State v. Young

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee/Cross-Appellant,

v.

RANDY SCOTT YOUNG, Appellant/Cross-Appellee.

No. 1 CA-CR 23-0355
FILED 06-13-2024

Appeal from the Superior Court in Yavapai County
No. V1300CR201880059
The Honorable Krista M. Carman, Judge
The Honorable Tina R. Ainley, Judge
The Honorable Michael R. Bluff, Judge

AFFIRMED IN PART; DISMISSED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee/Cross-Appellant

Zickerman Law Office, Flagstaff
By Adam Zickerman
Counsel for Appellant/Cross-Appellee
 STATE v. YOUNG
Opinion of the Court

OPINION

Presiding Judge Paul J. McMurdie delivered the Court’s opinion, in which
Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.

M c M U R D I E, Judge:

¶1 Defendant Randy Young appeals his convictions and
sentences for six counts of sexual exploitation of a minor. In a previous case,
the superior court suppressed evidence found on Young’s laptop computer.
The State then moved to dismiss the charges without prejudice, which the
court granted. Some six years later, the State refiled the charges. The court
denied Young’s suppression motion in the refiled case, and the jurors
convicted him. On appeal, Young argues that the court erred by not
following the previous suppression order.

¶2 We hold that the superior court was not bound by the
previous suppression order under Arizona Rule of Criminal Procedure
(“Rule”) 16, the law of the case, or collateral estoppel. On the suppression
motion’s merits, we hold that the Fourth Amendment does not apply to
co-employees who are searching for non-criminal files (lesson plans) and
accidentally stumble onto contraband (child pornography).

¶3 The State cross-appeals, challenging Young’s sentence as
illegally lenient because the court ordered one count to run concurrently
with, rather than consecutive to, the other counts. We dismiss the State’s
cross-appeal because it was not timely filed.

¶4 Thus, we affirm Young’s convictions and sentences.

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Opinion of the Court

FACTS1 AND PROCEDURAL BACKGROUND

¶5 Young taught and coached at American Heritage Academy, a
charter school formed by Steve Anderson, the school’s principal,2 and his
wife. The principal ran the school, and some of his children worked there.
Angela White, the principal’s daughter, taught history and English classes.
Aaron Anderson, the principal’s son, was the school’s athletic director and
assisted with technological services.

¶6 Young was the assistant athletic director. Young shared
classroom space with White. In early 2012, White took over Young’s classes
when his employment was suspended or terminated. White began looking
for Young’s lesson plans and assumed the plans were on Young’s personal
laptop in the classroom. The laptop appeared uncharged, so White brought
it to Anderson to help her find the lesson plans.

¶7 Young’s laptop was password-protected, but Anderson knew
Young’s password because they shared it to access each other’s sports
schedules. Anderson successfully logged onto the computer using Young’s
password. Once Anderson and White accessed the computer, they searched
Young’s files for the lesson plans. During the search, they opened a file
folder containing sexually explicit pictures of naked children.

¶8 Anderson and White contacted the principal and showed him
the laptop. The principal viewed the images and called the police. After
receiving a report that the school had a laptop with illegal images, the police
visited the school. The principal gave Young’s laptop to the police. The
police secured the laptop and obtained a search warrant based on the
information given to them. They then searched the laptop and found
pornographic images of children.

¶9 The State charged Young with multiple counts of sexual
exploitation of a minor. See A.R.S. § 13-3553(A)(2). Young moved to
suppress the laptop evidence, claiming a Fourth Amendment violation. He
argued he had a legitimate expectation of privacy in his laptop, the school

1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

2 The record also identifies Steve Anderson as the school’s “director,”
“founder,” “superintendent,” “owner,” and “administrator.” For
consistency, we call Steve Anderson the “principal.”

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Opinion of the Court

employees were state actors who searched the laptop unlawfully without a
warrant, and the police improperly seized the laptop without a warrant. In
response, the State claimed there was no Fourth Amendment violation
because Young abandoned his laptop at the school and had no legitimate
privacy expectation. The superior court found that Young did not abandon
the laptop and had a legitimate privacy expectation, so it suppressed the
laptop evidence. The court dismissed the charges without prejudice on the
State’s motion.

