Opinion
No. 1 CA-CR 13-0314
07-22-2014
STATE OF ARIZONA, Appellee, v. WENDELL ROY JOHNSON, Appellant.
Arizona Attorney General's Office, Phoenix By Eliza Ybarra Counsel for Appellee Martinet Law, Phoenix By Philippe Martinet, Joel Erik Thompson Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2010-005993-001
The Honorable Pamela Hearn Svoboda, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Eliza Ybarra
Counsel for Appellee
Martinet Law, Phoenix
By Philippe Martinet, Joel Erik Thompson
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined. CATTANI, Judge:
¶1 Wendell Roy Johnson appeals his convictions and the resulting sentences relating to three counts of sexual conduct with a minor, two counts of child molestation, one count of sexual abuse, two counts of furnishing obscene material to a minor, and twelve counts of sexual exploitation of a minor under the age of fifteen. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 A ten-year-old girl called 911 to report that Johnson had inappropriately touched her genitals. The girl identified Johnson as her friend's grandfather, and she reported that the incident happened as she sat on steps to an apartment building while playing with several other young girls near where she lived.
¶3 Johnson's six-year-old granddaughter saw him touch the ten-year-old girl inappropriately. When a forensic investigator interviewed the six-year old, she told the investigator that Johnson had also touched her private areas on several occasions during the previous year. Additionally, Johnson's granddaughter told the investigator that Johnson had shown her sexually explicit pictures of naked children and women.
¶4 When Johnson was arrested, he had in his pocket two thumb drives containing numerous images of young girls in different states of undress. Police officers obtained a search warrant and seized two computers from inside Johnson's home, four portable external hard drives from Johnson's bedroom, and several other thumb drives from various locations in the home. Forensic examiners found numerous still images and videos of child and adult pornography and erotica on these computer devices. After learning of Johnson's arrest, security personnel at the company where Johnson was employed allowed police officers to inspect four of the company's computers to which Johnson had access as part of his job. Forensic examiners determined that child and adult pornography and erotica had been accessed on these computers under Johnson's user account.
¶5 The State initially indicted Johnson on three counts of sexual conduct with a minor, two counts of child molestation, one count of sexual abuse, and two counts of furnishing obscene material to a minor. But after discovering images of child pornography on computer devices owned or used by Johnson, the State obtained a second indictment that included the original eight counts and added twelve counts of sexual exploitation of a minor under the age of fifteen. The twelve new counts were based on eleven images and one video selected from the numerous still images and videos of child and adult pornography and erotica discovered on the four hard drives found in Johnson's bedroom.
¶6 The case proceeded to trial, and Johnson was found guilty of all twenty counts as charged. The court sentenced Johnson to three consecutive terms of life imprisonment on the three counts of sexual conduct with a minor, together with concurrent and consecutive prison terms on the remaining seventeen counts.
¶7 Johnson timely appealed, and we have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
I. Ineffective Assistance of Counsel.
¶8 Johnson claims he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel failed to properly handle a variety of evidentiary issues. But the Arizona Supreme Court has directed that ineffective assistance of counsel claims be raised in pos-conviction proceedings under Arizona Rule of Criminal Procedure 32, rather than on direct appeal. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Accordingly, we decline to address this claim, without prejudice to Johnson reasserting it in an appropriate forum.
II. Claim of Prosecutorial Vindictiveness.
¶9 Johnson argues that the superior court abused its discretion by denying his motion to dismiss for prosecutorial vindictiveness. The claim of prosecutorial vindictiveness was predicated on the prosecutor advising Johnson during plea negotiations that additional charges would be pursued absent a plea agreement, and on the prosecutor obtaining a second indictment with the additional charges of sexual exploitation of a minor after Johnson decided not to plead guilty. Contrary to Johnson's contention, this type of prosecutorial conduct is not improper. See State v. Dominguez, 130 Ariz. 498, 499, 637 P.2d 300, 301 (App. 1981); Bordenkircher v. Hayes, 434 U.S. 357, 363-65 (1978). Accordingly, the court did not err by denying Johnson's motion to dismiss.
III. Motion to Sever.
¶10 Johnson argues that the superior court erred by denying his motion to sever the twelve counts of sexual exploitation of a minor from the eight sexual misconduct counts. The court denied the motion following an evidentiary hearing, finding that severance was not warranted because the charged acts of sexual exploitation of a minor would be relevant and admissible in a trial on the sexual misconduct charges and vice versa.
