                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                   MANUEL FERNANDO FLOREZ,
                          Appellant.

                     No. 2 CA-CR 2015-0480
                     Filed October 25, 2016

         Appeal from the Superior Court in Pima County
                      No. CR20142522001
            The Honorable Carmine Cornelio, Judge

                           AFFIRMED


                            COUNSEL

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

Steven R. Sonenberg, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
                            STATE v. FLOREZ
                           Opinion of the Court



                               OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Judge Kelly1 concurred.


M I L L E R, Judge:

¶1            Manuel Florez appeals his convictions, following a jury
trial, for three counts of molestation of a child and two counts of
sexual conduct with a minor under age fifteen, for which he received
concurrent and consecutive sentences totaling thirty-six years’
imprisonment. He argues that the evidence was insufficient to
support his convictions for sexual conduct with a minor and that his
sentences amount to unconstitutional cruel and unusual
punishment. We affirm for the reasons stated below.

                   Factual and Procedural Background

¶2            We view the facts in the light most favorable to
sustaining the verdicts. See State v. Crane, 166 Ariz. 3, 5, 799 P.2d
1380, 1382 (App. 1990). M., the victim and Florez’s stepsister,
testified in 2015 when she was thirteen about sexual episodes with
Florez that had begun five years earlier. The first time, Florez
touched her genitals2 under her clothes with his hand. During that
incident, Florez threatened to hurt M.’s family if she did not
acquiesce. She later testified this was the reason she “kept doing”
what he wanted. In a later incident, when M. was nine, Florez lay
behind M. on a couch, positioned his clothed penis against her



        1TheHon. Virginia C. Kelly, a retired judge of this court, is
called back to active duty to serve on this case pursuant to orders of
this court and our supreme court.
        2 The   victim identified the genitals as “the part where you
pee.”


                                    2
                         STATE v. FLOREZ
                        Opinion of the Court

clothed buttocks, and put his hands on her waist and moved her
body back and forth along his, parallel to the length of the couch.

¶3          In April 2014, when M. was eleven years old, Florez
went to M.’s bed, touched her genitals over her clothes, and moved
his clothed penis up and down against her legs or buttocks. At
some point, he grabbed her hair and “kneel[ed] [her] back real
hard.” A few days later, Florez put his hand under M.’s pajamas
and underwear, placed it on her genitals, and began “moving [his
hand] up and down.” When M. rolled onto her stomach, he got on
top of her. In that position, he moved his clothed erect penis “up
and down” against M.’s clothed buttocks.

¶4            M.’s grandmother walked in and saw what she later
described as Florez “humping” M. as though “having sex through
behind.” M.’s grandmother told Florez to “get the hell out of [her]
house.” “[I]t’s not what it looks like,” said Florez. He “apologized a
whole bunch of times” and pleaded with M.’s grandmother not to
call the police.

¶5           A grand jury indicted Florez, charging him with one
count of molestation of a child for the time he touched M.’s genitals
when she was eight years old, one count of molestation of a child
arising out of the incident on the couch, two counts of molestation of
a child for touching M.’s genitals during the two April 2014
incidents, two counts of sexual conduct with a minor under age
fifteen for masturbatory contact with his penis during the two April
2014 incidents, and one count of continuous sexual abuse of a child.
On the first day of trial, the trial court dismissed the continuous
sexual abuse count at the state’s request. The jury was unable to
reach a verdict on the count of child molestation that allegedly
occurred when M. was eight years old, and the court dismissed that
count upon the state’s request. Florez was convicted of the other
five offenses and sentenced to three concurrent ten-year terms of
imprisonment for the molestation counts, to run consecutively to
two consecutive thirteen-year terms of imprisonment for sexual
conduct with a minor. After sentencing, the trial court sua sponte
issued an order pursuant to A.R.S. § 13-603(L), allowing Florez to
petition the Board of Clemency for a commutation of his sentence. It
described the sentence as “clearly excessive,” particularly in view of

                                  3
                         STATE v. FLOREZ
                        Opinion of the Court

the state’s plea offer that limited the term to 3.75 years. We have
jurisdiction over Florez’s appeal pursuant to A.R.S. §§ 13-4031 and
13-4033(A)(1).

