State of Arizona v. Brian Matthew MacHardy

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

BRIAN MATTHEW MACHARDY,
Appellant.

No. 2 CA-CR 2021-0021
Filed November 10, 2022

Appeal from the Superior Court in Pima County
No. CR20193847001
The Honorable Kimberly H. Ortiz, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Jacob R. Lines, Assistant Attorney General, Tucson
Counsel for Appellee

Apfel Law Group, Phoenix
By Seth Apfel
Counsel for Appellant
 STATE v. MACHARDY
Opinion of the Court

OPINION

Chief Judge Vásquez authored the opinion of the Court, in which Judge
Staring concurred and Presiding Judge Eckerstrom concurred in part and
dissented in part.

V Á S Q U E Z, Chief Judge:

¶1 Brian MacHardy appeals his convictions and sentences for
nine counts of sexual exploitation of a minor. He argues law enforcement
illegally searched his computer, the trial court erred by denying his motion
to suppress, and the state failed to present sufficient evidence that actual
minors were depicted in the materials he possessed. He also contends the
court improperly enhanced his sentences and challenges the sufficiency of
his waiver of a jury trial. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the
jury’s verdicts. See State v. Brock, 248 Ariz. 583, ¶ 3 (App. 2020). In August
2019, MacHardy was indicted on nine counts of sexual exploitation of a
minor, each a dangerous crime against children. The indictment alleged
that between May 2017 and April 2018, MacHardy had knowingly
downloaded, possessed, or electronically transmitted visual depictions of a
minor under the age of fifteen engaged in an exploitative sexual act, a class
two felony under A.R.S. § 13-3553(A)(2), (C).

¶3 After a bench trial, MacHardy was convicted as charged. The
trial court sentenced him to nine ten-year terms of imprisonment, with all
counts running consecutively, as required by A.R.S. § 13-705(N). This
timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A)(1).

Warrantless “Search” of MacHardy’s Files

¶4 In September 2017, Dan Barry, a detective in the Internet
Crimes Against Children section of the Tucson Police Department, used
software to monitor the unlawful transfer of previously identified child
sexual abuse files over BitTorrent, a peer-to-peer file sharing network. The
software identified thirty-one suspicious videos and partial videos
originating from a single internet protocol (IP) address for which

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Opinion of the Court

MacHardy was the subscriber. The subsequent search of MacHardy’s
residence, conducted pursuant to a search warrant, and police interview
with MacHardy led to his indictment.

¶5 At the hearing on MacHardy’s motion to suppress, Detective
Barry, the only digital forensic analyst who testified regarding the
investigative software, offered testimony that was ambiguous as to whether
the software searched MacHardy’s entire computer or was restricted to
searching only files MacHardy had shared on BitTorrent. Perhaps as a
result, the trial court did not make a clear finding regarding what the
software had searched.

¶6 MacHardy argues, for the first time on appeal, that officers
violated his right to privacy as protected by the Fourth Amendment to the
United States Constitution and article II, § 8 of the Arizona Constitution
when they operated the software “not available to the general public to
conduct a warrantless search of [his] computer” that identified him as
possessing sexually exploitative files. Specifically, he argues the software
conducted a search of his entire “computer,” rather than only files he
affirmatively shared on BitTorrent. And because the search of his computer
was “accomplished using technology not available to the general public,”
he contends Kyllo v. United States, 533 U.S. 27 (2001), controls the issue.1
Because MacHardy did not raise this issue with the trial court, we review
only for fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, ¶ 12
(2018).

¶7 If, as MacHardy argues, the software searched the entire
contents of his computer, rather than just the files located in a shared folder,
such a search would arguably require a warrant under our state and federal
constitutions. See Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018)
(privacy expectation extends beyond physical movements and
encompasses record of those movements as captured through cell-site
location information); Minnesota v. Olson, 495 U.S. 91, 95-96 (1990)
(subjective privacy expectation legitimate if society prepared to recognize
expectation as reasonable); State v. Ault, 150 Ariz. 459, 466 (1986) (Arizona’s
constitution is “specific in preserving the sanctity of homes and in creating

1In Kyllo, the Supreme Court determined that the warrantless use of
“sense-enhancing technology” to gather “any information regarding the
interior of the home that could not otherwise have been obtained without
physical” intrusion into a home constituted a search, “at least where . . . the
technology in question is not in general public use.” 533 U.S. at 34.

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Opinion of the Court

a right of privacy.”). However, as MacHardy concedes, warrantless
searches into content shared on peer-to-peer networks are constitutionally
permissible because “by knowingly using a file sharing network,” users
maintain “no reasonable expectation of privacy in the files accessible on that
network.” State v. Welch, 236 Ariz. 308, ¶¶ 9-11 (App. 2014); see also State v.
Mixton, 250 Ariz. 282, ¶ 14 (2021) (IP address and internet service provider
subscriber information voluntarily disclosed to third parties have “no
expectation of privacy”); see also United States v. Ganoe, 538 F.3d 1117, 1127
(9th Cir. 2008) (individual’s reasonable expectation of privacy in personal
computer does not survive “decision to install and use file-sharing
software” when user “explicitly warned before completing the installation
that the folder into which files are downloaded would be shared with other
users in the peer-to-peer network”).

¶8 Here, because MacHardy failed to object or otherwise clarify
the extent of the investigative software’s reach, the record before us is
inconclusive and inadequately developed on this central factual issue.
Thus, MacHardy has not satisfied the first step in fundamental error
analysis—demonstrating that trial error occurred. See State v. Henderson,
210 Ariz. 561, ¶¶ 19-20 (2005); Escalante, 245 Ariz. 135, ¶ 13. It is not our
role as a reviewing court to make factual findings. See State v. Klos, 248 Ariz.
40, ¶ 10 (App. 2019). We therefore conclude MacHardy has failed to meet
his burden under Escalante and Henderson to establish fundamental error.

Warrantless In-Home Arrest

¶9 MacHardy also argues the trial court erroneously declined to
suppress statements he made during an interview following what he
characterizes as a warrantless arrest inside his home in April 2018. On the
morning of MacHardy’s arrest, the United States Marshals Service served a
search warrant on MacHardy’s residence. They detained MacHardy,
“placed him in handcuffs, and removed him from the second-floor
apartment.” Detective Barry testified this was “normal practice for officer
safety during executions of search warrants.” While the Marshals
“secured” the residence, MacHardy “remained handcuffed and detained at
the first-floor landing of the stairwell away from the apartment.” When
Detective Barry asked if he was willing to talk, MacHardy agreed.
Detective Barry took him to a police vehicle—a reformatted city bus—with
an enclosed interview area equipped with a padded bench and a table and
read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
MacHardy sat there, still handcuffed, for the duration of the interview,
which lasted less than an hour. During the interview, MacHardy made

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several incriminating statements, including admitting to possessing images
and videos of “prepubescent” children engaged in sexual acts with adults.

