Opinion
No. 1 CA-CR 14-0251
06-30-2015
STATE OF ARIZONA, Appellee, v. EDMUND HERALD ADAMS, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Andrew S. Reilly Counsel for Appellee Mohave County Legal Advocate's Office, Kingman By Jill L. Evans 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. S8015CR201300484
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Andrew S. Reilly
Counsel for Appellee
Mohave County Legal Advocate's Office, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Kent E. Cattani joined. NORRIS, Judge:
¶1 Edmund Herald Adams appeals his convictions and sentences for 16 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 misconduct involving weapons. Adams argues, first, the superior court should have granted his motions for new counsel; second, the superior court should have ordered a mistrial after the State elicited testimony he had failed to register as a sex offender; third, the State failed to present sufficient evidence he knowingly possessed child pornography; fourth, the State failed to present sufficient evidence the "unidentified children" were under the age of 15 to support his conviction on several of the sexual exploitation of a minor counts; fifth, the superior court failed to properly instruct the jury on the elements of sexual exploitation of a minor; sixth, his sentences for sexual exploitation of a minor violated his double jeopardy rights; seventh, his sentences on several of the counts of sexual exploitation of a minor constituted cruel and unusual punishment; and eighth, the State failed to present sufficient evidence to support the existence of the factors the court relied on in imposing aggravated sentences on certain counts. We disagree with all of Adams's arguments and affirm his convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Adams. See State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998).
¶2 While this matter involves many victims, brothers "N" and "B" were the only victims whose identities were known, and they were the only victims who testified at trial. Adams was a friend of N's and B's family, and N and B frequently visited Adams in his home. Adams's roommate found three digital video discs in Adams's home each containing a different movie of Adams with a male child. The first disc contained a movie of Adams engaging in sexual conduct with an unidentified boy. The second disc contained a movie of Adams engaging in sexual conduct with N. The third disc contained a movie that showed Adams placing his video camera in a bathroom in his home pointed towards the bathtub; it then showed Adams undressing B, taking him to the bathtub, touching B's buttocks repeatedly and then turning B to expose his genitals to the camera. Adams committed the offenses against N when he was 12 to 14 years old and the offenses against B when he was ten to 12 years old.
¶3 Investigators found ten digital movies on Adams's laptop computer recovered from his home. Those movies depicted unidentified prepubescent children engaged in exploitive exhibition and other sexual conduct; all but two of the children were boys. Finally, Adams also possessed a number of firearms even though he was a prohibited possessor.
¶4 The jury convicted Adams on the charges listed above. The superior court sentenced him to an aggregate term of 626.5 years' imprisonment.
DISCUSSION
Although the Arizona Legislature amended certain statutes cited in this decision after the date of Adams's offenses, the revisions are immaterial to the resolution of this appeal. Thus, we cite to the current version of these statutes.
I. Motions for New Counsel
¶5 Adams argues the superior court should not have denied his motions for new counsel because an irreconcilable conflict existed with his appointed counsel. As we explain, the court did not abuse its discretion in denying Adams's motions. State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998) (appellate court reviews superior court's decision to deny motion for new counsel for abuse of discretion).
A. Background
¶6 In October 2013, Adams wrote a letter to the court and requested new counsel, asserting his counsel was "very aggressive" towards him at a settlement conference and had "yelled" at him to accept the State's offer of 18 years' imprisonment. He also asserted his counsel was biased, displayed a "lack of diligence," and had failed to provide him with copies of all the State's disclosure.
The judge who conducted the settlement conference also suggested to Adams in pointed language that it was in his best interest to accept the offer.
¶7 The superior court addressed Adams's letter at a status conference the following week. Defense counsel avowed to the court she had provided him with copies of everything disclosed by the State except for a recent communication with the State. She acknowledged she "loudly" advised Adams he needed to listen to her and her investigator's evaluations of the evidence and their recommendations that he consider the State's offer. Defense counsel also moved to withdraw, stating there was "enough" of a communication breakdown that she should no longer represent Adams. The superior court refused to appoint new counsel, finding no evidence of bias, and explaining a "personality clash" did not entitle a defendant to a new attorney, and that often an attorney is required to tell the client "things that they may not want to hear."
