State v. Nelson ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
CHRISTOPHER LEN NELSON, Appellant.
No. 1 CA-CR 17-0822
FILED 1-24-2019
Appeal from the Superior Court in Maricopa County
No. CR2015-138506-001
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee
The Law Office of Kyle T. Green P.L.L.C., Tempe
By Kyle Green
Counsel for Appellant
STATE v. NELSON
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.
C R U Z, Judge:
¶1 Christopher Nelson appeals his convictions and sentences for
three counts of sexual exploitation of a minor, class 2 felonies. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Nelson was charged with three counts of sexual exploitation
of a minor in violation of Arizona Revised Statutes (“A.R.S.”) section 13-
3553(A) by possessing child pornography. The charges and his convictions
on those counts are based on three videos found on an SD card located in a
ZTE cell phone found in Nelson’s pants pocket when he was arrested. The
police seized the cell phone pursuant to a search warrant as part of an
investigation into unrelated allegations of sexual exploitation of a minor.
The three videos were discovered by police during a forensic examination
of the ZTE cell phone. The three videos were recovered from unallocated
space on the SD card in full-file format. According to Detective Fiore, who
conducted the forensic examination, these three files were likely recently
deleted from the ZTE cell phone before the phone was taken by police.
¶3 In November 2014, the Phoenix Police Department executed
a search warrant at Nelson’s apartment and took possession of an Acer
laptop and an Apple iPhone discovered in a bedroom. Nelson was not at
the apartment during the search; before leaving, the police left a copy of the
search warrant in the living room.
¶4 Police contacted Nelson’s former girlfriend, who arranged for
Nelson to meet at her workplace later that day. When Nelson arrived, he
was with a woman and her five-year-old son. Nelson was arrested, and an
officer found a ZTE cell phone in Nelson’s pants pocket. Detective Angel,
the investigation leader, submitted the ZTE cell phone, Acer laptop, and
iPhone for a forensics examination. Detective Fiore conducted the forensic
examination and found three videos depicting the sexual abuse of a boy on
an SD storage card located inside the ZTE cell phone. Detective Angel later
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Decision of the Court
determined that the child depicted in the videos was the same boy who was
with Nelson on the day he was arrested.
¶5 As part of Detective Fiore’s forensic examination, he searched
for indicia of ownership; on the SD card, he found multiple selfies of Nelson
and photographs of the search warrant and property receipt the police left
at Nelson’s apartment. Detective Fiore also testified that he found the three
videos in full-file format located within unallocated space on the SD card,
meaning the videos were deleted, which indicated to him that the videos
were likely deleted recently before his examination. Because the files were
in full-file format, Detective Fiore testified that “when [the videos were]
deleted, there was minimal to no use after that, because . . . portions of any
one of those files would’ve been overridden, and I would not have been
able to recover them in their entirety.” He also testified that he found no
indication that any other person had used the SD card on the ZTE phone.
¶6 Detective Fiore testified that he discovered indicia of Nelson’s
ownership on the Acer laptop and iPhone during the forensic examination.
There was data showing that the ZTE phone had been plugged into the
Acer laptop and the same selfies on the SD card were on the laptop.
Moreover, the iPhone was named “Christopher’s iPhone,” and associated
with the same personal email accounts found on the Acer laptop.
¶7 The victim’s father also testified identifying his son as the
child depicted in the videos.
¶8 At the jury trial, the court denied Nelson’s motion for
acquittal on all counts pursuant to Arizona Rule of Criminal Procedure
(“Rule”) 20. The jury convicted Nelson of all counts and Nelson timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).
DISCUSSION
I. Preclusion of Cell Phone Evidence
¶9 Before trial, the superior court denied Nelson’s motion in
limine to preclude cell phone evidence “without prejudice to defense
counsel being able to bring it up during the trial if he believes that there’s
foundational elements that have been missing.” A few weeks before trial,
the State dismissed twenty-five counts of the indictment. At trial, the three
videos were admitted without objection from Nelson; these videos were the
basis of the three remaining counts of sexual exploitation.
