                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                          v.

              SAMUEL BRETT WESLEY BASSETT, Appellant.

                              No. 1 CA-CR 12-0239
                               FILED 03/04/2014


            Appeal from the Superior Court in Yavapai County
                        No. V1300CR201180151
                 The Honorable Michael R. Bluff, Judge

                                    AFFIRMED


                                    COUNSEL

White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Appellant


Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee
                           STATE v. BASSETT
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined.


B R O W N, Judge:

¶1            Samuel Brett Wesley Bassett appeals from his convictions
and sentences for multiple counts of sexual exploitation of a minor, luring
of a minor for sexual exploitation, and aggravated luring of a minor for
sexual exploitation. Bassett argues that (1) the evidence was insufficient to
support the convictions for luring and aggravated luring; (2) the State
committed prosecutorial misconduct by misstating the law; (3) the luring
and aggravated luring statutes are unconstitutionally overbroad; and (4)
the trial court abused its discretion in denying his request for a Frye 1
hearing and allowing expert testimony. For the reasons set forth below,
we affirm.

                             BACKGROUND

¶2           Detective Pamela Edgerton received information that an
individual using the name “Brett Dodge” had uploaded images of child
pornography to a Facebook account. Edgerton traced the IP address of
the account to an apartment complex in Prescott and determined that
Bassett was Brett Dodge.

¶3            Posing as a 13-year-old girl named “Brenna,” Edgerton
initiated contact by “friending” Bassett on Facebook. Bassett accepted and
for the next several weeks they participated in online chats. Despite the
fact that her Facebook page indicated Brenna was 13 years old and she
told Bassett that was her age in their chats, Bassett initiated and engaged
in sexually explicit conversations with Brenna. During their chats, Bassett
also sent Brenna pornographic photographs and videos, some of which
included children.



1     Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).




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                           STATE v. BASSETT
                           Decision of the Court

¶4            Pursuant to a search warrant, Edgerton seized three thumb
drives found in a safe, one of which contained numerous images of child
pornography. Some of the images on the thumb drive matched the
pornographic images that had been uploaded by Brett Dodge on
Facebook. Officers also seized Bassett’s computer, and a search of his
internet history revealed search terms that are commonly used when
searching for child pornography.

¶5            A jury convicted Bassett on eleven counts of sexual
exploitation of a minor, two counts of luring of a minor for sexual
exploitation, and twenty-seven counts of aggravated luring of a minor for
sexual exploitation. The trial court sentenced Bassett to aggregate prison
terms of 202 years and this timely appeal followed.

                              DISCUSSION

I.    Sufficiency of Evidence

¶6             Bassett argues that the State did not provide sufficient
evidence to support his convictions for “luring” and “aggravated luring”
of a minor for sexual exploitation. Specifically, Bassett asserts that the
State did not prove that his intent was “to achieve the result of engaging
in sexual conduct” with Brenna and therefore the evidence at trial was
insufficient to sustain the convictions.

¶7            “The question of sufficiency of the evidence is one of law,
subject to de novo review on appeal.” State v. West, 226 Ariz. 559, 562,
¶ 15, 250 P.3d 1188, 1191 (2011). We review the sufficiency of the evidence
at trial only to determine whether substantial evidence supports the
convictions and view the facts in the light most favorable to sustaining the
jury’s verdicts. State v. Cox, 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269
(2007) (internal quotations and citations omitted). “Substantial evidence is
evidence that ‘reasonable persons could accept as sufficient to support a
guilty verdict beyond a reasonable doubt.’” Id. (citation omitted).
Substantial evidence may be direct or circumstantial, and it is well
established that each has equal probative value. State v. Pettit, 194 Ariz.
192, 197, ¶ 23, 979 P.2d 5, 10 (App. 1998).

¶8           To convict Bassett of luring, the State was required to prove
he lured “a minor for sexual exploitation by offering or soliciting sexual
conduct with another person knowing or having reason to know that the




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                            STATE v. BASSETT
                            Decision of the Court

other person is a minor or a person posing as a minor.” 2 Ariz. Rev. Stat.
(“A.R.S.”) § 13-3554. To convict Bassett of aggravated luring, the State
was required to prove, in addition to the elements of luring, that with
knowledge of the “character and content of the depiction,” he used an
electronic device to transmit material that is harmful to minors. A.R.S.
§ 13-3560(A)(1).