¶10 In 2018, the State re-charged Young with ten counts of sexual
exploitation of a minor. Young moved to dismiss the indictment, arguing it
was “unsupported by admissible evidence.” See Ariz. R. Crim. P. 16.4(b)
(On the defendant’s motion, the superior court must dismiss the
prosecution if the indictment is insufficient.). Young explained that the
prosecution was based on the same evidence suppressed in the 2012 case,
the State never appealed the suppression, and there was no new evidence
supporting the charges. The State argued the prior suppression order did
not bar it from re-litigating the matter.

¶11 Young also argued that re-litigating the evidence’s
admissibility violated Rule 16.1(d). But the superior court found that Rule
16 did not apply because the 2012 and 2018 matters were separate cases.
Under State v. Greenberg, the court determined it could reconsider the
evidence’s admissibility. 236 Ariz. 592 (App. 2015).

¶12 Turning to the motion’s merits, the superior court held an
evidentiary hearing. White, Anderson, and the principal recounted their
actions and experiences when they accessed Young’s laptop in 2012. This
time, along with arguing that Young had no legitimate privacy expectation
in the laptop, the State also argued that no impermissible search occurred
because the school employees were not state actors, and the police could
lawfully seize the laptop based on what the co-employees discovered.

¶13 The court denied the motion to suppress. The court applied
the test for searches performed by private citizens. It found that there was
no evidence the government was involved in the initial search of Young’s
laptop, and Young presented no evidence at the hearing showing White
was looking for something other than Young’s lesson plans. Thus, White,
Anderson, and the principal were “simply school employees looking for a
class curriculum” when they discovered the illegal images. The court found
no error in the police’s seizure, and there was no challenge to the search
warrant’s validity.

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Opinion of the Court

¶14 The case proceeded to trial. The court dismissed four counts
without prejudice on the State’s motion. A jury found Young guilty on the
six remaining counts. For five counts, the jury found beyond a reasonable
doubt that the depicted minors were under 15 years old. The court
sentenced Young to consecutive ten-year sentences for the five counts. For
the count without a jury finding that the depicted minor was under 15, the
court sentenced Young to a concurrent sentence of four years.

¶15 Young appealed. The State cross-appealed. We have
jurisdiction to review Young’s appeal under A.R.S. §§ 12-120.21(A)(1) and
13-4033(A)(1). We lack jurisdiction to address the State’s cross-appeal.

DISCUSSION

A. The Superior Court Did Not Abuse Its Discretion by Denying
Young’s Motion to Dismiss.

¶16 Young argues the superior court erred by denying the motion
to dismiss because the 2018 indictment was not supported by admissible
evidence, and the re-indictment violated his right to be free from double
jeopardy. We review the court’s ruling on a motion to dismiss for abuse of
discretion and related constitutional claims de novo. State v. Holmes, 250
Ariz. 311, 313, ¶ 5 (App. 2020) (quoting State v. Ramsey, 211 Ariz. 529, 532,
¶ 5 (App. 2005)).

¶17 This court addressed the procedure for handling previously
suppressed evidence in a later filed case in Greenberg, 236 Ariz. 592. In
Greenberg, the superior court suppressed a defendant’s confession and
dismissed sexual exploitation charges without prejudice, and the State did
not appeal the confession suppression ruling. Id. at 595-96, ¶¶ 10-11. Later,
the State re-charged the defendant with multiple counts of sexual
exploitation of a minor and additional charges. Id. at 596, ¶ 13. The superior
court reconsidered the voluntariness of the defendant’s confession and
ruled that the suppressed confession was admissible in the second case. Id.
at ¶¶ 14, 17.

¶18 This court found no error with the superior court’s
subsequent review of the confession’s admissibility. See Greenberg, 236 Ariz.
at 598, 600, ¶¶ 25, 37. We concluded that neither the law of the case, Rule
16.1(d), nor collateral estoppel precluded the court from reconsidering the
confession’s admissibility in the second prosecution. Id. Applying Greenberg
to a Fourth Amendment suppression issue, we conclude that the superior
court did not err by reconsidering the laptop evidence admissibility in this
case.

