                              IN THE
             ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                 v.

                        BRIAN K. HANCOCK,
                            Appellant.

                      No. 2 CA-CR 2015-0117
                        Filed July 29, 2016

        Appeal from the Superior Court in Greenlee County
                        No. CR201400060
            The Honorable Monica L. Stauffer, Judge

  CONVICTIONS AFFIRMED; SENTENCES VACATED AND
                   REMANDED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee

Law Offices of Trent R. Buckallew, P.C., Mesa
By Trent R. Buckallew
Counsel for Appellant
                          STATE v. HANCOCK
                           Opinion of the Court
                    __________________________

                               OPINION

Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Howard and Judge Staring concurred.


E S P I N O S A, Judge:

¶1           After a jury trial, Brian Hancock was found guilty of
sexual conduct with a minor and two counts of sexual abuse of his
then fifteen-year-old step-daughter.        The jury found two
aggravating factors proven beyond a reasonable doubt, and he was
sentenced to consecutive and concurrent, enhanced and aggravated
prison terms totaling twelve years. On appeal, Hancock alleges he
was denied his constitutional right to a public trial, challenges the
sufficiency of the evidence, and contends his sentences were illegally
enhanced. For the following reasons we affirm his convictions, but
remand for resentencing.

                Factual and Procedural Background

¶2           We view the facts in the light most favorable to
sustaining the jury’s verdicts. State v. Payne, 233 Ariz. 484, n.1, 314
P.3d 1239, 1251 n.1 (2013). In the spring of 2013, Hancock engaged
in sexual conduct with his fifteen-year-old step-daughter, M.H.,
while she pretended to be asleep on his bed. That summer, M.H.
confided to some friends that her father had molested her. Two of
the friends reported it to their parents, who in turn alerted the
Graham County Sheriff’s Office. During a forensic interview with
sheriff’s detectives, M.H. described two separate instances where
she was awoken by her stepfather squeezing her breasts and
rubbing her vaginal area. Hancock was indicted on two charges of
sexual abuse, both class five felonies in violation of A.R.S. § 13-
1404(A), and one charge of sexual conduct, a class two felony in
violation of A.R. S. § 13-1405(A) and (B).

¶3        Before trial, the state disclosed Hancock’s immediate
family members as potential witnesses. Hancock’s wife and his
mother were named on the state’s initial disclosure in July 2014,

                                   2
                         STATE v. HANCOCK
                          Opinion of the Court
Hancock’s wife was deposed in October 2014, and three other family
members were disclosed as witnesses in January 2015, over two
weeks before the commencement of trial.

¶4            Before the calling of any witnesses on the second day of
trial, the court indicated it intended to invoke “the rule” 1 barring
any witness from being in the courtroom during testimony. The
prosecutor then asked that the victim and her guardian be sworn
separately from the “defense witnesses,” i.e. Hancock’s family,
because the victim was upset by seeing Hancock and other members
of the family. Hancock did not object to the court’s invocation of the
rule or to the witnesses being sworn in separately. He did not testify
in his own defense, and the state ultimately did not call any of the
family witnesses to testify.

¶5           Hancock’s trial occurred over three days, during which
the jury heard evidence from M.H., the two friends who reported
the abuse, and two law enforcement officers involved in the
investigation. At the conclusion of the trial, Hancock was found
guilty of all charges. The jury also found that two aggravating
factors had been proven beyond a reasonable doubt. At sentencing,
the trial court found a third aggravating factor, Hancock admitted a
prior felony conviction, and the court sentenced him as described
above. We have jurisdiction over Hancock’s appeal pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).



      1The   first day of trial was occupied by jury selection. Although
it is clear the trial court’s reference to “the rule” was to the rule of
witness exclusion, it is unclear which rule of exclusion the court was
referring to. Rule 9.3(a), Ariz. R. Crim. P., authorizes a trial court to,
and “at the request of either party shall, exclude prospective
witnesses from the courtroom during opening statements and the
testimony of other witnesses.” Rule 615, Ariz. R. of Evid., similarly
provides that “[a]t a party’s request, the court must order witnesses
excluded so that they cannot hear other witnesses’ testimony. Or
the court may do so on its own.” Finding no difference that would
impact our analysis, we do not distinguish between the two rules
here.


