The STATE of Arizona, Appellee, v. Steven Frank McPHERSON, Appellant.
No. 2 CA-CR 2011-0126
Court of Appeals of Arizona, Division 2, Department A.
Jan. 25, 2012.
269 P.3d 1181
of intended new witnesses in civil cases, we disagree that (g)(3) creates the same right here. The rules governing non-arbitration civil cases cannot trump Rule 77(g)(1) and (g)(4), which specifically governs disclosure in appeals from arbitration awards. When a specific rule conflicts with a general one, the specific rule controls. See In re Guardianship/Conservatorship of Denton v. Superior Court, 190 Ariz. 152, 157, 945 P.2d 1283, 1288 (1997) (explaining that under rules of statutory construction, newer, specific statutes govern older, general statutes). Moreover, Rule 77(g) distinguishes between discovery and the filing of supplemental witness lists. See, e.g., Rule 77(g)(4) (“[T]he court may extend the time for discovery set forth in subsection (3) above and/or allow a supplemental list of witnesses and exhibits to be filed.“). If “discovery” in subsection (g)(3) included the supplemental disclosure of witnesses and exhibits, the specific reference to supplemental witness and exhibit lists in subsection (g)(4) would be unnecessary. See Arizona Dep‘t of Revenue v. Action Marine Inc., 218 Ariz. 141, 143 ¶ 10, 181 P.3d 188, 190 (2008) (noting that this court will not construe text to render any of its terms meaningless).
¶ 11 Additionally, the court of appeals’ interpretation could undermine Rule 77‘s goal of a prompt trial de novo. Subsection (g)(3) sets an eighty-day period in which to finish discovery before trial. But defining discovery to include disclosure of additional witnesses would permit a party to disclose new witnesses until the eightieth day.1 Such a witness almost certainly could not be deposed within the eighty-day limit, and either the trial court would have to extend discovery pursuant to (g)(4), or the opposing party would potentially be placed at a substantial disadvantage.
¶ 12 Because Rule 77(g) requires a showing of good cause and permission of the court to file a supplemental list of exhibits and witnesses on appeal from an arbitration award, we vacate the court of appeals’ opinion and affirm the superior court‘s order striking Cosper‘s supplemental witness and exhibit list.
CONCURRING: REBECCA WHITE BERCH, Chief Justice, ANDREW D. HURWITZ, Vice Chief Justice, W. SCOTT BALES, and A. JOHN PELANDER, Justices.
Robert J. Hirsh, Pima County Public Defender By David J. Euchner, Tucson, Attorneys for Appellant.
OPINION
ECKERSTROM, Presiding Judge.
¶ 1 Following a jury trial, appellant Steven McPherson was convicted of seven counts of sexual exploitation of a minor under fifteen years old based on his possession of child pornography. Pursuant to
Consecutive Sentences
¶ 2 McPherson first maintains his sentences are illegal because he “acquired all seven ... images [supporting the separate charges] on a single DVD.” Given that “the data on a DVD, once burned, may not be modified[,] and the possessor may not possess one file on the DVD without possessing all files,” McPherson reasons that “all seven counts were the ‘same conduct’ that required concurrent sentencing.” Specifically, he argues the consecutive sentences he received violate our double punishment statute,
¶ 3 On appeal, the parties appear to disagree about the nature of McPherson‘s charges and the evidence and facts supporting them. McPherson asserts in his opening brief both that he had “purchased a DVD on a single occasion that contained seven contraband images” and that he had “received the DVD from someone else.” In its answering brief, the state correctly points out that McPherson admitted he had purchased the apparently blank DVD himself; no one else had owned it before him. He further explained that he had put the illicit images on it by taking photographs of a computer screen with a digital camera and then transferring those images to the DVD. In his reply brief, McPherson maintains that consecutive sentences are prohibited regardless of how the DVD was created because he was charged only with possessing the images on the DVD, not any other offense. We assume for the sake of argument, and to avoid any problems regarding duplicity,3 that each count of sexual exploitation of a minor with which McPherson was charged under
¶ 4 McPherson acknowledges that, because he knew of the trial court‘s intention to impose consecutive sentences before the pronouncement of sentence, his failure to raise the issue below has forfeited review for all but fundamental error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). As he points out, however, an illegal sentence constitutes fundamental, prejudicial error, State v. Zinsmeyer, 222 Ariz. 612, ¶ 26, 218 P.3d 1069, 1080 (App. 2009); State v. Gonzalez, 216 Ariz. 11, ¶ 2, 162 P.3d 650, 651 (App.2007), as does a double jeopardy violation. State v. McGill, 213 Ariz. 147, ¶ 21, 140 P.3d 930, 936 (2006).
