Opinion
No. 2 CA-CR 2016-0216
06-29-2017
THE STATE OF ARIZONA, Appellee, v. LOUIS ELVIRA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Harriette P. Levitt, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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. 31.24. Appeal from the Superior Court in Pinal County
No. S1100CR201202390
The Honorable Kevin D. White, Judge
AFFIRMED AS CORRECTED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee Harriette P. Levitt, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Kelly concurred. ESPINOSA, Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court. --------
¶1 After a jury trial, appellant Louis Elvira was convicted of sexual conduct with a minor under the age of twelve, two counts of child molestation, public sexual indecency, and five counts of sexual exploitation of a minor under the age of fifteen. The trial court sentenced him to consecutive and concurrent prison terms totaling 112 years. On appeal, Elvira argues the court erred by denying his motion to sever the sexual exploitation counts from the other charged offenses, the evidence was insufficient to sustain his convictions for sexual exploitation of a minor, and he is entitled to be resentenced for his child molestation convictions. We affirm his convictions and his sentences as corrected.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the jury's verdicts. State v. Smith, 242 Ariz. 98, ¶ 2, 393 P.3d 159, 161 (App. 2017). Elvira's convictions for sexual exploitation stem from the November 2011 discovery of child pornography on a laptop computer found in his belongings. His remaining convictions are based on his October 2011 sexual conduct with his live-in girlfriend's then six-year-old daughter, the details of which are not relevant to the issues raised in this appeal.
¶3 The laptop was found in a sealed box that Elvira had placed in a back bedroom of the house he shared with the victim's mother. A neighbor who was helping the victim's mother prepare for a yard sale found images of naked children in "sexual position[s]" when checking the laptop "to make sure there were no personal items on it" pertaining to the victim's mother. The neighbor took the laptop to the police.
¶4 A forensic examination of the laptop's hard drive revealed it contained five images of young nude female children downloaded in 2003, the "user domain name" for the laptop was "Louis Elvira," and the laptop had been used for internet searches with "a common search term used by offenders that are looking for child abusive material" featuring young female children. A pediatric nurse practitioner confirmed the images were of children under the age of fifteen. Following the forensic analysis, however, the laptop was misplaced and had not been located by the time of trial.
¶5 Before trial, Elvira moved to sever the sexual exploitation counts from his other charges. The trial court denied the motion, citing Rule 13.3(a)(1), Ariz. R. Crim. P., and concluding Elvira was not entitled to severance because "evidence of each incident of sexual misconduct charged in this case would be admissible under Rule 404(c) of the Arizona Rules of Evidence." The court further found "[t]he evidentiary value of the proof of the other acts is not substantially out-weighed by the danger of unfair prejudice, confusion of the issues, or other factors mentioned in Rule 403," Ariz. R. Evid.
Discussion
¶6 On appeal, Elvira argues the trial court erred in denying his motion to sever. Pursuant to Rule 13.3(a)(1), the state is permitted to join offenses that "[a]re of the same or similar character." However, a defendant has the right to sever offenses joined under Rule 13.3(a)(1) "unless evidence of the other offense or offenses would be admissible under applicable rules of evidence if the offenses were tried separately." Ariz. R. Crim. P. 13.4(b). We review the denial of a motion to sever for a clear abuse of discretion. State v. Comer, 165 Ariz. 413, 418, 799 P.2d 333, 338 (1990).
¶7 The precise basis of Elvira's argument on appeal is not entirely clear. He appears to suggest the offenses are not of the same or similar character and thus joinder was improper under Rule 13.3(a)(1). But he does not develop any meaningful argument or cite relevant authority; we therefore need not address this issue further. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives claim on appellate review). He also suggests joinder was improper under Rule 13.3(a)(3), which would allow joinder if the offenses "[a]re alleged to have been a part of a common scheme or plan." The trial court, however, did not rely on or cite Rule 13.3(a)(3) in denying severance.
¶8 Elvira further argues the evidence would not be admissible pursuant to Rule 404(b), Ariz. R. Evid., because the evidence is not "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." But, again, the trial court did not ground its decision on that rule. Instead, as noted above, the court based its ruling on Rule 404(c), which allows the admission of "evidence of other crimes, wrongs, or acts . . . to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Elvira suggests the acts in question are too dissimilar to warrant admission under this rule, but once again fails to present any meaningful supporting argument. He has therefore waived this argument on appeal, and we do not address it. See Bolton, 182 Ariz. at 298, 896 P.2d at 838.
¶9 Elvira also contends the evidence supporting his convictions of sexual exploitation of a minor is insufficient. We review the sufficiency of evidence de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). Evidence is sufficient if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). Relevant here, to convict Elvira of sexual exploitation of a minor, the state was required to demonstrate he knowingly possessed "any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." A.R.S. § 13-3553(A)(2).
¶10 Elvira claims the state did not demonstrate he knowingly possessed the images. He first argues "[t]here was no evidence" the laptop "contained any identifying material which would connect [him] to that computer." But he ignores testimony that the "user domain name" that had been created for the laptop was his name. And, the laptop was found in a sealed box he had placed in the home. The jury readily could conclude the laptop belonged to him.
¶11 Elvira also argues the state "never presented evidence sufficient to establish" the laptop analyzed by police was the same one found in his belongings. This argument, however, continues to ignore the evidence: consistent with the chain of evidence log, the neighbor testified he had brought the laptop to police, and a police detective indicated it had been placed in the "property-evidence division," from where it was retrieved and taken for analysis. There was ample proof the laptop analyzed was the same laptop found amongst Elvira's property.
¶12 Finally, Elvira contends he is entitled to be resentenced for his convictions of child molestation, counts two and three. At sentencing, the court stated the sentence imposed for count two "will be consecutive to the prison sentence" for count one, sexual conduct with a minor. As to count three, the court also stated the sentence would be consecutive to count one, "but concurrent with Count 3 as recommended"—an obvious impossibility. The error is reflected in the sentencing minute entry. Elvira contends resentencing is required "so that the trial court may clarify its intention with respect to whether the sentences were intended to be served concurrent with one another or consecutive to one another."
¶13 We agree with the state, however, that resentencing is unnecessary because the trial court clearly intended for the sentences for counts two and three to run concurrently to each other and merely misspoke when it said "Count 3" instead of "Count 2." Notably, the presentence report and the state recommended those sentences be concurrent. We therefore correct the sentencing minute entry to reflect concurrent sentences for counts two and three. See State v. Ovante, 231 Ariz. 180, ¶ 38, 291 P.3d 974, 982 (2013) (appellate court "can order the minute entry corrected if the record clearly identifies the intended sentence"); State v. Lopez, 230 Ariz. 15, n.2, 279 P.3d 640, 643 n.2 (App. 2012) (when sentencing court's intent can be ascertained "from the record, we need not remand for clarification").
Disposition
¶14 Elvira's convictions are affirmed and his sentences are affirmed as corrected.