                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


             STATE OF ARIZONA, Appellee/Cross-Appellant,

                                   v.

          BUREN JARRETT BURGESS, Appellant/Cross-Appellee.

                         No. 1 CA-CR 16-0857
                         No. 1 CA-CR 16-0923
                           (Consolidated)
                           FILED 8-7-2018


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201401170
                 The Honorable Tina R. Ainley, Judge

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS MODIFIED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee/Cross-Appellant

Law Offices of Neal W. Bassett, Phoenix
By Neal W. Bassett
Counsel for Appellant/Cross-Appellee
                             STATE v. BURGESS
                             Opinion of the Court



                                  OPINION

Presiding Judge Randall M. Howe delivered the opinion of the Court, in
which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


H O W E, Judge:

¶1             Buren Jarrett Burgess appeals his convictions and sentences
for two counts of child prostitution. Among other issues, we address in this
opinion whether A.R.S. § 13–3212(C), which provides that “[i]t is not a
defense to a prosecution [for child prostitution] that the other person is a
peace officer posing as a minor . . .” is unconstitutional because it lacks a
rational basis in a prosecution for in-person solicitation of a child prostitute.
We also address whether A.R.S. § 13–703(L)’s mandate that a defendant’s
prior felony convictions for offenses “committed on the same occasion” be
counted as only one conviction applies to a defendant subject to sentencing
under A.R.S. § 13–3212.

¶2            We hold that A.R.S. § 13–3212(C) is constitutional and that it
applies to all types of solicitation. We also hold that A.R.S. § 13–703(L)’s
mandate does not apply when a defendant is sentenced under A.R.S. § 13–
3212 because § 13–3212 does not include any limitation on how prior felony
convictions are counted. We therefore affirm Burgess’s convictions and
affirm his sentences as modified.

                 FACTS AND PROCEDURAL HISTORY

¶3            We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Burgess. See State v.
Causbie, 241 Ariz. 173, 175 ¶ 2 (App. 2016). In November 2014, Burgess
called and texted telephone numbers posted in online advertisements
offering the services of two female escorts. The advertisements listed the
escorts’ ages as 18 and contained explicit sexual content. “Brittany” and
“Jennifer” responded to Burgess’s calls and texts and asked Burgess if he
wanted the services of two girls; he answered that he did. Unbeknownst to
Burgess, the two were undercover police officers posing as child
prostitutes.

¶4          “Brittany” and “Jennifer” informed Burgess that they were 16
years old and that spending one-half hour with both would cost $160.



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Burgess confirmed with the “girls” that they were not police officers, but he
hesitated and stated that he wanted an 18-year-old escort. Burgess
ultimately agreed to meet the two “girls” at their hotel room to “hang out.”
Jennifer told Burgess that she would reduce the price if he brought
cigarettes because “we’re pretty young and obviously we can’t buy
cigarettes[.]” Burgess did so.

¶5           After Burgess arrived at the hotel room, the “girls” asked
what he “wanted,” and Burgess replied that he would like them to “do stuff
to him.” He paid Jennifer $150, handed her the cigarettes, and agreed to
wear a condom once they “began having sex.” As Burgess undressed, the
“girls” went into the bathroom to change clothes. Police officers then
stormed into the room and took Burgess into custody.

¶6             The State charged Burgess with two counts of child
prostitution under A.R.S. § 13–3212(B)(2), class 2 felonies, alleging that he
knowingly engaged in prostitution with the women, believing they were
between 15 and 17 years old. Before trial, Burgess moved for a jury
instruction on prostitution as a lesser-included offense of child prostitution.
The prosecutor agreed that an instruction on “misdemeanor prostitution”
was appropriate. After the court indicated that the instruction would be
given, defense counsel requested guidance on how the parties should refer
to the lesser-included offense because the prosecutor had referred to it as
“misdemeanor prostitution.” The court clarified that the classification
should not be referred to and the prosecutor acknowledged that he “should
not have referred to [the lesser-included offense] that way.”

¶7            During Burgess’s cross-examination of the undercover officer
who posed as Brittany, counsel asked if she agreed that child prostitution
was a more serious situation than adult prostitution, and she agreed. The
officer also agreed that an act of prostitution occurred and that the only
issue was whether the prostitution was child or adult prostitution. Counsel
then asked, “do you understand that adult prostitution is a lesser-included
offense of child prostitution[,]” and the officer responded that “[adult]
[p]rostitution is a misdemeanor, and child prostitution is a felony.” Counsel
followed up by stating that prostitution with an adult “is just a
misdemeanor” but “[i]s a felony” if done with a child; the undercover
officer agreed.

