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State v. Cook

Court of Appeals of Arizona, First Division, Department C

September 3, 2013

STATE OF ARIZONA, Appellee,
v.
DONALD LEE COOK, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2005-033017-001 The Honorable Harriett E. Chavez, Judge

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee

James J. Haas, Maricopa County Public Defender Phoenix By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant

Donald Lee Cook, Appellant

MEMORANDUM DECISION

LAWRENCE F. WINTHROP, Judge

¶1 Donald Lee Cook ("Appellant") appeals his convictions and sentences for two counts of sexual conduct with a minor. Appellant's counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant's counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). In addition, this court has allowed Appellant to file a supplemental brief in propria persona, and he has done so, raising issues that we address.

¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (West 2013), [1] 13-4031, and 13-4033(A). Finding no reversible error, we affirm.

I. FACTS AND PROCEDURAL HISTORY[2]

¶3 On February 9, 2005, law enforcement officers executed a search warrant on Appellant's apartment, confiscating computer equipment and compact disks containing child pornography and showing adults engaging in sexual activity with children. After further investigation, the State ultimately charged Appellant with eight counts of sexual exploitation of a minor, two counts of sexual conduct with a minor, and one count of child molestation, all class two felonies and dangerous crimes against children.

¶4 Separate trials were held, and the first trial involved the eight counts of sexual exploitation of a minor. In February 2008, a jury convicted Appellant of all eight charged counts, and he was sentenced to seventeen years' imprisonment for each count.[3]

¶5 The second trial involved the two counts of sexual conduct with a minor and one count of child molestation. Before trial, the court granted the State's motion to dismiss the child molestation charge without prejudice. A jury initially convicted Appellant of two counts of sexual conduct with a minor under the age of twelve, but after sentencing this court reversed Appellant's convictions and remanded the case for a retrial. See State v. Cook, 1 CA-CR 09-0801, 2011 WL 3211052, at *1, ¶ 1 (Ariz. App. July 28, 2011) (mem. decision). Appellant's appeal in this case concerns matters related to his retrial and subsequent sentencing.

¶6 Appellant's retrial in this matter began on December 12, 2012. At trial, the State presented two video files recovered from Appellant's computer. Both video files had a "last written date" of July 6, 2003. The files contained images showing Appellant engaging in sexual conduct with a young girl ("the victim"). The victim's father testified that the girl shown on the video files was his daughter, and she was approximately ten years old at the time of the incident.

¶7 At the conclusion of the trial, a jury found Appellant guilty of both charged counts of sexual conduct with a minor and that the victim was under the age of twelve years. The trial court sentenced Appellant to serve consecutive terms of life ...


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