State v. Dillion

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS LEELAND DILLION, Appellant.

No. 1 CA-CR 18-0620
FILED 10-31-2019

Appeal from the Superior Court in Mohave County
No. S8015CR201500312
The Honorable Richard D. Lambert, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

J O H N S E N, Judge:

¶1 Thomas Leeland Dillion appeals his convictions and resulting
sentences on 10 counts of sexual exploitation of a minor. Dillion argues the
superior court erred in denying his motion for discovery and his motion to
suppress, and in finding that he voluntarily absented himself from trial
after he attempted to commit suicide. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 FBI agents executed a search warrant at Dillion's home, where
they seized his computer and found more than 10,000 images and 350
videos of child pornography on the hard drive. Dillion was indicted on 23
counts of sexual exploitation of a minor, each a Class 2 felony: ten charges
of possessing and 13 charges of distributing child pornography.

¶3 Before trial, the State dismissed the 13 distribution charges.
After a two-day trial, the jury convicted Dillion of all ten charges of
possession of child pornography and found all to be dangerous crimes
against children. The superior court sentenced Dillion to consecutive 10-
year prison terms on Counts 1-6 and 8-10 and imposed a 10-year sentence
for Count 7, to run concurrent with the term imposed for Count 3, for a total
term of 90 years. Dillion timely appealed.1 We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised

1 The State moved to dismiss Dillion's appeal, citing Arizona Revised
Statutes section 13-4033(C) (2019). We deny the motion because we are
unable to conclude from the record that Dillion's absence from trial
prevented sentencing from occurring within 90 days following his
convictions.

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Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019), 13-4031 (2019) and
-4033(A)(1) (2019).2

DISCUSSION

A. Denial of Dillion's Motion for Disclosure.

¶4 Dillion first contends the superior court erred when it denied
his motion for disclosure of the software program the FBI used to identify
his ISP address as being involved with child pornography. We review the
denial of a motion for discovery for an abuse of discretion. State v. Garza,
216 Ariz. 56, 65, ¶ 35 (2007).

¶5 The FBI investigates the distribution of child pornography
over the internet using a software program designed to search for files
known to contain child pornography in the publicly shared folders of a
user's computer. Essentially, the software is a modified bit torrent program
that downloads files from single sources rather than from multiple sources.
This permits the FBI to identify a specific IP address associated with a
download of an image or video containing child pornography.

¶6 At the evidentiary hearing on Dillion's motion for disclosure
of the program, his computer expert, Tami Loehrs, testified she was
concerned that the FBI software might not be working the way it was
supposed to. Loehrs testified that when she inspected Dillion's computer,
she discovered that five files the FBI asserted were in his public folder either
were absent altogether or were located in private folders on his hard drive.
The State's witness avowed that the FBI program only searches the publicly
shared files on a user's computer and speculated that, during the seven
weeks between the investigation and the seizure of his computer, Dillion
had moved the files out of the public folder into a private folder. This
theory was supported by Dillion's statement to investigators that he
typically moved child pornography from his download file to hidden files
on his computer.

¶7 At the end of the hearing, the State announced it would
dismiss the 13 distribution charges. The superior court then denied
Dillion's motion for disclosure, finding that the defense's allegations
regarding malfunctioning of the FBI's software were only "vague
speculation."

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

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¶8 "The prosecution is required to disclose any material
exculpatory evidence to the defense." State v. Spears, 184 Ariz. 277, 287
(1996). Evidence is material only when there is a reasonable probability that
it would have changed the outcome of the trial. Id.

¶9 Here, Dillion fails to demonstrate how the discovery he
sought was material to the child pornography possession charges he
ultimately faced at trial. Although his expert questioned whether the FBI's
program searched for child pornography only in the publicly shared folders
on Dillion's computer, she never questioned the program's ability to locate
child pornography or to identify a single source IP address. Nor did she
question that child pornography was located on Dillion's hard drive.

