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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  LEVI EULALIO MADRIGAL, Appellant.

                             No. 1 CA-CR 19-0264
                               FILED 8-20-2020


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201700005
                 The Honorable David M. Haws, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

DM Cantor, Phoenix
By John E. Hudson, Courtney R. Sullivan
Counsel for Appellant
                          STATE v. MADRIGAL
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann1
joined.


C A M P B E L L, Judge:

¶1            Levi Madrigal appeals his convictions and sentences for
sexual exploitation of a minor. For the following reasons, we affirm.

                             BACKGROUND2

¶2           After receiving a tip that an email contained images of child
pornography, police officers traced the recipient’s internet protocol (“IP”)
address to Madrigal’s residence. Based on that information, police officers
obtained and executed a search warrant on the home (shared by Madrigal,
his mother, and brother), seizing four electronic devices: a desktop
computer (from Madrigal’s bedroom), a tablet, a thumb drive, and a cellular
phone (from Madrigal’s person).

¶3            Through forensic analysis, a detective located the images
associated with the suspect email on the computer. He also found: (1) more
than 2,000 other images of child pornography on the computer, stored in
both the public, “basic user” profile and the private, “owner” profile; (2) a
web browser on the computer that permitted access to the dark web while
blocking IP address tracing; and (3) eight images of child pornography on
the cellular phone. Comparing the timestamps for the child pornography
downloaded to the computer with mapping data from the cellular phone,
and given the absence of any programs on the computer that permitted
remote access, the detective determined the child pornography was




1     Chief Judge Peter B. Swann replaces the Honorable Kenton D. Jones,
who was originally assigned to this panel. Judge Swann has read the briefs
and reviewed the record.

2      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                           STATE v. MADRIGAL
                            Decision of the Court

downloaded to the computer only when Madrigal was in the vicinity of the
computer.

¶4            The State charged Madrigal with 14 counts of sexual
exploitation of a minor (with each count referring to one specific image
found on either the cellular phone or computer). The State also alleged
several aggravating factors.

¶5             At trial, Madrigal’s mother testified that caregivers for her
adult special-needs son, Madrigal’s brother, had access to the computer.
She also testified that she had the computer serviced by a repair technician
several times.

¶6            Taking the stand in his own defense, Madrigal denied
viewing any of the child pornography found on the computer. During
cross-examination, the prosecutor asked Madrigal why he had child
pornography on his cellular phone, and Madrigal responded, “I cannot
explain that answer.”

¶7             After a 12-day trial, a jury found Madrigal guilty as charged.
The jury also found one aggravating circumstance―that the victim depicted
in each image was under 15 years of age. The superior court weighed the
aggravating and mitigating factors and sentenced Madrigal to consecutive,
mitigated terms of ten years’ imprisonment on each count. Madrigal timely
appealed.

                               DISCUSSION

       Evidentiary Rulings

¶8            Madrigal challenges the superior court’s admission of
evidence of uncharged acts. We generally review the admission of other-act
evidence for an abuse of discretion. State v. Garcia, 200 Ariz. 471, 475, ¶ 25
(App. 2001). Because Madrigal did not object to the admission of the other-
act evidence at trial, we review only for fundamental, prejudicial error.
State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005).

¶9            Fundamental error goes to the foundation of the case, error
that deprives the defendant a right essential to his or her defense, or error
of such magnitude that the defendant could not possibly have received a
fair trial. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). Under
fundamental error review, the defendant bears the burden of
demonstrating both error and resulting prejudice. Henderson, 210 Ariz. at
567, ¶ 20.


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                           STATE v. MADRIGAL
                            Decision of the Court

¶10          In general, “evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person[.]” Ariz. R. Evid. (“Rule”)
404(b). But Rule 404(c) carves out an exception to this general prohibition,
permitting the introduction of other-act evidence when the defendant is
charged with a sexual offense and the evidence is “relevant to show that the
defendant had a character trait giving rise to an aberrant sexual propensity
to commit the offense charged.”

¶11           Before admitting evidence of other acts, the superior court
must find that: (1) sufficient evidence permits the trier of fact to find the
defendant committed the other act; (2) the other-act evidence 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; and (3) the
probative value of the other-act evidence is not substantially outweighed
by a danger of unfair prejudice or confusion of the issues under Rule 403.
Ariz. R. Evid. 404(c).

