State v. Fattouch

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL ALFRED FATTOUCH, Appellant.

No. 1 CA-CR 25-0150
FILED 12-10-2025

Appeal from the Superior Court in Mohave County
No. CR-2024-00236
The Honorable Douglas Camacho, Commissioner

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Christine A. Davis
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
 STATE v. FATTOUCH
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Andrew M. Jacobs joined.

C A T L E T T, Judge:

¶1 Michael Alfred Fattouch (“Fattouch”) appeals after a jury
found him guilty on eight counts of sexual exploitation of a minor. He
argues the superior court erred by admitting other acts evidence, amending
two counts in the indictment, and instructing the jury on concealment. We
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The United States Department of Homeland Security
(“Department”) identified an IP address, located at Fattouch’s apartment,
as having been used to download child sexual abuse material (“CSAM”).
The Department obtained a search warrant, went to Fattouch’s apartment,
and interviewed him. During the interview, Fattouch told the Department
he views adult pornography. He explained he sometimes received “pop-
ups,” but he immediately deleted and shredded images he did not like.
Shredding a file, as compared to deleting a file, is a “[m]ore thorough” way
of removing traces of it from a computer. Fattouch admitted to being
knowledgeable about computers and using peer-to-peer sharing software.
Fattouch said he used sharing software to download 70s sitcoms, but he
also mentioned multiple key words typically used to search for CSAM. He
told the Department that if he downloaded CSAM, it was by accident. The
Department forensically searched Fattouch’s computer and found CSAM.

¶3 In February 2024, a grand jury indicted Fattouch on eleven
counts of sexual exploitation of a minor for possessing CSAM. The State
eventually agreed to dismiss three of those counts, reducing the number of
counts to eight.

¶4 Before trial, the State notified the court and Fattouch that it
intended to introduce other acts evidence under Arizona Rule of Evidence
404(b). The State intended to introduce 24 additional CSAM videos, 11,970
thumbnail images of larger video files, and the names of other files found
on Fattouch’s computer. The State said the purpose for introducing other

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acts evidence was to “prov[e] knowledge, intent and absence of mistake or
accident” because the evidence would show that Fattouch “intentionally
. . . downloaded, viewed, and saved CSAM images, and then deliberately
deleted them to prevent discovery of his illegal actions.”

¶5 The court held an evidentiary hearing. A Department
employee testified he found CSAM videos and thumbnails in the
unallocated space of Fattouch’s computer. The unallocated space is where
a file ends up when a user attempts to delete it from their computer. The
employee then checked the names of files accessed through the peer-to-peer
sharing software on Fattouch’s computer. Examples of the file names
included “PTHC 2012 4yo LISA Fuck-and-Cum-in-Pussy,“ “Emma 4yo ukr
(Real Good),” and “4YO Beautiful Blonde Gets in Mouth.” The employee
found similar file names in Fattouch’s internet search history.

¶6 Fattouch objected to the evidence, arguing it was unclear
when the files were deleted and introducing over eleven thousand images
would confuse the jury and be misleading, cumulative, and prejudicial.
The State argued the very act of deleting the files demonstrated Fattouch
“possessed something he knew he shouldn’t” and the file names “make it
very obvious what is depicted[.]” The State suggested it could clarify to the
jury that Fattouch did not possess over eleven thousand unique images
because the thumbnails were individual portions of four or five additional
videos.

¶7 The superior court found the other acts evidence admissible
to show Fattouch’s intent to download and to prove that downloading was
no mistake or accident. The court prohibited the State from showing the
jury any videos or images comprising other acts evidence. But it allowed
the State to elicit testimony about the file names found on Fattouch’s
computer. The court said testimony clarifying that the thumbnails were
constituent parts of “far fewer videos” would reduce any prejudicial effect.
The court explained that merely mentioning that the Department found 24
additional videos containing CSAM would not create unfair prejudice.
And the court found more broadly that “the probative value [of this
evidence] would not be substantially outweighed by the danger of unfair
prejudice.”

