Opinion
No. 2 CA-CR 2015-0305
03-14-2017
THE STATE OF ARIZONA, Appellee, v. MICHAEL WILLIAM MCKERLIE, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Steven R. Sonenberg, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pima County
No. CR20141915001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee Steven R. Sonenberg, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. HOWARD, Presiding Judge:
¶1 Following a jury trial, Michael McKerlie was convicted of five counts of sexual exploitation of a minor under fifteen for the possession of child pornography and sentenced to consecutive, twenty-eight year prison terms totaling 140 years. On appeal, McKerlie contends that the trial court erred by admitting evidence concerning his prior conviction for the possession of child pornography under Rule 404(b), Ariz. R. Evid., that his constitutional right to a twelve-person jury was violated because he did not properly waive that right, and that the statutes governing sentencing for the possession of child pornography are unconstitutional. Because we find no error, we affirm McKerlie's convictions and sentences.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Rivera, 226 Ariz. 325, ¶ 2, 247 P.3d 560, 562 (App. 2011), quoting State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). In July 2011, McKerlie and his wife, B.M., separated. After moving out, B.M. inadvertently discovered two files on her computer, one called "showgirls" and another called "my childhood." B.M. suspected both that McKerlie had downloaded these files to her computer and that the images could be child pornography, so she reported the files to law enforcement.
¶3 During the ensuing investigation, a law enforcement officer discovered that the titles of the two files B.M. had found on the computer were "indicative of child pornography." After closer inspection, the investigating agent discovered five images, which served as the basis for the charges against McKerlie. Those images depicted "a prepubescent female, nude" with the focus of the image "on the genitalia of the child." The computer also contained a history of search terms that were "indicative of searches for child pornography," such as "preteen pictures," "nude preteen," "daughter torrent," and "daughter landfill torrent." Forensic evidence suggested that McKerlie used BitTorrent, a peer-to-peer file sharing software, to download the images.
¶4 Before trial, the state moved to admit other act evidence, including evidence of McKerlie's 2012 conviction for possession of child pornography and two previous incidents in which B.M. alleged she had found child pornography on a shared computer. The state argued the facts of the previous conviction were admissible because many similarities existed between McKerlie's 2012 conviction and the charges in this case. The state sought to admit the evidence because it could establish any of the reasons listed in Rule 404(b), and to rebut any defenses. The state moved in the alternate to admit the prior conviction under the Rule 404(c) exception for aberrant sexual propensity evidence.
¶5 The trial court granted the motion as to Rule 404(b), concluding that the prior conviction was relevant, more probative than prejudicial, and "admissible in order to show, among other things, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The court expressly refused to find the evidence was admissible under Rule 404(c), and excluded evidence about B.M.'s earlier discoveries of child pornography as more prejudicial than probative. The court noted it would provide a limiting instruction during trial upon McKerlie's request.
¶6 At trial, the investigating agent testified that he had been involved in the investigation leading to McKerlie's 2012 conviction. The agent testified that the present case displayed many similarities with the earlier case.
¶7 The jury convicted McKerlie on all counts, and the trial court sentenced him to presumptive, consecutive terms totaling 140 years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Rule 404(b)
¶8 McKerlie first argues the trial court abused its discretion when it admitted evidence of McKerlie's 2012 conviction for possession of child pornography under Rule 404(b). McKerlie contends the court erred because the conviction could not have been admitted under any of the Rule 404(b) exceptions, and in any event, the prosecution did not use the 2012 conviction for any of the proper exceptions. We review the admission of other act evidence for an abuse of discretion. State v. Villalobos, 225 Ariz. 74, ¶ 18, 235 P.3d 227, 233 (2010).
¶9 Rule 404(a) precludes the admission of "[e]vidence of a person's character or a trait of character . . . for the purpose of proving action in conformity therewith on a particular occasion." But Rule 404(b) allows that such evidence may be admissible "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In order to be admissible, other act evidence must also be relevant under Rule 402, Ariz. R. Evid., more probative than prejudicial under Rule 403, Ariz. R. Evid., and, when requested, limited by an appropriate instruction under Rule 105, Ariz. R. Evid. State v. Coghill, 216 Ariz. 578, ¶ 13, 169 P.3d 942, 946 (App. 2007).
¶10 Because B.M. found the files on her computer, and McKerlie argued in defense that the evidence did not show who had downloaded the images, identity was in issue. In State v. Prion, our supreme court held that the identity exception "is applicable only where 'the pattern and characteristics of the crimes . . . are so unusual and distinctive as to be like a signature.'" 203 Ariz. 157, ¶ 38, 52 P.3d 189, 195 (2002), quoting State v. Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889 (1993) (omission in Prion). In that case, the supreme court concluded the identity exception did not allow other act evidence when "very little [was] known about what happened" during the commission of the charged murder. Id. ¶¶ 39-41.