                    Sufficiency of the Evidence

¶6            Florez argues that, as a matter of law, “humping”
through clothing cannot satisfy the statutory definition of “sexual
intercourse,” which is a necessary element of sexual conduct with a
minor; therefore, the trial court erred by denying his motion for a
directed verdict pursuant to Rule 20(a), Ariz. R. Crim. P., as to those
two counts.3 He asks us to reduce his convictions for sexual conduct
with a minor to the lesser-included offense of molestation of a child
and remand for resentencing.4 The state maintains the evidence was
sufficient to sustain the convictions.




      3 We  note that the trial court’s Amended Sentencing order
stated that this “case did not involve oral/genital contact,
intercourse, or penetration,” which is arguably inconsistent with the
court’s Rule 20 ruling because—as discussed below—the offense of
sexual conduct with a minor requires a factual finding that Florez
engaged in sexual intercourse. However, the court notably did not
use the statutorily defined phrase, “sexual intercourse,” and
expressed no doubt as to the verdicts or its previous Rule 20 ruling.
      4Sexual  conduct with a minor under age fifteen, A.R.S. § 13-
1405, is a class 2 felony, as is the offense of molestation of a child
under A.R.S. § 13-1410. The sentences for the two offenses differ
significantly, however, under the Dangerous Crimes Against
Children sentencing statute, A.R.S. § 13-705. If the victim of a
masturbatory sexual conduct offense is under twelve years of age, as
was the victim here, the defendant faces a minimum of thirteen
years imprisonment and may face a life sentence; additionally, the
sentence must be consecutive to any other sentence. § 13-705(B),
(M). For molestation, the sentencing range is ten to twenty-four
years, and the sentence may be served concurrently with other
sentences involving the same victim. § 13-705(D), (M).


                                  4
                           STATE v. FLOREZ
                          Opinion of the Court

¶7           We review a trial court’s ruling on a Rule 20 motion de
novo, asking “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.” State v. West, 226 Ariz. 559, ¶¶ 15-16, 250 P.3d 1188, 1191
(2011), quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868
(1990). “Substantial evidence” under Rule 20 is “such proof that
‘reasonable persons could accept as adequate and sufficient to
support a conclusion of defendant’s guilt beyond a reasonable
doubt.’” Mathers, 165 Ariz. at 67, 796 P.2d at 869, quoting State v.
Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980); see also West, 226 Ariz.
559, ¶ 16, 250 P.3d at 1191 (substantial evidence inquiry
encompasses both direct and circumstantial evidence). When
reasonable minds can draw different inferences from the evidence
adduced, the trial court is without discretion to grant a Rule 20
motion and must submit the case to the jury. West, 226 Ariz. 559,
¶ 18, 250 P.3d at 1192.

¶8           A person commits sexual conduct with a minor under
age fifteen by “intentionally or knowingly engaging in sexual
intercourse . . . with any person” under age fifteen. A.R.S. § 13-
1405(A)-(B).      “Sexual intercourse” is statutorily defined as
“penetration into the penis, vulva or anus by any part of the body or
by any object or masturbatory contact with the penis or vulva.”
A.R.S. § 13-1401(A)(4).5 The definition makes no distinction between
the victim’s penis, vulva, or anus and the perpetrator’s. See id.

¶9           A person commits the lesser-included offense of
molestation of a child by “intentionally or knowingly engaging in or
causing a person to engage in sexual contact” with a child under age
fifteen. A.R.S. § 13-1410(A); see also State v. Ortega, 220 Ariz. 320,
¶¶ 24-25, 206 P.3d 769, 777 (App. 2008) (molestation of child is
lesser-included offense of sexual conduct with minor under age

      5The  definitions of “sexual contact” and “sexual intercourse”
were renumbered after Florez committed the crimes at issue, but the
relevant text remained the same. See 2015 Ariz. Sess. Laws, ch. 209,
§ 2. For clarity, we cite the current version of the statute here and
throughout, unless otherwise indicated.


                                    5
                          STATE v. FLOREZ
                         Opinion of the Court

fifteen); In re Jerry C., 214 Ariz. 270, ¶ 13, 151 P.3d 553, 557
(App. 2007) (same). “Sexual contact” is defined by statute in
relevant part as “any direct or indirect touching, fondling or
manipulating of any part of the genitals[] [or] anus . . . by any part of
the body or by any object or causing a person to engage in such
contact.” § 13-1401(A)(3). Again, the definition does not distinguish
between the victim’s genitals or anus and the perpetrator’s. See id.;
State v. Mendoza, 234 Ariz. 259, ¶ 6, 321 P.3d 424, 425-26 (App. 2014).

