Opinion
2 CA-CR 2022-0045
02-24-2023
The State of Arizona, Appellee, v. Randy Ray Severin, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy M. Thorson, Assistant Attorney General, Phoenix Counsel for Appellee Rosemary Gordon Panuco, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202100163 The Honorable Christopher J. O'Neil, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy M. Thorson, Assistant Attorney General, Phoenix Counsel for Appellee
Rosemary Gordon Panuco, Tucson Counsel for Appellant
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
BREARCLIFFE, Judge:
¶1Appellant Randy Severin appeals from his convictions and sentences for seven counts of sexual exploitation of a minor. For the following reasons, we affirm.
Factual and Procedural Background
¶2"We view the facts in the light most favorable to upholding the conviction." State v. Griffin, 250 Ariz. 651, ¶ 2 (App. 2021). In September 2020, Detective Abelino Porras learned that an internet-protocol (IP) address associated with Severin was linked to the downloading or sharing of child pornography, or "child sexual abuse material." Detective Porras explained that, typically, the National Center for Missing and Exploited Children (NCMEC) will receive and pass on a "cyber tip" to law enforcement agencies of an IP address through which someone is suspected of downloading or otherwise possessing child sexual abuse material. This cyber tip goes to one of several regional law enforcement units charged with investigating crimes related to exploitation of minors.
An IP address is an alpha-numeric identifier associated with a device (computer, cellphone, etc.) connecting to the internet.
¶3As stated above, an IP address that had been used to download a file of known child sexual abuse material came to Detective Porras's attention in September of 2020. An alert was then placed on this IP address and, in December 2020, more files with similar images and videos were downloaded to the same IP address. Based on these files, Porras subpoenaed records from the internet provider for the IP address, which revealed that Severin was the internet subscriber for that address. A search warrant was then obtained for Severin's address and it was executed in January 2021.
NCMEC tracks specific files that are known to be child sexual abuse material through the image or video's "ed2k file or . . . SHA-1 value," so they can recognize "the string of numbers" attached to that file and immediately "flag" it as child sexual abuse material.
¶4Severin was home when law enforcement arrived, as was his mother who also lives at the residence. The other resident-his mother's husband-was not present. At the outset of the search, officers found two computers, which, after being previewed, were not seized. Severin told a detective that those computers were his mom and stepdad's. Severin stated that he did not use those two computers and that neither he nor his mother or stepfather were downloading anything. Severin also told the detective that some people had his Wi-Fi password "but they hadn't been there in eight or nine months."
¶5During the continued search, officers found a power cord plugged into an outlet in Severin's bedroom with no device attached. Officers then found a silver HP laptop hidden beneath a china hutch in the dining room adjoining Severin's bedroom. The laptop was powered on, but was not plugged into a power cord. The laptop was taken as evidence. It was later determined that the power cord in Severin's room matched that laptop.
¶6The username for the laptop was Severin's mother's username and it was password protected. During the forensic examination of the laptop, investigators discovered seven fully and partially downloaded files of child sexual abuse material. There were no email accounts on the laptop associated with Severin, nor were there any bank accounts, social media, or entertainment accounts associated with him; essentially there was "nothing on the computer associated with Randy Severin."
¶7On January 20, 2021, Severin was indicted on seven counts of sexual exploitation of a minor. Before trial, the state sought a determination of the admissibility of Severin's prior conviction- a guilty plea to one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) in 2009-under Rule 404, Ariz. R. Evid. Severin objected to the use of the conviction, arguing his prior conviction was inadmissible because it was "more prejudicial than probative" under Rule 403, Ariz. R. Evid. The court granted the state's motion finding the conviction admissible under Rule 404(c). The prior federal indictment and Severin's plea agreement were admitted at trial and the factual basis from the plea agreement was read aloud. The factual basis stated that, in 2004, Severin "knowingly possessed a computer on which he used a peer-to-peer file sharing program to intentionally receive child pornography," that one of the videos "depict[ed] a female child approximately eight to 11 years of age having intercourse and oral sex with two adult males," and that Severin had "nine movie files containing child pornography," some of which involved children younger than twelve years old.
