                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                        STATE OF ARIZONA,
                             Appellee,

                                   v.

                       ROBERT JAMES NEESE,
                            Appellant.

                         No. 1 CA-CR 14-0705
                           FILED 1-7-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2005-007461-001
            The Honorable Pamela Hearn Svoboda, Judge

                      AFFIRMED AS MODIFIED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

The Hopkins Law Office, PC, Tucson
By Cedric Martin Hopkins
Counsel for Appellant
                              STATE v. NEESE
                             Opinion of the Court



                                   OPINION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1            Robert James Neese appeals from his convictions and
resulting sentences for seven counts of burglary in the second degree, one
count of burglary in the first degree, and seven counts of theft. Neese
argues the trial court erred in denying his motion to dismiss based on the
running of the statute of limitations. The State contends that the use of a
DNA profile to commence a prosecution of an unnamed defendant tolled
the statute of limitations. For the following reasons, we affirm Neese’s
convictions and sentences. Additionally, we amend a typographical error
in the sentencing minute entry.

                  FACTS AND PROCEDURAL HISTORY

¶2            Beginning in 1999, Scottsdale police investigated a number of
residential burglaries and related thefts. Although unable to identify a
possible suspect, police obtained DNA evidence from the crime scenes, and
the evidence was forensically tested. DNA analysts subsequently found
that the multiple samples of DNA shared the same genetic markers and a
unique DNA profile was created (DNA Profile) from that evidence. A
federal databank of DNA profiles did not produce a match for an individual
whose genetic markers matched those of the DNA Profile.

¶3             On March 15, 2005, an indictment (Indictment) was filed
charging “John Doe, I” with seven counts of burglary in the second degree,
class 3 felonies; three counts of theft, class 5 felonies; one count of burglary
in the first degree, a class 3 felony; three counts of theft, class 3 felonies; and
one count of theft, a class 2 felony. The Indictment identified John Doe I as
an “Unknown Male with Matching Deoxyribonucleic Acid . . . Profile at
Genetic Locations” followed by a string of the genetic markers found at
thirteen locations that collectively characterize the DNA Profile. The
alleged offenses occurred between 1999 and 2004.

¶4          In May, 2011, a DNA sample was obtained from Neese that
matched the DNA Profile. An amended indictment (Amended Indictment)



                                        2
                             STATE v. NEESE
                            Opinion of the Court

was filed substituting the John Doe I designation and DNA Profile
identification with Neese’s name as the defendant. The court issued a
second warrant based on the Amended Indictment that identified Neese by
his full name, date of birth, and other physical characteristics. Neese was
arrested and entered a not guilty plea at his arraignment.

¶5              Neese subsequently moved to dismiss the twelve counts
relating to offenses occurring before May 2004, arguing that the applicable
seven-year statute of limitations had expired before the State amended the
Indictment naming him as the defendant.1 Neese argued that the DNA
Profile in the Indictment did “not serve to identify someone,” and, because
a “John Doe” could not be convicted, the Indictment did not toll the statute
of limitations.

¶6           The court denied the motion, and Neese unsuccessfully
sought special action relief. A jury subsequently found Neese guilty as
charged, and he was sentenced to prison for 22.75 years. Neese appealed,
and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21.A.1, 13-4031 and -4033.A.1 (West
2015).2

                               DISCUSSION

I.     Motion to Dismiss: Statute of Limitations

¶7             The applicable statute of limitations for the 1999 offenses was
seven years, and it began to expire at the end of June 2006. See A.R.S.
§ 13-107.B.1. Although the Indictment was filed on March 15, 2005, well
within the limitations period, the Amended Indictment naming Neese was
filed in 2011, years after the statutory limitations period expired. See A.R.S.


