Opinion
No. 2 CA-CR 2013-0316
08-04-2014
THE STATE OF ARIZONA, Appellee, v. CATHERINE CECEL MENDEZ, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Joseph L. Parkhurst, Assistant Attorney General, Tucson Counsel for Appellee Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20122647002
The Honorable Howard Hantaan, Judge
AFFIRMED AS MODIFIED
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Joseph L. Parkhurst, Assistant Attorney General, Tucson Counsel for Appellee Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 Following a jury trial, Catherine Mendez was convicted of pandering, receiving the earnings of a prostitute, and transporting another person for prostitution or other immoral purposes. The trial court suspended the imposition of sentence and placed Mendez on concurrent four-year terms of probation. On appeal, Mendez challenges two of the court's evidentiary rulings, the sufficiency of the evidence to support her convictions, and the constitutionality of A.R.S. § 13-3210. For the following reasons, we affirm her convictions, as well as the imposition of probation as modified.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Mendez's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In July 2012, Tucson police officers investigated an online advertisement for an escort on a classified advertisements website because the female depicted in a photograph in the ad appeared to be younger than eighteen years of age. Posing as a customer, an undercover officer dialed the telephone number on the ad and spoke with a female, who asked if he was interested in half an hour or an hour, directed him to an area on the south side of Tucson, and quoted him a price of $100. The officer went to the location as instructed and was then directed to room 209 at a nearby motel.
¶3 J.G.—the same woman who appeared in the ad— answered the door wearing only a t-shirt. According to the officer, J.G. "was ready to . . . commit a sex act immediately." After paying J.G. $100 in bills that earlier had been photocopied, the officer made an excuse to return to his car "before [they] started." Shortly after the officer left, W.H. entered the room, paid J.G. $70 in cash, and had sex with her. Upon leaving the room, W.H. was detained by officers. Surveillance officers then observed Mendez exit room 207 and enter room 209.
Officers later determined that J.G. was over eighteen years of age.
¶4 At that time, uniformed officers knocked on the door of room 209 and found J.G. and Mendez inside. Mendez had $170 cash in her bra. By matching the serial numbers of the currency with the photocopies, the officers confirmed that the cash included the $100 the undercover officer had paid J.G. Officers also confiscated from Mendez a cell phone, which she stated "was broken" because she had "lost her SIM card earlier in the day." In room 207, officers found Mendez's husband, Jamari Carter, their two children, and C.D., another adult female. Officers later determined that Mendez's cell phone was associated with the telephone number in the online ad.
A SIM (subscriber identity module) card is inserted into a device, such as a cell phone, and used to store data, including telephone numbers and call history.
¶5 Mendez and Carter were charged with one count each of pandering and receiving the earnings of a prostitute, and Mendez also was charged with transporting another person for prostitution or other immoral purposes. They were tried together, and a jury convicted them as charged. Mendez was placed on a term of probation as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Evidentiary Rulings
Cell Phone
¶6 Mendez contends the trial court erred by admitting evidence of her cell phone number without sufficient foundation. We review a ruling on whether an adequate foundation exists for the admission of evidence for an abuse of discretion. State v. McCray, 218 Ariz. 252, ¶ 8, 183 P.3d 503, 507 (2008).
¶7 Because Mendez's cell phone lacked a SIM card, a detective with the Tucson Police Department contacted the service provider, AT&T. The detective gave AT&T the IMEI number, located on the cell phone, and an AT&T representative provided the detective with two additional numbers. Using those two numbers, a Tucson police lab technician created a forensic SIM card. With the forensic SIM card, the detective then downloaded the data stored on Mendez's phone, including the contact list, incoming and outgoing call history, and text messages.
An IMEI (international mobile equipment identity) number is a unique serial number used to identify a wireless device.
¶8 The state planned to call an AT&T representative as a witness at trial to "tie the phone number [in the ad] to the I.M.E.I. number" of Mendez's phone. However, the trial court precluded the witness based on the state's late disclosure. The court nonetheless ruled that evidence of the phone number was admissible if the state laid the "appropriate circumstantial foundation." At trial, a detective explained the process used to produce the forensic SIM card and to download the contents of Mendez's cell phone. He also testified that Mendez's cell phone was "the phone where all of the calls from . . . [the undercover officer] were going."
