State v. Duncan

548 P.3d 1128

The STATE of Arizona, Appellee,

v.Whytte Dragun DUNCAN, Appellant.

No. 2 CA-CR 2022-0090

Court of Appeals of Arizona, Division 2.

Filed April 19, 2024

Appeal from the Superior Court in Pima County, No. CR20195676001, The Honorable James E. Marner, Judge. REVERSED AND REMANDED

Kristin K. Mayes, Arizona Attorney General, Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, By Jacob R. Lines, Assistant Attorney General, Tucson, Counsel for Appellee

Sherick Law Office P.C., Tucson, By Steven P. Sherick and Adam N. Bleier P.C., Tucson, By Adam N. Bleier, Counsel for Appellant

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.

OPINION

ECKERSTROM, Judge:

¶1 Whytte Duncan placed a spy camera in a bathroom to secretly record the teenaged foster daughters living in his house. He appeals his convictions and sentences arising from that conduct. Specifically, Duncan challenges the factual and legal sufficiency of his convictions for attempted or completed sexual exploitation of a minor, as well as the trial court’s denial of his motion to suppress. We reject his sufficiency arguments. However, because the court erred in part in denying Duncan’s motion to suppress, and because the state has failed to establish that the error was harmless as to any of the counts, we reverse Duncan’s convictions and sentences and remand for a new trial.

Factual and Procedural Background

[1] ¶2 We view the facts, most of which are undisputed, in the light most favorable to upholding the jury’s verdicts, resolving all reasonable inferences against the defendant. See State v. Hood, 251 Ariz. 57, n.1, 484 P.3d 636 (App. 2021). In 2017 and 2018, Duncan placed a USB wall charger containing a hidden digital video recorder in one of the two bathrooms in his house. The camera in the device captured videos from a fixed position of female foster children undressing, showering, and sitting on the toilet.

¶3 One night in mid-2018, one of those foster children—sixteen-year-old K.K.—examined the charger device and realized it contained a hidden camera. She removed the camera’s micro secure data card ("SD card") and attempted to view its contents on her tablet, without success. She called her Department of Child Safety ("DCS") casework- er, reporting that she believed she had found a camera in her bathroom and was "very concerned about it." She then left the house, taking the device—complete with camera and SD card—with her. She gave it to her case-worker later that day. DCS called the police and turned the device over to the responding patrol officer.

¶4 Seven days later, Detective Dan Barry of the Tucson Police Department examined the device. He first removed the SD card and placed it into a "write-blocking device," which allowed him to view the contents of the card without writing any data onto it. This revealed videos taken in the bathroom at Duncan’s house, including of K.K. showering and using the toilet. Barry then used forensic software to view deleted files in the SD card’s "unallocated" space, which also contained videos of K.K. in the bathroom. Barry had not obtained a warrant to conduct this search.

¶5 The discovery of the videos led to a forensic interview of K.K. and the issuance of a search warrant for Duncan's home. The search led to the discovery on his cell phone of nude and semi-nude images of K.K. and two additional foster children who had previously lived at Duncan’s house: K.M, who had been under fifteen years old at the time, and J.D. Most of the images appeared to be still screenshots or snapshots derived from videos captured in the bathroom where K.K. had found the spy camera.

¶6 A grand jury charged Duncan with thirty counts. The first nine involved attempted or completed sexual exploitation of a minor, K.K.¹ Counts one through four were based on the deleted videos Detective Barry retrieved from the unallocated space on the SD card in Duncan’s spy camera using the forensic software. Counts five through nine were based on the videos he found in the allocated space on the SD card. The remaining counts were based on the images found on other electronic devices during the search of Duncan’s residence. Counts ten through twenty-seven charged sexual exploitation of a minor²—K.K., K.M., and J.D.—with the three involving K.M. alleging that the victim had been under fifteen years old at the time each crime was committed. The final three counts alleged surreptitious photographing, videotaping, filming, or digitally recording or viewing of J.D. after she was no longer a minor.

¶7 At the conclusion of a four-day trial, a jury found Duncan guilty as charged.³ Duncan filed a motion requesting a new trial, which the trial court denied after a hearing. The court then sentenced Duncan to consecutive and concurrent prison terms totaling 90.5 years. This appeal followed. We have jurisdiction pursuant to A.R.S. 12-120.21(A)(1), 13-4031, and 13-4033(A).

