STATE v. WILLEKENS

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) EDUARD JAN BERT WILLEKENS, ) ) Appellant. ) ) DIVISION ONE FILED: 12/27/2012 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CR 11-0804 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006563-001 The Honorable Connie Contes, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Division Chief Counsel Joseph T. Maziarz, Section Chief Counsel And Robert A. Walsh, Assistant Attorney General Criminal Appeals Section Attorneys for Appellee Phoenix Droban & Company, P.C. By Kerrie M. Droban Attorneys for Appellant Anthem W I N T H R O P, Chief Judge ¶1 Eduard convictions and Jan Bert Willekens sentences for ( Appellant ) seven counts appeals of his sexual exploitation of photographing, a minor and videotaping, three counts filming, or of surreptitious digitally recording ( surreptitious videotaping ) involving his stepdaughter ( the victim ). support Appellant argues (1) the evidence is insufficient to his discretion sentences by convictions, admitting constitute (2) the evidence cruel and trial of court prior acts, unusual abused and its his For punishment. (3) the reasons that follow, we affirm. I. ¶2 FACTUAL AND PROCEDURAL HISTORY In September 2010, a grand jury issued an indictment, charging Appellant with seven counts of sexual exploitation of a minor, a class two felony and dangerous crime against children, and four felony, counts after of surreptitious members of the videotaping, victim s family a class five discovered a videotape containing scenes of the victim in two bathrooms while she was nude and/or in the process of undressing. The indictment alleged that the incidents that were the basis for the charges occurred between November 1996 and November 2000, when the victim was between eleven and fourteen years old. ¶3 A jury found Appellant guilty of all seven counts of sexual exploitation of a minor and three counts of surreptitious videotaping. 1 The trial court 1 sentenced Appellant to an During trial, the trial court granted the State s motion to dismiss one count of surreptitious videotaping. 2 aggregate term of 120.5 years imprisonment in the Arizona Department of Corrections. ¶4 Appellant filed a timely notice of appeal. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12120.21(A)(1) (West 2012), 2 13-4031, and 13-4033(A)(1) and (4). II. A. ANALYSIS Sufficiency of the Evidence ¶5 Appellant argues the trial court erred in denying his motion for judgment of acquittal, see Ariz. R. Crim. P. 20, because the State s evidence was insufficient to support his convictions. A judgment of acquittal is appropriate only if there is no substantial evidence to warrant a conviction. Substantial evidence is proof that reasonable persons Id. 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) (citation omitted). reversible error based on insufficiency of the evidence For to occur, there must be a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). aside a jury verdict for insufficient 2 We will not set evidence unless it Unless otherwise noted, we cite the current Westlaw version of the statutes if no changes material to our analysis have occurred since the relevant dates. 3 clearly appear[s] that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) (citation omitted). ¶6 As surreptitious charged in videotaping this if case, the person a person knowingly commits videotapes, digitally records, or by other means secretly views or records another person without that person s consent while the other person is in a restroom, bathroom, or other location where that person has a reasonable expectation of privacy, and the other person is dressing, 3019(A)(1). 3 undressing, or nude. See A.R.S. § 13- Also as charged in this case, a person commits sexual exploitation of a minor if the person knowingly records, films, photographs, develops, or duplicates any visual or print medium in which a minor under fifteen years of age is engaged in exploitive exhibition. See A.R.S. § 13-3553(A)(1). 4 The term 3 Appellant was charged under former A.R.S. § 13-3018(A)(1)(2), which came into effect in 1998. See 1998 Ariz. Sess. Laws, ch. 289, § 11 (2nd Reg. Sess.). In 2000, the statute was renumbered as A.R.S. § 13-3019 and slightly amended. See 2000 Ariz. Sess. Laws, ch. 189, §§ 21, 23 (2nd Reg. Sess.). The legislature also revised the statute in 2006. See 2006 Ariz. Sess. Laws, ch. 146, § 2 (2nd Reg. Sess.). The amendments do not impact our analysis. 4 In 1996, before Appellant committed the charged crimes, the legislature amended § 13-3553 to include the term exploitive exhibition. See 1996 Ariz. Sess. Laws, ch. 112, § 3 (2nd Reg. Sess.). The statute was also amended during the timeframe in which Appellant committed his crimes. See 1998 Ariz. Sess. 4 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). 