State v. Farnsworth

487 OPINION MILLER, Judge: ¶ 1 After a jury trial, Clayton Farnsworth was convicted of luring a minor for sexual exploitation based on electronic communications with a detective posing as a thirteen-year-old girl, and second-degree attempted sexual conduct when he made arrangements to meet with the “girl” at a park to engage in oral sex. He was also convicted of twenty-two counts of sexual exploitation of a minor under fifteen relating to child pornography found on his computer. He was sentenced to consecutive seventeen-year terms for the exploitation offenses, to be served consecutively to concurrent terms on the other two offenses, totaling 384 years’ imprisonment. ¶ 2 On appeal, Farnsworth argues the state improperly shifted the burden of proof by arguing in closing that he could have subpoenaed additional witnesses to support his factual contentions about possible third-party access to his computer. He also argues he should not have been sentenced under the dangerous crimes against children (DCAC) sentencing statute, A.R.S. § 13-705, for the attempted sexual conduct charge. For the following reasons, we affirm. Factual and Procedural Background ¶ 3 We view the evidence in the light most favorable to upholding Farnsworth’s convictions. See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). On February 5, 2015, a Tucson Police detective specializing in internet crimes against children was browsing a public bulletin board on the “Whisper” smart phone application when he noticed a posted image with the words, “Why can[’t] underaged girls be legal? They are so hot and sexy.” Posing as a thirteen-year-old girl named “Becky,” the detective sent a private message to the person who posted the image—ultimately identified as Farns-worth—saying, “Hi there! Might not be legal but we can talk!” Farnsworth responded, “[Wlhat’s [yo]ur age[?]” to which the detective answered, “13.” Farnsworth identified himself as fifty-eight years old, and asked, “[H]ave you been with an older man[?]” ¶ 4 The detective and Farnsworth exchanged phone numbers and continued to send text messages over several days. Farns-worth repeatedly sent sexual messages and asked if they could meet. He also noted that he was working at the Tucson Gem & Mineral Show and sent a photograph of himself. Farnsworth and the detective agreed to meet at a park on February 11, and the detective asked if Farnsworth could pick up a Mountain Dew Code Red on his way. At the park, Farnsworth was stopped and arrested by police officers. In his car, they found his smart phone, a Mountain Dew Code Red, and a Tucson Gem & Mineral Show badge. The phone contained text messages and pictures that matched those exchanged with the detective. ¶ 5 The detective obtained a search warrant for Farnsworth’s house. When officers arrived, another person in the home told police that he and his wife—Farnsworth’s relative—had been staying there “at least a couple weeks.” In Farnsworth’s room, officers found a backpack containing a laptop computer and thumb drives, as well as more thumb drives in a desk drawer. They also found a tablet computer with the Whisper application installed. A second laptop was found in the house. ¶ 6 One thumb drive contained several images of child sexual abuse. It also contained several deleted files that had not yet been overwritten, including Farnsworth’s driver’s license and several employment application forms. The laptop in the backpack had one user account for Farnsworth, and contained his resume. The internet search history included keywords associated with child pornography. A folder on the laptop contained several additional images of child pornography. The laptop contained data establishing that it had previously been connected to the thumb drive with the sexual abuse images. No documents or user accounts on the laptop were associated with anyone other than Farnsworth. ¶ 7 The second laptop had a user account and documents associated with a “Glenn Dur-bin.” It did not contain any saved images of sexual abuse, but it did contain data indicat 488 ing the images from the thumb drive had been on the computer at some point. ¶ 8 A grand jury indicted Farnsworth on the luring offense for the communications of February 5-11, the attempted sexual conduct with a minor for the events of February 11, and the sexual exploitation counts for the pornography found later that day. He was convicted and sentenced as described above. Discussion Closing Arguments About Witness Subpoenas ¶ 9 Farnsworth argued in closing that no one had ever investigated Glenn Durbin, and someone else could have been using the computers and thumb drives. The state rebutted that argument, stating: [T]he law is very, very clear. The State has the burden to prove their case to you beyond a reasonable doubt. That burden never ever shifts. However, just like the State, the defense also has the Court’s subpoena power, and if there is any witness that the defense thinks has relevant evidence to bring