State v. Hollenback

126 P.3d 159, 212 Ariz. 12, 468 Ariz. Adv. Rep. 3, 2005 Ariz. App. LEXIS 171
CourtCourt of Appeals of Arizona
DecidedDecember 29, 2005
Docket2 CA-CR 2004-0139
StatusPublished
Cited by2 cases

This text of 126 P.3d 159 (State v. Hollenback) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hollenback, 126 P.3d 159, 212 Ariz. 12, 468 Ariz. Adv. Rep. 3, 2005 Ariz. App. LEXIS 171 (Ark. Ct. App. 2005).

Opinion

126 P.3d 159 (2005)
212 Ariz. 12

The STATE of Arizona, Appellee,
v.
Robert Michael HOLLENBACK, Appellant.

No. 2 CA-CR 2004-0139.

Court of Appeals of Arizona, Division 2, Department B.

December 29, 2005.

*160 Terry Goddard, Arizona Attorney General, By Randall M. Howe and Joseph L. Parkhurst, Tucson, for Appellee.

Isabel G. Garcia, Pima County Legal Defender, By Joy Athena, Tucson, for Appellant.

OPINION

ESPINOSA, Presiding Judge.

¶ 1 Appellant Robert Hollenback was convicted after a jury trial of molestation of a child, sexual conduct with a minor, and luring a minor for sexual exploitation. All three offenses were dangerous crimes against children, and the jury found that each of the two victims was under the age of twelve. Hollenback had one predicate felony conviction and the court imposed a life sentence, followed by consecutive, presumptive prison terms totaling thirty-eight years. Hollenback contends the trial court erred in denying his motion for judgment of acquittal on the luring charge because A.R.S. § 13-3554 did not apply to his conduct. He also claims the court *161 erred by utilizing a jury interrogatory on the age of the victims and by sentencing him to the mandatory term of life imprisonment under A.R.S. § 13-604.01(A). Finding no merit to any of these arguments, we affirm the convictions and sentences.

Factual Background

¶ 2 We view the facts and any reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Henry, 205 Ariz. 229, 68 P.3d 455 (App.2003). In March 2003, Tucson police officers were called to a trailer park to investigate allegations of child molestation. Several children were subsequently interviewed, and two of them, J. and Z., stated that Hollenback had touched them in sexual ways; Z. also admitted having witnessed Hollenback touching J. Hollenback was arrested and charged with molestation of a child, sexual conduct with a minor under the age of fifteen, and luring a minor for sexual exploitation. He was convicted of all the charges and sentenced as noted above. This appeal followed.

A.R.S. § 13-3554

¶ 3 Hollenback contends the trial court erroneously denied his motion for judgment of acquittal on the luring charge, pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S., arguing § 13-3554 only applies to the production of pornographic material. The state responds that the text of the statute is clear and it specifically proscribes Hollenback's conduct. We review the denial of a Rule 20 motion for an abuse of discretion. State v. Carlos, 199 Ariz. 273, 17 P.3d 118 (App.2001). But we review de novo the interpretation of a statute. See State v. Fell, 203 Ariz. 186, 52 P.3d 218 (App.2002).

¶ 4 Section 13-3554(A) provides: "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." Hollenback argues that "the offense requires some sort of intent to photograph or otherwise record a minor's image," citing the legislative findings relating to the harmful effects of child pornography and the exploitation of children, promulgated when Chapter 35.1, A.R.S., was enacted. Hollenback also points out that both the statute and its title contain the term "sexual exploitation"; thus, he maintains, to violate the statute requires an intent to commit sexual exploitation as set forth in A.R.S. § 13-3553, which defines that offense in terms of producing and distributing child pornography.[1]

¶ 5 When we construe a statute, we first consider its plain language. See Fell. Only when that language is not clear will we look to other sources, "such as the statute's context, history, subject matter, effects and consequences, spirit, and purpose." Id. ¶ 6. Section 13-3554 expressly prohibits requesting sexual conduct with a minor. Although the offense is titled "luring a minor for sexual exploitation," and the statutory text delineates the crime in those terms, the statute does not incorporate or refer to the provisions of § 13-3553; nor does it require that the offering or soliciting occur for the purpose of violating those provisions. The state argues that the use of the term "sexual exploitation" is not a sufficient reason to find the statute ambiguous when the prohibited conduct is plainly and clearly described. We agree. See State v. Sepahi, 206 Ariz. 321, ¶ 16, 78 P.3d 732, 735 (2003) ("[A] statute's language is the most reliable index of its meaning"). Moreover, as the state points out, "[t]he criminal act occurs whether or not it leads to sexual exploitation as defined in § 13-3553." Had the legislature intended to restrict the offense to conduct violating § 13-3553, it could easily have included language to that effect. See Sepahi; see also State v. Brown, 204 Ariz. 405, ¶ 28, 64 P.3d 847, 854 (App.2003) (Howard, J., concurring)("Had *162 the legislature desired the facilitation portion of § 13-1805(I) to include a mens rea of intentionally, it most likely would have utilized precise language defined by statute."). We also note the heading of a statute is not part of the law and may only aid in clarifying ambiguity if such exists. See State v. Hauser, 209 Ariz. 539, 105 P.3d 1158 (2005); State v. Barnett, 142 Ariz. 592, 691 P.2d 683 (1984); see also A.R.S. § 1-212 (headings not part of the law, but merely for reference purposes). Finding no ambiguity in the text of § 13-3554, we see no reason to limit it in the way Hollenback suggests when the legislature did not. Sepahi; Brown.

¶ 6 Hollenback argues, however, that solicitation for sexual conduct is already prohibited by A.R.S. §§ 13-1002 and 13-1405(A), and therefore § 13-3554 cannot also have been intended to prohibit such conduct. Section 13-1002 is the general solicitation statute applicable to any Arizona crime,[2] and § 13-1405(A) prohibits defined sexual conduct with a minor. But § 13-3554 is a more specific statute that expressly prohibits "offering or soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor," and provides for sentencing under A.R.S. § 13-604.01, the dangerous crimes against children statute, when the victim is under the age of fifteen. See Calik v. Kongable, 195 Ariz.

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Bluebook (online)
126 P.3d 159, 212 Ariz. 12, 468 Ariz. Adv. Rep. 3, 2005 Ariz. App. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hollenback-arizctapp-2005.