¶10          The state relies on State v. Crane, 166 Ariz. 3, 799 P.2d
1380 (App. 1990), to argue that non-oral, non-penetrative
masturbatory contact with the body of another meets the statutory
definition of “sexual intercourse.” In Crane, the state charged the
defendant with two counts of sexual conduct with a minor. Id. at 5,
799 P.2d at 1382. The evidence showed that on separate occasions
the defendant had skin to skin contact with the minor female victim,
placing his penis close to her genitalia. Id. at 8, 799 P.2d at 1385. We
affirmed the trial court’s denial of the defendant’s motion for a
directed verdict on both counts, concluding that “sexual
intercourse” under the statute does not require penetration, but also
encompasses “masturbative contact with the body of another.” Id. at
9, 799 P.2d at 1386; see § 13-1401(A)(4) (“sexual intercourse” defined
as “penetration . . . or masturbatory contact with the penis or vulva”
(emphasis added)); see also State v. Flores, 160 Ariz. 235, 240, 772 P.2d
589, 594 (App. 1989) (masturbatory contact must involve at least two
persons to constitute “sexual intercourse”). We observed that there
is “no difference between a case where a defendant has a child
manually masturbate him and where defendant positions the child’s
body, and his own, in such a way that contact with her body
accomplishes the same purpose.” Crane, 166 Ariz. at 9, 799 P.2d at
1386. We recognize, as Florez contends, that the conduct in Crane is
arguably different from “humping” as described by the witnesses in
this case, and we look to the statute for guidance.

¶11         When Crane was decided, the statutory definition of
“sexual intercourse” required “penetration into the penis, vulva or
anus by any part of the body or by any object or manual
masturbatory contact with the penis or vulva.” See 1993 Ariz. Sess.




                                   6
                           STATE v. FLOREZ
                          Opinion of the Court

Laws, ch. 255, § 23 (emphasis added); see also Crane, 166 Ariz. at 7,
799 P.2d at 1384.

¶12           The legislature removed “manual” from the definition
not long after Crane, see 1993 Ariz. Sess. Laws, ch. 255, § 23, thus
establishing the definition’s current text, see A.R.S. § 13-1401(A)(4).
This amendment removed an arguably limiting term and reaffirmed
the inclusion of “masturbatory contact” with the victim as an act of
sexual intercourse. Because the 1993 amendment occurred after
Crane, we must assume the legislature understood conduct like
simulated intercourse to be masturbatory contact. See State v.
Pennington, 149 Ariz. 167, 168, 717 P.2d 471, 472 (App. 1985) (in
enacting sexual touching statute, it is presumed legislature is aware
of and approves existing case law interpreting same language);
see also Gregory A. McCarthy, Reforming Chapter 14 of Arizona’s
Criminal Code: Bringing Consistency, Clarity, Contemporaneity, and
Constitutionality to Sexual Offenses in Arizona, 33 Ariz. St. L.J. 229, 238
n.44     (2001)    (“Accordingly,      the   Legislature     understands
‘masturbatory contact’ as including non-manual touchings.”).

¶13          Florez argues that “a common-sense reading of
‘masturbatory contact’ would require it to involve at least one of the
parties to the contact to be touching with bare skin (and more likely
both).” He reasons that a contrary interpretation would render
“masturbatory contact with the penis” constituting “sexual
intercourse” under § 13-1401(A)(4) no different from mere “indirect
touching” of the penis constituting “sexual contact” under § 13-
1401(A)(3). Completing the syllogism, he concludes that elimination
of the distinction between sexual conduct with a minor and its
lesser-included offense of molestation violates due process.

¶14          We agree with Florez insofar as he maintains “the
legislature did not intend to perform a futile act” by creating a
definition of masturbatory “sexual intercourse” purely coextensive
with its definition of “sexual contact.” See Flores, 160 Ariz. at 240,
772 P.2d at 594; see also Taylor v. Cruikshank, 214 Ariz. 40, ¶ 18, 148
P.3d 84, 88-89 (App. 2006) (court will endeavor to avoid construing
statutory subsections as redundant or superfluous). It is not
necessary to delineate the precise contours of these different terms if
it can reasonably be said that “masturbatory contact” is something

                                    7
                          STATE v. FLOREZ
                         Opinion of the Court

more than mere “direct or indirect touching.” See § 13-1401(A)(3)-
(4); cf. State v. Thompson, 204 Ariz. 471, ¶¶ 15, 26, 65 P.3d 420, 424,
427 (2003) (first-degree murder statute constitutional only if
definition of premeditation “provide[s] a meaningful distinction”
between first- and second-degree murder).

