State v. Rix

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

SEAN DAVID RIX, Appellant.

No. 1 CA-CR 22-0305
FILED 8-29-2023

Appeal from the Superior Court in Mohave County
No. S8015CR201901104
The Honorable Richard D. Lambert, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew S. Reilly
Counsel for Appellee

Curry, Pearson, & Wooten PLC, Phoenix
By Kristen M. Curry
Counsel for Appellant

OPINION

Judge Andrew M. Jacobs delivered the opinion of the Court, in which Chief
Judge David B. Gass and Judge Brian Y. Furuya joined.
 STATE v. RIX
Opinion of the Court

J A C O B S, Judge:

¶1 Sean David Rix appeals his convictions and sentences for two
counts of attempted sexual exploitation of a minor. Rix raises four issues
on appeal, claiming the superior court committed reversible error by: (1)
admitting other-act evidence under Arizona Rule of Evidence (“Rule”)
404(c); (2) denying his motion to dismiss based on an alleged double
jeopardy violation; (3) providing the “exploitive exhibition” jury
instruction; and (4) providing the undercover persona jury instruction.
Although we reject the final three arguments, we find the court’s admission
of unfairly prejudicial other-act evidence requires reversal, and remand for
a new trial.

FACTS AND PROCEDURAL HISTORY

A. A Detective Posing as a Thirteen-Year-Old Girl Contacts Rix
Within a Sting Operation.

¶2 In the spring of 2019, a detective with the Mohave County
Sheriff’s Office (“MCSO”) conducted an undercover investigation targeting
individuals who use the internet to sexually exploit children. As part of the
investigation, the detective created an undercover online persona for a
thirteen-year-old girl. The detective used “non-sexual” images provided
by a female MCSO employee, taken when she was thirteen years old.

¶3 The detective found an advertisement on a “personals”
website frequented by individuals seeking romantic or sexual relationships.
The title of the advertisement read, “I want to photograph your vagina.” It
then stated, “I’m a professional photographer, and I’m seeking unique
pussies to photograph. I will make it worth your while, and you will not
be disappointed. Serious inquiries only.” The detective responded to the
advertisement, and exchanged messages with an individual using the
pseudonym “Bob Bobbers.” Detectives would later identify Rix as
“Bobbers” through his account information, service provider records, and
internet protocol address.

¶4 On April 10 and 11, the detective asked if Rix was “still
looking” and if he liked “younger girls.”1 Rix replied, “Yeah, I do.” The
detective wrote to Rix, “I’m 13. If you don’t care, then I don’t.” Rix
responded by asking for an image of the girl, and the detective sent an
image of the undercover persona. Rix wrote back, “Show me your pussy.”

1 We recite the exchanges without their typographical errors.

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Opinion of the Court

The detective declined to send any further images, asking Rix to send an
image of himself. Rix replied, “I will after you show me you’re serious.”
The detective asked Rix to communicate via text message, providing him
with a phone number used for undercover investigations. Rix responded,
“After you send me a pussy pic.” When the detective declined a second
time, Rix ended their communication.

¶5 Over a month later, on May 15 and 16, Rix reached out to the
undercover persona, claiming that the two “used to hook up” and he once
took her to the hospital. When the detective (writing as the persona)
responded that the girl had never been to a hospital, Rix stated, “So I know
I have the right person, you are a female, right?” The detective answered
in the affirmative and stated, “I’m 13. So if you’re not cool with that, then
bye.” Rix responded, “I’m definitely cool with that,” asking to see her “sexy
ass” and stating that he wanted to “meet up.” Rix indicated that he lived
out-of-state but frequently traveled to Arizona. Rix requested an image of
the girl, and the detective sent another image of the undercover persona.
Rix then asked, “You like sucking dick?” Responding in the persona, the
detective wrote that she had only done so once, to which Rix responded,
“Show me your tiny teen pussy.” When the detective refused to send this
image, Rix ended the conversation.

B. The State Searched Rix’s Devices and Found a Large
Number of Sexually Exploitive Images.

¶6 After linking Rix to the advertisement, detectives obtained
and executed a search warrant on his home in Nevada and seized several
electronic devices. A search of these devices revealed over 3,000 sexually
exploitive images and videos of children. The search also confirmed that
Rix accessed some of the material days before his arrest, owned the devices,
and visited the website used to post the advertisement. Rix claimed he
created the advertisement based on his interest in “erotic photography” and
only meant to communicate with adult females. Acknowledging his
exchanges with the undercover persona, Rix maintained that he believed
her to be an adult female or someone “goofing” around with him.
Although Rix denied knowingly possessing sexually exploitive material, he
admitted the seized devices belonged to him.

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 STATE v. RIX
Opinion of the Court

C. Rix Stands Trial for Two Counts of Attempted Sexual
Exploitation of a Minor, and the State Seeks to Introduce
Thousands of Sexually Exploitive Images to Prove His
Aberrant Sexual Propensity to Commit the Charged Crimes.

