State v. McGee

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIMOTHY BURTON MCGEE, Appellant.

No. 1 CA-CR 24-0133

FILED 12-12-2024

Appeal from the Superior Court in Maricopa County
No. CR2020-122860-001
The Honorable Jacki Ireland, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
 STATE v. MCGEE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe
joined.

C A T L E T T, Judge:

¶1 Timothy Burton McGee (“McGee”) appeals his convictions
and sentences for ten counts of sexual exploitation of a minor. McGee
argues the State attacked his credibility based on his religious beliefs in
violation of Article 2, Section 12 of the Arizona Constitution; the superior
court improperly considered his lack of remorse in sentencing; and
cumulative prosecutorial error undermined his right to a fair trial.
Although we conclude that the State committed error by attacking McGee’s
credibility based on his religious beliefs and the superior court erred in
considering McGee’s lack of remorse during sentencing, we affirm because
McGee has not shown prejudice or cumulative error.

FACTS AND PROCEDURAL HISTORY

¶2 Between November 2019 and April 2020, Dropbox submitted
three cyber tips to the National Center for Missing and Exploited Children
(the “Center”) regarding child sexual exploitation material (“Exploitation
Material”) found in two Dropbox accounts. The Center referred the tips to
a detective at the Phoenix Police Department who determined that McGee
accessed the Dropbox accounts from devices connected to the internet at his
home, work, and church. The mobile IP address of McGee’s cellphone also
accessed those same Dropbox accounts.

¶3 In June 2020, detectives executed a search warrant at McGee’s
home. When questioned, McGee denied having a laptop, but the detectives
found a MacBook in the trunk of his car. A search of the laptop revealed
the presence of Exploitation Material, shortcuts and browser bookmarks to
Dropbox, a dark web browser, and cloud-sharing platforms used to
exchange Exploitation Material. The laptop also contained many personal
files belonging to McGee, including emails, his 2015 tax return, and his
resume.

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¶4 The detective assigned to the case sent ten files containing
Exploitation Material to Phoenix Children’s Hospital to be assigned a
sexual maturity rating. A nurse practitioner prepared a report indicating
that all ten files contained videos and images of Exploitation Material. The
report concluded that the children depicted in the files were all under
fifteen years of age and as young as under one year old. A grand jury
indicted McGee on ten counts of sexual exploitation of a minor based on
the ten files in the sexual maturity report. McGee waived his right to a jury
trial and the superior court conducted a bench trial.

¶5 At trial, the State questioned McGee regarding his church
attendance and religious beliefs. In the first line of questioning, the
prosecutor asked when McGee attended a particular church and whether
he still did so. McGee said that he attended the church between 2011 and
2020 but now attends a different church. The prosecutor later returned to
questions about McGee’s religion:

Q: Now, fair to say that -- let me -- I think I asked you this at the
beginning: You consider yourself a religious man?

(McGee’s Attorney): Objection. Relevance.

THE COURT: Overruled.

A: I do. I’m a Christian.

Q: And fair to say this type of material is, well, to put it lightly,
frowned upon?

A: Disgusting. Satanic, you might say.

Q: And fair to say that you also wouldn’t want to get in trouble,
right, sitting here today?

A: I mean, who wants to be in trouble?

THE COURT: I couldn’t hear you.

A: I said who wants to be in trouble. I guess. Yeah. It’s fair to
say, yeah.

¶6 The prosecutor also questioned McGee regarding his
leukemia diagnosis. She asked whether McGee ever told his attorney about
the diagnosis and, after McGee’s attorney objected based on relevance,
explained that her questioning went to McGee’s credibility because she had

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not received any documentation of the diagnosis. The court allowed the
question and McGee explained that his diagnosis came up in a personal
discussion with his attorney, but he did not remember when the discussion
occurred and did not realize it would be relevant.

