                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                        JAMES LEE KEMP, Appellant.

                             No. 1 CA-CR 16-0035
                               FILED 7-11-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-007335-001
             The Honorable Roland J. Steinle, Retired Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

The Heath Law Firm, PLLC, Mesa
By Mark Heath
Counsel for Appellant
                              STATE v. KEMP
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris1 delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


N O R R I S, Judge:

¶1            A jury convicted James Lee Kemp of one count of sexual
abuse, three counts of molestation of a child, nine counts of sexual conduct
with a minor, one count of public sexual indecency to a minor, and two
counts of sexual exploitation of a minor (the “sex crimes”). On appeal,
Kemp argues he is entitled to a new trial because the superior court
improperly treated the victim’s mother, a witness in the case, as a statutory
victim pursuant to the Victims’ Bill of Rights (“VBR”) and allowed her to
remain in the courtroom throughout trial even though defense counsel
invoked the rule of exclusion. Assuming Kemp preserved this argument for
appeal and he is entitled to a presumption that the mother’s presence in the
courtroom was prejudicial, the record nevertheless clearly rebuts that
presumption as it establishes Kemp was not prejudiced by her presence in
the courtroom. Therefore, we affirm Kemp’s convictions and sentences.

                               DISCUSSION

¶2            In February 2010, a grand jury indicted Kemp for crimes he
committed against his stepdaughter when she was between the ages of 12
and 14. At the time of the 2010 indictment, the victim was 17 years’ old. In
July 2011, after the victim turned 18, the State obtained a new indictment
alleging the same charges as the 2010 indictment and adding additional
charges. The superior court then dismissed the 2010 case without prejudice.

¶3            During trial in 2015, before calling any witnesses in the State’s
case-in-chief, the prosecutor informed the superior court the victim’s
mother wished to remain in the courtroom throughout trial pursuant to the
VBR, which defines “victim” as any “person against whom the criminal
offense has been committed . . . [and] any other person related to the person
by consanguinity or affinity to the second degree . . . .” Ariz. Rev. Stat.

              1The  Honorable Patricia K. Norris, Retired Judge of the Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.



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                                STATE v. KEMP
                              Decision of the Court
(“A.R.S.”) § 13-4401(19) (Supp. 2016).2 Pursuant to the VBR, a “victim” has
a right “[t]o be present at and, upon request, to be informed of all criminal
proceedings where the defendant has the right to be present.” Ariz. Const.
art. 2, § 2.1(A)(3); see, e.g., State v. Millis, 242 Ariz. 33, 42 n.9, ¶ 30, 391 P.3d
1225, 1234 n.9 (App. 2017) (mother of minor victim is a “victim” for
purposes of the VBR).

¶4            Defense counsel objected, citing the rule of exclusion. See
Ariz. R. Crim. P. 9.3(a) (“The court may, and at the request of either party
shall, exclude prospective witnesses from the courtroom during opening
statements and the testimony of other witnesses.”). The superior court
granted the mother’s request. On appeal, Kemp argues the superior court’s
ruling was improper because the victim was no longer a minor as of the
July 2011 indictment and, thus, her mother was no longer entitled to
statutory victim status.

¶5              As an initial matter, the parties dispute whether Kemp
preserved the argument he raises on appeal and, therefore, our standard of
review. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 18-19, 115 P.3d 601, 607
(2005) (appellate court reviews for harmless error when defendant objects
at trial; appellate court reviews for fundamental error when defendant fails
to object) (citations omitted).

¶6              And, the parties also dispute whether the VBR applies
because the victim turned 18 after the State obtained the second indictment
in 2011. If the VBR is inapplicable, prejudice is presumed because the
superior court denied Kemp’s exclusionary request. See State v. Roberts, 126
Ariz. 92, 94, 612 P.2d 1055, 1057 (1980) (“[F]ailure to honor an exclusionary
request is presumed prejudicial unless the absence of prejudice is clearly
manifest from the record”; a defendant’s “conviction must . . . be reserved
unless scrutiny of the record reveals that the court’s denial of his motion to
exclude . . . did not prejudice him in any way.”). But, if the VBR applies, its
enactment “effectively removed the presumption of prejudice that we
traditionally attached to a trial judge’s refusal to exclude a witness from the
courtroom.” State v. Fulminante, 193 Ariz. 485, 502, 975 P.2d 75, 92 (1999).
Kemp would thus have to show prejudice if he preserved the argument he
raises on appeal, or fundamental error if he did not preserve the argument.

¶7           We do not, however, need to decide whether Kemp preserved
the argument he raises on appeal or whether the VBR applies because, as
discussed below, the record clearly establishes the mother’s presence in the

               2The
                  Legislature has not materially amended this statute after
the date of Kemp’s trial, thus we cite the the current version of the statute.


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                              STATE v. KEMP
                            Decision of the Court
courtroom throughout trial did not prejudice Kemp by, as he argues,
“smooth[ing] the rough edges” of the victim’s testimony.