¶8 At trial, to prove the eight counts against Fattouch, the State
played five videos and displayed three images found on his computer. A
Department employee testified that he also recovered approximately 24
additional videos of CSAM and eleven thousand thumbnail files in the
unallocated space on Fattouch’s computer. But the employee clarified the

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thumbnails were “just pieces of larger videos” totaling around “five or six”
in addition to the 24 “complete” videos found. He also testified that certain
files on Fattouch’s computer were deleted and shredded, which prevented
him from determining when they were downloaded or deleted.

¶9 The employee also described other file names found on
Fattouch’s computer. The employee explained that he found 63 files in
Fattouch’s internet history with titles such as: “Lolita 6Yo raped both
side.avi,” “Pedomom – parents fuck both with 10Yo girl.avi,” “Pedo
pthc_13yo sex 9.avi,” “[G] 2011 14yr fuck.mpg,” “(PTHC) 2012 4yo LISA
Fuck-and-Cum-in-Pussy.avi,” “Emma 4yo ukr (Real Good).avi,” “It’s good
forced sex MAP-NEW!! PTHC – Kids sex -- ptsc pthc kingpass hussyfan
babyj jenny babyshivid vicky r@ygold 13yo 12yo 11yo 10yo 9yo 8yo 7yo
6yo 5yo 4yo 3yo 2yo.mpg.” He also found 130 records in Fattouch’s
computer’s “locally-accessed files,” including file names such as: “(PTHC)
2012 4yo LISA Fuck-and-Cum-in-Pussy.avi,” “(PthC) – 10yr daughter 30
mins(1).mpg,” “4yo Kasandra deeptroat(1).mpg,” and “Pthc 2012 4Yo
Blowjob Sdc10676.avi.”

¶10 At that point, Fattouch objected to listing the file names,
arguing it was “cumulative” and “extremely prejudicial” when he was not
charged with possessing those videos. The court overruled the objection,
concluding the file names were admissible under Rule 404(b) to show “lack
of mistake or accident” and “possession.” The employee read two more file
names, “2016 -01 BroSis – Hot 16yo girl sucks 5yo brother.avi,” and “(PTHC
2012 4yo LISA Fuck-and-Cum-in-Pussy.avi.”

¶11 At the close of evidence, but before the court read the jury
instructions or the parties presented closing arguments, the State moved to
amend counts one and two in the indictment. The State requested to strike
from count one the language “in file number 579586” and “engaging in
sexual intercourse with an adult male.” The State proposed that amended
count one should say “on or about the 16th day . . . the defendant
knowingly possessed a visual depiction located on his computer a digital
video depicting a girl under 15 years of age, all in violation of statutes.” The
State also moved to amend count two to replace “engaging in sexual
intercourse with an adult male” with “engaging in exploitive exhibition.”

¶12 Fattouch objected to the amendments. The State argued
Fattouch was on notice because the original count cited to A.R.S. § 13-3553,
which lists the ways a defendant commits sexual exploitation of a minor.
The proposed amendment just removed an incorrect file name and
“superfluous language describing the conduct.” After the court said it did

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not understand Fattouch to be arguing a lack of notice, Fattouch’s counsel
clarified that he previously viewed the videos only enough “to know that
it was child porn and that is illegal” but not enough to determine if the
count’s language was correct. The court granted both motions to amend.

¶13 The State also requested a concealment instruction, but
Fattouch objected. Fattouch reiterated he deleted files when he observed
something “disgusting” and “didn’t want it on his computer.” He argued
that deleting files for that purpose is different than hiding evidence from
law enforcement. The State disputed Fattouch’s argument, saying Fattouch
knew the files were illegal and deleting them was concealment. The court
granted the instruction after concluding that the jury could reasonably infer
that Fattouch attempted to conceal evidence by moving files to unallocated
space (i.e. deleting them). The court instructed the jury as follows:

In determining whether the state has proved the defendant
guilty beyond a reasonable doubt, you may consider any
evidence of the defendant’s concealing evidence together
with all the other evidence in the case. You may also consider
the defendant’s reasons for concealing evidence. Concealing
evidence after a crime has been committed does not by itself
prove guilt.

¶14 The jury found Fattouch guilty on all eight counts. The court
sentenced him to 98 years in prison. Fattouch timely appealed; we have
jurisdiction. See A.R.S. § 12-120.21(A)(1).

