State v. Jerald

548 P.3d 1110

The STATE of Arizona, Appellee,

v.Evan McCarrick JERALD, Appellant.

No. 2 CA-CR 2021-0105

Court of Appeals of Arizona, Division 2.

Filed April 15, 2024

Appeal from the Superior Court in Pima County, No. CR20180255001, The Honorable Howard Fell, Judge Pro Tempore. AFFIRMED

Kristin K. Mayes, Arizona Attorney General, Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, By Casey D. Ball, Assistant Attorney General, Phoenix, Counsel for Appellee

Law Offices of Thomas Jacobs, Tucson, By Thomas Jacobs, Counsel for Appellant

Judge Sklar authored the opinion of the Court, in which Vice Chief Judge Staring and Judge O’Neil concurred.

OPINION

SKLAR, Judge:

¶1 As interpreted by the United States Supreme Court, the Eighth Amendment’s prohibition on cruel and unusual punishment applies to sentences that are "grossly disproportionate" to the crimes. This case requires us to apply that standard to sexual offenses that Evan Jerald committed against two young children when he was fifteen and sixteen years old. He was not charged until after he turned eighteen, so he was tried and convicted in adult criminal court. He was then sentenced under the dangerous-crimes-against-children (DCAC) statute to cumulative prison terms totaling more than 200 years for eight convictions.

¶2 We conclude that Jerald’s individual sentences are not grossly disproportionate to his crimes. In doing so, we first reject Jerald’s argument that he was improperly sentenced under the DCAC statute because he committed the crimes as a juvenile. He was properly sentenced under provisions of that statute applicable to defendants who were "tried as an adult." We also conclude that under State v. Berger, 212 Ariz. 473, 134 P.3d 378 (2006), we may not consider whether the cumulative sentences are grossly disproportionate. We must instead consider each of the eight DCAC sentences individually. And although the individual sentences are long, they do not meet the gross-disproportionality standard given the severity of the offenses.

¶3 As more fully explained below, we also reject Jerald’s other statutory and constitutional arguments—including equal-protection and due-process claims of first impression— as well as his claims of trial error. We therefore affirm the convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

[1] ¶4 We view the facts in the light most favorable to sustaining the jury’s verdicts and resolve all reasonable inferences against Jerald. See State v. Fierro, 254 Ariz. 35, ¶ 2, 517 P.3d 635 (2022). Several times between New Year’s Eve 2014 and November 2015, R.S. asked Jerald to babysit her children, E.S. and G.S. E.S. was eight and nine years old and G.S., who is autistic, was six and seven years old. During this period, Jerald began forcing E.S. to have vaginal and oral sex with him. Jerald also attempted to have anal sex with E.S. on one occasion and forced G.S. to have oral sex with him. Jerald was between 15 and 16 years old at the time.

¶5 In November 2015, R.S. discovered that E.S. was talking to Jerald at night without her permission using Skype. Jerald was also communicating with E.S. using Wickr, a secure texting application. R.S. cut off all contact with Jerald and called the police. E.S. was interviewed at the Children’s Advocacy Center, but she did not make any allegations against Jerald, and the investigation was closed.

¶6 In 2017, E.S. was taken to the Children’s Advocacy Center for a second interview, where she disclosed Jerald’s conduct. G.S. was also interviewed and disclosed that Jerald had engaged in oral sex with him.

¶7 Jerald was indicted in January 2018, ten months after his eighteenth birthday, on eight counts of sexual conduct with a minor under fifteen and two counts of molestation of a child. The jury was unable to reach a unanimous verdict on any count, which resulted in a mistrial. After a second trial in September 2021, Jerald was found guilty of four counts of sexual conduct with a minor and four lesser-included counts of molestation of a child. He was found not guilty on two counts of molestation of a child. He filed a motion for a new trial, which was denied.

¶8 Jerald was sentenced under A.R.S. § 13-705, the DCAC statute. For each of the four sexual-conduct-with-a-minor convictions, Jerald received a life sentence with no possibility of release for thirty-five years. Those sentences run consecutively. He was also sentenced to four consecutive seventeen-year prison terms for the molestation-of-a-child convictions. Those sentences also run consecutive to the life sentences, meaning that the minimum possible prison term is 208 years. Jerald appeals his convictions and sentences.

