Shannon Zuck: Tried and Convicted for Possessing Child Porn

State of Arizona v. Shannon Zuck

Day One: Witness testimony

Pima County Detention Center inmate photo of 40-year-old Shannon P. Zuck

The trial of Shannon P. Zuck began mid-morning on Wednesday, March 13, 2019. Zuck was arrested and charged with 10 counts of sexual exploitation of a minor, Arizona Revised Statute 13-3553, on December 19, 2013, after detectives in the Internet Crimes Against Children Unit of the Tucson Police Department served a warrant and conducted a search of Zuck’s home on the 4900 block of South Cassia Way on Tucson’s Southside. Serving the warrant, detectives discovered a laptop and thumb-drive containing what they concluded were numerous images and videos of child pornography.

Zuck, no stranger to the justice system at the time of the 2013 arrest, served five years with the Arizona Department of Corrections between 2005 and 2010 for attempted molestation of a child in 2002. He was originally sentenced to 10 years of probation on that charge but in October 2004 attempted to flee the state after numerous violations of his probation. Zuck was picked up in Mississippi and extradited back to Tucson in December of 2004.

In this case against Zuck, Pima County deputy attorneys, Michelle Araneta and Ian Daranyi, reduced the initial 10 count charge to 6 for “the purpose of expediency” prior to the start of trial. Each count carries a potential sentence of 5 to 15 years in prison. Zuck, who will turn 41 this August, could potentially serve the rest of his life in jail.

Aside of court personnel, counsel for both sides, jurors and Pima County Superior Court Judge Michael Butler, the courtroom was virtually empty on Wednesday through the trial’s testimony phase. Zuck’s wife and mother were not permitted in the courtroom because lawyers had not determined whether they would call the women as witnesses.

The first witness called by the prosecution, Detective Dan Barry of the Internet Crimes Against Children Unit, wrote and was awarded a grant in 2010 which was used to launch the specialized crime unit.

Since becoming a detective in 2007, Barry’s experience includes specialized training in such topics as pre and post-estrogenized identification. This means he has training in identifying pre and post-pubescent female bodies for purposes of investigating sex crimes against children.

This training is important to his testimony because Zuck’s public defender, James L. Fullin, contended state prosecutors must prove beyond a reasonable doubt the females identified in the videos obtained from Zuck’s laptop in 2013 are actual minors. And, short of Barry’s and another detective’s testimony, Fullin would later argue the prosecutors had not met their burden.

Detective Barry testified a computer program used by TPD’s Internet Crimes Against Children Unit called RoundUp detected a download of a suspected child pornography on the Ares Galaxy peer-to-peer network and provided an Internet Protocol address for the download, this is the address automatically assigned to any computer accessing an internet network.

The Unit then subpoenaed Cox Communications to determine the subscriber information for the IP address. After obtaining information from Cox they located the IP’s physical address, Zuck’s residence.

The detectives then obtained a search warrant and upon execution of the warrant found Zuck’s laptop and a thumb-drive on his bed.

According to detectives Barry and Holewinski, Zuck initially said everyone in the house used the laptop and his wife and mother owned it. When the Unit detectives informed Zuck a child-pornography download occurred at the residence, Zuck then admitted the laptop was his.

Both detectives testified Zuck admitted to downloading child pornography and masturbating to it “at least once a day.” A forensic examination of the laptop found folders with labels such as “jailbait”, “rape” and “incest”, according to their testimony.

The prosecution’s last witness, officer and forensic examiner, Russell Blaylock, testified the laptop’s operating system was registered to Shannon Zuck.

Before the defense’s cross-examination of Blaylock, the prosecution showed short clips of the alleged child pornography to the jury.

Judge Butler was extremely hesitant to force the jurors to see the images and videos and expressed this during a previous break. County attorney, Michelle Araneta, was concerned that without showing the clips in the courtroom the jurors may not view the clips on their own in juror chambers.

Judge Butler instructed the jurors the clips would be shown so they could form an answer to the question of whether or not there were minors in the images and videos.

When the clips were shown, a deafening silence fell across the courtroom. One juror wiped her eyes with her sleeve repeatedly, another juror looked down as her shaking leg trembled the button-down sweater she wore.

