State v. Curtis
| Decision Date | 01 April 2014 |
| Docket Number | No. 1 CA-CR 11-0387,1 CA-CR 11-0387 |
| Parties | STATE OF ARIZONA, Appellee, v. DAVID WILLIAM CURTIS, JR., Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge
AFFIRMED
Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Joel Erik Thompson, Phoenix
Bruce W. Griffin, Flagstaff
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge John C. Gemmill and Judge Randall M. Howe joined.
¶1 David William Curtis, Jr., appeals his convictions and sentences for fifteen counts of sexual exploitation of a minor and four counts of molestation of a minor. Finding no reversible error, the convictions and sentences are affirmed.
¶2 The charges arose from a private citizen's discovery of a flash drive in the parking lot of the Tempe Marketplace in May 2009. The flash drive contained multiple images of child pornography and was linked to Curtis. Further investigation resulted in the seizure of additional such images on digital media from Curtis' home and a car parked in his home driveway, including images depicting Curtis molesting a child.
¶3 Curtis, an attorney, represented himself at trial. Curtis defended on the basis that he had no sexual interest in children and had never molested a child; the evidence failed to prove he was ever in possession of the flash drive; the police might have planted images on the other media or manipulated data or the images might have been evidence left over from his years as an attorney representing clients that he had not destroyed.
¶4 Curtis testified at trial, stating that he did not recall seeing the images that formed the basis of the first ten counts in the indictment, but he had possessed items similar to the charged images in the course of representing clients facing criminal charges and in child-protection and custody cases. Curtis testified that he had had no such cases involving similar images after 2005, and that he had destroyed a chart linking evidence to the specific clients when he retired from the active practice of law in 2006. Curtis testified that none of the images had sexual stimulation as their purpose, he had never molested the child depicted in the images charged in Counts 12, 14 and 16, and the images in Counts 18 and 20, which gave rise to associated molestation counts, did not depict either him or the child identified as the victim. Curtis also testified that someone else might have planted the evidence for many of the counts.
¶5 The jury convicted Curtis of nineteen of the twenty counts he faced and the superior court sentenced him to ten years on each count, to be served consecutively, for a total of 190 years in prison. Curtis filed a timely delayed notice of appeal and this court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A)(1) (2014).1
¶6 Curtis first argues that the indictment was duplicitous on its face because it failed to include the necessary specificity: that is, the exploitation counts failed to identify a digital address or pathway for the charged images and the molestation counts and the testimony to the grand jury regarding those counts failed to describe a specific act. Curtis also argues that the superior court failed to timely rule on his pretrial motion to dismiss on grounds of duplicity, thereby depriving him of an opportunity to correct these defects.
¶7 After full briefing of his motion to dismiss, but before the superior court heard or decided the matter, Curtis withdrew the motion, stating "[w]ith the passing of over four months since the filing of the motion, the effect of the motion has been effectively mooted." By this conduct, Curtis waived the challenges he now presses about claimed flaws in the indictment. See State v. Anderson, 210 Ariz. 327, 335-36, ¶¶ 15-17, 111 P.3d 369, 377-78 (2005) (); see also State v. Charo, 156 Ariz. 561, 566, 754 P.2d 288, 293 (1988) (). Moreover, the indictment was sufficiently specific. See generally Ariz. R. Crim. P. 13.2. The indictment identified the elements of each offense charged; the individual image title relevant to each exploitation count (and in most cases, the location of the media on which it was found); the conduct giving rise to the molestation counts (as did the testimony presented to the grand jury) and implicitly paired them with the exploitation counts depicting the alleged molestation. See State v. Far W. Water & Sewer Inc., 224 Ariz. 173, 187, ¶ 36, 228 P.3d 909, 923 (App. 2010) ().
¶8 Curtis also argues the State switched images and substituted other acts for the charged offenses, and that the superior court did not properly rule on evidentiary issues or properly instruct the jury, resulting in duplicitous charges being presented to the jury, with the resulting uncertainty that "the jurors unanimously agreed upon a single factual act or event" and risk of conviction for uncharged offenses. A criminal defendant has the constitutional right to a unanimous jury verdict. Ariz. Const. art. 2, § 23. The possibility of a less than unanimous verdict may occur when the indictment charges an offense based on one act, but the State offers evidence of a different act that satisfies the definition of the charged crime, a circumstance sometimes referred to as a duplicitous charge. State v. Klokic, 219 Ariz. 241, 244, ¶ 12, 196 P.3d 844, 847 (App. 2008). This court reviews the superior court's admission of evidence for abuse of discretion. State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853, 858 (1990). This court reviews the adequacy of jury instructions in their entirety to determine if they accurately reflect the law, State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000), recognizing that "[c]losing arguments of counsel may be taken into account when assessing the adequacy of jury instructions," State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) (citation omitted).
¶9 The record does not support Curtis' argument that the State switched images and substituted other acts for the charged offenses. The verdict forms for the exploitation counts mirrored the indictment (as amended) by identifying the title of each of the charged images, the media on which the image was discovered and where that media was found, a procedure Curtis acknowledged at trial would "take care of the duplicitous issue." With three exceptions, the titles inscribed on the back of the hard copies of the charged images also mirrored the titles charged in the indictment and listed on the verdict forms. The three exceptions consisted of a typographical error (a single letter discrepancy) of no material significance, given the absence of any other images admitted at trial with the same title. Curtis has not shown that the single letter discrepancy involving these three charges (Counts 1, 2 and 20) resulted in the submission of duplicitous charges to the jury. Among other things, the jury asked about the single letter discrepancy in the name on the hard copy of the images for each of these three counts, and the superior court responded by referring them to the verdict forms.
¶10 Nor has Curtis shown the charges submitted to the jury were duplicitous because the jury asked during deliberations whether the molestation charges were associated with specific images. In response, after conferring with the parties, the superior court instructed the jury that it was to "rely on the evidence, argument of counsel and the instructions given." The verdict forms for the molestation counts identified the child's name and the sexual contact alleged consistent with the "to-wit" designation in the indictment.2 Moreover, both parties linked each molestation count by evidence, testimony and argument to the charged image in the count depicting the molestation.
¶11 Similarly, Curtis has not shown that the superior court abused its discretion or created the risk of a less than unanimous verdict by allowing a detective to testify that the charged images were also found on other media seized pursuant to a search warrant, and by allowing the State to admit in evidence 23 uncharged images. As discussed in Section V below, the superior court acted within its discretion by admitting the uncharged images after Curtis opened the door to such evidence in claiming he possessed many of the images in his capacity as a lawyer, and by cross-examining the case agent on what evidence he could offer to show Curtis possessed the charged images. The distinction between the charged images, their discovery on other media and the uncharged images properly was maintained throughout trial, including in closing arguments.
¶12 The record fails to support Curtis' claims that the State misled the jury by allowing a forensic detective to switch titles in testifying about the image titles charged in Counts 12, 14, 18 and 20. On this record, the detective's reference when testifying about Count 14 to "cheare197.jpg," instead of the charged image of "cheare196.jpg" as identified in the prosecutor's question, is not evidence of a deliberate attempt by the State to switch images, but...
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