1 In a separate memora

ndum decision, we rejec

t Henry’s other claims, n

one of which merits publication or requires reversal. See Ariz. R. Sup. Ct. 111 , 17A A.R.S. IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Appellee,

v. TYRONE VAUGHN HENRY, Appellant. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2001-0146

DEPARTMENT A O P I N I O N

APPEAL FROM THE SUPER IOR COURT OF PIMA C OUNTY Cause No. CR20001846 Honorable Michael J. C

ruikshank, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Randall M. Howe and R . Wayne Ford Tyrone Vaughn Henry Phoenix Attorneys for Appellee

Florence In Propria Persona H O W A R D, Judge. ¶1 Appellant

Tyrone Hen ry was convicted of frau dulent scheme and artif

ice and sentenced to prison. He argues the tria l court erred in denying his m otion for judgment of acquittal. 1 Finding no abuse of discretion or other reversible error, we affirm.2 FACTS AND PROCEDURA L BACKGROUND ¶2 We view the facts and al l r easonable inference s therefrom in the light mos t favorable to sustaining the

conviction. State v. Riley , 196 Ariz. 40, ¶2, 992 P.2 d 1135, ¶2 (App. 1999). In June 2000, Henry approached the

victims, fifteen-year-old K. and sixteen-year-old C., at a shopping mall. He claimed to be marketing a new face cream, asked the victims whether they used face creams, and showed them photograp hs of females with “clum py,” white

cream on their faces. Henry said he was conducti ng a survey of the face

cream, using femal

es ages twelve to twenty-five, and appeared to write the victims’ responses to questions he asked them about lotions they used. He asked the victims if they would like to further participate in the survey by having facials, offering them $10 eac h to do so. The victims made an appointment to have fac

ials the next day. ¶3 Henry telephoned the victims the next da y and gave them direction s to his apartment. The

victims took a male frie

nd along to the apartment, b ut Henry requested that the friend remain outside during the f acials, claiming Henry and the victims “had to talk about secret traits thatwere in the facial cre am.” After the friend

agreed, the victims ent

ered the living room of Henry’s small apartme

nt, and he asked K. to lie o n a bed and C. to lie on a couch ne ar the bed. ¶4 Wearingcotton shorts anda T-shirt, Henry placed small caps and a bandanna over K.’s eyes and to ld her sh e would go blind if any of the f ace cream got in her e

yes. K. felt him brush a substance on her face and then heard him clicking the mouse on his computer. With her eyes still covered, K. then he ard heavy breathing and h eard Henry telling C., “it’s coming soon,” and, after that, “it spilt.” K. the n saw camera flashes a

fter Henry said he was goin g to take photographs. K. heard Henry walking be hindher where

C. was lying, and then felt him place a thick, warm substance on K.’ s face wi th his hands. Henry had told K. he would wa rm the3

treatment cream in a microwave oven, but she never heard a microwave ovenactivated. Shortly thereafter, Henry removed the bandanna a nd caps and gave K. and

C. towels to wipe their fac es. When K. sat up to wipe her face, she saw “white stuff” on C.’s chin that was “real thick
. . . [and] clumped up.” ¶5 Henry had not covered C.’s eyes but had told her to keep them closed, cla iming the applicationsto he r face would burn her eyes. Henry had taken a “before” photograph and had applied two substances to C.’s face with his hands and had taken more photographs. He then had toldC. to “hold on because the th ick treatment was going to c om e in just

a second.” Without feeling Henry’s hands, C . had then felt “something . . . warm . . . just [go] all over [her] face” and shirt and had then notice d camera flashes. ¶6 Before

the victims left the apartme nt, Henry asked them “how did it feel,” giving them a $20 bill. He also asked if they wanted to make another a ppointment. The victims m ade another appo intment a nd left with their friend. The victims thereafter discussed what had happened and, b ased on their suspicions that He nry had ejaculated on C. ’s face, contacted t he police. ¶7 Police officers interviewed the victims and collected C.’s T-s hirt. After receiving crime laboratory test results showing the possible presence of semen on the s hirt, which deoxyribonucleic

acid (DNA) testing later confirmed as Henry’s, police searched his apartme nt. The search

did not produce any indicatio n that Henry had been conducting legitimate face cream testing, but police found a day plann er with the victims’ name s in it, along with th e names of
numerous other females, and sections marked “site” and “White Dew Facials.” Officers seized
acomputer, a scanner , and 300 to 500 photographs, many of them depicting f emales involved in situations similar to that the victims ha d described. Officers also found one photograph of C. on4

