Opinion
No. 2 CA-CR 2014-0148
04-02-2015
THE STATE OF ARIZONA, Appellee, v. WILLIAM HAROLD VAN METER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Lisa M. Hise, Assistant Public Defender, 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NOT FOR PUBLICATION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 Pima County
No. CR20103673001
The Honorable Edgar B. Acuna, Judge
The Honorable Paul E. Tang, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Lisa M. Hise, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Following a jury trial, William Van Meter was convicted of five counts of sexual exploitation of a minor under the age of fifteen. On appeal, he argues the trial court erred by denying his motions for a judgment of acquittal and by admitting evidence that he previously had sexually abused a minor. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to upholding the jury's verdicts." State v. Tucker, 231 Ariz. 125, ¶ 2, 290 P.3d 1248, 1253 (App. 2012). On April 14, 2010, detectives from the Pima County Sheriff's Department seized Van Meter's laptop computer and other media storage devices as part of an investigation into allegations of sexual abuse against minors. Van Meter's former wife, E.V., learned about the investigation and turned over her desktop computer to the sheriff's department because he frequently had used her computer when visiting her home. The sheriff's department conducted a forensic analysis of both the laptop and desktop computers and discovered thumbnail images depicting child pornography in the unallocated space on the hard drive of Van Meter's laptop.
¶3 Van Meter was charged with and convicted of five counts of sexual exploitation of a minor under the age of fifteen in violation of A.R.S. § 13-3553(A)(2) and (C). The trial court sentenced him to consecutive, four-year terms of imprisonment on all five counts. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Motions for Judgment of Acquittal
¶4 Van Meter first argues the trial court erred in denying his motions for a judgment of acquittal because the images underlying his charges were found in the unallocated space of his laptop's hard drive and this evidence was insufficient to show he "knowingly possessed the images charged in the indictment." We review a court's denial of a motion for a judgment of acquittal de novo. State v. Gray, 231 Ariz. 374, ¶ 2, 295 P.3d 951, 952 (App. 2013). And we will reverse the denial of a motion for a judgment of acquittal only "[w]here there is a complete absence of probative facts to support [the] conviction[s]." State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990).
¶5 "A motion for a judgment of acquittal should be granted only if 'there is no substantial evidence to warrant a conviction.'" Gray, 231 Ariz. 374, ¶ 2, 295 P.3d at 952, quoting Ariz. R. Crim. P. 20(a). "'Substantial evidence is more than a mere scintilla and 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. "[I]f reasonable minds can differ on inferences to be drawn" from the evidence, a trial court shall not enter a judgment of acquittal. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993). In considering the sufficiency of the evidence, we "resolve all reasonable inferences against the defendant." State v. Jensen, 217 Ariz. 345, ¶ 5, 173 P.3d 1046, 1049 (App. 2008).
¶6 In Jensen, this court examined whether images of child pornography located in the unallocated space of a computer's hard drive constituted sufficient evidence to support a conviction of sexual exploitation of a minor. Id. ¶¶ 2, 18. The defendant in that case argued the evidence was insufficient to show he knowingly possessed or received two images found in his temporary internet folder and one in the unallocated space on his hard drive because the evidence showed the images had been saved to these spaces automatically without any action on his part. Id. ¶¶ 2, 8. Yet, the evidence also established that the defendant actively sought child pornography by conducting internet searches with "key phrases and combinations of words often associated with child pornography and exploitation of minors." Id. ¶ 14.
¶7 This court determined that the defendant's "knowledge of receipt . . . is implicit in his intentional searches for child pornography." Id. ¶ 15. And we held "that the presence of two images in the temporary internet folder and the image in the unallocated cluster, coupled with the numerous syntax searches for words and phrases associated with child pornography, is evidence of voluntary action . . . in an effort to receive child pornographic images from the internet [and] meets the requirement of knowing receipt of the images regardless if [the defendant] intended to save them or knew his computer was saving them." Id. ¶ 18. We therefore concluded the evidence was more than sufficient to support a finding of knowing receipt of the images. Id.
¶8 As the state points out, Jensen controls the outcome of this case. Van Meter correctly notes that the detectives found the images in unallocated space on his computer, which is space on the computer that he could not access and which could contain images that appeared on his computer either because of unsolicited pop-up advertisements or because he unintentionally visited websites containing child pornography. But unallocated space also contains images that were once saved on a hard drive but subsequently deleted, and images from websites that have been viewed voluntarily.
Van Meter's reliance on federal case law that interprets the federal statute criminalizing the possession of child pornography is misplaced given that there is Arizona authority directly on point.
