                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                     BRADLEY BIEGANSKI, Appellant.

                             No. 1 CA-CR 18-0093
                               FILED 9-3-2019

            Appeal from the Superior Court in Navajo County
                        No. S0900CR201400118
                             S0900CR201500721
                 The Honorable Ralph E. Hatch, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Lou Spivack PC, Tucson
By Louis M. Spivack
Counsel for Appellant

Law Office of Lawrence Y. Gee PC, Tucson
By Lawrence Y. Gee
Counsel for Appellant
                            STATE v. BIEGANSKI
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Maria Elena Cruz joined.


M c M U R D I E, Judge:

¶1           Bradley Bieganski appeals his convictions and sentences for
three counts of child molestation. Relying on May v. Ryan, 245 F. Supp. 3d
1145 (D. Ariz. 2017), affirmed in part, vacated in part, 76 Fed. Appx. 505,
506–07 (9th Cir. 2019), Bieganski contends that Arizona Revised Statutes
(“A.R.S.”) sections 13-1401, -1410, and -1407(E) (collectively, “child
molestation statutes”) were unconstitutional 1 and urges us to reconsider
our supreme court’s decision in State v. Holle (“Holle II”), 240 Ariz. 300
(2016). Bieganski further asserts that the superior court erred when it
denied his motion for a new trial. For the reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND 2

¶2            From 2011 until his arrest in 2013, Bieganski operated a
girls-only private Christian home-school called Kingdom Flight along with
his wife and son. The arrest occurred after three girls attending Kingdom

1       The legislature recently amended the child molestation statutes. See
H.B. 2283, 2018 Ariz. Sess. Laws, Ch. 266, §§ 1–3 (2d Reg. Sess.) (effective
August 3, 2018). The amendment eliminated the affirmative defense of lack
of sexual motivation in former A.R.S. § 13-1407(E). Id. § 2. The Legislature
also included a definition of “[s]exual contact” in A.R.S. § 13-1401(A)(3)(b)
that sexual contact “[d]oes not include direct or indirect touching or
manipulating during caretaking responsibilities, or interactions with a
minor or vulnerable adult that an objective, reasonable person would
recognize as normal and reasonable under the circumstances.” Id. § 1. When
referring to the child molestation statutes, we refer to them as they existed
at the relevant time of the offenses.

2      We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against Bieganski. State v. Harm, 236
Ariz. 402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495
(App. 1996)).



                                        2
                           STATE v. BIEGANSKI
                            Decision of the Court

Flight (A.G., Y.L., and J.C.) accused Bieganski of touching their genitals
when the victims were between the ages of 6 and 9. The genital contact
primarily occurred during a Sunday morning bathing practice that
Bieganski referred to as an “assembly line” in which he would hurriedly
bathe six to eight Kingdom Flight girls in pairs within 30 minutes before
departing for a church service.

¶3           The genital contact involved Bieganski touching and
manually washing the girls’ vaginas with his bare hand. In addition to the
genital contact that occurred during the “assembly line” baths, Y.L. also
accused Bieganski of touching her genitals on two other occasions: once
when she was getting dressed after swimming and another time when she
was in the Kingdom Flight girls’ room.

¶4            Bieganski admitted at trial that he washed the girls’ genitals
with his bare hand during the Sunday baths, but under the affirmative
defense provided by A.R.S. § 13-1407(E), asserted he was not motivated by
a sexual interest. In a third indictment 3 resulting from the investigation of
Bieganski, the grand jury charged him with seven counts of child
molestation, class 2 felonies and dangerous crimes against children, and
two counts of continuous sexual abuse of a minor, class 2 felonies and
dangerous crimes against children.

¶5             At the conclusion of the State’s case, the court granted
Bieganski’s motion for a judgment of acquittal regarding the continuous
sexual abuse of a minor charges, and the State’s motion to dismiss one of
the child molestation charges involving J.C. The jury then convicted
Bieganski of three counts of child molestation involving victims A.G. and
J.C. but returned not guilty verdicts for the charges involving Y.L. Pursuant
to A.R.S. § 13-705(M), the court sentenced Bieganski to two consecutive
terms of 17 years’ imprisonment, with 1576 days’ presentence incarceration
credit given to the first 17-year term. See State v. Jackson, 170 Ariz. 89, 94
(App. 1991) (presentence incarceration credit is applied only to one of the
defendant’s sentences if consecutive sentences are imposed). Bieganski
timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).

