NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee, 

v.

BRADLEY BIEGANSKI, Appellant. 

No. 1 CA-CR 18-0093 

Appeal from the Superior Court in Navajo County

No. S0900CR201400118 

 S0900CR201500721 

The Honorable Ralph E. Hatch, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Robert A. Walsh 

Counsel for Appellee

Lou Spivack PC, Tucson

By Louis M. Spivack

Counsel for Appellant

Law Office of Lawrence Y. Gee PC, Tucson

By Lawrence Y. Gee

Counsel for Appellant

FILED 9-3-2019
STATE v. BIEGANSKI

Decision of the Court

2 

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge: 

¶1 Bradley Bieganski appeals his convictions and sentences for 

three counts of child molestation. Relying on May v. Ryan, 245 F. Supp. 3d 

1145 (D. Ariz. 2017), affirmed in part, vacated in part, 76 Fed. Appx. 505, 

506–07 (9th Cir. 2019), Bieganski contends that Arizona Revised Statutes 

(“A.R.S.”) sections 13-1401, -1410, and -1407(E) (collectively, “child 

molestation statutes”) were unconstitutional1 and urges us to reconsider 

our supreme court’s decision in State v. Holle (“Holle II”), 240 Ariz. 300 

(2016). Bieganski further asserts that the superior court erred when it 

denied his motion for a new trial. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND2

¶2 From 2011 until his arrest in 2013, Bieganski operated a 

girls-only private Christian home-school called Kingdom Flight along with 

his wife and son. The arrest occurred after three girls attending Kingdom 

 

1 The legislature recently amended the child molestation statutes. See

H.B. 2283, 2018 Ariz. Sess. Laws, Ch. 266, §§ 1–3 (2d Reg. Sess.) (effective 

August 3, 2018). The amendment eliminated the affirmative defense of lack 

of sexual motivation in former A.R.S. § 13-1407(E). Id. § 2. The Legislature

also included a definition of “[s]exual contact” in A.R.S. § 13-1401(A)(3)(b) 

that sexual contact “[d]oes not include direct or indirect touching or 

manipulating during caretaking responsibilities, or interactions with a 

minor or vulnerable adult that an objective, reasonable person would 

recognize as normal and reasonable under the circumstances.” Id. § 1. When 

referring to the child molestation statutes, we refer to them as they existed

at the relevant time of the offenses. 

2 We view the facts in the light most favorable to upholding the verdict 

and resolve all reasonable inferences against Bieganski. State v. Harm, 236 

Ariz. 402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 

(App. 1996)). 
STATE v. BIEGANSKI

Decision of the Court

3 

Flight (A.G., Y.L., and J.C.) accused Bieganski of touching their genitals

when the victims were between the ages of 6 and 9. The genital contact

primarily occurred during a Sunday morning bathing practice that 

Bieganski referred to as an “assembly line” in which he would hurriedly

bathe six to eight Kingdom Flight girls in pairs within 30 minutes before 

departing for a church service. 

¶3 The genital contact involved Bieganski touching and 

manually washing the girls’ vaginas with his bare hand. In addition to the 

genital contact that occurred during the “assembly line” baths, Y.L. also 

accused Bieganski of touching her genitals on two other occasions: once 

when she was getting dressed after swimming and another time when she 

was in the Kingdom Flight girls’ room.

¶4 Bieganski admitted at trial that he washed the girls’ genitals 

with his bare hand during the Sunday baths, but under the affirmative 

defense provided by A.R.S. § 13-1407(E), asserted he was not motivated by 

a sexual interest. In a third indictment3 resulting from the investigation of 

Bieganski, the grand jury charged him with seven counts of child 

molestation, class 2 felonies and dangerous crimes against children, and

two counts of continuous sexual abuse of a minor, class 2 felonies and 

dangerous crimes against children. 

¶5 At the conclusion of the State’s case, the court granted 

Bieganski’s motion for a judgment of acquittal regarding the continuous 

sexual abuse of a minor charges, and the State’s motion to dismiss one of 

the child molestation charges involving J.C. The jury then convicted 

Bieganski of three counts of child molestation involving victims A.G. and 

J.C. but returned not guilty verdicts for the charges involving Y.L. Pursuant 

to A.R.S. § 13-705(M), the court sentenced Bieganski to two consecutive

terms of 17 years’ imprisonment, with 1576 days’ presentence incarceration 

credit given to the first 17-year term. See State v. Jackson, 170 Ariz. 89, 94 

(App. 1991) (presentence incarceration credit is applied only to one of the 

defendant’s sentences if consecutive sentences are imposed). Bieganski 

timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 

13-4031, and -4033(A)(1).

