State v. Davis

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0423-PR
Appellee, )
) Court of Appeals
) Division One
v. ) No. 1 CA-CR 99-1028
)
) Maricopa County
ANTHONY CHARLES DAVIS, ) Superior Court
) No. CR 99-90084(B)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Dennis W. Dairman, Judge

AFFIRMED IN PART; REVERSED IN PART; REMANDED

Court of Appeals, Division One
Memorandum Decision (filed Oct. 16, 2001)

AFFIRMED IN PART; REVERSED IN PART

JANET A. NAPOLITANO, ARIZONA ATTORNEY GENERAL Phoenix
by Randall M. Howe, Chief Counsel,
Criminal Appeals Section
and Joseph T. Maziarz, Assistant Attorney General
and Katia Mehu, Assistant Attorney General
Attorneys for Appellee

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
by Anna M. Unterberger, Deputy Public Defender
Attorneys for Appellant

B E R C H, Justice

¶1 We granted review in this case to decide whether

sentencing a twenty-year-old defendant to a mandatory minimum
sentence of fifty-two years without the possibility of parole

for having voluntary sex with two post-pubescent teenage girls

is so grossly disproportionate to the crime as to violate the

Eighth Amendment’s prohibition against cruel and unusual

punishment. We hold that it is.

FACTS1

¶2 In January 1999, thirteen-year-old T.E. and her

stepsister, C.M., snuck out of their house at night to meet

nineteen-year-old Jason in a local park. Jason drove the girls

to the home of Defendant Anthony Davis, where they met Davis and

two other young men. The six young people socialized for some

time. During the conversation, Davis told the girls that he was

twenty, and T.E. said she was fourteen. Later that night, Davis

and T.E. had sex. This was not T.E.’s first sexual encounter;

she testified that she had first had sex when she was twelve

years old, and she knew what Davis was doing.

¶3 T.E. and C.M. visited Davis at his house several more

times that month, usually late at night. The second victim,

P.T., accompanied the girls on January 20, 1999. During that

visit, P.T. learned that Davis was twenty; she testified that

“everyone knew” she was fourteen. Later that evening, Davis and

1
We review the facts in the light most favorable to
sustaining the verdict. State v. Gallegos, 178 Ariz. 1, 9, 870
P.2d 1097, 1105 (1994). In stating the facts, we have used
initials to protect the identity of the minor victims.

2
P.T. had sex. They also had sex on two other occasions during

the following two weeks.

¶4 Still later in January, Davis, Jason, and another

young man visited P.T. and C.M. while P.T. was babysitting. The

homeowners returned early, found the men there, ordered them to

leave, and contacted the girls’ parents.

¶5 After the babysitting incident, T.E. and C.M. ran away

to Davis’s house. P.T. went with them, but returned home the

same evening. The next morning, February 1, the police found

T.E. and C.M. at Davis’s house with Davis and Jason.

¶6 When the police questioned her, T.E. denied having had

sex with either Davis or Jason. The next day, however, T.E.’s

mother called the police to tell them there had been sexual

contact between T.E. and Davis. On February 3, P.T. and T.E.

were examined by a doctor for signs of sexual abuse. The

examining doctor found signs indicating that T.E. had had sexual

intercourse within the week. In an interview with police on

February 4, T.E. conceded that she had sex with Davis two or

three times, the last time over the weekend of January 29-31.

¶7 The State charged Davis with four counts of sexual

misconduct with a minor, in violation of Arizona Revised

Statutes (“A.R.S.”) section 13-1405 (1997): count one with T.E.

on January 18, 1999, count two with P.T. on January 20, 1999,

count three with P.T. on January 25, 1999, and count four with

3
P.T. on January 29, 1999. Each act was alleged as a dangerous

crime against children. See A.R.S. § 13-604.01 (Supp. 1998).

¶8 Throughout the case, Davis denied ever having sex with

T.E., but admitted having sex with P.T. on three occasions. He

claimed that P.T. initially told him she was eighteen, but told

him she was sixteen the day after the babysitting incident.

Davis testified that he did not have sex with P.T. after

learning that she was only sixteen.

¶9 The jury convicted Davis on all four counts. Upon

discovering that the minimum sentence that Davis could receive

was fifty-two years, all twelve jurors submitted a note to the

trial judge stating their belief that “the punishment for the

crime is excessive.” Two jurors submitted individual letters

expressing their dismay and strong belief that the potential

sentences for Davis were too harsh. The probation officer who

prepared Davis’s pre-sentence report acknowledged that while

Davis should be held accountable for his crimes, the mandatory

sentence was not warranted. The pre-sentence report also noted

that neither T.E.’s mother nor P.T.’s mother wished to see Davis

sentenced to a long prison term. Even the prosecutor

recommended a mitigated prison sentence and agreed that Davis

should be allowed to petition the Board of Executive Clemency

for a commutation of his sentence.

¶10 The trial judge apparently agreed because he stated at

4
sentencing that all of the charges were “legally non-dangerous

and non-repetitive offenses notwithstanding the nomenclature set

forth in the charges.” He also entered a special order allowing

Davis to petition the Board of Executive Clemency for a

commutation of sentence within ninety days of sentencing. See

A.R.S. § 13-603(L) (Supp. 2002) (allowing such an order if the

judge believes “that a sentence that the law requires the court

to impose is clearly excessive”). Nonetheless, as required by

statute, the trial judge sentenced Davis to fifty-two years in

prison.

DISCUSSION

A. Proportionality of the Sentence to the Crimes
Committed

¶11 Davis argues that given the circumstances of his

offenses, the four flat, consecutive, thirteen-year sentences

violate the prohibition against cruel and unusual punishment

found in the Eighth Amendment to the United States Constitution

and Article 2, Section 15 of the Arizona Constitution. He

contends that the mandatory fifty-two-year sentence, without the

possibility of parole, is so grossly disproportionate to his

offenses as to be unconstitutional.

¶12 We asked the parties to brief whether Article 2,

Section 15 of the Arizona Constitution provides greater

protection against cruel and unusual punishment than does the

5
Eighth Amendment to the United States Constitution. See, e.g.,

People v. Bullock, 485 N.W.2d 866, 872-74 (Mich. 1992) (finding

Michigan’s “cruel or unusual” punishment provision broader than

the United States Constitution’s corollary provision). Although

we do not follow federal precedent blindly, after considering

the issue we do not find in this case a compelling reason to

interpret Arizona’s cruel and unusual punishment provision

differently from the related provision in the federal

constitution. See State v. Noble, 171 Ariz. 171, 173, 829 P.2d

1217, 1219 (1992).

1. Proportionality Review.

¶13 The Eighth Amendment to the United States Constitution

and its corollary, Article 2, Section 15 of the Arizona

Constitution, prohibit punishments that are cruel and unusual.

While originally reserved for review of corporal punishments,

the Eighth Amendment has been applied to lengthy sentences of

incarceration. Lockyer v. Andrade, ___ U.S. ___, ___, 123 S.

Ct. 1166, 1173 (2003). We must decide whether Davis’s fifty-

two-year sentence is so excessively long as to be cruel and

unusual.2

2
In section B of this opinion, we reverse one
conviction. Because Davis was sentenced to fifty-two years and
may be retried on the charge, we analyze gross
disproportionality based on the sentence imposed. See infra ¶¶
50-66.

6
¶14 More than a decade ago, this court wrestled with the

problem of a very long sentence in a case exhibiting facts

remarkably similar to those at issue before us. See State v.

Bartlett, 164 Ariz. 229, 792 P.2d 692 (1990) (Bartlett I). In

Bartlett I, a twenty-three-year-old defendant was convicted of

sexual conduct with two fourteen-year-old girls. Id. at 231,

792 P.2d at 694. Because both victims were younger than

fifteen, the charges were considered dangerous crimes against

children, although the girls considered themselves Bartlett’s

“girlfriends.” Id. at 233, 792 P.2d at 696. Under the

mandatory sentencing provisions of the Dangerous Crimes Against

Children Act, Bartlett received the minimum sentence of forty

years in prison without the possibility of early release. Id.

As does Davis, Bartlett argued that his sentence was so

disproportionate to his crimes that it violated the

constitutional prohibition against cruel and unusual punishment.

Id. Because the facts and circumstances of Bartlett I are so

similar to those in the case at bar, we set forth in some detail

our reasoning in that case.

¶15 In Bartlett I, we analyzed the constitutionality of

the defendant’s sentence under the prevailing test at the time,

which had been enunciated by the United States Supreme Court in

Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011 (1983).

Solem set forth a three-part test to determine whether a

7
sentence was disproportionate to the crime and therefore

violated the Eighth Amendment’s prohibition against cruel and

unusual punishment. Id. The test required examination of the

following factors: (a) the severity of the penalty as compared

to the seriousness of the offense, (b) the jurisdiction’s

penalties for crimes that are more serious than the offense at

issue (the intra-jurisdictional analysis), and (c) the sentences

other jurisdictions impose for the same crime (the inter-

jurisdictional analysis). Id.

¶16 In comparing the penalty with the offense, this court

first examined the nature of the crime, including the type of

harm threatened or inflicted, and the defendant’s culpability.

Bartlett I, 164 Ariz. at 234, 792 P.2d at 697. The court found

several factors important: (a) the absence of either the threat

or the commission of violence to induce the victims to engage in

sex; (b) the victims’ willing participation in the acts; (c)

Bartlett’s lack of a criminal record, including any crime

against children; (d) his immaturity; (e) the sociological fact

that “sexual conduct among post-pubescent teenagers is not

uncommon”; and (f) the broad scope of the governing statute.

