State v. Wolfe

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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. REXFORD GENE WOLFE, Appellant. No. DIVISION ONE FILED: 03/01/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CR 09-0897 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in La Paz County Cause No. S1500CR200900087 The Honorable Michael J. Burke, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Robert A. Walsh Attorneys for Appellee David Goldberg Attorney for Appellant H A L L, Judge Phoenix Fort Collins ¶1 Defendant, Rexford Gene Wolfe, appeals from his convictions for ten counts of sexual exploitation of a minor, dangerous crimes against children and class two felonies. For reasons set forth more fully below, we affirm. FACTS1 AND PROCEDURAL HISTORY ¶2 counts On of March sexual 31, 2009, defendant exploitation of a was indicted minor, against children and class two felonies. dangerous on ten crimes The relevant facts presented at trial are not disputed. ¶3 Defendant approximately four avidly years collected in the late child pornography 1970s. In 2002, for Jim Jarvis, who cared for defendant s elderly mother, Dale, for the ten years preceding her death, called defendant to inform him that Dale had died. Dale left her property in Arizona to Jarvis and defendant asked to store some of his belongings in a shed located on the property. and cleaned out the shed. Jarvis agreed to defendant s request Shortly thereafter, defendant drove numerous locked trunks from his residence and storage facility in California to Jarvis home in Arizona. Defendant, alone, transported the trunks from his truck into the shed. Defendant then placed a padlock on the shed, gave Jarvis a key and left. 1 We view the facts in the light most favorable to sustaining the jury s verdicts and resolve all reasonable inferences against defendant. State v. Vendever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 2 Defendant neither informed Jarvis of the nature of the items stored in the shed nor returned to Jarvis property. ¶4 In 2008, Jarvis decided to clean out the shed so he could use it for storage. Jarvis lost the key defendant had given him and broke the padlock to the shed. breaking the locks inspecting the collections of continued defendant s contents. The Playboy Penthouse opening pornography on became the and trunks, individual first two [] the worse trunks trunks magazines. however, progressively He then began contained As nature and and Jarvis of the worse, and Jarvis stopped emptying the shed and went to bed because [i]t was sickening. following When Jarvis resumed cleaning out the shed the morning, he opened more trunks and found numerous magazines containing child pornography and bestiality that were indescribably terrible and sickening. Jarvis found a collection of newspaper In the final trunk, clippings documenting changes in child pornography laws. ¶5 Jarvis then contacted the police and asked them to seize defendant s belongings. The detective that investigated the case testified that the items of child pornography at issue2 2 Although thousands of images of child pornography were seized, the State sought charges relating to only ten images. 3 involved children that were clearly under fifteen years of age.3 He also testified that, in addition to the pornography, defendant stored several personal items in the trunks, including his social security card, his high school yearbook, his high school and college diplomas, and numerous letters the Department of Treasury U.S. Customs Service had mailed him in the late 1970s and early 1980s informing him obscene merchandise he had purchased had been seized. books on pedophilia and The trunks also contained several incest. Finally, the detective testified that each trunk contained items bearing defendant s name, whether personal belongings or mailings. ¶6 Following the State s presentation of evidence, defendant moved for directed verdicts pursuant to Arizona Rule of Criminal Procedure 20, which the trial Defendant then testified on his own behalf. began collecting all kinds of court denied. He admitted that he pornography, including child pornography, after he was discharged from the military in 1976. He stated that he placed his pornography collection in storage, along with his personal items, in 1980 or 1981. He further stated that he transported his pornography collection from a storage facility in California to Jarvis home as a cost-saving measure, and noted that he had paid a lot of money to store 3 Defendant did not dispute that the pornographic images involved children under the age of fifteen. 