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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       ROBERT CARRILLO, Appellant.

                             No. 1 CA-CR 18-0764
                               FILED 1-16-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-142035-001
              The Honorable George H. Foster, Jr., Judge

                                  AFFIRMED


                                   COUNSEL

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

Gallagher & Kennedy, P.A., Phoenix
By Woody Thompson, Hannah H. Porter
Counsel for Appellant
                          STATE v. CARRILLO
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.


W I N T H R O P, Judge:

¶1           Robert Carrillo appeals from his convictions and sentences for
seven counts of sexual exploitation of a minor. For the following reasons,
we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2             Carrillo’s adult step-daughter, P.Z., discovered images of
partially clothed and naked children on Carrillo’s Sony laptop. P.Z. told
her mother, P.C., about the images and showed some of them to her before
P.C. eventually informed her doctor “she had seen images of young
children wearing little or no clothing . . . [on] a computer that was under
the control of Robert Carrillo.” The doctor reported P.C.’s comment to the
Phoenix Police Department, and Detective Angel then interviewed P.C. and
P.Z.

¶3            While police officers surveilled Carrillo’s home, Detective
Angel secured a warrant to search the residence for digital evidence of
sexual exploitation of minors. Detective Angel’s affidavit for the search
warrant included information he obtained through the interviews with P.C.
and P.Z. During the subsequent search, the officers seized, among other
items, a Sony Vaio laptop2 and a PNY thumb drive that contained such
evidence.     A forensic examination of the laptop later revealed
approximately 1,000 images of children being sexually abused or exploited.
Carrillo was alone in the home during the search and for almost two hours
before officers served the warrant.




1      We view the facts in the light most favorable to upholding the jury’s
verdicts. State v. Stroud, 209 Ariz. 410, 412, ¶ 6 (2005).

2     As Carrillo notes, P.C. mistakenly referred to the Sony laptop as an
“HP” laptop during her interview with Detective Angel.


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                           STATE v. CARRILLO
                           Decision of the Court

¶4           The State charged Carrillo with ten counts of sexual
exploitation of a minor, Class 2 felonies and dangerous crimes against
children. Counts 1 through 7 were based on images found in the Sony
laptop’s temporary internet folder that were created when Carrillo was
alone in the home prior to the search. Counts 8 through 10 referred to
images found on the PNY thumb drive that were created or downloaded
between July 28, 2012, and August 29, 2014.

¶5             Before trial, Carrillo moved to suppress the evidence police
obtained when they searched Carrillo’s home, arguing Detective Angel’s
affidavit for the warrant “purposefully misled and kept relevant facts from
the judge granting the warrant.” Specifically, Carrillo pointed to the
following facts omitted from the affidavit: (1) P.C. thought P.Z. was “a liar”;
(2) when P.C. looked for the images on the Sony again after P.Z. initially
showed them to her, P.C. could not find them; (3) P.C. described the images
as not exploitive and merely said they were “inappropriate” because they
depicted females, and she and Carrillo were married; (4) P.C. believed P.Z.
could have placed the images on the computer as retribution for Carrillo’s
failure to give P.Z. money; and (5) P.Z. did not specifically refer to the
children in the images as “LS Models,” a term Detective Angel referenced
in the affidavit. Carrillo also claimed Detective Angel included the
following misstatements in the affidavit: (1) P.Z. was a “documented victim
of child sex abuse”; (2) Carrillo was the only user of the Sony laptop; and
(3) P.C. described the children in the images as unclothed.

¶6           The superior court held an evidentiary hearing on the motion
to suppress at the conclusion of which the court denied the motion. In
doing so, the court found “there were no ‘false statements or material
omissions’ contained in the search warrant affidavit that would have
deterred a neutral magistrate from finding probable cause to believe that
the computer in question contained the images described.”

