State of Arizona v. Evan McCarrick Jerald

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

EVAN MCCARRICK JERALD,
Appellant.

No. 2 CA-CR 2021-0105
Filed April 15, 2024

Appeal from the Superior Court in Pima County
No. CR20180255001
The Honorable Howard Fell, Judge Pro Tempore

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Casey D. Ball, Assistant Attorney General, Phoenix
Counsel for Appellee

Law Offices of Thomas Jacobs, Tucson
By Thomas Jacobs
Counsel for Appellant
 STATE v. JERALD
Opinion of the Court

OPINION

Judge Sklar authored the opinion of the Court, in which Vice Chief Judge
Staring and Judge O’Neil concurred.

S K L A R, Judge:

¶1 As interpreted by the United States Supreme Court, the
Eighth Amendment’s prohibition on cruel and unusual punishment applies
to sentences that are “grossly disproportionate” to the crimes. This case
requires us to apply that standard to sexual offenses that Evan Jerald
committed against two young children when he was fifteen and sixteen
years old. He was not charged until after he turned eighteen, so he was
tried and convicted in adult criminal court. He was then sentenced under
the dangerous-crimes-against-children (DCAC) statute to cumulative
prison terms totaling more than 200 years for eight convictions.

¶2 We conclude that Jerald’s individual sentences are not grossly
disproportionate to his crimes. In doing so, we first reject Jerald’s argument
that he was improperly sentenced under the DCAC statute because he
committed the crimes as a juvenile. He was properly sentenced under
provisions of that statute applicable to defendants who were “tried as an
adult.” We also conclude that under State v. Berger, 212 Ariz. 473 (2006), we
may not consider whether the cumulative sentences are grossly
disproportionate. We must instead consider each of the eight DCAC
sentences individually. And although the individual sentences are long,
they do not meet the gross-disproportionality standard given the severity
of the offenses.

¶3 As more fully explained below, we also reject Jerald’s other
statutory and constitutional arguments—including equal-protection and
due-process claims of first impression—as well as his claims of trial error.
We therefore affirm the convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 We view the facts in the light most favorable to sustaining the
jury’s verdicts and resolve all reasonable inferences against Jerald. See State
v. Fierro, 254 Ariz. 35, ¶ 2 (2022). Several times between New Year’s Eve
2014 and November 2015, R.S. asked Jerald to babysit her children, E.S. and
G.S. E.S. was eight and nine years old and G.S., who is autistic, was six and

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Opinion of the Court

seven years old. During this period, Jerald began forcing E.S. to have
vaginal and oral sex with him. Jerald also attempted to have anal sex with
E.S. on one occasion and forced G.S. to have oral sex with him. Jerald was
between 15 and 16 years old at the time.

¶5 In November 2015, R.S. discovered that E.S. was talking to
Jerald at night without her permission using Skype. Jerald was also
communicating with E.S. using Wickr, a secure texting application. R.S. cut
off all contact with Jerald and called the police. E.S. was interviewed at the
Children’s Advocacy Center, but she did not make any allegations against
Jerald, and the investigation was closed.

¶6 In 2017, E.S. was taken to the Children’s Advocacy Center for
a second interview, where she disclosed Jerald’s conduct. G.S. was also
interviewed and disclosed that Jerald had engaged in oral sex with him.

¶7 Jerald was indicted in January 2018, ten months after his
eighteenth birthday, on eight counts of sexual conduct with a minor under
fifteen and two counts of molestation of a child. The jury was unable to
reach a unanimous verdict on any count, which resulted in a mistrial. After
a second trial in September 2021, Jerald was found guilty of four counts of
sexual conduct with a minor and four lesser-included counts of molestation
of a child. He was found not guilty on two counts of molestation of a child.
He filed a motion for a new trial, which was denied.

¶8 Jerald was sentenced under A.R.S. § 13-705, the DCAC
statute. For each of the four sexual-conduct-with-a-minor convictions,
Jerald received a life sentence with no possibility of release for thirty-five
years. Those sentences run consecutively. He was also sentenced to four
consecutive seventeen-year prison terms for the molestation-of-a-child
convictions. Those sentences also run consecutive to the life sentences,
meaning that the minimum possible prison term is 208 years. Jerald
appeals his convictions and sentences.

APPLICABILITY OF A.R.S. § 13-705

¶9 Before evaluating the constitutionality of Jerald’s sentences,
we must first determine whether the trial court properly sentenced him
under the DCAC statute. That statute requires enhanced sentences for
certain crimes committed against children, including sexual conduct with a
minor and child molestation. See A.R.S. § 13-705(A), (B), (D). We review
the interpretation and application of a sentencing statute de novo. State v.
Lambright, 243 Ariz. 244, ¶ 9 (App. 2017).

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Opinion of the Court

I. Background on A.R.S. § 13-705

¶10 Under the version of Section 13-705 applicable when the
offenses occurred, subsections (A) and (B) govern sentencing for sexual
conduct with a minor under twelve years old. 2014 Ariz. Sess. Laws,
ch. 224, § 2. Subsection (D) governs sentencing for child molestation. Id.
Those subsections have since been re-numbered, but their substance has not
changed. We cite the subsections as they were numbered when Jerald
committed the offenses, which are the versions applicable here.

¶11 Subsection (A) applies only to “a person who is at least
eighteen years of age.” It requires that the defendant “be sentenced to life
imprisonment” with no possibility of release for thirty-five years.
Subsection (B), which applies to a broader set of crimes than subsection (A),
applies to “a person who is at least eighteen years of age or who has been tried
as an adult.” (emphasis added). Subsection (B) provides for a minimum
prison term of thirteen years, a presumptive term of twenty years, and a
maximum term of twenty-seven years. Subsection (B) also states that a
defendant “may be sentenced to life imprisonment” with no possibility of
release for thirty-five years. At sentencing, the trial court did not say
whether it was imposing the life sentences under subsection (A) or (B).

