STATE OF ARIZONA v. JAMES ALLEN MCNULTY (2025)

OPINION

¶1 Defendant James Allen McNulty appeals his convictions and sentences for three counts of attempted sexual exploitation of a minor and one count of aggravated luring a minor, arguing that they should be vacated based on outrageous governmental conduct. The State cross-appeals the court's dismissal of two convictions for luring a minor and one conviction for aggravated luring a minor, claiming that the convictions did not violate double jeopardy.

¶2 We hold that multiple charges for aggravated luring do not violate double jeopardy if the State proves to the jury that the defendant transmitted multiple visual depictions connected to multiple unique offers or solicitations of sexual conduct. Here, the State only differentiated between the various counts and conduct based on the offense date. Thus, the superior court did not err by finding the luring and aggravated luring charges were multiplicitous and dismissing three of the four luring convictions. We affirm the court's dismissal of those three luring convictions. We affirm McNulty's convictions for three counts of attempted sexual exploitation, one count of aggravated luring a minor, and the resulting sentences.

FACTS 1 AND PROCEDURAL BACKGROUND

¶3 In February 2020, McNulty, a Kingman resident in his late seventies, sent a message to a user, “Mayghan,” on the website Skout. To create a profile, Skout required users to affirm they were adults. Unknown to McNulty, Mayghan was a decoy profile operated by a detective with the Mohave County Sheriff's Office as part of an undercover investigation looking for child predators.

¶4 Over the next four days, McNulty and Mayghan communicated through text messages and on Skout. A little over an hour after McNulty first messaged Mayghan, she told him she was only fourteen years old, contrary to what her Skout profile reflected. Mayghan then asked if he wanted to be left alone. McNulty answered no, telling Mayghan that they could be friends. But he also told her that he was masturbating and sent a naked picture of a man with his penis exposed. Every day after that, the detective was the first to initiate contact and frequently asked McNulty to meet in person. McNulty never agreed to meet but did send the detective more nude pictures.

¶5 After several days of messaging, the detective determined where McNulty was staying and arrested him. The State charged McNulty with two counts of aggravated luring a minor under the age of fifteen, a class 2 felony; three counts of attempted sexual exploitation of a minor under the age of fifteen, a class 3 felony; and two counts of luring a minor under the age of fifteen for sexual exploitation, a class 3 felony. See A.R.S. §§ 13-3560, -3553, -1001(C), and -3554. In the charging document and at trial, the State differentiated the luring counts only based on the offense date and the pictures McNulty sent.

¶6 Before the trial, McNulty moved to dismiss the charges based on outrageous governmental conduct, but the court denied the motion. The court granted McNulty's request to travel and reside in Michigan with his son but ordered him to appear in person for the trial. Although McNulty remotely attended a pre-trial hearing the week before the trial, he did not appear at the trial as ordered. The jury found McNulty guilty of all counts. Because McNulty was absent from the trial, the court issued a bench warrant for his arrest. One month later, McNulty was arrested and booked into a Michigan jail.

¶7 Sentencing took place in October 2021, by which point this court had released its opinion in State v. Moninger (“Moninger I”), holding that convicting a defendant with multiple convictions of luring a minor, differentiated only by the offense date, violated the Double Jeopardy Clause. 251 Ariz. 487, 491, 498-99, ¶¶ 8, 39-41 (App. 2021) vacated 258 Ariz. 18 (2024). The superior court vacated one conviction of aggravated luring and both convictions of luring, ruling that they violated the double jeopardy principle under Moninger I. The court then sentenced McNulty to ten years in prison for the remaining conviction for aggravated luring and five years in prison for each conviction of attempted sexual exploitation of a minor, with the sentences running consecutively. The sentences for all convictions were enhanced to reflect dangerous crimes against children. See A.R.S. § 13-705. The court also gave McNulty 280 days’ credit for the pretrial time served, including the time he spent incarcerated in Michigan.