¶8           In support of his “smoothing” argument, Kemp first argues
the victim’s mother “corrected” the victim’s testimony regarding a towel
Kemp placed under the victim when he sexually abused her. There was,
however, nothing for the victim’s mother to correct regarding the towel.

¶9             A detective who interviewed the victim in 2009 testified that
during the interview, the victim told him Kemp used a white towel when
he abused her. When asked about the towel at trial, the victim testified, “For
the most part, it was a green towel that [Kemp] laid underneath me, but I
don’t remember any other ones specifically. He had many towels.”
Although the mother later testified she recognized a white towel police
found in a filing cabinet in the family’s den,3 the mother testified only that
she recognized it as “a kitchen towel [the family] had.” The mother did not
testify about the color of the towel or towels that Kemp used during the sex
crimes—nor could she as she had no knowledge Kemp was sexually
abusing the victim. Therefore, the mother did not “correct” the victim’s
testimony.

¶10           Kemp also argues the mother’s presence in the courtroom
interfered with his ability to cross examine her regarding Kemp’s use of the
white towel police found in the filing cabinet. Outside the presence of the
jury, defense counsel told the court he wanted to question the mother about
the towel and about “something that they [the mother and Kemp] had
done” with the towel—the implication being his sperm on the towel was
innocuous. To decide how to proceed, the superior court asked the mother
whether she was aware there was a towel in the filing cabinet. She replied:

              THE WITNESS: I was not necessarily aware
              that there was a towel in there. However, I was
              aware that he would, from time-to-time, I
              believe, use a towel.

              THE COURT: I didn’t understand that.

              THE WITNESS: I believe he used towels. I just
              didn’t know that there was one there at that
              time.


              3A   forensic scientist testified the white towel police found in
the file cabinet contained sperm that matched Kemp’s DNA.


                                      4
                            STATE v. KEMP
                          Decision of the Court
             THE COURT: When you say he used towels,
             what did he use them for?

             THE WITNESS: Well, I think he watched his
             computer in the den, and he would ejaculate.
             And he had a towel, so wasn’t a big mess in the
             den.

             THE COURT: So, you just surmised that, or do
             you, in fact, know that that’s what was
             happening?

             THE WITNESS: I’ve seen him do it before. I’ve
             seen it.

¶11           Responding to this revelation, the superior court asked
defense counsel, “So, what you want to do is get in the fact that the
defendant had a towel in the file cabinet because he would masturbate and
ejaculate into a towel after watching the computer, which is probably
404(b)-type evidence. Do you really want that door opened?” Defense
counsel responded, “That’s not the door I wanted opened. I didn’t expect
that response.” Given that the mother’s testimony was not what defense
counsel expected, he did not question the mother about Kemp’s use of the
towel.

¶12         The mother’s presence in the courtroom did not interfere with
defense counsel’s ability to cross-examine her. Instead, as the foregoing
demonstrates, defense counsel decided not to cross-examine the mother
regarding Kemp’s use of a towel because he believed the substance of her
testimony would be prejudicial. Further, the mother’s description of how
Kemp had used the towel did not substantiate the victim’s testimony.

¶13           Kemp additionally argues the victim’s mother “minimized
her co-parenting [with Kemp] in the[ir] strict monitoring” of the victim.
This “minimalization,” however, did not “smooth” any rough edges in the
victim’s testimony, as Kemp argues. At trial, Kemp argued the victim had
fabricated the allegations of sexual abuse to get him “out of the way”
because she was upset over his close monitoring of her activities. In her
testimony, the mother confirmed the victim was upset over the monitoring,
and, indeed, acknowledged she had assisted Kemp in monitoring the
victim’s activities.

¶14           Finally, Kemp argues the victim’s mother “corrected [the
victim’s] timeline for bathroom remodeling.” During the time Kemp was


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                            STATE v. KEMP
                          Decision of the Court
abusing the victim, Kemp and the victim’s mother remodeled the bathroom
the victim used. When asked about the timeline for the bathroom remodel
the victim testified, “It got torn up. I don’t remember what year. When we
took out all the flooring, we tore up my bathroom, and it didn’t get
remodeled until I was 18 or 19. Only a few years ago.” In contrast, the
mother testified that during the bathroom remodel the victim “would have
been about 16, 16 or younger. Might have been 15.”

¶15           Given the conflicting testimony about when the family
remodeled the bathroom, the mother’s testimony did not, as Kemp asserts,
“correct” the timeline for the remodel. Indeed, during closing argument,
defense counsel emphasized that the mother testified the remodel did not
occur until the victim was 16—in direct contravention to the victim’s
testimony.

                             CONCLUSION

¶16          For the foregoing reasons, Kemp was not prejudiced by the
mother’s presence in the courtroom throughout trial. Therefore, we affirm
Kemp’s convictions and sentences.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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