IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee/Cross-Appellant,

v.

RONALD MARVIN BROCK, Appellant/Cross-Appellee.

No. 1 CA-CR 17-0455

No. 1 CA-CR 17-0466

(Consolidated)

FILED 3-12-2020

Appeal from the Superior Court in Yavapai County

No. P1300CR201600850

The Honorable Jeffrey G. Paupore, Judge Pro Tempore (Retired)

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

COUNSEL

Yavapai County Attorney’s Office, Prescott

By Michael P. McGill

Co-counsel for Appellee/Cross-Appellant

Arizona Attorney General’s Office, Phoenix

By Michelle L. Hogan

Co-counsel for Appellee/Cross-Appellant

Craig Williams Attorney at Law PLLC, Prescott Valley

By Craig Williams

Counsel for Appellant/Cross-Appellee

AMENDED PER ORDER FILED 3-12-2020
STATE v. BROCK

Opinion of the Court

2

OPINION

Judge Randall M. Howe delivered the opinion of the Court, in which Judge 

Maria Elena Cruz joined. Presiding Judge Diane M. Johnsen1 concurred in 

part and dissented in part.

H O W E, Judge:

¶1 Ronald Marvin Brock appeals his convictions and sentences 

for molestation of a child, sexual exploitation of a minor, and possession of 

drug paraphernalia. He asserts that the statute proscribing sexual 

exploitation of a minor is unconstitutional and contends that the trial court 

erroneously denied his requested jury instruction and motion for acquittal.

The State also appeals, arguing that the court erred in sentencing Brock to 

concurrent terms of imprisonment.

2

1 Judge Johnsen was a sitting member of this Court when the matter 

was assigned to this panel of the Court. She retired effective February 28, 

2020. In accordance with the authority granted by Article VI, Section 3, of 

the Arizona Constitution and pursuant to A.R.S. § 12–145, Chief Justice of 

the Arizona Supreme Court has designated Judge Johnsen as a judge pro 

tempore in the Court of Appeals, Division One, for the purpose of 

participating in the resolution of cases assigned to this panel during her 

term in office.

2 Although a defendant will normally file a notice of appeal from his 

conviction and sentence before the State files a notice of cross-appeal 

seeking to correct a trial court error, in this case the State filed its notice of 

appeal before Brock filed his notice of appeal. To avoid confusion, this 

Court will use the term “appeal” for both parties. The filing anomaly does 

not affect our analysis of Brock’s or the State’s issues on appeal. 

Brock argues, however, that this Court should dismiss the State’s 

appeal as untimely because it filed its notice of appeal before he filed his. 

But nothing precludes the State from filing a notice of appeal challenging 

an adverse legal ruling or an allegedly illegal sentence regardless whether 

or when a defendant files a notice of appeal challenging a conviction or 

sentence, see A.R.S. § 13–4032(3), (5), as long as it files the notice within 20 
STATE v. BROCK

Opinion of the Court

3

¶2 We affirm Brock’s convictions and sentences in part but 

remand for resentencing of his child-molestation convictions because those

sentences must be consecutive to each other rather than concurrent. Under 

the plain language of A.R.S. § 13–705(M), a defendant who commits two 

counts of child molestation upon the same victim must receive mandatory 

consecutive sentences, an outcome that is also consistent with the purpose 

of the dangerous crimes against children statute.

FACTS AND PROCEDURAL HISTORY

¶3 We view the facts in the light most favorable to sustaining the 

verdicts. State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013). In 2011, the 

13-year-old victim frequently webcast herself singing and playing the piano

on a public website. Brock visited that website, viewed the victim’s 

performances and contacted her online. Initially, he identified himself as a 

man in his early 20s, although he was actually in his mid-30s, and the victim 

likewise misrepresented her age, claiming to be 19 years old. 

¶4 During the weeks that followed, Brock and the victim 

regularly communicated online, primarily discussing music. About six 

weeks after their initial contact, the victim revealed her true age to Brock. 

Undeterred, Brock continued to contact the victim, talked to her about 

sexual topics, and encouraged her to engage in online sexual activity with 

him.

¶5 For the next 18 months, Brock and the victim used webcams 

to engage in sexual activity with each other online, including mutual

masturbation. Over time, the relationship distressed the victim, and she 

repeatedly tried to end it. Each time she told Brock she wanted out of the 

relationship, he “lashed out” and threatened to reveal the victim’s sexual 

activity to her family, post nude pictures of her online, and harm himself, 

her, or her family. Eventually, however, the victim told her father what had 

happened, and he notified the police.

¶6 Officers interviewed Brock and executed a search warrant on 

his home. During the interview, Brock readily acknowledged that he had 

engaged in an online relationship with the victim but claimed that he had

days of the pronouncement of sentence, Ariz. R. Crim. P. 31.2(a)(2)(A). The 

State’s notice of appeal was timely because it filed the notice one week after 

the sentence was pronounced. Brock had sufficient notice of the State’s 

appeal, and we have no reason to dismiss it.
STATE v. BROCK

Opinion of the Court

4

ended it once he learned her true age. When pressed, however, Brock

eventually admitted that he had maintained a sexual relationship with the 

victim even after he had found out she was a minor. During their search of 

Brock’s home, officers seized various electronics as well as small plastic 

bags of marijuana, pipes, and bongs. Subsequent forensic analysis of the 

electronics revealed a document titled “[Victim’s] Countdown Clock,” 

which identified the victim’s eighteenth birthday and calculated the days 

until she reached the age of majority. Police also found numerous screen 

images showing the victim naked, many of which also included an image 

from a small camera feed in the lower right-hand corner showing Brock as 

he viewed the victim’s webcast. The State charged Brock with one count of 

continuous sexual abuse of a child, two counts of molestation of a child, one 

count of sexual exploitation of a minor, one count of possession or use of 

marijuana, and one count of possession of drug paraphernalia. 

¶7 Before trial, Brock moved to dismiss the sexual exploitation of 

a minor charge, asserting that A.R.S. § 13–3553 infringes upon protected 

expression in violation of the First Amendment by criminalizing “mere 

nudity” and unspoken “thoughts.” After hearing argument, the trial court 

denied the motion, finding that one of the seized images (Exhibit 19), which 

was found in a folder Brock had labeled “[Victim]-Sexy,” focused directly 

on the victim’s pubic area and therefore “likely” constituted “child 

pornography” rather than “mere nudity.”

¶8 At trial, defense counsel acknowledged in his opening 

statement that Brock had engaged in online sexual activity with the victim 

even after he had learned she was only 13 years old. Defense counsel 

admitted that Brock had threatened the victim after she had repeatedly

tried to “shut[] him down[.]” Nonetheless, defense counsel denied that 

Brock had “caused” the victim to engage in the sexual activity and argued 

that they had “clearly” shared a “consensual” sexual relationship. After the 

State rested, Brock moved for a judgment of acquittal pursuant to Arizona 

Rule of Criminal Procedure 20. “[V]iewing the evidence in the light most 

favorable to the prosecution,” the trial court found that substantial evidence 

supported the charges and denied the motion. During closing argument, 

Brock argued extensively the theory that Exhibit 19 was merely a nude 

photo rather than child pornography.

