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March 4, 2026 Get Citation Alerts Download PDF Add Note

State of Arizona v. Jose Soto

Court of Appeals of Arizona

• Citations: None known

• Docket Number: 2 CA-CR 2024-0145

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (19.7K)

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Syllabus

Does the plain language of A.R.S. § 13-705(M) provide the trial court discretion to impose concurrent sentencing for multiple counts of child molestation and sexual abuse of a child involving the same victim?

Combined Opinion

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

JOSE ANGEL SOTO III,
Appellant.

No. 2 CA-CR 2024-0145
Filed March 4, 2026

Appeal from the Superior Court in Pima County
No. CR20221282001
The Honorable Richard E. Gordon, Judge

REVERSED IN PART AND REMANDED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Casey D. Ball, Assistant Attorney General, Phoenix
Counsel for Appellee

James Fullin, Pima County Legal Defender
By Jeffrey Kautenburger, Assistant Legal Defender, Tucson
Counsel for Appellant
STATE v. SOTO
Opinion of the Court

OPINION

Chief Judge Staring authored the opinion of the Court, in which Vice Chief
Judge Eppich concurred and Judge Eckerstrom specially concurred.

S T A R I N G, Chief Judge:

¶1 Jose Angel Soto III appeals from his convictions and sentences
of three counts of child molestation of R.L., two counts of sexual abuse of a
minor of R.L., and one count of child molestation against A.L. He argues
the trial court erred in its interpretation of A.R.S. § 13-705(M)1 at sentencing
and there was insufficient evidence to find him guilty on one count of child
molestation against R.L. We reverse as to that count and remand for
resentencing.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to sustaining
the jury’s verdicts. State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In May
2021, R.L. and A.L. lived with their family but without their father, Soto. At
that time, R.L. was eleven years old and A.L. was eight years old. After
moving in with the family, Soto rubbed his genitals on R.L. and touched
R.L.’s genitals and breasts. He also rubbed his genitals on A.L.

¶3 Soto was charged with three counts of child molestation and
two counts of sexual abuse of R.L. and one count of molesting A.L.—all
dangerous crimes against children (“DCAC”). After a three-day trial, the
jury found him guilty of all counts. Believing that § 13-705(M) compelled
it, the trial court sentenced Soto to serve each of the counts consecutively,
resulting in a total sentence of seventy-eight years imprisonment minus 802
days of time already served. This appeal followed. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

1Soto committed the offenses in May 2021. An amended version of
the statute took effect in September 2021, after the offenses occurred.
Because the version in effect at the time of the offenses applies, see State v.
Newton, 200 Ariz. 1, ¶ 3 (2001), all references to § 13-705(M) are to the
applicable earlier version. See 2018 Ariz. Sess. Laws, ch. 181, § 1.

2
STATE v. SOTO
Opinion of the Court

Discussion

I. Statutory Interpretation of A.R.S. § 13-705(M)

¶4 Matters of statutory interpretation involve questions of law,
which we review de novo. See State ex rel. Polk v. Campbell, 239 Ariz. 405,
¶ 4 (2016). “We interpret statutory language in view of the entire text,
considering the context and related statutes on the same subject.” Nicaise v.
Sundaram, 245 Ariz. 566, ¶ 11 (2019). As such, the statute’s text controls
when it is clear and unambiguous unless it would cause an absurd result or
a constitutional violation. State v. Serrato, 259 Ariz. 493, ¶ 9 (2025).
However, if the language of the statute is ambiguous, “we may use
alternative methods of statutory construction, including examining the
rule’s historical background, its spirit and purpose, and the effects and
consequences of competing interpretations.” Id. (quoting Planned Parenthood
Ariz., Inc. v. Mayes, 257 Ariz. 137, ¶ 17 (2024)).