                                    3
                        STATE v. HANCOCK
                         Opinion of the Court
                             Public Trial

¶6            The Sixth Amendment to the United States Constitution
and Article II, § 24 of the Arizona Constitution guarantee a criminal
defendant the right to a public trial.2 Ridenour v. Schwartz, 179 Ariz.
1, 3, 875 P.2d 1306, 1308 (1994). As the Supreme Court has observed,
“the guarantee has always been recognized as a safeguard against
any attempt to employ our courts as instruments of persecution.”
In re Oliver, 333 U.S. 257, 270 (1948). Nevertheless, the right to a
public trial may be limited under certain circumstances. See Waller v.
Georgia, 467 U.S. 39, 48 (1984) (establishing test for determining
whether closure of criminal proceeding is constitutional); State v.
Tucker, 231 Ariz. 125, ¶ 10, 290 P.3d 1248, 1255 (App. 2012) (applying
Waller test to partial courtroom closure in Arizona).

¶7           Hancock argues the exclusion of his family members
from the courtroom “constituted an abuse of the subpoena [power]
and denied [him] a public trial.” He acknowledges raising this
argument for the first time on appeal, but he asserts denial of a
public trial constitutes structural error, relying on State v. Ring, in
which our supreme court noted that denial of a public criminal trial
is one of the “relatively few instances in which we should regard
error as structural.” 204 Ariz. 534, ¶ 46, 65 P.3d 915, 933-34 (2003),
citing Waller, 467 U.S. 39. Where error is structural, prejudice is
presumed and reversal is mandated regardless of whether an
objection is made below. State v. Valverde, 220 Ariz. 582, ¶ 10, 208
P.3d 233, 236 (2009). We review both constitutional and structural
error claims de novo. See Tucker, 231 Ariz. 125, ¶ 7, 290 P.3d at 1254.

¶8           As a threshold matter, we must decide whether the
state’s use of the subpoena power, coupled with the trial court’s
invocation of the rule of witness exclusion in this case, constitutes
structural error.    Such error “deprive[s] defendants of basic
protections without which a criminal trial cannot reliably serve its

      2Hancock   mounts no separate argument based on the Arizona
Constitution, and because Arizona’s right to a public trial has been
deemed coextensive with the federal constitutional right, see State v.
Tucker, 231 Ariz. 125, n.6, 290 P.3d 1248, 1255 n.6 (App. 2012), we do
not address Article II, § 24 separately.


                                  4
                        STATE v. HANCOCK
                         Opinion of the Court
function as a vehicle for determination of guilt or innocence.”
Valverde, 220 Ariz. 582, ¶ 10, 209 P.3d at 235, quoting Ring, 204 Ariz.
534, ¶ 45, 65 P.3d at 933 (alteration in Valverde). On the facts before
us, we conclude there was no error, let alone structural error, for
several reasons.

¶9             First, we have found no cases, in Arizona or elsewhere,
holding that exclusion of potential witnesses violated the right to a
public trial. See Ariz. R. Crim. P. 9.3 (court may invoke rule sua
sponte and must on request of party); Tharp v. State, 763 A.2d 151,
160 (Md. App. 2000) (witnesses sequestered pursuant to the rule
“are no longer considered members of the general public for
purposes of exclusion from the courtroom during criminal
proceedings”); see also State v. Jordan, 325 S.W.3d 1, 53 (Tenn. 2010)
(“[I]t is clear that the sequestration of witnesses in the ordinary case
does not violate a right to a public trial.”); State v. Worthen, 100 N.W.
330, 331 (Iowa 1904) (sequestration of criminal defendant’s witnesses
did not infringe upon his constitutional right to a public trial).

¶10         Second, the exclusion here did not disturb the policy
considerations underlying the public trial requirement. With respect
to the importance of such, this court has said:

             Our system of justice places great
             importance on the public nature of criminal
             trials because “[o]penness in court
             proceedings may improve the quality of
             testimony, induce unknown witnesses to
             come forward with relevant testimony,
             cause all trial participants to perform their
             duties more conscientiously, and generally
             give the public an opportunity to observe
             the judicial system.”

Tucker, 231 Ariz. 125, ¶ 8, 290 P.3d at 1254-55, quoting Gannett Co. v.
DePasquale, 443 U.S. 368, 383 (1979) (alteration in Tucker); see also
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 592 (1980) (noting
long history of open judicial proceedings “bottomed upon a keen
appreciation of the structural interest served in opening the judicial
system to public inspection”) (Brennan, J., concurring). Here,
because the court remained open to all interested parties except

                                   5
                         STATE v. HANCOCK
                          Opinion of the Court
potential witnesses, the exclusion did not impair the policy
justifications supporting public trials.

