                                                                    FILED BY CLERK
                            IN THE COURT OF APPEALS                     AUG 28 2009
                                STATE OF ARIZONA                        COURT OF APPEALS
                                  DIVISION TWO                            DIVISION TWO




THE STATE OF ARIZONA,                       )
                                            )
                                Appellee,   )          2 CA-CR 2008-0100
                                            )          DEPARTMENT B
                      v.                    )
                                            )          OPINION
JOSHUA PAUL EUGENE HUFFMAN,                 )
                                            )
                               Appellant.   )
                                            )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                               Cause No. CR-20060481

                           Honorable Richard S. Fields, Judge

                                     AFFIRMED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and David A. Sullivan                                      Tucson
                                                                Attorneys for Appellee

Harriette P. Levitt                                                            Tucson
                                                                Attorney for Appellant


V Á S Q U E Z, Judge.
¶1             After two previous trials had ended in hung juries, a third jury found appellant

Joshua Huffman guilty of sexual conduct with a minor under fifteen years of age, two counts

of aggravated assault of a minor under fifteen years of age, and two counts of kidnapping,

all dangerous crimes against children, and two counts of armed robbery. The trial court

sentenced him to consecutive, enhanced, presumptive prison terms totaling eighty-eight

years. Before trial, Huffman had moved to dismiss the charges on the ground that a third trial

would violate his double jeopardy and due process rights under the United States and

Arizona Constitutions. In this appeal, Huffman challenges the court’s denial of that motion.

For the reasons discussed below, we affirm.

                           Factual and Procedural Background

¶2             We view the facts in the light most favorable to upholding the jury’s verdicts.

State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). On January 22, 2006,

J. and C., both minors, were walking in the Rillito Wash when two men approached and

introduced themselves as Josh and Obi. After engaging J. and C. in conversation and inviting

them to smoke marijuana, the men ordered them at gunpoint into one of the wash’s drainage

tunnels where they took C.’s purse and J.’s watch, knife, and lighter. Obi then pointed a gun

at J. while Josh forced C. to perform oral sex on him. Obi and Josh switched places, and,

while Obi forced C. to perform oral sex on him, Josh searched J.’s pockets. Afterward, the

men told J. and C. to walk farther into the tunnel and count to at least five thousand before

coming out. J. and C. continued walking until they eventually came to a manhole and

climbed out.


                                               2
¶3             J. and C. told their parents what had happened, and their parents called the

police. J. informed a police officer that he had recognized one of the men as one of the

“Cactus Killers,” a group of men who had vandalized saguaro cacti in the area. A detective

then compiled photographic lineups that included photographs of “persons of interest” in the

Cactus Killers case, and J. identified Huffman as one of the assailants. During a subsequent

search of Huffman’s bedroom, police discovered some of J.’s and C.’s property, and

Huffman was then arrested.

¶4             Huffman’s first two trials ended in mistrials when neither jury could reach a

verdict. Before his third trial, he filed a motion to dismiss the indictment, arguing an

additional trial would violate his rights under the Double Jeopardy Clause of the Fifth

Amendment and the Due Process Clause of the Fourteenth Amendment to the United States

Constitution as well as the analogous provisions in the Arizona Constitution. The trial court

denied the motion, and the jury found Huffman guilty of all charges. The court sentenced

him as noted above, and this appeal followed.

                                          Discussion

I.     Double Jeopardy

¶5             Huffman asserts that “constitutional principles against double jeopardy barred

a third trial in this case.” 1 He acknowledges that, “[n]ormally, a retrial after a hung jury does



       1
        To the extent Huffman invokes the Arizona Constitution, he makes no separate
argument that its protections differ from those of the federal constitution. We therefore
confine our analysis to the federal constitutional provisions at issue. See State v. Nunez, 167
Ariz. 272, 274 n.2, 806 P.2d 861, 863 n.2 (1991).

                                                3
not violate the double jeopardy clause.” But, he contends, under the circumstances of this

case, “[b]y forcing [him] to defend himself in a third trial, the [trial] court denied [his]

constitutional rights to due process as guaranteed by the double jeopardy clause to the U.S.

and Arizona constitutions.” He argues the court therefore “should [have] exercise[d] its

authority to dismiss [the] case.” We review a trial court’s ruling on a motion to dismiss for

an abuse of discretion. State v. Chavez, 208 Ariz. 606, ¶ 2, 96 P.3d 1093, 1094 (App. 2004).