¶10 Dillion cites United States v. Budziak, 697 F.3d 1105, 1107, 1112
(9th Cir. 2012), in which the court held the defendant made a sufficient
showing that a similar software program used by the FBI to find child
pornography was material to his defense. The defendant in that case was
charged with distributing child pornography, and the Ninth Circuit Court
of Appeals held the district court abused its discretion by denying his
motion for discovery. Id. at 1108, 1113. The court explained the charges
were "predicated largely on computer software functioning in the manner
described by the government." Id. at 1113. Here, by contrast, by the time
of trial, the only charges Dillion faced were for possession of child
pornography, not distribution. Thus, the functionality of the FBI's program
was not at issue. The superior court did not abuse its discretion by denying
Dillion's motion for disclosure.

B. Denial of Dillion's Motion to Suppress.

¶11 Dillion next argues the superior court erred by denying his
motion to suppress, arguing the search warrant was not sufficiently
particularized. The Fourth Amendment requires a search warrant to
"particularly describe the place to be searched, and the persons or things to
be seized." State v. Ray, 185 Ariz. 89, 92 (App. 1995) (quoting U.S. Const.
amend. IV). The "particularity requirement . . . prevents the government
from utilizing broad language in a search warrant so as to effectuate
general, exploratory searches and seizures." Id. "When deciding whether a
warrant is too general, the trial court must consider the nature of the
property sought to be recovered." Id. at 93. Courts also consider "whether
it was reasonable to provide a more specific description of the items at that
juncture of the investigation." United States v. Banks, 556 F.3d 967, 973 (9th
Cir. 2009).

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¶12 Because the search here involved federal agents, the United
States Constitution controls our analysis. State v. Gonzalez-Gutierrez, 187
Ariz. 116, 117, n.1 (1996). We review the denial of a motion to suppress for
an abuse of discretion; however, we review constitutional issues and purely
legal issues de novo. State v. Dean, 241 Ariz. 387, 389, ¶ 4 (App. 2017). "We
consider only 'evidence presented at the suppression hearing and view the
facts in the light most favorable to sustaining the trial court's ruling.'" Id. at
388, ¶ 2 (quoting Brown v. McClennen, 239 Ariz. 521, 523, ¶ 4 (2016)).

¶13 Dillion argues the search warrant was overly broad because it
permitted officers to search for child pornography on any computer,
software program or electronic data storage device inside his home. The
agent who authored the search warrant provided an affidavit explaining
the unique challenges modern technology presents in a search for child
pornography. The affidavit stated that users can transfer files among a
variety of devices, cited the large storage capacity of computer devices and
online accounts, and pointed out that users can easily connect anonymously
with other computers around the world to obtain child pornography. The
agent gave the same facts at the suppression hearing, including the fact that
once child pornography is downloaded from the internet, it easily can be
transferred to another digital storage device, computer, flash drive or disk.
The superior court denied the motion to suppress, finding the search
warrant was sufficiently particularized, especially considering the FBI did
not know on which of Dillion's devices they would find child pornography.

¶14 The affidavit on which the warrant was issued sufficiently
explained how all the computer devices in the home could be used to
communicate and store large amounts of child pornography. See Banks, 556
F.3d at 973; United States v. Campos, 221 F.3d 1143, 1147 (10th Cir. 2000).
Computer files, by their nature, are "highly manipulable." United States v.
Farlow, 681 F.3d 15, 19 (1st Cir. 2012). As the superior court pointed out, the
FBI could not know beforehand on which device or devices the child
pornography was hidden. See Banks, 556 F.3d at 973 ("no way to know
where the offending images had been stored"). On these facts, the court did
not abuse its discretion by finding the warrant was particular enough to
"pass constitutional muster." Farlow, 681 F.3d at 18-19 (affidavit established
that child pornography could have been found "in different forms and on
different devices").

¶15 Dillion nevertheless argues that the search warrant should
have been limited to the bit torrent software that the FBI knew Dillion had
used to download child pornography. We agree with the superior court
that limiting the warrant in such a manner could have left enormous

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amounts of child pornography behind on his devices. See United States v.
Richards, 659 F.3d 527, 541-42 (6th Cir. 2011).

¶16 For these reasons, the superior court did not abuse its
discretion when it denied Dillion's motion to suppress.