4 the pornography in California. He claimed that he essentially forgot about his belongings stored at Jarvis home and that he had no further interest in the stuff. ¶7 On cross-examination, defendant further admitted that he alone transported the child pornography from California to Arizona in 2002. scrapbook of pornography He also admitted that he had maintained a newspaper and child clippings detailing molestation laws. changes He to child disavowed any ownership of the pornography, however, and stated that if anyone was to be charged with possession of child pornography, it should be Jarvis. ¶8 A jury found defendant guilty as charged. At the November 30, 2009 sentencing hearing, the trial court found only mitigating child factors (absence pornography defendant to was of legal mitigated, any when criminal history purchased) consecutive and ten-year and the sentenced terms of imprisonment on each count. ¶9 Defendant timely appealed. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) (2003), 13-4031 and -4033 (2010). 5 sections 12-120.21(A)(1) DISCUSSION I. Sufficiency of the Evidence ¶10 Defendant denying his defendant contends motions argues for that that the directed the State trial court verdict. failed erred by Specifically, to prove that he possessed the child pornography in 2002 when he brought the property to Jarvis home in Arizona. ¶11 We review directed verdict a for trial an court s abuse of denial of discretion a motion for and will only reverse if there is not substantial evidence to support the conviction. State v. Henry, 205 Ariz. 229, 232, ¶ 11, 68 P.3d 455, 458 (App. 2003). Substantial evidence may be direct or circumstantial and is evidence that a reasonable jury may accept as sufficient to find guilt beyond a reasonable doubt. Id. A trial court must submit a case to the jury if reasonable minds could differ on the inferences to be drawn from the evidence. Id. We sustaining view the the evidence trial court s in the ruling, light State most v. favorable Sullivan, to 205 Ariz. 285, 287, ¶ 6, 69 P.3d 1006, 1008 (App. 2003), and if conflicts in the evidence exist, we resolve them in favor of sustaining the verdict. State v. Salman, 182 Ariz. 359, 361, 897 P.2d 661, 663 (App. 1994). ¶12 To secure a conviction for sexual exploitation of a minor, as charged in the indictment, the State needed to prove 6 that defendant which a knowingly is minor possessed in sexual conduct. State was engaged a visual exploitive depiction exhibition See A.R.S. § 13-3553(A)(2) (2010). required to demonstrate that or in other Thus, the defendant had actual physical possession of the pornography or otherwise exercised dominion and control over it. ¶13 See A.R.S. § 13-105(33) (2010). In this case, the undisputed evidence reflects that defendant purchased numerous materials that depicted minors engaged in exploitive exhibition or other sexual conduct. undisputed evidence transported these Jarvis home. also reflects voluminous that, materials in 2002, from he The alone California to Moreover, the record reflects that defendant, alone, moved the locked trunks of pornography from his vehicle and arranged them in Jarvis shed. Thus, contrary to defendant s argument, Jarvis was not the only person in actual possession of the materials during the relevant time period. Rather, defendant knowingly exercised dominion and control over the child pornography in Arizona the moment his vehicle entered the state and he physically possessed the child pornography while he moved it from his vehicle and placed it in Jarvis shed. Therefore, the trial court did not abuse its discretion by denying defendant s motions for directed verdict. 7 II. Prosecutorial Misconduct ¶14 Defendant prosecutorial suggesting child argues misconduct that during defendant pornography via that had the its closing continued the State internet, to engaged argument view (2) and by in (1) collect characterizing defendant s assertion that Jarvis, not he, possessed the child pornography as arrogant and demonstrating a lack of remorse, and (3) stating that the child pornography represents crimes against children. ¶15 To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process, State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)), and was so pronounced and persistent that it permeate[d] the entire atmosphere of the trial. State v. Rosas-Hernandez, 202 Ariz. 212, 218-19, ¶ 23, 42 P.3d 1177, 1183-84 (App. 2002) (quoting State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997)). Prosecutorial misconduct constitutes reversible error only if (1) misconduct exists and misconduct (2) could a have reasonable affected denying defendant a fair trial. likelihood exists the verdict, jury s that thereby State v. Anderson, 210 Ariz. 327, 340, ¶ 45, 111 P.3d 369, 382 (2005) (citation omitted). 