State v. Hartman

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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. JOHANN HARTMAN, Appellant. No. DIVISION ONE FILED: 10/11/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0273 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR2008-0280 The Honorable Lee F. Jantzen, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender By Jill L. Evans Attorneys for Appellant Kingman T I M M E R, Presiding Judge ¶1 Johann Hartman appeals his convictions and sentences imposed after a jury found him guilty of eleven counts of sexual exploitation of a minor under the age of fifteen. He argues the trial court committed reversible error because (1) insufficient evidence supported the convictions, (2) the convictions for ten counts violated sentences for double ten jeopardy counts principles, violated Arizona (3) consecutive Revised Statutes ( A.R.S. ) section 13-116 (2007), and (4) the sentences imposed constituted cruel and unusual punishment in violation of the federal and state constitutions. For the following reasons, we disagree and therefore affirm. BACKGROUND ¶2 Between November 5, approximately 2007, ten midnight images of and child 12:30 pornography downloaded to a memory card in Hartman s cell phone. day, Hartman lost the phone. a.m. on were The next Three days later, a third party turned the phone in to the police, indicating it contained child pornography. The police determined that the phone belonged to Hartman. ¶3 images The State s forensic expert found approximately thirty of child deleted) space. pornography on the phone in allocated (not The ten images downloaded on November 5 formed the bases for counts one through ten. The same expert also examined Hartman s home computer and found multiple images of child pornography in unallocated (deleted) space. formed the basis of count eleven. 2 One image ¶4 On charging him March with 13, 2008, eleven a grand counts of jury sexual indicted Hartman, exploitation of a minor in violation of A.R.S. § 13-3553 (2007), each a class two felony. On February 18, 2010, a jury convicted Hartman on all eleven counts and separately found that the minor in each image was under the age of fifteen. The court sentenced Hartman to mitigated consecutive ten-year terms of imprisonment for each count as required by law. This timely appeal followed. DISCUSSION I. Sufficiency of the Evidence ¶5 that Section 13-3553(A), A.R.S., provides in relevant part [a] person commits sexual exploitation of a minor by knowingly . . . (2) . . . possessing . . . any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct. Hartman argues the trial court erred by failing to grant his motion for judgment of acquittal because insufficient evidence supported a conclusion that he knowingly possessed the child pornography images found on his cell phone memory card and home computer. ¶6 In reviewing the sufficiency of evidence, we review the facts in the light most favorable to upholding the verdict and resolve all conflicts in the evidence against the defendant. State v. (1983). Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 Evidence is sufficient when it is more than a mere 3 scintilla and is such proof as could convince reasonable persons of the defendant s guilt beyond a reasonable doubt. Tison, 129 Ariz. 546, 553, 633 P.2d 355, State v. 362 (1981). Reversible error based on insufficiency of the evidence occurs only where there is 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). With these principles in mind, we address Hartman s arguments concerning the cell phone and home computer in turn. A. ¶7 Cell phone Hartman contends no evidence showed he obtained the images on the cell phone memory card by anything more than inadvertence. We disagree. conclude unknowingly viewed Hartman adult pornography Although the jury was free to downloaded or other the images materials, it when was he not compelled to do so as sufficient evidence supported a conclusion he knowingly possessed the images. ¶8 cell First, Hartman told police that, prior to losing his phone, downloads it were had not likely been out his. of Second, his possession evidence and supported any an inference that Hartman had transferred the images from his home computer to his cell phone via the memory card. See In re William G., 192 Ariz. 208, 213, 963 P.2d 287, 292 (App. 1997) (holding that absent an admission, a defendant s mental state 4 must necessarily be ascertained by inference from all relevant surrounding circumstances. ). One of the images found on the memory card depicted the same victim as a deleted image found on the computer. Further, internet searches that had been conducted on the computer led directly to some images found on the memory card. allocated Fourth, Third, the images on the memory card were in space, and meaning finally, they visible to City Bullhead were the Police Sergeant user. Reff testified that child pornography images are not readily obtained from the internet but must be sought; they do not pop up. From this evidence, the jury could reasonably conclude that Hartman knowingly possessed ten images of child pornography on his cell phone. B. ¶9 Home computer Hartman similarly contends the jury had insufficient evidence to find he knowingly possessed the single image of child pornography underlying count eleven, which was found in unallocated space contention as well. on his home computer. We reject this Although the jury could have agreed with Hartman that his computer s hard drive contained the image when he bought it or that the images were downloaded inadvertently by a computer virus, the jury was also free to reject alternative explanations for the presence of the image. 