1      Although the first degree burglary offense allegedly occurred before
2004, Neese did not seek dismissal of that count ostensibly because the
applicable statute of limitations had not expired on that serious offense
when the State amended the indictment. See Arizona Revised Statutes
(A.R.S.) section 13-107.E (period of limitation does not run for a serious
offense as defined in A.R.S. § 13-706 during any time when the identity of
the person who commits the offense or offenses is unknown).

2     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.




                                      3
                              STATE v. NEESE
                             Opinion of the Court

§ 13-107.C (filing of indictment commences prosecution). As a result, Neese
argues the court erred by denying his motion to dismiss because the DNA
Profile used in the Indictment did not sufficiently identify him to toll the
statute of limitations beyond the seven year limitation period. Analogizing
the DNA Profile to fingerprints, Neese contends that the DNA Profile was
merely evidence; thus, the Indictment was not issued against a “known
person.” He implies, as a result, that the Indictment improperly failed to
give him notice of the charges. Neese further argues that based on A.R.S.
§ 13-107.E,3 the legislature did not contemplate DNA profiles being used as
“identification mechanism[s,]” and he warns of the “practical fallout” of
issuing warrants to a DNA profile.

¶8            We interpret statutes and rules of procedure de novo. Taylor
v. Cruikshank, 214 Ariz. 40, 43, ¶ 10 (App. 2006). Similarly, we
“independently review any questions of law relating to the statute of
limitations defense.” State v. Aguilar, 218 Ariz. 25, 30, ¶ 15 (App. 2008)
(quoting Logerquist v. Danforth, 188 Ariz. 16, 18 (App. 1996)).

¶9             An indictment charging an unknown defendant must contain
“any name or description by which he can be identified with reasonable
certainty.” Ariz. R. Crim. P. 13.2, cmt.4 The propriety of using a DNA
profile for identification purposes to commence prosecution of an unnamed
defendant is an issue of first impression in Arizona.

¶10           Courts in other jurisdictions, however, have addressed the
issue and concluded that a unique DNA profile in a “John Doe” indictment
(or other prosecution-commencing event) identifies the defendant (or
suspect) with “reasonable certainty” or other similar standard of
particularity. See, e.g., State v. Danley, 853 N.E.2d 1224, 1226-28, ¶¶ 7-12
(Ohio Ct. Comm. Pleas 2006) (holding statute of limitations tolled when
John Doe DNA warrant was served on defendant); People v. Martinez, 52
A.D.3d 68, 70-71 (N.Y. App. Div. 2008) (rejecting argument that John Doe
DNA indictment was defective because it did not name or adequately

3     “The period of limitation does not run for a serious offense as
defined in § 13-706 during any time when the identity of the person who
commits the offense or offenses is unknown.” A.R.S. § 13-107.E.

4     See also Ariz. R. Crim. P. 3.2(a) (“[An arrest] warrant shall . . . contain
the name of the defendant or, if the defendant’s name is unknown, any
name or description by which the defendant can be identified with
reasonable certainty.”).



                                       4
                              STATE v. NEESE
                             Opinion of the Court

describe defendant); People v. Robinson, 224 P.3d 55, 75 (Cal. 2010) (holding
that an arrest warrant describing a defendant by a DNA profile identifies
the defendant with “sufficient particularity”); State v. Burdick, 395 S.W.3d
120, 128 (Tenn. 2012) (holding that a “DNA profile exclusively identifies an
accused with nearly irrefutable precision”); State v. Younge, 321 P.3d 1127,
1131-33, ¶¶ 12-14 (Utah 2013) (holding that the requirement that a charging
document “charge a person” was satisfied by identifying an unknown John
Doe defendant with a DNA profile); State v. Carlson, 845 N.W.2d 827, 831-
32 (Minn. Ct. App. 2014) (holding that a DNA profile meets and exceeds
particularity requirements); see also Daniel Gaudet, Waiting for John Doe: The
Practical and Constitutional Implications of DNA Indictments, 18 Suffolk J. Trial
& App. Advoc. 106, 107 (2013) (noting that “courts have found
overwhelmingly in favor of the constitutionality of [John Doe DNA]
indictments.”).

