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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      CUDELLIOUS LOVE, Appellant.

                             No. 1 CA-CR 15-0805
                               FILED 2-2-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-002011-001
                   The Honorable Sam J. Myers, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
                             STATE v. LOVE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.


D O W N I E, Judge:

¶1          Cudellious Love appeals his conviction and sentence for first-
degree murder. For the reasons that follow, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2             The victim lived in an apartment complex managed by W.P.
and was W.P.’s next door neighbor. On Saturday, July 15, 1989, W.P. and
the victim attended a meeting together. Because the victim’s vehicle was
being repaired, she borrowed W.P.’s car for the evening. After the meeting,
the victim left, alone, and W.P. and her boyfriend went out for coffee. When
W.P. returned to the apartment complex around 10:00 p.m., she saw that
her vehicle was parked in its usual spot.

¶3            The following day, W.P. called the victim, but could not reach
her. On Monday morning, W.P. noticed that the victim’s patio screen door
was ajar. W.P. called the victim again, but no one answered. W.P. then
called the victim’s employer and learned that she had not appeared for
work on either Sunday or Monday. W.P. asked another individual to
accompany her into the victim’s apartment. Upon entry, she saw the victim
lying on the hallway floor with her skirt pulled up around her waist.

¶4           When emergency responders arrived, they pronounced the
victim dead. The victim had sustained stab wounds to her chest and
abdomen. Her panties had been removed, her legs spread apart, and a
“yellowish clear dried substance” later identified as semen was on her
pelvic area. Police officers collected the substance, as well as the victim’s
panties and other forensic evidence. A former medical examiner
determined that the victim died from two, six-inch deep stab wounds to her
chest and abdomen. The former medical examiner also noted that the



1      We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                             STATE v. LOVE
                           Decision of the Court

victim had a black eye, and based on its “fresh” coloration, opined that she
may have been rendered unconscious immediately before her death.

¶5            Notwithstanding the forensic evidence from the crime scene,
the murder went unsolved. As technology advanced, though, the semen
collected from the victim’s pelvic region was subjected to DNA analysis and
a DNA profile of the assailant was created. In 2001, that profile was entered
into the national CODIS DNA database run by the FBI. In February 2014,
local law enforcement authorities were notified that the DNA profile
matched Love’s DNA profile.

¶6           In May 2014, Phoenix police officers located Love and
transported him to police headquarters. Love submitted to an interview
and provided buccal swab samples. The DNA profile from the buccal
swabs matched the DNA profile of the semen collected from the victim.

¶7            The State charged Love with one count of first-degree
murder, one count of sexual assault, and one count of first-degree burglary.
Because the sexual assault and burglary charges were time-barred by the
statute of limitations, the trial court dismissed those counts, leaving only
the first-degree murder charge for trial.

¶8            After an eight-day trial, the jury unanimously found Love
guilty of both premediated and felony first-degree murder. The trial court
sentenced Love to life imprisonment with the possibility of release after
twenty-five years. Love timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

                               DISCUSSION

I.     Batson Challenge

¶9            Love challenges the State’s peremptory strike of all racial
minorities from the venire panel and argues the trial court erred by denying
his Batson challenge. See Batson v. Kentucky, 476 U.S. 79 (1986).

¶10           “[U]sing a peremptory strike to exclude a potential juror
solely on the basis of race violates the Equal Protection Clause of the
Fourteenth Amendment.” State v. Newell, 212 Ariz. 389, 400, ¶ 51 (2006).
We will uphold the denial of a Batson challenge absent clear error. Id. at
¶ 52. Because the trial court is in the best position to assess a prosecutor’s
credibility — a primary factor in evaluating the State’s motive for exercising



                                      3
                              STATE v. LOVE
                            Decision of the Court

a peremptory strike — we extend “great deference” to the trial court’s
ruling. State v. Roque, 213 Ariz. 193, 203, ¶ 12 (2006).

¶11            A Batson challenge consists of three steps. Newell, 212 Ariz. at
401, ¶ 53. First, the defendant must make a prima facie showing of racial
discrimination. Id. If such a showing is made, the State must then present
a race-neutral reason for the strike. Id. If the prosecutor provides a facially
neutral basis, “the trial court must determine whether the defendant has
established purposeful discrimination.” Id. “To pass step two, the
explanation need not be persuasive, or even plausible,” but “implausible or
fantastic justifications may (and probably will) be found to be pretextual”
when the trial court determines whether the defendant has proven
purposeful discrimination. Id. at ¶ 54.