¶8 The court informed McNulty that because he had absconded and was not sentenced within 90 days of his conviction, he had forfeited his right to appeal. McNulty appealed, and the State cross-appealed. But because our supreme court had recently issued State v. Brearcliffe, 254 Ariz. 579, 584, ¶ 16 (2023), which requires the superior courts to allow defendants to prove involuntary absence, this court remanded McNulty's appeal to the superior court for proceedings consistent with that opinion. This court also stayed the State's cross-appeal to await the supreme court's decision on Moninger I. On remand, the superior court determined that McNulty voluntarily absented himself. We lifted the stays following our supreme court's decision in State v. Moninger (“Moninger II”), 258 Ariz. 18 (2024).

DISCUSSION

¶9 McNulty claims that the court erred by not dismissing all counts based on outrageous governmental conduct. The State cross-appeals and raises three issues. First, the State argues this court lacks jurisdiction to consider McNulty's appeal of non-sentencing issues because he voluntarily caused a delay in his sentencing of more than 90 days. Next, the State claims the superior court erred by dismissing the three luring convictions as multiplicitous. And finally, the State contends that this court's recent decision in State v. Marner, 258 Ariz. 512 (App. 2024) (review granted Apr. 1, 2025), which holds that sentencing enhancements for dangerous crimes against children do not apply to luring where the victim is not an actual minor, does not apply to McNulty's sentences.

A. We Have Appellate Jurisdiction of McNulty's Non-Sentencing Claim Under A.R.S. § 13-4033(A).

¶10 A defendant may appeal a guilty verdict and sentence under Arizona Revised Statutes (“A.R.S.”) § 13-4033(A)(1). McNulty invoked his right to appeal, arguing outrageous governmental conduct. “The right to appeal, however, is not without limits,” State v. Raffaele, 249 Ariz. 474, 478, ¶ 11 (App. 2020) abrogated by Brearcliffe, 254 Ariz. at 584, ¶ 18, and a defendant may not appeal a conviction if “the defendant's absence prevents sentencing from occurring within ninety days after conviction and the defendant fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary,” A.R.S. § 13-4033(C).

¶11 The State argues that McNulty waived the argument he seeks to assert on appeal under A.R.S. § 13-4033(C). McNulty contends the superior court never made the requisite findings to show his waiver was voluntary. But, as the State notes, the court held an evidentiary hearing and determined McNulty's absence was voluntary. The transcript and reasoning for why the superior court found the defendant's absence voluntary are not included in the record on appeal. But the uncontroverted evidence at the sentencing hearing refutes the State's claim that McNulty's absence, which delayed sentencing for more than 90 days, was voluntary.

¶12 At the sentencing, the State confirmed that McNulty was arrested and taken into custody in Michigan on April 26, 2021, thirty-one days after the jury reached its verdicts. He was held in custody continuously until being returned to Arizona for sentencing months later. A court should not consider a defendant's absence as voluntary if he was incarcerated during the time in question. See State v. Sainz, 186 Ariz. 470, 473-74 (App. 1996) (“Had the trial court considered defendant's confinement, the only conclusion that could have been reached was that defendant's absence was involuntary.”). While McNulty voluntarily absented himself from the trial, his continued absence was involuntary upon his arrest, as he was unable to travel freely to Arizona for sentencing. Thus, the superior court erred by finding McNulty's absence was voluntary when the evidence is uncontroverted that he was in custody before A.R.S. § 13-4033(C)’s 90-day grace period expired. Thus, we reject the State's argument that McNulty waived his right to appeal non-sentencing issues. Thus, we have jurisdiction to hear the appeal and cross-appeal under A.R.S. §§ 13-4033(A)(1), -4032(4), and 12-120.21(a)(1).

B. McNulty Has Not Proven Outrageous Governmental Conduct Deprived Him of Due Process.

¶13 Outrageous governmental conduct occurs when law enforcement actions are “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431-32 (1973). While the defense is often raised, it rarely succeeds, United States v. Gamble, 737 F.2d 853, 857 (10th Cir. 1984), likely because the defendant must meet an extremely high standard, see United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991). Outrageous governmental conduct requires the defendant to show “(1) the government engineered and directed a criminal enterprise from start to finish, or (2) the government used excessive physical or mental coercion to induce the defendant to commit the crime.” State v. Williamson, 236 Ariz. 550, 556, ¶ 11 (App. 2015) (cleaned up). But conduct is not outrageous when the government uses “artifice and stratagem to ferret out criminal activity.” United States v. Black, 733 F.3d 294, 302 (9th Cir. 2013) (quoting United States v. Bogart, 783 F.2d 1428, 1438 (9th Cir. 1986)).

