IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2001-0146 ) DEPARTMENT A Appellee, ) ) OPINION v. ) ) TYRONE VAUGHN HENRY, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20001846
Honorable Michael J. Cruikshank, Judge
AFFIRMED
Terry Goddard, Arizona Attorney General By Randall M. Howe and R. Wayne Ford Phoenix Attorneys for Appellee
Tyrone Vaughn Henry Florence In Propria Persona
H O W A R D, Judge.
¶1 Appellant Tyrone Henry was convicted of fraudulent scheme and artifice and
sentenced to prison. He argues the trial court erred in denying his motion for judgment of
acquittal.1 Finding no abuse of discretion or other reversible error, we affirm.
1 In a separate memorandum decision, we reject Henry’s other claims, none of which merits publication or requires reversal. See Ariz. R. Sup. Ct. 111, 17A A.R.S. FACTS AND PROCEDURAL BACKGROUND
¶2 We view the facts and all reasonable inferences therefrom in the light most
favorable to sustaining the conviction. State v. Riley, 196 Ariz. 40, ¶2, 992 P.2d 1135, ¶2 (App.
1999). In June 2000, Henry approached the victims, fifteen-year-old K. and sixteen-year-old C.,
at a shopping mall. He claimed to be marketing a new face cream, asked the victims whether they
used face creams, and showed them photographs of females with “clumpy,” white cream on their
faces. Henry said he was conducting a survey of the face cream, using females ages twelve to
twenty-five, and appeared to write the victims’ responses to questions he asked them about lotions
they used. He asked the victims if they would like to further participate in the survey by having
facials, offering them $10 each to do so. The victims made an appointment to have facials the next
day.
¶3 Henry telephoned the victims the next day and gave them directions to his
apartment. The victims took a male friend along to the apartment, but Henry requested that the
friend remain outside during the facials, claiming Henry and the victims “had to talk about secret
traits that were in the facial cream.” After the friend agreed, the victims entered the living room
of Henry’s small apartment, and he asked K. to lie on a bed and C. to lie on a couch near the bed.
¶4 Wearing cotton shorts and a T-shirt, Henry placed small caps and a bandanna over
K.’s eyes and told her she would go blind if any of the face cream got in her eyes. K. felt him
brush a substance on her face and then heard him clicking the mouse on his computer. With her
eyes still covered, K. then heard heavy breathing and heard Henry telling C., “it’s coming soon,”
and, after that, “it spilt.” K. then saw camera flashes after Henry said he was going to take
photographs. K. heard Henry walking behind her where C. was lying, and then felt him place a
thick, warm substance on K.’s face with his hands. Henry had told K. he would warm the
2 treatment cream in a microwave oven, but she never heard a microwave oven activated. Shortly
thereafter, Henry removed the bandanna and caps and gave K. and C. towels to wipe their faces.
When K. sat up to wipe her face, she saw “white stuff” on C.’s chin that was “real thick . . . [and]
clumped up.”
¶5 Henry had not covered C.’s eyes but had told her to keep them closed, claiming the
applications to her face would burn her eyes. Henry had taken a “before” photograph and had
applied two substances to C.’s face with his hands and had taken more photographs. He then had
told C. to “hold on because the thick treatment was going to come in just a second.” Without
feeling Henry’s hands, C. had then felt “something . . . warm . . . just [go] all over [her] face”
and shirt and had then noticed camera flashes.
¶6 Before the victims left the apartment, Henry asked them “how did it feel,” giving
them a $20 bill. He also asked if they wanted to make another appointment. The victims made
another appointment and left with their friend. The victims thereafter discussed what had
happened and, based on their suspicions that Henry had ejaculated on C.’s face, contacted the
police.
¶7 Police officers interviewed the victims and collected C.’s T-shirt. After receiving
crime laboratory test results showing the possible presence of semen on the shirt, which
deoxyribonucleic acid (DNA) testing later confirmed as Henry’s, police searched his apartment.
