Opinion
No. 1 CA-CR 10-0378
03-22-2012
STATE OF ARIZONA, Appellee, v. KNUTE ECKARD KOLMANN, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Craig W. Soland, Assistant Attorney General Attorneys for Appellee DeRienzo & Williams, P.L.L.C. By Craig Williams Attorney for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Yavapai County
Cause No. P1300CR20061557
The Honorable Thomas B. Lindberg, Judge (Deceased)
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Craig W. Soland, Assistant Attorney General
Attorneys for Appellee
Phoenix
DeRienzo & Williams, P.L.L.C.
By Craig Williams
Attorney for Appellant
Prescott
Valley
GEMMILL, Judge
¶1 Knute Eckard Kolmann was convicted by a jury on ten counts of sexual exploitation of a minor, each a class 2 felony and dangerous crime against children, and one count of conspiracy to commit sexual exploitation of a minor, a class 2 felony. The convictions were based on pictures of children under the age of fifteen engaging in sexual acts, found by the police in Kolmann's bedroom, and an agreement by him to meet with another person to view similar material. The trial court sentenced Kolmann to consecutive prison terms totaling 155 years.
¶2 On appeal, Kolmann raises claims of prosecutorial misconduct, prejudice to his defense preparation, insufficient evidence, and sentencing error. For reasons that follow, we affirm. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-4033(A)(1) (2010).
DISCUSSION
A. Prosecutorial Misconduct
¶3 Kolmann argues that he was deprived of a fair trial as a result of various acts of prosecutorial misconduct. We will not reverse for prosecutorial misconduct unless "(1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying the defendant a fair trial." State v. Martinez, 218 Ariz. 421, 426, ¶ 15, 189 P.3d 348, 353 (2008). "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
¶4 One of the claims of prosecutorial misconduct involves the prosecutor's questioning of Dr. Quinn, who was called by the State to establish the ages of the children depicted in the pictures on which the charges of sexual exploitation of a minor were based and explain how she knows they are real children. After the doctor identified a child in one of the pictures as a child she had seen in a "videotape in other cases," the following questioning occurred:
Q. Do you remember anything about that video?When defense counsel objected to the prosecutor asking whether the crying in the video was "cries of ecstasy," the trial court sustained the objection and ordered both the question and answer stricken.
A. Yes. It was one of the few videos that I was actually able to hear the sound of the child, and the child was crying in the video.
Q. What type of crying?
A. Well, she was crying, no, daddy, no, and just painful, pitiful crying.
Q. Not cries of ecstasy?
A. No.
¶5 Kolmann argues that there was no possible relevance for asking about possible "cries of ecstasy" and that the entire line of questioning was intentionally directed at inflaming the jury. With respect to the question to which the objection was raised, the trial court immediately sustained the objection and had the question and answer stricken. The jurors were directed by the trial court in both the preliminary and final jury instructions that they were not to consider any statements that were stricken. Our supreme court has repeatedly stated that we will presume that jurors follow their instructions. See, e.g., State v. Kuhs, 223 Ariz. 376, 387, ¶ 55, 224 P.3d 192, 203 (2010); State v. Velazquez, 216 Ariz. 300, 312, ¶ 50, 166 P.3d 91, 103 (2007); State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). Kolmann has failed to establish any reversible prejudice from this question and answer.
¶6 Because Kolmann did not object to any other portion of Dr. Quinn's testimony, he has forfeited any right to obtain appellate relief based on it, except for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). There was no fundamental error in the doctor's testimony regarding the video or in the prosecutor referring to that testimony during closing argument. The State was required to prove that the children depicted in the pictures were actual persons, State v. Hazlett , 205 Ariz. 523, 526-27, ¶¶ 7-12, 73 P.3d 1258, 1261-62 (App. 2003), and the doctor's testimony about having seen and heard the child crying in the video was relevant in that it bolstered her testimony that the child depicted in the charged picture was real and not a computer generated image. See Ariz. R. Evid. 401 (defining relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
Arizona Rule of Evidence 401 was amended effective January 1, 2012. We cite the rule in effect at the time the offense was committed.