 

3 The first grand jury charged Bieganski with three counts of child 

molestation, class 2 felonies, each pertaining to one of the three victims. A 

second indictment followed and was consolidated with the first. A jury trial 

proceeded on the consolidated indictment but ended in a mistrial. The third 

indictment issued before the retrial.
STATE v. BIEGANSKI

Decision of the Court

4 

DISCUSSION

A. The Child Molestation Statutes Did Not Violate Due Process by

Shifting the Burden of Proof to Bieganski. 

¶6 Relying on the federal district court’s rationale in May, 

Bieganski argues that the child molestation statutes violate due process

because they shift the burden of proof to the defendant regarding the issue 

of sexual motivation.4 245 F. Supp. 3d at 1164 (“[T]he burden-shifting 

scheme of Arizona’s child molestation law . . . violates due process . . . .”). 

Our supreme court expressly rejected this argument in Holle II. 240 Ariz. at 

308, ¶ 40 (“Treating lack of sexual motivation under [A.R.S.] § 13-1407(E) as 

an affirmative defense which a defendant must prove does not offend due 

process.”). 

¶7 We are required to follow our supreme court’s decisions. State 

v. Smyers, 207 Ariz. 314, 318, ¶ 15, n.4 (2004) (“The courts of this state are 

bound by the decisions of [our supreme] court and do not have the 

authority to modify or disregard [its] rulings.”). While we consider the 

opinions of the lower federal courts regarding the interpretation of the 

Constitution, such authority is not controlling on Arizona courts. State v. 

Montano, 206 Ariz. 296, 297, ¶ 1, n.1 (2003) (“We are not bound by the Ninth 

Circuit’s interpretation of what the Constitution requires.”); State v. Vickers, 

159 Ariz. 532, 543, n.2 (1989) (declining to follow a Ninth Circuit decision 

which held Arizona’s death penalty statute unconstitutional because that 

decision rested on “grounds on which different courts may reasonably hold 

differing views of what the Constitution requires”); State v. Chavez, 243 

Ariz. 313, 314, ¶ 4, n.2, 318–19, ¶ 17 (App. 2017) (declining to follow district 

court decision that disagreed with Arizona Supreme Court authority).

Accordingly, no error occurred, and we will not reexamine our supreme 

court’s decision in Holle II. 

B. The Child Molestation Statutes Did Not Violate Bieganski’s

“Right to Remain Silent.” 

¶8 Bieganski next argues that the child molestation statutes

violated his “right to remain silent,” an issue he did not raise in the superior 

 

4 In relevant part, former A.R.S. § 13-1407(E) provided: “It is a defense 

to a prosecution pursuant to § 13-1404 or 13-1410 that the defendant was 

not motivated by a sexual interest.” The superior court correctly instructed 

the jury regarding the affirmative defense that “[t]he defendant must 

prove . . . lack of sexual interest by a preponderance of the evidence.” 
STATE v. BIEGANSKI

Decision of the Court

5 

court. Therefore, we will review Bieganski’s self-incrimination claim for 

fundamental error only. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). To 

prevail upon a claim of fundamental error, a defendant must first show that 

trial error exists. Id. at 142, ¶ 21. Once trial error has been established, we 

must determine whether the error is fundamental. Id. 

¶9 The Fifth and Fourteenth Amendments protect individuals 

from compelled self-incrimination at the federal and state levels. U.S. Const. 

amends. V, XIV, § 1; see Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding “that 

the Fifth Amendment’s exception from compulsory self-incrimination is

also protected by the Fourteenth Amendment against abridgment by the

States”). The child molestation statutes contained no terms of compulsion, 

and furthermore, former A.R.S. § 13-1407(E) did not require a defendant to

admit the underlying elements of the offense. Bieganski argues, 

nonetheless, that the child molestation statutes “virtually require[d]” a 

defendant’s testimony. Any “virtual” effect is not protected by the privilege 

against compelled self-incrimination. 

