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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             No. 1 CA-CR 15-0679
                               FILED 9-15-2016


           Appeal from the Superior Court in Yavapai County
                        No. V1300CR201480410
                The Honorable Michael R. Bluff, Judge

                                  AFFIRMED


                                   COUNSEL

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

Craig Williams Attorney at Law PLLC, Prescott Valley
By Craig Williams
Counsel for Appellant
                            STATE v. LYNAM
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Margaret H. Downie
joined.


T H O M P S O N, Judge:

¶1           Thomas Joseph Lynam (Lynam) appeals his ten convictions
and sentences for sexual exploitation of a minor based on his possession of
child pornography. We affirm his convictions and sentences for the reasons
that follow.

               FACTUAL AND PROCEDURAL HISTORY

¶2              Lynam was charged with ten counts of sexual exploitation of
a minor younger than fifteen years of age in violation of Arizona Revised
Statutes (A.R.S.) § 13-3553 (2010).1 He was indicted for possessing visual
depictions of child pornography pursuant to subsection (A)(2) of the statute
in each of the ten counts. See A.R.S. § 13-3553(A)(2).2 Each charged count
is a class 2 felony offense and dangerous crime against children punishable
by a prison term of ten to twenty-four years. A.R.S. §§ 13-3553(C), -705(D)
(2010). Pursuant to § 13-705, all sentences for convictions of sexual
exploitation of a minor must be served consecutively, without the
possibility of sentence suspension, probation, early release, or pardon from




1     Absent material changes from the relevant date, we cite a statute’s
current version.

2      Each count in the indictment contained the same language: “On or
about September 29, 2014, [Lynam], distributed, transported, exhibited,
received, sold, purchased, electronically transmitted, possessed or
exchanges a visual depiction . . . .” This language reflects § 13-3553(A)(2)
which states: “A person commits sexual exploitation of a minor by
knowingly: . . . [d]istributing, transporting, exhibiting, receiving, selling,
purchasing, electronically transmitting, possessing or exchanging any
visual depiction in which a minor is engaged in exploitive exhibition or
other sexual conduct.”


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                            STATE v. LYNAM
                           Decision of the Court

confinement, except as specifically authorized by A.R.S. § 31-233(A), (B)
(2012). A.R.S. § 13-705 (H), (M).

¶3           Lynam’s charges were precipitated by information sent by
both America Online (AOL) and Google to the National Center for Missing
and Exploited Children (NCMEC) in June 2014. Upon receiving the
information, NCMEC contacted the Phoenix Police Department (PPD).
NCMEC reported to the PPD that five images of potential child
pornography were uploaded to two email accounts associated with an IP
address in Camp Verde. The PPD forwarded the information to Detective
Edgerton in the Yavapai County Sheriff’s Office who confirmed the IP
address was associated with Lynam. The detective executed a search
warrant on Lynam’s residence.

¶4            During the execution of the warrant, Lynam agreed to speak
with Detective Edgerton after she administered Miranda3 warnings before
conducting an audiotaped interview. In the interview Lynam admitted: (1)
he was the sole user of his computer, (2) the emails containing the
information sent to NCMEC by AOL and Google belonged to him, (3) he
downloaded sexually exploitative images from the internet using search
terms including “boys,” “preteens,” and “teens” and downloaded the
retrieved images to his computer’s hard drive onto CDs and DVDs, (4) he
had been downloading these images for approximately 3 years, and (5) to
avoid law enforcement detection, he downloaded the images from the
internet and after two or three days he would transfer them onto DVDs or
CDs and delete them from his computer.

¶5            Several computer disks obtained during the search contained
pornographic images of children, from which roughly twenty images were
taken to an expert to assess the children’s age. The expert gave an opinion
as to ten images found on CDs labeled “pix1A” and DVDs labeled “vid10,”
confirming they had the age characteristics for child pornography. Lynam
was indicted for each of the ten depictions which included three video clips
on “vid 10” and seven still images from “pix1A.”