The search did not produce any indication that Henry had been conducting legitimate face cream
testing, but police found a day planner with the victims’ names in it, along with the names of
numerous other females, and sections marked “site” and “White Dew Facials.” Officers seized
a computer, a scanner, and 300 to 500 photographs, many of them depicting females involved in
situations similar to that the victims had described. Officers also found one photograph of C. on
3 an undeveloped roll of film resembling one of the earlier photographs Henry had taken during the
incident. Police discovered that Henry was operating a pornographic Internet website titled,
“White Dew Original Facials,” on which he would charge visitors between $10 and $90 to view
images of females with semen on their faces.
¶8 The state charged Henry with two counts of kidnapping and one count of fraudulent
scheme and artifice. At trial, in addition to the victims, M., whose name had been found in
Henry’s day planner and photographs of whom had been recovered from Henry’s apartment,
testified that, about two years earlier, she had responded to an advertisement in which Henry had
offered money for females to participate in a face cream experiment. She testified that she had
made an appointment with Henry and had gone to his apartment. She said Henry had covered her
eyes, telling her that the cream would burn her eyes, had surreptitiously ejaculated on her face,
and had taken photographs. Tests conducted on a stain from a sweater M. had worn during the
incident produced results consistent with Henry’s semen.
¶9 In his defense, Henry called several females, who testified they had gone to Henry’s
apartment and had willingly posed for photographs with Henry’s semen on their faces, which they
had understood would be used on Henry’s website. They testified that Henry had paid them as
much as $100 per hour for posing for the photographs. During closing argument, Henry
suggested that he, in fact, had been engaged in legitimate skin cream testing, that the semen found
on C.’s shirt could have been transferred there from the towel she had used to clean her face at
Henry’s apartment, and that M. had shown up for a face treatment, had flirted with Henry, and
had wanted to “play around with some other things.”
¶10 The trial court granted Henry’s motion for judgment of acquittal on the kidnapping
charges but denied it on the fraudulent scheme count. The jury found Henry guilty, and the court
4 imposed a presumptive, five-year prison sentence, which the court enhanced by two years after
Henry admitted having committed the offense while on release for an unrelated offense.
DISCUSSION
¶11 Henry argues the trial court erred in denying his motion for judgment of acquittal,
submitted pursuant to Rule 20, Ariz. R. Crim. P., 17 A.R.S., after the conclusion of the state’s
evidence. We review a trial court’s denial of a Rule 20 motion for an abuse of discretion and will
reverse only no substantial evidence supports the conviction. State v. Carlos, 199 Ariz. 273, ¶7,
17 P.3d 118, ¶7 (App. 2001). Substantial evidence, which may be either circumstantial or direct,
is evidence that a reasonable jury can accept as sufficient to infer guilt beyond a reasonable doubt.
State v. Fulminante, 193 Ariz. 485, ¶24, 975 P.2d 75, ¶24 (1999); State v. Garza, 196 Ariz. 210,
¶3, 994 P.2d 1025, ¶3 (App. 1999); State v. Sabalos, 178 Ariz. 420, 422, 874 P.2d 977, 979
(App. 1994). Ultimately, a trial court must submit a case to the jury if reasonable minds can differ
on the inferences to be drawn from the evidence. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d
111, 114 (App. 1993).
¶12 The jury found Henry guilty of fraudulent scheme and artifice, in violation of
A.R.S. § 13-2310(A), which prohibits a person from, “pursuant to a scheme or artifice to defraud,
knowingly obtain[ing] any benefit by means of false or fraudulent pretenses, representations,
promises or material omissions.” For purposes of § 13-2310(A), “a ‘scheme or artifice’ is some
‘plan, device, or trick’ to perpetrate a fraud.” State v. Haas, 138 Ariz. 413, 423, 675 P.2d 673,
683 (1983), quoting State v. Stewart, 118 Ariz. 281, 283, 576 P.2d 140, 142 (App. 1978). “The
scheme need not be fraudulent on its face but ‘must involve some sort of fraudulent
misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and
comprehension.’” Haas, 138 Ariz. at 418, 675 P.2d at 678, quoting United States v. Pearlstein,
5 576 F.2d 531, 535 (3d Cir. 1978) (emphasis omitted). The term “defraud” as used in the statute
is not measured by any technical standard but, rather, by a “broad view.” Haas, 138 Ariz. at 424,
675 P.2d at 684. A “benefit” under the statute is “anything of value or advantage, present or
prospective.” A.R.S. §§ 13-105(2), 13-2301.