¶5 Section 13-705 sets forth the sentencing ranges for dangerous
crimes against children. Subsection (M) addresses the circumstances under
which the trial court retains the authority to impose sentences for some of
those crimes concurrently. See § 13-705(M). It reads as follows:

The sentence imposed on a person by the court
for a dangerous crime against children under
subsection D of this section involving child
molestation or sexual abuse pursuant to
subsection F of this section may be served
concurrently with other sentences if the offense
involved only one victim. The sentence
imposed on a person for any other dangerous
crime against children in the first or second
degree shall be consecutive to any other
sentence imposed on the person at any time,
including child molestation and sexual abuse of
the same victim.

Id.

¶6 Soto contends that the first sentence of this provision gave the
trial court discretion to impose concurrent prison terms as to some or all of
the several counts alleging crimes committed against R.L. He observes that
these counts involved only one victim as required by the statute and that

3
STATE v. SOTO
Opinion of the Court

each of the counts involved either “child molestation or child sexual abuse,”
the other requirement of that provision.

¶7 The state counters that subsection (M) does not provide the
trial court with the authority to impose concurrent sentences among sexual
abuse or child molestation counts committed against the same victim.
Rather, the state interprets the language as allowing child molestation or
sexual abuse counts to be imposed concurrently only as to sentences for
those crimes which are not dangerous crimes against children. In support
of this reading, the state maintains that the second sentence of subsection
(M) limits the scope of the first by clarifying that “any other dangerous
crime[s] against children in the first or second degree” must run
consecutively to any other offense.

¶8 We conclude that Soto’s reading of the statute provides a
reasonable, straightforward interpretation of the text’s plain language. By
contrast, embracing the state’s reading would require us to assume our
legislature chose to express itself indirectly, and obtusely, when more
simple language was readily available to convey its meaning.

¶9 The first sentence of subsection (M) provides that prison
terms for child molestation and sexual abuse may “be served concurrently
with other sentences if the offense involved only one victim.” § 13-705(M).
By its plain terms, this language equips trial courts with discretion to
impose multiple sentences for child molestation and sexual abuse
concurrently with any “other sentences.” In the absence of any
qualification or limitation on that phrase, “other sentences” encompasses
those imposed for all types of underlying crimes—including other child
molestation or sexual abuse offenses. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts, 101 (2012) (general words
“must be given general effect”).

¶10 The pertinent text also demonstrates the legislature’s
willingness to qualify the scope of that exception for child molestation and
sexual abuse offenses. But the language it provided demonstrates it chose
to do so in only one respect: the multiple sentences must apply to a single
victim. See § 13-705(M). As noted, the lone sentence devoted to articulating
the scope of a trial court’s sentencing discretion for child molestation and
sexual abuse offenses contains no language limiting its application when
the “other sentences” were imposed for other child molestation or sexual
abuse offenses. See id.; Bilke v. State, 206 Ariz. 462, ¶ 13 (2003) (unless
legislature demonstrates intent to limit scope of general words by placing

4
STATE v. SOTO
Opinion of the Court

them with a list of similar things, general words must be given their usual
and commonly understood meaning).

¶11 The context of the phrase “other sentences” reinforces our
understanding of the subsection’s meaning. The first sentence of subsection
(M) is crafted to address the sequencing of prison terms as to multiple
counts when at least one of the convictions is for child molestation or sexual
abuse. See § 13-705(M). As a practical matter, the “other sentences” in those
cases would predictably include sentences for other counts of those same
two crimes. Under such circumstances, the legislature would not have
neglected to expressly exempt other child molestation and sexual abuse
crimes from concurrent treatment had it intended to do so.

¶12 The state contends, however, that the second sentence of
subsection (M) provides that very exemption and thereby retracts much of
what the first sentence seemingly bestows. In pertinent part, the second
sentence directs that any sentence imposed “for any other dangerous crime
against children . . . shall be consecutive to any other sentence imposed on
the person at any time.” § 13-705(M) (emphasis added). The state asserts
that the phrase “any other dangerous crime against children” refers not to
other types of dangerous crimes against children—but rather any additional
DCAC counts beyond a lone count. Under this construction, the second
child molestation or sexual abuse count against a single victim would
always constitute “any other” dangerous crime against children and a
consecutive sentence would be required.

