State v. Rix

104 Arizona Cases Digest 4

536 P.3d 253

STATE of Arizona, Appellee,

v.Sean David RIX, Appellant.

No. 1 CA-CR 22-0305

Court of Appeals of Arizona, Division 1.

Filed August 29, 2023

Arizona Attorney General's Office, Phoenix, By Andrew S. Reilly, Counsel for Appellee

Curry, Pearson, & Wooten PLC, Phoenix, By Kristen M. Curry, Counsel for Appellant

Judge Andrew M. Jacobs delivered the opinion of the Court, in which Chief Judge David B. Gass and Judge Brian Y. Furuya joined.

JACOBS, Judge:

¶1 Sean David Rix appeals his convictions and sentences for two counts of attempted sexual exploitation of a minor. Rix raises four issues on appeal, claiming the superior court committed reversible error by: (1) admitting other-act evidence under Arizona Rule of Evidence ("Rule") 404(c) ; (2) denying his motion to dismiss based on an alleged double jeopardy violation; (3) providing the "exploitive exhibition" jury instruction; and (4) providing the undercover persona jury instruction. Although we reject the final three arguments, we find the court's admission of unfairly prejudicial other-act evidence requires reversal, and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

A. A Detective Posing as a Thirteen-Year-Old Girl Contacts Rix Within a Sting Operation.

¶2 In the spring of 2019, a detective with the Mohave County Sheriff's Office ("MCSO") conducted an undercover investigation targeting individuals who use the internet to sexually exploit children. As part of the investigation, the detective created an undercover online persona for a thirteen-year-old girl. The detective used "non-sexual" images provided by a female MCSO employee, taken when she was thirteen years old.

¶3 The detective found an advertisement on a "personals" website frequented by individuals seeking romantic or sexual relationships. The title of the advertisement read, "I want to photograph your vagina." It then stated, "I'm a professional photographer, and I'm seeking unique pussies to photograph. I will make it worth your while, and you will not be disappointed. Serious inquiries only." The detective responded to the advertisement, and exchanged messages with an individual using the pseudonym "Bob Bobbers." Detectives would later identify Rix as "Bobbers" through his account information, service provider records, and internet protocol address.

¶4 On April 10 and 11, the detective asked if Rix was "still looking" and if he liked "younger girls."¹ Rix replied, "Yeah, I do." The detective wrote to Rix, "I'm 13. If you don't care, then I don't." Rix responded by asking for an image of the girl, and the detective sent an image of the undercover persona. Rix wrote back, "Show me your pussy." The detective declined to send any further images, asking Rix to send an image of himself. Rix replied, "I will after you show me you're serious." The detective asked Rix to communicate via text message, providing him with a phone number used for undercover investigations. Rix responded, "After you send me a pussy pic." When the detective declined a second time, Rix ended their communication.

¶5 Over a month later, on May 15 and 16, Rix reached out to the undercover persona, claiming that the two "used to hook up" and he once took her to the hospital. When the detective (writing as the persona) responded that the girl had never been to a hospital, Rix stated, "So I know I have the right person, you are a female, right?" The detective answered in the affirmative and stated, "I'm 13. So if you're not cool with that, then bye." Rix responded, "I'm definitely cool with that," asking to see her "sexy ass" and stating that he wanted to "meet up." Rix indicated that he lived out-of-state but frequently traveled to Arizona. Rix requested an image of the girl, and the detective sent another image of the undercover persona. Rix then asked, "You like sucking dick?" Responding in the persona, the detective wrote that she had only done so once, to which Rix responded, "Show me your tiny teen pussy." When the detective refused to send this image, Rix ended the conversation.

B. The State Searched Rix's Devices and Found a Large Number of Sexually Exploitive Images.

¶6 After linking Rix to the advertisement, detectives obtained and executed a search warrant on his home in Nevada and seized several electronic devices. A search of these devices revealed over 3,000 sexually exploitive images and videos of children. The search also confirmed that Rix accessed some of the material days before his arrest, owned the devices, and visited the website used to post the advertisement. Rix claimed he created the advertisement based on his interest in "erotic photography" and only meant to communicate with adult females. Acknowledging his exchanges with the undercover persona, Rix maintained that he believed her to be an adult female or someone "goofing" around with him. Although Rix denied knowingly possessing sexually exploitive material, he admitted the seized devices belonged to him.

