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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     JOSEPH E. SHREVE, JR., Appellant.

                             No. 1 CA-CR 16-0230
                              FILED 1-12-2017


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201500427
                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
By Craig Williams
Counsel for Appellant
                            STATE v. SHREVE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.


H O W E, Judge:

¶1             Joseph E. Shreve, Jr. appeals his convictions and sentences for
nine separate counts of sexual exploitation of a minor under the age of
fifteen. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In September 2014, a sergeant with the Yavapai County
Sheriff’s Office reviewed electronic logs generated by a software program
designed to track child pornography. This software program received
material it considered child pornography from a particular IP address in
Prescott Valley. The software program downloaded two different files,
titled “Little Pearl” and “Showgirls.” Each file contained over 100
photographs of two different female children either masturbating or
performing other sexual acts.

¶3            The sergeant subpoenaed records from the internet provider,
which identified Shreve as the subscriber. Over the next couple of months,
Shreve’s residence was put under surveillance. In April 2015, the sergeant,
along with other officers, executed a search warrant on Shreve’s residence.

¶4             While other officers searched Shreve’s residence, a detective
administered Miranda1 warnings before interviewing Shreve. Initially,
Shreve denied intentionally uploading child pornography, stating that he
was not interested in pornography. Shreve did admit, however, that he had
seen a lot of naked children on the internet but only because the files were
mislabeled. He further admitted that he was the only person who used his
computers and that he kept pictures of naked children only because he liked
their faces.

¶5          Meanwhile, the other officers searched Shreve’s residence
and found numerous computer hard drives, 137 DVDs, and an album full
of photographs of naked children in an outside shed. Each of the 137 DVDs

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


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                             STATE v. SHREVE
                            Decision of the Court

had its own homemade label, which included a picture of the child in the
video contained on that disc. Officers also found three notebooks inside
Shreve’s computer desk. Two of the notebooks had instructions on how to
navigate certain websites on the internet. One of these websites included
the website where the computer software initially found the two child
pornography files. The other notebook was an index for all the child
pornography files on Shreve’s computers. In the index notebook, the
children’s names were alphabetized and followed by a corresponding
computer file name. The officer’s also found the “Little Pearl” file in one of
Shreve’s computers.

¶6             Confronted with these materials, Shreve admitted: (1) he
started downloading child pornography about ten years ago, (2) he
preferred girls aged 10–14, (3) he saved his favorite child pornography
videos onto DVDs because he was unsure how long he would be able to
afford the internet, (4) he made the homemade labels affixed on the DVDs,
and (5) his internet sessions were a “way to get off without getting anyone
else involved.”

¶7              When officers reviewed the 137 DVDs, not all of them could
be opened. The DVDs that were opened, however, contained either child
pornography or child erotica. The detective testified that the average age of
the children in the videos he viewed was 8–12 years old. Seven of these
DVDs, the “Little Pearl” file, and a video found on Shreve’s computer were
sent to a specialist to determine the children’s age. The specialist viewed all
of the “Little Pearl” file, which included 103 images to help determine the
age of the child because in some photos “you can’t see anything other than
the little girl’s vagina.” The specialist determined each of the girls to be
under the age of 15. Shreve was indicted for the eight videos and the
charged image from the “Little Pearl” file.

¶8            Before the bench trial, the State moved to introduce into
evidence the numerous DVDs not associated with the charged offenses, the
album full of photographs of naked children, and photographs of Shreve’s
computer hard drives. At the evidentiary hearing, the State argued that this
evidence was admissible as other acts (1) under Arizona Rule of Evidence
404(b) to show Shreve’s motive, intent, and lack of accident in committing
the charged offenses and (2) under Rule 404(c) to show that Shreve has a
character trait giving rise to an aberrant sexual propensity to commit the
charged crime. During the hearing, the State admitted as exhibits
photographs depicting the computers, DVDs, and related equipment and
the photograph album of nude girls. Also, the detective testified that Shreve
admitted to downloading the child pornography, creating back-up DVDs


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                             STATE v. SHREVE
                            Decision of the Court

of the computer videos, and making the labels on the DVDs. Over defense
counsel’s objection, the trial court granted the State’s motion. The trial court
found the other acts were intrinsic evidence because “the fact that [Shreve]
had other visual depictions of either child pornography or child erotica, I
think supports the charged offense.” The trial court noted that because the
other acts evidence was intrinsic, it did not need to consider admissibility
under Rules 404(b) or (c). The trial court further ruled that the probative
value of the evidence was not substantially outweighed by the danger of
unfair prejudice under Rule 403 and therefore the evidence was admissible.

