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In Hood, we held that the crime of child prostitution does “not require proof that a defendant knew the victim was a minor at the time of the sexual conduct.
Summary of this case from Buffington v. ThornellOpinion
No. 1 CA-CR 20-0006
03-18-2021
STATE of Arizona, Appellee, v. Robert HOOD, Appellant.
Arizona Attorney General's Office, Phoenix, By Casey Ball, Counsel for Appellee The Stavris Law Firm PLLC, Scottsdale, By Christopher Stavris, Counsel for Appellant
Arizona Attorney General's Office, Phoenix, By Casey Ball, Counsel for Appellee
The Stavris Law Firm PLLC, Scottsdale, By Christopher Stavris, Counsel for Appellant
Judge James B. Morse Jr. delivered the opinion of the Court, in which Presiding Judge D. Steven Williams and Judge Jennifer B. Campbell joined.
MORSE, Judge:
¶1 Robert Hood appeals his convictions and sentences for conspiracy, maintaining a prostitution enterprise, money laundering, two counts of sexual exploitation of a minor, and three counts each of child sex trafficking and receiving the earnings of a prostitute. We hold that the offenses of child sex trafficking and sexual exploitation of a minor do not require proof that a defendant knew the victim was a minor at the time of the sexual conduct. We also reject Hood's other claims of error and affirm his convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences against the defendant. State v. Scalph , 245 Ariz. 177, 178 n.2, 426 P.3d 305, 306 n.2 (App. 2018).
¶2 A.H. ran away from home when she was 13 years old. When she was 16 and working as a prostitute, A.H. met Hood. A.H. told Hood she was 19 years old. Hood soon became A.H.'s "pimp," placing solicitations in local publications and directing her to "walk the blade"—an area of Phoenix known for its prostitution activity. Hood set the prices for her sexual services and used a wire service to collect A.H.'s and his other trafficking victims' earnings. Hood also had sex with A.H. and video-recorded at least one of those encounters with his cell phone. A.H. asked Hood to delete the video, but he did not do so.
¶3 The State charged Hood with conspiracy, illegally conducting an enterprise, money laundering, three counts of child sex trafficking, four counts of receiving the earnings of a prostitute, and two counts of sexual exploitation of a minor. The superior court entered a judgment of acquittal on one count of receiving the earnings of a prostitute under Arizona Rule of Criminal Procedure 20. The money laundering charge was amended at trial from money laundering in the first degree, a class 2 felony, to money laundering in the second degree, a class 3 felony. See A.R.S. § 13-2317(A), (B), (E).
¶4 The jury returned guilty verdicts. On Count 2, illegally conducting an enterprise, the jury found Hood guilty of the lesser-included offense of maintaining a prostitution enterprise. After finding Hood had two historical prior felony convictions, the superior court imposed a combination of concurrent and consecutive presumptive sentences that, in the aggregate, total 108.75 years imprisonment. See A.R.S. § 13-703(C), (J) (establishing sentencing ranges for category 3 repetitive offenders).
The sentencing transcript reflects the court incorrectly referred to the money laundering conviction as a class 2 felony. The sentencing order, however, correctly notes the offense is a class 3 felony, for which Hood was sentenced to 11.25 years as a category 3 repetitive offender under A.R.S. § 13-703(J).
¶5 Hood timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
I. Hood's Knowledge of A.H.'s Age.
¶6 Challenging his convictions for child sex trafficking and sexual exploitation of a minor, Hood asserts the superior court committed two instructional errors. First, Hood argues the court failed to instruct the jury that a defendant's knowledge of the victim's age was an essential element of the offenses. Second, Hood argues the court erred by instructing the jury the State was not required to prove such knowledge.
Hood makes three distinct arguments contesting the court's instructions. We address them together because each is based on the same premise—that proof of a defendant's knowledge of the victim's minor status is required for a conviction.
¶7 The purpose of jury instructions is to inform the jury of the applicable law. State v. Noriega , 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). "We review de novo whether jury instructions adequately state the law." State v. Tucker, 215 Ariz. 298, 310, ¶ 27, 160 P.3d 177, 189 (2007).
¶8 As relevant here, a person commits child sex trafficking by knowingly "[c]ausing any minor to engage in prostitution." A.R.S. § 13-3212(A)(1). A person commits sexual exploitation of a minor by knowingly recording or possessing "any visual depiction in which a minor is engaged in ... sexual conduct." A.R.S. § 13-3553(A)(1), (2). Hood contends the "knowingly" mental state referenced in these statutes applies not just to the prohibited act, but also to the victim's status as a minor.