¶12            Before trial, the State noticed its intent to introduce other-act
evidence of Madrigal’s possession of 28 child pornography photographs
and videos to demonstrate his aberrant sexual propensity to commit the
crimes charged. The State identified the file names for each of the
photographs and videos it intended to introduce as other-act evidence.
Defense counsel objected and requested a hearing, arguing, among other
things, that the probative value of the other-act evidence was substantially
outweighed by the danger of unfair prejudice.

¶13            Defense counsel conceded, for purposes of the hearing, that
the photographs and videos at issue depicted minors engaged in exploitive
exhibition or other sexual conduct but argued the State had failed to
demonstrate Madrigal knowingly possessed the materials. After the
hearing, the superior court found: (1) clear and convincing evidence that
Madrigal committed the other acts; (2) the other acts provided a reasonable
basis to infer that Madrigal “has a character trait giving rise to an aberrant
sexual propensity to commit the crime charged”; and (3) the evidentiary
value of the other-act evidence was not substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or other Rule 403 factors.

¶14           The superior court also noted the other-act evidence “may be
cumulative,” and reserved “for a date and time closer to trial” whether to
limit the amount of other-act evidence “presented to a jury.” Defense
counsel then asked whether the court intended to continue “the [Rule] 403
analysis,” and the court reiterated that the other-act evidence was relevant




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                           STATE v. MADRIGAL
                            Decision of the Court

and admissible under Rule 404(c), but the number of admissible
photographs and videos “may be” limited at trial under Rule 403.

¶15           Three months later, the parties stipulated that both the images
related to the charges and the other-act photographs and videos: (1) were
admissible; (2) depicted real people, not computer-generated images; and
(3) showed children engaged in sexually exploitive acts or acts of display
without a legal purpose. The parties also stipulated that neither would be
limited in displaying, discussing, or publishing the images to the jury.

¶16           In advance of trial, the State disclosed that it would call law
enforcement officials to testify about separate, unrelated investigations of
the other-act photographs and videos. Before the first officer took the stand,
defense counsel challenged the relevance of the unrelated investigations,
while acknowledging that evidence identifying the children depicted in the
other-act images as actual victims was relevant. When asked to respond,
the prosecutor clarified that she would elicit details of the investigations
only “as necessary for context.”

¶17           The first officer testified that she investigated the creation and
distribution of a series of pornographic images depicting two preschool-
aged siblings. When investigators located the minor victims, the officer
interviewed them both. While the younger sibling described sexual abuse
inflicted on her by her father, the older child, whom the officer suspected
had been “heavily groomed,” disclosed only that her father had her “dress
up” and pose for photographs. At that point, the prosecutor presented the
officer one of the photographs found on Madrigal’s computer, and she
confirmed that the photograph depicted the younger sibling victim.
Defense counsel did not object to any of the officer’s testimony. But, he
asserted a lack of foundation when the prosecutor moved to admit the
photograph into evidence, and the superior court sustained his objection.

¶18            Next, a second officer testified concerning her investigation of
child pornography documenting the sexual abuse of a young girl. When
she was presented a series of photographs found on Madrigal’s computer,
the officer testified that she recognized the person depicted as the eight-
year-old victim she interviewed during her investigation. At that point, the
prosecutor requested permission to elicit descriptions of the photographs
rather than publishing the images to the jury. The court granted the
prosecutor’s request and the officer provided a brief description of each
image, without objection.




                                       5
                          STATE v. MADRIGAL
                           Decision of the Court

¶19           The next day of trial, defense counsel complained that the
prosecutor had elicited testimony that “created prejudice” and “confusion.”
Defense counsel argued that the officers’ “narrative” testimony regarding
their investigations of other-act evidence was both irrelevant and
prejudicial. Finding the officers’ testimony was relevant, the court
nonetheless instructed the prosecutor to limit her questions only to those
establishing the identity and age of the children involved.

¶20            Proceeding with that admonition, a third officer testified,
without objection. His investigation involved a series of photographs and
videos that documented the sexual abuse of another eight-year-old girl. He
was presented several images and videos found on Madrigal’s computer
and testified that the images and videos depicted the young victim he had
interviewed during his investigation. And without objection, the officer
described the sexual abuse depicted in the photographs and videos.

