State v. Wadi

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

SAMIR MAHMOUD WADI, Appellant.

No. 1 CA-CR 17-0493
FILED 5-30-2019

Appeal from the Superior Court in Yavapai County
No. V1300CR201480433
The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Blumberg & Associates, Phoenix
By Bruce E. Blumberg
Counsel for Appellant
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MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge James B. Morse Jr. and Judge Jon W. Thompson joined.

S W A N N, Judge:

¶1 Samir Mahmoud Wadi appeals his convictions and sentences
for twelve counts of sexual exploitation of a minor, raising several
constitutional and statutory arguments. For the following reasons, we
affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 The BitTorrent network protocol allows users to select and
download collections of content, called torrent files, from other internet
users. Once downloaded, these files are made available to other BitTorrent
users.

¶3 In August 2014, a detective discovered that a computer with
an internet protocol (“IP”) address located in Arizona used BitTorrent to
download and, in turn, offer nine torrent files containing videos of what
appeared to be child pornography. The detective learned the IP address
was controlled by an out-of-state internet service provider, Suddenlink.
The detective served Suddenlink with a grand jury subpoena and
confirmed that the IP address was registered to Wadi.

¶4 The detective used these facts to obtain a search warrant. On
October 9, 2014, the detective executed a search warrant on Wadi’s
residence and found a laptop and a desktop computer. Wadi was the sole
occupant of the residence and both electronic devices belonged to him.

¶5 Wadi assisted detectives in accessing an encrypted folder
labeled “Life” on his laptop. In the encrypted folder, the detective found
nine videos, identical to those the detective originally discovered using
BitTorrent. The detective also found one still image in the encrypted folder,

1 We view the facts in the light most favorable to upholding the
verdicts, and we resolve all reasonable inferences against the defendant.
State v. Valencia, 186 Ariz. 493, 495 (App. 1996).

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along with two additional still images in the unallocated space of Wadi’s
laptop and desktop computer.2 Each of the videos and images depicted
female children, all under fifteen years old, in sexually suggestive poses,
exposing their genital areas.3

¶6 In speaking with detectives, Wadi admitted the encrypted
folder held items depicting “naked little girls,” posed with their legs spread
open. He stated he encrypted the folder to keep the items private. Wadi
admitted he used the search term “Lolita,” a term commonly associated
with child pornography, to locate videos and images on the internet.

¶7 The state charged Wadi with twelve counts of sexual
exploitation of a minor, all class 2 felonies and dangerous crimes against
children (Counts 1 through 12). After a bench trial, the superior court found
Wadi guilty of all counts and sentenced him to minimum, consecutive
terms, totaling 120 years’ imprisonment. Wadi appeals.

DISCUSSION

I. WADI WAS NOT DEPRIVED OF HIS PROTECTION AGAINST
DOUBLE JEOPARDY NOR HIS RIGHT TO DUE PROCESS
BECAUSE EACH SEPARATE IMAGE CONTAINING CHILD
PORNOGRAPHY CONSTITUTED A SEPARATE CRIME.

¶8 Wadi argues his convictions and resulting sentences for
Counts 1 through 9 deprived him of his protection against double jeopardy,
as well as his right to due process. We review alleged constitutional
violations de novo. State v. McGill, 213 Ariz. 147, 153–58, ¶¶ 21, 45 (2006).
The double jeopardy clauses of the federal and state constitutions “protect
criminal defendants from multiple convictions and punishments for the
same offense.” State v. Ortega, 220 Ariz. 320, 323, ¶ 9 (App. 2008).

¶9 As relevant here, a person commits sexual exploitation of a
minor if he knowingly possesses “any visual depiction in which a minor is
engaged in exploitive exhibition or other sexual conduct.” A.R.S. § 13-
3553(A)(2). A “‘[v]isual depiction’ includes each visual image that is
contained in an undeveloped film, videotape or photograph or data stored

2 When content is deleted from a computer’s “recycling bin,” it is
placed in the “unallocated space” of the computer’s hard drive. This can
sometimes be accessed using forensic computer software.