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Decision of the Court
¶10 On appeal, Nelson argues that the superior court improperly
admitted cell phone evidence, which Nelson describes as “evidence related
to other media found on devices during a search warrant.” He generally
contends the evidence was improper “other acts” evidence under Arizona
Rule of Evidence 404(b) because the evidence was prejudicial and
irrelevant. However, Nelson fails to either specify exactly what evidence
was improperly presented to the jury or cite to the record.
¶11 At trial, the three videos and sanitized screen shots from those
videos, as well as other photographs of Nelson, the victim, the victim’s
mother, the location of the offenses, the vehicle in which Nelson was
travelling when stopped by police, the laptop, the mobile phone recovered
from Nelson, and an additional mobile phone were admitted without
objection. Other contraband images mentioned in the motion in limine were
related to the twenty-five counts dismissed prior to trial. Those images
were never admitted into evidence.
¶12 We review a superior court’s evidentiary ruling for an abuse
of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). “Absent a clear
abuse of discretion, we will not second-guess a trial court’s ruling on the
admissibility or relevance of evidence.” State v. Rodriguez, 186 Ariz. 240,
250 (1996).
¶13 The State argues that Nelson’s failure to meaningfully
develop his argument constitutes waiver because Nelson generally argues
that the images were extremely prejudicial and irrelevant, without any
citation to the record identifying specific evidence he contends was
improperly presented to the jury. See ARCAP 13(a)(7); State v. Moody, 208
Ariz. 424, 452, ¶ 101 n.9 (2004) (explaining opening briefs that fail to present
significant arguments supported by authority usually constitutes
abandonment and waiver of that argument).
¶14 Notwithstanding the State’s claim of waiver, the superior
court did not err. The court denied Nelson’s pretrial motion with the
explanation that Nelson should make his objections at trial. There was no
error in admitting the three videos. Nelson was charged with possession of
the three videos depicting sexual exploitation of the minor; therefore,
admission of the videos into the record was necessary to prove an element
of the crimes. A.R.S. § 13-3553(A)(2); see State v. Farley, 199 Ariz. 542, 544,
¶ 8 (App. 2001) (explaining the state has the burden of proving every
element of an alleged crime beyond a reasonable doubt). The State did not
introduce “other act” evidence pursuant to Ariz. R. Evid. 404(b). None of
the photographs admitted into evidence depicted illicit activity. Instead,
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STATE v. NELSON
Decision of the Court
they were received as circumstantial evidence of the crime, including
ownership of the mobile phone upon which the illicit videos were located.
Therefore, this evidence was relevant, and its probative value outweighed
any prejudicial effect. Upon review of the record, we find that other
contraband images or videos found on Nelson’s electronic devices were not
admitted or discussed with the jury. Accordingly, there was no error. See
State v. Morris, 215 Ariz. 324, 339, ¶ 71 n.8 (2007) (appellant cannot establish
prejudice from exhibits never admitted into evidence).
II. Rule 20 Motion
¶15 Nelson moved for acquittal pursuant to Rule 20, and argues
the superior court erred in denying his motion on all three counts. We
disagree.
¶16 We review the superior court’s ruling on a Rule 20 motion de
novo. State v. Florez, 241 Ariz. 121, 124, ¶ 7 (App. 2016). A Rule 20 motion
should only be granted if “there is no substantial evidence to support a
conviction.” Ariz. R. Crim. P. 20(a). Thus, the purpose of such a motion is
to challenge the sufficiency of the evidence. See State v. Jones, 125 Ariz. 417,
419 (1980). “’Substantial evidence’ is evidence that reasonable persons
could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” Id. We resolve any conflict
in the evidence in favor of sustaining the verdict, and we will reverse only
if a complete absence of probative facts supports the conviction. State v.
Guerra, 161 Ariz. 289, 293 (1989); State v. Scott, 113 Ariz. 423, 424-25 (1976).
We will not weigh the evidence; that is the function of the jury. Guerra, 161
Ariz. at 293. If reasonable minds could differ on inferences to be drawn
from the evidence, whether direct or circumstantial, the case must be
submitted to the jury. State v. Landrigan, 176 Ariz. 1, 4 (1993).
