State v. Curtis

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVID WILLIAM CURTIS, JR., Appellant.

No. 1 CA-CR 11-0387
FILED 4-1-2014

Appeal from the Superior Court in Maricopa County
No. CR2010-005771-001 DT
The Honorable Paul J. McMurdie, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Joel Erik Thompson, Phoenix
Co-Counsel for Appellant

Bruce W. Griffin, Flagstaff
Co-Counsel for Appellant
 STATE v. CURTIS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge John C. Gemmill and Judge Randall M. Howe joined.

T H U M M A, Judge:

¶1 David William Curtis, Jr., appeals his convictions and
sentences for fifteen counts of sexual exploitation of a minor and four
counts of molestation of a minor. Finding no reversible error, the
convictions and sentences are affirmed.

¶2 The charges arose from a private citizen’s discovery of a
flash drive in the parking lot of the Tempe Marketplace in May 2009. The
flash drive contained multiple images of child pornography and was
linked to Curtis. Further investigation resulted in the seizure of additional
such images on digital media from Curtis’ home and a car parked in his
home driveway, including images depicting Curtis molesting a child.

¶3 Curtis, an attorney, represented himself at trial. Curtis
defended on the basis that he had no sexual interest in children and had
never molested a child; the evidence failed to prove he was ever in
possession of the flash drive; the police might have planted images on the
other media or manipulated data or the images might have been evidence
left over from his years as an attorney representing clients that he had not
destroyed.

¶4 Curtis testified at trial, stating that he did not recall seeing
the images that formed the basis of the first ten counts in the indictment,
but he had possessed items similar to the charged images in the course of
representing clients facing criminal charges and in child-protection and
custody cases. Curtis testified that he had had no such cases involving
similar images after 2005, and that he had destroyed a chart linking
evidence to the specific clients when he retired from the active practice of
law in 2006. Curtis testified that none of the images had sexual stimulation
as their purpose, he had never molested the child depicted in the images
charged in Counts 12, 14 and 16, and the images in Counts 18 and 20,
which gave rise to associated molestation counts, did not depict either him
or the child identified as the victim. Curtis also testified that someone else
might have planted the evidence for many of the counts.

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¶5 The jury convicted Curtis of nineteen of the twenty counts
he faced and the superior court sentenced him to ten years on each count,
to be served consecutively, for a total of 190 years in prison. Curtis filed a
timely delayed notice of appeal and this court has jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -
4033(A)(1) (2014). 1

I. Duplicitous Indictment And Charge To The Jury.

¶6 Curtis first argues that the indictment was duplicitous on its
face because it failed to include the necessary specificity: that is, the
exploitation counts failed to identify a digital address or pathway for the
charged images and the molestation counts and the testimony to the
grand jury regarding those counts failed to describe a specific act. Curtis
also argues that the superior court failed to timely rule on his pretrial
motion to dismiss on grounds of duplicity, thereby depriving him of an
opportunity to correct these defects.

¶7 After full briefing of his motion to dismiss, but before the
superior court heard or decided the matter, Curtis withdrew the motion,
stating “[w]ith the passing of over four months since the filing of the
motion, the effect of the motion has been effectively mooted.” By this
conduct, Curtis waived the challenges he now presses about claimed
flaws in the indictment. See State v. Anderson, 210 Ariz. 327, 335-36, ¶¶ 15-
17, 111 P.3d 369, 377-78 (2005) (holding failure to object to alleged defects
in indictment before trial waived any objection); see also State v. Charo, 156
Ariz. 561, 566, 754 P.2d 288, 293 (1988) (holding defendant invited any
error in denial of motion to remand where motion denied as moot at
defendant’s request). Moreover, the indictment was sufficiently specific.
See generally Ariz. R. Crim. P. 13.2. The indictment identified the elements
of each offense charged; the individual image title relevant to each
exploitation count (and in most cases, the location of the media on which
it was found); the conduct giving rise to the molestation counts (as did the
testimony presented to the grand jury) and implicitly paired them with
the exploitation counts depicting the alleged molestation. See State v. Far
W. Water & Sewer Inc., 224 Ariz. 173, 187, ¶ 36, 228 P.3d 909, 923 (App.
2010) (“An indictment is legally sufficient if it informs the defendant of the
essential elements of the charge, is definite enough to permit the

1 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.

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defendant to prepare a defense against the charge, and affords the
defendant protection from subsequent prosecution for the same offense.”).

¶8 Curtis also argues the State switched images and substituted
other acts for the charged offenses, and that the superior court did not
properly rule on evidentiary issues or properly instruct the jury, resulting
in duplicitous charges being presented to the jury, with the resulting
uncertainty that “the jurors unanimously agreed upon a single factual act
or event” and risk of conviction for uncharged offenses. A criminal
defendant has the constitutional right to a unanimous jury verdict. Ariz.
Const. art. 2, § 23. The possibility of a less than unanimous verdict may
occur when the indictment charges an offense based on one act, but the
State offers evidence of a different act that satisfies the definition of the
charged crime, a circumstance sometimes referred to as a duplicitous
charge. State v. Klokic, 219 Ariz. 241, 244, ¶ 12, 196 P.3d 844, 847 (App.
2008). This court reviews the superior court’s admission of evidence for
abuse of discretion. State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853, 858
(1990). This court reviews the adequacy of jury instructions in their
entirety to determine if they accurately reflect the law, State v. Hoskins, 199
Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000), recognizing that “[c]losing
arguments of counsel may be taken into account when assessing the
adequacy of jury instructions,” State v. Bruggeman, 161 Ariz. 508, 510, 779
P.2d 823, 825 (App. 1989) (citation omitted).

