State v. Laughlin

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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. TODD ROBERT LAUGHLIN, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/16/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0011 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR 2005-032107-001 SE The Honorable Sherry K. Stephens, Judge The Honorable Helene F. Abrams, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Robert A. Walsh, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Judge ¶1 Todd Robert Laughlin ("Laughlin") appeals his convictions for four counts of sexual exploitation of a minor. Laughlin presents two primary issues on appeal. Laughlin argues the trial court erred when it admitted a number of uncharged images depicting minors engaged in exploitive exhibition and/or other sexual conduct in addition to the images that made the basis of the charges. Laughlin further argues the trial court erred when it refused to strike a juror for cause. For the reasons that follow, we affirm Laughlin's convictions. FACTUAL AND PROCEDURAL HISTORY ¶2 Laughlin was charged with ten counts of sexual exploitation of a minor after images depicting minors engaged in exploitive exhibition and/or other sexual conduct were found on his computer. As charged in this case, a person commits sexual exploitation of a minor if they knowingly distribute, transport, exhibit, receive, sell, purchase, electronically transmit, possess or exchange any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct. Rev. Stat. (A.R.S.) § 13-3553(A)(2)(2001). Laughlin convicted of nine counts after a six-day jury trial.1 Ariz. was Laughlin does not contest the sufficiency of the evidence to support his convictions. 1 Count eight was dismissed prior to trial. 2 ¶3 At the sentencing hearing, the state moved to dismiss five of the counts without any explanation other than it was "in the interest of justice." The trial court granted the motion and Laughlin was sentenced to four mitigated, consecutive terms of ten years' imprisonment. We provide additional details in the context of the issues addressed below. DISCUSSION A. Admission of Uncharged Images ¶4 As the first issue on appeal, Laughlin argues the trial court erred when it admitted thirty-seven or thirty-eight uncharged images as "other act" evidence pursuant to Arizona Rules of Evidence 404(b) and 404(c).2 We review the admission of evidence of other acts pursuant to Rule 404(b) for abuse of discretion. State v. Van Adams, 194 Ariz. 408, 415, ¶ 20, 984 P.2d 16, 23 (1999). Likewise, we review the admission of other act evidence pursuant to Rule 404(c) for abuse of discretion. State v. Garcia, 200 Ariz. 471, 475, ¶ 25, 28 P.3d 327, 331 (App. 2001). 1. Rules 404(b) and 404(c) ¶5 Evidence of other acts is admissible pursuant to Rule 404(b) if relevant and admitted for a proper purpose, such as to prove motive, opportunity, intent, preparation, plan, knowledge, 2 Laughlin's opening brief references both thirty-seven and thirty-eight images. 3 identity, or absence of mistake or accident. Ariz. at 415, ¶ 20, 984 P.2d at 23. Van Adams, 194 The purposes for admission identified in Rule 404(b) are illustrative and not exclusive. State v. Wood, 180 Ariz. 53, 62, 881 P.2d 1158, 1167 (1994). ¶6 Regarding propensity to Rule commit 404(c), aberrant "Evidence sexual of acts an is emotional admissible [pursuant to Rule 404(c)] to prove that an accused acted in conformity therewith." 988 P.2d 1120, 1121 State v. Arner, 195 Ariz. 394, 395, ¶ 3, (App. 1999). Rule 404(c) "permits the admission of evidence of uncharged acts to establish 'that the defendant had a character trait giving rise to sexual propensity to commit the offense charged.'" an aberrant Garcia, 200 Ariz. at 475, ¶ 26, 28 P.3d at 331 (quoting Ariz. R. Evid. 404(c)). As long as there is a reasonable basis to conclude the evidence of the other act permits an inference that a defendant s aberrant sexual propensity is probative, evidence of the other act is admissible. Arner, 195 Ariz. at 396, ¶ 5, 988 P.2d at 1122. ¶7 Before evidence of other acts may be admitted, it must be shown by clear and convincing evidence the other 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. State v. Lopez, 170 Ariz. 112, 117, 822 P.2d 465, 470 4 (App. 1991). It is only necessary that the uncharged prior acts be similar to the charged offense. Id. ¶8 requirements There are additional pursuant to Rule 404(c). for admission Before admitting evidence pursuant to Rule 404(c), the trial court must find: (A) The evidence is sufficient to permit the trier of fact to find the defendant committed the other act; (B) The commission of the other act provides a reasonable basis to infer the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged; [and] (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. Garcia, 200 Ariz. at 475, ¶ 27, 28 P.3d at 331 (quoting Ariz. R. Evid. 404(c)(1)). 