                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                  STEPHEN VINCENT HAVERSTICK,
                           Appellant.

                      No. 2 CA-CR 2012-0392
                      Filed February 20, 2014


         Appeal from the Superior Court in Pima County
                      No. CR20094604001
         The Honorable Howard Fell, Judge Pro Tempore

           AFFIRMED IN PART; VACATED IN PART


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By Abigail Jensen, Assistant Public Defender, Tucson
Counsel for Appellant


                            OPINION

Chief Judge Howard authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Miller concurred.
                      STATE v. HAVERSTICK
                        Opinion of the Court


H O W A R D, Chief Judge:

¶1            After a jury trial, appellant Stephen Haverstick was
convicted of one count of sexual conduct with a minor and one
count of molestation of a child. On appeal, he argues he was denied
a fair trial because the prosecutor vouched for the credibility of a
witness in closing argument. He further argues that assessments he
was ordered to pay violate the ex post facto clauses of the state and
federal constitutions and that the court erred by entering a criminal
restitution order at sentencing. For the following reasons, we affirm
Haverstick’s convictions, sentences, and assessments, but vacate the
criminal restitution order.

                Factual and Procedural Background

¶2          We view the facts in the light most favorable to
upholding the convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3,
150 P.3d 252, 253 (App. 2007). In 2009, S. revealed to a church youth
group leader that she had been molested when she was younger.
The youth group leader informed her pastor, who contacted the
police. The police officers located S. and the Children’s Advocacy
Center conducted a forensic interview.

¶3            Haverstick was charged with one count of sexual
conduct with a minor under fifteen alleging that he had oral sexual
contact with S., a second count of sexual conduct with a minor under
fifteen alleging that Haverstick had S. make oral sexual contact with
him, and one count of molestation of a child alleging Haverstick had
caused S. to have sexual contact with his genitals. At trial, S.
testified that Haverstick had performed oral sex on her, that he had
forced her to touch his genitals with her hand, and that he had
forced her to perform oral sex on him.

¶4           The jury found Haverstick guilty on the counts alleging
Haverstick had oral sexual contact with S. and that he had caused S.
to have sexual contact with his genitals, but acquitted him on the
count alleging he had caused S. to perform oral sex on him. He was
sentenced to life imprisonment without possibility of release for
thirty-five years for sexual conduct with a minor, consecutive to a


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                       STATE v. HAVERSTICK
                         Opinion of the Court

seventeen-year sentence for the molestation conviction. We have
jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1)
and 13-4033(A)(1).

                      Prosecutorial Misconduct

¶5           Haverstick first argues that the prosecutor committed
misconduct that denied him a fair trial by vouching for S.’s
credibility during his closing argument. Because Haverstick did not
object below to the statements he challenges on appeal, we review
only for fundamental, prejudicial error. State v. Martinez, 230 Ariz.
208, ¶ 31, 282 P.3d 409, 416 (2012).

¶6            In order to reverse a conviction based on improper
comments from the prosecutor, the comments must “be so egregious
as to deprive the defendant of a fair trial and render the resulting
conviction a denial of due process.” State v. Hernandez, 170 Ariz.
301, 307, 823 P.2d 1309, 1315 (App. 1991).                Impermissible
prosecutorial vouching takes two forms: “(1) when the prosecutor
places the prestige of the government behind its witness, and (2)
where the prosecutor suggests that information not presented to the
jury supports the witness’s testimony.” State v. Dumaine, 162 Ariz.
392, 401, 783 P.2d 1184, 1193 (1989), disapproved on other grounds State
v. King, 225 Ariz. 87, ¶¶ 9, 12, 235 P.3d 240, 242-43 (2010). We
consider arguments made in closing together with the jury
instructions to determine “whether the prosecutor’s statements
constituted fundamental error.” State v. Hernandez, 170 Ariz. 301,
308, 823 P.2d 1309, 1316 (App. 1991). “When improper vouching
occurs, the trial court can cure the error by instructing the jury not to
consider attorneys’ arguments as evidence.” State v. Payne, 233 Ariz.
484, ¶ 109, 314 P.3d 1239, 1267 (2013). And when the prosecutor
makes “clear that it was for the jury to ‘determine the credibility of’
the witnesses,” improper vouching does not occur so long as the
prosecutor’s “characterization of the witnesses as truthful was
sufficiently linked to the evidence.” State v. Corona, 188 Ariz. 85, 91,
932 P.2d 1356, 1362 (App. 1997).