¶9 The record does not support Curtis’ argument that the State
switched images and substituted other acts for the charged offenses. The
verdict forms for the exploitation counts mirrored the indictment (as
amended) by identifying the title of each of the charged images, the media
on which the image was discovered and where that media was found, a
procedure Curtis acknowledged at trial would “take care of the
duplicitous issue.” With three exceptions, the titles inscribed on the back
of the hard copies of the charged images also mirrored the titles charged
in the indictment and listed on the verdict forms. The three exceptions
consisted of a typographical error (a single letter discrepancy) of no
material significance, given the absence of any other images admitted at
trial with the same title. Curtis has not shown that the single letter
discrepancy involving these three charges (Counts 1, 2 and 20) resulted in
the submission of duplicitous charges to the jury. Among other things, the
jury asked about the single letter discrepancy in the name on the hard
copy of the images for each of these three counts, and the superior court
responded by referring them to the verdict forms.

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¶10 Nor has Curtis shown the charges submitted to the jury were
duplicitous because the jury asked during deliberations whether the
molestation charges were associated with specific images. In response,
after conferring with the parties, the superior court instructed the jury that
it was to “rely on the evidence, argument of counsel and the instructions
given.” The verdict forms for the molestation counts identified the child’s
name and the sexual contact alleged consistent with the “to-wit”
designation in the indictment. 2 Moreover, both parties linked each
molestation count by evidence, testimony and argument to the charged
image in the count depicting the molestation.

¶11 Similarly, Curtis has not shown that the superior court
abused its discretion or created the risk of a less than unanimous verdict
by allowing a detective to testify that the charged images were also found
on other media seized pursuant to a search warrant, and by allowing the
State to admit in evidence 23 uncharged images. As discussed in Section V
below, the superior court acted within its discretion by admitting the
uncharged images after Curtis opened the door to such evidence in
claiming he possessed many of the images in his capacity as a lawyer, and
by cross-examining the case agent on what evidence he could offer to
show Curtis possessed the charged images. The distinction between the
charged images, their discovery on other media and the uncharged
images properly was maintained throughout trial, including in closing
arguments.

¶12 The record fails to support Curtis’ claims that the State
misled the jury by allowing a forensic detective to switch titles in
testifying about the image titles charged in Counts 12, 14, 18 and 20. On
this record, the detective’s reference when testifying about Count 14 to
“cheare197.jpg,” instead of the charged image of “cheare196.jpg” as
identified in the prosecutor’s question, is not evidence of a deliberate
attempt by the State to switch images, but rather a slip of the tongue that
was neither intentional nor significant in context. The detective’s reference
to the charged image in Count 20 (“$R619N0.jpg”) as “$R6191NO,”
similarly was, at most, an insignificant mistake, particularly because only
one image admitted at trial had this or a similar title.

2The type of sexual contact involved was omitted from the indictment
and verdict form for Count 11, for which the related image in Count 12
depicted the child manipulating her own genitals.

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¶13 Curtis also has failed to show that the superior court abused
its discretion or created the risk of a less than unanimous verdict by
allowing the detective to testify that he was able to discover the date that
the deleted images in Counts 12, 18 and 20 were photographed, the so-
called “EXIF” data, by searching for the files that would allow their
retrieval from a computer recycle bin. The superior court acted within its
discretion in finding that Curtis had opened the door to this evidence by
highlighting the absence of EXIF data for the charged images in cross-
examination. Finally, the court is not persuaded by Curtis’ arguments,
which he failed to raise during trial, that the State “falsified the forensic
data” on the Nutcracker Suite 2006 photographs, that the State
deliberately “changed the sequence” of these images in a trial exhibit and
that the State added unrelated photographs without foundation, thereby
misleading the jury.

¶14 The superior court properly instructed the jury that it was
required to unanimously agree on each verdict, addressing each count
separately. The jury instructions given, coupled with the verdict forms
identifying the charged image or conduct and the parties’ arguments in
closing, ensured that the jury reached unanimous verdicts on all charges.
On this record, the charges presented to the jury were not duplicitous.

II. Denial Of Motions To Suppress.

¶15 After Curtis filed various pretrial motions to suppress, the
superior court held a four-day evidentiary hearing and then issued
rulings. Curtis argues the court erred in denying five of his motions to
suppress. In reviewing a denial of a motion to suppress, this court limits
the review to the facts the superior court considered at the suppression
hearing, State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996),
viewed in the light most favorable to sustaining the superior court’s
ruling, State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996). This court
gives deference to the superior court’s factual findings, but reviews de
novo whether the Fourth Amendment was violated. State v. Gonzalez–
Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). The superior court’s
ruling will be affirmed if legally correct for any reason. State v. Canez, 202
Ariz. 133, 151, ¶ 51, 42 P.3d 564, 582 (2002).