¶7 The State charged Rix with two counts of attempted sexual
exploitation of a minor, class 3 felonies and dangerous crimes against
children (Counts One and Two). See A.R.S. §§ 13-1001(A)(1), (C)(2), -
3553(A)(2). These charges stem from Rix’s conversations with the
undercover persona in April and May 2019. Authorities in Nevada charged
Rix in a separate case for the sexually exploitive material located on his
devices.

¶8 Before trial, the State moved to admit evidence Rix possessed
sexually exploitive material under Rule 404(c). Rix opposed the motion and
argued that the other-act evidence the State sought to admit was too
dissimilar to the charged crimes and the risk of unfair prejudice far
outweighed its minimal probative value. In a two-day evidentiary hearing,
a Nevada detective testified they: (1) executed a search warrant based on
the investigation of the charged crimes; (2) seized and forensically
examined four electronic devices with “ownership” material linking Rix to
the devices; (3) located over 3,000 sexually exploitive images and videos of
children; and (4) learned the items were downloaded between 2017 and
2019. The State expressed an intent to admit all 3,000 items, show a limited
number in open court, and allow jurors to view the items upon request. Rix
opposed any reference to the sexually exploitive material, arguing that
charges relating to possession were still pending in a different jurisdiction,
the material would be unfairly prejudicial, and the images were too
dissimilar from the charged crimes. At the court’s suggestion, the State
agreed to reduce the number of images it would seek to admit and remove
any duplicates.

D. The Superior Court Allowed the State to Use 50 of the
Images at Trial, Most of Which Were Images That Varied
Greatly From Those Rix Sought in the Charged Conduct.

¶9 Applying Rule 404(c), the superior court found: (1) sufficient
proof Rix knowingly possessed sexually exploitive material; (2) his
possession of the material provided a reasonable basis to infer he had a
character trait giving rise to an aberrant sexual propensity to commit the
charged crimes; and (3) the evidentiary value of the evidence was not
substantially outweighed by the danger of unfair prejudice. Making this
determination, the court considered evidence Rix possessed the material at

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Opinion of the Court

the time of his arrest in the current case, found the items “similar in that
they portray underage girls’ genitalia or portray them in sexual acts,” and
the nature and large quantity showed he “collects images of underaged
girls, again in sexual depictions or photos of their genitalia.” The court
limited the State to admitting no more than 50 of the images, without
otherwise limiting the State’s use of the evidence at trial.

¶10 At trial, the State elicited testimony from multiple witnesses
that Rix had sexually exploitive material on his devices at the time of his
arrest, with one witness testifying that they found “over 3,000 images of
child sexual abuse material.” This testimony included descriptions of an
image and video depicting a female child of “about 10 years old performing
oral sex on a dog.”

¶11 The State offered, and the court admitted into evidence, a
thumb drive containing 23 sexually exploitive images: (1) fourteen images
depicting sexual conduct with children, including images involving a
toddler-aged female child, group sex, and oral and anal sexual contact; (2)
one image of a female child engaging in oral sexual contact with a dog; (3)
six images of female children engaged in “exploitive exhibition”; and (4)
one image of a female child’s breasts and one of a female child wearing an
“I ♥ CP” shirt2. At least fourteen of the images were of children the State’s
witness described as “prepubescent” or who were clearly so. As the State
showed the images to the jury, a detective provided verbal descriptions of
all except two of the images. The detective referred to the images as
“examples” of the material located on Rix’s devices.

¶12 After the State rested, Rix elected to testify. Rix testified
consistent with his statements to detectives, claiming he believed the
undercover persona to be an adult or someone playing a joke on him. He
denied knowingly possessing the sexually exploitive images. Throughout
cross-examination, the State showed Rix the images and again displayed
them to the jury at length, confirming that they depicted children.
Following Rix’s testimony, jurors submitted questions about the images,
asking (1) “How can this many images be on your personal computer
without your knowledge?” and (2) “Why do you have photos of naked
young girls on your electronics? How did they get there?” The superior
court did not ask Rix these questions.

2 CP in the context of this image is taken to mean child pornography.

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Opinion of the Court

E. The Superior Court Rejected Rix’s Arguments That State v.
Moninger Barred Sentencing Him for What He Claimed Was
One Course of Conduct, and That Double Jeopardy Barred
His Prosecution.

¶13 At the close of the State’s case-in-chief, Rix moved to dismiss
Count Two based on State v. Moninger, 251 Ariz. 487 (App. 2021). Rix
argued that multiple convictions and sentences for a single “continued”
series of conversations with the undercover persona violated the
proscription against double jeopardy. The superior court denied the
motion, finding the month-long gap between Rix’s communications with
the undercover persona created two distinct offenses. The court thus found
Moninger did not apply. Rix re-urged this argument after trial, contending
that he could not receive consecutive sentences for one ongoing course of
conduct. The court concluded that the counts represented two distinct
offenses and could be punished separately.

