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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 WILLIAM MICHAEL MEYER, Appellant.

                             No. 1 CA-CR 15-0290
                               FILED 7-7-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400555
           The Honorable Billy K. Sipe, Jr., Judge, Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                             STATE v. MEYER
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Andrew W. Gould and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1            William Michael Meyer appeals his convictions and resulting
sentences on 23 counts of sexual exploitation of a minor. For the reasons
that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Police executed a search warrant at Meyer's residence in
connection with an investigation of child pornography being shared on the
internet through a peer-to-peer file-sharing program. Meyer was present
and told police that a desktop computer seized pursuant to the warrant
belonged to him. When interviewed later at the police station, Meyer
admitted he had downloaded child pornography and that 15-20 images of
child pornography were on his computer.

¶3           A detective certified in computer forensics examined Meyer's
computer and found 23 images on the hard drive depicting juvenile
females, in the detective's words, "displayed exploitively or in sexual
conduct." At trial, the detective testified that, in his opinion, each of the 23
images portrayed a female under the age of 15 in a sexually exploitive
position or manner.

¶4             The jury found Meyer guilty of 23 counts of sexual
exploitation of a minor under 15 years of age, each a Class 2 felony and
dangerous crime against children. The superior court sentenced Meyer to
consecutive mitigated ten-year prison terms on each count, for a combined
total of 230 years.

¶5            Meyer timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised




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                             STATE v. MEYER
                            Decision of the Court

Statutes ("A.R.S.") sections 12-120.21(A)(1) (2016), 13-4031 (2016), and
-4033(A)(1) (2016).1

                                DISCUSSION

A.     Sufficiency of Evidence.

¶6            Meyer contends the State offered insufficient evidence to
prove that the children depicted in the images were under the age of 15.
We review the sufficiency of the evidence de novo. State v. West, 226 Ariz.
559, 562, ¶ 15 (2011). Our review, however, is limited to determining
whether substantial evidence supports the verdicts. State v. Scott, 177 Ariz.
131, 138 (1993); see also Ariz. R. Crim. P. 20(a) (requiring superior court to
enter judgment of acquittal "if there is no substantial evidence to warrant a
conviction"). As relevant here, substantial evidence is evidence, viewed in
the light most favorable to sustaining the verdict, from which a reasonable
person could find the defendant guilty beyond a reasonable doubt. State v.
Roseberry, 210 Ariz. 360, 368-69, ¶ 45 (2005).

¶7           The offense of sexual exploitation of a minor is a dangerous
crime against children punishable pursuant to A.R.S. § 13-705 (2016) if the
minor is under 15 years of age. A.R.S. § 13-3553(C) (2016). The State
presented substantial evidence at trial from which the jury could determine
beyond a reasonable doubt that the children depicted in the 23 charged
images were under the age of 15.

¶8             First, the detective who found the images on Meyer's
computer testified that the children all were under the age of 15. Meyer
challenges this testimony, arguing that the detective was not qualified to
opine about the age of the children because he was not a medical expert.
Because Meyer did not object to the detective's testimony at trial, our review
is limited to fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶
19 (2005). "Before we may engage in a fundamental error analysis,
however, we must first find that the trial court committed some error." State
v. Lavers, 168 Ariz. 376, 385 (1991).

¶9              Arizona Rule of Evidence 702(a) provides that a witness may
testify in the form of opinion if "qualified as an expert by knowledge, skill,
experience, training, or education" and the expert's knowledge "will help
the trier of fact to understand the evidence or to determine a fact in issue[.]"
We liberally construe whether a witness is qualified as an expert. State v.

1      Absent material revision after the relevant date of an alleged offense,
we cite a statute's current version.


                                       3
                              STATE v. MEYER
                             Decision of the Court

Delgado, 232 Ariz. 182, 186, ¶ 12 (App. 2013). "If an expert meets the 'liberal
minimum qualifications,' [his or her] level of expertise goes to credibility
and weight, not admissibility." Id. (quoting Kannankeril v. Terminix Int'l,
Inc., 128 F.3d 802, 809 (3d Cir. 1997)); see also State v. Davolt, 207 Ariz. 191,
210, ¶ 70 (2004) ("The degree of qualification goes to the weight given the
testimony, not its admissibility."). We review a superior court's ruling on
the admissibility of expert testimony for an abuse of discretion. State v.
Salazar–Mercado, 234 Ariz. 590, 594, ¶ 13 (2014).

