How To Fight Sex Charges In Court

28 USCA Motion to Vacate	ARS 13-1406	ARS 13-3553
42 USC §1983	ARS 13-1407	ARS 13-3554
Access to the Courts	ARS 13-1410	ARS 13-3557
Aid And Abet	ARS 13-1413	ARS 13-3559
Appeal	ARS 13-1416	ARS 13-3560
Arrest	ARS 13-1417	ARS 22-341
ARS 13-405	ARS 13-1423	Assault
ARS 13-604.01	ARS 13-3551
ARS 13-1404	ARS 13-3552

28 USCA § 2255 Motion to Vacate

Ex Parte Wilson, 114 US 417, 426 (1885)
Defendant has the right to insist that he shall not be put upon his trial except on the accusation of the grand jury.
US v. Gordan, 172 F.3d 753 (10th Cir. 1999)
Due process and ineffective assistance of counsel claims raised in motion to vacate or not addressed on direct appeal, and therefore were not procedurally barred.
US v. Griffin, 765 F.2d 677 (7th Cir. 1985)
Kaufman v. US, 394 US 217, 22 L.Ed.2d 227, 89 S.Ct. 1068 (1969)
Failure to bring issue on direct appeal bars raising that issue in a §2255 motion unless good cause for not raising that matter on direct appeal is demonstrated.
State v. O'Grady, 312 US 329, 61 S.Ct. 572, 85 L.Ed. 859, 1941 US Lexis 921
Petitioner pled guilty to simple burglary but was sentenced to burglary with explosives.

42 USC §1983

Church of Scientology v. US Dept. of Justice, (1979) 612 F.2d 417, 425
For reference; the word "person" in legal terminology is perceived as a general word which normally includes in its scope a variety of entities other than human beings.
Hafer v. Melo, (1991, US) 116 L.Ed.2d 301,112 S.Ct. 358, 91 CDOS 8883, 91 daily journal DAR 13658, 57 BNA FEP CAS 241, 6 BNA IER CAS 1487, 57 CCH EPD TT 4109
State officials sued under 42 USC § 1983 for damages in their personal capacities are subject to personal liability since they fit within statutory term "person".
US v. Blais, 98 F.3d 647 (1st Cir. 1996)
US v. Wong, 78 F.3d 73 (2nd Cir. 1996)
US v. Clarke, 988 F.2d 1459 (6th Cir. 1993)
US v. Miles, 207 F.3d 988 (7th Cir. 2000)
US v. Goodson, 165 F.3d 610 (8th Cir. 1999)
US v. Hanna, 55 F.3d 1456 (9th Cir. 1995)
Thompson v. Calderon, 109 F.3d 1358 (9th Cir. 1996)
The same laws that allow you to sue a judge also covers a prosecutor, with the exception that they are covered by only "qualified immunity" which means you can sue them for monetary damages in both their official and individual capacities.

1. Did the prosecuting attorney withhold exculpatory testimony?
2. Did the prosecuting attorney use knowingly perjured testimony?
3. Did the prosecuting attorney abuse the judicial process?

Note: You have to prove a bad faith motive to have a case.

Will v. Michigan Dept. of State Police, (1989, US) 105 L.Ed.2d 45, 109 S.Ct. 2304, 49 BNA FEP CAS 1664, 50 CCH EPD TT 39067
A state is not a person within meaning of 42 USC § 1983 which provides a person acting under color of state law in violating anothers federal constitutional rights is liable to injured party.

Access to the Courts

Abdul-akbar v. Watson, 4 F.3d 195 (3rd Cir. 1993)
Standard in applying prisoners constitutional right of access to the courts is whether legal resources available to prisoner will enable him to identify legal issues that he desires to present to relevant authorities, including courts, and to make communications with and presentations to those authorities understood.
Allen v. City and County of Honolulu, 39 F.3d 936 (9th Cir. 1994)
A prisoner cannot be forced to choose between the law library and recreation.
Allen v. Sakai, 40 F.3d 1001 (9th Cir. 1994)
Inmate was not required to show that denial by prison officials of photocopying services and use of pen actually prejudiced his right to access to the courts in order to defeat summary judgment on official's claim of qualified immunity; it was enough that he alleged conduct on part of officials that, if true, violated clearly established constitutional rights.
Alston v. Debruyn, 13 F.3d 1036 (7th Cir. 1994)
Inmate's fundamental constitutional right to access to the courts is not diminished when he is held in segregation.
Bear v. Kautzky, 305 F.3d 802, 804 (8th Cir. 2002)
Right of access claim stated because prisoner regulation restricted inmate to inmate legal communication.
Benjamin v. Fraser, 264 F.3d 175, 184 (2nd Cir. 2001)
Regulations that unjustifiably obstruct availability of professional representation or other aspects of the right of access to the court are invalid.
Bieregu v. Reno, 59 F.3d 1445 (3rd Cir. 1995)
First Amendment right to petition is birthplace for the right of court access.
Bound v. Smith, (1977) 430 US 817, 52 L.Ed.2d 72, 97 S.Ct. 1491
Fundamental constitutional right of access to courts requires state prison authorities to assist inmate in preparation and filing of the meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in law; it is irrelevant that expenditure of funds for appointment of counsel in some state post-trial conviction proceedings for prisoners whose claims survive initial review by courts may be authorized by state, and creation of adversary inmate grievance commission does not answer constitutional requirement for legal assistance to prisoner. Prisoners have fundamental constitutional right to adequate effective and meaningful access to courts to challenge violations of constitutional rights.
Bribiesca v. Galaza, 215 F.3d 1015, 1020 (9th Cir. 2000)
Incarcerated criminal defendant who chose to represent self has constitutional right to access law books or other tools to assist in preparing defense.
Casey v. Lewis, 43 F.3d 1261 (9th Cir. 1994)
State is required to provide legal assistance for inmates deemed security risks and denied access to prison's law library.To assure compliance with inmates' constitutional right to access to courts, injunction properly required that prisoners be allowed at least three 20minute phone calls per week to their attorneys.Order requiring that Arizona Department of Corrections (ADOC) law libraries remain open for at least 50 hours each week was reasonable to accommodate inmates' constitutional right to access to courts.

Importance of prisoners' fundamental right to meaningful access to courts cannot be overstated, since it is the right upon which all other rights depend.

