                                                               FILED BY CLERK
                          IN THE COURT OF APPEALS                  NOV -1 2007
                              STATE OF ARIZONA                     COURT OF APPEALS
                                DIVISION TWO                         DIVISION TWO


THE STATE OF ARIZONA,                      )
                                           )       2 CA-CR 2006-0215
                              Appellee,    )       DEPARTMENT B
                                           )
                  v.                       )       OPINION
                                           )
JAMES PRENTISS COGHILL,                    )
                                           )
                             Appellant.    )
                                           )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR20042573

                          Honorable Ted B. Borek, Judge

                          REVERSED AND REMANDED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Diane Leigh Hunt                                 Tucson
                                                          Attorneys for Appellee

Robert J. Hooker, Pima County Public Defender
 By Michael J. Miller                                                     Tucson
                                                          Attorneys for Appellant


E C K E R S T R O M, Presiding Judge.
¶1            Appellant James Prentiss Coghill was convicted after a jury trial of fourteen

counts of first-degree sexual exploitation of a minor under the age of fifteen, all dangerous

crimes against children and class two felonies, and one count of attempted sexual

exploitation of a minor, a class three felony. Before sentencing, the trial court granted the

state’s motion to dismiss the dangerous crimes against children allegations on counts two

through fourteen. The trial court then sentenced Coghill to a partially mitigated, fifteen-year

prison term on count one and placed him on lifetime probation for all the remaining counts.

¶2            On appeal, he contends, inter alia, that: (1) the trial court erred when it

admitted testimony regarding Coghill’s possession of adult pornography, (2) the court

violated his constitutional right to counsel when it denied his father’s application to appear

pro hac vice, (3) the court abused its discretion when it allowed the jury to see a video

compilation of the child pornography seized from Coghill’s motor home after Coghill had

offered to stipulate that the computer files contained child pornography, (4) the jury failed

to determine Coghill knew the children in the pornographic videos were under fifteen years

of age, and (5) the state violated the Arizona Rules of Criminal Procedure when it provided

him with copies of his computer’s internal hard drives rather than the originals. Because we

agree that the evidence regarding Coghill’s possession of adult pornography was erroneously

admitted and prejudicial, we reverse his convictions and remand the case for a new trial.




                                              2
                                    BACKGROUND

¶3            Following an argument on April 1, 2003, between Coghill and Jacob Franks,

Franks telephoned the police to report Coghill possessed child pornography in Coghill’s

motor home. In response to that allegation, Pima County Sheriff’s Deputies Brenda

Schupbach and Jace Judd met Franks at a convenience store. Franks told the deputies that

he had been living with Coghill for a week but had known for approximately two years that

Coghill had child pornography. He said Coghill kept the files near his computer on compact

disks that were labeled “KP.”

¶4            Deputies Schupbach and Judd drove to Coghill’s motor home where Coghill

invited them inside to talk. Coghill said Franks had been living with him for a couple of

months. Coghill denied possessing child pornography and consented to Judd’s request to

look at the compact disks by his computer. He told Judd he did not know what “KP” meant,

that some of the disks belonged to Franks, and that Franks must have used that label. The

deputies asked Coghill if he would be willing to speak to detectives, and he agreed.

¶5            Shortly thereafter, Coghill spoke with Detective Jefford Englander. In a

recorded conversation, part of which was later played for the jury, Coghill told Englander

that Franks had also lived with him in the same motor home in Phoenix before Coghill

moved to Tucson. Coghill elaborated that he had brought Franks from Phoenix to Tucson

to live with him again about a week earlier but maintained in the same statement that Franks

had been using his computer constantly for the past couple of weeks. Coghill admitted to


                                             3
Englander that he had downloaded adult pornography and movies to his computer and had

copied some of those files to disks. He also told Englander that his computer did not require

a password, so either he or Franks could use it without logging on individually.

¶6            Following the interview, Englander secured a search warrant for Coghill’s

motor home. During that search, officers seized over 650 disks, most of which contained

material that was not pornographic. But among them were several disks labeled “KP” and

one labeled “dirty.” The officers also seized Coghill’s computer and a bill for cable internet

service in Coghill’s name.

¶7            At trial, Franks testified that he had lived with Coghill sporadically during the

past few years—for a few months beginning in October 2001; again from May or June 2002

to August of that year; a month or two prior to January 20, 2003; and then for about one

week prior to April 1, 2003. Even though he had told the investigating officers he had seen

Coghill viewing child pornography on the computer and had even copied a disk for Coghill

containing child pornography, on which Franks had handwritten the word “dirty,” Franks

admitted during cross-examination that he had never actually seen any images of child

pornography on the computer screen and had only seen file names on the screen. He also

testified that he had previously been convicted of three felonies.

¶8            Coghill testified that Franks had lived with him in Phoenix from September

2001 to November 2001; then from March to April 1, 2002; from the second week of April

2002 to February 2003; again from March 2 to March 9, 2003; and then finally from


                                              4
March 18 to April 1, 2003. Because Coghill’s job as an aircraft mechanic required him to

travel, he lived in a motor home, which he parked outside his parents’ house in Phoenix

when he was not living elsewhere. During the last few days of February 2003, Coghill

moved his motor home to Tucson where he had taken a new job.

