from the Superior Court in Pima County No. CR20122523001 The
Honorable Danelle B. Liwski, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel, Phoenix By Amy M. Thorson, Assistant Attorney
General, Tucson Counsel for Appellee
Brault, Pima County Legal Defender By Stephan J. McCaffery,
Assistant Legal Defender, Tucson Counsel for Appellant
Vásquez authored the opinion of the Court, in which
Presiding Judge Howard and Chief Judge Eckerstrom concurred.
After a jury trial, Ronald Gulli was convicted of twenty- six
counts of sexual exploitation of a minor and two counts of
sexual conduct with a minor. The trial court sentenced him to
consecutive prison terms totaling 482 years. On appeal, Gulli
argues the court erroneously instructed the jury on the
meaning of "sexual conduct" and his sentences for
sexual exploitation violate his right to be free from cruel
and unusual punishment. For the following reasons, we vacate
Gulli's convictions and sentences for sexual conduct with
a minor, but we otherwise affirm.
and Procedural Background
We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining Gulli's
convictions. See State v. Williams, 236 Ariz. 600,
¶ 2, 343 P.3d 470, 471 (App. 2015). In June 2012, after
Gulli's wife became concerned about his persistent
interest "in being with children" that
"didn't seem natural, " she went
"snoop[ing]" in his home office and found a video
disk containing photographs of naked young girls who appeared
to be between eight years old and early teens. She copied the
photos to a thumb drive and took it to the police department.
Officers obtained a search warrant and seized Gulli's
computer. On it, they found twenty-four videos of female
children engaged in various sexual acts. They also found two
photographs of eleven-year-old M.M., taken on separate dates,
lying down with a wooden dowel in her anus. M.M. was friends
with Gulli's nine- and twelve-year-old daughters.
A grand jury indicted Gulli for twenty-six counts of sexual
exploitation of a minor under fifteen, two counts of sexual
conduct with a minor under fifteen, and one count each of
sexual abuse of a minor under fifteen and molestation of a
child. On the state's motion, the trial court dismissed
the child-abuse and molestation charges. The jury found Gulli
guilty of the remaining offenses, and the court sentenced him
to seventeen-year prison terms for each of the
sexual-exploitation counts and twenty-year prison terms for
each of the sexual-conduct counts, all to be served
consecutively. This appeal followed. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21 (A)(1), 13-4031,
Gulli argues the trial court erred by instructing the jury on
the definition of "sexual conduct." He acknowledges
that, because he failed to raise this argument below, he has
forfeited review for all but fundamental, prejudicial error.
See State v. Henderson, 210 Ariz. 561, ¶¶
19-20, 115 P.3d 601, 607-08 (2005). Under this standard,
Gulli must show that error exists, that it was fundamental,
and that the error caused him prejudice. See State v.
Juarez-Orci, 236 Ariz. 520, ¶ 11, 342 P.3d 856,
859-60 (App. 2015). We review de novo whether a jury
instruction correctly states the law. State v.
Hausner, 230 Ariz. 60, ¶ 107, 280 P.3d 604, 627
Pursuant to A.R.S. § 13-1405(A), "[a] person
commits sexual conduct with a minor by intentionally or
knowingly engaging in sexual intercourse or oral sexual
contact with any person who is under eighteen years of
age." "Sexual intercourse" is 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). "Oral sexual contact" means
"oral contact with the penis, vulva or anus."
§ 13-1401(A)(1). Consistent with these statutes, the
grand jury indicted Gulli for sexual conduct with a minor
under fifteen in amended counts 25 and 26 for "engaging
in an act of sexual intercourse with [MM.]" by
"inserting a wooden dowel into [her] anus."
The final jury instructions included a description of the
proof required for "sexual conduct with a minor"
consistent with § 13-1405(A) and a definition of
"sexual intercourse" pursuant to § 13-1401
(A)(4). However, the trial court also specifically
instructed the jury, "Regarding Counts 25 [and] 26:
'Sexual Conduct' means any direct or indirect
touching, fondling, or manipulating of any part of the
genitals, anus or female breast by any part of the body or by
any object or causing a person to engage in such
contact." (Emphasis added.)
Gulli points out that the jury instructions' additional
language for the meaning of "sexual conduct"
mirrors the definition for "sexual contact" under
§ 13-1401 (A)(3), which is "legally
irrelevant" to § 13-1405(A). In addition, he argues
the trial court committed fundamental, prejudicial error by
giving this instruction because it "amplified the
definition of the crime" and "allowed the jury to
convict [him by finding] that he caused M.M. to place the
dowel in her own anus." The state ...