¶11 The crimes here, however, were very similar to one another: in both cases, McKerlie searched for similar terms, including "daughter" and used an identical misspelling of the word "torrent." In both cases, McKerlie used the same program, BitTorrent, to download the files. In both cases, the files containing the pornographic images included the name "Sandra" in the title. The files in both cases contained images depicting similarly aged children in a similar non-intercourse context with a "focus . . . on the genitalia." In both cases, McKerlie attempted to delete those files.
¶12 These crimes have similarities with one another "when normally there could be expected to be found differences." State v. Roscoe, 145 Ariz. 212, 217, 700 P.2d 1312, 1317 (1984), quoting State v. Jackson, 124 Ariz. 202, 204, 603 P.2d 94, 96 (1979). Thus, we conclude the trial court did not abuse its discretion in admitting the 2012 conviction evidence to prove McKerlie's identity.
¶13 McKerlie, however, contends that the trial court abused its discretion by admitting the detective's testimony about similarities between the conduct at issue in the 2012 conviction and the current case because, even if the evidence could have been admitted for a proper Rule 404(b) purpose, it was "actual[ly] use[d] . . . to show [McKerlie] was guilty because of his past pattern of behavior." He explains that the prosecutor had not acted in good faith in requesting that the evidence be admitted under all of the Rule 404(b) purposes because, McKerlie argues, "the prosecutor abandoned all listed 404(b) grounds during the case focusing solely on [McKerlie's] 'pattern' of behavior." Thus, he reasons, the court abused its discretion by "failing to narrow the State's request based on a meaningful reason under 404(b)" and because pattern of behavior use equates to "character trait/propensity" evidence, which is inadmissible under Rule 404(a).
McKerlie did not object to the prosecutor's use of the term "pattern" at trial. Therefore, any error in that use is forfeited for all but fundamental error review. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005).
¶14 But when the prosecutor used the word "pattern," she did so in connection with proving identity. The prosecutor specifically told the jurors that they could not infer that McKerlie had committed the instant crime on the basis of the other-acts evidence, but rather could only use the other-acts evidence to "determine identity, motive, absence of mistake . . . a plan, [or] a pattern." The use of the word "pattern," taken out of context, could imply that the jury could find a pattern of conduct based on the other act evidence. But the prosecutor immediately explained what she had meant "when [she said] the word 'pattern,'" specifically that the "pattern" was useful to determine which of the "two people that had access to [the] computer" downloaded the pornographic images. And the trial court's limiting instructions along with the arguments of counsel clarified any possible confusion caused by the word "pattern."
¶15 In support of his argument, McKerlie relies on Coghill, 216 Ariz. 578, 169 P.3d 947, and State v. Vigil, 195 Ariz. 189, 986 P.2d 222 (App. 1999). In Coghill, this court determined the trial court had erred by admitting evidence of downloaded adult pornography when Coghill was charged with possession of child pornography. 216 Ariz. 578, ¶¶ 12, 24, 169 P.3d at 946, 948. The state claimed the evidence would show Coghill's ability to find and download pornography, but this court noted that the state did not need to show the downloaded material was pornographic to do so. Id. ¶¶ 15, 17-18. We noted "Arizona courts have emphasized the importance of the trial court's role in removing unnecessary inflammatory detail from other-act evidence before admitting it." Id. ¶ 19.
¶16 Here, the trial court admitted the evidence concerning the 2012 conviction for possession of child pornography for a proper purpose under Rule 404(b): identity. It excluded proposed other-act evidence about the two earlier incidents as irrelevant and unduly prejudicial. Further, the court gave an appropriate limiting instruction at trial. Thus, McKerlie has failed to show Coghill is applicable here.
¶17 In Vigil, a drive-by shooting case, this court found that other-act evidence should not have been admitted when the prosecutor argued the evidence should be admitted to show a "continuing pattern of harassment." 195 Ariz. 189, ¶¶ 18, 25, 986 P.2d at 225-26. The trial court, "on its own initiative, . . . admitted the evidence to prove 'identity' and 'motive,' neither of which was at issue." Id. ¶ 18. We noted the prosecutor had expressly indicated that identity and motive were not at issue. Id. ¶¶ 20-21. We recognized that a "common scheme or plan" was the closest enumerated Rule 404(b) exception to the "pattern" justification offered by the prosecutor. Id. ¶ 23. Under Arizona law, a court can only admit other-act evidence under the common scheme or plan exception when the state can show "that the other act is part of 'a particular plan of which the charged crime is a part.'" Id. ¶ 24, quoting State v. Ives, 187 Ariz. 102, 106, 927 P.2d 762, 766 (1996). The Vigil court determined the pattern alleged in that case did not meet the standard for common scheme or plan, and therefore concluded it was an error to admit the evidence on that ground. Id. ¶ 25.
