IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

JOSEPH LAWRENCE DIXON,

Appellant.

)

)

)

)

)

)

)

)

)

)

2 CA-CR 2012-0065

DEPARTMENT B

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

Cause No. CR201100293

Honorable James L. Conlogue, Judge

AFFIRMED

Thomas C. Horne, Arizona Attorney General

 By Kent E. Cattani, Joseph T. Maziarz, and

 Diane Leigh Hunt Tucson

Attorneys for Appellee

Joel A. Larson, Cochise County Legal Defender

 By Joel A. Larson Bisbee

Attorneys for Appellant

K E L L Y, Judge.

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO

JAN 31 2013
2

¶1 Joseph Dixon appeals from his convictions and sentences for twenty-four 

counts of sexual exploitation of a minor. He argues the state lacked subject matter 

jurisdiction over his possession of exploitive visual depictions because there was no 

evidence a criminal offense had been committed during the creation of those depictions. 

He also contends the court erred in sentencing him under A.R.S. § 13-705 because there 

was no evidence an offense was committed against a minor. We affirm.

Factual and Procedural Background

¶2 The relevant facts are undisputed. After a jury trial, Dixon was convicted 

of twenty-four counts of sexual exploitation of a minor under the age of fifteen years by 

knowingly possessing, electronically transmitting, exchanging, or receiving any visual 

depiction in which a minor under the age of fifteen years is engaged in exploitive 

exhibition or other sexual conduct. He was sentenced to twenty-four consecutive 

minimum ten-year prison terms pursuant to § 13-705(D). This appeal followed. 

Discussion

¶3 Dixon argues the state lacked subject matter jurisdiction over his possession 

of exploitive visual depictions because there was no evidence a criminal offense had been 

committed when the relevant depictions were created. Arizona has jurisdiction over a 

criminal offense if “[c]onduct constituting any element of the offense or a result of such 

conduct occurs within this state.” A.R.S. § 13-108. “Subject matter jurisdiction is a 

question of law, which we review de novo.” State v. Bryant, 219 Ariz. 514, ¶ 4, 200 P.3d 

1011, 1013 (App. 2008).
3

¶4 Section 13-3553(A), A.R.S., provides that a person commits sexual 

exploitation of a minor by knowingly:

1. Recording, filming, photographing, developing or 

duplicating any visual depiction in which a minor is engaged 

in exploitive exhibition or other sexual conduct.

2. Distributing, transporting, exhibiting, receiving, selling, 

purchasing, electronically transmitting, possessing or 

exchanging any visual depiction in which a minor is engaged 

in exploitive exhibition or other sexual conduct.

“Our primary purpose in interpreting a statute is to give effect to the legislature’s intent.” 

State v. Hinden, 224 Ariz. 508, ¶ 9, 233 P.3d 621, 623 (App. 2010). The best and most 

reliable indicator of that intent is the statute’s language and, if it is plain and 

unambiguous, we will “look no further.” Id.; see also City of Tucson v. Clear Channel 

Outdoor, Inc., 218 Ariz. 172, ¶ 6, 181 P.3d 219, 225 (App. 2008) (when statutory 

language unambiguous “a court should not look beyond the language but rather ‘simply 

apply it without using other means of construction, assuming that the legislature has said 

what it means’”), quoting Hughes v. Jorgenson, 203 Ariz. 71, ¶ 11, 50 P.3d 821, 823 

(2002).

¶5 Dixon concedes each image that formed the basis for his convictions “me[t] 

the definition of an exploitive exhibition.” See A.R.S. § 13-3551(4). And he does not 

dispute that he possessed the depictions in Arizona. He also acknowledges that case law 

has established “[e]ach subsection [of § 13-3553(A)] is violated by distinctly different 
4

conduct causing different kinds of harm to the child” and creates separate and distinct 

offenses. State v. Paredes-Solano, 223 Ariz. 284, ¶ 15, 222 P.3d 900, 906 (App. 2009).

¶6 Dixon argues, however, a minor may not be sexually exploited pursuant to 

§ 13-3553(A)(2) unless that minor was “criminally victimized” during the creation of the 

visual depiction described in § 13-3553(A)(1), under the law at the location where it was 

created. He contends that if the creation of the depiction was legal where it was created, 

its possession cannot support a conviction in Arizona because the “act of possession 

cannot be uncoupled from the depiction.” Dixon proposes that, unless the state proves an 

offense occurred during creation of the depiction, it lacks jurisdiction because “the simple 

conduct of possession has not ripened into an element of the offense.” But even 

assuming Dixon’s theory would limit the state’s jurisdiction over sexual exploitation

offenses, his argument fails because we reject his construction of the statute.

¶7 Dixon’s proposed interpretation of § 13-3553(A) imposes additional 

elements not supported by the statute’s language or related case law. It is wellestablished that possessing a visual depiction pursuant to § 13-3553(A)(2) is a separate 

act that supports a conviction under the statute, independent of any conduct described in 

§ 13-3553(A)(1). See State v. Jensen, 217 Ariz. 345, ¶ 6, 173 P.3d 1046, 1049 (App. 