DISCUSSION

I. Other Acts Evidence

¶15 Fattouch argues the court erred by allowing the State’s other
acts evidence because it was “unduly prejudicial.” We review the superior
court’s decision admitting evidence for an abuse of discretion. State v. Forde, 233 Ariz. 543, 559 ¶ 42 (2014). “Abuse of discretion is ‘an exercise of
discretion [that] is manifestly unreasonable, exercised on untenable
grounds or for untenable reasons.’“ State v. Wassenaar, 215 Ariz. 565, 570
¶ 11 (App. 2007).

¶16 Arizona Rule of Evidence 404(b) prohibits evidence of other
acts or crimes if offered only “to prove the character of a person in order to
show action in conformity therewith[.]” Ariz. R. Evid. 404(b)(1). But Rule
404(b)(2) allows other acts evidence to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”

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Ariz. R. Evid. 404(b)(2). The court “may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair
prejudice[.]” Ariz. R. Evid. 403. “But not all harmful evidence is unfairly
prejudicial” because “evidence which is relevant and material will
generally be adverse to the opponent.” State v. Schurz, 176 Ariz. 46, 52
(1993). When reviewing a trial court’s ruling, we “must look at the evidence
in the light most favorable to the proponent, maximizing its probative value
and minimizing its prejudicial effect.” State v. Kiper, 181 Ariz. 62, 66 (App.
1994).

¶17 Fattouch does not dispute that the State adequately proved he
engaged in other acts or that the State offered those acts for a proper
purpose. Citing State v. Rix, 256 Ariz. 125 (App. 2023), Fattouch argues only
that admitting the “extreme quantity” of files, along with the file names,
was “unduly prejudicial” and deprived him of a fair trial.

¶18 In Rix, the court allowed the State to show the jury for an
extended period fifteen other acts images of “very disturbing” CSAM that
were “highly dissimilar to those [the defendant] was charged with
seeking.” Id. at 134 ¶ 27. On appeal, we vacated the conviction, but we
acknowledged the court could have admitted “representative images
depicting content similar to that which Rix requested from the undercover
persona” even if there was a “high degree of prejudice to [the defendant]
inherent in such content.” Id. at 134-35 ¶ 28 (cleaned up).

¶19 Unlike in Rix, the superior court here performed its
gatekeeping function. The court prohibited the State from displaying any
other acts images or videos. The court concluded that allowing the State to
inform the jury that the Department found 24 CSAM videos—while
prohibiting the State from displaying those videos—would not create
undue prejudice. Rather than read the full list of file names found on
Fattouch’s computer, the court required the State to elicit testimony about
those file names. The court required the State to clarify for the jury that the
11,970 thumbnails on Fattouch’s computer were not individual images, but
actually “far fewer videos.” And the court instructed the jury it could not
use other acts evidence “to determine the defendant’s character or character
trait, or to determine that the defendant acted in conformity with the
defendant’s character or character trait and therefore committed the
charged offense.”

¶20 In all these ways, the court allowed other acts evidence to
serve its relevant purpose without causing undue prejudice. The court did
not abuse its discretion. See id. at 134–35 ¶ 28 (“Had the evidence been

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limited to . . . describing the nature and amount of . . . sexually exploitive
material . . . the other-act evidence would certainly have been acceptably
probative, even in relation to the high degree of prejudice . . . inherent in
such content.”).

II. Amending the Indictment

¶21 Next, Fattouch argues the court abused its discretion by
amending counts one and two in the indictment. A “grand jury indictment
limits the trial to the specific . . . charges stated[.]” Ariz. R. Crim. P. 13.5(b).
But a charge may be amended, even when a defendant objects, “to correct
mistakes of fact or remedy formal or technical defects.” Ariz. R. Crim. P.
13.5(b). “The charging document is deemed amended to conform to the
evidence admitted during any court proceeding.” Ariz. R. Crim. P. 13.5(b).

¶22 “A defect [in an indictment] may be considered formal or
technical when its amendment does not operate to change the nature of the
offense charged or to prejudice the defendant in any way.” State v. Bruce, 125 Ariz. 421, 423 (1980). If “the elements of one offense materially differ
from those of another—even if the two are defined in subsections of the
same statute—they are distinct and separate crimes.” State v. Freeney, 223
Ariz. 110, 113 ¶ 16 (2009).

