Opinion
2 CA-CR 2012-0019
12-17-2012
THE STATE OF ARIZONA, Appellee, v. JON HARRY IRWIN, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Nicholas Klingerman Attorneys for Appellee Lori J. Lefferts, Pima County Public Defender By Michael J. Miller Attorneys 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Not for Publication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 Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20102663001
Honorable Christopher C. Browning, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Nicholas Klingerman
Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller
Tucson
Attorneys for Appellant
ESPINOSA, Judge. ¶1 After a jury trial, Jon Irwin was convicted of six counts of sexual exploitation of a minor under the age of fifteen based on his possession of child pornography. He was sentenced to consecutive prison terms totaling seventy-seven years. On appeal, he argues the trial court erred by denying his motion to preclude the state from showing the jury excerpts of the pornographic videos at issue despite his offer to stipulate to their contents, and contends the evidence was insufficient to support his convictions. We affirm.
Factual Background and Procedural History
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts." State v. Windsor, 224 Ariz. 103, ¶ 2, 227 P.3d 864, 864 (App. 2010). In September 2009, Irwin moved into the home of his neighbor, Alexis Delaney. He brought with him various pieces of computer equipment, including a laptop computer, a desktop computer, and two external hard drives. Irwin's work required periodic travel, and he moved out of Delaney's house and then back in again several times. In July 2010, Irwin was arrested at Delaney's home for offenses not at issue in this appeal. Although Irwin's computer equipment and other belongings were left at the house, Delaney never used the equipment apart from turning it off the night of his arrest, nor had she seen other members of her family using it except while Irwin was present. ¶3 In August, Delaney moved to a new residence, hiring movers to pack Irwin's things, including his computer equipment, and move them to the garage of her new home. Later that month, Delaney showed Calvin Fuller, a detective with the Pima County Attorney's Office who had come to talk to her about Irwin on another matter, where Irwin's belongings were stored and gave him permission to take the computer equipment. ¶4 Fuller obtained a search warrant for the computer equipment, and Pete Nares, a Pima County forensic analyst, conducted an examination of files stored on the equipment. On the two external hard drives, Nares discovered six files containing child pornography: three video files were found on one drive and three photographs on the other. ¶5 Irwin was indicted on two counts of sexual exploitation of a minor under the age of fifteen and other charges that eventually were severed for trial. After his first trial ended in a mistrial because the jury was unable to reach a verdict, the grand jury issued a new indictment charging Irwin with four additional counts of sexual exploitation of a minor, for a total of six counts. A second trial also ended in a mistrial when the trial court found a witness's testimony relating to the severed charges "highly prejudicial." Following a third trial, Irwin was convicted on all six counts and sentenced as outlined above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
Sufficiency of Evidence
¶6 Irwin argues the evidence was insufficient to support his convictions because the state presented no evidence that he knew of the existence of the files at issue. He therefore contends the trial court erred in denying his motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P. We review de novo the denial of a Rule 20 motion. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). In evaluating such a ruling, "'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, 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). "'Substantial evidence,' Rule 20's lynchpin phrase, 'is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" Id., quoting Mathers, 165 Ariz. at 67, 796 P.2d at 869. The evidence required to sustain a conviction "may be either circumstantial or direct," and "[t]he probative value of evidence is not reduced simply because it is circumstantial." State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App. 1981). ¶7 To sustain Irwin's convictions for sexual exploitation of a minor under fifteen years of age, the record must reflect substantial evidence that he knowingly received, possessed, or exchanged any visual depiction of a minor engaged in exploitive exhibition or other sexual conduct, A.R.S. § 13-3553(A)(2), and that the minor was under fifteen, § 13-3553(C). Irwin does not dispute that the files contain visual depictions of exploitive exhibition or sexual contact—indeed, at trial he offered to stipulate that they contained such depictions; instead, he contends "there was no evidence that [he] knew of the existence of the charged files." We therefore must determine whether the state presented sufficient evidence of knowing possession. ¶8 The term "knowingly" is defined to mean, "with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists." A.R.S. § 13-105(10)(b). And possession includes the exercise of dominion or control over property. § 13-105(34). Both possession and knowledge may be proven by circumstantial evidence. State v. Hull, 15 Ariz. App. 134, 135, 486 P.2d 814, 815 (1971); State v. Jensen, 217 Ariz. 345, ¶ 7, 173 P.3d 1046, 1050 (App. 2008). At trial, Delaney testified the