Double Jeopardy
¶ 5 Because “[t]he double jeopardy provisions in the federal and Arizona constitutions ‘do not significantly differ, ... the same standard generally is used to analyze both provisions.‘” State v. Wilson, 207 Ariz. 12, n. 2, 82 P.3d 797, 800 n. 2 (App.2004), quoting State v. Welch, 198 Ariz. 554, n. 2, 12 P.3d 229, 230 n. 2 (App.2000). “The Double Jeopardy Clauses in the United States and Arizona Constitutions prohibit: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” Lemke v. Rayes, 213 Ariz. 232, ¶ 10, 141 P.3d 407, 411 (App.2006) (footnote omitted).
In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy—protection against cumulative punishments—is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are “multiple” is essentially one of legislative intent. Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (citation omitted). The intent of the legislature in defining and fixing the punishment for an offense is a question of law we review de novo. See State v. Burdick, 211 Ariz. 583, ¶ 5, 125 P.3d 1039, 1041 (App.2005).
¶ 6
¶ 7 Other jurisdictions have held that multiple convictions for possession of child pornography do not constitute double jeopardy, even if the separate images underlying the convictions were obtained in the same electronic download, see, e.g., Fink v. State, 817 A.2d 781, 787-88 (Del.2003), or contained in the same compact disk, see, e.g., State v. Ravell, 155 N.H. 280, 922 A.2d 685, 687 (2007). Under Arizona law, we similarly must conclude that separate convictions and punishments for different images on the same DVD are constitutionally permissible because the legislature intended the unit of prosecution to be each individual “depiction.”
¶ 8 McPherson has offered no argument about the legislature‘s intent. Instead, he argues his case is similar to the hypothetical situation discussed in State v. Taylor, where our supreme court questioned the propriety of consecutive sentences for a defendant who “acquired all of the photographs at the same time in one book from someone else.” 160 Ariz. 415, 420, 773 P.2d 974, 979 (1989). We acknowledge that other jurisdictions construing different statutes have determined the simultaneous receipt or possession of multiple images will allow only one conviction and punishment. E.g., United States v. Buchanan, 485 F.3d 274, 278, 282 (5th Cir.2007) (finding separate counts of receipt of child pornography multiplicitous and prohibited by Double Jeopardy Clause when “government did not offer any proof that [defendant] took more than one action to receive the four images that were the basis of his convictions“); State v. Sutherby, 165 Wash.2d 870, 204 P.3d 916, 925 (2009) (concluding intended unit of prosecution under statute “is one count per possession of child pornography, without regard to the number of images comprising such possession or the number of minors depicted in the images possessed“). But under our own statutes, we can only
¶ 9 Additionally, we note that although we have assumed McPherson‘s case, as charged, is analogous to the hypothetical scenario discussed in Taylor, the facts underlying his possession of the DVD clearly distinguish him from someone who instantly comes into possession of an album of child pornography. His situation is more akin to a pair of Wisconsin cases: State v. Multaler, 252 Wis.2d 54, 643 N.W.2d 437 (2002), and State v. Schaefer, 266 Wis.2d 719, 668 N.W.2d 760 (App.2003). In Multaler, the defendant had created two computer disks “over a period of time” that contained a multitude of illicit images, and the court upheld his twenty-eight convictions stemming from the separate image files on the disks. 252 Wis.2d 54, 643 N.W.2d 437, ¶¶ 50-51, 58, 69. Likewise, in Schaefer the court upheld eighteen possession convictions that were based upon separate files from a “Zip disk” removed from the defendant‘s computer. 266 Wis.2d 719, 668 N.W.2d 760, ¶¶ 42, 50, 56. As Wisconsin‘s high court reasoned:
In essence, because it appears that the images on the disks were photographs of actual children, the disks served as electronic photo albums. The language of [the statute criminalizing child pornography] shows that the legislature would deem it appropriate to bring separate charges for separate photographs in a traditional photo album. Similarly, the legislature presumably would deem separate charges appropriate for individual images displayed in an electronic photo album.
