                                 IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                   v.

                        CRISPIN GRANADOS,
                             Appellant.

                      No. 2 CA-CR 2013-0206
                       Filed August 5, 2014


       Appeal from the Superior Court in Santa Cruz County
                          No. CR10209
               The Honorable James A. Soto, Judge

                            AFFIRMED


                                COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee

Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant


                                OPINION

Judge Howard authored the opinion of the Court, in which Judge
Vásquez and Judge Miller concurred.
                       STATE v. GRANADOS
                        Opinion of the Court


H O W A R D, Judge:

¶1           After a jury trial, Crispin Granados was convicted of
kidnapping, second-degree burglary, two counts of sexual assault,
aggravated assault, and aggravated harassment. On appeal, he
argues the trial court displayed judicial bias and erred in some of its
evidentiary rulings.1 For the following reasons, we affirm.

                Factual and Procedural Background

¶2          We view the evidence in the light most favorable to
upholding the convictions. State v. Pena, 233 Ariz. 112, ¶ 2, 309 P.3d
936, 938 (App. 2013). In September 2010, P.L., at the time
approximately seventy-two years old, went outside to feed her dog.
Granados grabbed her, threw her against the wall several times, and
told her that “he was going to suffocate [her] with [his] jacket.”
Granados took P.L. inside the house and continued hitting her. He
then took P.L. into her bedroom and sexually assaulted her.

¶3          Granados remained in the house for the next two days;
he continually watched P.L. to ensure she did not leave,
disconnected her telephones, threatened her, threatened to kidnap
her grandchildren and kill her children if she told anyone about him,
did not allow her to eat, and allowed her to have only one glass of
water. During that time, Granados continued to physically assault
P.L. and sexually assaulted her two more times.

¶4          On the third day, P.L. told Granados she would lift an
injunction against harassment she had obtained against him before
this incident if he allowed her to go to a previously scheduled
doctor’s appointment, and Granados agreed. P.L. met her daughter


      1Granados   raises other issues that do not meet the criteria for
publication. See Ariz. R. Sup. Ct. 111(b). We address them in a
separate, contemporaneously filed memorandum decision. See Ariz.
R. Sup. Ct. 111(h). Although not directly relevant to the issue
discussed here, we provide the facts and procedural background in
this opinion to provide context for our discussion.

                                  2
                        STATE v. GRANADOS
                         Opinion of the Court

at the doctor’s office, told her what had happened, and they
reported it to the police.

¶5          Granados was charged and convicted as noted above.
He was sentenced to aggravated, enhanced, concurrent and
consecutive terms of imprisonment totaling twenty years.

                              Judicial Bias

¶6           Granados argues that because the trial court removed
him from the courtroom during part of voir dire and sustained
objections during his testimony later in the trial, the court infected
the trial with an appearance of bias. Granados contends he is
entitled to structural error review, which does not require a
defendant to object at the trial level. See State v. Ring, 204 Ariz. 534,
¶ 46, 65 P.3d 915, 933 (2003); State v. Valverde, 220 Ariz. 582, ¶ 10, 208
P.3d 233, 235-36 (2009).

¶7           Structural error is error so serious that it “‘deprive[s]
defendants of basic protections without which a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or
innocence’” and, if found, is prejudicial per se and requires reversal.
Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d at 235, quoting Ring, 204 Ariz.
534, ¶ 45, 65 P.3d at 933 (alterations in Valverde). In Ring, our
supreme court stated that the United States Supreme Court defined
“a biased trial judge” as one of the “relatively few instances in which
we should regard error as structural.” 204 Ariz. 534, ¶ 46, 65 P.3d at
933.

