State v. Valentine

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

LEONARD JOSEPH VALENTINE, Appellant.

No. 1 CA-CR 13-0841
FILED 3-17-2016

Appeal from the Superior Court in Maricopa County
No. CR2012-006283-001
The Honorable Peter C. Reinstein, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Arizona Attorney General's Office, Phoenix
By Andrew S. Reilly
Counsel for Appellee

Droban & Company PC, Anthem
By Kerrie M. Droban
Counsel for Appellant
 STATE v. VALENTINE
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MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.

J O H N S E N, Judge:

¶1 Leonard Joseph Valentine appeals his convictions and
resulting sentences for five counts of molestation of a child, Class 2 felonies
and dangerous crimes against children (Counts 1-4 and 7); two counts of
furnishing obscene or harmful items to minors, Class 4 felonies (Counts 5
and 6); one count of sexual conduct with a minor, a Class 2 felony and
dangerous crime against children (Count 8); one count of attempted sexual
conduct with a minor, a Class 3 felony and dangerous crime against
children (Count 9); and 27 counts of sexual exploitation of a minor, Class 2
felonies and dangerous crimes against children (Counts 10-36). Valentine
challenges the superior court's pretrial evidentiary rulings, and contends
the court erred in denying his motion for judgment of acquittal. Valentine
also argues he was improperly denied a speedy trial. For the reasons that
follow, we vacate the convictions and sentences for Counts 33-35. In all
other respects, we affirm the convictions and resulting sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 Valentine lived with his female friend, T., and sometimes
supervised her 10-year-old daughter, H., at home while T. worked.1 When
he was alone with H., Valentine would photograph the girl as she posed in
a sexual manner wearing a skirt but no underwear. At some point,
Valentine introduced H. to a 9 or 10-year-old girl, Am., and he took sexually
explicit pictures of the two girls together.

¶3 One day, H. brought home two other friends, K., 10 years old,
and K.'s sister, Al., 9 years old, and introduced them to Valentine. Valentine
showed the three children computer images of naked girls posing and
engaging in sexual activity. At Valentine's direction, H., K. and Al.

1 Upon review, we view the facts in the light most favorable to
sustaining the judgment and resolve all inferences against Valentine. See
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

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undressed and posed in suggestive poses for him while Valentine
photographed them. On two separate occasions, while taking pictures of
the three girls in his bedroom, Valentine touched their vaginas and
instructed them to do the same to each other. K. and Al. eventually
disclosed the incidents to their parents, who called the police.

¶4 During their investigation, police searched Valentine's
bedroom pursuant to a warrant and seized a computer, cameras, DVDs,
CDs and floppy discs, all containing numerous sexual images of children.
They discovered folders on the computer's hard drive titled "Am[.] 9 XXX,"
"H[.] XX," and "H[.] XXX," each containing images of Am. and H. partially
clothed. A "point-and-shoot" camera contained four photographs of H., K.
and Al. posing in a suggestive manner. The investigation also revealed that
Valentine had licked H.'s vagina and attempted to penetrate her with his
penis.

¶5 The State charged Valentine with 36 crimes allegedly
committed against the minor victims. At the conclusion of the State's case
at trial, Valentine unsuccessfully moved for a judgment of acquittal on all
counts pursuant to Arizona Rule of Criminal Procedure 20 ("Rule 20"). The
jury found him guilty of all the charges. The superior court imposed a
combination of concurrent and consecutive sentences, the longest of which
is life imprisonment. Valentine timely appealed. We have jurisdiction
pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona
Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2016), 13-4031 (2016)
and -4033(A)(1) (2016).2

DISCUSSION

A. Denial of Rule 20 Motion.

¶6 Valentine argues the superior court erred in denying his Rule
20 motion. The State concedes that insufficient evidence supports
Valentine's convictions for Counts 33-35. We accept this concession and
vacate Valentine's convictions and sentences for Counts 33-35. We
conclude the superior court properly denied Valentine's Rule 20 motion as
to the remaining counts.

¶7 We review de novo a superior court's denial of a Rule 20
motion. State v. Bible, 175 Ariz. 549, 595 (1993). A Rule 20 motion must be

2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.