¶7           Before the attorneys presented their closing arguments,
the trial court instructed the jury that “[i]n their opening statements
and closing arguments, the lawyers talk to you about the law and


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                       STATE v. HAVERSTICK
                         Opinion of the Court

the evidence. What the lawyers say is not evidence, but it might
help you to understand the law and the evidence.” In his closing
argument, the prosecutor reminded the jury that “the judge, as part
of the instructions, gave you the way to judge a witness’s
credibility.” He then went on to argue that all the other evidence
presented at trial, including S.’s testimony, pointed to her credibility:

             Now, [S.] is credible in every way possible.
             The first thing is, every witness who came
             in here and talked, even in defendant’s
             own statement, even Mr. Haverstick’s own
             statement, he says [S.] is a truthful girl.
             Everyone has laid that fact out.

             ....

             The first way you judge the credibility of a
             witness is simply through someone’s
             demeanor, someone’s demeanor as they
             testify. And, ladies and gentlemen, you got
             a chance to sit feet away from [S.]. The first
             thing I want to ask you to do is take
             yourself back to that point yesterday.
             Think about the way she sat there and told
             you what had happened. Think about the
             way she sat there and told you about the
             feelings she still holds for her grandfather,
             the emotion she displayed with you guys.
             The simplest question is, was that faked.

             Now, you are the judges of the facts, not
             me.      But the reality there, ladies and
             gentlemen, is that was no act. That was not
             faked. That was not overdone. There was
             no melodrama. There was no selling it to
             you. . . .

             If Mr. Haverstick is not guilty, [S.] would
             have had to get up there and basically lie to
             you guys. And we have to call it by its


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                   STATE v. HAVERSTICK
                     Opinion of the Court

          name. Dr. Dutton, she used the term, a
          malicious false allegation. [S.] would come
          in here and sell you guys on something that
          wasn’t true. Think back, please, to [S.] as
          she talked to you. Was that a girl selling
          you on something that wasn’t true?

          ....

          Ladies and gentlemen, for Mr. Haverstick
          to not be guilty, [S.] would have had to come
          to court and lie to you. That’s not what
          happened. She has no motive to do that.
          Her memory clearly does not show that.
          And most importantly, her demeanor with
          you was not faked. She talked about what
          was going on with her, about her own
          feelings.

Then, in rebuttal closing argument, the prosecutor continued
discussing S.’s credibility by stating:

          And, ladies and gentlemen, just because it’s
          not the defense’s burden, and it is not the
          defense’s burden to disprove guilt, does
          not mean you ignore the simple fact that
          every single witness in this case told you
          [S.] is a truthful girl.

          ....

          . . . She is a real flesh-and-blood person
          who came and talked to you this week. . . .
          Your job is to assess her credibility as she
          sat here.

          And when [defense counsel] says he
          doesn’t have to prove stuff, that’s right.
          But that doesn’t mean you ignore that
          every factor that plays into her credibility



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                      STATE v. HAVERSTICK
                        Opinion of the Court

            tells you, ladies and gentlemen, that she’s
            telling the truth.

            ....

            Ladies and gentlemen, the defense doesn’t
            have to give you an alternate scenario.
            They don’t have to prove an alternate
            scenario. But the fact of the matter is, there
            is no alternate scenario. That girl has
            credibility in every way somebody can.

            ....

            . . . And please, at the end of the day, come
            back to really the person this is about, [S.].
            The fact of the matter is, she was telling the
            truth or she wasn’t.