Multaler, 252 Wis.2d 54, 643 N.W.2d 437, ¶ 67. Although the double jeopardy analysis undertaken in these cases may differ from Arizona law or be problematic in some ways, see Schaefer, 266 Wis.2d 719, 668 N.W.2d 760, ¶ 56 & n. 11, we discuss these cases merely to underscore the absence of fundamental, constitutional error here.
¶ 10 Additionally, McPherson has not argued that his convictions are multiplicitous and therefore prohibited by double jeopardy principles. The Double Jeopardy Clause applies to convictions as well as sentences, State v. Watson, 120 Ariz. 441, 453, 586 P.2d 1253, 1265 (1978), and when a defendant is convicted of the same offense in separate counts, such multiplicitous convictions generally are not permitted. See Merlina v. Jejna, 208 Ariz. 1, ¶ 12 & n. 4, 90 P.3d 202, 205 & n. 4 (App.2004); see also United States v. Bobb, 577 F.3d 1366, 1372 (11th Cir.2009) (acknowledging unlawful multiplicitous convictions must be vacated even with concurrent sentences); United States v. Davenport, 519 F.3d 940, 947 (9th Cir.2008) (same). McPherson‘s arguments on appeal implicitly acknowledge the validity of his separate convictions. We therefore question whether he has made a logically coherent argument against separate punishments under the Double Jeopardy Clause. Cf. Buchanan, 485 F.3d at 280 (finding double jeopardy violations based on unit of prosecution being “‘actus reus, the physical conduct of the defendant‘“), quoting United States v. Reedy, 304 F.3d 358, 365 (5th Cir.2002).
A.R.S. § 13-116
¶ 11 McPherson‘s statutory argument against consecutive sentencing is similarly unavailing.
An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other, to the extent the Constitution of the United States or of this state require.
(Emphasis added.) When two or more counts are punishable under the same section of the law, consecutive sentences are not prohibited by
¶ 12 Here, McPherson committed multiple violations of the same law,
Cruel and Unusual Punishment
¶ 13 McPherson next argues, as he did in his sentencing motion below, that the mandatory consecutive sentences he faced for possessing each illicit image violated his federal and state constitutional rights to be free from cruel and unusual punishment. See
¶ 14 In Berger II, a majority of our supreme court held that consecutive mandatory minimum ten-year sentences, totaling 200 years, for the possession of child pornography did not violate the Eighth Amendment‘s ban on cruel and unusual punishment. 212 Ariz. 473, ¶¶ 25, 27, 51, 134 P.3d at 383, 384, 388. As McPherson correctly points out, our supreme court did not expressly address whether this sentencing scheme violates our nearly identical state constitutional provision,
¶ 15 In its partially vacated opinion, this court made clear that Berger had alleged his sentences violated both the federal and state constitutional provisions. State v. Berger, 209 Ariz. 386, ¶¶ 1, 3 & n. 2, 103 P.3d 298, 299, 300 & n. 2 (App.2004) (Berger I), vacated in part by Berger II, 212 Ariz. 473, ¶ 51, 134 P.3d at 388. Our ruling interpreted these provisions in the same manner, id. ¶ 3 & n. 2, and disposed of both his Eighth Amendment and article II, § 15 claims. Berger I, 209 Ariz. 386, ¶ 29, 103 P.3d at 307. This court concluded: “The federal and state constitutional prohibitions against cruel and unusual punishment have not been violated in this case.” Id. Briefs submitted to our supreme court on review addressed the constitutionality of Berger‘s sentences under both the Eighth Amendment and article II, § 15 of our state constitution. Appellee‘s Supp.
¶ 16 The court also was aware independently of the existence of our state constitutional provision and the fact that it provided a potential avenue to resolve the case before it. Less than three years earlier, in State v. Davis, 206 Ariz. 377, ¶ 12, 79 P.3d 64, 67 (2003), the court had ordered supplemental briefing to address “whether [a]rticle II, [s]ection 15 of the Arizona Constitution provides greater protection against cruel and unusual punishment than does the Eighth Amendment to the United States Constitution.” In that case, the court ultimately found no “compelling reason to interpret Arizona‘s cruel and unusual punishment provision differently from the related provision in the federal constitution.” 206 Ariz. 377, ¶ 12, 79 P.3d at 68. Davis was discussed at length in both the majority8 and dissenting opinions in Berger II. To date, our supreme court has declined to interpret our state constitutional provision more broadly than its federal counterpart. Any change in that approach would be in the exclusive purview of that court. See Long, 207 Ariz. 140, ¶ 23, 83 P.3d at 623 (this court bound by opinions of our highest state court).