¶10            The superior court did not abuse its discretion. The detective
described his training and experience in determining the age of females
depicted in images of child pornography. See State v. Murray, 184 Ariz. 9,
29 (1995) (detective's experience sufficient to qualify him as expert under
Rule 702). The superior court did not err, much less commit fundamental
error, in allowing the testimony.

¶11           Second, in addition to the detective's testimony, the 23 images
were entered in evidence. The jurors could view the images and form their
own independent opinions about the ages of the girls in the images. See
United States v. Broyles, 37 F.3d 1314, 1318 (8th Cir. 1994). "Although expert
testimony may help to establish a child's age, ordinary people routinely
draw upon their personal experiences to estimate others' ages based upon
appearance." State v. Marshall, 197 Ariz. 496, 502-03, ¶ 21 (App. 2000). In
Marshall, we held the superior court erred in precluding the defendant from
arguing that the jury could determine based on the appearance of the victim
whether the victim was over 15. Id. at 502-03, ¶¶ 21-22. The reverse is
likewise true; drawing on their personal experiences, the jurors could find
the children depicted in the images in this case were under the age of 15
based on their appearances in the images. See United States v. Rayl, 270 F.3d
709, 714 (8th Cir. 2001) (jurors may make their own conclusions about the
age of children depicted in child pornography). On this record, substantial
evidence exists from which the jurors could find that the children were
under the age of 15.

B.     Jury Instructions.

¶12            Meyer next argues the superior court erred by failing to
instruct the jury that the children depicted in the images had to be "real" or
"actual" children. Because Meyer neither requested such an instruction nor
objected to its omission, he has forfeited any right to appellate relief except
for fundamental error. Ariz. R. Crim. P. 21.3(c) ("No party may assign as
error on appeal the court's giving or failing to give any instruction . . . unless
the party objects thereto before the jury retires to consider its verdict[.]");


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                             STATE v. MEYER
                            Decision of the Court

Henderson, 210 Ariz. at 567, ¶ 19. Error is fundamental if a defendant shows
"that the error complained of goes to the foundation of his case, takes away
a right that is essential to his defense, and is of such magnitude that he could
not have received a fair trial." Henderson, 210 Ariz. at 568, ¶ 24.

¶13           "Where the law is adequately covered by instructions as a
whole, no reversible error has occurred." State v. Doerr, 193 Ariz. 56, 65,
¶ 35 (1998). "Where terms used in an instruction have no technical meaning
peculiar to the law in the case but are used in their ordinary sense and
commonly understood by those familiar with the English language, the
court need not define these terms." State v. Barnett, 142 Ariz. 592, 594 (1984).

¶14            The superior court instructed the jury it had to find that
Meyer knowingly possessed a visual depiction of "a minor" engaged in
certain conduct. It further instructed the jury that a "minor" is "a person or
persons who were under eighteen years of age at the time a visual depiction
was created, adapted or modified." See A.R.S. § 13–3551(6) (2016) (defining
"minor"). "[D]escribing 'minor' in the past tense, evidences a clear intent
that the minor be an actual living human being in that it implies the subject
has the ability to age, i.e., become older through the passage of time.
Fictitious persons do not possess this quality." State v. Hazlett, 205 Ariz. 523,
527, ¶ 11 (App. 2003). By instructing the jury in this fashion about the
definition of "minor," the superior court adequately instructed the jury that
each image had to depict an actual person who was under the age of 18 at
the time the depiction was created, adapted or modified.

¶15            Relying on Hazlett, Meyer further argues the superior court
erred by instructing the jury that it could draw the inference "that the
'participant was a minor if the visual depiction or live act through its title,
text or visual representation depicted the participant as a minor.'" In
Hazlett, this court held A.R.S. § 13–3556 (2016), from which the language of
the "draw the inference" instruction was taken, was unconstitutionally
overbroad because it could allow a conviction even when "no actual child
was a participant in the depiction[.]" Id. at 529 n.10, ¶ 17.