¶21             Before testimony resumed on the next day of trial, defense
counsel asked the superior court “to restrict” the fourth officer’s testimony
as it had “in prior testimony”―limiting the scope of questioning to the
identification and age of the victims depicted in the other-act photographs
and videos. After the court agreed to “follow the same procedure,” a fourth
officer testified that he investigated a series of child pornography
photographs and videos that documented the sexual abuse of children, ages
three and eight. When shown images found on Madrigal’s computer, the
officer identified the depicted individuals as the victims from his
investigation and, without objection, provided brief descriptions of the
sexual abuse documented in the photographs. At that point, the prosecutor
presented the officer with a series of videos, introduced by their sexually
explicit file names, and asked him to confirm that the individuals depicted
were the same minor victims. The officer did so, without objection.

¶22          Later, the detective who conducted the forensic analysis of
Madrigal’s computer and cellular phone explained how he discovered the
charged and other-act photographs and videos. With that foundation, the
court admitted the corresponding photograph and video exhibits into
evidence without objection.

¶23            Madrigal first contends that the superior court improperly
admitted the other-act evidence without assessing its probative value and
prejudicial effect. Although he acknowledges that the court “properly
issue[d]” a pretrial ruling on the admissibility of the other-act evidence
“pursuant to the requirements of Rule 404(c),” Madrigal argues the court
failed to fully analyze the other-act evidence under Rule 403. The record


                                     6
                            STATE v. MADRIGAL
                             Decision of the Court

clearly reflects that the court expressly conducted a Rule 403 analysis and
found the probative value of the other-act evidence was not substantially
outweighed by the danger of unfair prejudice. While the court notified the
parties that it may revisit the issue at trial and limit the number of other-act
evidence “presented to [the] jury,” in the event it found the material
cumulative, its pretrial Rule 403 ruling was unqualified. Having made the
requisite Rule 404(c) findings, which necessarily included a Rule 403
analysis, the court did not err, much less commit fundamental error, by
failing to sua sponte revisit the admissibility of the other-act evidence under
Rule 403 at trial.

¶24            Next, Madrigal asserts that the officers’ other-act testimony
was largely irrelevant, given the parties’ pretrial stipulation that the other-
act evidence depicted child pornography. Evidence is relevant if it has “any
tendency” to make a fact of consequence in determining the action “more
or less probable than it would be without the evidence.” Ariz. R. Evid. 401.
Relevant evidence is admissible unless it is otherwise precluded by the
federal or state constitution, an applicable statute, or rule. Ariz. R. Evid. 402.

¶25            To begin, stipulations are not binding on a jury and “do not
relieve the [prosecution] of its burden of proving each element of an offense
beyond a reasonable doubt.” State v. Williamson, 236 Ariz. 550, 564, ¶ 50
(App. 2015). Given the nature of the charges, evidence about the victims of
the other acts tended to make it more likely that Madrigal knowingly
possessed the charged child pornography, namely, their ages and the fact
that they are actual, living persons rather than computer-generated images.
Conceding that the biographical information about the other-act victims
was relevant, Madrigal argues the testifying officers unnecessarily relayed
inflammatory details, thereby “humaniz[ing] the subjects of the photos.”

¶26           To support this claim, Madrigal cites officers’ testimony: (1)
describing the sexual abuse depicted in the other-act photographs and
videos; and (2) recounting the sexually explicit file names used to label
some of the other-act videos found on Madrigal’s computer. The officers’
brief descriptions of the sexual abuse documented in the photographs and
videos, as well as the sexually explicit file names (that in many instances
identified both the age of the victims and the sexual abuses inflicted), were
wholly relevant, tending to show that Madrigal had a character trait giving
rise to an aberrant sexual propensity to commit sexual exploitation of a
minor. That is, both the testimony and the file names tended to prove that
Madrigal knowingly possessed the charged images, which depicted the
sexual abuse of young, prepubescent girls. As noted by the superior court,
given the nature of the charges, relevant evidence necessarily included