3 At trial, Wadi stipulated that the children depicted in the videos and
images were under fifteen years old.

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in any form.” A.R.S. § 13-3551(12). Sexual exploitation of a minor under
fifteen years old is a dangerous crime against children, requiring
consecutive sentences for each conviction. A.R.S. § 13–705(D), (M), (Q).

¶10 The record shows that the video segments associated with
Counts 1 through 3 came from the same video sequence involving the same
child, Counts 4 through 6 from segments of a second video sequence
involving a second child, and Counts 7 through 9 from segments of a third
sequence involving a third child. The detective, however, testified that each
of the nine videos were different, distinct segments of the three video
sequences. Simply, each video showed different types of exposure
involving “separate and distinct acts.” Moreover, each of the nine videos
would have been watched as a separate video.

¶11 We have consistently held that Arizona’s sexual exploitation
of a minor statutes are meant to criminalize each separate image or
depiction that satisfies the elements of the offense. See State v. Berger, 212
Ariz. 473, 474, ¶ 3 (2006) (“Under this statutory scheme, the possession of
each image of child pornography is a separate offense.”); State v. McPherson,
228 Ariz. 557, 560, ¶¶ 6–7 (App. 2012) (“[T]he legislature intended the unit
of prosecution to be each individual ‘depiction.’”). Double jeopardy does
not bar separate prosecutions and sentences for each image of sexual
exploitation of a minor, even if the images are identical, State v. Valdez, 182
Ariz. 165, 170–71 (App. 1994), or discovered on a single DVD, McPherson,
228 Ariz. at 560, ¶ 7. Put simply, multiple images containing child
pornography constitute multiple crimes. Accordingly, we conclude that
separate convictions and sentences for each of the nine videos, making up
Counts 1 through 9, do not violate the prohibition against double jeopardy.
Each video constitutes a separate and distinct harm, requiring a separate
and distinct punishment under Arizona law.

¶12 Similarly, we reject Wadi’s claim that multiple punishments
for Counts 1 through 9 violate his due process rights, namely because the
law is impermissibly vague. Wadi fails to challenge a specific statute,
provide relevant legal authority, or adequately develop this claim. The
issue is therefore waived on appeal. See State v. Bolton, 182 Ariz. 290, 298
(1995). To the extent we can assume Wadi challenges the validity of A.R.S.
§§ 13-3551 and -3553, we have previously rejected analogous claims, State
v. Hazlett, 205 Ariz. 523, 531, ¶ 29 (App. 2003), and decline to depart from
Arizona precedent.

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II. WADI’S SENTENCES DO NOT VIOLATE HIS EIGHTH
AMENDMENT RIGHTS BECAUSE HIS PUNISHMENT IS NOT
GROSSLY DISPROPORTIONATE TO THE CRIMES.

¶13 Wadi argues his sentences violate the Eight Amendment’s
prohibition against cruel and unusual punishment. Affording “substantial
deference to the legislature and its policy judgments as reflected in
statutorily mandated sentences,” the Eighth Amendment prohibits the
imposition of “extreme sentences that are grossly disproportionate to the
crime.” Berger, 212 Ariz. at 476, ¶ 13 (citations and internal quotation marks
omitted).

¶14 As noted above, A.R.S. § 13–705(D) and (M) mandate
consecutive sentences for each conviction of sexual exploitation of a minor
under fifteen years old. Acknowledging the strong public interest in
protecting children from exploitation, the Arizona Supreme Court
concluded that this sentencing scheme does not violate the Eighth
Amendment. Berger, 212 Ariz. at 478–83, ¶¶ 23, 36, 49, 51 (upholding
aggregate term of 200 years’ imprisonment). “This court is bound by
decisions of the Arizona Supreme Court and has no authority to overturn
or refuse to follow its decisions.” State v. Long, 207 Ariz. 140, 145, ¶ 23 (App.
2004).

¶15 Wadi asks us to reject well-established precedent and declare
A.R.S § 13–705(D) and (M) unconstitutional as applied. We find no
justification for reaching such a conclusion. See State v. Olague, 240 Ariz.
475, 481, ¶ 23 (App. 2016) (“Stare decisis . . . requires special justification to
depart from existing precedent.”). Wadi’s sentences are not grossly
disproportionate to his offenses and A.R.S. § 13–705, as applied, does not
violate the Eight Amendment’s cruel and unusual punishment clause.