¶7 We further reject Kolmann's claim that the prosecutor engaged in misconduct by improperly commenting on DNA evidence. Kolmann contends the prosecutor mischaracterized the evidence in both his opening statement and closing argument by telling the jury that DNA found on one of the charged pictures was from Kolmann or one of the males in his family. The prosecutor's statements were consistent with both the DNA test report admitted into evidence and the testimony by the analyst that the DNA matched Kolmann at twelve of sixteen loci, but that because the test results at the other four loci were below threshold, the testing could not exclude Kolmann or his paternally-related male relatives as possible contributors. Hence, there was no misstatement of the evidence by the prosecutor when he told the jury that "you will not hear that [the DNA] is positively identified as the defendant," but it is "certainly indicative of the defendant or one of his male relatives."
¶8 Kolmann also maintains that the prosecutor improperly commented on his right to remain silent during the following portion of his closing argument:
When we talk about the evolution of dating and doing things, getting that level of trust in this email relationship. Let's talk, let's do stories, let's do things later on. There is also an evolution of an investigation by trained investigators. You start out slow. You get little bits and pieces, a nibble here and a nibble there. Get what you can get while you can before people clam up and don't want to talk and say they don't know.Kolmann argues that the trial court should have granted his motion for mistrial based on the prosecutor's reference to the detective getting what he could "before people clam up." The trial court denied the motion on the ground that the jury was not likely to have perceived it as a comment on Kolmann's right to remain silent.
That is precisely what Detective [C] did. Starting with e-mails, the basic, hey, what were you sending with the stories? What are you sending with the links? Is there any doubt about the context of that conversation? Are they talking about exchanging recipes? "Peaked (sic) my curiosity." Not I need gluten free recipes, or I need to know how to fix French sports cars or something else. They are talking about child pornography.
¶9 A prosecutor "may not comment on a defendant's post-arrest, post-Miranda warnings silence as evidence of guilt." State v. Ramirez, 178 Ariz. 116, 125, 871 P.2d 237, 246 (1994); see also State v. Bowie, 119 Ariz. 336, 341, 580 P.2d 1190, 1195 (1978) ("Generally, it is error for the prosecutor to draw a derogatory inference from the fact that the accused declined to speak to police upon his arrest."). Our supreme court has set forth the following criteria for determining if there has been an improper comment on the right to remain silent:
To determine whether a particular argument is improper, the statements must be examined in context to determine whether the jury would naturally and necessarily perceive them to be a comment on the [right to remain silent]. Further, to be constitutionally improper, the comment must (1) be adverse, in that it supports an unfavorable inference against the defendant, and (2) operate as a penalty for defendant's exercise of his constitutional right.State v. Schrock, 149 Ariz. 433, 438-39, 719 P.2d 1049, 1054-55 (1986) (citations omitted).
¶10 We review a trial court's ruling on a motion for mistrial for abuse of discretion. State v. Bailey, 160 Ariz. 277, 279, 772 P.2d 1130, 1132 (1989). The trial court has broad discretion in ruling on the motion "because the trial judge is in the best position 'to sense . . . the possible effect . . . [the objectionable statement] had on the jury and the trial.'" Id. (quoting State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983)). "A declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983).
¶11 It is questionable whether the prosecutor's argument constituted an improper comment on Kolmann's right to remain silent. The comment was general in nature with no specific reference to Kolmann, and the balance of the prosecutor's remarks were directed at showing how the e-mail should be viewed as addressing child pornography, not that Kolmann should be considered guilty because he decided against speaking with the detective. See State v. Blackman, 201 Ariz. 527, 544, ¶ 74, 38 P.3d 1192, 1209 (App. 2002) ("To be impermissible, the comments 'must be calculated to direct the jurors' attention to the defendant's exercise of his fifth amendment privilege.'") (quoting State v. McCutcheon, 159 Ariz. 44, 45, 764 P.2d 1103, 1104 (1988)). In any event, considering the context of the comment, the trial court could reasonably find that "the jury would not naturally and necessarily perceive the prosecutor's remark as a comment" on Kolmann's right to remain silent. State v. Rutledge, 205 Ariz. 7, 14, ¶ 38, 66 P.3d 50, 57 (2003). There was no abuse of discretion in the denial of the motion for mistrial.