¶15          Because “masturbatory contact” is not defined, we may
look to respected dictionaries to ascertain the phrase’s plain
meaning and construe it accordingly. See, e.g., W. Corr. Grp., Inc. v.
Tierney, 208 Ariz. 583, ¶ 17, 96 P.3d 1070, 1074 (App. 2004).
“Masturbation” is defined as “erotic stimulation of the genital
organs commonly resulting in orgasm and achieved by manual or
other bodily contact exclusive of sexual intercourse, by instrumental
manipulation, occas[ionally] by sexual fantasies, or by various
combinations of these agencies.” Webster’s Ninth New Collegiate
Dictionary 732 (1985) (emphasis added). This definition includes
non-penetrative, non-oral “humping” in which any part of the body
of another is used to stimulate the penis or vulva. See Crane,
166 Ariz. at 9, 799 P.2d at 1386. Nothing in the dictionary definition
suggests that contact with skin is a necessary component of
masturbation; rather, it can involve a “combination[]” of “other
bodily contact” and “instrumental manipulation” with the penis or
vulva via objects such as clothing. Webster’s Ninth New Collegiate
Dictionary 732 (1985); cf. Mendoza, 234 Ariz. 259, ¶ 10, 321 P.3d at 426
(touching may be sexual despite clothing and blanket).

¶16          Florez urges us to adopt contact with skin as a bright
line dividing masturbatory “sexual intercourse” from mere “sexual
contact,” but he cites no authority for such a rule and we are aware
of none. Indeed, the plain language of the statute does not make any
reference to nudity or contact with skin as a requirement.6




      6Nor can we apply the rule of lenity here, because the
language of the statute is not ambiguous. See generally State v.
Johnson, 171 Ariz. 39, 42, 827 P.2d 1134, 1137 (App. 1992) (rule of
lenity applies to penal statutes “susceptible to different
interpretations”).


                                   8
                          STATE v. FLOREZ
                         Opinion of the Court

¶17          Florez also argues our decision in Mendoza implies that
“humping” through clothing is distinguished from skin-on-skin
contact and can only result in a conviction for molestation. In
Mendoza, even though the defendant and victim were both clothed
and were separated by a blanket, we held evidence that the
defendant “humped” the victim by rubbing his genital area against
her buttocks sufficient to sustain his conviction for child
molestation. 234 Ariz. 259, ¶¶ 2-11, 321 P.3d at 425-27. We observed
that the mere interposition of clothing or a blanket does not
necessarily deprive a touching of its sexual character. Id. ¶ 10,
quoting Moss v. Dist. Court of Tulsa Cty., 795 P.2d 103, 105
(Okla. Crim. App. 1989). We further noted a victim can suffer
emotional harm whether or not the defendant makes direct skin-to-
skin contact. See id. A rational jury “could infer that Mendoza was
rubbing his crotch or genital area against the victim’s body to
indirectly touch or manipulate his genitals,” we concluded—
“[i]ndeed, little else could be accomplished by such behavior.” Id.
¶ 9.

¶18          While we acknowledge Florez’s point that the actual
touching in his case was very similar to the facts in Mendoza, our
analysis in that case was necessarily limited to molestation because
it was the offense for which Mendoza was charged and convicted.
Id. ¶ 1. Mendoza does not preclude the conclusion that the same
conduct may constitute “masturbatory contact with the penis or
vulva” pursuant to § 13-1401(A)(4). Whether such a touching
constitutes “masturbatory contact” as opposed to mere “direct or
indirect touching, fondling or manipulating” in a particular case is a
factual question for the jury.