¶9 Rule 901(a), Ariz. R. Evid., sets forth the requirements for authenticating and identifying evidence and "governs the sufficiency of an evidentiary foundation." State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). "An item is authenticated when there is 'evidence sufficient to support a finding that the [item] . . . is what [the] proponent claims [it is].'" McCray, 218 Ariz. 252, ¶ 9, 183 P.3d at 507, quoting Ariz. R. Evid. 901(a). "[A]uthentication can be accomplished by circumstantial evidence." State v. Best, 146 Ariz. 1, 2, 703 P.2d 548, 549 (App. 1985), citing Ariz. R. Evid. 901(b)(4). ¶10 Here, there was sufficient foundation for the admission of Mendez's cell phone number. After officers confiscated the cell phone from Mendez, she reported that she had "lost her SIM card." With assistance from AT&T, a lab technician with the Tucson Police Department created a forensic SIM card. Then, using the forensic SIM card, a detective downloaded the contents of the phone, including the call history revealing the calls placed by the undercover officer to the telephone number listed in the online ad. The trial court therefore did not abuse its discretion by admitting the evidence. See McCray, 218 Ariz. 252, ¶ 8, 183 P.3d at 507. ¶11 In a related argument, Mendez maintains her Confrontation Clause rights were violated because she could not cross-examine the AT&T representative about the two numbers provided to the detective for creation of the forensic SIM card. Because Mendez failed to raise this argument below, she has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v. Alvarez, 213 Ariz. 467, ¶ 7, 143 P.3d 668, 670 (App. 2006) (fundamental-error review applies to Confrontation Clause argument); see also State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683-84 (App. 2008) ("[A]n objection on one ground does not preserve the issue on another ground."). ¶12 The Confrontation Clause of the Sixth Amendment to the United States Constitution bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 54-55 (2004); see also State v. Bocharski, 218 Ariz. 476, ¶ 37, 189 P.3d 403, 413 (2008). A testimonial statement "is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51 (internal citation omitted). The Supreme Court has further explained that testimonial statements include those "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52 (internal citation omitted).
¶13 Mendez points out that "the Tucson [p]olice could not create a forensic SIM card to access the text messages and call logs from that particular phone unless and until AT&T provided them with the information after police gave AT&T the IMEI number." And, she argues that she "was not able to confront and cross-examine the AT&T personnel regarding the process used to obtain the data they provided to police." In response, the state asserts the information provided by AT&T was nontestimonial and thus Mendez cannot show a Confrontation Clause violation.
¶14 In determining whether this evidence is testimonial, we find State v. Medina, 232 Ariz. 391, 306 P.3d 48 (2013), instructive. There, the state's medical examiner was allowed to testify at trial, using facts from an autopsy report prepared by another doctor. Id. ¶ 51. The other doctor did not testify at trial, and the autopsy report was admitted into evidence. Id. ¶¶ 51-52. Our supreme court rejected Medina's challenge to the admission of the report and the medical examiner's testimony regarding the report, concluding that the report was nontestimonial and, on that basis, that the medical examiner's testimony did not violate the Confrontation Clause. Id. ¶ 64. The court explained that, under the tests advanced by the Supreme Court, the autopsy report was not testimonial "because its purpose was not primarily to accuse a specified individual," id. ¶ 61, and it "does not certify that the report was correct or that [the examiner] followed the correct procedures," id. ¶ 63. The court also stated the medical examiner's testimony did not violate the Confrontation Clause under its own prior decisions. Id. ¶ 64, citing State v. Dixon, 226 Ariz. 545, ¶ 36, 250 P.3d 1174, 1182 (2011) ("Our cases teach that a testifying medical examiner may, consistent with the Confrontation Clause, rely on information in autopsy reports prepared by others as long as he forms his own conclusions."); see also State v. Joseph, 230 Ariz. 296, ¶ 11, 283 P.3d 27, 30 (2012).