an undeveloped roll of film resembling one o f the earlier photographs

Henry had taken during the incident. Police discover ed that Henry was operating a porn ographic Internet website titled, “White Dew Original Facials,” on w hich he would charge visitor s between $10

and $90 to view images of females wi

th semen on their faces
. ¶8 The state charged Henry with tw o counts of kidnapping and one count of fraudulent scheme and artific e. At tri al, in addition to the victims, M., whose name had be en found in Henry’s day planner and photographs of whom had been reco vered from Henry’s ap artment, testified that, about two years earlier, she had respon

ded to an advertisement in which Henry had offe red money fo r females to participate in a face cream experiment. She testified that she had madean appointment with Henry and had gone to his apartment. She said Henry had covered her eyes, telling her that the

cream would burn her eyes, had surreptitiously ejaculated on her face, and had taken

photographs. Tests conducted on a stain from a sweate r M. had worn during the incident produced results c onsistent with Henry’s seme n. ¶9 In

his defense, Henry called several females, wh o testified they had gone to Henry’s apartment and had willingly posed for photographs with Henry’s semen on their faces, which they had understood would be used on He nry’ s we bsite. They testified that Henry had paid them as much as $100 per hour for posing f or the photographs. During c losing argument, Henry suggested that he, in fact, had been engaged in legitimate skin cream testing, that the s

emen found
on C.’s shirt could have

bee n transferred there from the towel she had used to clean her face at Henry’s apartment, a

nd that M. had shown

up for a face treatm

ent, had flirted with

Henry, and had wanted to “play around with some other things.” ¶10 The trial court granted Henry’s motion for judgment of ac quittal on the kidnapping charges but denied it on the fraudulent schem e count. The jury found

Henry guilty, and the court5

imposed a presumptive, five-y ear prison sentence, wh

ich the court enhanced by two y ears after Henry admitted having committed the offense while on release for an unrelated offense. DISCUSSION ¶11 Henry argues the trial court erred in denying his motion for judgm ent of acquittal, submitted pursuant to

Rule 20, Ariz. R. Crim. P., 17 A.R.S., after the conclusion of the state’s evidence. We review a trial court’s denial of a Rule 20 motion for

an abuse of discretion an d will
reverse only no substantial evidence supports the conviction. State v. Carlos , 199 Ariz. 273, ¶7, 17 P.3d 118, ¶7

(App. 2001). Substantia l evidence, which may b

e either circumstantial

or direct, is evidence thata reasonable jury can a ccept as sufficient to inf

er guilt beyond a reasonab le doubt. State v. Fulminante , 193 Ariz. 485, ¶24, 975 P.2d 75, ¶24 (1999); State v. Garza , 196 Ariz. 210, ¶3, 994 P.2d 1025, ¶3 (App. 1999); S tate v. Sabalos , 178 Ariz. 420, 422, 874 P. 2d 977, 979 (App. 1994). Ultimately, a tria l court must submit a case to the jury if reasonable m inds can differ on the inferences to be drawn from the evidence. State v. Landrigan , 176 Ariz. 1, 4, 859 P.2d 111, 114 (App. 1993). ¶12 The jury found Henry guilty of fraudulent sc heme and artifice, in

violation of A.R.S. § 13-2310(A), which prohibits a person from, “pursuant to a scheme or artifice to defraud, knowinglyobtain[ing] any benefit b y means of false or fra

udul ent preten ses, representations, promises or material omissions.” Fo r purposes of § 13-2310(A), “a ‘scheme or artifice’ is some ‘plan, device, or trick’ to perpetrate a fraud.” State v. Haas , 138 Ariz. 413, 423, 675 P .2d 673, 683 (1983), quoting State v. Stewart , 118 Ariz. 281, 283, 576 P .2d140, 142 (App. 1978). “The scheme need not be fraudulent on its face but ‘must involve some sort of fr audule nt misreprese