¶7            Also, before trial and over Carrillo’s objection, the State
moved to admit under Arizona Rule of Evidence (“Rule”) 404(b) evidence
of uncharged acts of sexual exploitation of minors. The other-act evidence
consisted of 44,506 relevant electronic files, including additional digital
images found on thumb drives, and indicia that websites commonly
associated with child pornography were accessed on Carrillo’s laptops—
the Sony laptop and a Compaq. The superior court granted the motion after
conducting a two-day evidentiary hearing.

¶8           Trial commenced, and the superior court granted in part
Carrillo’s motion for judgment of acquittal, finding the evidence was


                                      3
                            STATE v. CARRILLO
                            Decision of the Court

insufficient to allow the jury to consider Counts 8 through 10. See Ariz. R.
Crim. P. 20. The jury found Carrillo guilty of the remaining counts, and the
court imposed consecutive ten-year terms of imprisonment. This timely
appeal followed. We have jurisdiction under the Arizona Constitution
Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and -4033(A).

                                 ANALYSIS

¶9           Carrillo raises two general issues. First, he challenges the
superior court’s denial of the motion to suppress that challenged the search
warrant. Second, Carrillo argues the court did not comport with Rule 404
when it granted the State’s motion to admit other-act evidence.

¶10            We review the court’s ultimate rulings for an abuse of
discretion, but we review de novo the court’s legal decisions such as whether
probable cause supports a search warrant affidavit or whether to admit
other-acts evidence. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118 (1996);
State v. Buccini, 167 Ariz. 550, 555 (1991); State v. Carter, 145 Ariz. 101, 110
(1985); State v. Connor, 215 Ariz. 553, 563, ¶ 32 (App. 2007).

       I.     The Search Warrant

¶11            Carrillo argues Detective Angel recklessly omitted material
facts in his search warrant affidavit and thereby misled the magistrate into
finding probable cause existed to support issuance of the warrant.

¶12           A search warrant may be voided if the defendant shows by a
preponderance of evidence that (1) the affidavit contained a false statement
made knowingly, intentionally, or recklessly by the affiant; and (2) the false
statement was necessary to a finding of probable cause. Franks v. Delaware,
438 U.S. 154, 155-56 (1978). If a defendant establishes the first prong of the
test, the superior court must set aside the false information. Buccini, 167
Ariz. at 554. The court must then view the affidavit’s remaining content to
determine whether it establishes probable cause. Id. If not, the search
warrant is void and anything obtained from the search must be excluded.
Id.

¶13           Search warrants are presumed valid and the defendant has
the burden to prove otherwise. State v. Crowley, 202 Ariz. 80, 83, ¶ 7 (App.
2002). In determining whether to issue a search warrant, a magistrate must
“make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime will be found in a


                                       4
                           STATE v. CARRILLO
                           Decision of the Court

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The superior
court’s duty is “to ensure that the magistrate had a ‘substantial basis for
. . . conclud[ing]’ that probable cause existed.” Id. at 238-39 (alteration in
original) (citation omitted).

¶14              The relevant statute states in pertinent part, “[a] person
commits sexual exploitation of a minor by knowingly . . . receiving . . . [or]
possessing . . . any visual depiction in which a minor is engaged in exploitive
exhibition or other sexual conduct.” A.R.S. § 13-3553(A)(2) (emphasis
added). “‘Exploitive exhibition’ means 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).

¶15            The evidence at the suppression hearing revealed that during
her interview with Detective Angel, P.Z. said she located images of
children, ages “of like two, three years old” to “probably about 10, 11,” in
“various . . . awkward, very sexual poses . . . in women’s lingerie” in the
recycle bin of Carrillo’s laptop. Detective Angel also recounted that P.Z.
said “some of the focus was on the genitalia of the children.” See State v.
Blackmore, 186 Ariz. 630, 631 (1996) (stating that when reviewing the denial
of a motion to suppress, we review only the evidence submitted at the
suppression hearing). This description of the images, which Detective
Angel substantively included in the affidavit, is by itself sufficient to
support a determination that evidence of sexual exploitation of a minor
probably existed on Carrillo’s computer. See State v. Harris, 131 Ariz. 488,
490 (App. 1982) (“[A] non-professional citizen informant is presumed to be
reliable.”).

