Opinion
2 CA-CR2022-0020
04-24-2023
The State of Arizona, Appellee, v. Fernando Feliciano Ruiz, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Law Office of Hernandez &Hamilton PC, Tucson By Carol Lamoureux Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20191795001 The Honorable Christopher C. Browning, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee
Law Office of Hernandez &Hamilton PC, Tucson By Carol Lamoureux Counsel for Appellant
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 In March 2020, Fernando Ruiz faced trial on four criminal charges. The jury began deliberating on the same day that the City of Tucson ordered certain businesses to close due to the COVID-19 pandemic. With further closures possible, the trial court discharged the jury that same day, after it had returned not-guilty verdicts on charges of indecent exposure and kidnapping. We conclude that under the unique circumstances of March 2020, the court had manifest necessity to discharge the jury. Therefore, when Ruiz was tried again on the remaining charges, the second trial did not violate his double jeopardy rights. We also conclude that although the prosecutor in the second trial committed prosecutorial error, that error did not deprive Ruiz of a fair trial. We therefore affirm Ruiz's convictions and sentences for sexual conduct with a minor under fifteen, child molestation, and continuous sexual abuse of a child.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts, and we resolve all inferences against Ruiz. See State v. Bolivar, 250 Ariz. 213, ¶ 2 (App. 2020). In early 2019, Ruiz was living with his girlfriend, their son, and her two children from a previous relationship, L.T. and her younger brother.
¶3 In April 2019, when L.T. was thirteen years old, she told a school administrator that Ruiz had been inappropriately touching her. Ruiz was subsequently charged with indecent exposure to a minor under fifteen, molestation of a child, sexual conduct with a minor under fifteen, continuous sexual abuse of a child, possession of a deadly weapon by a prohibited possessor, and kidnapping a minor under fifteen. The prohibited possessor charge was severed and eventually dismissed.
¶4 Ruiz's first trial took place from March 10 through March 17, 2020, just as the COVID-19 pandemic was beginning. After deliberating for less than four hours, the jury reached not-guilty verdicts on the charges of indecent exposure and kidnapping. It was unable to reach verdicts on the remaining three charges. Rather than bringing the jury back for a second day of deliberations, the trial court entered judgments of acquittal for the two not-guilty verdicts and dismissed the jury due to the uncertainty surrounding the rapidly evolving pandemic.
¶5 Ruiz was retried in October of 2021 and was convicted on the three remaining charges. He was sentenced to consecutive, presumptive prison terms totaling fifty-seven years. This appeal followed.
MISTRIAL FOR MANIFEST NECESSITY
¶6 Ruiz first argues that his retrial violated the Double Jeopardy Clauses of the United States and Arizona Constitutions. He argues that the trial court improperly discharged the jury in his first trial before it had finished deliberating without a manifest necessity for doing so or his consent.
Related factual and procedural background
¶7 The day after Ruiz's first trial began, Governor Doug Ducey issued a declaration of public health emergency and executive order in response to the spread of COVID-19 cases in Arizona. Ariz. Exec. Order No. 2020-07 (Mar. 11, 2020). Two days later, President Donald Trump declared a national emergency. Proclamation No. 9994, 85 Fed.Reg. 15337 (Mar. 13, 2020). On March 16, 2020, the Arizona Supreme Court issued an administrative order directing that: (1) in-person proceedings in Arizona courts be avoided to the greatest extent possible; (2) all new petit and grand juries scheduled in March of 2020 be rescheduled; and (3) the presiding superior court judge of each county determine how to conduct in-person proceedings to protect the health and safety of all participants. Ariz. Sup. Ct. Admin. Order 2020-47 (Mar. 16, 2020).
¶8 As these developments unfolded, Ruiz's trial continued. The jury began deliberating on March 17 at 12:41 p.m. Less than an hour later, the City of Tucson declared a state of emergency. The mayor ordered, effective that evening, that all establishments serving food or beverages were prohibited from doing so on premises. The mayor also ordered that all bars, theaters, museums, gymnasiums, fitness centers, and other recreational facilities were to close. Proclamation of the Mayor Declaring an Emergency, Tucson, Ariz. (Mar. 17, 2020). The city made all violators subject to a class one misdemeanor. Id. Later that afternoon, around 4:20 p.m., the jury informed the trial court that it had reached verdicts on some of the charges but was unable to reach verdicts on the others.
¶9 The trial judge called the attorneys into chambers. He said that given the unique circumstances, he was inclined to accept the verdicts reached and declare a mistrial on the remaining counts. Both sides expressed support.
¶10 After the jury had assembled in the courtroom, the foreperson indicated that "further deliberation would help" to reach unanimous verdicts on all counts and the jurors "all agreed that we would return tomorrow." However, one juror then stated that she was "somewhat hesita[nt] to come back" the next day because at sixty-nine years old, she was in a "high risk group" and did not "feel like there's really been enough guidance for [her] to know" whether it was safe for her to return to the courthouse.
¶11 The trial judge responded, "It's my strong inclination to take the verdicts that you do have, however many there are, whatever they are, and dismiss you all," but to first allow the jury to decide whether to continue deliberations the next day. The jury discussed the issue, then reassembled in the courtroom. By then, the jurors no longer unanimously desired to continue.