The right to legal assistance, especially in the context of the constitutional right to the writ of habeas corpus, means that absence of other adequate assistance, as through a functioning public defender system, a state may not deny prisoners legal assistance of another inmate.
Cepulonis v. Fair, 732 F.2d 1 (1st Cir. 1984)
The district court did not abuse it's discretion in ordering a satellite law library established in the segregation unit.
Ching v. Lewis, (1990, CA9 Ariz.) 895 F.2d 608
Arbitrary policy of denying prisoners contact visits with attorney prohibits effective attorney client communication and unnecessarily abridges prisoners right to meaningful access to court in violation of 14th amendment.
Demallory v. Cullen, 855 F.2d 442 (7th Cir. 1988)
Bounds v. Smith, 430 US 817, 52 L.Ed.2d 72, 97 S.Ct. 1491 (1977)
Ex Parte Hall, 312 US 546, 85 L.Ed.2d 1034, 61 S.Ct. 540 (1941)
Prisoners have a fundamental right to adequate, effective, and meaningful access to court to challenge violations of their Constitutional rights.
Farmer v. Brennan, 1114 S.Ct. (1970)
Estelle, 429 US at 105, 97 S.Ct. at 2 91-92
Arizona prison officials violated prison inmates rights to access to courts by failure to provide sufficient number of trained legal assistants and by maintaining inadequate law library.
Ganey v. Garrison, 813 F.2d 650 (4th Cir. 1987)
Prisoner who received favorable verdict in §1983 suit against warden for denial of adequate access to prison's law library was "prevailing party" entitled to award of attorney fees.
Garcia v. Miller, (1982, CA7 Ill.) 688 F.2d 480,cert. denied, (US) 74 L.Ed.2d 1000, 103 S.Ct. 976
Prisoners have due process right to access to courts which requires prison authorities to assist inmate in preparation and filing of meaningful legal papers by providing prisoners with a reasonable access to adequate law libraries or adequate assistance from persons trained in law.
Gluth v. Kangas, 951 F.2d 1504 (9th Cir. 1991)
It is the states burden to provide inmates with meaningful access to the law library and to demonstrate that its chosen method was adequate.
Housley v. Dodson, 41 F.3d 597 (10th Cir. 1994)
Pembroke v. Wood County, Texas, 981 F.2d 225 (5th Cir. 1993)
Inmate's allegations that he was denied all access to any legal resources during his sixmonth confinement in county jail was sufficient to state claim against jail officials based on denial of right of access to courts.
In Re Workers' Compensation Refund, 46 F.3d 813
First amendment right of court access cannot be impaired either directly or indirectly.
John v. Adams, 969 F.2d 228 (6th Cir. 1992)
Incarcerated juveniles have a constitutional right of access to the courts.
Johnson v. Avery, 393 US 483, 21 L.Ed.2d 718, 89 S.Ct. 747 (1969)
Like others, prisoners have a constitutional right to petition the government for redress of their grievances, which includes a reasonable right of access to the courts. Prisoners right of access to courts may not be denied or obstructed. Prison must make available certain minimal legal materials.
Knop v. Johnson, 977 F.2d 996, 1006 (6th Cir. 1992)
Meaningful access denied because state failed to provide competent paralegals to assist inmates; paralegals defined as intelligent layperson who can right coherent English and has had a modicum of exposure to legal research and prisoners rights law.
Lewis v. Casey, 518 US 343,349 (1996)
Prisoner must demonstrate actual injury resulting from a denial of access to courts in order to allege a constitutional violation. Constitutional violation shown only when failure to provide legal assistance or library causes actual injury to prisoners contemplated or existing litigation.
Morello v. James, 810 F.2d 344 (2nd Cir. 1987)
Wright v. Newsome, 795 F.2d 964 (11th Cir. 1986)
1. Allegation that prison officials seized inmate's pleadings and law book and destroyed other legal papers clearly stated claim of denial of access to courts.
2. Allegation that officer had taken inmates pro se brief adequately stated claim for denial of access to the courts.
Nestle Ice Cream Co. Vs. N.l.R.B., 46 F.3d 578 (6th Cir. 1995)
Right to petition for redress of grievances includes right of access to courts.
Payne v. Superior Court of Los Angeles County, (1976) 17 Cal 3d 908, 132 Cal Rptr. 405, 553 P.2d 565
Indigent prisoner seeking to defend civil suit due process right of access to courts, where he would almost inevitably suffer default judgment is unable to afford counsel to appear as his surrogate.
Strickler v. Waters, 989 F2d 1375 (4th Cir. 1993)
Connet v. Sakai, 994 F2d 1408 (9th Cir. 1993)
Petrick v. Maynard, 11 F.3d 991 (10th Cir. 1993)
Prisoners constitutional right of access to the courts requires prison authorities to assist inmates in preparation and filing of meaningful legal papers by providing prisoners with adequate law library or adequate assistance from persons trained in the law. Affirmative obligations are imposed on states to assure all inmates access to the courts and assistance in preparing and filing of legal papers.
Ruark v. Sqlano, 928 F2d 947 (10th Cir. 1991)
1. Prisoners constitutional right to access to legal resources is not conditioned on showing of need.
2. When correctional employee failed to answer prisoners request for access to resources a valid claim for denial of access to legal materials was stated.
Sands v. Lewis, 886 F.2d 1166 (9th Cir. 1989)
Prisoner claiming inadequate law library or legal assistance need not show actual injury resulting from denial of access to courts.
Shabazz v. Askins, 14 F.3d 533 (10th Cir. 1994)
Goff v. Burton, 7 F.3d 734 (8th Cir. 1993)
Prison officials may not retaliate against or harass inmate because of inmate's exercise of his right of access to the courts.
Terry v. Rees, 985 F.2d 283 (6th Cir. 1993)
Criminal trials are fundamentaly unfair if state proceeds against indigent defendant without making certain that he or she has access to law materials integral to building a defense.
Tucker v. Randall, 948 172d 388 (7th Cir. 1991)
Unreasonable restrictions on prisoners telephone access may violate 1st and 14th Amendments.
Williams v. Leeke, (1978, CA4 SC) 584, 1336, cert. denied, 442 US 911, 61 L.Ed.2d 276, 99 S.Ct. 2825
Inmate is entitled to reasonable access to courts and such access is not provided inmate serving substantial sentence of confinement if, without other legal assistance, inmate had access only to law library which was so restrictive as to be unmeaningful.

Aid And Abet

US v. Beutenmuller, 29 F.3d 973 (5th Cir. 1994)
To convict defendant of aiding and abetting, government must prove that defendant intentionally associated with criminal venture and sought by his action to make venture succeed.

To prove aiding and abetting, government must demonstrate beyond reasonable doubt that each element of offense that defendant is accused of aiding and abetting was committed by some other person.
US v. Davis, 61 F.3d 291 (5th Cir. 1995)
To sustain conviction of aiding and abetting offense, government must show that defendant associated with criminal venture, participated in venture, and sought by action to make venture succeed.
US v. Garcia, 45 F.3d 196 (7th Cir. 1995)
Crime of aiding and abetting requires knowledge of illegal activity that is being aiding and abetted, desire to help activity succeed and some act of helping.
US v. Murray, 988 F.2d 518 (5th Cir. 1993)
US v. Gonzales, 999 F.2d 1326 (9th Cir. 1993)
To aid and abet another to commit crime, it is necessary that defendant is some sort associate himself with venture that he participate in it as something that he wishes to bring about and that he seeks by his action to make it succeed.
US v. Hadley, 918 F.2d 848 (9th Cir. 1990)
To constitute "attempt" there must be more than mere preparation to commit crime; there must be some appreciable fragment of crime in progress.
US v. James, 998 F.2d 74 (2nd Cir. 1993)
Aider and abettor, unlike accessory after the fact. is punishable as a principle.
US v. Jaramillo, 42 F.3d 920 (5th Cir. 1995)
Mere presence and association are not alone enough to sustain a conviction for aiding and abetting.
US v. Lyon, 949 F.2d 240 (8th Cir. 1991)
To prove aiding and abetting government must show that each defendant associated himself with unlawful venture, participated in it as something he wished to bring about, and sought by his actions to make it succeed.
US v. Langston, 970 F.2d 692 (10th Cir. 1992)
As a prerequisite to aiding and abetting, government is required to prove that someone has committed the underlying substantive offense.
US v. Salamanca, 990 F.2d 629 (D.C. Cir. 1993)
US v. Rodriguez Alvarado, 985 F.2d 15 (1st Cir. 1993)
US v. Head, 927 F.2d 1361 (6th Cir. 1991)
Mere presence at scene of crime and guilty knowledge of crime are not enough to convict defendant of aiding and abetting.
US v. Walser, 3 F.3d 380 (11th Cir. 1993)
Aiding and abetting statute applies to all federal criminal statutes and prohibits one from causing another to do any act that would be illegal if one did it personally.
US v. Williamson, 53 F.3d 1500 (10th Cir. 1995)
Mere presence at scene of drug transaction, without more, is insufficient to support conviction for aiding and abetting.