¶14 After the parties rested, the superior court instructed the jury
as to the elements of attempt, then informed them that “[t]he crime of sexual
exploitation of a minor requires proof that the defendant knowingly
possessed any visual depiction in which a minor was engaged in exploitive
exhibition or other sexual conduct. It is not a defense to prosecution that
the other person was an adult posing as a minor.” The court defined
“exploitive exhibition” as “the actual or simulated exhibition of the genitals
or pubic or rectal areas of any person for the purpose of sexual stimulation
of the viewer.” Though Rix objected to the use of the word “simulated” in
the definition of “exploitive exhibition,” he did not object to the phrase
“rectal areas” or argue that it could lead to juror confusion. The court
provided a limiting instruction for the other-act evidence, and an
instruction that the jury must reach unanimous verdicts and “decide each
count separately on the evidence with the law applicable to it.”

¶15 In closing argument, the State discussed the sexually
exploitive material, noting that the thumb drive contained “just a sampling
of images” located on Rix’s devices. The State argued that Rix committed
the charged offenses in an effort “to increase his collection of child sex abuse
material.” The State went on to argue that Counts One and Two were
based on evidence Rix “attempted to receive photos of a 13-year-old’s
genitalia on two occasions.” Rix countered in his closing that the State
failed to prove he knowingly possessed sexually exploitive material,
criticizing the investigation and warning the jury not to be confused by the
State’s focus on other-act evidence. Rix also argued that he only intended

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Opinion of the Court

to communicate with adult females, and never believed the undercover
persona to be underage.

¶16 The jury found Rix guilty as charged. The superior court
imposed the minimum term of five years’ imprisonment for Count One, to
be followed by a term of lifetime probation for Count Two. Rix timely
appealed, and we have jurisdiction under Article 6, Section 9, of the Arizona
Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

A. The Superior Court’s Admission of Copious Other-Act
Evidence, Consisting Mostly of Highly Inflammatory
Images Removed From and Significantly More Disturbing
and Graphic Than Those Rix Sought From the Undercover
Officer, Was Error.

¶17 Rix first contends that the superior court abused its discretion
by admitting sexually exploitive other-act images under Rule 404(c). We
review the admission of such evidence for an abuse of discretion, State v.
Garcia, 200 Ariz. 471, 475, ¶ 25 (App. 2001), and will reverse the court’s
ruling only upon a finding of clear prejudice, State v. Ayala, 178 Ariz. 385,
387 (App. 1994). We rarely find the clear prejudice required to reverse
under Rule 404(c).3 This, however, is the outlier case. The State swamped

3 See, e.g., State v. Severin, 2 CA-CR 2022-0045, 2023 WL 2206545, at *2,
4–5, ¶¶ 7, 19–24 (Ariz. App. Feb. 24, 2023) (mem. decision) (affirming
admission of other-act testimony that the defendant pleaded guilty to
receiving child pornography where the charged items were “substantially
similar”); State v. Andrews, 2 CA-CR 2019-0192, 2020 WL 5754480, at *2–3,
¶¶ 7–12 (Ariz. App. Sept. 25, 2020) (mem. decision) (affirming cross-
admissibility of other-act testimony where the jury only heard written
descriptions of the sexually exploitive videos, reducing the prejudicial
impact); State v. Hoyle, 1 CA-CR 18-0109, 2018 WL 5269795, at *2–3, ¶¶ 10–
16 (Ariz. App. Oct. 22, 2018) (mem. decision) (affirming the admission of
limited other-act testimony that thousands of “similar but uncharged
images” were found on the defendant’s devices to prove he knowingly
possessed the charged images, and “no unduly prejudicial specifics were
admitted”); State v. Vitasek, 1 CA-CR 12-0050, 2017 WL 525963, at *5, ¶¶ 25–
28 (Ariz. App. Feb. 9, 2017) (mem. decision) (affirming the admission of
other-act testimony regarding uncharged sexual contact with charged
victims and other children, where the superior court properly precluded

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Opinion of the Court

the jury with such a quantity of shocking and disturbing material that was
meaningfully removed in content from the offensive material Rix sought
from the undercover persona that clear prejudice occurred, requiring
reversal.

¶18 Generally, Rule 404(b) prohibits the admission of “other
crimes, wrongs, or acts” “to prove the character of a person in order to show
action in conformity therewith.” Ariz. R. Evid. 404(b)(1). An exception to
this general rule, Rule 404(c) allows the admission of other-act evidence “if
relevant to show that the defendant had a character trait giving rise to an
aberrant sexual propensity to commit the offense charged.” Ariz. R. Evid.
404(c). Before admitting evidence under Rule 404(c), the court must find
the following:

(A) The evidence is sufficient to permit the trier of fact to find
that the defendant committed the other act.

(B) The commission of the other act provides a reasonable
basis to infer that the defendant had a character trait giving
rise to an aberrant sexual propensity to commit the crime
charged.

(C) The evidentiary value of proof of the other act is not
substantially outweighed by danger of unfair prejudice,
confusion of issues, or other factors mentioned in Rule 403.

Ariz. R. Evid. 404(c)(1)(A)–(C). As we discuss below, it is the “unfair
prejudice” component of Rule 404(c)(1)(C), which echoes Rule 403, that we
address here.