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granted when "there is no substantial evidence to warrant a conviction."
Ariz. R. Crim. P. 20(a). Thus, the purpose of such a motion is to challenge
the sufficiency of the evidence. See State v. Jones, 125 Ariz. 417, 419 (1980).
"'Substantial evidence' is evidence that reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant's guilt beyond
a reasonable doubt." Id. We resolve any conflict in the evidence in favor of
sustaining the verdict, and we will reverse only if a complete absence of
probative facts supports the conviction. State v. Guerra, 161 Ariz. 289, 293
(1989); State v. Scott, 113 Ariz. 423, 424-25 (1976). We will not weigh the
evidence; that is the function of the jury. Guerra, 161 Ariz. at 293. If
reasonable minds could differ on the inferences to be drawn from the
evidence, whether direct or circumstantial, the case must be submitted to
the jury. State v. Landrigan, 176 Ariz. 1, 4 (1993).

1. Counts 1-4 and 7.

¶8 Counts 1 and 2 charged Valentine with molesting K. on or
between October 1 and October 31, 2006, and on or about November 7, 2006.
Counts 3 and 4 alleged Valentine molested Al. during the same time
frames.3 Count 7 alleged Valentine molested H. on or between November
9 and November 16, 2006. As charged here, molestation of a child involves
the intentional or knowing touching of the genitals of a child who is under
15 years of age. A.R.S. § 13-1410(A) (2016); see A.R.S. § 13-1401(A)(3) (2016)
(defining "sexual contact").

¶9 Valentine argues these five convictions should be reversed
because the evidence failed to establish the molestations occurred "on a
specific date" during the alleged time frames. Valentine also asserts K.'s
testimony regarding the conduct alleged in Counts 1 and 2 was
"uncorroborated" and otherwise insufficient because "no photographs were
ever recovered." Regarding Count 4, Valentine additionally argues no
evidence was presented to show he actually touched Al.

¶10 The State was not required to prove Valentine committed the
alleged offenses on a specific date. See State v. Verdugo, 109 Ariz. 391, 392
(1973) ("It has been held repeatedly that it is sufficient under the law that
the precise time of the act is unnecessary to be proven, if it is alleged that it
occurred 'on or about' a given date."). Moreover, although the child victims

3 The court granted the State's motion to amend Counts 1-4 to reflect
the date of the offenses as between October 1, 2006 and November 7, 2006.
This amendment does not affect our analysis.

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had difficulty remembering the dates of the molestations, they, including
Al., testified Valentine improperly touched them on two separate occasions
when they visited H., and other trial evidence indicates K. and Al. visited
H. at her home twice in 2006, on Halloween and on November 7. And,
contrary to Valentine's suggestion, K.'s "uncorroborated" testimony that he
twice molested her is sufficient to survive a Rule 20 motion. See State v.
Williams, 111 Ariz. 175, 177-78 (1974) (uncorroborated testimony of sexual
assault victim is sufficient to uphold conviction). Further, the lack of a
photograph representing the sexual contact alleged in Counts 1 and 2 is of
no consequence; the crime of molestation of a child requires no such
evidence. Finally, regarding Count 7, the record establishes H. disclosed
during a forensic interview that Valentine "touched [her] crotch area a
couple nights" before he was arrested on November 16, 2006.

¶11 Based on the foregoing evidence, the court did not err in
denying Valentine's Rule 20 motion with respect to the molestation counts.

2. Counts 5 and 6.

¶12 Counts 5 and 6 alleged Valentine, on or between October 1
and October 31, 2006, showed K. and Al., respectively, "computer photos of
'kids sucking balls' of an adult male." Valentine challenges the court's
denial of his Rule 20 motion on the ground that no evidence demonstrated
the alleged offenses occurred in October 2006. He also argues that the
"adult male" referred to in the indictment was, according to the evidence, a
boy under the age of 15.

¶13 The statute establishing the offense charged in counts 5 and 6
is A.R.S. § 13–3506(A), which provides, "It is unlawful for any person, with
knowledge of the character of the item involved, to recklessly furnish,
present, provide, make available, give, lend, show, advertise or distribute
to minors any item that is harmful to minors." An item is "harmful to
minors" if it depicts sexual activity or conduct that "the average adult
applying contemporary state standards" would find unsuitable for minors
due to a patently offensive appeal to prurient interests. A.R.S. § 13–
3501(1)(a) (2016). When taken as a whole, the item also must lack any
"serious literary, artistic, political, or scientific value for minors." A.R.S. §
13–3501(1)(b) (2016).