¶9 We have previously addressed, and rejected, the same argument raised in the context of the offense of sexual conduct with a minor. State v. Gamez , 227 Ariz. 445, 449-451, ¶¶ 28-38, 258 P.3d 263, 267-69 (App. 2011). "A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age." A.R.S. § 13–1405(A). In Gamez , we concluded that the plain language of the statute only requires proof that the defendant intentionally or knowingly engaged in sexual conduct with the victim, and does not require proof that the defendant knew the victim was under 18. Gamez , 227 Ariz. at 450, ¶ 29, 258 P.3d at 268. Had the legislature intended to require the State to prove a defendant knew the victim was a minor, we noted, it would have said so explicitly in the statute. Id. at ¶ 30. As an example, we cited aggravated assault against a police officer, for which the State must "prove that the defendant knowingly caused the requisite injury while ‘knowing or having reason to know that the victim is ... a peace officer ....’ " Id. (citing A.R.S. §§ 13–1203(A), -1204(A)(8)(a) (2011)); see also A.R.S. §§ 13-3554(a) (prohibiting "soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor").
¶10 The statutory mental state at issue in this case is indistinguishable from that in Gamez and we likewise conclude that the legislature did not intend to require proof that a defendant charged with violating §§ 13-3212(A)(1) or -3553(A)(1), (2) knew the victim was a minor. The superior court therefore properly instructed the jury on the applicable law, and we reject Hood's arguments to the contrary.
II. "Dual-Capacity" Witness.
¶11 Hood argues he is entitled to a new trial because the court allowed the case agent to testify as both the lead investigator and an expert. Because Hood did not object to the testimony, he bears the burden on appeal of establishing fundamental error. State v. Escalante , 245 Ariz. 135, 138, ¶ 1, 425 P.3d 1078, 1081(2018). Satisfying that burden requires Hood to prove either that "(1) the error went to the foundation of the case, (2) the error took from [him] a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. at 142, ¶21, 425 P.3d at 1085. If Hood "establishes fundamental error under prongs one or two, he must make a separate showing of prejudice ...." Id. He fails to meet this burden.
¶12 The case agent led the investigation in this case. She testified about her interviews with A.H. and Hood's other trafficking victims, and she described the evidence obtained during the investigation. Based on her training and experience, the case agent is a nationally recognized expert in child sex trafficking investigations. In that capacity, she also testified generally about the relationship between traffickers and their victims and explained slang terms used in the sex-trafficking industry. Those slang terms were used in text messages and interviews entered into evidence in this case.
¶13 Courts have expressed concerns when a case agent testifies at trial both as an expert and a fact witness. See, e.g., United States v. Vera , 770 F.3d 1232, 1242 (9th Cir. 2014) ("[A]n agent's status as an expert could lend him unmerited credibility when testifying as a percipient witness, cross-examination might be inhibited, jurors could be confused and the agent might be more likely to stray from reliable methodology and rely on hearsay."). To alleviate those potential problems, courts have expressed approval for bifurcating the agent's expert testimony from his or her fact testimony. United States v. Anchrum , 590 F.3d 795, 803-04 (9th Cir. 2009). The risks of allowing a case agent to testify in dual roles also can be reduced by instructing the jury about "what the attendant circumstances are in allowing a government case agent to testify as an expert." Vera , 770 F.3d at 1242 (quoting United States v. Freeman , 498 F.3d 893, 904 (9th Cir. 2007) ).
¶14 Hood suggests the superior court should have, on its own motion, bifurcated the case agent's testimony or provided the jury an unspecified instruction "so that [the jurors] would be able to properly evaluate both phases of [her] dual role testimony." But Hood provides no controlling authority that required the superior court to take either of those steps sua sponte . See United States v. De La Fuente , 353 F.3d 766, 769 (9th Cir. 2003) (noting that error must be "clear or obvious under current law" to rise to the level of plain error); see also State v. Henderson , 209 Ariz. 300, 305, ¶ 16 n.4, 100 P.3d 911, 916 (App. 2004) ("In the federal courts, the closest analogue to our doctrine of fundamental error is the doctrine of ‘plain error.’ "), vacated in part on other grounds , 210 Ariz. 561, 115 P.3d 601 (2005) ; Ariz. R. Evid. 103, cmt. to 2012 amendment (noting Arizona refers to "fundamental error," while federal law refers to "plain error," adding "Arizona and federal courts have long used different terminology in this regard").