to this jury, the defense, just like the State, has the ability to subpoena those people ... and bring them here before you. Farnsworth did not object below, but now contends the state’s argument improperly shifted the burden of proof, resulting in structural error; alternatively, he argues it was fundamental error. ¶ 10 Structural error affects “[t]he entire conduct of the trial from beginning to end,” Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), and has only been found to exist in limited instances, none of which apply here, State v. Ring, 204 Ariz. 534, ¶ 46, 65 P.3d 915, 933-34 (2003). Moreover, the cases on which Farnsworth relies are inapposite. See Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (incorrect reasonable doubt jury instruction structural error); Fulminante, 499 U.S. at 310, 111 S.Ct. 1246 (involuntary confessions analyzed under harmless error standard); State v. Le Noble, 216 Ariz. 180, ¶ 19, 164 P.3d 686, 690-91 (App. 2007) (deprivation of right to jury trial structural error), There was no structural error. ¶ 11 Fundamental error requires, inter alia, Farnsworth to show that the state’s closing argument constituted error prejudicial to him. State v. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d 601, 607 (2006). The state may comment on the defendant’s failure to present exculpatory evidence, so long as it is not a comment on the defendant’s failure to testify. State v. Lehr, 201 Ariz. 509, ¶¶ 55-57, 38 P.3d 1172, 1185 (2002); State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160, 735 P.2d 767, 770 (1987); see also State v. Sarullo, 219 Ariz. 431, ¶ 24, 199 P.3d 686, 692-93 (App. 2008) (prosecutor’s comments on failure to present evidence do not shift burden of proof to defendant absent comment on defendant’s silence). He argues, however, that such references are limited to circumstances in which it is clear the defendant had access to the evidence, citing State v. Corona, 188 Ariz. 85, 89-90, 932 P.2d 1356, 1360-61 (App. 1997). ¶ 12 Corona does not support this contention. In that case, the state erred by commenting on the defendant’s failure to call an expert witness when there was no evidence the defendant had ever consulted an expert and no expert had been mentioned to the jury, because the “general rule [is] that closing arguments must be based on facts that the jury is entitled to find from the evidence and not on extraneous matters not received in evidence.” Id. at 89, 932 P.2d at 1360. In contrast, the existence of Glenn Durbin and the two other people in Farnsworth’s home had been introduced to the jury.1 See State v. 489 Edmisten, 220 Ariz. 517, ¶ 27 & n.4, 207 P.3d 770, 778-79 & n.4 (App. 2009) (no fundamental error when state suggested defendant’s failure to produce witness gave rise to inference witness’s testimony unfavorable). Moreover, the state emphasized that it had the burden of proof, and, as noted above, the instructions were correct. We presume the jurors followed the court’s instructions. See State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). The state’s comments in rebuttal did not constitute fundamental, prejudicial error. Dangerous Crimes Against Children Enhancement ¶ 13 Farnsworth argues that attempted sexual conduct with a minor is not a dangerous crime against children if the defendant’s conduct is limited to interactions with a police officer posing as a minor. Our interpretation of the DCAC sentencing statute is de novo. See State v. Sepahi, 206 Ariz. 321, ¶ 2, 78 P.3d 732, 732 (2003). ¶ 14 In State v. Carlisle, 198 Ariz. 203, 8 P.3d 391 (App. 2000), we considered the identical issue under the prior, but essentially identical, version of the DCAC statute. In Carlisle, the defendant was charged with attempted sexual conduct with a minor under age fifteen for meeting with a person he believed was a fourteen-year-old boy but who was actually an eighteen-year-old actor working with a television reporter. Id. ¶¶ 2-8. The trial court determined the DCAC sentencing statute did not apply, and the state cross-appealed. Id. ¶ 16. We reversed, noting that the DCAC statute explicitly considered preparatory offenses such as attempt, and provided a “second degree” classification for them. Id. ¶ 17. That there never was a child, we reasoned, did not matter because factual impossibility is not a defense to attempt. Id. ¶ 15 Farnsworth first argues Carlisle was abrogated by the reasoning of State v. Sepahi. In Sepahi, the defendant was convicted of aggravated assault for shooting a fourteen-year-old girl. 206 Ariz. 321, ¶¶ 3-4, 78 P.3d at 732-33. He was sentenced pursuant to the DCAC statute and our supreme court affirmed. Id. ¶¶ 5-6, 22. In doing so, it reaffirmed its holding in State v. Williams, 175 Ariz. 98, 103, 854 P.2d 131, 136 (1993), that conduct must be “focused on, directed against, aimed at, or targeted] a victim under the age of fifteen” before the DCAC statute applies. Sepahi, 206 Ariz. 321, ¶ 19, 78 P.3d at 735, quoting Williams, 175 Ariz. at 103, 