from the Superior Court in Pima County No. CR20150660001 The
Honorable Jane L. Eikleberry, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Section
Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant
Attorney General, Tucson Counsel for Appellee.
R. Sonenberg, Pima County Public Defender By Michael J.
Miller and Erin K. Sutherland, Assistant Public Defenders,
Tucson Counsel for Appellant.
Miller authored the opinion of the Court, in which Presiding
Judge Vásquez concurred and Chief Judge Eckerstrom
dissented in part and concurred in part.
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
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.
and Procedural Background
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
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.
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.
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.
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
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.
Arguments About Witness Subpoenas
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
[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.
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
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.
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).
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. 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.
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