A. Initial Warrantless Search Of Flash Drive.

¶16 Curtis argues the superior court erred in denying his first
motion to suppress, which sought to suppress evidence discovered in an
initial warrantless police search of a computer flash drive. The flash drive

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was found in a parking lot at the Tempe Marketplace by a private
individual, who turned it over to the police after discovering what he
described as “kiddie porn” on the flash drive. Curtis argues the police
lacked proper cause to conduct a warrantless search of the flash drive, that
the warrantless search was impermissible because it differed from and
exceeded the scope of the preceding private search by the individual who
found the flash drive and that the warrantless search should not have
been allowed to determine ownership of the flash drive.

¶17 The Fourth Amendment guarantees the right to be secure
against unreasonable searches and seizures, and provides that no
warrants shall issue except upon probable cause. U.S. Const. amend. IV.
“A ‘search’ occurs when an expectation of privacy that society is prepared
to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109,
113 (1984). Although a person retains no privacy interests in abandoned
property, see Abel v. United States, 362 U.S. 217, 241 (1960), a person retains
some privacy interests in lost or misplaced property, which are
outweighed by the government’s interest in identifying and returning the
property to its owner, see Gudema v. Nassau Cnty., 163 F.3d 717, 722 (2d
Cir. 1998).

¶18 The Fourth Amendment has no applicability to a search by a
private individual not acting with the knowledge of, or as an agent for, the
government. Jacobsen, 466 U.S. at 113. The government’s subsequent
searches are permissible to the extent they do not exceed the scope of the
private search and thus do not “infringe any constitutionally protected
privacy interest that had not already been frustrated as the result of
private conduct.” Id. at 115, 118-26 (holding government’s warrantless
removal of plastic bags from cardboard tube in box, and chemical testing
of powder in innermost bag, was permissible because government’s
search did not reveal anything more than it already knew from private
search, and testing did not infringe any constitutionally protected privacy
interests). A government official’s search of a computer disk does not
exceed the scope of the prior private search simply because the
government official examines more files than did the private party. United
States v. Runyan, 275 F.3d 449, 464-65 (5th Cir. 2001) (holding, in case
involving warrantless search of computer disks containing child
pornography, that police did not exceed scope of private search by
examining more files on each disk than did private search).

¶19 Based on the evidence and argument received at the four-
day evidentiary hearing, the superior court found that the flash drive had
been lost or misplaced, not abandoned. The court found that a private

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party discovered the flash drive in a parking lot at the Tempe Marketplace
and turned it over to police after reporting that he saw what he perceived
to be “kiddie porn” on the flash drive. The court found that a police
detective opened folders on the flash drive to determine whether the
photographs viewed by the private party were in fact prohibited under
Arizona law. The court further found that the objectionable material was
apparent as soon as the detective viewed the folders on the flash drive.
The court also found that the detective’s warrantless search of the flash
drive was no more extensive than the private party’s search.

¶20 The superior court did not abuse its discretion in finding
that the detective’s warrantless search of the flash drive was no more
extensive than the search conducted by the private party. The private
party testified that he saw thumbnail views of “kiddie porn” after he
viewed several folders on the flash drive. The detective who conducted a
review to determine if images on the flash drive were prohibited under
Arizona law testified that he quickly scrolled through thumbnail views of
the contents of two folders before he opened a folder that displayed
thumbnail views of at least four images of child pornography. The
detective exited the program as soon as he confirmed child pornography
was present on the flash drive. He later confirmed that child pornography
was present in only that one folder, which contained 24,000 images, the
majority of which was child pornography. On this record, the superior
court did not err in finding that the detective’s search of the flash drive
was no more extensive than that of the private party. See Runyan, 275 F.3d
at 464-65; Jacobsen, 466 U.S. at 115, 118-26. For these reasons, the
detective’s warrantless search of the flash drive “did not infringe any
constitutionally protected privacy interest that had not already been
frustrated as the result of private conduct” and, accordingly, did not
violate Curtis’ Fourth Amendment rights. Jacobsen, 466 U.S. at 126.

B. Search Of Flash Drive Pursuant To Warrant.

¶21 Curtis argues the superior court erred in denying his second
motion to suppress, which sought to suppress evidence discovered during
a second search of the flash drive following the issuance of a search
warrant. Curtis argues that the evidence should have been suppressed
because the probable cause affidavit supporting the warrant relied on
evidence from the warrantless search. Curtis also alleges that the affidavit
in support of the warrant relied on “false statements of material facts,”
specifically that the private party had reported seeing “several pictures of
what he believed to be underage children engaged in sex acts,” and that

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the initial warrantless search revealed images showing a prepubescent
female “having sexual intercourse with an adult male.”

¶22 “A trial court must suppress evidence seized pursuant to a
warrant if a defendant proves, by a preponderance of the evidence, that
the affiant knowingly, intentionally, or with reckless disregard for the
truth made a false statement to obtain the warrant and that the false
statement was necessary to a finding of probable cause.” State v.
Nordstrom, 200 Ariz. 229, 245, ¶ 42, 25 P.3d 717, 733 (2001) (citing Franks v.
Delaware, 438 U.S. 154, 155-56 (1978)), overruled on other grounds by State v.
Ferrero, 229 Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012). Innocent or
negligent errors in an affidavit are not enough under Franks; proof is
required that, at a minimum, the affiant entertained serious doubts about
the truth of the avowals. State v. Carter, 145 Ariz. 101, 109, 700 P.2d 488,
496 (1985).

