                                                                  FILED BY CLERK
                                                                     JAN 31 2013
                           IN THE COURT OF APPEALS
                               STATE OF ARIZONA                       COURT OF APPEALS
                                                                        DIVISION TWO
                                 DIVISION TWO


THE STATE OF ARIZONA,             )               2 CA-CR 2012-0065
                                  )               DEPARTMENT B
                       Appellee, )
                                  )               OPINION
              v.                  )
                                  )
JOSEPH LAWRENCE DIXON,            )
                                  )
                       Appellant. )
                                  )


         APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

                              Cause No. CR201100293

                        Honorable James L. Conlogue, Judge

                                    AFFIRMED


Thomas C. Horne, Arizona Attorney General
 By Kent E. Cattani, Joseph T. Maziarz, and
 Diane Leigh Hunt                                                           Tucson
                                                             Attorneys for Appellee

Joel A. Larson, Cochise County Legal Defender
 By Joel A. Larson                                                           Bisbee
                                                             Attorneys for Appellant


K E L L Y, Judge.
¶1           Joseph Dixon appeals from his convictions and sentences for twenty-four

counts of sexual exploitation of a minor. He argues the state lacked subject matter

jurisdiction over his possession of exploitive visual depictions because there was no

evidence a criminal offense had been committed during the creation of those depictions.

He also contends the court erred in sentencing him under A.R.S. § 13-705 because there

was no evidence an offense was committed against a minor. We affirm.

                          Factual and Procedural Background

¶2           The relevant facts are undisputed. After a jury trial, Dixon was convicted

of twenty-four counts of sexual exploitation of a minor under the age of fifteen years by

knowingly possessing, electronically transmitting, exchanging, or receiving any visual

depiction in which a minor under the age of fifteen years is engaged in exploitive

exhibition or other sexual conduct.     He was sentenced to twenty-four consecutive

minimum ten-year prison terms pursuant to § 13-705(D). This appeal followed.

                                       Discussion

¶3           Dixon argues the state lacked subject matter jurisdiction over his possession

of exploitive visual depictions because there was no evidence a criminal offense had been

committed when the relevant depictions were created. Arizona has jurisdiction over a

criminal offense if “[c]onduct constituting any element of the offense or a result of such

conduct occurs within this state.” A.R.S. § 13-108. “Subject matter jurisdiction is a

question of law, which we review de novo.” State v. Bryant, 219 Ariz. 514, ¶ 4, 200 P.3d

1011, 1013 (App. 2008).

                                            2
¶4            Section 13-3553(A), A.R.S., provides that a person commits sexual

exploitation of a minor by knowingly:

              1. Recording, filming, photographing, developing or
              duplicating any visual depiction in which a minor is engaged
              in exploitive exhibition or other sexual conduct.

              2. Distributing, transporting, exhibiting, receiving, selling,
              purchasing, electronically transmitting, possessing or
              exchanging any visual depiction in which a minor is engaged
              in exploitive exhibition or other sexual conduct.

“Our primary purpose in interpreting a statute is to give effect to the legislature’s intent.”

State v. Hinden, 224 Ariz. 508, ¶ 9, 233 P.3d 621, 623 (App. 2010). The best and most

reliable indicator of that intent is the statute’s language and, if it is plain and

unambiguous, we will “look no further.” Id.; see also City of Tucson v. Clear Channel

Outdoor, Inc., 218 Ariz. 172, ¶ 6, 181 P.3d 219, 225 (App. 2008) (when statutory

language unambiguous “a court should not look beyond the language but rather ‘simply

apply it without using other means of construction, assuming that the legislature has said

what it means’”), quoting Hughes v. Jorgenson, 203 Ariz. 71, ¶ 11, 50 P.3d 821, 823

(2002).

¶5            Dixon concedes each image that formed the basis for his convictions “me[t]

the definition of an exploitive exhibition.” See A.R.S. § 13-3551(4). And he does not

dispute that he possessed the depictions in Arizona. He also acknowledges that case law

has established “[e]ach subsection [of § 13-3553(A)] is violated by distinctly different




                                              3
conduct causing different kinds of harm to the child” and creates separate and distinct

offenses. State v. Paredes-Solano, 223 Ariz. 284, ¶ 15, 222 P.3d 900, 906 (App. 2009).

¶6            Dixon argues, however, a minor may not be sexually exploited pursuant to

§ 13-3553(A)(2) unless that minor was “criminally victimized” during the creation of the

visual depiction described in § 13-3553(A)(1), under the law at the location where it was

created. He contends that if the creation of the depiction was legal where it was created,

its possession cannot support a conviction in Arizona because the “act of possession

cannot be uncoupled from the depiction.” Dixon proposes that, unless the state proves an

offense occurred during creation of the depiction, it lacks jurisdiction because “the simple

conduct of possession has not ripened into an element of the offense.”             But even

assuming Dixon’s theory would limit the state’s jurisdiction over sexual exploitation

offenses, his argument fails because we reject his construction of the statute.

¶7            Dixon’s proposed interpretation of § 13-3553(A) imposes additional

elements not supported by the statute’s language or related case law.             It is well-

established that possessing a visual depiction pursuant to § 13-3553(A)(2) is a separate

act that supports a conviction under the statute, independent of any conduct described in

§ 13-3553(A)(1). See State v. Jensen, 217 Ariz. 345, ¶ 6, 173 P.3d 1046, 1049 (App.

