State v. Hollenback

Citations: 126 P.3d 159; 212 Ariz. 12; 468 Ariz. Adv. Rep. 3; 2005 Ariz. App. LEXIS 171Docket: 2 CA-CR 2004-0139

Court: Court of Appeals of Arizona; December 29, 2005; Arizona; State Appellate Court

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Robert Hollenback was convicted of molestation of a child, sexual conduct with a minor, and luring a minor for sexual exploitation, all classified as dangerous crimes against children, with the victims being under twelve years old. He had a prior felony conviction, resulting in a life sentence followed by thirty-eight years in prison. Hollenback appealed, arguing that the trial court erred in denying his motion for judgment of acquittal on the luring charge, claiming A.R.S. 13-3554 did not apply to his actions. He also contested the jury's interrogatory regarding the victims' ages and the imposition of a mandatory life sentence under A.R.S. 13-604.01(A).

The court affirmed the convictions and sentences, noting that the facts were viewed favorably to sustain the jury's decisions. Regarding the luring charge, Hollenback argued that A.R.S. 13-3554 only pertains to producing pornographic material, suggesting that the statute necessitates an intent to photograph or record a minor. However, the court determined that the statute's plain language prohibits soliciting sexual conduct with a minor without requiring intent to exploit in the context of child pornography, as it does not reference A.R.S. 13-3553. The court emphasized that the interpretation of statutes begins with their clear language, which, in this case, supported the prosecution's position.

The state contends that the term 'sexual exploitation' does not render the statute ambiguous, as the prohibited conduct is clearly defined. The court agrees, noting that a statute's language serves as a reliable indicator of its meaning. The criminal act is applicable regardless of whether it leads to sexual exploitation as defined by A.R.S. 13-3553. The legislature could have explicitly limited the offense to violations of this section if that were its intent. Additionally, the court highlights that the heading of a statute is not legally binding and only aids in clarifying ambiguity when it exists.

Hollenback asserts that solicitation for sexual conduct is already covered by A.R.S. 13-1002 and 13-1405(A), suggesting that 13-3554 cannot also prohibit such conduct. However, 13-3554 is deemed a more specific statute that directly prohibits offering or soliciting sexual conduct with a minor, providing for harsher sentencing under A.R.S. 13-604.01 for victims under fifteen. The definitions of 'sexual conduct' under 13-3554 are broader than those in 13-1405, which does not encompass simulated sexual acts.

In relation to the charges, substantial evidence supported that Hollenback solicited an eight-year-old victim for oral sex, affirming the trial court's rejection of a Rule 20 motion. Regarding sentence enhancement, Hollenback argues that he was not notified that the state sought enhanced penalties for offenses involving victims under twelve years old, despite the indictment citing 13-604.01. The court reviews sentencing for abuse of discretion, as established in prior case law.

Hollenback's argument relying on State v. Guytan is unfounded. In Guytan, the court ruled that amending an indictment for enhanced sentencing was improper due to lack of timely notice under Rule 16.1, as the defendant was charged with aggravated assault. In contrast, Hollenback's indictment included references to A.R.S. 13-604.01, which addresses dangerous crimes against children, thus providing adequate notice for enhanced sentencing. The court affirmed that the trial court acted correctly by sentencing Hollenback based on the jury's finding regarding the victim's age.

Hollenback also claimed that sentencing under A.R.S. 13-604.01 was erroneous, arguing he should have been sentenced under A.R.S. 13-702.02 due to the consolidation of offenses for trial. However, the court noted that he failed to object during the trial, waiving the right to contest the sentencing unless a fundamental error occurred. The statutes Hollenback violated explicitly state that crimes against victims under fifteen are punishable under the dangerous crimes against children statute, reinforcing that the trial court's sentencing was appropriate and aligned with legislative intent to protect children. Additionally, the statutes require that crimes against children be sentenced under the harsher penalties for dangerous crimes, as opposed to the more general sentencing provisions.

The statutes indicate that sentencing under 13-604.01 takes precedence over 13-702.02, as demonstrated by case law, including State v. Kinslow and State v. Rushton. A plea agreement allowing a defendant to be sentenced under 13-701 instead of the mandatory 13-604.01 provisions constituted an illegal sentence. Hollenback challenged his life sentence under 13-604.01(A), arguing that his actions could be considered 'masturbatory contact' and thus should fall under the less severe 13-604.01(B). The court reviewed whether the correct subsection was applied, affirming that Hollenback's conduct involved oral sexual contact with a minor, which does not qualify as 'masturbatory contact' under the statute. The definitions of sexual conduct, sexual intercourse, and oral sexual contact were clarified, indicating that the exemption for 'masturbatory contact' in 13-604.01 applies only to sexual intercourse. Since Hollenback's actions met the criteria for sexual conduct with a minor under 13-1405(A), the life sentence mandated by 13-604.01(A) was upheld. Hollenback's convictions and sentences were affirmed by the judges.

A.R.S. 13-3553(A) outlines that sexual exploitation of a minor occurs when a person knowingly records, distributes, or possesses visual depictions of a minor engaged in sexual conduct. A.R.S. 13-1002(A) defines solicitation as the act of encouraging another to engage in conduct constituting a felony or misdemeanor, with intent to promote its commission. The court deemed the evidence properly admitted and did not consider Hollenback's argument regarding the impact of this evidence on his other convictions, as he failed to raise this issue or request a new trial at the trial level. Only count two, involving sexual conduct with a minor, carries an enhanced penalty for victims under twelve. Defendants who do not object to errors during trial forfeit the right to appellate relief unless they demonstrate fundamental error. Hollenback argued that his crimes were 'non-dangerous offenses,' which would lead to a sentence of four to ten years for sexual conduct with a minor, but he did not challenge his sentences for luring or molestation. A retired judge was authorized to serve on the Arizona Court of Appeals for this case.