¶9            Six of the 650 disks confiscated from Coghill contained the fifteen child

pornography video files identified in the indictment; each of the six disks had “KP”

handwritten on them. The child pornography files on two of those disks had been copied

to disk on March 6, 2003. The remaining child pornography files had been copied to disk

on May 5, 2002; October 27, 2002; November 12, 2002; and January 21, 2003. Coghill

said that he had never seen or touched the disks labeled “dirty” and “KP,” and no evidence

was presented that Coghill’s fingerprints were found on any of the seized items. Detective

Englander testified that eight of the fifteen files had once appeared on the hard drive of

Coghill’s computer, but they had been deleted and overwritten with other files and were

only detectable with forensic software. Two of the files could be viewed with that software.

¶10           Alan Kreitl, a forensic document examiner with the Arizona Department of

Public Safety, compared the handwriting on twenty-nine disks seized from Coghill’s motor

home, including all of the “KP” disks, against a handwriting sample provided by Franks.

Kreitl concluded that Franks had probably written “dirty” on the disk bearing that label and

probably had not labeled the “KP” disks. Kreitl did not compare a sample of Coghill’s

writing to the labeled disks.


                                             5
¶11            A Pima County grand jury indicted Coghill for fourteen counts of sexual

exploitation of a minor under the age of fifteen and one count of attempted sexual

exploitation of a minor. Each count identified a separate computer file and described the

alleged child pornography videos in that file. After a jury found Coghill guilty on all counts,

the trial court dismissed the dangerous crimes against children allegations on all but one of

the counts. It then sentenced Coghill to a partially mitigated, fifteen-year prison term on

that count, to be followed by lifetime probation on all the remaining counts.

              ADMISSIBILITY OF ADULT PORNOGRAPHY EVIDENCE

¶12            Coghill claims the trial court erroneously admitted evidence that he had

possessed, and had admitted having downloaded and copied to disk, adult pornography.

Specifically, Coghill contends that such evidence was unfairly prejudicial, lacked any

probative value under any appropriate theory of relevance, and should therefore have been

precluded pursuant to Rule 404(b) of the Arizona Rules of Evidence. That rule provides

as follows:

               Except as provided in Rule 404(c)[,] evidence of other crimes,
               wrongs, or acts is not admissible to prove the character of a
               person in order to show action in conformity therewith. It may,
               however, be admissible for other purposes, such as proof of
               motive, opportunity, intent, preparation, plan, knowledge,
               identity, or absence of mistake or accident.

The trial court admitted the evidence over Coghill’s strenuous objection, finding that it

demonstrated Coghill’s intent, knowledge of what was on his computer, and opportunity to



                                              6
use the computer. In so ruling, the trial court emphasized that the evidence of adult

pornography was “intertwined” with the relevant evidence regarding child pornography.

¶13           Four provisions of the Arizona Rules of Evidence govern the admissibility of

other-act evidence: “Rule 404(b) requires that the evidence be admitted for a proper

purpose, Rule 402 requires that the evidence be relevant, Rule 403 requires that the danger

of unfair prejudice not outweigh probative value, and Rule 105 requires that the judge give

an appropriate limiting instruction upon request.” State v. Nordstrom, 200 Ariz. 229, ¶ 54,

25 P.3d 717, 736 (2001). We review for an abuse of discretion a trial court’s admission of

other-act evidence under those standards. State v. Gulbrandson, 184 Ariz. 46, 60, 906 P.2d

579, 593 (1995).

¶14           At trial, Coghill did not dispute that law enforcement officers had found in his

residence six compact disks containing child pornography and that the unlawful content had

been copied from his computer. Rather, he maintained that he was unaware of the presence

of those particular disks among the approximately 650 disks in his motor home and that he

had allowed Franks, his occasional roommate and primary accuser, regular access to his

computer. Coghill and Franks both testified at trial. Thus, the state was required to marshal

evidence that bolstered Franks’s credibility and challenged Coghill’s on the question of

which of them had downloaded, copied to disk, and therefore knowingly possessed, the

child pornography.




                                             7
¶15           The state contends Coghill’s admission that he had downloaded and copied

adult pornography and the officers’ discovery of numerous compact disks containing adult

pornography were relevant to the question of whether Coghill had downloaded, copied and

possessed child pornography. Specifically, the state asserts the evidence was admissible

under Rule 404(b) to prove opportunity, knowledge, and limited intent because it showed

“that Appellant had had the intent to permanently record his pornographic viewings and the

means and know-how to do so.” During the hearing on admissibility, the state had also

suggested through the somewhat unclear testimony of Detective Englander that Franks, a

sometime resident of Coghill’s home, could not possibly have had time to download and

copy to disk the volume of child and adult pornography and other nonpornographic

computer files found.1 The trial court’s ruling appears to adopt the state’s reasoning on all

but the last of these points.