¶9              Bassett’s argument appears to turn on the fact that, unlike
other cases in which an undercover officer stages a meeting between the
putative minor and the defendant, no such meeting occurred in this case.
He maintains that because he “rebuffed” Edgerton and Edgerton “was
never able to get him to meet her,” the State failed to present any evidence
that his “intent was to achieve the result of engaging in sexual conduct
with Brenna.” But the plain language of A.R.S. § 13-3554 does not require
proof that a defendant has the intention to “follow through with” or
“consummate” an offer or solicitation of sexual conduct with a minor.
Rather, 13-3554 “expressly prohibits requesting sexual conduct with a
minor.” State v. Hollenback, 212 Ariz. 12, 14, ¶ 5, 126 P.3d. 159, 161 (App.
2005). As such, “[t]he criminal act occurs whether or not it leads to sexual
exploitation.” Id. at 14, ¶ 5, 126 P.3d. at 161. Stated differently, the
criminal act is completed when a defendant “offers” or “solicits” sexual
conduct with someone he knows or should have known is a minor. See id.
(noting that “[h]ad the legislature intended to restrict the offense to
conduct violating § 13-3553, it could easily have included language to that
effect”); see also State v. Yegan, 223 Ariz. 213, 217, ¶ 13, 221 P.3d 1027, 1031
(App. 2009) (recognizing, for jurisdictional purposes, that the crime of
luring of a minor was completed when the defendant solicited the minor
from his computer in California, prior to any meeting between the
defendant and the minor).

¶10            Additionally, the mere fact that Bassett here did not actually
meet with Brenna prior to his arrest does not indicate, as Bassett
maintains, that there was no evidence of a “real” offer or solicitation and
that the State secured his convictions without having to demonstrate some
degree of wrongful intent on his part. As we explained in Yegan, “the
proper inquiry is whether substantial evidence exists for a jury to
reasonably and fairly conclude that the defendant in fact solicited or
offered to engage in sexual conduct with a minor.” 223 Ariz. at 220, ¶ 28,

2     Bassett does not challenge the sufficiency of the evidence showing
that he knew or should have known Brenna was a minor within the
meaning of A.R.S. §§ 13–3554 and -3560.



                                       4
                           STATE v. BASSETT
                           Decision of the Court

221 P.3d at 1034. “Jurors are well-suited, given their varied life
experiences, to evaluate a conversation as a whole and decide whether the
particular words and phrases spoken can reasonably be interpreted as []
offering or soliciting sexual conduct with a minor.” See id.

¶11          In this case, the jury was presented with Bassett’s
conversations between him and Brenna, in which Bassett made explicit
comments about engaging in sexual conduct. Bassett’s communication of
these words to Brenna via his computer, coupled with the images and
videos he transmitted to her, was sufficient to allow a reasonable person
to find beyond a reasonable doubt that Bassett offered or solicited sexual
conduct with Brenna and therefore committed the crimes of luring and
aggravated luring. See id. at 220-21, ¶¶ 28-29, 221 P.3d at 1034-35 (finding
that the words the defendant communicated by computer to an
undercover officer were sufficiently explicit to support convictions for
luring a minor).

II.    Prosecutorial Misconduct

¶12          During his closing argument, the prosecutor stated:

       Again, he is offering or soliciting through these comments,
       things that no 35-year-old man should be saying to a 13 year
       old, that he is available and he wants to perform this
       conduct with her. Whether or not – again, the elements
       don’t require that [the defendant] has an intention to
       actually follow through on this. The law criminalizes just
       offering it or soliciting it from a young person.

Bassett argues that this argument constituted misconduct because the
prosecutor misstated the law. Bassett concedes, however, that he did not
raise this objection before the trial court and that we need only review for
fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d
601, 607 (2005). It therefore rests with defendant to prove both that
fundamental error exists and that the error caused him prejudice. Id. at
567, ¶ 20, 115 P.3d at 607. As noted above, the plain language of A.R.S.
§§ 13-3554 and -3560 does not require the State to prove that a defendant
also intended to actually engage in sexual activity with the targeted
minor. Thus, the prosecutor did not misstate the law.