¶12 The trial court asked the jury to deliver the two verdicts it had reached, which as noted, were not guilty on the indecent-exposure and kidnapping charges. Without objection from Ruiz's counsel, the court then discharged the jury and entered judgments of acquittal on those two charges. It did not formally declare a mistrial on the remaining three charges, although the parties agree that was the effect of its actions.
Standard of Review
¶13 Ruiz argues that his second trial and resulting convictions violated the Double Jeopardy Clauses of the United States and Arizona Constitutions. Because Ruiz failed to raise a double jeopardy objection at trial, we review for fundamental, prejudicial error. See State v. Jurden, 239 Ariz. 526, ¶ 7 (2016). However, a double jeopardy violation constitutes such error. State v. Musgrove, 223 Ariz. 164, ¶ 10 (App. 2009). We also review for an abuse of discretion whether a trial court properly declared a mistrial for manifest necessity. McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986) (applying abuse of discretion review to sua sponte declaration of mistrial).
Scope of Double Jeopardy Clauses
¶14 The Double Jeopardy Clauses of the United States and Arizona Constitutions protect a defendant against multiple prosecutions for the same offense after an acquittal or conviction. State v. Carter, 249 Ariz. 312, ¶ 7 (2020). The prohibition against double jeopardy also "embraces the defendant's valued right to have his trial completed by a particular tribunal." State v. Aguilar, 217 Ariz. 235, ¶ 9 (App. 2007) (quoting Arizona v. Washington, 434 U.S. 497, 503 (1978)). Nevertheless, the defendant's right to a single trial "must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Id. ¶ 10 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). When a court declares a mistrial sua sponte, retrial is not barred if "there is a manifest necessity for the mistrial or [if] the ends of public justice will otherwise be defeated." McLaughlin, 150 Ariz. at 277.
¶15 Manifest necessity does not require an absolute necessity but rather a "high degree" of necessity. Aguilar, 217 Ariz. 235, ¶ 14 (quoting Washington, 434 U.S. at 506). Courts have found manifest necessity where the jury is unable to reach a verdict after lengthy deliberations, the trial judge becomes ill, or newspaper coverage asserting bias renders juror impartiality suspect. McLaughlin, 150 Ariz. at 277.
The trial court did not abuse its discretion in discharging the jury
¶16 Here, in determining whether to discharge the jury, the trial court faced two unprecedented challenges: (1) the uncertain and changing conditions of the pandemic, and (2) the legal landscape concerning states of emergency and a potential court closure. As to the first, the record reflects that the judge and at least one juror were concerned about exposure to the virus. The court and jurors also had little information about the risk of returning to deliberate the next day. Little was known about the coronavirus's contagiousness or lethality. Nor was any vaccine or reliable treatment available. These risks and concerns justified the court's cautious approach to potentially exposing jurors to the virus.
¶17 As to the legal-landscape challenges, the trial court was faced with requirements and limitations that were changing by the hour. The federal and statewide emergency declarations had been issued days earlier, and the City of Tucson's business-closure order was issued that same afternoon. There was also a possibility of a court-wide shutdown, which could have jeopardized the verdicts the jury had already reached. Those verdicts would also have been at risk if a juror refused to return the next day due to health concerns.
¶18 In evaluating these challenges, the trial court implicitly determined that a manifest necessity existed for a mistrial. It did not abuse its discretion in doing so. We agree with Ruiz that further deliberations might have yielded verdicts on the remaining charges. But the court reasonably decided that this possibility was outweighed by other risks.
¶19 We emphasize that our conclusion arises from the unique circumstances of March 2020. We cannot evaluate whether the trial court abused its discretion with the benefit of hindsight. We must instead focus on the situation-and the numerous unknowns-that the court faced at the time.
¶20 We also reject Ruiz's related argument that the trial court improperly influenced the jurors to decide against continuing with deliberations. Although the judge told the jurors that he was inclined to discharge them if they were uncomfortable returning, he did not coerce them to abandon their deliberations. Instead, he ensured that they felt free to express their concerns. He also allowed them to reach their own conclusions about whether to return, and he reasonably deferred to at least one juror who was uncomfortable doing so.
¶21 Accordingly, Ruiz's second trial did not violate the Double Jeopardy Clauses of the United States and Arizona Constitutions. Because there was manifest necessity for a mistrial, we need not address Ruiz's argument that he did not consent to the mistrial.
DOUBLE JEOPARDY - MULTIPLE OFFENSES
¶22 Ruiz next argues that his convictions for sexual conduct with a minor and child molestation violate double jeopardy because they were based on the same act.
Relevant factual and procedural background
¶23 In the indictment, the count charging Ruiz with sexual conduct with a minor alleged that "[o]n or about the 14th day of February, 2019, through the 16th day of April, 2019," Ruiz had "engag[ed] in sexual intercourse or oral sexual contact with L.T.... by engaging in masturbatory contact." As to child molestation, the indictment alleged that "[o]n or about the 14th day of February, 2019, through the 16th day of April, 2019," Ruiz had "engag[ed] in sexual contact with L.T.... by having the victim touch his penis."