            Defense counsel talked about a lot of other
            witnesses, but very little about [S.] The fact
            of the matter is, [S.] is credible in every single
            way somebody can be. She has no motive to
            make this up. She said the same thing over
            and over again, even at the cost to herself,
            to her grandfather who[m] she loves, to her
            own family. Why? Real simple, ladies and
            gentlemen. Because it happened.

Haverstick argues that the italicized statements above constituted
impermissible vouching by the prosecutor that placed the prestige of
the government behind S. The comments, however, must be viewed
in the context of the prosecutor’s entire argument, during which he
repeatedly told the jury it was their duty to determine S.’s
credibility, not his, and urged them to find her credible by
examining the evidence presented and reaching their own
conclusion. Thus, we do not read the prosecutor’s comments, in
context, as impermissible vouching. See Corona, 188 Ariz. at 91, 932
P.2d at 1362.




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                       STATE v. HAVERSTICK
                         Opinion of the Court

¶8            Moreover, Haverstick has not shown that he was
prejudiced by the comments. The trial court instructed the jury that
the lawyer’s arguments were not evidence, and that instruction can
be sufficient to “cure” improper vouching. See Payne, 233 Ariz. 484,
¶ 109, 314 P.3d at 1267.         Furthermore, even assuming the
prosecutor’s remarks constituted improper vouching, any effect on
the jury was mitigated by its receiving the requisite instruction.
Additionally, in a case that hinged on the credibility and testimony
of S., the jury acquitted Haverstick of one charge of sexual conduct
with a minor, apparently rejecting S.’s testimony as to that charge.
Thus, the record shows that the jury carefully deliberated over S.’s
veracity and reached a conclusion independent of what the
prosecutor argued. Consequently, we are not persuaded by his
argument.

                              Assessments

¶9            Haverstick next argues the trial court erred by ordering
him to pay a $250 assessment to the “Sex Offender Monitoring
Fund” pursuant to A.R.S. § 13-3821(Q) and a $500 assessment to the
“Forensic Assessment Fund” pursuant to A.R.S. § 12-116.07, 1
because these laws became effective after he committed his crimes,
and therefore the assessments violate the ex post facto clauses of the
state and federal constitutions and A.R.S. § 1-246. He did not object
below, we therefore review only for fundamental, prejudicial error.
State v. Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d 233, 236 (2009). “An
illegal sentence constitutes fundamental[, prejudicial] error.” State v.
Cox, 201 Ariz. 464, ¶ 13, 37 P.3d 437, 441 (App. 2002).

¶10          Section 1-246 prohibits the application of an increased
penalty to a defendant who committed a crime before the effective
date of the increase. Similarly, both the Arizona and federal
constitutions prohibit ex post facto laws. U.S. Const. art. I, § 10, cl. 1;
Ariz. Const. art. II, § 25. “Because the language of these provisions

      1 Although Haverstick originally was ordered to pay the
assessment pursuant to A.R.S. § 13-824, that section was renumbered
as A.R.S. § 12-116.07 during the pendency of his appeal. See 2012
Ariz. Legis. Serv. Ch. 96, § 6.


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                       STATE v. HAVERSTICK
                         Opinion of the Court

is materially the same, we generally interpret them as having the
same scope, and we typically follow federal precedent in the area.”
State v. Henry, 224 Ariz. 164, ¶ 6, 228 P.3d 900, 902-03 (App. 2010).
For purposes of this case, a law violates the ex post facto clauses of
the state or federal constitutions if it “‘changes the punishment, and
inflicts a greater punishment than the law annexed to the crime,
when committed.’” State v. Noble, 171 Ariz. 171, 174, 829 P.2d 1217,
1220 (1992), quoting Calder v. Bull, 3 U.S. 386, 390 (1798). Laws that
inflict further punishment cannot be applied retroactively without
violating the ex post facto clauses, but a law that is only regulatory
in nature “will withstand an ex post facto challenge.” Henry, 224
Ariz. 164, ¶ 8, 228 P.3d at 903.