3      The first grand jury charged Bieganski with three counts of child
molestation, class 2 felonies, each pertaining to one of the three victims. A
second indictment followed and was consolidated with the first. A jury trial
proceeded on the consolidated indictment but ended in a mistrial. The third
indictment issued before the retrial.



                                      3
                           STATE v. BIEGANSKI
                            Decision of the Court

DISCUSSION

A.     The Child Molestation Statutes Did Not Violate Due Process by
       Shifting the Burden of Proof to Bieganski.

¶6            Relying on the federal district court’s rationale in May,
Bieganski argues that the child molestation statutes violate due process
because they shift the burden of proof to the defendant regarding the issue
of sexual motivation. 4 245 F. Supp. 3d at 1164 (“[T]he burden-shifting
scheme of Arizona’s child molestation law . . . violates due process . . . .”).
Our supreme court expressly rejected this argument in Holle II. 240 Ariz. at
308, ¶ 40 (“Treating lack of sexual motivation under [A.R.S.] § 13-1407(E) as
an affirmative defense which a defendant must prove does not offend due
process.”).

¶7             We are required to follow our supreme court’s decisions. State
v. Smyers, 207 Ariz. 314, 318, ¶ 15, n.4 (2004) (“The courts of this state are
bound by the decisions of [our supreme] court and do not have the
authority to modify or disregard [its] rulings.”). While we consider the
opinions of the lower federal courts regarding the interpretation of the
Constitution, such authority is not controlling on Arizona courts. State v.
Montano, 206 Ariz. 296, 297, ¶ 1, n.1 (2003) (“We are not bound by the Ninth
Circuit’s interpretation of what the Constitution requires.”); State v. Vickers,
159 Ariz. 532, 543, n.2 (1989) (declining to follow a Ninth Circuit decision
which held Arizona’s death penalty statute unconstitutional because that
decision rested on “grounds on which different courts may reasonably hold
differing views of what the Constitution requires”); State v. Chavez, 243
Ariz. 313, 314, ¶ 4, n.2, 318–19, ¶ 17 (App. 2017) (declining to follow district
court decision that disagreed with Arizona Supreme Court authority).
Accordingly, no error occurred, and we will not reexamine our supreme
court’s decision in Holle II.

B.     The Child Molestation Statutes Did Not Violate Bieganski’s
       “Right to Remain Silent.”

¶8            Bieganski next argues that the child molestation statutes
violated his “right to remain silent,” an issue he did not raise in the superior

4      In relevant part, former A.R.S. § 13-1407(E) provided: “It is a defense
to a prosecution pursuant to § 13-1404 or 13-1410 that the defendant was
not motivated by a sexual interest.” The superior court correctly instructed
the jury regarding the affirmative defense that “[t]he defendant must
prove . . . lack of sexual interest by a preponderance of the evidence.”



                                       4
                           STATE v. BIEGANSKI
                            Decision of the Court

court. Therefore, we will review Bieganski’s self-incrimination claim for
fundamental error only. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). To
prevail upon a claim of fundamental error, a defendant must first show that
trial error exists. Id. at 142, ¶ 21. Once trial error has been established, we
must determine whether the error is fundamental. Id.

¶9            The Fifth and Fourteenth Amendments protect individuals
from compelled self-incrimination at the federal and state levels. U.S. Const.
amends. V, XIV, § 1; see Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding “that
the Fifth Amendment’s exception from compulsory self-incrimination is
also protected by the Fourteenth Amendment against abridgment by the
States”). The child molestation statutes contained no terms of compulsion,
and furthermore, former A.R.S. § 13-1407(E) did not require a defendant to
admit the underlying elements of the offense. Bieganski argues,
nonetheless, that the child molestation statutes “virtually require[d]” a
defendant’s testimony. Any “virtual” effect is not protected by the privilege
against compelled self-incrimination.