¶9 The jury acquitted Brock of continuous sexual abuse and 

possession or use of marijuana but convicted him of the remaining charges.

The trial court sentenced him to a mitigated term of 13 years’ imprisonment 

on one molestation of a child count; a concurrent, mitigated term of 10 years

on the other molestation of a child count; a consecutive, mitigated term of 
STATE v. BROCK

Opinion of the Court

5

10 years for sexual exploitation of a minor; and a 10-day period of 

unsupervised probation for possession of drug paraphernalia, to 

commence upon his release from prison. The State timely appealed the trial 

court’s imposition of concurrent sentences for Brock’s child-molestation 

convictions. Brock timely appealed his convictions and sentences.

DISCUSSION

1. Constitutional Validity of A.R.S. § 13–3553

¶10 Brock argues that the trial court erred by denying his motion 

to dismiss the sexual exploitation of a minor count because the statute, 

A.R.S. § 13–3553, is unconstitutionally overbroad.

3 We review the denial of 

a motion to dismiss an indictment for an abuse of discretion, State v. Pecard, 

196 Ariz. 371, 376 ¶ 24 (App. 1999), but review de novo whether a law is 

unconstitutionally overbroad, State v. Boehler, 228 Ariz. 33, 35 ¶ 4 (App. 

2011). “A statute is unconstitutionally over broad when it prohibits or 

deters conduct protected by the First Amendment.” State v. Carrasco, 201 

Ariz. 220, 224 ¶ 14 (App. 2001). We presume a statute is constitutional, and 

the challenging party “bears the burden of establishing its invalidity.”

Boehler, 228 Ariz. at 35 ¶ 4. “[C]ourts will invalidate a statute that reaches a 

substantial amount of constitutionally protected conduct,” even if it also 

has lawful applications. Id. at ¶ 5 (internal quotation omitted). Nonetheless, 

a statute is unconstitutionally overbroad only if “its deterrent effect on 

legitimate expression [is] not only real, but substantial as well.” State v. 

Ochoa, 189 Ariz. 454, 459 (App. 1997) (internal quotation omitted).

¶11 As Brock notes, the right of freedom of expression enshrined 

in the First Amendment outweighs the State’s limited interest in regulating 

private in-home possession of adult obscenity. See State v. Emond, 163 Ariz. 

138, 139, 141 (App. 1989). But the State has a compelling interest in 

combating the sexual abuse and exploitation of children that underlie child 

pornography. Osborne v. Ohio, 495 U.S. 103, 108 (1990); New York v. Ferber, 

458 U.S. 747, 762–63 (1982); see also State v. Berger, 212 Ariz. 473, 477 ¶ 19 n.2 

(2006); Emond, 163 Ariz. at 139–40. Because the State’s interest in protecting 

children far exceeds any de minimis expressive value that may be found in 

3 As a preliminary matter, we reject the State’s contention that Brock 

lacks standing to challenge the statute’s constitutionality. Brock argues that 

the trial court construed the statute in a manner that violated his

constitutional rights, and he therefore has standing to argue that the statute 

is overbroad as applied to him. See Brown v. McClennen, 239 Ariz. 521, 526

¶ 19 (2016).
STATE v. BROCK

Opinion of the Court

6

possessing sexually explicit images of children, the First Amendment does 

not protect child pornography. Id. For that reason, the State may criminalize 

possession of “works that visually depict sexual conduct by children” as 

long as it “adequately define[s]” the proscribed material. Ferber, 458 U.S. at

764; State v. Hazlett, 205 Ariz. 523, 527 ¶ 11 (App. 2003) (“[A] state can 

penalize conduct relating to [nude images of children] without meeting the 

more exacting standard for obscenity because the material involves actual 

children actually participating in the acts depicted. The crime is the abuse 

of the children.”).

¶12 Brock contends that A.R.S. § 13–3553 is overbroad, both on its 

face and as applied to him. First, he asserts the statute proscribes not only 

child pornography, but the possession of images depicting “merely nude” 

minors, which he claims are constitutionally protected expression. 

Employing the same reasoning, he then argues that applying the statute to 

criminalize his possession of Exhibit 19 impinges on his First Amendment 

rights because it depicts the victim’s pubic region, rather than her genitals, 

and displays no overt sexual activity.

¶13 We review statutory interpretation de novo. State v. Burbey, 

243 Ariz. 145, 146 ¶ 5 (2017). In construing a statute, this Court’s primary 

purpose is to effectuate the Legislature’s intent. State ex rel. Montgomery v. 

Harris, 237 Ariz. 98, 100 ¶ 8 (2014). “To determine a statute’s meaning, we 

look first to its text[,]” Burbey, 243 Ariz. at 147 ¶ 7, and construe statutes that 

“relate to the same subject matter or have the same general purpose as one 

another” as though they constitute one law, State v. Gamez, 227 Ariz. 445, 

449 ¶ 27 (App. 2011). “When the text is clear and unambiguous, we apply 

the plain meaning and our inquiry ends.” Burbey, 243 Ariz. at 147 ¶ 7. 

¶14 Contrary to Brock’s contentions, A.R.S. § 13–3553 does not 

criminalize conduct involving “merely nude” images of minors. The statute 

prohibits, among other things, the knowing possession of “any visual 

depiction in which a minor is engaged in exploitive exhibition or other 

sexual conduct.” A.R.S. § 13–3553(A)(2). “Exploitive exhibition” means “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). The statutory definition of “exploitive exhibition” 

substantially circumscribes A.R.S. § 13–3553’s scope, excluding nude 

images of minors that are created for non-sexual purposes. See Hazlett, 205 

Ariz. at 531 ¶ 27. Because the challenged statute does not constrain 

protected expression and a person does not commit sexual exploitation of 

a minor unless he or she possesses a nude image of a minor that was created 

for the purpose of sexual stimulation, A.R.S. § 13–3553 is not overbroad.
STATE v. BROCK

Opinion of the Court

7

¶15 Nor is the statute unconstitutional as applied in Brock’s case. 

The State presented evidence that Brock captured a screenshot from his 

computer showing both an image that clearly and directly focused on the 

victim’s pubic region and his own reaction to that image. Although the 

screenshot does not expressly depict any sexual activity, Brock and the 

victim indisputably engaged in an online sexual relationship. Viewed 

within this context, a jury could have reasonably found that the victim 

webcast the image at issue and that he recorded it, for the purpose of his 

sexual stimulation. Indeed, Brock saved the image in a folder he named 

“[Victim]-Sexy.” Given these facts, Brock has failed to demonstrate that the 

statute is unconstitutionally overbroad as applied to him. Therefore, the 

trial court did not err in denying the motion to dismiss the count of sexual 

exploitation of a minor.