¶10 MacHardy moved to suppress these statements, but he
specifically noted that the initial in-home detention was “perfectly valid”
and did not transform into an illegal arrest until sometime after he was
removed from his residence. On appeal, MacHardy notes “the trial court’s
ruling is unclear as to precisely when arrest occurred, finding only that [he]
was under arrest at the time he provided his statement” on the bus. He also
argues the arrest lacked probable cause and illegally occurred “inside his
home,” where the Marshals had “handcuffed him and forcibly removed
him, taking him down the stairs from his apartment to another area, where
he remained handcuffed and detained.” Although parties’ arguments may
evolve, to some extent, on appeal, see Yee v. City of Escondido, 503 U.S. 519,
534 (1992), MacHardy’s argument that the initial detention was improper
because it constituted an arrest inside his apartment directly contradicts the
position he took before the trial court. As a result, the factual predicate for
his argument on appeal that the detention inside his apartment was
improper was not developed. Therefore, that component of MacHardy’s
argument is forfeited, and we address it only for fundamental, prejudicial
error. See Escalante, 245 Ariz. 135, ¶ 12; Henderson, 210 Ariz. 561, ¶ 19.

¶11 “Whether a probable cause determination comports with the
Fourth Amendment is a mixed question of law and fact that we review de
novo.” State v. Morris, 246 Ariz. 154, ¶ 10 (App. 2019). However, we defer
to the trial court’s factual findings, “including whether witnesses were
credible and whether the inferences drawn by a police officer were
reasonable.” Id.

¶12 MacHardy has shown no error. Probable cause for a
warrantless arrest exists if “the facts and circumstances within the
knowledge of the arresting officer at the time were sufficient to warrant a
man [or woman] of reasonable caution to believe that a felony had been
committed by the person arrested.” State v. Edwards, 111 Ariz. 357, 360
(1974); see also A.R.S. § 13-3883(A)(1). This standard is one of probability or
substantial likelihood, not certainty, and “depends on the totality of the
circumstances.” State v. Sisco, 239 Ariz. 532, ¶ 8 (2016); Morris, 246 Ariz. 154,
¶ 9 (“Probable cause is something less than the proof needed to convict and
something more than suspicions.” (quoting State v. Aleman, 210 Ariz. 232,
¶ 15 (App. 2005))).

¶13 As the trial court reasoned, by the time police had obtained a
search warrant for MacHardy’s residence, they knew that an IP address

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Opinion of the Court

tethered to MacHardy’s subscriber information had accessed illegal child
sexual abuse materials seven months before the arrest, that MacHardy lived
alone, and that no open wireless networks existed near his apartment.
These facts provided probable cause to believe a crime had been committed
and that MacHardy had committed it. See Edwards, 111 Ariz. at 360. We
further agree with the trial court that police did not require proof beyond a
reasonable doubt that MacHardy’s conduct was knowing—an element of
the offense of sexual exploitation of a minor, see § 13-3553(A)—to meet the
probable cause standard. See, e.g., Brinegar v. United States, 338 U.S. 160, 175
(1949) (standard of proof necessary to establish probable cause “‘means less
than evidence which would justify’ . . . conviction” (quoting Locke v. United
States, 11 U.S. 339, 344 (1813))). Rather, as the court noted, sufficient intent
could be inferred “by the number of partial videos—31—that were single
source downloaded over nearly 7 hours.”

¶14 For the first time on appeal, MacHardy argues that, even if
probable cause supported his arrest, it was still illegal because officers
arrested him inside his apartment without an arrest warrant. He contends
his inculpatory statements should therefore have been suppressed as
improperly obtained. In support of this argument, MacHardy cites only
Ault, 150 Ariz. 459. That case concluded that the seizure of incriminating
evidence was unlawful because it had been obtained through officers’
warrantless entry into a suspect’s home and subsequent warrantless arrest
of that suspect. Id. at 463-64. MacHardy correctly notes that our state
constitution may provide a heightened standard of privacy as compared
with our federal constitution, “at least in the context of physical intrusions
into a home.” State v. Hausner, 230 Ariz. 60, ¶ 41 (2012).

¶15 But here, unlike the facts in Ault, officers possessed a valid
warrant for the search of MacHardy’s home in the first instance—a
non-trivial distinction in the context of case precedent focused on home
privacy. And, as MacHardy acknowledged at the suppression hearing,
officers do not violate the United States Constitution by detaining the
occupant of a residence to execute a valid search warrant. Michigan v.
Summers, 452 U.S. 692, 705 (1981); see also Bailey v. United States, 568 U.S. 186,
199-201 (2013) (reiterating permissibility of “detention of occupants on the
premises during the execution of a search warrant,” so long as detention
limited “to the immediate vicinity of a premises to be searched” (emphasis
added)). This is a principle our Arizona courts have affirmed—even when
police lack probable cause to arrest a suspect at the time of the initial
detention. See State v. Miller, 186 Ariz. 314, 320 (1996) (“issuance of the
search warrant authorized” police to detain suspect “while the warrant was
being executed,” even without probable cause).

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Opinion of the Court

¶16 Moreover, we are unconvinced that MacHardy’s detention
evolved into an illegal arrest. As the trial court reasoned, MacHardy was
under arrest by the time he sat in the police bus and made statements to
Detective Barry. See State v. Winegar, 147 Ariz. 440, 447-48 (1985) (“arrest is
complete when the suspect’s liberty of movement is interrupted and
restricted by the police,” which “turns upon an evaluation of all the
surrounding circumstances to determine whether a reasonable person,
innocent of any crime, would reasonably believe” he or she was being
arrested). However, police had probable cause to arrest MacHardy by that
time. In fact, based on facts supporting the search warrant discussed above,
police had probable cause to arrest MacHardy at the time they initially
detained him, given that they learned no new facts to further support
probable cause between that detention and the bus interview. To the extent
Ault informs this issue, it suggests in the context of a home, the Arizona
Constitution is more protective of privacy interests than the United States
Constitution. MacHardy has not explained why that case, or the more
specific privacy language of the Arizona Constitution, also requires
elevated protection for a person’s liberty interests upon arrest and
detention. Nor has MacHardy explained how a valid detention pursuant
to issuance of a search warrant becomes an illegal arrest merely because the
detention eventually leads to arrest. Thus, we conclude that MacHardy has
not established any error, much less fundamental error, in the court’s
admission of his statements made following his detention and arrest.

Voluntariness of Jury Trial Waiver

¶17 In March 2020, MacHardy’s jury trial set for the following
month was vacated due to the statewide emergency caused by “the spread
of COVID-19 in the general population.” Two months later, the parties filed
a trial memorandum confirming their agreement to a bench trial. On
appeal, MacHardy argues his jury trial waiver “was insufficient because the
trial court failed to assess whether that waiver was voluntary, thereby
committing structural error.” We review a trial court’s determination
regarding a defendant’s waiver of a jury trial for an abuse of discretion.
State v. Muhammad, 253 Ariz. 371, ¶ 21 (2022). Whether waiver was
voluntary depends on “the unique circumstances of each case.” State v.
Butrick, 113 Ariz. 563, 566 (1976). We defer to the trial court’s factual
findings that are supported by the record and not clearly erroneous, State v.
Moore, 222 Ariz. 1, ¶ 17 (2009), and we “presume that a court is aware of the
relevant law and applies it correctly in arriving at its rulings,” State v.
Moody, 208 Ariz. 424, ¶ 53 (2004).