¶24 At the second trial, L.T. gave the following testimony:
Q: What I want you to do is tell us about the inappropriate touching that happened, whenever it was in that time period before Spring Break.
A: [Ruiz] made me touch his private parts, and put his private parts against mine, and move. ....
Q: Okay. When his shorts were on the floor, what would he be making you do? How would you be on his lap?
A: He would put me on his lap with his private parts between my legs.
Q: Okay. Were you facing him or facing away?
A: Away.
Q: When you say your private parts, . . . what private part are we talking about? ....
A: My vagina.
Q: And when you say that his private part was on yours, what private part of his was tou[c]hing yours?
A: His penis.
Q: Okay. And you said that it was rubbing. Can you describe for us how that would be happening?
A: He would make me go like back and forth.
Q: While you were sitting on his lap?
A: Yes.
Q: Would he have you do anything else? A: He would have me touch his private parts.
Q: While you were sitting on his lap?
A: Yes.
Q: How would that happen?
A: He would put my hands down there to touch it.
Q: And was your hand moving, or still, or something else?
A: Not moving.
Q: Where was his hand when your hand was on his penis?
A: On top of my hand.
Q: And what was he doing with your hand?
A: Moving it.
Ruiz was subsequently convicted of molestation of a child and sexual conduct with a minor under fifteen.
Standard of Review
¶25 Because Ruiz failed to object at trial to the multiplicity of charges, we review for fundamental, prejudicial error. See State v. Ortega, 220 Ariz. 320, ¶ 7 (App. 2008). Again, though, a double jeopardy violation constitutes such error. Musgrove, 223 Ariz. 164, ¶ 10.
Scope of Double Jeopardy protection for lesser-included offenses
¶26 The Double Jeopardy Clauses of the United States and Arizona Constitutions prevent a defendant from being convicted for both an offense and its lesser-included offense when the convictions are based on the same act. Ortega, 220 Ariz. 320, ¶ 9. A lesser-included offense contains some but not all of the elements of the greater crime, such that one cannot commit the greater crime without also committing the lesser one. State v. Cope, 241 Ariz. 323, ¶ 5 (App. 2016).
¶27 The two offenses at issue are sexual conduct with a child under fifteen and molestation of a child. Sexual conduct with a minor requires the defendant to intentionally or knowingly engage in sexual intercourse with the victim. A.R.S. § 13-1405(A). Sexual intercourse includes "masturbatory contact with the penis or vulva." A.R.S. § 13-1401(A)(4).
¶28 Molestation of a child involves a broader range of conduct, namely, intentionally or knowingly engaging in or causing a person to engage in sexual contact with a child under fifteen. A.R.S. § 13-1410(A). Sexual contact, in turn, includes touching, fondling, or manipulating any part of the genitals by any part of the body or causing a person to engage in such contact. § 13-1401(A)(3)(a). Because sexual intercourse includes sexual contact, sexual conduct with a minor under fifteen necessarily involves molestation of a child. See Ortega, 220 Ariz. 320, ¶ 25. Therefore, the latter is a lesser-included offense of the former. Id.
¶29 It follows that a conviction under both charges will violate the prohibition against double jeopardy if the convictions are based on the same act. Id. ¶¶ 25-28. An offender's conduct is a single act if, after eliminating evidence supporting elements of one charge, the remaining evidence will not support the elements of the other charges. State v. Noble, 152 Ariz. 284, 286 (1987). Hence, a defendant may be convicted of multiple sexual offenses that occurred during the same criminal episode, as long as the acts were separate from each other. See State v. Hill, 104 Ariz. 238, 240 (1969). To sustain both convictions, sufficient evidence must exist from which a jury could have concluded beyond a reasonable doubt that there were separate acts of sexual conduct with a minor and child molestation. See Ortega, 220 Ariz. 320, ¶ 28.
The jury could have reasonably concluded that Ruiz had committed separate acts giving rise to separate offenses
¶30 We conclude that sufficient evidence supported the convictions on both charges. The jury could have reasonably found beyond a reasonable doubt that Ruiz had committed separate acts based on L.T.'s testimony. Her testimony that Ruiz made her "go like back and forth" while his penis was against her vagina allowed the jury to conclude that Ruiz had committed sexual conduct with a minor. The jury could have concluded that this was masturbatory contact, which meets the statutory definition of "sexual intercourse." See State v. Florez, 241 Ariz. 121, ¶¶ 15-17 (App. 2016) (explaining that "masturbatory contact" includes non-penetrative acts "in which any part of the body of another is used to stimulate the penis or vulva").
¶31 The prosecutor later asked L.T. whether Ruiz "had [her] do anything else." L.T. responded, "He would have me touch his private parts." This testimony allowed the jury to conclude that he had committed child molestation, as the conduct meets the definition of "sexual contact." Importantly, the jury could also have concluded that this contact occurred separately from the masturbatory contact, especially in light of the "anything else" phrasing of the prosecutor's question. Therefore, Ruiz's convictions for sexual conduct with a minor and child molestation did not violate his double jeopardy rights.