¶8            After the close of evidence, the court instructed the jury that
“[i]n deciding whether the defendant is guilty or not guilty, do not consider
the possible punishment” and provided a lesser-included offense
instruction. The jury found Burgess guilty as charged. During sentencing,


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                             Opinion of the Court

the State argued that Burgess had two historical prior felony convictions
from 1997 and therefore should be sentenced under A.R.S. § 13–3212(I)(3).
The State contended that although the 1997 offenses occurred on the same
date and involved the same victim, A.R.S. § 13–3212 did not contain “any
language indicating that prior convictions for two or more offenses
committed on the same occasion shall be counted as only one conviction.”
The court disagreed and determined that Burgess’s two prior felonies
amounted to only one historical prior felony under A.R.S. § 13–703(L), the
repetitive offender sentencing statute. After finding that Burgess was on
probation when he committed the current offenses, the court imposed
consecutive presumptive sentences of 15.75 years’ imprisonment. Burgess
timely appealed and the State timely cross-appealed.

                                DISCUSSION

              1. Sufficiency of Evidence

¶9             Burgess argues that insufficient evidence supports his
convictions because he “never agreed to engage in sexual activity until he
saw the decoy prostitutes, who were 27 years old and looked it.” He
contends that although he was guilty of adult prostitution, he was not
guilty of child prostitution. We review claims of insufficient evidence de
novo. State v. West, 226 Ariz. 559, 562 ¶ 15 (2011). The “relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (internal
quotation marks omitted). “Reversible error based on insufficiency of the
evidence occurs only where there is a complete absence of probative facts
to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424–25 (1976)).

¶10          A person 18 years old or older commits child prostitution by
knowingly “[e]ngaging in prostitution with a minor who the person knows
or should have known is fifteen, sixteen or seventeen years of age.” A.R.S.
§ 13–3212(B)(2).1 “‘Prostitution’ means engaging in or agreeing or offering



1      In 2017, the legislature amended the statute by changing the name of
the offense to “child sex trafficking.” 2017 Ariz. Sess. Laws, ch. 167, § 10 (1st
Reg. Sess.). In all other respects material here, the statute remains
unchanged from the time Burgess committed the offenses in 2014. See 2014
Ariz. Sess. Laws, ch. 151, § 7 (2nd Reg. Sess.). Accordingly, we cite the



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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). “It is not
a defense to a prosecution” under subsection (B)(2) “that the other person
is a peace officer posing as a minor or a person assisting a peace officer
posing as a minor.” A.R.S. § 13–3212(C).

¶11            Sufficient evidence supports Burgess’s child prostitution
convictions. Burgess responded to advertisements suggesting sexual
experiences with girls who were “youngsters” and who subsequently
informed him that they were 16 years old. And by agreeing to purchase
cigarettes for the “girls,” Burgess demonstrably acted on his belief that they
were under 18 years old and unable to purchase the cigarettes themselves.
Further, although Burgess did not expressly discuss sexual activity with the
“girls” on the telephone, the language contained within the advertisements,
along with his agreement to pay them $160 for 30 minutes of their time,
reasonably implies that his desire to “hang out” with the “girls” included
engaging in sexual conduct. Burgess’s asking if the “girls” were police
officers bolsters this inference; such a question would be unnecessary if he
truly intended his encounter with the putative underage “girls” to be
nothing more than an innocent get-together. Accordingly, the jury could
reasonably conclude that Burgess committed child prostitution by offering
to engage in sexual conduct under a fee arrangement with “girls” that he
believed were 16 years old. Because Burgess completed the offense when
he agreed to pay for their services, he committed the offenses before he saw
the “girls.” Thus, whether they appeared to be over 18 years old when he
saw them in person does not affect the sufficiency of the evidence
supporting his convictions.

              2. A.R.S. § 13–3212(C)

¶12           Burgess next argues that A.R.S. § 13–3212(C) is
unconstitutional because it lacks a rational basis in a prosecution for in-
person solicitation of a child prostitute because the “defendant can see for
himself that the prostitute is an adult.” We review the constitutionality of a
statute de novo. State v. Maestas, 244 Ariz. 9, 12 ¶ 6 (2018). “When the statute
in question involves no fundamental constitutional rights or distinctions
based on suspect classifications, we presume the statute is constitutional
and will uphold it unless it clearly is not.” Id. Burgess bears the burden of
overcoming the statute’s presumed constitutionality by a “clear showing of


current version with the understanding that, for purposes here, “child sex
trafficking” and “child prostitution” refer to the same criminal offense.