2008) (“receiving” and “possessing” each separate act violating statute). And nothing in 

the definition of exploitive exhibition requires the state to prove an additional criminal 

offense—instead, it describes particular conduct that Dixon does not dispute was proven 

in this case. See § 13-3551(4) (exploitive exhibition is “the actual or simulated exhibition 
5

of the genitals or pubic or rectal areas of any person for the purpose of sexual stimulation 

of the viewer”). 

¶8 In Paredes-Solano, this court noted the conduct described in § 13-

3553(A)(2) “can only occur after an image has been created” and harms the minor by 

perpetuating “those images.” 223 Ariz. 284, ¶¶ 10, 15, 222 P.3d at 904, 906. Dixon 

contends this language supports his suggestion that the same minor must be victimized 

both by the creation of a depiction and by its possession before such possession can 

support a conviction. However, the cited language neither addresses nor supports

Dixon’s argument, but merely acknowledges that each subsection refers to the same type

of depiction. Moreover, the case explicitly refutes Dixon’s suggestion that proof of one 

offense is a necessary prerequisite to proving the other by reiterating that “[t]he two 

subsections . . . create offenses that are separate and distinct.” Id. ¶ 15.

¶9 Dixon also argues the “legislative purpose behind A.R.S. § 13-3553 [is] to 

protect the children of Arizona from sexual exploitation,” which supports limiting the 

application of the statute as he has proposed. We disagree for several reasons. First, a 

statute’s plain language is conclusive unless it will frustrate the legislature’s clearly 

expressed intent. State v. Estrada, 201 Ariz. 247, ¶ 19, 34 P.3d 356, 360 (2001). And 

“[s]tatutes shall be liberally construed to effect their objects and to promote justice.” 

A.R.S. § 1-211(B). Dixon has not shown the legislature’s intended purpose would be 

frustrated by prohibiting the possession of exploitive depictions even where the state has 

not proven the minor depicted was “victimized” under Arizona law on an earlier 
6

occasion. To the contrary, when the legislature enacted the predecessor to § 13-3553, it 

recognized its interest was not limited to protecting the minor victims depicted, but 

extended to combating “the climate encouraging the sexual exploitation of other 

children.” 1978 Ariz. Sess. Laws, ch. 200, § 2. It also found “the use of children as 

subjects in the production of pornographic materials is very harmful to . . . society as a 

whole.” Id.

¶10 Moreover, we presume the legislature did not intend an absurd result. 

Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 26, 181 P.3d at 229. Under Dixon’s 

proposed interpretation, if a minor—even an Arizona resident—was taken to a

jurisdiction that did not criminalize the acts depicted in the creation of child pornography, 

any depictions created there could be distributed and possessed in Arizona without 

implicating § 13-3553(A). In light of the legislature’s express findings regarding the 

broad and continuing harm caused by such acts, this would be an absurd result. 

¶11 The plain language of § 13-3553(A) does not support Dixon’s contention 

that his “simple conduct of possession ha[d] not ripened into an element of the offense,” 

nor is the legislature’s clearly expressed intent frustrated by the application of the 

statute’s plain language. See Estrada, 201 Ariz. 247, ¶ 19, 34 P.3d at 360. Because 

conduct constituting Dixon’s possession pursuant to § 13-3553(A)(2) occurred in 

Arizona, the state had subject matter jurisdiction over his offenses.1 See § 13-108. 

 

1

For the same reason, the cases Dixon cites discussing “the extent of Arizona’s 

power to punish conduct that occurs outside of the State” are inapposite.
7

¶12 Dixon also argues the trial court committed fundamental error by 

sentencing him pursuant to A.R.S. § 13-705. In an argument similar to that addressed 

above, he argues § 13-705 does not apply to a conviction under § 13-3553 “in the 

absence of evidence that an offense was committed in the making of the visual 

depiction.” Dixon did not object on this basis below and we therefore review for 

fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 

P.3d 601, 607 (2005). However, imposition of an illegal sentence constitutes 

fundamental error. State v. Zinsmeyer, 222 Ariz. 612, ¶ 26, 218 P.3d 1069, 1080 (App. 

2009).

¶13 Section 13-705 provides that sexual exploitation of a minor is a dangerous 

crime against children and establishes the sentencing range for those convicted of the 

offense. § 13-705(D), (P)(1)(g). Dixon does not dispute the jury found he was guilty of 

twenty-four counts of sexual exploitation based on his possession of depictions of minors 

engaged in exploitive exhibition. For the reasons discussed above, the conduct described 

in § 13-3553(A)(2) constitutes the sexual exploitation of a minor even absent any proof 

of an offense pursuant to § 13-3553(A)(1). And nothing in § 13-705 supports Dixon’s 

contention that the state must prove the minor victim’s “connection” to Arizona before 

sexual exploitation may be punished as a dangerous crime against children. Hinden, 224 

Ariz. 508, ¶ 9, 233 P.3d 621, 623 (we will not look beyond plain and unambiguous 

language). Therefore, we reject his contention that the state has not proven a 
8

“victimizing offense” and conclude the trial court did not err in sentencing him pursuant 

to § 13-705. 

Disposition

¶14 For the foregoing reasons, Dixon’s convictions and sentences are affirmed.

/s/ Virginia C. Kelly 

VIRGINIA C. KELLY, Judge

CONCURRING:

/s/ Garye L. Vásquez 

GARYE L. VÁSQUEZ, Presiding Judge

/s/ Philip G. Espinosa 

PHILIP G. ESPINOSA, Judge