Id. at 234-36, 792 P.2d at 697-99. While observing that the

severe mandatory punishment required by the Dangerous Crimes

Against Children Act may be justified for other, more heinous

crimes, the court concluded that it was “not justified under the

8
specific circumstances of this case.” Id. at 236, 792 P.2d at

699.

¶17 Application of the second and third prongs of the

Solem test, the intra- and inter-jurisdictional analyses,

provided further support for that conclusion.

¶18 The intra-jurisdictional analysis showed that in

Arizona, many more serious offenses qualified for equal or

lesser punishments than the punishment Bartlett received. Id.

For example, one guilty of second degree murder or forcible

sexual assault of a minor could receive the same sentence

Bartlett received. Id.

¶19 For the inter-jurisdictional analysis, the court

conducted a nationwide survey to determine how other

jurisdictions punished defendants guilty of two counts of sexual

conduct with minors. Id. at 238-40, 792 P.2d at 701-03. The

survey showed that three years was the longest minimum sentence

for the first offense, and in all but one state, ten years was

the longest minimum sentence for the second offense. Id. at

238, 240, 792 P.2d at 701, 703. All sentences in all

jurisdictions were far less than the forty years Bartlett was

required to serve. Notably, the court did not find in any other

jurisdiction “the particularly harsh combination of provisions

present here, including both mandatory consecutive sentencing

and nonavailability of parole.” Id. at 240, 792 P.2d at 703.

9
¶20 In concluding its opinion, this court cautioned “that

successful challenges to the proportionality of particular

sentences are ‘exceedingly rare.’” Id. (quoting Solem, 463 U.S.

at 289-90, 103 S. Ct. at 3009). But in a narrow holding,

carefully restricted to the facts of the case, the court

determined that Bartlett presented that “exceedingly rare” case

in which the application of the provisions of the Dangerous

Crimes Against Children Act rendered the sentence

unconstitutionally long. Accordingly, we remanded Bartlett I

for resentencing without the application of the dangerous crimes

against children enhancement. Id. at 242, 792 P.2d at 705.

¶21 On review by certiorari, the United States Supreme

Court vacated the opinion in Bartlett I and remanded the case

for reconsideration in light of its decision in Harmelin v.

Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991). Arizona v.

Bartlett, 501 U.S. 1246, 111 S. Ct. 2880 (1991).

¶22 In Harmelin, a plurality of the Supreme Court

recognized a “narrow proportionality” principle embodied in the

Eighth Amendment that prohibits sentences that are “grossly

disproportionate” to the crime. 501 U.S. at 997, 111 S. Ct. at

2702-03 (Kennedy, J., concurring, joined by O’Connor and Souter,

JJ.). Justice Kennedy determined that the Solem three-part

analysis remained useful, but a reviewing court should consider

the second and third factors – that is, the intra- and inter-

10
jurisdictional analyses – only if “a threshold comparison of the

crime committed and the sentence imposed leads to an inference

of gross disproportionality.” Id. at 1005, 111 S. Ct. at 2707.

¶23 The five opinions in Harmelin left unclear the

contours of the test to be applied on remand in Bartlett’s case.

We concluded, however, that Justice Kennedy’s modified Solem

analysis provided the proper standard by which to reconsider the

sentence in Bartlett I. State v. Bartlett, 171 Ariz. 302, 305,

830 P.2d 823, 826 (1992) (Bartlett II).

¶24 The modified Solem analysis required the court to

first examine whether Bartlett’s sentence was “grossly

disproportionate to his crimes.” Id. at 306, 830 P.2d at 827.

Using the same factors we considered in Bartlett I, we again

concluded that

a sentence of forty years without
possibility of parole for consensual sex
with post-pubescent teenagers reaches the
threshold of gross disproportion, given the
fact that the people, through their
legislature, have adopted statutes under
which the courts impose comparable
punishment by imprisonment for crimes such
as violent rape, second degree murder, and
brutal assault of children.

Id. at 309, 830 P.2d at 830.

¶25 We validated our initial impression of gross

disproportionality by conducting intra- and inter-jurisdictional

analyses, which showed that little change had occurred in the

11
two years that had passed since Bartlett I was decided. Id. at

310, 830 P.2d at 831. These analyses confirmed that Bartlett’s

sentence was grossly disproportionate to his crimes, both

because it was harsher than sentences imposed in Arizona for

more severe crimes and because it was far harsher than the

minimum sentence imposed for a similar offense in any other

jurisdiction. Id.

¶26 Two justices dissented in Bartlett II, 171 Ariz. at

311-16, 830 P.2d at 832-37. Although the dissenting justices

concurred in the majority’s assessment that Justice Kennedy’s

plurality opinion provided the proper framework for a

proportionality review, they disagreed as to what that analysis

entailed. Id. They believed, as does our dissenting colleague

in this case, that the court was prohibited from reviewing the

specific circumstances of Bartlett’s crimes. Id. Rather, they

reasoned, Harmelin permitted an analysis only of “the threat

posed to the individual and to society by the commission of that

crime.” Id. at 312, 830 P.2d at 833 (Corcoran, J., dissenting)

(citing Harmelin, 501 U.S. at 1001-05, 111 S. Ct. at 2705-07).

¶27 Just four years later, the dissent’s position became

the majority. In State v. DePiano, 187 Ariz. 27, 926 P.2d 494

(1996), a three-member majority held that disproportionality

must be measured by the nature of the crime and not by the facts

and circumstances of any particular defendant’s case. Id. at

12
30, 926 P.2d at 497.

¶28 In DePiano, the defendant attempted to commit suicide

by carbon monoxide poisoning by running her car in her closed

garage. Id. at 28-29, 926 P.2d at 495-96. She placed her two

young sons in the car with her. Id. All survived, and DePiano

was sentenced to two flat, consecutive, seventeen-year sentences

for two counts of child abuse. Id. In affirming the

convictions, this court rejected DePiano’s disproportionality

claim “without looking at the particular circumstances

surrounding her offense.” Id. at 30, 926 P.2d at 497.

¶29 As the divergent analyses in Bartlett II and DePiano

show, this court has struggled to interpret the guidance from

the Supreme Court. That Court has acknowledged that it has “not

been a model of clarity” and has not “established a clear . . .

path for courts to follow.” Lockyer, ___ U.S. at ___, 123 S.

Ct. at 1173. Indeed, the Supreme Court has conceded that the

only principle to emerge from its splintered Eighth Amendment

jurisprudence is that a “gross disproportionality principle”

does apply to non-capital cases. Id. Our task today is to

decipher the Court’s jurisprudence and determine the standards

that govern a proportionality review. The proper application of

those standards should resolve the point of divergence between

Bartlett II and DePiano: whether a reviewing court conducting a

proportionality review may examine the specific facts of the

13
case or whether it may only view the crime generally.

¶30 We are aided in this task by the Supreme Court’s

recent decisions in Lockyer and Ewing v. California, ___ U.S.

___, 123 S. Ct. 1179 (2003), companion cases in which the Court

attempted to clarify the appropriate analysis for Eighth

Amendment proportionality review. In each, the Court reviewed a

lengthy sentence imposed under California’s “three-strikes” law.

Lockyer, ___ U.S. at ___, 123 S. Ct. at 1170; Ewing, ___ U.S. at

___, 123 S. Ct. at 1182. Although the opinions in each case are

sharply divided, a majority of the Court now appears to have

adopted the analysis set forth in Justice Kennedy’s plurality

opinion in Harmelin. See Ewing, ___ U.S. at ___, 123 S. Ct. at

1187 (stating that “[t]he proportionality principles in our

cases distilled in Justice Kennedy’s concurrence [in Harmelin]

guide our application of the Eighth Amendment” proportionality

review); see also id. at ___, 123 S. Ct. at 1191-92 (Stevens,

Souter, Ginsburg, and Breyer, JJ., dissenting, agreeing that a

proportionality principle applies).

¶31 In conducting its analysis in each case, the Supreme

Court reviewed the specific facts and circumstances of the

offense that led to the imposition of the three-strike

enhancement, as well as reviewing each defendant’s prior record.

Lockyer, ___ U.S. at ___, 123 S. Ct. at 1169-70; Ewing, ___ U.S.

14
at ___, 123 S. Ct. at 1189-90.3 In Ewing, the specific facts of

Ewing’s crime revealed more than simply “shoplifting”; by

stealing three golf clubs worth nearly $1200, he had committed

grand theft. ___ U.S. at ___, 123 S. Ct. at 1189. Compounding

the seriousness of the acts, Ewing committed his crime while on

probation and “after previously having been convicted of at

least two ‘violent’ or ‘serious’ felonies.” Id. These

individual circumstances, Justice O’Connor concluded, rendered

Ewing’s sentence “justified by the State’s public-safety

interest in incapacitating and deterring recidivist felons, and

amply supported by [Ewing’s] own long, serious criminal record.”

Id. at ___, 123 S. Ct. at 1190. Thus, in conducting its

proportionality review, the Court examined the specific facts

and circumstances of the defendant’s crime.

¶32 Other courts have also reviewed individual

circumstances when conducting proportionality reviews. See

Henderson v. Norris, 258 F.3d 706, 709, 712 (8th Cir. 2001)

(reviewing the specific facts of the defendant’s case, “the harm

caused or threatened to the victim or to society and the

3
Lockyer was before the Court on federal habeas corpus
review. ___ U.S. at ___, 123 S. Ct. at 1171. Because the Court
was examining whether the state had failed to apply “clearly
established federal law,” the analysis in that case provides
little guidance for our inquiry here, except insofar as the
Court considered the defendant’s specific facts and
circumstances. We therefore do not further discuss the Lockyer
opinion.