¶13 In our view, the phrase “any other dangerous crime against
children” plainly and directly refers to other types of dangerous crimes
against children beyond child molestation or sexual abuse. So read, the
second sentence describes not a limitation on the first—but rather how the
remainder of DCAC offenses should be treated in sequencing a defendant’s
prison term. See § 13-705(Q) (itemizing DCAC offenses).

¶14 Our understanding of the disputed phrase is reinforced by its
context in several respects. First, the two sentences of subsection (M) have
a parallel construction; both address the prison term a court may impose
under the circumstances that follow. In that context, the second sentence’s
phrase “any other dangerous crimes against children” refers to any DCAC
offenses “other” than those mentioned in the first sentence: DCAC offenses
other than child molestation and sexual abuse. Notably, the state’s
interpretation of that language—that it refers to any second or subsequent
DCAC offense—finds no similar footing in the prior sentence.

5
STATE v. SOTO
Opinion of the Court

¶15 Further, the legislature has instructed us that it strives to
provide clarity as to “the sentences authorized upon conviction.” A.R.S.
§ 13-101(2) (purpose of criminal statute to provide “fair warning” of
punishment for offenses); see also Scalia & Garner, supra, at 56
(interpretation that furthers a statute’s purpose preferred over one that does
not). Once the legislature drafted the first sentence of subsection (M), that
purpose would have compelled it to erase any ambiguity when drafting its
second sentence. We therefore assume that, had the legislature intended its
second sentence to shift gears from the first, and refer to “any second or
subsequent dangerous crime against children,” rather than the remainder
of the DCAC offenses, it would have used more precise language—perhaps
that very language—to clarify that intention.

¶16 Applying our interpretation, subsection (M) comprehensively
explains the trial court’s discretion in sequencing prison terms for every
species of dangerous crimes against children. The first sentence addresses
the court’s discretion in sequencing prison terms as to child molestation and
sexual abuse counts involving a single victim. Its second sentence
addresses the required sequence for all other dangerous crimes against
children, including those involving a single victim.

¶17 We recognize that another panel of this court has reached a
different conclusion concerning the meaning of § 13-705(M). See State v.
Brock, 248 Ariz. 583, ¶ 29 (App. 2020). In a divided opinion, the majority in
that case read the language of subsection (M) as the state urges here. The
dissent interpreted that provision consistent with our reasoning.
Id. ¶¶ 46-63 (Johnsen, J., dissenting). Here, for the reasons set forth above,
and because our conclusion is anchored in the plain language of subsection
(M), we respectfully disagree with the Brock majority; and we agree with
the dissenting judge’s analysis. See id.; State v. Patterson, 222 Ariz. 574, ¶ 19
(App. 2009) (prior decision of coordinate court not binding if based on
principles second panel concludes are clearly erroneous). In the absence of
any additional statutory language to guide us, we have no basis to discard
the plain meaning of the text before us based on speculation as to which
balance of severity and proportionality the legislature intended to strike.2

2Further, as stated in the Brock dissent, viewing the legislative history

of the statute is also not helpful, as it is “inconclusive regarding the purpose
of the 1997 amendment.” 248 Ariz. 583, n.9 (quoting State v. Tsinnijinnie,
206 Ariz. 477, n.4 (App. 2003)). The relevant legislative fact sheet states that
the amendment “[c]larifies sentencing language involving sexual child

6
STATE v. SOTO
Opinion of the Court

¶18 The Brock majority anchored its reasoning in part on the
purpose of the statute. Specifically, it contends that our reading of
subsection (M), as articulated in the Brock dissent, is “at war with the
purpose of dangerous crimes against children statutes,” which is to
“severely [punish] those persons who commit such crimes.” 248 Ariz. 583,
¶ 35. But our legislature also instructs that our state’s criminal sentencing
statutes are crafted “[t]o differentiate on reasonable grounds” between
more serious and less serious offenses with the intention “to prescribe
proportionate penalties for each.” § 13-101(4). These concurrent
purposes—severe punishment and proportionality—would both be served
by our interpretation of the statute. And our resolution does not permit
Soto to escape serious punishment. See 2018 Ariz. Sess. Laws, ch. 181, § 1
(providing minimum sentences for child molestation and sexual abuse
respectively, requiring Soto to serve at least twenty years in prison with no
eligibility for earlier release). Neither does it deprive the trial court of
discretion to impose consecutive sentences; the court could still sentence
Soto to an aggregate of seventy-eight years in prison.