¶19           The decision whether to charge an offense with more
serious consequences is a matter of prosecutorial discretion, as long
as there is factual support and the absence of discrimination against
any class of defendants. See State v. Gagnon, 236 Ariz. 334, ¶ 10, 340
P.3d 413, 415 (App. 2014); see also State v. Holle, 240 Ariz. 301, ¶ 44,
379 P.3d 197, 206 (2016) (prosecutors’ wide discretion “does not
warrant ignoring” statute’s plain language). In this case, the
indictment describes “masturbatory contact with defendant’s penis”
for both sexual conduct counts. Florez could have been charged


                                   9
                          STATE v. FLOREZ
                         Opinion of the Court

with molestation for the same acts but the prosecutor chose, and the
grand jury indicted, the more serious offense. Finally, there is no
evidence suggesting the prosecution was based on improper
classification.

¶20           In sum, a prosecutor has the discretion to charge
“humping” under the greater offense of sexual conduct with a
minor, so long as the conduct described is masturbatory contact
with the penis or vulva as required by § 13-1401(A)(4). 7 A
reasonable jury could conclude that Florez knowingly or
intentionally stimulated his penis by rubbing it against the body of a
person under age fifteen. See § 13-1405(A)-(B). The fact that clothing
separated his penis from the victim’s body does not, of necessity and
as a matter of law, exclude his acts from the statutory definition of
“sexual intercourse.” See § 13-1401(A)(4). The evidence was
sufficient to support his convictions for sexual conduct with a minor,
and the trial court did not err in denying his Rule 20 motion on those
counts.8


      7We   are aware that the decision to charge the greater offense
may result in unintended consequences or arguably anomalous
instructions if the jury also considers the lesser offense. Specifically,
pursuant to A.R.S. § 13-1407(E), a lack of sexual motivation is an
affirmative defense to the lesser offense of molestation but not to the
greater offense of sexual conduct with a minor. It is difficult to
discern a policy reason to remove this affirmative defense in certain
circumstances, but our supreme court recently reaffirmed the
principle that within constitutional limits, the legislature alone
determines which defenses are available. Holle, 240 Ariz. 301, ¶ 9,
379 P.3d at 199.
      8We   share the trial court’s concern that Florez’s sentence is
excessive, and we encourage the Board of Clemency to consider
commutation in this case. Yet we are bound to effectuate the clear
intent of the legislature, which rejected bill language that would
have differentiated between sexual misconduct involving clothed
versus unclothed victims. See, e.g., S.B. 1490, 40th Leg., 2d Reg. Sess.
§§ 8, 10, 12 (Ariz. 1992) (introduced version) (proposing new
definition for “indirect sexual contact,” i.e., touching outer clothing

                                   10
                          STATE v. FLOREZ
                         Opinion of the Court

                  Cruel and Unusual Punishment

¶21          Florez next argues his sentence amounts to cruel and
unusual punishment. “We review constitutional issues de novo.”
State v. Carlson, 237 Ariz. 381, ¶ 57, 351 P.3d 1079, 1095 (2015).
Florez did not object on Eighth Amendment grounds below, so we
review only for fundamental, prejudicial error. 9 See State v.
Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). The
imposition of an illegal sentence constitutes fundamental, prejudicial
error. State v. McPherson, 228 Ariz. 557, ¶ 4, 269 P.3d 1181, 1183
(App. 2012).

¶22         Both the United States and Arizona constitutions
prohibit cruel and unusual punishment.10 U.S. Const. amend. VIII;


covering genitals, anus, or female breast, and making indirect sexual
contact with minor under fifteen sexual abuse, a class 3 felony); cf.
1993 Ariz. Sess. Laws, ch. 255, §§ 23, 25 (eschewing term “indirect
sexual conduct” and removing limitation that masturbatory contact
be “manual” to constitute “sexual intercourse” underpinning sexual
conduct with minor); § 13-1405 (sexual conduct with minor under
fifteen is class 2 felony and dangerous crime against children).
Despite our concern that mixing clothed humping with “sexual
intercourse” represents a “poor policy choice” in cases such as the
one before us because of the severe mandatory sentence, that policy
choice is one for the legislature to make, and we “are not at liberty to
rewrite [the] statute under the guise of judicial interpretation,”
Tucson Unified Sch. Dist. v. Borek ex rel. Cty. of Pima, 234 Ariz. 364,
¶ 11, 322 P.3d 181, 185 (App. 2014), quoting New Sun Bus. Park, LLC v.
Yuma Cty., 221 Ariz. 43, ¶ 16, 209 P.3d 179, 183 (App. 2009). The
power to create or amend such statutes exists solely within the
legislature.
      9The state contends Florez forfeited fundamental error review
because his argument lacks sufficient detail. But we agree with
Florez that his analysis differentiating between more and less
important issues was appropriate and sufficient.
      10 Florez asks us to extend the protections of the state
constitutional provision beyond those of the Eighth Amendment in