computer equipment belonged to Irwin and he had kept it in his bedroom, of which he was the sole occupant. She also stated that although her mother and five-year-old son, who both also lived with her, occasionally used Irwin's computer, they did so only under his supervision. She additionally noted that although she would sometimes ask Irwin to perform computer-related tasks for her, he was always the one at "the keyboard doing the typing"—she did not directly use the equipment. ¶9 Irwin maintains there was no evidence he had been aware of the existence of the files, which "were deep in nested folders" within the respective hard drives and therefore unlikely to be encountered. However, Nares testified that the files were contained in subfolders whose parent folders were named, for example, "XXX" and "From_Jonnotebook_2_facilitate_defrag." He also testified that had the files been accidentally downloaded, they normally would have been stored as temporary Internet files, but none of the images in question were found in temporary files. The jury could infer from these directory names—one of which is commonly understood to mean "pornographic" and one of which contains Irwin's first name—that the folders were knowingly created. And the fact that the same child appeared in all three photographs contained on one hard drive and in two of the three videos contained on the other was evidence from which the jury could infer that the files had been placed in their respective locations by the drives' common owner, Irwin. Finally, Delaney's testimony that all the computer equipment in the house had belonged to Irwin, along with her testimony that no one in the household used the computer without Irwin's supervision, was sufficient evidence from which a reasonable jury could infer he had knowingly possessed the computer equipment and all the files contained therein. Cf. Jensen, 217 Ariz. 345, ¶ 19, 173 P.3d at 1053 (evidence sufficient to support jury's conclusion that defendant had knowingly received child pornography where defendant admitted he owned computer and used it to access the Internet and only other operator testified she had never used it to view pornography). ¶10 Irwin points out that one of the hard drives had last been accessed on July 24, 2010, at 9:03 p.m., whereas he had left the house for good the same day before noon. But Delaney testified that Irwin had left his computer on and she turned it off later that evening. Nares testified that if, in the process of shutting a computer off, a user "closed down certain programs, that would then show an access" to the hard drive. Moreover, the "last-accessed" dates of the pornographic files on both hard drives indicated that none of the files had been accessed after July 24. Thus, evidence that one hard drive had been accessed on the night of Irwin's arrest did not prevent the jury from concluding that he knowingly possessed the child pornography contained on that drive.
Section 13-3553(A)(2) provides: "A person commits sexual exploitation of a minor by 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."
A commonly understood meaning of "XXX" is "pornographic." The American Heritage Abbreviations Dictionary 291 (3d ed. 2005).
Delaney did not specify whether the desktop, the laptop, or both had been left on.
Admissibility of Child Pornography
¶11 Irwin also argues the trial court erred by allowing the state to show images and excerpts from the videos to the jury, despite his offer to stipulate that each of the files contained a visual depiction of a minor engaged in exploitive exhibition or other sexual conduct. We review the trial court's ruling for an abuse of discretion. See State v. Coghill, 216 Ariz. 578, ¶ 38, 169 P.3d 942, 951 (App. 2007). ¶12 At Irwin's first trial, the state did not show the media to the jury; instead, the parties stipulated that the videos were "visual depictions of a minor under fifteen years of age engaged in exploitive exhibition or other sexual conduct, thereby satisfying those elements of the offense of Sexual Exploitation of a Minor Under Fifteen beyond a reasonable doubt," and the state had Detective Fuller testify about the nature of the video clips. After the first jury was unable to reach a verdict, the state sought to play the videos at the subsequent retrial. Irwin moved to preclude this evidence and again offered to stipulate that the media contained child pornography. Relying heavily on our decision in Coghill, 216 Ariz. 578, 169 P.3d 942, he argued that, in view of his offer to stipulate to the contents of the files, "there [wa]s absolutely no probative value in playing [them] for the jury," and thus "the only reason to play [them] would be to create unfair prejudice." The state opposed his motion to preclude, pointing out that Coghill was "very clear that the trial court still has discretion to do a [Rule] 403[, Ariz. R. Evid.,] analysis," and arguing that the probative value of the videos at issue was not substantially outweighed by the danger of unfair prejudice. ¶13 The trial court denied Irwin's motion, explaining that its "biggest concern [was] the fact that stipulations aren't binding on the trier of fact." Although the court suggested that if such a stipulation could be binding on the jury, the court would have been "much more inclined to grant [the] motion," it ultimately concluded after viewing the video clips that, although "disturbing," they "[could not] properly be characterized as unfairly prejudicial." The court further noted that "the nature and composition of the material is also probative as to the issue of whether [Irwin] knew the files were pornography or whether he could have mistakenly believed them to be material of a different character." Finally, the court concluded that the probative value of the images and videos was not substantially outweighed by their prejudicial effect and denied Irwin's motion to preclude. The images and video excerpts then were shown to the jury at trial. ¶14 In Coghill, we vacated the defendant's convictions for sexual exploitation of a minor and attempted sexual exploitation of a minor after concluding the trial court had erred in admitting evidence that he had possessed adult pornography. 