SUPREME COURT OF ARIZONA
En Banc
JEREMY MEJAK, ) Arizona Supreme Court
) No. CV-05-0299-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 05-0156
THE HONORABLE WARREN J. )
GRANVILLE, JUDGE OF THE SUPERIOR ) Maricopa County
COURT OF THE STATE OF ARIZONA, ) Superior Court
in and for the County of ) No. CR 2003-026156-001 DT
Maricopa, )
)
Respondent Judge, )
) O P I N I O N
STATE OF ARIZONA ex rel. ANDREW )
THOMAS, Maricopa County Attorney, )
)
)
Real Party in Interest. )
)
__________________________________)
Petition for Review from Order of the Court of Appeals,
Division One
Order of the Superior Court in Maricopa County
The Honorable Warren J. Granville, Judge
VACATED AND REMANDED
________________________________________________________________
MICHAEL TERRIBILE, P.C. Phoenix
By Michael Terribile
Attorney for Jeremy Mejak
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Arthur G. Hazelton, Jr.
Attorneys for State of Arizona
________________________________________________________________
R Y A N, Justice
¶1 In Arizona, a person “offering or soliciting sexual
conduct with another person knowing or having reason to know
that the other person is a minor” can be charged with “luring a
minor for sexual exploitation” (“luring”) under Arizona Revised
Statutes (“A.R.S.”) section 13-3554(A) (Supp. 2003). “It is not
a defense to a prosecution . . . [for luring a minor if] the
other person was a peace officer posing as a minor.” Id. § 13-
3554(B).
¶2 This case requires us to decide whether luring is
committed when the person solicited is an adult posing as a
minor, but is not a peace officer. We hold that under such
circumstances, a person cannot be charged with luring. 1
I
¶3 In April 2003, a local television news reporter,
pretending to be a thirteen-year-old girl, engaged in Internet
“chat room” discussions as part of an investigation into how the
Internet can be used to lure minors for sexual contact. The
petitioner, Jeremy Mejak, chatted online with the reporter,
believing her to be a thirteen-year-old girl; and arranged to
1
We note, however, that in such a situation, a person could
be charged with attempted luring or attempted sexual conduct
with a minor. See State v. Carlisle, 198 Ariz. 203, 205, ¶ 1, 8
P.3d 391, 393 (App. 2000).
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meet her for purposes of engaging in sexual conduct. 2 When Mejak
arrived at the agreed-upon location, he was greeted by news
cameras. The police were given videotapes of the confrontation
and transcripts of the online conversations. A grand jury
indicted Mejak for violating A.R.S. § 13-3554.
¶4 Mejak filed a motion to dismiss, arguing that the
statute did not criminalize his conduct because there was no
minor or peace officer lured, and therefore the indictment was
insufficient as a matter of law. See Ariz. R. Crim. P. 16.6(b)
& cmt. If a defendant can admit to all the allegations charged
in the indictment and still not have committed a crime, then the
indictment is insufficient as a matter of law. See, e.g., U.S.
v. Sampson, 371 U.S. 75, 76-79 (1962); Lowe v. State, 579 S.E.2d
728, 729-30 (Ga. 2003) (quoting Dunbar v. State, 432 S.E.2d 829,
831 (Ga. Ct. App. 1993)); State v. Green, 194 N.E. 182, 184
(Ind. 1935); State v. Anderson, 410 P.2d 230, 233 (Or. 1966); 42
C.J.S. Indictments & Informations § 180 (1991).
¶5 The superior court denied the motion, reasoning that
the intent of the statute was “to criminalize the offer of
sexual conduct with a person a Defendant believes to be a
minor.” Relying on State v. Carlisle, 198 Ariz. 203, 207, ¶ 17,
8 P.3d 391, 395 (App. 2000), the court also found that it is no
2
For purposes of these proceedings, Mejak admits the facts
as found by the grand jury.
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defense that the person “lured” is not a minor. Mejak then
filed a petition for special action with the court of appeals,
which declined jurisdiction without comment.
¶6 We granted Mejak’s petition for review because it
presents an issue of statewide importance and first impression.
We have jurisdiction under Article 6, Section 5(3), of the
Arizona Constitution and A.R.S. § 12-120.24 (2003).
II
¶7 Determining whether the superior court erred in
denying Mejak’s motion to dismiss requires us to interpret
A.R.S. § 13-3554. Issues of statutory interpretation are purely
legal issues, which we review de novo. Dressler v. Morrison,
____ Ariz. ____, ¶ 11, 130 P.3d 978, 980 (2006) (citing State ex
rel. Dep’t of Econ. Sec. v. Hayden, 210 Ariz. 522, 523, ¶ 7, 115
P.3d 116, 117 (2005)).
¶8 When interpreting a statute, we make every effort to
give effect to the intent of the legislature. State v. Lamar,
210 Ariz. 571, 575, ¶ 16, 115 P.3d 611, 615 (2005) (quoting
Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1043
(1988)). The best indicator of that intent is the statutory
language. State v. Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505
(1997). When the language of the statute is clear and
unambiguous, this Court need go no further to ascertain the
legislative intent. State ex rel. Romley v. Hauser, 209 Ariz.