¶16           Preliminarily, we agree that evidence demonstrating Coghill’s ability,

willingness, and superior opportunity to download and copy other material from the internet

onto compact disks was both relevant and admissible for proper purposes under Rule

404(b). Such evidence would show that Coghill knew how to acquire the child pornography

had he chosen to do so. And the state articulates a proper purpose, expressly itemized in

Rule 404(b), when it offers that evidence to show relevant knowledge and opportunity.




       1
        The state does not articulate this theory of relevance on appeal.

                                             8
¶17           But the state’s analysis, and the trial court’s ruling, overlook that the nature

and content of the other downloaded and copied materials were irrelevant to any of those

proper purposes. In fact, Coghill’s ability and opportunity to obtain material from the

internet could be demonstrated as effectively by his admission that he had downloaded and

copied numerous nonpornographic movies and popular television shows—an admission he

made immediately after his admission regarding adult pornography—and by the presence of

hundreds of homemade, nonpornographic compact disks in his residence.

¶18           Even as to those disks and downloaded files that contained adult pornography,

the state’s witnesses could easily have referred to them in general terms without disclosing

their pornographic nature. Doing so would have sacrificed none of the probative value of

that evidence to show Coghill had the ability and opportunity to download and copy child

pornography.2

¶19           In the context of Rule 404(b), Arizona courts have emphasized the importance

of the trial court’s role in removing unnecessary inflammatory detail from other-act evidence

before admitting it. In State v. Salazar, 181 Ariz. 87, 92, 887 P.2d 617, 622 (App. 1994),

Division One of this court reversed a defendant’s conviction, in part because the trial court

had admitted evidence of the defendant’s prior crimes without redacting nonprobative,



       2
        Because Franks also admitted having downloaded adult pornography and copied it
to disk, the adult pornographic nature of any computer files, whether found on disk or on
the computer’s hard drive, would not have assisted the jury in distinguishing whether it was
Franks or Coghill who had generated any such files.

                                              9
unfairly prejudicial details of those crimes. The court specifically commented that trial

courts frequently overlook that other-act evidence “can be narrowed or limited to protect

both parties by minimizing its potential for unfair prejudice while preserving its probative

value.” Id.

¶20           In so holding, Division One cited with approval the reasoning of the Second

Circuit Court of Appeals in United States v. Harvey, 991 F.2d 981 (2d Cir. 1993), a case

presenting a question very similar to the one we address here. Salazar, 181 Ariz. at 92, 887

P.2d at 622. In Harvey, the Second Circuit reversed a conviction for knowing receipt of

child pornography because the trial court had permitted the prosecutor to elicit evidence that

the defendant also possessed some particularly distasteful adult pornography. 991 F.2d at

996.

¶21           Finally, this court has also reversed a defendant’s conviction when the state

elicited arguably probative other-act evidence when ample, nonprejudicial evidence had

already been admitted for the same purpose. In State v. Ballantyne, 128 Ariz. 68, 70-71,

623 P.2d 857, 859-60 (App. 1981), the prosecutor questioned the defendant about his

alleged ties to the Hell’s Angels motorcycle gang to demonstrate the defendant’s expertise

with motorcycles, a relevant fact in the context of the defendant’s prosecution for aggravated

assault on a police officer. Observing that the defendant had already admitted his familiarity

with motorcycles in general and with his own motorcycle in particular, we found that any

probative value his ties to the notorious motorcycle gang might have was outweighed by the


                                             10
highly prejudicial nature of that affiliation. Id. at 71, 623 P.2d at 860; see also Old Chief

v. United States, 519 U.S. 172, 184, 117 S. Ct. 644, 652 (1997) (court must consider

existence of less prejudicial alternative evidence in weighing probative value of challenged

evidence against risk of unfair prejudice).

¶22           As in each of those cases, the trial court here overlooked that the adult

pornographic nature of some of the computer files was a fact unnecessary to the probative

purposes asserted for admitting those files. When offered to show Coghill possessed the

requisite ability, knowledge, and opportunity to download material from the internet to his

computer hard drive or to copy such material onto compact disks, the content of the material

had no relevance and should have been precluded under Rule 402, Ariz. R. Evid. See State

v. Smith, 136 Ariz. 273, 276, 665 P.2d 995, 998 (1983).

¶23           The trial court also found, without explanation, that the adult pornography

evidence “does go to the issue of the defendant’s intent.” In context, the trial court may

have used the word “intent” as shorthand to describe the relevance of the evidence on the

questions of knowledge and opportunity, a topic we have already addressed. But the court

may also have meant to adopt the state’s contention at trial that the evidence was relevant

to Coghill’s intent because a person who downloads adult pornography would be more

likely to download child pornography as well.3 To the extent the trial court meant to adopt



       3
        In arguing its motion for admissibility below, the state described its argument using
the following analogy: “If we are in a heroin possession case, and someone is saying that

                                              11
the latter theory, the evidence could not be properly admitted for that purpose. See Ariz.