¶19 The Brock majority additionally asserts that its “reading of the
statute is consistent with earlier decisions from” Arizona courts. Brock,
248 Ariz. 583, ¶ 30 (discussing State v. Tsinnijinnie, 206 Ariz. 477, ¶¶ 6, 14
(App. 2003), and State v. Jones, 235 Ariz. 501, n.1 (2014)). However, we find
neither case controlling because, as pointed out in the Brock dissent,
“neither case addresses the question presented here.” 248 Ariz. 583, ¶ 60
(Johnsen, J., dissenting). Indeed, in Tsinnijinnie, we considered whether a
nearly identical predecessor to § 13-705(M) gave the trial court discretion to
order the defendant’s sentences for sexual assault and child molestation to
be served concurrently. 206 Ariz. 477, ¶ 6. But, unlike the offenses in
Tsinnijinnie, all of the offenses for which Soto was sentenced are covered by
the first sentence of § 13-705(M)—that is, they “involv[ed] child molestation
or sexual abuse.” And in Jones, our supreme court considered the discrete
issue of whether the consecutive-sentence requirement for specified DCAC
offenses in § 13-705(M) governed over the concurrent-sentence requirement
for multiple convictions resulting from a single act or omission in A.R.S.
§ 13-116. See 235 Ariz. 501, ¶¶ 5, 7.

molestation and sexual abuse of the same victim,” but does not provide any
further information as to the intent of the legislature. S. Fact Sheet for H.B.
2016, 43d Leg., 1st Reg. Sess. (Ariz. Mar. 24, 1997).

7
STATE v. SOTO
Opinion of the Court

¶20 Moreover, to the extent these cases are instructive, the Brock
majority’s interpretation of § 13-705(M) directly conflicts with the
interpretation of the predecessor statute in Tsinnijinnie that was
subsequently cited in Jones. In support of its assertion that a “second
conviction for child molestation is . . . an ‘other dangerous crime against
children’ that requires an imposition of a consecutive sentence,” Brock, 248
Ariz. 583, ¶ 33 (quoting § 13-705(M)), the Brock majority quoted the
following language from Tsinnijinnie:

[w]hen the two sentences of subsection (K) are
considered together, the sentencing discretion
granted to the trial court by the first sentence is
limited by the second sentence. If a defendant
is convicted of child molestation or sexual abuse
along with another offense that is not a
dangerous crime against children, the trial court
has discretion to order that the sentences be
served concurrently if only one victim is
involved. If, however, a defendant is convicted
of any “other” dangerous crime against
children, the sentence for each such offense
must be served consecutively to any other
sentence imposed.

Id. ¶ 30 (quoting Tsinnijinnie, 206 Ariz. 477, ¶ 14).

¶21 Curiously, however, the Brock majority neglected to quote any
material from the prior paragraph in which the Tsinnijinnie court stated that
the “use of the word ‘other’ means that the second sentence will apply to
all sentences for dangerous crimes against children except child molestation
under subsection D and sexual abuse under subsection E.” Tsinnijinnie,
206 Ariz. 477, ¶ 13. Thus, read in context, the phrase “‘other’ dangerous
crime against children” in the last sentence of Tsinnijinnie’s paragraph
fourteen does not refer to any additional DCAC offense, as suggested by
the Brock majority, but to any DCAC offense besides child molestation or
sexual abuse—consistent with what we have determined here. See Brock,
248 Ariz. 583, ¶ 33.

