State v. Osgood ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ETHAN FOGG OSGOOD, Appellant.
No. 1 CA-CR 22-0302
FILED 10-12-2023
Appeal from the Superior Court in Yavapai County
No. P1300CR201700035
The Honorable John David Napper, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Kevin M. Morrow
Counsel for Appellee
Mitchell Stein Carey Chapman, PC, Phoenix
By Molly Patricia Brizgys
Co-counsel for Appellant
Law Offices of Rhonda Neff, PLLC, Phoenix
By Rhonda Elaine Neff
Co-counsel for Appellant
STATE v. OSGOOD
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Maria Elena Cruz joined.
C A T L E T T, Judge:
¶1 The superior court found Ethan Osgood (“Osgood”) guilty of
six counts of sexual exploitation of a minor because he possessed
pornography depicting juveniles under the age of fifteen years. On appeal,
Osgood challenges his convictions on various grounds, including that he
was arrested without probable cause, the police unlawfully expanded the
scope of the search of images conducted by various electronic
communication service providers (“ESP”), and his sixty-year sentence is
unconstitutionally disproportionate to the crime committed. We hold the
police had probable cause to arrest Osgood, the police did not unlawfully
expand the scope of the search conducted by the ESPs, and Osgood’s
sentence is constitutional. We affirm Osgood’s conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 Under federal law, if an ESP obtains knowledge of “any facts
or circumstances from which there is an apparent violation of . . . child
pornography [statutes],” it is required to “mak[e] a report of such facts or
circumstances” to the National Center for Missing and Exploited Children
(“NCMEC”). 18 U.S.C. § 2258A(a). NCMEC then forwards this
information to the appropriate law enforcement agency for possible
investigation. 18 U.S.C. § 2258A(a)(1)(B)(ii), (c).
¶3 In 2016, various ESPs, including Microsoft, Yahoo, and
Chatstep, sent NCMEC reports containing images of suspected child
pornography obtained from one IP address. NCMEC determined the IP
address was in Arizona and sent the reports to the Prescott Police
Department. In addition to the images, the reports contained other
information associated with online activity, including the username “Gent”
and email address “Legal-CPR@yahoo-inc.com.” Detective Brazell opened
the images and based on his experience concluded the images depicted
individuals younger than fifteen.
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¶4 Detective Brazell sent the reports and images to a deputy
county attorney to obtain a subpoena for the IP address. Detective Brazell
subsequently subpoenaed Cable One, whose response indicated the
account belonged to Tiffany Kolar (“Kolar”), Osgood’s live-in girlfriend.
Osgood was an authorized user on the account servicing a house in Prescott
that Osgood owned and lived in. During the investigation, Detective
Brazell learned that Osgood was a supervisor for Life Line Ambulance and
worked at Yavapai College as an Emergency Medical Services (“EMS”)
instructor.
¶5 Detective Brazell then took six of the images to a nurse at
Childhelp in Phoenix. The nurse concluded that two images showed
individuals under fifteen. Detective Brazell then drafted and obtained a
search warrant for Osgood’s home and vehicles.
¶6 Before executing the search warrant, Detective Brazell,
accompanied by other officers, went to Yavapai College where Osgood
worked and one of his vehicles was located. Detective Brazell found
Osgood in his office and informed him there was a search warrant for his
house and vehicles and Osgood “was going to go down to the police
department.” At the police station, Osgood was advised of his Miranda
rights and interviewed. Osgood admitted to using screen names associated
with the NCMEC reports, including “Gent” and others. Osgood made
other incriminating statements, including admitting to using the internet to
share images of individuals eleven to twelve years old.
¶7 That same day, police also executed the search warrant at
Osgood’s residence and seized Osgood’s laptop and other computer
equipment. A forensic examination revealed several images of child
pornography on Osgood’s laptop.