854 P.2d at 136, The court then held that the DCAC statute applied because the defendant had targeted a victim under the age of fifteen. Id. ¶ 16 Farnsworth’s reliance on Sepahi overlooks that Carlisle specifically addressed and distinguished Williams. Carlisle, 198 Ariz. 203, ¶ 16, 8 P.3d at 395. Furthermore, the court held that the defendant had “targeted a victim he believed to be under the age of fifteen and then attempted a crime. This is precisely the type of conduct that the legislature addressed in [the DCAC statute].” Id. ¶ 18. Carlisle is still good law. ¶ 17 Farnsworth also relies on two cases regarding luring a minor for sexual exploitation issued one day apart by different divisions of this court: State v. Villegas, 227 Ariz. 344, 258 P.3d 162 (App. 2011), and State v. Regenold, 227 Ariz. 224, 255 P.3d 1028 (App. 2011). We agree that the facts in Villegas and Regenold are similar to those in this case: detectives posing as fourteen-year-old girls electronically communicated with defendants, who offered or solicited sexual acts. Villegas, 227 Ariz. 344, ¶ 1, 258 P.3d at 163; Regenold, 227 Ariz. 224, ¶ 2, 255 P.3d at 1029. Those defendants, unlike Farnsworth, were convicted only of luring rather than attempted sexual conduct with a minor. Villegas, 227 Ariz. 344, ¶ 1, 258 P.3d at 163; Regenold, 227 Ariz. 224, ¶ 1, 255 P.3d at 1029. Those decisions utilized a plain-language reading of the luring statute. Specifically, both courts focused on the sentencing provision in A.R.S. § 13-3554, which states, “[I]f the minor is under fifteen years of age [luring] is punishable pursuant to § 13-705,” to conclude that a minor must be an actual child rather than an adult posing as one. Villegas, 227 Ariz. 344, ¶ 3, 258 P.3d at 163; Regenold, 227 Ariz. 224, ¶ 4, 255 P.3d at 1029-30. They additionally found support for their reasoning in differing 490 authorities.2 ¶ 18 Only Villegas, however, addressed the arguably contrary holding in Carlisle. Villegas, 227 Ariz. 344, ¶ 4, 258 P.3d at 163-64. It distinguished Carlisle because it involved the preparatory offense of attempt, in which factual impossibility is not a defense. Villegas, 227 Ariz. 344, ¶ 4, 258 P.3d at 163-64; see also A.R.S. § 13-1001(B); State v. McElroy, 128 Ariz. 315, 317, 625 P.2d 904, 906 (1981) (factual impossibility not a defense to crime of attempt). In contrast, violation of the luring statute involves a completed offense and that statute provides that it is not a defense that the minor was actually an adult posing as a minor. Villegas, 227 Ariz. 344, ¶¶ 3-4, 258 P.3d at 163-64. In other words, Villegas explicitly and Regenold indirectly did not challenge the precedential effect of Carlisle.3 ¶ 19 Our supreme court recently questioned whether Regenold and Villegas “were correctly decided.” State ex rel. Polk v. Campbell, 239 Ariz. 405, ¶¶ 14-16, 372 P.3d 929, 932-33 (2016). Importantly, the court rejected the reasoning advanced by Farnsworth. Id. ¶ 16. It also adopted an application of § 13-705 directly contrary to the plain language analysis advanced in the dissent. See id. ¶ 20 In Polk, the defendant argued that he should not be subject to enhanced, consecutive sentences for child prostitution because the minor was a police officer posing as a sixteen-year-old. Id. ¶¶2, 12. He contended, inter alia, any interpretation of A.R.S. § 13-3212(G) that was not limited to actual minors would be absurd because sentence enhancement would occur if the officer posed as a fifteen- to seventeen-year-old youth, but was legally barred if the officer posed as a minor younger than fifteen. Polk, 239 Ariz. 405, ¶ 16, 372 P.3d at 933. For this latter conclusion, the defendant relied on the holdings and reasoning in Villegas and Regenold. Polk, 239 Ariz. 405, ¶ 16, 372 P.3d at 933. The court first distinguished those eases based on the differences in wording between the luring and child prostitution statutes. Id. ¶ 15. ¶ 21 But the court also addressed subsection (F) of the child prostitution statute that explicitly incorporates § 13-705 if the minor is under fifteen. The court observed that a conviction based on an officer posing as fourteen or younger “is punishable under the DCACA,” which would be harsher than circumstances where the officer posed as an older minor. Id. ¶ 16. This conclusion would not be possible if the court adopted an interpretation of § 13-705(P)(1) that limited punishment under DCAC to convictions only involving a minor, rather than a police officer posing as a minor.4 ¶ 22 Our dissenting colleague contends that Polk provides no precedential effect or even guidance because it involved the child prostitution statute. Although the arguments by the dissent and Farnsworth overlap, they are sufficiently different to require a separate explanation of why the dissent’s attempt to distinguish Polk is unpersuasive. First, to address the absurdity argument, the court was required to determine whether a § 13-3212(B)(1) offender would be punished more 491 severely under the