¶12 Subsection (D) imposes a presumptive 17-year sentence for
child molestation when the defendant was “eighteen years of age” or “tried
as an adult.” It also provides for a minimum sentence of ten years and a
maximum sentence of twenty-four years. Jerald’s 17-year sentences were
imposed as presumptive sentences under subsection (D).

II. Whether A.R.S. § 13-705 applies to Jerald’s offenses

¶13 Jerald argues that Section 13-705 does not apply. He argues
that for purposes of the statute, he was neither “eighteen years of age” nor
“tried as an adult.” He therefore argues that the proper sentencing scheme
was that applicable to first-time felony offenders, as set forth in A.R.S.
§ 13-702. Under that statute, the presumptive sentence for each offense was
five years. A.R.S. § 13-702(D).

¶14 In his opening brief, Jerald argues that he was not “at least
eighteen years of age.” The state agrees, though Jerald’s reply brief argues
a different position. Regardless, we agree with Jerald’s initial position and
the state that “at least eighteen years of age” refers to the defendant’s age
when the crime was committed. See State v. Cromwell, 211 Ariz. 181, ¶ 49
(2005) (concluding that defendant’s sentence was properly enhanced “on

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Opinion of the Court

express findings by the jury that the victim was a child under twelve years
of age and that [the defendant] was at least eighteen years of age at the time
of the crime.” (emphasis added)). Here, Jerald committed the crimes when
he was fifteen and sixteen years old. It follows that he was not subject to a
mandatory life sentence under subsection (A).

¶15 We focus, therefore, on whether Jerald was “tried as an adult”
under subsection (B). He asks us to construe “tried as an adult” as applying
only to juveniles whose cases are filed in adult criminal court under A.R.S.
§ 13-501. That statute addresses the extent to which the state may prosecute
“a juvenile in the same manner as an adult.” § 13-501(A), (B). For certain
crimes, including those at issue here, juveniles charged in adult criminal
court may petition for transfer to the juvenile court. §§ 13-501(B) (listing
crimes subject to possible transfer), 13-504(A) (providing for right to
transfer hearing). However, Section 13-501 does not address prosecution of
defendants who are eighteen years or older and are being charged for
crimes committed before they turned eighteen. Those defendants cannot
be charged in juvenile court and are required to be tried in adult criminal
court. See § 13-501(G) (juvenile court lacks jurisdiction over defendants
eighteen years of age or older). The state proposes, by contrast, that “tried
as an adult” applies to all defendants accused of committing crimes while
juveniles and who face prosecution in adult criminal court, regardless of
whether Section 13-501 applies.

¶16 In construing statutes, we must “determine the meaning of
the words the legislature chose to use,” consistent with “the plain meaning
of the words in their broader statutory context.” S. Az. Home Builders Ass’n
v. Town of Marana, 254 Ariz. 281, ¶ 31 (2023). Applying this approach, we
conclude that the state’s proposed construction better conforms to the
statutory language. By focusing on how the defendant was “tried,” the
statutory language looks to the nature and timing of the proceedings.
Where the proceedings were those applicable to “adult[s],” the defendant
was “tried as an adult,” despite having committed the crime while a
juvenile. Section 13-705(B) makes no reference to Section 13-501 or its
procedures. Adopting Jerald’s proposed construction would require
adding such a reference to statutory language that lacks it. We will not do
so. See Roberts v. State, 253 Ariz. 259, ¶ 20 (2022) (providing that “court will
not inflate, expand, stretch or extend a statute to matters not falling within
its expressed provisions”) (quoting City of Phx. v. Donofrio, 99 Ariz. 130, 133
(1965)).

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Opinion of the Court

¶17 The broader statutory context reinforces the state’s proposed
construction. That structure creates two classes of defendants for sexual
conduct with a minor under twelve: (1) those who were “at least eighteen
years of age” at the time of the crime and (2) those “tried as an adult.”
Under subsection (A), only the former class is subject to mandatory life
sentences. See also A.R.S. § 13-705(A) (2022) (adding classification of crimes
subject to natural-life sentence for defendants who are “at least eighteen
years of age”). Subsection (B) allows courts to sentence defendants in the
latter class to a discretionary life sentence or a sentence within the statutory
range. Thus, adopting the state’s construction would lead to the logical
result that defendants who offended as juveniles may be treated more
leniently than those who offended as adults, despite having committed the
same crime. For that same reason, we also reject Jerald’s argument that the
state’s proposed construction would render the phrase “at least eighteen
years of age” superfluous by subsuming it within the category of
defendants “tried as an adult.”

¶18 The state also correctly notes that Jerald’s interpretation
would “create a blind spot in the statute.” It would limit subsection (B)’s
discretionary life sentence to offenders who were prosecuted under Section
13-501, which applies only to defendants who are still juveniles. But
juvenile offenders who were not prosecuted until after turning eighteen
would receive comparatively lenient sentences under the first-time
offender statute. The statutory language reveals no basis for this disparate
treatment.

III. Jerald’s remaining statutory arguments

¶19 Jerald also appears to argue in the alternative that even if
Section 13-705 applies, the trial court erred by imposing a mandatory life
sentence under subsection (A). As we have noted, though, the court did
not identify the subsection it applied, and the sentence was authorized by
subsection (B). We therefore presume that the court correctly applied the
law at sentencing. See State v. Williams, 220 Ariz. 331, ¶ 9 (App. 2008).