¶23 The record supports the superior court’s finding of “no
evidence of falsehoods in the search warrant affidavit.” The four
photographs from the flash drive providing the basis for the detective’s
declaration that he saw images depicting a child engaged in sex with an
adult reasonably support such a conclusion. In addition, the private
individual testified that he told police that the pictures he viewed
depicted “kiddie porn” (which he described as involving “preteen
children who I think would not understand that physical contact with an
adult”) and were “sexual in nature.” The detective could reasonably have
interpreted these statements to refer to children engaging in sexual acts.
For these reasons, Curtis’ argument that the evidence should be
suppressed because the detective made false statements in the probable
cause affidavit supporting the warrant fails.

C. Search Of Hard Drive And CD Discovered In Seized
Property.

¶24 Curtis argues the superior court erred in denying his fifth
motion to suppress, which claimed the police conducted a warrantless
search of a portable hard drive discovered on the front passenger seat of a
Honda Civic parked in his home driveway after the car had been towed to
a police impound lot. Curtis argues on appeal that the search warrants
issued for the car and his residence did not cover the portable hard drive
found in the Honda Civic and a CD found in a Fujitsu laptop computer in
his bedroom, and the evidence therefore should have been suppressed.
Because Curtis did not ask the superior court to suppress the evidence
discovered in a search of the CD found in the Fujitsu laptop computer on

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the basis he raises on appeal, he bears the burden of demonstrating that
any error was fundamental error resulting in prejudice. State v. Henderson,
210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005).

¶25 The initial search warrant for Curtis’ residence and the
Honda Civic authorized police to examine and impound the car to
ascertain if its interior matched photographs found on the flash drive and
to seize computers and digital media found in the car and at the residence
for later search by forensic examiners for evidence of images of the sexual
exploitation of minors in violation of A.R.S. § 13-3553(A). A second search
warrant judicially approved later in the day authorized the search and
impoundment of a Hyundai that Curtis was driving the day of his arrest.
A third search warrant judicially approved the following day authorized
police to search digital media and computers seized from the residence or
the vehicles as identified in an attached Exhibit A. The detective who
prepared the search warrants testified that he obtained the third warrant
as a “precautionary” measure and inadvertently omitted the portable hard
drive from Exhibit A discovered earlier that day in the Honda Civic.

¶26 The superior court concluded that the initial search warrant
covering the Honda Civic and Curtis’ residence properly allowed the
search of any seized digital media, including the late-discovered portable
hard drive (notwithstanding the technical error in omitting that late-
discovered portable hard drive from the list of seized items to be searched
in Exhibit A to the third warrant). On appeal, Curtis has shown no error in
the superior court’s conclusion. Moreover, the same analysis applies to the
search of the CD in the Fujitsu laptop computer seized from Curtis’
bedroom, which was not discovered until sometime after the computer
was seized. “[O]nce an item in an individual’s possession has been
lawfully seized and searched, subsequent searches of that item, so long as
it remains in the legitimate uninterrupted possession of the police, may be
conducted without a warrant.” United States v. Burnette, 698 F.2d 1038,
1049 (9th Cir. 1983). Here, police lawfully seized the Honda Civic and the
laptop computer pursuant to the first warrant to allow time and a secure
venue for a subsequent, more thorough search, including a comparison of
the interior of the Honda Civic to the background of certain photographs,
and to allow a forensic search of computers and other digital media.
Because the portable hard drive and the CD in the Fujitsu laptop
computer were discovered while the items were in the uninterrupted
possession of the police pursuant to their execution of the first warrant, it
was not necessary for police to obtain another warrant to conduct these
searches. Under these facts and circumstances, the superior court did not
err in refusing to suppress the evidence found on the portable hard drive,

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or fundamentally err in failing to suppress the evidence found on the CD
discovered in the Fujitsu laptop computer.

D. Execution Of Search Warrant 2009-003192.

¶27 Curtis argues Search Warrant 2009-003192 was overbroad as
executed, because police “exceeded the extent of the probable cause upon
which it was based” by seizing more than 120 items of computer memory
and other property “without first determining if it contained any illegal
images or evidence of any crime.” Curtis raised this issue in a Motion to
Suppress SW 2009-003192 and Motion to Controvert, filed after the four-
day evidentiary hearing. Because the record does not reflect that the
superior court explicitly ruled on this motion, the motion is deemed
denied. See State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375, 1385 (1993).

¶28 The Fourth Amendment prohibits the issuance of general
warrants that would lead to “exploratory rummaging in a person’s
belongings.” Andresen v. Maryland, 427 U.S. 463, 480 (1976) (citation
omitted). Instead, the Fourth Amendment requires that a warrant describe
with particularity the things to be seized and searched. U.S. Const. amend.
IV. This particularity requirement limits police to the search for, and
seizure of, evidence of crimes for which the issuing court found probable
cause. See State v. Alder, 146 Ariz. 125, 129, 704 P.2d 255, 259 (App. 1985).