¶7 The court found McGee guilty on all ten counts. McGee asked
the court to “not sentence over the presumptive [prison term]” and the State
requested a “slightly aggravated term.” In its sentencing recommendation,
the State noted that McGee “ha[d] not shown an ounce of remorse for his
actions.” It continued by listing the following aggravating factors: the
emotional and physical harm to each of the victims, their young age, the
need to deter possession and distribution of Exploitation Material, and the
lifelong humiliation of the victims whose childhood sexual abuse is forever
memorialized on the internet. The State acknowledged one mitigating
factor—these were McGee’s first felony convictions. For mitigation, McGee
asked the court to consider his lack of criminal history, lengthy work
history, family support, leukemia diagnosis, suicidal ideation, depression,
and that he was sexually abused as a child.

¶8 For aggravation, the court found that McGee possessed over
one hundred additional files with Exploitation Material that were not
charged, the files “involved videos of extraordinarily young children and
infants” being abused, and each child victim lives with “lifelong and
immeasurable harm.” The court also found “the defendant [had]
absolutely no remorse for his conduct.” For mitigation, the court found
McGee had no criminal history, had a job and family support, and lives
with leukemia. The court concluded that the aggravating and mitigating
factors balanced each other out and the presumptive term was appropriate
to protect the community and deter possession of Exploitation Material.
The court sentenced McGee to seventeen years on each of the ten counts, to
be served consecutively, with credit for presentence incarceration.

¶9 McGee timely appealed. We have jurisdiction under Article
VI, Section 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and 13-4033(A).

DISCUSSION

¶10 On appeal, McGee makes three primary arguments: (1) the
prosecutor erred by questioning McGee regarding his religious beliefs, (2)
the superior court erred by considering his lack of remorse during
sentencing, and (3) he was denied a fair trial because of cumulative
prosecutorial error. Because McGee failed to object to any of the alleged

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errors at trial, we review for fundamental, prejudicial error. State v.
Escalante, 245 Ariz. 135, 140 ¶ 12 (2018).

¶11 To succeed under fundamental error review, an appellant
must first establish there was an error at trial. Id. at 142 ¶ 21. Next, an
appellant must show that the error was fundamental because it (1) went to
the foundation of the case, (2) took away an essential right necessary to
demonstrate a viable defense or rebut the prosecution’s case, or (3) was so
egregious that he could not possibly have received a fair trial. Id. at 141–42
¶¶ 18–21. Finally, if the appellant relies on prong one or two, there must
be a separate showing of prejudice. Id. at 142 ¶ 21. “The [appellant] bears
the burden of persuasion at each step.” Id.

I. Questions Regarding McGee’s Religious Beliefs

¶12 McGee argues the State asked questions about his religious
beliefs to challenge his credibility in violation of Article 2, Section 12 of the
Arizona Constitution. Although McGee objected to the prosecutor’s line of
questioning based on relevance, he did not object based on Article 2, Section
12. Thus, we review for fundamental, prejudicial error. See State v. Montoya,
___ Ariz. ___, 554 P.3d 473, 487 ¶ 13 (2024) (“[R]aising one objection at trial
does not preserve [a different] objection on appeal.”) (citing State v. Long, 119 Ariz. 327, 328 (1978)).

A. Error

¶13 McGee asserts that the prosecutor erred by challenging his
credibility based on his religion. We agree. The Arizona Constitution
protects an individual’s liberty of conscience and prohibits “question[s]
touching his religious belief in any court of justice to affect the weight of his
testimony.” Ariz. Const. art. 2, § 12; see also Ariz. R. Evid. 610 (“Evidence of
a witness’s religious beliefs or opinions is not admissible to attack or
support the witness's credibility.”). This constitutional provision “is a
direct prohibition against questioning any witness as to his religious belief,
for the purpose of affecting his credibility.” State v. Thomas, 130 Ariz. 432, 436
(1981) (quoting Tucker v. Reil, 51 Ariz. 357, 363 (1938)) (emphasis added).
Our supreme court in Thomas reversed the appellant’s convictions because
the “victim’s testimony stood alone as evidence establishing the appellant’s
guilt” and her testimony was improperly bolstered by “repeated and
deliberate references to [her] religious nature.” 130 Ariz. at 436–37.

¶14 But questions touching on religion are not entirely off limits.
Instead, they “are admissible if offered for some legitimate purpose other
than attacking witness credibility.” State v. Towery, 186 Ariz. 168, 178 (1996).