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Opinion of the Court

¶18 The right to a jury trial is protected by both the United States
Constitution and the Arizona Constitution. U.S. Const. amend. VI; Ariz.
Const. art. II, §§ 23, 24; id. art. VI, § 17. Under our criminal rules, a
defendant’s waiver of that right “must be in writing or on the record in open
court.” Ariz. R. Crim. P. 18.1(b)(3); accord Ariz. R. Crim. P. 41, Form 20
(“Waiver of Trial by Jury (Non-Capital)”). And the trial court “must
address the defendant personally, inform the defendant of the defendant’s
right to a jury trial, and determine that the defendant’s waiver is knowing,
voluntary, and intelligent.” Ariz. R. Crim. P. 18.1(b)(2); see also State v. Innes,
227 Ariz. 545, ¶ 5 (App. 2011) (“A defendant’s waiver of his or her right to
a jury must be given knowingly, voluntarily and intelligently.”).

¶19 In this case, the trial court complied with the requirements of
Rule 18.1(b) in determining that MacHardy had knowingly, intelligently,
and voluntarily agreed to a bench trial. MacHardy both signed a written
waiver and twice confirmed his decision on the record in open court to
waive his right to a jury trial, as required by Rule 18.1(b)(1), and the court
twice personally addressed MacHardy and informed him of his right to a
jury trial, as required by Rule 18.1(b)(2). Indeed, the record reflects that,
over a five-month period, MacHardy repeatedly agreed to proceed with a
bench trial in writing and when asked in person by the court.

¶20 In May 2020, MacHardy and the state filed a joint trial
memorandum that indicated MacHardy was “willing” to proceed with a
bench trial. At a status conference the next month, the state reiterated that
the parties had agreed to a bench trial and requested to “officially put on
the record that [MacHardy was] waiving his jury trial right.” The trial court
explained to MacHardy that his attorney had said MacHardy was “willing
to have a bench trial, meaning that [he] would try [his] case to the Court
and not to a jury.” When the court asked if this is what he had agreed to,
MacHardy responded, “Yes, I have.” The court explained that “[w]hen you
have a bench trial to the Court we don’t convene a jury, we don’t select
jurors, all the evidence is tried to the Court” and asked whether MacHardy
was “all right with that,” to which he responded, “Yes I am.” The court
further observed that the state still had the “burden to prove the charges
beyond a reasonable doubt” and that MacHardy would retain the rights
associated with a jury trial, including the right to remain silent, have his
attorney represent him, confront and cross-examine the state’s witnesses,
present evidence on his behalf, and subpoena witnesses for his defense, but
that he would be giving up the right to have a jury decide whether
aggravating factors had been proven. The court again asked MacHardy if
he was “all right with that,” and he responded, “Yes I am.” The court then
set the matter for a bench trial.

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Opinion of the Court

¶21 In September 2020, a week before trial, MacHardy signed a
written waiver stating the following:

I understand I am charged with the crime of
sexual exploitation of a minor, . . . a . . . felony
and that, if I am found guilty, I can be given a . . .
prison sentence and be required to pay a
fine . . . .

I understand I am entitled to a trial by jury on
these charges which means the right to have my
guilt or innocence decided by a group of
ordinary people whose decision must be
unanimous. Once I have made the decision to
give up my right to a jury trial, I may change my
mind only with the court’s permission and may
not change it at all once the trial has actually
begun.

The form concluded with MacHardy’s avowal: “After reading and
understanding the above, I hereby give up my right to trial by jury and
consent to have my guilt or innocence determined by the judge.” (Emphasis
added.) The form included a certification by defense counsel, signed the
day before trial, that he had explained to MacHardy “his right to trial by
jury,” as well as consent to the waiver by said counsel and the prosecutor.

¶22 On the first day of trial, MacHardy’s counsel submitted the
signed waiver form to the court. The court once again personally addressed
MacHardy, who confirmed he had signed and dated the form. The court
recited the contents of the form, stopping periodically to confirm that
MacHardy understood it and had no questions.2 The court signed the form,
and its minute entry memorializes that the court “informally question[ed
MacHardy] regarding the Waiver of Trial by Jury” and found that
MacHardy “knowingly, intelligently, and voluntarily waives his right to a
trial by jury.”

¶23 MacHardy nevertheless contends the trial court’s colloquy
and the signed waiver form were “inadequate” because neither expressly
asked “about coercion of any kind, or promises, or whether [he] was under

2The
trial court departed from the form in one respect, noting that
MacHardy had been charged with nine counts of sexual exploitation of a
minor.

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the influence” or otherwise “pressured to waive a jury trial given the fact
that very few jury trials were proceeding at the time due to Covid.” But
nothing in either Rule 18.1(b) or our caselaw interpreting that rule requires
that specific inquiry, and we will not read such a requirement into the rule.
See Roberts v. State, 253 Ariz. 259, ¶ 20 (2022) (courts will not “read into a
statute something which is not within the manifest intention of the
legislature as gathered from the statute itself” or “inflate, expand, stretch or
extend a statute to matters not falling within its expressed provisions”
(quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965))); State v. Simon,
229 Ariz. 60, ¶ 7 (App. 2012) (applying principles of statutory construction
when interpreting rules of procedure, looking to plain language of rule as
best and most reliable index of its meaning).

¶24 As outlined above, the rule only requires that the trial court,
after addressing the defendant personally and informing him of his right to
a jury trial, “determine” the waiver is, among other things, voluntary, Ariz.
R. Crim. P. 18.1(b)(2), based on “the unique circumstances of each case,”
Butrick, 113 Ariz. at 566. MacHardy has not provided any authority
supporting his proposition that the court’s failure to ask certain questions
constitutes error, nor has he challenged the constitutionality of Rule 18.1.
Nevertheless, our supreme court has recently addressed the validity of a
defendant’s waiver of a jury trial and reiterated that “the procedures in Rule
18.1(b) are appropriate and adequate.” Muhammad, 253 Ariz. 371, ¶ 23.

¶25 To the extent MacHardy suggests that a trial court must
engage in the same colloquy as it would with a defendant pleading guilty,
our supreme court has rejected that view, stating, “Defendants waiving
only the right to a jury trial need not be afforded the exact procedural
protections provided to those whom we treat . . . as if they were pleading
guilty.” State v. Conroy, 168 Ariz. 373, 375 (1991). We recognize that in
several cases in which our supreme court upheld a defendant’s jury trial
waiver, the trial court asked the defendant specific questions informing the
voluntariness inquiry, including whether his waiver was a product of
coercion, threats, or promises. See Muhammad, 253 Ariz. 371, ¶ 14; Conroy,
168 Ariz. at 373; Butrick, 113 Ariz. at 565. While those cases provide
examples of colloquies deemed sufficient—and perhaps represent a better
practice—nothing in them requires such questioning to buttress a finding
of voluntary waiver. See Muhammad, 253 Ariz. 371; Conroy, 168 Ariz. 373;
Butrick, 113 Ariz. 563.