15
culpability and degree of involvement of the defendant” in

finding a sentence disproportionately long); Hawkins v. Hargett,

200 F.3d 1279, 1283 n.2 (10th Cir. 1999) (concluding that the

defendant’s culpability is relevant in Eighth Amendment

proportionality review); United States v. Harris, 154 F.3d 1082,

1084 (9th Cir. 1998) (considering, in upholding a ninety-five-

year sentence, the facts of a bank robbery that was “undeniably

violent[;] employees and bystanders were threatened and

occasionally harmed”). These recent decisions demonstrate the

utility and appropriateness of analyzing the specific facts and

circumstances of the offenses when determining if a sentence is

grossly disproportionate to the crime committed.

¶33 One other factor motivates us to review the specific

circumstances of Davis’s case: The legislature permits this

court to reduce lengthy sentences when “the punishment imposed

is greater than under the circumstances of the case ought to be

inflicted.” A.R.S. § 13-4037(B) (2001) (allowing imposition of

“any legal sentence”). Although Davis’s sentence fell within

the legal sentencing range, if we find a sentence excessive,

A.R.S. § 13-4037(B) imposes on us the duty to review the

circumstances of the case to determine whether the sentence

imposed is in fact unwarranted.

¶34 Our opinion in DePiano, which prohibited such an

individualized analysis, while an understandable attempt to

16
comply with the Supreme Court’s splintered Eighth Amendment

jurisprudence of the day, now appears to be a rivulet diverting

from the mainstream analysis, and we overrule it.4 Subsequent

guidance from the Supreme Court suggests that, in assessing the

constitutionality of a sentence, the reviewing court should

examine the crime, and, if the sentence imposed is so severe

that it appears grossly disproportionate to the offense, the

court must carefully examine the facts of the case and the

circumstances of the offender to see whether the sentence is

cruel and unusual.

2. Proportionality Review of Davis’s Sentence.

¶35 Against this background, we analyze the sentence

imposed on Davis. We must first determine whether an inference

of gross disproportionality between Davis’s offenses and his

sentence can be drawn.

4
We do not lightly overrule a decision that is barely
eight years old. But stare decisis “is not ‘an imprisonment of
reason,’” Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582,
618, 103 S. Ct. 3221, 3241 (1983) (Marshall, J., dissenting)
(quoting United States v. Int’l Boxing Club of N.Y., 348 U.S.
236, 249, 75 S. Ct. 259, 266 (1955) (Frankfurter, J.,
dissenting)), or an “inexorable command,” Burnet v. Coronado Oil
& Gas Co., 285 U.S. 393, 405, 52 S. Ct. 443, 446-47 (1932)
(Brandeis, J., dissenting), and when later opinions of the
Supreme Court show our constitutional interpretations to be
incorrect, we must overrule them and bring our decisions into
conformity with Supreme Court precedent. See U.S. Const. art.
VI, cl. 2 (supremacy clause).

17
 a. Gross Disproportionality.

¶36 Davis was sentenced to serve fifty-two years in prison

for having non-coerced sex with two post-pubescent teenage

girls. This strikes the court – as it did the jurors, the trial

judge, the pre-sentence report writer, and the girls’ mothers –

as an extraordinarily long sentence. Many of the factors deemed

important in determining that Bartlett’s sentence was

disproportionate to his crimes are also present here: (1)

Davis’s sexual relations with the girls involved neither actual

nor threatened violence; in each instance the girls knew what

they were doing and willingly participated. Indeed, the victims

sought Davis out; all acts occurred after the victims went

voluntarily to Davis’s home. (2) Davis does not have an adult

criminal record, nor has he committed any previous crimes

against children. (3) Post-pubescent sexual conduct appears to

be no less common today than it was in 1990.5 (4) There is

evidence in the record that Davis’s intelligence and maturity

5
A 1997 study conducted by the Center for Disease
Control and Prevention showed that nearly 17% of eighth graders
had previously engaged in sexual conduct, and of those, 46% had
done so with three or more partners. J.V. Fetro, K.K. Coyle, P.
Pham, Health-Risk Behavior Among Middle School Students in a
Large Majority-Minority School District, 71(1) Journal of School
Health 30-37 (2001). Another study found that 25% of fifteen-
year-old females reported having had sex at least once.
Elizabeth Terry and Jennifer Manlove, Trends in Sexual Activity
and Contraceptive Use Among Teens, Child Trends Research Brief
(2000), available at http://www.childtrends.org/onlinecart/
product.cfm?id=628.

18
level fell far below that of a normal young adult. (5) Like

Bartlett, Davis was caught in the very broad sweep of the

governing statute, which makes any sexual conduct with a person

younger than fifteen years old by a person older than eighteen

years old a “dangerous crime against children,” whether the

offense is a rape-incest by a step-parent who forces sex on a

trusting ward or a pedophile who uncontrollably preys upon young

children, see State v. Taylor, 160 Ariz. 415, 773 P.2d 974

(1989), or the more benign boyfriend-girlfriend situation in

which one party is older than eighteen and the other younger

than fifteen.

¶37 We recognize society’s strong interest in protecting

children and understand and appreciate that it is the

legislature’s province to assess the appropriate punishment for

crimes against children. But we cannot say that all incidents

of sexual conduct are of equal seriousness and pose the same

threat to their victims or to society. The broad range of

offenses encompassed by the statute under which Davis was

charged, coupled with the legislature’s command in A.R.S. § 13-

4037(B) and the Supreme Court’s Eighth Amendment jurisprudence,

impose on us the duty to apply the law to the specific facts of

the cases that come before us to determine the constitutionality

of sentences imposed. After conducting that review, we conclude

that Davis’s conduct was swept up in the broad statutory terms,

19
which, in turn, triggered the mandatory sentences imposed. The

trial judge, the jury, the pre-sentence report writer, and even

the victims’ mothers all recognized the injustice of sentencing

Davis to a fifty-two-year prison sentence with no possibility of

early release for the crimes at issue in this case. We cannot

ignore that injustice. While recognizing that many sex crimes

against children may well justify such a sentence, others do

not. We conclude that given the circumstances of Davis’s

offenses, the sentence imposed in this case appears to be

grossly disproportionate to his crimes.

b. Intra-jurisdictional Comparison.

¶38 Once an inference of gross disproportionality has been

found, the Supreme Court suggests that a reviewing court

validate that impression by conducting an intra- and inter-

jurisdictional analysis. 6 Harmelin, 501 U.S. at 1005, 111 S. Ct.

at 2707 (Kennedy, J., concurring); Solem, 463 U.S. at 291-92,

103 S. Ct. at 3010. In the intra-jurisdictional analysis, we

compare the sentences imposed in Arizona for crimes more serious

than those committed by Davis to see whether those sentences

validate our tentative conclusion of gross disproportionality.

6
We recognize that the intra- and inter-jurisdictional
analysis is not required. See Dissent, ¶ 102. But we agree
with the Supreme Court’s suggestion that such an inquiry might
validate the court’s initial impression of gross
disproportionality.

20
See Bartlett I, 164 Ariz. at 242, 792 P.2d at 705.

¶39 Little has changed since this court conducted a

similar analysis in 1990 in Bartlett I. Id. at 236-37, 792 P.2d

at 699-700. It continues to be the case that those guilty of

more serious crimes, such as second degree murder, sexual

assault, or continued sexual abuse of a minor under fifteen

years of age receive the same presumptive sentence that Davis

did. See A.R.S. § 13-604.01(C). It also remains true that

dangerous crimes against children such as kidnapping, child

abuse, aggravated assault, or commercial sexual exploitation of

a child, all seemingly more dangerous crimes than Davis’s, carry

a lesser presumptive sentence and, with mitigation, those who

commit such crimes are eligible for a ten-year minimum sentence

for each count, less than the thirteen-year minimum sentence for

each count for Davis’s crime. A.R.S. § 13-604.01(D).

¶40 Additionally, other serious felony offenses not

involving children receive significantly less severe sentences

in Arizona. Those guilty of kidnapping a person older than

fifteen, A.R.S. § 13-1304 (2001), sexual assault of a victim

older than fifteen, A.R.S. § 13-1406 (2001), first degree

burglary of a residential structure, A.R.S. § 13-1508 (2001),

and arson of an occupied structure, A.R.S. § 13-1704 (2001), are

all eligible for more lenient sentences, and the sentencing

judge may order that multiple sentences be served concurrently.

21
See A.R.S. § 13-708 (2001).

¶41 In response, the State cites five decisions affirming

extremely harsh sentences imposed against those convicted of sex

crimes against children. Taylor, 160 Ariz. at 422, 773 P.2d at

981 (eighty-five consecutive life sentences for a total of 2975

years for sexual exploitation and sexual conduct with minors);

State v. Jones, 188 Ariz. 534, 937 P.2d 1182 (App. 1996) (six

consecutive twenty-five-year sentences for sexual assault);

State v. Hamilton, 177 Ariz. 403, 868 P.2d 986 (App. 1993)

(three consecutive twenty-year sentences for child molestation);

State v. Ross, 166 Ariz. 579, 804 P.2d 112 (App. 1990) (twenty-

five-year sentence for one count of sexual assault); State v.

Crego, 154 Ariz. 278, 742 P.2d 289 (App. 1987) (forty-year

sentence for child molestation). The State argues that these

cases show that Davis’s sentences are not grossly

disproportionate given the way other similar crimes have been

punished in Arizona.