216 Ariz. 578, ¶¶ 1, 12, 27, 169 P.3d at 944, 946, 949. In order to provide guidance on remand, however, we also addressed the defendant's argument that the trial court had erred in allowing the state to show the jury the child pornography videos he was alleged to have possessed. Id. ¶¶ 34-38. Although we resolved the case on other grounds, we postulated that "[a] trial court maintains discretion in determining whether to exclude evidence, and an offered stipulation is . . . one factor to consider in that determination." Id. ¶ 38. Thus, to the extent Irwin suggests the trial court was required to compel the state to accept his proposed stipulation, we do not find support for that suggestion in Coghill. Instead, as the state recognizes in its answering brief, Coghill stands for the proposition that the trial court must consider an offer to stipulate in determining the admissibility of the evidence under Rule 403. See id. ¶15 "Although relevant, evidence may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice." State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993). However, the mere fact that evidence is prejudicial does not mean that it should be excluded; "[a]fter all, evidence which is relevant and material will generally be adverse to the opponent." Id. Rather, to be excluded, evidence must be unfairly prejudicial; that is, it must have "'an undue tendency to suggest decision on an improper basis' such as emotion, sympathy or horror." Id., quoting Fed. R. Evid. 403 1972 advisory committee note (internal citation omitted). ¶16 Here, the trial court considered Irwin's offered stipulation. It viewed the video clips and images the state sought to introduce at trial and then made a determination that the probative value of these visual depictions was not outweighed by the danger of unfair prejudice. In so ruling, the court observed that the images and video clips were probative of whether Irwin "knew the files were child pornography or whether he could have mistakenly believed them to be material of a different character." The court thus recognized that the media were probative of not one, but two elements of the offense: the contents of the video and Irwin's knowledge of those contents. Although Irwin was willing to stipulate to the first, he does not suggest that he was willing to stipulate to the second, and displaying the videos thus had substantial probative value notwithstanding his offer to stipulate. ¶17 Furthermore, display of the photographs and video excerpts was not unduly prejudicial. The state did not show the videos in their entirety but rather displayed only a representative excerpt of each; thus, the display was not gratuitous, but was limited to allow the state to establish the element for which the exhibits were offered. Cf. People v. Holford, 136 Cal. Rptr. 3d 713, 723, 727 (Ct. App. 2012) (finding no abuse of discretion in admission under Cal. Evid. Code § 352, of entire twenty-five-minute video file containing child pornography, even though seven-minute excerpt "might have been sufficient"). And, in light of the subject matter of the offenses, and having viewed the exhibits in question, we cannot disagree with the trial court's implicit conclusion that the jury would not have been influenced to decide the case on an improper basis. Cf. State v. Salazar, 181 Ariz. 87, 88, 92, 887 P.2d 617, 618, 622 (App. 1994) (concluding trial court abused its discretion by admitting "detailed and inflammatory evidence" of completely unrelated sexual crimes when probative value was low and "prosecution's conspicuous purpose . . . was to luxuriate in inflammatory detail and create overwhelming prejudice"). We find no abuse of discretion in the court's determination that the photographs and video excerpts' probative value outweighed the danger of unfair prejudice. See Ariz. R. Evid. 403.
Irwin's pretrial objection challenged only the admissibility of the video excerpts. But the trial court also appears to have considered the admissibility of the photographs because they too were shown to the jury at trial. In any event, the state does not argue that Irwin waived our consideration of the issue, and we therefore review the admissibility of the photographs as well as the videos. See State v. Fulminante, 193 Ariz. 485, ¶ 64, 975 P.2d 75, 93 (1999) (objection sufficiently made if it provides judge with opportunity to provide remedy).
Rule 403, Ariz. R. Evid., currently provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." This version of the rule is substantially the same as the previous version in force at the time of the trial court's ruling. See Ariz. R. Evid. 403 2012 court cmt.
Section 352 is substantially similar to Rule 403, Ariz. R. Evid., and provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Disposition
¶18 For the foregoing reasons, Irwin's convictions and sentences are affirmed.
___________
PHILIP G. ESPINOSA, Judge
CONCURRING: ___________
GARYE L. VÁSQUEZ, Presiding Judge
___________
VIRGINIA C. KELLY, Judge