                                        7
                           STATE v. MADRIGAL
                            Decision of the Court

sexually explicit material. See State v. Gerlaugh, 134 Ariz. 164, 169 (1982)
(holding gruesome and inflammatory evidence may be admitted if it is
material to some aspect of the case so long as it is not admitted for the sole
purpose of inflaming the jury). Stated differently “there is nothing sanitary”
about possessing images and videos depicting the sexual abuse of children.
State v. Cota, 229 Ariz. 136, 147, ¶ 46 (2012) (quoting State v. Rienhardt, 190
Ariz. 579, 584 (1997)). The probative value of this other-act evidence was
substantial, and although it was also undoubtedly prejudicial, it did not
suggest that the jury should decide the matter on an improper basis. See
State v. Mott, 187 Ariz. 536, 545 (1997) (“Unfair prejudice results if the
evidence has an undue tendency to suggest decision on an improper basis,
such as emotion, sympathy, or horror.”).3

¶27           Finally, Madrigal argues the number of other-act
photographs and videos was cumulative, particularly considering the
forensic analyst’s testimony that more than 2,000 images of child
pornography were found on the computer. Although the forensic analyst
testified that a large collection of child pornography was found on
Madrigal’s computer, he did not provide any details regarding the nature
of those images. As discussed, the other-act evidence was particularly
probative of the charged offenses, demonstrating not only that Madrigal
collected sexual images of children under age 15, but that he possessed
photographs and videos documenting the sexual abuse of very young,
prepubescent girls. In any event, on this record, Madrigal has failed to
demonstrate prejudice from the number of photographs and videos
presented to the jury. See State v. Weatherbee, 158 Ariz. 303, 305 (App. 1988)
(explaining the erroneous admission of evidence is harmless when the
improperly admitted evidence is “entirely cumulative”). Therefore, the
superior court did not commit fundamental error by admitting the other-
act evidence.




3       To the extent Madrigal also challenges the officers’ testimony
concerning the perpetrators involved in the creation of the other-act child
pornography, we note the prosecutor made no attempt to tie those
individuals directly to Madrigal. Equally important, defense counsel
elicited testimony that the officers who investigated the other-act child
pornography had no knowledge of or involvement in this case. Therefore,
Madrigal has failed to demonstrate any prejudice from this testimony.


                                      8
                             STATE v. MADRIGAL
                              Decision of the Court

       Alleged Prosecutorial Misconduct

¶28          Madrigal contends the superior court improperly denied both
his motion for mistrial and his request for a curative instruction, each
predicated on a claim of prosecutorial misconduct.

¶29            Because a mistrial is “the most dramatic remedy for trial
error,” it should be granted only when “justice will be thwarted unless the
jury is discharged and a new trial granted.” State v. Adamson, 136 Ariz. 250,
262 (1983). The superior court is in the best position to determine whether
a declaration of mistrial is required. State v. Koch, 138 Ariz. 99, 101 (1983).
Accordingly, we uphold a court’s decision to grant or deny a motion for
mistrial absent a clear abuse of discretion. Id.; see also State v. Jones, 197 Ariz.
290, 304, ¶ 32 (2000).

¶30           To begin her closing argument, the prosecutor told the jurors
that “Madrigal is fueling the child porn industry.” After briefly mentioning
some of the governmental entities and private organizations that work
together to combat child pornography, the prosecutor outlined the
evidence presented at trial. While discussing the evidence specific to each
charge, the prosecutor emphasized that the admitted exhibits showed “real
children being sexually abused” and stated, without objection, that
Madrigal had “masturbat[ed]” to the images. When she ended her
argument, the prosecutor restated, without objection, that “Madrigal is
fueling the child porn industry.” Noting all industries depend on consumer
demand, the prosecutor implored the jurors to join “the collective effort to
fight child pornography by finding [Madrigal] guilty.”

¶31            Once the prosecutor finished her closing argument, defense
counsel moved for a mistrial, arguing the prosecutor’s statement urging the
jurors to fight the child pornography industry by convicting Madrigal was
improper. In response, the prosecutor pointed to the strength of the State’s
evidence and the final jury instructions that admonished the jurors to
consider only the evidence presented at trial. After hearing from counsel,
the superior court denied the motion for mistrial, finding the prosecutor’s
argument was not prejudicial and the jury had been instructed that
argument is not evidence.

¶32           Following that denial, defense counsel objected to the
prosecutor’s assertion that Madrigal had masturbated to the child
pornography and asked the superior court to “advise the jury” that the
prosecutor’s reference to masturbation was “not based on evidence.”
Implicitly finding the prosecutor’s assertion was a reasonable inference, the



                                         9
                           STATE v. MADRIGAL
                            Decision of the Court

court overruled the objection and declined to issue any admonition to the
jury.