¶18 Thus, McKerlie argues that, based on Vigil, the trial court abused its discretion by allowing the admission of the 2012 conviction evidence to show a "pattern" of practice. But Vigil is distinguishable from McKerlie's case. First, the similarities between the two crimes were indicative of a proper Rule 404(b) purpose, identity, which was in issue. Second, the trial court in this case did not admit the 2012 conviction evidence "on its own initiative," but rather upon a specific motion alleging various proper Rule 404(b) grounds. See Vigil, 195 Ariz. 189, ¶ 18, 986 P.2d at 225. Finally, although the prosecutor did use the term "pattern" in closing argument, the prosecutor clarified that she referred to a "pattern" in the context of showing identity or lack of mistake. Vigil does not help McKerlie.
¶19 The prosecutor also used the 2012 conviction evidence to show "absence of mistake." McKerlie appears to contend that this was an improper purpose because he never put absence of mistake at issue. But proving that McKerlie had committed sexual exploitation of a minor by possessing child pornography requires the state to prove such possession was "knowing[]" rather than inadvertent. A.R.S. §§ 13-3553(A), 13-105(10)(b).
¶20 McKerlie also argues that the use of the 2012 conviction evidence "was so egregious that it denied [McKerlie] his presumption of innocence and violated due process of law." McKerlie did not raise this specific argument before the trial court, and thus forfeited relief for all but fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). And he has not shown any error, let alone fundamental error. See id. ¶ 23.
¶21 McKerlie cites McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993), for the proposition that when sufficiently inflammatory, the use of other-acts evidence can deny a defendant due process of law. The court in McKinney specified that the admission of evidence violates due process when "there are no permissible inferences the jury may draw from the evidence." Id. at 1384, quoting Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). As noted above, the jury could infer McKerlie's identity as the person downloading the pornography from the similarities between the 2012 conviction and the current case. The admission of the 2012 conviction therefore did not violate McKerlie's due process rights.
¶22 McKerlie additionally argues the trial court should not have admitted the 2012 conviction evidence for the purposes of proving motive, knowledge, as well as completing the story. But because we have determined the trial court properly admitted the evidence to prove identity and absence of mistake, that the evidence was not used for a different "pattern" purpose, and that it did not violate McKerlie's due process rights, we need not address these other Rule 404(b) arguments. Ariz. R. Evid. 105 (evidence may be admissible for one purpose and inadmissible for another); see also Readenour v. Marion Power Shovel, a Div. of Dresser Indus., Inc., 149 Ariz. 442, 449, 719 P.2d 1058, 1065 (1986) ("The danger that the jury may improperly consider the evidence or apply it in an improper manner does not in itself provide a reason for exclusion."); State v. Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d 111, 113 (App. 2012) ("We are required to affirm a trial court's ruling if legally correct for any reason.").
Although McKerlie mentions Rule 403 in his briefs, he did not provide any argument as to why the admission of the other act evidence should have been precluded under Rule 403, and has therefore waived the argument. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995); Ariz. R. Crim. P. 31.13(c)(1). --------
Waiver of Right to Twelve-Person Jury
¶23 McKerlie next contends that his right under the Arizona constitution to a twelve-person jury was violated "because his waiver was not knowing, voluntary, and intelligent." We review questions pertaining to denial of a defendant's twelve-person-jury right de novo. State v. Maldonado, 206 Ariz. 339, ¶ 10, 78 P.3d 1060, 1063 (App. 2003). Because McKerlie did not present this argument to the trial court, McKerlie has forfeited review for all but fundamental error. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Improper deprivation of a constitutionally required twelve-person jury is "fundamental error requiring reversal and a new trial." Maldonado, 206 Ariz. 339, ¶ 16, 78 P.3d at 1064.
¶24 Article II, § 23 of the Arizona Constitution states that, "Juries in criminal cases in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons." If a defendant consents before the return of a verdict, such a case can be tried with fewer than twelve jurors. A.R.S. § 21-102(E). A defendant may waive his jury right in writing or in open court so long as the court has personally advised the defendant and has "ascertain[ed] that the waiver is knowing, voluntary, and intelligent." Ariz. R. Crim. P. 18.1(b). Whether a waiver of a jury trial is knowing, voluntary, and intelligent will "depend upon the unique circumstances of each case." State v. Butrick, 113 Ariz. 563, 566, 558 P.2d 908, 911 (1976).