¶42 But even a cursory review of these five cases reveals

enormous differences in the nature of the crimes, the harm to

the victims and to society, and the culpability of the

defendants. In Jones, the victim was the defendant’s daughter,

whom he raped and molested, coerced by threats of violence, for

nearly ten years, from the time the child was five years old

until she turned fourteen. Jones, 188 Ariz. at 537, 539, 937

22
P.2d at 1185, 1187. The five known victims who were the

subjects of the eighty-five counts on which Taylor was convicted

ranged from three to eight years old, and many unknown victims

were never located. Taylor, 160 Ariz. at 417, 423, 773 P.2d at

976, 982.7 The defendant, who had three prior felonies involving

sexual conduct with minors, had a large collection of

photographs of the young victims engaged in various sex acts

with each other and with him. Id. at 417, 422, 773 P.2d at 976,

981. In Hamilton, the victims were the defendant’s girlfriend’s

twelve- and nine-year-old daughters, who had been subjected to

years of sexual abuse and threats of violence when left in the

defendant’s care. Hamilton, 177 Ariz. at 405, 868 P.2d at 988.

In Ross, the defendant and two other males abducted a fourteen-

year-old girl whom they sexually assaulted. Ross, 166 Ariz. at

582, 804 P.2d at 115. Finally, the defendant in Crego was

convicted of molesting two children under the age of fifteen

only months after being released from prison for similar

conduct. Crego, 154 Ariz. at 279-80, 742 P.2d at 290-91.

¶43 Thus, the facts of these cases stand in stark contrast

to the facts of the case before us, in which the post-pubescent

7
Although a sentence of nearly 3000 years is extreme,
it is the functional equivalent of a life sentence without the
possibility of parole. 160 Ariz. at 423, 773 P.2d at 982. Such
a sentence is not cruel and unusual given the facts of Taylor.
Id.

23
victims sought Davis out and willingly participated in the

criminal acts.8 Indeed, we draw two conclusions from the cases

the State cites. First, Davis’s fifty-two-year sentence is

grossly disproportionate to his crimes when compared with the

sentences imposed for the crimes described in the five cases

cited by the State. Second, these cases vividly demonstrate

why, when considering the proportionality of a sentence imposed,

this court must look beyond the nomenclature of the crime

charged and consider the facts of each particular case.

c. Inter-jurisdictional Comparison.

¶44 The inter-jurisdictional analysis requires comparison

of punishments imposed for the same crime in other states.

Bartlett II, 171 Ariz. at 310, 830 P.2d at 831. This court

conducted such a comparison in Bartlett I. 164 Ariz. at 237-41

& nn.4-5, 792 P.2d at 700-04 & nn.4-5. What was true in 1990

when we decided Bartlett I remains true today; the sentence

8
We do not mean to blame the victims or to imply that
they “asked for” what they got. See Dissent, ¶ 78. Nor do we
mean to justify Davis’s crimes. See id. We cite these facts to
show that Davis did not threaten violence or use force to
effectuate his crimes. But in analyzing the constitutionality
of the sentence before us, we are required to assess “the
sentence-triggering criminal conduct,” which includes “the
offender’s actual behavior or other offense-related
circumstances.” Ewing, ___ U.S. at ___, 123 S. Ct. at 1194
(Breyer, J., dissenting) (citing Rummel v. Estelle, 445 U.S.
263, 276, 100 S. Ct. 1133, 1140 (1980), and Solem, 463 U.S. at
290-303, 103 S. Ct. at 3010-16). These “offense-related
circumstances” show that the Defendant did not threaten violence
or use force to effectuate his crimes.

24
Davis received is much more severe than the minimum possible

sentence a defendant could receive in any other state.9 See

supra ¶ 19.

¶45 The minimum sentence in Arizona for an offender who

has no criminal history, but has been convicted of the offenses

at issue here, is four thirteen-year sentences, which must run

consecutively and for which there is no possibility of parole,

for a total of fifty-two years. See A.R.S. § 13-604.01. In no

other state would a defendant in similar circumstances face a

minimum possible sentence exceeding twenty years, and in the few

states in which a twenty-year sentence is possible, the

sentencing judge has the discretion to reduce the sentence.

E.g., R.I. Gen. Laws §§ 11-37-8.1 to -8.2 (2002). In nearly all

states, a defendant guilty of similar crimes could receive

concurrent sentences totaling fewer than five years’

imprisonment. E.g., Cal. Penal Code §§ 261.5, 288(a) (West

9
In applying this analysis from Bartlett I to Davis, we
note that Bartlett was twenty-three when he committed his
crimes, while Davis was only twenty. The dividing line for
criminal responsibility in many states is twenty-one years of
age. Because Davis was only twenty, he would receive more
leniency in some states than Bartlett would have received. On
the other hand, some states increase penalties for sexual
conduct with one younger than fourteen. In Bartlett, both
victims were fourteen. Davis was charged with one count of
sexual conduct with T.E., who was thirteen. In jurisdictions
that draw the line at fourteen, Davis might have received a
stiffer penalty than he would in jurisdictions that do not so
distinguish, but still would not receive a sentence of fifty-two
years in any other jurisdiction.

25
1999), 1170 (West 1985 & Supp. 2003), 1203 (West 1982 & Supp.

2003), 3000 (West 2000 & Supp. 2003) (setting the minimum

sentence that could be imposed for Davis’s offenses at three

years, with the possibility of and eligibility for probation and

parole); N.M. Stat. Ann. §§ 30-9-11(F) (Michie 1997 & Supp.

2002), 31-18-15(A)(6), 31-18-15.1, 31-20-3, 31-20-5, 31-21-10

(Michie 2001) (providing for a sentence of eighteen months,

probation- and parole-eligible).

¶46 In this case, the trial judge and the members of the

jury thought Davis’s sentence was “clearly excessive.” The pre-

sentence report recommended a sentence in the range of five

years, a proposal with which the victims’ mothers agreed. Even

the prosecutor recommended that Davis be eligible to immediately

apply for clemency. But the trial judge was statutorily bound

to impose a flat fifty-two-year sentence. In no other state

would a sentencing judge be required to impose such a severe

sentence. Davis’s sentence, therefore, fails the third prong of

the gross disproportionality test.

d. Consecutive Sentences.

¶47 Although this court normally will not consider the

imposition of consecutive sentences in a proportionality

inquiry, this case cries out for departure from that general

rule. See Bartlett I, 164 Ariz. at 239 n.6, 792 P.2d at 702

n.6. It is in part because judges in Arizona have no discretion

26
regarding the minimum sentence and must impose consecutive

sentences that this sentence fails the proportionality test.10

See A.R.S. §§ 13-604.01(C) (requiring minimum sentence), 13-

604.01(K) (requiring that sentences be served consecutively).

Therefore, to ignore the requirement that the sentences be

served consecutively would be to ignore one of the causes of the

disproportionality. We recognize the legislature’s right to

impose a thirteen-year minimum sentence for dangerous crimes

against children and to require that the sentences be served

completely. We also recognize the legislature’s right to

require consecutive sentences for this type of offense. We

cannot, however, uphold a sentence that becomes

unconstitutionally disproportionate to the crimes committed

because the sentences are mandatorily lengthy, flat, and

consecutive.

¶48 Accordingly, while we recognize that Davis committed

crimes worthy of severe punishment, we nonetheless find that the

application of the mandatory sentencing provisions of the

10
In Lockyer and Ewing, the Court considered important
that the prosecutor had the discretion to charge the crimes as
misdemeanors or felonies and, in both cases, had chosen to
charge the crimes as felonies. Lockyer, ___ U.S. at ___, 123 S.
Ct. at 1170; Ewing, ___ U.S. at ___, 123 S. Ct. at 1183. Even
after conviction, the trial judge could have declined to impose
the sentence enhancement by defining the triggering offenses as
misdemeanors rather than felonies. Lockyer, ___ U.S. at ___,
123 S. Ct. at 1170; Ewing, ___ U.S. at ___, 123 S. Ct. at 1183.
The trial judge had no such discretion in Davis’s case.

27
Dangerous Crimes Against Children Act creates an

unconstitutionally disproportionate punishment in light of the

specific facts and circumstances of Davis’s offenses. We

therefore vacate the sentences and remand this case to the trial

court for resentencing for the offenses for which the

convictions are affirmed as class two felonies, non-dangerous,

pursuant to A.R.S. §§ 13-702, 13-702.01 and 13-702.02.

¶49 Let us be clear that we do not find Davis’s sentence

disproportionate simply because it “seems too long.” Nor are we

merely substituting our judgment for the legislature’s

considered determination of the appropriate punishment for

illegal sexual conduct with a minor. Sex forced on a minor by

an adult may be a dangerous crime and the legislature may punish

it as such. But we recognize that the Supreme Court has

construed the Eighth Amendment to impose on a reviewing court

the duty to examine a sentence claimed to be cruel and unusual

in light of the specific facts and circumstances under which it

is imposed. Having done so in this case, we abide by this

court’s determination that when a punishment is “so severe as to

shock the conscience of society,” it “violates the

constitutional mandate.” State v. Davis (Randal), 108 Ariz.

335, 337, 498 P.2d 202, 204 (1972). That Davis’s fifty-two-year

sentence shocks the societal conscience is apparent from the

reactions of the trial judge, the jurors, and the victims’

28
mothers. Accordingly, our conclusion that Davis’s sentence

violates the Eighth Amendment’s prohibition against grossly

disproportionate punishments is limited to the specific facts

and circumstances in the record before us and is based on our

determination that it is so disproportionate to the offenses

that it shocks the moral sense of the court and community.

B. Lack of a Specific Offense Date in Counts One and Four

¶50 At trial, Davis objected to the instruction informing

the jury that the prosecutor need not prove the exact date on

which the offenses occurred, but that it was “sufficient if the

evidence shows beyond a reasonable doubt that the crime was

committed by the defendant on or about these dates charged in

the indictment.” Davis argues that the State’s failure to

specify a date for counts one and four impermissibly amended the

indictments on those counts. This, he claims, resulted in a

duplicitous charge, which created the possibility of a non-

unanimous jury verdict as to count one and nullified his alibi

defense on counts one and four. We affirm Davis’s conviction on

count four, but reverse and remand for a new trial on count one.