¶10            Assigning the burden of production or persuasion to a
defendant to prove an affirmative defense does not violate the privilege
against self-incrimination. See United States v. Rylander, 460 U.S. 752, 758
(1983) (holding that the Fifth Amendment privilege should not be
“convert[ed] from the shield . . . which it was intended to be into a sword
whereby a claimant asserting the privilege would be freed from adducing
proof in support of a burden which would otherwise have been his. None
of our cases support this view.”) (collecting cases); Corbitt v. New Jersey, 439
U.S. 212, 218 (1978) (holding a statute that made first-degree murder
defendants who pleaded no contest eligible for sentence of less than life
imprisonment did not violate Fifth Amendment privilege); Williams v.
Florida, 399 U.S. 78, 84 (1970) (“That the defendant faces . . . a dilemma
demanding a choice between complete silence and presenting a defense has
never been thought an invasion of the privilege against compelled
self-incrimination.”); State v. Gray, 239 Ariz. 475, 479, ¶ 18 (2016) (requiring
a defendant asserting an entrapment defense to admit the elements of the
offense is not compelled self-incrimination). The child molestation statutes,
therefore, did not violate Bieganski’s privilege against compelled
self-incrimination by requiring him to prove the affirmative defense. See
Gray, 239 Ariz. at 479, ¶ 18.

¶11          Moreover, Bieganski’s argument ignores the evidentiary
avenues available to prove the affirmative defense without a defendant’s
testimony. Bieganski utilized one such avenue by providing evidence from
a forensic psychologist as an expert witness. Emphasizing this point, the


                                       5
                            STATE v. BIEGANSKI
                             Decision of the Court

defendant in Holle II did not testify but instead presented his defense
through other witnesses, which further confirms the absence of testimonial
compulsion or necessity arising from the child molestation statutes. State v.
Holle (“Holle I”), 238 Ariz. 218, 220–21, ¶ 4 (App. 2015), vacated by Holle II,
240 Ariz. at 311, ¶ 50; accord Yee Hem v. United States, 268 U.S. 178, 185 (1925)
(“If the accused happens to be the only repository of the facts necessary to
negate the presumption arising from his [drug] possession, that is a
misfortune which the statute under review does not create but which is
inherent in the case.”). We find no trial error, much less fundamental error.

C.     The Child Molestation Statutes Did Not Violate Due Process “As
       Applied” to Bieganski.

¶12            Bieganski also contends that the statutes are unconstitutional
“as applied” to him. To support his contention, Bieganski relies on the
discussion in Holle II concerning the possibility of an “as applied”
constitutional challenge for a parent performing a caregiving task such as
changing diapers. Holle II, 240 Ariz. at 310–11, ¶ 49 (“But if a prosecution
actually were to result from such innocent behavior (no such case has been
cited), an ‘as applied’ constitutional challenge would likely have merit in
light of parents’ fundamental, constitutional right to manage and care for
their children.” (emphasis added)).

¶13           The “as applied” discussion in Holle II occurred in a
theoretical context and was not involved in the holding. Holle II, 240 Ariz.
at 310–11, ¶ 49. The supreme court found that because the defendant’s
actions were “clearly inappropriate,” they could not be construed as
parenting or caregiving in any manner, and thus, the court did not address
the issue further. Id. Bieganski’s “as applied” argument fails for the same
factual and legal reasons.

¶14          The evidence, including Bieganski’s testimony and
admissions, established that Bieganski performed the barehanded washing
of each minor victim’s genitals with no other adult present during a rushed
Sunday morning bathing “assembly line” practice for which he did not




                                       6
                           STATE v. BIEGANSKI
                            Decision of the Court

provide a logical “parental” explanation. 5 He conducted these washing
practices even though the girls were old enough to bathe themselves.
Bieganski never requested permission from any of the parents or guardians
to participate personally in the bathing or manual genital washing of the
girls, and never discussed the bathing practices the girls would be exposed
to with him. Bieganski’s wife helped provide care for the girls but did not
wash the girls’ genitals and was not involved in the “assembly line.” She
provided each girl with a washrag and soap and directed them to clean
themselves. Although Bieganski later admitted to the jury that he
performed the “washing” acts, when interviewed by law enforcement on
the day of his arrest, he denied that the acts occurred, both to the officers
and his wife during a phone call.

¶15          The jury rejected his efforts at establishing an affirmative
defense based upon the evidence presented. The evidence supports the
jury’s determination that Bieganski’s practices and acts maintain no
reasonable connection to a legitimate parental exception as hypothetically
contemplated in Holle II. Hence, there was no error.