C. Dillion's Absence from Trial.

¶17 When Dillion failed to appear in court on the first day of trial,
the prosecutor sent police to his home to check on him. Officers discovered
Dillion bleeding from a gunshot wound to the head. Dillion told the officers
that he had tried to kill himself. He was then hospitalized. Dillion's
attorney asked the court to continue trial, but the court denied the request,
finding that Dillion had waived his right to be present at trial.

¶18 Two weeks after the verdict, defense counsel moved for a
mental-health examination of Dillion to determine whether he had
voluntarily absented himself from trial. Dillion also filed a motion for new
trial, arguing the court erred in ruling on the first day of trial that his failure
to appear was voluntary. The State filed objections to both motions. Before
ruling, the court set a status conference. Dillion did not appear for the
conference, which occurred roughly a month after trial. At the conference,
defense counsel told the court that Dillion had been released from the
hospital and that before the trial, counsel had advised Dillion of the date
trial was to begin. The superior court then issued a bench warrant for
Dillion's arrest. The court ultimately denied both of Dillion's pending
motions, citing a previous mental-health screening of Dillion and its own
observations of Dillion's appearance and manner in court appearances.

¶19 On appeal, Dillion argues the superior court erred when it
proceeded to try him in absentia after he tried to kill himself on the morning
of the first day of trial and later denied his motion for a competency
examination. We review for an abuse of discretion a superior court's
determination that a defendant has waived his presence at trial. State v.
Reed, 196 Ariz. 37, 38, ¶ 2 (App. 1999).

¶20 The Sixth Amendment guarantees a criminal defendant's
right to be present at trial. Reed, 196 Ariz. at 38, ¶ 3; see also U.S. Const.
amend. VI; cf. Ariz. Const. art. 2, § 24. Nonetheless, a "defendant may
voluntarily relinquish the right to attend trial." Reed, 196 Ariz. at 38, ¶ 3
(quoting State v. Garcia-Contreras, 191 Ariz. 144, 147, ¶ 9 (1998)). Arizona
Rule of Criminal Procedure 9.1 permits the superior court to infer that a
defendant's absence is voluntary when "the defendant had personal notice
of (1) the time of the proceeding, (2) the right to be present at it, and (3) a

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warning that the proceeding would go forward in his or her absence." State
v. Sainz, 186 Ariz. 470, 472 (App. 1996). It is the defendant's burden to
establish that his absence was involuntary. Reed, 196 Ariz. at 39, ¶ 3.
"[D]epending on the circumstances, absence occasioned by attempted
suicide may be a voluntary waiver of the right to be present at trial." Id. at
39, ¶ 7.

¶21 Dillion does not argue that he lacked notice of the trial date or
his right to be present at trial; nor does he assert he did not know the trial
would go forward if he failed to appear. Instead, he argues his mental state
at the time rendered his absence involuntary. Dillion argues the court
should not have ruled his absence was voluntary without first granting his
motion for a mental-health examination.

¶22 In reviewing the court's rulings, we look for guidance to
authorities concerning when a defendant is entitled to a mental-health
examination to determine his or her competence to stand trial.3 A
defendant has a due-process right "not to be tried or convicted while
incompetent." State v. Amaya-Ruiz, 166 Ariz. 152, 161 (1990) (quoting Drope
v. Missouri, 420 U.S. 162, 172 (1975)). A defendant has a right to a mental-
health examination to determine competence when reasonable grounds for
an examination exist. Id. at 162. "Reasonable grounds exist when 'there is
sufficient evidence to indicate that the defendant is not able to understand
the nature of the proceeding against him and to assist in his defense.'" Id.
(quoting State v. Borbon, 146 Ariz. 392, 395 (1985)). "In determining whether
reasonable grounds exist the Arizona Supreme Court has repeatedly held
that the trial judge is given broad discretion and unless there has been a
clear abuse of discretion he will be upheld on appeal." State v. Messier, 114
Ariz. 522, 525 (App. 1977).