2. Denial of Requested Jury Instruction

¶16 Brock next contends that the trial court erroneously denied 

his requested jury instruction regarding “mere nudity.” We review a trial

court’s denial of a requested jury instruction for an abuse of discretion, 

deferring to the court’s evaluation of the evidence, State v. Wall, 212 Ariz. 1, 

3, 5 ¶¶ 12, 23 (2006), and will not reverse a court’s “refusal unless the 

defendant suffered prejudice as a result,” State v. Garfield, 208 Ariz. 275, 278 

¶ 11 (App. 2004). A party is entitled to a jury instruction on any theory the 

evidence reasonably supports, State v. Moody, 208 Ariz. 424, 467 ¶ 197 

(2004), but a court does not err by refusing to give a jury instruction that 

“does not fit the facts of the particular case, or is adequately covered by the 

other instructions,” State v. Hussain, 189 Ariz. 336, 337 (App. 1997); see also 

State v. Mott, 187 Ariz. 536, 546 (1997) (“A trial court is not required to give 

a proposed instruction when its substance is adequately covered by other 

instructions.”).

¶17 We review de novo whether instructions accurately and 

adequately state the law. State v. Fierro, 220 Ariz. 337, 338 ¶ 4 (App. 2008).

We review the instructions in their entirety and will not reverse a jury 

verdict based on an erroneous instruction unless the instructions, taken as 

a whole, could reasonably mislead a jury. State v. Hoskins, 199 Ariz. 127, 145 

¶ 75 (2000); State v. Gallegos, 178 Ariz. 1, 10 (1994). If a jury instruction is 

“substantially free from error,” the defendant generally suffers no 

prejudice. Gallegos, 178 Ariz. at 10 (internal quotation omitted).

¶18 Before trial, Brock submitted his requested jury instructions, 

which included the following “special instruction” on exploitive exhibition:
STATE v. BROCK

Opinion of the Court

8

“Exploitive exhibition” means the lewd exhibition of the 

genitals or pubic areas of any person. “Lewd” connotes sexual 

suggestiveness, sexual activity, sexually explicit situations, 

hard core pornography, and material that is the product of 

sexual abuse. The following factors, and any other factors you 

determine are relevant, may be considered by you in deciding 

whether the photograph in this case involves the lewd 

exhibition of the genitals or pubic area:

1. Whether the focal point of the picture is on the minor’s 

genitals or pubic area. Merely because the picture shows the 

genitals does not necessarily mean that the genitals are the 

focus of the photograph;

2. Whether the setting is sexually suggestive. For example, in a 

place or pose generally associated with sexual activity;

3. Whether the minor is depicted in an unnatural pose, 

considering the age of the minor;

4. Whether the minor was fully or partially clothed, or nude;

5. Whether the picture suggests sexual coyness or a willingness 

to engage in sexual activity. Sexual coyness is an expression 

outside the minor’s range of experience;

6. Whether the picture is intended or designed to elicit a sexual 

response from the viewer. You should not focus on the actual 

effect of the photograph on the viewer, but instead on the 

intended effect on the viewer;

7. Whether the picture portrays the minor as a sexual object;

8. Whether the photograph contains a caption, title or name and, 

if so, the nature of such caption, title or name.

A visual depiction need not involve all of these factors in 

order to be a lewd exhibition, but they are factors you may 

consider. No single factor should be given undue weight.

More than one factor must be present in order to establish 

lewdness. The weight or lack of weight which you may give 

to any one of these factors is for you to decide. You may not 

determine the picture to be lewd merely because it depicts 

nudity. Mere nudity is not equivalent to lewdness or to sexual 
STATE v. BROCK

Opinion of the Court

9

activity. You may not determine the picture to be lewd 

because you do not like it or because you find it to be in bad 

taste. The determination should be made based on the overall 

content of the visual depiction, taking into account the age of 

the minor.

During the settling of the final jury instructions, defense counsel urged the 

court to give his requested instruction on exploitive exhibition to remedy 

what counsel argued were the “unconstitutional dimensions” of A.R.S. 

§ 13–3553. In its final instructions to the jury, the trial court set forth the 

statutory elements of sexual exploitation of a minor and provided a 

definition of “exploitive exhibition” as follows:

The crime of sexual exploitation of a minor requires proof that 

the Defendant knowingly:

Possessed any visual depiction, in which a minor was 

engaged in exploitive exhibition, or other sexual conduct.

“Visual depiction” includes each visual image that is 

contained in an undeveloped film, videotape or photograph 

or data stored in any form, and that is capable of conversion 

into a visual image.

“Exploitive exhibition” means 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.

The following factors may be considered by you:

1) whether the focal point of the pictures is on the child’s 

genitals, pubic or rectal area;

2) whether the setting is sexually suggestive;

3) whether the child is depicted in an unnatural pose, 

considering the age of the child;

4) whether the child was clothed or nude;

5) whether the pictures suggest a willingness to engage in sexual 

activity;

6) whether the pictures are intended or designed to elicit a 

sexual response from the viewer;
STATE v. BROCK

Opinion of the Court

10

7) whether the pictures portray the child as a sexual object.

¶19 Viewed in its entirety, the trial court’s instruction on sexual 

exploitation of a minor adequately and accurately reflected the law. The 

instruction identified all elements of the offense, included a definition of 

“exploitive exhibition” that tracked A.R.S. § 13–3551(5), and incorporated 

the factors that Brock had requested as discussed in United States v. Dost, 

636 F. Supp. 828, 832 (S.D. Cal. 1986). See State v. Rodriguez, 192 Ariz. 58, 61 

¶ 16 (1998) (holding a trial court need not give every specific instruction 

requested by the defense: “the test is whether the [given] instructions 

adequately set forth the law applicable to the case”).

¶20 Although Brock’s proposed instruction more directly stated

that possession of a “merely nude” image of a minor does not constitute 

sexual exploitation of a minor, the court’s instruction clearly informed the 

jurors that they could convict Brock only if the State proved that the image 

was created for a sexual purpose. Moreover, the court’s instruction did not 

preclude Brock from arguing that Exhibit 19 was merely a nude photo and 

not child pornography. Indeed, defense counsel repeatedly made that 

argument during closing argument. Therefore, the trial court did not err by 

instructing the jury or abuse its discretion by denying, in part, Brock’s 

special “exploitive exhibition” instruction. See Com. v. Sullivan, 972 N.E.2d

476, 488 (Mass. App. Ct. 2012) (trial court did not err in refusing to give a 

“mere nudity” instruction because the given instructions tracked the 

statutory requirements and the Dost factors). 

3. Denial of Motion for Judgment of Acquittal

¶21 Brock asserts that the trial court applied an incorrect legal 

standard in denying his motion for judgment of acquittal. We generally 

review de novo a trial court’s ruling on a Rule 20 motion. State v. West, 226 

Ariz. 559, 562 ¶ 15 (2011). Because Brock did not object to the standard of 

review the court applied at trial, however, we review his appellate claim 

only for fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 

140 ¶ 12 (2018).

¶22 When considering a motion for judgment of acquittal, “the 

relevant question is 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.” West, 226 Ariz. 

at 562 ¶ 16 (internal quotation omitted). In reviewing the sufficiency of the 

evidence, we compare the evidence “against the statutorily required 

elements of the offense[,]” State v. Pena, 209 Ariz. 503, 505 ¶ 8 (App. 2005), 
STATE v. BROCK

Opinion of the Court

11

and neither reweigh conflicting evidence nor assess the credibility of 

witnesses, see State v. Buccheri-Bianca, 233 Ariz. 324, 334 ¶ 38 (App. 2013).