¶20 Finally, Jerald argues that even if the trial court sentenced him
under subsection (B), it could not impose a life sentence unless an
aggravating factor had been found first. Jerald reasons that because a lower
sentencing range was available, the life sentence is equivalent to an
aggravated sentence. His argument has intuitive appeal. A.R.S. § 13-701(C)
requires the trier of fact to find an aggravating factor before sentencing a
defendant to a “maximum term” under Section 13-705. A life sentence is,
of course, the longest possible term.

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Opinion of the Court

¶21 Nevertheless, the statutory language does not support
Jerald’s argument. Section 13-705(B) does not define a life sentence as the
maximum term. Rather, it uses the term “maximum” only once, in
providing for the sentencing range that applies “[i]f a life sentence is not
imposed.” It defines the “maximum” term as twenty-seven years, so an
aggravating factor would be required for such a sentence. But Jerald was
sentenced under the portion of subsection (B) that provides for life
imprisonment, which the statute does not define as the “maximum.” It
follows that no aggravating factor was required. Moreover, Section
13-701(H) reinforces that the requirement of aggravating factors does not
apply to “any provision of law . . . that expressly provides for
imprisonment for life.”

¶22 This statutory interplay yields a strange result. It requires an
aggravating factor for a 27-year sentence, but not a life sentence. However,
even were we to agree with Jerald that this result is unfair, we will not
rewrite the statute simply to avoid that outcome. See City of Phx. v. Butler, 110 Ariz. 160, 162 (1973) (“[I]t is not the function of the courts to rewrite
statutes.”). Jerald also does not develop an argument that we should
construe the statute differently because the result is purportedly absurd.
See State v. Estrada, 201 Ariz. 247, ¶ 17 (2001) (“A result is ‘absurd’ if it is so
irrational, unnatural, or inconvenient that it cannot be supposed to have
been within the intention of persons with ordinary intelligence and
discretion.”). We therefore do not consider that issue. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (providing that failure to develop argument
and support it with authority can constitute abandonment and waiver). We
instead conclude that Jerald was properly sentenced under Section 13-
705(B).

EIGHTH AMENDMENT

¶23 Having concluded that the DCAC statute authorized Jerald’s
cumulative sentences of 208 years, we next address whether the sentences
violated the Eighth Amendment. The Eighth Amendment, which prohibits
“cruel and unusual punishments,” is applicable to the states through the
Fourteenth Amendment. U.S. Const. amend. VIII; Robinson v. California, 370
U.S. 660, 667 (1962). We review de novo whether Jerald’s sentences comply
with the Eighth Amendment. See State v. Allen, 253 Ariz. 306, ¶ 207 (2022).

I. Gross disproportionality

¶24 Jerald first argues that his cumulative sentences were grossly
disproportionate to the severity of his crimes. The Eighth Amendment

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Opinion of the Court

prohibits punishments that are grossly disproportionate to an offense. See
Graham v. Florida, 560 U.S. 48, 59 (2010) (“Embodied in the Constitution’s
ban on cruel and unusual punishments is the ‘precept of justice that
punishment for crime should be graduated and proportioned to [the]
offense.’”) (alteration in Graham) (quoting Weems v. United States, 217 U.S.
349, 367 (1910))). However, “strict proportionality between crime and
sentence” is not required and only “extreme sentences that are grossly
disproportionate to the crime” are forbidden. Id. at 60 (internal quotations
omitted) (quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01 (Kennedy,
J., concurring)). An offender’s age is relevant to the proportionality inquiry.
Id. at 77.

¶25 In conducting our Eighth Amendment proportionality
inquiry, we “carefully examine the facts of the case and the circumstances
of the offender to see whether the sentence is cruel and unusual.” State v.
Davis, 206 Ariz. 377, ¶ 34 (2003). We must first determine whether “there is
a threshold showing of gross disproportionality by comparing ‘the gravity
of the offense [and] the harshness of the penalty.’” State v. Berger, 212 Ariz.
473, ¶ 12 (2006) (quoting Ewing v. California, 538 U.S. 11, 28 (2003)). “If this
comparison leads to an inference of gross disproportionality, the court then
tests that inference by considering the sentences the state imposes on other
crimes and the sentences other states impose for the same crime.” Id. ¶ 12.

A. Cumulative or individual sentences

¶26 The first step in our gross-disproportionality inquiry is
determining whether we may consider Jerald’s cumulative sentences
together, or whether we must consider each sentence individually. We
generally “will not consider the imposition of consecutive sentences in a
proportionality inquiry.” Id. ¶ 27; see also State v. Soto-Fong, 250 Ariz. 1, ¶ 30
(2020) (“[G]enerally, courts do not permit defendants to ‘stack’ their crimes
to generate an Eighth Amendment claim.”). We instead review each
individual sentence. Id. However, in Davis, the Arizona Supreme Court
allowed for the consideration of cumulative sentences that are
“mandatorily lengthy, flat, and consecutive.” 206 Ariz. 377, ¶ 47. Berger
limited Davis by requiring us to view sentences individually when the
conduct was “at the core, not the periphery” of a criminal statute’s
prohibition and the defendant could not “be characterized as someone
merely ‘caught up’ in a statute’s broad sweep.” Berger, 212 Ariz. 473, ¶ 44.

¶27 Applying this framework, this court has considered lengthy
consecutive sentences in two recent cases involving sexual crimes
committed by juveniles. First was State v. Kleinman, 250 Ariz. 362 (App.