¶16            Attacking the sufficiency of P.Z.’s description, Carrillo argues
Detective Angel improperly omitted various material facts from the
affidavit. First, Carrillo argues Detective Angel should have included P.C.’s
description of the images she observed, which was relatively benign as
compared to P.Z.’s description of the images. The record from the
suppression hearing, however, confirms that P.C. did not see as many of
the images as P.Z. Indeed, Detective Angel testified at the hearing that,
based on his experience, having seen “millions” of sexually exploitive
images of children during his five-year tenure with the Internet Crimes
Against Children Task Force, the description P.Z. provided was consistent
with an image series known as “LS Models,” which involves a progression
from images of clothed minors to, ultimately, pornographic images
depicting those children in “exploitive exhibition” poses or even engaged
in sexual conduct. Detective Angel also testified that when P.Z. showed the
images to P.C., she “flipp[ed] through them pretty quick, and that [P.C.]


                                      5
                           STATE v. CARRILLO
                           Decision of the Court

only saw a certain number of images.” Finally, Detective Angel explained
he interviewed P.Z. after interviewing P.C. because he did not have
probable cause based on P.C.’s statements alone. This too confirms P.C. did
not observe all the images—namely the exploitive ones—viewed and later
described by P.Z. and that in turn supported the probable cause finding.3
Accordingly, omitting P.C.’s description of the images that were
inconsistent with P.Z.’s description was not a material omission.

¶17            Carrillo also asserts that Detective Angel omitted from the
affidavit P.C.’s statement that P.Z. was a “good actress” who had lied
before. Carrillo additionally argues Detective Angel improperly omitted
P.C.’s stated belief that P.Z. may have downloaded the images “to get back”
at Carrillo for his failure to give her money. But P.C.’s opinion as to P.Z.’s
veracity related to a previous unspecified and unknown event, an opinion
Detective Angel learned about before he spoke to P.Z., did not amount to a
material factual dispute as to what P.Z. observed on Carrillo’s computer.
Similarly, as the superior court correctly noted, any possible motive P.Z.
may have had to “put the images” on Carrillo’s computer were not material
to the charged crime, which, as relevant here, also prohibits possessing
unlawful images. And, in any event, Detective Angel testified he had no
factual basis to suspect that P.Z. had “put the images on the laptop.” He
left the interview with P.C. to immediately locate and interview P.Z., armed
with information that P.C. questioned P.Z.’s veracity and that P.Z. had
previously used the computer in question. Detective Angel testified that
the interview with P.C. did not yield probable cause for a search warrant,
but that he had probable cause after he interviewed P.Z. and presumably
explored why P.Z. would have alerted her mother to the images on the
laptop.

¶18          Carrillo next argues Detective Angel withheld from the
affidavit P.C.’s statement that she could not find the images on the
computer at some point after P.Z. first showed her the pictures. This is not
a material omission. P.C.’s inability to later “find” the images does not




3      We therefore reject Carrillo’s argument that probable cause did not
exist because the images were merely lawful child erotica. Even assuming
P.C. only saw images depicting child erotica, P.Z. described sexually
exploitive images of children. Supra, ¶ 15. Further, Carrillo incorrectly
implies an image must depict “full nudity or physical contact” under A.R.S.
§ 13-3553(A)(2) to qualify as sexual exploitation.