¶6            Before trial, over defense counsel’s objection, the judge
granted the state’s motion to introduce evidence of pornographic images
beyond the ten charged images to prove, among other things, Lynam
knowingly possessed the ten charged images. The judge’s ruling permitted
the detective’s testimony about the uncharged images on the stated theory
that the images were intrinsic evidence that “directly proved” the crime of


3     Miranda v. Arizona, 384 U.S. 436 (1966).


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                             STATE v. LYNAM
                            Decision of the Court

duplication pursuant to A.R.S. § 13-3553(A)(1), although the indictment
charged possession of child pornography pursuant to A.R.S. § 13-3553(A)(2).
The judge further ruled the probative value of the detective’s testimony was
not substantially outweighed by the danger of unfair prejudice under
Arizona Rule of Evidence (Rule) 403’s balancing test and thus was
admissible at trial.

¶7            Consequently, at trial and over defense counsel’s renewed
objection, the judge permitted Detective Edgerton to testify before the jury
to finding 400-500 images of what she considered child pornography in
Lynam’s residence. The detective also testified that she sent approximately
470 videos and 5,333 images of children to NCMEC to check for missing
and exploited children.

¶8            After a four-day trial, a jury found Lynam guilty on all ten
charged counts.       The trial court sentenced Lynam to ten years’
imprisonment for each count, to be served consecutively (cumulatively 100
years). Lynam timely appealed to this court. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) (2016), 13-4031 (2016) and -4033(A) (2016).

                               DISCUSSION

¶9            Lynam raises a number of challenges to his convictions and
sentences and seeks a new trial. We address each of the issues Lynam
raises in turn, viewing the trial evidence in the light most favorable to
sustaining the jury’s verdict. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150
P.3d 769, 769 (App. 2007).

¶10            A trial court’s ruling on the admissibility of evidence is
reviewed for abuse of discretion. State v. Dann, 220 Ariz. 351, 362, ¶ 44, 207
P.3d 604, 616 (2009). We review constitutional issues de novo. In re MH
2007-001275, 219 Ariz. 216, 219, ¶ 9, 196 P.3d 819, 822 (App. 2008). We also
review de novo whether a trial court applied the correct statutory provision.
State v. Gonzalez, 216 Ariz. 11, 12, ¶ 2, 162 P.3d 650, 651 (2007). Lynam
additionally requests we search the record for fundamental error. Under
fundamental error review, Lynam “bears the burden to establish that ‘(1)
error exists, (2) the error is fundamental, and (3) the error caused him
prejudice.’” State v. James, 231 Ariz. 490, 493, ¶ 11, 297 P.3d 182, 185 (App.
2013) (citations omitted).




                                       4
                               STATE v. LYNAM
                              Decision of the Court

I.     Admissibility of Uncharged Images and Videos Testimony

¶11           Lynam argues the trial court erred in ruling the uncharged
images proffered by the state through the detective’s testimony qualified as
intrinsic evidence and abused its discretion in finding the testimony was
not unfairly prejudicial under Rule 403’s balancing test and thus
admissible. He also maintains the evidence did not qualify as other acts
evidence under Rule 404(b). We find no reversible error.

¶12           The state’s pre-trial notice of intent to introduce evidence was
made pursuant to either the intrinsic-evidence doctrine or Rule 404(b). The
state sought to disclose to the jury that law enforcement found more than
the ten charged images to show that Lynam knowingly sought out, obtained,
downloaded, transferred to external storage devices, and retained child
pornography in collection with the ten charged images. As noted above, an
evidentiary hearing was conducted on the matter after which the trial court
ruled testimony about the uncharged images was admissible, reasoning
that it was intrinsic to the charges and not unduly prejudicial under Rule
403. However, the court cited the uncharged subsection (A)(1) of A.R.S. §
13-3553(A). Thus, the court permitted trial testimony about 470 uncharged
videos and 5,333 uncharged images over Lynam’s objection.

¶13             The state argues we need not consider whether the uncharged
images and videos were inadmissible under the intrinsic evidence doctrine
because Rule 404(b) separately justifies the trial court’s ruling that the state
could present this evidence. The state also points out Lynam failed to notify
the trial court of its mistake in making the admissibility ruling pursuant to
the wrong subsection of A.R.S. § 13-3553(A). “We are required to affirm a
trial court’s ruling if legally correct for any reason . . . .” State v. Herrera, 232
Ariz. 536, 543, ¶ 14, 307 P.3d 103, 110 (App. 2013) (citation and quotation
omitted).

