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State v. Burgess

Court of Appeals of Arizona, First Division

August 7, 2018

STATE OF ARIZONA, Appellee/Cross-Appellant,
BUREN JARRETT BURGESS, Appellant/Cross-Appellee.

          Appeal from the Superior Court in Yavapai County No. P1300CR201401170 The Honorable Tina R. Ainley, Judge

          Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee/Cross-Appellant

          Law Offices of Neal W. Bassett, Phoenix By Neal W. Bassett Counsel for Appellant/Cross-Appellee

          Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


          HOWE, JUDGE

         ¶1 Buren Jarrett Burgess appeals his convictions and sentences for two counts of child prostitution. Among other issues, we address in this opinion whether A.R.S. § 13-3212(C), which provides that "[i]t is not a defense to a prosecution [for child prostitution] that the other person is a peace officer posing as a minor . . ." is unconstitutional because it lacks a rational basis in a prosecution for in-person solicitation of a child prostitute. We also address whether A.R.S. § 13-703(L)'s mandate that a defendant's prior felony convictions for offenses "committed on the same occasion" be counted as only one conviction applies to a defendant subject to sentencing under A.R.S. § 13-3212.

         ¶2 We hold that A.R.S. § 13-3212(C) is constitutional and that it applies to all types of solicitation. We also hold that A.R.S. § 13-703(L)'s mandate does not apply when a defendant is sentenced under A.R.S. § 13-3212 because § 13-3212 does not include any limitation on how prior felony convictions are counted. We therefore affirm Burgess's convictions and affirm his sentences as modified.


         ¶3 We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences against Burgess. See State v. Causbie, 241 Ariz. 173, 175 ¶ 2 (App. 2016). In November 2014, Burgess called and texted telephone numbers posted in online advertisements offering the services of two female escorts. The advertisements listed the escorts' ages as 18 and contained explicit sexual content. "Brittany" and "Jennifer" responded to Burgess's calls and texts and asked Burgess if he wanted the services of two girls; he answered that he did. Unbeknownst to Burgess, the two were undercover police officers posing as child prostitutes.

         ¶4 "Brittany" and "Jennifer" informed Burgess that they were 16 years old and that spending one-half hour with both would cost $160. Burgess confirmed with the "girls" that they were not police officers, but he hesitated and stated that he wanted an 18-year-old escort. Burgess ultimately agreed to meet the two "girls" at their hotel room to "hang out." Jennifer told Burgess that she would reduce the price if he brought cigarettes because "we're pretty young and obviously we can't buy cigarettes[.]" Burgess did so.

         ¶5 After Burgess arrived at the hotel room, the "girls" asked what he "wanted," and Burgess replied that he would like them to "do stuff to him." He paid Jennifer $150, handed her the cigarettes, and agreed to wear a condom once they "began having sex." As Burgess undressed, the "girls" went into the bathroom to change clothes. Police officers then stormed into the room and took Burgess into custody.

         ¶6 The State charged Burgess with two counts of child prostitution under A.R.S. § 13-3212(B)(2), class 2 felonies, alleging that he knowingly engaged in prostitution with the women, believing they were between 15 and 17 years old. Before trial, Burgess moved for a jury instruction on prostitution as a lesser-included offense of child prostitution. The prosecutor agreed that an instruction on "misdemeanor prostitution" was appropriate. After the court indicated that the instruction would be given, defense counsel requested guidance on how the parties should refer to the lesser-included offense because the prosecutor had referred to it as "misdemeanor prostitution." The court clarified that the classification should not be referred to and the prosecutor acknowledged that he "should not have referred to [the lesser-included offense] that way."

         ¶7 During Burgess's cross-examination of the undercover officer who posed as Brittany, counsel asked if she agreed that child prostitution was a more serious situation than adult prostitution, and she agreed. The officer also agreed that an act of prostitution occurred and that the only issue was whether the prostitution was child or adult prostitution. Counsel then asked, "do you understand that adult prostitution is a lesser-included offense of child prostitution[, ]" and the officer responded that "[adult] [prostitution is a misdemeanor, and child prostitution is a felony." Counsel followed up by stating that prostitution with an adult "is just a misdemeanor" but "[i]s a felony" if done with a child; the undercover officer agreed.

         ¶8 After the close of evidence, the court instructed the jury that "[i]n deciding whether the defendant is guilty or not guilty, do not consider the possible punishment" and provided a lesser-included offense instruction. The jury found Burgess guilty as charged. During sentencing, the State argued that Burgess had two historical prior felony convictions from 1997 and therefore should be sentenced under A.R.S. § 13-3212(I)(3). The State contended that although the 1997 offenses occurred on the same date and involved the same victim, A.R.S. § 13-3212 did not contain "any language indicating that prior convictions for two or more offenses committed on the same occasion shall be counted as only one conviction." The court disagreed and determined that Burgess's two prior felonies amounted to only one historical prior felony under A.R.S. § 13-703(L), the repetitive offender sentencing statute. ...

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