2. ¶9 Procedural Background The procedural history of this issue is long and convoluted. The evidentiary hearing on the admissibility of these took images four days spread out over four months to complete. ¶10 Eleven months before trial, the state filed a motion to admit evidence of other acts pursuant to Rules 404(b) and 5 (c). In that motion, the state sought to admit two types of evidence. digital First, version of the an state sought uncharged to image admit a printed on which the and word "childlover" appeared and which depicted two women on a couch. Defendant admitted to police he possessed this image and that he printed the hard copy. The state sought to admit this image pursuant to Rule 404(b) only. The state also sought to admit "[t]estimony regarding the amount, location of, and statistical date information about files containing uncharged images and videos which depict apparent minors engaged in sexual conduct or exploitive exhibition." The motion did not seek admission of the uncharged images themselves. ¶11 Over the course of the four-day hearing, it was established police examined Laughlin's computer after it came to their attention it might contain contraband images. Software on the computer identified Laughlin as the registered owner. Video files of Laughlin were discovered on the computer as were audio files in which he identified himself. Police found no evidence to indicate Laughlin's roommate used his computer. Over 400 images of contraband were found on Laughlin's computer and on a compact disc he created. The disc had been created less than a half hour after Laughlin created a video of himself sitting at his computer. 6 ¶12 were The majority of the images were duplicates. forty-seven original images which depicted described generally as "child pornography." There what was The state brought charges for only ten of these original images. Many of the charged and uncharged images were created or accessed at the same time. A printed copy of the "childlover" image was also obtained by police. Digital copies of this same image were found on Laughlin's computer. ¶13 At the conclusion of the first day of the hearing, the trial court noted it was unclear as to what the state sought to admit into evidence. The state explained it sought to admit "Testimony regarding the amount, location of, and statistical date information video." about files containing uncharged images and The state explained it would have a detective testify about this information and describe the content of the uncharged images. The state argued that with the possible exception of the childlover image, it did not seek to admit copies of the uncharged images themselves. ¶14 The state then argued the uncharged images were admissible as other act evidence pursuant to Rule 404(b) to show identity, absence of mistake or accident, to show that Laughlin's roommate was not the person who placed the images on the computer and to show that Laughlin had knowledge of the images on his computer. Before the state could address Rule 7 404(c), the court continued the hearing and ordered the State to clarify its motion and provide additional information for the court's consideration. ¶15 The second day of the hearing, more specific information was provided regarding the number of images found on Laughlin's computer, how many of those images were originals and how many were duplicates. the At the conclusion of the second day, state explained to the court previously described information it about wanted to admit thirty-seven of the the uncharged images and their contents, but again only through the testimony of a detective. admit the uncharged The state argued that it would not images themselves, but would have a detective testify generally that the images "fit the statute, that they are child pornography" either by testifying as to the contents "in a general way" through comparison to the charged images or through "a conclusory statement that there were other images of charged." could child pornography, much like the ones that are If the court deemed it appropriate, the detective "assist in original images." the showing of any additional uncharged Laughlin objected to presenting descriptions of the contents of the uncharged images through the testimony of a detective and argued if evidence of the images was to be admitted, the determination of should be made by the jury. 8 what those images contained ¶16 The state once again argued the information was admissible pursuant to Rule 404(b) to show identity, absence of mistake or accident and to show Laughlin's knowledge, possession and control of the images. argued the evidence was Regarding Rule 404(c), the state admissible to aberrant sexual interest in children. show Laughlin had an At the completion of the second day of the hearing, the trial court continued the hearing again so that the court could view the uncharged images. court further ordered the state to provide The additional information regarding the images on Laughlin's computer. The third day of the hearing, a detective testified regarding the additional hearing information was continued sought again by and the However, the additional no court. argument was provided at that time. ¶17 The fourth day of the hearing, no additional testimony was provided. The parties once again presented their arguments regarding the why uncharged images should admitted pursuant to Rules 404(b) and 404(c). or should not be By this time, the state was willing to either admit testimony regarding the images or the images appropriate. only whichever the court deemed more However, the state emphasized it sought to admit testimony themselves. themselves, regarding the images and not the images The trial court took the matter under advisement. 