                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                           TRACY ELISE, Appellant.

                             No. 1 CA-CR 16-0373
                               FILED 11-1-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-001555-007
               The Honorable Sherry K. Stephens, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Law Offices of Stephen L. Duncan P.L.C., Scottsdale
By Stephen L. Duncan
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig
joined.
                             STATE v. ELISE
                           Decision of the Court

J O N E S, Judge:

¶1            Tracy Elise appeals her convictions and sentences for multiple
counts of money laundering, pandering, and operating a house of
prostitution, arising from her operation of the Phoenix Goddess Temple
(the Temple) in 2010 and 2011. Elise argues the trial court erred by relying
upon an earlier ruling to which she had no opportunity to object. She also
argues that because she was ultimately convicted of offenses arising from
her asserted religious practices, her fundamental right to freely exercise her
religion was violated. For the following reasons, we affirm her convictions
and sentences.

                 FACTS AND PROCEDURAL HISTORY

¶2             In September 2011, the Phoenix Police Department raided the
Temple and arrested thirty-nine people after a six-month investigation into
the activities of the Temple and its employees.1 The Temple employed
multiple women who performed sexual acts in exchange for money. Elise,
the Temple’s operator, was initially found not competent to stand trial, and
the State dismissed its charges against her without prejudice. After Elise
was successfully restored to competency, she was charged with twenty-
eight counts of prostitution, racketeering, money laundering, conspiracy,
and pandering. Elise represented herself throughout the 48-day jury trial,
and she was ultimately convicted of twenty-two counts. The trial court
sentenced Elise to concurrent terms of imprisonment, the longest of which
was 4.5 years. Elise timely appealed her convictions and sentences, and we
have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.)
§§ 12-120.21(A)(1),2 13-4031, and -4033(A)(1).

                               DISCUSSION

I.     Due Process

¶3           Elise argues the trial court violated her due process rights by
relying upon a ruling preventing her codefendants from raising a defense


1      “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).

2     Absent material changes from the relevant date, we cite a statute’s
current version.


                                      2
                              STATE v. ELISE
                            Decision of the Court

pursuant to the Arizona Free Exercise of Religion Act (FERA), A.R.S. §§ 41-
1493 to -1493.04, to preclude her from raising the same defense. Elise alleges
she was not given a meaningful opportunity to be heard on the issue. See
State v. Klem, 108 Ariz. 349, 350 (1972) (citing Cole v. Arkansas, 333 U.S. 196,
201 (1948)). Whether a party was afforded due process presents a question
of law reviewed de novo. State v. Rosengren, 199 Ariz. 112, 116, ¶ 9 (App.
2000) (citing Mack v. Cruickshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999)).

¶4              Although the State successfully precluded Elise’s
codefendants from raising FERA defenses in the initial proceedings, the
State refiled its motion as to Elise after she was restored to competency. In
response to the renewed motion, Elise briefed her opposition and
participated in oral arguments, and the trial court reserved its ruling until
the end of trial. Elise raised the FERA issue at least two more times, once
in a pretrial motion for an evidentiary hearing and again after the State
rested in a motion to dismiss or for a jury instruction on her FERA defense.
After a second oral argument, the court independently determined FERA
did not provide a defense to the charges against Elise.

¶5           The record reflects Elise had adequate notice and opportunity
to be heard on the validity of her FERA defense. We find no due process
violation.

II.    Religious Freedom Defense

¶6            Elise argues her convictions for acts arising out of her
operation of the Temple violated her right to religious freedom under the
First Amendment of the U.S. Constitution and FERA. We review both the
constitutional claims and those involving the application of a statute de
novo. See State v. Fischer, 219 Ariz. 408, 411, 415, ¶¶ 8, 21 (App. 2008).