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For example, questions probative of identity, modus operandi, or privilege
are proper even if they concern the witness’s religious beliefs. State v. Stone, 151 Ariz. 455, 459 (App. 1986) (concluding that questions regarding sacred
garments were proper for identifying the defendant even if “they relate[d]
somewhat to the credibility of both the victim and the petitioner”); State v.
Crum, 150 Ariz. 244, 246 (App. 1986) (concluding questions regarding the
chapel in appellant’s house and his position in the church properly
established his modus operandi with respect to abusing altar boys and
whether clerical privilege was properly invoked).

¶15 Here, the State claims the prosecutor’s questions regarding
McGee’s religious beliefs were not used to challenge his credibility and thus
no error occurred. The State is correct with respect to the first line of
questioning, but wrong as to the second.

¶16 The prosecutor first asked when McGee attended a particular
church and if he still was attending. McGee answered that he attended the
church from 2011 to 2020 but now attends a different church. These
questions did not attack or support McGee’s credibility as a witness; rather,
they were used to connect McGee to the many Dropbox logins from the
church’s IP address in 2019 and 2020.

¶17 The State’s second line of questioning, however, violated
Article 2, Section 12. The prosecutor asked McGee the following questions:
whether he is a “religious man,” whether the material he was accused of
possessing is “frowned upon,” and whether he did not want to “get in
trouble.” McGee responded that he is Christian, the material was
“[s]atanic,” and he did not want to be in trouble. The State argues that the
questions did not imply McGee was dishonest in his answers, but otherwise
offers no valid reason for asking them. Read together and in context, the
prosecutor used the questions to insinuate—no matter how McGee
responded—that at least one of McGee’s answers was untrue. Either
McGee was a faithful Christian who was lying about not possessing
Exploitation Material, or he was lying about being a faithful Christian to
minimize the chances of conviction. No matter how you slice it, the
prosecutor used McGee’s religious beliefs to attack his credibility. Thus,
the second line of questioning was error.

B. Fundamental Error

¶18 McGee argues, under prong one of the Escalante framework,
that the erroneous questioning went to the foundation of the case because
it directly affected a key factual dispute—his credibility—and denied him a

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constitutional protection—freedom from having his religious beliefs used
to attack his credibility. Fundamental error going to the foundation of the
case “relieves the prosecution of its burden to prove a crime’s elements,
directly impacts a key factual dispute, or deprives the defendant of
constitutionally guaranteed procedures.” Escalante, 245 Ariz. at 141 ¶ 18.

¶19 Here, McGee claims his credibility was a key factual dispute
and therefore the religious challenge to his credibility satisfies prong one.
The State concedes that if there was error, then it was fundamental. We
agree the error was fundamental, but on grounds different than McGee
urges. There was ample non-testimonial evidence supporting that McGee
possessed and accessed Exploitation Material, and thus the credibility of
McGee’s testimony was not as key as he believes. But, in any event, the
prosecutor’s questioning about McGee’s religious beliefs deprived him of a
constitutionally guaranteed procedure under Article 2, Section 12. Thus,
the error was fundamental. See Escalante, 245 Ariz. at 141 ¶ 18 (explaining
that error going to the foundation of the case “deprives the defendant of
constitutionally guaranteed procedures”).

C. Prejudice

¶20 Because McGee argues fundamental error under prong one of
Escalante, he must separately show prejudice. Id. at 142 ¶ 21. To
demonstrate prejudice, McGee must show that “without the error, a
reasonable jury could have plausibly and intelligently returned a different
verdict.” Id. at 144 ¶ 31. This is an objective standard and “excludes
imaginative guesswork.” Id. In considering whether an appellant has
shown prejudice, we consider the entire record, including the parties’
theories of the case and the amount of “error-free evidence supporting a
guilty verdict.” State v. Fierro, 254 Ariz. 35, 41–42 ¶ 21 (2022) (citation
omitted). Moreover, “judges are presumed to know the law and to apply it
in making their decisions.” State v. Lee, 189 Ariz. 608, 616 (1997). Hearing
erroneously elicited testimony does not necessarily mean a judge
considered it in rendering a verdict. In fact, we presume the opposite. State
v. Djerf, 191 Ariz. 583, 595 ¶ 41 (1998) (“We presume the trial court
disregards all inadmissible evidence in reaching a decision.”).