Sufficient evidence upon which a reasonable jury can convict may be direct 

or circumstantial, West, 226 Ariz. at 562 ¶ 16, and a judgment of acquittal is 

appropriate only when “there is no substantial evidence to support a 

conviction,” Ariz. R. Crim. P. 20(a).

¶23 Contrary to Brock’s contention, the trial court explicitly

applied the correct legal standard when it stated on the record that it 

evaluated the sufficiency of the evidence by viewing that evidence in the 

light most favorable to the prosecution. Nonetheless, to the extent Brock

arguably challenges the court’s denial of his motion for judgment of 

acquittal more generally, the remaining question is whether sufficient 

evidence existed to support his convictions for child molestation, sexual 

exploitation of a minor, and possession of drug paraphernalia.

¶24 Child molestation requires proof that a person “intentionally 

or knowingly engag[ed] in or caus[ed] a person to engage in sexual contact 

. . . with a child who is under fifteen years of age.” A.R.S. § 13–1410(A).

“Sexual contact” is “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 conduct.”

A.R.S. § 13–1401(A)(3)(a). At trial, the victim testified that although she and 

Brock had never met, Brock had introduced a sexual component to their 

online relationship by causing her to engage in frequent masturbatory 

conduct and responding with threats when she attempted to end it.

Viewing the record in its entirety, substantial evidence existed from which 

a reasonable jury could find that Brock intentionally caused the minor 

victim to engage in sexual contact.

¶25 A person commits sexual exploitation of a minor by, as 

relevant here, knowingly possessing “any visual depiction” of a minor’s 

genital, pubic, or rectal region “for the purpose of sexual stimulation of the 

viewer.” A.R.S. §§ 13–3551(5), –3553. In this case, police officers seized 

numerous nude images of the minor victim from Brock’s electronic devices, 

including Exhibit 19, as discussed above. Given the image, the victim’s 

testimony about her online sexual activity with Brock and Brock’s own 

placement of the image in a folder titled “[Victim]-Sexy,” substantial 

evidence existed from which a reasonable jury could find that Brock 

knowingly possessed an image of the victim engaged in exploitive 

exhibition.
STATE v. BROCK

Opinion of the Court

12

¶26 A person commits possession of drug paraphernalia by

possessing with an intent to use, any items that “introduce into the human

body a [proscribed] drug[.]” A.R.S. § 13–3415(A). At trial, an officer testified 

that in the course of executing a search warrant on Brock’s home, he seized 

multiple pipes and bongs as well as a substance that he recognized as 

marijuana. On this record, substantial evidence existed from which a 

reasonable jury could find that Brock possessed pipes and bongs with the 

intent to use marijuana. Therefore, the trial court did not err when it denied 

Brock’s motion for judgment of acquittal.4

4. Imposition of Concurrent Sentences

¶27 The State argues in its appeal that the trial court misconstrued 

A.R.S. § 13–705(M) to allow concurrent, rather than consecutive, sentences 

for Brock’s two convictions of child molestation, dangerous crimes against 

children. “The failure to impose a sentence in conformity with mandatory 

sentencing statutes makes the resulting sentence illegal.” State v. Carbajal, 

184 Ariz. 117, 118 (App. 1995). Whether the trial court correctly construed 

the sentencing statute is a question of law we review de novo. State ex rel. 

Polk v. Campbell, 239 Ariz. 405, 406 ¶ 4 (2016).

¶28 The statutes proscribing child molestation, A.R.S. § 13–1410, 

and sexual exploitation of a minor, A.R.S. § 13–3553, provide that offenses 

involving a minor victim under 15 years of age shall be punished as 

dangerous crimes against children pursuant to A.R.S. § 13–705. A.R.S. 

§ 13–1410(B); A.R.S. § 13–3553(C). Subsection (M) of A.R.S. § 13–705 sets 

forth the circumstances that determine when sentences for dangerous 

crimes against children may be imposed concurrently or consecutively with 

sentences for other convictions:

The sentence imposed on a person by the court for a 

dangerous crime against children under subsection D of this 

section involving child molestation or sexual abuse pursuant 

to subsection F of this section may be served concurrently 

with other sentences if the offense involved only one victim.

The sentence imposed on a person for any other dangerous 

crime against children in the first or second degree shall be 

4 Brock also requests that this Court search the entire record for 

fundamental error. We need not do so, however, because “[w]hen an 

advocate’s brief has been filed on behalf of a defendant, we presume that 

counsel has raised all arguably meritorious issues[.]” State v. Scott, 187 Ariz. 

474, 478 (App. 1996).
STATE v. BROCK

Opinion of the Court

13

consecutive to any other sentence imposed on the person at 

any time, including child molestation and sexual abuse of the 

same victim.

¶29 Subsection (M)’s language is clear. The first sentence provides 

that if a defendant is convicted of child molestation, sentenced under A.R.S. 

§ 13–705(D), or sexual abuse, sentenced under A.R.S. § 13–705(F), the court 

may make the sentences imposed for those offenses concurrent with 

sentences for other offenses the defendant was convicted of “if the offense 

involved only one victim.” The second sentence of Subsection (M) limits the 

application of the first sentence: The sentence imposed on a person “for any 

other dangerous crime against children in the first or second degree” shall 

be consecutive “to any other sentence imposed on the person at any time, 

including child molestation and sexual abuse of the same victim.” (Emphasis 

added.) So, if a defendant is convicted of child molestation or sexual abuse, 

dangerous crimes against children, the court has the discretion to make the 

sentences for those offenses concurrent with the sentences for any other 

offenses if they involved the same victim. However, if the defendant is 

convicted of any other dangerous crime against children in the first or 

second degree, the sentence for that conviction must be consecutive to any 

other sentence, even if the offense is child molestation or sexual abuse against the 

same victim.

¶30 This reading of the statute is consistent with earlier decisions 

from this Court and the Arizona Supreme Court. In State v. Tsinnijinnie, this 

Court considered whether A.R.S. § 13–604(K)—the predecessor to 

§ 13-705(M) and worded substantially similarly to it—required the trial 

court to impose consecutive sentences for convictions for sexual assault and 

molestation of the same victim on different occasions. 206 Ariz. 477, 478 ¶ 6 

(App. 2003). This Court held that the sentences should have been 

consecutive to each other because

[w]hen the two sentences of subsection (K) are considered 

together, the sentencing discretion granted to the trial court 

by the first sentence is limited by the second sentence. If a 

defendant is convicted of child molestation or sexual abuse 

along with another offense that is not a dangerous crime 

against children, the trial court has discretion to order that the 

sentences be served concurrently if only one victim is 

involved. If, however, a defendant is convicted of any “other” 

dangerous crime against children, the sentence for each such 

offense must be served consecutively to any other sentence 

imposed.
STATE v. BROCK

Opinion of the Court

14

Id. at 479 ¶ 14.