¶11          The issue first arose in State v. Dabney, 663 N.W.2d 366 (Wis.
Ct. App. 2003), and the Tennessee Supreme Court, in agreeing with the
Dabney decision, described the Wisconsin court’s reasoning as follows:

       In State v. Dabney, . . . , under circumstances almost identical
       to those in the case before us, the complaint and arrest
       warrant initially identified the suspect as “John Doe,”
       charged him with certain sexual assault offenses, and set forth
       a unique DNA profile obtained from evidence recovered from
       the victim. [Dabney] at 369. Similar to the statutory
       requirements in Tennessee, Wisconsin law required an arrest
       warrant to “[s]tate the name of the person to be arrested, if
       known, or if not known, designate the person to be arrested
       by any description by which the person to be arrested can be
       identified with reasonable certainty.” Id. at 371 (citing Wis.
       Stat. § 968.04(3)(a)(4)). Because “the particularity or
       reasonable certainty requirements [of the statute did] not
       absolutely require that a person's name appear in the
       complaint or warrant,” id. at 371, the Wisconsin court
       concluded “that for purposes of identifying ‘a particular
       person’ . . . , a DNA profile is arguably the most discrete,
       exclusive means of personal identification” and, therefore,
       satisfied the “reasonable certainty” requirements of an arrest
       warrant, id. at 372 (citing [Meredith A. Bieber, Comment,
       Meeting the Statute or Beating It: Using “John Doe” Indictments
       Based on DNA to Meet the Statute of Limitations, 150 U. Pa.
       L.Rev. 1079, 1085 (2002)] (“A genetic code describes a person



                                       5
                             STATE v. NEESE
                            Opinion of the Court

       with far greater precision than a physical description or a
       name.”)).

Burdick, 395 S.W.3d at 127. 5

¶12           We agree with the reasoning of Dabney, Burdick, and similar
rulings in other jurisdictions. We do so because Arizona law does not
require an indictment to name a defendant; rather, if the person’s name is
unknown, the indictment need only provide a description that identifies the
defendant “with reasonable certainty.” Ariz. R. Crim. P. 13.2, cmt. The
DNA Profile in the Indictment satisfied the “reasonable certainty”
requirement.6 Also, nothing in A.R.S. § 13-107.E implies a legislative intent
to require a suspect’s name for identification purposes. Furthermore, the
impracticality of using a DNA profile to serve an arrest warrant on a
physically unrecognizable person, as Neese argues, is not dispositive. Such
a warrant will only be served after law enforcement discovers a name
connected to a DNA profile. “This extra step, however, is not unique to a
warrant based on DNA. No matter how well a warrant describes the
individual, extrinsic information is commonly needed to execute it. If a
name is given, information to link the name to the physical person must be
acquired.” Dabney, 663 N.W.2d at 372, ¶ 17.

¶13           We thus hold that for limitation purposes, a criminal
prosecution commences upon the filing of a “John Doe” indictment that
identifies a defendant with a unique DNA profile. Our holding is limited
to the facts and procedural history of this case. There may be instances
where a “John Doe” indictment containing a less comprehensive recitation

5       In what apparently is the only reported decision concluding
otherwise, the Kansas Supreme Court, while agreeing with the reasoning
in Dabney and Robinson, held that John Doe DNA arrest warrants
insufficiently identified perpetrators of crimes because the DNA profiles in
that case referred only to DNA loci that are common to all humans. State v.
Belt, 179 P.3d 443, 449-51 (Kan. 2008).

6      Neese does not expressly argue that the DNA Profile in the
Indictment could have identified another person. To the extent he
implicitly does so, we disagree. See, e.g., Com. v. Dixon, 938 N.E.2d 878, 885
(Mass. 2010) (“A DNA profile is not merely a word ‘of description,’ it is . . .
metaphorically, an indelible ‘bar code’ that labels an individual’s identity
with nearly irrefutable precision.”) (internal citation omitted); see also
Dabney, 663 N.W.2d at 372.