¶8Following a three-day jury trial, Severin was found guilty of all charges. At sentencing, the trial court found no mitigating or aggravating circumstances and sentenced Severin to twenty-eight years per count to be served consecutively, totaling 196 years' imprisonment. Severin appealed and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Analysis
Sufficient Evidence
¶9On appeal, Severin first argues that there was insufficient evidence to support his convictions below. We review de novo whether evidence is sufficient to support a conviction. State v. Denson, 241 Ariz. 6, ¶ 17 (App. 2016). We view reasonable inferences drawn from the evidence in the light most favorable to upholding the conviction. State v. Mendoza, 234 Ariz. 259, ¶ 2 (App. 2014).
¶10Evidence is sufficient if there is substantial evidence to support a conviction, that is, "if a rational juror could find the elements of the crime proved beyond a reasonable doubt." Id., ¶ 5. "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Rodriguez, 251 Ariz. 90, ¶ 16 (App. 2021) (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). Evidence is sufficient even if "reasonable minds can differ on inferences to be drawn therefrom." Id. (quoting State v. Landrigan, 176 Ariz. 1, 4 (1993)). The evidence may be direct or circumstantial, Denson, 241 Ariz. 6, ¶ 17, and is tested against the "statutorily required elements of the offense," State v. Pena, 209 Ariz. 503, ¶ 8 (App. 2005).
¶11One is guilty of sexual exploitation of a minor under A.R.S. § 13-3553(A)(2) if one knowingly distributes, transports, exhibits, receives, sells, purchases, electronically transmits, possesses or exchanges "any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." Severin does not dispute that the videos found were of a minor engaged in "exploitive exhibition or other sexual conduct." Rather, he argues that there was insufficient evidence to show he possessed the laptop containing those videos. "Possess" "means knowingly to have physical possession or otherwise to exercise dominion or control over property." A.R.S. § 13-105(34). And "knowingly" is statutorily defined "with respect to conduct or to a circumstance described by a statute defining an offense" as when "a person is aware or believes that the person's conduct is of that nature or that the circumstance exists." § 13-105(10)(b).
¶12Possession can be actual or constructive. State v. Gonsalves, 231 Ariz. 521, ¶ 9 (App. 2013). "Constructive possession can be established by showing that the accused exercised dominion and control over the [contraband] itself, or the location in which the [contraband] was found." State v. Teagle, 217 Ariz. 17, ¶ 41 (App. 2007). "Dominion" has been defined as "absolute ownership" and to "control" means to "have power over." State v. Cox, 214 Ariz. 518, ¶ 9 (App. 2007) (quoting State v. Tyler, 149 Ariz. 312, 316 (App. 1986)). Mere presence of an individual at the location where contraband is found, however, is insufficient to prove that he knowingly exercised dominion or control over it. Gonsalves, 231 Ariz. 521, ¶ 10. However, "[possession need not be exclusive-it 'may be sole or joint.'" Cox, 214 Ariz. 518, ¶ 9 (quoting State v. Miramon, 27 Ariz.App. 451, 452 (1976)).
Severin asserts that the only issue is whether there was constructive possession, because he was clearly not in actual possession of the laptop. And the state only argues that Severin had constructive possession. Therefore, we only address whether Severin had constructive possession.
¶13Severin argues, as he did below, that because there is no evidence that "connects" him to the laptop, there is insufficient evidence to support his conviction under § 13-3553(A)(2). In his unsuccessful Rule 20, Ariz. R. Crim. P., motion below, Severin argued that, not only did nothing "on the computer itself" "connect[]" him to the laptop, but also that there was "another suspect who lived in the residence that law enforcement did not investigate," and that "[h]e could have had equal access to the computer." Severin also argues that, because the house belonged to his mother and step-father, he did not "have 'absolute ownership' or 'power over' the dining room or the china hutch" and therefore, he "was not in constructive possession of the HP laptop." It is undisputed that the laptop had no information directly showing Severin had access to or used the laptop; there were no email or bank accounts in his name, nor any social media or entertainment streaming services linked to him, and the profile on the laptop was under his mother's username. However, the fact that the laptop account was under his mother's username does not preclude Severin from having possession of it within the meaning of § 13-3553(A)(2), even if that possession was joint. See State v. Jenson, 114 Ariz. 492, 493-94 (1977) (possession found when drugs were under a chest of drawers owned by defendant, even though it was in a location where others had access to it). Absolute dominion over the place where contraband is found is not required to establish constructive possession. See State v. Villavicencio, 108 Ariz. 518, 520 (1972) ("Exclusive control of the place in which the [contraband is] found is not necessary.").