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Opinion of the Court

2020). There, the 20-year-old defendant had been twelve or thirteen years
old when he committed the offenses, which involved his five- and
six-year-old sister. Id. ¶¶ 2-3. The defendant’s father had been in prison
for sexual misconduct with another of the defendant’s sisters, and the
defendant said he “was just trying what dad did.” Id. ¶ 4. He was
sentenced to three mandatory, consecutive terms of thirteen years. Id. ¶ 7.
On appeal, the state conceded that the sentences were grossly
disproportionate. Id. ¶ 15. This court accepted that concession, in light of
the case’s unusual circumstances. Id. ¶¶ 15-16.

¶28 Next was State v. Agundez-Martinez, 254 Ariz. 452 (App. 2023),
which our supreme court partially vacated on other grounds. See State v.
Agundez-Martinez, 256 Ariz. 391, ¶ 34 (2024). That case involved an adult
defendant who received cumulative sentences of fifty-one years for offenses
he committed when he was between ten and twelve years old. 254 Ariz.
452, ¶¶ 1-3. This court again considered the sentences cumulatively
because they were mandatorily lengthy, flat, and consecutive. Id. ¶¶ 60-66.
The court also concluded that given the nature of the offenses and the
defendant’s extremely young age, the consecutive sentences were “so
severe as to shock the conscience of society.” Id. ¶ 64 (quoting Davis, 206
Ariz. 377, ¶ 49).

¶29 Like Kleinman and Agundez-Martinez, this case meets at least
some of Davis’s requirements. Jerald’s mandatory sentences were lengthy,
flat, and consecutive. Even if the trial court had imposed the minimum
sentence for each conviction, Jerald faced ninety-two years in prison. See
§§ 13-705(B) (minimum sentence of thirteen years for sexual conduct with
a minor under twelve), 13-705(D) (minimum sentence of ten years for child
molestation), 13-705(M) (requiring consecutive sentences). That would
exceed his life expectancy.

¶30 But as Berger explains, we cannot consider the consecutive
sentences where the offender’s conduct was at the core, rather than the
periphery, of the proscribed conduct. And here, Jerald’s conduct was at the
core. He repeatedly engaged in sexual conduct with children between six
and nine years old, significantly younger than he was at the time. He tore
E.S.’s vagina while penetrating it with his penis. And when E.S. told Jerald
that the sex was painful, he penetrated her vagina with a Sharpie. During
another incident, Jerald attempted to penetrate E.S.’s anus with his penis.
He also performed oral sex on G.S., who is autistic. These were violative,
cruel acts. The statutes criminalizing sexual conduct with a minor and
molestation of a child are targeted at this conduct. See A.R.S. §§ 13-1405,

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13-1410; see also State v. Florez, 241 Ariz. 121, ¶ 25 (App. 2016) (concluding
that “statutes addressing molestation and sexual conduct with a minor
advance the state’s goal of combating the sexual abuse,” thus rejecting
gross-disproportionality argument from adult defendant).

¶31 Even so, Jerald points to his age at the time of the offenses.
The defendants’ ages were important factors in Kleinman and
Agundez-Martinez. We understand those cases as having concluded that the
offenders’ young ages placed their conduct at the criminal statutes’
periphery. This understanding is consistent with Berger, which described
Davis as “at the edge of the statute’s broad sweep of criminal liability,”
given the defendant’s age and maturity level, as well as the willing
participation of the victims. Berger, 212 Ariz. 473, ¶ 41.

¶32 Here, by contrast, Jerald’s age does not bring his conduct
outside the statutes’ core. Unlike the defendants in Kleinman and
Agundez Martinez, who were younger than fourteen at the time of their
offenses, Jerald was fifteen and sixteen years old. That distinction has legal
significance. Section 13-501 allowed Jerald to be tried as an adult even had
he been arrested immediately. See A.R.S. § 13-501(B). The same was not
true of the Kleinman and Agundez-Martinez defendants. That Jerald could
be tried as an adult, albeit subjected to a more lenient sentencing scheme
under Section 13-705(B), suggests that the statutory scheme is targeted at
offenders like him. Unlike in Davis, he was not simply “caught up” in its
broad sweep. Also unlike Davis, Jerald’s very young victims had no
ability—legal or otherwise—to consent or willingly participate in the
conduct. Thus, despite Jerald’s age, we conclude that his conduct was at
the core of the conduct proscribed by statute. We therefore do not consider
the consecutive sentences in our gross-disproportionality review. We
instead analyze the sentences individually.

B. Gross disproportionality inquiry as applied to the
individual sentences

¶33 For the convictions of sexual conduct with a minor under
twelve years old, Jerald’s sentences of life with no possibility of release for
thirty-five years are severe. But the offenses were egregious, especially
given the victims’ ages relative to his own. See State v. Kasic, 228 Ariz. 228,
¶ 25 (App. 2011) (rejecting Eighth Amendment challenge to cumulative
sentence exceeding 17-year-old’s life expectancy where defendant
“intentionally set fire to numerous homes late at night or during the early
morning hours while the residents were inside sleeping”). Jerald also
behaved with deviousness and deception. He concealed his conduct from

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R.S., the victims’ mother, by secretly communicating with E.S. He also
encouraged E.S. to sneak out of the house at night to meet him in an
alleyway, and he committed the offenses when no one else was present.

¶34 Both the U.S. and Arizona Supreme Courts have rejected
Eighth Amendment challenges to similar sentences for repeat offenders
who committed crimes that were qualitatively less severe. See, e.g., Ewing
v. California, 538 U.S. 11, 28-31 (2003) (affirming life sentence for recidivist
offender convicted of stealing three golf clubs valued at $1,200); State v.
Jonas, 164 Ariz. 242, 248 (1990) (affirming 25-year sentence for recidivist
offender convicted of selling one marijuana cigarette to a 14-year-old for
one dollar).