¶14         The trial judge’s ruling predicated on the wrong subsection
was harmless error.4 First, the evidence directly proved Lynam’s knowing


4      It appears the trial court erred in its intrinsic evidence ruling
pursuant to the wrong statute because subsections (A)(1) and (A)(2)
constitute separate offenses, dealing with different harms. See State v.
Dixon, 231 Ariz. 319, 320, 294 P.3d 157, 158 (App. 2013) (reemphasizing “[i]t
is well-established that possessing a visual depiction pursuant to § 13-
3553(A)(2) is a separate act that supports a conviction under the statute,
independent of any conduct described in § 13-3553(A)(1)”); State v. Paredes-



                                         5
                             STATE v. LYNAM
                            Decision of the Court

possession of child pornography and, accordingly, was admissible as
intrinsic evidence of the charged possession crimes. State v. Ferrero, 229
Ariz. 239, 242, ¶ 14, 274 P.3d 509, 512 (2012). Second, Lynam admitted
possessing the images that produced the ten charged images and being the
sole user of his computer. Excluding testimony about the uncharged
images and videos would not have changed the verdicts. Therefore, the
admission of the testimony was harmless. See State v. Poyson, 198 Ariz. 70,
77-78, ¶ 22, 7 P.3d 79, 86-87 (2000) (collecting cases holding overwhelming
evidence of guilt renders evidentiary error harmless); State v. Hoskins, 199
Ariz. 127, 142-43, ¶¶ 57-58, 14 P.3d 997, 1012-13 (2000) (finding “strong
circumstantial evidence of defendant’s guilt” rendered other-act evidence
harmless).

¶15            Although Lynam argues his confessions make the evidence of
uncharged crimes superfluous and therefore prejudicial, his unchallenged
confessions essentially moot this point. Further, the risk of unfair prejudice
was minimized by the state publishing only the ten charged images to the
jury. Given these facts, Lynam has not shown that the trial court abused its
discretion in finding the testimony was not unfairly prejudicial; we affirm.

II.    Sixth Amendment and Due Process Claims

¶16           For the first time on appeal, Lynam alleges the trial court’s
ruling to allow testimony of the uncharged images and videos at trial
violated (1) his right to a fair trial and due process under the U.S. and
Arizona Constitutions, and (2) his Sixth Amendment right to be informed


Solano, 223 Ariz. 284, 290, 222 P. 3d 900, 906 (App. 2009) (holding “[t]he
actions listed in subsection (A)(1) cause harm to the child in the creation of
the visual images, while the acts in subsection (A)(2) harm the child through
perpetration of those images. Each subsection is violated by distinctly
different conduct causing different kinds of harm to the child. The two
subsections thus represent more than merely different ways of committing
a single offense and, we conclude create offenses that are separate and
distinct”).
       However, the independent evidence and Lynam’s confessions, as
discussed infra ¶¶ 14-15, render it unnecessary to remand for weighing of
the evidence on the issue of the admissibility of the uncharged images and
videos under Rule 404(b). Compare Herrera, 232 Ariz. at 543 & n.6, ¶ 14, 307
P.3d at 110 (remanding to the trial court to alternatively determine
admissibility under Rule 404(c) where the court improperly held evidence
was admissible as intrinsic evidence and it was necessary for the court to assess
evidence sufficiency and credibility.)


                                       6
                             STATE v. LYNAM
                            Decision of the Court

of the nature and cause of the accusation because the trial judge based his
evidentiary ruling on the wrong subsection of A.R.S. § 13-3553(A). We
generally do not consider issues, even constitutional issues, raised for the
first time on appeal. See In re MH 2009-001264, 224 Ariz. 270, 272, ¶ 7, 229
P.3d 1012, 1014 (2010). We decline to address these issues pursuant to our
analysis finding no reversible error in admitting the testimony of the
uncharged images and videos pursuant to the wrong statute.