¶29 In this case, the warrant furnished proper grounds for
seizure and a later forensic examination of all computers and digital
storage media at Curtis’ residence and in his vehicles to determine the
source of the child pornography found on the flash drive linked to him,
and to determine if Curtis possessed additional child pornography on
other devices. The identification of child pornography as the offense for
which evidence was sought provided “a sufficiently specific definition to
focus the search.” United States v. Hay, 231 F.3d 630, 638 (9th Cir. 2000).
Nothing requires that “the warrant be tailored to obtain only that
evidence already known to exist.” United States v. Banks, 556 F.3d 967, 973
(9th Cir. 2009). When, as in this case, police did not know the source of the
offending images on the flash drive, or on what computers additional
images might have been stored, seizure of all of the computers to allow a
later forensic search for child pornography was warranted. See Banks, 556
F.3d at 973; Hay, 231 F.3d at 637. In this case, as in others, “[a]s a practical
matter, the seizure and subsequent off-premises search of the computer
and all available disks was about the narrowest definable search and
seizure reasonably likely to obtain the images.” United States v. Upham, 168
F.3d 532, 535 (1st Cir. 1999). Moreover, cognizant of Curtis’ profession as

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an attorney and apparent author, police assured the court issuing the
warrant that they would take particular care to ensure that “no protected
files or documents are opened or altered in any way,” and police
subsequently performed a forensic search only for images (which might
depict child pornography). Under these circumstances, the execution of
Search Warrant 2009-003192 was not overbroad.

E. Subpoena Of Suppressed Bank Records.

¶30 Curtis argues that the fruit of the poisonous tree doctrine
precluded the State from subpoenaing and introducing at trial the same
bank records that police had originally obtained by a court order that was
procedurally improper. The superior court, however, noted during
argument on the original motion to suppress that the State could properly
obtain the records by other means, and granted the motion to suppress
“without prejudice to the State to lawfully obtain such records.” The court
later denied Curtis’ motion to quash the State’s subpoena for the bank
records, finding no bad faith on the part of the officers.

¶31 Evidence derived from an illegal search or seizure, the “fruit
of the poisonous tree,” is subject to the exclusionary rule requiring
suppression. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). The
exclusionary rule, however, does not apply “to evidence initially
discovered during, or as a consequence of, an unlawful search, but later
obtained independently from activities untainted by the initial illegality,”
or to evidence “that would inevitably have been discovered without
reference to the police error or misconduct.” Murray v. United States, 487
U.S. 533, 537, 539, 540-44 (1988); Nix v. Williams, 467 U.S. 431, 448 (1984).
These “independent source” and “inevitable discovery” doctrines strike
the proper balance of “putting the police in the same, not a worse, position
that they would have been in if no police error or misconduct had
occurred.” Nix, 467 U.S. at 432. Before obtaining Curtis’ bank records by a
court order that was procedurally improper, the police had already
obtained a credit report showing that Curtis maintained an account with
the bank. The State’s knowledge that Curtis maintained a bank account
formed an independent basis for the subpoena of bank records, and also
would have inevitably led to the discovery of the bank charge at issue. Cf.
Murray, 487 U.S. at 540-44 (discussing analysis). Accordingly, the superior
court did not err in refusing to quash the subpoena for the bank records,
and in allowing the admission into evidence for impeachment purposes, a
page from the records showing Curtis’ debit card was used to purchase a
Tempe Marketplace Harkins Theatre ticket a few days before the flash
drive was found in the Tempe Marketplace parking lot.

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III. Rulings On Law Office Computer Records.

¶32 Curtis argues the superior court erred by: (1) ruling that he
could not use his investigator to search his law office and client files (from
before his retirement in 2006) without waiving his clients’ attorney-client
privilege, and (2) refusing to order the State to provide electronic copies of
his computer files to his advisory counsel or investigator so that Curtis
himself could search these files.

¶33 Curtis has not cited to any portion of the record showing
that the superior court ruled that he could not use his investigator to
search his law office and client files without waiving his clients’ privilege.
The court suggested at an early pretrial hearing that such a waiver might
occur but made no ruling because Curtis informed the court that he had
instructed his investigator not to view client files. Accordingly, this
argument lacks any record support on appeal.

¶34 Curtis’ argument that the superior court erred by refusing to
order the State to provide electronic copies of his computer files to his
advisory counsel or investigator so that Curtis himself could search the
files also lacks merit. The State is required to make items otherwise
prohibited by the statute criminalizing the sexual exploitation of children
“reasonably available for inspection,” but requires reproduction or release
of such prohibited items only “[u]pon a substantial showing by a
defendant that reproduction or release for examination or testing of any
particular item is required for the effective investigation or presentation of
a defense, such as for expert analysis.” Ariz. R. Crim. P. 15.1(j). This court
reviews rulings on pretrial discovery issues for abuse of discretion.
Cervantes v. Cates, 206 Ariz. 178, 181, ¶ 11, 76 P.3d 449, 452 (App. 2003),
superseded on other grounds by Ariz. R. Crim. P. 15.1(j).

¶35 Shortly after Curtis was indicted, the State provided notice
that it would make all contraband available for Curtis’ inspection at the
Maricopa County Attorney’s Office, the Tempe Police Department or
another convenient or mutually agreed upon location. At a pretrial
hearing less than a week after that notice, the State advised the superior
court that its forensic examiner had copied the four terabytes (a large
amount) of seized electronic data to one or more hard drives for
examination by Curtis’ consulting expert.

