Opinion
No. 1 CA-CR 19-0425
06-30-2020
STATE OF ARIZONA, Appellee, v. JOSEPH MICHAEL MCCLINTON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michael O'Toole 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. S8015CR201700516
The Honorable Richard D. Lambert, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee Mohave County Legal Advocate's Office, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined. CRUZ, Judge:
¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Joseph Michael McClinton has advised this Court that counsel found no arguable questions of law and asks us to search the record for fundamental error. McClinton was convicted of ten counts of sexual exploitation of a minor, each a Class 2 felony and a dangerous crime against children in the first degree. McClinton was given an opportunity to file a supplemental brief in propria persona; he has not done so. After reviewing the record, we affirm McClinton's convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against McClinton. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 While conducting investigations for the National Center for Missing and Exploited Children, the Department of Homeland Security ("DHS") uncovered and downloaded a video of child pornography from a file sharing network. DHS discovered the video originated and was being shared from an IP address within McClinton's residence. DHS was issued a search warrant, which was executed on February 1, 2017.
¶4 When officers arrived at McClinton's residence, McClinton answered the door and was cooperative with the officers. He told officers he lived at the residence with his father for about twenty years. During the search in McClinton's bedroom, officers located a baggie of a substance that field-tested positive for methamphetamine. Officers also located a computer in McClinton's bedroom, and they conducted an on-site preview of the computer, which contained a folder labeled "pedo." The folder contained ten videos of children engaged in sexual activity with adults.
¶5 McClinton was arrested and booked into the Mohave County Detention Center, and he was charged with ten counts of sexual exploitation of a minor, one count of possession of dangerous drugs, and one count of possession of drug paraphernalia. Several days later McClinton was released on his own recognizance. Because McClinton was not in custody, he waived speedy trial time.
¶6 A settlement conference was held on July 19, 2017. The State offered McClinton an offer to plead guilty to one count of attempted sexual exploitation of a minor, and it would dismiss all other charges. The State was also willing to limit the judge's discretion to a sentence of ten years, and it agreed to the defense counsel's stipulation that if McClinton was sentenced to probation, he would not receive any time in county jail as a condition of probation. McClinton did not accept the offer.
¶7 Two weeks before trial, McClinton filed a motion in limine to preclude the display of the child pornography images and videos found on McClinton's computer, arguing they were inflammatory and unfairly prejudicial. McClinton offered to stipulate that all of the videos depicted children under the age of fifteen, one of the elements of McClinton's charged offenses. The State objected, arguing the images directly proved the charged conduct and they were necessary to prove the remaining elements of the crime: the defendant knew the children in the videos were under fifteen and the children were engaged in sexual conduct or exploitive exhibition. The court denied the motion in limine and allowed the State to display the videos to the jury.
¶8 Jury trial was held on February 26 and 27, 2019. The morning of the first day of trial, the State moved to dismiss with prejudice the two drug-related charges, and the court granted the dismissal. Trial proceeded on the remaining ten counts of sexual exploitation of a minor. McClinton attended the first day of trial, but on the second day of trial, McClinton left the court building shortly before trial began and he was not in attendance for the proceedings. McClinton's counsel requested a continuance, stating he would prefer the trial to go forward in McClinton's presence; however, defense counsel also conceded McClinton appeared to have "voluntarily absented himself from the proceeding." The court denied the motion to continue trial, finding McClinton voluntarily waived his presence. Trial continued in McClinton's absence, with his counsel representing him, and the court issued a bench warrant for McClinton's arrest.
¶9 At trial, the State presented the child pornography videos to the jury, along with the testimony of a computer forensic agent for DHS, Agent Hexel, and an officer for DHS, Agent Carlyle. Agent Hexel testified that child pornography is often shared online on peer-to-peer networks. On these sites, once an individual downloads an image or video, at the same time, this individual is also sharing the file back out to the public. The networks are used to widely disseminate the pornography. Agent Hexel further testified that he was involved in the execution of the search warrant on McClinton's residence, and when searching McClinton's computer at the residence, he found the ten videos of child pornography on a desktop folder labeled "pedo." Agent Hexel also testified that he did not believe it would be possible for these videos to be downloaded on McClinton's computer without his knowledge or due to a virus, because they were on a clearly labeled desktop folder.