III. DIRECT AND CIRCUMSTANTIAL EVIDENCE SUPPORTS
WADI’S CONVICTIONS (COUNTS 1–10).

¶16 Wadi argues insufficient evidence supports his convictions in
Counts 10 through 12. We review the sufficiency of the evidence de novo.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We will reverse only if “there
is a complete absence of probative facts to support the conviction.” State v.
Scott, 113 Ariz. 423, 424–25 (1976). Sufficient evidence may be either direct
or circumstantial, and may support differing reasonable inferences. State v.
Anaya, 165 Ariz. 535, 543 (App. 1990).

¶17 Section 13-3553(A)(2) criminalizes the knowing possession of
“any visual depiction in which a minor is engaged in exploitive exhibition

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or other sexual conduct.” As defined, “exploitive exhibition” is “the actual
or simulated exhibition of the genitals or pubic or rectal areas of any person
for the purpose of sexual stimulation of the viewer,” A.R.S. § 13–3551(5),
and “possession” is “a voluntary act if the defendant knowingly exercised
dominion or control over property,” A.R.S. § 13–105(35).

¶18 Through direct and circumstantial evidence, the State showed
that Wadi searched, selected, and downloaded child pornography using
BitTorrent. Wadi affirmatively transferred one image to a “private”
encrypted folder, Count 10, and deleted two additional images, Counts 11
and 12. On the date of offenses, Wadi possessed and had sole access to the
electronic devices storing the images. The images depict three separate
female children under fifteen years old in suggestive poses with their
genital areas exposed. The images are consistent with the types of
depictions Wadi admitted he searched for and possessed.

IV. THE COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING
THE ITEMS FOUND ON WADI’S LAPTOP BECAUSE ANY
ALTERATION TO THE DATE OF ACCESS OF THE MATERIAL
WITHIN WAS IRRELEVANT TO ADMISSIBILITY.

¶19 Wadi argues the superior court abused its discretion in
allowing the admission of items located on his laptop, claiming the state
failed to lay adequate foundation that the videos and images associated
with Counts 1 through 12 were authentic and accurate. We will not disturb
a ruling on the admissibility of evidence absent a clear abuse of discretion.
State v. Romanosky, 162 Ariz. 217, 224 (1989).

¶20 The proponent of an item of evidence can lay foundation by
eliciting testimony from a witness “that an item is what it is claimed to be.”
Ariz. R. Evid. 901(a), (b)(1). For photographs and video recordings alike,
foundation is laid if “it fairly and accurately depicts that which it purports
to show.” State v. Superior Court (Steinle), 239 Ariz. 415, 421, ¶ 26 (2016)
(citations and internal quotation marks omitted). This standard may be
satisfied by circumstantial evidence, State v. Best, 146 Ariz. 1, 2 (App. 1985),
and the question for the superior court is not “whether the evidence is
authentic, but only whether evidence exists from which the [finder of fact]
could reasonably conclude that it is authentic,” State v. Lavers, 168 Ariz. 376,
386 (1991).

¶21 At trial, the detective testified he removed the hard drive from
Wadi’s laptop to connect to forensic software and discovered the encrypted
folder. Wadi only agreed to decrypt the folder himself, forcing the detective

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to place the hard drive back in the laptop. In doing so, the laptop rebooted
and reset the date and time that the items in the encrypted folder, Counts 1
through 10, were last accessed. However, both the detective and the
defense expert testified that the reboot did not alter any other aspects of the
items in the encrypted folder and the videos were identical to those Wadi
offered via BitTorrent. Deleted items, like the images associated with
Counts 11 and 12, do not contain a date of access and, as the detective
testified, it is “incredibly unlikely” the reboot altered the image in any way.
Over Wadi’s objection, the videos and images associated with Counts 1
through 12 were admitted.

