Court of Appeals of Arizona, First Division, Department A
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County Cause No. V1300CR201180164 The Honorable Michael R. Bluff, Judge
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee
Craig Williams Prescott Valley Attorney for Appellant
JOHN C. GEMMILL, Judge
¶1 Defendant Bradley Binkley appeals his convictions and sentences for luring a minor for sexual exploitation and attempted tampering with physical evidence. The only issue on appeal is whether the trial court abused its discretion by denying his challenge, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's use of peremptory challenges to strike six male jurors. Because the Batson challenge was untimely, and also because the trial court reasonably concluded that the State's reasons for striking the prospective jurors were gender-neutral, we reject Binkley's argument and affirm his convictions and sentences.
¶2 Detective Pam Edgerton of the Yavapai County Sheriff's Office created a profile on "Tagged.com" under the fictitious name "Brenna Fox" in March 2011. The profile was posted on an adult only website, and it listed a birth date of June 23, 1991, which made "Brenna" 19 years old. However, the comments section of the profile indicated that "Brenna" was actually 13 years old. "Brenna" was contacted by Binkley on March 26, 2011, and they began corresponding. Binkley started inquiring about sex with "Brenna, " and she confirmed that she was 13 years old. Binkley was subsequently arrested. During an interview, Binkley was told that his home would be searched for evidence. Before the warrant was served, Binkley tried to have his neighbor remove items from his house.
¶3 Binkley was indicted on April 8, 2011 on two counts of luring a minor for sexual exploitation ("Count 1" and "Count 2"), class 3 felonies, and one count of attempted tampering with physical evidence ("Count 3"), a class 1 misdemeanor. Ariz. Rev. Stat. (A.R.S.) § 13-3554, § 13-705, § 13-1001, and § 13-2809. He was convicted on all three counts. Binkley was sentenced to the presumptive term of three-and-a-half years imprisonment for Count 1 and six months in the county jail for Count 3. For Count 2, the court suspended imposition of sentence and placed him on lifetime probation after his release from prison. Binkley received six months credit for time served in jail prior to sentencing. Binkley filed a timely notice of appeal, and we have jurisdiction pursuant to Arizona Constitution Article VI, section 9 and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶4 In Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the use of peremptory strikes against jurors solely on the basis of race. Batson, 476 U.S. at 89. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143, 114 S.Ct. 1419, 1429, 128 L.Ed.2d 89 (1994), the Court held that peremptory challenges cannot be used against jurors on the basis of gender.
¶5 Binkley argues that the trial court erred and abused its discretion when his Batson challenge was denied and the court did not impanel a new jury. He further argues that the State used peremptory challenges to strike jurors in violation of the Equal Protection Clause.
¶6 We first examine whether the Batson challenge was timely. A Batson challenge is untimely if made after the jury is impaneled and the stricken jurors are excused. State v. Harris, 157 ...