State v. Hall

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

JON ANTHONY HALL, Appellant.

No. 1 CA-CR 22-0422
FILED 11-30-2023

Appeal from the Superior Court in Maricopa County
No. CR2016-153679-001
The Honorable Michael S. Mandell, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Brian R. Coffman
Counsel for Appellee

The Ardeo Law Group, PLLC, Tempe
By Kate Miller
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

F O S T E R, Judge:

¶1 Jon Anthony Hall appeals his conviction of ten counts of
sexual exploitation of a minor and the resulting sentences. For the following
reasons, the conviction is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 On November 17, 2016, the State charged Hall with ten counts
of sexual exploitation of a minor in violation of A.R.S. § 13-3553 based in
part on materials found on a computer in Hall’s home. Hall noticed a third-
party culpability defense, alleging that an acquaintance, Sherry Wheeler,
who was frequently in his home, used his computer to download the
material that was found therein. In preparation for his defense, Hall hired
an investigator, Robert Nalett. As part of his investigation, Nalett
interviewed a former housemate of Hall, Sean Steele, who would
purportedly corroborate the third-party culpability defense.

¶3 When Steele was first interviewed, he told Nalett that “one
day he was working outside on a car, and Wheeler was inside on his
computer.” Steele said he walked inside and saw Wheeler watching the
“most sick porno shit I’ve ever seen in my life.” Steele classified the video
as “revenge porn.” Steele reported that he kicked Wheeler out of his home
and later realized she had also stolen his phone. Nalett asked Steele if he
saw any child pornography when Wheeler was on the computer. Steele was
hesitant and said, “I don’t think so.”

¶4 Approximately a month and a half later, Nalett interviewed
Steele again after learning that he might have more information. During
that interview, Steele indicated that in addition to the “revenge porn” he
previously discussed, there were also 3 to 4 webpages that contained
videos. Steele stated that, after Wheeler left, he went to the computer and

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he saw open web pages with 12-, 13- and 14-year-olds on the videos. He
quickly clicked the videos off because he did not want to get into trouble.

¶5 In preparing for trial, the State interviewed Steele, who
described the “revenge porn” that he mentioned to Nalett but denied
observing any additional pornographic materials. Steele stated the
computer quit working six months later. When pressed for details on the
“revenge porn” video that Wheeler is alleged to have watched on Steele’s
computer, Steele was asked, “are you able to say whether or not that
involved any children in that, that video,” to which Steele replied, “I-I don’t
know. It’s – I’m gonna have to say ‘no.’”

¶6 Hall indicated he would be calling Steele as a witness to
corroborate the third-party culpability defense. The State moved to
preclude Steele’s testimony as potential hearsay and as irrelevant, because
Steele had never seen Wheeler inside Hall’s residence or using Hall’s
computer. The trial court denied the State’s motion but appointed Steele
counsel to ensure he was aware of the risks of “potentially admitting to a
potential crime.” After Steele’s counsel advised the parties that Steele
would invoke his Fifth Amendment rights, Hall indicated he would call
Nalett instead. Hall explained he would use Nalett’s testimony to elicit
statements made to him by Steele during interviews. The State objected to
the admission of Nalett’s testimony as impermissible hearsay and moved
to preclude his testimony.

¶7 Following oral argument, the court granted the State’s motion
to preclude Nalett’s testimony regarding statements made by Steele,
finding there was not sufficient corroborating circumstances to clearly
indicate the statement’s trustworthiness.

¶8 The trial proceeded and the jury returned a verdict, finding
Hall guilty of all ten counts of sexual exploitation of a minor. The court
sentenced Hall to 170 years in prison, and he timely appealed. This Court
has jurisdiction under A.R.S. § 12–120.21(A)(1), A.R.S. §13–4031, and A.R.S.
§ 13–4033(A)(1).

DISCUSSION

¶9 Hall attacks the superior court’s ruling excluding Nalett’s
testimony about Steele’s statements. The admissibility of evidence,
including admissibility of third-party culpability evidence is reviewed for
abuse of discretion. State v. Prion, 203 Ariz. 157, 161, ¶ 21 (2002); State v.
Robinson, 165 Ariz. 51, 56 (1990). The trial court’s ruling must be affirmed if

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it was correct for any reason supported by the record. State v. Moreno, 236
Ariz. 347, 350, ¶ 5 (App. 2014).

I. The Trial Court Acted Within Its Discretion By Excluding Hearsay
Statements That Were Neither Self-Inculpatory Nor Corroborated.

¶10 Hearsay is not admissible except in specific situations. Ariz.
R. Evid. 802. One of the specific exceptions to the rule allows for hearsay
evidence if the declarant is unavailable as a witness and the statement is
one that:

(A) a reasonable person in the declarant’s position would
have made only if the person believed it to be true because,
when made, it was so contrary to the declarant’s proprietary
or pecuniary interest or had so great a tendency to invalidate
the declarant’s claim against someone else or to expose the
declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case
as one that tends to expose the declarant to criminal liability.

Ariz. R. Evid. 804(b)(3).

¶11 Once Steele invoked his Fifth Amendment rights, he became
unavailable under the hearsay rule. Ariz. R. Evid. 804(a)(1); State v. LaGrand, 153 Ariz. 21, 27 (1987) (holding the defendant “was ‘unavailable’ within the
meaning of the Rules” when he “stated throughout pretrial proceedings
that he would not take the stand” and “[d]espite the absence of a formal
assertion of his Fifth Amendment right”). After determining that Steele was
unavailable under the rule, the inquiry then turns to whether the statements
were self-inculpatory and trustworthy. They were not.