¶11           When evaluating whether to characterize a law as
punitive or “a regulatory scheme that is civil and nonpunitive,” we
look first to the legislature’s intent. See Smith v. Doe, 538 U.S. 84, 92
(2003); Noble, 171 Ariz. at 175, 829 P.2d at 1221; Ariz. Dep’t of Pub.
Safety v. Superior Court (Falcone), 190 Ariz. 490, 494, 949 P.2d 983, 987
(App. 1997). If the legislature has indicated a nonpunitive purpose,
we then determine “‘whether the statutory scheme [i]s so punitive
either in purpose or effect as to negate that intention.’” Noble, 171
Ariz. at 175, 829 P.2d at 1221, quoting United States v. Ward, 448 U.S.
242, 248-49 (1980); accord Smith, 538 U.S. at 92; Falcone, 190 Ariz. at
495, 949 P.2d at 988. But in our review, the person challenging a law
on ex post facto grounds bears the burden of demonstrating by “‘the
clearest proof’” that the law is in fact punitive, otherwise we will not
“override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty.” Smith, 538 U.S.
at 92, quoting Hudson v. United States, 522 U.S. 93, 100 (1997); accord
Falcone, 190 Ariz. at 496, 949 P.2d at 989.

¶12          In Henry, we examined whether § 13-3821 was a
regulatory or punitive statute. 224 Ariz. 164, ¶¶ 8, 10-26, 228 P.3d at
903-08. Although we did not specifically consider the $250
assessment imposed by subsection (Q), we looked to the statute as a
whole in weighing the intent of the legislature and the effects of the
statute and concluded that it was “a nonpunitive civil regulation for
purposes of the Ex Post Facto Clause.” Id. ¶¶ 10-15, 17, 22-24, 26.
Haverstick does not address Henry in his brief, and therefore has not


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                       STATE v. HAVERSTICK
                         Opinion of the Court

shown its analysis would not also cover the assessment.
Furthermore, we find no reason that Henry’s analysis would not
apply. Accordingly, we reject his argument that § 13-3821(Q)
violates the ex post facto clauses of the state or federal constitutions,
or § 1-246.

¶13          Haverstick also argues that the $500 assessment he was
ordered to pay pursuant to § 12-116.07 violates the ex post facto
clauses of the state and federal constitutions and § 1-246. Whether
imposing the assessments required by this section on offenders
whose crimes predate the enactment of the law violates the ex post
facto clauses of the state and federal constitutions is a matter of first
impression.

¶14           Section 12-116.07 requires the trial court to order
persons “convicted of . . . a dangerous crime against children as
defined in § 13-705 . . . to pay an assessment of five hundred dollars”
and explains that the assessment is “for the purpose of defraying the
cost of investigations pursuant to § 13-1414[, A.R.S.]” That section
requires the county to pay for the cost of any “medical or forensic
interview . . . arising out of the need to secure evidence that a person
has been the victim of a dangerous crime against children.” Thus,
the plain language of the statute expresses its purpose not to punish
offenders but to help ensure that the agencies responsible for
investigating sex crimes against children have the funds to secure
crucial evidence.

¶15          Because the legislature has indicated a nonpunitive
purpose for the forensic assessment, we consider whether the law’s
punitive effects outweigh its regulatory purpose. Henry, 224 Ariz.
164, ¶ 18, 228 P.3d at 905-06. In so doing, we consider all relevant
factors, Smith, 538 U.S. at 97, but particularly those enumerated in
Kennedy v. Mendoza-Martinez:

             [w]hether the sanction involves an
             affirmative disability or restraint, whether
             it has historically been regarded as a
             punishment, whether it comes into play
             only on a finding of scienter, whether its
             operation will promote the traditional aims


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                       STATE v. HAVERSTICK
                         Opinion of the Court

             of punishment—retribution and deterrence,
             whether the behavior to which it applies is
             already a crime, whether an alternative
             purpose to which it may rationally be
             connected is assignable for it, and whether
             it appears excessive in relation to the
             alternative purpose assigned.

