GARD, JUDGE:
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Gila County No. S0400CR201900225 The Honorable Bryan B. Chambers, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee
Ramos Law Firm, Scottsdale By Paul A. Ramos Counsel for Appellant
Judge Gard authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vasquez concurred.
MEMORANDUM DECISION
GARD, JUDGE:
¶ 1 Thomas Castaneda appeals his convictions and sentences for ten counts of sexual exploitation of a minor. Castaneda argues that the trial court abused its discretion by admitting hearsay evidence. He also argues that the evidence was insufficient to support the jurors' guilty verdicts. For the following reasons, we affirm Castaneda's convictions and sentences.
Factual and Procedural Background
¶ 2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Castaneda. See State v. Felix, 237 Ariz. 280, ¶ 2 (App. 2015). Following a four-day trial, a jury found Castaneda guilty of ten counts of sexual exploitation of a minor, based on images found in Castaneda's Dropbox account. The trial court sentenced Castaneda to slightly mitigated twelve-year prison terms on each of the ten counts, with all sentences to run consecutively.
¶ 3 This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
Hearsay Records
¶ 4 Castaneda argues that the trial court abused its discretion by admitting records provided by Dropbox, Cable One, and PayPal, which were used to establish that Castaneda owned the Dropbox account that contained the images at issue. He argues that the state did not lay the proper foundation to admit these records under the hearsay exception for regularly conducted business activity, see Ariz. R. Evid. 803(6), and therefore the records were inadmissible. Castaneda also asserts that the records lacked the certification required under Rules 803(6)(D) and 902(11), Ariz. R. Evid.
¶ 5 We will not reverse a trial court's evidentiary rulings, including its application of the hearsay rules, absent an abuse of discretion. State v. Forde, 233 Ariz. 543, ¶ 77 (2014); State v. King, 213 Ariz. 632, ¶ 7 (App. 2006). An abuse of discretion occurs when "the reasons given by the court . . . are clearly untenable, legally incorrect, or amount to a denial of justice." State v. Herrera, 232 Ariz. 536, ¶ 19 (App. 2013) (quoting State v. Chapple, 135 Ariz. 281, 297 n.18 (1983)).
¶ 6 At trial, Castaneda objected on hearsay and foundational grounds to a detective testifying that an email address was associated with Castaneda. The trial court allowed both parties to voir dire the detective concerning the source of his knowledge of the email address. The detective testified that he had learned of the address, as well as other personal identifying information, and its association to Castaneda from Dropbox, Cable One, and PayPal records. The state offered as exhibits records obtained from the foregoing companies in response to law-enforcement subpoenas.
¶ 7 The trial court overruled Castaneda's objection and determined that the business records exception applied. The court further ruled, in the alternative, that the records fit within the residual hearsay exception set forth in Rule 807, Ariz. R. Evid. We address each record or set of records below.
Dropbox Records
¶ 8 Under Rule 803(6), a record is an admissible business record if:
(A) the record was made at or near the time by-or from information transmitted by- someone with knowledge;
(B) the record was kept in the course of regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified
witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Rule 902(11) requires a custodian or otherwise qualified person to provide a certification containing the information required by Rule 803(6).
¶ 9 Here, a "Certificate of Business Records" attached to the Dropbox records states that the certificate's author was a "duly authorized custodian of the records." The certificate further states, "The records referred to above were prepared by personnel of the above-named business in the ordinary course of business at or near the time of the act, condition, or event recorded therein." The certificate additionally reports that "[t]he records referred to above were . . . generated by an electronic system that produces an accurate result." And a sergeant with the Phoenix Police Department testified that companies like Dropbox have duties to report suspected exploitive materials to the National Center for Missing and Exploited Children (NCMEC).
¶ 10 The certification meets the requirements of Rules 803(6)(A) and (B). Further, given the certificate's entirety, as well as the sergeant's testimony, it was reasonable for the trial court to find that "making the record was a regular practice of that activity." Ariz. R. Evid. 803(6)(C). Accordingly, the court did not abuse its discretion by admitting the Dropbox records under Rule 803(6).
Cable One Records
¶ 11 As Castaneda contends, the Cable One records do not satisfy the requirements of Rule 803(6). The letter attached to the records does not state that the records were kept in the course of regularly conducted activity, the letter does not state that making the records was a regular practice, and the letter's author only identifies himself as "Associate General Counsel." There is no indication that he is a custodian of the records or an otherwise qualified individual.
¶ 12 The trial court, however, alternatively concluded that the Cable One records were admissible under Rule 807. Rule 807(a) states:
Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in
Rule 803 or 804:
(1) the statement is supported by sufficient guarantees of trustworthiness-after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
¶ 13 To determine whether a particular statement satisfies Rule 807, the trial court must consider "the totality of circumstances" under which the statement was made "render the declarant particularly worthy of belief." State v. Valencia, 186 Ariz. 493, 498 (App. 1996) (quoting State v. Luzanilla, 179 Ariz. 391, 394 (1994)). Courts should consider "the spontaneity, consistency, knowledge, and motive of the declarant . . . to speak truthfully." State v. Burns, 237 Ariz. 1, ¶ 69 (2015) (quoting State v. Allen, 157 Ariz. 165, 174 (1988)). Finally, "[t]he statement must be strongly probative and circumstantially reliable. If this test is met the evidence should be admitted." State v. Ramirez, 142 Ariz. 171, 177 (App. 1984).