5 these ¶10 Hartman maintained he had installed a replacement hard drive for his computer about six months before he lost his phone and pointed out that the drive could have contained the image before he installed it. A police detective testified that Hartman had told him twice the hard drive was new, however, permitting the jury to conclude it unlikely that files in the unallocated space were downloaded Hartman s computer. 1 Also, parties a agreed that prior to installation into though expert witnesses for both computer virus could hypothetically download child pornography without a computer user s knowledge, there was no evidence of a virus on Hartman s computer. ¶11 that Other evidence permitted a reasonable juror to find Hartman knowingly possessed the image on his computer. Sergeant Reff testified he discovered at least thirty deleted images of child pornography, 1,500 deleted images of child erotica, and evidence that the hard drive had been used to visit numerous child pornography websites using search terms geared to discovering these pornography-related sites. images The quantity and search and variety terms found of on child the computer permitted the jury to reasonably conclude it unlikely 1 Hartman asserts on appeal that the hard drive was actually used when he bought it and cites a portion of the transcript as support. The page of cited transcript does not exist, however, and we could not find support for the assertion elsewhere in the evidence. Even if such testimony existed, we would resolve the conflict of evidence against Hartman. Girdler, 138 Ariz. at 488, 675 P.2d at 1307. 6 that the image at issue was inadvertently downloaded. Moreover, as previously described, see supra ¶ 8, images on Hartman s cell phone memory card matched deleted images on the computer and some of the sites visited on the computer contained images on the memory card, supporting a conclusion that Hartman had viewed the images on his computer and downloaded some onto the card for portable viewing. image on the Finally, Sergeant Reff testified that the computer affirmatively deleted underlying by a count user, eleven making had been this case distinguishable from the scenario in United States v. Kuchinski, 469 F.3d 853, 862 (9th Cir. 2006), which involved images found in computer cache files that can be browser without the user s knowledge. reasonable juror could have downloaded by a web Based on this evidence, a found that Hartman knowingly possessed the image of child pornography found on his computer. II. ¶12 Double Jeopardy Hartman next argues the trial court violated his constitutional rights to be free from double jeopardy because the jury convicted him on ten counts of exploitation of a minor for the images found on his cell phone even though those images were downloaded constitute one in one offense. particular He requests convictions and resulting sentences. raise this objection to sitting the trial 7 we and vacate therefore nine of the Because Hartman failed to court, we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). ¶13 The Constitution offense. United each States forbid Constitution multiple punishments the for Arizona the same State v. Welch, 198 Ariz. 554, 555, ¶ 6, 12 P.3d 229, 230 (App. 2000) (citations omitted). clauses and are interpreted in the The two double jeopardy same separate analysis is unnecessary. manner sentences imposed in therefore State v. Eagle, 196 Ariz. 188, 190, ¶ 5, 994 P.2d 395, 397 (2000). cumulative and a With respect to single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366 (1983). The issue before us, therefore, is whether the legislature intended to punish the act of possessing each depiction of child pornography even when those depictions are acquired in quick succession. ¶14 issue Our supreme court has effectively resolved the pending by interpreting each A.R.S. image of § 13-3553(A)(2) child pornography to is mean a the possession of separate offense. State v. Berger, 212 Ariz. 473, 474, ¶ 3, 134 P.3d 378, 379 (2006); see also A.R.S. § 13-3551(11) (2007) (defining visual depiction as each visual image that is contained in an undeveloped film, videotape or photograph or data stored in any 8 form and that is capable of conversion into a visual image. ). Thus, because punishment the for legislature possession intended of each the court to of depiction impose child pornography, the trial court did not violate Hartman s double jeopardy rights by imposing multiple punishments for a single offense. See Hunter, 459 