                                      6
                              STATE v. NEESE
                             Opinion of the Court

of genetic markers may not sufficiently describe the defendant with
reasonable certainty. Because the Indictment was filed before the seven-
year time limit expired, Neese’s prosecution was timely. Neese’s reliance
on Taylor, 214 Ariz. 40, is misplaced. In Taylor, the applicable statute of
limitations had expired before the State filed a John Doe DNA indictment.
Id. at 41-42, 47, ¶¶ 3, 5-6, 29.

¶14            We also reject Neese’s argument that the Indictment’s DNA
Profile failed to notify him of the charges, and therefore, the State’s
amendment of the Indictment after the statute of limitations expired
violated his due process rights. Criminal statutes of limitation such as
A.R.S. § 13-107 are “not based on [a] fundamental, constitutional right.”
State v. Jackson, 208 Ariz. 56, 63, ¶ 25 (App. 2004) (citing State v. Timoteo, 952
P.2d 865, 870 (Haw. 1997)). Rather, statutes of limitation reflect “legislative
assessments.” United States v. Marion, 404 U.S. 307, 322 (1971). Accordingly,
the Amended Indictment did not violate Neese’s due process rights.
Furthermore, Neese does not argue that he lacked notice of the charges
when he was arraigned. Because he knew what the charges were at the
time of his arraignment, he has demonstrated no prejudice. See State v.
Rosario, 195 Ariz. 264, 267, ¶ 15 (App. 1999).

II.    Evidentiary Hearing

¶15            Neese also argues the trial court erred in not conducting an
evidentiary hearing before ruling on his motion to dismiss. Although
Neese requested oral argument on the motion, he did not request an
evidentiary hearing; thus, we review the issue for fundamental error. See
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (failure to object to alleged
trial error results in fundamental error review). To obtain relief under
fundamental error review, Neese has the burden to show that error
occurred, the error was fundamental and that he was prejudiced thereby.
See id. at 567-68, ¶¶ 20-22.

¶16          We review the court’s failure to sua sponte hold an evidentiary
hearing for an abuse of discretion. State v. Wassenaar, 215 Ariz. 565, 576,
¶ 48 (App. 2007). We find none here.

¶17            The issue to be decided by Neese’s motion was a legal, not
factual, one. Neese does not point to any factual dispute that needed to be
resolved before the court ruled on his motion to dismiss. Accordingly,
Neese has failed to establish error, let alone fundamental error, in the trial
court’s failure to sua sponte order an evidentiary hearing. For the foregoing




                                        7
                             STATE v. NEESE
                            Opinion of the Court

reasons, we find the superior court acted within its discretion in denying
Neese’s motion to dismiss.

III.   Right to a Speedy Trial

¶18          Neese argues the trial court should have dismissed the
Indictment because the State failed to timely prosecute him from March
2005, the date of the Indictment, to May 2011, the date of the Amended
Indictment.

¶19            As Neese concedes, we review for fundamental error because
he did not assert his speedy trial rights in superior court. As noted, it is
Neese’s burden under fundamental error review to establish prejudice. We
will not presume prejudice where none appears affirmatively in the record.
See State v. Trostle, 191 Ariz. 4, 13 (1997).