¶14 The evidence was sufficient to show that Severin had dominion and control over his bedroom where the laptop power cord was found, and, although others in the home had access to the dining room, as stated above, that does not preclude a jury from finding that he had dominion and control over that space, even if he shared that control with others. See Jenson, 114 Ariz. at 493-94; see also Villavicencio, 108 Ariz. at 520. The charging cord in his bedroom was plugged into the wall, the cord matched the laptop found in the dining room, the laptop was powered on when it was found, and the dining room where the laptop was hidden was adjoining Severin's bedroom.
¶15 Furthermore, evidence obtained from the internet provider showed that Severin was listed as the internet subscriber. Severin himself told law enforcement that the other two computers found were his mother and step-father's, that he did not use them, and that his mother and stepfather would not have been downloading anything. Such evidence-although circumstantial-leads to a reasonable conclusion that Severin possessed the laptop and, constructively, its contents. See Gonsalves, 231 Ariz. 521, ¶ 10 ("Constructive possession may be proven by direct or circumstantial evidence.").
Admission of Prior Conviction
¶16 Severin also argues on appeal that the trial court erroneously admitted evidence of his prior federal conviction. We review the admission of evidence under Rule 404(c) for an abuse of discretion. State v. James, 242 Ariz. 126, ¶ 11 (App. 2017).
¶17 "Evidence of an emotional propensity to commit aberrant sexual acts is admissible to prove that an accused acted in conformity therewith." State v. Arner, 195 Ariz. 394, ¶ 3 (App. 1999). Under Rule 404(c), evidence of a prior act may be admissible to show "that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Prior to such evidence being admitted, the trial court must find that: there is sufficient proof that the defendant committed the other act; the other act provides "a reasonable basis to infer the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged"; and the evidentiary value of the other act is not substantially outweighed by the concerns of Rule 403. Ariz. R. Evid. 404(c).
¶18 Pursuant to Rule 403, relevant evidence may be excluded if its "probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." In addition to the Rule 403 considerations, Rule 404(c)(1)(C) also requires that the trial court consider other factors such as: the remoteness of the other act; the similarity or dissimilarity between the acts; the strength of the evidence that the defendant committed the other act; the frequency of the other acts; surrounding circumstances; relevant intervening events; and other relevant factors.
¶19 The state argued below that the conviction should be admitted because Severin pleaded guilty to "almost the exact same offense" and that he "even used the same means in that prior case to commit that offense." And the state claimed that it was "not unfairly prejudicial" and was allowable under Rule 404(c). In response, Severin conceded-as he does on appeal-that the state had shown that he committed the crime because he pleaded guilty to it, and that it "probably does show that he had some sort of character trait giving rise to aberrant propensity to commit the offense charged." However, Severin asserted that the prior conviction was unfairly prejudicial, specifically arguing that the prior act was too remote because it was "approximately 16, 17 years away from the current incident." Severin additionally asserted that introducing his prior conviction was so prejudicial that it would result in a conviction, despite the "limited evidence" the state had against him.
The state also argued that the prior conviction was admissible under Rule 404(b), which Severin argued against as well. However, because it was only admitted under Rule 404(c) and the trial court resolved the issue on those grounds, we need not address Rule 404(b).
¶20 Ultimately, the trial court ruled the prior conviction evidence was admissible under Rule 404(c), specifically finding that the "evidentiary value of the other act is not substantially outweighed by danger of unfair prejudice . . . or any other concerns raised in Rule 403." And, although it acknowledged the conviction was "relatively remote," such remoteness did not eliminate the similarities between the two acts or any significant relevance it has to the current charge. Finally, the court found that any danger of unfair prejudice would be remedied by a proper jury instruction, which was given at the end of trial.
¶21 On appeal, Severin similarly argues that the prior conviction was too remote and that the admission of the conviction allowed the jury to conclude he was "acting in conformity with his previous actions . . . despite the fact that there was insufficient proof he possessed the laptop here." The state responds that "the time lapse between the other act and the charged acts is overcome by the very strong similarities between Severin's earlier conviction and the charged acts" and that the purpose of Rule 404(c) is to "help prove action in conformity with a character trait of having an aberrant sexual propensity." The state is correct.