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539, 541, ¶ 10, 105 P.3d 1158, 1160 (2005) (quoting State v.
Christian, 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241, 1243 (2003)).
¶9 Also, in interpreting a statute, this Court must, to
the extent possible, give effect to every provision in the
statute. See State v. Pitts, 178 Ariz. 405, 407, 874 P.2d 962,
964 (1994). We must interpret the statute so that no provision
is rendered meaningless, insignificant, or void. State v.
Superior Court for Maricopa County, 113 Ariz. 248, 249, 550 P.2d
626, 627 (1976); see also Ruiz v. Hull, 191 Ariz. 441, 450, ¶
35, 957 P.2d 984, 993 (1998).
¶10 With these principles in mind, we first turn to the
language of A.R.S. § 13-3554 and then examine the parties’
arguments regarding its interpretation.
A
¶11 Section 13-3554 states:
A. A person commits luring a minor for sexual
exploitation by offering or soliciting sexual
conduct with another person knowing or having
reason to know that the other person is a
minor.
B. It is not a defense to a prosecution for a
violation of this section that the other person
was a peace officer posing as a minor.
C. Luring a minor for sexual exploitation is a
class 3 felony, and if the minor is under
fifteen years of age it is punishable pursuant
to § 13-604.01, subsection I.
We conclude that the language of the statute requires that the
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person lured be a minor or a peace officer posing as a minor. A
brief review of the three subsections of A.R.S. § 13-3554
supports this conclusion.
¶12 First, subsection (A) requires that the person charged
with the crime of luring “know[] or hav[e] reason to know that
the [person being lured] is a minor.” A.R.S. § 13-3554(A)
(emphasis added). The use of the phrase “is a minor” suggests
that the crime cannot be committed without the luring of an
actual minor. Second, subsection (B) prevents a defendant from
escaping criminal responsibility if the person lured is “a peace
officer posing as a minor.” A.R.S. § 13-3554(B). Read in
conjunction with subsection (A), this provision further supports
the conclusion that unless the purported victim is a peace
officer posing as a minor, the crime of luring requires that an
actual minor be lured.
¶13 Third, subsection (C), the penalty provision of A.R.S.
§ 13-3554, states that “if the minor is under fifteen years of
age” the crime is punishable under the provisions of A.R.S. §
13-604.01(I) (Supp. 2003), 3 a subsection of the sentencing
3
Section 13-604.01(I), provides that “a person . . . who
stands convicted of . . . luring a minor for sexual exploitation
pursuant to § 13-3554 is guilty of a class 3 felony and shall be
sentenced to a presumptive term of imprisonment for ten years.
The presumptive term may be increased or decreased by up to five
years.” See Boynton v. Anderson, 205 Ariz. 45, 47, 49, ¶¶ 6,
15, 66 P.3d 88, 90, 92 (App. 2003).
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statute for Dangerous Crimes Against Children. (Emphasis
added.) The use of the phrase “the minor” in subsection (C)
signals the legislature’s intention that, unless subsection (B)
applies, the statute is violated only when an actual minor is
lured. Thus, when § 13-3554 is considered as a whole, the
language requires that the person lured be a minor, or a peace
officer posing as a minor, before a person can be charged with
luring a minor for sexual exploitation.
B
¶14 The State argues that Mejak can be charged under the
plain language of A.R.S. § 13-3554 because he had “reason to
know that the person was a minor.” The State also contends that
this crime is like a preparatory offense and all of the elements
were completed during Mejak’s online discussions with the person
he believed to be a thirteen-year-old girl. Based on the
language of the statute, we disagree with both propositions.
¶15 The State’s first argument equates the “having reason
to know” language in subsection (A) with “believing.” Such an
interpretation of the statute would require us to conclude that
Mejak could be convicted of luring if he believed that a fact
necessary for the commission of the crime indeed existed, when
in reality it did not. Although a person may subjectively
believe, as Mejak did, something that is not true, it is
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entirely different to have knowledge or a reason to know a fact. 4
We cannot agree with the State’s position that a defendant may
be held responsible for a completed offense, rather than a
preparatory offense, when the facts required for the commission
of the completed offense are not present, even though the
defendant may believe so.
¶16 State v. McElroy, 128 Ariz. 315, 625 P.2d 904 (1981),
so teaches. We stated there “that the defendant could never
have been convicted of possession of dangerous drugs” when the
material he possessed was not illegal, even though he believed
it to be. Id. at 317, 625 P.2d at 906. Rather, the defendant
could be charged only with attempted possession. Id. at 316-17,
628 P.2d at 905-06. Likewise, A.R.S. § 13-3554(A) does not
support the interpretation the State urges; it requires that a
defendant know or have reason to know the person being lured is
a minor. Subsection (A) says nothing about what a defendant may
4
In the context of this statute, the best example of a
defendant “knowing” that the person lured is a minor is when the
defendant solicits or offers sexual conduct to a person whom he
personally knows is a minor. On the other hand, a defendant
would “have reason to know” that the person being lured is a
minor if all the attendant circumstances would make a reasonable
person aware that the person lured is a minor. The inclusion of
the “having reason to know” language prevents a defendant from
claiming that he did not know that he was luring a minor when
the surrounding circumstances would reasonably make him aware of
that fact. Both situations require that an actual minor, or
peace officer posing as a minor, is lured before the statute has
been violated.
