State v. Lelevier
| Decision Date | 09 October 2020 |
| Docket Number | No. 2 CA-CR 2019-0041,2 CA-CR 2019-0041 |
| Citation | 250 Ariz. 165,476 P.3d 713 |
| Parties | The STATE of Arizona, Appellee, v. Joshua Daniel LELEVIER, Appellant. |
| Court | Arizona Court of Appeals |
Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Chief Counsel, By Tanja K. Kelly, Assistant Attorney General, Tucson, Counsel for Appellee
Emily Danies, Tucson, Counsel for Appellant
¶1 Joshua Lelevier appeals from his convictions and sentences for first-degree murder; abandonment or concealment of a dead body; sexual exploitation of a minor under fifteen years of age; surreptitious photographing, videotaping, filming, or digitally recording or viewing; and voyeurism. He argues the trial court made a series of erroneous evidentiary rulings and erred in denying his motion for acquittal under Rule 20, Ariz. R. Crim. P. For the reasons that follow, we affirm.
¶2 We view the facts in the light most favorable to upholding the jury's verdicts, resolving all reasonable inferences against Lelevier. State v. Payne , 233 Ariz. 484, ¶¶ 76, 93 & n.1, 314 P.3d 1239 (2013). Around 2:30 a.m. on May 11, 2017, Lelevier, thirteen-year-old J.G.’s stepfather, woke up her mother, J.O., to tell her that J.G. was "missing." Because J.G. had left the house without permission on multiple occasions about a year earlier, J.O. and Lelevier discussed that J.G. had perhaps done so again that night. Therefore, instead of immediately calling the police, J.O. waited at home to see if J.G. would return, and Lelevier drove around, purportedly to look for J.G. When J.G. had not returned by around 6:00 a.m., J.O. called the police.
¶3 After speaking with police, J.O. noticed that none of J.G.’s shoes were missing and there was no indication on J.G.’s laptop that she had planned to venture out that night. J.O. eventually went to J.G.’s room and saw that a lock she had installed to prevent J.G.’s window from fully opening was still in place, and the window was cracked open only about an inch. Later, J.O. noticed that the sweatshirt Lelevier had been wearing the night J.G. disappeared had plant material on it.
¶4 Later that same morning, a 9-1-1 caller reported finding a body at a construction site in the desert. Officers identified the body as J.G.’s. She was barefoot, but her feet showed no marks consistent with having walked barefoot in the desert. She had bruising underneath her right eye, blood inside and around her nose, upper lip, and one cheek, and a ligature mark on the left side of her neck.
¶5 Detectives noted shoe impressions in the dirt near J.G.’s feet. They also noted tire prints near her body "that could be consistent with" the Chevrolet Traverse belonging to her family. Male DNA found on J.G.’s sweatshirt could not be definitively identified, but Lelevier's DNA could not be excluded from that sample.
¶6 On May 12, Lelevier told police he had searched for J.G. only in a specific neighborhood, not the neighborhood where J.G.’s body was discovered. However, video surveillance at the construction site where J.G.’s body was found showed that, shortly before 3:00 a.m. on the morning J.G.’s body was discovered, a car "that could be consistent to that of the [vehicle] that [Lelevier] drove" had driven past the site of J.G.’s body.
¶7 During that same interview, police photographed the tires on the Traverse while "clearly within [Lelevier's] line of sight." Less than a week later, Lelevier reported he had found keys—the spare keys to the Traverse—buried in a bush in the family's front yard. The detective testified that the keys were extremely hard to find and he had to "get down where [his] ear was almost on the ground" to see them. Police took the Traverse into evidence. In the rear compartment, police found J.G.’s blood, which someone had attempted to clean up.
¶8 J.G. did not take her laptop to school with her. However, while J.G. was at school in early May, an internet search was conducted on her laptop regarding methods of committing suicide. The following day, also while J.G. was in school, a document was created on the laptop entitled "Everyone Is Against Me All The Time." According to J.O., it contained material that "didn't sound like" her daughter, but rather "sounded like stuff [Lelevier] would say." The document was deleted at 2:15 a.m. on May 11, just before Lelevier awoke J.O. to report J.G. was missing.
¶9 A search of Lelevier's computer revealed that he had purchased a variety of video surveillance equipment in April 2017, which he had used to take and edit photos and videos of J.G. in her bathroom. Lelevier deleted the video editing application from his computer two days after J.G.’s body was found.
