State v. Maloney ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
EDWARD BERNARD MALONEY, Appellant.
No. 1 CA-CR 21-0401
FILED 11-1-2022
Appeal from the Superior Court in Yavapai County
No. V1300CR201680128
The Honorable Thomas K. Kelly, Judge Pro Tempore
AFFIRMED
COUNSEL
The Zickerman Law Office PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
STATE v. MALONEY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 Edward Bernard Maloney timely appealed the superior
court’s sentence in accordance with Anders v. California, 386 U.S. 738 (1967).
Maloney’s counsel has searched the record and found no arguable question
of law that is not frivolous. See Anders, 386 U.S. at 744; see also State v. Clark,
196 Ariz. 530, 537, ¶ 30 (App. 1999). Maloney filed a supplemental brief in
propria persona seeking reversal of his conviction.
¶2 Our obligation is to review the entire record for reversible
error, Clark, 196 Ariz. at 537, ¶ 30, viewing the evidence in the light most
favorable to sustaining the convictions and resolving all reasonable
inferences against Maloney. See State v. Guerra, 161 Ariz. 289, 293 (1989).
After reviewing the record, we find no error.
FACTS AND PROCEDURAL BACKGROUND
¶3 In February 2016, detectives suspected that child
pornography was being transmitted from an IP address in Cornville over a
peer-to-peer file sharing network and subpoenaed the home’s internet
provider. Detectives discovered the IP address was associated with Georgia
Flanagan’s home in Cornville, Arizona (“Cornville Residence”). Flanagan
was the named subscriber to the IP address. Officers conducted
surveillance outside the residence and did not find vehicles licensed to
anyone other than Flanagan. On March 3, 2016, officers obtained a warrant
to search the home and inspect all computers within the home.
¶4 Flanagan informed the officers that she lived with Maloney
and their daughter, and that Flanagan and Maloney had separate
bedrooms. In Maloney’s room, officers discovered mail addressed to
Maloney at the Cornville Residence, a check made out to Maloney, and a
laptop.
¶5 On the laptop, Homeland Security Investigations (“HSI”)
Special Agent Jeff Hexel discovered 160 images and videos classified as
child abuse material; 35 images classified as child erotica or child
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STATE v. MALONEY
Decision of the Court
exploitive/age difficult; and known child pornography search terms.
Flanagan testified the laptop belonged to Maloney. The videos were stored
on a drive called “User Ed’s.” In one of the drive’s folders, HSI agents found
pictures of Maloney and his daughter and a certificate with Maloney’s
name on it. The agents also discovered bank records and tax documents
with Maloney’s name.
¶6 Some of the files concerned Flanagan; for example, there were
images of her in the hospital from when she gave birth to their daughter.
But there were no other documents in the drive—like bank records or tax
papers—bearing Flanagan’s name. The folders in User Ed’s drive were
password-protected, and the computer had a malware program to block
viruses. There was no evidence the computer had a virus.
¶7 Flanagan testified that from June 2015 to March 2016,
Maloney spent every night in his Cornville Residence bedroom. Flanagan
also testified that she never spent time in Maloney’s bedroom, and she did
not recall her daughter ever using his bedroom. Maloney’s father and
cousin each visited the residence once, using Maloney’s bedroom while
Maloney slept on the couch. Flanagan did not recall the dates of when
Maloney’s father and cousin visited the residence.
¶8 Maloney introduced evidence that he was living at an RV
park in early 2016. He showed a deposit check from January 2015 and rent
checks from January and February 2016. The RV park owner testified that
he occasionally saw Maloney at the park but could not remember exactly
when Maloney lived at the park.
¶9 Maloney was indicted with 12 counts of sexual exploitation of
a minor. During a four-day trial, the State offered testimony from Flanagan,
Detective John Johnson (who obtained and served the search warrant), and
HSI agents (who conducted the March 3, 2016 search). The State also offered
testimony from Detective Chad Shilling (who analyzed the laptop) and
Susan Clinton (who provided an age estimation report for the minors in the
pornographic materials).
¶10 After the State rested, the court informed Maloney of his right
to testify, which he declined to invoke. To show he lived at the RV park,
Maloney offered testimony from the RV park owner and two character
witnesses. The jury unanimously found Maloney guilty on all counts.
¶11 At sentencing, the court stated it found no aggravating factors
and the following mitigating factors: Maloney had no prior criminal
history; was a contributing member of his community; received community
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STATE v. MALONEY
Decision of the Court
and family support; had an employment history; and had a positive
attitude. The court sentenced Maloney to consecutive 10-year prison terms
for each of the 12 convictions and awarded him 178 days pre-sentence
incarceration credit.
DISCUSSION
¶12 The record reveals sufficient evidence supporting Maloney’s
convictions and sentences. The record also shows Maloney was represented
by counsel at all critical stages of the proceedings. See State v. Conner, 163
Ariz. 97, 104 (1990) (right to counsel); see also State v. Bohn, 116 Ariz. 500, 503
(1977) (right to be present at critical stages). All proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure,
and the sentences were within the statutory limits and permissible range.
We find no reversible error and affirm Maloney’s convictions and sentence.
¶13 Maloney filed a pro per motion for reconsideration on
September 8, 2022. His motion arrived before this court issued any decision
and is thus premature. We deny the motion.
CONCLUSION
¶14 We have reviewed the entire record for arguable issues of law
and find none. We therefore affirm the court’s verdict and sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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