¶8 One week later, Adams wrote another letter to the superior court requesting the court to order that all disclosure "be given" to him personally. Six weeks later, Adams and his counsel informed the court they had resolved all the discovery issues. At the next status conference, however, Adams renewed his argument that defense counsel had not given him all of the disclosure. Defense counsel told the court the disclosure had "been sent over twice now," and she would investigate why Adams had allegedly not received it. Two weeks later, Adams wrote a third letter to the court and again asked for new counsel, again asserting defense counsel had refused to give him copies of all the disclosure. The next day, Adams sent a fourth letter to the court alleging his counsel had waived the speedy trial provisions of Arizona Rule of Criminal Procedure 8 without consulting him.
¶9 The court held a hearing on Adams's requests for new counsel. At the hearing, Adams asserted defense counsel had failed to give him all of the disclosure and had waived Rule 8 without his consent. He also asserted counsel was unaware of and had failed to investigate critical evidence which, however, he only vaguely described. Defense counsel informed the court she had given Adams copies of "everything [they had] received from the county attorney and every single piece of paper that has been filed in the court file in this case. There is nothing more that we have in our file that can be provided to Mr. Adams." Counsel also explained she and Adams had discussed the importance of having adequate time to prepare his defense, and Adams had agreed the continuances were necessary even after she had explained to him how continuances would affect his speedy trial/Rule 8 rights. Counsel then renewed her motion to withdraw.
¶10 The superior court did not "find any weight to [Adams's] claims" and denied his motion for new counsel as well as defense counsel's motion to withdraw. The court found defense counsel had provided Adams with everything she had, and explained defense counsel was "allowed to waive Rule 8 on [Adams's] behalf." The court also explained it believed counsel was fully capable of representing Adams to the best of her legal abilities despite Adams's accusations.
¶11 This issue arose again the first day of trial. Adams claimed his attorney "threatened" him and told him he was a sick person who should never be around children and who should never own a computer. Adams also asserted counsel's investigator had summed up his case as, "You're fucked." In response, the court told Adams, "for better or for worse" it was sometimes necessary for attorneys to have "blunt" and "heated" discussions with their clients, and that his new allegations, "how[ever] unpleasant [they] might have been," did not raise any concerns about defense counsel's ability to represent him.
B. Discussion
¶12 A defendant with appointed counsel is not entitled to counsel of his or her own choosing, or to a meaningful relationship with counsel. State v. Henry, 189 Ariz. 542, 546, 944 P.2d 57, 61 (1997). Substitution of counsel is not required unless a defendant establishes "a completely fractured relationship with his appointed counsel either because of an irreconcilable conflict or because of a total breakdown in communications." State v. Torres, 208 Ariz. 340, 345, ¶ 18, 93 P.3d 1056, 1061 (2004).
¶13 The superior court did not abuse its discretion, as Adams argues, in rejecting his arguments that he had an irreconcilable conflict with counsel. Although Adams may have established personality conflicts and disagreements regarding trial strategy with counsel, neither warranted the appointment of new counsel. See Henry, 189 Ariz. at 546-47, 944 P.2d at 61-62 (strategy disagreements); State v. Cromwell, 211 Ariz. 181, 187, ¶ 30, 119 P.3d 448, 454 (2005) (personality conflicts).
¶14 The superior court essentially found Adams's complaints about his counsel were meritless. It found counsel had given Adams everything in her file. It was also entitled to accept counsel's explanation Adams had, in fact, agreed to continuances and did so with the knowledge of the effect continuances would have on speedy trial rights. And, the superior court aptly assessed Adams's complaints as indicating his unhappiness with the situation and properly noted that frank discussion and blunt candor with a client is not only permissible but sometimes warranted. II. Admission of Evidence that Adams Failed to Register as a Sex Offender
¶15 Adams argues the superior court committed fundamental reversible error when it did not sua sponte grant a mistrial after the State elicited testimony Adams was a registered sex offender. No such testimony was presented at trial, however.
Adams did not move for a mistrial. The failure to raise an issue at trial waives all but fundamental error. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).
¶16 N's and B's mother testified she became concerned about the relationship between Adams and her sons. The prosecutor asked when she became concerned and if she remembered the time of year. She responded, "There was two different occasions. One was when [Adams] was arrested at one point for not registering — " Defense counsel objected before she could identify Adams's registration failure. The court sustained the objection, struck the answer, and ordered the jury to disregard the witness's response even though it was not a complete answer. Therefore, the superior court did not allow the State to introduce any evidence Adams was required to register as a sex offender or had failed to do so.