¶13 Henry argues no substantial evidence supports the conviction because sexual
gratification does not qualify as a requisite “benefit” under § 13-2310, contrary to the state’s
argument to the jury.2 Henry urges that “benefit” as found in § 13-2310 applies only to property
and pecuniary gains, not to anything as intangible as sexual gratification. Although we normally
review a Rule 20 ruling for an abuse of discretion, see Carlos, we review this statutory
interpretation issue de novo. Gray v. Irwin, 195 Ariz. 273, ¶7, 987 P.2d 759, ¶7 (App. 1999).
We agree with the state that, in this case, sexual gratification does qualify as a benefit under § 13-
2310.
¶14 In construing a statute, effectuating legislative intent is our principal aim. State v.
Huskie, 202 Ariz. 283, ¶5, 44 P.3d 161, ¶5 (App. 2002). In ascertaining legislative intent, we
consider “‘the statute’s context, subject matter, historical background, effects, consequences,
spirit, and purpose.’” Id., quoting Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶8, 19 P.3d
1241, ¶8 (App. 2001). Moreover, “we interpret statutes to give meaning to every word.” State
v. Pitts, 178 Ariz. 405, 407, 874 P.2d 962, 964 (1994).
2 The trial court allowed the state to argue that either sexual gratification or obtaining photographs of the victims could constitute “any benefit.” A.R.S. § 13-2310(A). If A.R.S. § 13- 105(2) did not include sexual gratification within the definition of “any benefit,” we would be required to reverse. See State v. Lopez, 158 Ariz. 258, 266, 762 P.2d 545, 553 (1988) (if two theories of guilt submitted to jury and one is improper, we must reverse); State v. Alvarado, 178 Ariz. 539, 543-44, 875 P.2d 198, 202-03 (App. 1994) (same).
6 ¶15 The legislative history and language of § 13-2310 support our result. Section 13-
2310, a portion of the organized crime and fraud chapter of the criminal code, was modeled after
18 U.S.C. § 1341, the federal mail fraud statute. See State v. Proctor, 196 Ariz. 557, ¶13, 2 P.3d
647, ¶13 (App. 1998). As originally enacted, the language of § 13-2310 more closely resembled
that of § 1341, stating that a person was guilty of fraudulent schemes and artifices by fraudulently
obtaining “money, property or any other thing of value.” 1976 Ariz. Sess. Laws, ch. 134, § 1.
However, two years later, the legislature aimed for a broader scope, amending § 13-2310 by
replacing the clause “money, property or any other thing of value” with the more inclusive “any
benefit.” 1978 Ariz. Sess. Laws, ch. 201, § 156. And the legislature did not define “benefit” in
§ 13-2301, the definitions section of the organized crime chapter. Rather, “benefit” is defined
among the definitions for the entire criminal code in § 13-105 and includes “anything of value or
advantage,” not merely pecuniary gain. Accordingly, we believe the legislature intended
“benefit” as used in § 13-2310 to have a broad definition and did not intend to exclude sexual
gratification.
¶16 Henry argues to the contrary, pointing out that § 13-2310 is mentioned numerous
times in A.R.S. §§ 13-1801 through 13-1818, the theft chapter, and claiming theft offenses
concern only the transfer of property. According to Henry, § 13-2310, therefore, should also
pertain only to the transfer of property so that the statutes can be “read together and harmonized.”
The references Henry identifies in the theft chapter involving § 13-2310 regard only peripheral
matters, such as the county bad check fund established in A.R.S. § 13-1811 and subpoenas of bank
records provided for in A.R.S. § 13-1812, not elements of the crime. Such references do not
indicate a legislative intent to limit § 13-2310 to theft crimes. And the legislature did not direct
anywhere in § 13-2310 that any elements of fraudulent scheme and artifice be defined by the theft
7 chapter. Ultimately, had the legislature intended the inextricable union between the theft and
organized crime chapters that Henry urges, it presumably would have clearly said so.