5 The Arizona Supreme Court cited this analysis favorably 

when it considered whether A.R.S. § 13–116, the statute prohibiting double 

punishment for single criminal acts, took precedence over Subsection (M)’s 

requirement that sentences for certain dangerous crimes against children 

convictions be consecutive to other sentences: “Section 13–705(M) allows a 

concurrent sentence only for child molestation and sexual abuse involving 

one victim and when the ‘other’ crime is not dangerous.” State v. Jones, 235 

Ariz. 501, 503 ¶ 7 n.1 (2014).

¶31 Under a plain reading of Subsection (M)’s language, as 

recognized in Tsinnijinnie and Jones, the trial court erred in making Brock’s 

sentence for two separate counts of child molestation concurrent with each 

other. Brock was convicted of one count of child molestation occurring 

between June 4, 2012, and August 15, 2012, and one count of child 

molestation occurring on August 16, 2012. Although the first sentence of 

Subsection (M) would allow the court to impose concurrent sentences for 

those convictions because they involve the same victim, the second 

sentence prohibits that because a sentence imposed for “any other 

dangerous crime against children in the first or second degree”—as either 

molestation conviction in this case is—“shall be consecutive to any other

sentence imposed on the person at any time, including child molestation and 

sexual abuse of the same victim.” (Emphasis added.) Consequently, the trial 

court erred in imposing concurrent sentences for the molestation 

convictions.

¶32 Brock nevertheless argues that the trial court had discretion 

to impose concurrent sentences. He reads Subsection (M) to create a

discretionary exception to the general rule of mandatory consecutive 

sentences for dangerous crimes against children for child molestation or 

sexual abuse offenses if they were committed against the same victim. He 

claims that the second child molestation conviction is not “any other 

dangerous crime against children,” but the same crime. He provides no 

rationale for such an interpretation, other than contending that in 

Tsinnijinnie and Jones, the two dangerous crimes against children offenses 

at issue in each case were different from each other.

¶33 But nothing in Subsection (M)’s plain language supports this 

interpretation. “Words are to be understood in their ordinary everyday 

5 In its analysis, this Court declined to consider whether the sentence 

for a separate child molestation conviction involving the same victim 

should have been consecutive because the State did not challenge that 

sentence on appeal. Tsinnijinnie, 206 Ariz. at 478 ¶ 6 & n.3.
STATE v. BROCK

Opinion of the Court

15

meanings—unless the context indicates they bear a technical sense.” 

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal 

Texts 69 (2012). The “ordinary everyday meaning” of “other” is “being one 

(as of two or more) left”; “not the same”; or “more, additional.” Webster’s 

Third New International Dictionary 1598 (2002). Because the two offenses 

were committed on different occasions, the second one is “left” after the 

first is named or considered; it is not “the same” because it was not 

committed on the same occasion or by the same act; and it is “additional” 

to the first. Moreover, Subsection (M) expressly recognizes that its 

requirement that sentences for “any other dangerous crime against 

children” must be consecutive applies even to “child molestation and sexual 

abuse of the same victim.” Brock’s second conviction for child molestation is 

thus an “other dangerous crime against children” that requires an 

imposition of a consecutive sentence.

¶34 Tsinnijinnie’s and Jones’s interpretations of Subsection (M) 

and its predecessor also do not support Brock’s interpretation. This Court 

stated in Tsinnjinnie that a trial court has discretion to impose concurrent 

sentences if the defendant was convicted of child molestation or sexual 

abuse and of an offense that was not a dangerous crime against children if 

the same victim was involved; “[i]f, however, a defendant is convicted of 

any ’other’ dangerous crime against children,” the sentence for each offense 

must be served consecutively. 206 Ariz. at 479 ¶ 14. The supreme court 

explicitly recognized that only sentences for offenses involving the same 

victim that are not dangerous crimes against children may be served 

concurrently with sentences for dangerous crimes against children offenses. 

Jones, 235 Ariz. at 503 ¶ 7 n.1.

¶35 Beyond this, Brock’s interpretation is at war with the purpose 

of dangerous crimes against children statutes. The statutes “were adopted 

as a response to the increase in the number of sexual offenses reportedly 

committed against children and constitute an attempt to punish severely 

those persons who commit such crimes, particularly recidivist child 

molesters.” State v. Arnoldi, 176 Ariz. 236, 242 (App. 1993) overruled on other 

grounds, Jones, 235 Ariz. at 503 ¶ 10. Interpreting Subsection (M) to allow 

concurrent sentences merely because the offenses are both child 

molestation offenses—without a rationale why two child molestation 

offenses against the same victim are worthy of less punishment than two 

different dangerous crimes against children against the same victim—runs 

counter to that purpose. This is especially true here where Brock engaged 

in an 18-month webcast sexual relationship with a child under 15 years old. 

Nothing shows that the nature of Brock’s conduct merits less punishment.
STATE v. BROCK

Opinion of the Court

16

¶36 Brock’s interpretation also leads to perverse results. Under his 

interpretation, a person could commit as many acts of molestation as he 

chose and still receive concurrent sentences for those offenses as long as he 

molested the same victim. He would risk the increased punishment of 

consecutive sentences only if he committed a different dangerous crime 

against children offense against the same victim or chose a new victim. The 

result would be that two people who committed the same number of 

dangerous crimes against children would receive different punishments

depending on whether they chose one or multiple victims or committed

different dangerous crimes against children against the same victim. Such 

a sentencing scheme would be senseless, especially given the purpose of 

the dangerous crimes against children statute, to increase the punishment 

on recidivist child molesters. Arnoldi, 176 Ariz. at 242.

¶37 The supreme court addressed an analogous issue in State 

v. Noble, 152 Ariz. 284 (1987). There, a defendant argued that a particular 

sentencing statute required the imposition of concurrent sentences for 

convictions for offenses committed against the same victim on the same 

occasion. Id. at 288. The court recognized that such an interpretation would 

allow persons who committed the same number of offenses against a victim

to receive a different punishment depending on whether the crimes were 

committed on the same occasion. Id. Such a reading, the court found, would 

send a message that 

[i]f you must yield to temptation, purge yourself of all 

criminal tendencies “on the same occasion” and receive only 

concurrent sentences regardless of the number of charges on 

which you are convicted. We caution you against fulfilling 

your criminal desires on separate occasions. To do so could 

result in imposition of consecutive sentences.

Id. The court chose not to send that message. Id. Likewise, interpreting 

Subsection (M) as Brock suggests would send a message that persons who 

commit child molestation or sexual abuse may receive less punishment if 

they choose one victim to attack multiple times than if they choose multiple 

victims. That is not what the Legislature intended in enacting Subsection 

(M). We reject Brock’s interpretation.

¶38 The dissent, however, agrees with Brock’s interpretation. It 

reasons that because the first sentence of Subsection (M) specifically 

provides that sentences for child molestation and sexual abuse may be 

served concurrently with other sentences for offenses against the same 

victim, the limitation in the second sentence that a sentence for “any other 
STATE v. BROCK

Opinion of the Court

17

dangerous crime against children” must be served consecutively to “any 

other sentence” imposed necessarily excludes sentences for child 

molestation or sexual abuse and applies only to sentences for dangerous 

crimes against children not mentioned in the first sentence. Infra ¶¶ 48–50.