¶23 Count one originally said:

Count 1: SEXUAL EXPLOITATION OF A MINOR, CLASS 2
FELONY

On or about the 16th day of January, 2020, in the
vicinity of 364 Rio Grande Court, #B, Bullhead City, Mohave
County, Arizona, [Fattouch] knowingly possessed a visual
depiction, in file #579586, located in on [sic] his computer, a
digital video depicting a girl under 15 years of age, engaging
in sexual intercourse with an adult male, all in violation of
A.R.S. §§ 13-3553, 13-3551, 13-701, 13-702, 13-705, and 13-801,
a Class 2 Felony.

The court amended count one by deleting “in file number 579586” and
“engaging in sexual intercourse with an adult male.”

¶24 Count two originally said:

Count 2: SEXUAL EXPLOITATION OF A MINOR, CLASS 2
FELONY

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On or about the 16th day of January, 2020, in the
vicinity of 364 Rio Grande Court, #B, Bullhead City, Mohave
County, Arizona, [Fattouch] knowingly possessed a visual
depiction, in file #579634, located in on [sic] his computer, a
digital video depicting a girl under 15 years of age, engaging
in sexual intercourse with an adult male, all in violation of
A.R.S. §§ 13-3553, 13-3551, 13-701, 13-702, 13-705, and 13-801,
a Class 2 Felony.

The court amended count two by removing “engaging in sexual intercourse
with an adult male” and replacing it with “engaging in exploitive
exhibition.”

¶25 Fattouch first argues that the court’s amendments were
impermissibly “substantive.” We disagree. The amendments did not
change the nature of the offenses charged against Fattouch. Subsection 13-
3553(A) defines “sexual exploitation of a minor” as knowingly committing
certain acts. At the time Fattouch was alleged to have committed his
offenses, § 13-3553(A) listed two acts constituting the crime. See A.R.S. § 13-
3553(A) (2008). Paragraph (A)(1) criminalized “[r]ecording . . . any visual
depiction in which a minor is engaged in exploitive exhibition or other
sexual conduct.” A.R.S. § 13-3553(A)(1) (2008). And paragraph (A)(2)
criminalized “possessing . . . any visual depiction in which a minor is
engaged in exploitive exhibition or other sexual conduct.” A.R.S. § 13-
3553(A)(2) (2008). By the time Fattouch was indicted in 2024, the legislature
had added a third act to the list. Paragraph (A)(3) prohibited “[p]ossessing
. . . a child sex doll[.]” A.R.S. § 13-3553(A)(3) (2023).1

¶26 There was never any dispute that the State had charged
Fattouch under (A)(2). At all times, including after the amendments, the
indictment accused Fattouch of violating that paragraph. The State never
accused Fattouch of recording a visual depiction of a minor engaging in
prohibited conduct (thereby violating (A)(1)) or possessing a child sex doll
(thereby violating (A)(3)). The State’s case relied solely on Fattouch
possessing CSAM, which only (A)(2) criminalizes.

¶27 And none of the amendments changed the elements the State
had to prove under (A)(2). See Freeney, 223 Ariz. at 113 ¶ 16. That

1 The legislature added a fourth act to § 13-3553(A) in 2025, but
that amendment is not relevant here because it did not become effective
until after Fattouch was charged and convicted. See 2025 Ariz. Sess. Laws,
ch. 23 § 2 (1st Reg. Sess.) (H.B. 2115).

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subsection required the State to prove beyond a reasonable doubt that
Fattouch (1) knowingly, (2) possessed, (3) a visual depiction, (4) of a minor,
(5) engaged in exploitive exhibition or other sexual conduct. See A.R.S. § 13-
3553(A)(2). Removing “in file number 579586” and “engaging in sexual
intercourse with an adult male” in count one and replacing “engaging in
sexual intercourse with an adult male” with “engaging in exploitive
exhibition” in count two did not change an element of the crimes. Whether
a video on Fattouch’s computer depicted exploitive exhibition or sexual
conduct, counts one and two still charged an (A)(2) offense because sexual
conduct includes sexual intercourse. See A.R.S. § 13-3551(11)(a). The court
correctly acknowledged the videos showed “either exploitive exhibition or
sexual intercourse.” Fattouch’s argument that the amendment was
substantive fails.