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Opinion of the Court

¶19 Under the law of the case, a court will not “reopen questions
previously decided in the same case by the same court or a higher appellate
court.” State v. Whelan, 208 Ariz. 168, 171, ¶ 8 (App. 2004) (quoting Davis v.
Davis, 195 Ariz. 158, 162, ¶ 13 (App. 1999)). Similarly, under Rule 16.1(d),
“[a] court may not reconsider an issue previously decided in the case”
unless good cause or other rules require otherwise. Law of the case and
Rule 16.1(d) “appl[y] in the setting of the same case.” Whelan, 208 Ariz. at
171, ¶ 9. Thus, neither applies here because “although the underlying facts
in each prosecution were identical and the charges were the same, there
were two separate actions.” Id. at ¶ 10.

¶20 Under collateral estoppel principles, once a valid and final
judgment determines an issue, the same parties cannot re-litigate an issue
in a future lawsuit. State v. Stauffer, 112 Ariz. 26, 29 (1975) (quoting Ashe v.
Swenson, 397 U.S. 436, 443 (1970)). For collateral estoppel to apply, a court
must make a final decision on the case’s merits. See Whelan, 208 Ariz. at 172,
¶ 13. Collateral estoppel does not apply here because neither the 2012 order
suppressing the laptop evidence nor the order dismissing the case without
prejudice were final judgments for collateral estoppel purposes. See
Greenberg, 236 Ariz. at 599, ¶¶ 31, 32 (“An interlocutory suppression order
is not final for purposes of collateral estoppel,” and that a ruling “could
have been appealed, but was not, does not alter its non-final nature.”); id.
at 600, ¶ 36 (“For collateral estoppel purposes, a dismissal without
prejudice does not constitute a judgment.”). Thus, the superior court was
not bound by the suppression order from the 2012 case and did not abuse
its discretion by denying Young’s motion to dismiss or preclude the
evidence.

¶21 Young argues that if Greenberg allows the State to reuse
evidence suppressed previously because of a constitutional violation, it
“cannot be tolerated” because it guts the Fourth Amendment and the
exclusionary rule. But if the State re-indicts a defendant using evidence
suppressed in a prior case, the defendant can re-argue that the State
obtained the evidence unconstitutionally, as Young did here. That a
criminal defendant may have to re-litigate a previously decided issue does
not nullify the Fourth Amendment.

¶22 Young also argues that the State cannot “subvert a Court’s
ruling by dismissing the case then re-filing in order to re-litigate the issues.”
Young contends that the State re-filed the charges in hopes of arguing
before a new judge. Young provided no evidence that the State dismissed
and re-filed for this purpose, and the six-year gap between the cases negates
the thought that it did. Thus, we need not address that argument here.

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Opinion of the Court

¶23 Finally, Young claims the re-indictment violated his double
jeopardy rights. Under the United States Constitution, no person will be
brought into jeopardy twice for the same offense. U.S. Const. Amend. V; see
also Benton v. Maryland, 395 U.S. 784, 794 (1969) (The Fifth Amendment’s
double jeopardy clause applies to the states through the Fourteenth
Amendment.). Generally, once jeopardy attaches, the State cannot
prosecute the defendant again. Jones v. Kiger, 194 Ariz. 523, 526, ¶ 7 (App.
1999). The constitutional protection against double jeopardy also
incorporates collateral estoppel. Stauffer, 112 Ariz. at 29.

¶24 But jeopardy does not attach until a jury is empaneled and
sworn, see State v. Riggins, 111 Ariz. 281, 283 (1974), or when the defendant
pleads guilty, Parent v. McClennen, 206 Ariz. 473, 475, ¶ 9 (App. 2003). And
neither jeopardy-triggering event occurred in the 2012 case. When the court
granted Young’s suppression motion in 2012, the State moved to dismiss
the case without prejudice, and the court granted the motion. Because
jeopardy had not attached to the 2012 case, there was no double jeopardy
or collateral estoppel violation.

B. The Superior Court Did Not Abuse Its Discretion by Denying
Young’s Suppression Motion.

¶25 Young argues that the superior court’s denial of the
suppression motion violated his Fourth Amendment and due process
rights. On appeal, the State now concedes that Young had a reasonable
privacy expectation in his laptop but argues there was no constitutional
violation because the school employees were not state actors.3 We review
the superior court’s order denying the motion to suppress for abuse of
discretion and view “the facts in the light most favorable to sustaining the
ruling.” State v. Weakland, 246 Ariz. 67, 69, ¶ 5 (2019) (quoting State v.
Valenzuela, 239 Ariz. 299, 302, ¶ 9 (2016)). But we review the constitutional
claim de novo. State v. Fristoe, 251 Ariz. 255, 259, ¶ 9 (App. 2021).