¶10 Assigning the burden of production or persuasion to a 

defendant to prove an affirmative defense does not violate the privilege 

against self-incrimination. See United States v. Rylander, 460 U.S. 752, 758 

(1983) (holding that the Fifth Amendment privilege should not be 

“convert[ed] from the shield . . . which it was intended to be into a sword 

whereby a claimant asserting the privilege would be freed from adducing 

proof in support of a burden which would otherwise have been his. None 

of our cases support this view.”) (collecting cases); Corbitt v. New Jersey, 439 

U.S. 212, 218 (1978) (holding a statute that made first-degree murder 

defendants who pleaded no contest eligible for sentence of less than life 

imprisonment did not violate Fifth Amendment privilege); Williams v. 

Florida, 399 U.S. 78, 84 (1970) (“That the defendant faces . . . a dilemma 

demanding a choice between complete silence and presenting a defense has 

never been thought an invasion of the privilege against compelled 

self-incrimination.”); State v. Gray, 239 Ariz. 475, 479, ¶ 18 (2016) (requiring 

a defendant asserting an entrapment defense to admit the elements of the 

offense is not compelled self-incrimination). The child molestation statutes, 

therefore, did not violate Bieganski’s privilege against compelled 

self-incrimination by requiring him to prove the affirmative defense. See

Gray, 239 Ariz. at 479, ¶ 18. 

¶11 Moreover, Bieganski’s argument ignores the evidentiary 

avenues available to prove the affirmative defense without a defendant’s 

testimony. Bieganski utilized one such avenue by providing evidence from 

a forensic psychologist as an expert witness. Emphasizing this point, the 
STATE v. BIEGANSKI

Decision of the Court

6 

defendant in Holle II did not testify but instead presented his defense 

through other witnesses, which further confirms the absence of testimonial 

compulsion or necessity arising from the child molestation statutes. State v. 

Holle (“Holle I”), 238 Ariz. 218, 220–21, ¶ 4 (App. 2015), vacated by Holle II, 

240 Ariz. at 311, ¶ 50; accord Yee Hem v. United States, 268 U.S. 178, 185 (1925)

(“If the accused happens to be the only repository of the facts necessary to 

negate the presumption arising from his [drug] possession, that is a 

misfortune which the statute under review does not create but which is

inherent in the case.”). We find no trial error, much less fundamental error. 

C. The Child Molestation Statutes Did Not Violate Due Process “As 

Applied” to Bieganski. 

¶12 Bieganski also contends that the statutes are unconstitutional 

“as applied” to him. To support his contention, Bieganski relies on the 

discussion in Holle II concerning the possibility of an “as applied” 

constitutional challenge for a parent performing a caregiving task such as

changing diapers. Holle II, 240 Ariz. at 310–11, ¶ 49 (“But if a prosecution 

actually were to result from such innocent behavior (no such case has been 

cited), an ‘as applied’ constitutional challenge would likely have merit in 

light of parents’ fundamental, constitutional right to manage and care for 

their children.” (emphasis added)).

¶13 The “as applied” discussion in Holle II occurred in a 

theoretical context and was not involved in the holding. Holle II, 240 Ariz. 

at 310–11, ¶ 49. The supreme court found that because the defendant’s 

actions were “clearly inappropriate,” they could not be construed as 

parenting or caregiving in any manner, and thus, the court did not address 

the issue further. Id. Bieganski’s “as applied” argument fails for the same 

factual and legal reasons. 

¶14 The evidence, including Bieganski’s testimony and 

admissions, established that Bieganski performed the barehanded washing 

of each minor victim’s genitals with no other adult present during a rushed 

Sunday morning bathing “assembly line” practice for which he did not 
STATE v. BIEGANSKI

Decision of the Court

7 

provide a logical “parental” explanation.5 He conducted these washing 

practices even though the girls were old enough to bathe themselves. 

Bieganski never requested permission from any of the parents or guardians

to participate personally in the bathing or manual genital washing of the 

girls, and never discussed the bathing practices the girls would be exposed 

to with him. Bieganski’s wife helped provide care for the girls but did not

wash the girls’ genitals and was not involved in the “assembly line.” She 

provided each girl with a washrag and soap and directed them to clean

themselves. Although Bieganski later admitted to the jury that he 

performed the “washing” acts, when interviewed by law enforcement on 

the day of his arrest, he denied that the acts occurred, both to the officers 

and his wife during a phone call. 