¶39 But such a reading is unjustified. Simply because the first 

sentence of Subsection (M) allows for concurrent sentences when a 

defendant has committed other offenses against a victim in addition to child 

molestation or sexual abuse does not exempt those offenses from the 

limitation of the second sentence that a sentence for “any other dangerous 

crime against children” must be consecutive to any other sentence imposed 

on the defendant. Nothing in the text of the second sentence compels such 

an interpretation.

¶40 More important, the consideration of the entire text of second 

sentence defeats such an interpretation. After providing that sentences for 

“any other dangerous crime against children” must be consecutive to any 

other sentence imposed, the second sentence appends “including child 

molestation and sexual abuse of the same victim.” Thus, contrary to the 

dissent’s reading, the text of the second sentence of Subsection (M)

specifically includes other child molestation and sexual abuse offenses

against the same victim within its ambit. The dissent’s reading of the 

sentence makes the final clause of the second sentence superfluous, 

violating a “cardinal principle of statutory interpretation.” Nicaise v. 

Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019); see also Scalia & Garner, Reading 

Law, 174 (“Whenever a reading arbitrarily ignores linguistic components or 

inadequately accounts for them, the reading may be presumed 

improbable.”) (citation and footnote omitted).

¶41 The dissent also fails to identify a reason that the Legislature 

would intend to exclude from the requirement of consecutive sentences

multiple convictions for child molestation or sexual abuse against the same 

victim. The dissent calls “unwise” the consideration of the Legislature’s 

intent and the effects of interpreting Subsection (M) as Brock and the dissent 

suggests. Infra ¶ 61. But far from unwise, when interpreting statutes, our 

goal is to effectuate legislative intent. Harris, 237 Ariz. at 100 ¶ 8. And a 

recognized canon of construction is that an interpretation that furthers a 

statute’s purpose is favored over one that does not. Scalia & Garner, Reading 

Law, 56. Although we need not go beyond Subsection (M)’s plain language 

to determine that multiple convictions for child molestation or sexual abuse 

of the same victim require consecutive sentences, see Dignity Health v. 

Farmers Ins. Co. of Ariz., 247 Ariz. 39, 42 ¶ 7 (App. 2019) (recognizing that 

consideration of statute’s purpose and effects is unnecessary if its language 
STATE v. BROCK

Opinion of the Court

18

is clear), the fact that our interpretation furthers the Legislature’s intent and 

avoids Brock’s and the dissent’s perverse results confirms the validity of 

our reading of the plain language.

¶42 The dissent also relies extensively on State v. Supinger, 190 

Ariz. 326 (App. 1997), which interpreted A.R.S. § 13–604.01(I) (1996), an 

apparent ancestor to Subsection (M). Infra ¶¶ 53–59. But Supinger has little 

value today. First, A.R.S. § 13–604.01(I) is different from Subsection (M). 

Section 13–604(I) provided that the sentence imposed on a person “for a 

dangerous crime against children . . . involving child molestation . . . shall 

be consecutive to any other sentence imposed on the person . . . if the offense 

involved more than one victim. (Emphasis added.) Because § 13–604.01(I) 

called for consecutive sentences when the child molestation offense 

involved more than one victim, this Court held that concurrent sentences 

were allowed when child molestation involved only one victim. Supinger, 

190 Ariz. at 330. Subsection (M), in contrast, imposes consecutive sentences 

when two dangerous crimes against children involve the same victim, 

including child molestation. The differing language between the two 

statutes makes the applicability of Supinger’s analysis to Subsection (M)

dubious.

¶43 Second, even if Supinger’s analysis of the ancestor statute was 

correct, it means little in the face of Tsinnijinnie and Jones. The dissent claims 

that Tsinnijinnie and Jones do not squarely address the issue here, but 

Tsinnijinnie interpreted the substantially identical statute the way that we 

interpret Subsection (M) today, 206 Ariz. at 47 ¶ 14, and our supreme court 

cited Tsinnijinnie favorably in noting that Subsection (M) allows a 

concurrent sentence for child molestation when the “other” crime is not a 

dangerous crime against children, Jones, 235 Ariz. at 503 ¶ 7 n.1. If the 

supreme court, upon further reflection, determines that its statement 

should not be read as we have read it today, it will certainly say so. See, e.g.,

Allen v. Sanders, 240 Ariz. 569, 574 ¶¶ 26–27 (2016) (Bolick, J., concurring)

(noting that the supreme court, in addressing “categorical language” from 

an earlier decision, “today walks back its broad interpretation” of the rule 

of procedure at issue in that case). Until then, we are bound to follow our 

supreme court. State v. Lucero, 223 Ariz. 129, 137 ¶ 24 (App. 2009).

¶44 For these reasons, we are, with respect, unpersuaded by the 

dissent’s analysis. We conclude that because the second child molestation

offense in this case constitutes another dangerous crime against children, 

the trial court did not have discretion to give a concurrent sentence under 

Subsection (M). Because we do not know how the trial court would have 

sentenced Brock had it known that it did not have discretion to impose 
STATE v. BROCK

Opinion of the Court

19

concurrent sentences for the child molestation offenses under Subsection 

(M), we remand for resentencing. See State v. Stroud, 209 Ariz. 410, 414 ¶ 21 

(2005) (“When a trial court labors under a misunderstanding of the 

sentencing law . . . that portion of the sentence . . . should be set aside and 

the matter remanded for sentencing.”).

CONCLUSION

¶45 For the foregoing reasons, we affirm Brock’s convictions and 

sentences in part but remand for resentencing of his child-molestation 

convictions because those two sentences must run consecutively.

J O H N S E N, concurring in part, dissenting in part

¶46 I agree with ¶¶ 3–26 of the majority’s opinion affirming 

Brock’s convictions. I disagree, however, with the majority’s conclusion 

that the trial court lacked discretion to impose concurrent sentences for his 

two child-molestation convictions. Supra ¶ 2.

¶47 There is no question that, in the usual case, the first sentence 

of A.R.S. § 13–705(M) allows a court to impose a concurrent sentence for a 

conviction of child molestation when, as here, a defendant is convicted of 

multiple offenses involving “only one victim.”6 Likewise, under the second 

sentence of that provision, there is no question that when a defendant is 

convicted of child molestation and a dangerous crime against children 

other than child molestation or sexual abuse, the court must impose a 

consecutive sentence. See State v. Tsinnijinnie, 206 Ariz. 477, 479 ¶ 15 (App. 

2003) (sentence for sexual assault of a minor must be consecutive to 

sentence for sexual molestation of a minor). The issue on which I disagree 

with the majority is whether the second sentence of subsection (M) requires 

consecutive sentences when a defendant is convicted of two childmolestation charges involving the same victim.