R. Evid. 404(b).

¶24           That theory of relevance requires the inference that, because Coghill has the

sexual motivation to view and preserve adult pornography, he must have a propensity to do

the same with child pornography. Our court has previously observed that “‘any distinction

(occasionally attempted) between the sexual tendencies of an accused, on the one hand, and

his disposition or character, on the other, is spurious.’” Salazar, 181 Ariz. at 90, 887 P.2d

at 620, quoting 1A John H. Wigmore, Evidence § 62.2, at 1345 (Tillers rev. 1983)

(alteration in Salazar omitted).4 And, Rule 404(b) expressly prohibits the introduction of

other-act evidence to “prove the character of a person in order to show action in conformity

therewith.” Thus, to the extent the court ruled the evidence of adult pornography admissible

on the theory that a person who downloads adult pornography would be more prone to

download child pornography, we hold it abused its discretion.




somebody else did it, and yet, the defendant himself . . . had prescribed medication for
Oxycodone, which is . . . very closely related to heroin, why wouldn’t that come in?”
       4
        Arizona allows the admission of evidence showing “aberrant sexual propensity”
under the limited and specific circumstances set forth in Rule 404(c). The prosecution
neither sought admission of the adult pornography evidence under that rigorous provision
nor laid the appropriate foundation to do so. Under Rule 404(c), such evidence may be
admitted only if the state has made specific disclosure of its intent to present evidence of
“aberrant sexual propensity” and the trial court makes specific findings regarding the
probative value and potential prejudice of such evidence. Here, the trial court acknowledged
that the state had failed to seek admission under that standard or to comply with those
requirements.

                                             12
¶25           During oral argument, the state asserted for the first time that the trial court

properly admitted the evidence of adult pornography on grounds that it was “inextricably

intertwined” with other relevant evidence in the case.5 See State v. Nordstrom, 200 Ariz.

229, ¶ 56, 25 P.3d 717, 736 (2001) (other-act evidence not subject to preclusion under Rule

404(b) when evidence of other act is intrinsic to the charged crime or the two are

“‘inextricably intertwined’”), quoting State v. Dickens, 187 Ariz. 1, 18 n.7, 926 P.2d 468,

485 n.7 (1996). However, our review of the record suggests the trial court did not intend

to admit the evidence under that specific doctrine. First, the state did not urge admission of

the evidence under this theory at trial. And, although the court characterized the adult and

child pornography evidence as “intertwined” and “in[t]erconnected,” those observations

occurred in remarks prefatory to its ultimate conclusion that the evidence was relevant to

intent, knowledge and opportunity—components of a Rule 404(b) analysis that would have

been unnecessary if the trial court had found the adult pornography evidence intrinsic to the

child pornography crimes. See Nordstrom, 200 Ariz. 229, ¶ 56, 25 P.3d at 736. Finally,

the trial court’s minute entry on the topic does not mention this doctrine as a basis for

admitting the evidence.

¶26           Even assuming the trial court intended to rule that the evidence of adult

pornography was admissible on the ground that it was “inextricably intertwined” and

therefore intrinsic to the charged offense, that ruling would be both deficient and incorrect.


       5
       The state did not address this argument in its brief on appeal.

                                             13
Other-act evidence does not become “intrinsic” to a case merely because it is characterized

as interwoven or intertwined with evidence of the charged offense. Rather, other acts are

intrinsic evidence when they are: (1) so intertwined with the charged acts that they cannot

be extracted from the case, (2) “part of a ‘single criminal episode’” with the crime charged,

or (3) “‘necessary preliminaries’ to the crime charged.” Nordstrom, 200 Ariz. 229, ¶ 56, 25

P.3d at 736, quoting Dickens, 187 Ariz. at 18 n.7, 926 P.2d at 485 n.7. The court made no

such findings here. And, as noted, because the state could have fully presented all evidence

of the various computer functions performed without mentioning the adult pornographic

content of a fraction of those events, we cannot agree with the state’s suggestion that the

evidence of adult pornography could not be easily extracted from the case.

¶27           In sum, the evidence relating to Coghill’s downloading of adult pornographic

content and then copying it to disk had no special relevance to show knowledge,

opportunity, or intent. Nor was it admissible to show Coghill had a propensity to download

child pornography. For those reasons, we must conclude the trial court erred in admitting

the evidence pursuant to Rule 404(b).

¶28           We turn, then, to whether that error entitles Coghill to a new trial. When, as

here, an issue is properly presented to the trial court and erroneously ruled on, we review

for harmless error. State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). “Error

. . . is harmless if we can say, beyond a reasonable doubt, that the error did not contribute

to or affect the verdict.” Id. By that standard, we cannot find the error harmless in this case.


                                              14
¶29           The evidence that Coghill knowingly possessed child pornography, while

substantial, was not overwhelming. After the officers told him he had been accused of

possessing child pornography, Coghill invited the officers into his home and consented to

a search of his compact disks and photo albums—actions arguably inconsistent with guilty

knowledge. Coghill never admitted the offense and swore under oath he had lacked any

knowledge of child pornography in the motor home. Because the evidence was undisputed

that Franks sporadically shared the residence, used Coghill’s computer, downloaded files,

and had copied child pornography to at least one disk, the jury could not necessarily infer

from Coghill’s ownership of the residence and computer that Coghill had knowingly

possessed the contraband.

