                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                     WILLIAM HARTWELL, Appellant.

                             No. 1 CA-CR 17-0577
                               FILED 4-18-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-001482-001
               The Honorable Sherry K. Stephens, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                           STATE v. HARTWELL
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge James B. Morse Jr. and Judge Jon W. Thompson joined.


S W A N N, Judge:

¶1            William James Hartwell appeals his convictions and
sentences for conspiracy to illegally control an enterprise, illegal control of
an enterprise, pandering, operating a house of prostitution, receiving
earnings of prostitution, sex trafficking, sexual assault, and aggravated
assault. For reasons that follow, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State
v. Valencia, 186 Ariz. 493, 495 (App. 1996). The state presented evidence of
the following relevant facts.

¶3            Between October 2012 and June 2013, Hartwell owned New
Media Studios in Phoenix, Arizona. Hartwell claimed to provide patrons
with “self-serve” studio space, camera equipment, and “models” for the
purpose of creating amateur pornography. Detectives believed Hartwell
was using the studio as a front for prostitution, and initiated an undercover
investigation.

¶4            Detectives discovered that Hartwell advertised for the studio
mainly on websites commonly associated with prostitution. Many of the
advertisements were for escort services, used terminology typical of
prostitution, and lacked any reference to pornography. Hartwell hired
female “models” to work at the studio, and advertised them based on their
physical appearance, age, and willingness to perform an array of sexual
acts. Hartwell told the “models” that the operation was legal because they
were engaged in pornography, not prostitution.

¶5            Patrons of the studio were required to undergo a “penis
check” to screen for law enforcement, choose from a line-up of “models,”
and pay only in cash. Although Hartwell claimed patrons paid per “scene,”
the payment schedule was based on the type of sexual act provided.



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                           STATE v. HARTWELL
                            Decision of the Court

Hartwell controlled all money received at the studio, determined how to
compensate employees, and paid for the advertisements.

¶6            Patrons were also required to take approximately eight
pornographic images of the “model” with the studio’s unsophisticated
camera equipment. With some exceptions, the “model” or patron would
turn the camera off before engaging in sex acts, and patrons would rarely
request a copy of the pornographic material they created. As a matter of
practice, patrons signed agreements that any content they created was for
their personal use only. Although the studio averaged at least 24 patrons
per day, a relatively minimal number of pornographic images and videos
were stored on electronic devices at the studio, and even fewer were ever
uploaded to a third-party website. Hartwell’s studio did not have an active
website.

¶7            Hartwell required all “models” to engage in sexual acts with
him, acted as though he “owned” them, and was known to be volatile. C.S.
and S.M. worked for Hartwell at the studio. In February 2013, Hartwell
demanded C.S. engage in oral sex with him, pushing his penis into her
mouth with such force that she vomited. In April 2013, Hartwell tied S.M.
to a bed in the studio, choked her, forced his penis into her mouth, and
ripped out her lip and wrist piercings. Although S.M. expressed interest in
bondage, domination, sadism, machoism (“BDSM”), she told Hartwell to
“stop” but he ignored her requests.

¶8            The state charged Hartwell with the following: two counts of
conspiracy to illegally control or conduct an enterprise (class 3 felonies);
two counts of illegal control of an enterprise (class 3 felonies); one count of
pandering (class 5 felony), one count of operating or maintaining a house
of prostitution (class 5 felony); one count of receiving earnings of
prostitution (class 5 felony); one count of sex trafficking (class 2 felony); two
counts of sexual assault, as to C.S. and S.M. (class 2 felonies); and one count
of aggravated assault, as to S.M. (class 6 felony).

¶9            The case proceeded to trial and, at the close of evidence, the
superior court denied Hartwell’s motion for judgment of acquittal under
Ariz. R. Crim. P. (“Rule”) 20. The jury found Hartwell not guilty of the
sexual assault count involving C.S. but found him guilty of all other counts.
The court sentenced him to an aggregate term of 24 years’ imprisonment.
Hartwell appeals.




                                       3
                           STATE v. HARTWELL
                            Decision of the Court

                               DISCUSSION

I.     THE STATE PRESENTED SUFFICIENT EVIDENCE TO SURVIVE
       A RULE 20 MOTION AND TO SUPPORT HARTWELL’S
       CONVICTIONS.