1. Count One.

¶51 Count one charged Davis with having sex with T.E. “on

or about the 18th day of January, 1999.” At trial, T.E.

testified that she had sex with Davis twice, once around the

middle of January and once again during the weekend of January

29
29-31. The State presented the doctor who examined T.E. in

early February. She testified that the examination revealed

signs consistent with T.E. having had sexual intercourse “within

the past week,” which would have been the end of January.

Although the prosecutor mentioned briefly in closing that the

event charged occurred on the 18th, she also argued that the

doctor’s testimony supported a finding that the act occurred on

Super Bowl weekend. Thus, the jury heard evidence that Davis

had sex with T.E. on two separate occasions, occurring at least

eleven days apart. The verdict form for count one, sexual

conduct with T.E., did not specify the date of the offense.

¶52 Davis contends that because the trial judge informed

the jury that the exact dates were not important, the verdict

form for count one contained no date, and there was evidence

that he had sex with T.E. on two separate occasions, count one

effectively and impermissibly charged two crimes.11 Some jurors

might have concluded that he had sex with T.E. on January 18,

11
The court of appeals found it “clear that the state
presented evidence aimed at proving the first act of intercourse
between T.E. and defendant.” State v. Davis, 1 CA-CR 99-1028,
slip op. at ¶ 25 (Ariz. App. Oct. 16, 2001) (mem. decision).
The record shows, however, that the State also presented
evidence and argued in closing that T.E. engaged in sexual
conduct with Davis during the Super Bowl weekend. Specifically,
T.E. testified that she engaged in sexual conduct on two
occasions and the doctor testified that an early February exam
showed that T.E. had engaged in sex one week before, around the
end of January, during Super Bowl weekend.

30
while others, relying on the doctor’s testimony, might have

concluded that he had sex with her the weekend of January 29-31,

but the jury was not unanimous on either date.

¶53 We agree with Davis that such a possibility existed.

a. Charging more than one act in Count One of
the Indictment.

¶54 “[E]ach offense must be charged in a separate count”

in an indictment or complaint. State v. Whitney, 159 Ariz. 476,

480, 768 P.2d 638, 642 (1989) (citing Ariz. R. Crim. P.

13.3(a)). Charging more than one act in a single count is

forbidden because it does not provide “adequate notice of the

charge to be defended, . . . present[s] a hazard of a non-

unanimous jury verdict, and . . . make[s] a precise pleading of

prior jeopardy impossible in the event of a later prosecution.”

Id. (citations omitted).

¶55 We considered an argument similar to the one Davis now

makes in Spencer v. Coconino County Superior Court (State), 136

Ariz. 608, 667 P.2d 1323 (1983). In Spencer, a father was

charged with one count of incest and one count of molestation

for a series of offenses occurring over the course of nearly

four years. Id. at 609-10, 667 P.2d at 1324-25. We concluded

that the defendant was put in jeopardy in the two counts charged

“for any one of what could be one hundred separate criminal

offenses.” Id. at 611, 667 P.2d at 1326. Charging in this

31
manner does not give a defendant “clear notice of the crime with

which he is charged,” and does not allow him to mount an

adequate defense. State v. Martin, 139 Ariz. 466, 471, 679 P.2d

489, 494 (1984). Although the scale is smaller in Davis’s case,

the principle applies.

¶56 But the State asserts, and the court of appeals

agreed, that State v. Schroeder, 167 Ariz. 47, 804 P.2d 776

(App. 1990), disposes of Davis’s claim. In Schroeder, the

defendant was charged with only one count of sexual abuse, but

the victim testified to seven distinct acts of fondling that

occurred one evening. Id. at 51, 804 P.2d at 780. The

defendant argued that the charge was duplicitous because it

failed to specify the particular act on which the charge was

based. Id.

¶57 The court in Schroeder held the charge not duplicitous

because it determined the question to be simply one of

credibility; “only if the jury unanimously accepted the victim’s

version of the events could they find defendant guilty of

sexually abusing her.” Id. at 53, 804 P.2d at 782.

¶58 The acts alleged by T.E., on the other hand, occurred

eleven days apart, and, unlike the defendant in Schroeder, Davis

offered more than one defense. Davis offered an alibi defense

for the charge that he engaged in sexual conduct with the

victims over the Super Bowl weekend and contended that he did

32
not have sex with T.E. at all. He also attempted to show that

T.E. could have engaged in sex with another person staying at

his house during the Super Bowl weekend. Thus, the two distinct

acts here differ from the evening’s events in Schroeder, and

call for a different conclusion.

¶59 We conclude that Davis’s case is more like Spencer’s.

Spencer, 136 Ariz. at 611, 667 P.2d at 1326. We think it

possible that some jurors may have believed Davis’s alibi

defense and convicted him for an offense on January 18, while

other jurors may have convicted him for the Super Bowl weekend

offense, based on the doctor’s testimony that T.E. had engaged

in sex within the preceding week. Because we cannot be certain

which offense served as the predicate for the conviction, we

conclude that the real possibility of a non-unanimous jury

verdict exists.

¶60 The State contends, however, that the charge is not

duplicitous because the date of the offense is not an element of

the crime of sexual conduct with a minor. See Jones, 188 Ariz.

at 543, 937 P.2d at 1191. While we agree with the general

proposition, the case on which the State relies is inapposite to

the point. In Jones, the evidence showed and the jury found the

same number of sexual assaults as alleged in the indictment.

Id. Here, Davis was convicted of one count, based on proof of

two acts.

33
¶61 If the indictment, the evidence, the jury

instructions, and jury forms reflect the same number of

offenses, the State does not need to prove the exact date of the

offenses. When, however, “the evidence shows, or tends to show,

that several acts of intercourse have occurred between defendant

and prosecuting witness, it is incumbent upon the prosecution to

elect which one of such acts it relies upon for a conviction.”

Hash v. State, 48 Ariz. 43, 50, 59 P.2d 305, 308 (1936).

Failure to do so results in a duplicitous charge. That is what

happened here, and the resulting risk that the jury returned a

non-unanimous verdict constituted error.

b. Waiver.

¶62 The court of appeals found, and our review of the

record confirms, that Davis did not object at trial to the jury

form for count one. Failure to object at trial waives an error

unless the error is fundamental. Ariz. R. Crim. P. 21.3(c);

State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).

The court of appeals concluded that the failure to specify the

date on the form was not fundamental error.

¶63 While we agree that failure to object to a jury form

will rarely result in reversal, that is not the gravamen of

Davis’s complaint. Davis complains that the verdict form

allowed the jury to choose between two acts on which to convict

him on count one, creating a duplicitous charge. Therefore, the

34
heart of Davis’s complaint regarding count one is not an

incorrect jury form, but rather a duplicitous charge, which led

to a non-unanimous jury verdict.

¶64 Article 2, Section 23 of the Arizona Constitution

guarantees a defendant the right to a unanimous jury verdict in

a criminal case. A violation of that right constitutes

fundamental error. State v. Woods, 141 Ariz. 446, 456, 687 P.2d

1201, 1211 (1984); see also State v. Counterman, 8 Ariz. App.

526, 531, 448 P.2d 96, 101 (1968); cf. United States v. Ullah,

976 F.2d 509, 512 (9th Cir. 1992) (stating that under federal

law a unanimous jury verdict is nonwaivable).

¶65 In Counterman, a defendant who fired his weapon twice

during a domestic dispute argued that the prosecution presented

evidence of two separate assaults and had to elect which event

supported the charge, otherwise the charge would be duplicitous.

8 Ariz. App. at 530, 448 P.2d at 100. The court noted that a

duplicitous charge creates the danger that the jury will not

return a unanimous verdict and failure to do so is fundamental

error. Id. at 531, 448 P.2d at 101; see also Woods, 141 Ariz.

at 456, 687 P.2d at 1211. While in Counterman the court upheld

the defendant’s conviction because it determined that the series

of events formed a single transaction, such is not the situation

in Davis’s case. The two acts that the State relied upon to

support the charge involving T.E. occurred approximately eleven

35
days apart and were not part of a single transaction.

¶66 Because the State offered evidence of more than one

offense to support its first charge against Davis and the events

were not part of a single transaction, we conclude that the

charge was duplicitous. And because the jury determination may

have been other than unanimous, we find the error fundamental.

Accordingly, we vacate Davis’s conviction as to count one and

remand for a new trial. Because we vacate Davis’s conviction

for count one based on duplicity, we need not consider the

effect of the jury instruction on his alibi defense for that

count.

2. Count Four.

¶67 Count four charged Davis with having sex with P.T. “on

or about January 29.” At trial, the State attempted to prove

that P.T. had sex with Davis on three separate occasions:

January 20, 25, and 29 (counts two, three, and four). Davis

presented an alibi for January 29, and thus asserted that he

could not have committed the crime charged in count four. The

trial court instructed the jury that the exact date was not an

element of the offense and that the State need only prove that

the crime was committed “on or about” the date alleged.

¶68 Davis argues that because the State was not required

to prove the specific date for count four, he was effectively

prevented from presenting an alibi defense. We disagree.

36
¶69 Davis testified that he worked all day on January 29,

adding that he spent the night in his truck at the job site.

Davis’s boss confirmed that Davis worked at the job site that

day. Davis’s trial counsel argued in closing that Davis was not

at home on January 29 and thus could not have committed the

crime on the 29th. The trial judge gave an alibi instruction

before the jury began its deliberations. Thus, Davis presented

evidence of an alibi, his counsel argued the alibi defense in

closing, and the trial judge instructed the jury regarding the

alibi defense. The jury simply did not believe the defense.

¶70 A defendant’s mere assertion of an alibi defense

“cannot compel the state to elect an exact day.” State v.