¶26 The Fourth Amendment protects individuals against
unreasonable searches and seizures. State v. Dean, 206 Ariz. 158, 161, ¶ 8
(2003); U.S. Const. Amend. IV. A “search” occurs when the government
infringes on someone’s reasonable privacy expectation, State v. Mixton, 250
Ariz. 282, 286, ¶ 13 (2021) (quoting United States v. Jacobsen, 466 U.S. 109, 113
(1984)), or trespasses upon a protected area, United States v. Jones, 565 U.S.

3 Based on the State’s concession, we assume without deciding that
Young had a reasonable privacy expectation in his laptop.

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Opinion of the Court

400, 406-07 (2012). A “seizure” occurs when the government meaningfully
interferes with a person’s possessory property interest. State v. Peters, 189
Ariz. 216, 218 (1997).

¶27 The Fourth Amendment applies to a government employer or
agent or a government supervisor’s search of their employees’ private
property. O’Connor v. Ortega, 480 U.S. 709, 715-17 (1987). It also applies to
employees who search on behalf of a government employer. See, e.g., id. at
713 (State hospital supervisor “selected several Hospital personnel to
conduct the investigation.”); United States v. Fernandes, 272 F.3d 938, 940 (7th
Cir. 2001) (County employer dispatched employees to search the
defendant’s office.); United States v. Gonzalez, 300 F.3d 1048, 1050, 1051
(Store detective searched items according to Air Force Base policy.). We
have found no case, nor has Young cited one to us, when a court suppressed
evidence based on a search by a co-employee who was not acting on behalf
of a government employer or supervisor. See, e.g., United States v. Inman,
No. 4:06CR00353 ERW, 2007 WL 9719134, at *1-3 (E.D. Mo. Jan. 11, 2007)
(Government employees were acting as private citizens when opening their
co-employee’s laptop in search of the co-employee’s girlfriend’s name
because the government did not know about the activity, the employees did
not report their actions to their supervisor until after they viewed the
laptop, and they did not intend to assist law enforcement when they first
opened the laptop.). As the Fourth Amendment protects only against
government action, Jacobsen, 466 U.S. at 113, it does not prohibit searches
and seizures by “a private individual not acting as an agent of the
Government or with the participation or knowledge of any government
official.” Id. (quoting Walter v. United States, 447 U.S. 649, 662 (1980)
(Blackmun, J., dissenting)).

¶28 Even if the Fourth Amendment applies to a public employer
or supervisor’s search, such a search may fall within an exception to the
warrant requirement and be permissible if the search is work-related and
reasonable. See O’Connor, 480 U.S. at 721-23. The warrantless search may be
justified if it is “necessary for a noninvestigatory work-related purpose such
as to retrieve a needed file” and reasonable in scope. See id. at 725-26; see
also id. at 732 (Scalia, J., concurring) (“[G]overnment searches to retrieve
work-related materials . . . do not violate the Fourth Amendment.”).

¶29 So the first issue to be resolved is whether White or Anderson
were state actors during their search. Young argues the school employees
were state actors because they were government employees searching for
criminal evidence. He claims that “it is well established that the Fourth

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Opinion of the Court

Amendment governs the conduct of school officials.” Young is only
partially correct.

¶30 The Fourth Amendment applies to public school officials
searching students because “they act in furtherance of publicly mandated
educational and disciplinary policies.” New Jersey v. T.L.O., 469 U.S. 325, 336
(1985). Public school officials are state actors only when they carry out
publicly-mandated educational or disciplinary policies or act in concert
with the government. Compare State v. Serna, 176 Ariz. 267, 270 (App. 1993)
(Public high school security guards, acting as the school principal’s agents,
were state actors when searching students because they were enforcing
school disciplinary policies.), with State v. Jones, 715 S.E.2d 896, 902 (N.C.
App. 2011) (School principal was not a government actor when showing
photographs to a student because he “was not acting pursuant to any
educational or disciplinary policies, nor was he acting as a law enforcement
officer conducting an investigation on behalf of the State.”). See also State v.
Ludvik, 698 P.2d 1064, 1068 (Wash. App. 1985) (We measure government
action not by a person’s occupation but the capacity in which the person
acts during the search.); State v. Andrews, 637 A.2d 787, 790 (Conn. App.
1994) (similar).