¶8           In Ring, the court cited Tumey v. Ohio, 273 U.S. 510, 523
(1927) for the proposition that judicial bias constitutes structural
error. Id. In Tumey, the Supreme Court found that it “violates the
Fourteenth Amendment and deprives a defendant in a criminal case
of due process of law to subject his liberty or property to the
judgment of a court, the judge of which has a direct, personal,
substantial pecuniary interest in reaching a conclusion against him.”
273 U.S. at 523. However, the Court further stated that “[a]ll
questions of judicial qualification may not involve constitutional
validity. Thus matters of kinship, personal bias, state policy,
remoteness of interest would seem generally to be matters merely of

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                        STATE v. GRANADOS
                         Opinion of the Court

legislative discretion.” Id. Rather, it is only bias reflecting a “direct,
personal, substantial pecuniary interest,” id., that constitutes a
“structural defect affecting the framework within which the trial
proceeds.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

¶9           Similarly, in Caperton v. A.T. Massey Coal Co., the
Supreme Court concluded that whether bias rises to the
constitutionally impermissible level is grounded in the “maxim that
’[n]o man is allowed to be a judge in his own cause; because his
interest would certainly bias his judgment, and, not improbably,
corrupt his integrity.’” 556 U.S. 868, 876 (2009), quoting The
Federalist No. 10, at 59 (James Madison) (J. Cooke ed. 1961). To
determine whether bias meets the objective standard due process
requires, “the Court has asked whether, ‘under a realistic appraisal
of psychological tendencies and human weakness,’ the interest
‘poses such a risk of actual bias or prejudgment that the practice
must be forbidden if the guarantee of due process is to be
adequately implemented.’” Id. at 883-84, quoting Withrow v. Larkin,
421 U.S. 35, 47 (1975).

¶10           Under that high standard, the Court has found judicial
recusal constitutionally required only in “rare instances.” Id. at 890.
For example, when the judge had a “financial interest in the
outcome of a case” or “in the criminal contempt context, where a
judge had no pecuniary interest in the case but was challenged
because of a conflict arising from his participation in an earlier
proceeding” that suggested he had a strong interest in the outcome.
Id. at 876-81. To this short list, the Court added those cases in which
“a person with a personal stake in a particular case had a significant
and disproportionate influence in placing the judge on the case by
raising funds or directing the judge’s election campaign when the
case was pending or imminent.” Id. at 884. As the Court pointed
out, these types of cases “deal[] with extreme facts that create an
unconstitutional probability of bias.” Id. at 887.

¶11          Therefore, although Ring and Valverde generically refer
to “judicial bias” as structural error, the defendant must allege a
type of bias that would implicate his due process rights, such as bias
based on a “direct, personal, substantial pecuniary interest,” in order
to constitute such error. Tumey, 273 U.S. at 523; Fulminante, 499 U.S.
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                        STATE v. GRANADOS
                         Opinion of the Court

at 309-10; see also Caperton, 556 U.S. at 876-77. Other types of bias,
such as “[p]ersonal bias or prejudice, . . . ‘would not be [a] sufficient
basis for imposing a constitutional requirement under the Due
Process Clause’” and thus do not require structural error review.
Caperton, 556 U.S. at 877, quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S.
813, 820 (1986).

¶12           Here, Granados’s allegations of bias are based solely on
the trial judge’s rulings and admonishments to him regarding his
behavior in the courtroom. He does not allege bias or the objective
potential for bias based on the judge’s “direct, personal, substantial
pecuniary interest” or other strong personal interest in the outcome
of the case. See Tumey, 273 U.S. at 523. Accordingly, Granados is not
entitled to structural error review. See Valverde, 220 Ariz. 582, ¶ 10,
208 P.3d at 235-36; Caperton, 556 U.S. at 876-81.

