State v. Moninger

552 P.3d 519

STATE of Arizona, Appellee,

v.Kevin Harry MONINGER, Appellant.

No. CR-21-0239-PR

Supreme Court of Arizona.

Filed July 24, 2024

Appeal from the Superior Court in Mohave County, The Honorable Derek C. Carlisle, Judge, No. S8015CR201801598. REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One, 261 Ariz. 487 (App. 2021). VACATED

Kristin K. Mayes, Arizona Attorney General, Joshua Bendor, Solicitor General, Casey D. Ball (argued), Assistant Attorney General, Criminal Appeals Section, Phoenix, Attorneys for State of Arizona

Jill L. Evans (argued), Jill L. Evans, Attorney at Law, Flagstaff, Attorney for Kevin Harry Moninger

Megan Page, Pima County Public Defender, David J. Euchner (argued), Pima County Public Defender’s Office, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES BRUTINEL, BOLICK, MONTGOMERY, and KING joined.

JUSTICE BEENE, Opinion of the Court:

¶1 The state may not punish a person multiple times for one criminal offense. State v. Jurden, 239 Ariz. 526, 529 ¶ 10, 373 P.3d 543, 546 (2016). And whether an act or course of conduct is a single offense depends on a statute’s "allowable unit of prosecution." Id. ¶ 11. If the relevant unit of prosecution is a discrete act, a series of distinct acts can beget several offenses—and several punishments. See id Alternatively, if the relevant unit of prosecution is a course of conduct, a series of acts may only expose a defendant to multiple punishments if the acts, considered together, constitute multiple courses of conduct. Id But for some crimes, it is not immediately apparent when an act becomes a course of conduct, or when one course of conduct ends and another begins. The crime of luring a minor for sexual exploitation, A.R.S. § 13-3554, can be such a crime.

¶2 In this case we endeavor to clarify § 13-3554’s allowable unit of prosecution and the factual basis necessary to support multiple luring charges. For the following reasons, we hold that luring is based on a course of conduct defined by offers or solicitations: (1) of separate and distinct sexual conduct, or (2) to separate and distinct victims. We further hold that a series of actions only offering or soliciting one type of sexual conduct from one victim may nevertheless support multiple convictions if the actions are divisible into multiple, factually distinguishable courses of conduct. This determination depends on each case’s unique facts. Factors that divide a series of actions into multiple courses of conduct under § 13-3554 include, but are not limited to, the lapse of time, contemplation of separate geographical locations, and intervening events or occurrences.

BACKGROUND

¶3 In 2018, Kevin Moninger, a Nevada resident in his early sixties, posted two classified ads on a website intended to facilitate sexual encounters. On September 27, he received an email response from "Sabrina." She introduced herself as a thirteen-year-old girl who lived with her mother in Kingman, Arizona. Unbeknownst to Moninger, however, Sabrina did not exist. She was merely a fictional character being played by an undercover officer as part of a sting operation.

¶4 After exchanging emails for a few days, Sabrina and Moninger began texting. They made small talk, shared photographs, and discussed being boyfriend and girlfriend. But Moninger’s messages quickly became more explicit. On the morning of October 3, he told Sabrina that he would like to meet her in person and asked if he could "kiss [her] everywhere." He told Sabrina that, if they met, he would let her decide whether they were going to "cuddle," "kiss," or "make love." Moninger also discussed masturbation several times and made comments that could be understood as alluding to oral sex.

¶5 Sabrina promptly agreed to meet in person. Moninger suggested they meet the upcoming Friday, October 5. From October 3—the day Moninger first proposed an in- person meeting—to October 5, Moninger and Sabrina exchanged nearly 1,000 text messages, mostly chatting about their "relationship," and planning their upcoming rendezvous.

¶6 On the afternoon of October 5, Moninger drove to Kingman, planning to meet Sabrina. Instead, after arriving at the meeting place, he was arrested. The State charged Moninger with three counts of luring a minor under the age of fifteen for sexual exploitation and one count of attempted sexual conduct with a minor. Each luring count was supported by one day’s worth of texts, starting on October 3, and each count accused Moninger of "soliciting sexual intercourse" with Sabrina. Moninger did not challenge the State’s charging decisions or raise any other double jeopardy issues at trial.