¶22 Notably, the Brock majority maintains that the last clause of
§ 13-705(M) “specifically includes other child molestation and sexual abuse
offenses against the same victim” among those offenses that must be run
consecutively to any other punishment imposed. 248 Ariz. 583, ¶ 40. But,
understood in the context of the first sentence of § 13-705(M), and the first

8
STATE v. SOTO
Opinion of the Court

clause of its second sentence, the last clause addresses only the sequencing
of punishments for DCAC offenses other than child molestation and sexual
abuse. That clause clarifies that, while child molestation and sexual abuse
offenses may be sequenced concurrently with each other if one victim is
involved (the plain meaning of the first sentence), they must still be run
consecutively to the remainder of DCAC offenses (those expressly
addressed by the second sentence). See § 13-705(M); Brock, 248 Ariz. 583,
¶¶ 51-52 (Johnsen, J., dissenting).

¶23 Indeed, Brock’s suggested reading of the statute’s last clause
would nullify the plain meaning of the first sentence altogether—unless one
understands the first sentence as providing that child molestation and
sexual abuse offenses may be run concurrently only with non-DCAC
offenses and only when a defendant has been convicted of only one count
of child molestation or sexual abuse.3 See 248 Ariz. 583, ¶ 40. But the first
sentence of § 13-705(M) contains no language conveying such caveats. To
the contrary, as noted, its text expressly applies the concurrent sequencing
exception broadly to “other sentences.” § 13-705(M). Thus, the language
chosen by the legislature for the last clause only serves to reinforce our
understanding of the statute.

¶24 While this opinion was being prepared, our supreme court
issued State v. Marner, No. CR-24-0300-PR, 2026 WL 249230 (Ariz. Jan. 30,
2026). We have considered Marner and conclude that it does not alter our
analysis. There, our supreme court addressed whether DCAC sentencing
enhancements applied to a conviction for luring a minor for sexual
exploitation when the “minor” victim was fictitious rather than an actual
child. Id. ¶ 1. It held that DCAC sentencing enhancements applied in this
context, relying in part on the “regulatory scheme governing the
consequences for the luring of minors.” Id. ¶ 44. The court emphasized
that, read together, A.R.S. §§ 13-705(S) (part of the DCAC) and 13-3554(B)
(the criminal luring statute) each “independently establish that the luring
of a fictitious minor is not a defense,” revealing a clear legislative objective
to “eliminate the fictitious minor defense.” Id. ¶¶ 37, 44. Here, by contrast,
the statutes governing sexual abuse and child molestation lack provisions
establishing whether sentences imposed for such offenses are to run
concurrently or consecutively. See A.R.S. §§ 13-1404 (sexual abuse), 13-1410

3The construction of such an acutely narrow exception seems like an

unlikely way to begin the lone DCAC subsection that addresses the
sequencing of DCAC punishment.

9
STATE v. SOTO
Opinion of the Court

(child molestation). Thus, unlike in Marner, the relevant regulatory scheme
does not reveal a comparable objective that would justify the state’s
reading.

¶25 Further, unlike Marner, there is no question that Soto is subject
to DCAC sentencing. See Marner, 2026 WL 249230, ¶¶ 29-31. Neither do
we read Marner as establishing a rule that the DCAC always requires
interpretation that leads to the most severe punishment, even at the expense
of plain language principles.4 Finally, we note that the legislature’s 2021
amendment to § 13-705(M), which removed the subsection’s reference to
child molestation, aligns with our interpretation. See 2021 Ariz. Sess. Laws,
ch. 202, § 1; see also Marner, 2026 WL 249230, ¶ 39 (noting that
non-applicable 2025 amendment to § 13-705(T)(1) “reinforce[d]” proposition
that “DCAC enhancements apply even when the minor is fictitious”).
Indeed, the relevant senate fact sheet explained that the amendment
required “specified sentences for child molestation to be served
consecutively rather than concurrently,” indicating that, prior to the
amendment, multiple sentences for child molestation involving one victim
could be served concurrently—consistent with our conclusion here. S. Fact
Sheet for H.B. 2889, 55th Leg., 1st Reg. Sess. (Ariz. Mar. 16, 2021).