¶48 The majority concludes, supra ¶ 31, that the superior court 

erred in sentencing Brock because his second child-molestation conviction 

constituted “any other dangerous crime against children” that required a 

6 Section 13–705(M) mandates special treatment of the two dangerous 

crimes against children of child molestation and sexual abuse. For 

simplicity, in the discussion that follows I sometimes will address the childmolestation convictions that are at issue here without referring to sexual 

abuse even though the statute treats the two crimes the same.
STATE v. BROCK

Johnsen, J., Concurring in Part and Dissenting in Part

20

consecutive sentence. A.R.S. § 13–705(M). I construe the two sentences of 

subsection (M) together and come to a different conclusion. I believe the 

reference in the second sentence of subsection (M) to “any other dangerous 

crime against children” means any crime other than the crimes of “child 

molestation or sexual abuse” that are referenced in the first sentence of the 

provision. As applied, therefore, I would affirm the concurrent sentences 

the court imposed for Brock’s two child-molestation convictions because 

both “involved only one victim.” Id.

¶49 As the majority states, supra ¶ 27, when we interpret a statute, 

we first carefully consider its text. See State v. Lee, 236 Ariz. 377, 383 ¶ 16 

(App. 2014). The statute here defines 23 distinct “[d]angerous crime[s] 

against children,” A.R.S. § 13–705(Q), then sets out special sentencing rules 

to be applied to persons convicted of such crimes. The focus of the first 

sentence of the relevant subsection here, § 13–705(M), is the prison sentence 

to be imposed on a person convicted of child molestation or sexual abuse 

as a dangerous crime against children. The second sentence of the 

subsection concerns the sentence imposed “for any other dangerous crime 

against children.” Notwithstanding the majority’s lengthy discussion of the 

meaning of “other,” supra ¶¶ 33–34, it seems plain to me that the reference 

to “any other dangerous crime against children” in the second sentence of the 

provision must mean any of the 23 dangerous crimes against children other

than the crimes of child molestation or sexual abuse referenced in the first 

sentence. A.R.S. § 13–705(M) (emphasis added).

¶50 To explain, the first sentence of subsection (M) introduces the 

subject of the provision by referring to a “sentence imposed on a person . . 

. for a dangerous crime against children . . . involving child molestation or 

sexual abuse.” The second sentence echoes the language of the first sentence 

by referring to “any other dangerous crime against children.” Id. (emphasis 

added). The drafters did not refer in the second sentence to “any second (or 

other) conviction of a dangerous crime against children,” nor did they 

choose to reference a “second (or other) offense under this statute.” 

Applying the language of the statute as written, and reading the two 

sentences of (M) together, the term “other” limits the scope of qualifying 

dangerous crimes against children to those different or distinct from child 

molestation or sexual abuse, so that a second conviction of child 

molestation is not “any other dangerous crime against children” that would 

require a consecutive sentence. See Trisha A. v. Dep’t of Child Safety, 247 Ariz. 

84, 88 ¶ 17 (2019) (explaining under presumption of consistent-usage canon 

that “a word or phrase is presumed to bear the same meaning throughout 

a text” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 170 (2012))).
STATE v. BROCK

Johnsen, J., Concurring in Part and Dissenting in Part

21

¶51 The majority states that its interpretation of the statute is 

supported by the final clause of subsection (M). Supra ¶ 29. I disagree. The 

reference to “child molestation and sexual abuse of the same victim” in that 

sentence only makes clear the indisputable proposition that when a 

defendant is convicted of two dangerous crimes against children—child 

molestation and “any other dangerous crime against children”—the court 

must impose consecutive sentences.

¶52 Contrary to the majority’s contention, supra ¶ 40, my 

interpretation does not render the final clause of the second sentence 

superfluous. See Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019) (courts 

should “give meaning, if possible, to every word and provision [in a statute] 

so that no word or provision is rendered superfluous”). The fact is that the 

majority accords the phrase no more meaning than I do. Under either 

interpretation, the final phrase clarifies what comes before. My view is that 

the most logical reading of the statute is that the final phrase modifies the 

penultimate phrase (“any other sentence imposed on the person at any 

time”) and clarifies that when a defendant is sentenced on two convictions, 

the first being a dangerous crime against children other than child 

molestation or sexual abuse, and the second being any crime against 

children—including child molestation and sexual abuse—the sentences 

must be consecutive.7

¶53 Our decision in State v. Supinger, 190 Ariz. 326 (App. 1997), 

further supports my construction of the statute. In that case, we interpreted 

A.R.S. § 13–604.01(I) (1996), the predecessor to A.R.S. § 13–705(M). The 

former statute provided:

The sentence imposed on a person by the court for a 

dangerous crime against children in the first or second degree 

shall be consecutive to any other sentence imposed on the 

person at any time except that the sentence imposed on a 

person by the court for a dangerous crime against children 

under subsection B of this section involving child molestation 

or sexual abuse pursuant to subsection C of this section shall 

7 Thus, the majority and I both view the final clause as explaining or 

clarifying “any other.” See Scalia & Garner, supra, at 176–77 (explaining the 

surplusage canon “cannot always be dispositive” because “[s]ometimes 

drafters do repeat themselves and do include words that add nothing of 

substance, either out of a flawed sense of style or to engage in the illconceived but lamentably common belt-and-suspenders approach”).
STATE v. BROCK

Johnsen, J., Concurring in Part and Dissenting in Part

22

be consecutive to any other sentence imposed on the person 

at any time if the offense involved more than one victim.

A.R.S. § 13–604.01(I) (1996).

¶54 Supinger described this language as creating a “general rule” 

(the first clause) and “an exception” (the second clause). 190 Ariz. at 330. 

The general rule required consecutive sentences for all dangerous crimes 

against children; the exception allowed concurrent sentences for the crimes 

of child molestation and sexual abuse involving a single victim. Id. The 

defendant in that case was convicted of child molestation and sexual 

conduct with a minor, both dangerous crimes against children. Id. We held 

the exception did not apply because the rule mandated that the sexualconduct sentence “be served consecutive to any other sentence.” Id. 

Allowing the exception to prevail (i.e., allowing the sexual-molestation 

sentence to run concurrently with the sexual-conduct sentence) “would 

nullify the requirement for a consecutive sentence on the sexual conduct.” 

Id.

¶55 In summarizing its reasoning, Supinger addressed the issue 

now presented:

We therefore conclude that the exception . . . applies only 

when two or more sentences are within the exception, or 

when one of the sentences is not a dangerous crime against 

children. For example, a sentence for child molestation . . . may 

be served concurrent with a sentence for another count of child 

molestation, which also falls within the exception, or a drug 

offense not involving a minor, which is not a dangerous crime 

against children. Such a sentence may not, however, be served 

concurrently with a sentence for another dangerous crime 

against children that does not fall within the exception.

Id. (emphasis added).8

¶56 As noted, the version of the statute that Supinger analyzed has 

been amended. See 1997 Ariz. Sess. Laws, ch. 179, § 1 (1st Reg. Sess.). But 

8 In a footnote, we restated the same point: “We note, however, that if 

a defendant has multiple convictions for dangerous crimes against children 

and more than one falls within the exception, those sentences falling within 

the exception may be concurrent with each other but must be consecutive to 

any other sentence(s) for a dangerous crime against children not falling 

within the exception.” 190 Ariz. at 331 n.3.
STATE v. BROCK

Johnsen, J., Concurring in Part and Dissenting in Part

23

close analysis shows that the operative language of the older statute is 

virtually identical to that of current § 13–705(M). In the first place, setting 

aside the exceptions for child molestation and sexual abuse, both versions 

of the statute use identical language to state that when a person is convicted 

of any dangerous crime against children, the resulting sentence must be 

“consecutive to any other sentence imposed on the person at any time.” 