¶21 Here, McGee waived his right to a jury trial and agreed to a
bench trial. Thus, we consider whether the superior court, sitting as the
trier of fact, could have plausibly and intelligently returned a different
verdict without the erroneous questioning. See Escalante, 245 Ariz. at 144
¶ 31. McGee argues that, without the error, the verdicts “could have been
different because the trial court could have found him more credible[.]”

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McGee’s argument—which layers one “could have” upon another—asks us
to engage in the “imaginative guesswork” Escalante instructs us to avoid.
See id. As explained, only one of the State’s two lines of questioning about
McGee’s religion was erroneous, and that erroneous line of questioning was
fleeting. Moreover, the State did not later exploit McGee’s testimony. See
Fierro, 254 Ariz. at 43 ¶ 31 (“The State also did nothing to exploit the
erroneous instruction.”). McGee cites no evidence, and we have located
none in the record, supporting that the court considered his answers to the
single line of erroneous questioning in determining his credibility or guilt.
See Djerf, 191 Ariz. at 595 ¶ 41.

¶22 More importantly, the volume of error-free evidence showing
that McGee possessed and accessed Exploitation Material refutes the
existence of prejudice. Unlike in Escalante and Thomas, the State supported
its case here with much more than the erroneously admitted testimony. Cf.
Escalante, 245 Ariz. at 143 ¶ 27 (“In short, the linchpin of the State’s case
against Escalante [was the erroneous drug courier evidence].”); Thomas, 130
Ariz. at 436, 437 (“The victim’s testimony stood alone as evidence
establishing the appellant’s guilt” and the prosecutor erroneously bolstered
her credibility “by making repeated and deliberate references to the
religious nature of the victim.”). The error-free testimonial and forensic
evidence presented at trial amply supported that McGee possessed
Exploitation Material using Dropbox, that he accessed that material by
logging in from various devices, and that he also possessed and accessed
Exploitation Material on a MacBook. Given the quantum of error-free
evidence supporting McGee’s guilt, he has not shown that “without the
error, a reasonable [judge] could have plausibly and intelligently returned
a different verdict.” Escalante, 245 Ariz. at 144 ¶ 31; see also id. at ¶ 34 (“[T]he
amount of error-free evidence supporting a guilty verdict is pertinent to
that inquiry.”). Thus, McGee has failed to meet his “formidable burden” of
showing prejudice “warrant[ing] the ‘rare case’ remedy of reversal and a
new trial.” Id. at 145 ¶ 35.

II. Use of McGee’s Lack of Remorse at Sentencing

¶23 McGee argues the State’s use, and the court’s consideration,
of his lack of remorse at sentencing violated his right against compelled self-
incrimination. The State concedes fundamental error occurred but argues
McGee was not prejudiced.

¶24 To establish prejudice, McGee must show that “if the trial
court had not improperly considered his lack of remorse . . . the court could
have reasonably imposed a lighter sentence.” State v. Trujillo, 227 Ariz. 314,

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318 ¶ 16 (App. 2011). Again, this is an objective standard and we are not
permitted to engage in imaginative guesswork. Escalante, 245 Ariz. at 144
¶ 31. “[W]e look to the specific posture of the case to evaluate the
prejudicial impact of a fundamental error” during sentencing. Trujillo, 227
Ariz. at 319 ¶ 19.

¶25 Here, McGee asked the court not to impose a “sentence over
the presumptive [prison term],” while the State requested a “slightly
aggravated term.” Under A.R.S. § 13-705(F), the range of sentences the
court could have imposed for each of the ten counts was: a minimum of ten
years, a presumptive term of seventeen years, and a maximum of twenty-
four years. The court ultimately imposed the presumptive term of
seventeen years for each of the ten counts. In so doing, it once mentioned
McGee’s lack of remorse and instead focused its discussion of aggravation
on the “extraordinarily young children and infants being molested and
raped” as well as the more than one hundred additional files with
Exploitation Material that McGee was not charged with possessing. Cf.
Trujillo, 227 Ariz. at 319 ¶ 20 (finding prejudice when the court stated “no
less than five times that Trujillo . . . had shown no remorse for his conduct”
and “imposed significantly harsher sentences than those recommended by
the State.”). The record supports that the court would have imposed the
presumptive sentence even without consideration of lack of remorse. See
State v. Ramsey, 211 Ariz. 529, 543 n.7 ¶ 45 (App. 2005) (affirming
presumptive sentence, even when trial court referenced lack of remorse as
an aggravating factor, based on the “number of additional aggravating
factors the trial court cited”).

