State v. Mayol

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
BRANDON MAYOL, Appellant.
No. 1 CA-CR 20-0484
FILED 8-12-2021
Appeal from the Superior Court in Mohave County
No. S8015CR201700869
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Brian Coffman
Counsel for Appellee
Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
STATE v. MAYOL
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge David B. Gass joined.
M O R S E, Judge:
¶1 Brandon Mayol appeals the revocation of his probation and
the resulting imposition of sentence. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2018, Mayol pleaded guilty to attempted-sexual
exploitation of a minor, a class 3 felony and dangerous crime against
children. The superior court suspended imposition of sentence and placed
Mayol on lifetime probation.
¶3 The following year, a detective with the Kingman Police
Department ("Detective") received an emailed tip report from the National
Center for Missing and Exploited Children ("NCMEC"). NCMEC serves
law enforcement as a national clearinghouse for child sexual exploitation
issues by, among other things, working to reduce online child sexual abuse.
The tip report identified an Internet Protocol ("IP") address in Kingman
used to upload apparent child pornography to Skype. The tip report also
provided a redacted copy of the uploaded image. The Detective procured
a search warrant and learned the IP address was registered to Mayol's
father. The Detective also discovered a Wi-Fi signal originating from the
home Mayol shared with his father.
¶4 Based on the Detective's investigation, Mayol's probation
officer confronted Mayol regarding his internet use. Mayol admitted he
used his Xbox and cell phone to view and download online digital
pornographic images, including those depicting children.
¶5 The State petitioned to revoke Mayol's probation for violating
the following probation conditions: (1) maintain a crime-free lifestyle; (2)
do not possess sexually oriented material; and (3) do not "possess, use, or
have access to any computer or similar equipment that has internet
capability without prior written permission by [Mayol's] Probation
Officer." Mayol denied the allegations, and the court conducted a violation
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STATE v. MAYOL
Decision of the Court
hearing. Over Mayol's hearsay objection, the court admitted the tip report
into evidence.
¶6 The court ultimately found the State proved the alleged
violations by a preponderance of evidence. See Ariz. R. Crim. P. 27.8(b)(3)
("A [probation] violation must be established by a preponderance of the
evidence."). Accordingly, the court revoked Mayol's probation and
sentenced him to a mitigated 6.5-year prison term. Mayol appealed, and
we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -
4033(A)(3), (4).
DISCUSSION
I. Mayol's Confession.
¶7 Mayol argues the superior court erred by admitting his
confession. He claims his inculpatory statements were involuntary because
he lacked "cognitive and comprehension skills . . . ." We decline to address
this argument because Mayol did not request a voluntariness hearing or
otherwise object to evidence of his confession. See State v. Tison, 129 Ariz.
526, 535 (1981) (refusing to consider grounds for suppression not raised at
suppression hearing); State v. Brita, 158 Ariz. 121, 124 (1988) ("It is highly
undesirable to attempt to resolve issues for the first time on appeal,
particularly when the record below was made with no thought in mind of
the legal issue to be decided."). As a result, we deem this issue waived on
appeal.
¶8 Mayol testified that he understood the conditions of his
probation prohibited him from accessing pornography, especially child
pornography, on the internet. Nonetheless, Mayol contends testimony
regarding his mental health and educational difficulties should have
compelled the court to suppress the confession sua sponte. Mayol cites no
authority requiring the court to do so. Indeed, Arizona law does not require
a trial court to sua sponte conduct a hearing—let alone suppress evidence—
when other evidence may raise a mere question as to voluntariness. State
v. Bush, 244 Ariz. 575, 590, ¶ 62 (2018).
¶9 Finally, nothing in the record suggests the probation officer
threatened, coerced, or made promises to Mayol to induce his confession.
State v. Smith, 193 Ariz. 452, 457, ¶ 14 (1999) ("Coercive police activity is a
necessary predicate to the finding that a confession is not voluntary[.]
When evaluating coercion, the defendant's physical and mental states are
relevant to determine susceptibility to coercion, but alone are not enough
to render a statement involuntary.") (internal quotation marks and citation
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STATE v. MAYOL
Decision of the Court
omitted). On this record, the superior court did not abuse its discretion by
failing to sua sponte preclude evidence of Mayol's confession. See Bush, 244
Ariz. at 590, ¶ 62 ("[I]f a trial court is aware of facts indicating that a
confession was involuntary, the court, in its discretion and even absent a
request, may order a voluntariness hearing.").
II. The Tip Report.
¶10 Mayol challenges the superior court's admission of the tip
report, arguing the report was inadmissible hearsay.1 The State responds
that, even if the report was hearsay, it was admissible reliable hearsay at
the probation-violation hearing. We review the admissibility of evidence
for an abuse of discretion. State v. King, 213 Ariz. 632, 636, ¶ 15 (App. 2006).
¶11 We need not decide whether the superior court erred because
any possible error in admitting the tip report was harmless. Error is not
harmless if, "without the error, a reasonable [factfinder] could have
plausibly and intelligently returned a different" result. State v. Escalante,
245 Ariz. 135, 144, ¶ 31 (2018). Mayol provided a hand-written statement
in which he confessed to his probation officer that he accessed pornography
and child pornography on the internet in violation of his probation
conditions. And as Mayol recognizes, "[the Detective] could well have
testified that he obtained a tip, executed a search report and found
contraband. It was not necessary to admit the Tip Report . . . ." Mayol's
confession was sufficient to prove he violated his probation. See State v. Lay,
26 Ariz. App. 64, 65 (1976) (noting that a probationer's admission to a
probation officer of a violation is sufficient and does not require
corroboration). Thus, the tip report's admission did not affect the superior
court's finding that Mayol violated his probation conditions. See State v.
Bible, 175 Ariz. 549, 588 (1993) ("Error, be it constitutional or otherwise, is
harmless if we can say, beyond a reasonable doubt, that the error did not
contribute to or affect the verdict.").
1 To the extent Mayol separately challenges the tip report's foundation
on authenticity grounds, he does not develop any supporting argument.
Mayol also summarily implies his Sixth Amendment Confrontation Clause
rights were violated. See Ariz. R. Crim. P. 31.10(a)(7)(A) ("An appellant's
opening brief must set forth . . . contentions with supporting reasons for
each contention, and with citations of legal authorities . . . on which the
appellant relies."). We consider these insufficiently argued issues waived
and therefore do not address them. See State v. Carver, 160 Ariz. 167, 175
(1989).
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STATE v. MAYOL
Decision of the Court
CONCLUSION
¶12 Mayol's probation revocation and resulting sentence are
affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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