Appeal

Abney v. US, 431 US 651, 658 - 59 (1977)
Denial of motion to dismiss indictment on double jeopardy grounds immediately appealable because collateral issue and delay irreparably harm's defendants right not to be tried for same offense.
Aldrich & Steinberger v. Martin, 172 Ariz. 445, 447 - 48, 337 P.2d 1180, 1182 - 83 (App. 1992)
In Re Estates of Spear, 173 Ariz. 565, 567, 845 P.2d 491, 493 (App. 1992)
For example, on the appropriate occasions our Supreme Court has considered issues briefed neither in the trial nor in the Court of Appeals, e.g. Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 104, 692 P.2d 280, 283 (1984), an example we have followed in reaching unbriefed but dispositive issues which require no additional facts.
Arizona v. California, 460 US 605, 75 L.Ed.2d 318, 103 S.Ct. 1382 (1983)
Wheeler v. City Of Pleasant Grove, 746 F2d 1437 (11th Cir. 1984)
On remand, district court is not free to deviate from court of appeals mandate, and, to determine scope of mandate, it is appropriate, and indeed often necessary, to look to court of appeals opinion. Supreme Court termed this the "An Amorphous Concept."
Benigni v. City Of Hemet, 879 F.2d 473 (9th Cir. 1989)
Credibility of witnesses and weight of evidence are issues for jury and are generally not subject to appellate review.
Bettner v. Sadoff & Rudoy Industries, 728 F.2d 820 (7th Cir. 1984)
Generally, party who is awarded attorneys fees for winning in district court will be awarded fees for defending victory in court of appeals.
Brookhart v. Janis, 384 US 1, 4 (1966)
For waiver to be effective it must be clearly established that there was an intentional relinquishment or abandonment of a known right.
Brown,___Ariz. at ___TT 12, 99 P.3d at 18
In a case in which multiple aggravating facts are alleged the jury must find these facts.
Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 39, 945 P.2d 317, 350 (App. 1996)
The courts often declined to apply waiver when the issue is of constitutional importance, is of general statewide importance, or will dispose of the appeal.
Evitts v. Lucey, 469 US 387, 83 L.Ed.2d 821, 105 S.Ct. 830 (1985)
Tapiau v. Tansy, 926 F.2d 1554 (10th Cir. 1991)
Effective assistance of counsel on first appeal is a right held guaranteed by due process clause of Fourteenth Amendment.
Glasser v. US, 315 US 60, 86 L.Ed 680, 62 S.Ct. 457 (1942)
Hamling v. US, 418 US 87, 41 L.Ed.2d 590, 94 S.Ct. 2887 (1974)
When reviewing the sufficiency of the evidence to support a guilty verdict the evidence, and all reasonable inferences, is viewed in the light most favorable to the government.
Griffin v. Illinois, 351 US 12, 100 L.Ed 891, 76 S.Ct. 585 (1956)
US v. Neal, 27 F.3d 1035 (5th Cir. 1994)
US v. Cashwell, 950 F.2d 699 (11th Cir. 1992)
Criminal defendant has right to record on appeal which includes complete transcript of proceedings at trial.
Harris Truck Lines v. Cherry Meat Packers, 371 US 215, 9 L.Ed.2d 261, 83 S.Ct. 283(1962)
Wright v. Deyton, 757 F.2d 1253 (11th Cir. 1985)
Willis v. Newsome, 747 F.2d 605 (11th Cir. 1984)
1. Courts will permit an appellant to maintain an otherwise untimely appeal in unique circumstances (see Harris for "Unique Circumstances").
2. The Rules of Appellate Procedure "Were not adopted to set traps and pitfalls by way of technicalities for unwary litigants." Willis at 607.
Houston v. Lack, 487 US 266, 101 L.Ed.2d 245, 108 S.Ct. 2379 (1988)
Pro se prisoner's notice of appeal held filed, for purposes of time limit under Rule 4(a)(1) of Federal Rules of Appellate Procedure, at moment of delivery to prison authorities for mailing to the court.
Jimenez v. Sears Roebuck Co., 183 Ariz. 399, 406 n.9 904 P.2d 861, 868 n.9 (1995)
Constitutional issues advanced in neither trial nor Court of Appeals were reached. The issue presented in this case is an important one of constitutional dimension. We therefore decline to apply waiver. Even if the error were waived, we can review for fundamental error.
Johnson v. Zerbst, 304 US for 58, 464 (1938)
What is at issue is a defendants right to a jury trial on sentencing factors. The record reveals no proper waiver of that right. Accordingly defendant cannot be said to have waived it. A.R.Cr.P. Rule 18.1
North Carolina v. Pearce, 395 US 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969)
A prosecutor is "without right to put a price on appeal. A defendant's exercise of a right of appeal must be free and unfettered." 395 US 724.
Note: The Supreme Court has held that denials of three types of motions are immediately appealable under collateral order doctrine:
Pre-trial motions to dismiss an indictment based on double jeopardy clause,
Pre-trial motion to dismiss an indictment based on speech and debate clause, and
Motion to reduce excessive bail.
Owens v. New York City Housing Authority, 934 F.2d 405 (2nd Cir. 1991)
On appeal, all doubts in factual record must be resolved in favor of party opposing motion for summary judgment.
People Of Territory Of Guam v. Bqrja, 983 F.2d 914 (9th Cir. 1992)
US v. Sasser, 971 F.2d 470 (10th Cir. 1992)
Governments right to appeal is narrow, and government may not appeal in criminal case in the absence of express statutory authority.
Ring, 204 Ariz. at 561, TT 82, 65 P.3d at 942
No reversible error occurs when the evidence overwhelmingly establishes the factor the defendant stipulated to the facts constituting the aggravating circumstances, or the fact is implicit in the jury's verdict of guilt. Id at TT 86.
Romero v. Tansy, 46 F.3d 1024 (10th Cir. 1995)
Johnson v. Dugger, 911 F.2d 440 (11th Cir. 1990)
Defendant's right to effective assistance of counsel applies not just at trial but also on direct appeal.
Satcher v. Honda Motor Co. Ltd., 984 F.2d 135 (5th Cir. 1993)
Davis v. Locke, 936 F2d 1208 (11th Cir. 1991)
Notices of appeal are generally to be read liberally.
Snyder v. Sumner, 960 F.2d 1448 (9th Cir. 1992)
Issue may be heard for first time on appeal when plain error has occurred and injustice might otherwise result.
State v. Bor Boa, 102 P.3d 183, 190 (Wash. App. 204)
Because the error was not waived, we proceed to consider whether it was harmless. Failure to submit an aggravating factor to the jury is subject to review for harmless error.
State v. Burton, 144 Ariz. 248, 697 P.2d 331 (1985)
Where a sufficient specific motion in Limine is made and ruled upon on the merits, the objection raised in debt motion is preserved for appeal without the need for specific objection at trial. A.R.C.P. Rule 7.2
State v. Chaney, 141 Ariz. 295, 302, 686 P.2d 1265, 1272 (1984)
To establish actual prejudice, the defendant must show that, "the jurors have formed preconceived notions concerning the defendant skills and that they cannot put those notions aside.
State v. Davolt, 84 P.3d 456 (Ariz. 2004)
TT 49. In the absence of presumed prejudice, the defendant must demonstrate that the pre-trial publicity was actually prejudicial and likely deprived him of a fair trial.
State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 66, 67 (1991)
Blakely error is reversible on appeal as fundamental error.
State v. Hardwick, 183 Ariz. 649, 656 - 57, 905 P.2d 1384, 391 - 92 (App. 1995)
The failure to submit an aggravating factor to the jury may be harmless when no reasonable jury could find that the state fails to prove the factor beyond a reasonable doubt.
State v. Johnson, 103 Ariz. 358, 360, 903 P.3d 1116, 1118 (App. 1995)
State v. Alvarez, 205 Ariz. 110, 112 n.1, 67 P.3d 706, 708 n.1 (App. 2003)
Sentencing enhancement elevates the entire range of permissible punishment while aggravation and mitigation raises or lowers a sentence within that range.
State Ariz. v. John Carl Munninger, Court of Appeals Division I Cause No. 2002-091835.
Sentence vacated and remanded under Blakely. TT9 we need not apply waiver even when a party has fails to preserve an issue. The practice of not addressing issues for the first time on appeal is merely a rule of procedure and does not confirm our jurisdiction. The appellate court has discretion whether to apply waiver standard.
State v. King, 1998 Ariz. LEXIS 60
Inmate's request for review was timely where he had filed a proper request for an extension and urged several meritorious grounds, so the court of appeals' dismissal was vacated as improper.
State v. Paxson, 203 Ariz. 38, 42 TT 19, 49 P.3d 310, 324 (App. 2002)
Appellate court reviews question of law De Novo.
State v. Prince, 14 to Ariz. 256, 258, 689 P.2d 515, 517 (1984)
Whether defendants sentence was invalid under Blakely was not waived. Note: we express no opinion as to whether a defendant who has waived his right to a jury trial generally need specifically waive his right to a jury trial on sentencing factors. A defendant who has not waived his right to a jury, however has not waived the issue. As far as we can determine, all courts that have considered this question agree that a defendant who exercised his rights to a jury trial on his guilt, and who has not expressly waived his right to a jury trial of sentencing factors, has not waived his Blakely challenge because he has not waived a jury.
State v. Resendis - Felix, Ariz.___,___,TT 6,100 P.3d 457, 459 (App. 2004)
State v. Oaks, No. 2 CA - CR 2002-0386, 2004 WL to 2955944, at 5, 12 (Ariz. App. Jan. 14 2005)
The application of the fundamental error doctrine comports with a long line of Ariz. cases that regard an illegal sentence, including a sentence that results from improper consideration of a fact to increase the sentence, as fundamental error.
State v. Ring, 204 Ariz. 534, 552 TT 44, 65 P.3d 915, 933 (2003)
Sentencing error is harmless only if we can say with certainty that the same sentence would have been obtained if the error had not occurred.
State v. Smith, 184 Ariz. 456, 910P.2d (1996)
The appellate court's decision of whether to accept review from the denial of a P.C.R. is discretionary and also subject to review for an abuse of discretion.
State v. Smith, 197 Ariz. 333, 338, TT 16, 4 P.3d 388, 393 (App. 1999)
Before there can be a waiver, the record must show a knowing waiver by defendant.
State v. Thues, 203 Ariz. 339, 340 TT 4, 54 P.3d 437, 441 (App. 2002)
State v. Cox, 261 Ariz. 464, 468, TT13, 37 P.3d 437, 441 (App. 2002)
Sentencing process was fundamentally flawed" due to consideration of incorrect sentencing range, even though lengths of sentence did not exceed statutory minimum. This includes the similar error of failing to submit to a jury a sentencing enhancement allegation.
State v. Wiley, 199 Ariz. 242, 16 P.3d 803 (App. 2002)
An appellate court will not disturb the trial court's ruling on a petition for post - conviction relief absent an abuse of discretion.
US v. Ameline, 02-303 26 (9th Cir. 2005)
Purcell v. Bank of Atlantic Financial Corp., 85 F.3d 1508, 1513 (11th Cir. 1996)
Noting that a dissenting Supreme Court opinion is not binding precedent and "does not tell us how a majority of the court would decide."
US v. Argentine, 814 F2d 783 (1st Cir. 1987)
When it is determined on appeal that error at trial compromised defendant's constitutional rights, defendant need not demonstrate actual prejudice; reasonable possibility of injury attributable to error warrants reversal.
US v. Benjamin, 30 F.3d 196 (1st Cir. 1994)
Absent exceptional circumstances, contentions not argued below would not be addressed for first time on appeal.
US v. Brentley, 961 F.2d 425 (3rd Cir. 1992)
Indigent defendant is entitled to free trial transcript on appeal; however, alternative method, such as videotape, may be satisfactory equivalent.
US v. Bushert, 997 F.2d 1343 (11th Cir. 1993)
There is no constitutional right to appeal; right to appeal is purely statutory.
US v. Colon - Munoz, 192 F.3d 210 (1st Cir. 1999)
Where an equal or nearly equal theory of guilt and a theory of innocence is supported by the evidence the Court of Appeals must reverse a conviction.
US v. Davis, 974 F.2d 182 (D.C. Cir. 1992)
For an appellate court to overturn a conviction under the "plain error" standard parties must meet 3 requirements:
Error must be plain (i.e. so obvious that judge should have recognized it on his own);
Error must affect substantial rights of the parties; and
The error must be one that seriously affects fairness, integrity, or public reputation of judicial proceedings.
US v. Davis, 55 F.3d 517 (10th Cir. 1995)
In general, passage of two years creates presumption of inordinate delay on appeal.
US v. Duggan, 936 F.2d 181 (5th Cir. 1991)
Manzoli v. C.I.R., 904 F.2d 101 (1st Cir. 1990)
Argument not presented in trial court cannot be raised for first time on appeal.
US v. Mendoza - Burciaga, 981 F.2d 192 (5th Cir. 1992)
In reviewing sufficiency of evidence to support conviction, court of appeals asks whether rational trier of fact could find that evidence established guilt beyond a reasonable doubt.
US v. Mitchelle's Lounge, 39 F.3d 684 (7th Cir. 1994)
Time period for appeal begins to run on day order appealed from is granted.
US v. Pellerito, 878 F.2d 1535 (1st Cir. 1989)
Need for competency survives trial and extends through sentencing phrase of criminal proceeding.
US v. Rodriguez, 15 F.3d 408 (5th Cir. 1994)
Although reply brief is not mandatory under Federal Rules of Appellate Procedure, it is best vehicle for narrowing true issues (and is especially important and called for when new point or issue is raised).
US v. Sitton, 968 F.2d 947 (9th Cir. 1992)
Defendant was entitled to raise claim on appeal where he made offer of proof at trial.
Woods v. Thieret, 903 F.2d 1080 (7th Cir. 1990)
US v. Eatinger, 902 F.2d 1383 (9th Cir. 1990)
Pro se petitioners arguments must be liberally construed on appeal.