¶8 A Yavapai County grand jury indicted Osgood on twelve
counts of sexual exploitation of a minor. Osgood moved to suppress the
statements he made to Detective Brazell, arguing he was arrested without
a warrant and without probable cause. Osgood also moved to suppress the
images attached to the NCMEC reports on grounds the ESPs were
government actors.
¶9 The superior court largely denied the motions. The court
concluded that, at the time he contacted Osgood at the college, Detective
Brazell had probable cause to arrest Osgood. The court also found that
none of the ESPs were government actors and that both Yahoo and
Microsoft viewed the images, but Chatstep did not. The court, therefore,
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denied the motion as to the images attached to the Yahoo and Microsoft
reports but suppressed the images attached to the Chatstep report.
¶10 Osgood moved for reconsideration on grounds that no one
from either Yahoo or Microsoft viewed the images before sending them to
NCMEC. The court denied that motion too.
¶11 The parties stipulated to dismissal of counts one and two with
prejudice, then waived their right to a jury trial and agreed to submit counts
three through twelve for a bench trial on the submitted record. The court
eventually found Osgood guilty on counts seven through twelve. The court
sentenced Osgood to the minimum ten years’ imprisonment for each count.
Because each count must run consecutively, the court sentenced Osgood to
a total of sixty years’ imprisonment. See A.R.S. § 13-705(P).
¶12 Osgood timely appealed. We have jurisdiction under
Arizona Constitution Article VI, Section 9, and A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A).
DISCUSSION
I. Warrantless Arrest
A. Probable Cause to Arrest
¶13 Osgood argues he was arrested without a warrant and
without probable cause, and thus the superior court should have
suppressed his subsequent incriminating statements. When reviewing a
motion to suppress, we review the trial court’s factual findings for an abuse
of discretion, “but review de novo the trial court’s ultimate legal
determination that the search complied with the requirements of the Fourth
Amendment.” State v. Davolt, 207 Ariz. 191, 202 ¶ 21 (2004). We look “only
at the evidence presented to the trial court during the suppression hearing.”
State v. Spears, 184 Ariz. 277, 284 (1996).
¶14 The Fourth Amendment protects against unreasonable
searches and seizures; courts must suppress evidence that is the fruit of an
unlawful arrest. U.S. Const. amend. IV; State v. Morris, 246 Ariz. 154, 157 ¶
10 (App. 2019). A police officer may arrest an individual without a warrant
“if the officer has probable cause to believe . . . [a] felony has been
committed and probable cause to believe the person to be arrested has
committed the felony.” A.R.S. § 13-3883(A)(1). “‘The police have probable
cause to arrest when reasonably trustworthy information and
circumstances would lead a person of reasonable caution to believe an
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offense has been committed by the suspect.’” Spears, 184 Ariz. at 284(quoting State v. Moorman, 154 Ariz. 578, 582 (1987)). Whether probable
cause existed is an objective question, “and whether an officer believed
there were sufficient facts to support arrest is not material.” Morris, 246
Ariz. at 157 ¶ 9. We “consider whether the collective knowledge of law
enforcement officers at the time of arrest was sufficient to establish probable
cause.” Id.
¶15 Osgood argues that, while the police might have had probable
cause to search his home, they did not have probable cause to arrest him
because, at that time, the police did not verifiably know Osgood
downloaded the images. More specifically, Osgood contends the police
first needed to execute the search warrant to investigate and develop facts
confirming Osgood downloaded the images, rather than Kolar or someone
else. The State responds that there was sufficient probable cause to believe
Osgood downloaded the images, even if there was some potential that
someone else had done so. We agree with the State.
¶16 To begin, the police had probable cause to believe a felony
had been committed by someone. Osgood does not argue otherwise,
conceding “[t]he police had probable cause to serve a search warrant[.]”
We agree—it was sufficiently clear at the time of Osgood’s arrest that
someone had committed a felony.
¶17 The key question for us is whether there was sufficient cause
at the time of arrest to believe Osgood was the perpetrator of that crime.
We conclude there was. Before Osgood’s arrest, the police tied the illegal
images to an IP address servicing a property Osgood owned and used.
