from the Superior Court in Pima County No. CR20142522001 The
Honorable Carmine Cornelio, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Section
Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney
General, Tucson Counsel for Appellee
R. Sonenberg, Pima County Public Defender By David J.
Euchner, Assistant Public Defender, Tucson Counsel for
Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Judge Kelly  concurred.
Manuel Florez appeals his convictions, following a jury
trial, for three counts of molestation of a child and two
counts of sexual conduct with a minor under age fifteen, for
which he received concurrent and consecutive sentences
totaling thirty-six years' imprisonment. He argues that
the evidence was insufficient to support his convictions for
sexual conduct with a minor and that his sentences amount to
unconstitutional cruel and unusual punishment. We affirm for
the reasons stated below.
and Procedural Background
We view the facts in the light most favorable to sustaining
the verdicts. See State v. Crane, 166 Ariz. 3, 5,
799 P.2d 1380, 1382 (App. 1990). M., the victim and
Florez's stepsister, testified in 2015 when she was
thirteen about sexual episodes with Florez that had begun
five years earlier. The first time, Florez touched her
genitals under her clothes with his hand. During
that incident, Florez threatened to hurt M.'s family if
she did not acquiesce. She later testified this was the
reason she "kept doing" what he wanted. In a later
incident, when M. was nine, Florez lay behind M. on a couch,
positioned his clothed penis against her clothed buttocks,
and put his hands on her waist and moved her body back and
forth along his, parallel to the length of the couch.
In April 2014, when M. was eleven years old, Florez went to
M.'s bed, touched her genitals over her clothes, and
moved his clothed penis up and down against her legs or
buttocks. At some point, he grabbed her hair and
"kneel[ed] [her] back real hard." A few days later,
Florez put his hand under M.'s pajamas and underwear,
placed it on her genitals, and began "moving [his hand]
up and down." When M. rolled onto her stomach, he got on
top of her. In that position, he moved his clothed erect
penis "up and down" against M.'s clothed
M.'s grandmother walked in and saw what she later
described as Florez "humping" M. as though
"having sex through behind." M.'s grandmother
told Florez to "get the hell out of [her] house."
"[I]t's not what it looks like, " said Florez.
He "apologized a whole bunch of times" and pleaded
with M.'s grandmother not to call the police.
A grand jury indicted Florez, charging him with one count of
molestation of a child for the time he touched M.'s
genitals when she was eight years old, one count of
molestation of a child arising out of the incident on the
couch, two counts of molestation of a child for touching
M.'s genitals during the two April 2014 incidents, two
counts of sexual conduct with a minor under age fifteen for
masturbatory contact with his penis during the two April 2014
incidents, and one count of continuous sexual abuse of a
child. On the first day of trial, the trial court dismissed
the continuous sexual abuse count at the state's request.
The jury was unable to reach a verdict on the count of child
molestation that allegedly occurred when M. was eight years
old, and the court dismissed that count upon the state's
request. Florez was convicted of the other five offenses and
sentenced to three concurrent ten-year terms of imprisonment
for the molestation counts, to run consecutively to two
consecutive thirteen-year terms of imprisonment for sexual
conduct with a minor. After sentencing, the trial court sua
sponte issued an order pursuant to A.R.S. § 13-603(L),
allowing Florez to petition the Board of Clemency for a
commutation of his sentence. It described the sentence as
"clearly excessive, " particularly in view of the
state's plea offer that limited the term to 3.75 years.
We have jurisdiction over Florez's appeal pursuant to
A.R.S. §§ 13-4031 and 13-4033(A)(1).
of the Evidence
Florez argues that, as a matter of law, "humping"
through clothing cannot satisfy the statutory definition of
"sexual intercourse, " which is a necessary element
of sexual conduct with a minor; therefore, the trial court
erred by denying his motion for a directed verdict pursuant
to Rule 20(a), Ariz. R. Crim. P., as to those two
counts. He asks us to reduce his convictions for
sexual conduct with a minor to the lesser-included offense of
molestation of a child and remand for
resentencing. The state maintains the evidence was
sufficient to sustain the convictions.
We review a trial court's ruling on a Rule 20 motion de
novo, asking "whether, after viewing the evidence in the
light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
State v. West, 226 Ariz. 559, ¶¶ 15-16,
250 P.3d 1188, 1191 (2011), quoting State v.
Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990).
"Substantial evidence" under Rule 20 is "such
proof that 'reasonable persons could accept as adequate
and sufficient to support a conclusion of defendant's
guilt beyond a reasonable doubt.'" Mathers,
165 Ariz. at 67, 796 P.2d at 869, quoting State v.
Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980);
see also West, 226 Ariz. 559, ¶ 16, 250 P.3d at
1191 (substantial evidence inquiry encompasses both direct
and circumstantial evidence). When reasonable minds can draw
different inferences from the evidence adduced, the trial
court is without discretion to grant a Rule 20 motion and
must submit the case to the jury. West, 226 Ariz.
559, ¶ 18, 250 P.3d at 1192.
A person commits sexual conduct with a minor under age
fifteen by "intentionally or knowingly engaging in
sexual intercourse . . . with any person" under age
fifteen. A.R.S. § 13-1405(A)-(B). "Sexual
intercourse" is statutorily defined as "penetration
into the penis, vulva or anus by any part of the body or by
any object or masturbatory contact with the penis or
vulva." A.R.S. § 13-1401(A)(4). The definition