Arrest

Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994)
Simmons v. Pryor, 25 F.3d 650 (7th Cir. 1994)
In order to prevail in unlawful arrest action, plaintiff must show lack of probable cause.
Arrington v. McDonald, 808 F.2d 466 (6th Cir. 1986)
Police officers who took individual into custody solely to ascertain her identity were not entitled to immunity. Officers knew it was illegal to make arrest solely for that purpose.
Beck v. Ohio, 379 US 89, 13 L.Ed.2d 142, 85 S.Ct. 223 (1964)
US v. Brignoni - Ponce, 422 US 873, 45 L.Ed.2d 607, 95 S.Ct. 2574 (1975)
US v. Mendenhall, 446 US 544, 64 L.Ed.2d 497, 100 S.Ct. 1870 (1980)
US v. Johnson, 910 F.2d 1506 (7th Cir. 1990)
Three categories for policecitizen encounters in relation to the Fourth Amendment are an arrest, for which Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime, investigatory stop, which is limited to a brief, nonintrusive detention and which is a Fourth Amendment seizure but for which the officer need only have specific and articulable facts giving rise to reasonable suspicion that a person has committed or is committing a crime, and situations involving no restraint on the citizens liberty, as when an officer seeks that citizen's voluntary cooperation through noncoercive questioning.
Estate Of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993)
Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994)
Harrell v. Decantur County, Ga., 22 F.3d 1570 (11th Cir. 1994)
Use of force to effect arrest is subject to Fourth Amendments prohibition on unreasonable seizures.
Fontenot v. Cormier, 56 F.3d 669 (5th Cir. 1995)
Felony suspect cannot defeat lawful arrest begun in public place by escaping into private place.
Gainor v. Rogers, 973 F.2d 1379 (8th Cir. 1992)
First Amendment protects arrestee's right to verbally challenge police officer's actions in asking him for identification.
Groman v. Township Of Manalapan, 47 F.3d 628 (3rd Cir. 1995)
Where police lack probable cause to make arrest, arrestee has claim under §1983 for false imprisonment based on detention pursuant to that arrest.
Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995)
Apprehension by deadly force is "seizure" subject to Fourth Amendment.
Maltby v. Winston, 36 F.3d 548 (7th Cir. 1994)
Any evidence that came to light after arrest is not relevant to inquiry into probably cause for arrest.
Ruehman v. Sheahan, 34 F.3d 525 (7th Cir.1994)
Arrest without probable cause is illegal no matter what officers believed.
Scott v. Henrich, 994 F.2d 1338 (9th Cir. 1992)
Under Fourth Amendment police may use only such force as is objectively reasonable under circumstance.
US v. Arias - Villanveva, 998 F.2d 1491 (9th Cir. 1993)
Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993)
Government may stop and question any individual for any reason as long as person to whom questions are put remains free to disregard questions and walk away.
US v. Dixon, 51 F.3d 1376 (8th Cir. 1995)
Seizures under Fourth Amendment fall into two categories, investigative stops and arrests; there is no bright line demarcation between the two.
US v. Gooch, 6 F.3d 673 (9th Cir. 1993)
On Motion to Suppress, government has heavy burden of showing that exigent circumstances made warrantless arrest imperative.
US v. Hogan, 38 F.3d 1148 (10th Cir. 1994)
Protective sweep should last no longer than is necessary to dispel reasonable suspicion of danger and, in any event, no longer than it takes to complete the arrest and depart the premises.
US v. Johnson, 22 F.3d 674 (6th Cir. 1994)
Absent exigent circumstances, police may not enter a person's home or lodging to effect a warrantless arrest or seizure.
US v. Lambert, 46 F.3d 1064 (10th Cir. 1995)
When law enforcement officials retain individual's driver's license in the course of questioning him, that individual, as a general rule, will not reasonably feel free to terminate encounter.
US v. Mesa, 62 F.3d 159 (6th Cir. 1995)
A hunch is not a "reasonable suspicion."
US v. Roch, 5 F.3d 894 (5th Cir. 1993)
US v. Arzaga, 9 F.3d 91 (10th Cir. 1993)
1. Reasonable suspicion for investigative detention must be formed before seizure occurs.
2. Even investigatory stop is improper unless it is based on reasonable suspicion that criminal activity is afoot.
US v. Shephard, 21 F.3d 933 (9th Cir, 1994)
Evidence in federal prosecution must be suppressed if product of illegal arrest under state law.
US v. Span, 970 F.2d 573 (9th Cir. 1992)
Federal officer who uses excessive force is not acting in good faith and may be resisted.
US v. Tehrami, 49 F.3d 54 (2nd Cir. 1995)
Length of detention may be so excessive as to convert it into arrest.
US v. Wadley, 59 F.3d 510 (5th Cir. 1995)
Warrantless arrest must be based on probable cause.
US v. Wanless, 882 F.2d 1459 (9th Cir. 1989)
Troopers did not have probable cause to arrest passenger for giving false information, and resulting search of his person.
US v. Weaver, 8 F.3d 1240 (7th Cir. 1993)
Arrest must be supported by probable cause.