5 Appellant argues on appeal that there was no evidence he made the videotape. 6 ¶7 In our review of the record, we construe the evidence in the light most favorable to sustaining the verdict, and we resolve all reasonable inferences against Appellant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). We also draw all reasonable inferences that support the verdict. State v. Fulminante, 193 Ariz. 485, 494, ¶ 27, 975 P.2d 75, 84 (1999). Additionally, we resolve any conflict in the evidence Laws, ch. 147, § 3 (2nd Reg. Sess.); 1999 Ariz. Sess. Laws, ch. 261, § 29 (1st Reg. Sess.) (changing the term visual or print medium to visual depiction ); 2000 Ariz. Sess. Laws, ch. 189, § 28 (2nd Reg. Sess.). These amendments, as well as subsequent amendments to the statute, do not impact our analysis in this case. 5 In 1996, before Appellant committed his crimes, the legislature amended A.R.S. § 13-3551, in part to provide a definition for the term exploitive exhibition. See 1996 Ariz. Sess. Laws, ch. 112, § 1 (2nd Reg. Sess.). During the timeframe in which Appellant committed his crimes, the legislature further amended § 13-3551. See 1999 Ariz. Sess. Laws, ch. 261, § 27 (1st Reg. Sess.); 2000 Ariz. Sess. Laws, ch. 189, § 27 (2nd Reg. Sess.) (renumbering the definition of the term exploitive exhibition from subsection (1) to subsection (4)). These amendments, as well as a subsequent amendment to the statute, do not impact our analysis in this case. 6 Although Appellant also argues there was no evidence he possessed the videotape, possession is not an element of either offense as charged in this case. 5 in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We do not weigh the evidence, however, because that is the function of the jury. See id. ¶8 As stepfather. we have Appellant noted, Appellant was and victim s mother the approximately nineteen years. the were victim s married In February 2010, the victim s mother took the children, moved in with her parents, and began the process to divorce Appellant. Shortly thereafter, the victim s mother and grandmother returned to Appellant s home, where Appellant still lived, and retrieved a number of items, including many videotapes the family had made over the years. In a subsequent review of the tapes to determine which should be retained and which should be discarded, the victim s grandmother discovered the videotape that resulted in the charges against Appellant. ¶9 The video contained a number of scenes of the victim when she was as young as eleven or twelve years old and as old as thirteen or fourteen years old. The victim s hairstyle and physical development changed from scene to scene, and the scenes were not in chronological order. Each scene depicted the victim in either the master bathroom of the house or the bathroom used by the children, and each scene was videotaped through an open door. The victim sometimes left the bathroom door open when she 6 bathed. scene Some of the scenes contained loops, in which the was momentarily reversed to repeatedly show the same action, such as the victim getting out of the bathtub in one scene or taking off her underwear in another. ¶10 Each scene that related to a count of surreptitious videotaping showed the victim nude, sitting and/or standing in a bathtub. Each scene that related to a count of sexual exploitation of a minor showed the victim in a bathroom while her pubic area and/or genitals were visible, usually after she stood to get out of the bathtub. The scenes could be differentiated by the presence of a window in one of the two bathrooms, the victim s physical development and hairstyle, the victim s activities, changes in camera position, appearance of other objects in the scene. appear to know she was being videotaped. and/or the The victim did not Neither the victim s grandmother nor mother made the video, and neither knew how to edit or transfer video. Also, the victim did not make the video. ¶11 Appellant owned two video cameras. He admitted during the investigation of this case and in the divorce proceedings that, when the victim was nine or ten years old, he surreptitiously videotaped her while she was nude and playing in an empty bathtub. Appellant admitted he knew when the victim would be in the bathroom, so he put the video camera in the 7 bedroom and filmed her through the open bathroom door. Appellant claimed he did so only because he was curious and wanted to check the victim s development. Several years later, the victim caught Appellant attempting to use a mirror to look under the bathroom door and view her while she was nude. another