¶22 The record before us shows that the items were located in a
laptop, Wadi had sole access and control of that laptop on the date of the
offenses, and any alteration of the date of access did not substantively
modify the relevant videos and images. Here, any alteration to the date and
time the items in the encrypted folder were last accessed is irrelevant to the
question of admissibility. See Lavers, 168 Ariz. at 386. We find no abuse of
discretion.

V. THE COURT ACTED PROPERLY AND WITHIN ITS DISCRETION
WHEN IT REFUSED TO SUPPRESS EVIDENCE STEMMING
FROM THE ISSUANCE OF GRAND JURY SUBPOENAS.

¶23 Wadi contends the superior court erred in refusing to
suppress all evidence flowing from the issuance of grand jury subpoenas to
obtain IP address registration information. Wadi contends the Yavapai
County Attorney’s Office (“YCAO”) and the detective exceeded the scope
of authority provided by Arizona’s grand jury statutes and violated his
constitutional rights. We review the denial of a motion to suppress based
on the evidence presented at the suppression hearing. State v. Newell, 212
Ariz. 389, 396, ¶ 22 (2006). We review the court’s factual findings for abuse
of discretion, and its ultimate legal determination de novo. State v. Gilstrap,
235 Ariz. 296, 297, ¶ 6 (2014).

¶24 Upon request from the county attorney, the clerk has the
authority to issue a grand jury subpoena, if a grand jury is empaneled at
the time of issuance, the county attorney designates the subpoena with the
grand jury number, and the county attorney reports the issuance of the
subpoena to the grand jury foreperson and the presiding judge within ten
days of issuance. A.R.S. § 13-4071(C)(1)–(4). The Uniform Act to Secure the
Attendance of Witnesses from Without a State in Criminal Proceedings (the
“Uniform Act”), codified at A.R.S. §§ 13-4091 to -4096, authorizes the

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issuance of grand jury subpoenas for production of documents from
another state. See Johnson v. O’Connor, 235 Ariz. 85, 90, ¶ 21 (App. 2014).

¶25 Before trial, Wadi moved to suppress the fruits of the grand
jury subpoena served on Suddenlink. At the suppression hearing, the
superior court heard testimony that the detective submitted grand jury
subpoenas for Suddenlink to a deputy county attorney at YCAO, the
attorney authorized the subpoenas via email, and the detective submitted
the subpoenas to the clerk’s office for signature. The clerk signed the
subpoenas and the detective served the subpoenas on Suddenlink via
facsimile and United States mail. Within ten days, YCAO reported the
issuance of the subpoenas to the grand jury foreperson and the presiding
judge, listing the number for the relevant grand jury panel. Based on this
testimony, the court denied the motion to suppress.

¶26 Nothing from this record shows that YCAO or the detective
overtly violated the requirements of A.R.S. § 13-4071 or the Uniform Act.
Even if we determined otherwise, suppression would not be the remedy for
statutory violations. United States v. Donovan, 429 U.S. 413, 432 n.22 (1977)
(the exclusionary rule is meant to deter Fourth Amendment violations, not
statutory violations); United States v. Forrester, 512 F.3d 500, 512 (9th Cir.
2008) (“suppression is a disfavored remedy” outside the context of
constitutional violations).

¶27 Further, Wadi fails to articulate how issuance of the grand
jury subpoenas violated his constitutional rights. Though citing vaguely to
First Amendment principles and abuses of governmental powers, Wadi has
not established how the scope of the “grand jury process” was
unreasonably broad or violative of specific constitutional rights. See United
States v. Dionisio, 410 U.S. 1, 11 (1973) (internal quotation marks omitted)
(the Fourth Amendment protects only “against a grand jury subpoena
duces tecum too sweeping in its terms to be regarded as reasonable.”); State
v. Superior Court (Arnold), 125 Ariz. 370, 372 (App. 1980) (setting aside order
quashing a grand jury subpoena where the appellant failed to specify a
“recognized exception to a grand jury subpoena power”).

¶28 We therefore hold the superior court acted within its
discretion in refusing to suppress evidence stemming from properly issued
grand jury subpoenas.

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CONCLUSION

¶29 Based on the foregoing reasons, we affirm Wadi’s convictions
and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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