U.S. at 366. ¶15 Hartman cites State v. Taylor, 160 Ariz. 415, 420, 773 P.2d 974, 979 (1989), as support for the principle that a defendant who acquires multiple child pornography images at the same time commits a single act. The defendant in Taylor was convicted of fifty counts of sexual exploitation of a child for possessing fifty images he photographed of children engaged in sexual activity. Id. at 419, 773 P.2d at 978. After rejecting the defendant s argument that the rule of lenity required the trial to either impose concurrent sentences or merge the counts into a single count, the court noted its conclusion might be different if the defendant had acquired all of the photographs at the same time in one book from someone else. 773 P.2d at 979. Id. at 420, Taylor does not alter our conclusion, however, as the evidence did not show that Hartman acquired the images in a single pictures download, in a successively, defendant in which book. albeit is analogous to receiving images were Rather, in Taylor the a timeframe. short who possessed 9 Thus, multiple downloaded like photographs the taken individually, Hartman s act in separately downloading images of child pornography were properly treated as separate offenses. ¶16 We find equally unpersuasive Hartman s several cases from other jurisdictions. analogies to In United States v. Prestenbach, 230 F.3d 780, 782-83 (5th Cir. 2000), United States v. Planck, 493 F.3d 501, 503-05 (5th Cir. 2007), and State v. Sutherby, 165 Wash.2d 870, 878-83, 204 P.3d 916, 919-22 (2009), the defendants punishments arose from statutes that prohibited the possession of forbidden item. any of the forbidden items, not each In United States v. Reedy, 304 F.3d 358, 364-68 (5th Cir. 2002), the Fifth Circuit concluded that the relevant statute was ambiguous and therefore applied the rule of lenity. See United States v. Santos, 553 U.S. 507, 514 (2008) ( The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. ). In light of the supreme court s decision in Berger, there is no ambiguity about the meaning of A.R.S. § 13-3553(A)(2), and the rule of lenity does not apply. III. Consecutive Sentences ¶17 Hartman next argues the sentences for ten counts of possessing child pornography images on his cell phone violate A.R.S. § 13-116 (2007), which prohibits the imposition of consecutive sentences for offenses arising out of a single act that is made punishable in different ways by different sections 10 of the law[] . . . . Because Hartman did not raise this issue to the trial court, he has waived it absent fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. The imposition of consecutive sentences in violation of § 13-116 constitutes fundamental error. State v. Martinez, 226 Ariz. 221, 224, ¶ 17, 245 P.3d 906, 909 (App. 2011). ¶18 As previously explained, see supra ¶¶ 12-16, Hartman s possession of each separate offense. image on his cell phone constitutes a Consequently, Hartman s convictions were not based on a single act punished by different laws; they were based on multiple acts punished by the same law. 2 Roberts, 131 Ariz. 519, 522, 642 P.2d 864, 867 See State v. (App. 1981) (holding § 13-116 applies only where the same act violates more than one statute. ), aff d in part and vacated in part on other grounds, 131 Ariz. 513, 642 P.2d 858 (1982). Because each conviction involved a child under the age of fifteen, the court was required to impose consecutive sentences. Berger, 212 Ariz. at 474, ¶ 4, 134 P.3d at 379; A.R.S. § 13-604.01(L) (2007). We do not discern error. 2 In light of our conclusion, we need not consider the test set out in State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989). 11 IV. ¶19 Cruel and Unusual Punishment Hartman finally argues his combined 110-year prison sentence is so grossly disproportionate to his crimes that it constitutes cruel and unusual punishment in violation of the federal and state constitutions. Ariz. Const. art. 2, § 15. See U.S. Const. amend. VIII; Hartman persuasively argues we should consider the consecutive nature of his sentences when conducting this proportionality analysis. See State v. Berger, 212 Ariz. 473, 489, ¶ 79, 134 P.3d 378, 394 (2006) (Berch, VCJ., concurring in part, dissenting in part) ( . . . I would find that a minimum mandatory sentence of 200 years for possession of twenty pornographic disproportionality ultimately the images that court unconstitutionally raises an inference requires additional determines whether disproportionate. ). analysis the The of gross before sentence supreme is court s majority holding in Berger is directly on point, however, and requires us to reject Hartman s contention. 212 Ariz. 473, 134 P.3d 378; see State v. Sullivan, 205 Ariz. 285, 288, ¶ 15, 69 P.3d 1006, 1009 (App. 2003) (holding court of appeals bound by supreme court decisions). ¶20 In Berger, a jury convicted the defendant on twenty counts of sexual exploitation of a minor for possessing printed and digital photographs of children engaged in sexual acts. Ariz. at 475, ¶ 5, 134 P.3d at 380. 