ntations or omissions reasonably ca lculated to deceive pers

ons of ordinary prudence a nd comprehension.’” Haas , 138 Ariz. at 418, 675 P. 2d at 678, quoting United States v. Pearlstein ,2 The trial court allowed the state to arg ue that either sexual gratific ation or obtaining photographsof the victims could constitut e “any benefit.” A.R.S. § 13-2310(A). If A.R .S. § 13- 105(2) did not include sexual gratification within the definit ion of “any benefit,” we would b e required to reverse. See State v. Lopez , 158 Ariz. 258, 266, 762 P .2d 545, 553 ( 1988) (if tw o theories of guilt submitted to jury and one is improper, we must reverse); State v. Alvarado , 178 Ariz. 539, 543-44, 875 P.2d 198, 202-03 (App. 1994) (same).
6 576 F.2d 531, 535 (3d Cir. 1978) (emphasis omitted). Th e term “defraud” as use

d in the statute is not measured by any tech nical standard

but, rather, by a “broad v iew.” Haas , 138 Ariz. at 424, 675 P.2d at 684. A “benefit” un der the statute is “ anythi ng of value or advantage , present or prospective.” A.R.S . §§ 13-105(2), 13-2301
. ¶13 Henry argues no substanti al evidence supports the conviction because sexual gratification

does not qualify as a requisite “benefit” under § 13-2310, contrary to the state’s argument to the jury. 2 Henry urges that “benefit” as found in § 13 -2310 applies only to property andpecuniary

gains, not to anything as intangible as sexual gratif ication. Although we norma lly review aRule 20 ruling for an abuse of discretion, see Carlos , we review this statutory interpretation issue de novo. Gray v. Irwin , 195 Ariz. 273, ¶7, 987 P.2d 759, ¶7 (App. 1999). We agree with the state that, in this case, sexual gratification does qualify as a benefit under § 13- 2310. ¶14 In

construing a statute, effectuating legislative intent is our principal aim. State v. Huskie , 202 Ariz. 283, ¶5, 44 P.3d 161, ¶5 (App. 2002). In ascertaining legislative intent, we consider “‘the statute’s context, subject matter, historical background, effec ts, consequences, spirit, and purpose.’” Id. , quoting Hobson v. Mid-Century I ns. Co. , 199 Ariz. 525, ¶8, 19 P.3d 1241, ¶8 (App. 2001). Moreover, “we interpret statutes to give meaning to every wo rd.” State v. Pitts , 178 Ariz. 405, 407, 874 P.2d 962, 964 (1994).7

¶15 The legislative history and langua ge of § 13-2310 support our result. Section

13- 2310, a portion

of the organized crime and fraud chapter of the criminal code, was modeled after 18 U.S.C. § 1341, the federal mail fraud statute. See State v. Proctor , 196 Ariz. 557, ¶13, 2 P. 3d 647, ¶13 (App. 1998). As origina lly enacted, the languag

e of § 13-2310 more closely resembled thatof § 1341, stating that a person was guilty of fr audulent schemes and a

rtifices by fraudulently obtaining “money, property or any other thing of value.” 1976 Ariz. S ess. Laws, ch. 134, § 1. However, two years later, the leg islature aimed for a bro ader scope, amending

§ 13-2310 by replacingthe clause “money, prop erty or any other thing of va lue” with the more inclusive “ any benefit.” 1978 Ariz. Sess. Laws, ch. 201, § 156. And the legislature did not define “be nefit” in § 13-2301, the definitions section of the organi zed crime chapter. Rather, “benefit” is defined among the definitions

for the entire criminal c

ode in § 13-105 and includes “anythi ng of value or advantage,” not merely pecuniary gain. Accordingly, w e b elieve the legislature intended “benefit” as used in § 1 3-2310 t o have a broad definition and did not intend to exclude sexual gratification. ¶16 Henry argues tothe contrary, pointing out that § 13-2310 is me ntioned numerous times in A.R.S. §§ 13-1801 through 13-1818, the theft chapter, and claiming theft offenses
concern only the transfer of pro

perty. Ac cording to Henry, § 13-2310, therefore, should also pertain only to the transfer of property so that the statutes can be “read together and harmonized.” The references Henry ide ntifies in the theft chapte r involving § 13-2310 regard o nly pe riphera l matters, such as the county bad check fund established in A.R.S. § 13-1811 and subpoenas of bank records provided for in A.R.S. § 13-1812, not elemen t s of the crime. Such r eferences do not indicate a legislative intent to limit § 13-2310 to th eft crimes. And the legislature did not direct anywhere in § 13-2310 that any eleme nts of fraudulent

scheme and artifice b

e defined by the

theft8

chapter. Ultimately, had the legisla ture intended the in

extr icable union between the th eft and organized crime chapters that Henry urges, it presumably would have clearly said so. ¶17 Pertinent