¶9            The bench trial began directly after the evidentiary hearing.
To eliminate redundancy, both parties stipulated that the trial court could
consider the testimony and exhibits from the hearing. Defense counsel,
however, renewed his objection to the other acts evidence, noting that the
objection had been previously overruled. The trial court allowed the
detective to testify to the other acts evidence. The detective’s recorded
interview with Shreve was admitted into evidence. Later, while the
sergeant was testifying about the charged “Little Pearl” photo, the State
offered additional photos because the charged photograph just showed the
child’s vagina.

¶10          The trial court convicted Shreve of all nine counts and
sentenced him to consecutive terms of ten years’ imprisonment for each
count. Shreve timely appealed.

                               DISCUSSION

              1. Admissibility of Other Acts Evidence

¶11            Shreve does not contest that the other acts evidence is
admissible under Rule 404(c); he argues only that the other acts evidence is
not intrinsic and is prejudicial under Rule 403. A trial court’s ruling on the
admissibility of evidence is reviewed for an abuse of discretion and will
only be reversed upon a finding of clear prejudice. State v. Granados, 235
Ariz. 321, 328 ¶ 30, 332 P.3d 68, 75 (App. 2014). Appellate courts are
required to “affirm the trial court’s ruling if the result was legally correct
for any reason.” State v. Carlson, 237 Ariz. 381, 387 ¶ 7, 351 P.3d 1079, 1085
(2015). We need not determine if the other acts evidence is intrinsic
because—as the State argues—whether or not it constituted intrinsic
evidence, the evidence was admissible under Rule 404(c).

¶12           Under Rule 404(c), if the defendant is charged with a sexual
offense under A.R.S. § 13–1420(C), the trial court may admit “evidence of
other crimes, wrongs, or acts [] if relevant to show that the defendant had a


                                       4
                             STATE v. SHREVE
                            Decision of the Court

character trait giving rise to an aberrant sexual propensity to commit the
offense charged.” Rule 404(c)(1)(A) requires that the State prove by clear
and convincing evidence that the defendant committed the other acts. State
v. Goudeau, 239 Ariz. 421, 444 ¶ 59, 372 P.3d 945, 968 (2016). The clear and
convincing evidence standard is satisfied when the truth of the contention
is highly probable. State v. Roque, 213 Ariz. 193, 215 ¶ 75, 141 P.3d 368, 390
(2006). Additionally, subsection (c)(1)(B) allows the other acts evidence if
the “commission of the other act provides a reasonable basis to infer that
the defendant had a character trait giving rise to an aberrant sexual
propensity to commit the crime charged.” Finally, to be admissible under
Rule 404(c), the trial court must ensure that the evidentiary value of the
other acts is not substantially outweighed by danger of unfair prejudice,
confusion, or other factors mentioned in Rule 403. Ariz. R. Evid.
404(c)(1)(C); see also Ariz. R. Evid. 403. Therefore, if the other acts evidence
violates Rule 403, it will be inadmissible under Rule 404(c).

¶13            Here, the record establishes by clear and convincing evidence
that the other acts occurred and that Shreve committed them. During the
evidentiary hearing, the detective testified that the computers, hard drives,
and 137 DVDs were found in Shreve’s bedroom. The detective further
testified that the album with photographs of naked children was found in
a shed outside of the house. Additionally, the detective testified that Shreve
admitted to: (1) downloading child pornography about a decade earlier, (2)
owning the computers and hard drives, (3) creating copies of the child
pornography videos onto DVDs, and (4) affixing the homemade labels to
the DVDs. This testimony more than satisfies the State’s burden of proof.
See State v. Armstrong, 176 Ariz. 470, 474, 862 P.2d 230, 234 (App. 1993) (“We
therefore hold that an admission by [a] defendant to an uncharged offense
may, if relevant and otherwise admissible, be admitted at trial absent
independent proof of the offense.”).

¶14           Sufficient evidence of the other acts exists to provide a
reasonable basis that the defendant had a character trait giving rise to an
aberrant sexual propensity to commit the charged crimes. Shreve had DVDs
that contained child pornography and admitted that his internet sessions
were a “way to get off without getting anyone else involved.” Further,
Shreve told the detective that he made copies of the child pornography onto
DVDs to prepare for a time when he could no longer afford the internet.
The detective also testified that in the DVDs he was able to view, most of
the children seemed to be 8–12 years old. Further, detectives found an entire
album full of photographs of naked children. These other acts of possessing
child pornography show that Shreve had a character trait that gave rise to



                                       5
                             STATE v. SHREVE
                            Decision of the Court

an aberrant sexual propensity to commit the charged acts of sexual
exploitation of a minor.