¶31 The superior court found that White, Anderson, and the
principal worked at a private school. This finding is unsupported by the
record. American Heritage Academy is a charter school. In Arizona, a
charter school is “a public school established by contract . . . to provide
learning that will improve pupil achievement.” A.R.S. § 15-101(4). “Charter
schools are public schools that serve as alternatives to traditional public
schools.” A.R.S. § 15-181(A).

¶32 Still, not all Arizona charter school employees are state actors,
even if a charter school is “public” by statute. See generally Caviness v.
Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806 (9th Cir. 2010). In Caviness, the
Ninth Circuit considered whether a private, non-profit corporation running

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Opinion of the Court

a charter school was a “state actor” when making employment decisions.4
590 F.3d at 812-13. The court recognized that the Arizona legislature defines
a charter school as a “public school” but concluded the “inquiry does not
end there” because “the conduct of a private corporation [was] at issue.” Id.
at 812. The court reviewed the conduct being challenged “because an entity
may be a State actor for some purposes but not for others.” Id. at 813
(quoting Lee v. Katz, 276 F.3d 550, 555, n.5 (9th Cir. 2002)). Thus, the court
considered whether the corporation’s role as an employer was state action.
Id. The court found no reasonable inference that the corporation was a state
actor because the corporation’s actions and decisions were “made by
concededly private parties, and turn[ed] on judgments made by private
parties without standards established by the State.” Id. at 818 (quoting Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999)).

¶33 Unlike the court in Caviness, we have little information about
the charter school in this case. See 590 F.3d at 808, 810. We know that the
principal formed the school, but the record is unclear about the school’s
organizational structure and governing body. And we do not know the
charter’s policies.5

¶34 That said, Young’s state action argument fails. Even if White
and Anderson were public school officials, as contemplated in T.L.O.,
Young still failed to argue that White and Anderson acted under a public
education or disciplinary policy. See 469 U.S. at 336. Similarly, there is no
suggestion that Anderson and White acted under a state standard or
governmental policy. See Caviness, 590 F.3d at 818; see also United States v.

4 An applicant seeking to establish a charter school must apply to a
proposed sponsor, and the sponsor “may be the state board of education,
the state board for charter schools, a university under the jurisdiction of the
Arizona board of regents, a community college district or a group of
community college districts.” A.R.S. § 15-183(A), (C). The sponsor may
contract with a public or private entity. Id. § 15-183(B). The sponsor has
“oversight and administrative responsibility” for the charter school. Id.
§ 15-183(R).

5 The charter must “[e]nsure compliance with federal, state and local
rules, regulations and statutes relating to health, safety, civil rights and
insurance.” A.R.S. § 15-183(E)(1). But unless otherwise specified in
Arizona’s statutes for charter schools or in the school’s charter, a charter
school “is exempt from all statutes and rules relating to schools, governing
boards and school districts.” Id. § 15-183(E)(5).

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Opinion of the Court

Soderstrand, 412 F.3d 1146, 1153 (10th Cir. 2005) (University employee was
not a state actor for Fourth Amendment purposes when opening a
co-worker’s safe because she was “acting solely on her own account,” not
“pursuant to any law enforcement or other governmental objective.”). The
superior court did not abuse its discretion when it found that Young failed
to establish that White and Anderson were anything but his co-workers
looking for lesson plans. Cf. Shaul v. Cherry Valley-Springfield Cent. Sch. Dist.,
363 F.3d 177, 181-82 (2d Cir. 2004) (applying the Fourth Amendment to
school principals’ search of former teacher’s classroom). Young did not
argue that White or Anderson acted in a supervisory capacity, had
authority over him under a governmental policy, or acted on behalf of
Young’s employer or supervisor.

¶35 Their conduct is not state action if Anderson and White acted
as private citizens (co-employees) when they found the files leading to the
charges against Young. See Fristoe, 251 Ariz. at 259, ¶ 13. To determine
whether a private individual is a government actor for Fourth Amendment
purposes, we consider “(1) whether the government knew of and
acquiesced in the intrusive conduct, and (2) whether the party performing
the search intended to assist law enforcement efforts.” Id. (quoting United
States v. Snowadzki, 723 F.2d 1427, 1429 (9th Cir. 1984)). If the defendant fails
to prove either element, the private citizen was not a state actor. Id. (quoting
State v. Martinez, 221 Ariz. 383, 392, ¶ 31 (App. 2009)).