                                  11
                          STATE v. FLOREZ
                         Opinion of the Court

Ariz. Const. art. II, § 15. It is well settled that the length of a prison
sentence can serve as the basis for an Eighth Amendment challenge.
See Atkins v. Virginia, 536 U.S. 304, 311 (2002) (reviewing cases). And
although “courts are extremely circumspect in their Eighth
Amendment review of prison terms[,] . . . noncapital sentences are
subject . . . to a ‘narrow proportionality principle’ that prohibits
sentences that are ‘grossly disproportionate’ to the crime.” State v.
Berger, 212 Ariz. 473, ¶ 10, 134 P.3d 378, 380 (2006), quoting Ewing v.
California, 538 U.S. 11, 20-21 (2003) (plurality opinion).

¶23         When reviewing a prison sentence under the Eighth
Amendment, the court first determines whether “there is a threshold
showing of gross disproportionality by comparing ‘the gravity of the
offense [and] the harshness of the penalty.’” Id. ¶¶ 11-12, quoting
Ewing, 538 U.S. at 28 (alteration in Berger). In so doing, the court
“must accord substantial deference to the legislature and its policy
judgments as reflected in statutorily mandated sentences,” if in fact
those policy judgments have a rational penological basis. See id.
¶¶ 13, 17. A particular defendant’s prison sentence is not grossly


cases like his in which consecutive sentences are statutorily
mandated. Our supreme court declined to do so in State v. Davis,
206 Ariz. 377, ¶ 12, 79 P.3d 64, 67 (2003), which Florez contends was
a case-specific decision. We do not find Davis so limited. The court
subsequently confronted a similar sentencing challenge, but did not
undertake a separate Arizona constitutional analysis despite
recognition of the court’s role “in determining the constitutionality
of sentences.” State v. Berger, 212 Ariz. 473, n.14, 134 P.3d 378, 394
n.14 (2006) (Berch, V.C.J., concurring in part and dissenting in part).
Because Berger concluded the sentence imposed did not violate the
Eighth Amendment, it would have been required to conduct
additional analysis if Article 2, Section 15 of the Arizona
Constitution provided greater protection than federal law. See also
State v. McPherson, 228 Ariz. 557, ¶ 16, 269 P.3d 1181, 1187 (App.
2012) (decision to interpret cruel and unusual punishment under
state constitutional provision more broadly than federal
constitutional provision “would be in the exclusive purview of [our
supreme] court”).


                                   12
                         STATE v. FLOREZ
                        Opinion of the Court

disproportionate to the crime if it “arguably furthers the State’s
penological goals” and “reflects a ‘rational legislative judgment’” to
which the court owes deference. Id. ¶ 17, quoting Ewing, 538 U.S. at
30. If, however, the initial inquiry leads to an inference of gross
disproportionality, a court may proceed to test that inference by
conducting inter-jurisdictional and intra-jurisdictional comparative
analyses. Id. ¶ 12. Finally, even if a sentencing scheme does not
violate the Eighth Amendment generally, in “extremely rare case[s]”
the specific application of that scheme to the facts of a defendant’s
case may result in an unconstitutionally disproportionate sentence.
Id. ¶ 39.

¶24          In Berger, our supreme court held that a ten-year
sentence for possession of child pornography did not give rise to an
inference of gross disproportionality. Id. ¶ 29. In support of its
holding, the Berger court noted several cases affirming the
imposition of severe prison sentences. Id. ¶ 30; see Ewing, 538 U.S. at
19, 30-31 (upholding sentence of twenty-five years to life for felony
grand theft when defendant had four previous convictions for
serious or violent felonies); Harmelin v. Michigan, 501 U.S. 957, 961,
994, 996 (1991) (upholding first-time offender’s life sentence for
possessing 672 grams of cocaine); State v. Jonas, 164 Ariz. 242, 249,
792 P.2d 705, 712 (1990) (upholding recidivist offender’s twenty-five
year sentence for selling $1 marijuana cigarette to minor).
Possession of child pornography is undeniably a serious crime,
punishable as a felony in most states. Berger, 212 Ariz. 473, ¶¶ 26,
34-35, 134 P.3d at 478-479, 480. Moreover, “the legislature had a
‘reasonable basis for believing’ that mandatory and lengthy prison
sentences for the possession of child pornography” would
substantially advance its “goal of combating the sexual abuse and
exploitation inherent in child pornography.” Id. ¶¶ 19, 23, quoting
Ewing, 538 U.S. at 28. Imposing the ten-year sentence, then, “[wa]s
consistent with the state’s penological goal[s].” Id. ¶ 33.