¶19 When determining under Rule 404(c)(1)(C) whether the
probative value of proffered evidence is substantially outweighed by the
danger of unfair prejudice from its admission, the court must also consider,
among other relevant factors, the similarities or dissimilarities between the
other act and the charged crime. Ariz. R. Evid. 404(c)(1)(C)(i)–(viii). An
other-act case predating the enactment of Rule 404(c) provides sound

information regarding bestiality that appeared unreliable). But see State v.
Lane, 2 CA-CR 2008-0283, 2009 WL 2480730, at *3-5, ¶¶ 8–14 (Ariz. App.
Aug. 13, 2009) (mem. decision) (finding abuse of discretion where other-act
testimony involved uncharged sexual acts involving a “hot dog and
bestiality” that were “vastly dissimilar” and “were more outrageous than
the acts alleged” in the case).

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Opinion of the Court

guidance here, explaining that while an “exact replication” of the charged
offense is not required, to be admitted, the other act must be similar to the
charged crime. State v. Lopez, 170 Ariz. 112, 117 (App. 1991). Thus, in Lopez,
the parallels between the other-act evidence and the charged crime were
striking:

In this case, the similarities between the uncharged and the
charged acts were numerous: in each of the uncharged acts,
defendant made sexual advances to an adolescent male
between the ages of 14 and 16; in each of the cases, defendant
made promises to procure a woman or girl to have sex with
the boy; in each case the victim had been offered or had
actually obtained employment with defendant. Finally, two
of the other boys suffered a sexual assault while under
defendant's supervision. These similarities were sufficient to
allow the evidence at trial.

Id. Evidence need not be as closely similar to the charged acts as was true
in Lopez to be admitted, but Lopez sets out a useful benchmark by providing
one example of similarity sufficient to justify the admission of other-act
evidence.

¶20 This other-act analysis is informed by Rule 403. See
Comment, Ariz. R. Evid. 404 (“Subsection (1)(C) of the rule requires the
court to make a Rule 403 analysis in all cases.”) Although the superior court
has broad discretion in admitting relevant evidence, the court must weigh
the danger of unfair prejudice from the evidence against its probative value.
State v. Bocharski, 200 Ariz. 50, 56, ¶ 27 (2001). Put another way, Rule 403
teaches that relevancy is a necessary but not sufficient condition to admit
evidence. See State v. Chapple, 135 Ariz. 281, 288 (1983). Under it, the court
should exclude even relevant evidence if it “has an undue tendency to
suggest decision on an improper basis, such as emotion, sympathy, or
horror.” State v. Mott, 187 Ariz. 536, 545 (1997). Thus, in a case predating
Rule 403 but applying its concepts, it was error to admit particularly
gruesome or inflammatory images, which, taken together with the State’s
“inflammatory rhetoric in [the] closing argument, may have inflamed the
jury into acting out of passion rather than logic.” State v. Beers, 8 Ariz. App.
534, 540 (1968) (finding reversible error where the admitted images
depicted “the nude, bruised body of the deceased, without sufficient
evidence to connect the bruises to the death of the child”).

¶21 In State v. Salazar, we considered whether the superior court
abused its discretion in admitting detailed testimony from victims of three

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Opinion of the Court

uncharged sexual assaults as other-act evidence. 181 Ariz. 87, 88–89 (App.
1994). The charged crime involved attempted molestation of a child,
committed against one victim. Id. at 88. Looking to the history of other-act
or sexual propensity evidence, we acknowledged its exceptional nature as
an avenue to prove character, and resulting efforts to narrowly define when
it may be used. Id. at 90 (citing State v. McFarlin, 110 Ariz. 225, 228 (1973)).
We noted that “Arizona courts have recognized in other contexts the value
of eliminating irrelevant or inflammatory detail and limiting evidence to its
probative core.” Id. at 92. Though the evidence in Salazar was relevant to
the charged crime, we found that the court erred by considering admission
of the other-act evidence “as an all-or-nothing proposition without
considering appropriate restraints.” Id. We recognized that, given the
nature of sexually aberrant acts, they run the risk of being “so highly
prejudicial as to be ‘nearly dispositive, making the guilty verdict almost a
formality.’” Id. at 93 (quoting State v. Treadaway, 116 Ariz. 163, 167 (1977)).
As a result, the admission of extensive other-act testimony, with no limit on
“extraneous and unduly prejudicial” facts, allowed the State to “luxuriate
in inflammatory detail” and resulted in reversible error. Id. at 92–93.