¶15 In addition, the record reflects that the case agent's expert testimony was sufficiently distinct from her factual testimony. She began by describing her training and experience in investigating—and training law enforcement officers about—child sex trafficking and prostitution organizations. She then defined terms used in those organizations, described "the local prostitution scene," and explained techniques for interviewing trafficking victims. The prosecutor marked the conclusion of the witness's expert testimony by noting that her general testimony about trafficking and prostitution was ending, then asking her questions about "this particular case[.]" Compare Ariz. R. Evid. 703 (allowing experts to testify based on information the expert "has been made aware of or personally observed"), with Ariz. R. Evid. 602 (requiring fact witnesses to testify based on "personal knowledge of the matter"). Although the case agent made two references to the investigation in this case during her "expert testimony," the prosecutor responded both times by highlighting for the jury that she was "jumping ahead," saying "[w]e are going to talk about that in a few minutes as well."
¶16 Given the prosecutor's demarcation between the case agent's expert and fact testimony, the superior court was not required to do more. See Anchrum , 590 F.3d at 804 (noting that the prosecutor's statement to a DEA witness, "I'd like to shift gears here a little bit and talk about some of your education, professional training, and law enforcement experience[,]" along with the fact that the two phases of the agent's testimony were temporally separated by a sidebar, sufficed to avoid blurring the distinction between his role as a lay witness and his role as an expert witness); see also Freeman , 498 F.3d at 904 (noting that the "demarcation between lay and expert testimony" may "be revealed through direct or cross examination"). Further, the court instructed the jury that it could accept or reject expert testimony and should consider the witness's qualifications, experience, and reasons for testifying. Thus, Hood has not established error.
¶17 Even if there had been error, Hood fails to show prejudice. Hood claims the case agent's dual-capacity testimony resulted in an unfair trial, but he does not explain what aspects of the case agent's factual testimony might have been considered differently by the jury if the superior court sua sponte had taken curative measures. See Escalante , 245 Ariz. at 144, ¶¶ 29, 31, 425 P.3d at 1087 (clarifying that the standard of establishing prejudice under fundamental-error review "is an objective one, and requires a showing that without the error, a reasonable jury could have plausibly and intelligently returned a different verdict"). Instead, Hood simply speculates that the case agent's testimony was "extremely detrimental to [his] case" and it "must have ... made [him] seem even more culpable." Because such speculation is insufficient to establish prejudice, Hood's argument fails. See id. at ¶ 31 (stating "imaginative guesswork" is insufficient to show prejudice); see also United States v. Ham , 628 F.3d 801, 806 (6th Cir. 2011) (finding no plain error even without a dual-witness instruction or "a clear demarcation" between the types of testimony, because the evidence was substantial and the jury was instructed "they could reject the opinions given and that they should consider how the witnesses reached their conclusions").
¶18 Having failed to sustain his burden under fundamental-error review, Hood is not entitled to new trial.
III. Contributing to the Delinquency of a Minor.
¶19 Hood argues the superior court erred by denying his request to instruct the jury on contributing to the delinquency of a minor as a lesser-included offense of child sex trafficking and sexual exploitation of a minor. The State argues that contributing to the delinquency of a minor is only a lesser-related offense of child sex trafficking and sexual exploitation of a minor. See, e.g., State v. West , 176 Ariz. 432, 443-44, 862 P.2d 192, 203-04 (1993) (describing lesser-related offenses as "offenses supported by the facts of the case, although not included in the charging document"), overruled in part on other grounds by State v. Rodriguez , 192 Ariz. 58, 64, ¶ 30 n.7, 961 P.2d 1006, 1012 (1998). We review the denial of a requested jury instruction for an abuse of discretion. State v. Dann , 220 Ariz. 351, 363-64, ¶ 51, 207 P.3d 604, 616-17 (2009).