¶22 We give broad discretion to the trial court when making Rule 403 determinations because it is in the best position to balance the probative value of the offered other-act evidence against any potential for unfair prejudice. See State v. Gomez, 250 Ariz. 518, ¶ 15 (2021). First, the court acknowledged Severin's concern-the remoteness of the incident-and determined it did not outweigh its probative value. Furthermore, "[although remoteness between the two incidents affects the weight to be given the testimony by the jury, it generally does not determine admissibility." State v. Van Adams, 194 Ariz. 408, ¶ 24 (1999). In fact, acts more remote than the one at issue here have been admitted under Rule 404(c). See State v. Weatherbee, 158 Ariz. 303, 304-05 (App. 1988) (prior acts occurred nineteen and twenty to twenty-two years before trial); see also State v. Salazar, 181 Ariz. 87, n.5 (App. 1994) (evidence of prior act admissible with proper restrictions, despite it occurring over twenty years before the charged crime).
¶23 As to Severin's argument that the prior conviction allowed the jury to make a decision on an improper basis, we disagree. First, as discussed above, there was sufficient evidence for a jury to find Severin guilty of the charged offense, therefore the jury's decision was not solely based on evidence of a prior conviction. Moreover, the trial court expressly instructed the jurors that they were not to reach a conviction based solely on the evidence of the prior conviction. See State v. Payne, 233 Ariz. 484, ¶ 151 (2013) ("Absent evidence to the contrary, we presume the jury followed the instructions."). Additionally, while Rules 404(a) and (b) do not permit other acts to be admitted to prove a defendant's character to establish "action in conformity therewith," Rule 404(c) does "when the defendant is charged with having committed a 'sexual offense.'" State v. Rose, 246 Ariz. 480, ¶ 8 (App. 2019). The court did not err in finding the evidence of Severin's prior conviction was admissible and the lack of undue prejudice.
¶24Severin also argues that the manner in which the conviction was admitted "was highly prejudicial" and it was an abuse of the trial court's discretion to allow "the factual basis for the federal plea read into the record." Severin cites to no authority supporting that the court abused its discretion in this way. As discussed above, one of the considerations under whether Rule 404(c) evidence is admissible is its similarity to the current act the defendant is charged with. Indeed, one of the arguments the state raised below and on appeal is the similarity between the facts of the prior conviction and the facts of this case. To make such similarities clear, more than just the fact of the prior conviction's existence had to be discussed, even while avoiding such detail that it becomes prejudicial. See Salazar, 181 Ariz. at 88-89, 92. Unlike the circumstances in Salazar, the crime leading to Severin's prior conviction was substantially similar, not dissimilar, to the crime alleged here, and its facts provided a reasonable basis to infer that Severin had a character trait giving rise to an aberrant sexual propensity for such illicit material. Also contrary to Salazar, where the defendant's prior rape victims testified in graphic detail about his assaults on them, nothing approaching graphic detail of the underlying facts of Severin's prior conviction was presented to the jury. The admission of the factual basis for the prior conviction under Rule 404(c) was therefore not error.
Severin also asserts that the fact that it was a plea to a federal crime made it more prejudicial. Severin provides no credible argument apart from assertion, and therefore we do not address this argument. See State v. Moody, 208 Ariz. 424, n.9 (2004) (arguments not supported with legal authority may constitute waiver of a claim).
Because we determine that there was no error, we need not address Severin's argument that the error was not harmless. See State v. Henderson, 210 Ariz. 561, ¶ 18 (2005) (harmless error review is used when it is determined there was an error and it was objected to below).
Eighth Amendment
¶25Severin's final argument on appeal is that the requirement that his sentences run consecutively and that he not be eligible for parole pursuant to A.R.S. § 13-705(N) violates the Eighth Amendment's prohibition on cruel and unusual punishment. As Severin acknowledges in his opening brief, the Arizona Supreme Court has held that consecutive sentences for possession of child pornography does not violate the Eighth Amendment. State v. Berger, 212 Ariz. 473, ¶¶ 50-51 (2006). And that this court has "no authority to overrule or disregard decisions of our supreme court." State v. Newnom, 208 Ariz. 507, ¶ 8 (App. 2004). Accordingly, we affirm Severin's sentences.
Disposition
¶26 For the foregoing reasons, we affirm Severin's convictions and sentences.