¶25         In this case, Florez received a ten-year sentence for each
molestation conviction and a thirteen-year sentence for each
conviction for sexual conduct with a minor. The legislature has
designated both molestation of a child and sexual conduct with a
minor as “dangerous crimes against children” subject to enhanced


                                  13
                          STATE v. FLOREZ
                         Opinion of the Court

sentences. A.R.S. § 13-705(P)(1)(d)-(e). The legislature enacted this
provision in order to “reach criminals who specifically prey on
children”—one of society’s most vulnerable groups.              State v.
Williams, 175 Ariz. 98, 102, 854 P.2d 131, 135 (1993). The goal is to
punish and deter those who “pose a direct and continuing threat to
children.” Id. at 102-03, 854 P.2d at 135-36. As in Berger, the statutes
addressing molestation and sexual conduct with a minor advance
the state’s goal of combating the sexual abuse. 212 Ariz. 473, ¶ 19,
134 P.3d at 382. The sentencing schemes do not give rise to the
inference of gross disproportionality; therefore, we need not
consider the inter- and intra-jurisdictional comparisons. Id. ¶ 12.

¶26           Florez argues that the specific facts and circumstances
of his case nevertheless render his sentence grossly
disproportionate. Specifically, Florez argues our supreme court’s
decision in State v. Davis, 206 Ariz. 377, 79 P.3d 64 (2003), requires us
to take into account the mandatory consecutive nature of his
sentences. See generally § 13-705(C), (D), (M). As a general rule, the
consecutive nature of sentences has no bearing on the gross
disproportionality inquiry. Berger, 212 Ariz. 473, ¶ 27, 134 P.3d at
384.     “[I]f the sentence for a particular offense is not
disproportionately long, it does not become so merely because it is
consecutive to another sentence for a separate offense or because the
consecutive sentences are lengthy in aggregate.” Id. ¶ 28. Yet a
constitutional sentencing scheme mandating consecutive sentences
“may still, in its application to ‘the specific facts and circumstances’
of a defendant’s offense, result in an unconstitutionally
disproportionate sentence.” Id. ¶ 39, quoting Davis, 206 Ariz. 377,
¶ 31, 79 P.3d at 71; see also Davis, 206 Ariz. 377, ¶ 37, 79 P.3d at 72. A
comparison of Davis to Berger illustrates the point.

¶27          In Davis, our supreme court found an Eighth
Amendment violation when a defendant received four consecutive
thirteen-year sentences for four counts of sexual misconduct with a
minor arising out of his non-coerced sex with two teenage girls.
206 Ariz. 377, ¶¶ 7, 36-37, 79 P.3d at 67, 71-72. The court did not
hold that a single thirteen-year sentence for the crime of sexual
misconduct with a minor gave rise to an inference of gross
disproportionality in the abstract.      See id. ¶ 47 (recognizing


                                   14
                          STATE v. FLOREZ
                         Opinion of the Court

“legislature’s right to impose a thirteen-year minimum sentence for
dangerous crimes against children” and “to require consecutive
sentences for this type of offense”). Instead, it relied on factors
specific to the defendant’s situation, which placed him outside the
core of a broad statute, before concluding that a sentence of four
consecutive thirteen-year terms was grossly disproportionate. Id.
¶¶ 36-37; see also Berger, 212 Ariz. at 481, ¶ 44, 134 P.3d at 387. Those
factors included: (1) the trial judge, the jury, the presentence report
writer, and even the victims’ mothers all recognized the injustice of
the sentence; (2) the defendant’s sexual relationship with the girls
was voluntary and involved neither actual nor threatened violence;
(3) the defendant had no adult criminal offenses and no history of
crimes against children; (4) post-pubescent sexual activity is a reality
of adolescent life; (5) there was evidence in the record that the
defendant’s intelligence and maturity fell far below that of the
typical young adult; and, (6) the defendant’s conduct was caught up
in the “very broad sweep of the governing statute” that did not
distinguish between objectively predatory behavior and “the more
benign boyfriend-girlfriend situation in which one party is older
than eighteen and the other is younger than fifteen.” Davis, 212
Ariz. 473, ¶ 36, 134 P.3d at 385. For these reasons, the court
concluded the case “crie[d] out for departure from [the] general
rule” that a “court normally will not consider the imposition of
consecutive sentences in a proportionality inquiry.” Id. ¶ 47.

