NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVID WILLIAM CURTIS, JR., Appellant.

No. 1 CA-CR 11-0387

Appeal from the Superior Court in Maricopa County

No. CR2010-005771-001 DT

The Honorable Paul J. McMurdie, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Robert A. Walsh

Counsel for Appellee

Joel Erik Thompson, Phoenix

Co-Counsel for Appellant

Bruce W. Griffin, Flagstaff

Co-Counsel for Appellant
STATE v. CURTIS

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, 

in which Judge John C. Gemmill and Judge Randall M. Howe joined.

T H U M M A, Judge:

¶1 David William Curtis, Jr., appeals his convictions and 

sentences for fifteen counts of sexual exploitation of a minor and four

counts of molestation of a minor. Finding no reversible error, the 

convictions and sentences are affirmed.

¶2 The charges arose from a private citizen’s discovery of a 

flash drive in the parking lot of the Tempe Marketplace in May 2009. The 

flash drive contained multiple images of child pornography and was 

linked to Curtis. Further investigation resulted in the seizure of additional 

such images on digital media from Curtis’ home and a car parked in his 

home driveway, including images depicting Curtis molesting a child. 

¶3 Curtis, an attorney, represented himself at trial. Curtis 

defended on the basis that he had no sexual interest in children and had 

never molested a child; the evidence failed to prove he was ever in 

possession of the flash drive; the police might have planted images on the 

other media or manipulated data or the images might have been evidence

left over from his years as an attorney representing clients that he had not 

destroyed. 

¶4 Curtis testified at trial, stating that he did not recall seeing 

the images that formed the basis of the first ten counts in the indictment, 

but he had possessed items similar to the charged images in the course of 

representing clients facing criminal charges and in child-protection and 

custody cases. Curtis testified that he had had no such cases involving 

similar images after 2005, and that he had destroyed a chart linking 

evidence to the specific clients when he retired from the active practice of 

law in 2006. Curtis testified that none of the images had sexual stimulation 

as their purpose, he had never molested the child depicted in the images 

charged in Counts 12, 14 and 16, and the images in Counts 18 and 20, 

which gave rise to associated molestation counts, did not depict either him 

or the child identified as the victim. Curtis also testified that someone else 

might have planted the evidence for many of the counts.
STATE v. CURTIS

Decision of the Court

3

¶5 The jury convicted Curtis of nineteen of the twenty counts

he faced and the superior court sentenced him to ten years on each count, 

to be served consecutively, for a total of 190 years in prison. Curtis filed a 

timely delayed notice of appeal and this court has jurisdiction pursuant to 

Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -

4033(A)(1) (2014).1

I. Duplicitous Indictment And Charge To The Jury.

¶6 Curtis first argues that the indictment was duplicitous on its 

face because it failed to include the necessary specificity: that is, the 

exploitation counts failed to identify a digital address or pathway for the

charged images and the molestation counts and the testimony to the 

grand jury regarding those counts failed to describe a specific act. Curtis 

also argues that the superior court failed to timely rule on his pretrial 

motion to dismiss on grounds of duplicity, thereby depriving him of an 

opportunity to correct these defects.

¶7 After full briefing of his motion to dismiss, but before the 

superior court heard or decided the matter, Curtis withdrew the motion, 

stating “[w]ith the passing of over four months since the filing of the 

motion, the effect of the motion has been effectively mooted.” By this 

conduct, Curtis waived the challenges he now presses about claimed

flaws in the indictment. See State v. Anderson, 210 Ariz. 327, 335-36, ¶¶ 15-

17, 111 P.3d 369, 377-78 (2005) (holding failure to object to alleged defects 

in indictment before trial waived any objection); see also State v. Charo, 156 

Ariz. 561, 566, 754 P.2d 288, 293 (1988) (holding defendant invited any 

error in denial of motion to remand where motion denied as moot at 

defendant’s request). Moreover, the indictment was sufficiently specific. 

See generally Ariz. R. Crim. P. 13.2. The indictment identified the elements 

of each offense charged; the individual image title relevant to each 

exploitation count (and in most cases, the location of the media on which 

it was found); the conduct giving rise to the molestation counts (as did the 

testimony presented to the grand jury) and implicitly paired them with 

the exploitation counts depicting the alleged molestation. See State v. Far 

W. Water & Sewer Inc., 224 Ariz. 173, 187, ¶ 36, 228 P.3d 909, 923 (App. 

2010) (“An indictment is legally sufficient if it informs the defendant of the 

essential elements of the charge, is definite enough to permit the 

 1 Absent material revisions after the relevant dates, statutes cited refer to 

the current version unless otherwise indicated.
STATE v. CURTIS

Decision of the Court

4

defendant to prepare a defense against the charge, and affords the 

defendant protection from subsequent prosecution for the same offense.”).

¶8 Curtis also argues the State switched images and substituted

other acts for the charged offenses, and that the superior court did not 

properly rule on evidentiary issues or properly instruct the jury, resulting 

in duplicitous charges being presented to the jury, with the resulting 

uncertainty that “the jurors unanimously agreed upon a single factual act 

or event” and risk of conviction for uncharged offenses. A criminal 

defendant has the constitutional right to a unanimous jury verdict. Ariz. 

Const. art. 2, § 23. The possibility of a less than unanimous verdict may 

occur when the indictment charges an offense based on one act, but the 

State offers evidence of a different act that satisfies the definition of the 

charged crime, a circumstance sometimes referred to as a duplicitous 

charge. State v. Klokic, 219 Ariz. 241, 244, ¶ 12, 196 P.3d 844, 847 (App. 