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Opinion of the Court

¶26 Contrary to MacHardy’s assertion that the record is “silent”
regarding whether his waiver was voluntary, 3 the trial court personally
addressed MacHardy and explicitly found his waiver voluntary, and that
finding is supported by the record. See State v. Little, 104 Ariz. 479, 481
(1969) (validity of waiver depends on unique circumstances of each case,
including extent trial court discussed matter with defendant, whether
defendant had assistance of counsel at time of waiver, and existence of
evidence that defendant’s decision “was not the result of a free and
intelligent choice on his part”). Nothing in the record supports MacHardy’s
assertion that he was “pressured to waive a jury trial given the fact that very
few jury trials were proceeding at the time due to Covid, and courts and
prosecutorial offices throughout the state were looking to move cases to
reduce backlog.” To the contrary, at the June status conference, the court
noted that it was aware the parties had agreed to a bench trial, but it added,
“Currently the court does not have the ability to set trials yet, it is still in the
process [of] being approved by the Health Department.” Likewise, there is
nothing in the record to suggest the state was pressuring MacHardy to
agree to a bench trial.

¶27 MacHardy was assisted by counsel each time waiver was
discussed, and counsel avowed that he had explained to MacHardy his
right to a jury trial and MacHardy had consented to his waiver of it.
Additionally, while not alone determinative, MacHardy never indicated to
the trial court that his waiver was anything but voluntary, nor does he make
such an argument on appeal. The court, in communicating with the parties
and lawyers, also had the opportunity to observe MacHardy’s demeanor
and detect and assess any credibility concerns arising from MacHardy’s
answers, but none arose. See Winegar, 147 Ariz. at 445. In sum, the
procedure followed by the court here was sufficient, and the record
supports the court’s determination that MacHardy voluntarily waived his

3In State v. Baker, we vacated the defendant’s convictions based on a
“silent record” in which the trial court failed to comply with Rule 18.1 and
the relevant transcripts contained “no discussion of waiver or any
indication that [the defendant] was informed of his right to have his guilt
or innocence decided by a jury.” 217 Ariz. 118, ¶¶ 11, 15 (App. 2007). The
record was similarly barren in State v. Becerra, 231 Ariz. 200, ¶¶ 14-15 (App.
2013), and Innes, 227 Ariz. 545, ¶ 8. In contrast, as we have noted, the trial
court here complied with Rule 18.1, by personally addressing MacHardy
twice in open court regarding his waiver and accepting the pretrial
memorandum and written waiver form consenting to a bench trial.

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right to a jury trial. Thus, there was no error, structural or otherwise,
regarding MacHardy’s waiver.

Sufficiency of Actual Minor Evidence

¶28 MacHardy also argues the state failed to present sufficient
evidence that actual minors were depicted in the relevant images rather
than adults appearing to be minors, virtually created images of minors, or
computer-enhanced images of adults posing as minors. The state counters
that “ample evidence supports the element that the images contain actual,
rather than virtual, children.” We agree with the state that on the record
before us, and in light of settled law in jurisdictions that have considered
this issue, the state’s evidence was sufficient to support MacHardy’s
convictions.

¶29 We review de novo whether sufficient evidence supports a
conviction. State v. West, 226 Ariz. 559, ¶ 15 (2011). Viewing the evidence
in the light most favorable to sustaining the verdict, and resolving all
inferences against the defendant, we must determine whether the state
presented evidence that “reasonable persons could accept as sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable doubt.”
State v. Spears, 184 Ariz. 277, 290 (1996). This standard extends to every
essential element of the offenses charged. See Prosise v. Kottke, 249 Ariz. 75,
¶ 21 (App. 2020). In evaluating the sufficiency of the state’s evidence, we
may not “reweigh evidence or reassess the witnesses’ credibility.” State v.
Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (App. 2013). If jurors could reasonably
differ as to whether the evidence establishes the necessary facts, that
evidence is sufficient as a matter of law. See State v. Davolt, 207 Ariz. 191,
¶ 87 (2004).

¶30 MacHardy was charged with nine counts of sexual
exploitation of a minor under § 13-3553(A)(2). As pertinent here, that
section provides that “[a] person commits sexual exploitation of a minor by
knowingly . . . [d]istributing, . . . receiving, . . . electronically transmitting,
possessing or exchanging any visual depiction in which a minor is engaged
in exploitive exhibition or other sexual conduct.” Id.

¶31 In 2002, the United States Supreme Court held that federal
statutes prohibiting sexually explicit images appearing to depict minors,
but produced without using actual children, ran afoul of the First
Amendment’s free speech protection. Ashcroft v. Free Speech Coal., 535 U.S.
234, 256-58 (2002). The following year, we held that two sections of our
state’s child pornography statutes, A.R.S. §§ 13-3551, 13-3553, did not make

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the same constitutional misstep because “their scope is limited to visual
depictions of ‘actual minors’ actually engaged in real or simulated
exploitative exhibition or sexual conduct.” State v. Hazlett, 205 Ariz. 523,
¶ 7 (App. 2003).4

¶32 Drawing on Ashcroft and Hazlett, MacHardy argues the state
failed to meet its burden to provide sufficient evidence under § 13-3553
because that evidence was based primarily on testimony that the offending
images “appear[ed] to” depict minors. Assuming without deciding that
Hazlett is precedential, Ashcroft and Hazlett indeed stand for the proposition
that a statute cannot punish possession or development of images that do
not contain actual minors but merely appear to do so. See Ashcroft, 535 U.S.
at 241-42; Hazlett, 205 Ariz. 523, ¶¶ 11-12. As Hazlett made clear, the key
distinction is whether an actual child was involved in the production of the
images. 205 Ariz. 523, ¶ 17 (“term ‘participant’ [in § 13-3556] implies the
existence of an actual person as opposed to a fictitious character” and
demonstrates that legislature’s intent in § 13-3553 “was solely to prohibit
material using actual minors”). For this reason, we agree the state must
present evidence from which a factfinder could make this distinction
beyond a reasonable doubt.