¶35 In seeking a different outcome from those cases, Jerald points
primarily to his age at the time of the offenses. At oral argument, he further
argued that any DCAC sentence imposed on a defendant who offended as
a juvenile should give rise to an inference of gross disproportionality. We
see no basis for reaching such a far-reaching conclusion. Among other
things, such an approach would negate the provisions of Section 13-501 that
allow—and in certain cases require—juvenile offenders to be prosecuted as
adults.

¶36 Moreover, Jerald’s age alone does not give rise to an inference
of gross disproportionality. Jerald was older than the defendants in
Kleinman and Agundez-Martinez, and the age difference was greater. He also
acted more deceptively than those defendants. The opinion in Kleinman
makes no reference to deceit or concealment. Kleinman, 250 Ariz. 362, ¶ 2.
And in Agundez-Martinez, the only such conduct involved locking a door
on one occasion. Agundez-Martinez, 254 Ariz. 452, ¶ 4. Jerald’s secret
communications with E.S. and his efforts to lure her outside highlight a
comparatively devious manipulation of his victims. That behavior also
suggests that he was conscious of his actions’ wrongfulness. These
distinctions with Kleinman and Agundez-Martinez reinforce that punishing
Jerald as an adult is not grossly disproportionate to his greater culpability.

¶37 In addition, Jerald points to evidence he presented in
mitigation that he had been physically and sexually abused as a child. He
also suffered from mental-health problems that were significant enough for
him to be declared incompetent to stand trial for eighteen months. And as
he emphasized at oral argument, a psychosexual evaluation concluded that
he was not at the highest risk of reoffending. We assume without deciding
that we may consider this type of mitigation in the gross-disproportionality
inquiry. However, we may do so only to the extent that the evidence

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“go[es] to the defendant’s degree of culpability for the offense.” Berger, 212
Ariz. 473, ¶¶ 47-48 (rejecting argument that defendants are generally
entitled to present “mitigation evidence” on disproportionality).

¶38 We do not conclude that this evidence gives rise to an
inference of gross disproportionality. As an initial matter, we must “accord
substantial deference to the legislature and its policy judgments as reflected
in statutorily mandated sentences.” Berger, 212 Ariz. 473, ¶ 13. And as we
have explained, Jerald’s life sentences were authorized by a comprehensive
statutory scheme that gave the trial court discretion to sentence him more
leniently because he committed the crimes as a juvenile.

¶39 Moreover, the trial court was presented in mitigation with the
same evidence that Jerald refers to here. That court was in the best position
to weigh that evidence. See State v. Carbajal, 177 Ariz. 461, 463 (App. 1994)
(‘The trial court is in the best position to determine the evidence
surrounding the aggravating and mitigating factors and which factors
should be given credence.”). And it chose to impose life sentences for the
sexual-conduct convictions and presumptive sentences for the
child-molestation convictions. It was not required to do so, despite Jerald’s
arguments to the contrary.

¶40 Indeed, the trial court’s ability to consider evidence of Jerald’s
background in mitigation was broader than ours in evaluating gross
disproportionality. Rather than focusing solely on culpability, as Berger
requires, the court could consider in mitigation any “factor that is relevant
to the defendant’s character or background or to the nature or
circumstances of the crime.” A.R.S. § 13-701(E)(6). We therefore conclude
that in our gross-disproportionality analysis, we should defer to the court’s
weighing of the mitigation evidence. See State v. Harvey, 193 Ariz. 472, ¶ 24
(1998). We see no basis for second-guessing its conclusion.

¶41 As for Jerald’s 17-year sentences for child molestation, our
analysis is similar. Those crimes were also egregious, though the shorter
terms reflect the legislature’s policy judgment that they were less serious
than Jerald’s other crimes. As with those crimes, his age and other
mitigation do not justify concluding that the sentence was grossly
disproportionate. We therefore conclude that Jerald’s sentences do not give
rise to an inference of gross disproportionality. We need not undertake the
next step of the Eighth Amendment analysis—an inter-jurisdictional and
intra-jurisdictional review. See id. ¶¶ 24-36.

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II. Constitutionality of de facto life sentence for juvenile offenders

¶42 Jerald also argues that a de facto life sentence for juveniles
necessarily violates the Eighth Amendment. However, our supreme court
rejected this argument in State v. Soto-Fong, 250 Ariz. 1, ¶ 31 (2020). We are
“bound by decisions of the Arizona Supreme Court and [have] no authority
to overturn or refuse to follow its decisions.” State v. McPherson, 228 Ariz.
557, ¶ 13 (App. 2012).

¶43 We must also reject Jerald’s argument that Soto-Fong
“completely ignored the U.S. Supreme Court’s basic moral reasoning”
arising from a line of cases beginning with Roper v. Simmons, 543 U.S. 551,
568 (2005). Roper held that the Eighth Amendment prohibits death
sentences for juvenile offenders. While we are “bound to follow applicable
holdings of United States Supreme Court decisions,” we are not so bound
by “mere dicta or other statements that allegedly bear on issues neither
presented nor decided in such decisions.” Soto-Fong, 250 Ariz. 1, ¶ 32.

¶44 We similarly reject Jerald’s argument that Graham v. Florida, 560 U.S. 48 (2010), another in the Roper line of cases, renders Berger
ineffectual as to juveniles. Graham prohibits life-without-parole sentences
for juvenile offenders who did not commit homicide. 560 U.S. at 82. But
here, Jerald was not sentenced to life without the possibility of parole or
release. He instead received “aggregated sentences for multiple crimes,”
which our supreme court in Soto-Fong concluded was unaffected by
Graham. Soto-Fong, 250 Ariz. 1, ¶ 27.

