State v. Nelson ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
GARY LEE NELSON, Appellant.
No. 1 CA-CR 17-0750
FILED 8-2-2018
Appeal from the Superior Court in Mohave County
No. S8015CR201400366
The Honorable Richard D. Lambert, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. NELSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.
J O H N S E N, Judge:
¶1 This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following the revocation of Nelson's probation. Nelson's counsel has
searched the record and found no arguable question of law that is not
frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State
v. Clark, 196 Ariz. 530 (App. 1999). Nelson was given the opportunity to file
a supplemental brief but did not do so. Counsel now asks this court to
search the record for fundamental error. After reviewing the entire record,
we affirm the revocation of Nelson's probation and the imposition of his
sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 Nelson pled guilty to sexual abuse of a minor under 15 years
old, a non-dangerous, non-repetitive Class 3 felony and a first-degree
dangerous crime against children.1 On December 23, 2014, the superior
court suspended sentence and imposed a five-year term of supervised
probation. Among the probation conditions were:
12. Do not possess, or in any way attempt to obtain by
telephone or any other instrument, any sexually stimulating
or sexually orientated material in any form as deemed
inappropriate by treatment staff, or patronize any adults-only
establishment where material is available.
* * *
1 Upon review, we view the facts in the light most favorable to
sustaining the judgment and resolve all inferences against Nelson. State v.
Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
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STATE v. NELSON
Decision of the Court
14. Do not possess, use, or have personal access to any
computer or similar equipment that has internet capability
without prior written permission of your Probation Officer.
Nelson also agreed not to consume alcohol and not to travel beyond certain
bounds without written permission.
¶3 On November 30, 2016, Nelson's probation officer visited his
home and noticed an internet-capable flip phone sitting on the coffee table.
Although the phone was not activated and the probation officer did not
determine whether the internet feature had been used, she did notice the
phone was connected to the internet. The State filed a petition to revoke
Nelson's probation, alleging he possessed an unauthorized internet-capable
flip phone and smartphone, possessed alcohol, and also that a monitoring
service had twice detected him accessing prohibited sexually-oriented
material via the internet.
¶4 Just after 1:00 a.m. one morning several weeks later, Nelson
searched the internet multiple times for a GIF image of a "girl saying no
with pink lockers behind her," and the monitoring service reported hits for
numerous sexually explicit trigger words in the search results. The State
filed a supplemental petition to revoke Nelson's probation, alleging the
monitoring service had again detected him accessing prohibited sexual
material and also that he had left the county without permission.
¶5 At the close of a contested probation violation hearing, the
superior court found that Nelson had violated his probation by possessing
the flip phone and by performing internet searches for the girl in front of
pink lockers. The court found that the flip phone was internet-capable and
Nelson submitted no evidence to support his contention that his previous
probation officer had authorized him to have the phone. The court further
found that Nelson was not credible when he explained why he searched for
the GIF, given the text of his search terms, the repeated nature of the
searches, the late-night hour in which the activity occurred, the content
returned by the searches, and Nelson's intelligence and high level of
sophistication as an internet user. The court found Nelson did not commit
the other alleged probation violations. On November 6, 2017, the court
revoked Nelson's probation and sentenced him to the presumptive sentence
of five years' imprisonment with credit for 150 days served.
¶6 Nelson timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
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STATE v. NELSON
Decision of the Court
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018) and
-4033(A)(1) (2018).2
DISCUSSION
¶7 Nelson was present and represented by counsel at all critical
stages of the revocation proceeding. See State v. Jackson, 16 Ariz. App. 476,
478 (1972) ("A defendant is entitled to the presence and participation of his
counsel at the hearing on revocation of probation and at the resulting
imposition of sentence."). The record reflects that the superior court
afforded Nelson his rights under the federal and state constitutions and our
statutes, and that the revocation proceedings were conducted in accordance
with the Arizona Rules of Criminal Procedure.
¶8 Pursuant to Arizona Rule of Criminal Procedure 27.8(b)(3),
the State must prove a probation violation by a preponderance of the
evidence. The court's determination that a defendant violated a probation
term will not be reversed unless the determination is unsupported by any
theory of the evidence. State v. Tatlow, 231 Ariz. 34, 39, ¶ 15 (App. 2012).
¶9 The court found the State proved Nelson violated the terms
of his probation, and sufficient evidence supports that determination.
Nelson's probation did not permit him to "possess, use, or have personal
access to any computer or similar equipment that has internet capability
without prior written permission" of his probation officer, yet he admitted
that he possessed the internet-capable flip phone and presented no
evidence supporting his assertion that he had followed his previous
probation officer's instruction in purchasing that phone. Moreover, Nelson
acknowledged that his current probation officer had told him he could not
use the internet-capable flip phone. Although he testified he had activated
his home phone because it was cheaper, he offered no explanation for why
he had kept the unauthorized flip phone even though he had a home phone.
¶10 Further, Nelson was not allowed to "possess, or in any way
attempt to obtain by telephone or any other instrument, any sexually
stimulating or sexually orientated material," and the probation officer
testified that in the early morning of August 7, 2017, Nelson repeatedly
conducted internet searches for a "girl" that yielded sexually explicit results.
Nelson admitted that he conducted those searches, but said that he did not
see any pornographic pictures or other objectionable results, and that, in
2 Absent material revision after the date of an alleged offense, we cite
a statute's current version.
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STATE v. NELSON
Decision of the Court
any event, he did not click on any objectionable link in the results. Nelson
testified he was searching for a particular animated GIF image that depicted
a girl flipping her hair and saying "no" in front of a row of pink lockers
because he had a friend that looked just like the girl and wanted to show it
to her. The court, however, was entitled to disbelieve Nelson's explanation
for the searches and his denial that he had noticed anything explicit.
¶11 The court may revoke probation only if the defendant has
prior written notice of the condition allegedly violated. See Ariz. R. Crim.
P. 27.8(c)(2). Nelson signed and received written copies of his probation
conditions, including the conditions he was accused of violating.
¶12 Before imposing sentence, the court provided Nelson an
opportunity to speak and reviewed a presentence report. Thereafter, the
court revoked his probation and imposed a legal sentence for the crime of
which he was convicted, with proper credit given for presentence
incarceration. See A.R.S. §§ 13-1404(A), (C) (2018); 13-705(F), (P)(1)(j) (2018).
CONCLUSION
¶13 We have reviewed the entire record for reversible error. See
Leon, 104 Ariz. at 300. We find none.
¶14 After the filing of this decision, defense counsel's obligations
pertaining to Nelson's representation in this appeal have ended. Defense
counsel need do no more than inform Nelson of the outcome of this appeal
and his future options, unless, upon review, counsel finds "an issue
appropriate for submission" to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the court's
own motion, Nelson has 30 days from the date of this decision to proceed,
if he wishes, with a pro per motion for reconsideration. Nelson has 30 days
from the date of this decision to proceed, if he wishes, with a pro per petition
for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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