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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL SCOTT CUTRARA, Appellant.

No. 1 CA-CR 16-0685

Appeal from the Superior Court in Maricopa County

No. CR2015-141315-001 DT

The Honorable Richard L. Nothwehr, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jason Lewis

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Mikel Steinfeld

Counsel for Appellant

FILED 10-19-2017
STATE v. CUTRARA

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.

C R U Z, Judge:

¶1 Daniel Scott Cutrara appeals his convictions under Arizona 

Revised Statutes (“A.R.S.”) section 13-3506 for furnishing harmful items to 

minors, i.e., magazines depicting photographs of nude women. Cutrara 

claims the prosecutor misstated the law when she argued the jury could 

find Cutrara guilty for storing his pornographic magazines in a closet 

where minors found them, absent evidence Cutrara presented or offered

the magazines to the minors. Because we hold the prosecutor correctly 

stated the law, no fundamental, prejudicial error occurred, and we 

therefore affirm Cutrara’s convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 Cutrara was indicted on two counts of contributing to the 

dependency of a child, both Class 1 misdemeanors; two counts of 

furnishing obscene or harmful items to minors, both Class 4 felonies; 

molestation of a child, a Class 2 felony and dangerous crime against 

children; and sexual conduct with a minor, a Class 2 felony and dangerous 

crime against children.

¶3 At trial, Cutrara’s step-daughter K.S. and her friend S.G. (the 

“victims”), both under the age of sixteen, testified Cutrara gave them 

alcohol and brought out pornographic magazines from a closet to show

them as they sat together in the living room, even handing one of the 

magazines to K.S. The victims also testified Cutrara made inappropriate 

comments about women’s bodies and K.S.’s body.

¶4 Cutrara testified in his defense at trial. He admitted he kept

pornographic magazines in a closet, but denied showing them to the 

victims.

¶5 While settling jury instructions, the court made the following 

statements concerning mens rea, to which neither party objected:
STATE v. CUTRARA

Decision of the Court

3

So then it’s intentionally, or with intent to, defined. Intent, 

inference, knowingly defined. Included mental state. 

Knowingly. Recklessly defined. And by our agreement 

yesterday, it simply will read recklessly or reckless disregard 

means that the defendant is aware of and consciously 

disregards a substantial and unjustifiable risk that conduct

will result in conduct forbidden by law.

¶6 Later, in instructing the jury, the court defined “recklessly” as 

meaning “that a defendant is aware of and consciously disregards a 

substantial and unjustifiable risk that conduct will result in conduct 

forbidden by law. The risk must be of [sic] such that disregarding it is a 

gross deviation from what a reasonable person would do in the situation.” 

The jury was instructed regarding furnishing obscene and harmful items to 

minors as follows: 

Count 3 and 4 allege the crime of Furnishing Obscene or 

Harmful Items to Minors, and requires proof that the 

defendant, with knowledge of the character of the item 

involved, recklessly furnished, presented, provided, made 

available, gave, lent, showed, or distributed to a minor 

Playboy magazines, alleged to be an item that is harmful to 

minors. 

¶7 At closing, consistent with both victims’ testimony, the 

prosecutor argued Cutrara brought out pornographic magazines and 

showed them to the girls. However, given Cutrara’s testimony that he did 

not actively show the girls the magazines, the prosecutor also argued that 

“even if you think that the defendant did have the magazines in his closet, 

and was reckless about whether the girls could have found them, if the 

Playboys were harmful . . . you can still find him guilty on those furnishing 

counts.” Cutrara did not object.

¶8 The jury found Cutrara guilty on the counts of contributing to 

the dependency of a minor and furnishing obscene or harmful items to 

minors.1

¶9 This Court has jurisdiction of Cutrara’s timely appeal 

pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. 

§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

 

1 The jury acquitted Cutrara on the charges of molestation of a child 

and sexual conduct with a minor.
STATE v. CUTRARA

Decision of the Court

4

DISCUSSION

¶10 Because Cutrara did not object at trial to the prosecutor’s 

statement, this Court reviews his argument for fundamental error. State v. 

Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Fundamental error goes to the 

foundation of a case, takes from the defendant a right essential to his 

defense, and is of such magnitude that the defendant could not have 

received a fair trial. Id. To prevail under fundamental error review, “a 

defendant must establish both that fundamental error exists and that the 

error in his case caused him prejudice.” Id. at ¶ 20.

¶11 Cutrara argues the prosecutor committed fundamental, 

prejudicial error by misstating the law regarding the act required to convict

him under A.R.S. § 13-3506. According to Cutrara, A.R.S. § 13-3506 requires 

an affirmative act on the defendant’s part. He further contends the 

prosecutor misstated the law by arguing that “if [the jury] think[s] that the 

defendant did have the magazines in his closet, and was reckless about 

whether the girls could have found them, if the Playboys were harmful for 

a 14- or 15-year-old girl to look at, [the jury] can still find him guilty on 

those furnishings counts.”

¶12 Section 13-3506(A) provides:

It is unlawful for any person, with knowledge of the character 

of the item involved, to recklessly furnish, present, provide, 

make available, give, lend, show, advertise or distribute to 

minors any item that is harmful to minors.

A.R.S. § 13-3506(A) (Emphasis added.)

¶13 The prosecutor’s statement correctly advised the jury that, 

under A.R.S. § 13-3506(A), recklessly making harmful items available to 

minors is sufficient to convict a defendant of furnishing harmful items to 

minors.

¶14 Cutrara’s argument that A.R.S. § 13-3506 requires an 

affirmative step focuses on other various means by which a defendant may

violate the statute, i.e., by “provid[ing],” “giv[ing],” “lend[ing],” 

“show[ing],” “advertis[ing],” or “distribut[ing]” harmful materials to 

minors. To be sure, those verbs plainly imply affirmative acts by a 

defendant, and if the jury believed the victims’ testimony that Cutrara 

brought out the magazines from the closet and showed them to the girls, it 

could have convicted him for that conduct. But the State’s alternative 

theory was that Cutrara made the magazines available to the girls by 
STATE v. CUTRARA

Decision of the Court

5

recklessly leaving them in a closet where they could obtain them. On this 

theory, as the prosecutor argued, the jury could very well find Cutrara took 

affirmative steps in violation of the statute when he bought the magazines 

and placed them in the closet in such a manner that they were easily 

available to minors.

¶15 Cutrara is correct that the statute does not criminalize mere 

possession of harmful items by one who happens to live in a home with 

minors; as applied here, the statute criminalizes reckless conduct that 

results in a minor’s exposure to obscene or harmful materials. Therefore, 

even if the jury disbelieved the evidence that Cutrara showed the 

magazines to the victims, it could find Cutrara guilty if it found he 

recklessly stored harmful materials and thereby made them available to the 

victims.

CONCLUSION

¶16 Based on the foregoing, we hold the prosecutor correctly 

stated the law regarding A.R.S. § 13-3506, no fundamental error occurred,

and therefore affirm Cutrara’s convictions and resulting sentences.