¶6            “The Double Jeopardy Clause of the Fifth Amendment protects a criminal

defendant against multiple punishments or repeated prosecutions for the same offense and

is applicable to the states through the Fourteenth Amendment.” McLaughlin v. Fahringer,

150 Ariz. 274, 277, 723 P.2d 92, 95 (1986). But, as Huffman concedes, double jeopardy

protections do not prohibit a subsequent prosecution after a mistrial due to a hung jury. See

Lemke v. Rayes, 213 Ariz. 232, ¶ 19, 141 P.3d 407, 414 (App. 2006); see also Richardson

v. United States, 468 U.S. 317, 323-24 (1984). When a jury is deadlocked, a “trial court

properly exercise[s] its sound discretion in declaring a mistrial. ‘Under such circumstances

jeopardy does not [terminate] and there is no limit to the number of trials but the discretion

of the court.’” State v. Marks, 113 Ariz. 71, 73, 546 P.2d 807, 809 (1976), quoting State v.

Woodring, 95 Ariz. 84, 85-86, 386 P.2d 851, 852 (1963).

¶7            Huffman nevertheless relies on a number of cases he contends support

dismissal under the circumstances of this case. See State v. Moriwake, 647 P.2d 705, 712-13

(Haw. 1982); State v. Abbati, 493 A.2d 513, 517 (N. J. 1985); State v. Witt, 572 S.W.2d 913,




                                              4
917 (Tenn. 1978); State v. Sauve, 666 A.2d 1164, 1164, 1169 (Vt. 1995).2 But, to the extent

he argues these cases stand for the proposition that the Double Jeopardy Clause, standing

alone, prohibits retrial after successive hung juries based on fundamental fairness or due

process grounds, he is mistaken. In each of the cited cases, the reviewing courts specifically

rejected any claim by the defendant that the Double Jeopardy Clause prohibited retrial, and

they examined fundamental fairness as an analytically distinct issue. Moriwake, 647 P.2d

at 711-12; Abbati, 493 A.2d at 517; Witt, 572 S.W.2d at 916-17; Sauve, 666 A.2d at 1167-68,

1170 n.3. We therefore reject Huffman’s claim that the trial court erred in denying his

motion to dismiss on double jeopardy grounds.

II.    Due Process

¶8            In addition to his double jeopardy claim, Huffman raises a separate claim that

he “was denied his constitutional right[] to due process by virtue of the [trial] court’s denial

of his motion to dismiss.” He contends a third trial subjected him to “[t]he anxiety,

embarrassment and expense [of] . . . continued criminal reprosecution . . . where no new

evidence exist[ed]” and thus was improper. In support of his argument, Huffman draws on

the out-of-state cases noted above and urges this court to adopt their reasoning and hold that,

in the interests of justice, fundamental fairness permits a trial court to dismiss charges after



       2
        Huffman also cites People v. Thompson, 379 N.W.2d 49, 55 (Mich. 1985), in which
the court acknowledged “there may be cases in which repeated retrials after repeated jury
deadlock might be so fundamentally unfair as to violate . . . due process.” However,
Thompson has been called into question, if not specifically overruled, by a later case, People
v. Sierb, 581 N.W.2d 219, 225 (Mich. 1998), in which the Michigan Supreme Court
concluded that retrial could not violate due process unless it also violated double jeopardy.

                                               5
multiple hung juries have resulted in mistrials. See Moriwake, 647 P.2d at 712-13 (trial court

has inherent authority to dismiss indictment, following mistrials caused by hung juries, after

balancing interests of state against fairness to defendant and orderly functioning of court);

Abbati, 493 A.2d at 517 (court’s inherent authority to dismiss after mistrials caused by hung

juries derived from precepts of fundamental fairness and judiciary’s responsibility for

efficient administration of criminal justice system and ability to fashion equitable remedies);

Witt, 572 S.W.2d at 917 (courts have inherent authority to dismiss where “probability of

continued hung juries is great”); Sauve, 666 A.2d at 1169 (repeated prosecution following

hung juries “raises issues concerning traditional notions of fundamental fairness and

substantial justice”).

¶9             Our courts have not addressed whether a successive prosecution that does not

violate double jeopardy principles may still violate a defendant’s due process rights. Other

jurisdictions treat double jeopardy and due process considerations separately and, regarding

the latter, permit trial courts to consider a wide variety of factors in determining whether, in

the interests of justice, a successive prosecution may go forward. See, e.g., United States v.

