                               IN THE
              ARIZONA COURT OF APPEALS
                            DIVISION TWO


                       THE STATE OF ARIZONA,
                            Respondent,

                                    v.

                     CHRISTIAN PAUL ROYALTY,
                             Petitioner.

                     No. 2 CA-CR 2014-0240-PR
                       Filed October 16, 2014


  Petition for Review from the Superior Court in Yavapai County
                      No. P1300CR200900998
               The Honorable Michael R. Bluff, Judge

              REVIEW GRANTED; RELIEF DENIED


                             COUNSEL

Sheila Sullivan Polk, Yavapai County Attorney
By Dana E. Owens, Prescott
Counsel for Respondent

C. Kenneth Ray II, P.C., Prescott
By C. Kenneth Ray II
Counsel for Petitioner
                         STATE v. ROYALTY
                         Opinion of the Court


                              OPINION

Judge Howard authored the opinion of the Court, in which Judge
Vásquez and Judge Brammer1 concurred.


H O W A R D, Judge:

¶1            Petitioner Christian Royalty seeks review of the trial
court’s order summarily dismissing his petition for post-conviction
relief filed pursuant to Rule 32, Ariz. R. Crim. P., asserting he is
entitled to a new trial or to be resentenced, or at the very least, to an
evidentiary hearing. We will not disturb that ruling unless the court
clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4,
166 P.3d 945, 948 (App. 2007). We find no such abuse here.

                 Factual and Procedural Background

¶2           Royalty was convicted after a jury trial of ten counts of
sexual exploitation of a minor, 2 all dangerous crimes against
children. The convictions arose from the discovery of a six-page
computer printout from a website; the printout included sixty-eight
pictures of both real and computer-generated children engaged in
various sexual acts or exploitive exhibitions and was found inside a



      1  The Hon. J. William Brammer, Jr., a retired judge of this
court, is called back to active duty to serve on this case pursuant to
orders of this court and the supreme court.
      2Section 13-3553(A)(2), A.R.S., provides that a person commits
sexual exploitation of a minor by knowingly: “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.” Subsection (C) of the statute provides the offense is a
class two felony “and if the minor is under fifteen years of age it is
punishable pursuant to § 13-705” as a dangerous crime against
children.

                                   2
                         STATE v. ROYALTY
                         Opinion of the Court

locked briefcase in Royalty’s bedroom closet. 3 The trial court
sentenced him to ten consecutive life terms without the possibility of
release for thirty-five years. We affirmed his convictions and
sentences on appeal. State v. Royalty, No. 1 CA-CR 10-0527, ¶ 28
(memorandum decision filed Oct. 4, 2011).

¶3           In his petition for post-conviction relief, Royalty
asserted the trial court lacked jurisdiction to sentence him pursuant
to A.R.S. § 13-705, the statute that governs dangerous crimes against
children, rendering his sentences excessive and illegal. He also
argued appellate and trial counsel had been ineffective—appellate
counsel by failing to challenge his sentences, and trial counsel by
failing to discover exculpatory evidence before trial. The court
summarily dismissed his petition, and this petition for review
followed.

                              Discussion

¶4           To the extent Royalty challenges on review the trial
court’s rejection of his claim that it improperly enhanced his
sentences under § 13-705, this claim is precluded because he could
have raised it on appeal; and in fact, Royalty did raise a related
challenge to § 13-705 on appeal. See Royalty, No. 1 CA-CR 10-0527,
¶¶ 20-25; see also Ariz. R. Crim. P. 32.2(a) (defendant precluded from
Rule 32 relief on any ground raised or raisable on appeal).
However, to the extent this claim is raised as one of ineffective
assistance of counsel, it is not precluded.

¶5          In order to state a colorable claim of ineffective
assistance of counsel, a defendant must establish that counsel’s
performance fell below an objectively reasonable professional
standard and that the deficient performance was prejudicial to the
defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v.
Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985).




      3Royalty   subsequently admitted the briefcase belonged to him.

