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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    TODD STERLING TRACY, Appellant.

                              No. 1 CA-CR 15-0630
                                FILED 1-5-2017


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201201255
                 The Honorable Steven F. Conn, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Harriette P. Levitt, Tucson
Counsel for Appellant
                            STATE v. TRACY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill1 joined.


T H O M P S O N, Judge:

¶1            Todd Sterling Tracy (Tracy) appeals his convictions and
sentences on two counts of assault, class 1 misdemeanors, and three counts
of hindering prosecution of a murder, class 3 felonies.

              FACTUAL AND PROCEDURAL HISTORY

¶2            Tracy was indicted on two counts of aggravated assault and
three counts of hindering prosecution of a murder. The evidence at trial,
viewed in the light most favorable to sustaining the convictions,2
demonstrated that Tracy, his son Jade, and a friend of Jade’s beat up M.C.,
who had been staying in Tracy’s back bedroom, after Tracy’s girlfriend
complained that M.C. was being rude and making suggestive remarks to
her. Tracy and Jade then loaded M.C. into the bed of Tracy’s pickup. Jade
drove a few blocks and then braked sharply, ejecting M.C. from the back of
the truck, along with a tool box, which Jade retrieved. When Jade returned
home, he said that he had run over M.C.

¶3            After M.C. was discovered lying in the road, he was flown to
a hospital in Las Vegas, where he died shortly afterward. The cause of
death was blunt force trauma; the medical examiner testified M.C. likely
would have died from the beating, even if he had not been ejected from the
truck.

¶4            The day after Jade left M.C. in the road, Tracy told his son
Cole to clean up the back bedroom and throw away M.C.’s belongings. The
next day, Tracy drove the truck to a friend’s house in Golden Valley and



1      The Honorable John C. Gemmill, 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.

2      State v. Boozer, 221 Ariz. 601, 601, ¶ 2, 212 P.3d 939, 939 (App. 2009).


                                      2
                             STATE v. TRACY
                            Decision of the Court

left it there. Tracy then drove Jade to another friend’s house in Kingman so
he could hide out and avoid arrest.

¶5            Tracy testified that he did not participate in the beating. Tracy
admitted that he had told Cole to clean up the back bedroom, but testified
he did so to protect his eight-year-old daughter, who was not at home
during the fight. He testified he drove the truck to Golden Valley in part
because he had received notice that he would be fined $500 if he did not
move the unlicensed truck from his property. He testified he helped Jade
hide from police after finding out M.C. had died.

¶6             The jury convicted Tracy of two counts of assault as lesser-
included offenses of the charged crimes of aggravated assault, and three
counts of hindering prosecution, knowing or having reason to know the
offense involved murder. The court sentenced Tracy to time served on the
misdemeanor convictions and 2.5 years on each of the hindering
prosecution convictions, to be served consecutively. Tracy filed a timely
notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (2016).3

                                   DISCUSSION

    A. Admission of Statements

¶7            Tracy argues that the court abused its discretion in finding
that his statements to police were voluntary, because his statements were
induced by threats and promises. At a voluntariness hearing conducted the
second day of trial, Detective Brandon Grasse testified that Tracy waived
his Miranda4 rights and spoke to him during three separate recorded
interviews. Detective Grasse testified that he did not make any threats or
promises, and that Tracy was deceptive in all three interviews. After the
third interview, Tracy called Detective Grasse and told him he had taken a
lot of narcotics on the night in question and did not remember anything,
and that M.C. had been beaten up before coming to Tracy’s residence; that
interview was not recorded. The court found the statements voluntary.

¶8            The state has the burden of proving by a preponderance of the
evidence that a statement was voluntary. State v. Amaya-Ruiz, 166 Ariz. 152,
164, 800 P.2d 1260, 1272 (1990). In evaluating voluntariness, the court must

3     We cite the current version of the applicable statute unless revisions
material to this decision have occurred since the events in question.