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believe.
¶17 Moreover, if we concluded that subsection (A)
permitted the State to pursue the charge against Mejak,
subsection (B) would be superfluous – a result we must avoid.
See Ruiz, 191 Ariz. at 450, ¶ 35, 957 P.2d at 993; Pitts, 178
Ariz. at 407, 874 P.2d at 964; Superior Court for Maricopa
County, 113 Ariz. at 249, 550 P.2d at 627. If the statute could
be violated by luring any adult who poses as a minor, it would
be unnecessary to except peace officers posing as minors. The
inclusion of subsection (B) necessarily suggests that the
legislature realized that the crime of luring under subsection
(A) could not be committed when the person lured was any adult
posing as a child. See Champlin v. Sargeant, 192 Ariz. 371,
374, ¶ 16, 965 P.2d 763, 766 (1998) (discussing the doctrine of
expressio unius est exclusio alterius – the expression of one
item implies the exclusion of others). Therefore, to permit law
enforcement to investigate Internet predation, the legislature
found it necessary to include subsection (B). When subsections
(A) and (B) are read together, their language logically leads to
the conclusion that Mejak could be charged under A.R.S. § 13-
3554 only if the person he lured was a minor or a peace officer
posing as a minor.
¶18 We also cannot agree with the State’s second point
that this crime is equivalent to a preparatory offense. As the
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name implies, a preparatory offense is committed in preparation
for committing a completed crime. See A.R.S. §§ 13-1001 to
-1006 (2001). In the context of A.R.S. § 13-3554, however, the
crime is complete when a person offers or solicits sexual
conduct with a minor or a peace officer posing as a minor. Id.
§ 13-3554(A), (B).
C
¶19 Mejak asserts that he cannot be charged with luring
because the reporter was not a minor, and therefore a factual
impossibility exists. The State claims there is no such defense
in Arizona. To support its position, the State cites McElroy,
Carlisle, and State v. Vitale, 23 Ariz. App. 37, 530 P.2d 394
(1975). All of these cases, however, dealt with “attempt”
charges rather than charges for completed crimes. See McElroy,
128 Ariz. at 316, 625 P.2d at 905 (stating that the defendant
was charged with “‘attempt’ to possess dangerous drugs”);
Carlisle, 198 Ariz. at 206, ¶ 8, 8 P.3d at 394 (stating that the
defendant was indicted for “attempted sexual conduct with a
minor under the age of fifteen”); Vitale, 23 Ariz. App. at 38,
530 P.2d at 395 (stating that the defendant was charged with
“attempting to receive stolen property”).
¶20 An attempt is substantively different from a completed
crime because an attempt to commit an offense does not require
that all the elements be present for the commission of the
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offense. Attempt requires only that the defendant intend to
engage in illegal conduct and that he take a step to further
that conduct. See A.R.S. § 13-1001; State v. Harvill, 106 Ariz.
386, 388, 476 P.2d 841, 843 (1970) (citing State v. McCullough,
94 Ariz. 209, 382 P.2d 682 (1963)). The ultimate crime need not
be completed, or even possible, for a defendant to be criminally
responsible for an attempt to commit a crime. McElroy, 128
Ariz. at 317, 625 P.2d at 906.
¶21 The State, however, charged Mejak not with attempt,
but with the completed offense of luring. But a defendant
cannot be held criminally responsible for a completed crime when
it is impossible to commit the offense. See id.; see also
People v. Rizo, 996 P.2d 27, 30 (Cal. 2000) (stating that a
defendant cannot be charged with anything more than attempt if
he possesses the “requisite criminal intent,” but the facts are
such that an element of the crime is lacking). The luring
statute requires that an actual minor or a peace officer posing
as a minor be lured. Because, the person Mejak lured was not a
minor or peace officer posing as a minor, he could not violate
the criminal statute under which he was indicted.
¶22 Accordingly, we conclude that the indictment is
insufficient as a matter of law to charge Mejak with the crime
of luring. Therefore, the trial court should have granted the
motion to dismiss. Ariz. R. Crim. P. 16.6(b), (d); cf. State v.
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Schneider, 135 Ariz. 387, 388-89, 661 P.2d 651, 652-53 (App.
1983) (observing that ordinarily a dismissal is without
prejudice).
III
¶23 For the above reasons, we vacate the order of the
superior court denying Mejak’s motion to dismiss, and remand to
the superior court with instructions to dismiss the indictment.
_______________________________________
Michael D. Ryan, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Andrew D. Hurwitz, Justice
_______________________________________
W. Scott Bales, Justice
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