¶14 The trial evidence reveals that, when K. and Al. visited H.'s
home on Halloween in 2006 and "some day prior," Valentine showed the
girls pornographic images on his computer "[t]o give [them] ideas on how
to pose." One image, described by the victims as "girls sucking balls,"

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depicts young-looking women performing oral sex on a similarly aged
male. Regardless of the age of the male in the image, this evidence is
sufficient to sustain Valentine's convictions on Counts 5 and 6.

3. Counts 8 and 9.

¶15 Counts 8 and 9, respectively, charged Valentine with sexual
conduct with a minor under age 15 and attempted sexual conduct with a
minor under age 15 in violation of A.R.S. § 13-1405. In Count 8, the alleged
offense occurred between October 20 and November 9, 2006. The offense
in Count 9 allegedly occurred between November 9 and November 16,
2006.

¶16 "A person commits sexual conduct with a minor by
intentionally or knowingly engaging in sexual intercourse or oral sexual
contact with any person who is [a minor]." A.R.S. § 13-1405(A). If the victim
is under fifteen years of age, the offense is a class 2 felony. A.R.S. § 13-
1405(B). A person commits attempted sexual conduct with a minor if, while
acting with the culpability necessary to commit the offense, the person
intentionally does anything the person believes, under the circumstances,
to be any step towards committing sexual conduct with a minor. See A.R.S.
§§ 13–1001(A) (2016) and 13–1405.

¶17 Valentine argues the superior court erred in denying his Rule
20 motion on these charges because H. did not specify the dates of the
alleged offenses. As we have already noted, however, the State was not
required to prove the specific dates of the sexual conduct. See Verdugo, 109
Ariz. at 392.

¶18 H. testified that Valentine licked her vagina, and she informed
an investigator that the incident occurred two to three weeks before
Valentine was arrested on November 16, 2006. Thus, sufficient evidence
establishes that Valentine engaged in sexual conduct with H. within the
time range alleged in Count 8.

¶19 Regarding Count 9, H. testified that Valentine "tr[ied] to
enter" her vagina with his penis. The record reflects that this incident
occurred sometime in the fall of 2006.

¶20 Construing Valentine's argument, in part, to be a challenge to
the specificity of the allegations in Count 9, we conclude the indictment was
"sufficiently definite to inform [Valentine] of the offense charged." See Ariz.
R. Crim. P. 13.2(a) and comment thereto ("The charging document need not
contain allegations of time . . . except where necessary to give adequate

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notice of the charges."). Valentine defended the charge in Count 9 by
testifying that he never attempted to have sexual intercourse with H. He
did not argue that the incident described by H. occurred, but happened at
another time or was somehow innocent because he did not intentionally or
knowingly perform the act. Accordingly, whatever difference exists
between the alleged time frame in Count 9 and the trial evidence, Valentine
was not prejudiced by the discrepancy. See State v. Arizona Mines Supply
Co., 107 Ariz. 199, 201 (1971) ("an information is sufficient . . . where [it]
fairly indicates the crime charged, states the essential elements of the
alleged offense and is sufficiently definite to apprise the defendant of the
crime charged so as to allow him to prepare his defense"). The evidence
supports Valentine's conviction on Count 9.

4. Counts 10-32 and 36.

¶21 A person commits sexual exploitation of a minor if he or she
knowingly photographs or possesses a "visual depiction in which a minor
is engaged in exploitive exhibition or other sexual conduct." A.R.S. § 13–
3553(A) (2016). In relevant part, "exploitive exhibition" is defined as the
exhibition of a person's genitals "for the purpose of sexual stimulation of
the viewer." A.R.S. § 13–3551(5) (2016).

¶22 Regarding Counts 10-32, Valentine argues there was no
"exploitive exhibition" as required by § 13–3553 because the State failed to
present evidence that he or anyone else was sexually stimulated by the
digital photographs forming the basis for those counts.

¶23 The photographs on which these counts are based all focus on
the victims' exposed or partially exposed genitals. Although Valentine
testified that he was not sexually aroused by the photographs the State
presented substantial circumstantial evidence to permit a reasonable
inference that he created and possessed the photographs for his sexual
stimulation.