¶10           Hartwell challenges the superior court’s denial of his Rule 20
motion for judgment of acquittal, arguing the jury’s verdicts were not
supported by sufficient evidence. We review the sufficiency of the evidence
de novo, State v. West, 226 Ariz. 559, 562, ¶ 15 (2011), and view the evidence
in the light most favorable to sustaining the verdicts, Valencia, 186 Ariz. at
495.

¶11             A directed verdict of acquittal is appropriate only “if there is
no substantial evidence to support a conviction.” Rule 20(a). “Substantial
evidence is more than a mere scintilla and is such proof that reasonable
persons could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” State v. Landrigan, 176 Ariz.
1, 4 (1993) (citation omitted). We do not reweigh the evidence or determine
the credibility of witnesses, State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App.
2004), or distinguish between direct and circumstantial evidence, State v.
Stuard, 176 Ariz. 589, 603 (1993).

¶12           There was ample evidence that Hartwell hired women to
work as “models” and told them that they would be creating legal
pornography, that his business earned its revenue from the sale of sexual
services, and that he kept the revenue from those services. But the evidence
permitted a reasonable inference that the business was not a genuine studio
for the production of pornographic material—very little video content was
actually produced and customers did not receive full rights to the material
that they could produce. We conclude that the state presented sufficient
evidence to allow a reasonable jury to find that, during the charged dates,
Hartwell: intentionally acted on his own and conspired with others to
control, operate, and maintain an illegal house of prostitution in violation
of A.R.S. §§ 13-1003(A), -2312(A) and (B), and -3208(B); knowingly placed
women in a house of prostitution, intending that they act as prostitutes in
violation of § 13-3209(2); knowingly received and controlled all proceeds
from employees working in his house of prostitution in violation of § 13-
3204; knowingly sex trafficked women over the age of 18 with knowledge
that they would engage in prostitution by deceiving them about the legality
of the operation in violation of § 13-1307(A)(2); intentionally or knowingly
forced S.M. to have oral sexual contact with his penis in violation of § 13-
1406(A); and intentionally placed S.M. in reasonable apprehension of


                                       4
                           STATE v. HARTWELL
                            Decision of the Court

imminent physical injury while she was bound or restrained in violation of
§§ 13-1203(A)(2) and -1204(A)(4).

¶13          Accordingly, sufficient evidence supports the court’s denial
of Hartwell’s Rule 20 motion and therefore also supports Hartwell’s
convictions.

II.    THE COURT ALLOWED HARTWELL TO ARGUE A FIRST
       AMENDMENT-BASED DEFENSE.

¶14           Hartwell contends the superior court erred by preventing him
from presenting his First Amendment defense to the jury. We review the
superior court’s ruling on the admissibility of evidence and refusal to give
a requested jury instruction for an abuse of discretion. State v. Tucker, 215
Ariz. 298, 314, ¶ 58 (2007); State v. Wall, 212 Ariz. 1, 3, ¶ 12 (2006).

¶15          Hartwell was not charged with any expression-related crime.
And because the facts do not demonstrate the studio’s purpose was to
create pornographic content, we need only address the application of First
Amendment principles to prostitution, not pornography.

¶16             The applicability of First Amendment protections to the facts
of a case is a question for the judge, not the jury. Dennis v. United States, 341
U.S. 494, 513 (1951). Here, Hartwell was charged with prostitution-related
crimes, and we have previously held that any communication intended to
“bring about the commission of an act of prostitution” is not protected by
the First Amendment. State v. Crisp, 175 Ariz. 281, 283 (App. 1993). At trial,
Hartwell sought to argue that his conduct constituted First Amendment-
protected expression. And while the superior court precluded Hartwell
from explicitly referring to the First Amendment before the jury, it did
allow him to present extensive testimony and argument that the charged
conduct fell within the legal definition of pornography. The court also
instructed the jury that “[p]ossessing, publishing, presenting, and/or
producing pornography may be lawful in Arizona.” Accordingly, Hartwell
was not prevented from raising a First Amendment-based defense and the
court did not abuse its discretion in precluding any direct reference to the
First Amendment to the jury.

III.   HARTWELL    FAILED TO   RAISE  A   SUCCESSFUL
       UNCONSTITUTIONAL OVERBREADTH CLAIM UNDER THE
       FIRST AMENDMENT.