¶30           As a result, the case became a credibility contest between Coghill, who

testified in his defense, and Franks, whose credibility was challenged with his three prior

felony convictions. Both the state and Coghill found support for their contentions in the

evidence regarding the timing of both Coghill’s and Franks’s access to, and use of, the

computer. In short, our review of the record suggests that the case against Coghill was close,

defensible, and dependent in part on the jury’s assessment of Coghill’s credibility.6

¶31           The state does not contend the evidence was overwhelming. Rather, it

maintains that “any error” in mentioning Coghill’s possession of adult pornography was



      The state’s failure to test the six relevant disks for fingerprints or to compare the
       6

handwriting on them to Coghill’s reinforces this conclusion.

                                             15
“clearly harmless” because such pornography is both readily accessible and legal and,

therefore, would not have prejudiced the jury against Coghill. We disagree for several

reasons. First, admitting the evidence created the risk that the jury would consider it for the

purpose prohibited by Rule 404(b): the jury might have improperly concluded that a person

who downloads adult pornography would have a character trait predisposing that person to

also download child pornography.7 We are reluctant to trivialize an improper use of

evidence so expressly prohibited by our rules. Moreover, the state’s contention that the

evidence of adult pornography had a negligible impact on the case is undermined by the

prosecutor’s strenuous and persistent efforts to place that evidence before the jury despite

its questionable probative value.8

¶32           Finally, our jurisprudence does not support the state’s view that the legal and

readily accessible nature of adult pornography deprives it of any prejudicial impact. In State

v. Grannis, 183 Ariz. 52, 56-57, 900 P.2d 1, 5-6 (1995), the Arizona Supreme Court found

the erroneous admission of pornographic photographs sufficiently prejudicial to justify

reversing the first-degree murder convictions of two defendants, one of whom the jury

learned “had collected” the pornography, the other of whom might have been only indirectly

associated with it. Id. at 57, 900 P.2d at 6. And, our own court has approved the Second


       7
       The jury was not instructed that they were prohibited from making such an improper
inference.
       8
       The state moved in limine to allow the evidence and reurged its motion on each of
the next two days of trial.

                                              16
Circuit’s conclusion that evidence showing a defendant possessed adult pornography, albeit

of a particularly offensive nature, created “‘disgust and antagonism’” toward the defendant

and resulted in “‘overwhelming prejudice.’” Salazar, 181 Ariz. at 92, 887 P.2d at 622,

quoting Harvey, 991 F.2d at 996.

¶33           In short, the evidence of Coghill’s guilt was not overwhelming. And, because

the jury might have used the adult pornography evidence for an improper purpose and

because at least some of the jurors might be unfavorably disposed toward Coghill because

of it, we cannot deem harmless the erroneous admission of evidence that Coghill possessed

adult pornography. Accordingly, we must reverse Coghill’s convictions and remand for a

new trial.

¶34           Even though we are reversing because the trial court erred in admitting

evidence about Coghill’s possession of adult pornography, we consider the following issues

Coghill has raised because they will likely recur on retrial. See Grannis, 183 Ariz. at 57,

900 P.2d at 6 (addressing issues likely to be raised again on retrial).9




       9
        Because we have reversed Coghill’s convictions, we do not address his claim that his
prison sentence violated the Cruel and Unusual Punishment Clauses of the United States and
Arizona Constitutions. And, because a second trial will not necessarily be an evidentiary
or strategic duplicate of the first, we need not address whether the state had laid sufficient
foundation to encourage the jury to compare the handwriting on one of the disks containing
child pornography to the handwriting on another disk that presumably belonged to Coghill.

                                             17
          ADMISSIBILITY OF CHILD PORNOGRAPHY VIDEO FILES

¶35           Coghill maintains the trial court erred in allowing jurors to watch the child

pornography videos found in his residence after he had offered to stipulate that their content

fell within the scope of A.R.S. § 13-3553. Specifically, Coghill offered “to stipulate that

every one of [the videos is] identical to the charged items in the Indictment and constitutes

a violation of [the sexual exploitation of a minor] statute[].” He offered a similar stipulation

in his opening statement. The state did not accept Coghill’s offer, and the trial court

allowed the state to show excerpts of each of the fifteen videos to the jury. Although

Coghill did not argue it below, he now contends that showing the videos to the jury was

improper because the probative value of the showing was minimal, given his offer to stipulate

to their content, and the risk of unfair prejudice was great, given the indisputably offensive

nature of the material.