                                   3
                         STATE v. ROYALTY
                         Opinion of the Court

¶6           In what appears to be a claim of ineffective assistance
related only to appellate counsel, 4 Royalty argues counsel should
have challenged the enhancement of his sentence under § 13-705.
Section 13-3551(6), A.R.S., defines a “minor” as “a person or persons
who were under eighteen years of age at the time a visual depiction
was created, adapted or modified.” Royalty points out that § 13-
705(P)(1)(g) provides that a “[d]angerous crime against children”
(including sexual exploitation of a minor), means a crime
“committed against a minor who is under fifteen years of age”
(emphasis added), and that the computer printout found in his
closet was “created, adapted or modified” in October 2008, the date
on the printout. He argues, therefore, because the children in the
images giving rise to counts three and seven of the indictment were
not under the age of fifteen 5 in October 2008, when he “created,
adapted or modified” the images, § 13-705 does not apply to him.
He also maintains the state “failed to offer any evidence or
testimony establishing the ages [in October 2008] of the persons” in
the remaining eight images, who unlike the images relating to
counts three and seven, were not “known images” of identifiable
individuals.



      4  Although Royalty suggests initially that only appellate
counsel was ineffective for failing to challenge the applicability of
§ 13-705, he subsequently suggests in the body of his petition that
this claim applies to both trial and appellate counsel. However, he
also asserts, “Presumably, the Trial Court would have been of the
same opinion upon the allegation that Defendant’s Trial counsel was
also ineffective for failing to assert . . . the inapplicability of A.R.S.
[§] 13-705,” suggesting he had not asserted trial counsel was
ineffective in this regard. In any event, because we find the trial
court did not abuse its discretion in rejecting these claims, this
distinction is not material.
      5It is undisputed that the individuals depicted in the images
relating to counts three and seven were under the age of fifteen
when the images were first created, but because they were born in
1967 and 1989 respectively, they were not minors in October 2008,
the date on the computer printout found in Royalty’s closet.

                                    4
                         STATE v. ROYALTY
                         Opinion of the Court

¶7            In its order rejecting this argument below, the trial court
found Royalty had failed to provide any legal authority to support
his interpretation of § 13-705(P)(1)(g) and also concluded it would
not have found this theory persuasive even had it been presented at
trial or sentencing.

¶8            We conclude the trial court correctly dismissed this
claim and reject Royalty’s construction of § 13-705(P)(1)(g). See, e.g.,
State v. Dixon, 231 Ariz. 319, ¶ 6, 294 P.3d 157, 158 (App. 2013)
(rejecting defendant’s construction of § 13-3553(A) that criminal
offense must be committed when sexually exploitive image of child
created). “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). In so doing, “‘[w]e look first to the
statute’s language because we expect it to be the best and most
reliable index of a statute’s meaning.’” Id., quoting State v. Williams,
175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). “When the plain text of a
statute is clear and unambiguous there is no need to resort to other
methods of statutory interpretation to determine the legislature’s
intent because its intent is readily discernable from the face of the
statute.” State v. Christian, 205 Ariz. 64, ¶ 6, 66 P.3d 1241, 1243
(2003).

¶9           The term “minor,” as used in A.R.S. § 13-3553(A)(2), the
sexual exploitation of a minor statute, is defined in § 13-3551(6) as “a
person or persons who were under eighteen years of age at the time
a visual depiction was created, adapted or modified.” Section 13-
3553(C) provides that sexual exploitation of a minor is a class 2
felony, but if “the minor is under fifteen years of age,” the crime is
punishable under § 13-705. By requiring harsher punishment if “the
minor is under fifteen years of age” (emphasis added), the legislature
clearly intended to create a subset of minors under the definition in
§ 13-3551(6) who were sexually exploited. And, because § 13-3551(6)
defines the minors in § 13-3553(A)(2) as those victims under
eighteen years of age when the visual depiction was “created,
adapted or modified,” the distinct subset of minors defined in § 13-
3553(C) likewise fall within that same definition and the perpetrator
may be punished more harshly if the minor was under fifteen years
of age when the visual depiction was “created, adapted or
modified.”