¶24 Significantly, the evidence shows Valentine would instruct
the victims to pose sexually when he photographed them, and H. testified
that, during one incident while she was prevented by a sheet from seeing
Valentine, she heard a camera "click" when he touched his penis to her
vagina. H. also testified Valentine told her that she "shouldn't tell anybody
[about the pictures]. It is our little secret[.]"

¶25 The State also presented evidence that some 21 years before,
at the age of 28, Valentine had been in a sexual relationship with a 14-year-
old girl. The two shared an apartment for approximately eight months.

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Valentine took sexually explicit nude photographs of her, and, as in this
case, would direct the girl to pose in a sexual manner. Furthermore, around
the same time, Valentine took similar pictures of another 14-year-old girl
and kissed and fondled her.

¶26 The foregoing evidence reasonably implies that Valentine
was sexually stimulated by young girls. Accordingly, the record establishes
that he engaged the victims in "exploitive exhibition," within the meaning
of the statute.

¶27 As for Count 36, Valentine contends the image underlying his
conviction on that count depicts only the victim's partially covered genitals.
He also argues the State failed to present evidence that he possessed the
image on or about October 31, 2006, the date alleged in the indictment.

¶28 The photograph of H. shows her wearing a Halloween
costume and pulling her underwear to the side to expose her vagina. The
definition of "exploitive exhibition" only requires "actual exhibition . . . of
the genitals," it does not require exhibition of the entire genital area.

¶29 The evidence also reflects that Valentine took the picture on
October 31, 2006 using a digital camera found in his pants pocket on the
day he was arrested. The image was automatically stored on the camera's
"XD card." Valentine did not refute this evidence at trial; instead, he
claimed that the picture was not child pornography because it did not
depict an actual sex act.

¶30 In sum, because substantial evidence supports Valentine's
conviction on each of the challenged counts, the superior court did not err
by denying his Rule 20 motion.

B. The Superior Court's Admission of Testimony Regarding Other-
Act Evidence.

¶31 Before trial, the superior court granted the State's motion to
allow evidence of prior uncharged acts related to Valentine's earlier
relationships with the two 14-year-old girls, see supra ¶ 25, pursuant to
Arizona Rule of Evidence 404(c).4 On appeal, Valentine challenges the
admission of testimony by only one of the girls. In support of its motion,
the State offered an audio recording, a transcript of a recent interview the

4 The State also sought to admit evidence of Valentine's prior sexual
acts with a 12-year old girl. The court ultimately did not admit that
evidence.

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girl had with police, and testimony of a police detective. The court initially
set an evidentiary hearing to consider the State's request, but, based on its
review of the audio recording, it ultimately determined it was not necessary
to hear live testimony by the girl. The court found the evidence regarding
Valentine's prior relationship with the girl was admissible pursuant to Rule
404(c). Valentine argues the court was required to hear her testify in person
before ruling on the State's pretrial motion to allow her to testify at trial.

¶32 Rule 404(c) "permits the admission of evidence of uncharged
acts to establish 'that the defendant had a character trait giving rise to an
aberrant sexual propensity to commit the offense charged.'" State v. Garcia,
200 Ariz. 471, 475, ¶ 26 (App. 2001). Before admitting evidence pursuant to
Rule 404(c), the court must find that:

(A) The evidence is sufficient to permit the trier of fact to find
that the defendant committed the other act.

(B) The commission of the other act provides a reasonable
basis to infer that the defendant had a character trait giving
rise to an aberrant sexual propensity to commit the crime
charged.

(C) The evidentiary value of proof of the other act is not
substantially outweighed by danger of unfair prejudice,
confusion of issues, or other factors mentioned in Rule 403. In
making that determination under Rule 403 the court shall also
take into consideration the following factors, among others:

(i) remoteness of the other act;

(ii) similarity or dissimilarity of the other act;

(iii) the strength of the evidence that defendant committed the
other act;

(iv) frequency of the other acts;

(v) surrounding circumstances;

(vi) relevant intervening events;

(vii) other similarities or differences;

(viii) other relevant factors.

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Ariz. R. Evid. 404(c)(1). Finally, the court must instruct the jury as to the
proper use of such evidence. Ariz. R. Evid. 404(c)(2); Garcia, 200 Ariz. at
475-76, ¶ 27.