¶16            Because Meyer did not object to the instruction below, we
again review solely for fundamental error. Henderson, 210 Ariz. at 567, ¶
19. Under this standard of review, a defendant must establish both
fundamental error and actual prejudice. Id. at ¶ 20. "[I]t is the rare case in
which an improper instruction will justify reversal of a criminal conviction
when no objection has been made in the trial court." State v. Zaragoza, 135
Ariz. 63, 66 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977));
accord State v. Gomez, 211 Ariz. 494, 499, ¶ 20 (2005); State v. Van Adams, 194


                                       5
                             STATE v. MEYER
                            Decision of the Court

Ariz. 408, 415, ¶ 17 (1999). When a defendant argues a jury instruction
constituted fundamental error, to establish the prejudice required for
reversal, the defendant "must show that a reasonable, properly instructed
jury could have reached a different result." State v. Dickinson, 233 Ariz. 527,
531, ¶ 13 (App. 2013) (quotation omitted). In evaluating prejudice, we
consider "the parties' theories, the evidence received at trial and the parties'
arguments to the jury." Id.

¶17           In this case, Meyer cannot show the instruction prejudiced
him because no reasonable, properly instructed jury would have failed to
determine that the charged images depicted actual minors. Although some
of the images bore labels implying they depicted children, the images
themselves clearly are of actual minors, not adults pretending to be minors.
Indeed, on appeal, Meyer concedes the evidence is sufficient to show that
each child was "pre-pubescent." Moreover, Meyer directs this court to
nothing in the record to suggest that the children depicted in the images are
computer-generated depictions of children (not real children) or that the
images were otherwise deceptive as to the subjects' ages. Therefore,
regardless whether the superior court erred in instructing the jury pursuant
to A.R.S. § 13–3556, Meyer has not met his burden to establish resulting
prejudice.

C.     Double Jeopardy.

¶18           Meyer also argues that the superior court violated the double
jeopardy clauses of the United States and Arizona Constitutions when it
imposed consecutive sentences for each of the 23 counts of sexual
exploitation because his possession of the 23 images was a single act, and
therefore the sentences constituted multiple punishments for the same
offense. See Taylor v. Sherrill, 169 Ariz. 335, 338 (1991) (double jeopardy
clause prevents imposition of multiple punishments for same offense).
Although Meyer did not raise this argument in the superior court, a double
jeopardy violation constitutes fundamental error. State v. Millanes, 180 Ariz.
418, 421 (App. 1994). We review double jeopardy claims de novo. State v.
Moody, 208 Ariz. 424, 437, ¶ 18 (2004).

¶19          Meyer contends his possession of the 23 images of child
pornography constitutes a single offense because the images were
downloaded and accessed on one occasion. But Meyer was convicted
under A.R.S. § 13-3553(A)(2) (2016) for "possessing . . . any visual depiction
in which a minor is engaged in exploitive exhibition or other sexual
conduct." Pursuant to A.R.S. § 13-3551(12), visual depiction "includes each
visual image that is contained in [a] . . . photograph or data stored in any


                                       6
                              STATE v. MEYER
                             Decision of the Court

form and that is capable of conversion into a visual image." Under the
statutes, therefore, "possession of each image of child pornography is a
separate offense." State v. Berger, 212 Ariz. 473, 474, ¶ 3 (2006); see also State
v. Jensen, 217 Ariz. 345, 348 n.5, ¶ 6 (App. 2008) (Possession of child
pornography is "defined in terms of the visual image itself rather than any
specific media or physical object containing the image."). Thus, regardless
whether Meyer acquired the images simultaneously, his possession of each
image constitutes a separate offense. See State v. McPherson, 228 Ariz. 557,
560, ¶ 7 (App. 2012). Accordingly, Meyer did not commit a single act for
which the superior court subjected him to more than one punishment;
rather, he committed 23 separate acts of possession of child pornography.
Because Meyer was properly convicted of multiple counts of sexual
exploitation of a minor, the superior court did not impose multiple
punishments for a single offense in violation of the prohibition against
double jeopardy.

D.     Cruel and Unusual Punishment.

¶20           Finally, Meyer contends the combined length of his sentences
is disproportionate to the offenses and therefore violates the constitutional
prohibition against cruel and unusual punishment. See U.S. Const. amend.
VIII. Meyer acknowledges our supreme court rejected this same argument
in upholding sentences totaling 200 years in Berger, 212 Ariz. at 483, ¶ 51,
but argues that Berger was wrongfully decided. As an intermediate
appellate court, we are bound by the decisions of our supreme court and
have no authority to disregard or overturn them. Sell v. Gama, 231 Ariz.
323, 330, ¶ 31 (2013). Under Berger, Meyer's sentences do not violate the
Eighth Amendment.

                                CONCLUSION

¶21           For the foregoing reasons, we affirm Meyer's convictions and
sentences.




                                     :AA




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