PROSECUTORIAL ERROR
¶32 Ruiz argues that the state committed prosecutorial error during its cross-examination and closing argument. Prosecutorial error is any conduct that infringes on a defendant's constitutional rights. State v. Murray, 250 Ariz. 543, ¶ 12 (2021). In general, a defendant cannot prevail on a claim of prosecutorial error unless he can show that the error "so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Morris, 215 Ariz. 324, ¶ 46 (2007) (quoting State v. Hughes, 193 Ariz. 72, ¶ 26 (1998)). The error must be "so pronounced and persistent that it permeates the entire atmosphere of the trial." Id. (quoting State v. Atwood, 171 Ariz. 576, 611 (1992), disapproved of on other grounds by State v. Nordstrom, 200 Ariz. 229, ¶ 25 (2001)). Here, we use the term "prosecutorial error" rather than "prosecutorial misconduct" because we see no evidence that any error was intentional wrongdoing. Cf. In re Martinez, 248 Ariz. 458, ¶¶ 46-47 (2020) (explaining differences between prosecutorial error and prosecutorial misconduct).
¶33 When Ruiz objected to an asserted instance of prosecutorial error, we review for harmless error. See State v. Robinson, 253 Ariz. 121, ¶ 64 (2022). However, when Ruiz did not object, we review for fundamental error. See id. Ruiz asserts five instances of prosecutorial error, which we address in turn by first reviewing each alleged incident for error- fundamental or otherwise-and, as relevant, prejudice. See id. We then address whether the cumulative effect of those errors "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. (quoting State v. Payne, 233 Ariz. 484, ¶ 106 (2013)).
Generic tailoring
¶34 Ruiz first argues that the prosecutor improperly suggested that the jury should find him less credible because he had exercised his rights to review statements and police reports concerning the incident. That issue arises out of Ruiz's testimony at his second trial. During cross-examination, the prosecutor asked Ruiz the following:
Q: Sir, you would agree with me that you found out about what [L.T.] was disclosing a few days after April 16th of 2019; right?
A: Yes.
Q: And at some point, before your testimony, you had an opportunity to review all of the statements and police reports in this case; right?
Ruiz's attorney objected and requested a mistrial. He argued that the prosecutor had improperly made "a direct inference that [Ruiz's] testimony has been tailored." The prosecutor responded that she had a "right to ask him what he's reviewed before he testified today" and that "[i]t would be the same . . . with any other witness when they took the stand." The trial court agreed and denied Ruiz's request for a mistrial. However, pursuant to the parties' stipulation, the court instructed the jury that Ruiz "has the right, as would any defendant, to look at and have access to and review any document related to the case against him."
¶35 The cross-examination resumed:
Q: So, sir, you have had an opportunity to review all of the police reports and statements in this case?
A: I have not read all of the police reports.
Q: Okay. Have you read the statements?
A: I read statements, correct.
....
Q: Okay. So you were aware of the things that [L.T.] said about what you had done to her before you came in to testify?
A: Yes.
¶36 During closing argument, the prosecutor argued that Ruiz's ability to review the state's evidence allowed him to tailor his testimony accordingly. She stated:
[Ruiz] has every right to read and review the transcripts and the police reports and things in this case. But, ladies and gentlemen, what that also does-unlike [L.T.] and [her mom], what it also does is allows him to prepare for the things and know what it is that he needs to say, and that's something you get to consider, just like for motive. What motive does he have to say these things didn't happen so you will find him not guilty. That's his motive.
Ruiz did not object to this argument. He addressed the issue in his own closing, though, when he argued:
And again, the State said, well, he read his reports. He did this. He did that. Well, I would think, if someone is charged, again, with some of the most serious crimes contemplated by the State of Arizona, that that person would want to know what these claims are so he could defend against them and he could present them in a logical and reasonable explanation to a jury of his peers, which has been done in this case.
The prosecutor did not revisit the issue during rebuttal closing.
¶37 The suggestion from the prosecutor's examination and argument is that Ruiz tailored his testimony because he exercised his right to review statements and police reports. However, the prosecutor did not point to examples of potential tailoring, such as prior inconsistent statements. The cross-examination and argument therefore present an instance of "generic tailoring." See State v. Weatherspoon, 212 A.3d 208, 217 (Conn. 2019) (explaining that generic tailoring occurs when prosecutor suggests defendant's mere presence at trial provides opportunity to tailor testimony). By contrast, when a prosecutor refers to evidence suggesting that testimony was tailored, it is called "specific tailoring." Id.
¶38 The United States Constitution generally does not prohibit arguments about tailored testimony. Portuondo v. Agard, 529 U.S. 61, 65-75 (2000). As for Arizona law, no published cases address whether a prosecutor's references to tailored testimony are permissible. States are split on the issue. Those that prohibit generic tailoring generally rely on Justice Ginsburg's Portuondo dissent. In that dissent, she concluded that allowing generic tailoring "transforms a defendant's presence at trial from a Sixth Amendment right into an automatic burden on his credibility." Portuondo, 529 U.S. at 76. Those courts apply Justice Ginsburg's logic to their own state constitutions, rules of evidence and procedure, and inherent supervisory powers. See, e.g., State v. Stephanie U., 261 A.3d 748, 777 (Conn. App. 2021); State v. Wallin, 269 P.3d 1072, ¶ 28 (Wash. App. 2012); State v. Swanson, 707 N.W.2d 645, 657-58 (Minn. 2006); State v. Daniels, 861 A.2d 808, 819-20 (N.J. 2004). By contrast, the states that allow generic-tailoring examination and argument generally rely on Portuondo's majority opinion in concluding that generic-tailoring attacks do not unfairly burden a defendant's constitutional rights. See, e.g., Parker v. State, 495 P.3d 653, ¶ 25 (Okla. Crim. App. 2021); People v. Adams, 962 N.E.2d 410, ¶ 28 (Ill. 2012); Brown v. State, 793 A.2d 561, 566-67 (Md. 2002).
