Opinion
No. 1 CA-CR 13-0181 PRPC
09-18-2014
STATE OF ARIZONA, Respondent, v. DELL RAINBOW VANDERSCHUIT, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Robert E. Prather Counsel for Respondent Dell Rainbow Vanderschuit, Florence Petitioner
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for Review from the Superior Court in Maricopa County
No. CR2008-009278-001
The Honorable Steven K. Holding, Commissioner
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Dell Rainbow Vanderschuit, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Chief Judge Diane M. Johnsen and Judge Donn Kessler joined.
THOMPSON, Judge:
¶1 Petitioner Dell Rainbow Vanderschuit petitions this court for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 A jury convicted Vanderschuit of attempted child prostitution and the trial court sentenced him to the presumptive term of ten years' imprisonment. We affirmed his conviction and sentence on direct appeal. State v. Vanderschuit, 1 CA-CR 09-0822, 2011 WL 2935881, at 4, ¶ 14 (Ariz. App. Jul. 21, 2011). Vanderschuit filed a pro per petition for post-conviction relief after his counsel found no colorable claims. The trial court summarily dismissed the petition and Vanderschuit now seeks review. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Vanderschuit argues the jury convicted him of conduct not prohibited by any statute; the trial court instructed the jury on a nonexistent theory of criminal liability and the evidence was otherwise insufficient to support his conviction. We deny relief on these issues because Vanderschuit could have raised them on direct appeal. Any claim a defendant raised or could have raised on direct appeal is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply.
¶4 Vanderschuit also argues his appellate counsel was ineffective for failing to argue on appeal that the jury convicted him of conduct not prohibited by statute and that the evidence was otherwise insufficient to support his conviction. Appellate counsel presented issues regarding the denial of a motion for mistrial and a motion for new trial.
¶5 To state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). "A colorable claim of ineffective assistance of appellate counsel is a claim which, if true, might have changed the outcome." State v. Febles, 210 Ariz. 589, 595, ¶ 18, 115 P.3d 629, 635 (App. 2005). "[T]he petitioner must demonstrate a reasonable probability that but for counsel's deficient performance, the outcome of the appeal would have been different." Id. at 595-96, ¶18, 115 P.3d at 635-36.
¶6 We deny relief. First, appellate counsel is not required to "raise every possible or even meritorious issue on appeal." State v. Herrera,
183 Ariz. 642, 647, 905 P.2d 1377, 1382 (App. 1995)." The "strategic decision to winnow out weaker arguments on appeal and focus on those more likely to prevail is an acceptable exercise of professional judgment." Febles, 210 Ariz. at 596, ¶ 20, 115 P.3d at 636 (citation omitted). "Once the issues have been narrowed and presented, appellate counsel's waiver of other possible issues binds the defendant. Absent any evidence that the failure to raise an issue fell below prevailing professional norms and would have changed the outcome of the appeal, the claim is not colorable." Id. at ¶ 19, 115 P.3d at 636 (citation omitted).
¶7 Second, Vanderschuit has failed to demonstrate counsel's performance fell below objectively reasonable standards or that there is a reasonable probability that the outcome of the appeal would have been different. Regarding his claim that the jury convicted him of conduct not prohibited by statute, as charged and instructed in this case, a person commits attempted child prostitution if the person attempts to knowingly engage in "prostitution" with a minor. Ariz. Rev. Stat. (A.R.S.) § 13-3212(A)(8) (2008). A person commits "attempt" if the person acts "with the kind of culpability otherwise required for commission of an offense" and either:
Intentionally engages in conduct that would constitute an offense if the attendant circumstances were as such person believes them to be; or
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
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 [accomplice liability] if the offense were committed or attempted by the other person.
A.R.S. § 13-1001(A)(1) - (3) (2008).
¶8 Regarding the definition of "prostitution," Vanderschuit is correct that the trial gave the jury the wrong definition. The trial court instructed the jury that "'Prostitution' means engaging in or agreeing or offering to engage in sexual conduct with another person under a fee arrangement with that person or any other person." This is how the criminal code defined "prostitution" prior to 2007. See A.R.S. § 13-3211(5)
(2006). Vanderschuit committed the offense in 2008. The legislature changed the wording of the definition in 2007 to read, "'Prostitution' means engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement with any person for money or any other valuable consideration." A.R.S. § 13-3211(5) (2007).