¶17 Further, the context of the witness's answer did not otherwise inform the jury Adams was required to register as a sex offender or had failed to do so. As noted by the superior court, her reference to "not registering" could have referred to "anything," including a firearm or a motor vehicle. Finally, our supreme court has instructed we are to presume jurors follow the superior court's instructions. See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). Under these circumstances, the superior court was not required to sua sponte order a mistrial. III. Sufficiency of the Evidence to Support Counts 12-21: Knowingly Possess
¶18 Adams argues the State failed to present sufficient evidence to support his convictions for sexual exploitation of a minor as charged in counts 12-21, because it failed to show he knowingly possessed the digital movies on his laptop computer. More specifically, he argues the State's evidence was circumstantial and was outweighed by other evidence that the movies could have been on the computer when he obtained it, or other individuals in his home could have downloaded the movies on the computer without his knowledge.
A person commits sexual exploitation of a minor if the person knowingly possesses any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct. Ariz. Rev. Stat. ("A.R.S.") § 13-3553(A)(2) (2010). "'Possess' means knowingly to have physical possession or otherwise to exercise dominion or control over property." A.R.S. § 13-105(34) (Supp. 2014).
¶19 The State presented more than sufficient evidence to support his convictions for counts 12-21. See State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) ("To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." (citation omitted)).
¶20 Adams owned the computer that contained the movies, and the computer was in his home. Adams admitted to a detective his computer contained things he looked at that he was not proud of, such as "boys and girls and horses." The "owner" account of the computer had been used to conduct internet searches for images of "nude boys" and men with nude boys. The "owner" account had also been used to log on to Adams's Facebook page. No one ever attempted to delete the images from Adams's computer, and by the time investigators seized the computer, the images had been on the computer for a year. And, as noted above, Adams created and retained digital movies of himself engaging in sexual conduct with two minor boys. The jury could reasonably infer that Adams sought, obtained, and knowingly possessed images of children engaged in sexual conduct from other sources as well.
¶21 Finally, the probative value of this evidence was not reduced because it was circumstantial. State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995). The State may obtain a conviction by circumstantial evidence alone, State v. Burton, 144 Ariz. 248, 252, 697 P.2d 331, 335 (1985), and this evidence was more than sufficient to allow the jury to find beyond a reasonable doubt that Adams knowingly possessed the digital movies on his computer that were the subjects of counts 12-21. IV. Ages of the Unidentified Victims
¶22 Adams also contends the State failed to present sufficient evidence to support the jury's determination the unidentified victims in counts 7, 8, and 12-21 were less than 15 years old. Adams argues only an expert can determine the age of a child based on appearance alone, and contends the detective who testified about the apparent ages of the victims was not an expert. We reject this argument.
Because the jury was free to determine the age of the victims based on its own viewing of the movies and the testimony of lay witnesses, we need not address whether the superior court should have found the detective who testified about the images qualified as an expert.
¶23 It is not always necessary to have an expert testify regarding the age of a victim depicted in child pornography, especially when, as here, the children are prepubescent. See United States v. Katz, 178 F.3d 368, 373 (5th Cir. 1999). The jurors watched all or portions of each movie, and jurors may make their own conclusions as to the age and developmental state of children depicted in child pornography. See United States v. Rayl, 270 F.3d 709, 714 (8th Cir. 2001). Law enforcement officers and other lay witnesses may provide their opinion as to the relative age of a child. See State v. Nereim, 234 Ariz. 105, 109, ¶ 13, 317 P.3d 646, 650 (App. 2014); State v. Olquin, 216 Ariz. 250, 255-56, ¶ 28, 165 P.3d 228, 233-34 (App. 2007); United States v. Kain, 589 F.3d 945, 950-51 (8th Cir. 2009). "[A]ge is a matter on which everyone has an opinion. Knowingly or unknowingly, we all form conclusions about people's ages every day. It is therefore particularly appropriate for a lay witness to express an opinion on the subject." United State v. Yazzie, 976 F.2d 1252, 1256 (9th Cir. 1992) (district court should not have excluded lay testimony regarding the apparent age of a child). Thus, the State presented sufficient evidence to support the jury's determination that the unidentified victims were under the age of fifteen. V. Jury Instructions
¶24 Adams argues the superior court did not adequately instruct the jury regarding sexual exploitation of a minor because it did not instruct the jury it had to find he knew, first, each minor in the image was under the age of 15, and second, each image was of an "actual" or "real" minor. See Ariz. Rev. Stat. ("A.R.S.") § 13-3553(C) (2010) (sexual exploitation of a minor under 15 is punishable as a dangerous crime against children). Because Adams neither requested these instructions nor objected to their omission, we review for fundamental error. See State v. Valles, 162 Ariz. 1, 6, 780 P.2d 1049, 1054 (1989).