¶39 We decline to conclude whether the prosecutor's generic tailoring examination and argument constitute prosecutorial error-as noted, an issue of first impression in Arizona. This case does not require us to do so, because, on the record before us, even were we to find prosecutorial error, it would be harmless in the case of the objected-to cross-examination, and not prejudicial in the case of the unobjected-to closing argument.
¶40 An error is harmless if we can conclude beyond a reasonable doubt that the error "did not contribute to or affect the verdict." State v. Nelson, 229 Ariz. 180, ¶ 38 (2012) (quoting State v. Roque, 213 Ariz. 193, ¶ 152 (2006), abrogated on other grounds by State v. Escalante-Orozco, 241 Ariz. 254, ¶¶ 13-15 (2017)). We conclude that the cross-examination error was harmless in light of the trial court's curative jury instruction. See State v. Gallardo, 225 Ariz. 560, ¶ 40 (2010) (jurors presumed to follow court's instructions).
¶41 An error is fundamental if it: (1) went to the foundation of the case; (2) took from Ruiz a right essential to his defense; or (3) was so egregious that Ruiz could not possibly have received a fair trial. See State v. Vargas, 249 Ariz. 186, ¶ 12 (2020) (citing State v. Escalante, 245 Ariz. 135, ¶ 21 (2018)). We therefore address whether the claimed error prejudiced Ruiz. This analysis requires us to consider whether a reasonable jury could have plausibly and intelligently reached a different verdict absent the error. See Murray, 250 Ariz. 543, ¶ 30. Examining prejudice is a fact-intensive inquiry. State v. Henderson, 210 Ariz. 561, ¶ 26 (2005); see also Murray, 250 Ariz. 543, ¶ 16 ("Critically, Escalante's prejudice prong is difficult to satisfy, . . ., and is a higher burden to overcome than in the inquiry conducted for objected-to prosecutorial misconduct."). We conclude that Ruiz was not prejudiced by any error concerning generic tailoring.
¶42 First, the trial court accurately instructed the jury, including by providing the curative instruction that Ruiz had the right to review the police reports and statements. Although the court did not repeat the curative instruction during the final instructions, the instruction nevertheless provided context to the closing argument. The jury was additionally instructed that counsel's argument was not evidence. We generally assume that juries follow instructions, and curative instructions can cure errors that were brief. See Anderson, 210 Ariz. 327, ¶¶ 49-50, 51-52 (concluding that where prosecutor misstated law, error was not fundamental, in part, because jury was instructed that lawyer statements were not evidence); cf. State v. Carlson, 237 Ariz. 381, ¶¶ 60-61 (2015) (determining harmless error where victim impact statement erroneously alluded to potential sentence because error was brief, indirect, and followed by curative instruction). The jury was also properly instructed on the state's burden of proof.
¶43 Moreover, the prosecutor acknowledged, correctly and consistently with the curative instruction, that Ruiz had the right to review the statements and police reports. The prosecutor likewise did not rely primarily on tailoring in arguing that the state had carried its burden of proof. She simply told the jury that it was "something you get to consider" in evaluating Ruiz's motive. She then contrasted that with L.T.'s motive, which she suggested was that L.T. "wanted it to stop." This was a reasonable comment comparing the credibility of Ruiz and L.T. The jury was also instructed that it had the duty to determine the "accuracy and truthfulness" of the testimony. See State v. Haverstick, 234 Ariz. 161, ¶ 7 (App. 2014) (concluding that prosecutor could comment on witness's credibility in context of evidence presented, as long as jurors understood they-not prosecutor-had duty to determine credibility).
¶44 In addition, the tailoring comments were brief. They consisted of four sentences from nearly thirty pages of closing argument remarks. See State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 117 (2018) (finding no prejudice in "arguably inappropriate" statement during closing argument because brief and isolated). And they came in the prosecutor's initial closing, when Ruiz still had the opportunity to respond. Indeed, he took advantage of that opportunity during his own closing. The prosecutor did not bring the issue up again in her rebuttal. We find that significant, as rebuttal closing is when a prosecutor's words are "most impactful." See Murray, 250 Ariz. 543, ¶ 37.
Characterization of L.T.'s testimony
¶45 Ruiz also argues that, during closing argument, the prosecutor mischaracterized testimony regarding the timeframe when Ruiz had told L.T. that she could not see her boyfriend. Ruiz testified that the conversation came the day before L.T. had made the accusations, which would have suggested that she had a motive to falsely accuse Ruiz. The prosecutor argued, though, that it had actually occurred weeks earlier, during L.T.'s spring break. We agree that the evidence did not support this argument. Misstating evidence constitutes prosecutorial error. State v. Cannon, 148 Ariz. 72, 77 (1985). Ruiz does not independently argue this error was fundamental but that it "contributed to the prosecutor's cumulative error." See Vargas, 249 Ariz. 186, ¶ 17 ("[I]t is not necessary to separately argue fundamental error for each allegation of misconduct in a claim of cumulative error."). We therefore do not consider whether the error was fundamental and instead factor it into our cumulative-error analysis.