Signs of discomfort across juror faces remained long after the clips were played. Judge Butler’s face emanated sympathy for the jurors.

Zuck was observed briefly glancing at the last clip.

Day Two: Closing arguments and the verdict

Deputy county attorney, Ian Daranyi delivered a no-frills, sobering closing argument. Daranyi broke down the statute word by word, leaving no room for legalese to confuse the jurors.

“You have the evidence, and you have the law,” Daranyi said, “Now you find the defendant guilty.”

Pima County public defender, James Fullin, took a much more emphatic approach to closing arguments. Fullin hammered away at the only defense available to Zuck. He argued the prosecution had not presented enough evidence to prove that the images and videos contained actual minors.

Fullin pointed to the fact detectives had not checked the files in question against a national database of known child pornography, nor had the prosecution brought in any licensed medical expert to testify to the age of girls in the images and videos.

“Any lack of evidence has to be held against the state,” Fullin argued. “The state wants the burden to be on the defense.”

Fullin did not try to downplay the “moral repugnance” of the images and videos, nor did he attempt to get the jurors to sympathize with Zuck. Fullin simply argued for holding the prosecution to the highest standard of proof possible.

Some jurors did not appear to be buying his argument. One juror swayed sided to side in her seat as she looked around the court room. Another juror’s eyes were opened wide as if she could not believe what she was hearing. But others listened intently. Fullin concluded his argument.

“You are being asked if the defendant knowingly possessed child pornography, period,” Daranyi said in his closing rebuttal. “I’m not going to insult you and expect you to say those kids were not kids.”

“Why were they repulsive, why were they disgusting? Because they were kids,” Daranyi said.

After a break for lunch the jury quickly returned the verdict.

Zuck was found guilty on all six counts.

Sentencing will begin in April. Tucson Del Sur News will continue to cover this story.

Below is a brief analysis of a potential technical legal issue in this case regarding a possible future appeal by the defendant. Warning, it is mostly legalese.

Legal Analysis

The Court allowed into juror instructions Revised Arizona Jury Instruction (Criminal) 35.56 Permissible Inference, also codified under state law as Arizona Revised Statute 13-3556.

It reads, “In a prosecution relating to the sexual exploitation of children, you may draw the inference that a participant was a minor if the visual depiction or live act through its title, text or visual representation depicted the participant as a minor.

“You are free to accept or reject this inference as triers of fact. You must determine whether the facts and circumstances shown by the evidence in this case warrant any inference that the law permits you to make. Even with the inference, the State has the burden of proving each and every element of the offense beyond a reasonable doubt before you can find the defendant guilty.”

In State v. Hazlett, 205 Ariz. 523 (2003), the first division of Court of Appeals of Arizona found A.R.S. 13-3556 to be unconstitutional under the U.S. Supreme Court ruling in Ashcroft v. Free Speech Coalition, 535 U.S. 234, (2002).

However, the statute remains on the books and codified in state criminal jury instructions. This perhaps leaves open the question of whether or not Zuck will be able to appeal the conviction based on inclusion of the permissible inference instruction.

In State v. Bauer (2016), defendant Bauer appealed his conviction, similar to Zuck’s, on grounds that the prosecution did not prove that children in photographs he possessed were actual minors and that the permissible inference instruction was used in the jury’s determination of guilt.

The second division of Court of Appeals of Arizona found that Bauer’s defense had not objected to the permissible inference at trial, so the appellate court reviewed the question “solely for fundamental error.”

The appellate court also found that in Bauer’s trial, the state’s expert, “testified at length and specifically about the ages of the children depicted based on their sexual development,” and Bauer himself agreed the photos he was charged with possessing were “obviously children.”

In contrast, at Zuck’s trial, the defense did raise an objection to the permissible inference instruction.  And the prosecution did not use a medical expert to testify as to the age of the children in the images and videos, but rather relied on the jury to draw their own inference with their own eyes. Also, Detective Barry testified he has special training in identifying minor female bodies.

Do these circumstances make this case ripe for appeal? Time will tell, and Tucson Del Sur News will continue to cover this case until it reaches its final conclusion.