State v. Buffington

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLES BUFFINGTON, Appellant.

No. 1 CA-CR 19-0449
FILED 6-15-2021

Appeal from the Superior Court in Yavapai County
No. P1300CR201700322
The Honorable Tina R. Ainley, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey Ball
Counsel for Appellee

The Zickerman Law Office PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
 STATE v. BUFFINGTON
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.

B R O W N, Judge:

¶1 Charles Buffington appeals the superior court’s judgment of
guilt and sentencing on various offenses related to sex trafficking,
prostitution, and pandering. For the following reasons, we affirm.

BACKGROUND

¶2 In November 2015, Buffington and his friend William Wilson,
together with two females, S.F. and K.A., met at a hotel and engaged in
sexual activity. At the time, K.A. was 16 years old. Buffington and Wilson
later persuaded S.F. and K.A. to work as prostitutes, posting provocative
pictures of S.F. and K.A. on websites commonly used to solicit “johns” and
arranging for prostitution “dates” using discreet phone applications. S.F.
and K.A. engaged in frequent acts of prostitution under Buffington and
Wilson’s direction for approximately seven months.

¶3 In September 2016, an adult victim (S.C.) informed the police
about this prostitution operation. The State charged Buffington with two
counts of sex trafficking (Counts 1 and 3), two counts of conspiracy to
commit sex trafficking (Counts 2 and 4), child prostitution (Count 5),
conspiracy to commit child prostitution (Count 6), three counts of
conspiracy to commit receiving earnings of a prostitute (Counts 7–9), one
count of receiving earnings of a prostitute (Count 10), conspiracy to commit
transporting persons for purpose of prostitution or other immoral purpose
(Count 11), and four counts of conspiracy to commit pandering (Counts 12–
15).

¶4 At trial, the superior court granted Buffington’s motion for
judgment of acquittal on Count 8 and dismissed Count 15 on the State’s
motion. The jury acquitted Buffington of Counts 1 and 3 but convicted him
of the remaining charges. The court sentenced Buffington to an aggregate
prison term of 19.5 years and he timely appealed.

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DISCUSSION

A. Mens Rea for Child Prostitution

¶5 We review issues of statutory interpretation de novo. State v.
Dann, 220 Ariz. 351, 369, ¶ 96 (2009). We review the superior court’s denial
of a jury instruction for an abuse of discretion, but we review de novo
whether jury instructions accurately state the law. State v. Johnson, 212 Ariz.
425, 431, ¶ 15 (2006).

¶6 As stated in A.R.S. § 13-3212(A)(1),1 a person commits child
prostitution by “knowingly . . . causing any minor to engage in
prostitution.” Minor is defined as “a person under the age of eighteen
years.” A.R.S. § 1-215(21). The superior court instructed the jury that “[t]he
crime of Child Prostitution requires proof that the defendant knowingly
caused a minor to engage in prostitution,” mirroring § 13-3212(A)(1). The
court also told the jury “[i]t is not a defense to the charges involving a Minor
or a Child that the defendant did not know or had no reason to know the
age of the Minor or Child.”

¶7 Buffington argues the “knowingly” mental state contained in
§ 13-3212(A)(1) necessarily applies to each element of the offense. He
contends the superior court erred by (1) denying his request to instruct the
jury the State was required to prove he “knew or should have known” K.A.
was a minor for Counts 5 and 6, and (2) sentencing him to consecutive
prison terms on those counts because the State failed to prove he knew
K.A.’s age.

¶8 This issue, however, was recently addressed by this court in
State v. Hood, 251 Ariz. 57 (App. 2021). In Hood, we held that the crime of
child prostitution does “not require proof that a defendant knew the victim
was a minor at the time of the sexual conduct.” Id. at 59, ¶ 1. We reasoned
that the plain language of § 13-3212(A)(1) “only requires proof that the
defendant intentionally or knowingly engaged in sexual conduct with the

1 When Buffington committed these crimes, § 13-3212 used the term
“child prostitution” to describe the offense. Effective August 9, 2017, the
legislature amended the statute and changed the name of the offense to
“child sex trafficking.” 2017 Ariz. Sess. Laws, ch. 167, § 10 (1st Reg. Sess.).
Because the amendment did not substantively alter the statutory provisions
material to this decision, we cite the current version of the statute. For
consistency with the record, however, we use “child prostitution” to
describe the offenses in this case.

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victim,” and “[h]ad the legislature intended to require the State to prove a
defendant knew the victim was a minor, . . . it would have said so explicitly
in the statute.” Id. at 60, ¶ 9 (citing State v. Gamez, 227 Ariz. 445, 450, ¶ 30
(App. 2011)). We see no reason to depart from this analysis.

¶9 Because knowledge of a victim being a minor is not an
element of § 13-3212(A)(1), the superior court’s jury instructions accurately
stated the law. Likewise, the court did not err in imposing consecutive
sentences on Counts 5 and 6.

