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State v. Farnsworth

Court of Appeals of Arizona, Second Division

January 31, 2017

The State of Arizona, Appellee,
v.
Clayton Paul Farnsworth, Appellant.

         Appeal from the Superior Court in Pima County No. CR20150660001 The Honorable Jane L. Eikleberry, Judge

         AFFIRMED.

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee.

          Steven R. Sonenberg, Pima County Public Defender By Michael J. Miller and Erin K. Sutherland, Assistant Public Defenders, Tucson Counsel for Appellant.

          Judge Miller authored the opinion of the Court, in which Presiding Judge Vásquez concurred and Chief Judge Eckerstrom dissented in part and concurred in part.

          OPINION

          MILLER, Judge.

         ¶1 After a jury trial, Clayton Farnsworth was convicted of luring a minor for sexual exploitation based on electronic communications with a detective posing as a thirteen-year-old girl, and second-degree attempted sexual conduct when he made arrangements to meet with the "girl" at a park to engage in oral sex. He was also convicted of twenty-two counts of sexual exploitation of a minor under fifteen relating to child pornography found on his computer. He was sentenced to consecutive seventeen-year terms for the exploitation offenses, to be served consecutively to concurrent terms on the other two offenses, totaling 384 years' imprisonment.

         ¶2 On appeal, Farnsworth argues the state improperly shifted the burden of proof by arguing in closing that he could have subpoenaed additional witnesses to support his factual contentions about possible third-party access to his computer. He also argues he should not have been sentenced under the dangerous crimes against children (DCAC) sentencing statute, A.R.S. § 13-705, for the attempted sexual conduct charge. For the following reasons, we affirm.

         Factual and Procedural Background

         ¶3 We view the evidence in the light most favorable to upholding Farnsworth's convictions. See State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). On February 5, 2015, a Tucson Police detective specializing in internet crimes against children was browsing a public bulletin board on the "Whisper" smart phone application when he noticed a posted image with the words, "Why can['t] underaged girls be legal? They are so hot and sexy." Posing as a thirteen-year-old girl named "Becky, " the detective sent a private message to the person who posted the image-ultimately identified as Farnsworth - saying, "Hi there! Might not be legal but we can talk!" Farnsworth responded, "[W]hat's [yo]ur age[?]" to which the detective answered, "13." Farnsworth identified himself as fifty-eight years old, and asked, "[H]ave you been with an older man[?]"

         ¶4 The detective and Farnsworth exchanged phone numbers and continued to send text messages over several days. Farnsworth repeatedly sent sexual messages and asked if they could meet. He also noted that he was working at the Tucson Gem & Mineral Show and sent a photograph of himself. Farnsworth and the detective agreed to meet at a park on February 11, and the detective asked if Farnsworth could pick up a Mountain Dew Code Red on his way. At the park, Farnsworth was stopped and arrested by police officers. In his car, they found his smart phone, a Mountain Dew Code Red, and a Tucson Gem & Mineral Show badge. The phone contained text messages and pictures that matched those exchanged with the detective.

         ¶5 The detective obtained a search warrant for Farnsworth's house. When officers arrived, another person in the home told police that he and his wife-Farnsworth's relative-had been staying there "at least a couple weeks." In Farnsworth's room, officers found a backpack containing a laptop computer and thumb drives, as well as more thumb drives in a desk drawer. They also found a tablet computer with the Whisper application installed. A second laptop was found in the house.

         ¶6 One thumb drive contained several images of child sexual abuse. It also contained several deleted files that had not yet been overwritten, including Farnsworth's driver's license and several employment application forms. The laptop in the backpack had one user account for Farnsworth, and contained his resume. The internet search history included keywords associated with child pornography. A folder on the laptop contained several additional images of child pornography. The laptop contained data establishing that it had previously been connected to the thumb drive with the sexual abuse images. No documents or user accounts on the laptop were associated with anyone other than Farnsworth.

         ¶7 The second laptop had a user account and documents associated with a "Glenn Durbin." It did not contain any saved images of sexual abuse, but it did contain data indicating the images from the thumb drive had been on the computer at some point.

         ¶8 A grand jury indicted Farnsworth on the luring offense for the communications of February 5-11, the attempted sexual conduct with a minor for the events of February 11, and the sexual exploitation counts for the pornography found later that day. He was convicted and sentenced as described above.

         Discussion

         Closing Arguments About Witness Subpoenas

         ¶9 Farnsworth argued in closing that no one had ever investigated Glenn Durbin, and someone else could have been using the computers and thumb drives. The state rebutted that argument, stating:

[T]he law is very, very clear. The State has the burden to prove their case to you beyond a reasonable doubt. That burden never ever shifts. However, just like the State, the defense also has the Court's subpoena power, and if there is any witness that the defense thinks has relevant evidence to bring to this jury, the defense, just like the State, has the ability to subpoena those people . . . and bring them here before you.

         Farnsworth did not object below, but now contends the state's argument improperly shifted the burden of proof, resulting in structural error; alternatively, he argues it was fundamental error.

         ¶10 Structural error affects "[t]he entire conduct of the trial from beginning to end, " Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991), and has only been found to exist in limited instances, none of which apply here, State v. Ring, 204 Ariz. 534, ¶ 46, 65 P.3d 915, 933-34 (2003). Moreover, the cases on which Farnsworth relies are inapposite. See Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993) (incorrect reasonable doubt jury instruction structural error); Fulminante, 499 U.S. at 310 (involuntary confessions analyzed under harmless error standard); State v. Le Noble, 216 Ariz. 180, ¶ 19, 164 P.3d 686, 690-91 (App. 2007) (deprivation of right to jury trial structural error). There was no structural error.

         ¶11 Fundamental error requires, inter alia, Farnsworth to show that the state's closing argument constituted error prejudicial to him. State v. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d 601, 607 (2005). The state may comment on the defendant's failure to present exculpatory evidence, so long as it is not a comment on the defendant's failure to testify. State v. Lehr, 201 Ariz. 509, ¶¶ 55-57, 38 P.3d 1172, 1185 (2002); State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160, 735 P.2d 767, 770 (1987); see also State v. Sarullo, 219 Ariz. 431, ¶ 24, 199 P.3d 686, 692-93 (App. 2008) (prosecutor's comments on failure to present evidence do not shift burden of proof to defendant absent comment on defendant's silence). He argues, however, that such references are limited to circumstances in which it is clear the defendant had access to the evidence, citing State v. Corona, 188 Ariz. 85, 89-90, 932 P.2d 1356, 1360-61 (App. 1997).

         ¶12 Corona does not support this contention. In that case, the state erred by commenting on the defendant's failure to call an expert witness when there was no evidence the defendant had ever consulted an expert and no expert had been mentioned to the jury, because the "general rule [is] that closing arguments must be based on facts that the jury is entitled to find from the evidence and not on extraneous matters not received in evidence." Id. at 89, 932 P.2d at 1360. In contrast, the existence of Glenn Durbin and the two other people in Farnsworth's home had been introduced to the jury.[1] See State v. Edmisten, 220 Ariz. 517, ¶ 27 & n.4, 207 P.3d 770, 778-79 & n.4 (App. 2009) (no fundamental error when state suggested defendant's failure to produce witness gave rise to inference witness's testimony unfavorable). Moreover, the state emphasized that it had the burden of proof, and, as noted above, the instructions were correct. We presume the jurors followed the court's instructions. See State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). The state's comments in rebuttal did not constitute fundamental, prejudicial error.

         Dangerous Crimes Against ...


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