¶17 Pertinent case law also supports our decision. Although no state case addresses
whether sexual gratification qualifies as a benefit under § 13-2310, we find illuminating our
supreme court’s decision in Haas. There, the court addressed the scope of the language in § 13-
2310 pertaining to fraud. Although it did not address what qualifies as a benefit, the court
concluded, in overriding the defendant’s attempt to limit the scope of § 13-2310:
The statute proscribes conduct lacking in “fundamental honesty [and] fair play . . . in the general and business life of members of society.” In the final analysis, we adopt a broad view of the statute because no other view is sensible. The definition of “fraud” must be broad enough to cover all of the varieties made possible by boundless human ingenuity.
Haas, 138 Ariz. at 424, 675 P.2d at 684, quoting Blachly v. United States, 380 F.2d 665, 671 (5th
Cir. 1967) (citation omitted) (alteration in Haas).
¶18 The holding in Haas would be undermined by observing a broad definition of some
language in § 13-2310 while prescribing a limited scope to other language. If the legislature had
intended § 13-2310 to “be broad enough to cover all of the varieties made possible by boundless
human ingenuity,” Haas, 138 Ariz. at 424, 675 P.2d at 684, then it did not intend to confine the
definition of “benefit” to include only pecuniary gain. Certainly, the present case illustrates the
assortment of fraudulent invention that, in the interest of preserving “‘fundamental honesty [and]
fair play . . . in the general and business life of members of society,’” can only be proscribed by
a broad interpretation of § 13-2310. Haas, 138 Ariz. at 424, 675 P.2d at 684, quoting Blachly,
380 F.2d at 671. Accordingly, we conclude the spirit of § 13-2310, as expressed in Haas, is
8 preserved only by giving “meaning to every word,” Pitts, 178 Ariz. at 407, 874 P.2d at 964, and
including sexual gratification in these circumstances within the definition of “benefit.”
¶19 We also find guidance in case law from other jurisdictions. In Guam v. Camacho,
103 F.3d 863 (9th Cir. 1996), the court interpreted a criminal official misconduct statute that
precluded a public official from committing an unauthorized act relating to the official’s duties
“‘with the intent to benefit himself or another person . . . or to deprive another person of a
benefit.’” Camacho, 103 F.3d at 865, quoting 9 Guam Code Ann. § 49.90(a). A “benefit” under
the statute was defined, in pertinent part, as “‘any gain or advantage or anything regarded by the
beneficiary as gain or advantage.’” Camacho, 103 F.3d at 866, quoting 9 Guam Code Ann. §
49.10(a).
¶20 The defendant, a public official carrying out his official duties, had fondled a young
girl and was charged with violating the official misconduct statute. Although the defendant argued
that the statute was intended to apply to pecuniary matters, the court responded: “This contention
ignores the language of the statute, which is much broader than Camacho suggests.” Id. at 866.
In further analysis, the court observed: “That [the defendant] performed this action with the intent
to benefit himself is inferable from its patently sexual nature.” Id. And, ultimately, the court
concluded: “‘Benefit’ is broad enough to encompass . . . sexual titillation . . . . When [the
defendant] caressed [the victim] . . . with sexual intent[,] it was an unauthorized exercise of an
official function benefiting him . . . .” Id.
¶21 As the court in Camacho concluded on the statute before it, we believe that, in light
of the legislative history, the statutory language, and the holding in Haas, § 13-2310 “is much
broader than [Henry] suggests” and that “‘[b]enefit’ is broad enough to encompass . . . sexual
titillation.” Camacho, 103 F.3d at 866.
9 ¶22 Other cases interpreting statutes prohibiting a public official from improperly
obtaining a “benefit” have reached like results. See People v. Feerick, 714 N.E.2d 851 (N.Y.
1999) (“benefit” in official misconduct statute N.Y. Penal Law § 195.00, defined as “any gain or
advantage” in N.Y. Penal Law § 10.00(17)), and People v. Abranko, 599 N.Y.S.2d 447 (Crim.
