State v. Speers

• Decision Date: 28 September 2004
• Docket Number: No. 1 CA-CR 02-0578.,1 CA-CR 02-0578.
• Citation: 209 Ariz. 125,98 P.3d 560
• Parties: STATE of Arizona, Appellee, v. Phillip Gregory SPEERS, Appellant.
• Court: Arizona Court of Appeals

98 P.3d 560

209 Ariz. 125

STATE of Arizona, Appellee, v. Phillip Gregory SPEERS, Appellant.

No. -0578.

Court of Appeals of Arizona, Division 1, Department B.

September 28, 2004.

Terry Goddard, Attorney General, By Randall M. Howe, Chief Counsel, Katia Mehu, Assistant Attorney General, Criminal Appeals Section, Phoenix, Attorneys for Appellee.

Richard C. Bock and Harley Kurlander, Tucson, Attorneys for Appellant.

OPINION

IRVINE, Judge.

¶ 1 Phillip Gregory Speers ("Defendant") appeals from his convictions and the sentences imposed on two counts of sexual exploitation of a minor, each a class 2 felony and dangerous crime against children. We hold that the trial court erred by refusing to allow Defendant to present expert testimony on the subject of the proper protocols for interviewing young children to avoid suggestiveness and the implanting of false memories. The court also erred by giving a flight instruction. Because we are unable to find beyond a reasonable doubt that these errors did not have any effect on the verdicts, we vacate Defendant's convictions and remand for a new trial.¹

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Defendant was a second-grade teacher at St. Francis School in Yuma during the 1999-2000 school year. On April 28, 2000, the school librarian was summoned to the school playground by Defendant. When she arrived at the playground, the librarian observed Defendant with his second-grade class. Defendant appeared upset and was crying. Defendant informed her that two of his female students were making accusations that could result in him going to jail.

¶ 3 After speaking with the two girls, the librarian took them to the office to see the principal. The principal called the police to report the allegations. An investigation by the Yuma Police Department ultimately resulted in a six-count indictment charging Defendant with five counts of child molestation and one count of sexual abuse involving five of his students. These charges are not a part of this appeal but it was during their investigation that this case surfaced.

¶ 4 While investigating the child molestation allegations, Detective Willits and Officer Wellard contacted Defendant at his Yuma apartment on the evening of April 28, 2000. Defendant accompanied the officers back to the police station for an interview. Following the interview, Defendant signed a written consent for a search of his apartment. During the search, Detective Willits accessed Defendant's computer and, after opening several folders, came across a file entitled "Today." When he opened this file, he found listings for three web sites of a sexual nature. Detective Willits seized Defendant's computer and subsequently obtained a search warrant for further examination of this computer.

¶ 5 On May 3, 2000, Defendant was arrested at his parents' home in Tucson on charges of child molestation and sexual abuse. The next day, the parents' residence was searched by Detective Segura and Sergeant Schmitt pursuant to a search warrant obtained by Detective Willits. Evidence seized from the parents' residence included a computer, composition notebooks, a backpack, Defendant's passport, and a printout of airline travel information from Expedia.com.

¶ 6 The computers seized from Defendant's Yuma apartment and his parents' Tucson home were transported to California for examination by Detective Sargent of the La Mesa Police Department. The forensic examination revealed a number of graphic image files depicting minors under the age of fifteen engaged in exploitive exhibition or other sexual conduct in the "temporary internet files" section on the hard drives of the computers. The logs for the graphic files found on the computer seized from Defendant's Yuma apartment listed access dates between April 14, 2000 and April 20, 2000.

¶ 7 Defendant was indicted in the present case on eighteen counts of sexual exploitation of a minor, each a class 2 felony and dangerous crime against children, based on graphic files found on the hard drive of the computer seized from his Yuma apartment (the "Yuma computer"). Sixteen of the images were from thumbnail pictures that would have appeared on the computer screen as parts of grids of images five pictures wide and four pictures high. Each of these small pictures constituted a separate file that was automatically stored on the Yuma computer as a temporary internet file. Two of the images were enlargements of thumbnails that had also been automatically stored as separate temporary internet files.