¶26 Therefore, we conclude that the trial court possessed the
discretion under subsection (M) to impose sentences for the three counts of
child molestation and two counts of sexual abuse committed against R.L.
either concurrently or consecutively with each other.5 Because the court did
not believe it possessed such discretion at the time of the original
sentencing, we remand for resentencing.6

II. Insufficiency of the Evidence as to Count Five

¶27 Next, Soto contends the trial court erred in convicting him on
count five. Count five alleged that he committed molestation of a child by
intentionally or knowingly engaging in sexual contact with R.L. by rubbing
his genitals against her. Although R.L. testified that such conduct had

4Unlike our concurring colleague, we find it unnecessary to discuss

the rule of lenity in this plain language case.
5As discussed below, we accept the state’s concession in dismissing

a fifth count of child molestation.
6Our disposition should not be construed as indicating any opinion

concerning the outcome of the resentencing.

10
STATE v. SOTO
Opinion of the Court

occurred on a different occasion, she did not testify that it occurred during
the incident underlying this count. Rather, she avowed only that when she
awoke, her basketball shorts, but not her underwear, had been removed.

¶28 We review de novo whether the evidence presented at trial
was sufficient to support the jury’s verdict. State v. Pena, 235 Ariz. 277, ¶ 5
(2014). Evidence is sufficient if “reasonable persons could accept [it] as
sufficient to support a guilty verdict beyond a reasonable doubt.” Id.
(quoting State v. Hausner, 230 Ariz. 60, ¶ 50 (2012)).

¶29 The state properly concedes that the evidence was insufficient
to support a conviction on count five. The sole evidence advanced was the
absence of R.L.’s basketball shorts. Although such evidence would have
entitled the jury to infer that Soto removed them, it does not establish
beyond a reasonable doubt that Soto engaged in the specific sexual contact
alleged in the indictment. On this record, no reasonable person could find
the state had proven that element. See id.

¶30 We therefore accept the state’s concession. Because the
evidence was inadequate to sustain a finding that Soto rubbed his genitalia
on R.L. as alleged in count five, we reverse Soto’s conviction on that count.

Disposition

¶31 We reverse count five and remand the case for resentencing
consistent with this decision.

E C K E R S T R O M, Judge, specially concurring:

¶32 I concur in every respect with my colleagues’ interpretation
of the operative language in § 13-705(M), now amended as § 13-705(P). The
majority articulates the most straightforward understanding of the plain
language of the statute. It also offers the only reading that honors the
broader contextual purpose of the subsection: to lucidly prescribe sentence
sequencing requirements for the full array of dangerous crimes against
children.

¶33 Here, however, we do not write on a clean slate. Rather, we
address and resolve a question of statutory interpretation using
comprehensive reasoning that is squarely at odds with the equally
comprehensive reasoning of another panel of this court. See Brock, 248 Ariz.
583, ¶¶ 27-44. When addressing criminal statutes under that circumstance,

11
STATE v. SOTO
Opinion of the Court

we should consider how authentic textual ambiguity might affect a statute’s
application.7

¶34 In so doing, we must be mindful that any potential defendant
has a statutorily recognized due process interest in fair notice of the
punishment prescribed for any type of criminal conduct. See § 13-101(2)
(purpose of Arizona criminal code is “[t]o give fair warning of the nature of
the conduct proscribed and of the sentences authorized upon conviction”);
see also Vo v. Superior Court, 172 Ariz. 195, 200 (App. 1992) (observing that
fair warning as to the nature of criminal acts is an essential element of due
process). Accordingly, our supreme court has instructed that, when the
meaning of a criminal statute is subject to more than one reasonable
interpretation, after “all the legitimate tools of interpretation have been
applied,” we resolve any ambiguity in favor of the defendant. State v.
Tarango, 185 Ariz. 208, 210 (1996) (rule of lenity applicable when criminal
sentencing statute susceptible to more than one interpretation); Serrato,
259 Ariz. 493, ¶ 33 (rule of lenity pertinent if ambiguity persists after all
interpretative tools applied); see also State v. Sanchez, 209 Ariz. 66, ¶ 6 (App.
2004); Reinesto v. Superior Court, 182 Ariz. 190, 192 (App. 1995).