Ingram, 412 F. Supp. 384, 385-86 (D.D.C. 1976); Ex parte Anderson, 457 So. 2d 446, 450-

51 (Ala. 1984); Moriwake, 647 P.2d at 712-13; Abbati, 493 A.2d at 517; State v. Gonzales,

49 P.3d 681, 685-86 (N.M. App. 2002); Witt, 572 S.W.2d at 917; Sauve, 666 A.2d at 1164,

1169.

¶10            Although not cited by either party, Rule 16.6, Ariz. R. Crim. P., is instructive

on this issue. Rule 16 governs pretrial motion practice generally, and Rule 16.6 governs



                                               6
dismissals of prosecutions in particular. Subsection (b) of the rule permits dismissal on a

defendant’s motion “upon finding that the indictment, information, or complaint is

insufficient as a matter of law,” but the comment to that rule notes that dismissal can be

based on any legally recognized ground.3 Furthermore, although not explicitly stated in the

rule, a trial court also has authority to dismiss a prosecution sua sponte, even absent a motion

by either party. See State v. Hannah, 118 Ariz. 610, 611, 578 P.2d 1039, 1040 (App. 1978).

Rule 16.6(d), however, applies broadly to all dismissals and provides, in pertinent part:

“Dismissal of a prosecution shall be without prejudice to commencement of another

prosecution, unless the court order finds that the interests of justice require that the dismissal

be with prejudice.” Thus, although “[t]he trial court has the inherent power to dismiss a

prosecution,” it may not dismiss an indictment with prejudice absent a finding that “the

interests of justice” require it. Hannah, 118 Ariz. at 611, 578 P.2d at 1040.

¶11            We have found no Arizona cases interpreting the meaning of “the interests of

justice” under circumstances analogous to those in this case. The majority of the cases that

have analyzed Rule 16.6(d) have done so in the context of speedy trial violations. In that

area, courts have concluded that the interests of justice require dismissal with prejudice only

when the prosecutor has delayed in order to obtain a tactical advantage or harass the

defendant and the defendant has demonstrated resulting prejudice. See, e.g., State v. Wills,

177 Ariz. 592, 594, 870 P.2d 410, 412 (App. 1993); State v. Granados, 172 Ariz. 405, 407,




       3
        Subsection (a) provides the general circumstances under which the state may move
for dismissal.

                                                7
837 P.2d 1140, 1142 (App. 1991); State v. Gilbert, 172 Ariz. 402, 405, 837 P.2d 1137, 1140

(App. 1991); see also Ariz. R. Crim. P. 8.2 (providing time limits within which defendants

must be tried).

¶12           However, the comment to the original version of Rule 16.6(d) specified that,

in determining whether a dismissal should be with or without prejudice, a trial court should

consider “the additional expense, prejudice and anxiety” experienced by a defendant waiting

for reprosecution. See State ex rel. Berger v. Superior Court, 111 Ariz. 335, 341, 529 P.2d

686, 692 (1974), quoting former Ariz. R. Crim. P. 16.7 cmt. (d) (1973).4 When the rule was

later amended to its current form, the foregoing comment apparently was deleted. However,

the idea that the interests of justice require balancing the defendant’s interests against the

state’s has survived:

              The reason for the requirement [in Rule 16.6(d) that a court find
              that dismissal with prejudice is in the interests of justice] is
              obviously to ensure that the court, prior to dismissing a criminal
              case, properly balance the conflicting interests involved,
              society’s and the defendant’s, in deciding whether to make the
              dismissal with . . . prejudice.

State ex rel. Jenney v. Superior Court, 122 Ariz. 89, 90, 593 P.2d 312, 313 (App. 1979).

Thus, in the context of pretrial dismissals, trial courts have always had both the flexibility to

weigh the competing interests of the state and the defendant and been provided the authority

and discretion to dismiss charges with prejudice when it would be unfair to allow the


       4
        The original version of Rule 16.6(d) provided: “Dismissal of a prosecution shall be
with prejudice to commencement of another prosecution . . . , unless . . . the court in its order
finds that the interests of justice require that the dismissal be without prejudice.” See Berger,
111 Ariz. at 341, 529 P.2d at 692, quoting former Ariz. R. Crim. P. 16.7(d) (1973).