incident, the victim s mother caught In Appellant attempting to look under the bathroom door and view the victim while the victim was nude. ¶12 The evidence was sufficient to permit a rational jury to find beyond a reasonable doubt that Appellant committed the charged offenses of surreptitious exploitation of a minor. videotaping and sexual Although reasonable minds could differ regarding inferences to be drawn from the evidence, that was a matter for the jury. 631 P.2d 112, 113 See State v. Hickle, 129 Ariz. 330, 331, (1981). Further, although much of the evidence was circumstantial, [t]he probative value of evidence is not reduced because it is circumstantial. State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995) (citation omitted). The conviction may be proved by circumstantial evidence alone. State v. Burton, 144 Ariz. 248, 252, 697 P.2d 331, 335 (1985) (citation omitted). Finally, although Appellant suggests the State failed to sufficiently disprove that someone else with access to the victim and her home may have made the videotape, it is unnecessary for the prosecution 8 to negate every conceivable hypothesis of innocence when established by circumstantial evidence. guilt has been State v. Nash, 143 Ariz. 392, 404, 694 P.2d 222, 234 (1985) (citation omitted). B. Evidence of Other Acts ¶13 As previously noted, the State introduced evidence of two prior incidents in which the victim and her mother caught Appellant attempting to look at the victim under the bathroom door. Rule The trial court admitted the evidence pursuant to Arizona of Evidence ( Rule ) opportunity, and intent. 7 404(b) as evidence of motive, Appellant argues the trial court erred when it admitted this evidence because there was insufficient evidence to show the incidents occurred, and these incidents were irrelevant, not sufficiently similar to the charged offenses, unfairly prejudicial, and not admitted for a proper purpose. 8 ¶14 We review the admission of evidence pursuant to Rule 404(b) for an abuse of discretion. State v. Van Adams, 194 Ariz. 408, 415, ¶ 20, 984 P.2d 16, 23 (1999). acts is admissible pursuant to Rule 404(b) Evidence of prior if relevant and 7 Although the majority of Appellant s argument on appeal addresses admission of this evidence in the context of Rule 404(c), the trial court expressly held that it was not admitting evidence of these two prior incidents pursuant to Rule 404(c). Therefore, we do not address Rule 404(c). 8 Appellant raises no issue regarding admission of the evidence that he surreptitiously videotaped the victim while she was in the bathroom nude when she was nine or ten years old. 9 admitted for a proper purpose, such as to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Before a court may admit evidence of other acts, however, the proponent must show by the clear and convincing standard that the act was committed and that the defendant committed it. State v. Prion, 203 Ariz. 157, 163, ¶ 37, 52 P.3d 189, 195 (2002). An exact replication of the charged offense to the prior acts is not required for the evidence to be admissible. State v. Lopez, 170 Ariz. 112, 117, 822 P.2d 465, 470 (App. 1991). ¶15 The trial court did not abuse its discretion when it admitted evidence of the two other acts. Regarding the sufficiency of the evidence, the victim and her mother provided substantial testimony sufficient to permit the jury to find by clear and convincing evidence that Appellant committed the other acts. 9 Further, evidence that Appellant had attempted to look under the bathroom door to view the victim in the nude was relevant to establish his motive, opportunity, and/or intent. Regarding similarity, the act of attempting to look under a bathroom door to surreptitiously view the victim in the nude is 9 Appellant argues on appeal it would be impossible for him to look under a bathroom door because of his prosthetic leg. The only evidence Appellant introduced at trial was that he had a prosthetic leg of an undetermined type. There was no evidence his prosthetic leg limited him in such a way as to make it impossible for him to look under a bathroom door. 10 sufficiently similar to the charged offenses to render the other acts admissible pursuant to Rule 404(b). was not substantially prejudice. establishing that outweighed by the Finally, instruction court limited the Further, the evidence trial the consideration factors identified danger gave of in of the unfair jury an this evidence to Rule 404(b) and prohibited consideration of the evidence for other purposes. presume that the jury followed its instructions. We See State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996). 