Argument that jury should convict Ruiz to show "[L.T.] that she is believed"
¶46 Next, Ruiz argues that the prosecutor committed error by urging the jury to convict Ruiz "to let [L.T.] know that she is believed." He argues that the remarks improperly appealed to the jury's sympathies and diluted the state's burden of proof. During her rebuttal closing, the prosecutor stated:
The only thing [L.T.] wanted was for the abuse to stop. She wanted to be believed. She wanted someone to make it stop and to believe what she was saying.
Ladies and gentlemen, now is your opportunity to hold this Defendant accountable to let [L.T.] know that she is believed and what it is that she's told you happened to her and to find this Defendant guilty on all counts.
¶47 In determining whether the prosecutor's closing remarks were improper, we must consider two factors: "(1) whether the prosecutor's statements called to the jury's attention matters it should not have considered in reaching its decision and (2) the probability that the jurors were in fact influenced by the remarks." State v. Riley, 248 Ariz. 154, ¶ 125 (2020) (quoting State v. Goudeau, 239 Ariz. 421, ¶ 196 (2016)). Although prosecutors are given wide latitude in presenting closing arguments, they may not "inflame the minds of jurors with passion or prejudice or influence the verdict in any degree." Goudeau, 239 Ariz. 421, ¶ 210 (quoting State v. Herrera, 174 Ariz. 387, 396 (1993)). Statements improperly appeal to a jury's emotions, prejudices, and passions when they "urge the jury 'to convict [the] defendant for reasons wholly irrelative to his own guilt or innocence.'" Acuna Valenzuela, 245 Ariz. 197, ¶ 109 (quoting Herrera, 174 Ariz. at 397). For instance, a prosecutor may not urge the jury to convict a defendant to protect community values, preserve civil order, or deter future law breaking. Herrera, 174 Ariz. at 398. Additionally, urging a jury to convict a defendant to ensure justice for the victim is inappropriate insofar as it asks the jury "to strike some sort of balance between the victim's and the defendant's rights." Acuna Valenzuela, 245 Ariz. 197, ¶ 117 (quoting State v. Bible, 175 Ariz. 549, 603 (1993)).
¶48 Applying this standard, we conclude the prosecutor's closing remarks were not improper. In context, the prosecutor was referring to L.T.'s motivation for reporting the abuse and her credibility as a witness. The prosecutor had similarly addressed these issues in her initial closing, in connection with a discussion of the jury instruction on credibility. These are appropriate areas for argument, especially as the case largely turned on the credibility of L.T. and Ruiz. See State v. Haverstick, 234 Ariz. 161, ¶ 7 (App. 2014) (holding that prosecutor did not make improper argument when he commented on victim's credibility while making clear that it was jury's job to determine credibility). Importantly, the prosecutor never suggested that anyone other than the jury was responsible for evaluating L.T.'s credibility.
¶49 The only arguably improper comment was the prosecutor's reference to the jury's "opportunity to hold this Defendant accountable to let [L.T.] know she is believed." We agree with Ruiz that it would be improper to invite the jury to convict Ruiz to vindicate L.T.'s feelings. In isolation, the prosecutor's comment could be read as such an invitation. But the prosecutor's next words were "and what it is that she's told you happened to her." In this context, the prosecutor's comment is most logically understood as an argument that L.T.'s testimony was more credible than Ruiz's. If the jury found L.T. credible and accepted her version of events, it would necessarily let her know that "she is believed." Thus, while the argument strayed dangerously close to the line between aggressive advocacy and impropriety, it did not cross it.
¶50 We also disagree with Ruiz that the prosecutor's comments diluted the state's burden of proof. Throughout the closing argument, the prosecutor correctly articulated that burden. She said, for example, "Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the Defendant's guilt." This articulation is consistent with our case law. See State v. Portillo, 182 Ariz. 592, 596 (1995) ("Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt." (quoting Federal Judicial Center, Pattern Criminal Jury Instructions 17-18 (Instruction 21) (1987))). The trial court also instructed the jury using identical language. In addition, the prosecutor described the state's burden as "the highest burden," "not an impossible measure," and something short of "absolute certainty." All of these are accurate statements. Nothing about the suggestion that the jury should convict Ruiz to "let [L.T.] know that she is believed" suggested that the burden was different.