Police observed vehicles registered to Osgood at the address for that
property. Osgood was an authorized user of the account tied to the IP
address. The police also knew the username “Gent” and email address
“Legal-CPR@yahoo-inc.com” were connected to the illegal activity. Both
pointed in Osgood’s direction, even if only slightly. The police knew
Osgood was an EMS instructor, making him marginally more likely to use
an email address with “CPR” in it. The username “Gent” is also more likely
to be associated with a male than a female because it could be understood
to be shorthand for “Gentleman,” a courtesy title for a male. All this
information together was sufficient to arrest Osgood.
¶18 Osgood did not live alone, so others in the home (or
individuals visiting others in the home) could have accessed the IP address
or online account connected to the unlawful images. Osgood argues others’
potential access was sufficient to reduce suspicion below the level of
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probable cause. The superior court disagreed, relying on Maryland v.
Pringle, 540 U.S. 366 (2003), and we do too.
¶19 Pringle teaches that probable cause is not always a zero-sum
game. There, police stopped a car occupied by three men for speeding. Id.
at 367. Officers searched the car and found cocaine. Id. at 368. None of the
three would admit ownership, so the police arrested them all. Id. The
Supreme Court found probable cause to arrest all three because the officers
could have concluded “any or all three of the occupants had knowledge of,
and exercised dominion and control over, the cocaine.” Id. at 372 (emphasis
added). The Court thought “a reasonable officer could conclude that there
was probable cause to believe that Pringle committed the crime of
possession of cocaine, either solely or jointly.” Id. As Osgood puts it, “when
an officer observes a crime that could have been committed by any number
of people, an officer can use common sense judgment to ferret out the
culpable person based on the circumstances on the scene.”
¶20 And that is what the police did here. They determined who
lived at Osgood’s property and who was an authorized user of the account
that accessed the unlawful images. So far as the police knew, the number
of individuals satisfying those criteria was two (one less than the number
of potential perpetrators in Pringle)—Osgood and Kolar. Osgood asserts
other individuals lived at or visited Osgood’s property, but he did not
submit evidence that any of those individuals had authorized access to the
internet account at issue, let alone evidence that the police knew others had
such access at the time of arrest. Rather than arrest Osgood and Kolar, based
on the information they had at the time, the police began with Osgood. We
do not think it relevant to Pringle’s application that the police were not “on
scene” when Osgood committed the crime—the police were not on scene
when the passengers in Pringle actually possessed the hidden cocaine. The
State did not violate Osgood’s Fourth Amendment rights by arresting him
first. See id. (holding the officers could have permissibly arrested any of the
men); United States v. Sloan, 307 Fed. Appx. 88, 90 (9th Cir. 2009) (concluding
there was probable cause to arrest when “an IP address registered to [the
defendant] was associated with files confirmed to contain child
pornography”); State v. MacHardy, ___ Ariz. ___, 521 P.3d 613, 618–19
¶¶ 12–13 (App. 2022) (concluding there was probable cause to arrest when
the defendant lived in an apartment complex and the “IP address tethered
to [his] subscriber information had accessed illegal child sexual abuse
materials seven months before the arrest”).
¶21 Finally, Osgood points out that Detective Brazell later stated
he was unsure whether he had sufficient probable cause to arrest Osgood.
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This Court has previously explained that the subjective belief of an officer
is irrelevant because “[t]he standard of probable cause is not a subjective
standard but an objective one.” State v. Turner, 142 Ariz. 138, 141 (App.
1984) (“Appellant takes great solace in the fact that the police stated in a
transcript of an interview, submitted in evidence at the motion to suppress,
that they did not think they had probable cause to permit a search of the
luggage. Reliance on this theory is misplaced.”). Because, objectively
speaking, the police had probable cause to arrest Osgood, the superior court
did not err in later admitting the statements he made after his arrest.
