Opinion
No. 1 CA-CR 14-0298
06-09-2015
STATE OF ARIZONA, Appellee, v. MICHAEL EUGENE BROOKS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Terry M. Crist Counsel for Appellee Neal Bassett, Phoenix Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2011-007753-001
The Honorable Robert E. Miles, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Terry M. Crist
Counsel for Appellee
Neal Bassett, Phoenix
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Andrew W. Gould and Judge Peter B. Swann joined. HOWE, Presiding Judge:
¶1 Michael Brooks appeals his convictions and sentences for ten counts of sexual exploitation of a minor. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 One day, a Phoenix Police Department detective ("the case agent") connected to BearShare, a peer-to-peer sharing network, and entered a search term commonly associated with child pornography. The agent was presented with a list of files that had the search term in their titles. He limited his jurisdiction to Phoenix, which narrowed the files to ones located on only one computer. The agent viewed the contents of that computer's shared folder and discovered files with titles related either to adult pornography or child pornography.
¶3 The case agent downloaded some of the shared folder's videos and compared those videos' metadata with the police's library of known metadata associated with child pornography. After learning that some of the videos were child pornography, the agent subpoenaed the computer's internet service provider for the computer's location. The agent received the subscriber's name, Michael Brooks, and his address. The agent confirmed Brooks' identity by checking with Arizona Motor Vehicle records and the United States postal service.
¶4 After receiving a search warrant for the address, the case agent and his unit executed it. The police arrived at Brooks' home while he was at work, but his wife and daughter were home. The police contacted Brooks and when he arrived, Brooks agreed to an interview with the case agent.
¶5 Before telling Brooks why the police was at his house, Brooks asked the case agent if he was there for the files that Brooks had been downloading on BearShare. Brooks explained that he downloaded a lot of files from BearShare and as a result had a lot of different types of files on his computer. When asked whether he had child pornography on his computer, Brooks responded that there probably was, with somewhere between 200 and 500 images. But Brooks also stated that if he found child pornography on his computer, he would delete it. Brooks also repeatedly explained that he used sharing programs to download music, but the agent did not find any music file in the shared folder.
¶6 A forensic examiner inspected Brooks' computer and determined that of the computer's four user accounts, only Brooks' was set to private, which meant that other users could not access his files. The examiner inspected the computer's BearShare and noted that its top seven favorite search terms were all commonly associated with child pornography. The examiner found 1,198 link files on the computer that connected to files on an external hard drive that had titles with terms commonly associated with child pornography. On the external drive, the examiner found 255 video files associated with child pornography. All the videos listed Brooks' user account as their owner.
¶7 A computer forensic officer examined the videos, including the ten videos that the State was intending to use as the bases for its charges, and concluded that the people and events in the videos were real. A pediatrician also examined the ten videos and confirmed that all the children were prepubescent. The State charged Brooks with ten counts of sexual exploitation of a minor.
¶8 For trial, the case agent prepared a CD containing the ten charged videos. During trial and for each count, the agent read from his investigative report the video's file name, its duration, and summarized the video's contents. The State correspondingly played for the jurors a representative clip of each video. The State later offered the CD into evidence, Brooks did not object, and the trial court admitted it.
¶9 The jurors found Brooks guilty on all ten counts. During the sentencing hearing, the trial court found that mitigating circumstances justified sentences less than the presumptive term. The court thus sentenced Brooks to consecutive 12 years of imprisonment, totally 120 years of incarceration, with 91 days of presentence incarceration credit. Brooks timely appealed.
DISCUSSION
1. The CD with the Ten Charged Videos
¶10 Brooks argues that the trial court erred by admitting the CD with the ten charged videos into evidence without first viewing the entire videos itself and without first playing the entire videos to the jurors. Because Brooks failed to object during trial, we will review for fundamental error. See State v. Henderson, 210 Ariz. 561, 565 ¶ 19, 115 P.3d 601, 605 (2005). To prevail under this standard, Brooks "must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. at ¶ 20. Thus, we must first find that the court committed error. State v. Solis, 236 Ariz. 242, 247 ¶ 16, 338 P.3d 982, 987 (App. 2014).