¶33 MacHardy equates Detective Barry’s testimony that the
people in the images in counts one through five “appear[ed] to be minors”
with the unconstitutional inference of § 13-3556 that a participant is a minor
if the image “depicts the participant as a minor.” But there is a distinction
between “depict[ing] the participant as a minor,” § 13-3556, and a
participant appearing to actually be a minor. As Hazlett reasoned, § 13-3556
overbroadly allowed a conviction under § 13-3553 based solely on an
image’s illusion that a participant shown in the image was a minor. 205
Ariz. 523, n.10. So, for example, if an immature-appearing adult was
depicted in a manner commonly reserved for children, such as through the
use of particular clothing or setting, § 13-3556 allowed the factfinder to infer
the individual was a minor, without any further evidence that the
participant was, in fact, a child. See id.; see also Ashcroft, 535 U.S. at 241
(federal statute’s provision unconstitutionally overbroad when it
impermissibly punished creation of, for example, “movies, filmed without
any child actors, if a jury believes an actor ‘appears to be’ a minor engaging

4In a footnote, Hazlett also concluded A.R.S. § 13-3556 ran afoul of
the Supreme Court’s decision in Ashcroft because it “permit[ted] the trier of
fact to convict a person under § 13-3553 even if no actual child was a
participant in the depiction or live act.” Hazlett, 205 Ariz. 523, n.10 (quoting
§ 13-3556).

13
 STATE v. MACHARDY
Opinion of the Court

in ‘actual or simulated . . . sexual intercourse’” (quoting 18 U.S.C.
§ 2256(8)(B))).

¶34 Here, by contrast, the state did not direct Detective Barry’s
testimony toward establishing that the images merely depicted the
participants as minors. Rather, the state presented his testimony that the
participants in the images found on MacHardy’s electronic devices
“appear[ed] to be” minors to establish that actual minors were used in the
production of the images. For example, Barry testified that, based on his
training and experience working in the child sexual abuse unit, a victim’s
approximate age could be identified based on “overall size of the body,
development of their teeth, development of breast tissue, pubic hair, . . .
[h]ip development,” and similar characteristics. He further testified that
the participants shown in the images appeared to range in ages from about
six to about thirteen. And, Detective Barry testified that at least some of the
files MacHardy downloaded on BitTorrent matched “previously identified
child sexual abuse files that have been reported to the Internet Crimes
Against Children task force by other investigators.” This was relevant
testimony directed to the central question of whether the persons in the
images were actual minors. The factfinder was entitled to determine how
much weight to give it. 5 See Tibbs v. Florida, 457 U.S. 31, 37-38 (1982)
(conviction rests on insufficient evidence when no rational factfinder could
have found defendant guilty beyond reasonable doubt, whereas weight of
evidence refers to determination by trier of fact that greater amount of
credible evidence supports one side than another). It was up to the
factfinder to weigh the credibility of Detective Barry’s testimony that he
believed the individuals in the files were actual children, based on his
training and experience. See Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (credibility
of witnesses and weight and value of their testimony exclusively within
province of factfinder).

¶35 MacHardy contends that computer technology now allows
images of actual adults to be digitally modified to appear as children. He
therefore maintains that, in the absence of expert testimony establishing
that the images have not been so altered, no reasonable juror could find him

5 We note that Detective Barry’s testimony also provided the file
names of many of the images and videos. To the extent these file names
depicted the files as containing minors, e.g., through the use of descriptive
terms such as “Lolita’s house” and “12 Y-O,” such evidence alone would
not permit a factfinder to infer the participants were minors, as explained
in Hazlett. 205 Ariz. 523, n.10.

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 STATE v. MACHARDY
Opinion of the Court

guilty beyond a reasonable doubt. The parties have cited no Arizona case
that squarely addresses this issue, and we are aware of none.6 However,
most federal and state cases addressing this issue since the Supreme Court
decided Ashcroft have rejected this argument. They have concluded that
expert testimony is unnecessary for the factfinder to determine beyond a
reasonable doubt that suspect images contain actual minors. See, e.g., United
States v. Pawlak, 935 F.3d 337, 348-50 (5th Cir. 2019) (images themselves
sufficient to authenticate them as depicting actual children); United States v.
Figueroa-Lugo, 793 F.3d 179, 189-90 (1st Cir. 2015) (juries capable of
distinguishing between real and virtual images without expert assistance);
United States v. Kain, 589 F.3d 945, 950-51 (8th Cir. 2009) (same); United States
v. Lacey, 569 F.3d 319, 324-26 (7th Cir. 2009); State v. Clark, 959 A.2d 229, 231-
34 (N.H. 2008) (noting that “the majority of courts that have addressed this
issue have ruled” that Ashcroft did not establish broad, categorical
requirement that expert must testify image depicts actual child); People v.
Brown, 313 P.3d 608, 615-16 (Colo. Ct. App. 2011) (sufficient evidence
included images themselves and supporting testimony from both detective
who opined “images did not appear fake” and doctor who focused on
physical characteristics of sexual development); but see State v. Jordan, 438
P.3d 862, ¶¶ 53-64 (Utah Ct. App. 2018) (in obvious cases, where
individuals depicted clearly minors, no expert testimony required, but in
close cases, where layperson might not be able to tell whether individual
depicted is minor, expert testimony required).7

¶36 MacHardy maintains, however, that advances in technology
now allow the creators of pornographic images to digitally alter the
appearance of the participants in ways that would be undetectable. As to
such images, he maintains, only an expert who has evaluated the coding of

6But see State v. Zuck, No. 2 CA-CR 2019-0130, ¶¶ 7-13 (Ariz. App.
May 25, 2021) (mem. decision) (reasoning that, even if trial court erred in
providing jury instruction containing language of § 13-3556, any potential
error harmless because state provided ample evidence in form of detective
and digital forensic examiner testimony, jury inspection of suspect images
and videos, and defendant’s own admissions).
7MacHardy argues that “not a single one” of the cases cited by the
state was decided more recently than 2008, and that since that time,
“technology has advanced to a point at which distinguishing between real
and virtual images is difficult, if not impossible, for a lay person.” But as
the foregoing citations demonstrate, other more recent cases have held the
same.

15
 STATE v. MACHARDY
Opinion of the Court

the file could determine whether an image has been digitally altered. But,
MacHardy presented no evidence either at pretrial hearings, or during trial,
to support that contention—much less evidence that any such undetectably
altered images are in circulation. As our standard jury instructions on
reasonable doubt reflect, the state is not required to rule out every
possibility of innocence, no matter how speculative, to be entitled to a guilty
verdict. Rev. Ariz. Jury Instr. Stand. Crim. 4 (5th ed. 2019) (“There are very
few things in this world that we know with absolute certainty, and in
criminal cases the law does not require proof that overcomes every
doubt.”). We therefore conclude the state’s evidence, which was comprised
of detective testimony, the actual images and videos, and MacHardy’s
admissions, was sufficient to sustain his convictions.

Dangerous Crimes Against Children (DCAC) Sentencing Enhancement

¶37 Finally, MacHardy contends the trial court erred by
sentencing him under § 13-705 because the state “failed to present evidence
that actual minors were depicted in the materials possessed by [him].”
Citing Wright v. Gates, 243 Ariz. 118, ¶¶ 17-18 (2017), he argues the state
“specifically avowed that the case was not a victim case” and “indicated at
sentencing that there is no specific victim impact in the case in terms of
known victims.” The state argues that the evidence was sufficient to
support the convictions and the DCAC allegation, and the court
“specifically found that the DCAC allegation had been proven beyond a
reasonable doubt.”