C. Rix Stands Trial for Two Counts of Attempted Sexual Exploitation of a Minor, and the State Seeks to Introduce Thousands of Sexually Exploitive Images to Prove His Aberrant Sexual Propensity to Commit the Charged Crimes.

¶7 The State charged Rix with two counts of attempted sexual exploitation of a minor, class 3 felonies and dangerous crimes against children (Counts One and Two). See A.R.S. §§ 13-1001(A)(1), (C)(2), - 3553(A)(2). These charges stem from Rix's conversations with the undercover persona in April and May 2019. Authorities in Nevada charged Rix in a separate case for the sexually exploitive material located on his devices.

¶8 Before trial, the State moved to admit evidence Rix possessed sexually exploitive material under Rule 404(c). Rix opposed the motion and argued that the other-act evidence the State sought to admit was too dissimilar to the charged crimes and the risk of unfair prejudice far outweighed its minimal probative value. In a two-day evidentiary hearing, a Nevada detective testified they: (1) executed a search warrant based on the investigation of the charged crimes; (2) seized and forensically examined four electronic devices with "ownership" material linking Rix to the devices; (3) located over 3,000 sexually exploitive images and videos of children; and (4) learned the items were downloaded between 2017 and 2019. The State expressed an intent to admit all 3,000 items, show a limited number in open court, and allow jurors to view the items upon request. Rix opposed any reference to the sexually exploitive material, arguing that charges relating to possession were still pending in a different jurisdiction, the material would be unfairly prejudicial, and the images were too dissimilar from the charged crimes. At the court's suggestion, the State agreed to reduce the number of images it would seek to admit and remove any duplicates.

D. The Superior Court Allowed the State to Use 50 of the Images at Trial, Most of Which Were Images That Varied Greatly From Those Rix Sought in the Charged Conduct.

¶9 Applying Rule 404(c), the superior court found: (1) sufficient proof Rix knowingly possessed sexually exploitive material; (2) his possession of the material provided a reasonable basis to infer he had a character trait giving rise to an aberrant sexual propensity to commit the charged crimes; and (3) the evidentiary value of the evidence was not substantially outweighed by the danger of unfair prejudice. Making this determination, the court considered evidence Rix possessed the material at the time of his arrest in the current case, found the items "similar in that they portray underage girls’ genitalia or portray them in sexual acts," and the nature and large quantity showed he "collects images of underaged girls, again in sexual depictions or photos of their genitalia." The court limited the State to admitting no more than 50 of the images, without otherwise limiting the State's use of the evidence at trial.

¶10 At trial, the State elicited testimony from multiple witnesses that Rix had sexually exploitive material on his devices at the time of his arrest, with one witness testifying that they found "over 3,000 images of child sexual abuse material." This testimony included descriptions of an image and video depicting a female child of "about 10 years old performing oral sex on a dog."

¶11 The State offered, and the court admitted into evidence, a thumb drive containing 23 sexually exploitive images: (1) fourteen images depicting sexual conduct with children, including images involving a toddler-aged female child, group sex, and oral and anal sexual contact; (2) one image of a female child engaging in oral sexual contact with a dog; (3) six images of female children engaged in "exploitive exhibition"; and (4) one image of a female child's breasts and one of a female child wearing an "I ? CP" shirt² . At least fourteen of the images were of children the State's witness described as "prepubescent" or who were clearly so. As the State showed the images to the jury, a detective provided verbal descriptions of all except two of the images. The detective referred to the images as "examples" of the material located on Rix's devices.

¶12 After the State rested, Rix elected to testify. Rix testified consistent with his statements to detectives, claiming he believed the undercover persona to be an adult or someone playing a joke on him. He denied knowingly possessing the sexually exploitive images. Throughout cross-examination, the State showed Rix the images and again displayed them to the jury at length, confirming that they depicted children. Following Rix's testimony, jurors submitted questions about the images, asking (1) "How can this many images be on your personal computer without your knowledge?" and (2) "Why do you have photos of naked young girls on your electronics? How did they get there?" The superior court did not ask Rix these questions.

E. The Superior Court Rejected Rix's Arguments That State v....