                                   5
                        STATE v. ROYALTY
                        Opinion of the Court

¶10          Accordingly, because § 13-3553(C) specifically requires
a perpetrator be punished under § 13-705 when the victim is under
the age of fifteen, we need not refer to the definition of dangerous
crimes against children in § 13-705(P)(1)(g) to determine the
appropriate punishment here. But even if we do, our interpretation
is informed by the clear legislative intent displayed in § 13-3553(C).6

¶11           Moreover, Royalty’s proposed interpretation of § 13-
705(P)(1)(g), which would permit defendants like him to escape
enhanced punishment merely because their acts were not reported
until the victim was fifteen or older, would “be an absurd result.”
See Dixon, 231 Ariz. 319, ¶ 10, 294 P.3d at 159. Not only does that
interpretation frustrate the legislature’s clear intent to treat more
harshly individuals who possess exploitive images of children under
fifteen years of age when the image was created, it also does not
promote justice. See A.R.S. § 1-211(B) (“[s]tatutes shall be liberally
construed to effect their objects and to promote justice.”). 7 In
addition, our legislature has expressed a clear intent to address the
“broad and continuing harm caused by” acts involving sexual
offenses against children. Dixon, 231 Ariz. 319, ¶ 10, 294 P.3d at 159.
“[W]hen the legislature enacted the predecessor to § 13-3553,” it
found “‘the use of children as subjects in the production of
pornographic materials is very harmful to . . . society as a whole,’”
id. ¶ 9, quoting 1978 Ariz. Sess. Laws, ch. 200, § 2, and “[c]ommercial
distribution of child pornography . . . is a continuing cause of harm
to the child participants and . . . it further develops the climate
encouraging the sexual exploitation of other children,” 1978 Ariz.
Sess. Laws, ch. 200, § 2.

¶12          And, in State v. Paredes-Solano, 223 Ariz. 284, ¶ 15, 222
P.3d 900, 906 (App. 2009), we concluded “[t]he actions listed in [§ 13-
3553(A)(2)] harm the child through the perpetuation of those
images.” See also Osborne v. Ohio, 495 U.S. 103, 111 (1990) (“[T]he
materials produced by child pornographers permanently record the

      6We express no opinion about the correct interpretation of any
other dangerous crime against a child.
      7 Royalty
              does not claim he lacked notice that he faced the
enhanced punishment.

                                  6
                        STATE v. ROYALTY
                        Opinion of the Court

victim’s abuse. The pornography’s continued existence causes the
child victims continuing harm by haunting the children in years to
come.”); United States v. Norris, 159 F.3d 926, 929 (5th Cir. 1998)
(“Unfortunately, the ‘victimization’ of the children involved does
not end when the pornographer’s camera is put away.”); State v.
Berger, 212 Ariz. 473, ¶ 18, 134 P.3d 378, 382 (2006) (child
pornography victims harmed not only by production of images but
also by invasion of privacy in others’ continued possession of such
images).

¶13          Royalty does not dispute that all of the minors were
under fifteen years of age when the images were created. Therefore,
he is subject to the harsher punishment of § 13-705 for all of the
counts.

¶14           Royalty must show his counsel’s performance “fell
below objectively reasonable standards.” State v. Bennett, 213 Ariz.
562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland, 466 U.S. at 687.
Because Royalty’s interpretation of §§ 13-705(P)(1)(g) and 13-3553(C)
is incorrect, he has not established his appellate counsel fell below
reasonable standards in failing to raise this issue or that he was
prejudiced.