372 U.S. 144, 168-69 (1963) (footnotes omitted). Bearing these factors
in mind, we assess “the effects of the [assessment] requirement on
convicted sex offenders and . . . the rationality between the
requirement and its purported non-punitive function.” Noble, 171
Ariz. at 175, 829 P.2d at 1221.

¶16          First, the money assessment at issue here places no
affirmative disability or restraint on Haverstick, terms which have
been traditionally associated with imprisonment. See Smith, 538 U.S.
at 100. Second, “money penalties . . . ha[ve not] historically been
viewed as punishment. . . . ‘[T]he payment of fixed or variable sums
of money [is a] sanction which ha[s] been recognized as enforceable
by civil proceedings since the original revenue law of 1789.’”
Hudson, 522 U.S. at 104 (citation omitted), quoting Helvering v.
Mitchell, 303 U.S. 391, 400 (1938) (third and fourth alterations in
Hudson).

¶17           Third, the sanction here does not require a finding of
scienter. Rather, § 12-116.07 requires the assessment against any
person convicted of a dangerous crime against children, without
regard to the offender’s state of mind. Fourth, the conduct for which
the sanction is imposed is also criminal, but “[t]his fact is insufficient
to render the money penalties . . . criminally punitive.” Hudson, 522
U.S. at 105, citing United States v. Ursery, 518 U.S. 267, 292 (1996).

¶18         Fifth, and as discussed preliminarily above, the primary
purpose of the statute is neither retributive nor deterrent, but
remedial: its goal is to help fund past and future forensic
examinations of victims, which local governments are required to
pay for, and in so doing, to protect the community. Although the
assessment may have a minimal deterrent effect, its operative effect
is to fund the state’s remedial interest in recouping expenses.


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                       STATE v. HAVERSTICK
                         Opinion of the Court

Although this interest is “consistent with the purposes of the
[Arizona] criminal justice system, the State’s pursuit of it in a
regulatory scheme does not make the objective punitive.” Smith, 538
U.S. at 94.

¶19          Finally, it does not appear on the face of the statute that
the $500 assessment is excessive in relation to its stated purpose. A
professional medical examination of a victim done by an expert in
preserving evidence is neither quick nor inexpensive. See Rose
Corrigan, The New Trial by Ordeal: Rape Kits, Police Practices, and the
Unintended Effects of Policy Innovation, 38 Law & Soc. Inquiry 920,
936-37 (2013) (discussing the economic incentives involved when
police departments decide whether to investigate sexual assault). By
securing funds specifically for the examinations, the statute
encourages law enforcement to investigate reports of sex crimes
against children despite the high cost to its budget.

¶20           In sum, Haverstick has not shown the “clearest proof”
required by Smith that the monetary sanction imposed by § 12-
116.07 is punitive in its effects. 538 U.S. at 92. We therefore reject his
argument that the statute violates § 1-246 or the ex post facto clauses
of the state or federal constitutions.

                     Criminal Restitution Order

¶21           Haverstick finally argues, and the state concedes, that
the trial court erroneously entered a criminal restitution order
(“CRO”). The court here, in its sentencing minute entry, provided
that “all fines, fees and/or assessments” the court had imposed were
“reduced to a Criminal Restitution Order, with no interest, penalties
or collection fees to accrue while the defendant is in the Department
of Corrections.” As this court has determined, based on A.R.S. § 13-
805(C), “the imposition of a CRO before the defendant’s probation
or sentence has expired ‘constitutes an illegal sentence, which is
necessarily fundamental, reversible error.’”2 State v. Lopez, 231 Ariz.

      2 A.R.S. § 13-805 has been amended since the date of the
offense. See 2012 Ariz. Sess. Laws, ch. 269, § 1. The changes may
now permit entry of a CRO at sentencing under some circumstances
but are not material here.


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                      STATE v. HAVERSTICK
                        Opinion of the Court

561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski,
220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Therefore,
because this portion of the sentencing minute entry is not authorized
by statute, the CRO must be vacated.

                            Disposition

¶22         For the foregoing reasons, we vacate the CRO but
otherwise affirm Haverstick’s convictions, sentences, and
assessments.




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