¶20             Neese does not explain how the six-year delay between the
filing of the Indictment and the Amended Indictment prejudiced him. The
only issues to be determined by the jury were whether Neese was
impermissibly in the victims’ homes intending to commit a felony, and
whether he stole the victims’ personal property. Neese has not shown how
the six-year delay prevented him from obtaining any exculpatory evidence.
He was not incarcerated on the charges until he was arrested in 2011.
Similarly, Neese points to nothing in the record indicating the State
intentionally (or negligently) caused the delay or otherwise acted in bad
faith. Because Neese’s right to a speedy trial was not violated, no
fundamental error occurred. 7

IV.    State’s Closing Argument

¶21           Neese also argues he was prejudiced by the prosecutor’s
reference to the length of time it took to prosecute this case in closing
argument:



7       Although, the delay between the Indictment and Amended
Indictment was undeniably lengthy, the reason for the delay is clear: the
State had no named suspect until it accessed Neese’s DNA. And once it did
possess Neese’s DNA, the State acted promptly in amending the Indictment
and arresting Neese. See Barker v. Wingo, 407 U.S. 514, 530 (1972)
(establishing four-factor balancing test to evaluate speedy trial claims:
“[l]ength of delay, the reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant”).


                                      8
                             STATE v. NEESE
                            Opinion of the Court

       And the other thing to keep in mind, it would be one thing if
       the first burglary in 1999, the next day, went to his house,
       there is the property.

       And/or the next burglary, the day after, they went to the
       house or they caught him on the street next to house (sic),
       what happened to the property? The, well, then there will be
       a question, where is all the property?

       We are talking [seven] years from the last burglary until when
       they got his DNA in 2011, [seven] years. We are talking
       [twelve] years from the 1999 burglaries to when they obtained
       his DNA.

       And do you think he can get rid of property in [seven] years,
       or [eight] years or ten years or [twelve] years without it
       turning up? Absolutely.

The prosecutor’s comments were made to rebut defense counsel’s closing
argument regarding the lack of evidence connecting Neese to the
burglaries. Defense counsel explained to the jury:

       Well, if the evidence was acquired as to DNA in 2011, that
       they believed tied him to these matters in 1999 through 2004,
       where are the items? Where is the evidence he ever had them?
       Where is all the money? Where did it go?

       ...

       There were no witnesses that he had anything, how does that
       go unnoticed?

¶22           In light of defense counsel’s argument we find no misconduct.
In addition, we find no prejudice in view of the DNA evidence linking
Neese to the crime scenes. Accordingly, Neese fails to satisfy his burden of
establishing prejudice. See State v. Diaz, 223 Ariz. 358, 361, ¶ 13 (2010) (“We
will not reverse a conviction based on speculation or unsupported
inference.”).

V.     Sentencing Minute Entry

¶23            The Indictment incorrectly referred to a nonresidential
structure in the first degree burglary count (Count 5), and, therefore, noted
it was a class 3 felony. Because Count 5 alleged Neese or an accomplice



                                      9
                             STATE v. NEESE
                            Opinion of the Court

knowingly possessed a handgun while committing the burglary, the State,
without objection, orally amended Count 5 to reflect its proper class 2
felony designation as a burglary of a residential structure. See A.R.S.
§ 13-1508.B.

¶24           The evidence at trial revealed that the victim’s home (i.e.,
residential structure) had been burglarized.            Before deliberations
commenced, the court instructed the jury on the amended count. The court
sentenced Neese on Count 5 to 9.25 years’ incarceration, the presumptive
term for a class 2 felony conviction as a subsequent offense to a second
felony offense under then-applicable A.R.S. § 13-702.02.B.4 (2000).
However, the sentencing minute entry incorrectly refers to Count 5 as a
class 3 felony. Pursuant to our authority under A.R.S. § 13-4037.A, we
amend the sentencing minute entry filed August 12, 2013, to correctly
reflect Count 5 as a class 2 felony. See State v. Contreras, 180 Ariz. 450, 453
n.2 (App. 1994) (“When we are able to ascertain the trial court’s intention
by reference to the record, remand for clarification is unnecessary.”).

                              CONCLUSION

¶25           For the foregoing reasons, we affirm Neese’s convictions and
the resulting sentences, but amend the sentencing minute entry to reflect
the correct nature of Count 5 as a class 2 felony.




                                  :ama




                                      10