¶12           Defense counsel challenged the State’s peremptory strike of
three jurors who were members of a racial minority (Juror Nos. 19, 69, and
91). The trial court found that Love made a prima facie showing of
discrimination, satisfying the first step. The prosecutor then offered race-
neutral reasons for each strike: (1) No. 19 — language barrier; (2) No. 69 —
appeared “very quiet, very timid, [and] very withdrawn”; and (3) No. 91 —
inappropriate experience, having completed a six-month internship at a
correctional facility working with sex offenders. In evaluating the
prosecutor’s proffered reasons, the court noted that Juror 19 spoke with an
accent and “struggle[d] a bit with the questionnaire,” and Juror 69 “did not
say much . . . she didn’t offer much.” The court then concluded the
proffered race-neutral reasons for the strikes of all three jurors were both
reasonable and supported by the record. At that point, defense counsel
offered nothing further to support his Batson challenge, other than noting
that he had at least two previous cases in which the State exercised
peremptory strikes to remove all minority jurors.

¶13            Because Love failed to present evidence that the peremptory
strikes were the result of purposeful racial discrimination, and there is no
basis in the record for concluding the prosecutor’s race-neutral reasons
were pretextual, the trial court did not err by rejecting Love’s Batson
challenge. Cf. Foster v. Chatman, 136 S. Ct. 1737, 1748–49 (2016) (concluding
State’s race-neutral reasons were pretextual based on prosecutor’s
misrepresentation of the record and notes revealing an intent to remove
Black jurors).




                                      4
                              STATE v. LOVE
                            Decision of the Court

II.    Denial of Motion for Mistrial

¶14           Love contends the court erred by denying his motion for
mistrial based on comments he characterizes as prosecutorial misconduct.

¶15            To determine whether a prosecutor’s comments constitute
“misconduct that warrants a mistrial, a trial court should consider two
factors: (1) whether the prosecutor’s statements called to the jury’s attention
matters it should not have considered in reaching its decision and (2) the
probability that the jurors were in fact influenced by the remarks.” Newell,
212 Ariz. at 402, ¶ 60. The defendant bears the burden of demonstrating
that the challenged statements, “in the context of the entire proceeding, so
infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Id. “Because the trial court is in the best position to
determine the effect of a prosecutor’s comments on a jury, we will not
disturb a trial court’s denial of a mistrial for prosecutorial misconduct in
the absence of a clear abuse of discretion.” Id. at ¶ 61. “To warrant reversal,
the prosecutorial misconduct must be so pronounced and persistent that it
permeates the entire atmosphere of the trial.” Id.

¶16           On the fifth day of trial, the State called Love’s ex-wife to
testify. During direct examination, the prosecutor asked how long she had
known Love, and the ex-wife answered, “[s]ince I was about 15 ½.” The
prosecutor then asked, “Did you start dating him at that time?” and she
confirmed that she did. As a follow-up question, the prosecutor asked,
“how much older is he than you?” and the ex-wife answered, “[a]bout
seven years.”

¶17           At that point, defense counsel objected and moved to strike
the answer. Counsel explained during a bench conference that he “was
completely blindsided” and had “no prior knowledge” the State “was
going to infer that [Love was] guilty of statutory rape.” Defense counsel
moved for a mistrial, arguing Love had been “prejudiced beyond
rehabilitation.” The trial court noted that the ex-wife had only “said they
were dating,” and the prosecutor avowed that he would not ask whether
“they had sex during that time.” Defense counsel countered that an explicit
question about sexual relations was unnecessary because “in common
nomenclature dating often means having sex.” The trial court denied the
motion for mistrial and overruled the objection. When direct examination
resumed, the ex-wife testified she married Love in 1984 and left him in July
1989.




                                      5
                             STATE v. LOVE
                           Decision of the Court

¶18            The following morning, defense counsel renewed his motion
for mistrial, arguing the prosecutor only elicited testimony about the age
difference for an improper purpose — namely, to suggest Love committed
statutory rape. Defense counsel further argued that, based on the
prosecutor’s question, the jury might conclude that Love’s DNA profile was
entered in CODIS because he is a sex offender. The trial court noted that
the age difference was of limited relevance but concluded Love was not
prejudiced because there was no evidence he and the ex-wife engaged in
sexual relations before she reached the age of majority. The court also noted
that the ex-wife did not imply there was anything improper about the
relationship. However, the court stated it would consider giving a limiting
instruction if defense counsel submitted one.

¶19            Defense counsel did not request a limiting instruction but did
offer a jury instruction regarding the CODIS DNA database, which the trial
court included in its final instructions:

       CODIS DNA DATABASE. There are multiple reasons why
       an individual’s DNA profile might be entered into the CODIS
       DNA Database. The jury should not speculate or guess as to
       the reason why [Love’s] profile was entered into the CODIS
       DNA Database. The reason that [Love’s] profile was entered
       into the CODIS DNA Database is not relevant to any issue
       that the jury will be considering in this case.