APPLICABILITY OF A.R.S. § 13-705

[2] ¶9 Before evaluating the constitutionality of Jerald’s sentences, we must first determine whether the trial court properly sentenced him under the DCAC statute. That statute requires enhanced sentences for certain crimes committed against children, including sexual conduct with a minor and child molestation. See A.R.S. § 13-705(A), (B), (D). We review the interpretation and application of a sentencing statute de novo. State v. Lambright, 243 Ariz. 244, ¶ 9, 404 P.3d 646 (App. 2017).

I. Background on A.R.S. § 13-705

¶10 Under the version of Section 13-705 applicable when the offenses occurred, subsections (A) and (B) govern sentencing for sexual conduct with a minor under twelve years old. 2014 Ariz. Sess. Laws, ch. 224, § 2. Subsection (D) governs sentencing for child molestation. Id. Those subsections have since been re-numbered, but their substance has not changed. We cite the subsections as they were numbered when Jerald committed the offenses, which are the versions applicable here.

¶11 Subsection (A) applies only to "a person who is at least eighteen years of age." It requires that the defendant "be sentenced to life imprisonment" with no possibility of release for thirty-five years. Subsection (B), which applies to a broader set of crimes than subsection (A), applies to "a person who is at least eighteen years of age or who has been tried as an adult." (emphasis added). Subsection (B) provides for a minimum prison erm of thirteen years, a presumptive term of twenty years, and a maximum term of twenty-seven years. Subsection (B) also states that a defendant "may be sentenced to life imprisonment" with no possibility of release for thirty-five years. At sentencing, the trial court did not say whether it was imposing the life sentences under subsection (A) or (B).

¶12 Subsection (D) imposes a presumptive 17-year sentence for child molestation when the defendant was "eighteen years of age" or "tried as an adult." It also provides for a minimum sentence of ten years and a maxi- mum sentence of twenty-four years. Jerald’s 17-year sentences were imposed as presumptive sentences under subsection (D).

II. Whether A.R.S. § 13-705 applies to Jerald’s offenses

¶13 Jerald argues that Section 13-705 does not apply. He argues that for purposes of the statute, he was neither "eighteen years of age" nor "tried as an adult." He therefore argues that the proper sentencing scheme was that applicable to first-time felony offenders, as set forth in A.R.S. § 13-702. Under that statute, the presumptive sentence for each offense was five years. A.R.S. § 13-702(D).

[3] ¶14 In his opening brief, Jerald argues that he was not "at least eighteen years of age." The state agrees, though Jerald’s reply brief argues a different position. Regardless, we agree with Jerald’s initial position and the state that "at least eighteen years of age" refers to the defendant’s age when the crime was committed. See State v. Cromwell, 211 Ariz. 181, ¶ 49, 119 P.3d 448 (2005) (concluding that defendant’s sentence was properly enhanced "on express findings by the jury that the victim was a child under twelve years of age and that [the defendant] was at least eighteen years of age at the time of the crime." (emphasis added)). Here, Jerald committed the crimes when he was fifteen and sixteen years old. It follows that he was not subject to a mandatory life sentence under subsection (A).

[4] ¶15 We focus, therefore, on whether Jerald was "tried as an adult" under subsection (B). He asks us to construe "tried as an adult" as applying only to juveniles whose cases are filed in adult criminal court under A.R.S. § 13-501. That statute addresses the extent to which the state may prosecute "a juvenile in the same manner as an adult." § 13-501(A), (B). For certain crimes, including those at issue here, juveniles charged in adult criminal court may petition for transfer to the juvenile court. §§ 13-501(B) (listing crimes subject to possible transfer), 13-504(A) (providing for right to transfer hearing). However, Section 13-501 does not address prosecution of defendants who are eighteen years or older and are being charged for crimes committed before they turned eighteen. Those defendants cannot be charged in juvenile court and are required to be tried in adult criminal court. See § 13-501(G) (juvenile court lacks jurisdiction over defendants eighteen years of age or older). The state proposes, by contrast, that "tried as an adult" applies to all defendants accused of committing crimes while juveniles and who face prosecution in adult criminal court, regardless of whether Section 13-501 applies.

[5] ¶16 In construing statutes, we must "determine the meaning of the words the legislature chose to use," consistent with "the plain meaning of the words in their broader statutory context." S. Az. Home Builders Ass’n v. Town of Marana, 254 Ariz. 281, ¶ 31, 522 P.3d 671 (2023). Applying this approach, we conclude that the state’s proposed construction better conforms to the statutory language. By focusing on how the defendant was "tried," the statutory language looks to the nature and timing of the proceedings. Where the proceedings were those applicable to "adult[s]," the defendant was "tried as an adult," despite having...