¶36           The state argues this court has previously failed to find reversible error when

a trial court refused to force the state to accept an offered stipulation. See State v. Lopez,

209 Ariz. 58, ¶¶ 4-9, 97 P.3d 883, 884-85 (App. 2004). In Lopez, we held the trial court

had not erred when it refused to compel the state to accept a stipulation that the defendant

was a prohibited possessor when that status was an element of the offense of weapons

misconduct for which the defendant was on trial. Id. ¶¶ 1, 8, 97 P.3d at 884, 885. Relying

on State ex rel. Romley v. Galati, 195 Ariz. 9, 985 P.2d 494 (1999), we concluded that,

although the stipulation, once read to the jury, would have eliminated any dispute about the


                                              18
defendant’s status as a prohibited possessor, compelling the state to accept the stipulation

would have improperly “attempted to remove from the jury’s consideration elements of the

charged offense—that [the defendant had] a prior felony conviction and that his civil right

to possess or carry a firearm ha[d] not been restored.” Lopez, 209 Ariz. 58, ¶ 8, 97 P.3d at

885; see Galati, 195 Ariz. 9, ¶¶ 15-16, 985 P.2d at 497 (holding defendants could not

stipulate to elements of charged offense and keep stipulation from jury through bifurcated

trial).

¶37           This case differs from Lopez and Galati in that Coghill’s proffered stipulation

would not have kept an element of the charged offense from the jury. To find Coghill guilty

under § 13-3553(A)(2), the jury was required to find that he had knowingly possessed “any

visual depiction in which a minor is engaged in exploitive exhibition or other sexual

conduct.” Coghill offered to stipulate that the videos shown to the jury were identical to

those described in the indictment and that they violated § 13-3553. Each count in the

indictment clearly described the sexual conduct portrayed in the corresponding computer

video file and identified the male or female participants as “prepubescent.” Thus, Coghill’s

stipulation would neither have removed an element of the offense from the jury’s

consideration nor shielded the jury from knowledge of the nature of the crime charged. See

State ex rel. Romley v. Galati, 193 Ariz. 437, ¶ 11, 973 P.2d 1198, 1201 (App. 1998),

approved by Galati, 195 Ariz. 9, 985 P.2d 497 (emphasizing difference between jury

hearing stipulation and stipulation being withheld from jury).


                                            19
¶38           Although Lopez and Galati do not resolve the issue, neither do they require

the trial court to preclude the evidence merely because a party has stipulated to an

underlying fact. A trial court maintains discretion in determining whether to exclude

evidence, and an offered stipulation is only one factor to consider in that determination.

State v. Leonard, 151 Ariz. 1, 8, 725 P.2d 493, 500 (App. 1986); see also State v. Chapple,

135 Ariz. 281, 290, 660 P.2d 1208, 1217 (1983) (“Exhibits which have the tendency to

cause prejudice may often be admissible despite offers to stipulate or the absence of

controverting or contradicting evidence.”); State v. Bracy, 145 Ariz. 520, 534, 730 P.2d

464, 478 (1985) (despite defendant’s offer to stipulate, trial court did not err in admitting

inflammatory photographs as evidence on disputed issue). We cannot determine whether

the trial court abused that discretion here because Coghill did not ask the trial court to

preclude the evidence once the state refused his offer to stipulate.10 See Leonard, 151 Ariz.

at 8, 725 P.2d at 500 (requiring evaluation of evidence under Rule 403 when defendant

moves to preclude evidence after state declines offer to stipulate). Thus, we cannot grant

Coghill relief unless he can demonstrate that the trial court had a duty to evaluate, sua




        Coghill’s failure to seek preclusion of the evidence deprived the state of any
       10

opportunity to explain its reason for declining to stipulate. The lack of explanation is
especially problematic because the record does not otherwise suggest why the state would
not have readily accepted an offer to avoid showing the child pornography to the twelve
jurors. Cf. State v. Berger, 212 Ariz. 473, ¶ 18, 134 P.3d 378, 382 (2006) (acknowledging
ongoing harm to child pornography victims arising from continuing violation of their privacy
and continuing disclosure of “‘personal matters’”), quoting United States v. Sherman, 268
F.3d 539, 547 (7th Cir. 2001).

                                             20
sponte, whether the probative value of the jurors’ seeing the videos was substantially

outweighed by the danger of unfair prejudice. Coghill has not presented us with any

authority supporting that proposition.

¶39           Acknowledging his failure to squarely present the issue to the trial court,

Coghill asks us to determine whether the court’s failure to preclude the evidence was

nonetheless fundamental error. Because we have already granted Coghill a new trial on

other grounds and because the parties may employ other strategies in presenting the case on

re-trial, we decline to address that issue.

                                  RIGHT TO COUNSEL

¶40           Coghill next asserts the trial court violated his right under the Sixth

Amendment to the United States Constitution to hire counsel of his choice when it denied

his motion seeking leave for his father, an attorney licensed in Illinois, to appear pro hac

vice. The Sixth Amendment guarantees that, “[in] all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.

amend. VI. That includes “the right of a defendant who does not require appointed counsel

to choose who will represent him.” United States v. Gonzales-Lopez, ___ U.S. ___, 126

S. Ct. 2557, 2561 (2006). The right, however, is not absolute. Trial courts retain “wide

latitude” in balancing the right to counsel of choice against the needs of the criminal justice

system to fairness, court efficiency, and high ethical standards. Id. at ___, 126 S. Ct. at

2565-66.


