State of Arizona v. Kevin Harry Moninger2 min read

Arizona Supreme Court: State of Arizona v. Kevin Harry Moninger

Case No. CR-21-0239-PR  F iled July 24, 2024

ISSUES:

1. The allowable unit of prosecution for luring a minor for sexual exploitation under A.R.S. § 13-3554.
2. Whether multiple convictions for luring based on a single course of conduct violate double jeopardy.
3. Whether a luring conviction is probation eligible under A.R.S. § 13-705(H) (2018).

DECISION:

1. The court held that § 13-3554’s unit of prosecution is defined by separate and distinct (1) types of sexual conduct and (2) victims. A series of actions soliciting one type of sexual conduct from one victim may support multiple convictions if divisible into multiple, factually distinguishable courses of conduct.
2. The court concluded that Moninger’s three luring convictions were based on one continuous course of conduct, and subjecting him to three separate convictions for one violation of § 13-3554 put him in double jeopardy.
3. The court determined that a completed luring offense is a first-degree dangerous crime against children (DCAC) and is explicitly ineligible for probation under § 13-705(H) (2018).

Synopsis:
The Arizona Supreme Court clarified the allowable unit of prosecution for luring a minor for sexual exploitation under A.R.S. § 13-3554. The court established a two-step analysis: first, identifying the objects of the prohibited action (sexual conduct and victims), and second, applying a totality-of-circumstances approach to determine if a series of actions can be divided into multiple courses of conduct. The court emphasized that the statute is based on a course of conduct defined by offers or solicitations of separate types of sexual conduct or to separate victims. The court also addressed the issue of probation eligibility for luring convictions under A.R.S. § 13-705(H) (2018).

Outcome of the Case:
The court vacated Moninger’s second and third luring convictions (counts two and three) and the resulting sentences. The sentence imposed for count one was also vacated, and the case was remanded to the trial court for resentencing. The court affirmed that Moninger’s remaining luring conviction is not probation eligible.