4      Miranda v. Arizona, 384 U.S. 436 (1966).


                                      3
                              STATE v. TRACY
                             Decision of the Court

“look to the totality of the circumstances surrounding the confession and
decide whether the will of the defendant has been overborne.” State v.
Lopez, 174 Ariz. 131, 137, 847 P.2d 1078, 1084 (1992). We will not find a
statement involuntary unless there exists “both coercive police behavior
and a causal relation between the coercive behavior and the defendant’s
overborne will.” State v. Boggs, 218 Ariz. 325, 336, ¶ 44, 185 P.3d 111, 122
(2008). We review the trial court’s ruling admitting defendant’s statements
for abuse of discretion, based on the evidence presented at the
voluntariness hearing, viewed in the light most favorable to upholding the
trial court’s ruling. State v. Ellison, 213 Ariz. 116, 126 ¶ 25, 140 P.3d 899, 909
(2006).

¶9             The record fails to reflect that any of the statements made by
the interrogating officers resulted in Tracy’s will being overborne.
Although one of the officers warned Tracy during the first interview that if
he wanted to see his daughter again, he needed to start telling the truth,
and that she hoped he had kissed his daughter goodbye that day, these
remarks had no discernible effect on Tracy or his responses to the officers’
questions. And it was Tracy who offered midway through the second
interview to tell the officers where Jade was, and then asked if they would
drop the charges against him or reduce them “at least down to where I can
be with my daughter tonight?” It was only after Tracy told the officers that
he was going to tell them where Jade was that one of the officers told Tracy
that he could be saving Jade’s life by preventing Jade from doing
“something dumb” and getting shot. The officer then explained that he was
going to charge Tracy with destruction of evidence, but would allow him
to return home that night if the information he provided enabled them to
locate Jade. Finally, it was only after Tracy told them where Jade was
staying that one of the officers warned him that he would be going to jail if
he had sent them on a “wild goose chase.” The record, in short, supports
the trial court’s conclusion that neither threats nor promises caused Tracy’s
will to be overborne, see Boggs, 218 Ariz. at 336, ¶ 44, 185 P.3d at 122, and
the court did not abuse its discretion in finding the statements voluntary.

   B. Instructions on Hindering Prosecution

¶10            Tracy argues that he was denied due process by the court’s
instructions on hindering prosecution, specifically the court’s failure to
provide an instruction on hindering prosecution in connection with
something less than murder, and its failure to define “extreme indifference”
as it related to murder. A party is entitled to an instruction on any theory
which is reasonably supported by the evidence. State v. LaGrand, 152 Ariz.
483, 487, 733 P.2d 1066, 1070 (1987) (citation omitted). We review the


                                        4
                             STATE v. TRACY
                            Decision of the Court

adequacy of jury instructions in their entirety to determine if they
accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d
997, 1015 (2000). We review a trial court’s decision on whether or not to
give a jury instruction for abuse of discretion. State v. Dann, 220 Ariz. 351,
363-64, ¶ 51, 207 P.3d 604, 616-17 (2009). We review de novo, however,
whether the jury was properly instructed. Id. at 364, ¶ 51, 207 P.3d at 617
(citations omitted).

¶11           Section 13-2512 (2010) provides in pertinent part:

       A. A person commits hindering prosecution in the first
       degree if, with the intent to hinder the apprehension,
       prosecution, conviction or punishment of another for any
       felony, the person renders assistance to the other person.

       B. Hindering prosecution in the first degree is a class 5
       felony, except that it is a class 3 felony if . . .

              1. The person knows or has reason to know that the
              offense involves . . . murder.

Section 13-2511 (2010) defines the offense of hindering prosecution in the
second degree as hindering prosecution of “any misdemeanor or petty
offense.”

¶12           The court did not abuse its discretion in denying Tracy’s
request for an instruction on hindering prosecution of a misdemeanor or
petty offense under A.R.S. § 13-2511, and instead instructing that in order
to find Tracy guilty of the charged crimes under A.R.S. § 13-2512, the jury
must find that he intentionally hindered prosecution of a felony. The
evidence demonstrated that Tracy intentionally took steps to hinder
prosecution of Jade for severely beating M.C. and then ejecting him from
the bed of his pickup truck, causing his death. An instruction on the lesser-
included offense of hindering the prosecution of a misdemeanor assault
accordingly was not supported by the evidence, and the court did not err
in refusing to give it.