                                              21
¶41           Here, we need not determine whether the trial court erred in denying Coghill’s

father leave to represent his son because the trial court did not so rule. As Coghill concedes,

the court denied his motion for his father to appear pro hac vice without prejudice because

the motion failed to comply with the procedural requirements set forth in former Rule 33(d),

Ariz. R. Sup. Ct. In addition, the court made its ruling seventeen months before the trial

eventually commenced. During the intervening time, Coghill made no further effort to

clarify the trial court’s specific grounds for denying his initial motion, and he made no

additional efforts to secure his father as his attorney of record. Thus, the trial court did not

prevent Coghill from being represented by his father. Instead, it merely ruled that Coghill

had initially failed to make a procedurally appropriate request.

¶42           To the extent Coghill implicitly argues the court abused its discretion in

finding his motion to admit his father pro hac vice failed to comply with former Rule 33, we

reject that contention. That rule, now modified and found in Rule 38, Ariz. R. Sup. Ct., see

210 Ariz. LXX-LXXI, CXVI-VII, required an attorney moving for admission pro hac vice

to attach to the motion a document generated by the State Bar of Arizona entitled “Notice

of Receipt of Complete Application.” See Ariz. R. Sup. Ct. 38(a)(3)(B). To secure that

notice, Coghill’s father was required to submit to the state bar a verified application

including, inter alia, a certificate from each state in which he had been admitted to practice

law, reflecting the status of his membership therein; certain disclosures regarding any

disciplinary proceedings he may have faced; and a nonrefundable application fee equal to


                                              22
eighty-five percent of the annual dues paid by active members of the Arizona bar. Ariz. R.

Sup. Ct. 38(a)(3)(A), (B), and (a)(4). Coghill concedes that he did not attach the required

notice from the state bar demonstrating his father’s compliance with those requirements.

Because the rules of the Arizona Supreme Court unequivocally required the state bar notice

to be attached to the motion, the trial court did not err in rejecting Coghill’s motion for his

father’s admission pro hac vice.

¶43           Nonetheless, Coghill contends that one provision of Rule 38, if enforced and

applied to his father, would have unreasonably restricted his Sixth Amendment right to

counsel of his choice. Coghill correctly observes that Rule 38 renders counsel ineligible for

admission pro hac vice if the applicant resides in Arizona. See Rule 38(a)(1) (“[N]o person

is eligible to appear as counsel pursuant to this rule if that person . . . is a resident of the

State of Arizona.”). Coghill states that his father had retired from law practice in Illinois and

Missouri and was residing in Arizona. For this reason, Coghill contends Rule 38(a)(1)

would have barred his father from representing him, for reasons unrelated to fairness, court

efficiency, or maintaining ethical standards. See United States v. Walters, 309 F.3d 589,

592 (9th Cir. 2002) (right to choice of counsel may only be abridged to serve some

“‘compelling purpose’” related to “‘fair, efficient and orderly administration of justice’”),

quoting United States v. D’Amore, 56 F.3d 1202, 1204 (9th Cir. 1995), overruled on other

grounds by United States v. Garrett, 179 F.3d 1143 (9th Cir. 1999); United States v.

Panzardi Alvarez, 816 F.2d 813, 816 (1st Cir. 1987).


                                               23
¶44           But, in filing the pro hac vice motion, Coghill did not inform the trial court

that his father resided in Arizona. We may therefore confidently conclude the court did not

reject the motion for this reason. Thus, to the extent Coghill suggests the court erred in

elevating this technical requirement above his right to counsel of his choice, the record does

not support that contention.11 Indeed, we have no way of knowing how the court would

have ruled had Coghill squarely challenged this obstacle to his father’s admission.

¶45           Coghill maintains he is entitled to relief despite his failure to raise the issue

below because a violation of the right to counsel of choice is structural error. See Gonzales-

Lopez, ___ U.S. at ___, 126 S. Ct. at 2564. However, we can find no error at all in the

absence of a record demonstrating that the trial court actually restricted Coghill’s right to

counsel on some basis unrelated to the “‘fair, efficient and orderly administration of

justice.’” Walters, 309 F.3d at 592, quoting Panzardi Alvarez, 816 F.2d at 816.

                  COGHILL’S KNOWLEDGE OF MINORS’ AGE

¶46           Coghill argues that, to convict him of a dangerous crime against children, the

jury was required to determine that he knew the minors appearing in the pornographic videos

were under the age of fifteen. On each count, the jury determined that the children depicted

in the videos were younger than fifteen, but it did not explicitly determine Coghill was aware



       11
          Although Coghill alerted the commissioner evaluating his release conditions that his
father lived in Arizona, he never mentioned that fact again in any proceeding before the trial
judge until sentencing, by which time all relevant proceedings had been conducted by his
retained counsel.

                                             24
of that fact. Coghill maintains the Arizona legislature intended, and federal constitutional

law commands, that A.R.S. § 13-604.01 include a requirement of scienter by the accused.