2008). This court reviews the superior court’s admission of evidence for 

abuse of discretion. State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853, 858 

(1990). This court reviews the adequacy of jury instructions in their 

entirety to determine if they accurately reflect the law, State v. Hoskins, 199 

Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000), recognizing that “[c]losing 

arguments of counsel may be taken into account when assessing the 

adequacy of jury instructions,” State v. Bruggeman, 161 Ariz. 508, 510, 779

P.2d 823, 825 (App. 1989) (citation omitted).

¶9 The record does not support Curtis’ argument that the State 

switched images and substituted other acts for the charged offenses. The 

verdict forms for the exploitation counts mirrored the indictment (as 

amended) by identifying the title of each of the charged images, the media 

on which the image was discovered and where that media was found, a 

procedure Curtis acknowledged at trial would “take care of the 

duplicitous issue.” With three exceptions, the titles inscribed on the back 

of the hard copies of the charged images also mirrored the titles charged 

in the indictment and listed on the verdict forms. The three exceptions

consisted of a typographical error (a single letter discrepancy) of no 

material significance, given the absence of any other images admitted at 

trial with the same title. Curtis has not shown that the single letter 

discrepancy involving these three charges (Counts 1, 2 and 20) resulted in 

the submission of duplicitous charges to the jury. Among other things, the 

jury asked about the single letter discrepancy in the name on the hard 

copy of the images for each of these three counts, and the superior court 

responded by referring them to the verdict forms.
STATE v. CURTIS

Decision of the Court

5

¶10 Nor has Curtis shown the charges submitted to the jury were 

duplicitous because the jury asked during deliberations whether the 

molestation charges were associated with specific images. In response, 

after conferring with the parties, the superior court instructed the jury that 

it was to “rely on the evidence, argument of counsel and the instructions 

given.” The verdict forms for the molestation counts identified the child’s 

name and the sexual contact alleged consistent with the “to-wit” 

designation in the indictment.2

¶11 Similarly, Curtis has not shown that the superior court 

abused its discretion or created the risk of a less than unanimous verdict

by allowing a detective to testify that the charged images were also found 

on other media seized pursuant to a search warrant, and by allowing the 

State to admit in evidence 23 uncharged images. As discussed in Section V 

below, the superior court acted within its discretion by admitting the 

uncharged images after Curtis opened the door to such evidence in 

claiming he possessed many of the images in his capacity as a lawyer, and 

by cross-examining the case agent on what evidence he could offer to 

show Curtis possessed the charged images. The distinction between the 

charged images, their discovery on other media and the uncharged 

images properly was maintained throughout trial, including in closing 

arguments. 

Moreover, both parties linked each 

molestation count by evidence, testimony and argument to the charged 

image in the count depicting the molestation. 

¶12 The record fails to support Curtis’ claims that the State 

misled the jury by allowing a forensic detective to switch titles in 

testifying about the image titles charged in Counts 12, 14, 18 and 20. On 

this record, the detective’s reference when testifying about Count 14 to 

“cheare197.jpg,” instead of the charged image of “cheare196.jpg” as 

identified in the prosecutor’s question, is not evidence of a deliberate 

attempt by the State to switch images, but rather a slip of the tongue that 

was neither intentional nor significant in context. The detective’s reference 

to the charged image in Count 20 (“$R619N0.jpg”) as “$R6191NO,”

similarly was, at most, an insignificant mistake, particularly because only 

one image admitted at trial had this or a similar title.

 2 The type of sexual contact involved was omitted from the indictment 

and verdict form for Count 11, for which the related image in Count 12 

depicted the child manipulating her own genitals. 
STATE v. CURTIS

Decision of the Court

6

¶13 Curtis also has failed to show that the superior court abused

its discretion or created the risk of a less than unanimous verdict by 

allowing the detective to testify that he was able to discover the date that 

the deleted images in Counts 12, 18 and 20 were photographed, the socalled “EXIF” data, by searching for the files that would allow their 

retrieval from a computer recycle bin. The superior court acted within its

discretion in finding that Curtis had opened the door to this evidence by 

highlighting the absence of EXIF data for the charged images in crossexamination. Finally, the court is not persuaded by Curtis’ arguments, 

which he failed to raise during trial, that the State “falsified the forensic 

data” on the Nutcracker Suite 2006 photographs, that the State

deliberately “changed the sequence” of these images in a trial exhibit and 

that the State added unrelated photographs without foundation, thereby 

misleading the jury. 

¶14 The superior court properly instructed the jury that it was 

required to unanimously agree on each verdict, addressing each count 

separately. The jury instructions given, coupled with the verdict forms 

identifying the charged image or conduct and the parties’ arguments in 

closing, ensured that the jury reached unanimous verdicts on all charges.

On this record, the charges presented to the jury were not duplicitous.

II. Denial Of Motions To Suppress.

¶15 After Curtis filed various pretrial motions to suppress, the 

superior court held a four-day evidentiary hearing and then issued 

rulings. Curtis argues the court erred in denying five of his motions to 

suppress. In reviewing a denial of a motion to suppress, this court limits 

the review to the facts the superior court considered at the suppression 

hearing, State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996), 

viewed in the light most favorable to sustaining the superior court’s 

ruling, State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996). This court 

gives deference to the superior court’s factual findings, but reviews de 

novo whether the Fourth Amendment was violated. State v. Gonzalez–

Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). The superior court’s 

ruling will be affirmed if legally correct for any reason. State v. Canez, 202 

Ariz. 133, 151, ¶ 51, 42 P.3d 564, 582 (2002). 