¶22 In reaching the decision in Salazar, we pointed to other
jurisdictions and their handling of “unnecessarily inflammatory” sexual
propensity evidence. Id. at 92. We noted that, in United States v. Harvey, 991
F.2d 981 (2d Cir. 1993), a circuit court reversed a conviction for the knowing
receipt of child pornography because the superior court admitted “detailed
evidence that defendant possessed other videotapes depicting people
engaged in bestiality, sadomasochism, and acts involving human waste.”
Id. In Harvey, the circuit court found that the videotapes “did not bear on
the disputed trial issues” and had been offered “to create disgust and
antagonism” for the defendant. 991 F.2d at 996. The circuit court concluded
that the jury would not have convicted the defendant “in the absence of the
prejudicial evidence gratuitously presented by the prosecutor.” Id. at 997.
Using Harvey for guidance, we came to a similar conclusion in Salazar,
finding reversible error based on the admission of unbridled, highly
prejudicial sexual propensity evidence. 181 Ariz. at 92–93. We noted that
the key, and often overlooked, inquiry is “whether the evidence can be
narrowed or limited to protect both parties by minimizing its potential for
unfair prejudice while preserving its probative value.” Id. at 92. Although
Rule 403 generally favors admissibility, rules concerning other-act or sexual
propensity evidence “have a different thrust, and the suppositional balance
no longer tilts toward admission.” Id. at 91.

¶23 State v. Coghill is likewise instructive. 216 Ariz. 578 (App.
2007). There, the superior court admitted evidence that the defendant

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Opinion of the Court

possessed adult pornography in a trial concerning sexual exploitation of a
minor. Id. at 582, ¶¶ 11–12. Noting that evidence the defendant regularly
downloaded material from the internet showed his willingness and ability
to do so in committing the charged crimes, the fact that some of the material
contained adult pornography “had no special relevance to show
knowledge, opportunity, or intent.” Id. at 583–84, ¶¶ 16–18, 27. Finding
the court committed reversible error in failing to adequately minimize the
risk of unfair prejudice, we stressed the importance of “removing
unnecessary inflammatory detail from other-act evidence before admitting
it.” Id. at 583, 586, ¶¶ 17–19, 33. Our decision in this case aligns with the
holdings in Salazar and Coghill.

¶24 The first subpart of Rule 404(c)(1) asks a straightforward
question the superior court correctly resolved — whether the evidence is
sufficient to allow the trier of fact to conclude that Rix committed the other
act — owning the sexually exploitive, other-act images. See Ariz. R. Evid.
404(c)(1)(A). The court correctly found that the State presented sufficient
proof Rix knowingly possessed sexually exploitive material at the time of
his arrest. See A.R.S. §§ 13-3551 (defining terms applicable to sexual
exploitation offenses), -3553(A)(2) (statutory elements of sexual exploitation
of a minor). Detectives found ownership material linking Rix to the
electronic devices containing the images at issue, and by his own
admission, they belonged to him. A forensic examination of the devices
showed Rix collected and had recently accessed the sexually exploitive
material, which depicted children under the age of fifteen. This was
sufficient proof Rix committed the other acts. See Ariz. R. Evid. 404(c)(1)(A);
State v. Aguilar, 209 Ariz. 40, 49, ¶ 30 (2004) (recognizing the clear and
convincing evidence standard of proof for other-act evidence).

¶25 The second subpart of Rule 404(c)(1) asks a different question
— whether the commission of the other act provides a reasonable basis to
infer that Rix had a character trait “giving rise to an aberrant sexual
propensity to commit the crime charged.” Ariz. R. Evid. 404(c)(1)(B).
Again, Rix has shown no error in the superior court’s resolution of this
question. In determining the second element, “the question is not whether
the other act per se involves abnormal or aberrant conduct,” but whether the
evidence creates “a reasonable inference that the defendant had a character
trait that gives rise to an aberrant sexual propensity to commit the charged
sexual offense.” Aguilar, 209 Ariz. at 48, ¶ 27 (citing Ariz. R. Evid.
404(c)(1)(B)). It is therefore important to consider the similarity of the other
act to the charged crime. Id. The charged crimes involved Rix’s attempt to
receive two images of a thirteen-year-old girl’s genitalia, both of which
would constitute “[e]xploitive exhibition,” A.R.S. § 13-3551(5). The State

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Opinion of the Court

elicited testimony that Rix possessed thousands of sexually exploitive
images and videos, admitting 23 images as “examples” of his collection.
Within the large number of examples the State introduced were a number
of images of the exploitive exhibition of the genitalia of underage females.
While telling the jury of the existence of these images would have
“provide[d] a reasonable basis to infer that the defendant had a character
trait giving rise to an aberrant sexual propensity to commit the crime
charged,” showing the jury the images likewise reinforced that inference.
For that reason, we agree with the superior court’s conclusion that Rule
404(c)(1)(B) supported the admission of those images of exploitive
exhibition.

¶26 We find an abuse of discretion, however, in the superior
court’s resolution of the third question posed by Rule 404(c)(1)—whether
“[t]he evidentiary value of proof of the other act is . . . substantially
outweighed by danger of unfair prejudice, confusion of issues, or other
factors mentioned in Rule 403.” See Ariz. R. Evid. 404(c)(1)(C). The
evidentiary value of the proof of Rix’s other acts — here, his possession of
other sexually exploitive images of children mostly far younger than
thirteen and mostly performing sexual acts, thus taking them far beyond
the images of exploitive exhibition Rix sought — was far outweighed by the
danger of unfair prejudice.

