STATE OF ARIZONA v. STEVE FRANK McPHERSON
228 Ariz. 557
| Ariz. Ct. App. | 2012Background
- McPherson was convicted by jury of seven counts of sexual exploitation of a minor under fifteen based on possession of child pornography.
- He was sentenced to seven consecutive ten-year prison terms, as mandated by statute, for each count.
- Appellant challenges the statutes as applied to him, raising equal-protection and cruel-and-unusual-punishment claims.
- He argues all seven images were acquired from a single DVD, suggesting a single act that warrants concurrent sentencing.
- The State's evidence showed he purchased the DVD, created images by photographing a computer screen, and placed separate images on the DVD, with each count based on possession of a distinct image on the DVD.
- The court ultimately affirms both the convictions and the consecutive sentences, addressing the issues of unit of prosecution, double jeopardy, and constitutionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consecutive sentences for separate images on one DVD violate double jeopardy | McPherson contends all seven counts were the same conduct | State argues each image is a separate depiction under §13-3553(A)(2) | Consecutive sentences upheld; per-image unit of prosecution supported by statute |
| Whether § 13-116 prohibits consecutive sentences for multiple counts arising from the same act | McPherson asserts § 13-116 precludes consecutive terms | State argues § 13-116 allows consecutive terms when counts arise under the same section | § 13-116 does not apply; multiple violations of the same statute justify consecutive sentences |
| Whether the mandatory consecutive ten-year sentences for possession of child pornography violate cruel-and-unusual punishment under state and federal constitutions | McPherson argues the penalties are unconstitutional | Berger II upheld the constitutionality of the scheme | Constitutional under Berger II; no cruel and unusual punishment violation under current Arizona law |
| Whether the equal-protection challenge to the DCAC scheme has merit | McPherson claims irrational classification within DCAC offenses | State argues rational basis for disparate treatment within DCAC statutes | Rational-basis review upheld; no equal-protection violation under Berger I/II and related authorities |
Key Cases Cited
- State v. Berger, 209 Ariz. 386, 103 P.3d 298 (Ariz. 2005) (concerning equal protection and cruel-unusual punishment in child-pornography prosecutions (Berger I))
- State v. Berger, 212 Ariz. 473, 134 P.3d 378 (Ariz. 2006) (Berger II; settled constitutionality of possession-based DCAC sentencing)
- State v. Williams, 182 Ariz. 548, 898 P.2d 497 (Ariz. App. 1995) (multiplicity considerations under Arizona law)
- State v. Burdick, 211 Ariz. 583, 125 P.3d 1039 (Ariz. App. 2005) (limitations on 13-116 applicability; multiple victims)
- Valdez, 182 Ariz. 165, 894 P.2d 708 (Ariz. App. 1994) (discusses unit of prosecution for child pornography)
- State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (Ariz. 1989) (multiplicity and unit-of-prosecution principles)
- Ohio v. Johnson, 467 U.S. 493 (U.S. 1984) (double-jeopardy-related principles cited in analysis)