from the Superior Court in Cochise County No.
S0200CR201500783 The Honorable John F. Kelliher Jr., Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel, Phoenix By Alice Jones, Assistant Attorney General,
Phoenix Counsel for Appellee.
Kuykendall & Associates, Tucson By Gregory J. Kuykendall
and Amy P. Knight Counsel for Appellant.
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Eppich concurred.
ECKERSTROM, CHIEF JUDGE.
Robert Chandler appeals from his convictions and sentences
for three counts of sexual exploitation of a minor. For the
following reasons, we affirm.
and Procedural Background
In October 2015, Chandler set up a hidden camera to record
his teenage daughters, SC and L.C., while they were in the
bathroom. The sisters became suspicious, inspected the
bathroom, and found a camera hidden in a flower vase. S.C.
removed the camera's memory card and brought it to
school. She told her teacher about the memory card, and law
enforcement was contacted. Although the memory card was
corrupted and could not be read, a detective found three
videos of S.C. and L.C. using the toilet, bathing, and
shaving their genitals on Chandler's computer hard drive.
He was convicted as described above and sentenced to
enhanced, presumptive consecutive prison terms totaling 26.25
years, to be followed by lifetime probation.
At the close of evidence, Chandler moved for judgment of
acquittal pursuant to Rule 20, Ariz. R. Crim. P. The trial
court denied his motion. On appeal, he claims the evidence
was insufficient to find him guilty of sexual exploitation of
a minor because that statute requires that the minor be
engaged in sexual conduct, whereas he filmed his daughters
engaging in conduct that was not sexual in nature.
Sufficiency of the evidence is a question of law, which we
review de novo. See State v. West, 226 Ariz. 559,
¶ 15 (2011). The interpretation of a statute is likewise
subject to de novo review. See State v. Skiba, 199
Ariz. 539, ¶ 7 (App. 2001).
Sexual exploitation of a minor, as relevant here, entails
"[r]ecording, filming, photographing, developing or
duplicating any visual depiction in which a minor is engaged
in exploitive exhibition or other sexual conduct."
A.R.S. § 13-3553(A)(1). "Exploitive
exhibition" is defined as "the actual or simulated
exhibition of the genitals or pubic or rectal areas of any
person for the purpose of sexual stimulation of the
viewer." A.R.S. § 13-3551(5). "When
interpreting a statute, we look to the plain language of the
statute as the best indicator of the drafter's
intent." State v. Pledger, 236 Ariz. 469,
¶ 8 (App. 2015). But if a statute is ambiguous, we may
look to "factors such as the statute's context,
subject matter, historical background, effects and
consequences, and spirit and purpose." State v.
Givens, 206 Ariz. 186, ¶ 6 (App. 2003), quoting
Zamora v. Reinstein, 185 Ariz. 272, 275 (1996).
Chandler's interpretation of the statute rests on two
premises: first, that the expression "exploitive
exhibition or other sexual conduct" means that
exploitive exhibition is intended to be a type of sexual
conduct, and second, that "for the purpose of sexual
stimulation of the viewer" means that the minor
must be acting with the purpose of stimulating the viewer. To
the extent the statute may be ambiguous, the relevant
legislative history clarifies the legislature's intent.
In 1994, this court decided State v. Gates, in which
we interpreted the prior version of the sexual exploitation
statute, which criminalized photographing a minor engaged in
sexual conduct. 182 Ariz. 459, 462 (App. 1994). Sexual
conduct was defined, in relevant part, as "[l]ewd
exhibition of the genitals, pubic or rectal areas."
Id. We concluded that this statute required that the
minors being photographed "be the ones who are engaged .
. . in the lewd exhibition of their genitals, pubic or rectal
areas, " and that whether or not a display was lewd
necessarily focused on the intent of the minor, rather than
the intent of the defendant. Id. at 462-63. Shortly
thereafter, the legislature amended §§ 13-3551 and
13-3553. 1996 Ariz. Sess. Laws, ch. 112, §§ 1, 3.
Section 13-3553 was amended to include photographing a minor
engaged in exploitive exhibition, and § 13-3551 was
amended to include the definition of exploitive exhibition.
1996 Ariz. Sess. Laws, ch. 112, §§ 1, 3. The
legislature removed the subsection defining "sexual
conduct, " in part, as "[l]ewd exhibition of the
genitals, pubic or rectal areas of any person." 1996
Ariz. Sess. Laws, ch. 112, § 1.
We "presum[e] the legislature is aware of existing case
law when it passes a statute, " State v.
Pennington, 149 Ariz. 167, 168 (App. 1985), and we
further presume that when the legislature amends a statute,
it intended to change the existing law. State v.
Fell, 209 Ariz. 77, ¶ 14 (App. 2004).
Moreover, when it amended §§ 13-3551 and 13-3553,
the legislature explicitly stated its intent to change the
result of Gates. See Ariz. State S., Fact Sheet for
S.B. 1050, 42nd Leg., 2d Reg. Sess. (Jan. 12, 1996); Ariz.
State S., Minutes of Comm. on Judiciary, 42nd Leg., 2d Reg.
Sess. (Jan. 16, 1996). Indeed, the purpose of the amendment
was described as "providing] that sexual exploitation of
a minor . . . does not require a lewd exhibition of the
minor's private areas." Ariz. State S., Fact Sheet
for S.B. 1050. Given the legislature's expressed intent
to change the outcome of Gates, we conclude that the
provision "for the purpose of sexual stimulation of the
viewer" means that the viewer intends the photograph be
used for sexual stimulation, rather than that the minor
intends to sexually stimulate the viewer. A.R.S. §
Interpreting the statute in this manner will not lead to
criminalization of innocent pictures or videos in which a
child happens to be nude. The state is still required to
prove that the photographer took the picture for the purpose
of "sexual stimulation." A.R.S. § 13-3551(5).
Nor is there any suggestion in this case that the videos of
the girls were taken for any ...