¶14 The same conduct by government agents may theoretically support both an entrapment defense and a due process claim, but the standards for these two defenses differ. The distinction is that a due-process claim for outrageous governmental conduct is determined objectively, while entrapment is a subjective defense. United States v. Emmert, 829 F.2d 805, 811 (9th Cir. 1987); United States v. Garza-Juarez, 992 F.2d 896, 904 (9th Cir. 1993) (A due-process claim “does not take account of the defendant's predisposition.”); cf. A.R.S. § 13–206 (Entrapment requires that the defendant was not predisposed to commit the crime urged.). And the showing required for a due-process violation claim is much higher than the standard for the statutory entrapment defense. Compare A.R.S. § 13-206 (elements of entrapment) with Smith, 924 F.2d at 897 (outrageous governmental conduct's high standard).

¶15 While no single test exists for resolving a claim of outrageous misconduct, in Black, the court identified factors “relevant to whether the government's conduct was outrageous.” 733 F.3d at 303; Williamson, 236 Ariz. at 556, ¶ 12 (using the Black factors). These factors include:

(1) known criminal characteristics of the defendants; (2) individualized suspicion of the defendants; (3) the government's role in creating the crime of conviction; (4) the government's encouragement of the defendants to commit the offense conduct; (5) the nature of the government's participation in the offense conduct; and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue.

Black, 733 F.3d at 303.

¶16 Neither Black factor one nor two applies here, as the detective was not targeting McNulty when he posted Mayghan's profile on Skout. And McNulty began messaging Mayghan, saying he saw she had viewed his profile a couple of times. Black warns that the risk in targeting generalized populations is that the government could tempt vulnerable people to commit crimes that would otherwise not occur. 733 F.3d at 303. But we find no risk in creating an online dating profile, especially given that the detective testified he estimated that 90% of users’ replies to a decoy are not sexual.

¶17 Nor did the government propose the crime in a manner implicating the third factor. In fact, the detective gave McNulty a chance to end the exchange after informing him the decoy was only 14 with a text saying, “[o]h k do u want me 2 leeve u a lone.” McNulty responded by stating he was masturbating and then sent a picture of a nude male with a visible penis.

¶18 As to the fourth Black factor, the detective did, at points, encourage McNulty. For example, the detective sent “can[ ] i see it” in response to McNulty stating he was masturbating. But these actions fall more in the realm of encouragement rather than coercion. See Black, 733 F.3d at 308 (We look to “[t]he extent to which the government encouraged a defendant to participate in the charged conduct ․ with mere encouragement being of a lesser concern than pressure or coercion.”). And McNulty resisted the detective's repeated requests to meet in person, establishing that McNulty was not coerced into acting.

¶19 The next two factors address “the extent to which the government participated in the offenses and the need for the particular ‘investigative technique’ given the nature of the crimes being investigated.” Williamson, 236 Ariz. at 559, ¶ 24 (quoting Black, 733 F.3d at 308-09). While the detective started conversations with McNulty and sent him pictures of a stomach and a decoy wearing a skirt, “[g]overnment agents may employ appropriate artifice and deception in their investigation.” Id. at 556, ¶ 11 (quoting United States v. Mosley, 965 F.2d 906, 912 (10th Cir. 1992)). The record before us shows no “excessive physical or mental coercion.” Id. (quoting United States v. McClelland, 72 F.3d 717, 721 (9th Cir. 1995)).

¶20 Finally, attempted sexual exploitation of a minor and luring a minor are serious crimes that demand government action. Given the concealed nature of these crimes, government agents must take certain deceptive measures in their investigations. We agree with the superior court's finding that there was no outrageous conduct based on the totality of the circumstances.

C. The Court Correctly Vacated Convictions for Counts 3, 6, and 7 as Violating Double Jeopardy.

¶21 The State contends the superior court wrongly vacated two convictions of luring a minor for sexual exploitation and one conviction of aggravated luring a minor for sexual exploitation as violating double jeopardy. We review whether the convictions violate double jeopardy by analyzing the respective statutes. See State v. Jurden, 239 Ariz. 526, 528, ¶ 7 (2016).