       A.     First Amendment

¶7             The Free Exercise Clause of the First Amendment, which has
been made applicable to the states by incorporation into the Fourteenth
Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides:
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof,” U.S. Const. amend. I. The free
exercise of religion encompasses two concepts: “the right to believe and
profess whatever religious doctrine one desires,” and “the right to the
performance of (or abstention from) physical acts for religious reasons.”
Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 877 (1990),
superseded by statute on other grounds. The first concept — freedom to believe
and profess — is absolute but, “in the nature of things, the second [concept


                                       3
                               STATE v. ELISE
                             Decision of the Court

regarding the performance of physical acts for religious reasons] cannot
be.” Cantwell, 310 U.S. at 303. Thus, “the right to engage in actions or
conduct prompted by religious beliefs or principles ‘is not totally free from
legislative restrictions.’” Fischer, 219 Ariz. at 412, ¶ 10 (quoting Sherbert v.
Verner, 374 U.S. 398, 403 (1963)). Rather, “[c]onduct remains subject to
regulation for the protection of society.” Cantwell, 310 U.S. at 304.

¶8             Nonetheless, the First Amendment generally does not
invalidate neutral laws of general applicability. See Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190 (2012) (citing
Smith, 494 U.S. at 878-79); see also State v. Hardesty, 222 Ariz. 363, 365, ¶ 7 n.6
(2009). Here, Elise was convicted of violating A.R.S. §§ 13-2312 (illegal
control of an enterprise), -2317 (money laundering), -3208 (operating a
house of prostitution), -3209 (pandering), and -3214 (prostitution). These
statutes are facially neutral laws of general applicability, and Elise has not
shown the statutes were enacted or enforced with any discriminatory
intent. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,
534-35 (1993) (holding city ordinances prohibiting animal sacrifice violated
the First Amendment where the evidence indicated “the object of the
ordinances [was] suppression of the central element of the Santeria worship
service”). Accordingly, Elise’s First Amendment claim fails as a matter of
law.

       B.      Arizona Free Exercise of Religion Act

¶9             “The legislature passed FERA in 1999 to protect Arizona
citizens’ right to exercise their religious beliefs free from undue
governmental interference.” Hardesty, 222 Ariz. at 365, ¶ 8 (citing 1999 Ariz.
Sess. Laws, ch. 332, § 2 (1st Reg. Sess.)). In some instances, FERA protects
the free exercise of religion, “even if [state] laws, rules or other government
actions are facially neutral.” A.R.S. § 41-1493.01(A). However, a party
raising a FERA defense must prove three elements: “(1) that an action or
refusal to act is motivated by a religious belief, (2) that the religious belief
is sincerely held, and (3) that the government action substantially burdens
the exercise of religious beliefs.” Hardesty, 222 Ariz. at 366, ¶ 10 (citations
omitted).

¶10            Elise’s convictions arise out of her purported engagement in
and facilitation of prostitution. “Prostitution” is “engaging in or agreeing
or offering to engage in sexual conduct under a fee arrangement with any
person for money or any other valuable consideration.” A.R.S. § 13-3211.
Elise argued at trial, and again on appeal, that the “sexual healing” offered
at the Temple was religiously motivated, separate and unrelated to the


                                        4
                             STATE v. ELISE
                           Decision of the Court

“donations” accepted at the Temple. However, the evidence presented at
trial indicates Elise operated the Temple to exchange specific sexual acts for
a specific amount of money. Temple workers were required to place
advertisements on websites commonly used to advertise prostitution. One
such advertisement stated that an hour of “hands-on touch” cost $204 — an
hourly rate consistent with that reported to law enforcement by Temple
workers and customers. Additionally, most visitors believed they were
required to pay money in order to receive a sexual act. Indeed, the Temple
expected visitors to pay money after receiving a sexual act and contacted
visitors who had not paid to inquire as to the reason for nonpayment.

¶11           Viewing the evidence in the light most favorable to upholding
Elise’s convictions, as we must, see supra n.1, we conclude Elise did not
prove the sexual acts performed at the Temple were motivated by a
religious belief, rather than for pecuniary gain. Therefore, FERA does not
apply. Accordingly, the trial court did not err when it declined to dismiss
the charges against Elise or instruct the jury on FERA.

                               CONCLUSION

¶12           Elise’s convictions and sentences are affirmed.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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