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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AARON RICHARD MARTENS, Appellant. 

No. 1 CA-CR 16-0531 

Appeal from the Superior Court in Maricopa County

No. CR2010-005770-001 

The Honorable Joan M. Sinclair, Judge

REVERSED IN PART; REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jason Lewis

Counsel for Appellee 

Maricopa County Public Defender’s Office, Phoenix

By Carlos Daniel Carrion

Counsel for Appellant

FILED 8-29-2017
STATE v. MARTENS

Decision of the Court

2 

MEMORANDUM DECISION

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

which Judge Michael J. Brown and Judge Randall M. Howe joined.

M c M U R D I E, Judge:

¶1 Aaron Richard Martens appeals his convictions and sentences 

for ten counts of sexual exploitation of a minor, all Class 2 felonies and 

dangerous crimes against children. Martens contends the uncertified 

documents presented as proof of his prior military convictions were 

insufficient to support a sentencing enhancement for historical prior felony 

convictions. Because the uncertified military reports presented as evidence 

of prior convictions were insufficient to support a finding of historical prior 

felony convictions, we vacate the superior court’s sentences and remand for 

resentencing consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 On May 19, 2008, Arizona State University (“ASU”) Police 

Aide Leonard Nasca was in the computer section of the university’s 

downtown campus library when he noticed a computer suspiciously 

canted. He approached the computer from behind and saw a man, later 

identified as Martens, looking at several thumbnail pictures containing 

naked young boys. Nasca stepped away from behind Martens and called 

ASU Police Sergeant Al Phillips. When Phillips arrived he also observed 

Martens viewing pornographic images of young boys. Phillips approached 

Martens, detained him, and called Phoenix Police.

¶3 Phoenix Police Officer Lindy Steele responded to Phillips’s 

call and, after interviewing Phillips and Nasca, contacted Detective Michael 

Thorley from the internet crimes against children task force to take over the 

investigation. Thorley arrived at the scene and interviewed Martens. 

During the interview, Martens admitted to having been dishonorably 

discharged from the United States Air Force for possession of child 

pornography.

¶4 Thorley contacted Detective David Elting with the Phoenix 

Police Department Forensic Computer Unit, who extracted 190 images of 

child pornography from the ASU computer used by Martens. Thorley 
STATE v. MARTENS

Decision of the Court

3 

reviewed the images and forwarded ten to Dr. Leslie Quinn, a child abuse 

pediatrician, who prepared a report that identified the ages of the boys in 

each image. Based on Dr. Quinn’s report and testimony, the boys’ ages 

ranged from less than seven-years-old to less than 15-years-old.

¶5 The State charged Martens with ten counts of sexual 

exploitation of a minor, Class 2 felonies and dangerous crimes against 

children. Before trial, the State alleged Martens had historical prior felony 

convictions in the military court of the United States Air Force and in the 

United States District Court. At a pretrial hearing, Martens objected to the 

admission of the State’s evidence regarding his prior military convictions, 

arguing the military reports were hearsay, violated Arizona Rule of 

Evidence 403, and violated the Confrontation Clause. The superior court 

admitted the evidence, finding the reports qualified as other-act evidence 

under Arizona Rule of Evidence 404(c) and did not violate the 

Confrontation Clause. Martens waived his right to a jury trial, and was 

found guilty on all charges. The State did not call a law enforcement officer 

to testify regarding Martens’s prior military convictions, nor did Martens 

testify at trial. 

¶6 At sentencing, Martens again objected to the evidence 

regarding his prior military convictions, but the superior court denied his 

objection and found Martens had two prior felony convictions based on the 

Air Force reports presented.1 Pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 13-705, Martens received mandatory consecutive life 

sentences on all counts because the two prior felony convictions were also 

dangerous crimes against children. Martens timely appealed and this court 

has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution 

and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).2

1 Martens also objected to his federal court conviction being used as a 

historical prior felony conviction because the date of the federal offense 

occurred after the events giving rise to the charges in the instant matter. The 

superior court agreed and did not consider the federal court conviction as 

a historical prior during sentencing. Cf. State v. Thomas, 219 Ariz. 127, 130, 

¶ 9 (2008) (a sentencing enhancement based on a historical prior felony 

conviction requires only the conviction, not the commission, to take place 

before the offense set for sentencing).