A. Initial Warrantless Search Of Flash Drive.

¶16 Curtis argues the superior court erred in denying his first 

motion to suppress, which sought to suppress evidence discovered in an 

initial warrantless police search of a computer flash drive. The flash drive 
STATE v. CURTIS

Decision of the Court

7

was found in a parking lot at the Tempe Marketplace by a private

individual, who turned it over to the police after discovering what he 

described as “kiddie porn” on the flash drive. Curtis argues the police

lacked proper cause to conduct a warrantless search of the flash drive, that 

the warrantless search was impermissible because it differed from and 

exceeded the scope of the preceding private search by the individual who 

found the flash drive and that the warrantless search should not have 

been allowed to determine ownership of the flash drive.

¶17 The Fourth Amendment guarantees the right to be secure 

against unreasonable searches and seizures, and provides that no 

warrants shall issue except upon probable cause. U.S. Const. amend. IV.

“A ‘search’ occurs when an expectation of privacy that society is prepared 

to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 

113 (1984). Although a person retains no privacy interests in abandoned 

property, see Abel v. United States, 362 U.S. 217, 241 (1960), a person retains 

some privacy interests in lost or misplaced property, which are 

outweighed by the government’s interest in identifying and returning the 

property to its owner, see Gudema v. Nassau Cnty., 163 F.3d 717, 722 (2d 

Cir. 1998). 

¶18 The Fourth Amendment has no applicability to a search by a 

private individual not acting with the knowledge of, or as an agent for, the 

government. Jacobsen, 466 U.S. at 113. The government’s subsequent 

searches are permissible to the extent they do not exceed the scope of the 

private search and thus do not “infringe any constitutionally protected 

privacy interest that had not already been frustrated as the result of 

private conduct.” Id. at 115, 118-26 (holding government’s warrantless 

removal of plastic bags from cardboard tube in box, and chemical testing

of powder in innermost bag, was permissible because government’s 

search did not reveal anything more than it already knew from private 

search, and testing did not infringe any constitutionally protected privacy 

interests). A government official’s search of a computer disk does not 

exceed the scope of the prior private search simply because the 

government official examines more files than did the private party. United 

States v. Runyan, 275 F.3d 449, 464-65 (5th Cir. 2001) (holding, in case 

involving warrantless search of computer disks containing child 

pornography, that police did not exceed scope of private search by 

examining more files on each disk than did private search).

¶19 Based on the evidence and argument received at the fourday evidentiary hearing, the superior court found that the flash drive had 

been lost or misplaced, not abandoned. The court found that a private 
STATE v. CURTIS

Decision of the Court

8

party discovered the flash drive in a parking lot at the Tempe Marketplace 

and turned it over to police after reporting that he saw what he perceived 

to be “kiddie porn” on the flash drive. The court found that a police

detective opened folders on the flash drive to determine whether the 

photographs viewed by the private party were in fact prohibited under 

Arizona law. The court further found that the objectionable material was 

apparent as soon as the detective viewed the folders on the flash drive. 

The court also found that the detective’s warrantless search of the flash 

drive was no more extensive than the private party’s search. 

¶20 The superior court did not abuse its discretion in finding 

that the detective’s warrantless search of the flash drive was no more 

extensive than the search conducted by the private party. The private 

party testified that he saw thumbnail views of “kiddie porn” after he

viewed several folders on the flash drive. The detective who conducted a 

review to determine if images on the flash drive were prohibited under 

Arizona law testified that he quickly scrolled through thumbnail views of 

the contents of two folders before he opened a folder that displayed 

thumbnail views of at least four images of child pornography. The 

detective exited the program as soon as he confirmed child pornography 

was present on the flash drive. He later confirmed that child pornography 

was present in only that one folder, which contained 24,000 images, the 

majority of which was child pornography. On this record, the superior 

court did not err in finding that the detective’s search of the flash drive 

was no more extensive than that of the private party. See Runyan, 275 F.3d 

at 464-65; Jacobsen, 466 U.S. at 115, 118-26. For these reasons, the 

detective’s warrantless search of the flash drive “did not infringe any 

constitutionally protected privacy interest that had not already been 

frustrated as the result of private conduct” and, accordingly, did not 

violate Curtis’ Fourth Amendment rights. Jacobsen, 466 U.S. at 126.

B. Search Of Flash Drive Pursuant To Warrant.

¶21 Curtis argues the superior court erred in denying his second 

motion to suppress, which sought to suppress evidence discovered during 

a second search of the flash drive following the issuance of a search 

warrant. Curtis argues that the evidence should have been suppressed 

because the probable cause affidavit supporting the warrant relied on 

evidence from the warrantless search. Curtis also alleges that the affidavit 

in support of the warrant relied on “false statements of material facts,”

specifically that the private party had reported seeing “several pictures of 

what he believed to be underage children engaged in sex acts,” and that 
STATE v. CURTIS

Decision of the Court

9

the initial warrantless search revealed images showing a prepubescent 

female “having sexual intercourse with an adult male.”

¶22 “A trial court must suppress evidence seized pursuant to a 

warrant if a defendant proves, by a preponderance of the evidence, that 

the affiant knowingly, intentionally, or with reckless disregard for the 

truth made a false statement to obtain the warrant and that the false 

statement was necessary to a finding of probable cause.” State v. 

Nordstrom, 200 Ariz. 229, 245, ¶ 42, 25 P.3d 717, 733 (2001) (citing Franks v. 

Delaware, 438 U.S. 154, 155-56 (1978)), overruled on other grounds by State v. 