                                               8
prosecution to continue. We see no reason that this balancing of interests should not apply

to a motion to dismiss based on successive retrials after hung juries; such a balancing is

wholly consistent with and satisfies due process requirements. Large v. Superior Court, 148

Ariz. 229, 235, 714 P.2d 399, 405 (1986) (“due process analysis must include consideration

of the competing state interest that encroaches on the individual liberty or property right”).

¶13           Courts in other states have reached similar conclusions when interpreting

language permitting dismissal in the interests or furtherance of justice.5 See, e.g., State v.

Echols, 793 P.2d 1066, 1073 (Alaska Ct. App. 1990) (factors for determining whether

dismissal in interests of justice include general weighing of defendant’s interests against

state’s); People v. Orin, 533 P.2d 193, 199 (Cal. 1975) (whether dismissal warranted “in

furtherance of justice” requires consideration of defendant’s constitutional rights and

interests of society, as represented by state); State v. Brumage, 435 N.W.2d 337, 340-41

(Iowa 1989) (holding trial court may dismiss in furtherance of justice after considering

“substantive rights of the defendant and the interests of the state”; adopting factors to aid

consideration); State v. Cummins, 850 P.2d 952, 953 (Mont. 1993) (court weighs defendant’s

constitutional rights against societal interests to determine whether dismissal in furtherance

of justice); People v. Clayton, 342 N.Y.S.2d 106, 110 (N.Y. 1973) (applying interests-of-

justice test requires “sensitive balance” between defendant and state); State v. Busch, 669


       5
        It is also consistent with the analysis in the out-of-state cases Huffman cited
supporting the court’s discretion to dismiss an indictment after a mistrial caused by a hung
jury. See Moriwake, 647 P.2d at 712-13 (finding trial court has inherent authority to dismiss
indictment after mistrials caused by hung jury); Abbati, 493 A.2d at 517 (same); Witt, 572
S.W.2d at 917 (same); Sauve, 666 A.2d at 1168 (same).

                                              9
N.E.2d 1125, 1127-28 (Ohio 1996) (trial courts must respond to “rights and interests of the

prosecution, the accused, and victims” and “deserve the discretion to be able to craft a

solution that works in a given case”). But see State v. Whitney, 637 P.2d 956, 958 (Wash.

1981) (trial court has no discretion to dismiss absent government misconduct or arbitrary

action).

¶14           The out-of-state cases Huffman cites identify some of the relevant factors to

be considered in weighing a defendant’s interests against society’s. These cases have

included such factors as:

              (1) the number of prior mistrials and the outcome of the juries’
              deliberations, so far as is known; (2) the character of prior trials
              in terms of length, complexity, and similarity of evidence
              presented; (3) the likelihood of any substantial difference in a
              subsequent trial, if allowed; (4) the trial court’s own evaluation
              of the relative strength of each party’s case; and (5) the
              professional conduct and diligence of respective counsel,
              particularly of the prosecuting attorney,

Abbati, 493 A.2d at 521-22, and

              the seriousness and circumstances of the charged offense; . . .
              the extent of harm resulting from the offense; . . . the
              defendant’s history, character, and condition; . . . the length of
              any pretrial incarceration or any incarceration for related or
              similar offenses; . . . the purpose and effect of imposing a
              sentence authorized by the offense; . . . the impact of dismissal
              on public confidence in the judicial system or on the safety and
              welfare of the community in the event the defendant is guilty;
              . . . the existence of any prejudice to [the] defendant as the result
              of the passage of time; [and] . . . the attitude of the complainant
              or victim with respect to dismissal of the case,

Sauve, 666 A.2d at 1168.




                                               10
¶15           We acknowledge that these and other factors may be quite useful in assessing

each party’s interests in a particular case; however, we cannot say they are qualitatively

different from the general balancing our law already requires. See Villalpando v. Reagan,

211 Ariz. 305, ¶ 8, 121 P.3d 172, 175 (App. 2005) (determination of fundamental fairness

includes “assessing the several interests that are at stake”), quoting Lassiter v. Dep’t of Soc.

Servs., 452 U.S. 18, 24-25 (1981); Large, 148 Ariz. at 235-36, 714 P.2d at 405-06. We thus

see no need to limit trial courts to any specific list of factors they may utilize in deciding

whether and in what manner a prosecution should be dismissed under the unique

circumstances before them. The court’s duty is satisfied as long as it has considered the

relevant competing interests of the defendant and the state in light of the particular

circumstances of each case.