A.R.S. 13-405

Sexual conduct with a minor; classification; definition
A. A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.

B. Sexual conduct with a minor who is under fifteen years of age is a class 2 felony and is punishable pursuant to section 13-705. Sexual conduct with a minor who is at least fifteen years of age is a class 6 felony. Sexual conduct with a minor who is at least fifteen years of age is a class 2 felony if the person is the minor's parent, stepparent, adoptive parent, legal guardian, foster parent or the minor's teacher or clergyman or priest and the convicted person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed has been served or commuted.

C. For the purposes of this section, "teacher" means a certificated teacher as defined in section 15-501 or any other person who directly provides academic instruction to pupils in any school district, charter school, accommodation school, the Arizona state schools for the deaf and the blind or a private school in this state.

A.R.S. 13-604.01

Note: This statute is now defunct and rewritten as ARS 13-705 to include attempted charges.
In re Nickolas T., 223 Ariz. 403
At the age of 11, the juvenile was charged by delinquency petition with nine county of different sexual acts with a minor. He was adjudicated delinquent after entering into a plea agreement with the State, admitting that he committed sexual assault in exchange for the dismissal of the remaining charges. The juvenile was placed on probation, ordered to obtain in-patient treatment, and required to register as a sex offender. Two years later, the juvenile court released the juvenile from probation, conducted hearings, and granted the juvenile's motion requesting that the registration requirement be terminated. On review, the court held that, under Ariz. Rev. Stat. § 13-3821(G), the juvenile court was vested with the discretion to terminate the juvenile's registration requirement where the offense was committed by a juvenile under the age of 18 and where the juvenile successfully completed probation. The juvenile court had the statutory authority to require the juvenile to register as a sex offender and the authority to terminate that requirement when it found that the juvenile had been sufficiently rehabilitated.

State v. Gonzalez, 216 Ariz. 11, 162 P.3d 650
Defendant petitioned for postconviction relief from conviction for attempted second-degree sexual conduct with a minor under 15 years of age and contributing to the delinquency of a minor, as affirmed on direct appeal. The Superior Court, Pima County, No. CR-20031557,Christopher C. Browning, J., denied petition. Defendant filed petition for review. The Court of Appeals, Howard, P.J., held that statute under which defendant was sentenced did not apply to his conviction. Petition for review granted and remanded for resentencing.

State v. Ortega, 220 Ariz. 320
Defendant argued that the charges in counts four and five, molestation of a child and sexual conduct with a minor under the age of 15, arose from a single act, and his convictions on both charges constituted a double jeopardy violation. It was necessary for the court to compare the elements of sexual conduct with a minor under 15 with the elements of molestation. Defendant could not commit sexual conduct with a minor under 15 without also committing molestation of a child. Because molestation was a lesser included offense of sexual conduct with a minor under 15, the court concluded that defendant's conviction of both the greater and the lesser offenses violated double jeopardy. Therefore, defendant's conviction on count four, molestation of a child, had to be vacated. Regarding defendant's contention the prosecutor exerted improper influence over a victim's testimony, rendering it unreliable, the court concluded that the prosecutor was entitled to introduce the victim's prior statements to refresh the victim's memory or for impeachment purposes. Therefore, there was no error or misconduct in the prosecutor's detailed questions concerning the victim's previous statements.

State v. Peek, Arizona Supreme Court No. CR-07-0412-PR, SUPREME COURT OF ARIZONA, 219 Ariz. 182; 195 P.3d 641; 2008 Ariz. LEXIS 200; 543 Ariz. Adv. Rep. 3, November 3, 2008, Decided, November 2, 2007, Filed
Trial court erred in imposing lifetime probation following defendant's conviction of attempted child molestation, which occurred between 1994 and 1996, because Ariz. Rev. Stat. § 13-902(E) (Supp. 1993) did not allow lifetime probation for second-degree offenses constituting Dangerous Crimes Against Children, including attempted child molestation.

State v. Ponsart, 233 P.3d 631
The appellate court noted that defendant was exposed to the prison term here only after the trial court had determined, following a contested hearing, that defendant had violated the terms and conditions of his probation--events that were not consequences of his plea agreement. Because the legislature had not indicated whether it intended the phrase "pursuant to a plea agreement" to refer to more general or direct causal consequences of a plea, the appellate court could not agree with the state that the plain language of Ariz. Rev. Stat. § 13-4033(B) necessarily characterized defendant's sentence as one "entered pursuant to a plea agreement." The sentence defendant challenged could not have been raised in the original proceedings because no such sentence had yet been imposed. The trial court did not err in considering other aggravating factors or in imposing an aggravated sentence. The finding of emotional harm was reasonably supported by the victim's impact statement.

State v. Shrum, 220 Ariz. 115
Defendant argued that his second PCR petition was not precluded under Ariz. R. Crim. P. 32.2(b). The supreme court noted that under Ariz. R. Crim. P. 32.1(g), a defendant was not expected to anticipate significant future changes of the law in his of-right PCR proceeding or direct appeal. Nor should PCR rules encourage defendants to raise a litany of claims clearly foreclosed by existing law in the faint hope that an appellate court would embrace one of those theories. The supreme court noted that a prior case did not purport to overrule any prior opinion; it was merely the first appellate opinion interpreting Ariz. Rev. Stat. § 13-604.01. After this case, the law remained precisely the same. For purposes of Rule 32.1(g), a change in the law could not be established by the subjective opinions of counsel. The prior case was not a Rule 32.1(g) "significant change in the law."

State v. Thomas, Arizona Supreme Court, No. CR-08-0051-PR, SUPREME COURT OF ARIZONA, 219 Ariz. 127; 194 P.3d 394; 2008 Ariz. LEXIS 201, October 30, 2008, Decided
Trial court did not err in enhancing defendant's sentences for drug convictions because an aggravated assault conviction was properly considered a "historical prior felony conviction" under Ariz. Rev. Stat. § 13-604.W.3(a)(i), even though it was committed after the drug offenses, because defendant was convicted of assault first.

A.R.S. 13-1001

Attempt; classifications
A. A person commits attempt if, acting with the kind of culpability otherwise required for commission of an offense, such person:

1. Intentionally engages in conduct which would constitute an offense if the attendant circumstances were as such person believes them to be; or

2. Intentionally does or omits to do anything which, under the circumstances as such person believes them to be, is any step in a course of conduct planned to culminate in commission of an offense; or

3. Engages in conduct intended to aid another to commit an offense, although the offense is not committed or attempted by the other person, provided his conduct would establish his complicity under chapter 3 if the offense were committed or attempted by the other person.

B. It is no defense that it was impossible for the person to aid the other party's commission of the offense, provided such person could have done so had the circumstances been as he believed them to be.

C. Attempt is a:

1. Class 2 felony if the offense attempted is a class 1 felony.

2. Class 3 felony if the offense attempted is a class 2 felony.

3. Class 4 felony if the offense attempted is a class 3 felony.

4. Class 5 felony if the offense attempted is a class 4 felony.

5. Class 6 felony if the offense attempted is a class 5 felony.

6. Class 1 misdemeanor if the offense attempted is a class 6 felony.

7. Class 2 misdemeanor if the offense attempted is a class 1 misdemeanor.

8. Class 3 misdemeanor if the offense attempted is a class 2 misdemeanor.

9. Petty offense if the offense attempted is a class 3 misdemeanor or petty offense.

State v. Villarreal, 136 Ariz. 485, 666 P. 2d 1094 (1993)
The question of what constitutes “any step in a course of conduct planned to culminate in commission of an offense.” Is for the trier of fact.
State v. Sanchez, 174 Ariz. 44, 846P. 2d 857 (1993)
“Offense” in this section (13-1001) refers to a substantiative rather than to a preparatory offense.
State v. May, 137 Ariz. 183, 669 P. 2d 616 (1983)
The crime of attempt requires proof of a specific intent by the defendant to commit the substantial crime.
Note: Do not be misled by the title of the statute. It is only a title and does not necessarily depict the context of the statute. 13-1001 can be related to 13-109 (B) (7) and 13-110.

ARS 13-1404

Sexual abuse; classification
A. A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person who is fifteen or more years of age without consent of that person or with any person who is under fifteen years of age if the sexual contact involves only the female breast.

B. Sexual abuse is a class 5 felony unless the victim is under fifteen years of age in which case sexual abuse is a class 3 felony punishable pursuant to section 13-705.