2 Absent material revision after the date of an alleged offense, we cite 

to the current version of applicable statutes and rules.
STATE v. MARTENS

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DISCUSSION

¶7 Martens argues the Air Force reports considered as evidence 

of his prior military felony convictions were not “certified copies” of 

convictions, and were therefore insufficient to prove those felony 

convictions. Martens also argues he could not have admitted to the prior 

felony convictions because he did not give enough information regarding 

the specific details of those convictions during his interview with Detective 

Thorley to satisfy a finding of historical prior felony convictions. He further 

argues he was not advised of his rights in accordance with Arizona Rule of 

Criminal Procedure 17.6 before admitting to any prior convictions.

¶8 A superior court’s determination that a prior felony 

conviction constitutes a historical prior felony conviction for purposes of 

sentence enhancement is a mixed question of law and fact that this court 

reviews de novo. State v. Rasul, 216 Ariz. 491, 496, ¶ 20 (App. 2007).3 This

court also reviews de novo whether the superior court properly accepted a 

defendant’s admission of prior convictions. State v. Anderson, 199 Ariz. 187, 

194, ¶ 35 (App. 2000). 

A. The Evidence was Insufficient to Support a Finding of Historical

Prior Felony Convictions.

¶9 Martens argues the superior court erred by considering Air 

Force reports that were not “certified copies” of prior convictions when 

finding the State had provided sufficient evidence of historical prior felony 

convictions for purposes of sentence enhancement. We agree.

¶10 To enhance a sentence as a repetitive offender, the State must 

allege a prior conviction and the prior conviction must be admitted by the 

defendant or found by the court. A.R.S. § 13-703(N). “Prior convictions for 

sentence enhancement purposes must be established by clear and 

convincing evidence.” State v. Cons, 208 Ariz. 409, 415, ¶ 15 (App. 2004). To 

prove a prior conviction, the State must provide “positive identification 

establishing that the accused is the same person who previously was 

convicted, as well as evidence of the conviction itself.” Cons, 208 Ariz. at 

3 The State argues Martens failed to object to the sufficiency of the 

evidence presented regarding his prior felony conviction at trial, and 

therefore this court should review for fundamental error. However, 

Martens objected to the evidence considered both at the pretrial hearing 

and the sentencing hearing. Accordingly, we decline to find the error was 

waived.
STATE v. MARTENS

Decision of the Court

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415, ¶ 16. “The proper procedure for establishing a prior conviction is for 

the state to submit a certified copy of the conviction and establish that the 

defendant is the person to whom the document refers.” Id. While courts 

may consider other kinds of evidence, there is a need for “reliable 

documentary evidence.” State v. Robles, 213 Ariz. 268, 273, ¶¶ 15–16 (App. 

2006); see also State v. Nash, 143 Ariz. 392, 403 (1985).

¶11 The State introduced evidence of Martens’s previous military 

felony convictions in the form of two uncertified summaries provided by 

the United States Air Force Office of Special Investigations titled “Report of 

Investigation.” The State concedes on appeal that the Air Force reports were 

not certified records of Martens’s prior military convictions, and instead 

claims the superior court relied on a certified copy of a separate felony 

conviction in federal court, which referenced his two prior military 

convictions. However, the certified federal court record only references the 

prior military convictions in an attached affidavit from an FBI investigator, 

and does not contain any evidence that the federal court made a finding 

regarding the military convictions. The federal court record also lacks the 

dates of conviction or any cause numbers for those military convictions. 

Furthermore, while the superior court did rely on the certified federal court 

documentation in its Rule 404 findings, the court specifically excluded the 

federal court conviction as a historical prior felony conviction at sentencing.

¶12 The State also argues the uncertified Air Force reports should 

be sufficient evidence of the prior felony convictions because they contain 

Martens’s name, date of birth, and social security number. In support, the 

State cites to various cases where other evidence besides a certified record 

of a conviction was sufficient to support a finding of a historical prior felony 

conviction. However, the alternative documentation provided in those 

cases was still certified. See State v. Van Adams, 194 Ariz. 408, 419, ¶ 37 (1999) 

(certified copies of a California disposition of arrest); State v. White, 160 Ariz. 

