Opinion
No. 1 CA-CR 14-0203
06-25-2015
STATE OF ARIZONA, Appellee, v. JOHN LANDRUM, JR., Appellant.
COUNSEL Office of the Attorney General, Phoenix By Andrew S. Reilly Counsel for Appellee Nicole Farnum, Phoenix 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2012-100449-001
The Honorable Harriett E. Chavez, Judge
AFFIRMED
COUNSEL Office of the Attorney General, Phoenix
By Andrew S. Reilly
Counsel for Appellee
Nicole Farnum, Phoenix
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Maurice Portley joined. THOMPSON, Judge:
¶1 Defendant, John Landrum, Jr., appeals from his convictions on ten counts of sexual exploitation of a minor, each a class 2 felony and dangerous crime against children. He argues (1) that the trial court abused its discretion when it allowed the state to present evidence of other acts pursuant to Rules 404(b) and (c) of the Arizona Rules of Evidence and (2) that juror misconduct deprived him of a fair trial. For reasons sent forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against defendant. State v. Karr, 221 Ariz. 319, 320, ¶ 2, 212 P.3d 11, 12 (App. 2008).
¶2 On November 28, 2011, Phoenix Police Detective Frank Angel determined that a computer operating from an Arizona IP address was actively sharing child pornography. The computer's public share folder contained 27 confirmed child pornography files. Angel confirmed that they were child pornography by checking "hash values," which are alphanumeric identifiers, or fingerprints, for known child pornography files that are contained in data bases available to law enforcement. After downloading the files and confirming that they were child pornography, Angel subpoenaed the internet service provider for the subscriber information and learned that defendant was the account holder and the IP address was assigned to his home in Phoenix.
Also known as "hash tags" and "SHA values."
¶3 As Angel continued his investigation, he learned that defendant was publicly sharing child pornography though peer-to-peer networks. On January 3, 2012, Angel observed that the number of child pornography files defendant had obtained and was actively sharing had increased to approximately 111. Angel did a "single source download" and obtained more images of child pornography from the IP address. At that point, Angel drove to defendant's home to ascertain if there was a wireless connection in the area and if the IP address was being improperly accessed. Angel determined that defendant's network was secured and that "the likelihood of anybody accessing [defendant's] network at the residence was highly unlikely." Angel only saw one vehicle at the house that was registered to defendant's employer.
¶4 On January 4, 2012, officers executed a warrant on defendant's home. Defendant was home alone at the time and was completely naked when he answered the door. Detectives searched the residence and located a desktop computer in defendant's master bedroom that was actively downloading child pornography at the time and numerous child pornography files were organized in folders on the computer's home screen. Detectives located a blue bag/backpack containing 320 digital disks, a large dildo, lubricant and an electric bill addressed to defendant in defendant's bedroom closet. Two other laptop computers, two external hard drives, two USB drives, and many more CDs and DVDs were also found in defendant's residence. Forensic examiners at the scene previewed the computer and external hard drives found in defendant's master bedroom and determined that each contained numerous child pornography files.
¶5 After Detective Angel read defendant his Miranda rights, Defendant admitted that he owned the digital devices in his bedroom, including the computer and the two external drives. He also admitted that the backpack in the closet was his as well as the USB drives, which he used for work. Angel informed defendant that the computer in his room appeared to be actively downloading child pornography, and Defendant responded that he had last looked at his computer screen three weeks prior to that day. He claimed that he only used the computer in his living room and that family members and friends used the computer in in bedroom when they visited. Defendant later told Angel that when the computer in the bedroom became "cluttered," he would move transsexual, bisexual and bestiality videos to the hard drives. He explained that he did so by creating folders on his desktop with "terms like TS for transsexual, LB for lady boy," and then "plug in a hard drive and move them to them to those hard drives to save storage space for his computer in the master bedroom." Angel noted that the "naming system within those folders" was found to be "consistent with the two letter naming system" in which they found the child pornography on his computer.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶6 Defendant claimed that a homeless man named Terry Williams had been in his home on December 31, 2011 for a "short period of time" to change his clothes," but defendant had not seen him since then. Defendant only knew that Williams was approximately 28 years old and "bounced back and forth between California and Arizona" but had no other identification or contact information for him. Defendant told Angel that he was "pretty sure that it must have been Terry Williams" who downloaded the child pornography.