¶11           Furthermore, this case is unlike others in which a
violation of the right to a public trial has required reversal. In Oliver,
the Supreme Court disapproved of Michigan’s one-man grand jury
system where the petitioner, who was called to testify in secret, was
accused of contempt of court, convicted, and sentenced without any
break in the secrecy. 333 U.S. at 258, 272-73. In Waller, 467 U.S. at 48,
the Supreme Court invalidated a trial court’s closure to the public of
a suppression hearing, and in Tucker, 231 Ariz. 125, ¶¶ 7, 15-19, 290
P.3d at 1254, 1257-59, we rejected a trial court’s exclusion of the
public except for news media. In each case, the reviewing court
applied a strict form of judicial scrutiny and concluded the trial
court violated the requirement that any courtroom closure be no
broader than necessary to protect an overriding interest likely to be
prejudiced. Waller, 467 U.S. at 48; Tucker, 231 Ariz. 125, ¶ 15, 290
P.3d at 1257. And in both Waller and Tucker the court closed the
criminal proceeding to members of the general public over
defendant’s objection. Waller, 467 U.S. at 41-42; Tucker, 231 Ariz. 125,
¶ 4, 290 P.3d at 1253-54. The matter before us, however, is quite
different. Here, the state noticed all the potential witnesses in
accordance with procedural rules, unsanctioned by the trial court
and unopposed by Hancock, and the court routinely invoked the
rule of exclusion from trial proceedings, something Hancock now
characterizes as a denial of a public trial.

¶12          In support of his argument, Hancock cites State v. Sams,
802 S.W.2d 635 (Tenn. Crim. App. 1990), where the prosecutor
suddenly issued subpoenas during trial for multiple members of the
defendant’s family who were allegedly disruptive during the
testimony of sexual assault victims. The appellate court reversed,
finding the prosecutor’s “blatant abuse of the trial court’s subpoena
power for the exclusive purpose of removing the relatives from the
courtroom constituted egregious prosecutorial misconduct” which
“violated the appellant’s constitutional right to a public trial as well
as the constitutional right of the relatives to attend the trial.” Id. at
637.




                                    6
                        STATE v. HANCOCK
                         Opinion of the Court
¶13          Although the instant case bears some outward
similarities to Sams, we reject Hancock’s characterization of the
events here as a closure of the proceedings. The record contains no
evidence that anyone other than previously noticed potential
witnesses were excluded from the proceedings, nor is there any
evidence the witnesses were excluded for the offensive purposes
Hancock ascribes. Unlike Sams, the state disclosed its intention to
call both Hancock’s wife and his mother before Hancock was
arraigned, months before trial, and the record shows the state
interviewed Hancock’s wife well in advance of trial. Hancock’s
father and two minor sons were disclosed as potential witnesses
weeks before the trial began, at a time when Hancock’s disclosure
statement listed himself as a potential witness. Although Hancock
attempts to suggest an improper motive based on “the prosecutor’s
use of the subpoena[s],” as noted earlier, all the witnesses had been
noticed in advance of trial and there is nothing in the record to
indicate the state’s motive in doing so was to exclude them from the
proceedings. Moreover, Hancock did not at any time object to the
state’s witness list, move to quash subpoenas, raise any issues with
respect to the trial court’s invoking the rule of exclusion, or allege
any bad faith on the part of the prosecutor as expressly provided for
in Rule 9.3(a).

¶14          A dearth of Arizona case law on this issue and research
outside Arizona suggests that trial courts rarely inquire as to a
party’s motivation for securing witnesses or invoking the witness
exclusion rule. See Tharp, 763 A.2d at 161-62; see also Sams, 802
S.W.2d at 642 (Dwyer, J., dissenting) (observing that “a court very
rarely delves into the motivation behind a party’s desire to
subpoena a witness”). In Tharp, the Maryland Court of Appeals
acknowledged that invocation of the rule “ordinarily triggers no
responsibility on the part of the court to make threshold inquiries
into why a witness is on the witness list,” but suggested “[w]here a
judge, applying a reasonable and prudent person standard, would
question, on its face, the inclusion on a witness list of a person, the
court, rather than hidebound to sequester without inquiry, should
resolve promptly the apparently anomalous situation.” 763 A.2d at
161-62. Although we encourage trial courts to be mindful of abuses
of the subpoena power, we do not find what happened here to be an
“anomalous situation” triggering the inquiry contemplated in Tharp.