¶28 Second, Fattouch argues the court’s amendments deprived
him of notice of the crimes with which he was charged. Fattouch argues
the amendments prevented him from arguing that the videos did not depict
what the State claimed. But Fattouch’s trial counsel conceded that the State
allowed him before trial to review each of the videos underlying the charges
against Fattouch sufficiently “to know that it was child porn and that is
illegal[.]” That concession placed the videos squarely within paragraph
(A)(2), and there was never any suggestion in the amended indictment or
otherwise that the State accused Fattouch of any other crime.

¶29 Fattouch also argues he did not receive proper notice because
his counsel was permitted to view the videos underlying the State’s eight
charges only once at the prosecutor’s office. But any limitation on counsel’s
ability to view the videos stems from their content (CSAM), not from the
approved amendments to the indictment. “Rule 13.5(b) is limited to the
procedural requirements for amending indictments.” See Freeney, 223 Ariz.
at 114 ¶ 25. It does not provide an avenue to challenge whether the State
adequately disclosed evidence before trial. See id.

¶30 Finally, Fattouch has not shown the amendments prejudiced
him. Fattouch’s primary defense was that the CSAM at issue popped up
on his computer, and he immediately deleted it and thus did not knowingly
possess it. Fattouch does not explain how the amendments negatively
impacted that defense. Again, all involved knew throughout trial that the
State accused Fattouch of violating paragraph (A)(2). The State played the
videos underlying counts one and two to the jury, and Fattouch did not
dispute the videos contained CSAM. Fattouch instead focused his cross-
examination and argument on the theory that he did not knowingly possess
CSAM because he immediately deleted it when it popped up on his

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computer. The amendments did not impact Fattouch’s ability to cross-
examine the Department employees—the State’s two witnesses—to
support his theory that he did not knowingly possess CSAM, or his ability
to argue that defense to the jury. Cf. State v. Johnson, 198 Ariz. 245, 248–49
¶¶ 12–13 (App. 2000) (prejudice existed because the defendant was
prevented from challenging an inconsistent statement or conducting a
proper cross examination).

¶31 Because amending the indictment did not change the
elements of the criminal acts charged and Fattouch has not demonstrated
insufficient notice or prejudice, his challenge fails. See Freeney, 223 Ariz. at
114–15 ¶¶ 27–28.

III. Concealment Instruction

¶32 Finally, Fattouch argues the court violated his due process
rights by instructing the jury on concealment. See supra ¶ 13. Specifically,
he argues that, although videos and images were in the unallocated space
of his computer, that does not mean he deleted files or concealed evidence.
“A party is entitled to a jury instruction on any theory the evidence
reasonably supports.” State v. Brock, 248 Ariz. 583, 590 ¶ 16 (App. 2020).
We review the court’s decision to give a concealment instruction for an
abuse of discretion. State v. Haywood, 257 Ariz. 472, 480 ¶ 33 (App. 2024).

¶33 “[C]oncealment after a crime . . . bears on the issue of the
defendant’s consciousness of guilt.” State v. Weible, 142 Ariz. 113, 116
(1984). The court may instruct on concealment when there is evidence
supporting an “inference that the accused utilized the element of
concealment[.]” State v. Smith, 113 Ariz. 298, 300 (1976).

¶34 We have explained that a concealment instruction does not
create a due process violation when it includes permissive, not mandatory,
language that the jury “may consider any evidence” and that concealment
alone is insufficient to prove guilt. State v. Foster, 258 Ariz. 472, 487 ¶¶ 61–
63 (App. 2024). Here, the court’s concealment instruction included both
statements. So the instruction did not violate due process.

¶35 We also reject Fattouch’s argument that there was insufficient
evidence for a concealment instruction. Fattouch admitted he was
knowledgeable about computers, knew how to shred files, and had done so
in the past. One of the Department employees testified he found CSAM
with its metadata shredded in the unallocated space on Fattouch’s
computer, so the Department could not determine when the files were
downloaded or deleted. Although Fattouch presented contrary evidence

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explaining why he deleted and shredded files, there was reasonable
evidence supporting a concealment instruction.

CONCLUSION

¶36 We affirm Fattouch’s convictions.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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