State v. Moninger

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

KEVIN HARRY MONINGER, Appellant.

No. 1 CA-CR 24-0523
FILED 05-29-2026

Appeal from the Superior Court in Mohave County
No. S8015CR201801598
The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

Harris & Winger, P.C., Flagstaff
By Chad Joshua Harris
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Casey D. Ball
Counsel for Appellee
STATE v. MONINGER
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Veronika Fabian and Chief Judge Randall M. Howe joined.

B R O W N, Judge:

¶1 Kevin Moninger appeals from his sentence imposed on his
conviction for luring a minor. He challenges the superior court’s
designation of his conviction as a dangerous crime against children
(“DCAC”) because the purported minor involved was a police officer
impersonating a minor. Because our supreme court recently held that the
luring statute, A.R.S. § 13-3554, does not “require an actual minor victim”
to support a DCAC sentencing enhancement, we affirm. See State v. Marner
(Marner II), ___ Ariz. ___, ___, ¶¶ 46–47, 583 P.3d 53, 63 (2026).

BACKGROUND

¶2 Moninger posted two classified ads on a website used to
facilitate sexual encounters. State v. Moninger (Moninger II), 258 Ariz. 18, 20,
¶ 3 (2024). He received a response from an undercover officer posing as a
13-year-old girl named “Sabrina.” Id. Moninger and Sabrina exchanged
emails for a few days and then began a texting conversation. Id. at ¶ 4. Over
the course of three days, they exchanged many text messages. Id. at 20–21,
¶ 5. Moninger told Sabrina he wanted to meet her, and he made comments
that could be understood as wanting to engage in sexual conduct with her.
Id. at 20, ¶ 4. Sabrina agreed to meet Moninger. Id. at ¶ 5.

¶3 When Moninger drove to the arranged meeting spot, police
officers arrested him. Id. at 21, ¶ 6. Under A.R.S. § 13-3554, the State
charged him with three counts of luring a minor under the age of 15 for
sexual exploitation. Id. The State also charged Moninger with one count of
attempted sexual conduct with a minor, in violation of A.R.S. §§ 13-1001
and -1405. Id.

¶4 A jury found Moninger guilty of all charges. Id. at ¶ 7. The
superior court sentenced him to consecutive prison terms as follows: count
1 (luring), 7 years; count 2 (luring), 7.5 years; count 3 (luring), 7.5 years; and
count 4 (attempted sexual conduct with a minor), 9 years. The superior
court designated all four offenses as DCAC under A.R.S. § 13-705.

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STATE v. MONINGER
Decision of the Court

¶5 Moninger appealed, and this court vacated two of his three
luring convictions, concluding that the text messages did not comprise
three “separate, distinct courses of conduct.” State v. Moninger (Moninger
I), 251 Ariz. 487, 499, ¶ 45 (App. 2021), vacated, 258 Ariz. 18 (2024). This
court also remanded for resentencing, noting the superior court could
consider whether Moninger’s conviction for luring was probation eligible.
Id. at 503, ¶¶ 60–61.

¶6 The supreme court affirmed this court’s decision vacating two
luring convictions but vacated Moninger’s sentence for the remaining
luring conviction, concluding it was “a first-degree DCAC offense” which
is “explicitly ineligible for probation” under A.R.S. § 13-705(H). Moninger
II, 258 Ariz. at 25–26, ¶¶ 35, 39–40.

¶7 On remand, the superior court sentenced Moninger to seven
years’ imprisonment on the luring conviction, affirmed his sentence for
attempted sexual conduct with a minor, and ordered the sentences to run
consecutively. Moninger timely appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶8 The sole issue on appeal is whether the DCAC sentencing
enhancement was permissible given the absence of an actual minor victim.
Relying on State v. Marner (Marner I), 258 Ariz. 512 (App. 2024), Moninger
argues that the DCAC sentencing enhancement requires an actual minor
victim under the age of 15. See id. at 516, ¶ 12 (holding that A.R.S. § 13-705’s
sentencing enhancement for DCAC is not implicated by § 13-3554(C)
without an actual minor victim).

¶9 After Moninger filed his opening brief and the State filed its
answering brief, the supreme court issued its opinion vacating Marner I.
Marner II, 583 P.3d at 63, ¶ 47. The court held that the legislature
criminalized luring “conduct at the solicitation stage” to protect “children
as a class,” not “a particular child.” Id. at ¶ 46. “[N]either § 13-3554 nor
§ 13-705 require an actual minor victim for the deployment of DCAC
sentencing enhancement.” Id. at ¶ 47. Moninger then filed a notice in this
court acknowledging the reversal of Marner I and alerting us that although
he does not concede any issues raised in the opening brief, no reply brief
would be filed. Because Marner II resolves the issue Moninger has raised
in this appeal, he has shown no error.

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STATE v. MONINGER
Decision of the Court

CONCLUSION

¶10 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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