¶7 Contrary to defendant's statements, detectives informed Angel that child pornography files had been downloaded to defendant's bedroom computer at 7:00 a.m. that day, when defendant admitted being home alone. The previews also established that child pornography videos had been downloaded to defendant's devices as far back as 1998, prior to when defendant claimed to have met Williams. Defendant was arrested and charged defendant with ten counts of sexual exploitation of a child, each a Class 2 felony and dangerous crime against children.
¶8 Testimony at trial established that the children in all ten videos were real children, and not computer generated or "virtual" children, and that each was under the age of fifteen. Defendant testified at trial that he was home alone when the search warrant was executed, but denied using the computer that morning. He admitted owning and using the computer and external hard drives found in his bedroom, but maintained that he did not know that they contained child pornography files. Defendant also admitted regularly downloading transsexual pornography, organizing those files into folders on his external hard drives, and burning some onto CDs. He stated that Williams would often use his computer when he came to visit, cruising the internet, but defendant "did not think [Williams] was downloading child porn" at the time.
¶9 The jury found defendant guilty of all of the offenses as charged. On March 25, 2014, the trial court sentenced defendant to the presumptive term of 17 years in prison on each count and ordered that the sentences be served consecutively. Defendant timely appealed. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1)(2003), 13-4031 (2010) and 13-4033 (2010).
DISCUSSION
Admission of 404(b) and 404(c) Evidence
¶10 Prior to trial, the prosecutor moved to admit other act evidence pursuant to Arizona Rules of Evidence 404(b) and (c). The state sought to admit all the evidence obtained during the forensic examination of the various electronic devices in defendant's possession, including evidence of the number of child pornography files found on his computer and external hard drives, the fact that the files were organized into "user created" folders, and the times associated with the creation of the folders. The prosecutor also sought to admit testimony by defendant's daughter Robin, that in 2004 she had viewed on defendant's computer a child pornography video entitled "Daddy rapes his little girl." The prosecutor specified that the state did not propose to show the jury "all of these other images," but sought only to "provide the amounts, titles, and some descriptions to the jury." Defense counsel opposed the motion, arguing that the evidence was impermissible "propensity" evidence to establish that defendant had "acted in conformity therewith," and, additionally, that Robin's testimony did not meet the clear and convincing burden of proof for admissibility.
¶11 The trial court held an evidentiary hearing at which it heard testimony from Detective Angel; Detective Vermillion, who conducted the forensic examination of defendant's electronic devices and CDs; and defendant's daughter, Robin. At the hearing, the prosecutor argued that the other act evidence was admissible because the "sheer number" of files containing child pornography that defendant had downloaded and organized on his computer and hard drives or on the CDs and DVDs he possessed was relevant to proving defendant's intent, knowledge, identity, plan, lack of mistake or accident as well as proving his aberrant sexual propensity. After taking the matter under advisement, in an extensive minute entry, the court ruled that the other act evidence, including Robin's testimony, was admissible under Rules 404(b) and (c). The court determined that "the State has a proper purpose in seeking to offer this evidence" for both Rule 404(b) and (c) purposes. It reasoned that '[k]nowledge of content is demonstrated by the creation and organization of folders, links, labeling and various locations of placement." The court also found that "the commission of these acts provides a reasonable basis to infer that the Defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged." In balancing the evidence's "clear" probative value against the possibility of prejudice, the court noted that the "sheer volume of the items found" made "prejudice a concern." However, it concluded that the state's avowal that it would "only provide amounts, titles, and some descriptions to the jury would cure any concern regarding prejudice."
¶12 On appeal, defendant argues that the trial court abused its discretion in permitting this testimony of other acts, that it failed to do a proper balancing before admitting it, and that the titles and content descriptions of the uncharged videos alone were inflammatory and reason to preclude the evidence as unduly prejudicial. We review the admission of other act evidence pursuant to Rule 404(b) and (c) for an abuse of discretion. State v. Van Adams, 194 Ariz. 408, 415, ¶ 20, 984 P.2d 16, 23 (1999); State v. Garcia, 200 Ariz. 471, 475, ¶ 25, 28 P.3d 327, 331 (App. 2001). In conducting our review, we view the evidence "in the light most favorable to the proponent, maximizing its probative value and minimizing its prejudicial effect." State v. Kiper, 181 Ariz. 62, 66, 887 P.2d 592, 596 (App. 1994).