¶33 The court was not required to observe the girl testify in person
before it ruled on the State's Rule 404(c) motion. See State v. LeBrun, 222
Ariz. 183, 187, ¶ 14 (App. 2009) (affirming Rule 404(c) order issued based
on audio and video recordings of victims' statements). Id.

¶34 The superior court considered the audio recording of the
victim's statement about the prior acts. It also heard live testimony of a
detective who had investigated the prior acts, who told the court that the
audio-taped account by the victim was consistent with his prior
investigation. The court gave Valentine the opportunity to offer evidence
rebutting the victim's account, but Valentine did not do so.

¶35 On this record, we find no error in the court's decision to
allow the testimony pursuant to Rule 404(c).

C. Admissibility of Exhibits 9, 13-15.5

¶36 Valentine next challenges the superior court's admission of
four exhibits, asserting they constitute improper other-act evidence under
Rule 404(b), (c). Exhibit 9 is a number of letters written by Valentine to one
of the 14-year-old girls when he was incarcerated in 1992 shortly after he
had been living with her. These letters indicate Valentine's sexual interest
in her. Exhibit 13 is a number of photographs Valentine took of the victims
that are less sexually explicit than the images underlying the charged
offenses in Counts 10-36. Exhibit 14 consists of a CD with seven images of
young naked girls, and Exhibit 15 includes four photographs of an
unidentified young girl spreading her legs while wearing underwear or
pajamas.

¶37 Contrary to Valentine's suggestion, Exhibits 9 and 13-15 were
admissible under Rule 404(c) to establish his sexual affinity for young girls

5 Valentine incorrectly refers to Exhibit 12 in his brief. Pretrial exhibit
12 was admitted at trial as Exhibit 9.

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and to prove that he acted in conformity with his "aberrant sexual
propensity to commit the offense[s] charged." Ariz. R. Evid. 404(c).6

D. Denial of Motion to Suppress.

¶38 Valentine was not wearing his pants when he was arrested.
However, as he was detained outside his home, apparently while it was
being secured by officers, Valentine asked for his pants before he was to be
taken to jail. A police officer who entered the home with T. and retrieved
the pants from Valentine's bedroom found his camera in one of the pants
pockets and left it in Valentine's bedroom. See supra ¶¶ 29-30. The camera
was later seized pursuant to the warrant.

¶39 Valentine moved to suppress the camera, arguing it was
improperly seized when it was removed from his pants because T. did not
have authority to permit the police officer to enter Valentine's bedroom to
retrieve the pants. After an evidentiary hearing, the superior court denied
the suppression motion.

¶40 In reviewing the denial of a motion to suppress, we consider
only the evidence submitted at the suppression hearing, State v. Blackmore,
186 Ariz. 630, 631 (1996), and we view those facts in the manner most
favorable to upholding the superior court's ruling. State v. Box, 205 Ariz.
492, 493, ¶ 2 (App. 2003). Although we defer to the superior court's factual
determinations, we review de novo its ultimate legal conclusion. Box, 205

6 Because Valentine defended the charges by arguing the images
found in his possession were not sexually exploitive and he was not
sexually attracted to the victims or other young girls, the exhibits were also
admissible to rebut that defense. See State v. Villalobos, 225 Ariz. 74, 80, ¶¶
19-20 (2010) (other-act evidence is admissible to rebut a defense). And
despite Valentine's suggestion to the contrary, the fact that the letters in
Exhibit 9 were written 14 years before the criminal acts in this case occurred
does not render them inadmissible. See State v. Van Adams, 194 Ariz. 408,
416, ¶ 24 (1999) ("Although remoteness between the two incidents affects
the weight to be given the testimony by the jury, it generally does not
determine its admissibility."). Finally, Exhibit 13 was admissible to support
H.'s testimony that her photograph sessions with Valentine "started off
pretty innocent" before becoming "more risqué" and "very inappropriate."
See State v. Williams, 183 Ariz. 368, 376 (1995) ("Evidence which tests,
sustains, or impeaches the credibility or character of a witness is generally
admissible, even if it refers to a defendant's prior bad acts." (citations
omitted)).

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Ariz. at 495, ¶ 7. A superior court's ruling on a motion to suppress will not
be reversed on appeal absent clear and manifest error. State v. Gulbrandson,
184 Ariz. 46, 57 (1995).