B. Arrest in His Office
¶22 Osgood next argues his arrest violated the Fourth
Amendment because it occurred in his office, where he had a reasonable
expectation of privacy. The State argues Osgood forfeited this argument by
failing to raise it in the superior court. We need not decide whether Osgood
forfeited the argument because even if we address its merits, the argument
fails.
¶23 Because Osgood did not raise this argument in the superior
court, we review for fundamental error. See State v. Henderson, 210 Ariz.
561, 567 ¶ 19 (2005). “[W]e place the burden of persuasion in fundamental
error review on the defendant.” Id. To prevail, “a defendant must establish
both that fundamental error exists and that the error in his case caused him
prejudice.” Id. at 567 ¶ 20. “An error generally goes to the ‘foundation of a
case’ if it relieves the prosecution of its burden to prove a crime’s elements,
directly impacts a key factual dispute, or deprives the defendant of
constitutionally guaranteed procedures.” State v. Escalante, 245 Ariz. 135,
141 (2018).
¶24 We agree with the State that, given the lack of a factual record,
Osgood is unable to prove error. In some situations, an individual may
have a “reasonable expectation of privacy against intrusions by police into
their offices.” United States v. SDI Future Health, Inc., 568 F.3d 684, 695 (9th
Cir. 2009) (quotation marks omitted). But “unlike the nearly absolute
protection of a residence, the great variety of work environments requires
analysis of reasonable expectations on a case-by-case basis.” Id. (quotation
marks omitted). It is a fact-intensive analysis looking at whether the office
was given over to the defendant’s exclusive use. Id. at 696. “The defendant
must demonstrate ‘a subjective expectation of privacy in the area searched,
and their expectation must be one that society would recognize as
objectively reasonable.’” Id. at 695.
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¶25 Osgood cannot meet that burden. For example, the record
does not tell us whether Osgood had exclusive use of his office or whether
it was shared, open to the public, or accessible to any other individual. We
can only review the evidence presented to the superior court at the
suppression hearing. Spears, 184 Ariz. at 284 (We look “only at the evidence
presented to the trial court during the suppression hearing.”). And on the
record we have on the issue—a virtually non-existent one—Osgood has not
established error—not to mention fundamental error. See Henderson, 210
Ariz. at 568 ¶ 23.
II. Admissibility of the Images
A. Private Search Doctrine
¶26 Osgood next argues the superior court abused its discretion
by denying his motion to suppress the images attached to the NCMEC
reports because the State failed to prove any ESP viewed the images.
Warrantless searches “are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-
delineated exceptions.” State v. Fristoe, 251 Ariz. 255, 259 ¶ 12 (App. 2021)
(quoting State v. Dean, 206 Ariz. 158, 161 ¶ 8 (2003)). The private search
doctrine is one exception. See United States v. Jacobsen, 466 U.S. 109, 114
(1984). Thus, “a wrongful search or seizure conducted by a private party
does not violate the Fourth Amendment and . . . such private wrongdoing
does not deprive the government of the right to use evidence that it has
acquired lawfully.” Walter v. United States, 447 U.S. 649, 656 (1980).
¶27 The State argues Osgood waived this argument by failing to
raise it before or at the suppression hearing. Osgood originally moved to
suppress the images because the ESPs, who he claimed were government
actors, viewed the images without a warrant. In the motion, Osgood stated
he “is informed and believes that one or more employees of such
intercepting ‘ESPs’ opened the electronic communications and viewed the
image(s) prior to transmitting the ‘CyberTipline’ reports to NCMEC.”
Osgood then offered the NCMEC reports into evidence at the suppression
hearing. The superior court (correctly) rejected the argument that the ESPs
were government actors.
¶28 Osgood later filed a motion for reconsideration. Contrary to
his prior position about whether an ESP viewed the images (he claimed
they had), Osgood now stated that “no individual human being at Yahoo!
or Microsoft (Skype) opened and viewed any image file allegedly uploaded
by the Defendant.” Osgood attached a new expert report stating that no
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individual at either company viewed the images. The court denied
Osgood’s motion because he did not establish good cause sufficient to
warrant reconsideration. Based on this series of events, we reject the State’s
argument that Osgood did not sufficiently raise this issue with the superior
court.