¶9 The state produced evidence showing that Van Meter conducted web searches on his computer for photographs of incest and for websites containing the terms "preteen" and "teen," which would include teens under the age of eighteen. The state also produced evidence of web searches on his former wife's computer with terms commonly used to find pornographic images of young girls. The web searches on his personal laptop, in combination with similar searches on another computer he used frequently, support an inference that Van Meter knowingly received the pornographic images of children retained in the unallocated space on his laptop's hard drive. See id. ¶¶ 15, 18.
¶10 Further, the state presented significant evidence of Van Meter's sexual interest in children under the age of fifteen. See Ariz. R. Evid. 404(c) (other acts evidence admissible to show aberrant sexual propensity when relevant to crime charged). Van Meter's former stepdaughter, Z.S., testified that he had sexually abused her from the time she was in seventh grade until she reached her junior year in high school, when he stopped for reasons unknown to her. And the detectives discovered on Van Meter's laptop evidence of multiple stories of females under the age of fifteen engaged in sexual acts with adults, a browsing history with websites containing incest stories, and bookmarked links to websites of incest stories. The analysis of E.V.'s computer produced evidence of numerous cartoon images of young children and adults engaged in sexual acts, sexual incest stories, and stories of sex between children and adults. From this evidence and his web searches, the jury reasonably could find that Van Meter had a strong sexual interest in children, particularly females under the age of fifteen, and reasonably infer that he deliberately sought and received the child pornography found on his hard drive. See Jensen, 217 Ariz. 345, ¶ 5, 173 P.3d at 1049.
¶11 Additionally, the state presented evidence that others with access to Van Meter's laptop and E.V.'s desktop computers did not conduct the searches for child pornography or access the websites found by forensic analysis. Van Meter and E.V.'s son and daughter both testified that they had not conducted the searches or accessed the websites. E.V. testified that her son had used her desktop to search for information on hunting and that her daughter had not used her desktop much at all. Although the state did not account for each possible person who used or had access to these computers, this evidence, combined with the evidence of Van Meter's sexual propensity, support an inference that Van Meter, and not someone else, conducted the searches and obtained the images on his personal laptop.
¶12 Consequently, the state presented sufficient evidence such that a reasonable person could conclude beyond a reasonable doubt that Van Meter knowingly received the pornographic images of children. See Gray, 231 Ariz. 374, ¶ 2, 295 P.3d at 952. And we need not decide whether the state failed to produce sufficient evidence of dominion and control because he was charged with, and the jury was instructed on, violations of § 13-3553(A)(2), which prohibits the knowing receipt of child pornography, not just knowing possession. See Jensen, 217 Ariz. 345, ¶¶ 12-13, 173 P.3d at 1051-52.
¶13 Van Meter further argues the evidence was insufficient because the state failed to produce evidence that he "possessed these images between April 1, 2009, and April 14, 2010" as alleged in the indictment. He correctly asserts that the forensic analysis of his laptop did not show a date or time associated with the five charged images. But E.V. provided testimony suggesting that Van Meter likely had moved back to Tucson in 2009 and that he had not had the laptop during the first three months of that year. Consequently, the jury reasonably could have inferred from her testimony that Van Meter did not have his laptop until some time after April 1, 2009. And because the sheriff's department seized the computer on April 14, 2010, Van Meter could not have received the charged images on the laptop after that date. Thus, the record contains sufficient evidence from which the jury could have concluded Van Meter received the images within the time specified by the indictment. See id. ¶ 21 (date of file in unallocated space reasonably could be inferred from other evidence).
Rule 404(c) Evidence
¶14 Van Meter next argues the trial court erred in admitting Z.S.'s testimony that he had sexually abused her because the evidence was "remote in time" and was "critically dissimilar" from the sexual exploitation charges in this case. We review the admission of evidence pursuant to Rule 404(c), Ariz. R. Evid., for an abuse of discretion. State v. Garcia, 200 Ariz. 471, ¶ 25, 28 P.3d 327, 331 (App. 2001).
Van Meter summarily asserts that the error in admitting this Rule 404(c) evidence was a violation of his constitutional rights to "due process and a fair trial." Yet, he has not developed this constitutional claim and therefore waives review of it. See State v. Tarkington, 218 Ariz. 369, n.1, 187 P.3d 94, 95 n.1 (App. 2008) (argument waived if not adequately developed).
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¶15 Rule 404(c) allows the admission of "evidence of other crimes, wrongs, or acts . . . if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the [sexual] offense charged." Before admission, the trial court must make specific findings that:
(A) The evidence is sufficient to permit the trier of fact to find that the defendant committed the other act.Ariz. R. Evid. 404(c)(1); Garcia, 200 Ariz. 471, ¶ 27, 28 P.3d at 331. The court must find sufficient evidence under Rule 404(c)(1)(A) by clear and convincing evidence. Garcia, 200 Ariz. 471, n.1, 28 P.3d at 331 n.1. And in balancing the probative and prejudicial nature of the evidence, the court must consider a number of characteristics of the other act, including remoteness, similarity, strength of the evidence supporting it, frequency, intervening events, and the circumstances of the other act. Ariz. R. Evid. 404(c)(1)(C). The rule does not create any "bright line test of remoteness or similarity." Ariz. R. Evid. 404 cmt. to 1997 amend.