¶10 The state indicted Lelevier, charging him with first-degree murder; abandonment or concealment of a dead body; and two counts each of sexual exploitation of a minor under fifteen years of age; surreptitious photographing, videotaping, filming, or digitally recording or viewing; and voyeurism. After a twelve-day trial, a jury found him guilty on all counts. The trial court sentenced him to natural life in prison, as well as consecutive and concurrent terms of imprisonment for the remaining counts. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶11 Lelevier first argues the trial court erred in admitting evidence that, in March 2017, J.G. caught him taking a photo of her while she was partially dressed in her bathroom. The evidence took the form of a texted conversation in which J.G. told her friend she was "terrified" because she had seen Lelevier's "phone slide under the door and take a picture." We review for abuse of discretion the court's admission of other-act evidence. State v. Van Adams , 194 Ariz. 408, ¶ 20, 984 P.2d 16 (1999).
¶12 At a hearing on the state's motion to admit this evidence, a Tucson Police Department officer testified that Lelevier had purchased camera equipment, including an endoscope camera and another "mini hidden spy camera with motion detection," in April 2017. Images recovered from Lelevier's computer showed that he had set up the camera equipment angled to record various positions inside a bathroom J.G. frequented, which required him to drill holes in a wall connecting the bathroom to the room where he kept his computer. Police recovered several photos, videos, and video stills of J.G. in the bathroom from Lelevier's computer. They also recovered at least one photo taken in late April from underneath the bathroom door. The investigation of Lelevier's electronics also showed he had opened and manipulated the video files taken from the cameras in a variety of ways.
¶13 The trial court reasoned that the evidence showing Lelevier took the March 2017 photo went to his motive and intent to kill J.G. and supported his knowledge, plan, and lack of mistake when engaging in the April 2017 conduct leading to the charges of voyeurism, sexual exploitation of a minor, and surreptitious photographing. Lelevier argues the court erred in concluding that clear and convincing evidence suggested he had committed this other act, as required by Rule 404(b), Ariz. R. Evid. See State v. Terrazas , 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997). He further argues the prejudicial effect of the evidence outweighed its probative value.
¶14 Even had the trial court erred in admitting this evidence, any error was harmless given the overwhelming evidence of Lelevier's other surreptitious surveillance. See State v. Henderson , 210 Ariz. 561, ¶ 18, 115 P.3d 601 (2005) (). At trial, the same investigator repeated the pertinent details regarding Lelevier's recordings and his manipulation of those recordings in the weeks leading up to J.G.’s murder. Thus, even without the other-act evidence, the trial evidence sufficiently established Lelevier's potential motive to murder J.G. and that he planned and executed the surveillance over the course of several weeks. Therefore, any evidence suggesting Lelevier also attempted to photograph J.G. in her bathroom in March was undoubtedly not the persuasive factor upon which the jury's guilty verdicts relied.
¶15 Lelevier also argues the trial court erred in making four evidentiary rulings: (1) suppressing certain details of J.G.’s other acts about a year before her death; (2) admitting witness testimony describing J.G.’s demeanor in the days before her murder; (3) admitting crime scene photographs of J.G.’s face and body post-mortem; and (4) admitting evidence of an alleged assault on Lelevier approximately two weeks after J.G.’s death. We review the trial court's rulings on the admissibility of evidence for abuse of discretion, State v. Buccheri-Bianca , 233 Ariz. 324, ¶ 7, 312 P.3d 123 (App. 2013), and we find no reversible error in any of the challenged rulings.
¶16 Lelevier argues the trial court erred in suppressing evidence that J.G. "had a history of sneaking out of her house to spend time with other kids known to engage in drugs, alcohol and sexual activity, had a history of skipping school, and had bottles of alcohol found in her room," which he claims was relevant to his "potential defenses." Specifically, he suggests this evidence could have supported his defense that he made the recordings for "child safety reasons."
¶17 However, the trial court admitted sufficient evidence of J.G.’s behavior to allow Lelevier to squarely raise his "potential defenses" at trial. The court originally allowed only evidence that J.G. had ventured out of the house at night in the summer of 2016. Mid-trial, however, the court amended its ruling, and Lelevier was permitted to testify that J.G.’s demeanor had...
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