¶15 Here, the detective obtained two numbers from AT&T. At trial, the detective explained the police department's process of creating a forensic SIM card generally, but did not testify with specificity about the numbers provided by AT&T. And, like the underlying autopsy report in Medina, the numbers were not themselves testimonial because they were not created for "'the primary purpose of accusing a targeted individual of engaging in criminal conduct.'" Medina, 232 Ariz. 391, ¶ 58, 306 P.3d at 63, quoting Williams v. Illinois, ___ U.S. ___, ___, 132 S. Ct. 2221, 2228, 2242 (2012) ("Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause."). Indeed, it was the downloaded data, not the numbers provided by AT&T, which created an inference of Mendez's involvement in these offenses. Cf. State v. Bennett, 216 Ariz. 15, ¶ 7, 162 P.3d 654, 656 (App. 2007) (affidavit regarding prior-conviction documentation nontestimonial and only verified authenticity of underlying documentation).
¶16 Moreover, "[t]he Confrontation Clause does not require every person who participated in compiling information to testify in court." State v. Parker, 231 Ariz. 391, ¶ 41, 296 P.3d 54, 66 (2013). Here, the detective was available for cross-examination. See Joseph, 230 Ariz. 296, ¶ 9, 283 P.3d at 298. Because the information about the numbers related to the IMEI number was nontestimonial, Mendez cannot meet her burden of showing fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
Prostitution Expert
¶17 Mendez also argues the trial court erroneously allowed the state's prostitution expert to "inject[] . . . race into the . . . trial," thereby violating her Fourteenth Amendment due process right to a fair trial. We generally review evidentiary rulings for an abuse of discretion. State v. Ellison, 213 Ariz. 116, ¶ 42, 140 P.3d 899, 912 (2006). But we review those involving constitutional issues de novo. State v. Boggs, 218 Ariz. 325, ¶ 63, 185 P.3d 111, 125 (2008).
¶18 At trial, the state called a detective with the Sacramento Police Department to testify as a prostitution expert. During direct examination, the prosecutor asked the detective the meaning of the term "reckless eyeballing." The detective explained that reckless eyeballing is "when a prostitute, who's working for a pimp looks at . . . another black male in the eyes." At that point, Mendez objected, argued the detective was "[i]njecting race into the issue," and requested a mistrial. The prosecutor explained that the testimony gave context to the ad, which said "no black men." The trial court overruled the objection and denied the request for a mistrial. The prosecutor then asked the detective to finish his answer, to which he stated: "Basically one of the main rules in . . . the pimping/prostitution lifestyle is that you don't look at another African American man." The next day, Mendez again requested a mistrial based on the detective's statements. After hearing argument, the court denied the request, but it later instructed the jury to disregard the detective's testimony on reckless eyeballing.
"Reckless eyeballing" was a term "used in the Jim Crow South to prosecute Blacks for looking directly upon White women." Ethan Goffman, Imagining Each Other: Blacks and Jews in Contemporary American Literature, 200 (2000).
¶19 On appeal, Mendez argues that, because her codefendant, Carter, is an African American man, "the detective's race comment was a direct comment upon . . . Carter being [J.G.]'s pimp." She reasons that "[t]his implicated [her] by association" because "her defense was that [J.G.] was operating as a prostitute on her own accord and not associated with her or [Carter]."
¶20 Even assuming the detective's testimony was improperly admitted, we will not reverse a conviction if the error was harmless. State v. Green, 200 Ariz. 496, ¶ 21, 29 P.3d 271, 276 (2001). Error is harmless "if the state, 'in light of all of the evidence,' can establish beyond a reasonable doubt that the error did not contribute to or affect the verdict." State v. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009), quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). As we discuss in addressing Medina's sufficiency of the evidence arguments below, there was ample independent evidence of Mendez's guilt. Thus, we are satisfied beyond a reasonable doubt that any error in the admission of this evidence did not contribute to the jury's verdicts.