24, 28 (1989) (certified copies of a plea agreement signed by the defendant 

and docket sheets indicating the agreement was filed in court); Nash, 143 

Ariz. at 403 (certified commitment records from other states); State v. Baca, 

102 Ariz. 83, 87 (1967) (certified records of commitment); In re C.D., 240 

Ariz. 239, 242, ¶ 14 (App. 2016) (certified minute entries); Robles, 213 Ariz. 

at 273, ¶ 17 (certified copies of DOC documents); Cons, 208 Ariz. at 415, ¶ 17 

(certified copies of convictions). 

¶13 The documents presented to the superior court at sentencing 

were not certified, lacked any fingerprints or photographs of Martens, and 

all the names besides Martens’s had been redacted. The uncertified Air 

Force reports relied upon by the superior court were insufficient to find 
STATE v. MARTENS

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historical prior felony convictions for purposes of enhancing Martens’s 

sentences. See Cons, 208 Ariz. at 415, ¶ 16 (“[T]he state must submit positive 

identification establishing that the accused is the same person who 

previously was convicted, as well as evidence of the conviction itself.”).4

B. Martens’s Statements to Detective Thorley Were Insufficient to

Qualify as an Admission of Historical Prior Felony Convictions.

¶14 The State contends that even if the Air Force reports were not 

sufficient evidence to prove Martens’s historical prior felony convictions, 

Martens admitted to the prior felony convictions in a pretrial interview with 

Detective Thorley. We disagree.

¶15 Rule 17.6 provides that “whenever a prior conviction is 

charged, an admission thereto by the defendant shall be accepted only 

under the procedures of [Rule 17].” Ariz. R. Crim. P. 17.6. The procedures 

of Rule 17 require the court to address the defendant in open court and 

inform him or her of the nature and range of possible sentences which 

might result from the admission and the constitutional rights the defendant 

foregoes by making the admission. See Ariz. R. Crim. P. 17.2; State v. 

Morales, 215 Ariz. 59, 61, ¶ 9 (2007). 

¶16 The State concedes that Martens was not given the 

advisement required for a formal admission of prior convictions under Rule 

17, but instead argues that the superior court could have found the prior 

convictions based on the pretrial interview conducted by Detective Thorley. 

See State v. Whitney, 159 Ariz. 476, 485 (1989) (an exception to the 

requirements of Rule 17 applies where the defendant admits to prior felony 

convictions at trial). However, this exception requires admission of the 

prior convictions “during [the defendant’s] testimony at trial.” Id. (emphasis 

added); see also Ariz. R. Crim. P. 17.6 (exception requires defendant to admit 

the prior conviction “while testifying on the stand”). Martens made his 

4 The superior court found the Air Force reports were sufficient for a 

finding that Martens had committed other acts under Arizona Rule of 

Evidence 404(c). Importantly, the requirements for a finding under Rule 

404(c) and a sentence enhancement under A.R.S. § 13-703 are not the same. 

While Rule 404(c) requires evidence that the defendant committed the 

previous act, § 13-703 requires evidence of a prior conviction. Compare A.R.S. 

§ 13-703(N) (allegation of prior conviction must be found by the court), with

State v. Goudeau, 239 Ariz. 421, 450, ¶ 96 (2016) (requirements for

introducing other-act evidence). Therefore, the Rule 404(c) finding is not

enough, by itself, for a finding of historical prior felony convictions.
STATE v. MARTENS

Decision of the Court

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admissions during a pretrial interview with police where he was not under 

oath, represented by counsel, or subject to cross-examination. Thus, the 

exception is not applicable. 

¶17 Finally, the superior court made no reference to Martens’s 

pretrial admission at the sentencing hearing, and only relied on the Air 

Force reports when finding the two historical prior felony convictions. 

Accordingly, Martens did not admit to the historical prior felony 

convictions used to enhance his sentence in accordance with Rule 17, and 

therefore his admission cannot be accepted.

CONCLUSION

¶18 The superior court erred by finding uncertified Air Force 

investigation reports introduced by the State to be sufficient evidence of 

Martens’s historical prior felony convictions. Therefore, we vacate 

Martens’s sentences and remand for resentencing in accordance with this 

decision.