9 ¶18 In a subsequent minute entry, the trial court held the State could admit the additional uncharged images pursuant to Rules 404(b) and 404(c). it considered the In making its ruling, the court noted pleadings, testimony and exhibits admitted over the course of the hearing as well as the arguments of counsel. at The court further noted it had viewed all the images issue. uncharged In images regard were to Rule 404(b), relevant to the prove court found identity, knowledge and absence of mistake or accident. the intent, The court further found the probative value of the evidence was not outweighed by the danger of unfair prejudice, confusion of the issues or other concerns identified in Rule 403. ¶19 In regard to Rule 404(c), the court made more detailed findings. evidence The court sufficient to found there permit was the clear jury possessed the images found on his computer. found there was clear and convincing and to convincing find Laughlin The court further evidence sufficient to permit the jury to find Laughlin possessed the printed copy of the childlover image and, therefore, had knowledge, possession and control computer. of The the other court images found these of children facts, found coupled on his with the circumstances of the possession of these additional images and the similar nature of all the images, were sufficient to provide a reasonable basis to infer Laughlin 10 had a character trait giving rise to an aberrant sexual propensity for sexual attraction to female children under the age of fifteen and to commit the offense of sexual exploitation of a minor. The court found was the evidentiary value of these images not substantially outweighed by the danger of unfair prejudice or any of the other concerns identified in Rules 404(c)(1)(C) or 403. ¶20 The court further explained its rulings were also based on the timeframe within which the alleged acts occurred; the similarities and dissimilarities of the images and the conduct depicted; the strength of the evidence that Laughlin knowingly possessed and accessed the images; the nature and frequency with which the images were accessed and stored on the computer and associated media in various forms and through various methods, and "the surrounding circumstances and relevant intervening events." ¶21 Despite all this, while the uncharged images were admitted into evidence at trial in an envelope, the images were never displayed to the jury nor were their contents described. The only exception appears to be the childlover image, which did not depict children. In fact, there was hardly any reference to the uncharged images at all. the jurors chose deliberations. to view We have no way of knowing whether the uncharged images during their Therefore, we have no way of knowing whether any 11 juror ever actually saw any of the uncharged images admitted into evidence. 3. Discussion ¶22 Laughlin raises three arguments admission of the uncharged images. were inadmissible because they regarding the Laughlin argues the images were irrelevant for various reasons; the trial court failed to make specific findings when it made its ruling as required by Rule 404(c)(1)(D), and the court erred when it failed to give the jury an instruction limiting its use of this evidence. 4. Relevance ¶23 Laughlin argues the uncharged images were irrelevant because there was no clear and convincing evidence he possessed the images; because there was no evidence which directly linked him to the uncharged mistake and accident images; were and never because at identity, issue because intent, his sole defense was he did not commit the offenses. ¶24 We find no abuse of discretion. assertions to the contrary, sufficient to permit the the trial Despite Laughlin's evidence court to was find more clear than and convincing evidence Laughlin knowingly possessed the uncharged images. defenses Further, identity and intent were at issue, as were the of mistake and/or accident. Among other defenses, Laughlin expressly asserted the defenses of mere presence, lack 12 of specific intent, lack of identification and act of God. issue when the jury Laughlin s request. was criminal intent, mistaken Intent was further placed at instructed on mere presence at Mistake and/or accident were further placed in issue when Laughlin testified his computer would open web pages on its own and that he would sometimes wake in the morning to find his computer had spontaneously searched for, located and opened up to 160 web pages. every element of the Finally, the state had to prove offense contested certain elements. regardless of whether Laughlin See State v. Dickens, 187 Ariz. 1, 18, 926 P.2d 468, 485 (1996)(burden to prove every element of the offense is not relieved by a defendant s failure to contest elements of the offense). Therefore, the trial court did not abuse its discretion when it found the uncharged images were relevant. 