¶13          As we have noted above, states are allowed to impose
more rigorous standards for judicial recusal than that required by
due process. Caperton, 556 U.S. at 889-90. “[M]atters of kinship,
personal bias, state policy, remoteness of interest,” for example, are
ordinarily within the purview of the state. Tumey, 273 U.S. at 523.
In Arizona, defendants are “entitled to a change of judge if a fair and
impartial hearing or trial cannot be had by reason of the interest or
prejudice of the assigned judge.” Ariz. R. Crim. P. 10.1(a). If a
defendant fails to object on the basis of a trial judge’s bias below by
filing a motion and affidavit pursuant to Rule 10.1, he forfeits review
for all but fundamental, prejudicial error. State v. Curry, 187 Ariz.
623, 631, 931 P.2d 1133, 1141 (App. 1996); Henderson, 210 Ariz. 561,
¶ 19, 115 P.3d at 607. Thus, because Granados is alleging the
appearance of bias based on judicial rulings, and not bias based on
constitutionally impermissible grounds, he has forfeited the
argument for all but fundamental, prejudicial error because he failed
to file a motion pursuant to Rule 10.1 below. See Curry, 187 Ariz. at
631, 931 P.2d at 1141.

¶14           “‘A trial judge is presumed to be free of bias and
prejudice.’” State v. Ramsey, 211 Ariz. 529, ¶ 38, 124 P.3d 756, 768
(App. 2005), quoting State v. Hurley, 197 Ariz. 400, ¶ 24, 4 P.3d 455,
459 (App. 2000). “Bias and prejudice means a hostile feeling or spirit
of ill-will, or undue friendship or favoritism” toward one of the
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                         STATE v. GRANADOS
                          Opinion of the Court

parties. State v. Myers, 117 Ariz. 79, 86, 570 P.2d 1252, 1259 (1977).
Judicial bias or prejudice ordinarily must “‘arise from an extra-
judicial source and not from what the judge has done in his
participation in the case.’“ State v. Emanuel, 159 Ariz. 464, 469, 768
P.2d 196, 201 (App. 1989), quoting State v. Thompson, 150 Ariz. 554,
557, 724 P.2d 1223, 1227 (App. 1986). Thus, “judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion.”
Liteky v. United States, 510 U.S. 540, 555 (1994); see also State v. Ellison,
213 Ariz. 116, ¶ 40, 140 P.3d 899, 912 (2006). And “adverse rulings to
which a party assigns no error” cannot demonstrate judicial bias
either. Curry, 187 Ariz. at 631, 931 P.2d at 1141. Furthermore, we
must review such claims in light of the judge’s duty to “require
order and decorum in proceedings before the court.” See Ariz. R.
Sup. Ct. 81, Canon 2.8(A).

¶15         In this case, Granados claims the trial court gave “the
appearance of bias” by not allowing Granados to interrupt court
proceedings, removing him from the courtroom during voir dire,
and sustaining general objections during Granados’s testimony. His
arguments are without merit.

¶16          During voir dire, despite repeated admonishments from
the judge, Granados continually interrupted the court proceedings.
Later that same day, Granados addressed the jury directly, and
asked a witness in the presence of the jury, and without any basis, if
he was “still having sex with [P.L.].” At the start of the afternoon
session, outside the presence of the jury, the trial court granted the
state’s motion to have Granados removed from the courtroom due
to his disruptive behavior. He was allowed to watch and listen to
the proceedings from an observation room.

¶17          In light of Granados’s repeated interference with court
proceedings, the trial judge was acting well within his authority to
control the courtroom. See State v. Bible, 175 Ariz. 549, 595, 858 P.2d
1152, 1198 (1993); see also Ariz. R. Sup. Ct. 81, Canon 2.8(A).
Granados has failed to point out any specific comments or actions by
the judge that would show “a hostile feeling or spirit of ill-will.”
Myers, 117 Ariz. at 86, 570 P.2d at 1259. Furthermore, the judge’s
admonitions and order to remove Granados from the courtroom
occurred outside the presence of the jury and he therefore has not
                                     6
                        STATE v. GRANADOS
                         Opinion of the Court

established any prejudice arising therefrom. See Bible, 175 Ariz. at
595, 858 P.2d at 1198; see also Hilliard, 133 Ariz. at 368-69, 651 P.2d at
896-97. Consequently, Granados’s reliance upon the court’s conduct
during jury selection fails to show judicial bias or the appearance of
bias. See Bible, 175 Ariz. at 595, 858 P.2d at 1198.