                                  7
                       STATE v. HANCOCK
                        Opinion of the Court
¶15           Hancock nevertheless maintains “the trial court should
have recognized that the [prosecutor’s] move was substantial
enough to constitute a partial closing of the proceedings, and should
have proceeded with a Waller hearing to determine the propriety of
the partial closing.” With appropriate regard for the public nature
of judicial proceedings, however, we are hesitant to give credence to
such a claim when the defendant at the appropriate time saw no
disregard of an important right, see Levine v. United States, 362 U.S.
610, 618-19 (1960), and did not raise any such concern in the trial
court where it could have been immediately and easily addressed. 3
Further, the record suggests the trial court invoked the rule as a
routine precaution, refuting Hancock’s characterization of the state’s
actions as an attempt to exclude family members. Hancock’s
argument on appeal appearing to be little more than an
afterthought, we find his case distinguishable from those on which
he relies.

¶16          Finally, although we have previously noted the “special
concern for accommodating the attendance at trial of an accused’s
family members,” Tucker, 231 Ariz. 125, ¶ 15, 290 P.3d at 1257, citing
Oliver, 333 U.S. at 271-72 & 272 n.29, neither Oliver nor Tucker
involved a situation in which a defendant’s family members were
potential witnesses at trial. And that concern alone does not compel
the outcome Hancock seeks here. See Rodriguez v. Miller, 537 F.3d
102, 108 (2nd Cir. 2007) (confirming family sentiment in Oliver is
dicta, and “cannot constitute clearly established federal law”).
Accordingly, we find no error, structural or otherwise, in the
exclusion of potential witnesses from the courtroom, and conclude
Hancock was not denied a public trial.

                    Sufficiency of the Evidence

¶17          Hancock next argues the evidence at trial was
insufficient to sustain his sexual conduct conviction.  He

      3 Indeed, the record arguably could be read as suggesting
Hancock himself invoked the witness exclusion rule in advance of
trial by submitting “Defendant’s Proposed Preliminary Jury
Instructions” that included a standardized instruction addressing
the segregation of witnesses pursuant to the rule.


                                  8
                        STATE v. HANCOCK
                         Opinion of the Court
characterizes that evidence as “demonstrat[ing] only fondling,” and
argues the trial court erred in denying his motion for acquittal. We
review the sufficiency of the evidence de novo, considering the
evidence and inferences drawn in the light most favorable to
sustaining the verdict. State v. Bible, 175 Ariz. 549, 595, 858 P.2d
1152, 1198 (1993); Tucker, 231 Ariz. 125, ¶ 27, 290 P.3d at 1261. If we
conclude any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt, we will
uphold the conviction. State v. Ingram, 239 Ariz. 228, ¶ 17, 368 P.3d
936, 940 (App. 2016).

¶18          Under A.R.S. § 13-1405(A), 4 the offense of sexual
conduct with a minor is committed by “intentionally or knowingly
engaging in sexual intercourse . . . with any person who is under
eighteen years of age.” Sexual intercourse includes “masturbatory
conduct,” which is not further defined. A.R.S. § 13-1401(A)(4).
Hancock asserts the crime of sexual conduct is differentiated from
the less serious charge of sexual abuse by requiring “actual
stimulation of the victim’s vulva.” Hancock, however, provides no
support for his claim that evidence of stimulation is required to
sustain a sexual conduct conviction, nor are we aware of any.

¶19           At trial, M.H. testified that Hancock had rubbed her
“vagina,” underneath her panties, back and forth, “sometimes fast,
sometime slow,” and went “back and forth” between her breasts
and her vaginal area “a lot.” Viewing the testimony in the
appropriate light, we conclude the evidence was sufficient for any
rational trier of fact to conclude Hancock’s behavior went beyond
“mere touching,” as he alleges, and constituted the more serious
element of masturbatory conduct supporting the sexual conduct
charge.

                        Aggravating Factors

¶20         Hancock next challenges the jury’s finding that the
offenses were committed in the presence of a child for purposes of
aggravating his sentence pursuant to A.R.S. § 13-701(D)(18). He

      4Unlessotherwise noted, we refer to the statute in effect at the
time of Hancock’s offenses.