¶16            Turning to the facts of this case, we cannot say the trial court abused its

discretion in denying Huffman’s motion to dismiss. See State v. Chavez, 208 Ariz. 606, ¶ 2,

96 P.3d 1093, 1094 (App. 2004). At oral argument in this court, Huffman argued there was

no evidence the trial court considered appropriate factors before ruling on his motion to

dismiss and that, even considering the relevant factors, there was no basis on which the court

could have concluded a third trial would serve the interests of justice. We disagree. In his

motion to dismiss, Huffman argued a third trial was unfair, citing the juries’ inability to reach

verdicts in the two previous trials, the absence of new evidence, and the amount of time he

had spent in custody. However, in its response, the state countered that it had “a reasonable

expectation that the state of the evidence at the conclusion of the next trial will be at least



                                               11
similar to, if not more favorable for conviction than that which was presented to the first jury,

which apparently voted 11-1 or 10-2 in favor of conviction.” Its argument was based on the

fact that different witnesses were presented in each of the two previous trials and that it

intended to make additional changes in presenting its case at a third trial. Specifically, it

would not be introducing a witness who testified for it at the second trial and instead would

be introducing a presumably more favorable witness who testified for the defense at the first

trial but not at the second. It also intended to present new evidence that had not been

introduced at either prior trial, including a recording of a phone call between Huffman and

his brother and testimony from a police officer, which would clarify an issue raised by other

witness testimony. There was, thus, an adequate basis in the record upon which the trial

court could reasonably have concluded the third trial would not be a mere carbon copy of the

first and second.

¶17           Huffman also argues that, “by the time of [his] third trial, the State’s witnesses,

particularly the victims, were well versed in what they needed to say and how they needed

to present themselves in order to have a jury believe them.” To the extent he contends the

witnesses’ testimony at the third trial was in some manner inconsistent with their testimony

at the two prior trials, Huffman was free to impeach those witnesses with their prior

statements, and he does not contend the court precluded him from doing so. See Ariz. R.

Evid. 613. Nor does he allege the methods the state used to elicit the witnesses’ testimony

at the third trial constituted prosecutorial misconduct.




                                               12
¶18           Although Huffman complains the trial court’s minute entry is silent as to its

reasons for denying his motion to dismiss, he has cited no authority that the court was

required to state its findings on the record. We similarly have found no support for this

proposition, except to the extent that Rule 16.6(d) requires the trial court to state its reasons

on the record when granting a motion to dismiss a prosecution with prejudice. Because

Huffman sought a dismissal with prejudice, presented the court with the authority for his

position, and the state responded to his argument on the merits,6 we must assume the trial

court considered the “interests of justice,” as Huffman argued it must and, after balancing

his interests against the state’s, concluded a dismissal with prejudice was not required.

Appellate courts

              traditionally give[] great deference to trial court determinations
              of conflicting procedural, factual or equitable considerations.
              This is because the trial judge “has a more immediate grasp of
              all the facts of the case, an opportunity to see the parties,
              lawyers, and witnesses, and . . . can better assess the impact of
              what occurs before him.” 7

State v. Winegar, 147 Ariz. 440, 445, 711 P.2d 579, 584 (1985), quoting State v. Chapple,

135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983). Thus, in light of the argument

presented to the trial court, we have no basis on which to conclude its ruling amounted to an


       6
        We believe this is the appropriate procedure for motions to dismiss due to successive
prosecutions after hung juries. Once the defendant files a supported motion to dismiss on
this ground, we think it is implicit in the trial court’s balancing of the parties’ competing
interests that the state should file a response detailing the circumstances it believes establish
that a successive trial is in the interests of justice.
       7
       This is particularly true when, as here, the same trial judge who considered the
motion to dismiss also presided over each of the defendant’s trials.

                                               13
abuse of discretion. See Chavez, 208 Ariz. 606, ¶ 2, 96 P.3d at 1094; State v. Sandoval, 175

Ariz. 343, 347, 857 P.2d 395, 399 (App. 1993) (abuse of discretion is “discretion manifestly

unreasonable or exercised on untenable grounds or for untenable reasons”).

                                       Disposition

¶19           For the reasons stated above, we affirm Huffman’s convictions and sentences.




                                              ____________________________________
                                              GARYE L. VÁSQUEZ, Judge

CONCURRING:



____________________________________
PETER J. ECKERSTROM, Presiding Judge



____________________________________
J. WILLIAM BRAMMER, JR., Judge




                                            14