¶25 "Where the law is adequately covered by the instructions as a whole, no reversible error has occurred." State v. Doerr, 193 Ariz. 56, 65, ¶ 35, 969 P.2d 1168, 1177 (1998). "Where terms used in an instruction have no technical meaning peculiar to the law in the case but are used in their ordinary sense and commonly understood by those familiar with the English language, the court need not define these terms." State v. Barnett, 142 Ariz. 592, 594, 691 P.2d 683, 685 (1984).
¶26 We find no error, fundamental or otherwise, because the additional instructions were unnecessary. First, whether Adams knew the minors in the images were under 15 was irrelevant. The State was not required to prove he knew they were under 15 to expose him to an enhanced sentence for dangerous crimes against children. State v. Coghill, 216 Ariz. 578, 590, ¶ 49, 169 P.3d 942, 954 (App. 2007) (addressing what is now A.R.S. § 13-705(D) (Supp. 2014)).
¶27 Second, the court instructed the jury it had to find Adams knowingly possessed any visual depiction of "a minor" engaged in certain conduct. It further instructed the jury that a "minor" is "a person who was under eighteen years of age at the time the visual depiction was created, adapted or modified." See A.R.S. § 13-3551(6) (Supp. 2014) (definition of "minor"). "[D]escribing 'minor' in the past tense, evidences a clear intent that the minor be an actual living human being in that it implies the subject has the ability to age, i.e., become older through the passage of time. Fictitious persons do not possess this quality." State v. Hazlett, 205 Ariz. 523, 527, ¶ 11, 73 P.3d 1258, 1262 (App. 2003). Thus, the superior court 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. VI. Double Jeopardy
Adams did not object to the superior court's instruction to the jury that in a prosecution for sexual exploitation of a minor, it could infer 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." The court gave this instruction pursuant to A.R.S. § 13-3556 (2010). We held this statute unconstitutional in 2003. See Hazlett, 205 Ariz. at 529 n.10, ¶ 17, 73 P.3d at 1264 n.10. Adams does not argue on appeal the superior court should not have instructed the jury pursuant to A.R.S. § 13-3556 or that any prejudice resulted from the instruction.
¶28 Adams argues the superior court violated the Double Jeopardy Clauses of the United States and Arizona Constitutions when it imposed consecutive sentences for each count of sexual exploitation, counts 12-21, because his possession of the movies was a single act, and thus the sentences constituted multiple punishments for the same offense. See Taylor v. Sherrill, 169 Ariz. 335, 338, 819 P.2d 921, 924 (1991) (double jeopardy clause prevents imposition of multiple punishments for same offense). Although Adams did not raise this argument in the superior court, a double jeopardy violation constitutes fundamental error. State v. Millanes, 180 Ariz. 418, 421, 885 P.2d 106, 109 (App. 1994). Reviewing this argument de novo, we find no double jeopardy violation. See State v. Moody, 208 Ariz. 424, 437, ¶ 18, 94 P.3d 1119, 1132 (2004) (alleged double jeopardy violation reviewed de novo).
¶29 "[P]ossession of each image of child pornography is a separate offense." State v. Berger, 212 Ariz. 473, 474, ¶ 3, 134 P.3d 378, 379 (2006). This is true even if the multiple images are contained on one roll of undeveloped film, a single photograph, a videotape, a single digital video disc, or other device used to store electronic data. State v. McPherson, 228 Ariz. 557, 560, ¶ 6, 269 P.3d 1181, 1184 (App. 2012); A.R.S. § 13-3551(12) (defining "visual depiction"). Each image is a separate offense even if the different images are identical. McPherson, 228 Ariz. at 560, ¶ 6, 269 P.3d at 1184. Further, the Legislature intended each individual depiction to be subject to separate prosecution and punishment. Id. at ¶ 7. This is true even if the defendant acquires all of the images at the same time. Id. at 561, ¶ 8, 269 P.3d at 1185. Therefore, Adams did not commit a single act for which the superior court subjected him to more than one punishment, rather, he committed ten separate and distinct acts of possession. Thus, the superior court did not impose multiple punishments for the same offense in violation of Adams's double jeopardy rights. VII. Cruel and Unusual Punishment
The portions of State v. Taylor, 160 Ariz. 415, 419, 773 P.2d 974, 978 (1989), that Adams relies upon to support his argument are dicta. See McPherson, 228 Ariz. at 561, ¶ 8, 269 P.3d at 1185. Because the superior court properly imposed separate consecutive sentences based on Adams's possession of the movies, we do not need to address this issue in the context of how Adams obtained the movies.