DCAC, for the reason that subsection (F) specifies the offense “is punishable pursuant to § 13-706.” In that context, the court’s statement that the DCAC requires “harsher sentences than those in subsection (G)” is more than dicta—it is a substantive conclusion. Polk, 239 Ariz. 406, ¶ 16, 372 P.3d at 933; see also Phelps Dodge Corp. v. Ariz. Dep’t of Water Res., 211 Ariz. 146, n.9, 118 P.3d 1110, 1116 n.9 (App. 2006) (explaining difference between judicial and obiter dicta). Moreover, the court only considered facts involving an officer posing as a minor. Polk, 239 Ariz. 405, ¶ 16, 372 P.3d at 933. Thus, to the extent the dissent implicitly contends that DCAC can only apply with an actual minor, Polk rejects that interpretation. ¶ 23 Second, the child prostitution statute incorporates and is referenced in the DCAC in a manner identical to the sexual conduct with a minor statute in this ease. This is not a circumstance where the legislature chose to apply the DCAC more broadly under the child prostitution statute. Specifically, § 13-1405(B) provides that an offense with a victim under fifteen is “punishable pursuant to § 13-705”; and, § 13-3212(F) uses the identical language for child prostitution with victims under fifteen as “punishable pursuant to § 13-705.” Additionally, the DCAC cata-logues the applicable offenses committed against under-fifteen minors, and lists both sexual conduct with a minor as well as child prostitution. See § 13-705(P)(l)(e), (Z). Finally, there is no language in § 13-705(P), or its list of offenses, that indicates a section (e) offense requires an actual child, but a section (Z) offense is satisfied if an officer poses as a minor under fifteen. ¶ 24 We conclude, therefore, that because Villegas distinguished Carlisle rather than declared it void after Sepahi, Regenold did not address Carlisle, and our supreme court in Polk both questioned and limited the luring-DCAC cases, there is no reason to conclude Carlisle does not apply here.5 Thus, the trial court did not err in sentencing Farns-worth under the enhanced sentencing statute. Carlisle, 198 Ariz. 203, ¶¶ 17-18, 8 P.3d at 395-96. Disposition ¶ 25 For the foregoing reasons, we affirm Farnsworth’s convictions and sentences. Footnotes [1] Farnsworth also argues the witnesses would "most likely assert their Fifth Amendment right rather than confess to the jury" if guilty, citing State v. McDaniel for the proposition that it is impermissible to call such a witness. 136 Ariz. 188, 665 P.2d 70 (1983), abrogated on other grounds by State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In McDaniel, however, it was clear the witnesses would refuse to answer all questions because they had appeared before the trial judge at an in camera hearing. Id. at 194, 665 P.2d at 76. There was no such evidence here. [2] The Villegas court relied on the plain language of § 13-705(P), which defines DCAC crimes as those "committed against a minor who is under fifteen years of age.” Villegas, 227 Ariz. 344, ¶ 3, 258 P.3d at 163. It also cited Sepahi, 206 Ariz. 321, ¶ 19, 78 P.3d at 735, for the proposition that the defendant must have directed his or her conduct "at a person under the age of fifteen.” Villegas, 227 Ariz. 344, If 3, 258 P.3d at 163. The Regenold court cited State v. Hazlett, 205 Ariz. 523, ¶ 12, 73 P.3d 1258, 1263 (App. 2003), for its holding that the term "minor” in the sexual exploitation statute referred to an "actual child.” Regenold, 227 Ariz. 224, ¶ 5, 255 P.3d at 1030. [3] The Villegas court also implied that Carlisle may no longer be good law in light of Sepahi, but then proceeded under the assumption that it was. Villegas, 227 Ariz. 344, ¶ 4, 258 P.3d at 163-64. [4] The dissent includes a detailed and exhaustive analysis of legislative intent to address the state’s argument and to buttress its interpretation of § 13-705(P)(1) that excludes DCAC enhancement involving an officer posing as a minor. We do not address legislative intent because we are obligated to follow the statutory interpretation of our supreme court unless and until the legislature changes the applicable statutes. See State v. Fell, 209 Ariz. 77, ¶ 20, 97 P.3d 902, 908 (App. 2004) (supreme court statutory interpretation becomes part of statute); see also State v. Garza Rodriguez, 164 Ariz. 107, 110-11, 791 P.2d 633, 636-37 (1990) (legislative amendment is presumed to change existing law, including cases interpreting prior statute). Similarly, we decline to address the dissent’s conclusion that Carlisle erred in its reasoning and should not be followed. [5] Indeed, in dicta, our supreme court cited Car-lisle to suggest that a defendant could be charged with attempted luring even when the completed offense would be a factual impossibility. Mejak v. Granville, 212 Ariz. 555, n.1, 136 P.3d 874, 875 n.1 (2006) (under previous version of statute limiting completed offense of luring to minors and peace officers posing as such, defendant could not be charged with luring reporter posing as minor).