Ferrero, 229 Ariz. 239, 243, ¶ 20, 274 P.3d 509, 513 (2012). Innocent or 

negligent errors in an affidavit are not enough under Franks; proof is 

required that, at a minimum, the affiant entertained serious doubts about 

the truth of the avowals. State v. Carter, 145 Ariz. 101, 109, 700 P.2d 488, 

496 (1985). 

¶23 The record supports the superior court’s finding of “no 

evidence of falsehoods in the search warrant affidavit.” The four 

photographs from the flash drive providing the basis for the detective’s 

declaration that he saw images depicting a child engaged in sex with an 

adult reasonably support such a conclusion. In addition, the private 

individual testified that he told police that the pictures he viewed 

depicted “kiddie porn” (which he described as involving “preteen 

children who I think would not understand that physical contact with an 

adult”) and were “sexual in nature.” The detective could reasonably have 

interpreted these statements to refer to children engaging in sexual acts. 

For these reasons, Curtis’ argument that the evidence should be 

suppressed because the detective made false statements in the probable 

cause affidavit supporting the warrant fails.

C. Search Of Hard Drive And CD Discovered In Seized 

Property.

¶24 Curtis argues the superior court erred in denying his fifth 

motion to suppress, which claimed the police conducted a warrantless 

search of a portable hard drive discovered on the front passenger seat of a 

Honda Civic parked in his home driveway after the car had been towed to

a police impound lot. Curtis argues on appeal that the search warrants 

issued for the car and his residence did not cover the portable hard drive 

found in the Honda Civic and a CD found in a Fujitsu laptop computer in 

his bedroom, and the evidence therefore should have been suppressed.

Because Curtis did not ask the superior court to suppress the evidence 

discovered in a search of the CD found in the Fujitsu laptop computer on 
STATE v. CURTIS

Decision of the Court

10

the basis he raises on appeal, he bears the burden of demonstrating that 

any error was fundamental error resulting in prejudice. State v. Henderson,

210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). 

¶25 The initial search warrant for Curtis’ residence and the 

Honda Civic authorized police to examine and impound the car to 

ascertain if its interior matched photographs found on the flash drive and 

to seize computers and digital media found in the car and at the residence 

for later search by forensic examiners for evidence of images of the sexual 

exploitation of minors in violation of A.R.S. § 13-3553(A). A second search 

warrant judicially approved later in the day authorized the search and 

impoundment of a Hyundai that Curtis was driving the day of his arrest.

A third search warrant judicially approved the following day authorized 

police to search digital media and computers seized from the residence or 

the vehicles as identified in an attached Exhibit A. The detective who 

prepared the search warrants testified that he obtained the third warrant 

as a “precautionary” measure and inadvertently omitted the portable hard 

drive from Exhibit A discovered earlier that day in the Honda Civic.

¶26 The superior court concluded that the initial search warrant 

covering the Honda Civic and Curtis’ residence properly allowed the 

search of any seized digital media, including the late-discovered portable 

hard drive (notwithstanding the technical error in omitting that latediscovered portable hard drive from the list of seized items to be searched 

in Exhibit A to the third warrant). On appeal, Curtis has shown no error in 

the superior court’s conclusion. Moreover, the same analysis applies to the 

search of the CD in the Fujitsu laptop computer seized from Curtis’ 

bedroom, which was not discovered until sometime after the computer 

was seized. “[O]nce an item in an individual’s possession has been 

lawfully seized and searched, subsequent searches of that item, so long as 

it remains in the legitimate uninterrupted possession of the police, may be 

conducted without a warrant.” United States v. Burnette, 698 F.2d 1038, 

1049 (9th Cir. 1983). Here, police lawfully seized the Honda Civic and the 

laptop computer pursuant to the first warrant to allow time and a secure 

venue for a subsequent, more thorough search, including a comparison of 

the interior of the Honda Civic to the background of certain photographs, 

and to allow a forensic search of computers and other digital media. 

Because the portable hard drive and the CD in the Fujitsu laptop 

computer were discovered while the items were in the uninterrupted 

possession of the police pursuant to their execution of the first warrant, it 

was not necessary for police to obtain another warrant to conduct these 

searches. Under these facts and circumstances, the superior court did not 

err in refusing to suppress the evidence found on the portable hard drive, 
STATE v. CURTIS

Decision of the Court

11

or fundamentally err in failing to suppress the evidence found on the CD 

discovered in the Fujitsu laptop computer.

D. Execution Of Search Warrant 2009-003192.

¶27 Curtis argues Search Warrant 2009-003192 was overbroad as 

executed, because police “exceeded the extent of the probable cause upon 

which it was based” by seizing more than 120 items of computer memory

and other property “without first determining if it contained any illegal 

images or evidence of any crime.” Curtis raised this issue in a Motion to 

Suppress SW 2009-003192 and Motion to Controvert, filed after the fourday evidentiary hearing. Because the record does not reflect that the 

superior court explicitly ruled on this motion, the motion is deemed 

denied. See State v. Hill, 174 Ariz. 313, 323, 848 P.2d 1375, 1385 (1993).

¶28 The Fourth Amendment prohibits the issuance of general 

warrants that would lead to “exploratory rummaging in a person’s 

belongings.” Andresen v. Maryland, 427 U.S. 463, 480 (1976) (citation 

omitted). Instead, the Fourth Amendment requires that a warrant describe 

with particularity the things to be seized and searched. U.S. Const. amend. 

IV. This particularity requirement limits police to the search for, and 

seizure of, evidence of crimes for which the issuing court found probable 

cause. See State v. Alder, 146 Ariz. 125, 129, 704 P.2d 255, 259 (App. 1985).