¶30 Adams argues the sentences imposed by the superior court constitute cruel and unusual punishment when considered individually or in the aggregate. Reviewing this argument de novo, see State v. Kasic, 228 Ariz. 228, 231, ¶ 15, 265 P.3d 410, 413 (App. 2011), we disagree.
¶31 Adams's prior conviction for a predicate felony exposed him to enhanced ranges of sentences for the counts of sexual exploitation of a minor. See A.R.S. § 13-705(D). The superior court sentenced Adams to the enhanced maximum term of 35 years' imprisonment for each count of sexual exploitation of a minor that involved his creation or possession of digital movies of himself engaged in exploitive exhibition or sexual conduct with a minor, and to the enhanced presumptive term of 28 years' imprisonment for the remaining counts of sexual exploitation. See id. Because A.R.S. § 13-705(M) required all 16 sentences to run consecutively, this resulted in an aggregate term of 476 years' imprisonment for the counts of sexual exploitation of a minor.
¶32 The Eighth Amendment bars cruel and unusual punishments. Berger, 212 Ariz. at 475, ¶ 8, 134 P.3d at 380. In a "noncapital" setting, the sentence imposed may not be "grossly disproportionate" to the crime. Id. at ¶ 10. To decide whether a sentence is grossly disproportionate, "a court first determines if there is a threshold showing of gross disproportionality by comparing 'the gravity of the offense and the harshness of the penalty.'" Id. at 476, ¶ 12, 134 P.3d at 381 (quoting Ewing v. California, 538 U.S. 11, 28, 123 S. Ct. 1179, 1189, 155 L. Ed. 2d 108 (2003)). In doing so, the court "must accord substantial deference to the legislature and its policy judgments as reflected in statutorily mandated sentences." Id. at ¶ 13. If the Legislature has reasonable grounds to believe that a sentence advances the goals of that state's criminal justice system in "any substantial way," and the sentence "arguably furthers the State's penological goals and thus reflects 'a rational legislative judgment, entitled to deference,'" a sentence is not grossly disproportionate and the analysis need not continue further. Id. at 477, ¶ 17, 134 P.3d at 382 (quoting Ewing, 538 U.S. at 30). It is "exceedingly rare" that a sentence in a noncapital case will violate the prohibitions against cruel and unusual punishment. Id.
Our supreme court held in Berger that a ten-year minimum sentence for sexual exploitation of a minor based on the mere possession of a single image of a child engaged in exploitive exhibition or other sexual conduct was not grossly disproportionate to the crime. Berger, 212 Ariz. at 474, ¶ 1, 134 P.3d at 379.
¶33 Adams's sentences for sexual exploitation of a minor do not constitute cruel and unusual punishment. "It is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling." Id. at ¶ 18 (quoting Osborne v. Ohio, 495 U.S. 103, 109, 110 S. Ct. 1691, 1696, 109 L. Ed. 2d 98 (1990) (internal quotation marks omitted)). Our Legislature had a reasonable basis to believe that the lengthy sentences it prescribed for sexual exploitation of a minor advance the goals of the Arizona criminal justice system in a substantial way and further the State's penological goals. Therefore, a sentence of up to 35 years' imprisonment for sexual exploitation of a minor under the age of 15 by an offender with a predicate felony is not grossly disproportionate to the crime. That the aggregate term of imprisonment is hundreds of years is not relevant to the analysis. "[I]f the sentence for a particular offense is not disproportionately long, it does not become so merely because it is consecutive to another sentence for a separate offense or because the consecutive sentences are lengthy in aggregate." Id. at 479, ¶ 28, 134 P.3d at 384.