¶18           Granados also argues that the trial court’s rulings
during his testimony “[e]scalat[ed] . . . the appearance of bias by the
trial court.” Granados generally alleges that the court exhibited bias
by “sustaining a myriad of general objections” by the prosecutor
during his testimony. He seems to reason that general objections are
improper, and therefore ruling on those general objections “had
massive impacts upon the fairness of Mr. Granados’s trial.”

¶19           Objections ordinarily must state the specific grounds
upon which they are made, “unless it [is] apparent from the
context.” Ariz. R. Evid. 103(a)(1)(B). The purpose of the rule
requiring that specific grounds of objection be stated is to allow the
adverse party to address the objection and to permit the trial court to
intelligently rule on the objection and avoid error. State v. Rutledge,
205 Ariz. 7, ¶¶ 29-30, 66 P.3d 50, 56 (2003) (specific objection allows
“‘the trial court to rectify possible error . . . and to enable the
opposition to obviate the objection if possible’”), quoting State v.
Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 901 (1955); see also In re
Tiffany O., 217 Ariz. 370, ¶ 5, 174 P.3d 282, 284 (App. 2007).

¶20           Before Granados took the stand, his attorneys
recognized he likely would “spout[] out irrelevant stuff” while
testifying. The trial court had to repeatedly admonish Granados to
“listen to the question that your attorney asks you carefully and just
answer the question.        You do not need to add additional
information.” Despite these admonishments, Granados continually
went beyond the scope of the questions asked and gave non-
responsive answers.

¶21         Based on Granados’s conduct throughout the trial, and
his persistent practice of giving non-responsive and beyond the
scope answers, the grounds of the prosecutor’s objections were clear
from their context. See Ariz. R. Evid. 103(a)(1)(B). And when
Granados’s attorneys stated they did not know the ground for the
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                        STATE v. GRANADOS
                         Opinion of the Court

objection, they were told. Granados has not cited any legal
authority or provided any explanation for how a trial court’s ruling
on properly made objections would create the appearance of judicial
bias. See Liteky, 510 U.S. at 555; Ellison, 213 Ariz. 116, ¶ 40, 140 P.3d
at 912.     A defendant’s own self-prejudicing conduct which
precipitates lawful repercussions simply does not create the
appearance of bias in the judge. See Liteky, 510 U.S. at 555; Ellison,
213 Ariz. 116, ¶ 40, 140 P.3d at 912.

¶22           To the extent Granados argues that the act of sustaining
the many objections made during his testimony created the
appearance of bias, we similarly reject this assertion. Although the
trial judge sustained many of the prosecutor’s objections, it
overruled many of them as well. The judge was merely exercising
his authority and duty to issue rulings on proper objections; rulings
which Granados has failed to take issue with on appeal.
Accordingly, Granados has failed to show any judicial bias
stemming from the judge’s rulings on properly made objections, and
his argument fails. See Curry, 187 Ariz. at 631, 931 P.2d at 1141;
Ellison, 213 Ariz. 116, ¶ 40, 140 P.3d at 912.

¶23            Granados further argues that the trial court’s sua sponte
objections during his testimony gave the appearance of bias. A trial
court must “avoid any appearance of partiality . . . [and] refrain
from taking any action calculated to influence the jury or likely
prejudice the defendant.” Bible, 175 Ariz. at 595, 858 P.2d at 1198.
However, a “trial judge must control the courtroom.” Id.; Ariz. R.
Evid. 103(d) (“[T]he court must conduct a jury trial so that
inadmissible evidence is not suggested to the jury by any means.”).
The court thus has discretion to ensure that inadmissible testimony
and evidence is not presented, “even when the opponent does not
object.” Bible, 175 Ariz. at 595, 858 P.2d at 1198; Ariz. R. Evid. 611.
Accordingly, “[w]ithin reason, a judge does not display bias or cause
prejudice when acting sua sponte to control the courtroom and the
trial.” Bible, 175 Ariz. at 595, 858 P.2d at 1198.

