State v. McPherson

• Decision Date: 25 January 2012
• Docket Number: No. 2 CA–CR 2011–0126.,2 CA–CR 2011–0126.
• Citation: 269 P.3d 1181,228 Ariz. 557,626 Ariz. Adv. Rep. 4
• Parties: The STATE of Arizona, Appellee, v. Steven Frank McPHERSON, Appellant.
• Court: Arizona Court of Appeals

228 Ariz. 557

269 P.3d 1181

626 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.Steven Frank McPHERSON, Appellant.

No. 2 CA–CR 2011–0126.

Court of Appeals of Arizona, Division 2, Department A.

Jan. 25, 2012.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani and Kathryn A. Damstra, Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender By David J. Euchner, Tucson, Attorneys for Appellant.

OPINION

ECKERSTROM, Presiding Judge.

¶ 1 Following a jury trial, appellant Steven McPherson was convicted of seven counts of sexual exploitation of a minor under fifteen years old based on his possession of child pornography. Pursuant to A.R.S. §§ 13–705(D), (M), and 13–3553(C), the trial court sentenced him to mitigated, consecutive ten-year prison terms for each count. On appeal, McPherson argues these statutes are unconstitutional because, as applied to him, the statutes violated his constitutional rights to equal protection and freedom from cruel and unusual punishment. He also argues the consecutive sentences imposed here were illegal because all seven charged images were “acquired” on a single digital video disk (DVD). We affirm his convictions and sentences for the reasons that follow, and we discuss the facts below as they relate to each issue raised on appeal.

Consecutive Sentences

¶ 2 McPherson first maintains his sentences are illegal because he “acquired all seven ... images [supporting the separate charges] on a single DVD.” Given that “the data on a DVD, once burned, may not be ... modified[,] and the possessor may not possess one file on the DVD without possessing all files,” McPherson reasons that “all seven counts were the ‘same conduct’ that required concurrent sentencing.” Specifically, he argues the consecutive sentences he received violate our double punishment statute, A.R.S. § 13–116, as well as the prohibitions against double jeopardy found in the Fifth Amendment to the United States Constitution ¹ and article II, § 10 of the Arizona Constitution.²

¶ 3 On appeal, the parties appear to disagree about the nature of McPherson's charges and the evidence and facts supporting them. McPherson asserts in his opening brief both that he had “purchased a DVD on a single occasion that contained seven contraband images” and that he had “received the DVD from someone else.” In its answering brief, the state correctly points out that McPherson admitted he had purchased the apparently blank DVD himself; no one else had owned it before him. He further explained that he had put the illicit images on it by taking photographs of a computer screen with a digital camera and then transferring those images to the DVD. In his reply brief, McPherson maintains that consecutive sentences are prohibited regardless of how the DVD was created because he was charged only with possessing the images on the DVD, not any other offense. We assume for the sake of argument, and to avoid any problems regarding duplicity,³ that each count of sexual exploitation of a minor with which McPherson was charged under A.R.S. § 13–3553(A)(2) was based solely on his possession of a separate image on the DVD, not his prior possession of those images in another medium, his reproduction of the images, or his transfer of the images to the DVD.

¶ 4 McPherson acknowledges that, because he knew of the trial court's intention to impose consecutive sentences before the pronouncement of sentence, his failure to raise the issue below has forfeited review for all but fundamental error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d 601, 607–08 (2005). As he points out, however, an illegal sentence constitutes fundamental, prejudicial error, State v. Zinsmeyer, 222 Ariz. 612, ¶ 26, 218 P.3d 1069, 1080 (App.2009); State v. Gonzalez, 216 Ariz. 11, ¶ 2, 162 P.3d 650, 651 (App.2007), as does a double jeopardy violation. State v. McGill, 213 Ariz. 147, ¶ 21, 140 P.3d 930, 936 (2006).

Double Jeopardy

¶ 5 Because “[t]he double jeopardy provisions in the federal and Arizona constitutions ‘do not significantly differ, ... the same standard generally is used to analyze both provisions.’ ” State v. Wilson, 207 Ariz. 12, n. 2, 82 P.3d 797, 800 n. 2 (App.2004), quoting State v. Welch, 198 Ariz. 554, n. 2, 12 P.3d 229, 230 n. 2 (App.2000). “The Double Jeopardy Clauses in the United States and Arizona Constitutions prohibit: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” Lemke v. Rayes, 213 Ariz. 232, ¶ 10, 141 P.3d 407, 411 (App.2006) (footnote omitted).