¶ 8 The State argued that the evidence showed defendant knowingly possessed the images because a user could not reach the webpage containing the thumbnails without consciously choosing to load it and that the enlargements would only be saved on the computer if the user affirmatively placed the cursor on the thumbnail and clicked to engage the links. Defendant countered that he could not be guilty of knowingly "possessing" the images because there was no evidence that he knowingly saved them on the computer, explaining that a temporary internet file is automatically saved by the computer, without any conscious action being required by the user. Defendant's expert also questioned the state's assertion that the enlarged images would only exist on the computer as a result of a deliberate clicking of the mouse on the thumbnail images. ¶ 9 At the conclusion of a twenty-one day jury trial, Defendant was found guilty on counts one and three, the enlarged images, and acquitted on the other sixteen counts. The jury further found that the children depicted in the two graphic images that were the subjects of counts one and three were under the age of fifteen. The trial court sentenced Defendant to consecutive seventeen-year prison terms.

¶ 10 Defendant filed a timely notice of appeal. We have jurisdiction pursuant to article VI, section 9 of the Arizona Constitution and Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (2001).

DISCUSSION

A. It Was Error to Deny Defendant's Motion to Allow Expert Testimony Regarding Child Interviews.

¶ 11 Prior to trial, the State moved to consolidate the present case with the six-count indictment for molestation and sexual abuse in Yuma County Superior Court case number CR XXXX-XXXXX. As part of this motion, the State also requested a ruling from the trial court permitting it to introduce evidence pertaining to the child molestation case as propensity evidence under Rule 404(c) of the Rules of Evidence in this case. Among the evidence the State sought to introduce was testimony from four alleged child victims on the molestation and sexual abuse charges. Following a lengthy series of evidentiary hearings addressing these and other pretrial issues, the trial court denied the State's request to consolidate the two cases. The trial court further found, however, that a variety of evidence, including testimony from the victims regarding Defendant's alleged misconduct with them, would be admissible as propensity evidence pursuant to Rule 404(c) in regards to the sexual exploitation charges.

¶ 12 In order to rebut testimony from the alleged victims, Defendant moved for a ruling from the trial court allowing expert testimony from Dr. Ralph Underwager with respect to suggestive interview techniques and its influence on children's memories. The trial court denied Defendant's motion on the grounds that it is not accepted by the scientific community and the subject is within the common knowledge and understanding of the jury.

¶ 13 A decision by the trial court on the admissibility of expert testimony is generally reviewed for an abuse of discretion. See State v. Moran, 151 Ariz. 378, 381, 728 P.2d 248, 251 (1986). "However, when the admissibility of expert opinion evidence is a question of `law or logic,' it is this court's responsibility to determine admissibility." Id.

¶ 14 The admissibility of expert testimony in cases involving sex crimes is subject to the same rules of evidence applicable to all expert testimony. Id. at 380, 728 P.2d at 250. Rule 702 of the Arizona Rules of Evidence, which governs the admissibility of expert opinion testimony, reads:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

To qualify for admission under this rule, opinion testimony on human behavior must (a) be relevant to an issue in the case; (b) aid in understanding evidence outside the experience or knowledge of the average juror; and (c) come from a qualified witness. Logerquist v. McVey, 196 Ariz. 470, 480, ¶ 30, 1 P.3d 113, 123 (2000).

¶ 15 Initially, we reject the State's arguments that the proposed expert testimony pertained to a collateral matter and that Dr. Underwager was not a qualified expert. The State's second contention is based on a comment by Defendant's counsel that he did not intend to call Dr. Underwager as a witness because he "came with some baggage." The record is clear, however, that this statement was made in connection with a discussion of whether Dr. Underwager would be called as a witness on the issue of sexual propensity and occurred long after the trial court's ruling precluding any expert testimony from him regarding the effect of improper investigatory child interviews. Furthermore, the material provided to the trial court in support of the expert testimony by Dr. Underwager reflects that he possesses the necessary qualifications to testify as an expert on interview techniques and their impact on children. See also United States v. Rouse, 111 F.3d 561, 571-72 (8th Cir.1997) (approving admission of expert testimony by Dr. Underwager regarding suggestive interviewing techniques and their impact on children's memories).

¶ 16 We also...