¶ 14 The trial court did not abuse its discretion when it concluded that the Cable One records satisfied the requirements of Rule 807. The records include Castaneda's name, physical address, and two Internet Protocol ("IP") addresses. A Gila County detective confirmed that Castaneda's physical address matched the address on the Cable One records. One IP address on the Cable One records matched one IP address in the Dropbox records. In addition, the Cable One letter states, "our researchers reviewed our customer/billing databases for the subscriber information on the date and time requested and compiled information responsive to the Subpoena which is enclosed." And the record supports the trial court's implicit finding that the Cable One records, which linked Castaneda to the Dropbox account, were more probative than any other evidence the state could produce on that point through reasonable efforts.
PayPal Records
¶ 15 The PayPal records do not include a certificate pursuant to Rule 803(6); that rule's requirements thus were not met. However, like the Cable One records, the trial court alternatively found the PayPal records admissible under Rule 807. The court did not abuse its discretion by doing so.
¶ 16 The PayPal records contain information consistent with Castaneda's identifying information, including his name, email address, physical address, and one matching phone number. In addition, the detective who requested and received the PayPal records testified that he had submitted a subpoena through PayPal's online portal made specifically for law enforcement. PayPal sent back a "security e-mail" with a link for the PayPal records. The PayPal records state that "[t]his document is sent electronically and does not require any signature" and that "[t]he information in this document has been processed based on the request from the Law Enforcement Officer named above." As the state observes, this "automated electronic process" enhances the document's reliability by limiting the potential for error or improper motive on the part of PayPal or its employees.
¶ 17 Given that the information found in the PayPal records matches the information found in the Dropbox and Cable One records and that the PayPal records were sent through an automated electronic process, the trial court's ruling finding the records sufficiently trustworthy for admission under Rule 807(a)(1) was not "clearly untenable, legally incorrect," and did not amount "to a denial of justice," as would be required to show an abuse of discretion. Herrera, 232 Ariz. 536, ¶ 19 (quoting Chapple, 135 Ariz. at 297 n.18). Likewise, it was not an abuse of discretion for the court to implicitly determine that the PayPal records satisfied Rule 807(a)(2), as those records corroborated Castaneda's link to the Dropbox account through a different email address than the Cable One records.
¶ 18 Finally, even if the PayPal records did not satisfy the requirements of Rule 807 such error was harmless beyond a reasonable doubt. See State v. Leteve, 237 Ariz. 516, ¶ 25 (2015); State v. Romero, 240 Ariz. 503, ¶¶ 6-8 (App. 2016). The identifying information obtained through the PayPal records was largely cumulative of the information contained within the Dropbox and Cable One records. Further, Castaneda's statements to police when he was advised that the police had found several hundred exploitative images connected to his IP address and residence suggest his consciousness of guilt. According to one officer, Castaneda spontaneously stated:
I should have known better, I knew this would come back. I understand what you're saying. There's nothing on any of the computers at home. Everything is on my phone. I did everything on my phone, because it's the only thing that I had total control over. I never looked at anything on the computers, because my wife uses the computers.
¶ 19 The officer testified that Castaneda then squatted down several times and stated, "my life is over, my life is ruined." The officer also observed tears in Castaneda's eyes. Accordingly, the PayPal records only served to bolster the state's case against Castaneda, and were not critical to or necessary for his convictions.
Sufficiency of the Evidence
¶ 20 Castaneda contends that the evidence was not sufficient to sustain his convictions for sexual exploitation of a minor. We review de novo whether sufficient evidence supports a conviction. State v. West, 226 Ariz. 559, ¶ 15 (2011). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)).
¶ 21 "A person commits sexual exploitation of a minor by knowingly . . . [d]istributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." A.R.S. § 13-3553(A)(2). In addition, the state was required to prove that the minor was under fifteen years of age. A.R.S. § 13-3553(C).
¶ 22 Castaneda challenges only the sufficiency of the evidence in regard to § 13-3553(A)(2)'s possession requirement. "Constructive possession exists when the prohibited property 'is found in a place under [the defendant's] domain [or] control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence of the [property].'" State v. Cox, 214 Ariz. 518, ¶ 10 (App. 2007) (quoting State v. Villavicencio, 108 Ariz. 518, 520 (1972)).
¶ 23 There is sufficient evidence to conclude that Castaneda possessed the exploitative materials. As discussed above, Castaneda made inculpatory statements when confronted with information that several hundred exploitative images had been found connected to his IP address and his residence. In addition, the identifying personal information associated with the Dropbox account, where the exploitative materials were found, matched the personal information found within the Cable One records, linking the Dropbox account to him, even in the absence of the PayPal records. Given the testimony and evidence discussed above, there is sufficient evidence to sustain Castaneda's convictions for sexual exploitation of a minor.
Disposition
¶ 24 For the foregoing reasons, we affirm Castaneda's convictions and sentences.