¶13           Nor did the court abuse its discretion in instructing the jurors
for purposes of determining the class of felony under A.R.S. § 13-2512(B)
that if they found Tracy guilty of hindering prosecution, they were to
determine whether the defendant knew or had reason to know that the
offense involved murder. The evidence, again, supported such instruction.
The evidence demonstrated that Tracy knew that night that M.C. had been
severely beaten, ejected from the truck, and run over. Tracy acknowledged


                                      5
                              STATE v. TRACY
                             Decision of the Court

that by the following day, when he hid the truck and ordered clean-up of
the back bedroom, he knew that M.C. had been hospitalized, and by the
day after that, when he drove Jade to a friend for hiding, that M.C. had died.
This evidence demonstrated that at a minimum, Tracy should have known
the night of the beating that M.C. might die, and thus, that Jade might be
charged with murder. The statutory offense of hindering prosecution of a
felony either involved murder, in which case it was a class 3 felony, or it
did not involve murder, in which case it was a class 5 felony. See A.R.S. §
13-2512(B)(1). The court’s instruction was supported by the evidence,
accurately reflected the law, and was not erroneous.

¶14            Finally, the court did not commit reversible error in
instructing the jury on different forms of murder, the last of which it
defined as follows: “under circumstances manifesting extreme indifference
to human life, [a person] recklessly engages in conduct that creates a grave
risk of death, and thereby causes the death of another person.” Tracy did
not object to this instruction, or ask for further definition. He accordingly
has waived all but fundamental error review of the matter. See State v.
Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). On
fundamental error review, the defendant has the burden of proving that the
court erred, that the error was fundamental in nature, and that he was
prejudiced thereby. Id. at 567, ¶ 20, 115 P.3d at 607. Tracy has failed to meet
his burden. He argues that the court’s failure to define “manifesting
extreme indifference” caused “confusion to the jury and quite possibly a
non-unanimous verdict.“ This claim of prejudice is based on sheer
speculation, an insufficient basis to establish prejudice on fundamental
error review. See State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701,
705 (App. 2006).

   C. Reduction of Jury

¶15           Tracy also argues that he was denied due process because of
“jury irregularities,” specifically the court’s decision to excuse a juror who
had reported she did not understand what was going on, and to reduce the
jury to eight members after the prosecutor stipulated to withdraw
allegations that might result in punishment of thirty years or more.

¶16            Tracy’s claim fails, first, because he was not entitled to be tried
by any particular jury, only a fair and impartial jury, and he has made no
claim that the final eight jurors who ultimately convicted him were not fair
and impartial. See State v. Goldston, 133 Ariz. 520, 521, 652 P.2d 1043, 1044
(1982) (citation omitted). Nor did the court commit constitutional error in
reducing the twelve-member jury to an eight-member jury after the state


                                        6
                             STATE v. TRACY
                            Decision of the Court

stipulated to withdraw allegations that might result in punishment of thirty
years or more. See State v. Soliz, 223 Ariz. 116, 119 ¶ 12, 219 P.3d 1045, 1048
(2009).

¶17           Tracy suggests that the juror might have been feigning her
lack of understanding because she was a hold-out juror, and the court’s
handling of this issue may have coerced or influenced a verdict. Because
defense counsel failed to raise either of these objections below, we review
these issues for fundamental error only. Henderson, 210 Ariz. at 568, ¶ 22,
115 P.3d at 608. Tracy has failed to meet his burden to show that the court
erred, much less fundamentally erred to his prejudice in its manner of
questioning this juror, and in determining it was necessary to excuse her.
The juror told the court:

       Well, first I thought it was because everybody was talking at
       once, you know; and of course, the – the air conditioner over
       the top of me doesn’t help. I can’t hear it; but then, because I
       kept trying – and I told them not everybody can talk at once;
       and so, they stopped. I mean, they were nice about that, but
       then I realized what it was is that I’m not really not
       understanding any of it.