L.T.'s understanding about sexual issues
¶51 Ruiz next criticizes as unsupported by the evidence the prosecutor's assertion during closing argument that L.T.'s allegations must be true because "there's no other realistic source at the age of 13 for the things that [L.T.'s] describing unless she's experienced them." We disagree. This assertion was not an unreasonable inference in light of L.T.'s and her mother's testimony regarding L.T.'s knowledge of sexual functions and references at the time. The jury was also free to draw on its own common sense and experience. See State v. Aguilar, 169 Ariz. 180, 182 (App. 1991) ("Jurors may rely on their common sense and experience during deliberations. They are expected to bring into the courtroom their own knowledge and experience in aid in the resolution of the case." (citation omitted)). Hence, this argument was within the "wide latitude" prosecutors have when presenting closing arguments. See Goudeau, 239 Ariz. 421, ¶ 196 ("Prosecutors are given 'wide latitude' in presenting closing argument to the jury." (quoting State v. Comer, 165 Ariz. 413, 426 (1990))).
Prosecutorial vouching
¶52 Ruiz next argues that the prosecutor improperly vouched for L.T. at three instances during closing argument. Prosecutorial vouching exists in two general forms: (1) when "the prosecutor places the prestige of the government behind its witness"; and (2) when "the prosecutor suggests that information not presented to the jury supports the witness's testimony." Acuna Valenzuela, 245 Ariz. 197, ¶ 75 (quoting State v. Vincent, 159 Ariz. 418, 423 (1989)). "Placing the prestige of the state behind its witness 'involves personal assurances of a witness's veracity' while '[t]he second type of vouching involves prosecutorial remarks that bolster a witness's credibility by reference to matters outside the record.'" Id. (quoting State v. King, 180 Ariz. 268, 277 (1994)).
¶53 The first asserted instance of vouching occurred when the prosecutor argued, "Everything that [L.T.] said about the abuse, the way it happened, how it happened, and how often it occurred, she hasn't been impeached on any of that. She's been consistent. She's never wavered." This was not vouching. Rather, it was a permissible inference, given that L.T.'s testimony had not been impeached and there had been no evidence presented to the jury that L.T.'s testimony changed.
¶54 Ruiz also contends that the prosecutor vouched for L.T. by arguing that she had no motive to tell "all these people about what [Ruiz] did to her if she didn't experience it." However, this argument referred to testimony from multiple witnesses about L.T.'s behavior and demeanor when she discussed Ruiz's actions with them. These witnesses included Cynthia Flores, the nurse who had performed the forensic exam, the dean of students at L.T.'s school, and an investigating officer. Rather than referring to information outside the evidence, the prosecutor's argument was a fair comment on L.T.'s lack of motive to lie and was a reasonable inference drawn from the evidence presented to the jury. See State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 15 (App. 2013) (prosecutor may point out lack of evidence of motive for victim to fabricate or exaggerate accusations when it can reasonably be inferred from evidence).
¶55 Finally, Ruiz argues that the prosecutor vouched for L.T. when she argued that L.T. had "never once retracted or recanted the statements that she made about what [Ruiz] has done to her, and she's talked to a lot of different folks, including Cynthia Flores, the nurse." This comment was not vouching either. Rather, it was a fair comment that although L.T. had discussed the incident with multiple people, she had never denied it. The evidence supported this assertion. Accordingly, the prosecutor did not engage in vouching.
Cumulative prosecutorial error
¶56 Ruiz also argues that the cumulative effect of all the asserted errors deprived him of a fair trial. Where an appellant's claim involves multiple incidents of unobjected-to prosecutorial error, the appellant must: (1) assert that cumulative error exists; (2) cite the asserted instances of misconduct in the record; (3) cite legal authority establishing that the incidents constitute prosecutorial error; and (4) set forth, with legal authority, the reasons that the cumulative misconduct denied the defendant a fair trial. Vargas, 249 Ariz. 186, ¶ 14.
¶57 In analyzing the cumulative-error claim, we consider the unobjected-to generic-tailoring argument and misstating the timeline. We also include the objected-to cross examination concerning generic tailoring. We evaluate the prosecutorial-error claims "in the context of the issues presented to the jury at trial." State v. Arias, 248 Ariz. 546, ¶ 33 (App. 2020). The ultimate question is whether the cumulative error "denied the defendant a fair trial." Vargas, 249 Ariz. 186, ¶ 14.
¶58 As we have explained, any unobjected-to errors occurred in closing argument during which the prosecutor accurately stated the law. The jury was also properly instructed, including with a curative instruction, on Ruiz's right to review the police reports and statements. Not only did that curative instruction provide important context for the closing argument, it also prevented the objected-to cross examination concerning generic tailoring from prejudicing Ruiz. Finally, the misstated timeline was a relatively minor mistake in the overall case, and it was only a brief portion of the case. We therefore conclude that cumulative error did not deprive Ruiz of a fair trial.
JUROR ISSUES
¶59 Ruiz also raises two issues concerning the jury at the second trial. He argues that the trial court improperly: (1) refused to strike Juror 42 for cause; and (2) prohibited Ruiz from having post-trial contact with jurors.
Juror 42
¶60 Ruiz's argument about Juror 42 concerns the juror's ability to hear the proceedings. Ruiz also argues that there was "real concern" about the juror's "ability to be fair and impartial." Ruiz's arguments arise from the following exchange during voir dire:
THE COURT: Have you heard the questions so far that I've asked?
JUROR: Not particularly.
THE COURT: Okay. Is it hard-I know the acoustics aren't prefect-is it hard to hear back there?
JUROR: Yes, it was.
THE COURT: Okay.
JUROR: I've got hearing aids.