¶21 Citing Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012), Mendez nevertheless argues that the trial court's instruction "did not cure" the error. First, we are not bound by the decisions of the federal circuit courts on this issue. See State v. Montano, 206 Ariz. 296, n.1, 77 P.3d 1246, 1247 n.1 (2003). Second, Cudjo is distinguishable. There, the court reversed the district court's denial of habeas relief, concluding that a prosecutor's racial remarks in closing argument likely had an effect on the jury's verdict because the trial court had precluded the defendant from calling other witnesses, which "meant that the only testimony [defendant] had to support his theory of the case was his own." Cudjo, 698 F.3d at 770.
¶22 Unlike the defendant in Cudjo, Mendez was not prevented from calling witnesses or otherwise deprived of her right to present a complete defense. And, here, although the trial court permitted the detective's testimony about reckless eyeballing, the court later directed the jurors to disregard those statements in its final jury instructions. The court further explained to the jury that the detective's "opinion is not supported by research on the area of prostitution, and, therefore, is not admissible expert testimony." "We presume jurors follow the court's instructions." State v. Newell, 212 Ariz. 389, ¶ 69, 132 P.3d 833, 847 (2006). Accordingly, as we have stated, any error in allowing the testimony was harmless. See Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d at 236.
Sufficiency of the Evidence
¶23 Mendez also challenges the sufficiency of the evidence to support each of her convictions. "The sufficiency of the evidence is a question of law we review de novo." State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013). "We will not reverse a jury's verdict if it is supported by substantial evidence." State v. Garfield, 208 Ariz. 275, ¶ 6, 92 P.3d 905, 907 (App. 2004). Substantial evidence is such proof that "'reasonable persons could accept as adequate and sufficient to support a conclusion of [a] defendant's guilt beyond a reasonable doubt.'" State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990).
¶24 In reviewing the sufficiency of the evidence, we do not distinguish between the probative value of direct and circumstantial evidence. State v. Borquez, 232 Ariz. 484, ¶ 11, 307 P.3d 51, 54 (App. 2013). We may sustain a conviction based solely on circumstantial evidence. State v. Burton, 144 Ariz. 248, 252, 697 P.2d 331, 335 (1985).
Receiving the Earnings of a Prostitute
¶25 Pursuant to A.R.S. § 13-3204, "[a] person who knowingly receives money or other valuable thing from the earnings of a person engaged in prostitution, is guilty of a class 5 felony." Mendez admits "[t]here is no question" the $170 that she turned over to the officers "was indeed the proceeds from prostitution." However, she argues that "there exists no evidence to show [she] knew the money was the proceeds of prostitution." We disagree.
¶26 At trial, the state's prostitution expert explained that a prostitution organization typically includes: a "pimp," who is in charge; a "bottom girl," who "runs the organization for the pimp," including "renting the rooms" and "supervising the girls"; and the "wifeys," who consist of "all the girls." The undercover officer and W.H. separately called the telephone number after seeing it in the online ad. The female who answered the calls directed both men to a particular room, room 209, at a motel. Once there, W.H. had sex with J.G. in exchange for $70. J.G. also collected $100 from the undercover officer for sex.
¶27 Upon entering room 209, officers found both J.G. and Mendez, and they confiscated Mendez's cell phone. The data downloaded from Mendez's cell phone showed the calls placed by the undercover officer and W.H. to the telephone number listed on the ad. That telephone number was found on numerous other online ads, several of which included photographs of J.G. In a cell phone confiscated from Carter, the ad telephone number was listed in the contacts as "work"; the history from that cell phone included text messages exchanged with "work" and J.G. That cell phone also had an incoming text message from "Cathy," and room 209 was registered to C.D., who was found in room 207, which was registered to Mendez. And, when officers searched Carter, they found a credit card and a piece of paper, both bearing J.G.'s name.
It is not clear based on the record before us whether the two men saw the same ad, but that is not material to our analysis.
Officers confiscated two cell phones from Carter. The phone discussed herein is what the parties referred to as the "black phone."