¶29 In this case, the warrant furnished proper grounds for 

seizure and a later forensic examination of all computers and digital 

storage media at Curtis’ residence and in his vehicles to determine the 

source of the child pornography found on the flash drive linked to him, 

and to determine if Curtis possessed additional child pornography on 

other devices. The identification of child pornography as the offense for 

which evidence was sought provided “a sufficiently specific definition to 

focus the search.” United States v. Hay, 231 F.3d 630, 638 (9th Cir. 2000).

Nothing requires that “the warrant be tailored to obtain only that 

evidence already known to exist.” United States v. Banks, 556 F.3d 967, 973 

(9th Cir. 2009). When, as in this case, police did not know the source of the 

offending images on the flash drive, or on what computers additional 

images might have been stored, seizure of all of the computers to allow a 

later forensic search for child pornography was warranted. See Banks, 556 

F.3d at 973; Hay, 231 F.3d at 637. In this case, as in others, “[a]s a practical 

matter, the seizure and subsequent off-premises search of the computer 

and all available disks was about the narrowest definable search and 

seizure reasonably likely to obtain the images.” United States v. Upham, 168 

F.3d 532, 535 (1st Cir. 1999). Moreover, cognizant of Curtis’ profession as
STATE v. CURTIS

Decision of the Court

12

an attorney and apparent author, police assured the court issuing the 

warrant that they would take particular care to ensure that “no protected 

files or documents are opened or altered in any way,” and police 

subsequently performed a forensic search only for images (which might 

depict child pornography). Under these circumstances, the execution of 

Search Warrant 2009-003192 was not overbroad.

E. Subpoena Of Suppressed Bank Records.

¶30 Curtis argues that the fruit of the poisonous tree doctrine 

precluded the State from subpoenaing and introducing at trial the same 

bank records that police had originally obtained by a court order that was 

procedurally improper. The superior court, however, noted during 

argument on the original motion to suppress that the State could properly 

obtain the records by other means, and granted the motion to suppress 

“without prejudice to the State to lawfully obtain such records.” The court 

later denied Curtis’ motion to quash the State’s subpoena for the bank 

records, finding no bad faith on the part of the officers.

¶31 Evidence derived from an illegal search or seizure, the “fruit 

of the poisonous tree,” is subject to the exclusionary rule requiring 

suppression. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). The 

exclusionary rule, however, does not apply “to evidence initially 

discovered during, or as a consequence of, an unlawful search, but later 

obtained independently from activities untainted by the initial illegality,” 

or to evidence “that would inevitably have been discovered without 

reference to the police error or misconduct.” Murray v. United States, 487 

U.S. 533, 537, 539, 540-44 (1988); Nix v. Williams, 467 U.S. 431, 448 (1984). 

These “independent source” and “inevitable discovery” doctrines strike 

the proper balance of “putting the police in the same, not a worse, position 

that they would have been in if no police error or misconduct had 

occurred.” Nix, 467 U.S. at 432. Before obtaining Curtis’ bank records by a 

court order that was procedurally improper, the police had already 

obtained a credit report showing that Curtis maintained an account with 

the bank. The State’s knowledge that Curtis maintained a bank account

formed an independent basis for the subpoena of bank records, and also 

would have inevitably led to the discovery of the bank charge at issue. Cf.

Murray, 487 U.S. at 540-44 (discussing analysis). Accordingly, the superior 

court did not err in refusing to quash the subpoena for the bank records, 

and in allowing the admission into evidence for impeachment purposes, a 

page from the records showing Curtis’ debit card was used to purchase a 

Tempe Marketplace Harkins Theatre ticket a few days before the flash 

drive was found in the Tempe Marketplace parking lot. 
STATE v. CURTIS

Decision of the Court

13

III. Rulings On Law Office Computer Records.

¶32 Curtis argues the superior court erred by: (1) ruling that he 

could not use his investigator to search his law office and client files (from 

before his retirement in 2006) without waiving his clients’ attorney-client 

privilege, and (2) refusing to order the State to provide electronic copies of 

his computer files to his advisory counsel or investigator so that Curtis 

himself could search these files. 

¶33 Curtis has not cited to any portion of the record showing 

that the superior court ruled that he could not use his investigator to 

search his law office and client files without waiving his clients’ privilege.

The court suggested at an early pretrial hearing that such a waiver might 

occur but made no ruling because Curtis informed the court that he had 

instructed his investigator not to view client files. Accordingly, this 

argument lacks any record support on appeal.

¶34 Curtis’ argument that the superior court erred by refusing to 

order the State to provide electronic copies of his computer files to his 

advisory counsel or investigator so that Curtis himself could search the 

files also lacks merit. The State is required to make items otherwise 

prohibited by the statute criminalizing the sexual exploitation of children 

“reasonably available for inspection,” but requires reproduction or release

of such prohibited items only “[u]pon a substantial showing by a 

defendant that reproduction or release for examination or testing of any 

particular item is required for the effective investigation or presentation of 

a defense, such as for expert analysis.” Ariz. R. Crim. P. 15.1(j). This court 

reviews rulings on pretrial discovery issues for abuse of discretion.

Cervantes v. Cates, 206 Ariz. 178, 181, ¶ 11, 76 P.3d 449, 452 (App. 2003), 

superseded on other grounds by Ariz. R. Crim. P. 15.1(j).

¶35 Shortly after Curtis was indicted, the State provided notice 

that it would make all contraband available for Curtis’ inspection at the 

Maricopa County Attorney’s Office, the Tempe Police Department or 

another convenient or mutually agreed upon location. At a pretrial 

hearing less than a week after that notice, the State advised the superior 

court that its forensic examiner had copied the four terabytes (a large 

amount) of seized electronic data to one or more hard drives for 

examination by Curtis’ consulting expert. 