1. Luring a Minor for Sexual Exploitation is a Lesser-Included Offense of Aggravated Luring a Minor for Sexual Exploitation.

¶22 In determining whether two offenses charged under different statutes constitute the same offense, we apply the same-elements test from Blockburger v. United States, 284 U.S. 299 (1932), which analyzes “whether each provision requires proof of a fact which the other does not.” State v. Carver, 249 Ariz. 312, 315-16, ¶ 9 (quoting Blockburger, 238 U.S. at 304). This test is the “only permissible interpretation of the double jeopardy clause.” State v. Ortega, 220 Ariz. 320, 325, ¶ 13 (App. 2008) (quoting State v. Sanders, 205 Ariz. 208, 222, ¶ 65 (App. 2003)); Jurden, 239 Ariz. at 529, ¶ 10 (The same-elements test is used to determine whether double jeopardy is triggered by the same conduct violating two statutes.).

¶23 An offense is a lesser-included offense when the greater offense cannot be committed without necessarily committing the lesser. State v. Wall, 212 Ariz. 1, 3, ¶ 14 (2006) (quoting State v. Dugan, 125 Ariz. 194, 195 (1980)). Under Blockburger, the conviction and sentence for both a greater and its lesser-included offense violate the double jeopardy principle. State v. Kelly, 257 Ariz. 128, 134, ¶ 20 (App. 2024); Brown v. Ohio, 432 U.S. 161, 167-68 (1977). While the State may charge both the greater and lesser-included offenses, Merlina v. Jejna, 208 Ariz. 1, 5, ¶ 19 (App. 2004), a defendant may not be convicted for both, State v. Welch, 198 Ariz. 554, 557, ¶¶ 12-13 (App. 2000) (It is error to convict a defendant of both the greater and lesser offense.). And if a jury returns a guilty verdict for both the greater and lesser, the correct remedy is to vacate the lesser-included offense conviction. State v. Estrella, 230 Ariz. 401, 406, ¶ 17 (App. 2012).

¶24 “In determining whether offenses are the ‘same’ for purposes of double jeopardy analysis, we look to the elements of the offenses and not to the particular facts that will be used to prove them.” Ortega, 220 Ariz. at 325, ¶ 14. Thus, we look to see whether each offense “requires proof of an element that the other does not.” State v. Eagle, 196 Ariz. 188, 192-93, ¶ 18 (2000).

¶25 Applying the same-elements test, we hold that luring is a lesser-included offense of aggravated luring. Under A.R.S. § 13-3554(A), a person commits luring a minor “by offering or soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor.” Thus, the statute requires the State to prove a defendant (1) offered or solicited sexual conduct from another person, and that the defendant (2) “knew or had reason to know” the other person was a minor. To prove aggravated luring under A.R.S. § 13-3560, the State must show the defendant (1) used an electronic device to transmit a visual depiction of material harmful to minors, (2) to a person the defendant “knows or has reason to know” is a minor, and (3) the communication was to offer or solicit “sexual conduct with the minor.”

¶26 Thus, the State must prove both A.R.S. § 13-3554 elements to convict a defendant under A.R.S. § 13-3560. The only other requirement the State must prove for aggravated luring is the element of sending material harmful to the minor with the offer or solicitation. The statutory scheme makes luring a lesser-included offense of aggravated luring. Cf. Eagle, 196 Ariz. at 192-93, ¶ 18 (An offense is not a lesser-included offense if each offense requires proof of an element that the other does not.).

2. Like in Moninger II, the State Charged McNulty with Day-Based Counts Allowing One Unit of Prosecution.

¶27 Now, we turn to this case. The State charged McNulty with seven criminal charges. In Counts 1 and 2, the State alleged that on February 24, 2020, McNulty committed aggravated luring a minor under the age of 15 for sexual exploitation (Count 1) and attempted sexual exploitation of a minor under the age of 15 (Count 2). In Counts 3 and 4, the State alleged that on February 25, 2020, McNulty committed aggravated luring a minor under the age of 15 for sexual exploitation (Count 3) and attempted sexual exploitation of a minor under the age of 15 (Count 4). In Counts 5 and 6, the State alleged that on February 26, 2020, McNulty committed attempted sexual exploitation of a minor under the age of 15 (Count 5) and luring a minor under the age of 15 for sexual exploitation (Count 6). Finally, in Count 7, the State alleged that on February 27, 2020, McNulty committed luring a minor under the age of 15. The charges were day-based, with each set of charges encompassing all activity on the charges’ date.