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arbitrariness or irrationality.” State v. Hammonds, 192 Ariz. 528, 532 ¶ 9
(App. 1998). Burgess cannot satisfy his burden.

¶13            Burgess challenges A.R.S. § 13–3212(C), which states, “[i]t is
not a defense to a prosecution [for child prostitution] that the other person
is a peace officer posing as a minor or a person assisting a peace officer
posing as a minor.” Under the rational basis test, we will uphold a statute
when it is rationally related to a legitimate government purpose. State v.
Navarro, 201 Ariz. 292, 976 ¶ 25 (2001). The legislature need not choose the
most effective or least intrusive means of achieving its goals. Hammonds,
192 Ariz. at 532 ¶ 15. Burgess does not argue that the legislature lacks a
legitimate government purpose in protecting children from child
prostitution. Instead, he argues only that “it is irrational for a law to permit
the police and prosecutors . . . to convict people for child prostitution, when
the defendant[ was] dealing face-to-face” with an undercover officer.

¶14            He is incorrect. We agree with the State that a rational basis
exists to use undercover police officers to combat child prostitution,
regardless whether the solicitation occurs online or in person. Using
undercover police officers in sting operations helps ensure that the people
soliciting child prostitutes are stopped. The legislature could have
rationally believed that using undercover officers and other persons posing
as minors would achieve its goal of protecting children from being sexually
exploited. As such, Burgess has failed to make a clear showing of
arbitrariness or irrationality.

¶15            Burgess contends that we need not address his constitutional
challenge to A.R.S. § 13–3212(C) if we hold that it applies only to non-in-
person solicitations. But as discussed above, the statute is constitutional.
Notwithstanding our holding, Burgess’s argument still fails because as a
matter of judicial restraint and standard principles of statutory
construction, we will not “judicially impose a requirement the legislature
has intentionally chosen not to require.” See Hart v. Hart, 220 Ariz. 183, 187
¶ 17 (App. 2009). Here, the child prostitution statute does not distinguish
between in-person and other solicitations, reflecting the legislature’s intent
to treat the various modes of solicitation similarly even though the “child”
is actually an undercover police officer. See State v. Peek, 219 Ariz. 182, 184
¶ 11 (2008) (statutory language is the best indication of the legislature’s
intent). Therefore, Burgess’s argument is without merit.




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                            Opinion of the Court

              3. Statement Regarding Adult Prostitution

¶16           Burgess argues that his convictions “should be reversed
because a state witness disclosed that the lesser-included offense was a
misdemeanor,” which violated the trial court’s decision not to refer to either
offense’s classification. He contends that the undercover officer’s answer,
“[p]rostitution is a misdemeanor, and child prostitution is a felony[]”
amounted to fundamental error. Because Burgess did not object at trial, we
review only for fundamental error. See Henderson, 210 Ariz. at 567 ¶ 19.

¶17              No fundamental error occurred. During defense counsel’s
cross-examination of the undercover officer, he elicited the challenged
testimony directly. Although counsel began by asking the undercover
officer if child prostitution was more serious than adult prostitution, he did
not stop there. He then asked the officer if she understood that adult
prostitution was a lesser-included offense of child prostitution. When the
officer answered that adult prostitution was a misdemeanor, Burgess not
only failed to object to the testimony, but his follow-up questions
emphasized the different classes of child and adult prostitution, thereby
arguably inviting whatever error occurred. See State v. Stuard, 176 Ariz. 589,
601 (1993) (holding that any error in witness’s testimony was invited
because of the “broad question posed to him” by defense counsel).

¶18             In any event, the court did not err, much less fundamentally
so, by failing to sua sponte take some remedial action—which Burgess does
not specify—in response to the challenged testimony. The witness simply
replied to Burgess’s questioning in the manner she had every reason to
believe fully answered the question. Further, the court properly instructed
the jury that adult prostitution is a lesser-included offense and admonished
the jurors not to consider punishment during their deliberations. See State
v. Blackman, 201 Ariz. 527, 543 ¶ 65 (App. 2002) (noting that the trial court
appropriately instructed the jurors that they were not to consider
punishment in reaching their verdict); State v. Miranda, 198 Ariz. 426, 428
¶ 9 (App. 2000) (“A lesser-included-offense instruction is proper only if
(1) the lesser offense is composed of some, but not all, of the elements of the
greater crime so that it is impossible to commit the greater without
committing the lesser offense, and (2) the evidence supports an instruction
on the lesser offense.”). Presuming, as we must on this record, that the jury
followed its instruction to not consider punishment, see Blackman, 201 Ariz.
at 543 ¶ 65 (jurors are presumed to follow the trial court’s instruction not to
consider punishment in deciding guilt), Burgess cannot satisfy his burden
of establishing prejudice. Therefore, the court did not err and Burgess
suffered no prejudice.