¶11 We review the superior court's rulings on severance and on the admissibility of evidence for abuse of discretion. State v. Prince, 204 Ariz. 156, 159, ¶ 13, 61 P.3d 450, 453 (2003); State v. Roscoe, 184 Ariz. 484, 491, 910 P.2d 635, 642 (1996). But because Johnson failed to renew his motion to sever at or before the close of evidence as required by Arizona Rule of Criminal Procedure 13.4(c), we review for fundamental error only. See State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996). To obtain relief under this standard, a defendant bears the burden of showing fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005).
¶12 Under Arizona Rule of Criminal Procedure 13.3(a)(1), offenses may be joined if they are "of the same or similar conduct." However, under Rule 13.4(b), when offenses are joined by virtue of Rule 13.3(a)(1), a defendant is entitled to severance as a matter of right "unless evidence of the other offense or offenses would be admissible under applicable rules of evidence if the offenses were tried separately."
¶13 Johnson has not shown any error in the court's analysis of this issue. Under Arizona Rule of Evidence 404(c), character evidence is admissible in sexual misconduct cases "if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Before admitting evidence under Rule 404(c), the court must find that (a) "the evidence is sufficient to permit the trier of fact to find that the defendant committed the other act," (b) the commission of the other act tends to show an aberrant sexual propensity to commit the crime charged, and (c) "the evidentiary value of the other act is not substantially outweighed by the danger of unfair prejudice." Here, the court made specific findings regarding each of those factors in determining that the sexual exploitation acts would be admissible at a trial on the sexual misconduct charges and vice versa.
¶14 Because Johnson failed to designate the hearing on the motion to sever as part of the record on appeal, we presume the record supports the superior court's findings. See State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982) ("Where matters are not included in the record on appeal, the missing portions of the record will be presumed to support the action of the trial court."); see also State v. Tipton, 119 Ariz. 386, 388, 581 P.2d 231, 233 (1978) (noting that in reviewing the denial of a motion to sever, the appellate court considers the facts presented with respect to the motion, rather than what subsequently transpired at trial). Accordingly, on this record, Johnson has not shown error, much less fundamental error, in the denial of his motion to sever.
IV. Other Act Evidence.
¶15 Johnson challenges the superior court's admission at trial of certain evidence pursuant to Arizona Rule of Evidence 404(b), which provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," but that such evidence may, however, be admissible for other non-character purposes. When other act evidence is offered for a non-character purpose, "it may be admissible under Rule 404(b), subject to Rule 402's general relevance test, Rule 403's balancing test, and Rule 105's requirement for limiting instructions" if warranted. State v. Ferrero, 229 Ariz. 239, 242, ¶ 12, 274 P.3d 509, 512 (2012). We review the ruling regarding the admission of Rule 404(b) evidence for an abuse of discretion. Roscoe, 184 Ariz, at 491, 910 P.2d at 642.
¶16 At the hearing on the motion to sever, the court considered the State's motion for admission of evidence relating to the forensic examination of the computers, hard drives, and thumb drives owned or used by Johnson. This evidence included numerous other images of child and adult pornography that were not charged in the indictment. The court ruled that these uncharged images were admissible under Rule 404(c) to show aberrant propensity and under Rule 404(b) to prove motive, identification, intent, knowledge and absence of mistake or accident.
¶17 As with the ruling concerning the cross-admissibility of the charged acts under Rule 404(c), the court made the findings necessary for the admission of evidence of the various uncharged images. To the extent some of the uncharged images were actual child pornography, they were admissible under Rule 404(c) in accordance with the court's ruling that such evidence would provide a reasonable basis to infer that Johnson had an aberrant propensity to commit the charged acts. The images that were not child pornography were admissible under Rule 404(b) for the non-character purpose of proving Johnson's intent and opportunity with respect to the two counts of furnishing obscene material to a minor. Johnson's possession of the images had some tendency to make it more likely than not that he intended to and in fact showed such material to one of the victims. See Ariz. R. Evid. 401 (stating that evidence is relevant if it has "any tendency" to make a fact of consequence "more or less probable than it would be without the evidence"). Moreover, as previously noted, Johnson failed to include in the record on appeal the transcript of the evidentiary hearing on the motions to sever and to admit other act evidence. Accordingly, we presume the evidence presented at the hearing supports the superior court's findings under Rules 404(b) and 404(c). Zuck, 134 Ariz, at 513, 658 P.2d at 166.