Simmering, 89 Ariz. 261, 264, 361 P.2d 4, 6 (1961). In State v.

Verdugo, for example, the defendant was charged with two counts

of rape occurring “on or about the month of August.” 109 Ariz.

391, 392, 510 P.2d 37, 38 (1973). The defendant put forth an

alibi defense, offering evidence that he was out of town during

the summer and fall of that year and presenting witnesses who

testified that he worked with them in Nashville, Tennessee until

“Halloween” that year. Id. This court concluded that the

defendant was not deprived of his alibi defense; rather, the

jury “apparently failed to believe” his defense. Id.

¶71 In this case, the State presented evidence that count

four occurred on January 29, but it also presented evidence that

37
the offense occurred sometime during that weekend. The jury

heard from P.T. that she could not remember the exact dates of

her sexual encounters with Davis, but she narrowed the date of

the third encounter to Super Bowl weekend, which included

January 29. Perhaps most damaging to Davis’s defense was his

own admission that he had sex with P.T. on three separate

occasions in January. Thus, the jury either rejected Davis’s

alibi defense outright or concluded that, although he may have

been at work on the 29th, he nevertheless had a sexual encounter

with P.T. “on or about” January 29th. In either circumstance,

there was sufficient evidence to support the conviction on count

four of the indictment.

CONCLUSION

¶72 We vacate Davis’s conviction as to count one, affirm

all other convictions, vacate the sentences imposed, and remand

the case to the superior court for retrial and sentencing

pursuant to A.R.S. §§ 13-702, 13-702.01 and 13-702.02.

_______________________________________
Rebecca White Berch, Justice

CONCURRING:

______________________________________
Charles E. Jones, Chief Justice

38
______________________________________
Nanette M. Warner, Judge*

*Due to the vacancy created by the retirement of Justice
Thomas A. Zlaket, the Honorable Nanette M. Warner, Judge of the
Pima County Superior Court, was designated to sit with the court
and participate until the final disposition of this matter.
Ariz. Const. art. 6, §§ 3, 20; A.R.S. § 38-813 (2001).

NOTE: Justice Stanley G. Feldman sat for oral argument but
retired before the filing of the opinion and therefore did not
participate in the opinion.

M c G R E G O R, Vice Chief Justice, concurring in part and
dissenting in part:

¶73 I agree with much of the majority opinion. I agree

that Davis received a very long sentence following his

conviction of four counts of sexual misconduct with a minor,

based upon four instances of sexual intercourse with girls under

fifteen years of age. Op. ¶ 36. I agree that the United States

Supreme Court has now made clear, through its decision in Ewing

v. California, ___ U.S. ___, ___, 123 S. Ct. 1179, 1187 (2003),

that in deciding whether a sentence is so grossly

disproportionate as to violate the Eighth Amendment, we should

apply the approach first announced in Justice Kennedy’s

concurring opinion in Harmelin v. Michigan, 501 U.S. 957, 996-

1001, 111 S. Ct. 2680, 2702-05 (1991) (Kennedy, J., concurring).

39
Op. ¶ 30. I also agree that applying the Harmelin principles

allows us to consider the facts of the crime involved. Op. ¶

31.

¶74 For several reasons, I dissent from the majority’s

holding that the Eighth Amendment prohibits the sentence imposed

in this case. First, the majority interprets Harmelin too

broadly and bases its proportionality analysis not only upon the

facts of the crime but also upon its view of the relative

culpability of the defendant and relative blameworthiness of the

victims. Second, while the majority states that it will apply

the proportionality principles of Harmelin, the opinion instead

relies upon the approach defined in Solem v. Helm, 463 U.S. 277,

103 S. Ct. 3001 (1983), an approach that produces a result

different from that reached under the Harmelin analysis.

Finally, the majority relies upon factors that, in my view,

should not apply to and do not further an Eighth Amendment

analysis.

I.

¶75 My first point of departure from the majority involves

its decision to conduct its proportionality analysis by

considering not only the facts of Davis’s crimes but also its

subjective characterization of the actions of the victims and

the defendant. In Ewing v. California, the Supreme Court

considered whether the Eighth Amendment prohibits imposing a

40
life sentence under California’s recidivist statute, commonly

referred to as the “three strikes and you=re out” law. ___ U.S.

at ___, 123 S. Ct. at 1182. As the majority notes, the Ewing

Court discussed the nature of the offenses of which Ewing had

been convicted prior to engaging in its proportionality review.

Id. at ___, 123 S. Ct. at 1189-90. The Court had followed a

similar practice in earlier Eighth Amendment proportionality
12
decisions. In those decisions, the Court described, although

it seemed not to attach great importance to, the crimes

committed by the defendants. In this case, adopting that

practice would justify our considering more than the language of

the statutes under which the jury convicted Davis. That is, we

can take into account not simply that this case involves an

adult charged with four counts of sexual misconduct with two

minors, but also that the jury convicted Davis, a twenty-year-

old man, of four counts of sexual misconduct, occurring on four

separate occasions, and involving two girls, aged thirteen and

fourteen.

¶76 The majority, however, takes a far more expansive view

of the nature of the offenses and also considers the relative

12
See, e.g., Harmelin, 501 U.S. at 961, 111 S. Ct. at
2684; Solem, 463 U.S. at 279-84, 103 S. Ct. at 3004-06; Hutto v.
Davis, 454 U.S. 370, 370-72, 102 S. Ct. 703, 703-04 (1982) (per
curiam); Rummel v. Estelle, 445 U.S. 263, 264-68, 100 S. Ct.
1133, 1134-36 (1980).

41
culpability of Davis and of the victims. That approach leads to

the most disquieting feature of the majority opinion.

¶77 The majority finds significant the victims’ prior

sexual history and their “consent” to sexual misconduct by

Davis. The opinion discusses, for instance, the fact that T.E.
13
had engaged in sexual activity when she was twelve years old.

Op. ¶ 2. The majority also finds it important to note that the

victims “sought Davis out,” Op. ¶¶ 36, 43, that the victims

“knew what they were doing,” Op. ¶ 36, and that they “willingly

participated” in the sexual conduct. Op. ¶¶ 36, 43.

¶78 I thought we long ago had put aside any approach that

blames victims for sexual crimes. The notion that a young

victim “asks for it” or deserves to become the victim of sexual

misconduct because he or she does not object to the sexual

activity must be discarded. Our laws permit no justification

defense that relies upon the argument that a young victim

seduced his or her violator or consented to the violation, and

this court should not suggest that such a justification plays

any role in evaluating the culpability of a defendant.

¶79 The majority’s decision to examine the personal

culpability of the defendant also leads it into a fact-finding

13
For some reason, the majority does not comment upon
P.T.’s sexual history, although three of the counts of which
Davis was convicted involved her.

42
role for which this court is not suited. The majority states

that “[t]here is evidence in the record that Davis’s

intelligence and maturity level fell far below that of a normal

young adult.” Op. ¶ 36. That finding does not inhere in the

jury’s verdict, and we have no finding from the trial judge or

the jury that this statement accurately describes Davis. We

should not base constitutional analysis upon factual findings

made by this court while acting in its capacity as an appellate

court.

¶80 Although this court should not engage in

characterizing the relative culpability of Davis and the

victims, our justice system does provide a method for

undertaking the type of analysis engaged in today by the court.

If a trial judge concludes that a sentence required by law is

clearly excessive, the judge can enter a special order allowing

the defendant to petition the board of executive clemency (the

Board) for a commutation of sentence within ninety days after a

defendant is committed to custody. Arizona Revised Statutes

(A.R.S.) § 13-603.L (Supp. 2002). The trial judge followed that

procedure in this matter. Op. ¶ 10. If the Board finds by

clear and convincing evidence that the sentence is clearly

excessive and that a substantial probability exists that the

offender will conform to the law, the Board can recommend that

the governor commute the sentence. A.R.S. § 31-402.C.2 (2001).

43
The Board makes its findings, however, only after holding a

hearing at which the victim, county attorney, and presiding

judge receive a chance to be heard. Id. Rather than rely on

that existing procedure, the majority today, without the benefit

of a hearing, simply substitutes its judgment for that which the

Board might make.

¶81 The majority’s decision to consider the relative

culpability and blameworthiness of the defendant and the victims

as part of an Eighth Amendment proportionality analysis suffers

from another shortcoming: It inserts considerable subjectivity

into the court’s analysis. The Supreme Court has instructed

that the Eighth Amendment proportionality analysis should rely

upon objective factors. Ewing, ___ U.S. at ___, 123 S. Ct. at

1186 (citing Harmelin, 501 U.S. at 1001, 111 S. Ct. at 2705).

The majority’s approach makes following that direction

impossible. Would the outcome today differ if the court

regarded the defendant as more mature or if the defendant had

been twenty-two rather than twenty years of age or if at least

one of the victims had not revealed prior sexual activity? Such

subjectivity, it seems to me, has no place in the constitutional

analysis this case requires the court to make.

II.

¶82 The majority concludes, and I agree, that we should

apply the principles of Harmelin in conducting an Eighth

44
Amendment proportionality analysis. Op. ¶ 30. Rather than

analyze this case under the Harmelin principles, however, the

majority actually applies the analysis used in Solem v. Helm, as

interpreted by this court in State v. Bartlett, 171 Ariz. 302,

830 P.2d 823 (1992) (Bartlett II), and State v. Bartlett, 164

Ariz. 229, 792 P.2d 692 (1990) (Bartlett I). That approach

skews and affects the outcome of the analysis.

¶83 In Ewing v. California, the Court announced that the

“proportionality principles in our cases distilled in Justice

Kennedy=s concurrence [in Harmelin] guide our application of the

Eighth Amendment . . . .” ___ U.S. at ___, 123 S. Ct. at 1187.

