                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                      ARNOLD RAY REESE, Appellant.

                             No. 1 CA-CR 14-0439
                              FILED 7-7-2015


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201201083
               The Honorable Rick A. Williams, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist III
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Andrew W. Gould and Judge Peter B. Swann joined.
                             STATE v. REESE
                            Decision of the Court

H O W E, Judge:

¶1           Arnold Ray Reese appeals his convictions and sentences for
child molestation. Reese argues that prejudicial comments from various
veniremembers required the trial court to sua sponte declare a mistrial
because the comments tainted the entire jury panel. Because Reese has
failed to demonstrate prejudice from the alleged error, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In 2012, the State indicted Reese with 19 counts of various
child molestation crimes. Before voir dire, the trial court read the entire
indictment to the venire. The indictment described that Reese had molested
two minor girls by engaging in oral sex with both girls and by touching one
girl’s vagina with his penis.

¶3            The prosecutor then conducted voir dire. A veniremember
then interrupted, stating that she was “a survivor of incest in 1981. My
father hung himself . . . . I’m getting upset.” The court immediately excused
the veniremember. The court then cautioned that “it’s important also for
the State and the defense to have a fair trial and for nothing really to be said
that might prejudice the entire jury . . . .”

¶4             Another veniremember then stated, “I can’t listen to this. I
was involved back then, so I know what they’re going through. And I’ve
got a granddaughter that’s going through it.” When the court asked
whether this veniremember could sit through trial, she stated that she could
not: “[It’s] [m]aking me sick to my stomach. I don’t want to listen to [this
trial because] . . . I was molested when I was young.” The court
subsequently excused the veniremember. The prosecutor concluded his
remarks by stating that “we need a fair trial for everyone.”

¶5             Reese’s counsel then proceeded with voir dire. The trial court
then asked whether the nature of the charges would prevent any other
jurors from being fair and impartial. A veniremember answered, “Both of
my grandchildren were sexually molested and raped multiple times by a
family friend. And a week and a half ago my grandson just tried to commit
suicide because of it.” Another veniremember explained that “my stomach
feels like I’m gonna—I just can’t do it.” A subsequent veniremember feared
that she might cry during trial. The court subsequently excused those
veniremembers.

¶6             A veniremember then claimed that he had “already figured
out a verdict for what [he would] do,” but the court interrupted him before


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                            STATE v. REESE
                           Decision of the Court

he could continue. Another veniremember said that her daughters went
through a “similar” circumstance. The court excused these veniremembers
as well.

¶7            A veniremember then stated that she “was sexually molested
as a young child. . . .. My brother was [also] sexually molested and
committed suicide because of it.” Another veniremember stated that he had
a niece that was “sexually molested for over a period of three of four years
by two different stepfathers.” A different veniremember indicated that he
could not be fair because of the nature of the case and because he “had
already made up [his] mind.” The court subsequently excused these
veniremembers.

¶8            Other veniremembers commented, “[My daughter was]
molested by her stepfather,” “I was raped when I was very young,” “[I
would] already hang the guy if I had the choice,” “[I don’t know whether I
will] be able to give [the defendant] the benefit of the doubt,” and “[this]
just drives me nuts.” The court subsequently excused these veniremembers.

¶9            When another veniremember said, “He’s already guilty,” the
court excused him immediately. A different veniremember explained that
a friend had been molested and she has “seen what [it has] done to her life
and future after—when she’s grown up and failed marriages.” The court
excused her as well.

¶10          The remaining veniremembers responded that they had
heard the court’s questions during voir dire and would not have answered
“yes” to any of them. Reese’s counsel then passed the entire venire for
cause. The court finally reminded the jury to “decide the case only on the
evidence received here in court.”

¶11           At trial, Reese moved for a directed verdict on all counts. The
court entered a directed verdict for all but three counts. The jury entered a
guilty verdict on the three remaining counts. But the jury found that the
State had not proven the aggravating factor that the victims experienced
emotional harm. The court subsequently sentenced Reese to a life sentence.
Reese timely appealed.

                              DISCUSSION

¶12          Reese argues that prejudicial comments from various
veniremembers required the trial court to sua sponte declare a mistrial
because those comments tainted the entire jury panel. The State contends



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                             STATE v. REESE
                            Decision of the Court

that Reese has waived this argument on appeal by failing to object during
voir dire and passing the panel for cause.