2008) (“receiving” and “possessing” each separate act violating statute). And nothing in

the definition of exploitive exhibition requires the state to prove an additional criminal

offense—instead, it describes particular conduct that Dixon does not dispute was proven

in this case. See § 13-3551(4) (exploitive exhibition is “the actual or simulated exhibition

                                             4
of the genitals or pubic or rectal areas of any person for the purpose of sexual stimulation

of the viewer”).

¶8            In Paredes-Solano, this court noted the conduct described in § 13-

3553(A)(2) “can only occur after an image has been created” and harms the minor by

perpetuating “those images.” 223 Ariz. 284, ¶¶ 10, 15, 222 P.3d at 904, 906. Dixon

contends this language supports his suggestion that the same minor must be victimized

both by the creation of a depiction and by its possession before such possession can

support a conviction.      However, the cited language neither addresses nor supports

Dixon’s argument, but merely acknowledges that each subsection refers to the same type

of depiction. Moreover, the case explicitly refutes Dixon’s suggestion that proof of one

offense is a necessary prerequisite to proving the other by reiterating that “[t]he two

subsections . . . create offenses that are separate and distinct.” Id. ¶ 15.

¶9            Dixon also argues the “legislative purpose behind A.R.S. § 13-3553 [is] to

protect the children of Arizona from sexual exploitation,” which supports limiting the

application of the statute as he has proposed. We disagree for several reasons. First, a

statute’s plain language is conclusive unless it will frustrate the legislature’s clearly

expressed intent. State v. Estrada, 201 Ariz. 247, ¶ 19, 34 P.3d 356, 360 (2001). And

“[s]tatutes shall be liberally construed to effect their objects and to promote justice.”

A.R.S. § 1-211(B). Dixon has not shown the legislature’s intended purpose would be

frustrated by prohibiting the possession of exploitive depictions even where the state has

not proven the minor depicted was “victimized” under Arizona law on an earlier

                                               5
occasion. To the contrary, when the legislature enacted the predecessor to § 13-3553, it

recognized its interest was not limited to protecting the minor victims depicted, but

extended to combating “the climate encouraging the sexual exploitation of other

children.” 1978 Ariz. Sess. Laws, ch. 200, § 2. It also found “the use of children as

subjects in the production of pornographic materials is very harmful to . . . society as a

whole.” Id.

¶10           Moreover, we presume the legislature did not intend an absurd result.

Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 26, 181 P.3d at 229. Under Dixon’s

proposed interpretation, if a minor—even an Arizona resident—was taken to a

jurisdiction that did not criminalize the acts depicted in the creation of child pornography,

any depictions created there could be distributed and possessed in Arizona without

implicating § 13-3553(A). In light of the legislature’s express findings regarding the

broad and continuing harm caused by such acts, this would be an absurd result.

¶11           The plain language of § 13-3553(A) does not support Dixon’s contention

that his “simple conduct of possession ha[d] not ripened into an element of the offense,”

nor is the legislature’s clearly expressed intent frustrated by the application of the

statute’s plain language. See Estrada, 201 Ariz. 247, ¶ 19, 34 P.3d at 360. Because

conduct constituting Dixon’s possession pursuant to § 13-3553(A)(2) occurred in

Arizona, the state had subject matter jurisdiction over his offenses.1 See § 13-108.


       1
       For the same reason, the cases Dixon cites discussing “the extent of Arizona’s
power to punish conduct that occurs outside of the State” are inapposite.
                                             6
¶12           Dixon also argues the trial court committed fundamental error by

sentencing him pursuant to A.R.S. § 13-705. In an argument similar to that addressed

above, he argues § 13-705 does not apply to a conviction under § 13-3553 “in the

absence of evidence that an offense was committed in the making of the visual

depiction.”   Dixon did not object on this basis below and we therefore review for

fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115

P.3d 601, 607 (2005).       However, imposition of an illegal sentence constitutes

fundamental error. State v. Zinsmeyer, 222 Ariz. 612, ¶ 26, 218 P.3d 1069, 1080 (App.

2009).

¶13           Section 13-705 provides that sexual exploitation of a minor is a dangerous

crime against children and establishes the sentencing range for those convicted of the

offense. § 13-705(D), (P)(1)(g). Dixon does not dispute the jury found he was guilty of

twenty-four counts of sexual exploitation based on his possession of depictions of minors

engaged in exploitive exhibition. For the reasons discussed above, the conduct described

in § 13-3553(A)(2) constitutes the sexual exploitation of a minor even absent any proof

of an offense pursuant to § 13-3553(A)(1). And nothing in § 13-705 supports Dixon’s

contention that the state must prove the minor victim’s “connection” to Arizona before

sexual exploitation may be punished as a dangerous crime against children. Hinden, 224

Ariz. 508, ¶ 9, 233 P.3d 621, 623 (we will not look beyond plain and unambiguous

language).    Therefore, we reject his contention that the state has not proven a



                                           7
“victimizing offense” and conclude the trial court did not err in sentencing him pursuant

to § 13-705.

                                       Disposition

¶14            For the foregoing reasons, Dixon’s convictions and sentences are affirmed.




                                             /s/ Virginia C. Kelly
                                             VIRGINIA C. KELLY, Judge


CONCURRING:

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




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