5. The Failure to Make Specific Findings ¶25 Regarding the failure to make specific findings, as explained above, Rule 404(c)(1)(D) provides that when admitting evidence of another act pursuant to Rule 404(c), the trial court shall make specific findings regarding the sufficiency of the evidence the defendant committed the other act; whether the commission of the other act provides a reasonable basis to infer the defendant had an aberrant sexual propensity to commit the charged offense; and whether the evidentiary value of the other 13 act evidence is outweighed by danger of unfair prejudice or other factors identified in Rule 403. Ariz. R. Evid. 404(c)(1)(D). ¶26 However, Laughlin failed to object to the sufficiency of the trial court's findings. fundamental error. P.2d 626, 627 Therefore, we review only for State v. Gendron, 168 Ariz. 153, 154, 812 (1991). "To establish fundamental error, [a defendant] must show that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even once fundamental error has been established, a defendant must still demonstrate the error was prejudicial. ¶27 Id. at ¶ 26. Based on the trial court's findings outlined above, we find no error, fundamental or otherwise. The trial court's findings comply were 404(c)(1)(D). more than sufficient to with Rule We fail to see how Laughlin was prejudiced by any failure to provide more specificity or further explanation. 6. The Failure to Give a Limiting Instruction ¶28 Finally, in regard to the failure to give a limiting instruction, Laughlin failed to request a limiting instruction at the time the final instructions were discussed and/or finalized and further failed to object to the omission of a 14 limiting instruction. Therefore, no limiting instruction was required in the context of Rule 404(b). See State v. Mott, 187 Ariz. 536, 546, 931 P.2d 1046, 1056 (1997). 404(c), while instruction Rule shall 404(c)(2) be given provides whenever Regarding Rule that a limiting evidence is admitted pursuant to Rule 404(c), we find no fundamental error. First, fundamental error does not exist where the trial court does not give a limiting instruction sua sponte. State v. Taylor, 127 Ariz. 527, 530-31, 622 P.2d 474, 477-78 (1980). Further, the failure to request a limiting instruction "constitutes a waiver of any right to the instruction." Id. at 531, 622 P.2d at 478. Finally, because we can never know whether the jury actually viewed the uncharged images, the existence of any prejudice is purely speculative. See Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608 (even where fundamental error occurred, a defendant must still demonstrate the error was prejudicial in order to be entitled to relief). B. ¶29 The Refusal to Strike a Juror for Cause As the final issue on appeal, Laughlin contends the trial court erred when it refused to strike Juror 3 for cause. During voir dire, Juror 3 expressed concerns regarding whether she could be fair and impartial due to the number of charges pending against Laughlin. When asked if she would be able to follow an instruction directing the jury to consider each charge 15 independently, Juror 3 responded, "I don't know. He keeps looking at me, and I don't like the way he's looking at me. I don't think I can be. I don't like it." were asked of Juror 3. Both the state and Laughlin later agreed Juror 3 should be struck for cause. No further questions However, when the trial court indicated which jurors would be struck for cause, Juror 3 was not identified. why Juror 3 The trial court offered no explanation for not struck sought otherwise was and neither an explanation. party Neither objected party used nor a peremptory strike to remove Juror 3, who was ultimately the first person selected to serve on the jury. ¶30 We do not address whether the trial court erred when it failed to strike Juror 3 for cause because Laughlin failed to preserve this issue for appeal. "[A] defendant is required to use an available peremptory strike to remove an objectionable juror whom the trial court has refused to remove for cause in order to preserve the issue for appeal. any error." 214, 218 Failing to do so waives State v. Rubio, 219 Ariz. 177, 181, ¶ 12, 195 P.3d (App. 2008) (footnote omitted). Because Laughlin failed to exercise a peremptory strike to remove Juror 3, he has waived any error. 16 CONCLUSION ¶31 Because we find no error, we affirm Laughlin's convictions. /s/ _________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ___________________________________ PATRICK IRVINE, Judge 17

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