III.   Constitutionality of A.R.S. §§ 13-3554 and 13-3560

¶13         Bassett argues that if the State is not required to prove that
he intended to “follow through” with actual sexual conduct, then the


                                     5
                           STATE v. BASSETT
                           Decision of the Court

statutes are overbroad because they criminalize free speech in violation of
the First Amendment of the United States Constitution. He acknowledges
he did not raise this issue before the trial court and therefore we are
limited to a fundamental error review. Henderson, 210 Ariz. at 567, ¶ 19,
115 P.3d at 607.

¶14            Regardless whether §§ 13-3554 and -3560 implicate speech,
they do not regulate or criminalize any level of “protected” speech
because there is no First Amendment right to speech that encourages or
solicits a minor child to engage in sexual conduct with an adult. See, e.g.,
United States v. Tykarsky, 446 F.3d 458, 473 (3rd Cir. 2006) (“There is no
First Amendment right to persuade minors to engage in illegal sex acts.”);
United States v. Rowley, 899 F.2d 1275, 1278 (2d Cir. 1990) (“Speech is not
protected by the First Amendment when it is the very vehicle of the crime
itself.”); United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004)
(“Speech attempting to arrange the sexual abuse of children is no more
constitutionally protected than speech attempting to arrange any other
type of crime.”).        Furthermore, the statutes do not criminalize
hypothetically protected speech because they specifically limit criminal
liability to those instances in which an adult engages in communication
with someone he knows or has reason to know is a minor. Accordingly,
the statutes at issue are not unconstitutionally overbroad.

IV.   Admission of Expert Testimony

¶15           Prior to trial, the prosecutor gave notice of the State’s
intention to call Kathryn Coffman, M.D., and Leslie Quinn, M.D., both
experts in pediatrics and child development, to testify at trial concerning
the ages of the children depicted in the pornographic images and videos
Bassett downloaded and/or sent to Brenna. Bassett filed a motion for a
Frye hearing to determine the admissibility of the witnesses’ expert
testimony. In opposition, the State argued that because the expert
testimony was based on the doctors’ individual training and experience as
“medical doctors, pediatricians who specialize in children who have been
abused,” their testimony was admissible pursuant to Logerquist v. McVey,
196 Ariz. 470, 1 P.3d 113 (2000), without the need for a Frye hearing.

¶16           At the time of the Frye motion, defense counsel had received
copies of the doctors’ reports but had not requested copies of their
curricula vitae (“CV”) and had not yet interviewed them. The trial court
denied Bassett’s motion for the Frye hearing, but ordered the prosecutor to
provide defense counsel with copies of the doctors’ CV’s.




                                     6
                            STATE v. BASSETT
                            Decision of the Court

¶17            Bassett concedes that Coffman and Quinn were qualified to
testify as experts in the field of pediatrics, but maintains that the trial court
nonetheless abused its discretion in admitting their testimony without
holding a hearing because: (1) their testimony was not helpful to the jury;
(2) their opinions were based on faulty scientific methods or principles;
and (3) they did not properly apply accepted principles and methods. In
particular, Bassett takes issue with the doctors’ use of the “Tanner stages
of maturity” (“Tanner stages”) 3 in their assessment of the chronological
ages of the children depicted in the photographic images and videos. He
contends that their use of the Tanner stages to arrive at their opinion of
the ages “based purely on pictures without any physical examination”
was insufficient to comport with Rule 702(b) of the Arizona Rules of
Evidence. We review a superior court’s ruling on the admissibility of
evidence for abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49, ¶ 29, 97
P.3d 865, 874 (2004).

¶18            Not all expert testimony is necessarily subject to a Frye
analysis and a Frye hearing is not automatically required each time
scientific evidence is offered. State v. Speers, 209 Ariz. 125, 130, ¶ 18, 98
P.3d 560, 565 (App. 2004). Our supreme court has stated that a Frye test
applies only to opinion testimony that is based on “novel scientific
principles, formulae, or procedures developed by others.” Logerquist, 196
Ariz. at 490, ¶ 62, 1 P.3d at 133. Frye is inapplicable if a witness reaches a
conclusion “by inductive reasoning based on his or her own experience,
observation, or research.” Id. Both Coffman and Quinn testified that their
assessments of the developmental age of the children pictured were based
on their own personal training and research and extensive experience
gathered in the course of treating thousands of children. Thus, the trial
court did not abuse its discretion in declining to conduct a hearing. 4


3     This information derives from a statistical study published in 1965
by Professor James Tanner regarding stages of development in children.