B. Racial Composition of the Jury

¶10 Buffington, who is African American, argues he was “unduly
prejudiced by an all-white jury pool.” We review constitutional challenges
de novo, Dann, 220 Ariz. at 373, ¶ 127, but we review arguments raised for
the first time on appeal for fundamental, prejudicial error, State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

¶11 We first note that transcripts of the voir dire proceedings were
not made part of the appellate record, and the available record does not
disclose the racial composition of the venire. “It is the duty of counsel who
raise objections on appeal to see that the record before us contains the
material to which they take exception. Where matters are not included in
the record on appeal, the missing portions of the record will be presumed
to support the action of the trial court.” State v. Zuck, 134 Ariz. 509, 512–13
(1982).

¶12 During voir dire, Buffington objected “to the jury pool as
having no minorities” and “nary a black person at all.” The superior court
first clarified that “[t]here was, in fact, one who asked to be excused for
cause and a number of other Hispanics, a couple of who asked to be excused
for cause, so I did make note of that.” The court also pointed out that the
minority venire members were excused because the jurors “said they
couldn’t be fair and impartial” and neither party objected. Buffington did
not move to strike the panel, nor did he raise a challenge under Batson v.
Kentucky, 476 U.S. 79 (1986).

¶13 Buffington does not challenge the superior court’s decision to
excuse various minority venire members for cause. Regardless, the court
acted within its discretion by dismissing jurors who could not be fair and
impartial. See Ariz. R. Crim. P. 18.4(b) (stating that the superior court must
excuse a potential juror if there is a “reasonable ground to believe” the juror
“cannot render a fair and impartial verdict”); State v. Medina, 232 Ariz. 391,
403, ¶ 38 (2013) (striking a prospective juror for cause is appropriate if the

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juror’s opinions would substantially impair the performance of the juror’s
duties).

¶14 Despite not raising a Batson challenge at trial, on appeal
Buffington relies on Batson to contend he was unduly prejudiced by the
composition of the venire because “peremptory challenges may [not] be
used to discriminate against and eliminate potential jurors on the basis of
sex, race, ethnicity, or religion.” We review his argument only for
fundamental, prejudicial error. See Escalante, 245 Ariz. at 142, ¶ 21.

¶15 A peremptory strike to exclude a potential juror solely
because of race violates the Equal Protection Clause of the Fourteenth
Amendment. Batson, 476 U.S. at 89. A Batson challenge is composed of
three steps: (1) the defendant must make a prima facie showing of racial
discrimination; (2) if such a showing is made, the prosecutor must provide
a race-neutral reason for the strike; (3) if the prosecutor provides a facially
neutral basis, the “court must determine whether ‘the defendant has
established purposeful discrimination.’” State v. Newell, 212 Ariz. 389, 401,
¶ 53 (2006) (citation omitted).

¶16 First, Buffington cites no evidence that the State peremptorily
struck any minority venireperson, much less that the prosecutor did so for
a discriminatory purpose. Buffington therefore fails to establish a prima
facie case that the prosecutor violated Batson by excluding a juror on the
basis of race. See id.

¶17 Second, to the extent Buffington argues he was prejudiced
solely because the empaneled jury had no minority members, our supreme
court has rejected that proposition. See State v. Tucker, 118 Ariz. 76, 80 (1978)
(holding that “[t]he fact that appellant was tried by an all[-]white jury does
not, in itself, give grounds for a claim of error”). Moreover, “[t]he
defendant is not entitled to a jury that is composed of the exact proportion
of his race as exists in the general population. All that is required is a jury
selected by a process from which members of his [or her] race are not
systematically excluded.” State v. Williams, 111 Ariz. 175, 178 (1974).

¶18 Buffington neither alleges nor demonstrates that Yavapai
County engages in systematic exclusion of minority jurors when selecting
its juries. See id. Nonetheless, he asserts that racial underrepresentation in
the jury selection process violated his right to a fair and impartial jury.

¶19 The Sixth Amendment right to a fair and impartial jury
requires that a venire consist of a representative cross-section of the
community. See Duren v. Missouri, 439 U.S. 357, 358–59 (1979). A defendant

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must meet a three-prong test to establish a prima facie violation of the fair-
cross-section requirement, proving: (1) the group alleged to be excluded is
“distinctive” in the community, (2) the group’s representation “in venires
from which juries are selected is not fair and reasonable” in proportion to
the community, and (3) the underrepresentation results from “systematic
exclusion” in the jury-selection process. Id. at 364. Buffington makes no
showing at all under the second and third prongs. See id. Thus, we reject
Buffington’s contention that underrepresentation in his trial violated his
right to a fair jury. See id.; see also State v. Doerr, 193 Ariz. 56, 65, ¶ 40 (1998)
(“The Sixth Amendment guarantees a fair and impartial jury, but not one
having a specific makeup.”).

¶20 Finally, Buffington’s general assertion that the jurors were
inherently biased, without citing any supporting evidence from the record,
is insufficient to establish prejudice. See State v. Tison, 129 Ariz. 526, 535
(1981) (“Unless there are objective indications of jurors’ prejudice, we will
not presume its existence.”); State v. Arnett, 119 Ariz. 38, 50 (1978) (“[U]nless
the record affirmatively shows that . . . a fair and impartial jury was not
secured, the conviction must be affirmed.”).

CONCLUSION

¶21 We affirm Buffington’s convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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