Opinion
No. 2 CA-CR 2017-0399-PR
03-19-2018
THE STATE OF ARIZONA, Respondent, v. EDMUND HERALD ADAMS, Petitioner.
COUNSEL Ronald S. Gilleo, Mohave County Legal Defender By Eric Devany, Deputy Legal Defender, Kingman Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Mohave County
No. CR201300484
The Honorable Rick A. Williams, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Ronald S. Gilleo, Mohave County Legal Defender
By Eric Devany, Deputy Legal Defender, Kingman
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Petitioner Edmund Adams seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Adams has not demonstrated such abuse here.
¶2 Following a jury trial, Adams was convicted of sixteen counts of sexual exploitation of a minor, three counts of sexual conduct with a minor, and one count each of molestation of a child, surreptitiously recording another person without the person's consent, and weapons misconduct. The trial court sentenced Adams to presumptive and aggravated consecutive terms totaling 626.5 years' imprisonment. We affirmed the convictions and sentences on appeal. State v. Adams, No. 1 CA-CR 14-0251 (Ariz. App. June 30, 2015) (mem. decision).
¶3 Adams then sought post-conviction relief, asserting inter alia that trial counsel was ineffective by failing to object to the jury instruction given pursuant to A.R.S. § 13-3556, related to the counts of sexual exploitation of a minor, and that appellate counsel was ineffective for failing to challenge that instruction on appeal. See A.R.S. § 13-3553(a)(2) (defining sexual exploitation of minor as knowingly "[d]istributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct."). Adams also asserted the trial court denied him due process by giving the instruction, which had been deemed unconstitutional in State v. Hazlett, 205 Ariz. 523, n.10 (App. 2003). The court summarily dismissed Adams's Rule 32 petition, and this petition for review followed.
Section 13-3556, A.R.S., provides: "In a prosecution relating to the sexual exploitation of children, the trier of fact may draw the inference that a participant is a minor if the visual depiction or live act through its title, text or visual representation depicts the participant as a minor." Here, the trial court instructed the jury: "In a prosecution relating to the sexual exploitation of the children, you may draw the inference that a participant was a minor if the visual depiction or live act through its title, text, or visual representation depicted the participant as a minor."
¶4 On review, Adams reasserts he is entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing to challenge the unconstitutional jury instruction based on § 13-3556 and that appellate counsel should have raised this issue on appeal. A defendant is entitled to a hearing if he presents a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶5 Relying on Hazlett, Adams contends trial counsel should have objected to the instruction permitting the jury to "infer that a participant in a visual depiction is a minor from its title, text, or visual representation." He argues the instruction deprived him of the right to be convicted only if the state demonstrates his guilt beyond a reasonable doubt for the sexual exploitation offenses in counts twelve through twenty-one. Adams also asserts the state "relied heavily" on the unconstitutional inference in the jury instruction, noting that in many instances it relied on titles or file names of the depictions to establish the age of the victims and arguing if trial counsel had successfully objected to the instruction, "the state would have been deprived of a critical portion of its evidence."
¶6 The trial court acknowledged the holding in Hazlett, in which the court concluded § 13-3556, from which the language of the instant instruction was taken, was unconstitutionally overbroad because it could allow a conviction even when "no actual child was a participant in the depiction." Hazlett, 205 Ariz. 523, n.10. However, the court also noted Adams had not "argued or alleged that the children depicted in the images were computer-generated or adults pretending to be minors," and that "the images admitted in evidence and presented to the jury clearly are of actual minors under the age of 15," which "was corroborated by the investigating detective's testimony, as well as the defendant's admission that he 'looked at these illegal photos of boys.'"
¶7 Indeed, as we similarly concluded on appeal, an expert was not necessary to determine the ages of the victims, "when, as here, the children are prepubescent." Adams, No. 1 CA-CR 14-0251, ¶ 23. We also noted that Adams admitted to a detective that his computer "contained things he looked at that he was not proud of, such as 'boys and girls and horses.'" Id. ¶ 20. In addition, we noted Adams's computer had been used to conduct searches for images of "'nude boys' and men with nude boys," and that Adams had "created and retained digital movies of himself engaging in sexual conduct with two minor boys." Id. We further determined that the trial court had "adequately instructed the jury that the images had to depict an actual person who was under the age of 18 at the time the depiction was created, adapted, or modified," rather than a fictitious image. Id. ¶ 27. Notably, Adams directs us to nothing in the record to suggest the images were computer-generated or were otherwise deceptive as to the subjects' ages. Moreover, despite asserting the state "relied heavily" on the titles and descriptions of several of the videos, Adams nonetheless acknowledges all or a portion of most of those videos were played for the jury.
¶8 Even accepting that trial counsel was deficient in failing to challenge the jury instruction given pursuant to § 13-3556, Adams has not met his burden to demonstrate resulting prejudice. See Bennett, 213 Ariz. 562, ¶ 21. Based on the record, we cannot say a reasonable jury that had not been given the challenged instruction would have failed to determine the images on Adams's computer depicted actual minors, and Adams has not established otherwise. See A.R.S. § 13-3553(a)(2). The trial court did not abuse its discretion by denying Adams' claims of ineffective assistance of trial and appellate counsel.
¶9 Finally, in an argument separate from his claims of ineffective assistance of counsel, Adams asserts he was denied due process as a result of the challenged jury instruction. However, because Adams could have raised this issue on appeal, he is precluded from raising it now. See Ariz. R. Crim. P. 32.2(a)(3). We therefore do not address it.
Rule 32 was recently amended. Because the changes do not affect our analysis, we cite the current version. Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
¶10 Although we grant review, relief is denied.