ARS 13-1405

ARS 13-1406

Sexual assault; classification; increased punishment
A. A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.

B. Sexual assault is a class 2 felony, and the person convicted shall be sentenced pursuant to this section and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served or commuted. If the victim is under fifteen years of age, sexual assault is punishable pursuant to section 13-705. The presumptive term may be aggravated or mitigated within the range under this section pursuant to section 13-701, subsections C, D and E. If the sexual assault involved the intentional or knowing administration of flunitrazepam, gamma hydroxy butyrate or ketamine hydrochloride without the victim's knowledge, the presumptive, minimum and maximum sentence for the offense shall be increased by three years. The additional sentence imposed pursuant to this subsection is in addition to any enhanced sentence that may be applicable. The term for a first offense is as follows:

Minimum Presumptive Maximum

5.25 years 7 years 14 years

The term for a defendant who has one historical prior felony conviction is as follows:

Minimum Presumptive Maximum

7 years 10.5 years 21 years

The term for a defendant who has two or more historical prior felony convictions is as follows:

Minimum Presumptive Maximum

14 years 15.75 years 28 years

C. The sentence imposed on a person for a sexual assault shall be consecutive to any other sexual assault sentence imposed on the person at any time.

D. Notwithstanding section 13-703, section 13-704, section 13-705, section 13-706, subsection A and section 13-708, subsection D, if the sexual assault involved the intentional or knowing infliction of serious physical injury, the person may be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until at least twenty-five years have been served or the sentence is commuted. If the person was at least eighteen years of age and the victim was twelve years of age or younger, the person shall be sentenced pursuant to section 13-705.

ARS 13-1407

Defenses
A. It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 involving a minor if the act was done in furtherance of lawful medical practice.

B. It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 in which the victim's lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim.

C. It is a defense to a prosecution pursuant to section 13-1402, 13-1404, 13-1405 or 13-1406 if the act was done by a duly licensed physician or registered nurse or a person acting under the physician's or nurse's direction, or any other person who renders emergency care at the scene of an emergency occurrence, the act consisted of administering a recognized and lawful form of treatment that was reasonably adapted to promoting the physical or mental health of the patient and the treatment was administered in an emergency when the duly licensed physician or registered nurse or a person acting under the physician's or nurse's direction, or any other person rendering emergency care at the scene of an emergency occurrence, reasonably believed that no one competent to consent could be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

D. It is a defense to a prosecution pursuant to section 13-1404 or 13-1405 that the person was the spouse of the other person at the time of commission of the act. It is not a defense to a prosecution pursuant to section 13-1406 that the defendant was the spouse of the victim at the time of commission of the act.

E. It is a defense to a prosecution pursuant to section 13-1404 or 13-1410 that the defendant was not motivated by a sexual interest. It is a defense to a prosecution pursuant to section 13-1404 involving a victim under fifteen years of age that the defendant was not motivated by a sexual interest.

F. It is a defense to a prosecution pursuant to sections 13-1405 and 13-3560 if the victim is fifteen, sixteen or seventeen years of age, the defendant is under nineteen years of age or attending high school and is no more than twenty-four months older than the victim and the conduct is consensual.

ARS 13-1410

Molestation of a child; classification
A. A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.

B. Molestation of a child is a class 2 felony that is punishable pursuant to section 13-705.

In Re Maricopa County Action No. Jv. -121430, 172 Ariz. 604, 838 P.2d 1365 (1992)
The intent necessary to commit the crime of molestation is only that the actor being motivated by “sexual interest.”.

ARS 13-1413

Capacity of minor sexual assault victim to consent to medical examination
Notwithstanding any other provision of the law, when it is not possible to contact the parents or legal guardian within the short time span in which the examination should be conducted a minor twelve years of age or older alleged to be the victim of a violation of section 13-1406 may give consent to hospital, medical and surgical examination, diagnosis and care in connection with such violation. Such consent shall not be subject to incapacity because of the victim's age. The consent of the parent, parents or legal guardian of such minor shall not be necessary to authorize such hospital, medical and surgical examination, diagnosis and care, and such parent, parents or legal guardian shall not be liable for payment for any services rendered pursuant to this section.

ARS 13-1416

Admissibility of minor's statement; notice
A. Except as otherwise provided in title 8, a statement made by a minor who is under the age of ten years describing any sexual offense or physical abuse performed with, on or witnessed by the minor, which is not otherwise admissible by statute or court rule, is admissible in evidence in any criminal or civil proceeding if both of the following are true:

1. The court finds, in an in camera hearing, that the time, content and circumstances of the statement provide sufficient indicia of reliability.

2. Either of the following is true:

(a) The minor testifies at the proceedings.

(b) The minor is unavailable as a witness, provided that if the minor is unavailable as a witness, the statement may be admitted only if there is corroborative evidence of the statement.

B. A statement shall not be admitted under this section unless the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.

ARS 13-1417

Continuous sexual abuse of a child; classification
A. A person who over a period of three months or more in duration engages in three or more acts in violation of section 13-1405, 13-1406 or 13-1410 with a child who is under fourteen years of age is guilty of continuous sexual abuse of a child.

B. Continuous sexual abuse of a child is a class 2 felony and is punishable pursuant to section 13-705.

C. To convict a person of continuous sexual abuse of a child, the trier of fact shall unanimously agree that the requisite number of acts occurred. The trier of fact does not need to agree on which acts constitute the requisite number.

D. Any other felony sexual offense involving the victim shall not be charged in the same proceeding with a charge under this section unless the other charged felony sexual offense occurred outside the time period charged under this section or the other felony sexual offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved. If more than one victim is involved, a separate count may be charged for each victim.

ARS 13-1423

Violent sexual assault; natural life sentence
A. A person is guilty of violent sexual assault if in the course of committing an offense under section 13-1404, 13-1405, 13-1406 or 13-1410 the offense involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or involved the intentional or knowing infliction of serious physical injury and the person has a historical prior felony conviction for a sexual offense under this chapter or any offense committed outside this state that if committed in this state would constitute a sexual offense under this chapter.

B. Notwithstanding section 13-703, section 13-704, section 13-705, section 13-706, subsection A and section 13-708, subsection D, a person who is guilty of a violent sexual assault shall be sentenced to life imprisonment and the court shall order that the person not be released on any basis for the remainder of the person's natural life.

ARS 13-3551

Definitions
In this chapter, unless the context otherwise requires:

1. "Communication service provider" has the same meaning prescribed in section 13-3001.

2. "Computer" has the same meaning prescribed in section 13-2301, subsection E.

3. "Computer system" has the same meaning prescribed in section 13-2301, subsection E.

4. "Exploitive exhibition" means the actual or simulated exhibition of the genitals or pubic or rectal areas of any person for the purpose of sexual stimulation of the viewer.

5. "Minor" means a person or persons who were under eighteen years of age at the time a visual depiction was created, adapted or modified.

6. "Network" has the same meaning prescribed in section 13-2301, subsection E.

7. "Producing" means financing, directing, manufacturing, issuing, publishing or advertising for pecuniary gain.

8. "Remote computing service" has the same meaning prescribed in section 13-3001.

9. "Sexual conduct" means actual or simulated:

(a) Sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex.

(b) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.

(d) Masturbation, for the purpose of sexual stimulation of the viewer.

(e) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.

(f) Defecation or urination for the purpose of sexual stimulation of the viewer.

10. "Simulated" means any depicting of the genitals or rectal areas that gives the appearance of sexual conduct or incipient sexual conduct.

11. "Visual depiction" includes each visual image that is contained in an undeveloped film, videotape or photograph or data stored in any form and that is capable of conversion into a visual image.

ARS 13-3552

Commercial sexual exploitation of a minor; classification
A. A person commits commercial sexual exploitation of a minor by knowingly:

1. Using, employing, persuading, enticing, inducing or coercing a minor to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.

2. Using, employing, persuading, enticing, inducing or coercing a minor to expose the genitals or anus or the areola or nipple of the female breast for financial or commercial gain.

3. Permitting a minor under the person's custody or control to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.

4. Transporting or financing the transportation of any minor through or across this state with the intent that the minor engage in prostitution, exploitive exhibition or other sexual conduct for the purpose of producing a visual depiction or live act depicting such conduct.

B. Commercial sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705.

ARS 13-3553

Sexual exploitation of a minor; evidence; classification
A. A person commits sexual exploitation of a minor by knowingly:

1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

B. If any visual depiction of sexual exploitation of a minor is admitted into evidence, the court shall seal that evidence at the conclusion of any grand jury proceeding, hearing or trial.

C. Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705.