¶36 The record supports the superior court’s factual finding that
Anderson and White intended to search for lesson plans, and there was no
evidence at the suppression hearing supporting government influence on
or involvement in their search. See Fristoe, 251 Ariz. at 259, ¶ 13; Inman, 2007
WL 9719134, at *2-3 (quoting United States v. Attson, 900 F.2d 1427, 1431 (9th
Cir. 1990)) (The co-employees’ actions were not to “elicit a benefit for the
government.”). Thus, the Fourth Amendment did not prohibit Anderson
and White’s search of Young’s laptop, either because they were private
citizens or their search falls under the “non-investigatory work-related”
exception. See O’Connor, 480 U.S. at 726, 732.

¶37 We need not decide whether the principal was a state actor
because the laptop information was not private when he viewed the
images. See Jacobsen, 466 U.S. at 117 (“Once frustration of the original
expectation of privacy occurs, the Fourth Amendment does not prohibit
governmental use of the now-nonprivate information.”). A Fourth
Amendment violation may occur if the government’s subsequent search
exceeds the scope of the initial private search. See, e.g., Walter, 447 U.S. at
652, 657 (Private employees opened film boxes and discovered “explicit

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descriptions,” and FBI agents’ warrantless viewing of the films was a
“significant expansion” of the private employees’ search.). But here, there
is no suggestion that the principal exceeded the scope of White and
Anderson’s search. Rather, the principal testified at the suppression hearing
that he viewed only “a couple of pictures” that White and Anderson found.
Thus, even if the principal were a state actor, the principal’s viewing of the
photos did not require a warrant because White and Anderson searched the
laptop and viewed the photos first. And the principal’s viewing of the
photos did not exceed the scope of White and Anderson’s search. See
Jacobsen, 466 U.S. at 120 (The government agent “learn[ed] nothing that had
not previously been learned during the private search.”).

¶38 Finally, Young challenges the police’s warrantless seizure of
the laptop. But when the police took possession of the laptop, Young’s
privacy expectation had been compromised, see Jacobsen, 466 U.S. at 113,
and the police had learned that the laptop contained illegal images. “[I]t is
well-settled that it is constitutionally reasonable for law enforcement to
seize ‘effects’ that cannot support a justifiable expectation of privacy
without a warrant, based on probable cause to believe they contain
contraband.” Jacobsen, 466 U.S. at 121-22. The police did not search the
laptop until they obtained a search warrant, so they did not engage in a
warrantless search that exceeded the scope of the initial privacy invasion.
See id. at 115. Thus, the warrantless seizure was reasonable.

¶39 Young made no argument before the superior court nor this
court that the search warrant lacked probable cause. Because there was no
Fourth Amendment violation, the superior court did not abuse its
discretion by denying the suppression motion.

C. We Lack Jurisdiction to Consider the State’s Cross-Appeal.

¶40 We lack jurisdiction over the cross-appeal because the State
filed untimely. A notice of cross-appeal “must be filed no later than 20 days
after the appellant’s notice of appeal is filed.” Ariz. R. Crim. P. 31.2(a)(2)(C).
When computing time, the court “[e]xclude[s] the day of the act or event
from which the designated time period begins to run.” Ariz. R. Crim. P.
1.10(a)(1). Young filed a notice of appeal on August 9, 2023, so the State had
to file a notice of cross-appeal no later than August 29, 2023. See Ariz R.
Crim. P. 31.2(a)(2)(C), 1.10(a)(1). The State filed its notice of cross-appeal on
August 30, 2023. Thus, the cross-appeal was untimely, and we lack
jurisdiction to review it. See State v. Dawson, 164 Ariz. 278, 282 (1990) (“[T]he
state’s failure to timely appeal or cross-appeal acts as a jurisdictional bar to

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its raising the [illegal sentencing] error.); State v. Limon, 229 Ariz. 22, 23, ¶ 3
(App. 2011). We dismiss the cross-appeal.

CONCLUSION

¶41 We affirm.

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

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