¶26 McGee asks us to apply State v. Pena, 209 Ariz. 503, 509 ¶ 23
(App. 2005), to conclude that omitting the lack of remorse aggravator
changes the “sentencing calculus” and therefore his sentence could have
been different. But Pena is inapposite. There, the court reviewed for
harmless error, so it was the State’s burden to prove that “absent the error,
the court would have reached the same result.” Id. at 507 ¶ 15; Montoya, 554
P.3d at 487 ¶ 12 (explaining that, under harmless error review, the State
must establish “beyond a reasonable doubt that the error did not affect [the
defendant’s] sentence”). But here, because McGee failed to object and
fundamental error review applies, he had the burden to prove prejudicial
error. He has not done so.

III. Cumulative Prosecutorial Error

¶27 McGee also argues we should vacate his convictions based on
cumulative prosecutorial error. To succeed on that claim, McGee must

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(1) assert cumulative error exists, (2) cite to the record where alleged errors
occurred, (3) cite to legal authority establishing that the errors constitute
prosecutorial error, and (4) set forth reasons why the cumulative error
denied him a fair trial. State v. Vargas, 249 Ariz. 186, 190 ¶ 14 (2020). We
only reverse based on cumulative error if it “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
State v. Robinson, 253 Ariz. 121, 143 ¶ 64 (2022) (quoting State v. Payne, 233
Ariz. 484, 511 ¶ 106 (2013)).

¶28 McGee alleges three instances of prosecutorial error: when the
prosecutor invaded the attorney-client privilege, attacked his credibility
based upon his religious beliefs, and urged the court to consider his lack of
remorse at sentencing. We address whether each instance constitutes error
and whether the cumulative error denied McGee a fair trial.

A. The Attorney-Client Privilege

¶29 McGee argues the prosecutor erred by invading the attorney-
client privilege when questioning him regarding his leukemia diagnosis.
At trial, the prosecutor asked whether McGee ever told his attorney about
the diagnosis. McGee’s attorney objected on relevance grounds, which the
court overruled.

¶30 McGee argues the prosecutor should not have asked about
discussions with his attorney because they were privileged. McGee,
however, fails to establish that the communication with his attorney about
his diagnosis was made to secure legal advice or that the communication
was made in confidence. Clements v. Bernini, 249 Ariz. 434, 439–40 ¶ 8 (2020)
(requiring that privileged attorney-client communication be made “to
secure or provide legal advice” and “in confidence”). Instead, McGee
testified that he disclosed his diagnosis while “talking to [his attorney] on a
personal level” after his attorney shared that his “father [also] had
leukemia.” McGee has not shown that the communication was privileged,
and we find no error.

B. McGee’s Religious Beliefs

¶31 We have concluded the prosecutor erred by questioning
McGee about his religious beliefs to attack his credibility. See Ariz. Const.
art. 2, § 12; Ariz. R. Evid. 610.

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C. Lack of Remorse at Sentencing

¶32 We have also concluded that the State’s argument and the
court’s consideration of McGee’s lack of remorse at sentencing was error.
The State urges us not to consider this error because it occurred during
sentencing. We need not decide whether we can consider prosecutorial
error during sentencing as part of cumulative error review. Even if we can,
McGee’s cumulative error claim fails.

D. Cumulative Effect of Errors

¶33 Having identified two instances of prosecutorial error, we
consider whether the cumulative effect of those errors “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.”
Robinson, 253 Ariz. at 143 ¶ 64. It did not. These were isolated instances of
non-prejudicial error (see supra ¶¶ 16, 19-21, 22-25), and the record does not
establish that the errors otherwise resulted in a trial infected with
unfairness. Thus, McGee’s cumulative prosecutorial error claim fails.

CONCLUSION

¶34 We affirm McGee’s convictions and sentences.

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

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