¶28 Mendez nevertheless asserts "there is absolutely no evidence to show [she] owned the phone." She reasons that, although neither the undercover officer nor W.H. saw or heard a telephone while in room 209, the cell phone could have been there, suggesting Mendez did not have it prior to entering the room. But, the fact that the cell phone was in Mendez's possession and she told the officers "the phone was broken" because she had "lost her SIM card earlier in the day" suggests either that the cell phone did in fact belong to her or that she regularly used it. See Borquez, 232 Ariz. 484, ¶ 11, 307 P.3d at 54. Substantial evidence supports Mendez's conviction for receiving the earnings of a prostitute. See Snider, 233 Ariz. 243, ¶ 4, 311 P.3d at 658.
Transporting Another for Prostitution or Other Immoral Purposes
¶29 Pursuant to § 13-3210, "[a] person knowingly transporting by any means of conveyance, through or across this state, any other person for the purposes of prostitution or concubinage, or for any other immoral purposes, is guilty of a class 5 felony." This court previously has interpreted the language "transporting . . . through or across this state" as meaning "to transfer or convey someone from one end or boundary line of this state to another." State v. Rowan, 174 Ariz. 285, 288, 848 P.2d 864, 867 (App. 1992), vacated in part on other grounds, 176 Ariz. 114, 859 P.2d 737 (1993). We further explained that "§ 13-3210 requires something more than simply driving someone down the street." Id. at 289, 848 P.2d at 868.
¶30 In addition to the evidence discussed above regarding Mendez's conviction for receiving the earnings of a prostitute, the state presented the following at trial: The numerous online ads with Mendez's cell phone number had posting dates throughout June and July 2012, with locations in Tucson and Mesa, as well as California, New Mexico, and Texas. The data downloaded from Mendez's cell phone included a text message about leaving Mesa, as well as multiple messages from Tucson locations, including the motel at which the incident occurred. Moreover, an incoming text message on one of the cell phones confiscated from Carter included a Mesa location that matched the date and location of a posting in one of the ads. The distance from Mesa to Tucson, alone, is "more than . . . down the street," meeting the requirements of § 13-3210. Rowan, 174 Ariz. at 289, 848 P.2d at 868.
¶31 Despite this evidence, Mendez contends that her "momentary possession of that phone" on the date of her arrest does not show she previously possessed the phone in Mesa or "that she transported [J.G.] to Tucson for any purpose at all." However, her possession of the phone is circumstantial evidence that may be considered in determining whether there is substantial evidence to support her conviction. See Borquez, 232 Ariz. 484, ¶ 11, 307 P.3d at 54. And, based on Mendez's possession of the cell phone, the various text messages, the correlations to the online ads, and the inference that Mendez was the "bottom girl," substantial evidence supports her conviction for transporting another person for prostitution or other immoral purposes. See Snider, 233 Ariz. 243, ¶ 4, 311 P.3d at 658.
Pandering
¶32 A defendant commits pandering by "knowingly . . . compel[ling], induc[ing] or encourag[ing] any person to become a prostitute or engage in an act of prostitution." A.R.S. § 13-3209(4). Mendez again asserts the state "did not prove [she] transported [J.G.] anywhere" or she "was the owner of the phone." However, these are not elements of pandering, id., and we otherwise rejected these arguments above.
Our legislature has recently amended § 13-3209. 2014 Ariz. Sess. Laws, ch. 151, § 6. The changes are not material here, and we therefore refer to the current language of the statute.
¶33 Again, in addition to the evidence already discussed, the state presented the following at trial: The downloaded data from Mendez's cell phone revealed numerous text messages of a sexual nature. One of the cell phones confiscated from Carter contained similar text messages, including one that read: "I could lead you in the right direction to success in the adult industry." Substantial evidence therefore supported Mendez's conviction for pandering. See Snider, 233 Ariz. 243, ¶ 4, 311 P.3d at 658.
Constitutionality of § 13-3210
¶34 Mendez lastly argues § 13-3210, the statute under which she was convicted of transporting another person for prostitution or other immoral purposes, is "unconstitutionally vague and overbroad" because it "permits a jury to determine guilt based on the individual juror[s'] perceptions of what is immoral." Because she did not raise this argument below, she has forfeited review for all but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607; State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830, 837 (1995) (fundamental-error review applies to constitutional issues).