                                      6
                           STATE v. CARRILLO
                           Decision of the Court

necessarily mean the images were not located on the computer either when
she first viewed them or when she was later unable to find them.4

¶19             In addition to the purported material omissions from the
warrant’s affidavit, Carrillo argues Detective Angel recklessly provided
false material information. Carrillo first points to the affidavit’s references
to the Sony laptop being “solely” used by Carrillo. Although this reference
incorrectly indicated Carrillo as the only user of the laptop, his guilt was
not a necessary focus of the investigation at the time the warrant was
obtained. Rather, police intended to gather evidence that the crime of
sexual exploitation of a minor had been committed by someone. See United
States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir. 2002) (holding probable
cause for a search warrant existed when “affidavit clearly set forth the
existence of criminal activity” and “a reasonable inference from the
affidavit’s facts suggested that incriminating evidence or contraband
related to the crimes under investigation would likely be located there”).
Thus, as the superior court concluded, if Carrillo’s “sole” use of the laptop
was excised from the affidavit and replaced with P.C.’s or P.Z.’s statements
that: (1) Carrillo was the primary user of the computer; (2) P.C. had not used
the laptop in years; and (3) P.Z. used the computer twice—the one time
when she discovered the images and the second time when she showed
them to P.C., “the amendment would not deter a neutral magistrate from
finding probable cause.” Accordingly, Carrillo’s sole use of the laptop was
not a material misrepresentation.

¶20           Carrillo challenges Detective Angel’s use of the term
“pornography” in the affidavit and at the hearing when recounting P.Z.’s
description of the images she discovered on Carrillo’s laptop. We reject this
argument.     Detective Angel’s use of the term did not materially
misrepresent P.Z.’s verbatim description of the images, supra ¶ 15, and if it
did, replacing “pornography” with P.Z.’s description would not require a
finding that probable cause did not exist.

¶21         Finally, Carrillo argues the “cumulative effect” of the
omissions and misrepresentations requires concluding probable cause did

4      For this latter reason, we reject Carrillo’s argument that the warrant
lacked probable cause because P.C. and P.Z. only observed the digital
images five months before Detective Angel obtained the search warrant.
Carrillo’s “staleness” argument also lacks merit as a matter of law. See
United States v. Paull, 551 F.3d 516, 522 (6th Cir. 2009) (“[T]he same time
limitations that have been applied to more fleeting crimes do not control
the staleness inquiry for child pornography.”).


                                      7
                           STATE v. CARRILLO
                           Decision of the Court

not support the search warrant. The cumulative error doctrine, however,
only applies to claims of prosecutorial misconduct, and Carrillo provides
no authority to the contrary. See State v. Hughes, 193 Ariz. 72, 78-79, ¶ 25
(1998). The superior court did not err by failing to address the cumulative
effects of the alleged omissions and misrepresentations reflected in the
affidavit.

¶22           Given the record, we conclude sufficient evidence existed to
support a finding of probable cause, and the superior court therefore did
not abuse its discretion by refusing to suppress the evidence obtained from
the search.

       II.    Other-Act Evidence

¶23           Rule 404(b) prohibits evidence of other acts “to prove the
character of a person in order to show action in conformity therewith” but
allows such evidence “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Other-act evidence is admissible if: (1) the evidence
is admitted for a proper purpose; (2) the evidence is relevant; (3) the
evidence is not unfairly prejudicial under Rule 403; and (4) the judge gives
an appropriate limiting instruction if one is requested. State v. Terrazas, 189
Ariz. 580, 583 (1997). To be admissible, the State must prove by clear and
convincing evidence that the other act occurred, and that the defendant
committed the act. Id. at 584.

¶24           Carrillo posited that he was not the one to put the images on
the computer and that he did not know the images were on the computer.
At the evidentiary hearing, Carrillo’s attorney stated that “[o]ur position is
other people could have easily committed these other acts, and other people
had motive to commit these other acts.” His defense suggested that a
computer virus or another person accessed and downloaded the illicit
images. To counter Carrillo’s argument, the State sought to introduce
other-acts evidence consisting of search history on two laptops between
August 2002 through June 2004, and January 2012 through August 2014,
and 44,506 files depicting child pornography or child erotica. The court
permitted the other-acts evidence, which contradicted Carrillo’s argument
that a virus caused the charged illicit images to download on to the laptop
when he was using it.