¶17 A person commits sexual exploitation of a minor if he or she
knowingly possesses a “visual depiction in which a minor is engaged in
exploitive exhibition or other sexual conduct.” A.R.S. § 13-3553(A)(2). To
“possess” something means “knowingly to have physical possession or
otherwise exercise dominion or control over property.” A.R.S. § 13-105(34).
Possession may be actual or constructive. State v. Gonsalves, 231 Ariz. 521,
523, ¶ 9 (App. 2013). Nelson argues the State failed to prove knowing
possession because the SD card had pictures of other people who might
have used or owned the ZTE cell phone and the State did not provide
fingerprints or DNA evidence.
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STATE v. NELSON
Decision of the Court
¶18 Nelson does not dispute that the three videos were visual
depictions of a minor engaged in exploitive exhibition or other sexual
conduct. Detectives testified the three videos were found on an SD card
inside the ZTE cell phone found in Nelson’s pocket when he was arrested.
Detective Fiore testified specifically about indicia of identification and
ownership found on the ZTE cell phone, the Acer computer, and the
iPhone, which showed that Nelson possessed and accessed the cell phones
and computer. Detective Fiore testified that the forensic examination
determined the ZTE cell phone had been plugged into the Acer computer
in order to access the information on the SD card. Moreover, Detective
Fiore testified that the three videos were discovered in unallocated space
within the ZTE cell phone, meaning they were deleted from the cell phone;
however, Detective Fiore recovered the full-files for each video, which he
ultimately testified was significant because it showed that the videos were
recently deleted. Detective Fiore also found photos of the search warrant
and selfies of Nelson on the phone. Further, Detective Angel explained that
fingerprints are typically not gathered from electronic devices because it
would inhibit their ability to retrieve digital information. Finally, the
child’s father identified his son depicted in the charged videos and testified
that the child was a minor under the age of fifteen. In fact, the child was
five years old.
¶19 The jury could reasonably infer from the evidence that after
police executed the search warrant and before he was arrested, Nelson
deleted the three videos from the SD card. This was substantial evidence
that Nelson knowingly possessed the admittedly illicit video files. As such,
the superior court did not err by denying Nelson’s Rule 20 motion.
III. Sufficiency of the Evidence
¶20 Nelson makes the same arguments that there was insufficient
evidence to convict him for possession of child pornography. In reviewing
the sufficiency of the evidence, the question is whether there was
substantial evidence from which a rational trier of fact could have found
guilt beyond a reasonable doubt. State v. Routhier, 137 Ariz. 90, 99 (1981).
For reversible error based on insufficiency of the evidence to occur, there
must be a complete absence of probative facts to support the conviction.
Scott, 113 Ariz. at 424-25 (citation omitted). We will not set aside a jury
verdict for insufficient evidence unless it “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 (1987) (citation
omitted).
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STATE v. NELSON
Decision of the Court
¶21 Substantial evidence supports the jury’s verdicts. The State
presented evidence that detectives discovered the charged depictions on an
SD card inside a ZTE cell phone found in Nelson’s pocket when he was
arrested. As stated above, Detective Fiore testified that the SD card
contained indicia of Nelson’s ownership, including selfies and photos of a
copy of the search warrant that police left in Nelson’s house; and the
detective testified to additional indicia of ownership on the Acer computer
and iPhone that corroborated Nelson’s ownership of the ZTE cell phone.
Detectives testified that Nelson used the laptop, as corroborated by the
iPhone discovered at Nelson’s apartment, which had identical account
information as the laptop and named “Christopher’s iPhone.” Moreover,
the detective testified that Nelson previously viewed the files from the SD
card on the Acer laptop. Finally, Detective Fiore testified the three
contraband videos were deleted from the SD card, most likely just before
he was arrested.
¶22 Nelson’s arguments ask the court to reweigh the evidence.
On appeal, we will not reweigh the evidence. Guerra, 161 Ariz. at 293. The
jury had sufficient evidence to find Nelson knowingly possessed the illegal
depictions.
CONCLUSION
¶23 We affirm Nelson’s convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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