Opinion
2 CA-CR 2023-0076
10-21-2024
The State of Arizona, Appellee, v. Steven Charles Holmes, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Emily Tyson-Jorgenson, Assistant Attorney General, Tucson Counsel for Appellee Megan Page, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County Nos. CR20192402001 and CR20213430001 The Honorable Kimberly H. Ortiz, Judge The Honorable James E. Marner, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Emily Tyson-Jorgenson, Assistant Attorney General, Tucson Counsel for Appellee
Megan Page, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant
Judge Vasquez authored the decision of the Court, in which Presiding Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
VASQUEZ, JUDGE:
¶ 1 After a jury trial, Steven Holmes was convicted of three counts of sexual assault; two counts of sexual assault, domestic violence; aggravated assault, domestic violence; and kidnapping, domestic violence.The trial court sentenced him to concurrent and consecutive prison terms totaling thirty-three years. On appeal, Holmes argues the court erred by failing to strike a juror for cause and admitting other-acts evidence. He also contends that the prosecutor committed multiple errors, which individually and cumulatively tainted the verdict and denied Holmes his right to a fair trial. For the following reasons, we affirm.
The convictions arose from charges in two separate cases, which were consolidated for trial.
Factual and Procedural Background
¶ 2 We view the evidence in the light most favorable to sustaining the jury's verdicts. See State v. Causbie, 241 Ariz. 173, ¶ 2 (App. 2016). Holmes and C.R. met on a dating website in 2015. On their second date, C.R. drove to Holmes's apartment to watch a movie. After giving Holmes a back massage and believing he was asleep, C.R. tried to leave, but Holmes "pulled [her] back onto the bed and got on top of [her] and began to strangle [her]" with "both of his hands around [her] neck." Holmes then forced C.R. to perform oral sex on him and penetrated her both vaginally and anally without her consent.
¶ 3 Several weeks later, C.R. went back to Holmes's apartment because she "was pissed" and "wanted to fight him." But once she arrived, "the fight in [her] just kind of left" and they talked "[f]or quite some time" before engaging in consensual sex. Over the next several months, C.R. continued to see Holmes "about twice a month" for consensual vaginal sex, until their last encounter on February 14, 2016. On that date, C.R. drove to Holmes's apartment, and he again penetrated her vaginally without her consent.
¶ 4 Sometime after the end of their relationship, C.R. began an online search to determine whether Holmes had "do[ne] this to somebody else." C.R. created fake profiles on a dating website and used them to communicate with Holmes, "wrote a Craig list ad out asking if anyone else had been sexually assaulted by him," and conducted public records searches to discover the names of "various people [she] thought he might be connected to." C.R. found several women, who had been involved with Holmes, and contacted them using fake profiles through various communication outlets. When C.R. eventually reported Holmes to the Tucson Police Department in 2019, she relayed those names to the detective.
¶ 5 One of these women was L.M., who had met Holmes through work in 2018. Between September 2018 and January 2019, Holmes and L.M. engaged in what L.M. described as a "purely physical" extra-marital affair, meeting a "few times a month" for consensual vaginal intercourse and oral sex. Holmes expressed interest in anal sex to L.M., but she refused. During one instance of vaginal sex, Holmes "pulled out for a second and then when he tried to reenter, it was in the wrong place." L.M. told him he was in the "wrong spot," and when Holmes tried again, L.M. got upset because she "could not have been more clear that that wasn't [her] thing." L.M. continued to see Holmes periodically until she moved out of the state in January 2019, ending their relationship.
L.M. was one of the named victims in Holmes's trial. Holmes was acquitted of the sexual assault charge involving L.M., and she is discussed here only for purposes related to the admissibility of other-acts evidence.
Holmes was married between April 2016 and February 2019. His former wife was not a party to either case.
¶ 6 Holmes was arrested in May 2019, after C.R. had reported him to the police. As amended, the 2019 indictment charged Holmes with three counts of sexual assault and one count of sexual assault, domestic violence against C.R., and one count of sexual abuse against L.M. In June 2019, Holmes was granted conditional release pending trial for those charges.
¶ 7 While on release, Holmes became friends with C.O., and they eventually began a sexual relationship. Over the course of their relationship, C.O. would drive to Holmes's apartment "quite a bit" to engage in consensual vaginal sex, which also occasionally included consensual strangulation. In August 2021, C.O. went to Holmes's apartment, and what had started as consensual sex turned into Holmes vaginally penetrating C.O. without her consent while "start[ing] to choke [her] with both of his hands" and refusing to let go. C.O. reported the incident to the Tucson Police Department that afternoon, and she subsequently underwent a sexual assault examination and an interview with a forensic sexual assault nurse. The exam revealed injuries consistent with strangulation and signs of vaginal penetration. Holmes was arrested, and in September 2021, he was indicted for sexual assault, aggravated assault, and kidnapping, all domestic violence offenses, against C.O.
¶ 8 The 2019 and 2021 cases were consolidated for trial, and Holmes was convicted and sentenced as described above. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion I. Failure to Strike Juror 11 for Cause
¶ 9 Holmes argues that the trial court's refusal to strike Juror 11 for cause was structural error that resulted in a denial of his constitutional right to a fair trial. We review a court's refusal to strike a juror for cause for an abuse of discretion. State v. Colorado, 256 Ariz. 97, ¶ 23 (App. 2023).
¶ 10 A criminal defendant has a constitutional right to be tried by an impartial jury. U.S. Const. amend. VI; Ariz. Const. art. II, § 24. A trial court must excuse a prospective juror if there is "reasonable ground to believe" that the juror "cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b). Because the court has the greatest "opportunity to observe the potential juror's demeanor and credibility," State v. Lavers, 168 Ariz. 376, 390 (1991), it is in the best position "to assess whether prospective jurors should be allowed to sit," State v. Blackman, 201 Ariz. 527, ¶ 13 (App. 2002). "Trial courts thus 'retain broad discretion' to determine whether there are reasonable grounds to doubt that a venireperson will be able to serve as a fair and impartial juror." State v. Jimenez, 255 Ariz. 550, ¶ 5 (App. 2023) (quoting State v. Eddington, 226 Ariz. 72, ¶ 17 (App. 2010)). We will not set aside a court's ruling on whether to excuse a juror for cause "absent clear and prejudicial abuse of that discretion." State v. Milke, 177 Ariz. 118, 122 (1993); see Colorado, 256 Ariz. 97, ¶ 23. As the party challenging a juror for cause, Holmes has the burden to establish by a preponderance of the evidence that Juror 11 was incapable of being fair and impartial. See Ariz. R. Crim. P. 18.5(h); see also State v. Comer, 165 Ariz. 413, 426 (1990). Based on the record before us, we conclude the trial court did not abuse its discretion by denying Holmes's request to strike Juror 11.
¶ 11 Holmes testified in the morning and the afternoon on the fifth day of trial. After the defense rested, Holmes moved to strike Juror 11 for cause because she had "refused to look at [him] during his testimony" and had "her right shoulder and right back to him the entire time," looking only "at the defense table and prosecutor during questioning." Holmes further argued that, although Juror 11 took an oath to be fair and impartial, "[b]y her body language, she [had] indicated she was unwilling to consider [his] testimony." The state countered that Juror 11 "didn't have her hands over her ears" and that there was "no reason to believe that she was not listening or not absorbing what he had to share." Relying on the presumption that jurors will follow their oath of impartiality, the state urged that "unless and until we receive some kind of affirmative evidence that she is not following her oath," the trial court should not "take any actions." The court denied Holmes's request to strike Juror 11.
¶ 12 Before closing arguments the next day, Holmes renewed his motion to strike Juror 11, specifically requesting "that she be made an alternate" and suggesting the trial court "do a random drawing of the other alternate." The state objected. The court then stated the following:
I also noted what [defense counsel] pointed out .... Juror number 11, while Mr. Holmes was testifying[,] did not look at Mr. Holmes and I didn't see that behavior with any other witness. I did notice it as well. What I don't want to do is read into too much body language so I understand your concern. I'm acknowledging it. I saw similar behavior and noted it myself. However, I don't think it rises to the level of excusing her for cause because that [is] essentially what it would be. So while I do acknowledge your concern, the request is denied.
¶ 13 Citing Rule 18.4(b), Holmes contends the trial court abused its discretion because Juror 11's "body language provided reasonable grounds to believe that she was biased" and the court was therefore "required to strike her for cause." Holmes maintains the only "reasonable way to interpret" Juror 11's body language was as a clear signal that "she was biased against him, had made her mind up, and was not going to accept anything that he had to say."
¶ 14 Beyond moving to strike Juror 11 based on her sitting position, Holmes did not sufficiently develop the record regarding Juror 11's alleged bias. Holmes did not, for example, ask the trial court to bring Juror 11 in for additional questioning, or otherwise attempt to determine if rehabilitation was necessary. See Ariz. R. Crim. P. 18.5(f) (upon request, trial court "must allow the parties sufficient time, with other reasonable limitations, to conduct a further oral examination of the prospective jurors"); see also State v. Payne, 233 Ariz. 484, ¶ 16 (2013) (trial court erred by failing to afford opportunity to rehabilitate prospective juror under oath).
¶ 15 Without obtaining clarification directly from Juror 11, Holmes's allegation of bias based on her body language is speculative. This does not meet the required burden of showing partiality by a preponderance of the evidence. See Ariz. R. Crim. P. 18.5(h); see also Comer, 165 Ariz. at 426. And, contrary to Holmes's argument that there existed only one reasonable interpretation of Juror 11's body language, the trial court reached a different conclusion. When acknowledging Juror 11's behavior, the court expressly found that the particular "body language" it observed did not constitute a reasonable basis to infer prejudice or "rise to the level of excusing her for cause." See Ariz. R. Crim. P. 18.5(h) (court "must consider totality of a prospective juror's conduct" in determining whether to strike juror for cause).
¶ 16 Nothing in our review of the record indicates Juror 11 was incapable of rendering a fair and impartial verdict. A jointly prepared jury questionnaire was used, and none of Juror 11's responses elicited follow-up by either party during voir dire. And several times throughout voir dire, the trial court reiterated the importance of each juror remaining fair and impartial. Between the preliminary and final jury instructions, jurors were directed to keep an open mind, avoid forming any opinions until after presentation of all evidence, remain uninfluenced by sympathy or prejudice, and evaluate the defendant's testimony the same as any witness's testimony.
¶ 17 We presume Juror 11 followed the trial court's instructions, see State v. Newell, 212 Ariz. 389, ¶ 69 (2006), and because the record does not affirmatively show that she could not be fair and impartial, the court did not err, see State v. Greenawalt, 128 Ariz. 150, 167 (1981); see also State v. Morris, 215 Ariz. 324, ¶ 40 (2007) (while "defendant in a criminal case is entitled to a fair and impartial jury for the trial of his case, . . . he is not entitled to be tried by any particular jury" (quoting State v. Atwood, 171 Ariz. 576, 624 (1992))). Having determined there was no error, we do not address Holmes's claim that it was structural. See State v. Diaz, 223 Ariz. 358, ¶ 11 (2010) ("Regardless of how an alleged error ultimately is characterized, . . . a defendant on appeal must first establish that some error occurred.").
II. Admission of Other-Acts and Propensity Evidence
¶ 18 Holmes argues the trial court committed reversible error by admitting "aberrant sexual propensity evidence that was inadmissible under Rules 404(b)-(c) and 403[, Ariz. R. Evid.]" We review the court's decision to admit other-acts evidence for an abuse of discretion. State v. Villalobos, 225 Ariz. 74, ¶ 18 (2010). The court abuses its discretion when the reasons supporting its ruling "are clearly untenable, legally incorrect, or amount to a denial of justice." State v. Herrera, 232 Ariz. 536, ¶ 19 (App. 2013) (quoting State v. Chapple, 135 Ariz. 281, 297 n.18 (1983)). We review properly preserved issues for harmless error, and unobjected-to issues for fundamental error. State v. Henderson, 210 Ariz. 561, ¶¶ 18, 19 (2005); State v. Bible, 175 Ariz. 549, 572, 588 (1993).
As noted above, Holmes was separately charged for crimes involving sexual assault in 2019 and 2021. After the 2019 case was reassigned in November 2021, the parties and the trial court discussed whether the two cases should be consolidated for trial, given the difference between the charged acts in each case and the potential risk of prejudice to Holmes. The court indicated it would "take the [consolidation] matter under advisement" after ruling on pending motions, but the record on appeal does not include an order consolidating the cases. Because the cases were ultimately tried together, we assume Holmes elected to consolidate. Notably, as a result, Holmes properly acknowledges that "any error related to cross-admissibility of the charged conduct is invited."
¶ 19 Admission of other-acts evidence is governed by four "protective provisions" of the rules of evidence:
(1) the evidence must be admitted for a proper purpose under Rule 404(b); (2) the evidence must be relevant under Rule 402[, Ariz. R. Evid.]; (3) the trial court may exclude evidence if its probative value is substantially outweighed by the potential for unfair prejudice
under Rule 403; and (4) the court must give an appropriate limiting instruction if requested under Rule 105[, Ariz. R. Evid.]State v. Lee, 189 Ariz. 590, 599 (1997). 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)(1). However, other-acts evidence may 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)(2). Additionally, such evidence is admissible in sexual assault cases "if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged." Ariz. R. Evid. 404(c). The introduction of otherwise inadmissible other-acts evidence does not require reversal if the record discloses no reasonable probability that the evidence unduly prejudiced the trial outcome. See State v. Jones, 197 Ariz. 290, ¶¶ 32, 34 (2000).
A. Oral Sex Preferences with L.M.
¶ 20 Holmes first contends the trial court abused its discretion by admitting "the evidence of [his] preferences during oral sex with L.M. under Rule 404(c)." Although Holmes did not object to the introduction of this evidence at trial, the issue was preserved by his pretrial motion to preclude it, and we therefore review for harmless error. See State v. Duran, 233 Ariz. 310, ¶ 7 (2013) (defendant preserves for appeal any issues raised in motion in limine and ruled upon without need for further objection at trial).
¶ 21 In May 2020, the state filed both a notice of intent to introduce other-acts evidence and a motion to determine admissibility of specific instances of conduct, pursuant to Rules 402 and 404(b), (c). As relevant here, the state argued that the other acts showed Holmes had an "aberrant sexual desire to . . . obstruct his partner's airway with his penis during oral sex," such that "they are unable to breathe freely." Specifically related to L.M., the state sought to introduce evidence that she had "difficulty breathing during oral sex" because Holmes would "force his penis down [her] throat[]." In his response, Holmes argued the evidence was "irrelevant and inadmissible" under Rule 402, unfairly prejudicial under Rules 404(b) and 403, and unlikely to survive the credibility determination required under Rule 404(c).
The state's notice and motion for the 2019 case included other named victims, but Holmes raises evidentiary challenges only as related to L.M., and we limit our discussion accordingly.
¶ 22 Before admitting aberrant sexual propensity evidence under Rule 404(c), a trial court must make three specific findings: (1) the evidence is sufficient to permit the jury to find that the defendant committed the other act; (2) the commission of the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged; and (3) the evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other relevant Rule 403 factors. Ariz. R. Evid. 404(c)(1). When propensity evidence is admitted at trial, the court must also provide a proper limiting instruction to the jury. Ariz. R. Evid. 105, 404(c)(2).
¶ 23 In December 2020, the trial court issued a ruling supported by its findings on the admissibility of the other-acts evidence, pursuant to Rule 404(b) and (c). To aid in its determinations, the court reviewed several relevant items of evidentiary support, including Holmes's motion in limine and exhibits, the state's disclosure and response, police reports, and transcripts and audio recordings of victim interviews.
¶ 24 The trial court addressed each required element under Rule 404(c), finding that (1) "the state ha[d] presented sufficient evidence by the transcripts, audio, and reports . . . of the alleged other acts" for the jury to find by clear and convincing evidence "that [Holmes] committed the other acts"; (2) "the commission of the other acts provide[d] a reasonable basis to infer that [Holmes] had a character trait or traits giving rise to an aberrant sexual propensity" to commit charged crimes, including "'deep-throating' oral sex to where the partner cannot breathe as her airway is obstructed by his penis"; and (3) while the evidence was "prejudicial, which underscore[d] its relevance," it did not present a "risk of unfair prejudice or confusion of issues or other factors in Rule 403." See Ariz. R. Evid. 403, 404(c)(1). The court adopted its Rule 404(c) findings for its Rule 404(b) analysis and determined the same evidence was also admissible under Rule 404(b).
Under its Rule 404(b) analysis, the trial court specifically found that "the other acts [were] relevant" and "although some of the acts [were] more remote to the charged offenses," the jury could "reasonably . . . infer that the other acts show[ed Holmes's] motive, opportunity, intent, preparation, plan, knowledge, and/or absence of mistake or accident." See Ariz. R. Evid. 404(b).
¶ 25 Despite the trial court's detailed ruling, on appeal Holmes maintains the evidence of oral sex preferences with L.M. was admitted in error under Rule 404(c) because the court "never described how deep-throat oral sex provided a reasonable basis to infer that [Holmes] had a character trait that gave rise to a propensity to commit multiple acts of sexual assault against C.R. by forcing her-against her will-to give him oral sex." He also alleges the probative value of the evidence did not outweigh the danger of unfair prejudice because "the uncharged acts were completely different than the charged acts" and the other acts did not demonstrate an "escalation of behavior like the court found." He further argued that "deep-throating" "cannot be categorized as a character trait" because it did not occur with the first victim, C.R.
¶ 26 In addressing these specific arguments under Rule 404(c)(1)(C), specifically related to L.M., the trial court found: (i) the alleged acts were close in proximity to the charged acts; (ii) the alleged acts are similar to the charged acts, including . . . "deep-throated oral sex"; (iii) "[f]irst-hand descriptive evidence from L.M. support[ed] the allegations that [Holmes] committed the other acts"; (iv) the acts occurred as part of the relationship between L.M. and Holmes; (v) the acts continued throughout the duration of their relationship; (vi) the other acts were similar to and consistent with the charged acts, and they showed, among other things, "an escalation to . . . more aggressive oral sex"; (vii) all of the victims shared "uncanny similar descriptions and experiences," which supported the conclusion that Holmes had "the relevant character traits"; and (viii) the evidence was "not cumulative . . . because it demonstrate[d] an escalation in [Holmes's] character trait for an aberrant sexual interest" in, among other things, "aggressive and/or rough oral sex with either willing or unwilling partners." Given the full explanation of reasons for admission found in its ruling, the court did not abuse its discretion here, and there was no error.
Holmes also contends the other-acts evidence was admitted in error under Rule 404(b), but because the evidence was properly admitted under Rule 404(c), we need not perform an independent review of his claims of inadmissibility on other grounds. See State v. James, 242 Ariz. 126, ¶ 28 (App. 2017) ("[W]e may affirm an evidentiary ruling on any basis supported by the record.").
B. Oral Sex and Anal Sex Preferences with C.O.
¶ 27 Holmes makes several arguments related to the admission of oral and anal sex "preferences" and "interest" with C.O. He first argues "[t]he evidence of 'deep-throat' oral sex testified to by C.O. was inadmissible" in the 2019 case for the "same reasons L.M.'s testimony was inadmissible as discussed above." He also contends the oral sex evidence was not admissible to the "charges in the 2021 case for the same reason the court and the state agreed that the evidence from the 2019 case should not come in [to the 2021 case]-it was not similar and did not speak to any issues present in the case." He then claims the evidence of his "interest in anal sex expressed to C.O." was "inadmissible under Rule 404(b) and (c) in both cases." According to Holmes, this evidence "essentially guaranteed the guilty verdict" and, without it, "a reasonable jury could have reached a different conclusion." Because the trial court issued an order precluding this evidence, we review its introduction for harmless error. See Bible, 175 Ariz. at 588.
Holmes does not cite the specific portions of "L.M.'s testimony" to which this contention refers, nor does he explain what he means by "the same reasons." Despite Holmes's failure to sufficiently develop this argument, State v. Bolton, 182 Ariz. 290, 298 (1995), because we find the trial court properly admitted L.M.'s testimony, we apply the same conclusion here, see James, 242 Ariz. 126, ¶ 28.
In his opening brief, Holmes asserts this claim is "subject to review for fundamental error" because "there was no pretrial ruling on the matter." However, the trial court issued an order precluding the state from "making any mention of other acts which involved oral or anal sexual preferences" in the 2021 case. To the extent this evidence was not precluded in the 2019 case, any argument related to cross-admissibility of evidence became moot once the cases were consolidated for trial. Because neither party requested that the court re-address admissibility of this evidence after the cases were consolidated, the court's ruling for the 2021 case was globally applicable, thus preserving the issue on appeal.
¶ 28 In October 2021, the state filed a supplemental notice of intent to introduce other-acts evidence of strangulation during sex with C.O. Holmes responded with a motion in limine regarding other-acts evidence that formed the basis for the 2021 case. In his motion, Holmes sought to preclude evidence of C.O.'s claim that he had "thrust his penis inside her mouth causing her to gag and experience difficulty breathing" and her claims that he had "tried to penetrate her anus with his finger" and "talk[ed] with her about anal sex, but that they ha[d] not done that." In response, the state indicated that it "d[id] not intend to introduce [Holmes's] penchant for non-consensual anal sex and engagement in 'deep throating' oral sex to the point that his partner cannot breathe or speak under [the 2021] cause number."
¶ 29 At the January 2022 hearing on his motions in limine, Holmes argued that "any findings under [Rule] 404(c) and 404(b) [from the 2019 case] should not count to the 2021 matter," because the cases were "vastly different" and certain evidence from the 2019 case was "simply irrelevant" to the 2021 case. The trial court asked if the state "inten[ded] to offer any [Rule] 404(b) [or] 404(c) evidence regarding any anal or oral sexual preferences," to which the state answered, "No, Judge. I'm really only focusing on the strangulation aspect of the original." The court then ordered that "the State shall not make any references to any other acts which would involve anal or oral sexual references" in the 2021 case involving C.O. The court's minute entry was consistent with its ruling from the bench, and its later-issued ruling permitted the state to introduce evidence of "the alleged strangulation of C.O. by [Holmes]" in the 2019 case, but made no mention of other-acts evidence related to oral or anal sexual preferences. Because the court's ruling prohibited "any references to any other acts which would involve anal or oral sexual references" in the 2021 case, after the court consolidated the cases for trial, this ruling necessarily also applied to the 2019 case.
¶ 30 During direct examination, the state elicited testimony from C.O. about both aggressive oral sex and Holmes's interest in anal sex. Relevant portions of the questioning included:
[State]: Did he ever express an interest in anal sex?
[C.O.]: Yes, a lot.
[State]: Was that something that you were interested in?
[C.O.]: No. ....
[State]: Did you ever have oral sex with him?
[C.O.]: Yes. ....
[State]: Was there ever anything about how he did that that sort of stood out to you in your mind?
[C.O.]: Yes. It felt like he would be too aggressive sometimes. ....
[State]: What was it that he wanted or that he was trying to have you do that you felt was aggressive and caused you to stop?
[C.O.]: Doing, like, deep throat.
[State]: When that happened, what did it feel like in terms of your ability to breathe or to talk?
[C.O.]: Yeah, like it was hard to breathe.
¶ 31 Because this evidence violated the court's order, we review for harmless error. See Henderson, 210 Ariz. 561, ¶ 18. Error is harmless if "we can say, beyond a reasonable doubt, that it did not contribute to or affect the verdict." Bible, 175 Ariz. at 588. The proper inquiry is not whether a guilty verdict would surely have been rendered without the error, but "whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id.
¶ 32 As a threshold matter, we note that the state did not expressly argue in its answering brief that the alleged error was harmless. Because harmlessness is the state's burden to prove, failure to explicitly argue the error was harmless beyond a reasonable doubt could constitute waiver of the state's argument. See State v. Teran, 253 Ariz. 165, ¶ 30 (App. 2022). However, we decline to apply waiver here. See State v. Smith, 203 Ariz. 75, ¶ 12 (2002) (doctrine of waiver is discretionary). In its answering brief, the state discusses the other-acts evidence admitted at trial, analyzes whether that evidence was unduly prejudicial to Holmes, and provides argument as to why the evidence did not affect the verdict. See State v. Ortiz, 238 Ariz. 329, ¶ 71 (App. 2015) (addressing principles underlying harmless error review can overcome waiver). The state thus, in essence, conducted a harmless error analysis, and we will review accordingly. See State v. Ketchner, 236 Ariz. 262, ¶¶ 20-26 (2014) (conducting harmless error review despite state's failure to argue error was harmless in brief). We evaluate whether an error is harmless based on the totality of properly admitted evidence and the facts of the case. State v. Fulminante, 193 Ariz. 485, ¶ 50 (1999); State v. Poyson, 198 Ariz. 70, ¶ 21 (2000).
¶ 33 Given the trial court's exclusionary order, it was improper for the state to elicit testimony from C.O. about Holmes's oral and anal sex preferences. See State v. Leon, 190 Ariz. 159, 163 (1997) (prosecutor "not entitled to refer, by innuendo or otherwise, to evidence that had been ruled inadmissible"). However, the error does not rise to a level requiring reversal. See State v. Hoskins, 199 Ariz. 127, ¶ 57 (2000) ("[W]e will not reverse a conviction based on the erroneous admission of evidence without a reasonable probability that the verdict would have been different had the evidence not been admitted.").
¶ 34 As Holmes acknowledges, and the state points out, "C.O.'s testimony about anal sex actually 'countered the State's claim that [Holmes] did not respect boundaries,'" making it "favorable to Holmes" and his "claim regarding consent." For example, C.O. testified that she had told Holmes she was not interested in anal sex, and when the prosecutor asked if she and Holmes had "ever tri[ed] it between the two of [them]," C.O. responded, "No, not really." C.O. also testified that she remembered telling a detective about the "one time" where she "kind of called a halt to it and [Holmes] stopped when [she] asked him." Because the evidence was beneficial to Holmes, he was not prejudiced by its admission.
¶ 35 Moreover, the trial court admitted a significant amount of other-acts evidence related to Holmes's "aberrant interest in 'deep-throated' oral sex [and] in anal contact and anal sex" based on the charges related to C.R. and L.M. Given the amount of similar evidence that was already properly in front of the jury, there is "no reasonable probability that the verdict would have been different" in the absence of C.O.'s testimony. See Hoskins, 199 Ariz. 127, ¶ 58. Any error in the admission of this evidence was therefore harmless and does not warrant reversal. See State v. Williams, 133 Ariz. 220, 226 (1982) (erroneous admission of entirely cumulative evidence constitutes harmless error).
The trial court gave a proper limiting instruction regarding other-acts evidence, pursuant to Rule 105. In relevant part, the jurors were told, "You may not convict the defendant of the crimes charged simply because you find that he committed these acts, or that he had a character trait that predisposed him to commit the crimes charged." The court also reminded the jurors that evidence of other acts "does not lessen the State's burden to prove the defendant's guilt beyond a reasonable doubt." Although a proper jury instruction "is not a panacea for error in every case," State v. Murray, 250 Ariz. 543, ¶ 38 (2021), based on the facts of this case, any taint from the improper evidence was not prejudicial in light of the limiting instruction and the reminder about the state's burden of proof, see State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 69 (2018).
III. Prosecutorial Error
¶ 36 Holmes raises multiple allegations of prosecutorial error, which he argues "individually and cumulatively tainted the verdict, thereby denying [him] his due process right to a fair trial." Holmes separates his claims into seven categories, contending the prosecutor erred by: (1) giving an "improper opening statement"; (2) introducing various items of "prejudicial evidence in violation of motions in limine and other pretrial agreements"; (3) admitting "aberrant sexual propensity evidence without notice"; (4) "[i]mplying there were additional victims"; (5) arguing to keep a "demonstrably biased" juror; (6) "[i]mproperly bolstering victims' credibility"; and (7) making an "[i]mproper comment on [Holmes's] constitutional right to be present at trial."
Our supreme court recently clarified that "[w]hen reviewing the conduct of prosecutors in the context of 'prosecutorial misconduct' claims, courts should differentiate between 'error,' which may not necessarily imply a concurrent ethical rules violation, and 'misconduct,' which may suggest an ethical violation." In re Martinez, 248 Ariz. 458, ¶ 47 (2020). Holmes correctly classifies his claims as allegations of "prosecutorial error," as he does not assert that the prosecutor engaged in intentional misconduct or committed an ethical violation.
¶ 37 Because Holmes did not object at trial on the basis of prosecutorial error, he has forfeited review for all but fundamental, prejudicial error for each of his claims. See State v. Murray, 250 Ariz. 543, ¶ 14 (2021). Under this standard, the defendant must show error and, if it exists, that the error is fundamental. See State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). To show the error is fundamental, Holmes must establish that "(1) the error went to the foundation of the case, (2) the error took from him a right essential to his defense, or (3) the error was so egregious that he could not have received a fair trial." Murray, 250 Ariz. 543, ¶ 20 (quoting Escalante, 245 Ariz. 135, ¶ 21). If Holmes establishes fundamental error under prongs one or two, he must make a separate showing of prejudice. Escalante, 245 Ariz. 135, ¶ 21.
¶ 38 "This standard applies to both individual and cumulative claims of prosecutorial error or misconduct." State v. Romero, No. 2 CA-CR 2023-0010, 2024 WL 3770837, ¶ 21 (Ariz. App. Aug. 13, 2024). We view a prosecutor's conduct within the context of the entire trial, and will not lightly overturn a conviction solely on the basis of a prosecutor's error. State v. Hernandez, 170 Ariz. 301, 308 (App. 1991) (citing United States v. Young, 470 U.S. 1, 11 (1985)). And, "[t]o determine whether prosecutorial [error] permeates the entire atmosphere of the trial, the court necessarily has to recognize the cumulative effect of the [error]." State v. Hughes, 193 Ariz. 72, ¶ 26 (1998). Therefore, we first review each alleged instance of prosecutorial conduct for error, and, if error is found, we decide whether the effects, individually or cumulatively, denied Holmes a fair trial. See Romero, 2024 WL 3770837, ¶ 22. "At each step, the defendant bears the burden of persuasion." Murray, 250 Ariz. 543, ¶ 15.
A. Opening Statement
¶ 39 Holmes claims the prosecutor committed error in her opening statement by "introduc[ing] prejudicial evidence that had been precluded from admission at trial" and "improperly argu[ing] conclusions and inferences to be drawn from the evidence." He maintains that these errors, "[a]lthough insufficient to warrant reversal" on their own, "cumulatively affected the verdict."
1. Introducing Prejudicial Evidence
¶ 40 Holmes asserts the prosecutor improperly "brought up [his] crayon-salesman line twice in her opening, despite the fact that she agreed it was not relevant and it had been precluded by court order." A prosecutor's remarks are improper if (1) they call the jury's attention to matters it is not justified in considering, and (2) there is a probability under the circumstances that the improper remarks influenced the jury's verdict. State v. Roscoe, 184 Ariz. 484, 496 (1996). Prejudice does not necessarily follow from improper comments. Id. at 496-97.
¶ 41 Before trial, Holmes filed a motion in limine to exclude the fact that he had "claimed he was a crayon salesman" when C.R. contacted him on the dating website using a false persona "lisab123" after their relationship ended. The state had "no objection to precluding any discussion of C.R. posing as 'Lisa' under profile 'lisab123' in conversations with [Holmes]," as long as the prohibition applied equally to both parties. The trial court therefore granted Holmes's motion, in part, and precluded either side from introducing evidence that "when [C.R.] posed as Lisa, lisab123, [Holmes] claimed he was a crayon salesman."
¶ 42 In her opening statement, the prosecutor said C.R. saw Holmes's profile on the dating website "with a line about [being] a crayon salesman," which "made her laugh and so she connected with [Holmes]." The prosecutor also discussed occasions in which Holmes would switch from being abusive towards C.R. "back to the funny guy who had the crayon salesman line." The prosecutor did not mention anything in her opening about C.R. having or using a fake profile. Indeed, the prosecutor's use of "the crayon salesman line" in this context related only to C.R.'s initial communications with Holmes on the dating website, which occurred under her real account, not her fake profile "lisab123." These remarks were therefore not precluded by the trial court's order, and they were not a matter the jury was unjustified in considering. See Roscoe, 184 Ariz. at 496-97. Because the remarks were not improper, we need not examine their potential improper influence on jurors. See Roscoe, 184 Ariz. at 496 (second factor presupposes prosecutor's remark is improper when analyzing probability that it influenced jury's verdict).
2. Improper Argument
¶ 43 Holmes contends the prosecutor "then compounded [her] error by arguing the crux of her case-[that] this was not a mistake, but was intentional conduct done without consent." Near the end of her opening statement, the prosecutor said:
As part of this claim, Holmes asserts that the prosecutor "not only argued how each of the charges were satisfied by the evidence" but she also "began to try and explain away some of the illogical or counterintuitive behaviors of the alleged victim." However, Holmes does not provide citations to the record to support either of these contentions. See Ariz. R. Crim. P. 31.10(a)(7) (appellant's argument section of opening brief must include "appropriate references to the portions of the record on which the appellant relies"). We are thus unable to conduct meaningful review of these aspects of his claim, and they are waived. See Bolton, 182 Ariz. at 298.
[T]hese women[,] when [Holmes] first crossed lines with them, they wanted it to be a mistake. But when he last crossed lines with them, it was no mistake. It was the various[] sexual assault in a variety of ways.... It was not a mistake. It was a crime. When you have heard from all the witnesses here, you may well say I wouldn't have dated that guy.
The trial court sustained Holmes's objection to the remarks being "argumentative."
¶ 44 We agree that "[o]pening statement is not a time to argue the inferences and conclusions that may be drawn from evidence not yet admitted." See Bible, 175 Ariz. at 602. However, as in Bible, the prosecutor's comments here were "reasonable inference[s] from evidence later introduced" at trial, and they "would have been proper during closing argument." Id.; see also State v. Vargas, 251 Ariz. 157, ¶ 13 (finding no prejudicial error where, in opening, "state referred to evidence it anticipated presenting-and did in fact present-at trial"). Our supreme court has determined that "[s]pecific evidence may be referenced in the opening statement as long as the proponent has a good faith basis for believing the proposed evidence exists and will be admissible." State v. Petroza-Perez, 240 Ariz. 114, ¶ 12 (2016).
¶ 45 Two of the three victims testified about Holmes going beyond their agreed-upon stopping point during certain sexual activities. One of the victims also testified that after the first time Holmes had crossed her boundaries, she wanted to believe it was "an honest mistake."
¶ 46 Thus, even assuming the prosecutor's comments were improper for the purposes of opening statement, they did not deprive Holmes of a fair trial, and they do not warrant reversal. See Bible, 175 Ariz. at 602.
B. Introduction of Prejudicial Evidence in Violation of Court Order and Other Pretrial Agreements
¶ 47 Holmes alleges a number of specific instances in which "the prosecutor erroneously inserted prejudicial evidence into the trial in violation of court rulings and pretrial agreements." He argues the errors were both fundamental and prejudicial because "they directly impacted the only key factual dispute-witness credibility," and in their absence "a reasonable jury could have reached a different result."
1. "Crayon salesman"
¶ 48 Holmes first reasserts his claim of error based on the prosecutor's use of the term "crayon salesman" in her opening statement, and alleges another claim of error for use of the term during direct examination of C.R. Because we have already addressed the prosecutor's use of the term in her opening statement, we review briefly the "crayon salesman" discussion during C.R.'s testimony.
¶ 49 During direct examination, the prosecutor asked C.R. how she met Holmes on the dating website, and C.R. responded that he had "contacted [her] and said he was a crayon salesman and [she] thought that was kind of funny." The prosecutor then asked how long it had been between the time Holmes initially contacted C.R. with the "crayon salesman line" to when they began talking on the phone. Holmes objected to "the crayon salesman line," which the trial court overruled.
¶ 50 As previously discussed, use of the term "crayon salesman" was not precluded in its entirety by the trial court's order. Rather, as Holmes acknowledges, the state was limited in its use of the term only "as it related to one of [C.R.'s] false personas," not with respect to C.R.'s interactions with Holmes under her real profile. Because this testimony related exclusively to conversations conducted from C.R.'s real profile, no error occurred here.
2. "Survivor"
¶ 51 Holmes next argues the prosecutor committed prejudicial error by "using the word survivor on multiple occasions despite her agreement not to do so and the court's ruling to the contrary." He points specifically to the prosecutor's use of the term in her opening statement and during direct examination of a police officer. We review each claim in turn.
a. Opening Statement
¶ 52 In November 2022, Holmes filed a motion in limine to preclude the sexual assault nurse examiner from referring to C.O. as a "survivor" during her testimony. During the hearing on the motion, the state agreed to "ask [the nurse] to refer to C.O. by name[,] as a patient[,] or by using the legal term 'victim' as defined [by statute]." The trial court granted Holmes's motion, ordering that "[t]he witness shall not refer to any of the alleged victims in this case as 'survivors.'" The court's reference to "the witness" in this context related exclusively to the sexual assault nurse's testimony.
¶ 53 Holmes contends the prosecutor violated this court order in her opening statement as she described victim C.R.'s reaction to Holmes's abuse:
She did not report him to Border Patrol. She did not make any kind of complaint. She did not do anything. She started therapy. She started running. She went to a survivor's group. The trial court overruled Holmes's objection, explaining that it found the evidence relevant for credibility purposes and to explain C.R.'s delayed disclosure.
¶ 54 The trial court's ruling was proper for several reasons. First, the court's order did not preclude the state from using the word "survivor" generally. Second, the prosecutor used the word to describe a type of selfhelp group, not a particular victim. Third, the term was not used in relation to the sexual assault nurse or the sexual assault examination, which was the only context in which its use was limited by court order. Thus, there was no error.
b. Direct Examination of Detective
¶ 55 Holmes argues the prosecutor's use of the word "survivor" while examining a police detective constituted "improper vouching" because "it assumes that a crime has been committed when that has yet to be proven," and "prejudicially implies the person has had to 'survive' some significant trauma that may have resulted in death."
Holmes also reurges his argument that use of the term "survivor" during the detective's testimony was "in direct violation of [the prosecutor's] agreement and the court's order." Because there was no violation of a court order, we do not address that aspect of this claim.
¶ 56 On direct examination, the prosecutor asked the detective to explain his "training in terms of what [sexual assault] exams involve." The detective responded, "[I]n terms of my familiarity with the exams themselves, I generally understand what is occurring, some of the questions that may be asked, and then often the results of the answers provided by the survivor."
¶57 The prosecutor repeated the word in a series of follow-up questions:
[Prosecutor]: You said that you become aware of what the survivor or the victim or whomever, that [C.O.] in this case, says to the nurse. Do you still conduct your own interview of her?
[Detective]: Yes.
[Prosecutor]: Generally, we, the police, will conduct an interview of the survivor?
[Defense Counsel]: Objection to the word we.
[Court]: Sustained. [Prosecutor]: Do you do an interview of the person who is reporting or the victim? [Detective]: Yes.
¶ 58 Prosecutorial vouching comes in two forms: "(1) where the prosecutor places the prestige of the government behind its witness; [or] (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." State v. Vincent, 159 Ariz. 418, 423 (1989). As a threshold matter, Holmes does not identify which form of vouching his claim falls under, and he fails to develop an argument with proper authority explaining how use of the term "survivor" leads to the assumption of an unproven crime. He also alleges that referring to a victim as a survivor "prejudicially implies the person has had to 'survive' some significant trauma," but he does not explain how implication of a traumatic experience leads to the lending of governmental prestige. Because Holmes failed to properly develop his arguments, he has waived both claims on appeal. See Ariz. R. Crim. P. 31.10(a)(7); see also Bolton, 182 Ariz. at 298 (insufficient argument waives claim on appeal).
¶ 59 Notwithstanding waiver, use of the term "survivor" in this context did not constitute improper vouching by the prosecutor. The term was not employed to "bolster the State's case"; rather, it was used to help explain the general process followed by investigators during a sexual assault examination. Cf. Newell, 212 Ariz. 389, ¶ 63 (no vouching where prosecutor's comments were "an attempt to explain to the jury why certain witnesses had not been called to testify"). And there is no evidence that she intentionally elicited the statement from the testifying police officer. See State v. Miller, 234 Ariz. 31, ¶¶ 25-26 (2013) (no cause for mistrial "when a witness unexpectedly volunteers an inadmissible statement" without provocation by prosecutor). Given the foregoing, even if Holmes had developed a sufficient argument for his claim of improper vouching, no vouching occurred, and there was no error.
3. Gun safe
¶ 60 Holmes next argues that the prosecutor erred by "intentionally introduc[ing] the fact that [there] was a gun safe" in Holmes's apartment, despite "assur[ing] the court and defense attorneys that she would not elicit testimony that it was indeed a gun safe or be referring to guns."
¶ 61 The trial court issued a ruling in January 2021 regarding the admissibility of certain gun evidence, limiting the state to "introducing evidence about a silencer and one firearm during testimony related to C.R.," as relevant "to charges involving C.R." The court precluded testimony from L.M. that Holmes "always carried a gun" because it found "the probative value of this information is substantially outweighed by a danger for unfair prejudice, confusing the issues, [or] misleading the jury." In a subsequent pretrial hearing, the prosecutor raised an issue about photographs of Holmes's apartment that were taken as part of the police investigation:
The trial court also precluded C.R. from testifying about Holmes's guns as related to his former wife because evidence related to his former wife had been precluded in a prior ruling.
[A]s you walk into the apartment and you take a photograph, like the living room area going into the kitchen, there's a large gun safe there.... I'm not planning on eliciting that it is a gun safe, but there's also a lot of stickers [on] it that refer to various things.
I just want to make sure that I'm not going to be in trouble for showing photographs of his apartment that have a gun safe with some gun-related stickers.... I'm not going to be referring to any guns, but I don't want to be in trouble.
¶ 62 Defense counsel asked if the state could "just redact the stickers," to which the prosecutor conceded that "[w]e can probably reach an agreement on redaction." There was no further comment from defense counsel regarding preclusion of the photographs depicting the gun safe, and when the prosecutor moved to admit the photos at trial, Holmes did not object.
¶ 63 Then, during direct examination of the police officer who had conducted the search of Holmes's apartment, the prosecutor asked:
[Prosecutor]: Here in State's 53, can we still see that same television we saw previously in the living room area?
[Officer]: Yes.
[Prosecutor]: If we have this gun safe as a marker between the transition between the living room and the kitchen, is that sort of a good orientation point to figure out where we are in the apartment?
[Officer]: Yes, it is.
¶ 64 Holmes thus argues that the prosecutor "committed error by informing the jury that the item in the photograph was a gun safe and by directing their attention to it" despite having "assured everyone that she would not alert the jury to the fact that it was a gun safe" during the motions hearing. Although the prosecutor referred to the gun safe despite saying she would not do so, the comment was not error.
¶ 65 When identifying the gun safe in the photograph, the prosecutor used it only as a point of reference to guide her questioning of the witness and to provide context for his testimony. Because there was no court order expressly precluding mention of the gun safe, the prosecutor's comment was not necessarily "improper," despite drawing attention to a matter she stated she would not mention. See Roscoe, 184 Ariz. at 496. Notably, when the prosecutor made the statement during the pretrial hearing, defense counsel stated, "[i]t's not the safe I have a problem with," and "I don't remember the particular safe." As such, there was no error. Additionally, there is nothing in the record to indicate that the prosecutor's comment had any impact on the jury, much less one that "improperly influenced" its verdict. See id. at 497.
4. Obsessive-Compulsive Disorder
¶ 66 Holmes next argues the prosecutor erred by "eliciting evidence of [obsessive-compulsive disorder (OCD)] and referring to the mental disorder despite an agreement not to do so and without evidentiary support for the insinuation." He maintains the error was "improper and highly prejudicial" because it "implied that [Holmes] was mentally ill" even though there was "no actual evidence to support the claim."
¶ 67 In its pretrial motion on the admissibility of other-acts evidence, the state referred to C.R.'s belief that Holmes "might have obsessive-compulsive disorder or a similar affliction" because he had "demanded that [she] wash her hands before she was permitted to give him a backrub." In his response, Holmes argued that the introduction of any evidence that he had "an obsessive compulsion disorder" should be precluded under Rule 403, Ariz. R. Evid., because the danger of unfair prejudice outweighed any probative value. At the motions hearing, the prosecutor told the trial court:
I do not plan on getting into any insinuations . . . that he has obsessive-compulsive disorder. I don't think that would be appropriate. I don't think that I would have a basis for saying that Mr. Holmes's desire for order reaches the level of, disorder, and I don't plan on eliciting any kind of opinion on that.
¶ 68 In her opening statement, however, the prosecutor repeatedly referenced Holmes's preoccupation with asking C.R. to wash her hands and explained how C.R. had "started wondering with the hand washing and the shoes off and the strange behavior that maybe [Holmes] had something going on." Then, during C.R.'s direct examination, the prosecutor plainly elicited testimony that implied, and then overtly stated, that Holmes had some kind of obsessive-compulsive disorder.
¶ 69 After questioning C.R. repeatedly about Holmes's hand-washing requests on their first date, the prosecutor asked her what happened when they returned to Holmes's apartment, and C.R. responded, "He started talking and he was, like, why don't you just watch a movie. He wanted my shoes off. And he wanted my purse to be at the front of where the door is. And I started picking up on OCD."
¶ 70 The trial court sustained Holmes's objection and directed the prosecutor to "make this more of a question and answer." The prosecutor continued by asking C.R. if she wanted to wash her hands after watching the movie, whether she did wash her hands, and why she agreed to wash her hands if she did not want to. She then asked C.R. to explain "some of the things that [Holmes] did that seemed odd" to her, that made her think "there might be something going on with him." The questioning continued, in relevant part:
[Prosecutor]: Did he do anything else to you that second [date] in terms of his cleanliness?
[C.R.]: He did. He took a lint roller to me.
[Prosecutor]: Tell me about that.
[C.R.]: He said that I had fluff on me and he just started lint rolling me. It was kind of demeaning. ....
[Prosecutor]: Did you say anything to him, like, tell him to stop? ....
[C.R.]: No. .... [Prosecutor]: How come?
[C.R.]: Well, I thought it might be something.
[Prosecutor]: Kind of an OCD kind of thing?
¶ 71 The prosecutor did not abide by her assurance that she would not elicit testimony about OCD, and doing so was improper. See State v. Cornell, 179 Ariz. 314, 331 (1994) (prosecutor cannot make prejudicial insinuations without being prepared to prove them); State v. Bailey, 132 Ariz. 472, 479 (1982) ("An attorney may not refer to evidence which is not in the record or 'testify' regarding matters not in evidence."). Having established the existence of error, Holmes must also show that "'the error went to the foundation of the case,' took from him a right essential to his defense, or was so egregious that he could not possibly have received a fair trial." Vargas, 251 Ariz. 157, ¶ 10 (quoting Escalante, 245 Ariz. 135, ¶ 21).
¶ 72 Holmes contends the error was fundamental because it "directly impacted the only key factual dispute-witness credibility" by implying "that [Holmes] was mentally ill, likely suffering from OCD." Given the minimal physical evidence and absence of eyewitnesses to any of the crimes, we agree that credibility was a central issue in this case. See State v. Thompson, 167 Ariz. 230, 235 (App. 1990). We therefore conclude it was fundamental error for the prosecutor to repeatedly insinuate the existence of an undiagnosed medical condition without being prepared to prove it. See Cornell, 179 Ariz. at 331. Holmes must also establish prejudice. See Morris, 215 Ariz. 324, ¶¶ 46-47, 59. "Fundamental error review involves a fact-intensive inquiry, and the showing required to establish prejudice therefore differs from case to case." Henderson, 210 Ariz. 561, ¶ 26. Similarly, "the showing a defendant must make varies, depending upon the type of error that occurred and the facts of a particular case." Id.
¶ 73 According to Holmes, the evidence about OCD was prejudicial because it "cast[] aspersion on [Holmes's] credibility and bolster[ed] the alleged victim's credibility," and without it, "a reasonable jury could have reached a different result." See id. ¶ 27. But aside from these conclusory statements, Holmes offers no evidence or citations to relevant authority to support his contentions. He fails to explain how, in the absence of testimony about C.R.'s belief that he might have had "something" like OCD, the jury could have returned different verdicts for his crimes of sexual assault.
¶ 74 The standard for determining whether a jury "could have" reached a different verdict is not easily satisfied, and it "necessarily excludes imaginative guesswork." Escalante, 245 Ariz. 135, ¶ 31. Because Holmes failed to establish that he suffered any actual prejudice from the introduction of this particular evidence, the error is not reversible. See State v. Martin, 225 Ariz. 162, ¶¶ 13-15 (App. 2010) ("speculative prejudice" insufficient to warrant reversal from fundamental error in admission of recorded recollection as exhibit).
C. Aberrant Sexual Propensity Evidence Without Notice
¶ 75 Holmes contends the prosecutor "never gave notice of intent to introduce evidence from C.O. regarding [Holmes's] preferences for 'deep-throat' oral sex or his interest in anal sex," as required by Rule 15.1(b)(7), Ariz. R. Crim. P., and Rule 404(b)(3), (c)(3), Ariz. R. Evid. He maintains this was a fundamental, prejudicial error that "took away his right to challenge the admissibility of the evidence before trial."
¶ 76 As discussed above, in December 2021, Holmes filed a motion in limine to exclude evidence of his oral and anal sexual preferences with C.O. At the hearing on the motion, Holmes said he was still waiting for "the State to put [him] on notice of how they are going to be using the 404(b) arguments." The prosecutor then argued, and the court agreed, that the state's "response motion has provided [Holmes] with sufficient notice of [the state's] intention to offer 404(b), 404(c) in this case." Thus, for this particular evidence, the state was not required to file a Rule 15.1(b)(7) notice, and failure to do so was not error.
Additionally, as evidenced by his motion in limine, Holmes was not prevented from "challeng[ing] the admissibility of the evidence before trial."
D. Implying Existence of Additional Victims
¶ 77 Holmes next argues the prosecutor erred by "intentionally elicit[ing] evidence" from both C.R. and a detective that "implied the existence of additional victims," despite the fact that the prosecutor "could not prove there were additional victims." He argues the error was fundamental because it affected the key factual dispute of credibility, and he further claims it "deprived [him] of constitutionally guaranteed procedures," namely the "right to be convicted for offenses charged by the grand jury."
¶ 78 Holmes's first claim of error stems from C.R.'s redirect testimony that "[w]ithout knowing about other victims," she would not have reported Holmes to the police. He also claims it was improper for the prosecutor to ask one of the interviewing detectives if C.R. had provided him "with at least one other name" when she made her report. Holmes contends this comment "portrayed [him] as a predatory monster with multiple victims" in order to "absolutely destroy his credibility with the jury while bolstering" the victim's credibility.
¶ 79 Citing to State v. Holsinger, 124 Ariz. 18, 21-22 (1979), Holmes argues that "[p]rosecutors may not imply the existence of evidence or facts to the jury through their questioning that they cannot prove." While we agree with this assertion, Holmes's reliance on Holsinger is misplaced. The prosecutor in Holsinger introduced evidence regarding an alleged "long criminal record" that was false, irrelevant, and "highly prejudicial." Id. at 21. Conversely, the testimony relating to C.R.'s knowledge of other victims was true, relevant to explaining the four-year delay in C.R.'s disclosure to the police, and nonprejudicial because the existence of additional victims was already known by the jury. We thus conclude there was no error with the prosecutor's method of questioning or the testimony her questions elicited.
¶ 80 However, even if the prosecutor had made an improper insinuation about "additional victims," the admission of objectionable testimony does not result in error if the defendant "opens the door to further inquiry." State v. Garcia, 133 Ariz. 522, 525-26 (1982).
¶ 81 During cross-examination on the second day of trial, Holmes asked C.R. to explain what "process" she used or "what road did [she] travel" to get information about other women connected to Holmes. The prosecutor objected "based on many prior rulings," and at the subsequent bench conference the trial court asked:
[Court]: What is your concern?
[Prosecutor]: So the road included [C.R.] looking up public records which included the Las Vegas PD case with [J.S.] The road included contacting [A.C.] who reported concerning information. It also included things that the defense sought to preclude in the 2019 case concerning her use of a false name .... So this broad question is going to potentially elicit her road involved doing a lot of things that the defense has sought to preclude, including the testimony of [A.C.] and who she reported to.
[Court]: I'm assuming [Holmes] knows that. He has opened the door. Why are you objecting?
[Prosecutor]: Because I don't want to be the reason somebody later asks for a mistrial and said that I should have put a flag on the play.
¶ 82 Holmes resumed cross-examination with a different question, but later brought the issue up again by asking, "Ma'am, in your effort to gather information . . ., did you pose as other people?" The prosecutor again objected, but withdrew it after being asked for grounds. Holmes's next series of questions elicited testimony that established C.R. had "pretended to be four or five different other people," because she "felt after the second time [she was] with [Holmes] that he had to have done this before," and "[b]ecause of that, [she] wanted to try to find out who he might have done [this] to."
¶ 83 Thus, by eliciting testimony about C.R.'s false personas, in violation of his own motion in limine, Holmes opened the door to information about other women that C.R. may have discovered through the use of those false personas. He cannot now use C.R.'s comment on redirect, or the detective's testimony about C.R.'s police report, as the basis of his claim for reversible error. See Garcia, 133 Ariz. at 525-26 . Any error in the prosecutor's examination of C.R. or the detective regarding "additional victims" was therefore invited, and Holmes may not raise it as an issue on appeal. See State v. Purcell, 117 Ariz. 305, 308 (1977); see also State v. Trostle, 191 Ariz. 4, 16 (1997) (comments prompted by opposing counsel's arguments are not improper if reasonable and pertinent to issues raised). Because the error was invited, we do not consider whether it was fundamental.
E. Opposing Holmes's Motion to Strike Juror 11
¶ 84 Holmes contends that his convictions must be reversed because, by "arguing to keep a juror that was demonstrably biased against [him]," the prosecutor committed "one of the rare errors where prejudice is presumed." He maintains that the prosecutor violated his "right to a fair and impartial jury." We have already concluded that the trial court did not err in denying Holmes's motion to have Juror 11 removed from the panel. Likewise, it was not error for the prosecutor to argue against the motion to strike Juror 11 for cause.
F. Improper Bolstering of Victims' Credibility
¶ 85 Holmes next claims the prosecutor "unfairly and improperly bolstered" C.R.'s "arguably tenuous credibility" by introducing prior consistent statements about "all of the different times C.R. told the story that she had been raped." He argues the statements were inadmissible hearsay because they were "made after [C.R.'s] motive to fabricate existed" and asserts that without their admission "a reasonable jury could have reached a different verdict." He also contends the prosecutor "returned to the prior statements made by the alleged victims in rebuttal" closing argument, in order to get "one more unfair plug in for the credibility of each of their stories."
¶ 86 Hearsay is an out-of-court statement offered "in evidence to prove the truth of the matter asserted," Ariz. R. Evid. 801(c), and it is inadmissible unless it falls within an exception to the hearsay rule, Ariz. R. Evid. 802. A "statement" is defined as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Ariz. R. Evid. 801(a). A statement is not hearsay, however, when it has been admitted "solely for the purpose of proving that certain words were spoken." State v. Nightwine, 137 Ariz. 499, 502 (App. 1983); see also Hernandez, 170 Ariz. at 307 (statements not hearsay where "they only showed how events unfolded").
1. Direct Testimony from C.R.
¶ 87 Holmes asserts there were several instances of hearsay during C.R.'s testimony on direct examination. Specifically, he points to C.R.'s statement that she "told [her] family and all of them" about being raped by Holmes; that the family members she told "include[d her] mom"; and that she had written a blog post "talk[ing] about the rapes." He also contends it was hearsay for C.R. to confirm that, in the process of reporting Holmes, she "had a conversation [with federal authorities] and then another conversation with [a Tucson police detective]" in which she "describe[d] all the stuff [she had] described to us here" relating to the rapes. Holmes further argues it was improper for the prosecutor to elicit testimony from a police detective that C.R. "had provided him with things she had written about her experience [with Holmes] before coming to the police" and for the prosecutor to have C.R.'s "mother confirm that C.R. had talked about what had happened with [Holmes] before they spoke with [the detective]."
¶ 88 These statements are not hearsay. See Nightwine, 137 Ariz. at 502; see also Hernandez, 170 Ariz. at 307. C.R. testified that she told her family about the assaults, but she did not describe or repeat the content of what was said. Similarly, she testified to having had conversations with a federal agent and the police detective, but she did not testify about what was said during either conversation. The blog post C.R. wrote and mentioned during her testimony was properly admitted into evidence and displayed to the jury as she testified about it. She confirmed when and why the blog post was written, but she did not read from it or otherwise testify about its contents. Because none of these instances were hearsay, there was no error by the prosecutor.
2. Testimony from C.R.'s Mother and Police Detective
¶ 89 Holmes's claims about improper hearsay testimony from C.R.'s mother and the police detective also fail. Neither witness described the contents of C.R.'s statements; rather, each testified generally to having had a discussion with C.R. or to having received some kind of information from her. Again, there was no discussion about the content of the messages or the blog, nor was there discussion about any conversations C.R. had with the people whose names she shared with the detective. Because the testimony did not involve out-of-court statements being offered for their truth, it was not hearsay. See Ariz. R. Evid. 801(a), 801(c).
3. Closing Argument
¶ 90 Holmes argues that by "return[ing] to the prior statements in her rebuttal" closing argument, the prosecutor "managed to get one more unfair plug in for the credibility of each of [the victims'] stories." Holmes contends this improper "last minute bolstering" was the prosecutor's attempt to "admit the hearsay in a 'backdoor' manner," which resulted in "fundamental prejudicial error warranting reversal."
¶ 91 Prosecutors are "given 'wide latitude' in presenting closing arguments to the jury," State v. Goudeau, 239 Ariz. 421, ¶ 196 (2016) (quoting Comer, 165 Ariz. at 426), including the freedom to "summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions," Bible, 175 Ariz. at 602. Remarks concerning witness credibility are not improper so long as the prosecutor's "characterization of the witnesses as truthful was sufficiently linked to the evidence," and the prosecutor makes clear that determining the witnesses' credibility is solely the province of the jury. State v. Haverstick, 234 Ariz. 161, ¶ 6 (2014) (quoting State v. Corona, 188 Ariz. 85, 91 (App. 1997)). On appeal, we consider arguments made in closing together with the jury instructions to determine "whether a prosecutor's statements constituted fundamental error." Hernandez, 170 Ariz. at 308.
¶ 92 The prosecutor's remarks here were not improper. There was sufficient evidence of the victims' credibility to support her comments, and she also made clear in her closing that witness credibility was for the jury to determine. See Haverstick, 234 Ariz. 161, ¶ 6. The court also properly instructed the jury not to consider attorneys' arguments as evidence, which cured any potential error. See Payne, 233 Ariz. 484, ¶ 109. Because there was no inadmissible hearsay upon which to base a claim of error, and because the prosecutor's statements during rebuttal closing argument were proper, no error occurred. See Escalante, 245 Ariz. 135, ¶ 21.
G. Comment on Holmes's Right to Be Present at Trial
¶ 93 Holmes next argues it was error for the prosecutor to "cross-examine [him] about his opportunity to review the disclosure before testifying in his own defense" and to "later insinuate he had tailored his testimony based on that review, without any specific evidence to support that claim."
¶ 94 During cross-examination, the prosecutor asked Holmes if he had "received copies of what [C.O.] provided to the police," including text messages from their conversations and the transcript of C.O.'s interview with the detectives. Defense counsel objected to the "inappropriate examination," arguing that "[t]here is a constitutional right to be present at your trial." The trial court sustained the objection and denied the prosecutor's request to approach the bench. The prosecutor then asked Holmes if he had "access to all of the disclosure" for the case, including transcripts of the victims' interviews with police. Later during cross-examination, the prosecutor confirmed that Holmes had "heard all the testimony in this case," specifically, "the testimony of all three [victims]."
¶95 During her rebuttal closing argument the following day, the prosecutor said:
Whether the witness has any motive, bias, or prejudice. I want to talk to you about that because I also wanted you to consider how that weighs between these women and Mr. Holmes. Mr. Holmes absolutely does say he is innocent. He says he is innocent and he has an account of
what he says happened for each of these acts[,] where he admits just a little bit[,] but nothing criminal[,] after he has had an opportunity to review everything that they were going to say that was generated by the police investigation[,] as well as here on the stand when these women, you had an opportunity to see them in court.... [Defense counsel] cross-examined them based on what they told [the d]etective . . ., and you know that they had already said those things previously. They didn't have that opportunity to tailor what they were going to say.
¶ 96 Defense counsel objected, arguing the prosecutor was "getting into [Holmes's] Fifth Amendment right to be present for his defense." The trial court sustained the objection and instructed the prosecutor to "please move on."
¶ 97 On appeal, Holmes argues that "[a]llowing the prosecutor to suggest that a defendant tailored his testimony, when the record does not support such an inference, compromises a defendant's constitutional right to be present at his trial." See Portuondo v. Agard, 529 U.S. 61, 63 (2000) (analyzing constitutionality of prosecutor calling attention to defendant's opportunity to hear all other witnesses testify and tailor testimony accordingly). Holmes maintains the prosecutor's remarks amounted to "generic-tailoring," which should not be permitted. Holmes's argument is based on Justice Ginsberg's dissent in Portuondo. She maintained that comments about a defendant's opportunity to tailor his testimony based on what he heard during trial, without reference to "specific reasons to believe that particular testimony has been altered," "transform[] a defendant's presence at trial from a Sixth Amendment right into an automatic burden on his credibility." Id. at 76, 78, 86.
¶ 98 The Portuondo majority, on the other hand, deemed generic-tailoring permissible, given the "longstanding rule that when a defendant takes the stand, his credibility may be assailed like that of any other witness." Id. at 61-62. The Court further confirmed that "[a] witness's ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening." Id. at 73; see also Perry v. Leek, 488 U.S. 272, 282 (1989) (testifying defendant assumes role of witness, and "rules that serve the truth-seeking function of the trial" apply equally to him or her as to other witnesses).
¶99 Holmes asserts that "Arizona has yet to answer" this question and requests that we follow the Portuondo dissent, "disallow[ing] generic tailoring arguments in the absence of specific evidence suggesting the defendant was, in fact, tailoring his testimony." While the topic of tailoring has not been explored at great depth in published Arizona caselaw, our supreme court did address the issue in State v. Totress, 107 Ariz. 18 (1971). In Totress, the prosecutor made the following remarks in closing argument:
Now, if you will recall at the beginning of this case, the witnesses were excluded from this courtroom.
NOT one witness, or the purpose of this rule was to enable no witness to tie together, by listening to any other witness's testimony, his particular testimony.
What witness was not excluded from the courtroom? That witness, of course, was the defendant. [What] [t]he defendant had was opportunity to listen to every bit of testimony, as he should.Id. at 19.
¶ 100 The defendant in Totress claimed these comments were the prosecutor's "attempt to discredit his testimony" with "statements [that] allegedly inferred that since the defendant had heard all the witnesses testify-he was now able to frame his answers in light of the testimony of all the other witnesses," in order to present "to the jury that he had an unfair advantage." Id. Our supreme court disagreed, concluding that although "it would have been fundamental error for the counsel to have called attention to the fact that [the defendant] had failed to testify," where, as here, the defendant did take the stand to testify, he "had the opportunity to fully answer the allegations made against him by the witnesses for the state," and therefore his "rights were not violated." Id. at 19, 20.
¶ 101 We align with the Portuondo majority and our supreme court in concluding it is appropriate to "[a]llow[] comment upon the fact that a defendant's presence in the courtroom provides him a unique opportunity to tailor his testimony." Portuondo, 529 U.S. at 73. Put another way, "we see no reason to depart from the practice of treating testifying defendants the same as other witnesses" here. Id.; see also Totress, 107 Ariz. at 19. Additionally, some of the prosecutor's comments amounted to assertions of "specific-tailoring" that even Justice Ginsberg deemed appropriate- they referred to specific parts of testimony and portions of discovery documents.
¶ 102 Thus, by questioning Holmes about his ability to hear specific portions of witness testimony, the prosecutor also provided Holmes the opportunity to rebut those claims. By taking the stand and being crossexamined, Holmes was able to "fully answer the allegations made against him by the witnesses for the state," and his constitutional rights were not violated by this line of questioning. Totress, 107 Ariz. at 19.
Because we conclude the prosecutor's questioning was proper, we do not address Holmes's argument that his "testimony did not open the door to cross-examination suggesting tailoring."
H. Cumulative Effect
¶ 103 Finally, Holmes argues that "when looking at the errors cumulatively, the trial was so infected with error that [he] was denied his constitutional right to a fair trial and his convictions must be reversed." A reviewing court does not "reverse convictions merely to punish a prosecutor's misdeeds []or to deter future misconduct." Acuna Valenzuela, 245 Ariz. 197, ¶ 119 (alteration in Moody) (quoting State v. Moody, 208 Ariz. 424, ¶ 152 (2004)). Instead, we examine "whether the cumulative effect of individual allegations 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (quoting Payne, 233 Ariz. 484, ¶ 134). Cumulative error warrants reversal only when the misconduct is "so pronounced and persistent that it permeate[d] the entire atmosphere of the trial, indicating that the prosecutor intentionally engaged in improper conduct and did so with indifference, if not a specific intent, to prejudice the defendant." Id. (alteration in Payne) (quoting Payne, 233 Ariz. 484, ¶ 134).
¶ 104 Holmes established error under one of his claims above, and our assessment of cumulative prosecutorial error is thus limited to review of that instance. See State v. Roque, 213 Ariz. 193, ¶ 164 (2006). The error occurred when the prosecutor elicited testimony from C.R. about her belief that Holmes might have "obsessive-compulsive disorder," in violation of the prosecutor's avowal not to do so. We concluded that because the case turned on the central issue of credibility with scant physical evidence, it therefore constituted fundamental error. However, Holmes did not meet his burden to show that he was prejudiced by the error, and as such, it does not weigh in favor of reversal. See Acuna Valenzuela, 245 Ariz. 197, ¶ 91. We thus cannot say the cumulative effect of the error here so permeated the entire atmosphere of the trial with unfairness that it denied Holmes due process. See Hughes, 193 Ariz. 72, ¶ 26.
Disposition
¶ 105 For the foregoing reasons, we affirm Holmes's convictions and sentences.