¶12 Kolmann additionally argues that we should consider the cumulative effect of all of the prosecutor's conduct in determining if there was reversible error. Arizona recognizes the cumulative error doctrine with respect to claims of prosecutorial misconduct. Hughes, 193 Ariz. at 78-79, 11 25-26, 969 P.2d at 1190-91. We conclude that, even if the allegations of misconduct are considered cumulatively, Kolmann has not shown that he was denied a fair trial. Accordingly, we conclude that Kolmann is not entitled to have his convictions reversed based on his claims of prosecutorial misconduct.
B. Prejudice to Defense Preparation
¶13 Kolmann argues that his right to prepare a defense was prejudiced by the State's untimely disclosure that one of his fingerprints was found on an uncharged picture located in the same box as the charged pictures and the trial court's failure to preclude this evidence pursuant to Arizona Rule of Criminal Procedure 15.7. We review a trial court's ruling on disclosure disputes for abuse of discretion. State v. Tucker, 157 Ariz. 433, 439, 759 P.2d 579, 585 (1988).
¶14 Prior to trial, the State had timely disclosed that Kolmann's fingerprints had been found on other documents in the box where the charged pictures were located. On the second day of trial, defense counsel learned from a State's fingerprint witness that one document on which Kolmann's fingerprints was found was an uncharged picture of child pornography. Defense counsel informed the trial court that he had no objection to proceeding with trial in accordance with the understanding he had been operating under for several months that Kolmann's fingerprints had been found on other documents in the box where the charged pictures had been located, but that he objected "to admitting that specific document, an uncharged child pornography image, that I was not aware of, and allowing the jury to make a connection or comparison between an uncharged image and the ten in evidence." The trial court ruled that the State could present the evidence regarding fingerprints that had been timely disclosed, but that the State would not be allowed to introduce the specific items on which the fingerprints were located. Thus, contrary to Kolmann's contention, he suffered no prejudice from the claimed untimely disclosure given that the trial court ruled in his favor and limited the introduction of the evidence to which he objected.
¶15 Kolmann also argues that his defense preparation was prejudiced by the trial court's failure to timely rule on a motion in limine he submitted prior to trial. The motion sought to preclude the admission of a series of sexually explicit emails between Kolmann and Elizabeth McClain, a resident of Mesa, Arizona, that had been recovered by the police in a search of McClain's laptop computer. Kolmann contends the trial court erred by not ruling on the admissibility of the e-mails prior to trial and instead making a final decision on their admissibility when they were offered into evidence at trial. We review a trial court's rulings on the admissibility of evidence for abuse of discretion. State v. Davolt, 207 Ariz. 191, 208, ¶ 60, 84 P.3d 456, 473 (2004). Because Kolmann failed to raise this issue below, our review is limited to fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607.
¶16 We conclude that there was no abuse of discretion by the trial court in its handling of the admission of the evidence in question. The trial court indicated in its initial discussion of the motion with counsel at the beginning of trial that the e-mails authored by Kolmann would be admissible but that it was holding off on deciding whether McClain's e-mails would be admitted. The trial court's inability to render a ruling on the admissibility on McClain's e-mails was due to McClain's unavailability because she was in prison after pleading guilty to similar charges and it was necessary to appoint counsel and grant her immunity to obtain her testimony. Kolmann agreed to continue the hearing on his motion and proceed with the trial until McClain was available to testify. Ultimately, the only e-mails offered and admitted into evidence were those sent by Kolmann, and no claim is made by Kolmann that there was any error in their admission. We are not persuaded that a ruling by the trial court on Kolmann's motion in limine at the beginning of trial would have resulted in any different outcome regarding the admission of the e-mails or that Kolmann was unfairly prejudiced by the trial court making its final ruling on their admissibility during rather than prior to trial.