                                  9
                        STATE v. HANCOCK
                         Opinion of the Court
relies on State v. Burgett, in which we observed that the purpose of
this aggravating factor is “to punish more severely those who
expose children to domestic violence.” 226 Ariz. 85, ¶ 6, 244 P.3d 89,
91 (App. 2010). In State v. Torres, we noted that to find “present” a
child who was entirely unaware of an offense would be inconsistent
with that purpose. 233 Ariz. 479, ¶ 16, 314 P.3d 825, 828 (App. 2013).

¶21         Here, M.H. testified that prior to the initiation of the
sexual conduct for which Hancock was convicted, her younger
brother had fallen asleep in the bed next to her. When asked if she
recalled whether he was asleep or awake during the incident, she
responded “[h]e was snoring.”

¶22           Notwithstanding the policy considerations identified in
Burgett and Torres, the state contends such statements are dicta, and
the “clear terms [of] the presence-of-a-child aggravator require[]
only that the child be present, which the brother, J.H., clearly was.”
We disagree. Although the evidence supports the state’s contention
that M.H.’s younger brother was there on the same bed when the
abuse took place, the § 13-701(D)(18) aggravator cannot be sustained
where the only evidence presented indicates the child was entirely
unaware of the offense. Cf. State v. Tucker, 215 Ariz. 298, ¶¶ 21, 24,
160 P.3d 177, 188 (2007) (third party’s “mere presence” insufficient
to support “grave risk of death” aggravator); Torres, 233 Ariz. 479,
¶ 16, 314 P.3d at 828 (“A child’s mere presence in a home where an
offense has occurred does not, standing alone, fulfill the statutory
requirement absent some evidence that the child was aware of that
offense.”). 5 We conclude the trial court erred by applying the
presence of the child aggravator to increase Hancock’s sentences.6



      5The  inquiry as to whether a child is “entirely unaware” of an
offense for purposes of the § 13-701(D)(18) aggravator is necessarily
a fact-intensive one, turning on the individual circumstances of the
specific case. We express no additional opinion on the prerequisite
degree of awareness required, nor do we comment on any
hypothetical situation not before us.

      6Hancock   raises an additional challenge to the applicability of
the presence of a child aggravator, based on the underlying offenses

                                  10
                        STATE v. HANCOCK
                         Opinion of the Court
¶23           The state alternatively argues “any loss of this
aggravator is harmless because it does not affect the sentences
given.” As discussed below, four aggravating factors were found,
two of which Hancock does not challenge on appeal. Under
harmless error review, however, the state must demonstrate, beyond
a reasonable doubt, that the error did not contribute to or affect the
sentence. See Bible, 175 Ariz. at 588, 858 P.2d at 1191. On this point,
the state only suggests “the judge was well aware that M.H.’s
younger brother was lying in the bed next to her when she was
being abused” and “could still use that fact under the catch-all
provision at [her] discretion.” Although Hancock does not dispute
the state’s claim of harmless error, we find its assertion insufficient
to meet the state’s burden, particularly in view of the additional
sentencing error discussed below.

¶24          The trial court did not indicate how much weight it
assigned to any particular aggravating factor, and we cannot say it
certainly would have imposed the same sentence had it not
considered the § 13-701(D)(18) factor. Accordingly, we vacate
Hancock’s sentence and remand for resentencing. See State v.
Johnson, 229 Ariz. 475, ¶ 20, 276 P.3d 544, 551 (App. 2012)
(remanding for resentencing where trial court relied on improper
aggravating factors and record did not demonstrate court would
necessarily impose same sentence absent improper factors).

¶25          Hancock advances a final argument regarding the trial
court’s use of aggravating factors to enhance his sentence. As noted
above, the jury found two aggravators proven beyond a reasonable
doubt: that the victim suffered emotional harm, and that the offense
was committed in the presence of a child. The trial court found
Hancock’s betrayal of trust to be a third aggravating factor, and his
admission of a prior felony conviction at sentencing a fourth. The
court cited the support of Hancock’s family and friends in
mitigation, and sentenced him as a first-time felony offender under
A.R.S. § 13-702(D) to maximum prison terms. Maximum terms

not involving domestic violence. But because we have determined
that aggravating factor was erroneously found and relied on, we
need not address its applicability where the offense was not charged
as a domestic violence offense.


                                  11
                        STATE v. HANCOCK
                         Opinion of the Court
require the finding of only one aggravating factor, §§ 13-701(C), 13-
702; State v. Martinez, 210 Ariz. 578, ¶ 26, 115 P.3d 618, 625 (2005),
and Hancock does not contest either the court’s use of the prior
felony or the jury’s finding that the victim suffered emotional harm.