Brooks argues that our review should be for structural error, but admission of evidence is trial error, not structural error. See Arizona v. Fulminante, 499 U.S. 279, 306-07 (1991), for a list of trial errors, including evidentiary errors, and for comparison, see State v. Ring, 204 Ariz. 534, 552-53 ¶¶ 45-46, 65 P.3d 915, 933-34 (2003), for a list of structural errors.
¶11 Here, the trial court committed no error because it properly admitted the CD containing the ten charged videos. Evidence is relevant if it has any tendency to make any fact of consequence more or less probable. Ariz. R. Evid. 401. "In determining relevancy and admissibility of evidence, the trial judge has considerable discretion." State v. Smith, 136 Ariz. 273, 276, 665 P.2d 995, 998 (1983). Here, all the videos are relevant because they have a tendency to prove a material fact at issue. That is, the videos are probative with respect to whether Brooks knowingly possessed "any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." A.R.S. § 13-3553. Moreover, the case agent testified that he created the CD with the ten charged videos for trial use, and during trial, he testified to each video's title, duration, and content—and after which the State played a representative clip of each video. Accordingly, because the trial court properly admitted the CD, the court acted within its discretion in giving the CD to the jurors for use during deliberations. See Ariz. R. Crim. P. 22.2(d) (providing that the jurors shall take with them for deliberation "[s]uch tangible evidence as the court in its discretion shall direct"); State v. Snowden, 138 Ariz. 402, 404, 675 P.2d 289, 291 (App. 1983) ("Whether tangible evidence should be given to the jury for use during deliberations is a matter left to the discretion of the trial court.").
¶12 Brooks nonetheless maintains that the trial court erred because its ruling was contrary to United States v. Noushfar, 78 F.3d 1442 (9th Cir. 1996), in which the United States Court of Appeals for the Ninth Circuit held that the district court committed structural error by allowing jurors to take into the jury room 14 audiotapes that had never been presented in open court and over the defendants' objections, without instructions regarding the tapes, and without the judge's supervision when played. But Brooks' reliance on Noushfar is misplaced. The circuit court's holding was based on the Confrontation Clause and the principle that "a defendant's conviction may be based only on evidence present during trial." Noushfar, 78 F.3d at 1445. Unlike in Noushfar, the trial court here admitted the CD with the ten charged videos after it heard the case agent testified to each video's title, duration, and contents and after it viewed a representative portion of each video. Thus, unlike in Noushfar, the court's action was not "akin to allowing a new witness to testify privately." Id. In any event, decisions of the Ninth Circuit, although persuasive, are not binding on Arizona courts. State v. Mitchell, 234 Ariz. 410, 418 ¶ 29, 323 P.3d 69, 77 (App. 2014).
¶13 Brooks further counters that Article 2, Section 11 of the Arizona Constitution requires an open trial, that is, a trial where the evidence against a defendant is presented in court before the defendant and trial court. But Brooks' reliance on the Arizona Constitution is also misplaced. The "open courts provision essentially commands public judicial proceedings," State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248 (1994), and refers to the public's right to freely discuss and print about proceedings held in open court without foreclosure by the defendant, Phoenix Newspapers Inc. v. Jennings, 107 Ariz. 557, 559, 490 P.2d 563, 565 (1971), not to the situation Brooks advocates for. Regardless, the State in fact did present the ten charged videos in court with Brooks, the jurors, and the trial court present. Consequently, because the CD with the ten charged videos was properly admitted into evidence, the trial court did not abuse its discretion by giving the CD to jurors for use during deliberations. Brooks therefore has not established error necessary for reversal.
2. The Sentences as Cruel and Unusual Punishment
¶14 Brooks urges this Court to hold that State v. Berger, 212 Ariz. 473, 134 P.3d 378 (2006), which held that Arizona's sentencing guidelines for possession of child pornography was not so grossly disproportionate as to constitute cruel and unusual punishment, was erroneously decided. But we are bound by supreme court precedent. State v. Newnon, 208 Ariz. 507, 508 ¶ 8, 95 P.3d 950, 951 (App. 2004) (providing that the court of appeals has "no authority to overrule or disregard decisions of our supreme court").
CONCLUSION
¶15 For the foregoing reasons, we affirm.