(B) The commission of the other act 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.
(C) The evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other factors mentioned in Rule 403[, Ariz. R. Evid.].
¶16 The trial court held a hearing on Rule 404(c) evidence during which Z.S. testified in detail about four to five years of sexual abuse by Van Meter that ended approximately eleven to twelve years before the sheriff's department seized his laptop. The court found, by clear and convincing evidence, sufficient evidence to permit the trier of fact to find Van Meter committed these acts, and a reasonable basis to infer he had an aberrant sexual propensity involving children under the age of fifteen. And although the court noted that the remoteness of these acts was "problematic to some degree," it found the similarity, the strength of the testimony, and frequency to be strong. The court ruled it would allow Z.S.'s testimony after noting it would be substantially prejudicial but that a curative instruction would be given and Van Meter would have the opportunity for cross-examination.
¶17 At the time of the hearing, the trial court, on motion by the state, had joined this case with a separate case against Van Meter on charges of child molestation and sexual conduct with a minor under fifteen. The court later severed the charges in this case. After the severance, Van Meter asked the court to reconsider the admission of Z.S.'s testimony and questioned "the connection between the acts described by and alleged by [Z.S.] and the acts that are charged in the indictment." The court denied his request.
¶18 The trial court properly followed the procedure and applied the standards set out by Rule 404(c). After a hearing on Z.S.'s proposed testimony, the court made specific findings in accordance with Rule 404(c)(1). The record shows the court carefully considered relevant factors, such as remoteness, frequency, strength of the evidence, and similarity, when weighing the probative value of her testimony against its prejudicial effect. See Ariz. R. Evid. 404(c)(1)(C).
¶19 Nevertheless, Van Meter contends the abuse of Z.S. was too remote to be admissible because it "happened approximately 18 years prior to the current charges." He acknowledges that prior decisions by this court have approved the admission of evidence of other acts committed nearly two decades before the charged offenses, but claims these cases can be distinguished because the state in those cases had presented "expert testimony . . . [to] establish[] a continuing propensity to engage in sexually aberrant behavior." See State v. Salazar, 181 Ariz. 87, 88-89, 92 n.5, 887 P.2d 617, 618-19, 622 n.5 (App. 1994); State v. Weatherbee, 158 Ariz. 303, 304-05, 762 P.2d 590, 591-92 (App. 1988).
¶20 The record, however, shows Van Meter stopped abusing Z.S. only eleven to twelve years before his last possible receipt of the images that are the subject of the charged offenses. And Rule 404(c) does not require expert testimony "to establish relevancy in all cases of dissimilar or remote acts." State v. Arner, 195 Ariz. 394, ¶ 5, 988 P.2d 1120, 1122 (App. 1999). Rather, the rule requires a "'reasonable basis,' by way of expert testimony or otherwise, to conclude that the commission of the other act permits an inference that a defendant's aberrant sexual propensity is probative." Id., quoting Ariz. R. Evid. 404(c)(1)(B).
¶21 Van Meter further contends the trial court failed to consider that Z.S.'s abuse was "critically dissimilar" to the sexual exploitation charges. But after the sexual exploitation charges had been severed, Van Meter raised the similarity issue to the court in his request to reconsider its original ruling. And the court affirmed its original ruling despite any dissimilarity to the sexual exploitation charges.
¶22 Moreover, Van Meter's abuse of Z.S. for a period of four to five years that began when she was under the age of fifteen was strong evidence demonstrating his sexual interest in children under the age of fifteen. And he does not explain why it is unreasonable to infer that the sexual interest in children that compelled him to abuse Z.S. similarly would compel him to seek sexual images of children under the age of fifteen online. Thus, he does not show why this evidence did not provide a reasonable basis to infer his sexual interest in children was probative of his receipt or possession of child pornography, or why the dissimilarity would have required the trial court to conclude the value of the evidence was substantially outweighed by its prejudicial effect. See Ariz. R. Evid. 404(c)(1)(B), (C); Arner, 195 Ariz. 394, ¶ 5, 988 P.2d at 1122. Consequently, we conclude the court did not abuse its discretion in admitting Z.S.'s testimony. See Garcia, 200 Ariz. 471, ¶ 25, 28 P.3d at 331.
Disposition
¶23 For the foregoing reasons, we affirm Van Meter's convictions and sentences.