¶45 Finally, we reject Jerald’s argument that Soto-Fong “squarely
contradicts” the Ninth Circuit case of Moore v. Biter, 725 F.3d 1184 (9th Cir.
2013). We are not bound by the decisions of the Ninth Circuit. Skydive Ariz.,
Inc. v. Hogue, 238 Ariz. 357, ¶ 29 (App. 2015). But we are bound by
Soto-Fong.

EQUAL PROTECTION

¶46 Jerald also argues that his prosecution and sentences violated
his right to equal protection under the United States Constitution.
Specifically, he argues that the application of Section 13-705 violates the
Equal Protection Clause of the Fourteenth Amendment because (1) it
“mandate[d] that [he would] be subject to enhanced sentencing guidelines
for adults despite the fact that he offended as a juvenile,” and (2) did not
allow him to receive “consideration for juvenile adjudication and treatment
that others who committed the same offense at the same age would be

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Opinion of the Court

entitled to.” Neither party has identified any Arizona case addressing this
issue, making it one of first impression. We review equal-protection
challenges de novo. State v. Arevalo, 249 Ariz. 370, ¶ 9 (2020).

¶47 The Equal Protection Clause prohibits a state from “deny[ing]
to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. It is designed to secure equal treatment and
application of the law for those who are similarly situated. Martin v.
Reinstein, 195 Ariz. 293, ¶ 49 (App. 1999). Generally, when the law draws a
distinction or classification among similarly situated individuals, we
review that classification for a rational basis to determine whether it is
“predicated on some reasonable basis which will promote a legitimate
purpose of legislation.” Id. ¶ 50 (quoting Chevron Chemical Co. v. Superior
Court, 131 Ariz. 431, 441 (1982)). However, if the classification limits the
exercise of a fundamental right or affects a suspect class, we apply strict
scrutiny and uphold the classification only if it is necessary to further a
compelling state interest. See State v. Nguyen, 185 Ariz. 151, 153 (App. 1996);
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

¶48 Jerald argues that he is entitled to equal-protection review
because he is in a “particular class of juveniles” who committed offenses as
juveniles but were not charged until after turning eighteen. He was treated
differently from those offenders, he argues, because, unlike them, he was
ineligible for adjudication in juvenile court or for treatment available to
juvenile offenders. See A.R.S. §§ 8-202(G), (H) (providing that
juvenile-court jurisdiction is retained “until the child becomes eighteen
years of age,” unless terminated earlier, though court may retain
jurisdiction until juvenile’s nineteenth birthday under limited
circumstances); 41-2820(A) (requiring juvenile to be discharged from
jurisdiction of Department of Juvenile Corrections upon “attaining eighteen
years of age,” unless juvenile court retained jurisdiction until nineteenth
birthday). We assume without deciding that this classification implicates
the Equal Protection Clause. We must therefore determine which level of
scrutiny to apply.

¶49 In arguing for strict scrutiny, Jerald does not purport to be a
member of a suspect class. He instead argues that strict scrutiny applies
because Sections 13-501, 13-504, and 13-705 limit the exercise of his
fundamental rights to life and liberty. He points to the fact that he will die
in prison while serving his 208-year sentences. However, the U.S. Supreme
Court concluded in Chapman v. U.S., 500 U.S. 453, 465 (1991), that
criminal-sentencing statutes do not generally limit the exercise of

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Opinion of the Court

fundamental rights. Chapman explained, “Every person has a fundamental
right to liberty in the sense that the Government may not punish him unless
and until it proves guilt beyond a reasonable doubt at a criminal trial.”
Chapman, 500 U.S. at 465. It added that once “a person . . . has been so
convicted . . . the court may impose, whatever punishment is authorized by
statute” provided that the punishment is not cruel and unusual or based on
an arbitrary distinction that would violate due process. Id. at 465; see also
Nguyen, 185 Ariz. at 153 (concluding that defendant’s prison sentence did
not implicate fundamental right). We therefore reject Jerald’s argument
concerning his fundamental rights to life and liberty.

¶50 Jerald also argues that he has a fundamental right under the
Equal Protection Clause to have his juvenile status at the time of his offenses
considered at trial. He primarily relies on the Graham line of cases.
However, as we have explained, those cases involve the Eighth
Amendment. They do not implicate equal protection. Regardless, here the
trial court was not precluded from considering that Jerald committed the
offenses as a juvenile. As we have explained, Jerald was subjected to a
discretionary life sentence, not a mandatory one, because he committed his
crimes as a juvenile. The court also had the discretion to consider Jerald’s
age as mitigation. A.R.S. § 13-701(E)(1).

¶51 Having concluded that strict scrutiny does not apply, we
review Jerald’s equal-protection argument for a rational basis. Jerald
argues that as applied here, the statutory scheme lacks a rational basis
because it requires a lengthy sentence with no potential to transfer the case
to juvenile court, simply because he was not prosecuted until he became an
adult. In conducting our rational-basis review, we consider if the statutes
are rationally related to a legitimate government purpose. See State v.
Coleman, 241 Ariz. 190, ¶ 9 (2016).