¶26           Hancock does, however, challenge the trial court’s
finding of betrayal of trust as another aggravator. He argues that
because that factor was used to enhance his sexual conduct with a
minor offense from a class six felony under A.R.S. § 13-1405(B), to a
class two felony, relying on the same factor to aggravate his sentence
violates the dictates of State v. Alvarez, 205 Ariz. 110, ¶ 17, 67 P.3d
706, 711 (App. 2003). In Alvarez, we interpreted the catch-all
provision of the former aggravating factor statute7 as “authorizing a
trial court to factor into the sentencing equation any additional fact or
circumstance not . . . reckoned into the statutory scheme elsewhere,
either as an element of the offense or a basis for enhancing the range
of sentence.” Id. (emphasis added in Alvarez). We thus concluded
the trial court erred by employing the same justification used to
enhance a sentence as a reason to impose an aggravated sentence.
Id. ¶ 18.

¶27          Hancock raised no objection to the court’s reference to
his betrayal of trust below, thus we would normally review for
fundamental and prejudicial error. See State v. Henderson, 201
Ariz. 561, ¶ 22, 115 P.3d 601, 608 (2005). In State v. Vermuele,
however, we recognized that a trial court’s pronouncement of
sentence is procedurally unique in its finality, providing no clear
opportunity to challenge the rendition of a sentence before it
becomes final. 226 Ariz. 399, ¶¶ 6, 9, 249 P.3d 1099, 1101-02
(App. 2011). Because the record indicates Hancock was provided no
notice of the court’s intention to use his betrayal of trust to aggravate
his sentence and had no opportunity to object at sentencing, the
logic of Vermuele applies here and prevents a finding that this claim
was forfeited. Accordingly, our inquiry is whether any sentencing
error was harmless. See State v. Lopez, 231 Ariz. 561, ¶ 4, 298 P.3d
909, 910 (App. 2013).


7Alvarez addressed former § 13-702(C)(19), now codified at § 13-
701(D)(25). See 2008 Ariz. Sess. Laws, ch. 301, § 23; 2014 Ariz. Sess.
Laws, ch. 151, § 2.

                                   12
                        STATE v. HANCOCK
                         Opinion of the Court
¶28           Under the statute in effect at the time of Hancock’s
offenses, sexual conduct with a minor is enhanced from a class six
felony to a class two felony “if the person is or was the minor’s
parent, stepparent, adoptive parent, legal guardian or foster parent,”
or the minor’s teacher, clergyman, or priest. 2011 Ariz. Sess. Laws.,
ch. 58, § 1. Thus, the state argues Hancock’s sentence was enhanced
because he was M.H.’s stepfather, and was aggravated because he
betrayed her trust.        Hancock maintains, however, that the
stepparent/stepchild relationship is a relationship of trust, and it is
the breach of that trust which is the basis for the statutory
enhancement. We conclude Hancock is correct.

¶29           In 2015, the sexual conduct statute was amended to
eliminate the list of relationships that would qualify for sentence
enhancement, permitting enhancement “if the person is or was in a
position of trust.” 2015 Ariz. Sess. Laws, ch. 209, § 1. The 2015
amendments made clear that relationships of trust include the
stepparent/stepchild relationship. 2015 Ariz. Sess. Laws, ch. 209, § 1
(defining “[p]osition of trust” to include a person who is the minor’s
stepparent). “[W]hen ‘determining the intent of the legislature, the
court may consider both prior and subsequent statutes in pari
materia.’” State v. Sweet, 143 Ariz. 266, 270, 693 P.2d 921, 925 (1985),
quoting Automatic Registering Mach. Co., v. Pima County, 36 Ariz. 367,
373-74, 285 P. 1034, 1036 (1930). Moreover, an amendment which, in
effect, construes and clarifies a prior statute will be accepted as the
legislative declaration of the original act. Id. at 269, 693 P.2d at 924.
Accordingly, we find the trial court erred when it considered
Hancock’s betrayal of trust as an aggravating factor after it had been
applied to enhance his offense. See Alvarez, 205 Ariz. 110, ¶ 17, 67
P.3d at 711. And, as previously discussed, because we cannot say
with certainty the court would have imposed the same sentences
absent the inappropriate factor, we also cannot say this error was
harmless. Id. ¶ 19.

                              Disposition

¶30          For all of the foregoing reasons, Hancock’s convictions
are affirmed, but his sentences are vacated and the case is remanded
for resentencing.




                                   13