¶27 Fifteen of the twenty-three images the State presented to the
jury depicted far more than what Rix sought. These very disturbing images
depict group sex, oral and anal sexual contact, and bestiality, in the form of
a young child fellating a dog. Most of the images were of “prepubescent”
subjects, even though Rix was charged with seeking two exploitive images
of a pubescent child. Two of the images even depicted adult male hands
manipulating the genitalia of a toddler. In deciding whether the prejudice
from these images substantially outweighed their probative value, the court
was required by Rule 404(c)(1)(C) to consider the “remoteness of the other
act” — here, the very different types of images — and also the “similarity
or dissimilarity of the other act,” both comparative inquiries. See Ariz. R.
Evid. 404(c)(1)(C)(i), (ii). These fifteen images are highly dissimilar to those
Rix was charged with seeking. They were extremely prejudicial, and far
less probative than the eight images of exploitive exhibition the State
displayed at trial that substantially corresponded to those Rix sought.

¶28 We are not suggesting that the State cannot or should not
show the jury representative examples of child pornography in a case such
as Rix’s. Had the evidence been limited to the State to describing the nature
and amount of Rix’s sexually exploitive material, with the court only

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Opinion of the Court

admitting representative images depicting content similar to that which Rix
requested from the undercover persona, the other-act evidence would
certainly have been acceptably probative, even in relation to the high
degree of prejudice to Rix inherent in such content.

¶29 But that is not what happened. In a clear appeal to the disgust
they would inevitably arouse, the jury was subjected to extremely
disturbing images of very young girls subjected to anal sex, graphic group
sex, bestiality, and other sexual conduct, with the State’s witness narrating
the horrific images to the jury, describing most of the victims in the images
as either “prepubescent” or potentially “a toddler.” As in Salazar, the State’s
presentation lingered on and accentuated highly inflammatory details,
“creat[ing] overwhelming prejudice against the defendant.” See 181 Ariz.
at 92 (finding prejudicial error where prosecution ”luxuriate[d] in
inflammatory detail”). The degree of dissimilarity and logical remoteness
of these other images from what Rix was charged with seeking was so great
that the prejudice from the parade of vile images swamped their probative
value. This is especially so given our counsel in Salazar concerning “the
value of eliminating irrelevant or inflammatory detail and limiting
evidence to its probative core.” Id. at 92.

¶30 Nothing in the briefing or the record cures this problem. The
State does not argue harmless error. See State v. Bible, 175 Ariz. 549, 588
(1993) (“The State has the burden of convincing us that error is harmless.
. . . ”). To the extent the superior court instructed the jury on the proper use
of other-act evidence, we cannot say the instructions mitigated the unfairly
prejudicial, voluminous nature of the other-act evidence in this case. See
State v. Terrazas, 189 Ariz. 580, 584 (1997) (observing other-act evidence
could influence a jury’s decision despite a cautionary instruction).

¶31 Our conclusion that admitting a large number of other-act
images that are significantly different from, and even more disturbing than,
those the defendant was charged with seeking subverts the jury’s
decisionmaking process accords not only with Rule 404(c)(1)(C) but also the
decisions of other jurisdictions. See, e.g., Minch v. Commonwealth, 630 S.W.3d
660, 666–69 (Ky. 2021) (finding reversible error based on the prejudicial
impact of admitting 40 uncharged sexually exploitive images, noting that
“[c]ases involving child pornography and sexual abuse of children are
highly emotional and capable of inflaming the jury. So the superior court’s
role as a gatekeeper monitoring the admission of unduly prejudicial
evidence is of utmost importance”); People v. Falsetta, 21 Cal. 4th 903, 916–
20 (1999) (requiring the trial court to conduct a “careful weighing process”
in admitting other-act or sexual propensity evidence and consider “the

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Opinion of the Court

availability of less prejudicial alternatives to its outright admission, such as
admitting some but not all of the defendant’s other sex offenses, or
excluding irrelevant though inflammatory details surrounding the
offense”).

¶32 Separate and independent from our analysis of the admission
of the materials under Rule 404(c)(1)(C), we caution all in our legal system
who must work with sexually exploitive material about the potential for
revictimization in the unnecessary display of these images. Sexually
exploitive material “not only harms children in its production, but also
‘causes the child victims continuing harm by haunting the children in years
to come.’” State v. Berger, 212 Ariz. 473, 477, ¶ 18 (2006) (quoting Osborne v.
Ohio, 495 U.S. 103, 111 (1990)); see also Improving the Response to Victims of
Child Pornography, The National Center for Victims of Crime (Dec. 19, 2014),
https://victimsofcrime.org/doc/Policy/improving-response-to-vcp_full-
report.pdf?sfvrsn=2 (noting that, “unlike other victims of sexual abuse, for
whom the abuse is usually completely in the past, victims depicted in child
pornography can suffer ongoing, daily experiences of victimization”). We
thus remind all participants in our justice system that excessive use of these
images subjects both victims and jurors to unnecessary harm.