¶35 As discussed above, § 13-3210 provides: "A person knowingly transporting by any means of conveyance, through or across this state, any other person for the purposes of prostitution or concubinage, or for any other immoral purposes, is guilty of a class 5 felony." When reviewing a statute challenged as vague, we strongly presume that it is constitutional. State v. Kaiser, 204 Ariz. 514, ¶ 8, 65 P.3d 463, 466 (App. 2003). Generally, the party challenging the statute bears the burden of overcoming that presumption. State v. Bonnewell, 196 Ariz. 592, ¶ 5, 2 P.3d 682, 684 (App. 1999).
¶36 As a preliminary matter, we must address the state's assertion that Mendez lacks standing to raise her constitutional challenge. "[A] defendant whose conduct clearly falls within the legitimate purview of the statute has no standing to challenge the statute as vague." State v. Anderson, 199 Ariz. 187, ¶ 15, 16 P.3d 214, 218 (App. 2000); see also State v. Musser, 194 Ariz. 31, ¶ 5, 977 P.2d 131, 132 (1999). To have standing, a defendant "must have suffered some threatened or actual injury from the alleged constitutional infirmity." State v. Lefevre, 193 Ariz. 385, ¶ 16, 972 P.2d 1021, 1025 (App. 1998).
¶37 Here, Mendez challenges § 13-3210, arguing that the "immoral purposes" language is not "narrowly tailored." But § 13-3210 criminalizes transporting another person "for the purposes of prostitution . . . or for any other immoral purposes." See State v. Bowsher, 225 Ariz. 586, ¶ 7, 242 P.3d 1055, 1056 (2010) (describing meaning of "or"). 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). Mendez's conduct in this case falls squarely within this definition, particularly in light of her convictions for receiving the earnings of a prostitute and pandering, thereby showing she "knowingly transport[ed] . . . any other person for the purposes of prostitution." § 13-3210. Because the statute is not vague or overbroad as applied to her, Mendez lacks standing to challenge the constitutionality of § 13-3210. See Anderson, 199 Ariz. 187, ¶ 15, 16 P.3d at 218.
¶38 Mendez, however, seems to suggest she has standing because she is making a facial, not an as-applied, challenge to the statute. But standing generally turns on the defendant's circumstances, not the arguments put forward. Our standing principles apply when a defendant is facially challenging a statute. See id.; see also State v. McCoy, 187 Ariz. 223, 225, 928 P.2d 647, 649 (App. 1996) ("[B]ecause the statute clearly applies to appellant's conduct, . . . [s]he has no standing to complain that its asserted vagueness infringes the rights of others."). Moreover, "overbreadth attacks are directed to the application rather than to the facial validity of the statute and therefore may be mounted only by a defendant who has standing—that is, one whose conduct is within the ambiguous area." State v. Tocco, 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988).
"[C]ourts have carved a narrow exception to the standing requirement in the First Amendment area. Under some circumstances, litigants whose own activities are constitutionally unprotected can nonetheless challenge a statute as overbroad if the law 'substantially abridges the First Amendment rights of other parties not before the court.'" Musser, 194 Ariz. 31, ¶ 5, 977 P.2d at 132, quoting Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634 (1980). However, Mendez has not asserted a violation of other's First Amendment rights. See Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Larson, 222 Ariz. 341, ¶ 23, 214 P.3d 429, 434 (App. 2009) (argument not raised in opening brief waived).
Probationary Terms
¶39 According to the state, the trial court sentenced Mendez "to terms of probation that exceed the statutory maximum for each of her convictions." We agree. Mendez was convicted of three class-five felonies, see §§ 13-3204, 13-3209, 13-3210, and the court imposed concurrent four-year probationary terms for each of the offenses. Pursuant to A.R.S. § 13-902(A), however, probation for a class-five felony may continue for only three years. Accordingly, we modify Mendez's probationary terms to three years each and amend the sentencing minute entry to reflect the same. See State v. Burns, 231 Ariz. 563, ¶¶ 6-7, 298 P.3d 911, 912-13 (App. 2013) (trial court must impose probationary terms consistent with statutes; illegal term of probation constitutes fundamental error).
Disposition
¶40 For the foregoing reasons, we affirm Mendez's convictions and the probationary terms as modified.