¶7 A jury found Moninger guilty as charged. The superior court sentenced him to four consecutive prison terms, for a total of thirty-one years. Moninger appealed, and a divided court of appeals vacated two of his three luring convictions. State v. Moninger, 251 Ariz. 487, 489 ¶ 1, 494 P.3d 74, 76 (App. 2021). According to the court’s majority, Moninger’s conduct only violated § 13-3554 once, and three convictions for one violation put him in double jeopardy. Id. at 491 ¶ 7, 494 P.3d at 78. When determining how many times Moninger had violated § 13-3554, the majority concluded that (1) the statute’s proscribed behavior involved a course of conduct, id. at 492 ¶ 14, 494 P.3d at 79; and (2) when this course of conduct targets only one victim, its scope could be determined using the following factors:

the form of sexual behavior suggested; whether the defendant employed different strategies in communicating with the victim; the victim’s responses to the defendant’s proposals; the amount of time separating the defendant’s proposals; any intervening events between the requests; and any other facts showing a new or otherwise distinct motivation or criminal impulse.

Id. at 498 ¶ 38, 494 P.3d at 85. Applying these factors, the majority held that Moninger had not "engaged in separate, distinct courses of conduct." Id. at 499 ¶ 45, 494 P.3d at 86. The court consequently vacated two of his luring convictions and remanded the third for resentencing. Id. The majority further held that, on remand, the superior court should consider Moninger’s remaining luring conviction to be probation eligible. Id. at 502–03 ¶¶ 59–60, 494 P.3d at 89–90.

¶8 The dissenting judge disagreed. See id. at 503 ¶ 63, 494 P.3d at 90 (Morse, J., concurring in part and dissenting in part). He explained that "every request of a minor to engage in sexual conduct is a separate harm," and he therefore believed that Moninger could be punished for each individual request. See id. at 505 ¶ 68, 494 P.3d at 92. He further stated that—even under the majority’s course-of-conduct approach—Moninger had engaged in multiple, distinct courses of conduct. Id. at 507 ¶ 78, 494 P.3d at 94. And finally, the dissenting judge concluded that Moninger’s § 13-3554 convictions were unambiguously not probation eligible. Id. at 510 ¶ 101, 494 P.3d at 97. Accordingly, he would have affirmed the superior court’s disposition in all respects. Id. ¶ 103.

¶9 The State petitioned for review, which we granted because § 13-3554’s allowable unit of prosecution is a recurring issue of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

[1, 2] ¶10 We review issues of statutory interpretation, including a statute’s allowable unit of prosecution, de novo. See Jurden, 239 Ariz. at 528 ¶ 7, 373 P.3d at 545. We review unobjected-to violations of a statute’s allowable unit of prosecution for fundamental error. See id.

I.

¶11 We begin by clarifying Arizona’s allowable-unit-of-prosecution analysis. This analysis logically divides into two segments: the first is a pure legal question, the second a mixed question of fact and law. After clarifying our allowable-unit-of-prosecution analysis, we turn to Moninger’s convictions, assessing them for double jeopardy violations.

A.

[3–6] ¶12 The United States and Arizona Constitutions’ Double Jeopardy Clauses prohibit multiple punishments for a single criminal offense. Romero-Millan v. Barr, 253 Ariz. 24, 29 ¶ 20, 507 P.3d 999, 1004 (2022). This constitutional protection arises in two contexts. Jurden, 239 Ariz. at 529 ¶ 10, 373 P.3d at 546. Relevant here, if charged multiple times under the same statute, a person may only be convicted a single time for a single offense. Id. ¶ 11. The touchstone for whether conduct comprises a single offense is whether a series of actions violates a criminal statute in sufficiently "separate and distinct" ways. See, e.g., Blockburger v. United States, 284 U.S. 299, 301, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Via, 146 Ariz. 108, 116, 704 P.2d 238, 246 (1985); Commonwealth v. Rabb, 431 Mass. 123, 725 N.E.2d 1036, 1042–43 (2000). Whether conduct is divisible into separate and distinct violations is informed by the scope of the, relevant statute’s allowable unit of prosecution. See Jurden, 239 Ariz. at 529 ¶ 11, 373 P.3d at 546.

[7, 8] ¶13 The legislature defines the scope of the allowable unit of prosecution. See United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952). The legislature sometimes leaves no doubt about what constitutes the unit of prosecution. See, e.g., A.R.S. § 13-1417(D) ("A defendant may be charged with only one count under this section unless more than one victim is involved," (emphasis added)). More often, however, courts must determine the unit of prosecution based on a statute’s syntax and grammar. See, e.g., State v. Soza, 249 Ariz. 13, 15 ¶¶ 8–11, 464 P.3d 696, 698 (App. 2020) (analyzing a statute’s syntax); Jurden, 239 Ariz. at 530 ¶¶ 15–16, 373 P.3d at 547 (same), In those cases, we begin by reading the statute’s text in context; if unambiguous, we apply the text as written. See Jurden, 239...