¶28 Before the trial, McNulty moved under Arizona Rule of Criminal Procedure 16.1 to dismiss three of the luring counts as multiplicitous. See State v. Rix, 256 Ariz. 125, 136, ¶ 34 (App. 2023) (“Multiplicity occurs when a defendant is charged with a single offense in multiple counts, raising the potential for multiple punishments, which implicates double jeopardy.” (citation omitted)). McNulty argued that the luring charges, both the greater and lesser, were multiplicitous to each other. The court held a pretrial hearing on the motion but declined to make a ruling until it heard all the evidence and testimony. And as the State may charge the greater and the lesser offense, the proper action by the court here would not be dismissal, but for the court to instruct the jury that it may only find McNulty guilty of either the greater or the lesser, but not both. See Jejna, 208 Ariz. at 5, ¶¶ 18-19; Welch, 198 Ariz. at 557, ¶¶ 12-13.

¶29 At the trial, the State did not try to focus or limit the jurors’ consideration of the evidence to any particular sexual solicitation except for what took place on the date of a given charge. For example, during closing argument, after recounting various text messages relating to different types of sexual activity, the State argued:

And these are just two examples from February 26th. And you know from listening to all of those texts and seeing them in your juror notebooks, there is a lot more than just those two text messages. You could find him guilty for any one of those, but you have so many more examples which show that he is guilty of this.

And Count 6 refers to conduct occurring on February 26th. Same thing for Count 7. Count 7 relates to conduct occurring on February 27th.

¶30 The final instructions also did not specify for the jurors what evidence to consider in reaching a unanimous verdict on the conduct constituting the charged crimes. Instead, the instructions and verdict forms only informed the jurors of the offenses’ elements. Thus, the jury found McNulty guilty of both luring and aggravated luring.

¶31 After the trial, but before sentencing, this court decided Moninger I. Based on Moninger I, McNulty and the State presented argument on whether the convictions violated double jeopardy, and the court said it would consider McNulty's “motion to vacate the convictions for Counts 3, 6, and 7 as violations of double jeopardy pursuant to State v. Moninger.” The court ultimately dismissed the three charges as multiplicitous.

3. The Three Dismissed Charges Violated Double Jeopardy.

¶32 The Double Jeopardy Clause forbids multiple punishments for the same offense. Jurden, 239 Ariz. at 529, ¶ 10; U.S. Const. amend. V; Benton v. Maryland, 395 U.S. 784, 794 (1969) (The Double Jeopardy Clause is incorporated to the states through the Fourteenth Amendment.); see also Ariz. Const. art. 2, § 10. In determining whether a defendant was punished multiple times under a single statute for the same conduct, we must determine “the scope of conduct for which a discrete charge can be brought” or the “allowable unit of prosecution.” Jurden, 239 Ariz. at 529, ¶ 11 (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)). When conduct is charged multiple times under the same statute, whether that conduct is “divisible into separate and distinct violations is informed by the scope of the [ ] statute's allowable unit of prosecution.” Moninger II, 258 Ariz. at 22, ¶ 12.

¶33 In Moninger II, our supreme court created a unit-of-prosecution test to determine whether a series of sexual solicitations may be treated as distinct violations of A.R.S. § 13-3554. 258 Ariz. at 24, ¶¶ 24-27. Using a totality-of-the-circumstances approach, the court identified the object, or objects, of the prohibited action. Id. at 24, ¶ 26. “A series of actions that involves factually separate and distinct object(s) will violate a statute multiple times․ This means that a series of offers or solicitations involving factually separate and distinct types of sexual conduct or victims will always violate § 13-3554 multiple times.” Id. Actions that involve the same object, only one victim, and one type of sexual conduct “may nevertheless violate § 13-3554 multiple times if the series of actions: (1) encompasses significant temporal gaps between communications; (2) occurs at, or contemplates, separate geographical locations; or (3) is interrupted by intervening occurrences that serve to ‘reset’ communications with a victim.” Id. at 24, ¶ 27.