B. The Superior Court Properly Denied Rix’s Motion to
Dismiss Count Two.

¶33 Rix next claims the superior court abused its discretion by
denying his motion to dismiss Count Two as multiplicitous, subjecting him
to double jeopardy. We review double jeopardy claims and issues of
statutory interpretation de novo. State v. Powers, 200 Ariz. 123, 125–26, ¶¶ 5,
8 (App. 2001).

¶34 Multiplicity occurs when a defendant is charged with a single
offense in multiple counts, raising “the potential for multiple punishments,
which implicates double jeopardy.” Id. at 125, ¶ 5. The statutory definition
of an offense “determines the scope of conduct for which a discrete charge
can be brought, which the United States Supreme Court has referred to as
the allowable unit of prosecution.” State v. Jurden, 239 Ariz. 526, 529, ¶ 11
(2016) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221
(1952)). When multiple convictions stem from violations of the same
statute, we must determine whether the convictions are based on separate
and distinct acts. Blockburger v. United States, 284 U.S. 299, 301–03 (1932). If
so, the separate and distinct acts may be punished separately. Id.

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Opinion of the Court

¶35 Relying on Moninger, Rix argues Counts One and Two
constituted one course of conduct, resulting in only one violation of the
sexual exploitation of a minor statute. See A.R.S. § 13-3553(A)(2). In
Moninger, the State charged the defendant with multiple counts of luring a
minor for sexual exploitation under A.R.S. § 13-3554(A) based on a series of
conversations with an undercover persona over the course of several days,
each involving the defendant’s solicitation for sexual intercourse. 251 Ariz.
at 489–90, ¶¶ 3–4. Interpreting the “language and context” of the statute,
along with “its history, purpose, and effects, we conclude[d] [that] the use
of ‘solicit’ in A.R.S. § 13-3554(A) refers to a course of conduct, meaning a
statement or series of statements requesting sexual conduct.” Id. at 492, ¶
14. We reasoned that the crux of “the issue is not whether [the defendant]
discussed sexual conduct on each date alleged in the indictment but
whether those solicitous acts comprised a single course of conduct or
several.” Id. at 499, ¶ 44. Because all the conversations referred to the “same
sexual encounter” with the undercover persona, we concluded that the
defendant engaged in a single course of conduct and could only be charged
with one luring offense. Id. at 498–99, ¶¶ 41, 45.

¶36 Here, the State charged Rix with two counts of attempted
sexual exploitation of a minor, based on separate requests for images of the
undercover persona’s genitalia in April and May 2019. In pertinent part,
“[a] person commits attempt if, acting with the kind of culpability
otherwise required,” that person “[i]ntentionally engages in conduct which
would constitute an offense if the attendant circumstances were as such
person believes them to be . . . .” A.R.S. § 13-1001(A)(1). Under A.R.S. § 13-
3553(A)(2), “[a] person commits sexual exploitation of a minor” if he
receives or possesses “any visual depiction in which a minor is engaged in
exploitive exhibition or other sexual conduct.” Our courts have recognized
the legislature’s intent to criminalize each sexually exploitive “visual
depiction” or image to deter the production of such material and the
continuing harm suffered by the victims depicted. Berger, 212 Ariz. at 473–
74, 477–78, ¶¶ 2–3, 19–23 (2006); State v. McPherson, 228 Ariz. 557, 560, ¶ 6
(App. 2012). Thus, double jeopardy does not bar separate charges and
punishments for multiple images, even if identical. State v. Valdez, 182 Ariz.
165, 170–71 (App. 1994).

¶37 There is no multiplicity where, as here, the evidence is
sufficient to show the commission of separate and distinct acts, “each of
which is a crime in its own right regardless of what occurred prior to or
thereafter.” State v. Bruni, 129 Ariz. 312, 320 (App. 1981) (citation omitted).
In April 2019, Rix attempted to receive an image of a thirteen-year-old’s
genitalia. Rix’s interaction with the persona concluded when the requested

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Opinion of the Court

image was not sent. Then, in May 2019, more than one month later, he
initiated a new and separate interaction with the persona, during which he
made a second attempt to receive a similar image. Had Rix been successful
on both occasions, the sexual exploitation of a minor statute would have
allowed prosecutions for both images, even if they were identical. See
Valdez, 182 Ariz. at 170–71. The charged crimes in the current case are
therefore distinguishable from the “single course of conduct” in Moninger.
The two counts were not based on communications regarding the “same
sexual encounter,” but on separate requests for sexually exploitive images
that would each constitute a crime in their own right. Despite the fact that
the counts represent similar types of requests, they did not comprise a
single course of conduct. Additionally, we note that the State argued the
two requests for images supported the respective counts and the court
instructed the jury that it was to decide each count separately. We generally
presume the jury follows the court’s instructions. See State v. Payne, 233
Ariz. 484, 518, ¶ 151 (2013). Rix’s convictions and sentences did not violate
his double jeopardy protections.