¶36 At a pretrial hearing three months later, the parties engaged 

in an extended discussion over whether the State could furnish a copy of 

the electronic data to Curtis for his consulting expert’s unsupervised 
STATE v. CURTIS

Decision of the Court

14

examination, in light of the known contraband and the potential for more 

contraband on the devices that the State had not viewed because of a court 

order protecting files subject to the attorney-client privilege. The court 

directed the prosecutor to prepare an order that would provide Curtis’ 

consulting expert with a read-only copy of the electronic files, with the 

proviso that the expert not copy any of the files, and return the copy when 

the review was finished. The record, however, does not reflect that any 

such order was prepared or signed or that Curtis ever complained about 

the absence of such an order. 

¶37 The record instead reflects that the following month, Curtis’ 

consulting expert was reviewing the hard drive containing the seized 

media. The court later adopted the prosecutor’s proposal that Curtis and 

his expert not be provided copies of the seized media containing 

contraband, but be allowed to inspect the evidence under the supervision 

of a deputy sheriff subject to a gag order, which Curtis agreed was “a 

perfectly acceptable procedure.” The record reflects that Curtis and a 

successor expert then reviewed the seized media on several occasions 

before and during trial. 

¶38 On this record, the State made the electronic media 

“reasonably available for inspection,” as required under Rule 15.1(j). The 

record demonstrates that Curtis received all of the access that he sought 

before and during trial, as evidenced by the State’s granting his inspection 

requests, by his failure to seek a continuance of the trial and his agreement 

to mid-trial review of seized media. In addition, Curtis failed to make the 

“substantial showing” required under Rule 15.1(j) that would have 

required him to be furnished copies of the contraband. In short, the record 

does not support Curtis’ argument that he was denied reasonable access 

to the evidence, or wrongly denied copies of the seized material.

¶39 For the first time on appeal, Curtis claims that his rights 

under Brady v. Maryland, 373 U.S. 83 (1963) were violated by his purported 

lack of meaningful access to the electronic media, depriving him of the 

opportunity to develop his defenses. This argument, however, is 

speculation not supported by the record or his argument on appeal. In 

Brady, the United States Supreme Court held that “the suppression by the 

prosecution of evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 

87. Curtis has failed to identify any evidence that the State failed to 

disclose, and has not explained how he could have proved his defenses 

that the charged images came from his former clients’ files, were planted 
STATE v. CURTIS

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by others or were altered if he would have been provided greater access to 

the content of the electronic media. Under these circumstances, Curtis has 

abandoned and waived such claims. See State v. Moody, 208 Ariz. 424, 452 

n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004) (failure to present “significant 

arguments, supported by authority” in opening brief waives issue) (citing 

State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989)).

IV. Constitutionality Of A.R.S. § 13-3553 As Applied.

¶40 Curtis argues the superior court erred in denying his motion 

to dismiss, claiming A.R.S. § 13-3553 is unconstitutionally overbroad as it 

applies to attorneys who obtained child pornography in the 

representation of clients and the court “improperly instructed the jury 

about the statute and defenses to it.” Curtis failed to object to the 

instruction on the ground he raises on appeal, and accordingly must show 

that any error in the instruction was fundamental and prejudicial.

Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. This court reviews the 

adequacy of jury instructions in their entirety to determine if they 

accurately reflect the law. Hoskins, 199 Ariz. at 145, ¶ 75, 14 P.3d at 1015.

¶41 Arizona is a “code state,” proscribing only those offenses 

identified as crimes in the governing statutes and ordinances. A.R.S. § 13-

103(A) (abolishing common law crimes). In construing a statute, the court 

starts with the statute’s language. State v. Jenkins, 193 Ariz. 115, 119, ¶ 11, 

970 P.2d 947, 951 (App. 1998). A.R.S. § 13-3553(A)(2) prohibits, in pertinent 

part, a defendant from “knowingly . . . possessing. . . any visual depiction 

in which a minor is engaged in exploitive exhibition or other sexual 

conduct.” “Exploitive exhibition,” in turn, is defined in pertinent part as 

the exhibition of genitals of any person “for the purpose of sexual 

stimulation of the viewer.” A.R.S. § 13-3551(4). “Sexual conduct” is 

defined as including in pertinent part masturbation “for the purpose of 

sexual stimulation of the viewer,” and actual or simulated sexual 

intercourse (including oral/genital). A.R.S. § 13-3551(9)(a)-(d). Contrary to 

Curtis’ argument, these definitions do not add an additional element to 

the statutory offense that prohibits a defendant from knowingly 

possessing such images only for the purpose of sexual stimulation. See A.R.S. 

§ 13-3553(A)(2). These definitions simply limit the types of images that a 

defendant must not knowingly possess. See State v. Hazlett, 205 Ariz. 523, 

531, ¶¶ 27-28, 73 P.3d 1258, 1266 (App. 2003) (noting courts “have 

emphasized that under these types of statutes, the material, at a 

minimum, must be lewd and lascivious”); cf. State v. Gates, 182 Ariz. 459, 

462-66, 897 P.2d 1345, 1348-52 (App. 1994) (rejecting argument in 

interpreting prior version of statute “that when deciding whether 
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something constitutes a ‘lewd exhibition,’ [the court] should focus on the 

intent of the defendant”).