¶38 In conformity with our prior discussion, MacHardy has failed
to show that the victims depicted in the relevant files might have been
computer-generated or computer-altered rather than being actual child
victims. Although the state did not present expert testimony to support the
proposition that the images were not computer-generated, neither did
MacHardy present any evidence to substantiate any claim that they were.
Thus, drawing all inferences against MacHardy, id., we assume that the
images MacHardy possessed and shared involved the exploitation of actual
minors.

¶39 MacHardy further complains that “at no point did the state
allege, or the trial court find, that any actual minor was depicted in the
materials or was harmed as a result of [his] conduct.” In support of this
argument, he notes that the indictment and DCAC allegation failed to name
any “actual victims” and that the state “indicated at sentencing that there is
no specific victim impact in the case in terms of known victims.” He also

16
 STATE v. MACHARDY
Opinion of the Court

claims the parties’ joint May 2020 pretrial memorandum, which the state
signed, “specifically avowed that the case was not a victim case.”8

¶40 Again, we agree with the state that it presented sufficient
evidence for the offenses to qualify as dangerous crimes against children
for the purpose of sentence enhancement under § 13-705. The parties agree
that there must be “an actual child victim for DCAC enhanced sentences to
apply to the enumerated offenses.” Wright, 243 Ariz. 118, ¶ 18. As
discussed above, the state presented sufficient evidence that actual minors
were shown in the files. Importantly, in finding MacHardy guilty of all
counts in the indictment, the trial court specifically found, based on its own
review of the images or the testimony of Detective Barry, that the evidence
supported the DCAC allegation beyond a reasonable doubt for each of the
nine counts.

¶41 MacHardy also argues that, in essence, the state waived its
claim that the sentencing should be enhanced. To support this argument,
he observes that the state “actively indicated” it “did not intend to move
forward on the case as a victim case.” In context, however, the state made
this statement only to clarify the pertinent “factors for priority in trial date.”
That document was submitted in response to the trial court’s order of April
2020, which noted that the trial had originally been set to occur earlier that
month but had been continued due to administrative orders stalling court
proceedings due to the COVID-19 pandemic. The order directed counsel to
jointly file the trial memorandum to help the court “determine which cases
will take trial priority.” Given this backdrop, we find no basis for
MacHardy’s claim that he was somehow unaware of the fact that he had
been charged with violation of a statute that, under settled law, punishes
misconduct involving “actual minors.” Hazlett, 205 Ariz. 523, ¶ 17. To the
contrary, the state had provided notice that it would seek sentence
enhancement under the DCAC statute in its indictment and DCAC
allegation filed in August 2019.

¶42 Finally, MacHardy misrepresents the state’s argument at
sentencing. There, the state correctly argued that, although the case
presented “no specific victim impact . . . in terms of known victims,”
“[v]ictimization continues each time these videos and images are spread.”
It emphasized, therefore, that MacHardy’s actions did not constitute “a

8This purportedly specific avowal arose in the form of an unchecked
box on the pretrial memorandum, rather than an affirmative avowal made
by the state.

17
 STATE v. MACHARDY
Opinion of the Court

victimless crime.” In sum, the state presented sufficient evidence that the
illegal images contained actual minors and adequately notified MacHardy
that any conviction under § 13-3553 would be subject to sentence
enhancement under the DCAC statute. The trial court specifically found
that the DCAC allegations had been proven. Thus, we find no reversible
error in the application of sentence enhancements under § 13-705 to
MacHardy’s convictions.

Disposition

¶43 For the foregoing reasons, we affirm MacHardy’s convictions
and sentences.

E C K E R S T R O M, Presiding Judge, concurring in part and dissenting in
part:

¶44 I concur and join in my colleagues’ well-reasoned opinion on
all issues but one. The United States and Arizona Constitutions expressly
guarantee the right to a jury trial in criminal cases. That right is
“fundamental to the American scheme of justice” and “reflect[s] a profound
judgment about the way in which [the] law should be enforced and justice
administered.” Duncan v. Louisiana, 391 U.S. 145, 149, 155 (1968). When
such substantial constitutional rights are at stake, the state must show that
an accused who seeks to waive them has done so knowingly, voluntarily,
and intelligently. See Barker v. Wingo, 407 U.S. 514, 529 (1972) (expressly
referring to right to jury trial, among others, and observing that state bears
“the entire responsibility” of showing such waiver); see also Conroy, 168
Ariz. at 375 (acknowledging constitutional requirement that waiver of right
to jury trial must be “knowing, voluntary, and intelligent”). Accordingly,
our rules of criminal procedure require the trial court to “address the
defendant personally” to establish that his or her waiver of a jury trial is
“knowing, voluntary, and intelligent.” Ariz. R. Crim. P. 18.1(b)(2).

¶45 As the United States Supreme Court has repeatedly
emphasized, the determination of whether a waiver is voluntary is a
distinct inquiry from whether it is knowing and intelligent. Moran v.
Burbine, 475 U.S. 412, 421 (1986) (inquiry regarding adequacy of waiver of
constitutional right “has two distinct dimensions”: first, assessment of
voluntariness; second, assessment of knowledge and intelligence); Berghuis
v. Thompkins, 560 U.S. 370, 382-83 (2010) (same, quoting Burbine); Colorado v.
Spring, 479 U.S. 564, 573-75 (1987) (waiver only valid if both voluntariness
and intelligence, separately described, are demonstrated). It has reversed
convictions when a court has failed to consider each separately. E.g.,

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 STATE v. MACHARDY
Opinion of the Court

Edwards v. Arizona, 451 U.S. 477, 482-87 (1981) (emphasizing that
“voluntariness” of waiver and whether waiver is “knowing and intelligent”
are “discrete inquiries” and reversing Arizona Supreme Court for failing to
separately consider both aspects of waiver).

¶46 The United States Supreme Court has made it equally clear
that, in the context of constitutional waivers, “voluntary” is a legal term of
art with a very specific meaning. 9 Voluntariness is not established by a
showing that the waiver is volitional or intentional—or that the defendant
seemed “willing.” Rather, a voluntary waiver must be “the product of a
free and deliberate choice rather than intimidation, coercion, or deception,”
Burbine, 475 U.S. at 421-22, and not be “obtained by any direct or implied
promises, however slight, nor by the exertion of any improper influence,”
Brady v. United States, 397 U.S. 742, 753 (1970) (quoting Bram v. United States,
168 U.S. 532, 542-43 (1897)). The Court has universally applied some
variation of this standard for assessing voluntariness in the context of
constitutional waivers. Id. at 749-50 (guilty plea); Barker, 407 U.S. at 529
(speedy trial); Schneckloth v. Bustamonte, 412 U.S. 218, 227-29, 233 (1973)
(consent to search); Edwards v. Arizona, 451 U.S. at 483 (right to counsel);
Burbine, 475 U.S. at 421-22 (rights to remain silent and to presence of
counsel); Spring, 479 U.S. at 572-74 (same).