¶29 But the way Osgood raised the issue, including by taking
contrary factual positions, is still relevant. Osgood first raised the issue in
a motion for reconsideration, which we review for an abuse of discretion.
See Tilley v. Delci, 220 Ariz. 233, 238 ¶ 16 (App. 2009). Osgood himself
alleged that the ESPs had viewed the reports and that is the posture in
which the parties litigated the suppression issue. The superior court then
independently viewed the reports and concluded they adequately stated
that Microsoft and Yahoo reviewed the images (as Osgood initially alleged).
Indeed, all Microsoft and Yahoo reports state that those companies viewed
the images; other courts have concluded that such a statement is sufficient
to support a finding that an ESP did so. See State v. Ryan, 116 N.E.3d 170,
177 ¶ 20 (Ohio Ct. App. 2018); United States v. Eley, 2022 WL 181255, at *3
(D. Nev. Jan. 20, 2022). The superior court did not abuse its discretion by
denying reconsideration.
B. Scope of the Private Search
¶30 Alternatively, Osgood argues that, even if a private party
viewed the images, Detective Brazell exceeded the scope of the private
search by viewing the images and asking other individuals—a deputy
county attorney and a nurse—to view the images. Osgood argues
“Detective Brazell and the other government actors ‘allowed the
government to learn new, critical information’ and they ‘expanded the
scope of the antecedent private search’ by opening and analyzing the
images beyond what the third party had done.”
¶31 The question we must answer is whether, by the time
Detective Brazell, the district attorney, and the nurse viewed the images,
private-party searches had sufficiently frustrated Osgood’s expectation of
privacy in the images. See Jacobsen, 466 U.S. at 117 (“Once frustration of the
original expectation of privacy occurs, the Fourth Amendment does not
prohibit governmental use of the now-nonprivate information.”). Two U.S.
Supreme Court cases are relevant to that question.
¶32 First, in Walter, boxes of films were delivered to the wrong
company. 447 U.S. at 651. Company employees opened the boxes and
discovered they contained “explicit descriptions” suggesting the films were
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obscene. Id. at 652. The employees did not watch the films but called the
FBI. Id. Agents watched the films without obtaining a warrant. Id. The
Court held this violated the Fourth Amendment because watching the films
was a “significant expansion” of the private employees’ search. Id. at 657.
¶33 In Jacobsen, FedEx employees opened a package damaged in
transit. 466 U.S. at 111. The package contained a tube, which, when cut
open, held bags with white powder. Id. The employees called the DEA,
which conducted a field test on the substance and confirmed it was cocaine.
Id. at 111–12. The Court analyzed whether the DEA’s actions “exceeded the
scope” of the private search and concluded “[t]he agent’s viewing of what
a private party had freely made available for his inspection did not violate
the Fourth Amendment” because the agent was able “to learn nothing that
had not previously been learned during the private search.” Id. at 119—20.
¶34 Several federal circuit courts have held that law enforcement
does not violate the Fourth Amendment by viewing images contained in an
NCMEC report. See United States v. Reddick, 900 F.3d 636, 639 (5th Cir. 2018)
(holding whatever expectation of privacy the defendant may have had in
the images “was frustrated by Microsoft’s private search”); United States v.
Miller, 982 F.3d 412 (6th Cir. 2020) (same); United States v. Powell, 925 F.3d 1(1st Cir. 2018) (same). We agree and hold that because a private party first
opened and viewed the images, the subsequent opening and viewing by
the police, a deputy county attorney, and a nurse did not require a warrant.