The Court recognized four principles of proportionality review

identified by Justice Kennedy in Harmelin:

“[T]he primacy of the legislature, the
variety of legitimate penological schemes,
the nature of our federal system, and the
requirement that proportionality review be
guided by objective factors”Bthat “inform the
final one: The Eighth Amendment does not
require strict proportionality between crime
and sentence. Rather, it forbids only
extreme sentences that are ‘grossly
disproportionate’ to the crime.” Justice
Kennedy’s concurrence [in Harmelin] also
stated that Solem “did not mandate”
comparative analysis “within and between
jurisdictions.”

Id. at ___, 123 S. Ct. at 1186-87 (quoting Harmelin, 501 U.S. at

1001, 1004-05, 111 S. Ct. at 2705, 2707).

¶84 In applying the Harmelin/Ewing analysis, we must be

45
mindful that the Eighth Amendment contains only a “narrow

proportionality principle” that “applies to noncapital

sentences.” Harmelin, 501 U.S. at 996-97, 111 S. Ct. at 2702-

03. “Outside the context of capital punishment, successful

challenges to the proportionality of particular sentences have

been exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272,

100 S. Ct. 1133, 1138 (1980). To demonstrate the extremely

narrow parameters of the proportionality principle in noncapital

cases, the Supreme Court has explained that the principle would

“come into play in the extreme example . . . if a legislature

made overtime parking a felony punishable by life imprisonment.”

Id. at 274 n.11, 100 S. Ct. at 1139 n.11. This case does not

fit within the narrow scope of the proportionality principle

that the court purports to apply.

A.

¶85 Under the Harmelin/Ewing analysis, we should first

consider the primacy of the legislature and focus our analysis

upon the public policy judgments made by the legislature when it

enacted the Dangerous Crimes Against Children Act (the Act),

which includes A.R.S. section 13-604.01, the sentencing statute

at issue here.14

14
For a comprehensive description of the various
provisions adopted as part of the Dangerous Crimes Against
Children Act, see State v. Williams, 175 Ariz. 98, 854 P.2d 131
(1993).

46
¶86 We have previously considered the legislature’s intent

in adopting the enhanced penalties of section 13-604.01:

The legislature’s purpose in enacting the
Dangerous Crimes Against Children Act can be
surmised. Protecting the children of
Arizona and punishing severely those who
prey upon them certainly are two legislative
goals. In addition . . . the legislature is
attempting to address the problem of
recidivism alleged to exist in this category
of offender.

State v. Wagstaff, 164 Ariz. 485, 490-91, 794 P.2d 118, 123-24

(1990). The language of section 13-604.01 reflects the

legislature’s decision to protect, punish, and deter.

¶87 Rather than defer to the legislature’s public policy

choices reflected in the Act, the majority identifies five

factors it deems important in concluding that Davis’s sentence,

although required by the clear language of the Act, was grossly

disproportionate to the crimes he committed. I find none of the

majority’s justifications for departing from the statutory

language persuasive.

¶88 The majority first concludes that the crimes “involved

neither actual nor threatened violence” because the victims

consented to the sexual acts, noting that the girls “willingly

participated.” Op. ¶ 36. In other words, the crimes involved

“non-coerced sex with two post-pubescent teenage girls.” Id.

But the legislature has already made the policy decision that

children under the age of fifteen cannot give consent to sexual

47
intercourse.15

¶89 Our society and legal system recognize that, when a

child falls below a particular age, that child lacks capacity to

consent to harmful acts committed against the child. Because

children cannot protect themselves, society and the law assume

responsibility for protecting children in those instances in

which a child’s lack of capacity prevents him or her from giving

consent:

The state has a recognized interest in the
welfare of its citizens who, by reason of
age or physical or mental disability, cannot
care for themselves. So it is with children
of tender years. The conclusive presumption
that children less than sixteen years of age
are unable to consent to sex acts is but a
further extension of the protective arm of
government which is universally followed.

Payne v. Commonwealth, 623 S.W.2d 867, 875 (Ky. 1981); see also

Charles A. Phipps, Children, Adults, Sex and the Criminal Law:

In Search of Reason, 22 Seton Hall Legis. J. 1, 33-34 (1997)

(noting that protecting children is one of the most consistently

expressed reasons for prohibiting sexual conduct with children).

¶90 We do not enforce contracts entered into by children

15
Under A.R.S. section 13-1407, an accused can defend a
charge under section 13-1405, the statute under which the jury
convicted Davis, by asserting his lack of knowledge of the
victim’s age if the victim’s lack of consent is based on
incapacity to consent and the victim is fifteen, sixteen or
seventeen years of age. A.R.S. § 13-1407.B (2001). The
legislature expressly excluded this defendant from being able to
argue that these victims could actually consent to his actions.

48
because they lack capacity to consent, Worman Motor Co. v. Hill,

54 Ariz. 227, 231, 94 P.2d 865, 866 (1939), and we surely must

not place responsibility for determining whether a child should

engage in sexual activity with an adult upon the child. Yet the

majority adopts just such a view today and makes the victims of

these crimes at least partially responsible because they

“willingly participated.”

¶91 Determining the age of consent requires that a line be

drawn. Presumably all would agree that a ten-year-old child

could not consent to sexual relations, no matter what words the

child used to express consent, and even if he or she had become

sexually active at eight years of age. The majority may

disagree with the placement of the line drawn for consent by the

legislature, but unless the age selected by the legislature is

irrational, this court should not engage in re-drawing the lines

involving age of consent.16

¶92 Nor can we take comfort from the fact that these

victims were “post-pubescent,” another fact afforded

16
The statutes defining sexual offenses against children
frequently involve distinctions based on age. See, e.g., A.R.S.
§ 13-1405.B (2001) (class of felony depends upon whether victim
is under fifteen years of age); A.R.S. § 13-1407.F (2001)
(defense to prosecution if victim fifteen, sixteen or seventeen
and defendant less than nineteen or attending high school and no
more than twenty-four months older than victim and conduct is
consensual); A.R.S. § 13-1410.A (2001) (child molestation
involves sexual contact with child under fifteen years of age).

49
significance in the majority opinion. Op. ¶¶ 36, 43. The age

of consent involves mental, not physical, maturity. A

profoundly retarded adult could not consent to sexual relations,

regardless of his or her physical maturity. A.R.S. § 13-

1401.5(b) (2001) (“without consent” includes victim incapable of

consent by reason of mental disorder or mental defect). Whether

these children were pre- or post-pubescent, therefore, does not

affect their capacity to consent.

¶93 The majority then observes that Davis “does not have

an adult criminal record, nor has he committed any previous

crimes against children.” Op. ¶ 36. The record supports that

statement, although Davis, of course, did commit more than one

crime against children; the jury convicted him of four crimes

against children.

¶94 The majority also finds support for its holding by

observing that post-pubescent sexual conduct appears no less

common today than it was in 1990, the year we decided Bartlett

I. I do not doubt that the majority’s statement is accurate,

but the legislature also presumably knew of “post-pubescent

sexual conduct” when it adopted the Act and imposed harsher

punishment for those who engage in sexual misconduct with

children under the age of fifteen.

¶95 The majority further states that “[t]here is evidence

in the record that Davis’s intelligence and maturity level fell

50
far below that of a normal young adult.” Op. ¶ 36. As

previously mentioned, this factor relies upon fact-finding

undertaken by this court, without the benefit of a hearing, and

provides no reliable basis for conducting a proportionality

review under the Eighth Amendment.

¶96 The next factor considered in the majority’s

proportionality review involves its conclusion that “Davis was

caught in the very broad sweep of the governing statute, which

makes any sexual conduct with a person younger than fifteen

years old by a person older than eighteen years old a ‘dangerous

crime against children . . . .’” Id. The statute, by its

terms, generally operates precisely as described.17 We

previously have recognized, however, that the legislature used

broad language because it intended that an adult who targets a

child “assumes the risk that the victim will turn out to be

within a protected age group.” State v. Williams, 175 Ariz. 98,

103, 854 P.2d 131, 136 (1993). If the court regards the statute

as applying to conduct that the state cannot regulate, we should

overturn the statute because it is overbroad. See Purcell v.

17
The legislature has recognized some exceptions to the
general language of the statute. For instance, A.R.S. section
13-1407.F allows a defendant to assert, as a defense to
prosecution, that he is less than nineteen or attending high
school and that the victim is between fifteen and seventeen and
consented to the sexual conduct. The majority seeks to add
further exceptions to the language of the statute.

51
Super. Ct., 111 Ariz. 582, 584, 535 P.2d 1299, 1301 (1975)

(finding that a statute that applies to conduct the state cannot

regulate is overbroad). Absent such a determination, we should

apply the statute as written to further the legislature’s intent

in adopting the Act.

¶97 The majority might prefer that different ages apply,

both for defendants and victims, Op. ¶ 44 n.9, and the Arizona

Legislature certainly could have selected older or younger ages.

Another legislature might well conclude that sexual conduct with

a fourteen-year-old child is not a dangerous crime against

children unless the adult is twenty-one or twenty-five or thirty

years old, or unless the victim is less than fourteen, or less

than thirteen, or less than twelve years of age. But we

generally leave to the legislature the task of drawing such

lines, which must be placed somewhere if we regard dangerous

crimes against children as deserving punishment more severe than

crimes committed against adults.