C. Insufficient Evidence
¶17 Kolmann argues that there was insufficient evidence for his conviction for conspiracy to commit sexual exploitation of a minor. Arizona Rule of Criminal Procedure 20(A) requires that a trial court enter a judgment of acquittal on a charge "if there is no substantial evidence to warrant a conviction." "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). We review a claim of insufficient evidence de novo, viewing the evidence in a light most favorable to upholding the verdicts. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993).
¶18 The offense of conspiracy is defined, in pertinent part, as follows:
A person commits conspiracy if, with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conductA.R.S. § 13-1003(A) (2010). Kolmann disputes the sufficiency of the evidence to permit the jury to find that he agreed to commit the offense of sexual exploitation of a minor and asserts that there was no evidence of an overt act committed in furtherance of the conspiracy.
constituting the offense and one of the parties commits an overt act in furtherance of the offense, except that an overt act shall not be required if the object of the conspiracy was to commit any felony upon the person of another, or to commit an offense under § 13-1508 or 13-1704.
Unless otherwise specified, we cite the current versions of statutes when no material revisions have been enacted since the alleged offenses.
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¶19 The primary focus of the crime of conspiracy is the unlawful agreement itself and the threat to society that such collusion represents. State v. Denman, 186 Ariz. 390, 392, 923 P.2d 856, 858 (App. 1996). The purpose for requiring an overt act is to show that some step has been taken toward executing the agreement. State v. Gessler, 142 Ariz. 379, 383, 690 P.2d 98, 102 (App. 1984). The act need not itself be criminal. State v. Dupuy, 116 Ariz. 151, 154, 568 P.2d 1049, 1052 (1977). "The overt act may be merely a part of preliminary arrangements for commission of the ultimate crime." State v. Celaya, 27 Ariz. App. 564, 569, 556 P.2d 1167, 1172 (1976). "Any action sufficient to corroborate the existence of an agreement to commit the unlawful act and to show that it is being put into effect supports a conspiracy conviction." State v. Arredondo, 155 Ariz. 314, 316-17, 746 P.2d 484, 486-87 (1987).
¶20 The evidence is uncontested that Kolmann and McClain agreed to meet and commit the offense of sexual exploitation of a minor by exchanging child pornography. When McClain informed Kolmann that she would be in the Prescott area on business in the near future, Kolmann sent her an e-mail providing his home telephone number so she could call when she was in town. This act by Kolmann in preparation of the meeting is sufficient to support a finding by the jury of an overt act committed "in furtherance of the [conspiracy]." A.R.S. § 13-1003(A). The fact the meeting never occurred because McClain was arrested before she made the trip to Prescott does not negate the offense. See State v. Saez, 173 Ariz. 624, 628, 845 P.2d 1119, 1123 (App. 1992) ("That an offense remains inchoate or that an attempted offense is not completed does not preclude a conviction for conspiracy."). The evidence was sufficient to support a conclusion that Kolmann agreed to commit the offense of sexual exploitation of a minor.
D. Sentencing Error
¶21 Kolmann contends the trial court erred by ordering that the five-year prison term imposed on his conviction for conspiracy be served consecutively to his ten other sentences, arguing that there was insufficient evidence to prove the offense and, in the alternative, that if the evidence was sufficient, the rule of lenity dictated that the trial court exercise its discretion in his favor and impose a concurrent sentence.
¶22 As discussed above, there was sufficient evidence to support the conspiracy conviction. With respect to Kolmann's alternative argument, the trial court correctly ruled that the sentence on the conspiracy conviction had to be consecutive because the convictions for sexual exploitation of a minor were all dangerous crimes against children. See A.R.S. § 13-705(M) (2010) (requiring that sentences for dangerous crimes against children be consecutive to any other sentence).
CONCLUSION
¶23 We have considered each of Kolmann's arguments on appeal and find no reversible error. We therefore affirm his convictions and sentences.
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JOHN C. GEMMILL, Judge
CONCURRING:
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PATRICIA K. NORRIS, Presiding Judge
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MARGARET H. DOWNIE, Judge