State v. Burgess

428 P.3d 192

STATE of Arizona, Appellee/Cross-Appellant,

v.Buren Jarrett BURGESS, Appellant/Cross-Appellee.

No. 1 CA-CR 16-0857

No. 1 CA-CR 16-0923 (Consolidated)

Court of Appeals of Arizona, Division 1.

FILED August 7, 2018

Arizona Attorney General’s Office, Phoenix, By Michael O'Toole, Counsel for Appellee/Cross-Appellant

Law Offices of Neal W. Bassett, Phoenix, By Neal W. Bassett, Counsel for Appellant/Cross-Appellee

Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

HOWE, Judge:

¶1 Buren Jarrett Burgess appeals his convictions and sentences for two counts of child prostitution. Among other issues, we address in this opinion whether A.R.S. § 13–3212(C), which provides that "[i]t is not a defense to a prosecution [for child prostitution] that the other person is a peace officer posing as a minor ..." is unconstitutional because it lacks a rational basis in a prosecution for in-person solicitation of a child prostitute. We also address whether A.R.S. § 13–703(L) ’s mandate that a defendant’s prior felony convictions for offenses "committed on the same occasion" be counted as only one conviction applies to a defendant subject to sentencing under A.R.S. § 13–3212.

¶2 We hold that A.R.S. § 13–3212(C) is constitutional and that it applies to all types of solicitation. We also hold that A.R.S. § 13–703(L) ’s mandate does not apply when a defendant is sentenced under A.R.S. § 13–3212 because § 13–3212 does not include any limitation on how prior felony convictions are counted. We therefore affirm Burgess’s convictions and affirm his sentences as modified.

FACTS AND PROCEDURAL HISTORY

¶3 We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences against Burgess. See State v. Causbie , 241 Ariz. 173, 175 ¶ 2, 384 P.3d 1253, 1255 (App. 2016). In November 2014, Burgess called and texted telephone numbers posted in online advertisements offering the services of two female escorts. The advertisements listed the escorts' ages as 18 and contained explicit sexual content. "Brittany" and "Jennifer" responded to Burgess’s calls and texts and asked Burgess if he wanted the services of two girls; he answered that he did. Unbeknownst to Burgess, the two were undercover police officers posing as child prostitutes.

¶4 "Brittany" and "Jennifer" informed Burgess that they were 16 years old and that spending one-half hour with both would cost $160. Burgess confirmed with the "girls" that they were not police officers, but he hesitated and stated that he wanted an 18-year-old escort. Burgess ultimately agreed to meet the two "girls" at their hotel room to "hang out." Jennifer told Burgess that she would reduce the price if he brought cigarettes because "we're pretty young and obviously we can't buy cigarettes[.]" Burgess did so.

¶5 After Burgess arrived at the hotel room, the "girls" asked what he "wanted," and Burgess replied that he would like them to "do stuff to him." He paid Jennifer $150, handed her the cigarettes, and agreed to wear a condom once they "began having sex." As Burgess undressed, the "girls" went into the bathroom to change clothes. Police officers then stormed into the room and took Burgess into custody.

¶6 The State charged Burgess with two counts of child prostitution under A.R.S. § 13–3212(B)(2), class 2 felonies, alleging that he knowingly engaged in prostitution with the women, believing they were between 15 and 17 years old. Before trial, Burgess moved for a jury instruction on prostitution as a lesser-included offense of child prostitution. The prosecutor agreed that an instruction on "misdemeanor prostitution" was appropriate. After the court indicated that the instruction would be given, defense counsel requested guidance on how the parties should refer to the lesser-included offense because the prosecutor had referred to it as "misdemeanor prostitution." The court clarified that the classification should not be referred to and the prosecutor acknowledged that he "should not have referred to [the lesser-included offense] that way."

¶7 During Burgess’s cross-examination of the undercover officer who posed as Brittany, counsel asked if she agreed that child prostitution was a more serious situation than adult prostitution, and she agreed. The officer also agreed that an act of prostitution occurred and that the only issue was whether the prostitution was child or adult prostitution. Counsel then asked, "do you understand that adult prostitution is a lesser-included offense of child prostitution[,]" and the officer responded that "[adult] [p]rostitution is a misdemeanor, and child prostitution is a felony." Counsel followed up by stating that prostitution with an adult "is just a misdemeanor" but "[i]s a felony" if done with a child; the undercover officer agreed.