¶18 Johnson's reliance on State v. Coghill, 216 Ariz. 578, 169 P.3d 942 (App. 2007), is misplaced. In Coghill, the defendant was charged with and convicted of fourteen counts of sexual exploitation of a minor under the age of fifteen and one count of attempted sexual exploitation of a minor. Id. at 582, ¶ 11, 169 P.3d at 946. This court held that the superior court erred by admitting evidence of possession of adult pornography under Rule 404(b) because it was not relevant to the charged sexual exploitation offenses. Id. at 585, ¶ 27, 169 P.3d at 949. But this court specifically noted it was not considering whether the other act evidence would be admissible under Rule 404(c), on which the superior court relied in the instant case. See id. at 584 n.4, ¶ 24, 169 P.3d at 948 n.4. Equally significant, and unlike in Coghill, Johnson was charged (in addition to the twelve counts of sexual exploitation of a minor) with two counts of furnishing obscene material to a minor. Because Johnson's possession of the adult pornography was relevant to those charges for a proper non-character purpose, Coghill does not mandate reversal in this case. See also State v. Sharp, 193 Ariz. 414, 421-22, ¶ 23, 973 P.2d 1171, 1178-79 (1999) (upholding admission in evidence of pornographic material as relevant to charged offense and not outweighed by unfair prejudice).
¶19 In ruling that the uncharged images other act evidence was admissible under Rules 404(b) and 404(c), the superior court expressly considered Rule 403 and found that the probative value of the evidence was substantial and was not unfairly prejudicial, and that it would not confuse or mislead the jury. Moreover, the court noted that, given the large amount of available other act evidence, the court would reserve for trial any "decision on any Rule 403 objection that some of such evidence should be precluded because it is needlessly cumulative, or would cause undue delay or a waste of time," and that its ruling would depend on how the State intended to use the evidence. Johnson made no further Rule 403 objection at trial, perhaps because, despite references to the numerous other act images, only a very minimal amount of non-child pornography other act evidence was actually offered in evidence. Finally, the court gave an appropriate limiting instruction pursuant to Arizona Rule of Evidence 105 informing the jury of the proper non-character use of the other act evidence in deliberating on the charged offenses. Accordingly, there was no error in the admission of the uncharged images other act evidence.
V. Untimely Disclosure of Expert Witness.
¶20 Johnson argues that the superior court erred by permitting the State to substitute one expert witness for another less than seven days before trial to testify regarding forensic interviews and sexual abuse disclosures by children generally. See State v. Salazar-Mercado, 234 Ariz. 590, 595, ¶ 21, 325 P.3d 996, 1001 (2014). We review rulings concerning disclosure matters under an abuse of discretion standard. State v. Tucker, 157 Ariz. 433, 439, 759 P.2d 579, 585 (1988).
¶21 The State's disclosure of a substitute expert less than one week before trial was untimely. But, although preclusion of a witness is one available sanction for discovery violations, under Arizona Rule of Criminal Procedure 15.7(a)(1), preclusion is appropriate "only if no less stringent sanctions will suffice." Jimenez v. Chavez, 234 Ariz. 448, 452, ¶ 18, 323 P.3d 731, 735 (App. 2014). "The rule in Arizona is that it is frequently not an abuse of discretion for the trial court to permit a previously undisclosed witness to testify if the court believes that no prejudice will result to the accused or that any prejudice which might result may be rectified by other means." State v. Fisher, 141 Ariz. 227, 246, 686 P.2d 750, 769 (1984).
¶22 Here, the superior court did not abuse its considerable discretion under the circumstances presented by allowing the substitute expert to testify. See Ariz. R. Crim. P. 15.6(d) (authorizing trial court to permit introduction of evidence disclosed after the final disclosure deadline). There was no surprise to Johnson from the testimony of the substitute witness because it was the same as that of the expert witness previously disclosed. Additionally, the court offered to continue the trial if necessary to allow Johnson's counsel to interview the substituted expert. Although a continuance is not always a sufficient response to an untimely disclosure, Jimenez, 234 Ariz, at 453, ¶ 23, 323 P.3d at 736, in the instant case, Johnson's counsel informed the court that he was aware of the substance of the expert testimony and that a continuance was not necessary. Furthermore, Johnson has not alleged, much less demonstrated, prejudice resulting from the substitute expert's testimony. See State v. Martinez-Villareal, 145 Ariz. 441, 448, 702 P.2d 670, 677 (1985) ("In order for a reviewing court to find an abuse of discretion, appellant must demonstrate that he suffered prejudice by nondisclosure."). Under these circumstances, the court did not abuse its discretion by permitting testimony from the substitute witness.