¶34 The State argues that because McNulty solicited different sexual acts each day, sufficient facts supported the separate luring convictions. But, as in Moninger II, the State did not charge McNulty with separate acts but with day-based luring counts.

[I]f the State [had] identified a sufficient factual basis to support separate counts for offering or soliciting (1) genital-genital intercourse, (2) masturbation, and (3) oral-genital intercourse with [the victim], three separate luring counts may be constitutionally permissible. But the State did not charge Moninger in this way.

Moninger II, 258 Ariz. at 25, ¶ 31; see also A.R.S. § 13-3551(10) (Each of these three acts is among those separately defined as “sexual conduct.”).

¶35 As in Moninger II, the State presented the four luring counts to the jury as distinct based solely on the offense date. Thus, McNulty's actions only support one of the State's luring counts analyzed under the first half of the unit-of-prosecution analysis. See Moninger II, 258 Ariz. at 25, ¶¶ 31-32. Nor do we find any conditions to satisfy the second half of the Moninger II test. As in Moninger, McNulty's communications took place over consecutive days, with the detective leaving little room for significant temporal gaps between communications as he initiated conversations on February 25, 26, and 27. See Moninger II, 258 Ariz. at 25, ¶¶ 33-34; Rix, 256 Ariz. at 136-37, ¶¶ 36-37 (No multiplicity problem when the State charged multiple acts separated by over a month.). Nor did McNulty seem to contemplate the sexual conduct occurring in more than one geographic location. He did not accept the detective's invitations to “come over” or meet in a public park, stating, “[I] [n]eed you on bed in motel, sweety.” With no other intervening conditions, we conclude the superior court correctly found the luring convictions multiplicitous of each other.

4. The Presence of Two Counts of Aggravated Luring a Minor for Sexual Exploitation Does Not Change the Outcome.

¶36 As noted above, luring is a lesser-included offense of aggravated luring. The added element—providing material harmful to minors—together with the solicitation does not change the fact that, as charged, under Moninger II, McNulty engaged in only one course of luring conduct over the four days. The additional element requirement raises the question of whether the added element for aggravated luring allowed the State to charge McNulty with aggravated luring each time he sent harmful materials.

¶37 When interpreting statutes, “[w]e begin with the presumption that the legislature does not intend to punish defendants twice for the same offense,” State v. Carter, 249 Ariz. 312, 315, ¶ 8 (2020), unless the legislature gives a “clear indication” of contrary intent, Whalen v. United States, 445 U.S. 684, 692 (1980). We apply the surplusage canon to guide our analysis here because “we attempt to read statutes so that no language is rendered devoid of meaning.” Cao v. PFP Dorsey Invs., LLC, 257 Ariz. 109, 115, ¶ 29 (2024); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012).

¶38 Applying the surplusage canon to A.R.S. § 13-3560, we note that the statute says a person commits aggravating luring by transmitting “at least one” visual depiction and using the communication to offer or solicit sexual conduct. We read the phrase “at least one” to mean that sending more than one visual depiction does not necessarily lead to more than one unit for prosecution. For example, if a defendant was soliciting one type of sexual conduct with a minor and sent two inappropriate pictures at the same time, the State could only charge the defendant with one count of aggravated luring. This result is required because a series of actions involving one victim and one type of sexual conduct will violate the statute multiple times only if a defendant has sent unique visual depictions and unique offers of solicitation. See Moninger II, 258 Ariz. at 24, ¶ 26 (A series of actions that involves factually distinct objects will violate a statute multiple times.).

¶39 This logic is what the superior court used when vacating the second aggravated luring conviction and the two luring convictions.² The court noted that the messages exchanged over the four days “seem[ed] to be the same as far as the course of conduct.” Based on the singular course of conduct, the court ruled that the multiple convictions violated the double jeopardy principle. It arrived at this conclusion after applying Moninger I, and the burden is thus on the State to show that the court erred by finding the conduct amounted to just one solicitation. State v. Edwards, 1 Ariz. App. 42, 44 (1965) (“The burden of showing that a trial court erred in any of its findings or determinations is always upon the appellant.”).