¶28          In contrast, three years after Davis, the court affirmed
the application of mandatory consecutive sentences in Berger,
consisting of ten-year prison terms for each of twenty images of
child pornography Berger possessed. 212 Ariz. 473, ¶¶ 4, 6, 51, 134
P.3d at 380, 388. Citing Davis, Berger argued that his circumstances
also warranted rejection of consecutive sentences. Berger, 212 Ariz.
473, ¶ 37, 134 P.3d at 385. The court disagreed and clarified: “The
specific facts and circumstances considered relevant in Davis are
those that go to the defendant’s degree of culpability for the offense,
not to a showing that the defendant is . . . a good person or a
promising prospect for rehabilitation.” Berger, 212 Ariz. 473, ¶ 47,
134 P.3d at 387. It found the circumstances of Berger’s case—that he
was a married high school teacher with no prior criminal record—
did not reduce his culpability. Id. ¶ 49. Berger knowingly acquired


                                   15
                          STATE v. FLOREZ
                         Opinion of the Court

and saved numerous images “graphically depicting sordid and
perverse sexual conduct with pre-pubescent minors” over a six-year
period. Id. ¶ 35. His offense was “at the core, not the periphery” of
the conduct the legislature sought to deter and punish via the child
pornography statute. Id. ¶ 44. Therefore, the specific facts of
Berger’s case “only amplifie[d] the conclusion that he consciously
sought to do exactly that which the legislature sought to deter and
punish.” Id. ¶ 49.

¶29          Florez argues his circumstances and offenses more
closely approximate Davis, so as to render consecutive sentences
grossly disproportionate. It is true that some of the factors the Davis
court delineated are also present here. Like the defendant in Davis,
Florez was young and had no adult criminal record before his arrest
in this case. Also, there is evidence in the record that Florez’s
developmental age lagged behind that of the average young adult. 11
Finally, the trial court expressed concern “that the statutorily-
mandated sentences were clearly excessive,” a factor Florez
contends is the “most important.”

¶30           While we acknowledge these similarities between
Florez’s case and Davis, we cannot ignore important differences
between them. The most obvious is that unlike the victims in Davis,
Florez’s victim was not a post-pubescent teenager who had
consented to or sought out the sexual encounters she had with him.
Cf. 206 Ariz. 377, ¶ 36, 79 P.3d at 71. Rather, she was Florez’s eleven-
year-old stepsister. Florez’s use of threats of violence to carry out
his crimes is another important distinguishing fact. At trial, the
victim testified Florez had threatened to hurt her family the first
time he touched her sexually, and she was afraid he would carry out
his threats if she did not oblige him. The victim also testified that he
had pulled her hair and pressed his knee into her back. Finally,
there was no indication in the record that the victim or her
immediate family felt the sentencing range was unjust.


      11The   mitigation specialist concluded: “While it is difficult to
estimate [Florez’s] true developmental age, it was certainly less than
17 or 18 at the time of the instant offense.”


                                  16
                          STATE v. FLOREZ
                         Opinion of the Court

¶31           Taken together, these differences place Florez’s
misconduct outside the realm of the “more benign boyfriend-
girlfriend situation” that existed in Davis. Id. As in Berger, the facts
and circumstances of Florez’s offense exemplify the type of conduct
against children that the legislature determined should be subject to
enhanced sentences. 212 Ariz. 473, ¶ 44, 134 P.3d at 386. “Thus,
there is no basis here to depart from the general rule that the
consecutive nature of sentences does not enter into the
proportionality analysis.” Id. Florez has not met his burden of
showing fundamental error.

                             Disposition

¶32          For the foregoing         reasons,   we   affirm   Florez’s
convictions and sentences.




                                  17