¶24          During one instance, the trial judge, who spoke
Spanish, cut off the interpreter because he understood Granados
was about to testify to inadmissible hearsay. Following Granados’s
objection to such a procedure, the judge noted he was “sympathetic”
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                       STATE v. GRANADOS
                        Opinion of the Court

to the concerns of the non-Spanish speaking attorneys and would
“try to restrain [himself],” but would continue to exercise his
authority to control the testimony given in the case. One of
Granados’s attorneys spoke Spanish and did not take issue with the
judge’s characterization of Granados’s impending testimony. In
fact, Granados conceded below that the court had the “authority to
control testimony.”

¶25          Although on appeal Granados summarily states that
after this instance, “the Court continued and, in fact, the
interruptions increased,” he does not cite to any portion of the
record where the court interrupted the interpreter based on its
understanding of Granados’s Spanish testimony, nor could we find
such an instance. Consequently, Granados has not demonstrated
that this single exchange or any of the court’s actions demonstrated
a “deep-seated . . . antagonism” which would constitute judicial
bias. See Ellison, 213 Ariz. 116, ¶ 38, 140 P.3d at 912. Our review of
the record shows the judge was trying to control the courtroom to
ensure the jury received only admissible, relevant testimony.2 See
Bible, 175 Ariz. at 595, 858 P.2d at 1198.

¶26          Throughout the rest of Granados’s testimony, despite
the trial court’s repeated admonitions, he continued to go beyond
the scope of what was asked by the attorneys and provide non-
responsive answers. Again, he has not contended that any of the
court’s sua sponte rulings were erroneous. Thus, Granados has not
demonstrated how the court’s sua sponte actions to prevent the jury
from hearing inadmissible testimony amounted to a display of bias.
See id.

¶27         Granados also appears to contend that because the trial
judge did not make sua sponte objections during P.L.’s testimony, as

      2 We note that both the trial judge and one of the defense
attorneys attempted to prevent Granados from completing an
answer, or the interpreter from stating it, because of evidentiary
concerns. Unless necessary to prevent a mistrial, or otherwise
necessary for the administration of justice, this practice should be
used sparingly.

                                  9
                        STATE v. GRANADOS
                         Opinion of the Court

the judge had done during Granados’s own testimony, he created a
disparity that necessarily showed some bias on the judge’s part
which prejudiced Granados. But Granados has failed to indicate
where the judge should have made, but failed to make, sua sponte
objections to P.L.’s testimony and how, during a nine-day trial, the
court’s lack of objections during one witness’s testimony showed a
“deep-seated . . . antagonism” toward Granados or undue favoritism
towards the state. See Ellison, 213 Ariz. 116, ¶ 38, 140 P.3d at 912; see
also State v. Cannon, 148 Ariz. 72, 76, 713 P.2d 273, 277 (1985) (no
requirement that “judges sua sponte . . . rule on issues not raised
before them”). This contention, without any further support or
explanation, is insufficient to show that the judge was biased. See
Ramsey, 211 Ariz. 529, ¶ 38, 124 P.3d at 768.

¶28          Additionally, although the trial court did not, sua
sponte, make objections during P.L.’s testimony, Granados
frequently objected; a strategy which the court specifically protected
despite the state’s contention that the constant objections were
“confusing” and “disruptive.” The record does not demonstrate the
judge inherently treated P.L. and Granados so differently as to
demonstrate “that the trial judge was, in fact, biased.” Ramsey, 211
Ariz. 529, ¶ 38, 124 P.3d at 768.

¶29          Granados has failed to show any bias on the trial
judge’s part, let alone a bias amounting to fundamental error. See
Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607; Curry, 187 Ariz. at
631, 931 P.2d at 1141. His argument thus fails.

                         Hearsay Testimony

¶30          Granados next argues the trial court erred by admitting
hearsay testimony. “We review a trial court’s ruling on the
admissibility of evidence for an abuse of discretion and will reverse
such a ruling only upon a finding of clear prejudice.” State v. Fischer,
219 Ariz. 408, ¶ 24, 199 P.3d 663, 671 (App. 2008).