D.     The Superior Court Did Not Commit Error by Denying the Motion
       for a New Trial.

¶16            Finally, Bieganski contends that the superior court erred
when it denied his motion for a new trial. A court may grant a new trial if
“the verdict is contrary to law or the weight of the evidence.” Ariz. R. Crim.
P. 24.1(c)(1). We review the court’s decision on a motion for a new trial for
an abuse of discretion. State v. Parker, 231 Ariz. 391, 408, ¶ 74 (2013). “A
motion for new trial should be granted ‘only if the evidence was insufficient
to support a finding beyond a reasonable doubt that the defendant
committed the crime.’” Id. (quoting State v. Landrigan, 176 Ariz. 1, 4 (1993)).

¶17            We review claims of insufficient evidence to support a verdict
de novo. State v. Bible, 175 Ariz. 549, 595 (1993). “[W]e view the evidence in
the light most favorable to sustaining the verdict and reverse only if no
substantial evidence supports the conviction.” State v. Pena, 209 Ariz. 503,


5     Bieganski testified that he used this practice to save time but was
unable to provide direct answers regarding why the girls did not bathe for
church on Saturday night, why he did not shorten his morning routine, or
why they did not attend a later service. Bieganski also testified that he
manually washed the girls’ vaginas to conserve soap and because he
viewed washcloths as “bacteria traps.”



                                      7
                           STATE v. BIEGANSKI
                            Decision of the Court

505, ¶ 7 (App. 2005). Substantial evidence is evidence that a reasonable
person may accept as adequate to support a guilty verdict beyond a
reasonable doubt. State v. Stroud, 209 Ariz. 410, 411–12, ¶ 6 (2005).
“Reversible error based on insufficiency of the evidence occurs only where
there is a complete absence of probative facts to support the conviction.”
State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting State v. Scott, 112 Ariz.
423, 424–25 (1973)).

¶18          Substantial evidence supports the convictions. As the
superior court correctly instructed the jury, the crime of child molestation
required proving the following elements:

       1. Defendant intentionally or knowingly engaged in or
          caused a person to engage in any direct or indirect
          touching, fondling, or manipulation of any part of the
          genitals or anus by any part of the body or any object or
          causing a person to engage in such contact with a child;

       2. The child was under 15 years of age.

Regarding the statutory elements, each victim was between the ages of six
and nine and Bieganski used only his soap-covered bare hand to wash each
victim’s genitals. Bieganski performed these acts, in what might reasonably
be construed as a contrived “assembly line” when each victim was old
enough to bathe themselves. Bieganski never informed the victims’ parents
or guardians about his intentions or practices or sought permission to
engage in them with the girls. No other person (such as his wife) performed
similar bathing practices; his wife instead elected to toss a washcloth and
soap to each girl while directing them to wash. A.G. first reported the acts
to a school nurse independently, which thereby initiated the investigation,
and the accusations were thoroughly investigated by forensic interviewers
and law enforcement.

¶19           Reasonable inferences drawn from the evidence supports the
jury’s verdicts. See State v. Fulminante, 193 Ariz. 485, 494, ¶¶ 27-28 (1999)
(finding that defendant’s “several false, misleading, and inconsistent
statements to police, other witnesses, and his wife,” along with evidence of
motive, opportunity, and the absence of a rational explanation, provided
sufficient evidence to sustain a conviction). Bieganski testified and
provided an expert witness to establish his lack of sexual motivation, but
the jury found his defense unpersuasive regarding the A.G. and J.C.
charges. Moreover, the jury’s acquittal on the Y.L. charges demonstrates the
jurors carefully considered the evidence. See State v. Stuard, 176 Ariz. 589,



                                       8
                         STATE v. BIEGANSKI
                          Decision of the Court

600 (1993) (noting the jurors’ decision to acquit the defendant of certain
charges “demonstrate[d] the jury’s careful and proper consideration of the
evidence”). The evidence established each element of child molestation
beyond a reasonable doubt, and thus, the superior court did not commit
error when it denied the motion for a new trial.

                             CONCLUSION

¶20          For the foregoing reasons, we affirm Bieganski’s convictions
and sentences.




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




                                       9