Equal Protection
¶ 17 Finally, McPherson claims our state‘s mandatory punishment scheme for the possession of child pornography violates the equal protection guarantees of the United States and Arizona Constitutions. See
¶ 18 In the non-vacated portion of Berger I, this court analyzed a species of this equal protection argument. See 209 Ariz. 386, ¶¶ 1, 6, 103 P.3d at 299, 300; see also Berger II, 212 Ariz. 473, ¶ 51, 134 P.3d at 388. There, the defendant challenged the DCAC statute on the ground that it “imposed the same range of punishment both for sexual exploitation of a minor and for commercial sexual exploitation of a minor, although commercial sexual exploitation is a more serious crime.” Berger I, 209 Ariz. 386, ¶ 6, 103 P.3d at 300. In evaluating this argument, this court framed the issue as “whether there is a rational basis for the distinction” or classification. Id. ¶¶ 7, 8. McPherson agrees that such a rational basis test applies to his equal protection claim. As that opinion explained:
“Rational basis review imposes on the parties challenging the constitutionality of the Act ... the burden of establishing that the law is unconstitutional by demonstrating that there is no conceivable basis for the Act. A legislative enactment challenged under the rational basis test will pass constitutional muster unless it is proved beyond a reasonable doubt to be wholly unrelated to any legitimate legislative goal. Moreover, the law ‘need not be in every report logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and th[at]
it might be thought that the particular legislative measure was a rational way to correct it.‘”
Id. ¶ 8, quoting Martin v. Reinstein, 195 Ariz. 293, ¶ 52, 987 P.2d 779, 795-96 (App. 1999) (alteration in Berger I) (citations omitted in Berger I).9
¶ 19 Under this standard, we reject McPherson‘s basic argument that noncommercial sexual exploitation of a minor—that is, the simple possession of child pornography—is irrationally included among the DCAC offenses because it is less serious than the other DCAC offenses. We do so for the same reasons set forth in Berger I, 209 Ariz. 386, ¶¶ 9-12, 103 P.3d at 301-02.
¶ 20 As to the more lenient treatment of bestiality involving young children, we find this aspect of the law odd, but not constitutionally fatal. It could be that the legislature regarded bestiality as less prevalent than the sexual exploitation of minors and thus less in need of deterrence. Further, we note that acts of bestiality involving young children that are documented by a photograph or video constitute sexual exploitation under
¶ 21 Insofar as
¶ 22 We acknowledge that the arguably disproportionate sentence ranges set forth in Arizona‘s statutory scheme for simple, private possession of child pornography may be the product of mere legislative happenstance in consolidating such crimes for purposes of description and sentencing with other, more aggravated actions involving considerably more malice and direct harm towards a child. Specifically,
¶ 23 As a justice of our supreme court has accurately observed, those who have offended by simply possessing child pornography rarely possess only one image. Berger II, 212 Ariz. 473, ¶ 75, 134 P.3d at 393 (Berch, V.C.J., concurring in part and dissenting in part). This fact, coupled with our conclusion today that the legislature has intended to characterize possession of each image as a separate offense, and the requirement that each count carry a consecutive sentence, has the effect of mandating a constructive term of life imprisonment on most of those convicted of such crimes. See, e.g., State v. Windsor, 224 Ariz. 103, ¶ 1, 227 P.3d 864, 864 (App.2010) (fifty years for five images). Trial courts are left little discretion to impose significantly more lenient terms on those specific individuals who have no prior record
¶ 24 However, within constitutional confines, it is the legislature‘s prerogative, not ours, to determine the appropriate punishment to impose for particular offenses. Our state supreme court already has determined that the sentences currently mandated for the possession of child pornography violate neither the Eighth Amendment to the United States Constitution nor article II, § 15 of the Arizona Constitution. This court is bound to follow that authority.
Disposition
¶ 25 For the foregoing reasons, McPherson‘s convictions and consecutive sentences totaling seventy years are affirmed.
CONCURRING: JOSEPH W. HOWARD, Chief Judge and J. WILLIAM BRAMMER, JR., Judge.