State v. Kirby Stone CR2001-017210
Maricopa Superior Court upheld defendant’s motion that ARS 13-3553 was overbroad because of the definition of child pornography being “any visual depiction.” This definition would include baby in a bath tub family photos, fine art, painting, drawings and computer generated images. Therefore ARS 13-3553 as worded is a violation of 1st Amendment rights. The same wording existed in the Federal child pornography laws until Ashcroft v. Free Speech Coalition forced the removal of “any visual depiction” from the language of the law and replaced it with something else.
ARS 13-3553 does not have exceptions or exemptions built into the statute so as to prevent law enforcement and justice system personnel from violating the same law. With no exceptions or exemptions present it causes the law to be arbitrarily and discriminately enforced. See the following:
Bland v. California D.O.C.
Grayned v. City of Rockford supra, page 39
Contains a three-prong test for vagueness and over breadth. Fourteen states have put exceptions or exemptions into their sexual exploitation statutes. They are: CA, CO, IL, IN, IA, GA, MA, MI, MN, ND, OH, OK, OR and WY.

ARS 13-3554

Luring a minor for sexual exploitation; classification
A. A person commits luring a minor for sexual exploitation by offering or soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor.

B. It is not a defense to a prosecution for a violation of this section that the other person is not a minor.

C. Luring a minor for sexual exploitation is a class 3 felony, and if the minor is under fifteen years of age it is punishable pursuant to section 13-705.

Mejak v. Granville, Arizona Supreme Court No. Cv. -05-0299-PR , SUPREME COURT OF Arizona, 212 Ariz. 555; 136 P.3d 874; 2006 Ariz. LEXIS 62; 478 Ariz. Adv. Rep. 27, May 24, 2006, Filed
Ariz. Rev. Stat. § 13-3554 was interpreted to require that the person lured by a defendant be a minor or a peace officer posing as a minor given the statutory language. Since the person that lured defendant was an adult television reporter, rather than a minor or peace officer posing as a minor, the indictment was insufficient to charge him.

ARS 13-3557

Equipment; forfeiture
On the conviction of a person for a violation of section 13-3552, 13-3553, 13-3554 or 13-3560, the court shall order that any photographic equipment, computer system or instrument of communication that is owned or used exclusively by the person and that was used in the commission of the offense be forfeited and sold, destroyed or otherwise properly disposed.

ARS 13-3559

Reporting suspected visual depictions of sexual exploitation of a minor; immunity.
A. Any communications service provider, remote computing service, system administrator, computer repair technician or other person who discovers suspected visual depictions of sexual exploitation of a minor on a computer, computer system or network or any other storage medium may report that discovery to law enforcement officer.

B. A person who on discovery in good faith reports the discovery of suspected visual depictions of sexual exploitation of a minor is immune from civil liability.

C. It is an affirmative defense to a prosecution of ARS 13-3553 that on discovery a person in good faith reports the discovery of unsolicited suspected visual depictions involving the sexual exploitation of a minor.

ARS 13-3560

Aggravated luring a minor for sexual exploitation; classification; definitions.
A. A person commits aggravated luring a minor for sexual exploitation if the person does both of the following:

1. Knowing the character and content of the depiction, uses an electronic communication device to transmit at least one visual depiction of material that is harmful to minors for the purpose of initiating or engaging in communication with a recipient who the person knows or has reason to know is a minor.

2. By means of the communication, offers or solicits sexual conduct with the minor. The offer or solicitation may occur before, contemporaneously with, after or as an integrated part of the transmission of the visual depiction.

B. It is not a defense to a prosecution for a violation of this section that the other person is not a minor or that the other person is a peace officer posing as a minor.

C. Aggravated luring a minor for sexual exploitation is a class 2 felony, and if the minor is under fifteen years of age it is punishable pursuant to section 13-705, subsection D.

D. The defense prescribed in section 13-1407, subsection F applies to a prosecution pursuant to this section.

E. For the purposes of this section:

1. "Electronic communication device" means any electronic device that is capable of transmitting visual depictions and includes any of the following:

(a) A computer, computer system or network as defined in section 13-2301.

(b) A cellular or wireless telephone as defined in section 13-4801.

2. "Harmful to minors" has the same meaning prescribed in section 13-3501.

ARS 13-3821

Persons required to register; procedure; identification card; assessment; definitions.
A. A person who has been convicted of a violation or attempted violation of any of the following offenses or who has been convicted of an offense committed in another jurisdiction that if committed in this state would be a violation or attempted violation of any of the following offenses or an offense that was in effect before September 1, 1978 and that, if committed on or after September 1, 1978, has the same elements of an offense listed in this section or who is required to register by the convicting jurisdiction, within ten days after the conviction or within ten days after entering and remaining in any county of this state, shall register with the sheriff of that county:

Unlawful imprisonment pursuant to section 13-1303 if the victim is under eighteen years of age and the unlawful imprisonment was not committed by the child's parent.
Kidnapping pursuant to section 13-1304 if the victim is under eighteen years of age and the kidnapping was not committed by the child's parent.
Sexual abuse pursuant to section 13-1404 if the victim is under eighteen years of age.
Sexual conduct with a minor pursuant to section 13-1405.
Sexual assault pursuant to section 13-1406.
Sexual assault of a spouse if the offense was committed before August 12, 2005.
Molestation of a child pursuant to section 13-1410.
Continuous sexual abuse of a child pursuant to section 13-1417.
Taking a child for the purpose of prostitution pursuant to section 13-3206.
Child prostitution pursuant to section 13-3212.
Commercial sexual exploitation of a minor pursuant to section 13-3552.
Sexual exploitation of a minor pursuant to section 13-3553.
Luring a minor for sexual exploitation pursuant to section 13-3554.
Sex trafficking of a minor pursuant to section 13-1307.
A second or subsequent violation of indecent exposure to a person under fifteen years of age pursuant to section 13-1402.
A second or subsequent violation of public sexual indecency to a minor under the age of fifteen years pursuant to section 13-1403, subsection B.
A third or subsequent violation of indecent exposure pursuant to section 13-1402.
A third or subsequent violation of public sexual indecency pursuant to section 13-1403.
A violation of section 13-3822 or 13-3824.
Unlawful age misrepresentation.
Aggravated luring a minor for sexual exploitation pursuant to section 13-3560.

B. Before the person is released from confinement the state department of corrections in conjunction with the department of public safety and each county sheriff shall complete the registration of any person who was convicted of a violation of any offense listed under subsection A of this section. Within three days after the person's release from confinement, the state department of corrections shall forward the registered person's records to the department of public safety and to the sheriff of the county in which the registered person intends to reside. Registration pursuant to this subsection shall be consistent with subsection E of this section.

C. Notwithstanding subsection A of this section, the judge who sentences a defendant for any violation of chapter 14 or 35.1 of this title or for an offense for which there was a finding of sexual motivation pursuant to section 13-118 may require the person who committed the offense to register pursuant to this section.

D. The court may require a person who has been adjudicated delinquent for an act that would constitute an offense specified in subsection A or C of this section to register pursuant to this section. Any duty to register under this subsection shall terminate when the person reaches twenty-five years of age.

E. A person who has been convicted of or adjudicated delinquent and who is required to register in the convicting state for an act that would constitute an offense specified in subsection A or C of this section and who is not a resident of this state shall be required to register pursuant to this section if the person is either:

Employed full-time or part-time in this state, with or without compensation, for more than fourteen consecutive days or for an aggregate period of more than thirty days in a calendar year.
Enrolled as a full-time or part-time student in any school in this state for more than fourteen consecutive days or for an aggregate period of more than thirty days in a calendar year. For the purposes of this paragraph, "school" means an educational institution of any description, public or private, wherever located in this state.

F. Any duty to register under subsection D or E of this section for a juvenile adjudication terminates when the person reaches twenty-five years of age.

G. The court may order the termination of any duty to register under this section on successful completion of probation if the person was under eighteen years of age when the offense for which the person was convicted was committed.

H. The court may order the suspension or termination of any duty to register under this section after a hearing held pursuant to section 13-923.

I. At the time of registering, the person shall sign or affix an electronic fingerprint to a statement giving such information as required by the director of the department of public safety, including all names by which the person is known, any required online identifier and the name of any website or internet communication service where the identifier is being used. The sheriff shall fingerprint and photograph the person and within three days thereafter shall send copies of the statement, fingerprints and photographs to the department of public safety and the chief of police, if any, of the place where the person resides. The information that is required by this subsection shall include the physical location of the person's residence and the person's address. If the person has a place of residence that is different from the person's address, the person shall provide the person's address, the physical location of the person's residence and the name of the owner of the residence if the residence is privately owned and not offered for rent or lease. If the person receives mail at a post office box, the person shall provide the location and number of the post office box. If the person does not have an address or a permanent place of residence, the person shall provide a description and physical location of any temporary residence and shall register as a transient not less than every ninety days with the sheriff in whose jurisdiction the transient is physically present.