¶15           Finally, other acts evidence under Rule 404(c) is admissible
when its evidentiary value “is not substantially outweighed by danger of
unfair prejudice, confusion of issues, or other factors mentioned in Rule
403.” Ariz. R. Evid. 404(c)(1)(C). Here, after the trial court heard testimony
and arguments about the other acts evidence, it found the evidence not
overly prejudicial under Rule 403. “Because the trial court is in the best
position to balance the probative value of challenged evidence against its
potential for unfair prejudice, the trial court has broad discretion in this
decision.” State v. Connor, 215 Ariz. 553, 564 ¶ 39, 161 P.3d 596, 607 (App.
2007). The record supports the trial court’s determination that the
evidentiary value of the other acts evidence was not substantially
outweighed by unfair prejudice, confusion of issues, or the other Rule 403
factors.

¶16           The factors to be considered when determining admissibility
under Rule 404(c)(1)(C) all weigh in favor of admissibility. The acts were
not remote in time. Shreve was found in the possession of both the charged
and uncharged child pornography on the same day the officers executed
the search warrant. The photographs of the other acts were also similar to
the photographs supporting the charged offenses. The detective testified
that all of the DVDs he viewed involved female children aged between
 8–12 years old. Additionally, Shreve committed these other acts frequently
for the ten years before he was apprehended. Shreve told the detective that
he had been downloading child pornography for a decade. The officers
executing the search warrant found 137 DVDs with homemade labels
attached in Shreve’s room and an album full of photographs of naked
children in the shed outside the house. Accordingly, the trial court did not
abuse its discretion by finding that the other acts evidence was not unfairly
prejudicial.

¶17            Moreover, even if the trial court erred by admitting the other
acts evidence, any error was harmless. “In deciding whether error is
harmless, the question is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely unattributable to the
error.” State v. Leteve, 237 Ariz. 516, 524 ¶ 25, 354 P.3d 393, 401 (2015). Any
error was harmless in this case because overwhelming evidence supported
Shreve’s convictions. To convict Shreve, the State had to prove that Shreve
knowingly possessed or exchanged visual depictions in which a minor is
engaged in exploitive exhibition or other sexual conduct. See A.R.S.


                                      6
                            STATE v. SHREVE
                           Decision of the Court

§ 13–3553. The State produced evidence that Shreve admitted to
downloading child pornography for ten years and to copying child
pornography onto the DVDs found inside his bedroom. Shreve also
admitted that he was the only person that used the computers in the house.
Therefore, based on the overwhelming evidence that Shreve knowingly
possessed child pornography, any error in admitting the other acts
evidence was harmless. See State v. Romero, 240 Ariz. 504, 509 ¶ 9, 381 P.3d
297, 302 (App. 2016) (recognizing that improper admission of evidence is
harmless when overwhelming evidence of guilt exists).

             2. Eighth Amendment Violation

¶18           Shreve next argues that Arizona’s sentencing statutes for
child pornography cases is cruel and unusual punishment under the Eighth
Amendment to the United States Constitution. The Arizona Supreme
Court, however, has addressed this argument. State v. Berger, 212 Ariz. 473,
134 P.3d 378 (2006). Under A.R.S. § 13–705(D)’s sentencing guidelines,
dangerous crimes against children, including sexual exploitation of a
minor, has a range of 10–24 years’ imprisonment. Further, a defendant
convicted of multiple dangerous crimes against children is required to have
the sentences run consecutively. A.R.S. § 13–705(M). The Arizona Supreme
Court found that these sentences for dangerous crimes against children do
not violate the Eighth Amendment’s prohibition on cruel and unusual
punishment. Berger, 212 Ariz. at 474 ¶ 1, 134 P.3d at 379. Shreve concedes
that this Court is bound by decisions of the Arizona Supreme Court but
insists nonetheless that Berger should be overturned. We have previously
recognized that we are not permitted to disregard or overrule Berger. State
v. McPherson, 228 Ariz. 557, 562 ¶ 13, 269 P.3d 1181, 1186 (App. 2012).
Accordingly, Shreve’s sentences do not violate the Eighth Amendment’s
ban on cruel and unusual punishment.

                              CONCLUSION

¶19          For the foregoing reasons, we affirm Shreve’s convictions and
sentences.




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



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