¶40 The State has not met that burden here. Nor does the record support that the jury was instructed on the proper units of prosecution under either of the luring statutes. The record may have supported charging McNulty with multiple counts because he sent two photos and discussed different sexual conduct. But the indictment's only differentiation between the charges is based on the date. This defect, uncorrected at trial, left the jury uninformed of the correct legal standard about a prosecution unit. The jury instructions lacked guidance on determining separate offers or solicitations under A.R.S. § 13-- 3560. Nor did the State argue to the jury that it must find separate solicitations under A.R.S. § 13-3560, meaning the jury never considered and resolved the argument raised by the State in its cross-appeal.³ The superior court did not err by dismissing the three luring convictions.

D. The Court's Application of the Dangerous Crimes Against Children Sentencing Enhancement Was Correct.

¶41 Whether a court applied the correct sentencing statute is a question of law, which we review de novo. State v. Hollenback, 212 Ariz. 12, 16, ¶ 12 (App. 2005). The aggravated luring and luring statutes include subsections disclaiming a defense to the statute because the solicited person is not an actual minor. A.R.S. § 13-3560(B); A.R.S. § 13-3554(B). Similarly, A.R.S. § 13-705, which sets out sentencing enhancements for dangerous crimes against children, states: “[i]t is not a defense to a dangerous crime against children that the minor is a person posing as a minor or is otherwise fictitious if the defendant knew or had reason to know the purported minor was under fifteen years of age.” A.R.S. § 13-705(S). Section 13-705 also lists luring and aggravated luring as dangerous crimes against children. A.R.S. § 13-705(T)(1)(s), (t).

¶42 After the superior court sentenced McNulty, this court issued an opinion in which the majority held that sentencing enhancements for dangerous crimes against children do not apply to a conviction under A.R.S. § 13-3554 unless the victim is an actual minor under the age of 15. State v. Marner, 258 Ariz. 512, 515-16, ¶¶ 8, 11(App. 2024) (review granted April 1, 2025). The majority arrived at this conclusion by reasoning that A.R.S. § 13-3554(B) only applied to subsection (A) and that A.R.S. § 13-705(C) enhancements applied only when the person lured is under 15. Id. at 515, ¶¶ 8-9. The dissent disagreed, reasoning that when reading the statutes in concert, a comprehensive statutory scheme makes clear that:

[A] defendant cannot escape liability for [luring] if the minor ․ was fictitious. Both [statutes] identify luring as a [dangerous crime against children] when it involves a minor younger than ․ fifteen. And the [sentencing] statute provides [ ] a defendant may not evade the [ ] enhancement if he had reason to believe the [ ] minor was younger than fifteen years of age, even if that person was not, in fact, a minor at all.

Id. at 520, ¶ 30 (Gard, J., dissenting). We agree with the dissent and conclude that the superior court applied the sentencing enhancement correctly. We recognize that Marner is pending before our supreme court.

CONCLUSION

¶43 We affirm McNulty's convictions and sentences and the superior court's dismissal of various convictions.

FOOTNOTES

2.   When the superior court sentenced McNulty, Moninger II was not yet released, and the court applied the double jeopardy test from our decision in Moninger I. But the logic and test the court applied is common to both decisions. Compare Moninger I, 251 Ariz. at 494-95, ¶¶ 22-26 with Moninger II, 258 Ariz. at 24, ¶ 24.

3.   Closing arguments of counsel may be considered when assessing the adequacy of jury instructions. State v. Bruggeman, 161 Ariz. 508, 510 (App. 1989). While a prosecutor's closing argument may ameliorate an erroneous jury instruction by “clarif[ying] any possible misunderstanding,” id., it may also compound the prejudice of an erroneous instruction, State v. Johnson, 205 Ariz. 413, 417, 420, ¶¶ 11, 26 (App. 2003) (An “incomplete” instruction, “in conjunction with the closing arguments of counsel,” warranted reversal.).

McMURDIE, Judge: