Opinion
No. 2 CA-CR 2018-0138
06-26-2019
THE STATE OF ARIZONA, Appellee, v. ADAM MICHAEL HANCOCK, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Richard C. Bock, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20162198001
The Honorable Danelle Liwski, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Richard C. Bock, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Adam Hancock was convicted of two counts of sexual abuse. The trial court suspended the imposition of sentence and placed him on probation for concurrent terms of three years. On appeal, Hancock argues the court erred by allowing the state to prove one of the counts using evidence different from that presented to the grand jury, effectively amending the indictment. He also contends the court erred by admitting other-act evidence, failing to strike a juror for cause, denying his Batson challenge of the state's strikes of male venirepersons, and precluding testimony of his law-abiding character. He lastly maintains the prosecutor improperly vouched for the victim. For the following reasons, we affirm.
Batson v. Kentucky, 476 U.S. 79 (1986).
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to affirming Hancock's convictions. See State v. Molina, 211 Ariz. 130, ¶ 2 (App. 2005). In October 2015, E.R. started working at a Tucson-area golf course as a beverage cart attendant and server. Hancock held a managerial position as the assistant golf professional. Within a couple weeks after E.R. was hired, Hancock commented to her that he "like[d her] butt" and that she had "nice breasts," encouraging her to lower the zipper on her shirt.
¶3 On January 16, 2016, Hancock approached E.R. at work and said, "I'm going to molest the shit out of you. I . . . already put in my two weeks. I can't get fired." Later that day, E.R. was at a dishwashing station in the kitchen when Hancock walked behind her and grabbed her breasts. E.R. pushed him away and told him his behavior was "inappropriate" and "not okay." Later on, when E.R. was at a cash register, Hancock again approached her and grabbed her breasts. E.R. pushed him away and said, "[D]o not touch me." Thereafter, when E.R. handed Hancock the deposit bag for the day, Hancock reached around her and grabbed her breasts. E.R. elbowed him and again told him that his behavior was "unacceptable."
¶4 The following morning, E.R. returned to work. She was in her supervisor's office when Hancock walked in. After the supervisor turned around, Hancock cornered E.R. in the hall and grabbed her breasts. A coworker saw the incident, pulled Hancock off E.R., and punched him. Hancock walked away. E.R. subsequently contacted the police and gave a written statement.
¶5 A grand jury indicted Hancock with two counts of sexual abuse—for one of the incidents on January 16 and the other for the incident on January 17. He was convicted as charged, and the trial court placed him on probation as described above. We have jurisdiction over Hancock's appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Amendment of Indictment
¶6 Hancock argues the trial court erred "by permitting the state to proceed on a charge which was not the basis of the grand jury's indictment." He asserts that doing so denied him due process of law. We review the amendment of an indictment for an abuse of discretion. State v. Johnson, 198 Ariz. 245, ¶ 4 (App. 2000). However, "[w]e review legal and constitutional questions de novo." State v. Dann, 220 Ariz. 351, ¶ 94 (2009).
¶7 Count One of the indictment alleged Hancock committed sexual abuse "[o]n or about" January 16 "by intentionally or knowingly engaging in sexual contact with E.R., by placing his hands on her breasts, without her consent, in violation of A.R.S. § 13-1404." That charge was based on the first incident from January 16. Specifically, a detective testified before the grand jury that E.R. was "doing dishes" when Hancock "reached around the front of her and grabbed her breast over the clothing."
¶8 In January 2018, the state filed a notice of intent to introduce other-act evidence. As relevant here, the state sought to admit evidence of "every other instance" of Hancock touching E.R., noting that E.R. had "declared in her handwritten statement and to police that [Hancock] touched her breasts and grabbed her butt several times leading up to the last instance of him placing his hand on her breasts on January 16, 2016— the conduct of Count One." At a hearing the following month, the state explained that "there w[ere] a couple grabs of . . . [E.R.'s] breast before the last time that day, which is essentially what is Count One, where he is alleged to have placed h[is] hands on her breast, and she told him to stop." In response, Hancock asserted that the state had created a duplicity problem because the jury's verdict may not be unanimous as to which January 16 incident was the basis for Count One. The state responded that any duplicity issue could "be cured with an interrogatory to the jury that they find that the act of Count One was the last time of the day . . . on January 16."
This was a supplemental notice. The original notice, which did not mention the other incidents that occurred on January 16, was filed in November 2017.
¶9 In March 2018, eight days before trial, Hancock filed a motion in limine, requesting, in part, that "Count One specify the location of that alleged conduct to-wit: the dish washing area." The trial court addressed the motion the first day of trial, at which point Hancock argued the incident that occurred when E.R. was washing dishes was the only one presented to the grand jury and the state could not "change horses and say, well, we want the last claimed other act now to be the basis of Count One when none of that information was presented to the grand jury." The state responded that from the beginning, in her interview with officers, E.R. had "talked about three acts of [Hancock] grabbing her breasts on . . . January 16th." Although the grand jury only heard evidence of the first incident, the state reasoned that the third incident was "still encompassed within the indictment" and that its theory of the case had been clarified in its January 2018 notice.
¶10 The trial court denied Hancock's motion in limine, agreeing with the state's reasoning that the language of the indictment was consistent with the third incident on January 16 and that Hancock "ha[d] been provided notice, disclosure, [and] opportunity to prepare the defense." The verdict form specified that the jury had found Hancock guilty of sexual abuse as alleged in Count One of the indictment, specifically, "the final allegation of January 16, 2016."
¶11 On appeal, Hancock argues he "was charged with a very specific act"—the first incident on January 16—but was convicted of a crime "very different in time and area"—the third incident that day. Relying on federal case law, he reasons that a "fatal variance" occurred because of this "difference between the indictment and the proof at trial." See, e.g., Dunn v. United States, 442 U.S. 100, 105 (1979); Stirone v. United States, 361 U.S. 212, 216 (1960); United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir. 1997). He further contends that this purported error "denied [him] his rights of due process."
Hancock does not cite any constitutional provisions in his opening brief. As the state points out, a grand jury indictment implicates three federal constitutional due process rights: the Sixth Amendment's right to notice of the criminal charges against which one will need to defend and the Fifth Amendment's dual protections against double jeopardy and holding the defendant to answer for crimes not presented to or indicted by a grand jury. United States v. Combs, 369 F.3d 925, 935 (6th Cir. 2004); see also Russell v. United States, 369 U.S. 749, 760 (1962).
To the extent the federal cases on which Hancock relies are rooted in the Fifth Amendment's Grand Jury Clause, they are not applicable here. See Alexander v. Louisiana, 405 U.S. 625, 633 (1972) (federal concepts of grand jury under Fifth Amendment not binding on states); State v. Ortiz, 131 Ariz. 195, 205 (1981) (Grand Jury Clause "does not apply to state prosecutions"), disapproved of on other grounds by State v. Gretzler, 135 Ariz. 42, 57 n.2 (1983). And Hancock does not argue that his Fifth Amendment right against double jeopardy was somehow violated. See State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim."). Accordingly, we understand his argument to be rooted in the Sixth Amendment.
¶12 The Sixth Amendment affords a defendant the right "to be informed of the nature and cause of the accusation." U.S. Const. amend. VI. It thus "requires that a defendant receive 'actual notice' of the pending charges." State v. Montes Flores, 245 Ariz. 303, ¶ 17 (App. 2018). "A Sixth Amendment violation occurs when the defendant received insufficient notice and is therefore actually prejudiced by a new or amended charge." State v. Freeney, 223 Ariz. 110, ¶ 29 (2009).
¶13 Somewhat related, Rule 13.5(b), Ariz. R. Crim. P., "limits the trial to the specific charge or charges" alleged in the grand jury indictment. "Unless the defendant consents, a charge may be amended only to correct mistakes of fact or remedy formal or technical defects." Ariz. R. Crim. P. 13.5(b). However, the indictment "is deemed amended to conform to the evidence admitted during any court proceeding." Id.
¶14 "When an indictment is amended to allege an offense with materially different elements . . . the result is a 'change in the nature of the offense' that violates Rule 13.5(b)." Montes Flores, 245 Ariz. 303, ¶ 16. "But not every violation of Rule 13.5(b) infringes a defendant's Sixth Amendment right to notice." Id. ¶ 17. Even if the nature of the offense is changed, the defendant is not prejudiced and the Sixth Amendment is not violated if the defendant receives "'actual notice of the charges' from any source." Id. (quoting Freeney, 223 Ariz. 110, ¶¶ 24-29). Examples of actual notice include pretrial disclosures, the state's notice of intent to call a witness, joint pretrial statements, and allegations of dangerousness. Freeney, 223 Ariz. 110, ¶ 27.
¶15 Hancock relies on State v. Mikels, 119 Ariz. 561 (App. 1978), to support his argument that the state "was required to inform [him] through the indictment, as to which incidents correspond to what dates, circumstances, and situations." In Mikels, a grand jury indicted the defendant based on evidence that he had committed acts of sodomy on the victim in the shower stall of a jail cell. Id. at 562. At trial, the jury heard evidence of several acts of sodomy occurring in different locations, and it appeared the defendant was convicted based on an act that occurred in a bunk, not the shower stall. Id. On appeal, this court set aside the conviction, reasoning that the defendant "was not convicted of the crime for which he was indicted." Id. at 563. Mikels is distinguishable, however, because in that case the defendant apparently had no notice that the state intended to proceed on the different theory. See id. at 562.
In Mikels, this court concluded that the trial court lacked jurisdiction over the sodomy that had occurred in the bunk. 119 Ariz. at 563. We relied on Stirone, 361 U.S. at 218, where the Supreme Court determined the federal courts were without jurisdiction to indict and convict a defendant for unlawfully interfering with interstate commerce where the evidence used to establish the offense at trial was different than what the grand jury had heard to indict. Stirone is, however, distinguishable from Mikels to the extent the change in the evidence presented at trial involved an express element of the offense that was necessary for federal court jurisdiction. In any event, our supreme court has since clarified that a defective indictment does not deprive the trial court of subject matter jurisdiction. See State v. Maldonado, 223 Ariz. 309, ¶¶ 13-21 (2010) (discussing "outdated concepts of 'jurisdiction'"); see also State v. Fimbres, 222 Ariz. 293, ¶ 33 (App. 2009) (amendment of indictment does not raise issue of subject matter jurisdiction); State v. Buckley, 153 Ariz. 91, 93 (App. 1987) ("An attack on an already filed information is made on the basis of its insufficiency or on a technical defect in its contents, and is not based on the lack of the court's subject matter jurisdiction.").
¶16 Here, as mentioned above, the indictment alleged that Hancock committed sexual abuse on January 16 "by intentionally or knowingly engaging in sexual contact with E.R., by placing his hands on her breasts, without her consent." As the trial court noted, that allegation accurately reflected each of the three incidents on January 16. The nature of the offense therefore did not change by basing Count One on the third incident rather than the first. See Montes Flores, 245 Ariz. 303, ¶ 16. And to the extent an amendment was required, the indictment was "deemed amended" once the state presented evidence of the third incident on January 16 to establish the offense. Ariz. R. Crim. P. 13.5(b).
¶17 Contrary to Hancock's suggestion otherwise, the indictment itself did not need to "inform [Hancock] of the theory by which the state intend[ed] to prove [Count One] so long as [he] receive[d] sufficient notice to reasonably rebut the allegation." State v. Rivera, 207 Ariz. 69, ¶ 12 (App. 2004). Hancock was provided such actual notice in this case. See Montes Flores, 245 Ariz. 303, ¶ 17. In her January 2016 interview with officers, E.R. described all three incidents from January 16, including the final one when E.R. handed Hancock a deposit bag, and Hancock does not dispute that he received a copy of that interview as part of the state's disclosure. In its January 2018 notice, filed two months before trial, the state indicated that Hancock had "touched [E.R.'s] breasts and grabbed her butt several times leading up to the last instance of him placing his hands on her breasts on January 16, 2016—the conduct of Count One." At the related hearing in February, Hancock seemingly understood that the state intended to base Count One on the final incident when he raised a potential duplicity issue. And Hancock clearly appreciated the state's theory of Count One when he filed a motion in limine eight days before trial requesting that the verdict form specify the location of the offense.
¶18 In addition, Hancock has not shown any prejudice resulting from the purported change in the charge. See id. He has not meaningfully argued that the amendment affected his litigation strategy, trial preparation, or examination of the witnesses. See Freeney, 223 Ariz. 110, ¶ 28. Although he summarily contends that the change "prevent[ed] him from properly presenting his defense," he has not explained how. Indeed, his defense at trial was that the state had failed to meet its burden of proof, and he testified that none of the three incidents from January 16 occurred. Accordingly, we do not see how his defense would have been different. See id.
¶19 Hancock had timely, actual notice of the charges against him. See Montes Flores, 245 Ariz. 303, ¶ 17. In addition, he suffered no prejudice from a change in the state's theory of Count One. See Freeney, 223 Ariz. 110, ¶ 28. Accordingly, there was no infringement of Hancock's due process rights under the Sixth Amendment. See Montes Flores, 245 Ariz. 303, ¶ 21.
Other-Act Evidence
¶20 Hancock also argues the trial court erred by admitting other-act evidence under Rule 404(b), Ariz. R. Evid. We review the admission of other-act evidence for an abuse of discretion. State v. Scott, 243 Ariz. 183, ¶ 14 (App. 2017).
¶21 Generally, "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Ariz. R. Evid. 404(b); see also State v. Herrera, 232 Ariz. 536, ¶ 20 (App. 2013) (other-act evidence generally inadmissible to show defendant is bad person or has propensity for committing crimes). Such evidence "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b). For other-act evidence to be admitted, the state must establish by clear and convincing evidence that the defendant committed the other acts. State v. Hausner, 230 Ariz. 60, ¶ 69 (2012). In addition, the evidence must be offered for a proper purpose under Rule 404(b); it must be relevant under Rule 402, Ariz. R. Evid.; its probative value must not be substantially outweighed by a danger of unfair prejudice under Rule 403, Ariz. R. Evid.; and the trial court must give an appropriate limiting instruction if requested under Rule 105, Ariz. R. Evid. State v. Lee, 189 Ariz. 590, 599 (1997).
¶22 Here, the state sought to introduce the following other-act evidence: (1) Hancock's "inappropriate sexual comments" to E.R., including his statements that "she had a 'nice but[t], and nice boobs'" and that she should "lower the zipper on her shirt," and (2) "every other instance of [Hancock] touching [E.R.] leading up to the final instance of him touching her breast on January 16," including his statement that he was "going to molest the shit out of [her]" because he "already put [his] two weeks in [and] can't get fired." The state generally argued that this evidence was admissible to prove absence of mistake or accident, motive, and intent, noting that Hancock had in a pretrial interview suggested he "may have touched [E.R.'s] breast" while "shadow boxing" her but "there wasn't any sort of intent." The trial court agreed and admitted the evidence.
The state also sought to admit Hancock's "inappropriate comments" and touching of "other women who worked at the golf course," including J.R. However, the trial court precluded J.R.'s testimony during the state's case-in-chief, and she did not testify at trial.
¶23 On appeal, Hancock argues the trial court erred by admitting the other-act evidence because there was no "common scheme or plan" between the charged and uncharged acts. See Ariz. R. Evid. 404(b). But the state did not argue—and the trial court did not find—that the evidence was admissible on this basis. See State v. Ramirez Enriquez, 153 Ariz. 431, 432-33 (App. 1987) (discussing "common scheme or plan" exception under Rule 404(b)). Instead, the court admitted the evidence to show absence of mistake or accident, motive, and intent, as the state had asserted. The court did not err in so ruling. Hancock's prior statements to E.R. about her "butt" and "boobs" were relevant to show his intent and that the incidents were not accidental; his statement about molesting E.R. because he had put in his two weeks' notice showed motive, intent, and absence of mistake; and the other instances of touching—and E.R.'s corresponding requests that Hancock stop—established a lack of consent, accident, and mistake. Cf. Scott, 243 Ariz. 183, ¶¶ 15-17 (defendant's prior sexual assault admissible in later trial on sexual-assault charges to refute defenses of consent and lack of intent); State v. Stein, 153 Ariz. 235, 239 (App. 1987) (evidence of marijuana and methamphetamine admissible in separate trial on heroin charges to prove absence of mistake).
¶24 Hancock also contends the trial court erred by admitting the other-act evidence because the "unfair prejudice substantially outweighed relevan[ce]." See Ariz. R. Evid. 402, 403. However, Hancock does not explain how the evidence caused any unfair prejudice. See State v. Ortiz, 238 Ariz. 329, ¶ 9 (App. 2015) (unfair prejudice means undue tendency to decide case on improper basis, such as emotion, sympathy, or horror). The court expressly considered Rule 403, and we cannot say it erred in balancing the probative value and unfair prejudice. See State v. Harrison, 195 Ariz. 28, ¶ 21 (App. 1998) (trial court in best position to balance probative value of evidence against potential for unfair prejudice; this court views evidence in light most favorable to proponent, maximizing probative value and minimizing prejudicial effect). Notably, the evidence was relevant as described above, establishing, among other things, an element of the offense—lack of consent. See § 13-1404(A). And the trial court found the state had proven the other acts by clear and convincing evidence, see Hausner, 230 Ariz. 60, ¶ 69, and gave an appropriate limiting instruction, see Ariz. R. Evid. 105; Lee, 189 Ariz. at 599. Accordingly, the court did not abuse its discretion by admitting the other-act evidence. See Scott, 243 Ariz. 183, ¶ 14.
Striking a Juror for Cause
¶25 Hancock next argues the trial court erred by refusing to strike a visually impaired juror for cause. We review for abuse of discretion the decision to not strike a juror for cause. State v. Hulsey, 243 Ariz. 367, ¶ 32 (2018).
¶26 During voir dire, Juror C. indicated that when she reads "back and forth," she becomes "cross-eyed." Defense counsel indicated that the jury instructions would be the only written material used during trial. The trial court stated that it would read the instructions, as well as give each juror a copy, and asked if that would be a problem for Juror C. She responded that she would be "fine" because she would remember the oral instructions. The court then denied Hancock's request to strike Juror C. for cause, noting that accommodations could be made, including rereading the instructions if necessary.
¶27 On the motion of a party or on its own, the trial court "must excuse a prospective juror or jurors from service in the case if there is a reasonable ground to believe that the juror or jurors cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b). Potential jurors "should be excluded if [they are] unable to perform their duty or follow the judge's instructions." Hulsey, 243 Ariz. 367, ¶ 32.
¶28 On appeal, Hancock acknowledges "there was no question about [Juror C.'s] ability to be fair," but he argues she nonetheless should have been struck for cause because she could not "comprehend the proceedings and presentation of the evidence in all forms." But although Juror C. professed having difficulty reading large blocks of text, the parties suggested this would only become an issue with the jury instructions, not the evidence. Notably, defense counsel pointed out that some of the exhibits consisted of photographs, and Juror C. confirmed she would have no problem with those.
¶29 Hancock also seems to question Juror C.'s ability to remember the jury instructions. Nevertheless, as stated above, the trial court offered to reread them if an issue arose. Nothing in the record suggests Juror C. was unable to perform her duties or follow the judge's instructions. See Hulsey, 243 Ariz. 367, ¶ 32. Accordingly, the court did not abuse its discretion by refusing to strike Juror C. for cause. See id.
Batson Challenge
¶30 Hancock contends the trial court erred by denying his Batson challenge to the state's peremptory strikes of men from the jury panel. "A denial of a Batson challenge will not be reversed unless clearly erroneous." State v. Newell, 212 Ariz. 389, ¶ 52 (2006). However, we review legal determinations de novo. State v. Gay, 214 Ariz. 214, ¶ 16 (App. 2007).
¶31 The exclusion of a potential juror based on gender violates the Equal Protection Clause of the Fourteenth Amendment. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128-29 (1994) (extending Batson, which prohibits race discrimination in jury selection, to gender). "A Batson challenge involves a three-step analysis." Newell, 212 Ariz. 389, ¶ 53. First, "the party challenging the strike must make a prima facie showing of discrimination." State v. Garcia, 224 Ariz. 1, ¶ 21 (2010) (quoting State v. Cañez, 202 Ariz. 133, ¶ 22 (2002)). Second, "the striking party must provide a [gender]-neutral reason for the strike." Id. (quoting Cañez, 202 Ariz. 133, ¶ 22). The reason given "must be more than a mere denial of improper motive, but it need not be persuasive, or even plausible." Gay, 214 Ariz. 214, ¶ 17 (quoting State v. Lucas, 199 Ariz. 366, ¶ 7 (App. 2001)). Third, "if a [gender]-neutral explanation is provided, the trial court must determine whether the challenger has carried its burden of proving purposeful [gender] discrimination." Garcia, 224 Ariz. 1, ¶ 21 (quoting Cañez, 202 Ariz. 133, ¶ 22). This inquiry is fact intensive and turns on issues of credibility. Newell, 212 Ariz. 389, ¶ 54. For all three steps, "[T]he ultimate burden of persuasion regarding [gender] motivation rests with, and never shifts from, the opponent of the strike." Garcia, 224 Ariz. 1, ¶ 21 (quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)).
¶32 After the parties had exercised their respective six peremptory strikes, Hancock argued the state had improperly used its strikes to remove men from the jury panel. The trial court stated that "[i]t sounds like we may have a . . . prima faci[e] case" of discrimination and asked the prosecutor to respond. The prosecutor first noted he "did not strike every male" and "there [were] still four males on the panel." He then provided his reasons for striking the potential jurors: He struck Juror One "because he is an engineer"; Juror Four because "he seemed to be an avid golfer" and this case occurred at a golf course; Juror Five because he was a pizza-delivery driver, and the prosecutor was concerned that "he didn't look happy to be here at all"; Juror Seven because "he was the oldest juror on the panel" and he was reading a "cowboy justice book" that "didn't give [the prosecutor] good feelings as far as how he would be on a panel"; Juror Thirteen because "he had a family member accused of some sort of sexual offense"; and Juror Twenty-One "because he was a teacher," and the prosecutor "almost always" strikes teachers. The court found the prosecutor had provided gender-neutral reasons for the strikes and concluded Hancock had not met his burden of establishing purposeful discrimination.
¶33 On appeal, Hancock argues the gender-neutral reasons offered by the prosecutor for the peremptory strikes "were facially pretextual and not explained." He maintains, "At the very least, the [trial] court was obligated to ask some additional questions of the prosecutor." He also contends that "merely because additional men were seated on the jury . . . does not remedy the discriminatory nature of the [s]tate's challenges."
¶34 Turning to the Batson analysis, we need not address the first step because "[o]nce [the state] has offered a [gender]-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether [Hancock] had made a prima facie showing becomes moot." Id. ¶ 25 (quoting Hernandez v. New York, 500 U.S. 352, 359 (1991)).
¶35 Next, under the second step of Batson, the reasons given by the prosecutor in this case were gender neutral. As the state points out, a potential juror's employment, age, reluctance to serve, and potential sympathy for the defendant have all been upheld as valid, non-discriminatory reasons supporting the exercise of a peremptory strike. See State v. Sanderson, 182 Ariz. 534, 540 (App. 1995); see also Martinez, 196 Ariz. 451, ¶ 17 (juror's possible sympathy for defendant because of work as pastor supported strike); State v. Rodarte, 173 Ariz. 331, 335 (App. 1992) (juror's work history may support strike). The prosecutor therefore satisfied step two, and, contrary to Hancock's suggestion otherwise, it was not incumbent on the trial court to further question the prosecutor regarding his strikes. See Newell, 212 Ariz. 389, ¶ 58.
¶36 Finally, under the third step of Batson, Hancock offered no evidence to show that the strikes were the result of purposeful gender discrimination. See id. ¶ 54. Moreover, we will not second-guess the court's credibility determinations as to the validity of the prosecutor's gender-neutral explanations. See Garcia, 224 Ariz. 1, ¶ 27; Gay, 214 Ariz. 214, ¶ 19. Accordingly, we conclude the court did not err in denying Hancock's Batson challenge. See Newell, 212 Ariz. 389, ¶ 51; Gay, 214 Ariz. 214, ¶ 16.
Law-Abiding Character
¶37 Hancock next maintains the trial court erred by precluding evidence of his law-abiding character. We review the preclusion of evidence for an abuse of discretion. State v. Davis, 205 Ariz. 174, ¶ 23 (App. 2002).
¶38 Before trial, Hancock informed the court that he planned to call witnesses to testify about his character for being a law-abiding person. In response, the state argued Hancock could "raise the character trait of lawfulness" but "doing so will open the door" to his non-law-abiding nature, including testimony from another coworker, J.R., that Hancock had inappropriately poked her despite making it clear she did not want to be touched. The court agreed with the state that the poking incident could constitute misdemeanor assault and that evidence of Hancock's law-abiding nature would "open the door" to the state asking "very limited[]" questions regarding J.R. being poked inappropriately. Hancock elected to not call the witnesses to testify about his law-abiding character.
¶39 Pursuant to Rule 405(a), Ariz. R. Evid., "[w]hen evidence of a person's character . . . is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct." The rule provides for "[c]ross-examination of a character witness about specific instances of conduct . . . so that the jury can evaluate whether the witness's opinion concerning the character trait is well-founded." State v. Rockwell, 161 Ariz. 5, 10 (1989).
¶40 On appeal, Hancock argues he "had the right to present testimony as to his reputation for being a law abiding citizen." He additionally maintains the trial court's ruling "den[ied him] the right to put on his defense."
¶41 First, contrary to Hancock's suggestion, the trial court did not preclude him from presenting evidence of his law-abiding nature. Rather, it stated that, if he introduced such evidence, the state could cross-examine the witnesses about a specific example of his non-law-abiding behavior. This ruling was consistent with Rule 405(a), which Hancock does not address on appeal. See Davis, 205 Ariz. 174, ¶ 23.
¶42 Second, as a general rule, a defendant fails to preserve such a claim of error "[b]y failing to call his character witnesses, forcing us to speculate as to what precisely the witnesses would have testified had they in fact appeared, what the prosecutor would have ultimately asked, and how the judge would have finally ruled." State v. Romar, 221 Ariz. 342, ¶ 6 (App. 2009). Application of this rule is particularly appropriate here, where the trial court specifically noted that, although it thought cross-examination about the poking incident was proper, the state would nonetheless "need to clarify [any] question" before asking it. Accordingly, we do not consider this issue further. See id. ¶ 9.
Prosecutorial Vouching
¶43 Hancock lastly contends that the prosecutor "effectively vouched" for E.R. when he asked another witness whether E.R. had been truthful. Hancock maintains the trial court erred by overruling his objection and denying his motion for a mistrial on this basis. We review for an abuse of discretion. See State v. Lee, 189 Ariz. 608, 616 (1997) (reviewing motion for mistrial based on prosecutorial misconduct); see also State v. Haskie, 242 Ariz. 582, ¶ 11 (2017) (reviewing admission of evidence).
¶44 At trial, the coworker who punched Hancock on January 17 testified. During direct examination, the coworker explained that she and E.R. had a conversation about Hancock earlier in the day and that she was concerned about E.R. Later, during redirect, the prosecutor asked, "Did you have an opinion about [E.R.'s] truthfulness?" Hancock objected, arguing, "This is just a blatant attempt at vouching, getting the witness to vouch [for] someone else's truthfulness." The trial court overruled the objection, and the prosecutor repeated the question, "Did you have an opinion as to [E.R.'s] truthfulness or untruthfulness in January of 2016?" The coworker responded, "I thought she was telling me the truth." Later, Hancock moved for a mistrial, reasoning that the prosecutor was "having a witness vouch for [E.R.'s] truthfulness." The court denied the motion.
¶45 "Impermissible prosecutorial vouching takes two forms: '(1) when the prosecutor places the prestige of the government behind its witness, and (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony.'" State v. Haverstick, 234 Ariz. 161, ¶ 6 (App. 2014) (quoting State v. Dumaine, 162 Ariz. 392, 401 (1989), disapproved on other grounds by State v. King, 225 Ariz. 87, ¶¶ 9, 12 (2010)). The first type involves a prosecutor's personal assurances of the witness's truthfulness, while the second consists of prosecutorial remarks that bolster the witness's credibility by reference to materials outside the record. State v. Dunlap, 187 Ariz. 441, 462 (App. 1966).
¶46 Here, the prosecutor's questioning of the coworker about E.R.'s truthfulness did not constitute prosecutorial vouching. Rather than giving personal assurances of E.R.'s truthfulness, the prosecutor asked another witness to testify about her truthfulness. See id. Hancock seemed to recognize as much below, given that he argued the witness—not the prosecutor—was vouching for E.R.'s credibility. In addition, the prosecutor made no remark bolstering E.R.'s credibility by referring to materials outside of the trial record. See id. The prosecutor's question, which was asked after defense counsel had suggested during cross-examination that the coworker was "not happy" with Hancock at the time of the incident because of an unrelated issue, allowed the witness to explain why she reacted by punching Hancock upon seeing him touch E.R. Cf. State v. McCall, 139 Ariz. 147, 159 (1983) (prosecutor's questioning of witness did not constitute vouching but instead elicited testimony showing witness had no motive to testify falsely). Accordingly, no prosecutorial vouching occurred.
Hancock also seems to suggest that prosecutorial vouching occurred during closing arguments. However, he admits he did not raise this argument below, and he does not direct us to the purported improper comments on appeal. The argument is therefore waived. See Ariz. R. Crim. P. 31.10(a)(7) (opening brief shall contain argument with "citations of legal authorities and appropriate references to the portions of the record"); State v. Bolton, 182 Ariz. 290, 298 (1995).
¶47 In a related argument, Hancock relies on State v. Reimer, 189 Ariz. 239 (App. 1997), to argue that lay witnesses may not testify about the truthfulness of a statement by another witness. But Hancock did not raise this argument below. See State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008) (objection on one ground does not preserve issue on another ground; when party fails to object below, we review for fundamental, prejudicial error). And he does not argue on appeal that fundamental, prejudicial error occurred. Accordingly, the argument is waived. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008).
¶48 Even assuming the argument was not waived, however, Hancock has not met his burden of establishing fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). While it is true that in Arizona lay testimony concerning the veracity of a statement by another witness is prohibited, lay witnesses may nonetheless "give opinion testimony, even as to the ultimate issue, when it is rationally based on the perception of the witness and . . . helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." State v. Martinez, 230 Ariz. 382, ¶ 11 (App. 2012) (quoting State v. Doerr, 193 Ariz. 56, ¶ 26 (1998)); see also Ariz. R. Evid. 701. As mentioned above, the coworker's testimony that she "thought [E.R.] was telling . . . the truth" was based on her perception and helped explain why she reacted by punching Hancock. Cf. Martinez, 230 Ariz. 382, ¶ 13 (officer's testimony that he did not believe defendant's statements necessary to explain why officer did not continue investigation). In addition, Hancock has offered no argument explaining how the coworker's statement caused him any prejudice. See Escalante, 245 Ariz. 135, ¶ 21. Notably, the trial court instructed the jury about its duty to determine the credibility of witnesses, and we presume the jury followed its instructions. See Newell, 212 Ariz. 389, ¶ 68.
Arizona law also prohibits expert witnesses from testifying about the truthfulness of a statement by another witness. Reimer, 189 Ariz. at 241; see also State v. Moran, 151 Ariz. 378, 382 (1986). However, the coworker in this case was not an expert. --------
Disposition
¶49 For the foregoing reasons, we affirm Hancock's convictions and terms of probation.