¶13 Evidence of other acts is admissible if it is relevant and if it is admitted for a proper purpose. Van Adams, 194 Ariz. at 415, ¶ 20, 984 P.2d at 23. "Evidence is relevant if it tends to make a material fact more or less probable than it would be absent the evidence." Id. Although evidence of other acts may not be used to prove the defendant's propensity to commit the crime, it is admissible when it is used to prove a defendant's "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Id.; Ariz. R. Evid. 404(b).
¶14 Here, the charges required the state to prove that defendant "knowingly" received or possessed images depicting minors engaged in exploitative exhibition or other sexual conduct. Defendant professed to have no idea that the child pornography was on his computer or other electronic devices and claimed that it was unknowingly placed there by Williams. The evidence that defendant possessed and downloaded child pornography files and images and actively sorted and organized them in folders on his computer and external hard drives was relevant to show that, he knowingly possessed them, contrary to his claims. Ariz. R. Evid. 404(b); see also State v. Villalobos, 225 Ariz. 74, 80, ¶ 19, 235 P.3d 227, 233 (2010) (other act evidence admissible to rebut defendant's defenses).
¶15 Nor was the evidence unfairly prejudicial. Contrary to defendant's arguments, the record shows that the trial court properly considered the possible prejudice to defendant but concluded that the probative value of the other act evidence was not substantially outweighed by the danger of unfair prejudice. See Ariz. R. Evid. 403. Any evidence that is relevant and material will generally be harmful to a defendant, as it no doubt was here, but it is only when evidence is unfairly prejudicial that it need be excluded. State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993). "Unfair prejudice" is applied to describe evidence that has an undue tendency to suggest a decision on an improper basis such as emotion, sympathy or horror. Id. The evidence here was certainly "adversely probative in the sense that all good relevant evidence is," but not unfairly prejudicial. Id. The state did not show additional images of the uncharged videos but presented testimony about the number of videos, their content and how they were arranged and categorized separately from other files of a sexual nature that defendant admitted creating. Although, defendant complains of the titles and descriptions of the uncharged videos, they were no more prejudicial than the images and titles of the charged videos. Furthermore, any prejudice from the admission of this evidence was appropriately mitigated by the trial court's limiting instructions, which reminded the jury of the very limited purpose for which it could consider the evidence and that it did not lessen the state's burden of proving defendant guilty beyond a reasonable doubt. See Villalobos, 225 Ariz. at 80, ¶ 20, 235 P.3d at 233; see also State v. Hyde, 186 Ariz. 252, 276-77, 921 P.2d 655, 679-80 (1996) (finding that offer to give limiting instruction afforded defendant adequate protection against unfair prejudice).
¶16 Defendant argues that Robin's testimony was also improperly admitted at trial. Robin testified at the evidentiary hearing that, she lived with defendant in 2004. While attempting to download a song using defendant's computer in his bedroom, Robin inadvertently clicked on a video that showed "a girl . . . in someone's office naked and a man walked in and she was performing oral sex on him." The video was entitled "Daddy Raped His Little Girl." The girl in the video appeared to be "about 13" and the man was an "adult male." Robin called the police who subsequently viewed the video, but officers told Robin that "it looked like regular pornography." Robin testified that she saw other videos with similar titles on the computer, but she did not open them.
¶17 The trial court determined "by clear and convincing evidence" that Robin observed what she believed to be an image of the sexual exploitation of a minor on defendant's computer, as further indicated by the title of the video. The court further found that the 2004 incident was not "so remote" in time that it was "not relevant" to the present offenses and that it "demonstrate[ed] a continuation of behavior over time" that supported the reasonable inference that defendant had a character trait "giving rise to an aberrant sexual propensity to commit the charged crime." It admitted the evidence for that purpose.
¶18 Rule 404 (c)(1)(B) permits other act evidence to show that a defendant has "a character trait giving rise to an aberrant sexual propensity to commit the offense charged" if the other act "provides a reasonable basis to infer" that the defendant has such a character trait. The evidence must be sufficient to allow the trier of fact to find that the defendant committed also the other act. Ariz. R. Evid. 404(c)(1)(A).
