense), superseded by statute on other grounds, 2007 Ariz. Sess. Laws, ch. 248, § 8. Thus, Yegan contends that because he was sitting at his computer in California during each chat session for which he was criminally charged, he never engaged in conduct that violated A.R.S. § 13-3554 while in Arizona.

¶ 6 Because subject matter jurisdiction can neither be waived nor conferred by agreement, we have an independent duty to confirm jurisdiction before reaching the merits of an appeal. See State v. Avila, 147 Ariz. 330, 333-34, 710 P.2d 440, 443-44 (1985). This is a question of law we review de novo. State v. Sorkhabi, 202 Ariz. 450, 452, ¶ 5, 46 P.3d 1071, 1073 (App.2002).

¶ 7 The scope of Arizona's jurisdiction over criminal conduct is set forth in A.R.S. § 13-108 (2001).³ Subsection (A) of the statute confers jurisdiction if:

1. Conduct constituting any element of the offense or a result of such conduct occurs within this state; or

2. The conduct outside this state constitutes an attempt or conspiracy to commit an offense within this state and an act in furtherance of the attempt or conspiracy occurs within this state[.]

(Emphasis added.)

¶ 8 Based on the plain language of subsection (A)(1), we reject Yegan's argument that asserting jurisdiction over an out-of-state crime is only appropriate if an element of the crime was committed in Arizona.⁴ The legislature's adoption of A.R.S. § 13-108(A)(1) is an "expression of intent to exercise jurisdiction over a crime, wherever committed, when the `effect' or `result' of such crime occurs in Arizona."⁵ State v. Flores, 218 Ariz. 407, 414, ¶ 17, 188 P.3d 706, 713 (App.2008). Section 13-108 has generally been given broad interpretation, granting Arizona jurisdiction over criminal offenses to the full extent permitted by federal and international law.⁶ See id. Accordingly, the result of a person's conduct may still subject one to prosecution, even if the result is not an element of the offense. Id. (noting Arizona has jurisdiction if defendant's conduct has a direct effect in Arizona); State v. Miller, 157 Ariz. 129, 133, 755 P.2d 434, 438 (App.1988) ("Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of harm as if he had been present at the effect, if the state should succeed in getting him within its power.") (quoting Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 55 L.Ed. 735 (1911)). (Citations omitted).

¶ 9 The effect/result theory recognized in Miller and Flores is consistent with international law and the Arizona Legislature's decision to depart from the Model Penal Code ("MPC") in crafting this state's jurisdictional statute.⁷ The relevant international law is expressed in the Restatement (Third) of Foreign Relations Law § 402(1)(c) (1987), which provides that a state has jurisdiction to criminalize "conduct outside its territory that has or is intended to have substantial effect within its territory." See Flores, 218 Ariz. at 411, 188 P.3d at 710; see also Restatement (Third) of Foreign Relations Law § 402(1), cmt. d ("This Restatement takes the position that a state may exercise jurisdiction based on effects in the state, when the effect or intended effect is substantial and the exercise of jurisdiction is reasonable under § 403.").

¶ 10 A comparison of A.R.S. § 13-108 with MPC § 1.03, from which Arizona's criminal jurisdiction statute is derived, also supports this conclusion. Miller, 157 Ariz. at 133-34, 755 P.2d at 438-39. In contrast to Arizona law, § 1.03(1)(a) of the MPC confers jurisdiction only if "the conduct that is an element of the offense or the result that is such an element occurs within this State[.]" (Emphasis added.) In departing from the MPC's restriction that a result must also be an element of the offense, our legislature intended that Arizona's criminal jurisdiction extend beyond that established in the MPC. Miller, 157 Ariz. at 133-34, 755 P.2d at 438-39. Thus, Arizona has subject matter jurisdiction over crimes committed in another state if the result of such criminal activity has a substantial effect within Arizona. Id.

¶ 11 In Miller, two individuals stole diamond rings from a department store in Arizona and then travelled to Colorado where they met the defendant, Miller, for the first time. Id. at 130, 755 P.2d at 435. Miller agreed to help them dispose of the rings in Las Vegas, but he was subsequently arrested in Utah and extradited to Arizona for theft. Id. The trial court dismissed the case for lack of jurisdiction. Id. On appeal, this court affirmed because Miller's extra-territorial criminal conduct, fencing stolen merchandise, had an "insubstantial" and "indirect" effect on Arizona. Id. at 133, 755 P.2d at 438. This court reasoned that the harm to the department store occurred before Miller agreed to help dispose of the stolen rings and therefore he neither intended to cause a direct future harm in Arizona nor did so in fact. Id.

¶ 12 Conversely, we found that Arizona had jurisdiction over an out-of-state crime in Flores. 218 Ariz. at 416, ¶ 25, 188 P.3d at 715. The defendant, Flores, was a resident of Mexico. Id. at 409, ¶ 2, 188 P.3d at 708. While in Mexico, he contacted a person who agreed to illegally transport him into the United States. Id. The police arrested Flores in Arizona, and he eventually pled guilty to solicitation to commit smuggling. Id. On appeal, he claimed Arizona did not have jurisdiction because the crime of solicitation was committed entirely in Mexico. Id. at ¶ 3. We determined that while no element of the crime had been committed in Arizona, this state nonetheless had jurisdiction because the adverse effect of the crime, Flores's illegal presence here, was the intended consequence of his crime. Id. at 415, ¶ 21, 188 P.3d at 714. We clarified what constitutes a "substantial effect,"...