In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy—protection against cumulative punishments—is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are “multiple” is essentially one of legislative intent.

Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (citation omitted). The intent of the legislature in defining and fixing the punishment for an offense is a question of law we review de novo. See State v. Burdick, 211 Ariz. 583, ¶ 5, 125 P.3d 1039, 1041 (App.2005).

¶ 6 Section 13–3553(A)(2) prohibits “possessing ... any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.” A “ ‘[v]isual depiction’ includes each visual image that is contained in an undeveloped film, videotape or photograph or data stored in any form and that is capable of conversion into a visual image.” A.R.S. § 13–3551(11). As our supreme court noted in State v. Berger, the legislature intended these statutes to criminalize each image that constitutes child pornography because its very existence harms the victim it depicts. 212 Ariz. 473, ¶¶ 3, 18–20, 134 P.3d 378, 379, 382–83 (2006) ( Berger II ). Even identical images, therefore, result in separate prosecution and punishment. State v. Valdez, 182 Ariz. 165, 170–71, 894 P.2d 708, 713–14 (App.1994); see A.R.S. §§ 13–705(M), 13–3553(C) (requiring consecutive sentences for each conviction of sexual exploitation of minor under fifteen); see also A.R.S. § 13–711(A) (“Except as otherwise provided by law, if multiple sentences of imprisonment are imposed on a person at the same time, the sentence or sentences imposed by the court shall run consecutively....”).

¶ 7 Other jurisdictions have held that multiple convictions for possession of child pornography do not constitute double jeopardy, even if the separate images underlying the convictions were obtained in the same electronic download, see, e.g., Fink v. State, 817 A.2d 781, 787–88 (Del.2003), or contained in the same compact disk, see, e.g., State v. Ravell, 155 N.H. 280, 922 A.2d 685, 687 (2007). Under Arizona law, we similarly must conclude that separate convictions and punishments for different images on the same DVD are constitutionally permissible because the legislature intended the unit of prosecution to be each individual “depiction.” § 13–3553(A)(2).

¶ 8 McPherson has offered no argument about the legislature's intent. Instead, he argues his case is similar to the hypothetical situation discussed in State v. Taylor, where our supreme court questioned the propriety of consecutive sentences for a defendant who “acquired all of the photographs at the same time in one book from someone else.” 160 Ariz. 415, 420, 773 P.2d 974, 979 (1989). We acknowledge that other jurisdictions construing different statutes have determined the simultaneous receipt or possession of multiple images will allow only one conviction and punishment. E.g., United States v. Buchanan, 485 F.3d 274, 278, 282 (5th Cir.2007) (finding separate counts of receipt of child pornography multiplicitous and prohibited by Double Jeopardy Clause when “government did not offer any proof that [defendant] took more than one action to receive the four images that were the basis of his convictions”); State v. Sutherby, 165 Wash.2d 870, 204 P.3d 916, ¶ 25 (2009) (concluding intended unit of prosecution under statute “is one count per possession of child pornography, without regard to the number of images comprising such possession or the number of minors depicted in the images possessed”). But under our own statutes, we can only conclude the legislature intended separate punishments for separate or duplicate images of child pornography, even when those images are acquired at the same time. ⁴ Any contrary suggestion in Taylor is mere dicta and, perhaps more importantly, bereft of any evidence or analysis to support a contrary view of legislative intent.⁵

¶ 9 Additionally, we note that although we have assumed McPherson's case, as charged, is analogous to the hypothetical scenario discussed in Taylor, the facts underlying his possession of the DVD clearly distinguish him from someone who instantly comes into possession of an album of child pornography. His situation is more akin to a pair of Wisconsin cases: State v. Multaler, 252 Wis.2d 54, 643 N.W.2d 437 (2002), and State v. Schaefer, 266 Wis.2d 719, 668 N.W.2d 760 (App.2003). In Multaler, the defendant had created two computer disks “over a period of time” that contained a multitude of illicit images, and the court upheld his twenty-eight convictions stemming from the separate image files on the disks. 252 Wis.2d 54, 643 N.W.2d 437, ¶¶ 50–51, 58, 69. Likewise, in Schaefer the court upheld eighteen possession convictions that were based upon separate files from a “Zip disk” removed from the defendant's computer. 266 Wis.2d 719, 668 N.W.2d 760, ¶¶ 42, 50, 56. As Wisconsin's high court reasoned:

In essence, because it appears that the images on the disks were photographs of actual children, the...