¶10 Agent Carlyle testified that he read McClinton his Miranda rights and conducted an interview with McClinton at his residence during the execution of the search warrant. Agent Carlyle testified that after about six minutes into the interview, McClinton asked "if this was about child porn." McClinton told Agent Carlyle that he was "not into" prepubescent children, but he found females that reached puberty, aged twelve or thirteen, to be attractive. McClinton also admitted that he used his computer to search for pornography, and that he was "probably searching" for the term PTHC, which stands for "preteen hardcore." McClinton admitted that he had a folder on his computer labeled "pedo," and that there was child pornography located in it. McClinton denied that anyone also used his computer, including his father, and stated that it was unlikely anyone would have access to the computer besides him.
¶11 While cross-examining Agent Carlyle, defense counsel asked questions about three recordings of McClinton on the day the search warrant was executed, which included an officer's body cam recording during the execution of the search warrant, a 36-minute audio recording of McClinton's interview at his residence, and an audio recording of McClinton and his father in a police vehicle being transported to jail. Defense counsel stated the transport recording took place "surreptitiously." Defense counsel also asked questions regarding the voluntariness of McClinton's statements to Agent Carlyle and whether the presence of numerous armed officers led to McClinton's confessions. This line of questioning led to multiple jury questions, including whether the secret audio recording in the police vehicle was lawful and requests to hear the audio recordings. A bench conference was held. Given these juror questions, the State sought to introduce all three of the audio and video recordings. Defense counsel did not object to introducing the 36-minute recording, but counsel objected to introducing the other two recordings, arguing these recordings contained prejudicial statements about adult pornography, drugs, and references to uncharged misconduct. An evidentiary hearing was held out of the presence of the jury.
¶12 During the hearing, the prosecutor argued that prior to trial, he and the defense counsel had an agreement that the recordings would not be used or discussed at trial. However, defense counsel did discuss the recordings, and the State claimed that defense counsel's questions implied that McClinton's statements were involuntary and that the officers participated in misconduct. The State claimed the recordings were necessary to demonstrate to the jury that McClinton's statements to officers were not coerced, and because defense counsel "opened the door" by referencing the recordings, the State should be allowed to present the recordings. Otherwise, the State argued, it would be prejudiced, because withholding the recordings or only playing portions of the recordings would make it look like the State was "hiding" something from the jury.
¶13 Defense counsel argued that he was allowed to litigate the voluntariness of McClinton's statements, and he did not "open the door" to references of uncharged misconduct on the recordings. Defense counsel did concede, however, that he "deliberately opened the door" to evidence of McClinton viewing adult pornography by asking questions about it. Finally, defense counsel argued the recording of McClinton in the police vehicle was taken improperly, because McClinton has a reasonable expectation of privacy in a police vehicle during transport to jail, and so this recording should not be introduced to the jury.
¶14 The court allowed the State to introduce the recordings, finding "the defense has opened the door by their questions and bringing up the issues that they have." However, the court also ruled that the State redact the references to narcotics. Prior to the jury returning from recess, the State redacted the recording. The recordings were then played for the jury.
¶15 Following the State's presentation of its case, McClinton's counsel moved for an Arizona Rule of Criminal Procedure 20 judgment of acquittal, and the court denied it. McClinton's counsel did not call witnesses. At the conclusion of trial, the jury found McClinton guilty on all ten counts of sexual exploitation of a minor.
¶16 McClinton was arrested on May 21, 2019, and held without bond. On July 22, 2019, the superior court conducted the sentencing hearing in compliance with McClinton's constitutional rights and Arizona Rule of Criminal Procedure 26. The court found no aggravating factors. For mitigating factors, the court found McClinton had no prior felony convictions and no prior sexual convictions until age forty. The superior court sentenced McClinton to ten years for each of the ten counts to be served consecutively, for a total of 100 years, with a presentence incarceration credit of 69 days. The court also ordered McClinton to a term of community supervision for a period of 171 months to be served consecutive to his term of imprisonment.
DISCUSSION
¶17 We review McClinton's convictions and sentences for fundamental error. See State v. Flores, 227 Ariz. 509, 512, ¶ 12 (App. 2011). Counsel for McClinton has advised this Court that after a diligent search of the entire record, counsel has found no arguable question of law. We have read and considered counsel's brief and fully reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, counsel represented McClinton at all stages of the proceedings, and the sentences imposed were within the statutory guidelines. We decline to order briefing and affirm McClinton's convictions and sentences.
¶18 Upon the filing of this decision, defense counsel shall inform McClinton of the status of the appeal and of his future options. Counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). McClinton shall have thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review.
CONCLUSION
¶19 For the foregoing reasons, we affirm.
See Miranda v. Arizona, 384 U.S. 436 (1966).