¶34 Adams also briefly argues his sentence of 98 years' imprisonment for creating the movies as charged in counts 5, 7, and 9, and an additional 98 years' imprisonment for possessing those same movies as charged in counts 6, 8, and 10 constituted cruel and unusual punishment. We disagree. Section 13-3553(A)(1) criminalizes the creation of the images, while A.R.S. § 13-3553(A)(2) criminalizes the possession of the images. The Legislature created two separate and distinct offenses to address two separate and distinct harms to minor victims of child pornography. State v. Paredes-Solano, 223 Ariz. 284, 288-89, ¶¶ 10-12, 222 P.3d 900, 904-05 (App. 2009). Separate sentences for separate offenses does not constitute cruel and unusual punishment. VIII. Aggravating Circumstances
¶35 Adams argues the State failed to present sufficient evidence to support the jury's determination he had committed counts 1-6 and 9-11 in an especially heinous, cruel, or depraved manner, and thus, the superior court should not have relied on this circumstance in imposing an aggravated sentence on these counts. See A.R.S. § 13-701(D)(5) (Supp. 2014). Because Adams did not object to the court's consideration of this circumstance, we review for fundamental error, with the burden on Adams to show the court's consideration of the circumstance was prejudicial. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); State v. Munninger, 213 Ariz. 393, 396-97, ¶ 10, 142 P.3d 701, 704-05 (App. 2006).
A. Counts 1-6, 9, and 10
¶36 Adams has not demonstrated or even argued he suffered any prejudice by the court's reliance on this circumstance in imposing an aggravated sentence for counts 1-6, 9, and 10. In addition to finding "especially heinous, cruel, or depraved," the jury also found N and B had suffered physical or emotional harm because of Adams's actions, and the superior court relied on this factor as an aggravating circumstance for counts 1-6, 9, and 10. See A.R.S. § 13-701(D)(9). When a superior court considers both proper and improper circumstances in imposing an aggravated sentence, we may affirm if the record clearly shows the court would have imposed the same sentence even without the improper aggravating circumstance. State v. Ojeda, 159 Ariz. 560, 562, 769 P.2d 1006, 1008 (1989).
¶37 Here, the record shows the superior court would have imposed the same sentences for these counts even if it had not considered the heinous, cruel, or depraved circumstance. Just before it imposed the sentences, the superior court described Adams as "an unrepentant predator" who had "earned every year that he's going to get, if not more." The court then imposed the maximum sentences available for each of the counts that involved N and B. See A.R.S. § 13-705(C) and (D).
B. Count 11
¶38 Despite the jury's finding otherwise, the superior court did not find B had suffered physical or emotional harm when Adams committed count 11 by secretly recording B without his consent. This may have been simply an oversight by the court, but the only aggravating circumstance the court expressly considered for count 11 was that Adams had committed the offense in an especially heinous, cruel, or depraved manner. Regardless, the State presented sufficient evidence to support the jury's determination that Adams had committed count 11 in an especially heinous and depraved manner.
The jury also found count 11 involved "[l]ying in wait for the victim or ambushing the victim during the commission of any felony." See A.R.S. § 13-701(D)(17). The court noted this circumstance seemed "redundant" in the context of secretly recording another person and stated it was "reluctant" to apply this factor to count 11. The court, however, did not expressly accept or reject it. Therefore, it is unclear whether the superior court actually considered this as an aggravating circumstance for count 11. --------
¶39 "Heinous, cruel or depraved" as used in A.R.S. § 13-701(D)(5) is phrased in the disjunctive, as alternative elements, and thus "[o]nly one of the three . . . must be proven in order for a sentence to be aggravated under this provision." State v. Johnson, 229 Ariz. 475, 479, ¶ 9, 276 P.3d 544, 548 (App. 2012). "Heinous or depraved" describes a defendant's state of mind. State v. Murdaugh, 209 Ariz. 19, 31, ¶ 59, 97 P.3d 844, 856 (2004). Heinous means "hatefully or shockingly evil: grossly bad" while depraved "means 'marked by debasement, corruption, perversion or deterioration.'" Id. (quoting Webster's Third New International Dictionary).
¶40 The record supports, as the superior court concluded, that Adams committed count 11 in an especially heinous and depraved manner:
[T]he Court still finds that offense was committed in an especially heinous, cruel, or depraved manner.Accordingly, the State presented sufficient evidence to support the jury's determination Adams had committed count 11 in an especially heinous and depraved manner.
What I specifically found heinous about that crime—and I believe the jury did as well—was the manner in which it was staged, where [Adams] was undressing the victim for the camera, and even would point the victim toward the camera so the camera could capture his full frontal nudity.
CONCLUSION
¶41 For the foregoing reasons we affirm Adams's convictions and sentences.