VI. Admission of Expert Testimony.
¶23 Johnson argues that the superior court erred by overruling his objection to expert testimony from the detective who performed the forensic examination of the computers and portable devices. Specifically, Johnson asserts that the court should have held an evidentiary hearing on the admissibility of the detective's testimony. See Ariz. R. Evid. 702, 104(c).
¶24 During the detective's testimony, Johnson objected that the witness was "not qualified as a forensic scientist and based on [] Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)]." In response, the court asked whether Johnson wanted a hearing on the admissibility of the detective's testimony or to voir dire the witness outside the presence of the jury. Johnson declined the court's invitation, and the court overruled the objection only after confirming that Johnson had "no wish to challenge further."
¶25 The superior court has broad discretion to determine the admissibility of expert evidence and need not conduct a hearing to make such a decision. Glazer v. State, 234 Ariz. 305, 315, ¶ 28, 321 P.3d 470, 480 (App. 2014). Here, Johnson did not specify why the detective was not qualified, and Johnson declined an opportunity to show why the testimony should not be admitted. Under these circumstances, the court did not abuse its discretion by overruling the objection without conducting an evidentiary hearing.
VII. Admission of Hearsay Evidence.
¶26 Johnson contends that the superior court erred by allowing the State to introduce portions of the two victims' forensic interviews. He argues that admission of the victims' prior statements about the incidents violated the rule against hearsay and did not come within an exception to the rule. We review the court's ruling on the admissibility of evidence under an exception to the rule against hearsay for abuse of discretion. State v. Bronson, 204 Ariz. 321, 324, ¶ 14, 63 P.3d 1058, 1061 (App. 2003).
¶27 Generally, an out-of-court statement offered to prove the truth of the matter asserted is inadmissible hearsay. Ariz. R. Evid. 801(c), 802. There are, however, numerous exceptions to this rule. For example, Arizona Rule of Evidence 803(5) allows the admission in evidence of a recorded recollection, which is defined as follows:
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
¶28 Here, after the victims testified that they could not recall certain details of what Johnson did to them three years earlier, the court permitted the State to play portions of the victims' recorded forensic interviews pursuant to this exception. The recordings were made when the matters were fresh in the victims' memory, and both victims confirmed that their statements during the forensic interviews were truthful. The recordings of the interviews were not received into evidence as exhibits the jury could consider during deliberations, but rather merely played for the jury. Thus, the record reflects that playing the recordings of the victims' forensic interviews was appropriate under Rule 803(5).
¶29 Johnson's reliance on State v. Allred, 134 Ariz. 274, 655 P.2d 1326 (1982), is misplaced. In Allred, the Arizona Supreme Court recognized the possibility of unfair prejudice under Rule 403 resulting when the State introduces impeachment testimony for substantive purposes if the authenticity of the statement is uncertain. Id. at 277-78, 655 P.2d at 1329-30. Here, the forensic interviews were not offered for impeachment, and more importantly, there was no question about the authenticity of the recordings. In sum, the court did not abuse its discretion by allowing the State to play portions of the victims' forensic interviews pursuant to the recorded recollection exception to the rule against hearsay. See State v. Martin, 225 Ariz. 162,165, ¶ 12, 235 P.3d 1045, 1048 (App. 2010).
VIII. Sufficiency of Evidence.
¶30 Johnson argues that the superior court erred by denying his motion for judgment of acquittal based on the State's alleged failure to present sufficient evidence to support his convictions. Johnson contends specifically that the evidence was insufficient with respect to the twelve counts of sexual exploitation of a minor because the charged images did not depict minors engaged in exploitive exhibition or sexual conduct, and, with respect to the other eight counts of various acts of sexual misconduct, because the two victims failed to identify Johnson in court. We review de novo sufficiency of the evidence claims. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152,1198 (1993).
¶31 A judgment of acquittal is warranted only "if there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a). In considering the sufficiency of the evidence, our review is limited to whether substantial evidence supports the verdicts. State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993). "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 will reverse a conviction for insufficient evidence only if "there is a complete absence of probative facts to support [the jury's] conclusion." State v. Mauro, 159 Ariz. 186, 206, 766 P.2d 59, 79 (1988).