J. On the person's initial registration and every year after the person's initial registration, the person shall confirm any required online identifier and the name of any website or internet communication service where the identifier is being used and the person shall obtain a new nonoperating identification license or a driver license from the motor vehicle division in the department of transportation and shall carry a valid nonoperating identification license or a driver license. Notwithstanding sections 28-3165 and 28-3171, the license is valid for one year from the date of issuance, and the person shall submit to the department of transportation proof of the person's address and place of residence. The motor vehicle division shall annually update the person's address and photograph and shall make a copy of the photograph available to the department of public safety or to any law enforcement agency. The motor vehicle division shall provide to the department of public safety daily address updates for persons required to register pursuant to this section.

K. Except as provided in subsection E or L of this section, the clerk of the superior court in the county in which a person has been convicted of a violation of any offense listed under subsection A of this section or has been ordered to register pursuant to subsection C or D of this section shall notify the sheriff in that county of the conviction within ten days after entry of the judgment.

L. Within ten days after entry of judgment, a court not of record shall notify the arresting law enforcement agency of an offender's conviction of a violation of section 13-1402. Within ten days after receiving this information, the law enforcement agency shall determine if the offender is required to register pursuant to this section. If the law enforcement agency determines that the offender is required to register, the law enforcement agency shall provide the information required by section 13-3825 to the department of public safety and shall make community notification as required by law.

M. A person who is required to register pursuant to this section because of a conviction for the unlawful imprisonment of a minor or the kidnapping of a minor is required to register, absent additional or subsequent convictions, for a period of ten years from the date that the person is released from prison, jail, probation, community supervision or parole and the person has fulfilled all restitution obligations. Notwithstanding this subsection, a person who has a prior conviction for an offense for which registration is required pursuant to this section is required to register for life.

N. A person who is required to register pursuant to this section and who is a student at a public or private institution of postsecondary education or who is employed, with or without compensation, at a public or private institution of postsecondary education or who carries on a vocation at a public or private institution of postsecondary education shall notify the county sheriff having jurisdiction of the institution of postsecondary education. The person who is required to register pursuant to this section shall also notify the sheriff of each change in enrollment or employment status at the institution.

O. At the time of registering, the sheriff shall secure a sufficient sample of blood or other bodily substances for deoxyribonucleic acid testing and extraction from a person who has been convicted of an offense committed in another jurisdiction that if committed in this state would be a violation or attempted violation of any of the offenses listed in subsection A of this section or an offense that was in effect before September 1, 1978 and that, if committed on or after September 1, 1978, has the same elements of an offense listed in subsection A of this section or who is required to register by the convicting jurisdiction. The sheriff shall transmit the sample to the department of public safety.

P. Any person who is required to register under subsection A of this section shall register the person's required online identifier and the name of any website or internet communication service where the identifier is being used or is intended to be used with the sheriff from and after December 31, 2007, regardless of whether the person was required to register an identifier at the time of the person's initial registration under this section.

Q. On conviction of any offense for which a person is required to register pursuant to this section, in addition to any other penalty prescribed by law, the court shall order the person to pay an additional assessment of two hundred fifty dollars. This assessment is not subject to any surcharge. The court shall transmit the monies received pursuant to this section to the county treasurer. The county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the sex offender monitoring fund established by section 13-3828. Notwithstanding any other law, the court shall not waive the assessment imposed pursuant to this section.

R. For the purposes of this section:

"Address" means the location at which the person receives mail.
"Required online identifier" means any electronic e-mail address information or instant message, chat, social networking or other similar internet communication name, but does not include a social security number, date of birth or pin number.
"Residence" means the person's dwelling place, whether permanent or temporary.

ARS 22-341

22-341. Motion for new trial or arrest of judgment
A. At any time before judgment, defendant may move for a new trial, or in arrest of judgment.
B. A new trial may be granted in the following cases:
When the trial has been had in the absence of defendant, unless he voluntarily absents himself with full knowledge that a trial is being had.

When the jury has received any evidence out of court.
When the jury has separated without leave of court, after having retired to deliberate on the verdict, or when it has been guilty of any misconduct tending to prevent a fair and due consideration of the action.
When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors.
When there has been an error in the decision of the court on a question of law arising during the trial.
When the verdict is contrary to law or evidence.
When new evidence is discovered material to defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of discovery of new evidence, defendant shall produce at the hearing affidavits of the witnesses by whom such newly discovered evidence is expected to be given.

C. The motion in arrest of judgment may be founded on any substantial defect in the complaint.
D. The effect of an arrest of judgment is to place defendant in the same situation in which he was before the trial was had.

Assault

Caldeorn-Ortiz v. Laboy-Alvarado, 300 F3d. 60 (1st CIR. 2002)
An inmate may sue a correctional facility under the 8th amendment for failure to provide adequate protection of inmates from attack by other inmates.
Canter v. Jones, 293 F3d 981 (7th CIR. 2002)
Prison officials have a duty to protect prisoners from violence at the hands of other inmates.
Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970
Prisoner who was transsexual brought Bivens suit against prison officials, claiming that officials showed “deliberate indifference” by placing prisoner in general prison population, thus failing to keep him from harm allegedly inflicted by other inmates. The United States District Court for the Western District of Wisconsin, Shabaz, J., entered judgment for officials and appeal was taken. The Court of Appeals, Seventh Circuit, 11 F.3d 668, affirmed. Certiorari was granted. The Supreme Court, Justice Souter, held that: (1) prison officials may be held liable under Eighth Amendment for denying humane conditions of confinement only if they know that inmates face substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it, and (2) remand would be required to determine whether prison officials would have liability, under above standards, for not preventing harm allegedly occurring in present case. Vacated and remanded.
Redman v. County of San Diego,
, No. 87-6139, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 942 F.2d 1435; 1991 U.S. App. LEXIS 20028; 91 Cal. Daily Op. Service 6848; 91 Daily Journal DAR 10416, October 11, 1990, Argued En Banc and Submitted, San Francisco, California , August 26, 1991, Filed. Affirmed in Part, Reversed in Part.
Pre-trial detainee's right to personal security under the Fourteenth Amendment was violated by a county, jail officials, and employees, who acted with "deliberate indifference" or a knowing willingness to inflict harm.
State v. Diaz, 221 Ariz. 209
Convictions were reversed and remanded pursuant to fundamental error review, because the transcript showed only eleven jurors determined defendant's guilt, and there was an absence of other facts supporting the inferences that twelve jurors actually participated in the determination of defendant's guilt.
State v. Hutchison, 2009 Ariz. App. LEXIS 799
Where the victim testified that he was afraid when defendant pointed a gun to his head, there was ample evidence for the jury to believe that the victim was in reasonable apprehension of imminent harm. The trial court did not err when it denied defendant's Ariz. R. Crim. P. 20 motion for judgment of acquittal on the aggravated assault charge.
State v. Klokic, 219 Ariz. 241
In trial for aggravated assault, trial court erred in denying defendant's request to require the State to elect which particular act it was charging because defendant allegedly pointed a handgun on two separate occasions, which were not part of the same transaction.
State v. Mason, 238 P.3d 134
Defendant argued that one of his two convictions for aggravated assault with a deadly weapon or dangerous instrument violated double jeopardy. Although the assault had been carried out by two principals with two different weapons, it was nonetheless a single attack. The involvement of multiple accomplices could not by itself transform the commission of a single statutory offense into multiple crimes. Because defendant's second aggravated assault with a deadly weapon or dangerous instrument conviction, even if it resulted in no greater sentence, was an impermissible punishment, it had be vacated. In addition, the imposition of consecutive sentences for defendant's armed robbery and aggravated assault convictions did not violate Ariz. Rev. Stat. § 13-116 because defendant could have committed the aggravated assaults without committing the armed robbery and the risk of harm to the victim was increased by the accomplices' possession of dangerous weapons during the robbery. Finally, based on the sentencing transcript stating that the trial court was proceeding under former Ariz. Rev. Stat. § 13-604(C) and (D), the imposition of an aggravated sentence of 20 years was proper. The appellate court reversed the trial court's judgment regarding defendant's two convictions for aggravated assault with a deadly weapon or dangerous instrument, remanded the case to the trial court with instruction for the trial court to decide which of the two convictions to vacate, and affirmed the remainder of the trial court's judgment.

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