¶25 In this case, after the trial court had released the sole alternate juror, one of the remaining twelve jurors was unable to appear at trial due to a family emergency. After confirming with McKerlie's counsel that he was willing to waive his right to a twelve-person jury, the court personally addressed McKerlie and informed him that, based on the charges he was facing, he was "entitled to a 12-person jur[y]," and that the only way the trial would go ahead with less than twelve jurors is if McKerlie agreed to proceed in that fashion. The judge explained further: "So you can consent to allowing 11 people to decide the case, or you can say: No, Judge, I'd rather not do that. I want 12." The judge had previously, in the presence of McKerlie, explained that if McKerlie did not waive his right to a twelve-person jury, the judge would "tell the jury to come back Monday morning" after calling them into court to determine their availability.
¶26 After expressly confirming in open court on the record that he had discussed the "pros and cons [of his] particular case" with his attorney, McKerlie indicated he was "willing . . . to proceed with the 11 [jurors] that remain[ed]." The court expressly found that McKerlie knowingly and voluntarily waived his right to have his case decided by a twelve-person jury, and the case proceeded with the eleven remaining jurors.
¶27 We conclude the trial court complied with all applicable procedures to ensure that McKerlie knowingly, voluntarily, and intelligently waived his right to a twelve-person jury. Ariz. R. Crim. P. 18.1(b). But McKerlie contends on appeal that the trial court incompletely explained McKerlie's rights, rendering his waiver invalid. McKerlie asserts the court "essentially told [him] he could proceed with 11, 12, or not proceed at all," and contends this statement was constitutionally deficient because the court did not inform McKerlie "that, by agreeing to an 11 person jury, he had the right to insist his sentence not exceed 30 years imprisonment." McKerlie argues he possessed such a right based on State v. Soliz, 223 Ariz. 116, 219 P.3d 1045 (2009).
¶28 In Soliz, our supreme court held that, when the state "fail[s] to request a jury of twelve, [it] effectively waive[s] its ability to obtain a sentence of thirty years or more." Id. ¶ 16. In that case, the state did not object when the court empaneled only eight jurors and one alternate. Id. ¶ 3. The trial proceeded, and an eight-person jury convicted the defendant, who was sentenced to only ten years. Id. The supreme court held that no error had occurred, because the defendant did not receive a sentence that exceeded the thirty-year limit imposed by the Arizona Constitution. Id. ¶ 18.
¶29 Soliz does not stand for the proposition that McKerlie had a right to insist that his sentence be limited to thirty years because he consented to an eleven-person jury. And, because this statement, although erroneous, would have been favorable to McKerlie, it would have encouraged, not discouraged, him from waiving his right. The record shows McKerlie properly waived his right to a twelve-person jury despite knowing that his sentence could exceed thirty years. Therefore, we find McKerlie effectively waived his right to a twelve-person jury, and his convictions and sentences are correspondingly appropriate.
Constitutionality of A.R.S. §§ 13-705 & 13-3553(C)
¶30 Finally, McKerlie argues that the sentencing scheme for sexual exploitation of a minor is unconstitutional because it constitutes cruel and unusual punishment and does not provide equal protection under the law. As to the claim that a 140-year sentence is not proportional to the crime of possessing five images of child pornography, McKerlie acknowledges that the Arizona Supreme Court has "squarely decided that this sentencing scheme does not violate the Eighth Amendment." See State v. Berger, 212 Ariz. 473, ¶¶ 4-6, 51, 134 P.3d 378, 380, 388 (2006) (holding constitutional twenty consecutive ten-year sentences for possessing twenty images depicting child pornography); see also State v. McPherson, 228 Ariz. 557, ¶ 16, 269 P.3d 1181, 1187 (App. 2012) (acknowledging that Arizona Supreme Court did not construe Arizona right against cruel and unusual punishment "more broadly than its federal counterpart"). "We have no authority to overrule or disregard the decisions of our supreme court." State v. Brown, 233 Ariz. 153, ¶ 27, 310 P.3d 29, 38 (App. 2013). We therefore must reject this argument.
¶31 Next, McKerlie contends that the sentencing scheme violates his equal protection rights by treating his charges "similar[ly] to the [other] offenses enumerated in [A.R.S.] § 13-705" dealing with dangerous crimes against children. McKerlie acknowledges that this court has squarely considered and rejected this argument in McPherson, 228 Ariz. 557, ¶¶ 17-19, 269 P.3d at 1187-88. McKerlie asserts McPherson was wrongly decided, and asks us to reconsider it, declaring §§ 13-3553(C) and 13-705 unconstitutional. "Stare decisis . . . requires special justification to depart from existing precedent," State v. Olague, 240 Ariz. 475, ¶ 23, 381 P.3d 269, 275 (App. 2016), and we are not presented with any such justifications here. We therefore reject the invitation to reconsider McPherson in this case.
Disposition
¶32 Based on the foregoing, we affirm McKerlie's convictions and sentences.