¶35 Contrary to Osgood’s assertion, none of these individuals
expanded the scope of the search. Specifically, Osgood argues “the opening
and viewing of the images and the analysis for Sexual Maturity Rating
exceeded the scope of any third-party search because the government’s
actions ‘lead to observing new information not uncovered by the private
search.’” The record adequately supports that the ESPs opened and viewed
the images, reviewed them sufficiently to believe they contained child
pornography, and reported them to NCMEC. Thus, Osgood’s reliance on
United States v. Wilson, 13 F.4th 961 (9th Cir. 2021), is misplaced because,
there, no Google employee or other person reviewed the files at issue prior
to the government agent viewing them. See id. at 971–72 (“[T]he
government agent viewed Wilson’s email attachments even though no
Google employee—or other person—had done so, thereby exceeding any
earlier privacy intrusion.”).
¶36 Detective Brazell testified that from his experience he
believed the images depicted juveniles, but as an extra precaution, had
them examined by a nurse who also confirmed the images depicted
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juveniles. Neither review exceeded the scope of the ESPs’ search because
Detective Brazell was “already substantially certain of what [was depicted
in the images] based on the [reports].” See United States v. Runyan, 275 F.3d
449, 463 (5th Cir. 2001). “The police do not exceed the scope of a prior
private search when they examine the same materials that were examined
by the private searchers, but they examine [those] materials more
thoroughly than did the private parties.” Id.; see also Walker v. State, 669
S.W. 3d 243, 255 (Ark. App. 2023) (holding that an officer did not violate the
defendant’s constitutional rights by opening an image from Microsoft
because “his review of the image merely confirmed what was already
known and dispelled any residual doubt about the contents of the file”).
¶37 Detective Brazell did not learn materially new information
from his search of the images, from the county attorney, or from the nurse.
Rather, they confirmed the information contained in the NCMEC report—
the images depicted pornography involving juveniles under fifteen. Thus,
“there was no ‘significant expansion of the search that had been conducted
previously by a private party’ sufficient to constitute ‘a separate search.’”
Reddick, 900 F.3d at 639 (quoting Walter, 447 U.S. at 657).
III. Expectation of Privacy in ISP Subscriber Information
¶38 Osgood also argues the police obtained his internet service
provider (“ISP”) subscriber information and other associated information
in violation of the Fourth Amendment and Arizona’s Private Affairs
Clause. See U.S. Const. amend IV; Ariz. Const. art. 2 § 8. “Whether a
particular expectation of privacy is recognized by society as objectively
reasonable is a matter of constitutional law that we consider de novo.” State
v. Olm, 223 Ariz. 429, 432 (App. 2010). Correctly recognizing that the
Arizona Supreme Court recently rejected his argument (see State v. Mixton,
250 Ariz. 282 (2021) (Mixton II)), Osgood explains that he is preserving the
argument for further appeal.
¶39 In Mixton II, our supreme court held that “neither the Fourth
Amendment to the United States Constitution nor article 2, section 8 of the
Arizona Constitution requires law enforcement officials to secure a search
warrant or court order to obtain IP addresses or subscriber information
voluntarily provided to ISPs as a condition or attribute of service.” 250
Ariz. at 299 ¶ 75. We are “bound by decisions of the Arizona Supreme
Court and ha[ve] no authority to overturn or refuse to follow its decisions.”
State v. Long, 207 Ariz. 140, 145 ¶ 23 (App. 2004). Consequently, Osgood
did not have a reasonable expectation of privacy in his ISP subscriber
information.
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IV. Constitutionality of Osgood’s Sentence
¶40 Finally, Osgood argues that his sixty-year sentence is
unconstitutionally disproportionate. We review de novo whether a prison
sentence is unconstitutional. See State v. Soto-Fong, 250 Ariz. 1, 45 ¶ 6 (2020).
The Eighth Amendment prohibits “cruel and unusual punishment” and
“has been applied to lengthy sentences of incarceration.” State v. Berger, 212
Ariz. 473, 475 ¶ 10 (2006); U.S. Const. amend. VIII. However, “courts are
extremely circumspect in their Eighth Amendment review of prison terms.”