¶8 After the close of evidence, the court instructed the jury that "[i]n deciding whether the defendant is guilty or not guilty, do not consider the possible punishment" and provided a lesser-included offense instruction. The jury found Burgess guilty as charged. During sentencing, the State argued that Burgess had two historical prior felony convictions from 1997 and therefore should be sentenced under A.R.S. § 13–3212(I)(3). The State contended that although the 1997 offenses occurred on the same date and involved the same victim, A.R.S. § 13–3212 did not contain "any language indicating that prior convictions for two or more offenses committed on the same occasion shall be counted as only one conviction." The court disagreed and determined that Burgess’s two prior felonies amounted to only one historical prior felony under A.R.S. § 13–703(L), the repetitive offender sentencing statute. After finding that Burgess was on probation when he committed the current offenses, the court imposed consecutive presumptive sentences of 15.75 years' imprisonment. Burgess timely appealed and the State timely cross-appealed.

DISCUSSION

1. Sufficiency of Evidence

¶9 Burgess argues that insufficient evidence supports his convictions because he "never agreed to engage in sexual activity until he saw the decoy prostitutes, who were 27 years old and looked it." He contends that although he was guilty of adult prostitution, he was not guilty of child prostitution. We review claims of insufficient evidence de novo. State v. West , 226 Ariz. 559, 562 ¶ 15, 250 P.3d 1188 (2011). The "relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at ¶ 16 (internal quotation marks omitted). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong , 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott , 113 Ariz. 423, 424–25, 555 P.2d 1117, 1118–19 (1976) ).

¶10 A person 18 years old or older commits child prostitution by knowingly "[e]ngaging in prostitution with a minor who the person knows or should have known is fifteen, sixteen or seventeen years of age." A.R.S. § 13–3212(B)(2).¹ " ‘Prostitution’ means engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement with any person for money or any other valuable consideration." A.R.S. § 13–3211(5). "It is not a defense to a prosecution" under subsection (B)(2) "that the other person is a peace officer posing as a minor or a person assisting a peace officer posing as a minor." A.R.S. § 13–3212(C).

¶11 Sufficient evidence supports Burgess’s child prostitution convictions. Burgess responded to advertisements suggesting sexual experiences with girls who were "youngsters" and who subsequently informed him that they were 16 years old. And by agreeing to purchase cigarettes for the "girls," Burgess demonstrably acted on his belief that they were under 18 years old and unable to purchase the cigarettes themselves. Further, although Burgess did not expressly discuss sexual activity with the "girls" on the telephone, the language contained within the advertisements, along with his agreement to pay them $160 for 30 minutes of their time, reasonably implies that his desire to "hang out" with the "girls" included engaging in sexual conduct. Burgess’s asking if the "girls" were police officers bolsters this inference; such a question would be unnecessary if he truly intended his encounter with the putative underage "girls" to be nothing more than an innocent get-together. Accordingly, the jury could reasonably conclude that Burgess committed child prostitution by offering to engage in sexual conduct under a fee arrangement with "girls" that he believed were 16 years old. Because Burgess completed the offense when he agreed to pay for their services, he committed the offenses before he saw the "girls." Thus, whether they appeared to be over 18 years old when he saw them in person does not affect the sufficiency of the evidence supporting his convictions.

2. A.R.S. § 13–3212(C)

¶12 Burgess next argues that A.R.S. § 13–3212(C) is unconstitutional because it lacks a rational basis in a prosecution for in-person solicitation of a child prostitute because the "defendant can see for himself that the prostitute is an adult." We review the constitutionality of a statute de novo. State v. Maestas , 244 Ariz. 9, 12 ¶ 6, 417 P.3d 774, 777 (2018). "When the statute in question involves no fundamental constitutional rights or distinctions based on suspect classifications, we presume the statute is constitutional and will uphold it unless it clearly is not." Id. Burgess bears the burden of overcoming the statute’s presumed constitutionality by a "clear showing of arbitrariness or irrationality." State v. Hammonds , 192 Ariz. 528, 532 ¶ 9, 968 P.2d 601, 605 (App. 1998). Burgess cannot satisfy his burden.

¶13 Burgess challenges ...