¶47           The Arizona Supreme Court has squarely addressed this very question. In

State v. Williams, 175 Ariz. 98, 99, 104, 854 P.2d 131, 132, 137 (1993), the court

concluded the defendant did not commit a dangerous crime against children when he caused

serious injury to a fourteen-year-old boy by driving drunk, which “plac[ed] everyone around

him at risk of injury” but did not target or “focus[] upon the victim.” In that context, the

court held § 13-604.01 requires only that “the victim . . . be the person against whom the

crime is directed, not that the accused . . . know that the person is under fifteen.” Williams,

175 Ariz. at 103, 854 P.2d at 136.

                     Because a “dangerous crime against children” is defined
              as one “committed against a minor under fifteen years of age,”
              the defendant’s conduct must be focused on, directed against,
              aimed at, or target a victim under the age of fifteen. We do not
              hold that the statute applies only when the accused targets a
              victim whom the accused knows is under the age of fifteen. On
              the contrary, we approve of an earlier holding of the court of
              appeals that knowledge of the victim’s age is unnecessary under
              the statute. When an individual targets a person, he or she
              generally assumes the risk that the victim will turn out to be
              within a protected age group.

Id. (citation omitted). The court has recently ratified its holding in Williams. State v.

Sepahi, 206 Ariz. 321, ¶ 17, 78 P.3d 732, 735 (2003).

¶48           Coghill attempts to distinguish Williams and Sepahi on the ground that those

cases involved aggravated assault rather than child pornography. But Arizona courts have


                                              25
applied the Williams analysis when a defendant faces an enhanced sentence for any

enumerated crime under § 13-604.01. See, e.g., State v. Miranda-Cabrera, 209 Ariz. 220,

¶¶ 13, 22-24, 99 P.3d 35, 38, 40-41 (App. 2004) (applying Williams analysis to defendant

charged with second-degree murder, alleged as dangerous crime against children); State v.

Carlisle, 198 Ariz. 203, ¶¶ 16-18, 8 P.3d 391, 395-96 (App. 2000) (applying Williams to

charge of sexual conduct with minor under age of fifteen). Thus, our jurisprudence does not

support Coghill’s efforts to distinguish Williams.

¶49           Coghill was charged with sexual exploitation of a minor, one of the

enumerated crimes under the dangerous crimes against children statute.           See § 13-

604.01(M)(1)(g). When the jury determined that Coghill knowingly possessed child

pornography and that the children shown engaging in sexual conduct were under the age of

fifteen, it implicitly found that his conduct focused on the children as they were portrayed.

He “assume[d] the risk that the victim[s] w[ould] turn out to be within a protected age

group.” Williams, 175 Ariz. at 103, 854 P.2d at 136. Accordingly, contrary to Coghill’s

contention, the state need not present evidence that a defendant knew that a victim was

under the age of fifteen to warrant an enhanced sentence under § 13-604.01(D).

                          DISCLOSURE OF HARD DRIVES

¶50           Finally, Coghill maintains the state violated the Arizona Rules of Criminal

Procedure when it failed to produce the original two internal hard drives from Coghill’s

computer. Coghill filed a motion requesting disclosure of his hard drives, following which


                                             26
the trial court ordered the state to disclose “either a hard copy and/or disk format of

materials listed in the indictment as it is necessary in the preparation of the Defendant’s

case.” (Emphasis added.) Coghill did not raise this issue below.

¶51           When a defendant fails to object at trial, we review for fundamental error.

State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). The defendant has the

burden of proving fundamental error by showing the case involves “error going to the

foundation of the case, error that takes from the defendant a right essential to his defense,

and error of such magnitude that the defendant could not possibly have received a fair trial.”

State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). Once the defendant

establishes fundamental error, he must then demonstrate that the error caused him prejudice.

Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. Establishing prejudice “involves a fact-

intensive inquiry” and thus is case specific. Henderson, 210 Ariz. 561, ¶ 26, 115 P.3d at

608.

¶52           Unless the trial court orders otherwise, Rule 15.1, Ariz. R. Crim. P., directs

the state to “make available to the defendant for examination, testing and reproduction” any

“tangible objects that the prosecutor intends to use at trial or which were obtained from or

purportedly belong to the defendant.” Ariz. R. Crim. P. 15.1(b)(5) and (e)(1). Because the

rule gives a trial court discretion in ordering disclosure of evidence, Coghill has not shown,

nor can we find, that the trial court abused that discretion in ordering copies of the hard

drives be made available to Coghill.


                                             27
¶53            Even if Coghill were able to show fundamental error, he has not demonstrated

that any such error caused him prejudice. He asserts prejudice based on the fact that “his

expert was unable to determine whether there had been any changes made in the content of

the drives.” Coghill’s theory of defense, however, was not that evidence had been tampered

with, but that it was his housemate, Franks, who had possessed the child pornography.

Unless Franks had access to the computer after it was seized, Coghill has not shown he was

denied a fair trial by the trial court’s ruling.

¶54            For the foregoing reasons, we reverse Coghill’s convictions and remand the

case to the trial court for a new trial.



                                                    ____________________________________
                                                    PETER J. ECKERSTROM, Presiding Judge

CONCURRING:



____________________________________
PHILIP G. ESPINOSA, Judge



____________________________________
GARYE L. VÁSQUEZ, Judge




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