¶17          Hartwell contends that the superior court erred by denying
his motion to dismiss, in which he claimed that Arizona’s prostitution-


                                       5
                           STATE v. HARTWELL
                            Decision of the Court

related statutes are unconstitutionally overbroad under the First
Amendment. We review claims involving the application of a statute de
novo. See State v. Russo, 219 Ariz. 223, 225, ¶ 4 (App. 2008).

¶18            A litigant may challenge a statute’s constitutionality for
overbreadth under the First Amendment even if his conduct or expression
is not constitutionally protected and clearly falls within the statute’s
“plainly legitimate sweep.” Hill v. Colorado, 530 U.S. 703, 731–32 (2000);
State v. Steiger, 162 Ariz. 138, 143–44 (App. 1989). To raise a successful
overbreadth claim, the challenging party must demonstrate a “realistic
danger that the statute will significantly jeopardize recognized first
amendment protections of individuals not before the court.” Steiger, 162
Ariz. at 144 (citation omitted).

¶19            Under A.R.S. § 13-3211(5), “‘[p]rostitution’ 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.” As stated
above, the courts have not recognized any constitutionally protected right
to engage in prostitution or commercial sexual conduct, so Hartwell’s
conduct is within the legitimate scope of the statute. See State v. Freitag, 212
Ariz. 269, 271, ¶ 8 (App. 2006) (prostitution ordinance did not affect
fundamental liberty). We have specifically rejected claims that prostitution
statutes violate First Amendment principles. State v. Savio, 186 Ariz. 487,
489 (App. 1996) (prostitution ordinance does not abridge protected
activity); Crisp, 175 Ariz. at 283 (prostitution ordinance does not abridge
protected speech); State v. Taylor, 167 Ariz. 429, 432–34 (App. 1990)
(statutory definition of prostitution did not abridge freedom of theatrical
expression). And Hartwell has not met his burden of establishing a realistic
danger that the state’s definition of prostitution will significantly jeopardize
somebody’s constitutional right to create pornography. We therefore
decline to analyze the hypothetical case of a prosecuted pornographer here.
See Taylor, 167 Ariz. at 434 (leaving a first amendment overbreadth analysis
“for the case, if it ever arises, where prosecutorial discretion under A.R.S.
§ 13-3211(5) is abused”).

¶20           In relevant part, Hartwell was convicted of violating A.R.S. §§
13-3204 (receiving earnings of a prostitute), -3208(B) (operating a house of
prostitution), -3209(A)(2) (pandering), and -1307(A)(2) (sex trafficking).
Because such statutes have already been held not to jeopardize recognized
First Amendment protections, and because he otherwise failed to establish
a realistic danger that the statutes would be unconstitutionally enforced,
Hartwell’s overbreadth argument fails. Accordingly, the court did not err
by denying his motion to dismiss.


                                       6
                           STATE v. HARTWELL
                            Decision of the Court

IV.    THE COURT DID NOT ERR BY DENYING HARTWELL’S
       MOTION TO SEVER THE ASSAULT-RELATED OFFENSES.

¶21           Hartwell challenges the superior court’s denial of his motion
to sever the assault-related offenses involving S.M. and C.S. from the
prostitution-related offenses. Though Hartwell concedes that his original
motion to sever was untimely, he argues his timely renewal of the motion
entitles him to review for abuse of discretion. We disagree.

¶22            If the original motion to sever is not timely made, the issue is
waived on appeal. See Rule 13.4(c); see also State v. Laird, 186 Ariz. 203, 206
(1996). Renewal does not, as Hartwell suggests, ameliorate a defendant’s
previous non-compliance with Rule 13.4(c). See State v. Archer, 124 Ariz.
291, 293 (App. 1979). We therefore review only for fundamental error. See
State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018).

¶23            Joinder is favored, and the defendant carries the burden of
showing that a refusal to grant severance caused him prejudice. State v.
Cruz, 137 Ariz. 541, 544 (1983). “Prejudice from a failure to sever is unlikely
[i]f the evidence of one crime would have been admissible in a separate trial
for the others.” State v. Johnson, 212 Ariz. 425, 430, ¶ 11 (2006) (citation
omitted).

¶24           Here, the evidence presented at trial showed that Hartwell
operated a house of prostitution and, in doing so, was known to be volatile,
aggressive, and acted as though he “owned” his female employees. S.M.
and C.S. worked for Hartwell in the house of prostitution, and Hartwell
used his role as their supervisor to commit the assault-related offenses. All
of the offenses occurred during the same time period. Because of the
interwoven backgrounds of the offenses, the evidence would have been
cross-admissible in creating a “complete picture” of all of the offenses. See
State v. Via, 146 Ariz. 108, 115 (1985). Hartwell has not shown joinder
caused him prejudice. We find no fundamental error.