¶41 The Fourth Amendment protects people from unreasonable
searches and seizures. Scott v. United States, 436 U.S. 128, 137 (1978). The
exclusionary rule prevents the introduction of evidence seized in violation
of a person's Fourth Amendment rights. State v. Hackman, 189 Ariz. 505, 508
(App. 1997). Generally, a warrantless search is per se unreasonable under
the Fourth Amendment. State v. Branham, 191 Ariz. 94, 95 (App. 1997). A
warrantless search is valid, however, if the search is conducted after
voluntary consent is given. State v. Paredes, 167 Ariz. 609, 612 (App. 1991).
"The voluntariness of a defendant's consent to search is a question of fact
determined from the totality of circumstances." Id.

¶42 Valentine contends the police officer who discovered the
camera in his pants "lacked the requisite authority to enter [Valentine's]
room[.]" The evidence offered at the suppression hearing showed that
Valentine requested that someone retrieve his pants, which were located in
his bedroom. Thus, Valentine consented to the search of his room.
Moreover, the officers testified that, because Valentine was about to be
transported to jail, officers would remove any items from the pockets as a
safety precaution before giving the pants to Valentine to wear. Under these
circumstances, officers had Valentine's consent to "seize" his pants,
emptying the pockets was reasonable, and to the extent such action
constituted a seizure, it did not amount to a Fourth Amendment violation.
Accordingly, the superior court acted within its discretion in denying the
motion to suppress.

E. Motion to Dismiss: Right to a Speedy Trial.

¶43 Before trial, Valentine unsuccessfully moved to dismiss,
arguing a purported violation of his constitutional rights to a speedy trial.
See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial . . . ."); Ariz. Const. art. 2, § 24
("In criminal prosecutions, the accused shall have the right to . . . a speedy
public trial . . . .").

¶44 Valentine argues that the delay of more than five years from
his arrest until trial "qualifies as an 'unreasonable amount of time'" that
deprived him of the chance to locate "potential alibi witnesses who might
have helped him[.]" Further, he asserts the delay was unnecessarily caused

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by the State's "numerous indictments since [his] arrest[.]"7 Without citing
the record, Valentine also claims the delay was caused by the State's failure
"to timely comply with his discovery requests."8

¶45 Speedy trial claims are evaluated under a four-factor
"balancing test, in which the conduct of both the prosecution and the
defendant are weighed." Barker v. Wingo, 407 U.S. 514, 530 (1972). Those
factors are: "Length of delay, the reason for the delay, the defendant's
assertion of his right, and prejudice to the defendant." Id. No one factor is
"either a necessary or sufficient condition to the finding of a deprivation of
the right of speedy trial" because "they are related factors and must be
considered together with such other circumstances as may be relevant." Id.
at 533; see Doggett v. United States, 505 U.S. 647, 651 (1992).

¶46 In denying Valentine's speedy trial argument, the superior
court found the following:

I think everyone generally agrees I should apply the Doggett
factors in terms of the delay.

***

The first question is whether the delay was – is uncommonly
long. On one hand, five years is pretty long. There's no
doubt. We're not talking about a year or two years here, we're
talking about five years.

***

7 It appears from the record that the indictment immediately resulting
from Valentine's arrest in 2006, and the subsequent indictments as the
police investigation continued, were dismissed when the final charges
(Counts 33-36) were filed, resulting in CR 2012-006283. Although the State
had the camera containing the images that led to Counts 33-36 in its
possession since Valentine's arrest, it was some time before the State
discovered the images. According to the State, it was not until Valentine
repeatedly demanded access to the camera for his expert that the State
"knew [something incriminating was stored in the camera]."

8 Valentine appears to admit, however, that the State did not comply
with his discovery requests because it had already disclosed the requested
material to Valentine's former counsel.

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Looking at that factor with this case, this is obviously a
complicated case. We've got multiple victims, we've got
forensic issues, we've got multiple experts, we've got a
situation where defendant's been represented by multiple
attorneys and represented himself.

We've got - I think there was at least one Rule 11 proceeding.
Two. Two Rule 11 proceedings. There were - there was a wait
that related to how the 404 hearing would proceed,
specifically the LeBrun, L-E-B-R-U-N, decision, whether the
State could present videotaped testimony. There was
basically an agreed upon wait for that.