¶47 The Arizona Supreme Court has approved use of the same
language—probing the presence or absence of coercive pressures or
promises—as the proper voluntariness inquiry in the context of the specific
constitutional waiver here. Recently, in Muhammad, it characterized the
trial court’s inquiry—which expressly addressed whether the defendant’s
waiver of jury trial was the product of force, threats, or promises—as part
of the “proper personal colloquy” required by Rule 18.1(b). 253 Ariz. 371,
¶¶ 14, 42; see also Conroy, 168 Ariz. at 373 (observing that trial judge found
defendant voluntarily waived his right to jury trial only “[a]fter learning
from defendant that no threats or promises were made to induce him to
waive [that] right”).

9 See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, 73-77 (2012) (explaining that courts must read
language attentive to specialized meaning of words, and quoting Justice
Frankfurter to say: “[I]f a word is obviously transplanted from another
legal source, whether the common law or other legislation, it brings the old
soil with it.”).

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 STATE v. MACHARDY
Opinion of the Court

¶48 Thus, long-settled understandings of voluntariness in the
context of constitutional waiver, as adopted by the supreme courts of both
the United States and Arizona, clarify the correct voluntariness inquiry
contemplated by the language of Rule 18.1(b)(2). In this context, the express
requirements of that rule—that voluntariness be determined and that the
trial court do so by addressing the defendant personally—demonstrate our
supreme court’s command: that voluntariness not be assumed from a
record wherein its features have not been addressed or explored with the
defendant. See also State v. Baker, 217 Ariz. 118, ¶ 8 (App. 2007) (“We cannot
presume a valid waiver of a jury right based on a silent record.”). Rather,
the court must conduct a “distinct” inquiry to establish that the waiver is
not the product of coercive pressures or promises. Burbine, 475 U.S. at 422
(first of “two distinct dimensions” is whether waiver was “voluntary in the
sense that it was [not] the product of . . . intimidation, coercion, or
deception”).

¶49 No distinct inquiry occurred here. Indeed, as to the
definitional features of voluntariness, there was no inquiry at all. As my
colleagues correctly observe, the trial court conducted two colloquies with
MacHardy. MacHardy also signed a waiver of jury trial form provided by
the court. But both colloquies and the form focused exclusively on whether
MacHardy understood the difference between a jury trial and a bench trial.
By those methods, the court comprehensively itemized the features of a jury
trial that MacHardy would forego by agreeing to a bench trial. In sum, the
trial court established that MacHardy’s decision to waive a jury trial was
“knowing and intelligent.” But, no part of that inquiry explored—or even
obliquely touched on—whether the waiver was made in the absence of any
out-of-court pressures or promises.

¶50 The majority contends the trial court had a basis to find a
voluntary waiver on this record. It so contends because MacHardy
persistently consented to the waiver through several court appearances
involving the two colloquies—and because the court could assess the
defendant’s demeanor when he did so.10 The majority also emphasizes two
instances wherein MacHardy arguably acknowledged he was “willing” to

10Oneof the two colloquies occurred during a status conference at
which MacHardy appeared telephonically. In that instance, any assessment
of demeanor would have arisen exclusively from MacHardy’s tone of voice
and other auditory cues.

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 STATE v. MACHARDY
Opinion of the Court

proceed with a bench trial. 11 And, it observes that MacHardy never
affirmatively suggested that his waiver was anything but voluntary.12 In
essence, my colleagues reason that the court could find a voluntary waiver
simply because the defendant, without obvious reluctance, persistently
agreed to a bench trial when comprehensively advised of how it differed
from a jury trial.

¶51 I cannot join in that reasoning. It overlooks that defendants
may become “willing” to agree to a bench trial—and even persistently
consent to one—precisely because they have been persuaded to do so by
either coercive factors or promises. 13 By evaluating a defendant’s
demeanor in answering questions establishing the intelligence of a waiver,
an alert trial court might well identify an overtly reluctant defendant. But
we should be far more skeptical that a court can intuit, without inquiring,
the nature of the defendant’s motivations in willingly consenting to a bench

11Neither instance provides much insight into MacHardy’s state of
mind in agreeing to the waiver. The first use of the word “willing” is found
in a form indicating an agreement to a bench trial, generated by the trial
court and signed by the state on behalf of both parties, unsigned by either
MacHardy or his attorney. The second involved MacHardy answering,
“Yes, I have,” to the question of whether he had agreed to a bench trial. In
the predicate to that question, the court observed, inter alia, that
MacHardy’s attorney had said he was “willing to have a bench trial.” In
neither case did MacHardy himself use the word “willing.”
12Given that it is the trial court’s duty to establish voluntariness, and
that the questions asked by the court here were exclusively leading
questions calling for “yes or no” answers, I am skeptical that MacHardy’s
failure to affirmatively raise any concerns should be given any weight in
our analysis. See Baker, 217 Ariz. 118, ¶¶ 10, 13 (inferring constitutionally
adequate waiver from defendant’s mere presence and failure to object or
express concerns “would improperly shift the burden of ensuring an
effective jury trial waiver to the accused”).
13 For example, during the inevitable discussion with counsel
regarding the strategic implications of choosing a bench trial over a jury
trial, unsophisticated defendants can easily misunderstand counsel and
erroneously believe they have secured counsel’s implicit promises of a
more favorable outcome. See State v. Donald, 198 Ariz. 406, ¶ 11 & n.4 (App.
2000) (implicitly recognizing that advice of counsel as to waiver of
constitutional rights is not always effective or accurate, and listing
numerous cases where such advice has been found deficient).

21
 STATE v. MACHARDY
Opinion of the Court

trial. The voluntariness of a waiver turns on such motivations—not on
whether a defendant displays reluctance. See Baker, 217 Ariz. 118, ¶¶ 10-11
(rejecting state’s contention that “knowing, voluntary, and intelligent
waiver” of right to jury trial can be inferred from defendant’s mere
acquiescence to that decision in open court).

¶52 Wisely, our rules of criminal procedure require a process that
relieves our courts of dependence on such unreliable cues. See Ariz. R.
Crim. P. 18.1(b)(2)-(3) (requiring trial court to “address the defendant
personally” to determine voluntariness and ensure record exists to
corroborate that occurred). Instead, the majority opinion renders such a
focused inquiry discretionary with the trial court. See supra, ¶ 25
(acknowledging proper colloquy “a better practice”). But such an approach
both contradicts the mandatory terms of the rule and its manifest purpose
to establish clarity. Ariz. R. Crim. P. 18.1(b)(2) (establishing what “the court
must” do before accepting defendant’s waiver of jury trial (emphasis
added)).