¶19 Defendant argues that there was insufficient evidence that the video was actual child pornography. However, the evidence that defendant possessed a video on his computer entitled "Daddy Rapes His Little Girl" that depicted a "very young girl" performing oral sex on an "adult male" is sufficient evidence from which the jury could "reasonably infer" that defendant had a character trait that gave rise to an aberrant sexual propensity to possess child pornography. See State v. Aguilar, 209 Ariz. 40, 48, ¶ 27, 97 P.3d 865, 873 (2004) (requiring that other act provide reasonable basis for inferring aberrant sexual propensity to commit charged offense). As the court noted, to the extent that evidence also showed that that the propensity continued beyond 2004 made the 2004 incident "not so remote" that it was not relevant and therefore did not possess probative value.
¶20 Defendant also argues that the evidence was unfairly prejudicial, particularly given the "inflammatory" title "Daddy Rapes His Little Girl." There is no showing that the state used the evidence to suggest that the jury base its verdicts on any improper basis, nor do we find any in the record. Furthermore, as noted above, the trial court properly gave the jury a limiting instruction on the use of the Rule 404(c) evidence, which adequately protected defendant against any unfair prejudice. See Villalobos, 225 Ariz. at 80, ¶ 20, 235 P.3d at 233. The trial court did not abuse its discretion in admitting the other act evidence pursuant to Rules (b) and (c).
Defendant also contends that the trial court improperly allowed the state to present evidence that police found a dildo and lubricant in defendant's backpack along with the CDs. He contends that the evidence was irrelevant to the charges because there was no connection made between these sexual materials and child pornography by the state. He further claims that the evidence was "so inflammatory in nature" that it deprived him of a fair trial. The trial court did not make a specific finding about that evidence, and defendant did not object to it when it was presented. Consequently, our review is limited to fundamental error, and the burden rests with defendant to establish that fundamental error occurred and that it caused him prejudice in his case. State v. Henderson, 210 Ariz. 561, 567, ¶¶19-20, 115 P.3d 601, 607 (2005). However, before we even engage in fundamental error review, we must first find that the trial court committed some error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991). We find no error, let alone fundamental error, in the mention of these items being found with defendant's other belongings. However, even assuming error, the evidence is so slight in light of the overwhelming evidence at trial that defendant possessed child pornography, that its admission was harmless. Reversal is required only if the defendant has shown that he was actually prejudiced by the error, which defendant cannot do. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607.
Juror Misconduct
¶21 After the verdicts were returned, Juror 8 and another juror agreed to speak with attorneys in the jury room. During the discussions, Juror 8 revealed for the first time that, when she was a child, a neighbor's father had touched her inappropriately. Defense counsel filed a motion for new trial pursuant to Arizona Rule of Criminal Procedure 24.1(3), arguing that Juror 8 had "engaged in misconduct" by "willfully failing to respond fully to a direct question posed during the voir dire examination." According to defense counsel, the fact that Juror 8 willfully "concealed her personal bias . . . resulted in prejudice" that tainted the jury and affected the outcome of the trial.
¶22 The trial court held an evidentiary hearing at which Juror 8 testified that when she was seven or eight years old and spending the night at a neighboring friend's house, the friend's adult father had touched her inappropriately between her legs, on the outside of her clothes. As soon as he left the room, she got up and went home. She said hello to the neighbor thereafter, but never went back to the house. After the hearing, the trial court denied defendant's motion for new trial, finding that, while the "incident that took place in [Juror 8's] childhood . . . would be considered sexual abuse or misconduct," Juror 8 had not disclosed it because she did not "recall it" during voir dire and did not realize it was a "crime" or consider herself to be a "victim" when the "recollection resurfaced and came to mind" during the trial." The court further noted that Juror 8 testified that "the memory did not have an impact on her consideration of the evidence," that she "took copious notes during trial and continued to consider and receive the evidence presented." The trial court consequently concluded that Juror 8 committed "no juror misconduct" and that defendant suffered no prejudice through Juror 8's "conduct or lack of conduct" that interfered with defendant's right to a fair trial.