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              4. The State’s Cross-Appeal: Sentences

¶19           The State, as it did at sentencing, argues that the court should
have imposed 28-year sentences. According to the State, the court erred in
determining that Burgess’s two historical prior felony convictions
constituted only one historical prior felony conviction for sentencing
purposes. Questions of law such as this are reviewed de novo. State ex rel.
Polk v. Campbell, 239 Ariz. 405, 406 ¶ 4 (2016); State v. Hollenback, 212 Ariz.
12, 16 ¶ 12 (App. 2005) (“Whether the trial court applied the correct
sentencing statute is a question of law, which we review de novo.”).

¶20            The trial court erred in sentencing Burgess as if he had only
one historical prior felony conviction. The trial court found that Burgess’s
two convictions in 19972 amounted to only one historical prior felony
conviction under A.R.S. § 13–703(L), the repetitive offender sentencing
statute, because the offenses were “committed on the same occasion[.]” See
A.R.S. § 13–703(L) (“Convictions for two or more offenses committed on the
same occasion shall be counted as only one conviction for the purposes” of
sentencing under § 13–703.). Thus, the trial court sentenced Burgess under
A.R.S. § 13–3212(I)(2) to consecutive presumptive sentences of 15.75 years’
imprisonment for a person convicted of child prostitution who has one
historical prior felony conviction.

¶21               This was error. Although A.R.S. § 13–703(L), the sentencing
statute that applies generally to all repetitive offenders, requires that
offenses “committed on the same occasion” be deemed as one prior felony
conviction, the sentencing statute that governs child prostitution offenses
specifically provides otherwise. Section 13–3212(I) states that if the minor is
15, 16, or 17 years old, child prostitution under A.R.S. § 13–3212(B)(2) is a
class 2 felony and “the person convicted shall be sentenced pursuant to this
section . . . .” (Emphasis added). This section provides that if a person with
two or more historical prior convictions is found guilty of engaging in
prostitution with a minor who is 15, 16, or 17 years old, the person faces a
sentencing range of a minimum sentence of 21 years, a presumptive
sentence of 28 years, and a maximum sentence of 35 years. A.R.S. § 13–
3212(I)(3). Because A.R.S. § 13–3212(I)(3) specifically applies to persons

2      Burgess served a 17-year prison term for one of the convictions to be
followed by lifetime probation for the other conviction. He committed the
offenses in this case seven months after he was released. Thus, given
Burgess’s intervening incarceration, his prior convictions fit within the time
requirements to be considered historical prior felony convictions for
sentencing purposes. See A.R.S. § 13–105(22)(b), (c).


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                            Opinion of the Court

convicted of child prostitution who have prior felony convictions and
A.R.S. § 13–703(L) applies only generally to all repetitive offenders, A.R.S.
§ 13–3212(I)(3) governs Burgess’s sentencing. See State v. Johnson, 240 Ariz.
402, 405 ¶ 13 (App. 2016) (specific statutes control over general statutes).
Section 13–3212 lacks any language indicating that prior felony convictions
for two or more offenses committed on the same occasion shall be counted
as only one conviction; therefore, the trial court erred in counting Burgess’s
two historical prior felony convictions as one. Burgess should have been
sentenced under A.R.S. § 13–3212(I)(3) as a person with two or more
historical prior felony convictions.

¶22           Burgess need not be resentenced, however. Burgess and the
State agree that he must be sentenced to presumptive consecutive terms
because Burgess was on probation when he committed the current offenses
and the State did not prove any aggravating circumstances. See A.R.S.
§§ 13–708(A); –701(C). Accordingly, pursuant to this Court’s authority
under A.R.S. § 13–4038, we amend the sentencing minute entry to reflect
that Burgess is sentenced to presumptive consecutive terms of 28 years’
imprisonment.

                              CONCLUSION

¶23          For the foregoing reasons, Burgess’s convictions are affirmed
and his sentences are hereby modified as indicated.




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




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