¶23 As for whether there were reasonable grounds to order a
mental-health examination to determine whether Dillion voluntarily
waived his right to be present for trial, we begin with the proposition that
a suicide attempt, by itself, does not require a finding that a defendant's
absence from trial was involuntary. See Reed, 196 Ariz. at 39, ¶ 7
("[D]epending on the circumstances, absence [from trial] occasioned by
attempted suicide may be a voluntary waiver of the right to be present at
trial."). Whether the superior court abused its discretion by refusing

3 We need not address in this case the difference, if any, between the
mental state required to voluntarily waive one's right to be present at trial
and the mental state required to be competent to stand trial.

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Dillion's request for an examination and denying his motion for new trial
depends on the particular circumstances in which the court ruled.

¶24 In August 2015, more than two years before trial, Dillion's
attorney filed a motion for a competency examination. Counsel withdrew
that motion six months before trial, however, after the prescreen report
found Dillion was competent. The psychologist who performed the
prescreen observed:

[Dillion] was oriented to time, place, person, and situation, his
motor activity appeared to be normal, and his speech was
coherent. Relative to thought processes, associations seemed
logical, there did not appear to be evidence of delusions or
hallucinations, and there did not appear to be evidence of a
cognitive impairment. . . . Mr. Dillion indicated that he was
troubled with some anxiety that included a lot of worries
about his charges.

* * *

Mr. Dillion said that he wasn't troubled with any
emotional/psychological problems, hadn't previously met
with a psychologist, never met with a psychiatrist. . . .
Concerning symptoms, Mr. Dillion said that he was a little
depressed, experienced some anxiety and mood swings, said
that he cries easily, said that he worries a lot about the charges
he is facing . . . . Mr. Dillion said that he had some thoughts
about hurting himself since his arrest, said that he would
never try anything, and said that he has never attempted
suicide.

* * *

Mr. Dillion's responses during the evaluation included
admissions that he . . . recently has had some thoughts about
hurting himself, symptoms which appeared to have surfaced
as a result of his legal troubles.

¶25 The psychologist concluded that while "distressed about his
legal troubles," Dillion was competent to stand trial and rationally aid in his
defense. Although the psychologist suggested he might have a pedophilic
disorder and a cannabis use disorder, he diagnosed no mental illness. In
short, the evaluation supported the conclusion that Dillion's mental distress

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and suicidal thoughts were connected to the charges, not to an underlying
mental illness.

¶26 Beyond the prescreen report, Dillion points to nothing in the
record from which the superior court should have suspected that on the
morning of the first day of trial, he could not voluntarily control his actions.
Dillion was not in pretrial detention and yet had appeared for each court
date over the two years before trial. He was present at the final trial
management conference a month before trial. The court had several
opportunities to observe Dillion during his many pretrial court
appearances. The record does not show any instances of Dillion acting out
or having to be reprimanded about his behavior. Finally, Dillion told
officers on the morning of trial that he attempted to commit suicide. See
United States v. Crites, 176 F.3d 1096, 1098 (8th Cir. 1999) ("[The defendant]
clearly expressed his desire to be absent by intentionally ingesting a
potentially lethal mix of intoxicants and by leaving a suicide note.").

¶27 Based on the record, the superior court did not abuse its
discretion in concluding, without ordering a mental-health examination,
that Dillion had voluntarily waived his presence at trial by attempting
suicide. See Reed, 196 Ariz. at 39, ¶ 7 (Because the defendant "made a
voluntary decision to try to end his life and thereby avoid his trial, the trial
court did not err in finding that his suicide attempt and consequent
hospitalization constituted a voluntary waiver of his right to be present at
the remainder of his trial.").

D. Constitutionality of Dillion's 90-Year Sentence.

¶28 Finally, Dillion argues that his 90-year sentence mandated by
A.R.S. §§ 13-705 (2019) and -3553 (2019) violates the Eighth and Fourteenth
Amendments. Our supreme court has held sentences imposed under this
statutory scheme are constitutional. State v. Berger, 212 Ariz. 473, 474, ¶¶ 2-
3, 483, ¶ 51 (2006). Because "[w]e are bound by decisions of the Arizona

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Supreme Court and have no authority to overrule, modify, or disregard
them," we reject this argument. Myers v. Reeb, 190 Ariz. 341, 342 (App. 1997)
(citation omitted).

CONCLUSION

¶29 For the foregoing reasons, we affirm Dillion's convictions and
sentences.

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

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