case law also supports our de cision. Although no state ca se addresses whether sexua l gratific ation qualifies as a benef it under § 13-2310, we find il luminating our supreme court’s decision in Haas . There, the court addressed the scope of the language in § 13- 2310 pertai ning to fraud. Although it did not a ddress what qualifies as a benefit, the court concluded, in overriding th e defendant’s attemp

t to limit the scope of § 13-231 0: The statut e p roscribes conduct lacking in “fundamental honesty [and] fair play . . . in the general an d busi ness life of members o f society.” In the final analysis, we adopt a broad view of the sta tute because no other view is sensible. The definition of “fraud” m ust be broad enough to cover all of the varieties made possib le by boundless human ingenuity. Haas , 138 Ariz. at 424, 675 P.2d at 684, quoting Blachly v. United States , 380 F.2d 665, 671 (5th Cir. 1967) (citation omitt ed) (alteration in Haas ). ¶18 The holding in Haas would be undermined by obse rving a broad definition of some language in § 13-2310 while prescribing a limited scope to

other language. If the legislature had intended § 13-2310 to “be broad enough to cover all of the varieties made possible by boundless human ingenuity,” Haas , 138 Ariz. at 424, 675 P.2d at 684, then it did not inte nd to confine the definition of “benefit” to include only pecuniary gain. Certa

inly, the present case

illustrates the assortment

of fraudulent invention that, i n the interest of preserving “‘fundamental honesty [ and] fair play . . . in the general and business life of mem bers of society,’” can only be pro scribed by
abroad interpretation of § 13-2310. Haas , 138 Ariz. at424, 675 P.2d at 684, quoting Blachly , 380 F.2d at 671 . Accordingly, we conclude the spirit of § 13-2310, as expressed in Haas , is9

preserved only by giving “meaning to every word,” Pitts , 178 Ariz. at 407, 874 P.2d at 964, and including sexual gratification in these circumstances within th e definition of “benefit.” ¶19 We also find guidance in case law from other jurisdictions. In Guam v. Camacho , 103 F.3d 863 (9th Cir. 1996), the court interpreted a criminal official mi s conduct statute that precluded a public official from committing an unauthorized ac t rel ating to the official’s duties “‘with the intent to benefit himself or another person . . . or to d epri ve another person of a benefit.’” Camacho , 103 F.3d at 865, quoting 9 Guam Code Ann. § 49.90(a). A “benefit” under the statute was defined, in pe rtinent part, as “‘any gain or advantag e or anything regarded by the beneficiary

as gain or advantage.’ ” Camacho , 103 F.3d at 866, quoting 9 Guam Co de Ann. § 49.10(a). ¶20 The defendant, a public official carry ing out his official duties, ha d fondled a

young girl andwas charged with violating the official misconduct statute. Although the defendant argued thatthe statute was intended to apply to pecuniary matters, th e court responded: “This co ntention ignores the language of the statute , which is much broader th an Camacho suggests.” Id
. at 866. In further analysis, the cou

rt observed: “That [the

defendant] performed this action with the intent to benefit himself is infer able from its patently sexu al nature.” I

d . And, ult imately, the court concluded: “‘Benefit’ is broad enough to encompass . . . sexual t itillation . . . . When [the defendant] caressed [the v ictim] . . . w ith sexual intent[,] it was an unauthorized exercise of an official function benef

iting him . . . .” Id
. ¶21 As the court in Camacho concluded on

the statute before it, we

believe that, in light of the legisl ati ve history, the statutory lang uage, and the holding in Haas , § 13-2310 “is much broader than [Henr

y] sugge sts” and that “‘[b]enefit’ is broad enough to encompass . . . sexual titillation.” Camacho , 103 F.3d at 866.10

¶22 Other cases interpreting statute s prohib iting a public official from improperly obtaining a “benefit” have reach ed lik e results. See People v. Feerick , 714 N.E.2d 851 (N.Y. 1999) (“benefit” in official misconduct statute N.Y. Penal Law § 195.00, defined as “any gain or advantage” in N.Y. Penal Law § 10.00(17)), and People v. Abranko , 599 N.Y.S.2d 447 (Crim. Ct. 1993) (public official charged with official misconduct under N.Y. Penal Law § 195.00 for sexual touching); State v. Gove , 875 P .2d 534 (Or. Ct. App. 1994) (“benefit” includes sexual gratification); State v. Moffitt , 801 P.2d 855 (Or. Ct. App. 1990) (same); cf. State v. Wellington , 663 P.2d 496 (W ash. Ct. App. 1983) (defen dant criminally liable unde r theft statute for promising, in defendant’s words, “be nefits” of a sexual nature andthen declining to perform any such“benefits” upon