THE COURT: All right. So you haven't been able to hear everything that I have asked?
JUROR: I think so.
THE COURT: You think you have?
JUROR: Yes.
THE COURT: Okay. So let me ask first, do you think you could be fair and impartial to both sides here?
JUROR: I do.
THE COURT: Keep an open mind throughout the entire trial?
JUROR: Yes. Realize I'm 89 years old.
THE COURT: Yes, sir.
JUROR: And I have six children . . . [sixteen] grandchildren and [nine] great grandchildren.
THE COURT: Yes, sir.
JUROR: And so I want to keep the children safe. I think I could handle this very well....
¶61 In response to the trial court's further questioning, the juror agreed he would not reach a decision until he had heard all the evidence, had no favoritism toward or against either side, and understood Ruiz's constitutional rights as the court had explained them. However, in response to the court's question whether both parties were "on equal footing right now in your mind," the juror responded, "I don't think so. I know what is right. And I just will listen to the evidence."
¶62 Ruiz moved to strike Juror 42 for cause on the grounds that the juror had difficulty hearing and might not be fair and impartial. The trial court denied the motion. The court explained, "[A]t the end of the day it is sort of an age discrimination issue. It's sort of this amorphous, well, I can't really point to specific articulable things, but he's just along in years and therefore I think that maybe he wouldn't be good." The court further observed that the juror was educated and, until recently, had been involved in his community. Ruiz did not exercise a peremptory strike on that juror.
¶63 In general, the failure to exercise a peremptory strike waives a challenge that the juror should have been removed for cause. State v. Rubio, 219 Ariz. 177, ¶ 12 (App. 2008). However, the trial occurred under COVID restrictions that reduced the number of available peremptory strikes. See Ariz. Sup. Ct. Admin. Order No. 2021-52 (Apr. 15, 2021). Given those circumstances, we do not decide the issue on waiver. We instead reach the merits of the issue. See State v. Smith, 228 Ariz. 126, ¶ 8 (App. 2011) (assuming arguendo that waiver did not occur and concluding that trial court did not err by refusing to strike juror for cause); State v. Eddington, 226 Ariz. 72, ¶ 20 (App. 2010) (noting that it is better practice to address claims of trial court error on merits to provide trial courts with guidance).
¶64 We review the trial court's refusal to strike a juror for cause for an abuse of discretion. Acuna Valenzuela, 245 Ariz. 197, ¶ 21. The party asserting error "has the burden of establishing that the juror is incapable of rendering a fair and impartial verdict." Id. (quoting State v. Lavers, 168 Ariz. 376, 390 (1991)). Because Ruiz requested at trial that the juror be struck for cause, we review any error for harmlessness. See id.
¶65 We conclude that the trial court did not abuse its discretion. The transcript reflects that the juror was capable of hearing, understanding, and responding to questions once he was called to the juror box. Moreover, after questioning the juror, the court stated it was satisfied that the juror "knows what's going on and he's oriented to his time and space." The court was able to assess the juror's demeanor, ability to hear, and mental awareness in person, and we defer to that court's judgment. See State v. Naranjo, 234 Ariz. 233, ¶ 12 (2014) ("Trial judges are in the best position to 'assess the demeanor of the venire, and of the individuals who compose it.'" (quoting Uttecht v. Brown, 551 U.S. 1, 9 (2007))).
¶66 While Ruiz also expressed concern regarding Juror 42's possible bias below, he does not meaningfully develop it on appeal. We therefore do not consider it. See State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
Prohibition on juror contact
¶67 Ruiz also argues that the trial court improperly restricted him from contacting jurors after his trial. After trial, Ruiz filed a motion for release of juror information. In that motion, Ruiz noted that Ruiz's family members had observed a juror crying outside the courtroom and being consoled by another juror. In denying the motion, the court prohibited Ruiz's counsel, family, and investigators from contacting the jurors "for purposes of discussing the jury's verdict or deliberative processes."
¶68 We review the trial court's order prohibiting contact with the jurors for an abuse of discretion. See State v. Paxton, 145 Ariz. 396, 397 (App. 1985). It is within the court's discretion to prohibit post-trial contact with members of the jury absent a showing of good cause. State v. Olague, 240 Ariz. 475, ¶ 23 (App. 2016) (recognizing as established precedent that trial court may prohibit contact with jurors absent prior showing of good cause and approval from court).
¶69 Arizona Rule of Criminal Procedure 18.3(b) states, in part, "The court must keep all jurors' home and business telephone numbers and addresses confidential, and may not disclose them unless by order of the court for good cause shown." Ruiz appears to argue that good cause existed here because otherwise he would be unable to obtain the information needed to substantiate his concerns about jury misconduct. However, the trial court reasonably concluded that Ruiz had failed to present any credible facts other than "unproven speculation and innuendo." It also reasonably concluded that intruding on the jurors' rights to privacy and to be free from interrogation by counsel would be unwarranted. Moreover, the general rule in Arizona is that a jury cannot impeach its own verdict. See Paxton, 145 Ariz. at 397. Therefore, the court did not abuse its discretion by prohibiting post-trial contact with the jurors.
DISPOSITION
¶70 For the foregoing reasons, we affirm Ruiz's convictions and sentences.