¶98 We should not conduct a proportionality review without

giving full consideration to the policies underlying a

challenged sentencing scheme. In Ewing v. California, the Court

concluded: “When the California Legislature enacted the three

strikes law, it made a judgment that protecting the public

safety requires incapacitating criminals who have already been

convicted of at least one serious or violent crime. Nothing in

52
the Eighth Amendment prohibits California from making that

choice.” Ewing, ___ U.S. at ___, 123 S. Ct. at 1187. In

adopting the Dangerous Crimes Against Children Act, the Arizona

Legislature made a judgment that public safety requires severe

punishment of adults who engage in sexual conduct with children

under the age of fifteen. Our laws have long granted special

protection to children, and I do not think the Eighth Amendment

prohibits the state from choosing to afford extra protection to

children under the age of fifteen when they become victims of

sexual misconduct by adults. Although the Act required the

trial judge to impose very long sentences in this instance, I

would find no gross disproportionality between the crimes and

the sentences.

B.

¶99 The second principle of proportionality review defined

by Harmelin/Ewing, which the majority does not address, directs

us to consider the variety of legitimate penological schemes

that a legislature may choose to adopt. This court has

recognized that, in adopting the Act, the legislature intended

to protect children, to punish severely those who prey upon

children, and to address the problem of recidivism alleged to

exist in this class of offender. Wagstaff, 164 Ariz. at 490-91,

794 P.2d at 123-24. Protection, punishment, and deterrence

constitute appropriate penological schemes. Applying this

53
factor of the Harmelin/Ewing proportionality review, then, also

indicates that this case does not fall within the narrow range

of those sentences that offend the Eighth Amendment.

C.

¶100 The final Harmelin/Ewing principle applicable here18

requires that “proportionality review be guided by objective

factors.” Ewing, ___ U.S. at ___, 123 S. Ct. at 1186. I cannot

discern the objective factors applied by the majority. Rather

than consider objective factors, the majority has elected to

base its decision upon factors other than those the legislature

emphasized in adopting the Act. I am uncertain how to apply the

approach adopted today, which echoes that of Bartlett I and

Bartlett II, except to conclude that when an adult under some

undefined age engages in sexual conduct with a child above some

undefined age, we will find the sentences required by Arizona

law grossly disproportionate to the crimes committed,

particularly if the victim is post-pubescent and admits to some

sexual experience. Those factors do not, in my view, provide

the sort of objective analysis envisioned by Harmelin/Ewing.

18
The third principle of proportionality review involves
the nature of the federal system. Ewing, ___ U.S. at ___, 123
S. Ct. at 1186. That factor does not apply to our analysis of
state legislation, although we should afford the same deference
to legislative decisions involving sentencing schemes as do the
federal courts.

54
¶101 The majority opinion implicitly recognizes the lack of

standards developed for a proportionality analysis by limiting

its decision “to the specific facts and circumstances in the

record before us,” Op. ¶ 49, the same approach taken in Bartlett

I and Bartlett II. Bartlett II, 171 Ariz. at 308-09, 830 P.2d

at 829-30 (“As we said before . . . ‘[a]lthough such a harsh

penalty may be justified in the context of other, more heinous

crimes . . . it is not justified under the specific

circumstances of this case.’” (quoting Bartlett I, 164 Ariz. at

236, 792 P.2d at 699)); Bartlett I, 164 Ariz. at 241, 792 P.2d

at 704 (“In this case, however, we hold that the statutory range

of sentencing . . . cannot constitutionally be applied to

defendant’s crimes under the facts and circumstances of this

case.”). The state, defendants, victims and trial courts should

be able to rely upon clear principles of analysis that apply to

all cases, rather than being required to consider the specific

facts of each case without discernible guidelines. The

principles of proportionality review set out in Harmelin/Ewing

provide such guidelines, and I would follow them.

III.

¶102 Although Harmelin/Ewing does not mandate a comparative

analysis within and between jurisdictions, the majority devotes

much of its opinion to engaging in just such an analysis. Op.

¶¶ 38-43. I disagree with the premise underlying that analysis.

55
¶103 The majority’s intra-jurisdictional comparison relies

upon the premise that those convicted of “crimes more serious”

receive the same or a lesser presumptive sentence when compared

with that given Davis. Op. ¶ 38. But that conclusion assumes

the question. The legislature has determined that sexual

conduct with children unable to give consent is a very serious

crime. The majority may regard kidnapping of a person older

than fifteen, first degree burglary of a residential structure,

or arson of an occupied structure as more serious than sexual

conduct with a minor, Op. ¶ 40, but the legislature did not.

Although the majority assumes that the harm to society and

victims for the crimes involved here is relatively slight, the

legislature could, and did, decide otherwise.19

¶104 After considering other decisions that upheld

extremely harsh sentences for those convicted of dangerous

19
Children involved in sexual conduct are not engaged in
harmless fun. Numerous studies point to serious difficulties
that result from such activity. For instance, one study found
that the frequency of sexual activity during adolescence is
related to coerced sex, or sexual victimization, later in life.
Janine M. Zweig et al., Adolescent Risk Factors for Sexual
Victimization: A Longitudinal Analysis of Rural Women, 17 J.
Adolescent Res. 586, 595-96 (Nov. 2002). Another study found
that adolescents who initiate health-risk behaviors such as
sexual intercourse at an early age frequently experience poorer
health later in life, lower educational attainment, and less
economic productivity than their peers. Kathleen Mullan Harris
et al., Evaluating the Role of “Nothing to Lose” Attitudes on
Risky Behavior in Adolescence, 80 Soc. Forces 1005, 1008 (Mar.
2002).

56
crimes against children,20 Op. ¶¶ 41-42, the majority concludes

that those decisions involve “enormous differences in the nature

of the crimes, the harm to the victims and to society, and the

culpability of the defendants.” Op. ¶ 42. In reaching that

conclusion, the majority again relies upon the notion that these

“post-pubescent victims sought Davis out and willingly

participated in the criminal acts.” Op. ¶ 43. That statement

troubles me on several levels. First, nothing these victims did

constituted a criminal act; only Davis committed criminal acts.

Second, once again the statement imposes responsibility for an

adult’s actions upon victims too young to give consent. Much

younger children also “consent” to predatory acts. I am

uncertain just where this line of analysis leads us, and I am

unwilling to conclude, without the benefit of generally

applicable principles, that particular crimes do not merit the

20
Because Arizona has adopted harsh sentencing laws,
many other examples of extremely long sentences exist, both in
cases involving crimes against children and in cases involving
other crimes. See, e.g., State v. Jonas, 164 Ariz. 242, 792
P.2d 705 (1990) (forty-six years for trafficking in stolen
property and sale of one marijuana cigarette to a minor under
fifteen); State v. Hummer, 184 Ariz. 603, 911 P.2d 609 (App.
1995) (three consecutive life sentences and three concurrent
twelve-year sentences for convictions of two counts of sexual
conduct with a minor, three counts of furnishing obscene
materials to a minor, and one count of molestation of a minor,
with two prior felony convictions); State v. Freeland, 176 Ariz.
544, 863 P.2d 263 (App. 1993) (life without possibility of
parole for twenty-five years for aggravated assault while on
probation); State v. Jobe, 157 Ariz. 328, 757 P.2d 604 (App.
1988) (fifty-five years for two counts of child molestation).

57
punishment selected by the legislature.

IV.

¶105 In addition to disagreeing with the majority’s failure

to apply the Harmelin/Ewing principles, I cannot agree with

several other conclusions reached in the majority opinion.

¶106 First, while recognizing that we usually do not

consider the imposition of consecutive sentences as part of a

proportionality review, the majority finds reason to depart from

our general rule. Op. ¶ 47. Although the majority does not

make its conclusion explicit, I gather that the majority does

not regard a sentence of thirteen years as grossly

disproportionate to the crime of sexual misconduct with a child.

That is, the majority would not reach the conclusion that the

sentences required by law for Davis violate the Eighth Amendment

if Davis could have served the sentences concurrently. If that

is so, then today’s analysis should focus upon A.R.S. section

13-604.01.K, which requires consecutive sentences, rather than

upon section 13-604.01.C. An analysis of section 13-604.01.K

would require that we consider the legislature’s reasons for

requiring consecutive sentences rather than the facts

surrounding the underlying convictions.

¶107 I also cannot agree with the majority’s conclusion

that we can determine that Davis’s sentence “shocks the societal

conscience” because of “the reactions of the trial judge, the

58
jurors, and the victims’ mothers.” Op. ¶ 49. Surely a test of

constitutional validity cannot depend upon such subjective

factors. Would the result required by the Eighth Amendment be

different if these victims’ mothers had been less understanding

of Davis’s conduct or more protective of their children? If the

trial judge or jurors had not made their comments, would this

case pass constitutional muster? Moreover, why should we look

to these few individuals to define the societal conscience? The

statute adopted by the legislature also reflects societal norms.

Why should we regard the personal reactions of those involved in

this particular case as more reflective of society’s norms than

is the legislation enacted by a representative body? I cannot

agree that constitutional analysis should depend upon the

subjective factors relied upon by the majority.

¶108 Finally, although I heartily agree with the majority

that the inordinately long sentence involved here derives partly

from the fact that judges in Arizona have no discretion in

deciding whether to impose consecutive sentences under these

circumstances, I do not agree that the lack of discretion should

be considered in our proportionality analysis. As the majority

avers, in Ewing v. California, the Supreme Court referred to the

facts that the crimes involved were “wobblers” and that both the

prosecutor and the trial judge could exercise discretion in the

treatment of such crimes. The Court expressly stated, however,

59
“That grand theft is a ‘wobbler’ under California law is of no

moment.” Ewing, ___ U.S. at ___, 123 S. Ct. at 1189. We

cannot, therefore, rely upon Ewing v. California to support the

majority’s discussion of the importance of judicial or

prosecutorial discretion in conducting this proportionality

review.

V.

¶109 For the foregoing reasons, I respectfully dissent from

paragraphs 13 through 49 of the majority opinion. I concur in

the remainder of the decision.

_______________________________________
Ruth V. McGregor, Vice Chief Justice

60