FACTS AND PROCEDURAL BACKGROUND
On appeal from a guilty verdict, we view the facts in the light most favorable to sustaining that verdict. State v. Zmich, 160 Ariz. 108, 109, 770 P.2d 776, 777 (1989).
Approximately one week after they met, defendant moved in with his girlfriend, V., and her three children. At that time, V.’s daughters, J. and C., were 12 and 9 years old respectively, and V.’s son was 5. V. worked full time. Defendant did not work steadily and began taking control of the house and children. Soon thereafter, defendant began demanding sexual favors from V.’s daughters in exchange for his permission to do something the girls wanted to do.
Over the years, defendant threatened the girls to keep them silent about the molestations. On one occasion, defendant .threatened to slit J.’s throat if she told her natural father what had been going on. On another occasion, defendant hit J. in the face, giving her a black eye, after J. told him she was going to tell that he had been molesting them. C. finally reported the abuse to a church counselor, who notified Child Protective Services.
Defendant was indicted on June 3,1991 on three counts of child molestation, class 2 felonies and dangerous crimes against children in the first degree (counts I, II, and IV), and three counts of sexual conduct with a minor, also class 2 felonies and dangerous crimes against children in the first degree (counts III, V, and VI). Defendant subsequently moved to dismiss counts II-VI, arguing that those counts were duplicitous and vague; the trial court denied the motion.
Defendant’s trial commenced on December 11 and concluded on December 18, 1991. The jury found defendant guilty as charged on counts I, II, TV, V, and VI, and not guilty on count III.
On January 24, 1992, after weighing the aggravating and mitigating factors, see A.R.S. § 13-702(C), the trial court sentenced defendant to aggravated terms of 20 years on counts I, II, and IV, and 25 years on count V and VI. Defendant was given 286 days of presentence incarceration credit on count I. The court ordered the sentences imposed to run consecutively, and further ordered defendant to pay $500 in felony assessments and an $8 time payment fee.1 Defendant timely appealed.
DISCUSSION
Counts I, II, and IV
Although put forth by defendant as one argument, defendant actually raises two arguments with regard to the child molestation counts. We address each in turn.
A. Judgment of Conviction
Counts I and II alleged that defendant had committed the crimes of child molestation against J. between October 1, 1986 and May 31, 1987; count IV alleged that defendant had committed the crime of child molestation against C. between June 15,1990 and July 15,1990. At the times the offenses were alleged to have occurred, both J. and C. were more than 14 but not yet 15 years old. These three counts were charged under A.R.S. § 13-1410 which, prior to September 1990, provided:
A person who knowingly molests a child under the age of fifteen years by directly or indirectly touching the private parts of such child or who causes a child under the age of fifteen years to directly or indirectly touch the private parts of such person is guilty of a class 2 felony and is punishable pursuant to § 13-604.01.
(Emphasis added.) In September 1990, the legislature amended § 13-1410 to read “under the age of fourteen years.” Laws 1990, ch. 384, § 4 (emphasis added). Defendant was indicted in June 1991, after the effective date of the amendment.
Defendant argues that his sentences on count I, II, and IV constitute cruel and unusual punishment because the conduct constituting the offenses charged in those counts— molestation of a child older than 14 years of age—was “no longer criminal” at the time of these proceedings. However, rather than at
1
But see discussion, infra.