¶36 At a pretrial hearing three months later, the parties engaged
in an extended discussion over whether the State could furnish a copy of
the electronic data to Curtis for his consulting expert’s unsupervised

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examination, in light of the known contraband and the potential for more
contraband on the devices that the State had not viewed because of a court
order protecting files subject to the attorney-client privilege. The court
directed the prosecutor to prepare an order that would provide Curtis’
consulting expert with a read-only copy of the electronic files, with the
proviso that the expert not copy any of the files, and return the copy when
the review was finished. The record, however, does not reflect that any
such order was prepared or signed or that Curtis ever complained about
the absence of such an order.

¶37 The record instead reflects that the following month, Curtis’
consulting expert was reviewing the hard drive containing the seized
media. The court later adopted the prosecutor’s proposal that Curtis and
his expert not be provided copies of the seized media containing
contraband, but be allowed to inspect the evidence under the supervision
of a deputy sheriff subject to a gag order, which Curtis agreed was “a
perfectly acceptable procedure.” The record reflects that Curtis and a
successor expert then reviewed the seized media on several occasions
before and during trial.

¶38 On this record, the State made the electronic media
“reasonably available for inspection,” as required under Rule 15.1(j). The
record demonstrates that Curtis received all of the access that he sought
before and during trial, as evidenced by the State’s granting his inspection
requests, by his failure to seek a continuance of the trial and his agreement
to mid-trial review of seized media. In addition, Curtis failed to make the
“substantial showing” required under Rule 15.1(j) that would have
required him to be furnished copies of the contraband. In short, the record
does not support Curtis’ argument that he was denied reasonable access
to the evidence, or wrongly denied copies of the seized material.

¶39 For the first time on appeal, Curtis claims that his rights
under Brady v. Maryland, 373 U.S. 83 (1963) were violated by his purported
lack of meaningful access to the electronic media, depriving him of the
opportunity to develop his defenses. This argument, however, is
speculation not supported by the record or his argument on appeal. In
Brady, the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at
87. Curtis has failed to identify any evidence that the State failed to
disclose, and has not explained how he could have proved his defenses
that the charged images came from his former clients’ files, were planted

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by others or were altered if he would have been provided greater access to
the content of the electronic media. Under these circumstances, Curtis has
abandoned and waived such claims. See State v. Moody, 208 Ariz. 424, 452
n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (failure to present “significant
arguments, supported by authority” in opening brief waives issue) (citing
State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989)).

IV. Constitutionality Of A.R.S. § 13-3553 As Applied.

¶40 Curtis argues the superior court erred in denying his motion
to dismiss, claiming A.R.S. § 13-3553 is unconstitutionally overbroad as it
applies to attorneys who obtained child pornography in the
representation of clients and the court “improperly instructed the jury
about the statute and defenses to it.” Curtis failed to object to the
instruction on the ground he raises on appeal, and accordingly must show
that any error in the instruction was fundamental and prejudicial.
Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. This court reviews the
adequacy of jury instructions in their entirety to determine if they
accurately reflect the law. Hoskins, 199 Ariz. at 145, ¶ 75, 14 P.3d at 1015.

¶41 Arizona is a “code state,” proscribing only those offenses
identified as crimes in the governing statutes and ordinances. A.R.S. § 13-
103(A) (abolishing common law crimes). In construing a statute, the court
starts with the statute’s language. State v. Jenkins, 193 Ariz. 115, 119, ¶ 11,
970 P.2d 947, 951 (App. 1998). A.R.S. § 13-3553(A)(2) prohibits, in pertinent
part, a defendant from “knowingly . . . possessing. . . any visual depiction
in which a minor is engaged in exploitive exhibition or other sexual
conduct.” “Exploitive exhibition,” in turn, is defined in pertinent part as
the exhibition of genitals of any person “for the purpose of sexual
stimulation of the viewer.” A.R.S. § 13-3551(4). “Sexual conduct” is
defined as including in pertinent part masturbation “for the purpose of
sexual stimulation of the viewer,” and actual or simulated sexual
intercourse (including oral/genital). A.R.S. § 13-3551(9)(a)-(d). Contrary to
Curtis’ argument, these definitions do not add an additional element to
the statutory offense that prohibits a defendant from knowingly
possessing such images only for the purpose of sexual stimulation. See A.R.S.
§ 13-3553(A)(2). These definitions simply limit the types of images that a
defendant must not knowingly possess. See State v. Hazlett, 205 Ariz. 523,
531, ¶¶ 27-28, 73 P.3d 1258, 1266 (App. 2003) (noting courts “have
emphasized that under these types of statutes, the material, at a
minimum, must be lewd and lascivious”); cf. State v. Gates, 182 Ariz. 459,
462-66, 897 P.2d 1345, 1348-52 (App. 1994) (rejecting argument in
interpreting prior version of statute “that when deciding whether

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something constitutes a ‘lewd exhibition,’ [the court] should focus on the
intent of the defendant”).

¶42 The superior court instructed the jury precisely as provided
in the statutes, and specifically that it was an offense to knowingly possess
images of minors engaged in sexual intercourse, or images of minors
engaged in masturbation or exploitative exhibition “for the purpose of
sexual stimulation of the viewer.” This is a proper statement of the law. As
a factual matter, Curtis is mistaken in claiming the superior court failed to
instruct the jury that the offense of sexual exploitation of a minor requires
that the defendant knowingly possess the exploitative images for
purposes of sexual stimulation. Accordingly, Curtis’ claim of error lacks
support in either the law or the factual record.