The court followed up with a question: “All right. So, you’re – you’re telling
me that you just don’t feel that you understand the testimony or the law, or
what?” The juror responded: “All of it. It’s like a different language.” After
confirming that it was only after starting deliberations that she realized she
did not understand what was going on, the court asked, “But you’re telling
me now that you just – you don’t understand what’s going on enough to
even participate in the deliberations?” The juror responded, “Yeah. I
wouldn’t be fair because I wouldn’t even know how to answer anything.”
Neither counsel had any further questions for the juror, before the court
told her to return to the jury room while the parties discussed how to
proceed. Defense counsel agreed that it was necessary for the court to
excuse the juror. Under these circumstances, the court did not err in
excusing the juror. See State v. Kolmann, 239 Ariz. 157, 163, ¶ 26, 357 P.3d
61, 67 (2016) (juror’s statements that she “was incapable of making a
decision . . . would have warranted excusing her from the jury irrespective
of her tentative inclination to vote not guilty or the other juror’s advice to
her.”).

¶18           Nor were the court’s questions of this juror of the nature that
might have coerced or influenced her to reach a verdict. Tracy misplaces
his reliance on State v. McCrimmon, 187 Ariz. 169, 927 P.2d 1298 (1996), in


                                      7
                             STATE v. TRACY
                            Decision of the Court

which our supreme court feared that the trial court had “inadvertently
created an atmosphere of coercion when it repeatedly communicated the
implicit message to the lone hold-out juror that being undecided about a
guilty verdict was unacceptable.” Id. at 173, 927 P.2d at 1302. In this case,
the court posed neutral questions to the juror, and elicited responses that
defense counsel agreed required her dismissal. The court’s handling of the
circumstances in this case were not of the nature that would have coerced
or influenced the verdict.

¶19            Tracy also argues that it was ultimately not necessary to
reconstitute the jury because after the jurors returned to the courtroom and
the court had excused the one juror, but before selecting the three more
alternates, the foreman notified the court that the twelve-member jury had
reached a verdict. Under those circumstances, Tracy argues, the juror who
had reported she did not understand enough of what was going on to
participate in deliberations “was either actually capable of doing so or she
was coerced into reaching guilty verdicts.” The court, however, had
already determined that it was required to excuse the twelfth juror. Its
decision not to accept the verdict and instead to order a reconstituted jury
to deliberate accordingly was not error. See State v. Martinez, 198 Ariz. 5, 8,
¶ 11, 6 P.3d 310, 313 (App. 2000) (holding that the court did not err in
refusing to accept verdicts from original jury, in light of its decision to
discharge two jurors, and in instead ordering the reconstituted jury to begin
deliberations anew).

¶20            Finally, Tracy argues that the court erred when it failed to
expressly instruct the eight-member jury to begin deliberations anew and
not to consider the reasons why the juror was excused, and instead implied
the excused juror was “incompetent” by asking if anyone else wanted to be
excused because they “didn’t get it.” Tracy did not raise these issues in the
trial court, and accordingly has the burden to show error, that the error was
fundamental, and that he was prejudiced thereby. See Henderson, 210 Ariz.
at 567, ¶ 20, 115 P.3d at 607. Tracy has failed to meet his burden. No new
person was introduced to the jury; rather, the number of jurors was reduced
by four. Under those circumstances, it was not fundamental error to fail to
direct the jurors to begin deliberations anew. Nor has Tracy shown how it
was fundamental error, or that he was prejudiced, by the court asking, “Is
there any one of you who feels that you need to be excused from serving on
this jury because it’s too hard, or because you don’t understand what’s
going on, or you just don’t get it? I mean, is there any of you who feel
incapable of finishing out your jury service in this case?” Under these
circumstances, the court did not err, much less fundamentally err, to
Tracy’s prejudice.


                                      8
                           STATE v. TRACY
                          Decision of the Court

                             CONCLUSION

¶21          For the foregoing reasons, we affirm Tracy’s convictions and
sentences.




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




                                       9