¶52 As to whether the state has a rational basis in precluding
defendants like Jerald from seeking transfer to juvenile court under Sections
13-501 and 13-504, states generally do not violate equal protection by
treating juveniles differently from adults in criminal cases. In re Miguel R.,
204 Ariz. 328, ¶ 34 (App. 2003). Unlike sentences in criminal prosecutions,
dispositions in delinquency proceedings are designed primarily to
rehabilitate. Id. ¶ 36; see also A.R.S. §§ 13-101 (including as purposes of
criminal code “[t]o insure public safety by preventing the commission of
offenses through the deterrent influence of the sentences authorized” and
“[t]o impose just and deserved punishment on those whose conduct
threatens the public peace”); 41-2815(A) (requiring Department of Juvenile

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Opinion of the Court

Corrections to develop “individual treatment plan” for every “committed
youth” under its jurisdiction). They ensure individualized justice given the
state’s role in protecting the juvenile’s best interest through its role as parens
patriae. In re Miguel R., 204 Ariz. 328, ¶ 35; see also McBeth v. Rose, 111 Ariz.
399, 402 (1975) (providing that juvenile-justice provisions of Arizona law
are primarily designed to provide treatment for minors).

¶53 Not all of those purposes can be served once a defendant
turns eighteen and ceases to be under the juvenile court’s jurisdiction. For
example, when considering a transfer to juvenile court under A.R.S.
§ 13-504, a court must determine “whether public safety and the juvenile’s
rehabilitation, if adjudicated delinquent, would be served by the transfer,”
taking into account “[t]he likelihood of the juvenile’s reasonable
rehabilitation through the use of services and facilities that are currently
available to the juvenile court.” Neither the services nor the facilities
available to the juvenile court for rehabilitation are available to an adult
defendant. See § 13-501(G).

¶54 As to whether applying Section 13-705 to Jerald has a rational
basis, that statute furthers the legitimate purposes of protecting children
from sexual predators and punishing those who commit sex crimes against
children. A criminal act is the same regardless of the age of the offender.
State v. Melvern, 192 Ariz. 154, ¶ 5 (App. 1998). Although the punishments
imposed under Section 13-705 are severe, they reflect a rational legislative
judgment that is entitled to substantial deference. See Berger, 212 Ariz. 473,
¶ 14. The potential harm to society does not “depend on the potential
punishment for the underlying crime, but on the defendant’s acts, which
are the same whether the underlying crime is punishable as a juvenile’s
delinquent act or a felony.” Melvern, 192 Ariz. 154, ¶ 5. The legislature
therefore has a rational basis for differentiating the sentences imposed on
offenders based upon “the offender’s status at the time the proceedings are
initiated and not on the nature of the act.” Agundez-Martinez, 256 Ariz. 391,
¶ 28.

¶55 Moreover, allowing defendants who committed serious
crimes as juveniles to be prosecuted as adults fulfills the voters’ stated
purposes in adopting the 1996 Juvenile Justice Initiative. See id. ¶¶ 1, 17.
Among those purposes was “to ensure fairness and accountability when
juveniles engage in unlawful conduct.” Ariz. Const. art. IV pt. 2 § 22; see
also State v. Davolt, 207 Ariz. 191, ¶ 100 (2004) (“The stated intent of [the
Juvenile Justice Initiative] was to make possible more effective and more
severe responses to juvenile crime.”). That is a legitimate purpose, as

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Opinion of the Court

expressed by the voters. Treating sexual offenses such as Jerald’s under
Section 13-705 fulfills that purpose. See Agundez-Martinez, 256 Ariz. 391
¶¶ 3, 33 (affirming adult prosecution of offender who, while a juvenile,
committed sexual conduct with a minor and child molestation). We
therefore reject Jerald’s equal-protection argument.

DUE PROCESS

¶56 Jerald also argues that his prosecution and sentence violated
the Fourteenth Amendment’s Due Process Clause. He claims that his
treatment was “fundamentally unfair” because he was tried and sentenced
as an adult without any consideration of his juvenile status at the time of
his offenses. His lengthy cumulative sentences, he asserts, are “draconian”
and “shock the conscience.” He contends that he was entitled to a
“substantive right to the same reduced punishment that others who
offended as minors would receive.” We review this issue de novo. Arevalo,
249 Ariz. 370, ¶ 9.

¶57 Contrary to Jerald’s argument, though, the criminal
consequences of a defendant’s actions do not violate due process simply
because they are “‘fundamentally unfair’ in any way.” To the extent our
case law looks to a trial’s fundamental fairness, it does so in the context of
procedural matters, not the fact of the prosecution or the sentence. See, e.g.,
State v. Bush, 244 Ariz. 575, ¶ 11 (2018) (addressing whether pretrial
publicity was “so pervasive that it caused the proceedings to be
fundamentally unfair”); State v. Guarino, 238 Ariz. 437 ¶ 15 (2015) (stating
that victim-impact and related evidence can be excluded at penalty phase
where that evidence “is so unduly prejudicial that it renders the trial
fundamentally unfair”). As this court has explained, “Due process requires
a meaningful opportunity to be heard only when a person may be deprived
of life, liberty, or property.” Andrews v. Willrich, 200 Ariz. 533, ¶ 23 (App.
2001). It is not implicated by the statutory scheme providing for juveniles
to be prosecuted as adults in some cases. Id. This is especially true as
juveniles possess no constitutional right to an adjudication in juvenile court.
Id. (citing Ariz. Const. art. IV, pt. 2, § 22).

¶58 At least one other court has rejected the argument that a life
sentence imposed upon a juvenile “violates basic due process principles of
fundamental fairness.” State v. Warren, 887 N.E.2d 1145, 1150-52 (Ohio
2008). That case involved a defendant who had committed repeated
forcible rape when he was fifteen years old, but who was not prosecuted
until after reaching adulthood. Id. at 1145. In concluding that the
mandatory life sentence did not violate due process, the Ohio Supreme

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Opinion of the Court

Court reasoned that when the defendant committed the crimes, the
statutory scheme placed him on notice “that the offense[s] he allegedly
committed could subject him to criminal prosecution as an adult.” Id. at
1154. In part for the same reason, the court rejected the argument that the
defendant was arbitrarily subject to an increased sentence simply due to the
victim’s delay in reporting his crimes or the state’s delay in prosecuting
him. Id. at 1154-55.