¶42 The superior court instructed the jury precisely as provided 

in the statutes, and specifically that it was an offense to knowingly possess 

images of minors engaged in sexual intercourse, or images of minors 

engaged in masturbation or exploitative exhibition “for the purpose of 

sexual stimulation of the viewer.” This is a proper statement of the law. As 

a factual matter, Curtis is mistaken in claiming the superior court failed to 

instruct the jury that the offense of sexual exploitation of a minor requires 

that the defendant knowingly possess the exploitative images for 

purposes of sexual stimulation. Accordingly, Curtis’ claim of error lacks 

support in either the law or the factual record.

¶43 The superior court also did not err in refusing to dismiss the 

charges on the ground that A.R.S. § 13-3553(A)(2) is overbroad as applied 

to attorneys, and did not err in instructing the jury that an attorney could 

assert an affirmative defense only insofar as he possessed child 

pornography for the active defense of a client, or to advise a client. The 

superior court first noted that the Legislature had not provided a statutory 

defense to possession of child pornography by a defense attorney, A.R.S. § 

13-3553, and had abolished all common law defenses, A.R.S. § 13-103. The 

court further reasoned that A.R.S. § 13-103 cannot prevent a defendant 

from raising constitutional defenses to a criminal charge, see Jones v. 

Sterling, 210 Ariz. 308, 314 n.7, ¶ 24, 110 P.3d 1271, 1277 n.7 (2005), and a 

defense attorney’s possession of child pornography solely for purposes of 

representing a client and resolution of “the case at hand” should not 

expose the attorney to criminal liability, citing Cervantes, 206 Ariz. at 186, 

¶ 30, 76 P.3d at 457 and United States v. Flynn, 709 F. Supp. 2d 737, 743 

(S.D. 2010). The court accordingly allowed Curtis to assert an affirmative 

defense that he was required to possess the images to defend and resolve 

an active legal case, or to advise a client. The court instructed the jury that 

it was an affirmative defense to the sexual exploitation charges “that the 

possession was in the capacity of a lawyer for the active defense of a 

client, or to properly advise a client regarding the images.” The court 

further instructed the jury that “[t]he lawful possession ends when the 

case ends or the advice has been rendered. Once lawful possession ends, 

the images must be returned or destroyed.” 

¶44 This court reviews de novo whether a statute is 

constitutional. State v. Mutschler, 204 Ariz. 520, 522, ¶ 4, 65 P.3d 469, 471 

(App. 2003). A party claiming a statute is unconstitutional must overcome 

a “strong presumption” of constitutionality, and courts will, if possible, 
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interpret a statute to avoid a constitutional infirmity. State v. Kaiser, 204 

Ariz. 514, 517 ¶ 8, 65 P.3d 463, 466 (App. 2003). The party challenging the 

constitutionality of a statute bears the burden of establishing its invalidity. 

State v. Russo, 219 Ariz. 223, 225, ¶ 4, 196 P.3d 826, 828 (App. 2008).

¶45 A statute that includes within its scope speech protected by 

the First Amendment is considered overbroad. Kaiser, 204 Ariz. at 519 ¶ 

17, 65 P.3d at 468. However,

where conduct and not merely speech is 

involved . . . the overbreadth of a statute must 

not only be real, but substantial as well, judged 

in relation to the statute’s plainly legitimate 

sweep. There must be a realistic danger that 

the statute will significantly jeopardize

recognized first amendment protections of 

individuals not before the court. Id. at 519, ¶ 7, 

65 P.3d at 468 (citations omitted).

Child pornography is not protected by the First Amendment. See New York 

v. Ferber, 458 U.S. 747, 764 (1982). Moreover, Arizona’s statutory scheme 

ensures that a person may be convicted only for knowing possession of 

child pornography (images of minors engaged in sexual conduct or lewd 

and lascivious exhibition of their genitals). Accordingly, Curtis’ argument 

that the sexual exploitation statute is overbroad (because, as interpreted 

by the court, it applied to his possession of images for a purpose other 

than sexual stimulation) fails. See id. at 746.3

¶46 Nor is the court persuaded by Curtis’ challenge to the 

constitutionality of the statute and adequacy of jury instructions when 

applied to an attorney’s possession of such images “in the bowels of his 

back-up computer drives or media . . . associated with past client 

representations,” inadvertently or because of the “[m]any factors [that] 

would require retention of this evidence” beyond the actual 

 3 The statute by its terms does not prohibit possession of medical studies 

that include photographic evidence depicting a minor’s genitals for the 

purpose of showing trauma from intercourse as Curtis argues. See A.R.S. § 

13-3553(A)(2). Nor did the superior court preclude such evidence at trial 

on the ground the studies contained child pornography. Instead, the court 

found, as Curtis conceded, that certain studies (which are not in the record 

on appeal) were not particularly relevant when offered.
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representation. Curtis’ challenge based on claimed inadvertent possession

fails to recognize that the State was required to prove beyond a reasonable 

doubt that he “knowingly” possessed the images. See A.R.S. § 13-

3553(A)(2).

¶47 Curtis has offered no authority supporting a defense that 

would allow him to retain child pornography obtained in connection with 

legal representation years after that representation ended. In addition, he 

failed to present evidence at trial to support a defense that it was 

necessary for him to retain possession of the charged images in 

representing any client. Curtis has offered no legal support for his position 

that the statute is overbroad as applied because it was legally permissible 

for him to possess child pornography obtained as evidence in a legal case 

long after his active involvement in the case ended. The sole constitutional 

basis for the defense that Curtis asserts is the Sixth Amendment right to 

effective assistance of counsel, which extends only to the first appeal of 

right and no further (i.e., during the “active” representation on which the 

superior court instructed the jury). See Pennsylvania v. Finley, 481 U.S. 551, 

555 (1987). 