¶15          Finally, Royalty argues trial counsel was ineffective for
failing to conduct sufficient “reasonable” pretrial investigation that
would have revealed exculpatory evidence showing his grandfather
had committed the offenses of which he was convicted.8 In its ruling
denying relief on this claim,9 the trial court noted it had considered

      8As described by Royalty, the additional evidence would have
shown that: Royalty had told his mother and grandmother his
grandfather had a problem with pornography, and he had
confronted his grandfather with this accusation; and, his
grandfather had used the same computer Royalty had used, had
accessed pornographic material in the past, and had previously
exercised control over the briefcase in which the images in this
matter were found.
      9Royalty did not present this claim as one of newly discovered
evidence pursuant to Rule 32.1(e), Ariz. R. Crim. P., in his petition
for post-conviction relief. And, he only briefly mentioned that the
                                  7
                        STATE v. ROYALTY
                        Opinion of the Court

the post-conviction interviews10 Royalty had offered to support his
claim that “his grandfather was the one who actually downloaded
and possessed the illegal images, not him.” Concluding that any
additional evidence in this regard either would have been irrelevant
or cumulative, the court then referred to our findings on appeal:
“Although Royalty denied knowing of the printout when
questioned by the police and stated it belonged to his grandfather,
the grandfather testified the pictures were not his. The jury was free
to reject Royalty’s denials of responsibility and instead believe the
grandfather’s testimony.” Royalty, No. 1 CA-CR 10-0527, ¶ 17.

¶16           At trial, Royalty’s grandmother testified that although
she was aware her husband had playing cards and magazines that
were pornographic, she “wouldn’t say he had a problem with”
pornography. She also testified that approximately eight months
before trial Royalty had told her he had found pornographic images
he believed belonged to his grandfather on “the computer,”
information Royalty also had shared with his mother.              The
grandmother added that Royalty had confronted his grandfather
with the accusation that the images on the computer belonged to
him. Although the grandfather acknowledged he at times had
exercised control over the briefcase in which the images at trial had

post-conviction interviews forming the basis for the claim were
“newly-discovered information” in his reply to the state’s opposition
to his petition. He nonetheless suggests his claim was based on this
theory. Although the trial court treated it as a claim of both newly
discovered evidence and ineffective assistance of counsel, we
address it only as a claim of ineffective assistance of counsel. Cf.
State v. Cannon, 148 Ariz. 72, 79, 713 P.2d 273, 280 (1985) (“[An
appellate court] can disregard substantive issues raised for the first
time in the reply brief.”); State v. Ruggiero, 211 Ariz. 262, n.2, 120
P.3d 690, 695 n.2 (App. 2005) (issues first raised in reply brief
generally waived); State v. Oakley, 180 Ariz. 34, 36, 881 P.2d 366, 368
(App. 1994) (“[An appellate court] will affirm the trial court when it
reaches the correct result even though it does so for the wrong
reasons.”).
      10 This argument was based on interviews with Royalty’s
grandfather, grandmother, and mother.

                                  8
                         STATE v. ROYALTY
                         Opinion of the Court

been found, he testified the images did not belong to him. In
addition, one of the detectives who served the search warrant in this
matter testified that Royalty had told him the images in the briefcase
belonged to his grandfather, and that Royalty had spoken to both his
mother and grandfather about his grandfather’s problem with
pornography.

¶17          Based on Royalty’s summary of the additional evidence,
the record clearly supports the trial court’s finding that this evidence
was, at best, cumulative. The record simply does not support
Royalty’s assertion that this new evidence would have shown
Royalty “did not download and, thereafter, possess [the images] but,
rather, that such was downloaded and possessed by” his
grandfather. Nor does the record support Royalty’s assertion that
this evidence necessarily established trial counsel was ineffective for
having failed to discover before trial “that which was, in fact,
discoverable.” Having failed to show why the court’s conclusion
that the evidence would have been cumulative or irrelevant was
wrong, Royalty has not shown the outcome at trial would have been
different even had trial counsel conducted a more thorough pretrial
investigation. Accordingly, because Royalty has not made the
showing of prejudice necessary to establish a claim of ineffective
assistance of counsel, we find no abuse of discretion in the court’s
denial of this claim. See Strickland, 466 U.S. at 687; Nash, 143 Ariz. at
397, 694 P.2d at 227.

                              Disposition

¶18          Accordingly, we grant review but deny relief.




                                   9