8 the ¶16 During closing, the prosecutor argued, in relevant part: Child pornography is like a prize to this defendant. It s his trophy. That s why he keeps it. He cherished the child pornography. He could not get rid of it. If he wanted to get rid of it, he could ve gotten rid of it. He chose not to. I asked him a question about the computer yesterday. He said, [y]es, I have a computer at my house. As you know, with technological advancements, you don t need the hard copies anymore. He could easily have child pornography on his computer at home. It s easier. It s less risky. You can download it. You can hold more child pornography. He just advanced with the times. He didn t get rid of it. You also got a little glimpse into the arrogance of this defendant yesterday, severe arrogance and a lack of remorse. Jim Jarvis took care of his mother up until the day she died. This defendant said yesterday he left child pornography at Mr. Jarvis s home, didn t tell Mr. Jarvis it was child pornography; and he told you, the jury, that Mr. Jarvis is responsible for it. That s the height of arrogance and lack of remorse. Those pictures represent crimes. All of those children are someone s children. They may be from the 70s, but they re someone s children, and they ve all been victimized, and to state it s a victimless crime is the height o[f] ignorance. This is a victim crime. And that defendant right there, he took his sexual gratification through the abuse of children. Keep that in mind when you re looking at those photos. It s not a victimless crime. ¶17 Defendant did not object to these arguments in the trial court, so we review for fundamental error only. State v. Roque, 213 Ariz. 193, 228, ¶ 154, 141 P.3d 368, 403 (2006). 9 Prosecutorial misconduct constitutes fundamental error only when it is so trial. egregious as to deprive the defendant of a fair State v. Hernandez, 170 Ariz. 301, 307, 823 P.2d 1309, 1315 (App. 1991). ¶18 Defendant first suggestion that pornography online constituted fundamental contends defendant may argued that continue matters error. outside Although the to prosecutor s access the child evidence defendant and correctly notes that there was no evidence presented to the jury that demonstrates he continues to view child pornography, we do not conclude that the undermine prosecutor s defendant s claim that statement, he attempting abandoned completely to the practice, constitutes fundamental error. Even assuming that the prosecutor s statement given evidence trial at was improper, satisfying the elements the undisputed of defendant s charges, we do not find that this brief comment affected the outcome of the verdicts or was so egregious as to deprive defendant of a fair trial. See Hernandez, 170 Ariz. at 307, 823 P.2d at 1315. ¶19 Next, characterization defendant of him as contends arrogant constitutes fundamental error. that the and lacking prosecutor s in remorse Defendant acknowledged that he failed to inform Jarvis that he was storing illegal materials in his shed, but nonetheless asserted that Jarvis should be legally 10 responsible for the contraband. the height of arrogance. prosecutor s argument The prosecutor argued this was Contrary to defendant s claim, the was not an impermissible comment on defendant s claim of innocence; instead, the prosecutor simply noted that defendant attempted to inculpate a person who indisputably had no knowledge of the child pornography and thus committed no crime. We do not find that the prosecutor s statement constitutes error, fundamental or otherwise. ¶20 Similarly, we do not find that the prosecutor s statement that the children depicted in the pornography were victimized was error. There was no dispute at trial that all of the children depicted in the pornography were clearly under the age of fifteen and therefore all sexual acts upon them were necessarily crimes. See State v. Berger, 212 Ariz. 473, 482, ¶ 45, 134 P.3d 378, 387 (2006) (noting the production of images of child pornography Therefore, defendant s require[s] claim of the abuse prosecutorial of children ). misconduct is without merit. III. Constitutionality of the Sentence ¶21 minimum Defendant prison asserts terms of that ten his years mandatory per count consecutive of sexual exploitation of a minor violates the constitutional prohibitions against cruel and unusual punishments. VIII, Ariz. Const. art. 2, 11 § 15. See U.S. Const. amend. Although defendant acknowledges that this very sentence was recently upheld as constitutional by the supreme court in Berger, 212 Ariz. at 481, ¶ 39, 134 P.3d distinguishable. ¶22 We at 386, he asserts that Berger is We disagree. review the constitutionality of a sentencing statute de novo and construe it, when possible, to uphold its constitutionality. State v. Davolt, 207 Ariz. 191, 214, ¶ 99, 84 P.3d 456, 479 (2004). As outlined in Berger, we review challenges to the length of a prison sentence under a two-prong analysis. 