4      Arizona Rule of Evidence 702 was amended on September 8, 2011
and went into effect on January 1, 2012, to incorporate the standard for
admitting expert testimony announced by the Supreme Court in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). However, in this
case the request for a Frye hearing occurred on October 15, 2011, before the
amendment of Rule 702. As such, the Frye standard was the correct
standard for admissibility of expert testimony at this stage of the trial. See
State v. Miller, ___ Ariz. ___, ___, ¶ 30, 316 P.3d 1219, 1229 (2013) (“The



                                       7
                            STATE v. BASSETT
                            Decision of the Court

¶19            Under Rule 702, expert testimony is admissible if the
expert’s specialized knowledge “will help the trier of fact to understand
the evidence or to determine a fact at issue.” Ariz. R. Evid. 702(a). Bassett
maintains that the doctors’ testimony regarding the age of the children
pictured was unnecessary in this case. He cites the fact that other courts
have emphasized the importance of a case-by-case inquiry into whether
that testimony is necessary or “whether the age of model in a child
pornography case can be determined by a lay jury without the assistance
of expert testimony.” United States v. Katz, 178 F.3d 368, 373 (5th Cir.
1999); see also United States v. Haymond, 672 F.3d 948, 960 (10th Cir. 2012)
(acknowledging “case-by-case” inquiry into whether expert testimony is
required to aid juror in determining whether images involve minors).
Although the testimony may not have been “necessary,” we cannot agree
that it was not “helpful” to the jurors, particularly in light of Bassett’s own
testimony that he did not believe that any of the children pictured were
under the age of eighteen. The expert testimony was also helpful in light
of Bassett’s contention that the body images might have been manipulated
or altered.

¶20             Bassett suggests that the expert testimony unduly influenced
the jury’s own assessment of the ages because of its “aura of scientific
respectability.” However, the trial judge instructed the jurors that they
were to treat the expert testimony the same “as any other testimony” and
to give it as much credibility and weight as they thought it deserved in
light of “all the other evidence in the case.” Jurors are presumed to follow
the court’s instructions. State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441,
443 (1996). Defense counsel effectively cross-examined the doctors
concerning their inability to determine whether the images had been
manipulated by computer or in some other fashion. Furthermore, the
jurors here were able to view the images themselves and make their own
determinations. We therefore reject Bassett’s assertion of undue influence.

¶21          Bassett also argues that the expert testimony was not based
upon sufficient facts or data because the doctors did not specifically testify
that they had any training in identifying the ages of children from
photographic images alone. However, each doctor was able to testify that,



2012 amendment to Rule 702 is not a new constitutional rule, and we
decline to retroactively apply it to this case.”). Even under the amended
rule, however, we conclude that the expert testimony at issue in this case
would be admissible. See infra ¶¶ 21-23.



                                      8
                           STATE v. BASSETT
                           Decision of the Court

in light of her training and experience, she was able to determine that the
images were of children under the age of fifteen.

¶22           Bassett’s final challenge to the expert testimony concerns the
role the Tanner stages played in the doctors’ opinions that the children
depicted were minors. Bassett cites several studies that take issue with the
use of Tanner’s study or that report inaccuracies in determining the
chronological ages of subjects through the use of photographs. Bassett
argues that this shows that the scientific principles or methods the doctors
relied upon were not reliable, and were not reliably applied to the facts of
this case. But such arguments ultimately pertain more to the weight to be
given the expert testimony rather than to its ultimate admissibility. See
State v. Lucero, 207 Ariz. 301, 304-05, ¶ 14, 85 P.3d 1059, 1062-63 (App.
2004) (stating that an argument attacking a scientific method goes to the
weight of the evidence, not its admissibility). Furthermore, these
arguments fail to recognize that both Coffman and Quinn acknowledged
that the Tanner stages should not be used to determine a subject’s precise
chronological age. Both doctors testified they had not used the study for
that purpose, but that it was merely a research tool considered in forming
their independent opinions, which were primarily based on years of
pediatric experience.

¶23          In sum, the trial court did not abuse its discretion in
admitting the expert testimony relating to the ages of the children.

                             CONCLUSION

¶24          For the foregoing reasons, we affirm Bassett’s convictions
and sentences.




                                :gsh




                                       9