¶33            Challenging the denial of his request for a curative
instruction, Madrigal contends the prosecutor engaged in misconduct
when she referenced masturbation. To determine whether an argument
constitutes misconduct, we consider the context in which it was made and
consider two factors: “(1) whether the prosecutor’s statements called to the
jury’s attention matters it should not have considered in reaching its
decision and (2) the probability that the jurors were in fact influenced by
the remarks.” State v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016) (quoting State
v. Nelson, 229 Ariz. 180, 189, ¶ 39 (2012)). While prosecutors may not make
unsupported “insinuations,” they may argue all reasonable inferences from
the evidence. State v. Morris, 215 Ariz. 324, 336, ¶ 51 (2007) (quoting State v.
Hughes, 193 Ariz. 72, 85, ¶ 59 (1998)).

¶34            In this case, the State presented no direct evidence that
Madrigal masturbated to the child pornography at issue. But read in
context, the prosecutor’s fleeting reference to masturbation merely alluded
to a matter of common knowledge to members of the general public,
namely, that child pornography is acquired for the possessor’s sexual
gratification. See State v. Williams, 107 Ariz. 262, 264 (1971) (explaining the
“range of discussion and argumentation is very wide and matters of
common knowledge may be referred to”). Because the prosecutor’s passing
statement was a reasonable inference based on the evidence and common
knowledge, it did not rise to the level of misconduct and no curative
instruction was required.

¶35            Second, Madrigal contends the prosecutor improperly
appealed to the jurors’ passions when she suggested they could combat
child pornography by rendering a guilty verdict. Although prosecutors are
given “wide latitude” in presenting closing argument to the jury, Goudeau,
239 Ariz. at 466, ¶ 196, that latitude is not unlimited. A prosecutor exceeds
permissible bounds by: (1) using “remarks to inflame the minds of jurors
with passion or prejudice,” or (2) urging jurors to convict a defendant to
protect the community independent of the defendant’s guilt or innocence.
See State v. Herrera, 174 Ariz. 387, 396-97 (1993) (internal quotation omitted).

¶36            Here, the prosecutor’s remark, that jurors could join “the
fight” against child pornography by returning a guilty verdict, arguably
had emotional overtones. But “some amount of emotion in closing
argument is not only permissible, it is to be expected.” State v. Zaragoza, 135
Ariz. 63, 68 (1983). At no point did the prosecutor urge the jurors to convict


                                      10
                           STATE v. MADRIGAL
                            Decision of the Court

Madrigal “for reasons wholly irrelevant to his own guilt or innocence.”
Herrera, 174 Ariz. at 397 (quoting United States v. Monaghan, 741 F.2d 1434,
1441 (D.C. Cir. 1984)). Rather, read in context, the prosecutor’s call to fight
against the child pornography industry was entirely predicated on the
strength of the State’s evidence that Madrigal had committed the charged
acts beyond a reasonable doubt. See id. at 396-97 (finding a prosecutor’s
argument urging a jury to protect society through its verdict was
permissible because it was not independent of the State’s argument that the
evidence proved the defendant’s guilt beyond a reasonable doubt). In this
case, the prosecutor’s closing argument did not exceed permissible bounds.
Moreover, the superior court instructed the jury that the attorneys’
comments in closing argument were not evidence to be considered in
reaching their verdicts, and we presume that the jurors followed the court’s
instructions. See State v. Prince, 226 Ariz. 516, 537, ¶ 80 (2011). Accordingly,
even if the prosecutor’s comments were improper, the superior court’s final
instructions “negated their effect.” Morris, 215 Ariz. at 337, ¶ 55.

¶37           Finally, although Madrigal argues the cumulative effect of the
prosecutor’s conduct caused him prejudice, having found no action by the
prosecutor that constitutes misconduct, “there can be no cumulative effect
of misconduct sufficient to permeate the entire atmosphere of the trial with
unfairness.” State v. Bocharski, 218 Ariz. 476, 492, ¶ 75 (2008). Therefore, the
superior court did not abuse its discretion by denying Madrigal’s motion
for mistrial.

                               CONCLUSION

¶38          For the foregoing reasons, we affirm Madrigal’s convictions
and sentences.




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




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