Sexual Exploitation Charges

¶8 Duncan challenges both the factual and legal sufficiency of his twenty-six convictions for attempted or completed sexual exploitation of a minor.⁴ Quoting A.R.S. § 13-3551(5), he contends there was "insufficient evidence presented at trial that the images were made ‘for the purposes of sexual stimulation.’ " He also argues that the sexual exploitation statute, A.R.S. § 13-3553(A)(1)-(2)—when combined with the definition of "exploitive exhibition" established at § 13-3551(5)—is impermissibly "overbroad as applied to the facts of this case because it does not meet the constitutional threshold required for the recording or the possess on of child pornography."

Factual Sufficiency

¶9 At trial, after the presentation of all evidence, Duncan moved for a judgment of acquittal under Rule 20(a), Ariz. R. Crim. P. Finding that the state had presented substantial evidence for convictions on all twenty-nine counts, the trial court denied the motion.

[2–5] ¶10 On appeal, Duncan contends "the state failed to present suff[i]cient factual evidence to convict [him] of attempted or completed acts of sexual exploitation of a minor." Sufficiency of the evidence is a question of law requiring de novo review. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188 (2011). Viewing the evidence in the light most favorable to sustaining the jury’s verdicts, and resolving all inferences against the defendant, we must determine whether the state presented evidence that "reasonable persons could accept as sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996), In so doing, we may not "reweigh evidence or reassess the witnesses’ credibility." State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38, 312 P.3d 123 (App. 2013). If jurors could reasonably differ as to whether the evidence establishes the necessary facts, that evidence is sufficient as a matter of law. See State v. Davolt, 207 Ariz. 191, ¶ 87, 84 P.3d 456 (2004).

[6–8] ¶11 We test the sufficiency of the evidence against the statutorily required elements of the offense. State v. Pena, 209 Ariz. 503, ¶ 8, 104 P.3d 873 (App. 2005). Here, the state bore the burden of presenting evidence sufficient for a rational jury to conclude, beyond a reasonable doubt, that Duncan knowingly recorded, filmed, photographed, duplicated, electronically transmitted, or possessed "any visual depiction" of a minor engaged in "exploitive exhibition," § 13-3553(A)(1)-(2), which means "the actual or simulated exhibition of the genitals or pubic or rectal areas of any person for the purpose of sexual stimulation of the viewer," § 13-3551(5). As we have explained, this language "means that the viewer intends the [video or] photograph be used for sexual stimulation, rather than that the minor intends to sexually stimulate the viewer." State v. Chandler, 244 Ariz. 336, ¶ 7, 418 P.3d 1109 (App. 2017).

[9] ¶12 Duncan contends there was "insufficient evidence of [his] sexual intent." We cannot agree.⁵

¶13 The jury saw a photograph of the relevant bathroom in Duncan’s house, including where the charger device was placed, across from the shower. K.K. testified that, before she discovered that the device was a hidden camera, she would "constantly move it out of the bathroom and charge it somewhere else or put it on [Dunean’s] desk," but when she "would go back the next time, it would be in the bathroom again." Duncan told her to leave it in the bathroom or there would be consequences. K.K. also explained that, after she realized the device was a camera and fled the house with it, Dunean texted her asking where it was.

¶14 Detective Barry testified that the spy camera could be connected to other devices and controlled using a cell phone. The Jury heard testimony that, on the cell phone found in Dunean’s home, police found an application that looked like a calculator but was actually a hidden, password-protected way to store files. Once opened with Duncan’s password, the app revealed a folder called "Sparky." It contained numerous images of K.K., K.M., and J.D. nude or in a state of undress in a bathroom setting. Most of the images in the secret folder appeared to be still screenshots or snapshots derived from videos taken in the bathroom where K.K. had found the camera.

¶15 Duncan’s digital devices also revealed that he had researched hidden cameras and spy cameras, and browsed and purchased one or more such cameras through Amazon. His browser history also indicated that, the day after K.K. left with his spy camera, Duncan conducted research on how to hide or delete his Amazon browsing history.

¶16 Viewed in the light most favorable to sustaining the jury’s verdicts, and resolving all inferences against Duncan, see Spears, 184 Ariz. at 290, 908 P.2d at 1075, the foregoing evidence permitted reasonable jurors to conclude that Duncan had secretly recorded the minor victims in states of undress,...