V.     REASONABLE EVIDENCE SUPPORTS THE COURT’S DENIAL OF
       HARTWELL’S MOTION FOR MISTRIAL.

¶25           Hartwell next contends that the superior court erred by
denying his motion for mistrial after the state elicited testimony about an
incident involving a baseball bat. He argues that the testimony was
prejudicial prior-bad-act evidence barred by Ariz. R. Evid. 404(b).

¶26         We review the court’s denial of a motion for mistrial for an
abuse of discretion. State v. Ferguson, 149 Ariz. 200, 211 (1986). “A


                                      7
                          STATE v. HARTWELL
                           Decision of the Court

declaration of a mistrial is the most dramatic remedy for trial error and
should be granted only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” State v. Adamson, 136 Ariz.
250, 262 (1983). When questions asked in cross-examination “open[ ] the
door” to otherwise objectionable testimony, we find no trial error. State v.
Leyvas, 221 Ariz. 181, 189, ¶ 25 (App. 2009) (citation omitted).

¶27             On cross-examination, Hartwell’s counsel asked witnesses
whether they observed him using or threatening the use of violence. Later,
the state elicited testimony from two former employees that Hartwell was
a particularly difficult supervisor and they separately observed him
threaten or hit an employee with a baseball bat. Although the court denied
Hartwell’s motion for mistrial and permitted testimony that he chased an
employee with a baseball bat, the court sustained an objection and struck
testimony that he hit an employee with the bat. Upon Hartwell’s request,
the court provided a curative instruction that the jury must disregard any
statements stricken from the record.

¶28           Hartwell’s trial strategy placed his use of threats or
intimidation at issue, making such testimony relevant, even if it was
objectionable. See Leyvas, 221 Ariz. at 189, ¶ 25. We therefore defer to the
superior court’s assessment of the testimony that was not struck from the
record, and, as to the testimony that was struck, we presume the jury
followed the curative instructions. See State v. Prince, 204 Ariz. 156, 158,
¶ 9 (2003).

VI.   WE PRESUME THE VIDEO EVIDENCE SUPPORTED THE
      COURT’S DECISION TO PRECLUDE IT.

¶29          Hartwell argues the court abused its discretion by precluding
video recordings that allegedly corroborated his claim that all conduct with
S.M. was consensual.

¶30            It is the appellant’s duty to see that the record is complete.
State v. Zuck, 134 Ariz. 509, 512–13 (1982). “Where matters are not included
in the record on appeal, the missing portions of the record will be presumed
to support the action of the trial court.” Id. at 513.

¶31            The superior court allowed Hartwell to admit certain video
surveillance recordings, which show S.M. without any visible signs of
distress or injuries in the minutes before and after the sexual assault and
aggravated assault were alleged to have occurred. Hartwell testified that
the admitted video corroborated his claim that all of the conduct with S.M.
was consensual. Hartwell also sought to admit video surveillance that was


                                     8
                          STATE v. HARTWELL
                           Decision of the Court

recorded one week before the offenses, arguing that those recordings
further depicted S.M.’s interest in sadomasochistic conduct and could be
used to impeach S.M’s testimony that she did not help set up the BDSM
room. The superior court precluded the earlier recordings, finding that
they were not relevant. Though offered by Hartwell at trial, the precluded
recordings were not made part of the record on appeal.

¶32           Without being able to review the content of the precluded
videos, we must presume that they support the court’s conclusion that they
were not relevant. See id. On this basis alone, we find that the court did not
err by precluding the video. Moreover, Hartwell played recordings of S.M.
from the date of the offenses and testified they corroborated his defense.
This, coupled with testimony from S.M. that she expressed interest in
sadomasochistic conduct before the offenses occurred, would make the
additional recordings cumulative and any error would not be reversible.
See State v. Dunlap, 187 Ariz. 441, 456–57 (App. 1996) (holding that
erroneous exclusion of cumulative evidence did not require reversal).

                              CONCLUSION

¶33           We affirm Hartwell’s convictions and sentences.




                         AMY M. WOOD • Clerk of the Court
                          FILED: AA




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