In other words, this case has had a lot of reasons why it's been
delayed. And if I'm looking at all those different reasons and
situations to resolve all of those things, I don't see it as
uncommonly long.

Yes, if we just say six years or nearly six years, that is
uncommonly long. For all these things to happen, it's not
really uncommonly long, I don't think.

And that dovetails into the second prong of the Doggett
analysis, which is: Who's to blame?

Well, from my perspective, really nobody's to blame here.
You both have had issues in the case that need to get resolved.
For purposes of the motion, I'm looking to see is the State to
blame or is there otherwise some shenanigans going on from
the State to escape the speedy trial obligations.

Are they refiling so they can buy more time? Are they failing
to do things they should do in terms of turning over
discovery? I know we have the issue with the camera, we'll
talk about that in a minute. But as far as the case management
goes, not really. I don't see the State doing anything unusual
in this case, or otherwise delaying the case.

I see the case being delayed in large part because of
defendant's particular situation with respect to either counsel
or representation, Rule 11, or the evidentiary expert issues
that are going on in this case.

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I note that Mr. Valentine says that he told - well, we'll get to -
the third factor is whether Defendant asserted his speedy trial
rights.

Mr. Valentine maintains that previous counsel were
instructed to assert those rights and they didn't. But they
didn't. And I'm left with that. . . .

But right now, without any record of a consistent assertion,
and my own experience - I'm not sure how long I've been with
this case, probably a couple years now, I think - in my
experience of the couple years, the delays are essentially
consensual delays trying to get the case ready to go in the
right way. And I don't see a delay from the State, or at least
anything from my perspective where I can blame the State for
delays.

***

And finally, the question of prejudice. And there's going to
be some inherent prejudice in a case that takes this long to get
to trial, there's no doubt. But specific prejudice to this
defendant, there was a reference to the loss of employment
records that could have been obtained, or they would have
been obtained earlier and they could have explained where
Mr. Valentine was. But from my perspective they could have
gotten those at any point. There was no bar to getting those
early in the case.

The fact that memories fade, that's not enough, because it
could hurt the State as much as it hurts the defense. We've
got multiple alleged victims who were younger. That's going
to present a challenge for the State, maybe more so than it
would in a case if the alleged victims were adults.

With respect to Counts 33 and 36, . . . if we're talking about
prejudice, yeah, suddenly we've got these new counts sitting
there. I'm going to focus on should the State have known, or
- No. 1, did they know they had some information and fail to
disclose or didn't charge it. I don't have anything that tells me
that the State knew it and held it.

***

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Decision of the Court

Because I don't certainly right now have enough information
where I'm going to dismiss those counts. Because I don't see
anything or don't have any information that the State just
knew that that information was in the camera and made a
strategic decision to hold it and then decided to bring it out
later, or otherwise there was some sort of real maybe gross
negligence in not recognizing that there were potential other
charges.

Again, with respect to the other charges, I don't see there's -
you're not - you being in the position now not being able to
defend those because of all the time that went by.

So for all those reasons, I just don't see dismissal under the
Doggett factors. Again, I do recognize it's been a long time,
but from my perspective dismissal is not appropriate.

¶47 Although we review issues of constitutional law de novo, we
review the superior court's factual determinations for an abuse of
discretion. State v. Parker, 231 Ariz. 391, 398, ¶ 8 (2013).

¶48 We agree with the superior court that five-and-a-half years
awaiting trial is a lengthy period. However, Valentine does not point to
anything in the record to show the court erred in making its factual findings
regarding the reasons for the pretrial delay. Indeed, Valentine has not
provided us with the records from the 2007 cases that apparently form the
basis for many of the court's findings. We must presume those records
support the court's factual determinations regarding the Doggett factors. See
State v. Zuck, 134 Ariz. 509, 513 (1982) ("Where matters are not included in
the record on appeal, the missing portions of the record will be presumed
to support the action of the trial court."). Accordingly, on this record, we
find no abuse of discretion; no reversible error occurred.

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Decision of the Court

CONCLUSION

¶49 For the foregoing reasons, we vacate Valentine's convictions
and sentences for Counts 33-35. The remaining convictions and sentences
are affirmed.

:ama

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