¶53 Further, the instant case aptly demonstrates the rule’s
wisdom in requiring an inquiry to assure the absence of coercive pressures
or promises. MacHardy’s jury trial had been cancelled at the eleventh hour
due to the onset of the COVID-19 pandemic. Jury trials were indefinitely
postponed. The trial court could not predict when the COVID restrictions
would lift, allowing it to accommodate MacHardy’s right to a jury trial.
Indeed, to address the pandemic, our supreme court periodically issued
orders suspending the enforcement of defendants’ state procedural right to
a speedy trial.14

¶54 Thus, MacHardy’s waiver occurred at a time when the state
had strong motivations to prefer bench trials to secure timely convictions,
and when MacHardy’s actual ability to secure a jury trial in the near future
was uncertain at best. The majority is correct that “nothing in the record”
demonstrates that MacHardy felt pressured by such circumstances. But it
was the trial court’s duty under Rule 18.1(b)(2) to establish that coercive
pressures or promises were not a factor in his decision to waive. See Baker,

14See, e.g., Ariz. Sup. Ct. Admin. Order No. 2020-60 (Apr. 6, 2020);
Ariz. Sup. Ct. Admin. Order No. 2020-70 (Apr. 24, 2020); Ariz. Sup. Ct.
Admin. Order No. 2020-75 (May 8, 2020); Ariz. Sup. Ct. Admin. Order No.
2020-79 (May 20, 2020); Ariz. Sup. Ct. Admin. Order No. 2020-114 (July 15,
2020); Ariz. Sup. Ct. Admin. Order No. 2020-143 (Aug. 26, 2020); Ariz. Sup.
Ct. Admin. Order No. 2020-177 (Nov. 18, 2020).

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 STATE v. MACHARDY
Opinion of the Court

217 Ariz. 118, ¶¶ 10, 13 (rejecting state’s suggestion that defendant bears
burden of ensuring knowing, voluntary, and intelligent waiver of jury
trial); see also Barker, 407 U.S. at 529 (state bears “entire responsibility” to
show waiver of jury trial “knowingly and voluntarily made”). It was not
MacHardy’s duty to affirmatively raise any misgivings.

¶55 In the absence of any inquiry, we are left to speculate what
effect these events had on MacHardy’s willingness to waive a jury trial. I
would submit that a defendant’s inability to secure a jury trial might
potentially be a substantial factor in his or her decision to waive one.
Remarkably, this “elephant in the room,” obviously pertinent to
voluntariness, went utterly unexplored. And, it went unexplored as part of
a process that requires our trial courts to produce clarity on that very topic.
See Ariz. R. Crim. P. 18.1(b)(2)-(3).

¶56 Nor does the requirement of Rule 18.1(b)(2)—that the trial
court conduct a personal and distinct inquiry with a defendant about the
voluntariness of a jury trial waiver—constitute a unique or difficult burden
for our courts to bear. Such inquiries as to voluntariness are routine and
commonplace in our criminal courts. Most formal criminal charges in our
state, and our nation, are resolved by guilty pleas. See State v. Donald, 198
Ariz. 406, ¶ 12 (App. 2000) (acknowledging statistics showing that “most
criminal cases are disposed of by guilty plea”). To enter a guilty plea,
defendants must waive their right to a jury trial, and the voluntariness of
that waiver must be determined by the trial court. See Ariz. R. Crim. P.
17.1(b), 17.3(a)(2) (court’s duty to address defendant personally to
determine whether plea is “voluntary and not the result of force, threats or
promises”), 17.4(c). As a result, almost every plea agreement, and almost
every colloquy in that context, includes an express inquiry whether the
defendant’s waiver is the result of any out-of-court coercive pressures or
promises.15 Doing so does not require any talismanic words and can be

15 Because Rule 18.1(b)(2) expressly requires our trial courts to
inquire directly with defendants whether their jury trial waivers are
voluntary, we need not resolve the extent to which that inquiry should
parallel the voluntariness colloquy required for a guilty plea. See Conroy,
168 Ariz. at 375 (allowing for deviation from guilty plea format in waiver
of jury trial context, depending on “particular constitutional right being
waived”). As Conroy reasoned, there is a logical difference between a jury
trial waiver and a guilty plea waiver relevant to how carefully a court must
establish the defendant’s knowledge of the potential sentencing
consequences of conviction. Id. at 375-76. A guilty plea directly triggers a
sentencing. A jury trial waiver does not. However, Conroy makes no

23
 STATE v. MACHARDY
Opinion of the Court

accomplished with two clauses in a single sentence. And, if our supreme
court’s cases on the topic are representative, our trial courts have routinely
been including the proper, terse voluntariness inquiry in the Rule 18.1(b)(2)
context. See, e.g., Muhammad, 253 Ariz. 371, ¶ 14 (“trial court confirmed
[defendant] was not forced or threatened into waiving his right to a jury
trial, nor was he promised anything in exchange for waiving this right”);
Conroy, 168 Ariz. at 373 (trial court ascertained “from defendant that no
threats or promises were made to induce him to waive his right” to jury
trial); Butrick, 113 Ariz. at 565 (trial court asked defendant whether anyone
had “tried to force [him] to give up [his] right to a trial by jury” or “made
promises to [him] of anything at all to get [him] to give [his] right to trial by
jury up”).

¶57 The state maintains that no distinct voluntariness inquiry is
required to establish voluntariness. It emphasizes reasoning from Conroy,
reiterated more recently in Muhammad, that “[t]he pivotal consideration in
determining the validity of a jury trial waiver is the requirement that the
defendant understand that the facts of the case will be determined by a
judge and not a jury.” Muhammad, 253 Ariz. 371, ¶ 23 (quoting Conroy, 168
Ariz. at 376). That reasoning concludes: “We believe this is all that is
required to accomplish the intentional waiver of a known right.” Id.

¶58 The state takes this reasoning out of context. In neither case
had the respective defendants challenged the voluntariness of their waiver.
In both cases, our supreme court articulated the above reasoning only when
addressing whether the defendant’s waivers were knowing and intelligent.
Conroy, 168 Ariz. at 374-76 (above language used to address state’s claim
that “defendant’s waiver was knowing and intelligent”); Muhammad, 253
Ariz. 371, ¶ 24 (addressing whether courts should employ more exacting
standard to establish adequacy of jury trial waiver when defendant’s
competency, the ability to make a knowing and intelligent decision, has
been at issue). As articulated above, both opinions expressly endorsed a
proper voluntariness inquiry to establish the absence of threats or promises.
Of course, Rule 18.1(b)(2)-(3) unambiguously requires that our trial courts
evaluate the voluntariness of a jury trial waivers and provide a record of
having done so. This belies any suggestion that our supreme court
intended, with the above reasoning, to eliminate the need to establish a
voluntary waiver.

similar distinction between the two waiver contexts in the importance of
establishing their voluntariness. Id.

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 STATE v. MACHARDY
Opinion of the Court

¶59 For the foregoing reasons, the trial court failed to establish
that MacHardy’s jury trial waiver was voluntary. Specifically, it failed to
conduct the traditional voluntariness inquiry that has been incorporated
and mandated by our rules of criminal procedure. When the record “fails
to affirmatively show” that a defendant voluntarily waived his right to a
jury trial, we must vacate the defendant’s convictions and remand for a new
trial. Baker, 217 Ariz. 118, ¶ 24. I believe the record compels us to do so
here.

25