¶13             But Reese’s failure to object the claimed error from which he
now appeals requires this Court to review for fundamental error. See State
v. Garza, 216 Ariz. 56, 63 ¶ 20, 163 P.3d 1006, 1013 (2007) (stating that a
defendant who raised no objections at trial to the voir dire process but later
raises the argument on appeal is reviewed for fundamental error). To
prevail under fundamental review, a defendant must establish that (1) error
exists, (2) the error is fundamental, and (3) the error caused him prejudice.
State v. Smith, 219 Ariz. 132, 136 ¶ 21, 194 P.3d 399, 403 (2008).

¶14            A defendant “has a constitutional right to a fair and impartial
jury.” State v. Greenawalt, 128 Ariz. 150, 167, 624 P.2d 828, 845 (1981). This
right, however, does not mean that the defendant “is entitled to any one
particular jury.” State v. Lujan, 184 Ariz. 556, 560, 911 P.2d 562, 566 (App.
1995). A defendant carries the burden of showing that remarks of excused
jurors prejudiced others. State v. Doerr, 193 Ariz. 56, 61 ¶ 18, 969 P.2d 1168,
1173 (1998); see State v. Clabourne, 142 Ariz. 335, 344, 690 P.2d 54, 63 (1984)
(holding a party moving to strike an entire jury panel “must affirmatively
demonstrate that a fair and impartial jury was not secured or that some
material violation occurred”). To carry this burden, the defendant must
present “objective indications of jurors’ prejudice.” Doerr, 193 Ariz. at 61-62
¶ 18, 969 P.2d at 1173-74. Arizona courts therefore do not assume that a
veniremember’s comment prejudiced the empaneled jurors. Id. This is
because trial courts are in the “best position to assess [the comment’s]
impact on the jurors.” Id. at 62 ¶ 23, 969 P.2d at 1174.

¶15           Reese has failed to carry his burden of affirmatively
demonstrating that he was not tried by a fair and impartial jury. Reese
identifies nothing in the record that demonstrates how any of the
empaneled jurors were prejudiced. Rather, Reese merely speculates that
contamination occurred based on the volume of veniremembers that
expressed an inability to serve on the jury. But volume alone is insufficient
to demonstrate prejudice. See State v. Davis, 137 Ariz. 551, 558, 672 P.2d 480,
487 (App. 1983) (declining to “indulge in an assumption . . . that the panel
was tainted” based on the cumulative effect of the remarks by four
veniremembers). And speculative prejudice is insufficient under
fundamental error review. See State v. Trostle, 191 Ariz. 4, 13–14, 951 P.2d
869, 878-79 (1997). Consequently, Reese has failed to present objective
evidence of jury prejudice.




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                             STATE v. REESE
                            Decision of the Court

¶16             We also find Reese’s cited authority unavailing. First, we are
unpersuaded by Reese’s contention that Davis is distinguishable on the
grounds that the alleged contamination in this case emanated from a
significantly greater number of veniremembers. Reese had the opportunity
to question potential jurors during voir dire about the potential effect of any
of the comments from fellow veniremembers but chose not to do so.
Moreover, the trial court took several steps to ensure the fairness of the jury.
The court cautioned that “it’s important also for the State and the defense
to have a fair trial and for nothing really to be said that might prejudice the
entire jury . . . .” The court also reminded the jury to “decide the case only
on the evidence received here in court.”

¶17            Second, the remaining authority Reese cites is distinguishable
in one critical respect—in those cases, the alleged taint emanated from
veniremembers who possessed expert-like knowledge. See e.g., Mach v.
Stewart, 137 F.3d 630, 632–33 (9th Cir. 1997) (veniremember commented that
in all her years as a social worker, she had never encountered a child who
lied about being sexually assaulted); Paschal v. United States, 306 F.2d 398,
399–400 (5th Cir. 1962) (prospective juror commented that he was a
stockbroker and bank director whose bank had received defendant’s
counterfeit money). Here, however, none of the excused jurors professed
any expert-like knowledge. Accordingly, without any evidence that the
jurors were biased, no error occurred, fundamental or otherwise.

                               CONCLUSION

¶18           For the foregoing reasons, we affirm Reese’s convictions and
sentences.




                                   :ama




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