81. Berger, 212 Ariz. at 475-76, ¶ 11, 134 P.3d at 380- First, as a threshold issue, we determine whether defendant has shown gross disproportionality between the gravity of the offense and the harshness of the penalty. Id. at 476, ¶ 12, 134 P.3d at 381. Second, if we conclude a comparison leads to an inference gross of disproportionality, we then examine the sentences the state imposes on other crimes and the sentences other states impose for the same crime. rule, [we] will not consider the Id. imposition sentences in a proportionality inquiry[.] [A]s a general of consecutive Id. at 479, ¶ 27, 134 P.3d at 384 (internal quotation omitted). ¶23 As noted in Berger, a sentence need not be strictly proportional to the crime. Instead, only extreme Id. at 476, ¶ 13, 134 P.3d at 381. sentences that are grossly disproportionate to the crime are deemed unconstitutional. 12 Id. (internal quotation omitted). disproportionate, threshold and inquiry, penological goals a if A prison sentence is not grossly court need arguably thus and it not reflects judgment, entitled to deference. proceed furthers a beyond the rational the State s legislative Id. at 477, ¶ 17, 134 P.3d at 382 (internal quotation omitted). ¶24 In Berger, the supreme court discussed at length the legislature s intent in criminalizing the possession of child pornography. possession The of court child noted pornography that is [c]riminalizing tied directly to the state efforts to deter its production and distribution[,] but it also serves to encourage[] the destruction of existing pornographic materials. quotation Id. at 477, ¶¶ 18-19, 134 P.3d at 382 (internal omitted). The court also noted that [c]hild pornography not only harms children in its production, but also causes the child victims children in years to come. continuing harm by haunting the Id. at 477, ¶ 18, 134 P.3d at 382 (internal quotation omitted); see also United States v. Sherman, 268 F.3d 539, 547 (7th Cir. 2001) ( The possession, receipt and shipping of child pornography directly victimizes the children portrayed by violating their right to privacy, and in particular violating their individual interest in avoiding the disclosure of personal matters. ). legislature had a Thus, the court conclud[ed] that the reasonable 13 basis for believing that mandatory and lengthy prison sentences for the possession of child pornography would advance the goals of [Arizona s] criminal justice system in [a] substantial way, Berger, 212 Ariz. at 478, ¶ 23, 134 P.3d at 383 (quoting Ewing v. California, 538 U.S. 11, 28 (2003)), and a ten-year sentence is not grossly possessing child fifteen. ¶25 disproportionate pornography to [the] depicting crime of children knowingly younger than facts and Id. at 479, ¶ 29, 134 P.3d at 384. Although defendant contends that the circumstances of this particular case are distinguishable from those in Berger because he obtained the child pornography at issue before possession was criminalized, we find no reason to depart from Berger here. Defendant was not convicted of his acquisition of child pornography in the late 1970 s. was convicted of possessing that previously Rather, he acquired child pornography in 2002, nearly two decades after possession had been criminalized. notwithstanding pornography reflects his laws, that Defendant s claim of ignorance of the law, scrapbook is documenting irrelevant. defendant The knowingly changes undisputed possessed the in child evidence illegal materials when he brought them in the state. ¶26 for As the supreme court found in Berger, [t]he images which [defendant] was convicted, graphically depicting sordid and perverse sexual conduct with pre-pubescent minors, 14 [are] well within the statutory definition of contraband. at 480, ¶ 35, 134 P.3d at 385. Moreover, as in Id. Berger, defendant here was not inadvertently in possession of these illegal materials. See id. Rather, by his own admission, defendant spent a significant amount of money maintaining and storing his child pornography collection in California and he then drove these illegal materials to Arizona to be stored in Jarvis them. shed as a cost-saving measure instead of destroying Therefore, we conclude that defendant consciously sought to do exactly that which the legislature sought to deter and punish, id. at 482, ¶ 49, 134 P.3d at 387, and hold that his ten consecutive ten-year sentences are not grossly disproportionate to those crimes.4 4 Defendant also requests that we apply A.R.S. § 13-4037(B) to vacate his mandatory sentences and strike the dangerous crime against children enhancements. Pursuant to A.R.S. § 13-4037(B), an appellate court, upon finding a sentence is excessive, may vacate the sentence and impose any legal sentence. As explained above, we conclude that defendant s mitigated sentences are legal, and, already mitigated, are not subject to reduction under A.R.S. § 13-4037(B). 15 CONCLUSION ¶27 For the reasons stated above, we affirm defendant s convictions and sentences. _/s/__________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/_______________________________ JON W. THOMPSON, Judge _/s/_______________________________ LAWRENCE F. WINTHROP, Judge 16

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