
    895 P.2d 522
    STATE of Arizona, Appellee, v. Douglas L. GATES, Appellant.
    No. CR-94-0405-PR.
    Supreme Court of Arizona.
    May 8, 1995.
    Grant Woods, Atty. Gen., by Paul J. McMurdie, Jack Roberts, Phoenix, for appellee.
    Dean W. Trebesch, Maricopa County Public Defender by Stephen R. Collins, for appellant.
    James P. Mueller, Phoenix.
    Len L. Munsil, Phoenix.
    Steven J. Twist, Phoenix.
   ORDER

This case came before the Court on the State’s Petition for Review. After due consideration,

IT IS ORDERED that the Petition for Review is denied.

Justice Martone voted to grant the Petition for Review and requested on this occasion that his reasons for so doing be set forth. His dissenting statement follows.

In this as in other cases in which review is denied, the Court does not set forth its reasons for denial because it cannot do so without either effectively deciding a case that is not before it or endorsing and thereby approving the Court of Appeals’ opinion even though it has not reviewed the entire record.

/s/ Stanley G. Feldman

STANLEY G. FELDMAN Chief Justice

MARTONE, Justice,

dissenting.

I vote to grant review in this case. I believe that an important question of law has been incorrectly decided within the meaning of Rule 31.19(c)(4), Ariz.R.Crim.P. A person commits sexual exploitation of a minor when that person knowingly videotapes minors engaged in “sexual conduct.” A.R.S. § 13-3553(A)(1). “Sexual conduct” includes the “[l]ewd exhibition of the genitals, pubic or rectal areas of any person.” A.R.S. § 13-3551(2)(f). The videotaping of the naked children in this case lewdly exhibits their genitals, pubic or rectal areas. The court of appeals focuses on the conduct of the children rather than the conduct of the defendant. But the statute does not criminalize the conduct of the children. It criminalizes the conduct of the defendant. Thus it is what the defendant does by filming the children, rather than what the children do on the film, that matters. Said another way, it is not the children who are being lewd, but the defendant.

As the state notes, the federal courts, in construing the analogous federal sexual exploitation of children statute, have reached a conclusion exactly opposite of that reached by the court of appeals here. I would grant review and schedule this case for oral argument.  