¶59 We find Warren’s analysis persuasive. Similar to that case, the
“tried as an adult” language in Section 13-705(B) placed Jerald on notice
that he could be subject to sentencing under the DCAC statute. Moreover,
Jerald has presented no argument—nor does the record suggest—that the
state intentionally delayed his prosecution to deprive him of the ability to
move for transfer to the juvenile court. The state acknowledged at oral
argument that such a delay would have violated due process. But with no
such delay here, we reject Jerald’s due-process argument.

TRIAL ISSUES

¶60 Aside from the sentencing issues, Jerald asserts that the trial
court committed two other errors: (1) refusing to admit data from the
Facebook Messenger application that showed his location; and (2) denying
his motion for a mistrial based on unprompted testimony from G.S. about
uncharged conduct by Jerald.

I. Facebook location data

¶61 We first address Jerald’s argument concerning the Facebook
location data. Jerald identified the Facebook location data twelve days
before trial, when he filed a notice of disclosure stating that he intended to
use “Google and Facebook GPS Information.” The trial court precluded
this material on grounds of untimeliness and unfair prejudice. Jerald
challenges this decision, as well as the denial of his motion for a new trial
on the same grounds.

¶62 We review a court’s decision to exclude evidence for an abuse
of discretion. State v. Smith, 250 Ariz. 69, ¶ 76 (2020). Similarly, we review
a court’s sanction for an untimely disclosure for an abuse of discretion.
State v. Ramos, 239 Ariz. 501, ¶ 7 (App. 2016).

¶63 However, we need not address whether the trial court erred,
because any potential error was harmless. See State v. Morris, 215 Ariz. 324,
¶ 44 (2007) (“An error is harmless if it appears ‘beyond a reasonable doubt

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 STATE v. JERALD
Opinion of the Court

that the error . . . did not contribute to the verdict obtained.’” (quoting State
v. Dann, 205 Ariz. 557, ¶ 18 (2003))). Jerald’s argument in support of the
location data’s relevance rests on E.S.’s testimony that he had once used a
“texting app” to lure her to the alleyway where he committed the crimes.
Jerald argues that the location data would have shown that he was never in
the alleyway during the alleged period.

¶64 However, the Facebook location data would have provided
Jerald’s location only when he logged in or was using the application. No
trial evidence indicated that Jerald had communicated with E.S. using
Facebook Messenger. Rather, Jerald had used a different application,
Wickr, to communicate with E.S. As a result, the location data’s probative
value was minimal and would not have affected the jury’s verdict. For the
same reason, we conclude that the trial court did not err in denying Jerald’s
motion for a new trial on that basis.

II. Motion for mistrial

¶65 The motion for mistrial concerned G.S.’s unprompted
testimony that Jerald had forced G.S. to perform oral sex. We review a
decision on a motion for mistrial for an abuse of discretion. State v. Nelson, 229 Ariz. 180, ¶ 36 (2012).

¶66 The sexual-conduct-with-a-minor charges related to Jerald
performing oral sex on G.S. Before Jerald’s first trial, which ended in a
mistrial, Jerald moved to preclude testimony that G.S. had performed oral
sex on him. The trial court granted the motion. At the retrial, the state said
it intended to avoid questioning G.S. about the issue.

¶67 During the prosecutor’s direct examination of G.S. at Jerald’s
second trial, the following exchange took place:

Q. Okay. When you were in the bedroom, did
you have clothes on?

A. Yes, I did.

Q. And did he have clothes on?

A. Yes.

Q. What happened when – what happened to
your clothes when he sucked on your penis or
your dick?

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 STATE v. JERALD
Opinion of the Court

A. Well, nothing much. He just told me to take
off my underwear and my pants, and that’s
where he started sucking my dick. And he made
me suck his, too. (Emphasis added).

Jerald objected and moved for a mistrial. The state responded that it had
been very careful to ask G.S. direct and leading questions to avoid that
allegation but that G.S. had “just blurted that part out.” The trial court
found that the remark did not require a mistrial. Jerald declined a curative
instruction offered by the court out of concern that it would draw attention
to the remark. The state did not further question G.S. about the issue or
raise it in closing.

¶68 “When unsolicited prejudicial testimony has been admitted,
the trial court must decide whether the remarks call attention to
information that the jurors would not be justified in considering for their
verdict, and whether the jurors in a particular case were influenced by the
remarks.” State v. Jones, 197 Ariz. 290, ¶ 32 (2000). The trial court has broad
discretion to grant or deny a mistrial, because it “is in the best position to
determine whether the evidence will actually affect the outcome of the
trial.” Id.

¶69 Declaring a mistrial is “the most dramatic remedy” available
to the trial court and should only be granted “when it appears that justice
will be thwarted unless the jury is discharged.” State v. Dann, 205 Ariz. 557,
¶ 43 (2003) (quoting State v. Adamson, 136 Ariz. 250, 262 (1983)). In this case,
the prejudicial remark was brief, unsolicited, and never mentioned again.
Given the record before us, we cannot conclude that the trial court abused
its discretion in denying Jerald’s motion for a mistrial, especially given that
Jerald declined the more modest remedy of a curative instruction.

DISPOSITION

¶70 We affirm Jerald’s convictions and sentences.

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