C. The Jury Instruction on Exploitive Exhibition Was Proper.

¶38 Rix next contends that the court’s inclusion of “rectal areas”
in the “exploitive exhibition” jury instruction resulted in a duplicitous
charge. A duplicitous charge occurs if “the text of an indictment refers only
to one criminal act, but multiple alleged criminal acts are introduced to
prove the charge,” thus creating the possibility of a less than unanimous
verdict. State v. Klokic, 219 Ariz. 241, 244, ¶ 12 (App. 2008). A criminal
defendant has the constitutional right to a unanimous jury verdict, so that
a violation of this right constitutes fundamental error. Ariz. Const. art. 2, §
23; State v. Delgado, 232 Ariz. 182, 188, ¶ 19 (App. 2013). We do not assess
jury instructions in a vacuum, instead looking to the instructions as a whole
and in conjunction with counsel’s closing argument. State v. Bruggeman, 161
Ariz. 508, 510 (App. 1989). The sole purpose of jury instructions is to
correctly inform jurors of the applicable law. State v. Noriega, 187 Ariz. 282,
284 (App. 1996).

¶39 Because Rix did not object to the instruction at trial, he waived
all but fundamental error review. See State v. Valles, 162 Ariz. 1, 6 (1989).
To obtain relief on fundamental error review, a defendant bears the burden
of proving that an error occurred and that the error either prejudiced him,
or “was so egregious that he could not possibly have received a fair trial.”
State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

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Opinion of the Court

¶40 Rix claims that the jury instructions on “exploitive exhibition”
allowed the jury to render a non-unanimous verdict based on evidence he
told the undercover persona he wanted to see both her genitalia and her
“sexy ass.” Tracking the statutory language and the Revised Arizona Jury
Instructions (“RAJI”), the court’s definition included the “[e]xploitive
exhibition” of “genitals or pubic or rectal areas.” See A.R.S. § 13-3551(5);
RAJI Stat. Crim. 35.51(5) (6th ed. 2022). In closing argument, the State
briefly referred to Rix’s statement that he wanted to see the undercover
persona’s “sexy ass,” contending it established his sexual motivation in
obtaining images of her genitalia. The State argued Rix’s requests for
images of genitalia from April and May 2019 constituted the charged crimes
in each count. Though the phrase “sexy ass” can arguably have various
colloquial meanings, the State did not use the phrase in its literal sense and
did not directly argue it meant “rectal areas.”

¶41 Taken together, the court’s instruction that jurors must reach
unanimous verdicts as to each count, the evidence used to prove the
charged crimes at trial, and the State’s focus in closing argument ensured
the jury reached unanimous verdicts. Because there is no reason to believe
the challenged language in the “exploitive exhibition” instruction impacted
the jury’s verdict, we find no error, much less fundamental error. See
Delgado, 232 Ariz. at 188, ¶ 19.

D. The Superior Court’s Jury Instruction on the Undercover
Persona Tracked Controlling Statutes and Was Proper.

¶42 Rix finally argues the court erred by instructing the jury that
it was “not a defense to prosecution that the other person was an adult
posing as a minor,” claiming the instruction incorrectly stated the law.
Because Rix did not object to the instructions, we again review only for
fundamental, prejudicial error. Escalante, 245 Ariz. at 140, ¶ 12.

¶43 We review de novo whether jury instructions correctly state
the law. State v. Orendain, 188 Ariz. 54, 56 (1997). We consider the
instructions in their entirety and will not reverse a jury verdict based on an
erroneous instruction unless the instructions, taken as a whole, could
reasonably mislead a jury. State v. Gallegos, 178 Ariz. 1, 10 (1994). If a jury
instruction is “substantially free from error,” the defendant generally
suffers no prejudice from its wording. Id.

¶44 The State charged Rix with two counts of attempting to
sexually exploit a thirteen-year-old undercover persona, both of which
constituted dangerous crimes against children under A.R.S. § 13-705. See

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Opinion of the Court

A.R.S. §§ 13-705(F), (N), (R), -1001(A)(1), -3553(A), (C). Section 13-705
provides, in relevant part, that “[i]t is not a defense to a dangerous crime
against children that the minor is a person posing as a minor or is otherwise
fictitious.” A.R.S. § 13-705(S). The challenged jury instruction tracked the
language of the applicable statutes and adequately identified the essential
elements of the charged crimes. See State v. Rios, 217 Ariz. 249, 251, ¶ 9
(App. 2007) (rejecting a challenge to jury instructions when they mirrored
the governing statutes). We also agree with the State that the jury
instructions did not relieve the State of its burden of proof, as Rix contends.
As the State argues, the jury instructions required the State to prove beyond
a reasonable doubt that Rix knowingly attempted to receive visual
depictions of a person he believed to be a thirteen-year-old minor engaged
in exploitive exhibition. Accordingly, this assertion of error fails.

CONCLUSION

¶45 For the reasons set forth above, we reverse Rix’s convictions
and remand the case for a new trial consistent with this opinion.

AMY M. WOOD • Clerk of the Court
FILED: AA

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