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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  DANIEL SCOTT CUTRARA, Appellant.

                             No. 1 CA-CR 16-0685
                               FILED 10-19-2017


          Appeal from the Superior Court in Maricopa County
                     No. CR2015-141315-001 DT
         The Honorable Richard L. Nothwehr, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                           STATE v. CUTRARA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.


C R U Z, Judge:

¶1             Daniel Scott Cutrara appeals his convictions under Arizona
Revised Statutes (“A.R.S.”) section 13-3506 for furnishing harmful items to
minors, i.e., magazines depicting photographs of nude women. Cutrara
claims the prosecutor misstated the law when she argued the jury could
find Cutrara guilty for storing his pornographic magazines in a closet
where minors found them, absent evidence Cutrara presented or offered
the magazines to the minors. Because we hold the prosecutor correctly
stated the law, no fundamental, prejudicial error occurred, and we
therefore affirm Cutrara’s convictions and sentences.

              FACTUAL AND PROCEDURAL HISTORY

¶2            Cutrara was indicted on two counts of contributing to the
dependency of a child, both Class 1 misdemeanors; two counts of
furnishing obscene or harmful items to minors, both Class 4 felonies;
molestation of a child, a Class 2 felony and dangerous crime against
children; and sexual conduct with a minor, a Class 2 felony and dangerous
crime against children.

¶3           At trial, Cutrara’s step-daughter K.S. and her friend S.G. (the
“victims”), both under the age of sixteen, testified Cutrara gave them
alcohol and brought out pornographic magazines from a closet to show
them as they sat together in the living room, even handing one of the
magazines to K.S. The victims also testified Cutrara made inappropriate
comments about women’s bodies and K.S.’s body.

¶4          Cutrara testified in his defense at trial. He admitted he kept
pornographic magazines in a closet, but denied showing them to the
victims.

¶5           While settling jury instructions, the court made the following
statements concerning mens rea, to which neither party objected:




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                            STATE v. CUTRARA
                            Decision of the Court

       So then it’s intentionally, or with intent to, defined. Intent,
       inference, knowingly defined.         Included mental state.
       Knowingly. Recklessly defined. And by our agreement
       yesterday, it simply will read recklessly or reckless disregard
       means that the defendant is aware of and consciously
       disregards a substantial and unjustifiable risk that conduct
       will result in conduct forbidden by law.

¶6            Later, in instructing the jury, the court defined “recklessly” as
meaning “that a defendant is aware of and consciously disregards a
substantial and unjustifiable risk that conduct will result in conduct
forbidden by law. The risk must be of [sic] such that disregarding it is a
gross deviation from what a reasonable person would do in the situation.”
The jury was instructed regarding furnishing obscene and harmful items to
minors as follows:

       Count 3 and 4 allege the crime of Furnishing Obscene or
       Harmful Items to Minors, and requires proof that the
       defendant, with knowledge of the character of the item
       involved, recklessly furnished, presented, provided, made
       available, gave, lent, showed, or distributed to a minor
       Playboy magazines, alleged to be an item that is harmful to
       minors.

¶7            At closing, consistent with both victims’ testimony, the
prosecutor argued Cutrara brought out pornographic magazines and
showed them to the girls. However, given Cutrara’s testimony that he did
not actively show the girls the magazines, the prosecutor also argued that
“even if you think that the defendant did have the magazines in his closet,
and was reckless about whether the girls could have found them, if the
Playboys were harmful . . . you can still find him guilty on those furnishing
counts.” Cutrara did not object.

¶8          The jury found Cutrara guilty on the counts of contributing to
the dependency of a minor and furnishing obscene or harmful items to
minors.1

¶9           This Court has jurisdiction of Cutrara’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).


1     The jury acquitted Cutrara on the charges of molestation of a child
and sexual conduct with a minor.


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                           STATE v. CUTRARA
                           Decision of the Court

                              DISCUSSION

¶10            Because Cutrara did not object at trial to the prosecutor’s
statement, this Court reviews his argument for fundamental error. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Fundamental error goes to the
foundation of a case, takes from the defendant a right essential to his
defense, and is of such magnitude that the defendant could not have
received a fair trial. Id. To prevail under fundamental error review, “a
defendant must establish both that fundamental error exists and that the
error in his case caused him prejudice.” Id. at ¶ 20.

¶11           Cutrara argues the prosecutor committed fundamental,
prejudicial error by misstating the law regarding the act required to convict
him under A.R.S. § 13-3506. According to Cutrara, A.R.S. § 13-3506 requires
an affirmative act on the defendant’s part. He further contends the
prosecutor misstated the law by arguing that “if [the jury] think[s] that the
defendant did have the magazines in his closet, and was reckless about
whether the girls could have found them, if the Playboys were harmful for
a 14- or 15-year-old girl to look at, [the jury] can still find him guilty on
those furnishings counts.”

¶12          Section 13-3506(A) 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.

A.R.S. § 13-3506(A) (Emphasis added.)

¶13          The prosecutor’s statement correctly advised the jury that,
under A.R.S. § 13-3506(A), recklessly making harmful items available to
minors is sufficient to convict a defendant of furnishing harmful items to
minors.

¶14           Cutrara’s argument that A.R.S. § 13-3506 requires an
affirmative step focuses on other various means by which a defendant may
violate the statute, i.e., by “provid[ing],” “giv[ing],” “lend[ing],”
“show[ing],” “advertis[ing],” or “distribut[ing]” harmful materials to
minors. To be sure, those verbs plainly imply affirmative acts by a
defendant, and if the jury believed the victims’ testimony that Cutrara
brought out the magazines from the closet and showed them to the girls, it
could have convicted him for that conduct. But the State’s alternative
theory was that Cutrara made the magazines available to the girls by


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                           STATE v. CUTRARA
                           Decision of the Court

recklessly leaving them in a closet where they could obtain them. On this
theory, as the prosecutor argued, the jury could very well find Cutrara took
affirmative steps in violation of the statute when he bought the magazines
and placed them in the closet in such a manner that they were easily
available to minors.

¶15           Cutrara is correct that the statute does not criminalize mere
possession of harmful items by one who happens to live in a home with
minors; as applied here, the statute criminalizes reckless conduct that
results in a minor’s exposure to obscene or harmful materials. Therefore,
even if the jury disbelieved the evidence that Cutrara showed the
magazines to the victims, it could find Cutrara guilty if it found he
recklessly stored harmful materials and thereby made them available to the
victims.

                              CONCLUSION

¶16           Based on the foregoing, we hold the prosecutor correctly
stated the law regarding A.R.S. § 13-3506, no fundamental error occurred,
and therefore affirm Cutrara’s convictions and resulting sentences.




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




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