12 212 The jury also found that each depiction showed a child under the age of fifteen. Id. The trial court sentenced the defendant to a mitigated ten-year prison sentence for each offense and ordered that the sentences run consecutively as required by law. Id. at ¶ 6. On review, the supreme court rejected the defendant s argument that the cumulative sentences were grossly disproportionate to his crimes and therefore violated the federal and state proscriptions against cruel and unusual punishment. Id. at 483, ¶ 51, 134 P.3d each at 388. After concluding that sentence must be examined without regard to whether the sentences must be served consecutively, id. at 479, ¶ 27, 134 P.3d at 384, the court held that a ten-year prison sentence is not grossly disproportionate for the offense of possessing images showing children younger than fifteen engaged in sexual acts. ¶21 Id. at ¶ 29. Hartman argues that this case is distinguishable from Berger because his cumulative sentences arose from a single act of possession. explained, see We supra disagree. ¶¶ For 12-16, the Hartman s reasons previously convictions stemmed from multiple acts of possession because he possessed separate depictions of young children engaged in sexual activities. Additionally, we are not persuaded that the cumulative effect of the sentences should be considered solely because the depictions all came into Hartman s possession during an approximately onehalf hour period. Although the Berger defendant acquired two of 13 the twenty images underlying the convictions six years before his arrest and other evidence demonstrated a history of searches for such material, see id. at 480, ¶ 35, 134 P.3d at 385, the supreme court did temporal factor. 3 not ultimately rest its holding on any Additionally, we do not discern a reason for analyzing the issue differently depending on the length of time between acquisitions of images. The children depicted in the images are no less victimized if the images are acquired in quick order rather than over a long period of time. ¶22 Hartman asks us to reduce his sentence under A.R.S. § 13-4037(B) (2007) in a manner similar to State v. Davis, 206 Ariz. 377, 79 P.3d 64 (2003). unconstitutional consecutive the In Davis, our supreme court held imposition thirteen-year of prison four terms statutorily for four mandated acts of intercourse with two girls under the age of fifteen. 206 Ariz. at 379, ¶ 2-3, 388, ¶¶ 48-49, 79 P.3d at 66, 75. The court 3 The Berger court stated that the defendant s sentences were amply supported by evidence indicating his long, serious pursuit of illegal depictions and are justified by the State s public-safety interest in deterring the production and possession of child pornography. 212 Ariz. at 480, ¶ 36, 134 P.3d at 385 (citing Ewing v. California, 538 U.S. 11, 29-30 (2003)). It appears the court was making the point that the defendant s possession of contraband was not fleeting or inadvertent, thereby justifying the lengthy sentence. Id. at ¶ 35. Similarly, the evidence in this case showed that Hartman had conducted many internet searches geared to finding child pornography and had additional contraband images on his home computer and cell phone that did not form the basis for the charged crimes. See supra ¶¶ 3, 11. 14 reasoned that the defendant s conduct was at the edge of the broad sweep of the statute. Id. at 385, ¶ 36, 79 P.3d at 72. Davis represents an extremely rare case in which the court concluded prison sentences were grossly disproportionate. Berger, 212 Ariz. at 480, ¶ 38, 134 P.3d at 385. Hartman s conduct is at the core, not the periphery, of the prohibitions of A.R.S. § 13-3553(A)(2). P.3d at 386. Berger, 212 Ariz. at 481, ¶ 44, 134 Like Berger and unlike Davis, Hartman cannot be characterized as someone merely caught up in a statute's broad sweep. Id. Therefore, no reason exists to depart from the general rule that the consecutive nature of sentences does not enter into the proportionality analysis. ¶23 Finally, Hartman contends his Id. prison sentence is unconstitutional because his crimes were not violent and he did not directly abuse any children. this argument and rejected it. The Berger court considered Id. at 482, ¶ 45, 134 P.3d at 387 ( Nor do we accept Berger s assertion that his crimes were victimless merely because he did not touch or even photograph any children himself. ). We follow Berger and reject Hartman s contention. 15 CONCLUSION ¶24 For the foregoing reasons, we affirm Hartman s convictions and sentences. /s/ Ann A. Scott Timmer Presiding Judge CONCURRING: /s/ Patrick Irvine, Judge B A R K E R, Judge, specially concurring. ¶25 only I agree fully with the foregoing decision. to Justice urge, Berch s for the reasons set forth cogent dissent in Berger, in I write then-Vice that the Chief Arizona Supreme Court revisit whether the mandatory, consecutive nature of these ultimately offenses the court requires additional determines unconstitutionally disproportionate. whether analysis the before sentence is 212 Ariz. at 489, ¶ 79, 134 P.3d at 394 (Berch, V.C.J., concurring in part, dissenting in part). /s/ Daniel A. Barker, Judge 16

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