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
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.
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.
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
AND PROCEDURAL HISTORY
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
"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.
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.
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."
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.
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. ...