¶9 Vanderschuit does not argue appellate counsel was ineffective for failing to challenge the instruction on appeal. Vanderschuit argues only that to convict him of attempted child prostitution under the newer, applicable definition of "prostitution," the jury had to find he made his agreement with or made his offer to the minor child herself, not an adult acting for the minor. Vanderschuit argues that when one views the new definition of "prostitution" in the context of the offense of child prostitution, the legislature intended the word "person" to mean "minor." As explained in more detail below, Vanderschuit negotiated with, made offers to and reached agreements with an undercover police officer claiming to be the caretaker of a fictitious ten year old girl. This is why, Vanderschuit argues, in addition to the insufficiency of the evidence in general, the jury convicted him of conduct not prohibited by statute.
¶10 Vanderschuit is incorrect. Whether in terms of a fee agreement with "any person" as used in the applicable version of the definition, or a fee agreement with "that person or any other person" as used in the older definition given to the jury, both are synonymous with "any person" of any age. Neither version of the definition requires that the suspect make the offer and/or agreement to engage in sexual conduct directly to the person who will participate in the sexual conduct, even when viewed in the context of child prostitution. Therefore, the jury convicted Vanderschuit of the attempt to engage in conduct prohibited by A.R.S. § 13-3212(A)(8), and appellate counsel was not ineffective for choosing not to present this issue on appeal.
¶11 Regarding the sufficiency of the evidence to support his conviction, Vanderschuit told a prostitute that he wanted to make his fantasy of having sex with a female child a reality. Vanderschuit asked if there was any way the prostitute could find a nine or ten year old girl who would perform oral sex on him. Vanderschuit told the prostitute he would pay her to find such a girl. Vanderschuit made it clear he was not discussing this matter merely as a fantasy, but that he actually wanted it to happen. The prostitute contacted police.
¶12 A police officer eventually had three telephone conversations with Vanderschuit. The officer posed as the caretaker for a ten year old girl.
The officer recorded those conversations and the jury heard the recordings at trial. Over the course of those conversations, Vanderschuit told the officer he wanted to make sure she was not a police officer or that she was otherwise setting him up. They discussed the details of how Vanderschuit, the officer and the ten year old girl would meet, including how Vanderschuit would take a taxi from the airport to a hotel room and how the officer would obtain the room in her name so there was no "paper trail" to connect Vanderschuit to the room. During the second telephone conversation, Vanderschuit spoke with a person he believed was the ten year old girl he would meet with the officer in the hotel. The ten year old girl was actually an FBI agent.
¶13 At one point during a conversation with the officer, Vanderschuit asked, "This is for real, right? I mean, this is for real, right," to which the officer responded, "Yes." Vanderschuit responded, "Okay she's ten, right?" Later in that same discussion, Vanderschuit asked the officer, "Can I do everything?" The officer told Vanderschuit she was not clear what he wanted, and noted that "everything" had various meanings. When the officer asked Vanderschuit exactly what he wanted, he answered, "I want to have sex." When the officer asked if Vanderschuit wanted to have sex with both the girl and the officer, Vanderschuit answered, "Possibly, but probably mostly just with just her," referring to the ten year old girl. Vandershuit also told the officer he wanted her to prepare the girl for sex with Vanderschuit. Finally, Vanderschuit and the officer discussed how Vandershuit would pay the officer $1500 to make this encounter happen. Vanderschuit ultimately did not meet with the officer and the fictitious girl.
¶14 Despite all this, Vanderschuit argues words alone are not sufficient to convict a person of an attempted offense. He argues the person must also commit some overt act. Ignoring the fact that Vanderschuit actively sought out a child with whom he could have sex and had multiple contacts with people he believed could provide that child to him, Vanderschuit is incorrect. "[W]ords may be acts sufficient to sustain a conviction for an attempt when viewed in the light of the circumstances in which they were uttered." State v. Carlisle, 198 Ariz. 203, 207, ¶ 14, 8 P.3d 391, 395 (App. 2000) (quoting State v. Dale, 121 Ariz. 433, 435, 590 P.2d 1379, 1381 (1979)). We recognized this in State v. Fristoe, the case Vanderschuit relies upon to support his proposition that words alone are not sufficient to sustain a conviction for attempt. See State v. Fristoe, 135 Ariz. 25, 30, 658 P.2d 825, 830 (App. 1982). Vanderschuit's words, when viewed in the light of the circumstances in which he uttered them, were sufficient to convict him of the attempted offense. Therefore, the evidence was more than
sufficient to permit the jury to find beyond a reasonable doubt that Vanderschuit attempted to commit child prostitution. Appellate counsel was not ineffective for choosing not to challenge the sufficiency of the evidence on appeal.
¶15 We grant review and deny relief.