¶48 The Arizona Supreme Court accounted for this 

constitutional right in amending the Arizona Rules of Criminal Procedure 

to restrict the release of copies of child pornography to defense counsel 

except upon a substantial showing that possession of a copy of a 

particular image was “required for the effective investigation or 

presentation of a defense.” See Ariz. R. Crim. P. 15.1(j) (imposing 

restrictions on such release or copying, including requiring that “the item 

shall be returned to the prosecutor by a deadline ordered by the court”); 

accord A.R.S. § 13-3553(B) (“If any visual depiction of sexual exploitation 

of a minor is admitted into evidence, the court shall seal that evidence at 

the conclusion of any grand jury proceeding, hearing or trial.”). These 

amendments were in response to a holding that the prior rules required

the State to provide copies of such materials to defense counsel for use in

the defense of the case without such a showing. See Cervantes, 206 Ariz. at 

181-86, ¶¶ 11-32, 76 P.3d at 452-57. Curtis, however, testified that he had 

no cases involving child pornography after 2005, he did not recognize any 

of the images charged in Counts 1 through 10 (the only counts for which 

he claimed this defense) and he had destroyed any cross-reference 

between client names and evidence on his computers after he retired from 
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the practice of law in 2006.4

V. Admission Of Other Acts Evidence.

Under these circumstances, the record fails to 

support Curtis’ claim that he possessed the charged images based on the 

possibility that they would be needed to defend a client’s conduct, 

meaning his claim that the statute is overbroad as applied fails. 

¶49 Curtis argues the superior court abused its discretion in

admitting more than 300 images depicting uncharged acts that the State 

had not specifically identified before trial, and without determining 

whether they were admissible as intrinsic evidence or under Arizona Rule 

of Evidence 404(b) or (c). This court reviews the superior court’s ruling on 

the admission of evidence for an abuse of discretion. State v. Garcia, 200 

Ariz. 471, 475, ¶ 25, 28 P.3d 327, 331 (App. 2001).

¶50 As an initial matter, the record does not support Curtis’ 

argument that the superior court admitted and allowed the State to 

publish to the jury 300 uncharged images in the “cheare” series of images 

without any foundation or relevance determination. Instead, the record 

shows that the court admitted 10 uncharged images in the “cheare” series

as other acts evidence, although commenting that Curtis’ examination of 

his expert on the content of images in that series that had not been 

admitted had opened the door to publication of the entire series. 

¶51 The superior court acted within its discretion by admitting 

as other acts evidence 23 uncharged sexually exploitative images

(including the uncharged “cheare” images noted above), pedophilic titles 

on 4 CDs and evidence that the charged images were also present on other 

media seized from Curtis. As applicable here, evidence of other acts is not 

admissible to prove character “to show action in conformity therewith,” 

but it may be admissible for other purposes, such as proof of motive, 

intent, or knowledge. See Ariz. R. Evid. 404(b). Stated differently, and 

subject to various limitations, “[e]vidence relevant for any purpose other 

than showing propensities to act in a certain way remains admissible.”

State v. Connor, 215 Ariz. 553, 563, ¶ 32, 161 P.3d 596, 606 (App. 2007). The 

 4 Curtis also is mistaken in arguing that the jury instruction “required the 

attorney to reveal those clients from whom the evidence was received or 

be deemed guilty.” The superior court did not instruct the jury that the 

defense was not available unless Curtis identified the specific clients for 

whom he possessed the images.
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superior court “need not explain the basis for the decision to admit” other

acts evidence under Rule 404(b) “[s]o long as the decision is supported by 

the facts before the court.” See State v. Jeffers, 135 Ariz. 404, 417, 661 P.2d 

1105, 1118 (1983) (citations omitted). As applied, Curtis opened the door 

to the admission of this evidence under Rule 404(b) by claiming that he 

possessed most of the charged images in his capacity as a lawyer, and by 

cross-examining the case agent on what evidence could be shown that

Curtis actually possessed the charged images. The other acts evidence was 

admissible to show that Curtis knowingly possessed the charged images, 

and to rebut his defense that he possessed the charged images given his 

prior work as an attorney representing clients. See Connor, 215 Ariz. at 563, 

¶ 32, 161 P.3d at 606. The court also properly instructed the jury about the 

limited purpose for which such other acts evidence could be considered. 

¶52 Similarly, the superior court did not abuse its discretion by 

failing to require the State to identify the specific uncharged images that it 

intended to admit before Curtis opened the door in his opening statement.

The court gave Curtis and his expert an opportunity to review the 

uncharged images before Curtis cross-examined the detective, and Curtis 

did not ask for a continuance to allow further examination. Such action 

was not error.

¶53 Finally, the record fails to show that the superior court 

found the other acts evidence was admissible to demonstrate aberrant 

sexual propensity under Rule 404(c) or relied on Rule 404(c) in admitting 

the other acts evidence. Curtis did request a Rule 404(c) limiting 

instruction. Ultimately, the superior court instructed the jury on the 

limited use it could make of both Rule 404(b) and (c) evidence, and that it 

could consider such evidence only if it found by clear and convincing 

evidence that Curtis had committed the other acts. These limiting 

instructions, including the Rule 404(c) instruction Curtis requested, 

prevented any unfair prejudice that might ensue from the evidence. See 

State v. Villalobos, 225 Ariz. 74, 80, ¶ 20, 235 P.3d 227, 233 (2010). On this 

record, the court did not abuse its discretion in admitting this other acts

evidence. 
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Decision of the Court

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CONCLUSION 

¶54 Curtis’ convictions and resulting sentences are affirmed.