10 C. ¶16 Cruel and Unusual Punishment Because the seven counts of sexual exploitation of a minor were dangerous crimes against children, the trial court sentenced Appellant for each of those counts pursuant to former A.R.S. § 13-604.01. 11 Subsection (D) of the statute provides that the trial court shall sentence a defendant convicted of sexual exploitation of a minor as a dangerous crime against children to a presumptive term of seventeen years imprisonment. The sentence years. See may be former mitigated A.R.S. § or aggravated 13-604.01(F); by see up also to seven current 10 Because we find no error in the admission of the evidence pursuant to Rule 404(b), we need not address the trial court s determination that the evidence would also have been admissible pursuant to A.R.S. § 13-1420. 11 See current A.R.S. § 13-705(D). Former A.R.S. § 13-604.01 was renumbered as § 13-705 and amended effective January 1, 2009. See 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 29 (2nd Reg. Sess.). 11 A.R.S. § 13-705(D). Subsection (K) of former A.R.S. § 13-604.01 provides that a sentence for a dangerous crime against children shall be served consecutively to any other sentence. See also current A.R.S. § 13-705(M). ¶17 Appellant argues that his seventeen-year sentences for sexual exploitation of a minor, both individually and in the aggregate, constitute cruel and unusual punishment. de novo whether punishment. a sentence constitutes cruel We review and unusual See State v. Kasic, 228 Ariz. 228, 231, ¶ 15, 265 P.3d 410, 413 (App. 2011). ¶18 The punishment. Eighth Amendment bars cruel and unusual State v. Berger, 212 Ariz. 473, 475, ¶ 8, 134 P.3d 378, 380 (2006). In a noncapital setting, this means that the sentence may crime. imposed Id. at ¶ 10. disproportionate, a not be grossly disproportionate to the In analyzing whether a sentence is grossly court first determines if there is a threshold showing of gross disproportionality by comparing the gravity of the offense and the harshness of the penalty. Id. at 476, ¶ 12, 134 P.3d at 381 (quoting Ewing v. California, 538 U.S. 11, 28 substantial (2003)). deference In to doing the so, the court legislature and must accord its policy judgments as reflected in statutorily mandated sentences. at ¶ 13. Id. If a legislature has reasonable grounds to believe a sentence advances the goals of that state s criminal justice 12 system in furthers rational any the substantial State s legislative way, penological judgment, and the goals sentence and entitled thus arguably a deference, to reflects a sentence is not grossly disproportionate and the analysis need not continue further. Id. at 477, (quoting Ewing, 538 U.S. at 28, 30). that a sentence in a noncapital ¶ 17, 134 at 382 It is exceedingly rare case will prohibitions against cruel and unusual punishment. ¶19 P.3d violate the See id. A seventeen-year sentence for sexual exploitation of a minor is not grossly disproportionate to the crime. It is evident beyond the need for elaboration that a State s interest in safeguarding the physical and psychological well-being of a minor is compelling. Id. at ¶ 18 (quoting Osborne v. Ohio, 495 U.S. 103, 109 (1990)). Our legislature has a reasonable basis to believe that the lengthy sentences it has prescribed for sexual exploitation of a minor advance the goals of the Arizona criminal justice system in a substantial way. 478, ¶ 23, 134 P.3d at 383. Id. at A ten-year minimum sentence for sexual exploitation of a minor based on the mere possession of a single image of other conduct crime. sexual a child is engaged not in grossly exploitive disproportionate See id. at 474, ¶ 1, 134 P.3d at 379. 12 12 The United States Supreme Court denied Berger. Berger v. Arizona, 549 U.S. 1252 (2007). 13 exhibition to or the Likewise, we certiorari in find a seventeen-year presumptive sentence for sexual exploitation of a minor based on the creation of images of a child engaged in exploitive exhibition or other sexual conduct is not grossly disproportionate to the crime. Finally, the fact that the seventeen-year sentences must be served consecutively is not legally significant. [I]f the sentence for a particular offense is not disproportionately long, it does not become so merely because separate it offense is or lengthy in aggregate. consecutive because the to another consecutive sentence for sentences a are Berger, 212 Ariz. at 479, ¶ 28, 134 P.3d at 384 (citation omitted). III. ¶20 CONCLUSION Appellant s convictions and sentences are affirmed. _______________/S/___________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ________________/S/______________ MICHAEL J. BROWN, Presiding Judge _______________/S/_______________ JOHN C. GEMMILL, Judge 14

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