A. The Hearsay Statements Were Not Self-Inculpatory Under
Rule 804(b)(3).

¶12 Hall argues Steele’s statements were against his interest
because as the State advised, Steele could be admitting to having child
pornography on his computer. Hall argues that Steele’s statements, which
included admitting to having seen someone view child pornography on his
computer and retaining that device for some time afterward, were contrary
to his self-interest and exposed him to potential criminal liability.

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¶13 For a statement to be admissible under Rule 804(b)(3), the
statement must be one that:

a reasonable person in the declarant’s position would have
made only if the person believed it to be true because, when
made, it was so contrary to the declarant’s proprietary or
pecuniary interest or had so great a tendency to invalidate the
declarant’s claim against someone else or to expose the
declarant to civil or criminal liability.

Ariz. R. Evid. 804(b)(3)(A). Hearsay statements that are not self-inculpatory
are not admissible, even if the declarant is unavailable as a witness. See
LaGrand, 153 Ariz. at 27. To be admissible as a statement against interest,
the hearsay statement must “‘tend’ to subject the declarant to criminal
liability.” State v. Tankersley, 191 Ariz. 359, 370, ¶ 46 (1998) (quoting
LaGrand, 153 Ariz. at 27) (holding that a person’s letter suggesting that he
had committed a homicide, was against his interest but was not admissible
because no other evidence linked him to the murder and therefore was not
corroborated), abrogated on other grounds by State v. Machado, 226 Ariz. 281
(2011).

¶14 Admitting to seeing someone view child pornography on his
computer does not amount to knowingly “[d]istributing, transporting,
exhibiting, receiving, selling, purchasing, electronically transmitting,
possessing or exchanging” child pornography. A.R.S. § 13–3553(A)(2), State
v. Jensen, 217 Ariz. 345, 351, ¶ 17 (App. 2008) (inadvertent or unexpected
receipt of child pornography is not a violation). Retaining that device for
some amount of time after discovering someone was using the device for
illegal purposes is not self-inculpatory, as Hall claims, without more
evidence. Steele never said whether the child pornography had been
downloaded or whether the child pornography was retained on his
computer in some way. Steele’s statements alone did not expose Steele to
criminal liability, but instead only implied that Wheeler may have
committed a crime. Accusing a third party of viewing child pornography
on a computer while not inculpating himself in any way was not against
Steele’s interest.

B. The Hearsay Statements Were Not Supported by
Corroborating Circumstances.

¶15 Hall also argues the statements were supported by
corroborating circumstances. The corroborating factors presented by Hall
were (1) Nalett confirmed during his investigation that Wheeler was a real

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person, (2) she has a social media presence, and (3) Hall and Wheeler were
connected via social media and exchanged numerous messages. Hall
argues these factors serve to corroborate that it was a common practice for
Wheeler to go to other people’s homes and use their computers to
download pornography.

¶16 Rule 804(b)(3) provides for the admission of inculpatory
statements made by an unavailable declarant if and only if the statement is
“supported by corroborating circumstances that clearly indicate its
trustworthiness.” Ariz. R. Evid. 804(b)(3). “[T]he primary goal of the
corroboration requirement in Rule 804(b)(3) is to prevent criminal suspects
from fabricating hearsay admissions to the crime by others.” Machado, 226
Ariz. at 285, ¶ 23. The trial court’s job is “not to determine whether [it]
believed the statement but only whether a reasonable juror ‘could’ find it
true.” State v. Mejias, 163 Ariz. 531, 532 (App. 1990) (holding that
codefendant’s hearsay confession which exculpated defendant was
admissible because he admitted guilt to the murder).

¶17 Taken as a whole, these factors do not support a finding that
Steele’s statements were self-inculpatory or otherwise corroborated a
relevant issue in Hall’s case. Steele’s statements did not reflect any
knowledge by Steele that Wheeler had ever used Hall’s computer. At best,
the evidence showed only that Wheeler may have been a social media
friend of Hall’s.

¶18 Hall contends Mejias had “facts most analogous to this case”
and permitted the admission of hearsay statements in a conspiracy to
commit murder case even though “there was no corroborating or
conflicting evidence.” But Mejias involved hearsay statements by a co-
defendant, and this Court held that admission of the hearsay statements
was appropriate even though “there c[ould] neither be corroborating nor
contradictory evidence” because only the two co-defendants could testify
as to what happened. Id. at 531–32. In such a case, “fundamental fairness”
required the jury to hear both versions of the events. Id. at 532. But, here,
Steele’s statements were not about the crime at issue. Steele’s statements
concerned a potential crime committed by a person other than Hall on a
different occasion and at a different location. Mejias provides no basis to
overturn the trial court’s ruling.

¶19 Hall also argues the trial court erred by focusing exclusively
on supporting evidence, without considering the complete lack of
contradictory evidence. But the record provides evidence of contradiction
in Steele’s statements.

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¶20 Steele told both Nalett and the State at various points that he
had not seen Wheeler watching child pornography, but he also stated that
he did see several pages open that contained child pornography. Just taking
Steele’s statements at face value, they are contradictory and belie any
indicia of trustworthiness.

¶21 The trial court stated it found no “supporting corroborating
circumstances that clearly indicate the truthfulness of these statements.” See
Ariz. R. Evid. 804(b)(3)(B).

¶22 Steele’s proposed hearsay statements would not have attested
to the truthfulness of Hall’s third-party culpability defense. There is no
evidence Steele provided that corroborated Wheeler downloaded and
viewed child sexual abuse material on Hall’s computer. Therefore, the trial
court acted within its discretion by excluding the hearsay statements.

CONCLUSION

¶31 For the foregoing reasons, this Court affirms Hall’s
convictions and sentences for all ten counts of sexual exploitation of a
minor.

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

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