payment). Although, as

Henry points out, the statutes involved in Camacho andthese other cases are o f a different nature

than § 13-2310, these cas es illustrate that defining “benefit” to includesexual gratification is not anomalous nor outside the scope of the st atute as intended by the legislature. Furthe r, we disagree with Henry that the rule of lenity

requires us to interpret § 13-2310

more restrictively than the legislature intended. See State v. Fell , 203 Ariz. 186, ¶10, 52 P.3d 218, ¶10 (App . 2002) (doubts about statutor y construction resolved in favo r of defendant). ¶23 Nevertheless, if we accept the state’ s position, Henry foresees a

“slippery slope” whereabroad range of noncomm ercial and intangible benefits may become the bases for criminal prosecution. He likens the state’s position to criminalizing a “practic

al joke[] gone awry” and

the “‘benefit’ of laughter” attending it. But the context of Henry’s scheme was commercial, a face
cream survey and sample applic atio n, and not the type of noncommercial activity that troubles Henry. Andthe legislature has defined numerous sexual offenses, see , e.g. , A.R.S. §§ 13-1403, 13-1404, 13-1410, and has taken se xual motivation into consider ation in defining other crimes and11

defenses. See , e.g. , A.R.S. § 13-1407 ( lack of sexual motiva

t ion a defense to certain crimes). Henry has not pointed out any statute c riminalizin

g p ractical jokes. We nee d not decide the maxi mum

reach of § 13-2310 today, but only that Henry’s conduc t falls within the legisla

tiv e intent. ¶24 Henry also claims the court was “without jurisdiction” to make a finding that the offense had been sexually motivated, which he defines as a “feeling , fully self-contained.” B ut
ajudge or jury is often asked to determine what occurred in a defendant’s mind, such as whether
adefendant acted with pre meditation, wit

h a par ticular intent or knowledge, or with sexual motivation. See , e.g. , A.R. S. §§ 13-10 5(9), 13-118, 13-1101, 13-1105. The court here had “jurisdiction” to determine whether Henry had acted out of sexu al motivation and had received sexual gratification. ¶25 Having concluded that sexual gra tification qualifies as a be nefit under § 13-2310,
we return to Henry’s claim that substantial evidence did not support his co nvict ion. Henry operated a pornographic web sit e on which he charged visito rs money to view photographs of females with

semen on their

faces. He paid some f

emales up to $100 per hour to willingly pose forsuch photographs. Henry a pproached the victims cla iming to be condu cting a face cream survey andoffered them $10 each to have “facials.” The victims testified that they had scheduled
an appointment with

Henry believing

they were participating in a legitimate face cre

am survey and would, in fact, receive afacial. The evidence supports the conclusion that, with the victims’ eyes covered or closed, Henry ejacula ted on C.’s face and took phot

ographs, in a

manner resembling the subterfuge he had employed with M. two years before. No evidence showed that Henry was associated with any legitimate face cream enterprise.12

¶26 Construed in a light supporting the conviction, see Riley , the evidence supporting the conviction is substantial. See Carlos
. The jury could infer beyond a reasonable doubt that, pursuant to a scheme to defraud and through false pretenses, Henry had obtained a benefit through sexual gratification or

by an intent to post photographs of C. on his website for profit while paying her substantially less than he did consenting models. See § 13- 2310(A); Fulminante ; Garza ; Sabalos
. Henry points out there was no eviden ce C.’s photograph was e ver posted on

his website. But the benefit need be prospective only. See§ 13-105(2). And, althou gh Henry argues, by analogyto A.R.S. § 13-1802, t hat the jury

was required to find the va lue of the benefit obtained by the fraudulent

scheme, the portion of § 13-2310 under which Henry was convicted contains no such requirement. Accordingly, the trial court did not abuse its discretion in denying Henry’s Rule 20 motion. See Carlos
. DISPOSITION ¶27 We affirm Henry’s conviction and sentence.

____________________________ ___________ JOSEPH W. HOWARD, Jud ge CONCURRING:

____________________________ ___________ J. WILLIAM BRAMMER , JR., Presiding Judge

____________________________ ___________ M. JAN FLÓREZ, Judge