Berger, 212 Ariz. at 475 ¶ 10. Thus, “noncapital sentences are subject only
to a ‘narrow proportionality principle’ that prohibits sentences that are
‘grossly disproportionate’ to the crime.” Id. (citation omitted).
¶41 In Berger, our supreme court dealt with a similar challenge to
Arizona’s sentencing scheme for possession of child pornography
involving children younger than fifteen. 212 Ariz. at 473. Berger was
convicted of twenty counts of possession of child pornography and
sentenced to the minimum ten-year consecutive term for each—a total of
two-hundred years’ imprisonment. Id. at 475 ¶¶ 5–6. The supreme court
assessed “whether a ten-year sentence is disproportionate for a conviction
of possessing child pornography involving children younger than fifteen”
as courts generally do not consider the consecutive nature of a sentence in
a proportionality inquiry. Id. at 479 ¶ 27. The court then held that it could
not “conclude that a ten-year sentence is grossly disproportionate to
Berger’s crime of knowingly possessing child pornography depicting
children younger than fifteen.” Id. at 479 ¶ 29. Instead, the court held “[t]he
ten-year sentence imposed for each offense is consistent with the State’s
penological goal of deterring the production and possession of child
pornography.” Id. at 480 ¶ 33.
¶42 Based on Berger, Osgood’s sentence does not violate the
Eighth Amendment. And because Osgood’s cannot meet the threshold
showing of disproportionality, we need not engage in an inter-
jurisdictional comparison of sentences for the possession of child
pornography, including by comparing Osgood’s sentence to sentences set
forth in the federal sentencing guidelines. See Berger, 212 Ariz. at 477 ¶ 16;
Long, 207 Ariz. at 147 ¶ 34.
¶43 Osgood also argues his sentence violates A.R.S. § 13-101(4)
and (6) because Arizona’s sentencing scheme is more severe than its federal
counterpart. A.R.S. § 13-101 ”declare[s] . . . the general purposes of”
Arizona’s criminal code. The subsections Osgood relies on provide that
“the public policy of this state and the general purpose of this title are . . .
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[t]o differentiate on reasonable grounds between serious and minor
offenses and to prescribe proportionate penalties for each” and “[t]o
promote just and deserved punishment on those whose conduct threatens
the public peace[.]” A.R.S. § 13-101(4), (6). While Berger did not directly
address A.R.S. § 13-101, the statute was in effect at the time the court
decided Berger, yet it still held the sentence at issue was lawful. In any
event, “the fixing of prison terms for specific crimes involves a substantive
penological judgment that, as a general matter, is properly within the
province of legislatures, not courts.” Berger, 212 Ariz. at 483 ¶ 50 (citation
omitted); see also State v. Bly, 127 Ariz. 370, 372 (1980) (“Unless the
punishment is so severe as to be disproportionate to the crime . . . , the
judiciary has discretion only to the extent provided by the legislature.”).
Our supreme court has held that Arizona’s sentencing scheme for
possession of pornography depicting children under fifteen is
constitutional. That holding binds us and defeats Osgood’s argument.
¶44 Finally, Osgood makes a one-sentence argument that “due to
the arbitrary nature of how many images are charged,” his punishment was
arbitrary and violated his due process rights under the Fourteenth
Amendment and Article 2 Sections 4 and 15 of the Arizona Constitution.
Because Osgood failed to cite authority—and we have found none—
explaining how the number of images he was charged with possessing
caused his punishment to be “arbitrary,” he has not meaningfully developed
this argument on appeal, and thus we do not address it. See Ariz. R. Crim.
P. 31.10(a)(7); State v. Rodriguez, 251 Ariz. 90, 98 ¶ 25 n.9 (App. 2021); see also
Berger, 212 Ariz. at 478 ¶ 26 (holding that while Berger did not argue the
twenty separate counts for possession of child pornography was improper,
he could not “as each count was based on a different video or photo image,
the images involved some fifteen different child victims, and Berger had
accumulated the images over a six-year period”).
CONCLUSION
¶45 We affirm Osgood’s convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: JT
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