¶23 On appeal, defendant argues that the trial court abused its discretion when it denied his motion for new trial. We review whether the trial court erred in denying a motion for new trial for abuse of discretion." State v. Rutledge, 205 Ariz. 7, 10, ¶ 15, 66 P.3d 50, 53 (2003). Juror misconduct necessitates "a new trial only if 'the defense shows actual prejudice or if prejudice may be fairly presumed from the facts.'" State v. Davolt, 207 Ariz. 191, 208, ¶ 58, 84 P.3d 456, 473 (2004) (quoting State v. Miller, 178 Ariz. 555, 558, 875 P.2d 788, 794 (1994) (emphasis and internal citation omitted).
¶24 Initially we note that, at the evidentiary hearing, both defense counsel and the prosecutor repeatedly questioned Juror 8 about whether or not she remembered the trial court specifically asking during voir dire "if anyone has ever personally or had any close friends or family members been a victim of a sexual offense." The record shows that the actual questions the trial court asked were:
Has anyone ever been the victim of any kind of crime? Now, most people have had a burglary or car theft or something. So how many people have been victims of crimes?Thus, in point of fact, Juror 8 was never asked the "direct question" if she or a relative or close friend had ever been the victim of a sexual offense or crime. In any event, Juror 8 testified at the hearing that she did not remember the childhood event during voir dire, and the trial court clearly credited her testimony. In this we defer to the trial court. See Matter of Pima County Juv. Action No. 63212-2, 129 Ariz. 371, 375, 631 P.2d 526, 530 (1981) (deference appellate courts accords to trier of fact, whether judge or jury, to make determinations based on assessment of the credibility of witnesses is elementary). Therefore, we do not find that Juror 8 committed misconduct by willfully failing to disclose the childhood incident during voir dire.
. . . .
Has anyone, a close relative or close friend been the victim of a crime?
The record shows Juror 8 responded to the general question by reporting that her husband's car had been broken into in front of their home approximately twelve years prior but that that event would not affect her ability to be fair and impartial. --------
¶25 Juror 8 testified that, years later she had learned from her friend that her friend's father had been prosecuted for abusing his own children. Defendant argues that Juror 8's testimony was discredited by his investigator's testimony at the evidentiary hearing as well as by Juror 8's "incredible statement" that she did not consider herself a victim at the time or would not have come to that realization once she had learned that her friend's father was prosecuted for child abuse. But Juror 8 vehemently challenged the investigator's version of their interview and defense attorney's skeptical questions. Insofar as this argument is based on an assessment of conflicting testimony at the hearing, we will not substitute our judgment for that of the trial court. See State v. Rocco, 119 Ariz. 27, 29-30, 579 P.2d 65, 67-8 (App. 1978) (stating that it is the duty of trial court to resolve fact conflicts regarding the basis for new trial; the appellate court will not substitute its judgment in place of trier of fact).
¶26 Defendant also argues that he was prejudiced because, had Juror 8 disclosed the incident, "she would have been stricken" like other jurors who disclosed either discomfort with the charges or who knew or were themselves victims of child molestation. However, juror misconduct warrants a new trial only if a defendant can show "actual prejudice or if prejudice can be fairly presumed from the facts." State v. Lehr, 227 Ariz. 140, 151, ¶ 49, 254 P.3d 379, 390 (2011) (citation omitted); see also Davolt, 207 Ariz. at 208, ¶ 58, 84 P.3d at 473. Defendant has not shown actual prejudice. Juror 8 testified that she never mentioned the incident to the other jurors. She also testified that her recollection of the incident did not affect her ability to remain fair and impartial and that she rendered her verdict based only the evidence presented at trial. She avowed that she took notes "on every single person that came to the stand, every witness, every question . . . asked" and that "everything was completely fully on what was given to us during the trial." As noted above, the trial court found this testimony credible. Prejudice cannot be presumed by the mere fact that defendant would have stricken Juror 8 when it appears, as here, that a fair impartial and jury was empanelled. See Catchings v. City of Glendale, 154 Ariz. 420, 422-23, 743 P.2d 400, 402-03 (App. 1987) (inability to remove juror who lied through preemptive strike does not establish "probable prejudice resulted" if there is no showing that misconduct influenced verdict); see also State v. Garza, 216 Ariz. 56, 65, ¶ 32, 163 P.3d 1006, 1015 (2007) (failure to strike jurors for cause does not demonstrate prejudice when fair and impartial jury is ultimately empanelled). The trial court did not abuse its discretion when it denied defendant's motion for new trial.
CONCLUSION
¶27 For the foregoing reaons, we affirm defendant's convictions and sentences.