State v. Macias
| Decision Date | 25 April 2017 |
| Docket Number | No. 1 CA-CR 15-0505,1 CA-CR 15-0505 |
| Parties | STATE OF ARIZONA, Appellee, v. GABRIEL MACIAS, Appellant. |
| Court | Arizona Court of Appeals |
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yuma County
The Honorable John Neff Nelson, Retired Judge
AFFIRMED IN PART; REVERSED IN PART; AND VACATED IN PART
Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Debus, Kazan & Westerhausen, Ltd., Phoenix
By Tracey Westerhausen
Ballecer & Segal, LLP, Phoenix
By Natalee E. Segal
Co-Counsel for Appellant
MEMORANDUM DECISIONPresiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Paul J. McMurdie joined.
¶1 Gabriel Macias appeals his convictions and sentences for one count of sexual assault (Count Two); one count of sexual abuse (Count Three); four counts of child molestation (Counts Four, Seven, Eleven, and Seventeen); seven counts of furnishing harmful items to minors (Counts Five, Eight, Ten, Thirteen, Fourteen, Fifteen, and Nineteen); one count of child prostitution (Count Six); one count of sexual conduct with a minor (Count Twelve); one count of sexual exploitation of a minor (Count Eighteen); and one count of aggravated assault with sexual motivation (Count Twenty).1 Macias argues the trial court erred by denying a motion to suppress, failing to properly instruct the jury, denying motions for judgment of acquittal, admitting improper and prejudicial evidence, and permitting duplicitous charges. He also contends the prosecutor engaged in impermissible vouching during closing argument.2
¶2 For the following reasons, we reverse the conviction and sentence imposed on one count of furnishing harmful items to minors (Count Five), and vacate the convictions and sentences for one count of sexual assault and one count of sexual abuse. We affirm the convictions and sentences on the fourteen remaining counts.
¶3 Macias taught fourth, fifth, and sixth grades and sex education classes from 2003 to 2006. In 2013, one of Macias' former students reported to police that Macias had touched him inappropriately when he was a student. During the subsequent investigation, the police located other former students who also reported being touched inappropriately by Macias. Several of these victims also reported Macias showed them pornographic material at his home.
¶4 The police executed a search warrant on Macias' home and seized adult pornographic VHS tapes; compact discs containing both adult pornography and a pornographic video of a child performing a sex act on an adult; Playboy and Maxim magazines; a college paper written by Macias that discussed sex in ancient Greek society between older men and young men in a positive light; and a computer that contained: (1) nude videos of Macias and E.V. as a young teenager; (2) inappropriate chat messages between Macias and E.V.; and (3) two computer diary entries, titled "Losing [E.V.]," detailing Macias' emotional turmoil after E.V.'s parents discontinued contact between them. Following his arrest, Macias granted the police access to his iPhone, which contained videos of E.V. masturbating and a video of Macias masturbating while whispering,
¶5 Macias was ultimately convicted of the seventeen counts identified in ¶ 1, supra. The trial court sentenced Macias to a term of life imprisonment without the possibility of release for thirty-five years for sexual conduct with a minor and to consecutive and concurrent presumptive prison terms totaling an additional 114.25 years for all remaining counts. Macias timely appealed. This Court has jurisdiction under Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1),4 13-4031, and -4033(A).
¶6 Macias argues the trial court erred in denying his motion to suppress the items seized from his home because the information within the affidavit supporting issuance of the warrant was stale, as the described offenses had occurred more than seven years earlier. We generally review a trial court's ruling on a motion to suppress for an abuse of discretion, but review constitutional and purely legal issues de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62 (2004) (). In doing so, "we consider only evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling." State v. Dean, 241 Ariz. 387, 388, ¶ 2 (App. 2017) (quoting Brown v. McClennen, 239 Ariz. 521, 523, ¶ 4 (2016)).
¶7 The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and accordingly provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "Probable cause to conduct a search exists when 'a reasonably prudent person, based upon the facts known by the officer, would be justified in concluding that the items sought are connected with criminal activity and that they would be found at the place to be searched.'" State v. Spears, 184 Ariz. 277, 285 (1996) (quoting State v. Carter, 145 Ariz. 101, 110 (1985)). In short, the totality of the circumstances must create a fair probability evidence of a crime will be found in the place to be searched. See, e.g., Illinois v. Gates, 462 U.S. 213, 238 (1983). The exclusionary rule, recognized by the U.S. Supreme Court, generally bars the introduction of evidence obtained in violation of these principles. See Herring v. United States, 555 U.S. 135, 139 (2009) (citing Weeks v. United States, 232 U.S. 383, 398 (1914)); Mapp v. Ohio, 367 U.S. 643, 655 (1961) ().
¶8 Once issued, a search warrant is presumed valid, and a defendant challenging it for lack of probable cause has the burden of establishing its invalidity. See State v. Crowley, 202 Ariz. 80, 83, ¶ 7 (App. 2002) (). "Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause." United States v. Leon, 468 U.S. 897, 914 (1984) (citations omitted).
Therefore, deference is shown the issuing judge's conclusion that probable cause exists. Id. Thus, a finding of probable cause will be upheld whenever there is a "substantial basis for concluding that a search would uncover evidence of wrongdoing." Gates, 462 U.S. at 236-37 (); see also State v. Hyde, 186 Ariz. 252, 272 (1996) (citing Massachusetts v. Upton, 466 U.S. 727, 728 (1984)). A substantial basis for a search exists so long as the facts, "interpreted in a common-sense and realistic fashion," make it "not unreasonable . . . to conclude" evidence of a crime may be found in a given location. State v. McCall, 139 Ariz. 147, 156-57 (1983) ().
¶9 But probable cause to justify a search warrant for evidence must exist at the time the warrant issued. State v. Hale, 131 Ariz. 444, 446 (1982) (). "[T]here is no arbitrary time limit on how old the factual information contained in the affidavit may be[; t]he question of staleness depends more on the nature of the activity than on the number of days that have elapsed since the factual information was given." Id. (citations omitted). "Where facts are indicated so that the magistrate may conclude that the activity is of a continuous nature or in a course of conduct, the passage of time becomes less significant." State v. Smith, 122 Ariz. 58, 60 (1979) (citing State v. Torrez, 112 Ariz. 525, 528 (1974)). Thus, probable cause does not necessarily dissipate when "the items in question [a]re of a kind not likely to be discarded by the defendant." Id. (citing Kasold, 110 Ariz. at 566).
¶10 Here, the police sought the warrant in connection with their investigation into offenses of child molestation and furnishing harmful items to minors. The affidavit in support of the warrant recounted the investigation undertaken and detailed the statements of three victims describing a pattern of behavior over a period of years from 2003 to 2006: Macias would invite the students over to his home to swim and then engage in mutual masturbation or the touching of their genitals. The victims further informed the police Macias showed them pornographic movies at his home, and, on at least one occasion, pornographic pictures on a computer. The affidavit also stated Macias was a teacher at the school the victims attended during the time period in question, had a home with a pool as described by the former students, and was currently employed as a third-grade teacher at a local school district.
¶11 Although the evidence of the offenses sought in this case — pornographic movies on disks and VHS tapes and pictures and video files on computers — are "not the type of evidence that rapidly dissipates or degrades," United States v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012) () (quoting United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010)), the detective who...
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