Ct. 1993) (public official charged with official misconduct under N.Y. Penal Law § 195.00 for
sexual touching); State v. Gove, 875 P.2d 534 (Or. Ct. App. 1994) (“benefit” includes sexual
gratification); State v. Moffitt, 801 P.2d 855 (Or. Ct. App. 1990) (same); cf. State v. Wellington,
663 P.2d 496 (Wash. Ct. App. 1983) (defendant criminally liable under theft statute for
promising, in defendant’s words, “benefits” of a sexual nature and then declining to perform any
such “benefits” upon payment). Although, as Henry points out, the statutes involved in Camacho
and these other cases are of a different nature than § 13-2310, these cases illustrate that defining
“benefit” to include sexual gratification is not anomalous nor outside the scope of the statute as
intended by the legislature. Further, we disagree with Henry that the rule of lenity requires us to
interpret § 13-2310 more restrictively than the legislature intended. See State v. Fell, 203 Ariz.
186, ¶10, 52 P.3d 218, ¶10 (App. 2002) (doubts about statutory construction resolved in favor
of defendant).
¶23 Nevertheless, if we accept the state’s position, Henry foresees a “slippery slope”
where a broad range of noncommercial and intangible benefits may become the bases for criminal
prosecution. He likens the state’s position to criminalizing a “practical joke[] gone awry” and the
“‘benefit’ of laughter” attending it. But the context of Henry’s scheme was commercial, a face
cream survey and sample application, and not the type of noncommercial activity that troubles
Henry. And the legislature has defined numerous sexual offenses, see, e.g., A.R.S. §§ 13-1403,
13-1404, 13-1410, and has taken sexual motivation into consideration in defining other crimes and
10 defenses. See, e.g., A.R.S. § 13-1407 (lack of sexual motivation a defense to certain crimes).
Henry has not pointed out any statute criminalizing practical jokes. We need not decide the
maximum reach of § 13-2310 today, but only that Henry’s conduct falls within the legislative
intent.
¶24 Henry also claims the court was “without jurisdiction” to make a finding that the
offense had been sexually motivated, which he defines as a “feeling, fully self-contained.” But
a judge or jury is often asked to determine what occurred in a defendant’s mind, such as whether
a defendant acted with premeditation, with a particular intent or knowledge, or with sexual
motivation. See, e.g., A.R.S. §§ 13-105(9), 13-118, 13-1101, 13-1105. The court here had
“jurisdiction” to determine whether Henry had acted out of sexual motivation and had received
sexual gratification.
¶25 Having concluded that sexual gratification qualifies as a benefit under § 13-2310,
we return to Henry’s claim that substantial evidence did not support his conviction. Henry
operated a pornographic website on which he charged visitors money to view photographs of
females with semen on their faces. He paid some females up to $100 per hour to willingly pose
for such photographs. Henry approached the victims claiming to be conducting a face cream
survey and offered them $10 each to have “facials.” The victims testified that they had scheduled
an appointment with Henry believing they were participating in a legitimate face cream survey and
would, in fact, receive a facial. The evidence supports the conclusion that, with the victims’ eyes
covered or closed, Henry ejaculated on C.’s face and took photographs, in a manner resembling
the subterfuge he had employed with M. two years before. No evidence showed that Henry was
associated with any legitimate face cream enterprise.
11 ¶26 Construed in a light supporting the conviction, see Riley, the evidence supporting
the conviction is substantial. See Carlos. The jury could infer beyond a reasonable doubt that,
pursuant to a scheme to defraud and through false pretenses, Henry had obtained a benefit through
sexual gratification or by an intent to post photographs of C. on his website for profit while paying
her substantially less than he did consenting models. See § 13-2310(A); Fulminante; Garza;
Sabalos. Henry points out there was no evidence C.’s photograph was ever posted on his website.
But the benefit need be prospective only. See § 13-105(2). And, although Henry argues, by
analogy to A.R.S. § 13-1802, that the jury was required to find the value of the benefit obtained
by the fraudulent scheme, the portion of § 13-2310 under which Henry was convicted contains no
such requirement. Accordingly, the trial court did not abuse its discretion in denying Henry’s
Rule 20 motion. See Carlos.
DISPOSITION
¶27 We affirm Henry’s conviction and sentence.
_______________________________________ JOSEPH W. HOWARD, Judge
CONCURRING:
_______________________________________ J. WILLIAM BRAMMER, JR., Presiding Judge
_______________________________________ M. JAN FLÓREZ, Judge