III.   Cruel and Unusual Punishment and Judicial Discretion in
       Sentencing

       A.     Cruel and Unusual Punishment

¶17           Arizona severely punishes individuals found in possession of
child pornography. The statutory scheme for this offense has been
recognized as commanding that “the possession of each image of child
pornography is a separate offense.” State v. Berger, 212 Ariz. 473, 474, 134 P.3d
378, 379 (2006) (emphasis added); see A.R.S. § 13-3551(12) (2014). As noted
above, each offense of which a defendant is convicted under § 13-3553(A)
carries a sentence of ten to twenty-four years’ imprisonment and the
convictions must be served consecutively pursuant to A.R.S. § 13-705(D)
and (M).

¶18          Lynam contends, as he did in the trial court, that this
sentencing scheme is cruel and unusual punishment in violation of the
United States’ and Arizona’s Constitutions. Berger, however, rejected just
such an argument. 212 Ariz. at 474, 134 P.3d at 379 (holding “these
sentences do not violate the Eighth Amendment’s prohibition on cruel and
unusual punishment”). We also reject, as we must, Lynam’s request that
we overturn Berger. See State v. Newnom, 208 Ariz. 507, 508, ¶ 8, 95 P.3d 950,
951 (App. 2004) (stating the Court of Appeals has “no authority to overrule
or disregard decisions of [the Arizona Supreme Court]”).

¶19           Berger examined the framework for reviewing challenges to
lengthy prison sentences in Arizona under the Eighth Amendment. There,
the defendant was prosecuted on twenty counts of exploitation of a minor
for possession of child pornography. Berger, 212 Ariz. at 475, 34 P.3d at 380.
The trial judge sentenced the defendant to ten years for each depiction as
individual crimes in accordance with the statutory requirement and
ordered the sentences be served consecutively. Id.

¶20          The Arizona Supreme Court recognized that “Eighth
[A]mendment analysis focuses on the sentence imposed for each specific
crime, not on the cumulative sentence[,]” and that a sentence that is not


                                       7
                             STATE v. LYNAM
                            Decision of the Court

disproportionate as to a particular offense does not become so merely
because the consecutive sentences are lengthy in the aggregate. Id. at 479,
¶ 28, 134 P.3d at 384. The Court found it could not “conclude that a ten-
year sentence is grossly disproportionate to [the] crime of knowingly
possessing child pornography depicting children younger than fifteen[,]”
id. at ¶ 29, particularly where the defendant, like Lynam, had a long history
of pursuing illegal depictions, id. at 480, ¶ 36, 134 P.3d at 385. The Court
ultimately concluded that there was “no basis to depart from the general
rule that the consecutive nature of sentences does not enter in the
proportionality analysis[]” under the Eighth Amendment. Id. at 481, ¶ 44,
134 P.3d at 387. Albeit severe, under Berger, Lynam’s sentences are not so
grossly disproportionate to the offenses as to constitute cruel and unusual
punishment. We affirm his sentences separately and cumulatively.

       B.     Judicial Discretion

¶21           Lynam also avers that by requiring sentencing under the
mandatory provisions of A.R.S. § 13-705(D) and (M), the Arizona legislature
and the prosecutor who decides how many counts to charge have taken
away judicial discretion in sentencing. Lynam, however, has demonstrated
no constitutional infirmity in this respect. See State v. Miranda, 200 Ariz. 67,
69, ¶ 5, 22 P.3d 506, 508 (2001) (“Defining crimes and fixing punishments
are functions of the legislature.”); State v. Renteria, 126 Ariz. 591, 595, 617
P.2d 543, 547 (App. 1979) (recognizing that “a mandatory sentence
prescribed by the legislature is not an unconstitutional invasion of power
of the judiciary” (citing State v. Williams, 115 Ariz. 288, 289, 564 P.2d 1255,
1256 (App. 1977))); State v. Gooch, 139 Ariz. 365, 367, 678 P.2d 946, 948 (1984)
(“Choosing which offense to prosecute rests within the duty and discretion
of the prosecutor.”).




                                       8
                          STATE v. LYNAM
                         Decision of the Court

                             CONCLUSION

¶22          For the reasons stated above, we affirm Lynam’s convictions
and sentences.




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




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