¶25          Carrillo argues the State failed to prove by clear and
convincing evidence that Carrillo possessed the uncharged sexually
exploitive material because the superior court should not have afforded



                                      8
                            STATE v. CARRILLO
                            Decision of the Court

P.C.’s and P.Z.’s “unreliable hearsay” statements evidentiary weight when
granting the State’s Rule 404(b) motion. Carrillo challenges the witnesses’
statements regarding Carrillo as the primary user of the devices on which
the criminal images were located. However, as Carrillo concedes, a court
may consider hearsay statements to determine the admissibility of
evidence. The weight to be afforded such evidence does not impact
admissibility, State v. Van Adams, 194 Ariz. 408, 416 (1999), and is a matter
that rests solely with the superior court as the fact finder, not this court. See
State v. Anderson, 20 Ariz. App. 309, 313 (1973). Thus, we will not reverse
on this basis.

¶26            Disregarding the purported lack of evidentiary value of P.C.’s
and P.Z.’s statements regarding Carrillo’s use of the devices, Carrillo argues
the State nonetheless failed to clearly and convincingly prove Carrillo
possessed the uncharged sexually exploitive materials. At the evidentiary
hearing, a Phoenix Police Department digital forensics and computer
examiner testified to “indicia of use” found on the two laptops containing
other-acts evidence. The examiner testified that computer files and online
account access indicating Carrillo used the laptops corresponded with the
timeframes in which websites associated with child pornography were
accessed and illicit images were saved to thumb drives. The court relied on
this testimony in finding Carrillo was the “primary user of the computers”
when internet searches for the images occurred and the images were
downloaded. This evidence supports the court’s determination that the
State clearly and convincingly proved Carrillo possessed the uncharged
materials; we find no error.

¶27            Carrillo also contends the superior court’s reliance on P.C.’s
and P.Z.’s statements at the 404(b) hearing violated his confrontation rights.
Carrillo failed to raise this issue in superior court, and, noting the State did
not offer P.C.’s and P.Z.’s statements at trial because they asserted their
rights under the Fifth Amendment, Carrillo provides no authority to
support his contention that the statements’ admission at the evidentiary
hearing violated his confrontation rights. We therefore decline to find
reversible error.

¶28            Carrillo also claims evidence of the other acts presented at
trial was unduly prejudicial under Rule 403. Evidence creates unfair
prejudice if it “has an undue tendency to suggest decision on an improper
basis,” but “[n]ot all harmful evidence . . . is unfairly prejudicial.” State v.
Mott, 187 Ariz. 536, 545-46 (1997). Here, Carrillo’s defense that a virus or
another person caused the illicit images to be accessed and downloaded
tipped the balance of the probative value to outweigh potential prejudice to


                                       9
                            STATE v. CARRILLO
                            Decision of the Court

him at trial. See State v. Valles, 162 Ariz. 1, 6 (1989). Further, the jury did
not see images from the other-acts evidence, and the court issued a limiting
instruction to the jury regarding the use of the other-acts evidence.

¶29            There was no error, let alone prejudicial error.          The
uncontroverted trial evidence establishes Carrillo was alone when he
turned on the Sony laptop, to which the seven sexually exploitive files were
soon thereafter downloaded before police executed the warrant. The trial
evidence also established that, although Carrillo’s expert discovered
viruses on the Sony, he did not discover any virus that automatically
download sexually exploitive images. The seven images resulting in the
guilty verdicts were also discovered in the computer’s temporary internet
folder, thus indicating Carrillo directly navigated to websites containing
“key phrases and combinations of words often associated with child
pornography and sexual exploitation of minors” that displayed the
unlawful images; therefore, Carrillo knowingly received the images. See
State v. Jensen, 217 Ariz. 345, 351, ¶ 14 (App. 2008).

                               CONCLUSION

¶30           For the foregoing reasons, Carrillo’s convictions and
sentences are affirmed.




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




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