A.R.S. § 13–705(M); A.R.S. § 13–604.01(I) (1996).

¶57 Further, under both versions of the statute, the court must 

impose consecutive sentences when a person is convicted of child 

molestation or sexual abuse and “any other dangerous crime against 

children.” A.R.S. § 13–705(M) (“sentence imposed on a person for any other 

dangerous crime against children . . . shall be consecutive to any other 

sentence imposed on the person at any time, including child molestation 

and sexual abuse of the same victim”); see Supinger, 190 Ariz. at 331 n.3 (“[I]f 

a defendant has multiple convictions for dangerous crimes against children 

. . . , those sentences falling within the exception . . . must be consecutive to 

any other sentence(s) for a dangerous crime against children not falling 

within the exception.”).

¶58 As for child molestation and other crimes involving the same 

victim, the prior version of the statute stated that “the sentence imposed . . 

. shall be consecutive to any other sentence imposed on the person at any 

time if the offense involved more than one victim.” A.R.S. § 13–604.01(I) 

(1996) (emphasis added). We held in Supinger that the implication of that 

provision was that a person convicted of child molestation could be 

sentenced to a concurrent sentence if the “any other” offense involved the 

same child. 190 Ariz. at 330. After the 1997 amendment, current § 13–705(M) 

uses like language in expressly stating the implication we drew in Supinger: 

“The sentence imposed on a person [convicted of child molestation] may be 

served concurrently with other sentences if the offense involved only one 

victim.” (Emphasis added.)

¶59 Given the similarity of the two statutes, and in the absence of 

any indication the legislature intended the revision to effect a substantive 

change, I believe that when we construe the current version of § 13–705(M), 

we must be guided by what we said about its predecessor in Supinger.

9

9 There can be no contention that the amendment was in response to 

our decision in Supinger. We issued our decision in that case on July 29, 

1997, a few months after the legislature amended the sentencing provision 
STATE v. BROCK

Johnsen, J., Concurring in Part and Dissenting in Part

24

¶60 In coming to the opposite conclusion about how to construe § 

13–705(M), the majority relies on State v. Jones, 235 Ariz. 501 (2014), and 

Tsinnijinnie, supra ¶¶ 30–31, 34, but neither case addresses the question 

presented here. In Jones, our supreme court held that the consecutivesentence mandate in § 13–705(M) prevailed over A.R.S. § 13–116 (2020), 

which generally requires concurrent sentences when multiple convictions 

result from a single act or omission. Jones, 235 Ariz. at 503 ¶¶ 8, 11. The 

majority cites a footnote in Jones that described § 13–705(M) as allowing “a 

concurrent sentence only for child molestation and sexual abuse involving 

one victim and when the ‘other’ crime is not dangerous.” 235 Ariz. at 194 

n.1; supra ¶ 30. But I do not understand that footnote to say anything more 

or less than what subsection (M) itself says (“sentence imposed on a person 

for any other dangerous crime against children in the first or second degree 

shall be consecutive to any other sentence”). And Tsinnijinnie, the only case 

Jones cited in its description of § 13–705(M) in that footnote, specifically left 

open the issue we now address. 206 Ariz. at 477–78 ¶¶ 2, 6 n.3 (declining to 

decide whether concurrent sentences could be imposed under current 

subsection (M) for two child-molestation convictions).

¶61 Turning to the majority’s other explanations, I suggest that its 

reliance on the purpose of § 13–705 is unwise. Supra ¶¶ 35–36. I do not 

question that the purpose of the statute is to protect children by punishing 

dangerous crimes against children more severely than other crimes. But 

that does not mean that we must always construe the statute to require the 

more severe of two possible punishments. “[N]o legislation pursues its 

purposes at all costs. Deciding what competing values will or will not be 

that is now codified as A.R.S. § 13–705(M). See Supinger, 190 Ariz. 326; see 

also 1997 Ariz. Sess. Laws, ch. 179 (1st Reg. Sess.). Further, as we noted in 

Tsinnijinnie, “[t]he legislative history is inconclusive regarding the purpose 

of the 1997 amendment.” 206 Ariz. at 479 ¶ 11 n.4; see also Ariz. State Senate

Fact Sheet for H.B. 2016, 43d Leg., 1st Reg. Sess. (Mar. 24, 1997) (stating the 

amendment “[c]larifies sentencing language involving sexual child 

molestation and sexual abuse of the same victim”). In short, we have been 

presented with neither argument, citation nor logic for the proposition that 

the legislature intended a substantive change when it enacted the 1997 

amendment. See State v. Sweet, 143 Ariz. 266, 271 (1985) (contrasting 

legislative decision to change an existing statute from legislative decision to 

merely clarify the statute); Clarify, Random House Webster’s Unabridged 

Dictionary 380 (2001) (“to make (an idea, statement, etc.) clear or 

intelligible; to free from ambiguity”); see also, e.g., In re Marriage of Waldren, 

217 Ariz. 173, 176 ¶ 15 (2007) (citing legislative fact sheet in concluding 

amendment was not intended to change statute but merely to clarify it).
STATE v. BROCK

Johnsen, J., Concurring in Part and Dissenting in Part

25

sacrificed to the achievement of a particular objective is the very essence of 

legislative choice—and it frustrates rather than effectuates legislative intent 

simplistically to assume that whatever furthers the statute’s primary 

objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525–26 

(1987).

¶62 The majority questions why the statute might treat two childmolestation convictions differently than convictions of any other two 

dangerous crimes against children. See supra ¶ 35. Respectfully, we have no 

mandate to divine “a reason” the legislature might have had for enacting a 

particular provision. Supra ¶ 41; see Hughes v. Jorgenson, 203 Ariz. 71, 73 ¶ 

11 n.5 (2002) (“We cannot be asked to guess at the legislature’s subjective 

intent. Stated succinctly, we must be able to reach our conclusion by 

analysis of the statute instead of by psychoanalysis of the legislature.” 

(quotation omitted)). There is no dispute that the legislature has chosen to 

treat sentencing for child-molestation convictions differently; the only issue 

is the extent to which it has done so. As for the so-called perverse result of 

my construction of the statute (i.e., concurrent sentences possible for any 

number of child-molestation convictions committed against the same 

victim), supra ¶¶ 36, 41, the statute allows the sentencing court discretion to 

impose consecutive sentences in such a case, thereby avoiding the posited 

result. See A.R.S. § 13–705(M). Finally, the majority cites State v. Noble, 152 

Ariz. 284 (1987), about the “message” a court sends by construing a 

sentencing statute. Supra ¶ 37. Noble did not construe § 13–705 and I see no 

textual analysis in that case that is relevant here.

¶63 For these reasons, although I concur with the majority insofar 

as it affirms Brock’s convictions, I dissent from the majority’s decision to 

remand his two concurrent child-molestation sentences.