¶43 The superior court also did not err in refusing to dismiss the
charges on the ground that A.R.S. § 13-3553(A)(2) is overbroad as applied
to attorneys, and did not err in instructing the jury that an attorney could
assert an affirmative defense only insofar as he possessed child
pornography for the active defense of a client, or to advise a client. The
superior court first noted that the Legislature had not provided a statutory
defense to possession of child pornography by a defense attorney, A.R.S. §
13-3553, and had abolished all common law defenses, A.R.S. § 13-103. The
court further reasoned that A.R.S. § 13-103 cannot prevent a defendant
from raising constitutional defenses to a criminal charge, see Jones v.
Sterling, 210 Ariz. 308, 314 n.7, ¶ 24, 110 P.3d 1271, 1277 n.7 (2005), and a
defense attorney’s possession of child pornography solely for purposes of
representing a client and resolution of “the case at hand” should not
expose the attorney to criminal liability, citing Cervantes, 206 Ariz. at 186,
¶ 30, 76 P.3d at 457 and United States v. Flynn, 709 F. Supp. 2d 737, 743
(S.D. 2010). The court accordingly allowed Curtis to assert an affirmative
defense that he was required to possess the images to defend and resolve
an active legal case, or to advise a client. The court instructed the jury that
it was an affirmative defense to the sexual exploitation charges “that the
possession was in the capacity of a lawyer for the active defense of a
client, or to properly advise a client regarding the images.” The court
further instructed the jury that “[t]he lawful possession ends when the
case ends or the advice has been rendered. Once lawful possession ends,
the images must be returned or destroyed.”

¶44 This court reviews de novo whether a statute is
constitutional. State v. Mutschler, 204 Ariz. 520, 522, ¶ 4, 65 P.3d 469, 471
(App. 2003). A party claiming a statute is unconstitutional must overcome
a “strong presumption” of constitutionality, and courts will, if possible,

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interpret a statute to avoid a constitutional infirmity. State v. Kaiser, 204
Ariz. 514, 517 ¶ 8, 65 P.3d 463, 466 (App. 2003). The party challenging the
constitutionality of a statute bears the burden of establishing its invalidity.
State v. Russo, 219 Ariz. 223, 225, ¶ 4, 196 P.3d 826, 828 (App. 2008).

¶45 A statute that includes within its scope speech protected by
the First Amendment is considered overbroad. Kaiser, 204 Ariz. at 519 ¶
17, 65 P.3d at 468. However,

where conduct and not merely speech is
involved . . . the overbreadth of a statute must
not only be real, but substantial as well, judged
in relation to the statute’s plainly legitimate
sweep. There must be a realistic danger that
the statute will significantly jeopardize
recognized first amendment protections of
individuals not before the court. Id. at 519, ¶ 7,
65 P.3d at 468 (citations omitted).

Child pornography is not protected by the First Amendment. See New York
v. Ferber, 458 U.S. 747, 764 (1982). Moreover, Arizona’s statutory scheme
ensures that a person may be convicted only for knowing possession of
child pornography (images of minors engaged in sexual conduct or lewd
and lascivious exhibition of their genitals). Accordingly, Curtis’ argument
that the sexual exploitation statute is overbroad (because, as interpreted
by the court, it applied to his possession of images for a purpose other
than sexual stimulation) fails. See id. at 746. 3

¶46 Nor is the court persuaded by Curtis’ challenge to the
constitutionality of the statute and adequacy of jury instructions when
applied to an attorney’s possession of such images “in the bowels of his
back-up computer drives or media . . . associated with past client
representations,” inadvertently or because of the “[m]any factors [that]
would require retention of this evidence” beyond the actual

3 The statute by its terms does not prohibit possession of medical studies
that include photographic evidence depicting a minor’s genitals for the
purpose of showing trauma from intercourse as Curtis argues. See A.R.S. §
13-3553(A)(2). Nor did the superior court preclude such evidence at trial
on the ground the studies contained child pornography. Instead, the court
found, as Curtis conceded, that certain studies (which are not in the record
on appeal) were not particularly relevant when offered.

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representation. Curtis’ challenge based on claimed inadvertent possession
fails to recognize that the State was required to prove beyond a reasonable
doubt that he “knowingly” possessed the images. See A.R.S. § 13-
3553(A)(2).

¶47 Curtis has offered no authority supporting a defense that
would allow him to retain child pornography obtained in connection with
legal representation years after that representation ended. In addition, he
failed to present evidence at trial to support a defense that it was
necessary for him to retain possession of the charged images in
representing any client. Curtis has offered no legal support for his position
that the statute is overbroad as applied because it was legally permissible
for him to possess child pornography obtained as evidence in a legal case
long after his active involvement in the case ended. The sole constitutional
basis for the defense that Curtis asserts is the Sixth Amendment right to
effective assistance of counsel, which extends only to the first appeal of
right and no further (i.e., during the “active” representation on which the
superior court instructed the jury). See Pennsylvania v. Finley, 481 U.S. 551,
555 (1987).