¶32 As charged in this case, the offense of sexual exploitation of a minor is committed by knowingly possessing "any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." A.R.S. § 13-3553(A)(2). "Exploitive exhibition" is defined as "the actual or simulated exhibition of the genitals or pubic or rectal areas of any person for the purpose of sexual stimulation of the viewer." A.R.S. § 13-3551(4). As relevant to the charges of sexual exploitation of a minor, "sexual conduct" is defined, in pertinent part, as actual or simulated: (1) "[s]exual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex"; (2) "[p]enetration of the vagina or rectum by any object except when done as part of a recognized medical procedure"; or (3) "[m]asturbation, for the purpose of sexual stimulation of the viewer." A.R.S. § 13-3551(9).
¶33 Citing to State v. Gates, 182 Ariz. 459, 897 P.2d 1345 (App. 1994), Johnson argues that the eleven images and the video that are the subjects of the twelve counts of sexual exploitation of a minor cannot support his convictions because they consist merely of photographs of "nude" young women. In Gates, this court held that the evidence was insufficient to support the conviction for sexual exploitation of a minor because none of the materials that were the subject of the charge depicted minors engaged in "sexual conduct" as defined in 1991. Id. at 466, 897 P.2d at 1352.
¶34 In contrast to Gates, 182 Ariz, at 461, 897 P.2d at 1347, here the twelve charged visual depictions were not merely photos of "nude" young women as claimed by Johnson; rather, they consisted of eleven still images and one video of minors under the age of thirteen posed with a focus on their genitals and/or engaged in sex acts. Thus, the evidence was sufficient to permit the jury to find beyond a reasonable doubt that all twelve images were "visual depiction[s] in which a minor is engaged in exploitive exhibition or other sexual conduct." See A.R.S. § 13-3553(A)(2).
¶35 Johnson also argues the evidence was insufficient to support his convictions on the eight counts of various acts of sexual misconduct, because the two victims failed to identify him in court. But Johnson acknowledged during his testimony that he was the grandfather of the younger victim, who testified that her "Grandpa Wendell" was the person who showed her the pictures of naked children and women and molested both her and the second victim. Given this testimony, the evidence was sufficient to permit the jury to find beyond a reasonable doubt that Johnson was the person who committed the eight charged acts of sexual misconduct, notwithstanding the lack of an in-court identification. See State v. Button, 83 Ariz. 193, 199, 318 P.2d 667, 670 (1957) ("It is not necessary that the identification of defendant as the person who committed the crime be made positively by any one witness, but it is a matter for the jury to determine from all the circumstances and evidence on the subject.") (citation omitted).
IX. Denial of Motion to Dismiss.
¶36 Finally, Johnson argues that the superior court erred by denying his pre-trial motion to dismiss premised on an alleged speedy trial violation under Arizona Rule of Criminal Procedure 8. But rather than setting forth an argument in his opening brief to support this claim of error, Johnson "incorporates by reference the arguments made in said motion." Under Arizona Rule of Criminal Procedure 31.13(c)(1)(vi), presenting a claim in this manner is improper, and may result in a waiver of the claim on appeal. State v. Johnson, 229 Ariz. 475, 482-83, ¶ 23, 276 P.3d 544, 551-52 (App. 2012); State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989).
¶37 Waiver notwithstanding, Johnson's argument fails. Johnson failed to designate as part of the record on appeal the transcript of the hearing on the motion to dismiss, and we therefore presume the record supports the court's ruling. See Zuck, 134 Ariz. at 513, 658 P.2d at 166. Moreover, much of the delay was attributable to Johnson. See Ariz. R. Crim. P. 8.4(a) (excluding "[d]elays occasioned by or on behalf of the defendant" from computation of Rule 8 speedy trial time limits). Prior to filing the motion to dismiss, Johnson had already sought and received three continuances, which excluded a total of 175 days of the computation. And, Johnson thereafter sought and received seven additional continuances, excluding another 379 days. Johnson was thus responsible for over 87% of the total time excluded, and he has not shown prejudice from the additional time excluded. Accordingly, the court did not err by rejecting Johnson's speedy trial claim.
CONCLUSION
¶38 For the foregoing reasons, we affirm Johnson's convictions and sentences.