¶35 In my view, the rationale energizing the rule of lenity
provides an additional compelling reason to reject the state’s
understanding of the statute: we should disfavor an interpretation of a
penal statute that effectively conceals a defendant’s possible punishment
behind a cloud of interpretive obscurity. Scalia & Garner, supra, at 299
(“[W]e believe that when the government means to punish, its commands
must be reasonably clear.”). And when, as here, unbiased appellate judges
themselves can find no consensus—after thoroughly applying all the
pertinent tools of interpretation at their disposal in competing,
comprehensive opinions—how could potential criminal defendants
possibly divine which interpretation correctly describes their potential
punishment?

¶36 Of course, proper application of the rule requires more than
the showing of judicial disagreement as to the meaning of a statute. It must
also be anchored in authentic textual ambiguity. Here, the correct meaning
of the statute effectively depends on how we understand the phrase “any

7The due process and notice concerns underlying the rule of lenity

necessarily become prominent for future jurists who must choose between
the two understandings of § 13-705(M) when either imposing a sentence or
resolving an appellate claim surrounding the propriety of a sentence.

12
STATE v. SOTO
Opinion of the Court

other dangerous crime against children” in the second sentence of
§ 13-705(M). The state contends that this language refers to any second or
subsequent dangerous crime against children. See Brock, 248 Ariz. 583, ¶ 33.
We understand the words “any other” to refer to all the other dangerous
crimes against children apart from those mentioned in the first sentence. See
Brock, 248 Ariz. 583, ¶ 48 (Johnsen, J., dissenting) (observing that the phrase
“any other” in the second sentence refers to dangerous crimes against
children other than child molestation and sexual abuse, the predicates
mentioned in the first sentence). Read in isolation, the phrase could
semantically carry either meaning and, to that extent, would be properly
characterized as insolubly ambiguous.

¶37 Our courts, however, do not read statutory phrases in
isolation. For the reasons set forth in the majority opinion, we maintain that
the context of that phrase can support only one correct understanding of it.
But, even if one finds our reasoning as to the broader context of the statute
unpersuasive—or if one concludes that the state’s competing reasoning is
as plausible as our own—our controlling jurisprudence instructs our courts
to resolve the resulting ambiguity in favor of the defendant. See Serrato,
259 Ariz. 493, ¶ 33; Tarango, 185 Ariz. at 210; Sanchez, 209 Ariz. 66, ¶ 6;
Reinesto, 182 Ariz. at 192; Vo, 172 Ariz. at 200.

¶38 That jurisprudence conforms to respected scholarly
perspectives on the rule of lenity. In their highly regarded treatise on the
interpretation of legal texts, Justice Scalia and Bryan Garner chronicle the
longstanding origins of the rule, explaining that it “antedates both state and
federal constitutions” and is based on the premise that “a just legislature
will not decree punishment without making clear what . . . the extent of the
punishment will be.” Scalia & Garner, supra, at 296-97 (rule of lenity “is
founded on the tenderness of the law for the rights of individuals” (quoting
United States v. Wiltberger, 18 U.S. 76, 95 (1820))). In practice, Scalia and
Garner endorse application of the rule when “after all the legitimate tools
of interpretation have been applied, ‘a reasonable doubt persists’” about the
meaning of a criminal statute. Id. at 299-301. They advocate for the
continuing vitality of the rule and opine that it may be “underused in
modern judicial decision-making.” Id.

¶39 Whether overused or underused, I submit that, in this case,
the rule of lenity would be the appropriate interpretive tool for any Arizona
jurist, tasked with applying former § 13-705(M), that does not share our
confidence it is subject to only one reasonable interpretation.

13