¶31         Hearsay is “a statement . . . the declarant does not make
while testifying at the current trial or hearing . . . offer[ed] in
evidence to prove the truth of the matter asserted in the statement.”
Ariz. R. Evid. 801(c). Hearsay does not include a witness’s prior

                                   10
                        STATE v. GRANADOS
                         Opinion of the Court

statement “to rebut an express or implied charge that the declarant
recently fabricated” his court testimony. Ariz. R. Evid. 801(d)(1)(B).
Our supreme court also has concluded that when such evidence
might serve a dual purpose and is classified as hearsay, it is
permissible to admit the evidence to rebut an improper inference
created through defense counsel’s cross-examination of a witness.
State v. Kemp, 185 Ariz. 52, 60-61, 912 P.2d 1281, 1289-90 (1996). It
based this conclusion on the “open door” or “invited error”
doctrine, reasoning that when defense counsel causes an improper
inference to arise through cross-examination, the defendant cannot
“claim error occurred” when the state rebuts that “assertion with
contrary proof,” even where that proof is hearsay. Id.; see also State v.
Garcia, 133 Ariz. 522, 526, 652 P.2d 1045, 1049 (1982) (no error in
admitting hearsay testimony where defense counsel opened “whole
field of examination . . . [thus] open[ing] the door to further
inquiry,” which precluded “assign[ing] its fruits as error on
appeal”). The state relies on this doctrine to defend the trial court’s
ruling.

¶32         During trial, the state examined police officer Oscar
Mesta, who initially contacted P.L. after the crimes.          The
prosecutor’s questions were limited to how P.L. had appeared and
behaved during the initial interview, the method of the interview,
and the general intake process. On cross-examination, however,
Granados asked Mesta a series of questions about specific
statements P.L. had made to him during the interview, including
whether she stated Granados had threatened her with a gun,
whether she stated she had left her front door open enabling
Granados to go inside, and whether she stated she was unable to
answer the telephone.

¶33         The state argues that the “clear import of [Granados]’s
questioning, then, was to leave the jury with the impression that P.L.
gave different accounts to Mesta and to the jury of what had
happened” and thus opened the door to clarification from the
prosecutor on redirect. Thus, it reasons, the trial court properly
admitted the evidence.

¶34          From the record before us, it appears that Granados’s
line of questioning, if left unrebutted, might have left the jury with
                                   11
                       STATE v. GRANADOS
                        Opinion of the Court

this impression. P.L. had testified earlier in the trial that she had
been able to answer at least some telephone calls, that Granados
initially had attacked her when she went outside to feed her dog,
and she did not mention being threatened with a gun. Without
further explanation, the jury might have believed that P.L.’s story
had substantially evolved from the time of her first police contact to
her testimony at trial. Thus, providing the prosecution with an
opportunity to elicit the substance of P.L.’s statements to Mesta was
necessary to rebut this improper inference. See Ariz. R. Evid.
801(d)(1)(B); Kemp, 185 Ariz. at 60-61, 912 P.2d at 1289-90. And
because Granados created this inference from his own questioning,
he may not claim as error the court’s permitting the prosecution to
rebut it. See Kemp, 185 Ariz. at 60-61, 912 P.2d at 1289-90.

¶35          Moreover, even assuming it was error to admit the
evidence, Granados cannot show he was prejudiced. Mesta related
essentially the same story that P.L. had given in her earlier
testimony. The introduction of this cumulative evidence was at
most harmless error. See State v. Williams, 133 Ariz. 220, 226, 650
P.2d 1202, 1208 (1982) (“[E]rroneous admission of evidence which
was entirely cumulative constitute[s] harmless error.”); State v.
Shearer, 164 Ariz. 329, 340, 793 P.2d 86, 97 (App. 1989) (same).

                            Disposition

¶36         For the foregoing reasons, as well as those set out in our
separate memorandum decision, we affirm Granados’s convictions
and sentences.




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