¶48 The Arizona Supreme Court accounted for this
constitutional right in amending the Arizona Rules of Criminal Procedure
to restrict the release of copies of child pornography to defense counsel
except upon a substantial showing that possession of a copy of a
particular image was “required for the effective investigation or
presentation of a defense.” See Ariz. R. Crim. P. 15.1(j) (imposing
restrictions on such release or copying, including requiring that “the item
shall be returned to the prosecutor by a deadline ordered by the court”);
accord A.R.S. § 13-3553(B) (“If any visual depiction of sexual exploitation
of a minor is admitted into evidence, the court shall seal that evidence at
the conclusion of any grand jury proceeding, hearing or trial.”). These
amendments were in response to a holding that the prior rules required
the State to provide copies of such materials to defense counsel for use in
the defense of the case without such a showing. See Cervantes, 206 Ariz. at
181-86, ¶¶ 11-32, 76 P.3d at 452-57. Curtis, however, testified that he had
no cases involving child pornography after 2005, he did not recognize any
of the images charged in Counts 1 through 10 (the only counts for which
he claimed this defense) and he had destroyed any cross-reference
between client names and evidence on his computers after he retired from

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the practice of law in 2006. 4 Under these circumstances, the record fails to
support Curtis’ claim that he possessed the charged images based on the
possibility that they would be needed to defend a client’s conduct,
meaning his claim that the statute is overbroad as applied fails.

V. Admission Of Other Acts Evidence.

¶49 Curtis argues the superior court abused its discretion in
admitting more than 300 images depicting uncharged acts that the State
had not specifically identified before trial, and without determining
whether they were admissible as intrinsic evidence or under Arizona Rule
of Evidence 404(b) or (c). This court reviews the superior court’s ruling on
the admission of evidence for an abuse of discretion. State v. Garcia, 200
Ariz. 471, 475, ¶ 25, 28 P.3d 327, 331 (App. 2001).

¶50 As an initial matter, the record does not support Curtis’
argument that the superior court admitted and allowed the State to
publish to the jury 300 uncharged images in the “cheare” series of images
without any foundation or relevance determination. Instead, the record
shows that the court admitted 10 uncharged images in the “cheare” series
as other acts evidence, although commenting that Curtis’ examination of
his expert on the content of images in that series that had not been
admitted had opened the door to publication of the entire series.

¶51 The superior court acted within its discretion by admitting
as other acts evidence 23 uncharged sexually exploitative images
(including the uncharged “cheare” images noted above), pedophilic titles
on 4 CDs and evidence that the charged images were also present on other
media seized from Curtis. As applicable here, evidence of other acts is not
admissible to prove character “to show action in conformity therewith,”
but it may be admissible for other purposes, such as proof of motive,
intent, or knowledge. See Ariz. R. Evid. 404(b). Stated differently, and
subject to various limitations, “[e]vidence relevant for any purpose other
than showing propensities to act in a certain way remains admissible.”
State v. Connor, 215 Ariz. 553, 563, ¶ 32, 161 P.3d 596, 606 (App. 2007). The

4Curtis also is mistaken in arguing that the jury instruction “required the
attorney to reveal those clients from whom the evidence was received or
be deemed guilty.” The superior court did not instruct the jury that the
defense was not available unless Curtis identified the specific clients for
whom he possessed the images.

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superior court “need not explain the basis for the decision to admit” other
acts evidence under Rule 404(b) “[s]o long as the decision is supported by
the facts before the court.” See State v. Jeffers, 135 Ariz. 404, 417, 661 P.2d
1105, 1118 (1983) (citations omitted). As applied, Curtis opened the door
to the admission of this evidence under Rule 404(b) by claiming that he
possessed most of the charged images in his capacity as a lawyer, and by
cross-examining the case agent on what evidence could be shown that
Curtis actually possessed the charged images. The other acts evidence was
admissible to show that Curtis knowingly possessed the charged images,
and to rebut his defense that he possessed the charged images given his
prior work as an attorney representing clients. See Connor, 215 Ariz. at 563,
¶ 32, 161 P.3d at 606. The court also properly instructed the jury about the
limited purpose for which such other acts evidence could be considered.

¶52 Similarly, the superior court did not abuse its discretion by
failing to require the State to identify the specific uncharged images that it
intended to admit before Curtis opened the door in his opening statement.
The court gave Curtis and his expert an opportunity to review the
uncharged images before Curtis cross-examined the detective, and Curtis
did not ask for a continuance to allow further examination. Such action
was not error.

¶53 Finally, the record fails to show that the superior court
found the other acts evidence was admissible to demonstrate aberrant
sexual propensity under Rule 404(c) or relied on Rule 404(c) in admitting
the other acts evidence. Curtis did request a Rule 404(c) limiting
instruction. Ultimately, the superior court instructed the jury on the
limited use it could make of both Rule 404(b) and (c) evidence, and that it
could consider such evidence only if it found by clear and convincing
evidence that Curtis had committed the other acts. These limiting
instructions, including the Rule 404(c) instruction Curtis requested,
prevented any unfair prejudice that might ensue from the evidence. See
State v. Villalobos, 225 Ariz. 74, 80, ¶ 20, 235 P.3d 227, 233 (2010). On this
record, the court did not abuse its discretion in admitting this other acts
evidence.

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CONCLUSION

¶54 Curtis’ convictions and resulting sentences are affirmed.

:MJT

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