¶20 "An offense is ‘lesser included’ when the ‘greater offense cannot be committed without necessarily committing the lesser offense.’ " State v. Wall , 212 Ariz. 1, 3, ¶ 14, 126 P.3d 148, 150 (2006) (quoting State v. Dugan , 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980) ). But a lesser-included offense instruction is "necessarily included" and required "only when it is lesser included and the evidence is sufficient to support giving the instruction." Id. The evidence is sufficient "if two conditions are met. The jury must be able to find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense." Id. at 4, ¶18, 126 P.3d at 151. "It is not enough that, as a theoretical matter, ‘the jury might simply disbelieve the state's evidence on one element of the crime’ because this ‘would require instructions on all offenses theoretically included’ in every charged offense." Id. (quoting State v. Caldera , 141 Ariz. 634, 637, 688 P.2d 642, 645 (1984) ). "Instead, the evidence must be such that a rational juror could conclude that the defendant committed only the lesser offense." Id.
¶21 Assuming, without deciding, that contributing to the delinquency of a minor is a lesser-include offense of child sex trafficking and sexual exploitation, Hood fails to argue it was a "necessarily included" offense under the facts of this case. Hood fails to specify what element of child sex trafficking or sexual exploitation of a minor a rational jury could have found the State failed to prove, and he does not identify evidence that would nonetheless support a conviction of contributing to the delinquency of a minor. See id. That is, Hood does not point to any facts or alternative explanations for his actions that would prove he committed contributing to A.H.'s delinquency but would not satisfy the elements of the greater offenses of child sex trafficking or sexual exploitation of a minor.
¶22 Moreover, the record demonstrates that a rational jury could not conclude Hood committed the offense of contributing to the delinquency of a minor but not child sex trafficking or sexual exploitation of a minor. See id. Hood's defense at trial was that A.H. engaged in prostitution "on her own volition ... [and] is making this stuff up." The jury clearly rejected Hood's argument. The evidence, including A.H.'s testimony, overwhelmingly established Hood engaged in child sex trafficking and sexual exploitation of a minor. The superior court did not abuse its discretion by denying Hood's request for a lesser-included instruction.
IV. Multiplicity.
¶23 Finally, Hood argues his two convictions for sexual exploitation of a minor violate his double jeopardy rights because the convictions are based on the single act of possessing the illicit video while he recorded it. This argument is without merit.
¶24 If a single offense is charged in multiple counts, the counts are multiplicitous and raise double jeopardy concerns. Merlina v. Jejna , 208 Ariz. 1, 4, ¶ 12, 90 P.3d 202, 205 (App. 2004). The test to determine whether counts are multiplicitous "is whether each [statutory] provision requires proof of a fact which the other does not." Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
¶25 For Count 11, the jury was instructed: "The Crime of Sexual Exploitation of a Minor requires proof that the defendant knowingly recorded, filmed, photographed, developed or duplicated any visual depiction in which a minor was engaged in exploitive exhibition or other sexual conduct."
¶26 For Count 12, the jury was instructed: "The crime of sexual exploitation of [a] minor requires proof that the defendant knowingly possessed, electronically transmitted, transported or received any visual depiction in which a minor was engaged in exploitive exhibition or other sexual conduct."
¶27 Counts 11 and 12 therefore each refer to a different act: recording (Count 11) and possessing (Count 12). Both acts reflect separate and distinct offenses, as set forth in A.R.S. § 13-3553(A)(1), (2). See State v. Taylor , 160 Ariz. 415, 420, 773 P.2d 974, 979 (1989) ("The legislature has provided for separate punishment for sexual exploitation of a minor by photographing the minor, A.R.S. § 13–3553(A)(1), and sexual exploitation of a minor by possessing a photograph of the minor[,] A.R.S. § 13–3553(A)(2)."); State v. Paredes-Solano , 223 Ariz. 284, 290, ¶ 15, 222 P.3d 900, 906 (App. 2009) (finding that two subsections of statute defining sexual exploitation of a minor are "violated by distinctly different conduct causing different kinds of harm to the child" and thus "represent more than merely different ways of committing a single offense and ... create offenses that are separate and distinct."); see also United States v. Gomez-Diaz , 911 F.3d 931, 934 (8th Cir. 2018) ("Possession of child pornography includes at least one element that production of child pornography does not: possession."). And despite Hood's assertion that recording the video without also possessing it is factually impossible, the evidence shows Hood recorded the video (Count 11) and separately possessed it even after A.H. asked him to delete it (Count 12). Cf. United States v. Hansen , 944 F.3d 718, 724-25 (8th Cir. 2019) (holding convictions for producing and possessing same pornographic image do not violate double jeopardy). Because Counts 11 and 12 each required proof of a fact that the other did not, the counts were not multiplicitous.
CONCLUSION
¶28 We affirm Hood's convictions and sentences.