¶15 The jury rejected his efforts at establishing an affirmative 

defense based upon the evidence presented. The evidence supports the 

jury’s determination that Bieganski’s practices and acts maintain no 

reasonable connection to a legitimate parental exception as hypothetically 

contemplated in Holle II. Hence, there was no error. 

D. The Superior Court Did Not Commit Error by Denying the Motion 

for a New Trial.

¶16 Finally, Bieganski contends that the superior court erred 

when it denied his motion for a new trial. A court may grant a new trial if 

“the verdict is contrary to law or the weight of the evidence.” Ariz. R. Crim. 

P. 24.1(c)(1). We review the court’s decision on a motion for a new trial for 

an abuse of discretion. State v. Parker, 231 Ariz. 391, 408, ¶ 74 (2013). “A 

motion for new trial should be granted ‘only if the evidence was insufficient 

to support a finding beyond a reasonable doubt that the defendant 

committed the crime.’” Id. (quoting State v. Landrigan, 176 Ariz. 1, 4 (1993)).

¶17 We review claims of insufficient evidence to support a verdict 

de novo. State v. Bible, 175 Ariz. 549, 595 (1993). “[W]e view the evidence in 

the light most favorable to sustaining the verdict and reverse only if no 

substantial evidence supports the conviction.” State v. Pena, 209 Ariz. 503, 

 

5 Bieganski testified that he used this practice to save time but was 

unable to provide direct answers regarding why the girls did not bathe for 

church on Saturday night, why he did not shorten his morning routine, or 

why they did not attend a later service. Bieganski also testified that he 

manually washed the girls’ vaginas to conserve soap and because he 

viewed washcloths as “bacteria traps.”
STATE v. BIEGANSKI

Decision of the Court

8 

505, ¶ 7 (App. 2005). Substantial evidence is evidence that a reasonable 

person may accept as adequate to support a guilty verdict beyond a 

reasonable doubt. State v. Stroud, 209 Ariz. 410, 411–12, ¶ 6 (2005). 

“Reversible error based on insufficiency of the evidence occurs only where 

there is a complete absence of probative facts to support the conviction.” 

State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting State v. Scott, 112 Ariz. 

423, 424–25 (1973)).

¶18 Substantial evidence supports the convictions. As the 

superior court correctly instructed the jury, the crime of child molestation 

required proving the following elements: 

1. Defendant intentionally or knowingly engaged in or 

caused a person to engage in any direct or indirect 

touching, fondling, or manipulation of any part of the 

genitals or anus by any part of the body or any object or

causing a person to engage in such contact with a child; 

2. The child was under 15 years of age. 

Regarding the statutory elements, each victim was between the ages of six 

and nine and Bieganski used only his soap-covered bare hand to wash each 

victim’s genitals. Bieganski performed these acts, in what might reasonably 

be construed as a contrived “assembly line” when each victim was old 

enough to bathe themselves. Bieganski never informed the victims’ parents 

or guardians about his intentions or practices or sought permission to 

engage in them with the girls. No other person (such as his wife) performed 

similar bathing practices; his wife instead elected to toss a washcloth and 

soap to each girl while directing them to wash. A.G. first reported the acts

to a school nurse independently, which thereby initiated the investigation, 

and the accusations were thoroughly investigated by forensic interviewers

and law enforcement. 

¶19 Reasonable inferences drawn from the evidence supports the 

jury’s verdicts. See State v. Fulminante, 193 Ariz. 485, 494, ¶¶ 27-28 (1999) 

(finding that defendant’s “several false, misleading, and inconsistent 

statements to police, other witnesses, and his wife,” along with evidence of 

motive, opportunity, and the absence of a rational explanation, provided 

sufficient evidence to sustain a conviction). Bieganski testified and 

provided an expert witness to establish his lack of sexual motivation, but

the jury found his defense unpersuasive regarding the A.G. and J.C.

charges. Moreover, the jury’s acquittal on the Y.L. charges demonstrates the 

jurors carefully considered the evidence. See State v. Stuard, 176 Ariz. 589, 
STATE v. BIEGANSKI

Decision of the Court

9 

600 (1993) (noting the jurors’ decision to acquit the defendant of certain 

charges “demonstrate[d] the jury’s careful and proper consideration of the 

evidence”). The evidence established each element of child molestation 

beyond a reasonable doubt, and thus, the superior court did not commit 

error when it denied the motion for a new trial.

CONCLUSION

¶20 For the foregoing reasons, we affirm Bieganski’s convictions 

and sentences.