¶20           Although the record supports the trial court’s observation
that the age difference had little relevance, it also supports the additional
finding that Love was not prejudiced by the testimony. The ex-wife never
stated that she and Love engaged in underage sexual relations, and the
prosecutor did not mention the age difference during closing argument or
otherwise suggest Love had committed statutory rape. To the extent jurors
may have questioned why Love’s DNA profile was in CODIS — a question
likely to arise irrespective of the age difference testimony — the court
instructed jurors not to speculate about the reason. The jury is presumed
to have followed its instructions, and Love has not presented evidence to
overcome this presumption. See State v. LeBlanc, 186 Ariz. 437, 439 (1996).
On this record, the trial court did not abuse its discretion by denying the
motion for mistrial.

III.   Denial of Motion for Judgment of Acquittal

¶21         Love also contends the court erred by denying his motion for
judgment of acquittal. Focusing primarily on the theory of premediated



                                     6
                               STATE v. LOVE
                             Decision of the Court

first-degree murder, Love argues he had no preexisting relationship with
the victim or motive to kill her, and the State therefore failed to prove
premeditation. Without elaboration, Love also asserts that the State did not
present evidence that he either sexually assaulted or attempted to sexually
assault the victim.

¶22            We review de novo a trial court’s ruling on a Rule 20 motion
for judgment of acquittal. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).
“[T]he relevant inquiry is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Id. at ¶ 16.
Sufficient evidence upon which a reasonable jury can convict may be direct
or circumstantial. State v. Borquez, 232 Ariz. 484, 487, ¶ 11 (App. 2013). A
judgment of acquittal is appropriate only when “there is no substantial
evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).

¶23            As charged here, a person commits first-degree murder by:

       1.    Intending or knowing that his conduct will cause death,
            such person causes the death of another with
            premeditation, or

       2. Acting either alone or with one or more other persons such
          person commits or attempts to commit . . . sexual assault
          . . . [or] burglary . . ., and in the course of . . . such offense
          . . . , such person or another person causes the death of any
          person.

A.R.S. § 13-1105(A); 1987 Ariz. Sess. Laws, ch. 307, § 7 (1st Reg. Sess.).2
Under subsection (A)(2)’s felony-murder provision, no specific mental state
is required “other than what is required for the commission of any of the
enumerated felonies.” A.R.S. § 13-1105(B); 1987 Ariz. Sess. Laws, ch. 307,
§ 7 (1st Reg. Sess.). Because the jury unanimously found Love guilty of both
premeditated and felony murder, substantial evidence supporting either
theory is sufficient to sustain his conviction.

¶24          A person commits sexual assault by “intentionally or
knowingly engaging in sexual intercourse or oral sexual contact with any
person without consent of such person.” A.R.S. § 13-1406(A); 1989 Ariz.
Sess. Laws, ch. 199, § 1 (1st Reg. Sess.) (effective May 16, 1989). A person
attempts an act by intentionally taking “any step in a course of conduct

2      We cite the statutory provisions in effect at the time of the charged
offenses.


                                        7
                              STATE v. LOVE
                            Decision of the Court

planned to culminate in commission of an offense.” A.R.S. § 13-1001(A)(2);
see also State v. Zaragoza, 135 Ariz. 63, 67 n.2 (1983) (“A person commits
attempted sexual assault by doing any act that is a step toward committing
a sexual assault with the intent to complete the offense.”).

¶25             Read together, and as relevant here, a person commits first-
degree felony murder if he intentionally or knowingly attempts to engage
in sexual intercourse or oral sexual contact without the victim’s consent,
and in the course of attempting such sexual contact, causes the victim’s
death. In this case, the evidence reflected that the victim was attacked,
struck in the face, and stabbed twice. Immobilized, she was then positioned
on the floor, her panties removed, her skirt lifted to her waist, and her legs
spread apart. Her attacker deposited semen on her pelvic region before
leaving her either dead or with fatal injuries. With an exceedingly high
level of statistical probability (1 in 110 quadrillion African Americans), that
semen was identified as belonging to Love. Because an attempted sexual
assault can serve as the predicate felony offense for first-degree felony
murder, it is no defense that Love might not have ejaculated within the
victim’s body. See also State v. Lacy, 187 Ariz. 340, 350 (1996) (“Even if the
statute of limitations has expired on the predicate offense, a defendant may
still be prosecuted for felony murder.”).

¶26           There was sufficient evidence from which a reasonable jury
could find that Love attempted sexual intercourse or oral sexual contact
with the victim without her consent, and in the course of doing so, caused
her death. The trial court did not err by denying Love’s Rule 20 motion.

IV.    Denial of Motion to Vacate Verdict and Request for New Trial

¶27           Love argues the court erred by denying his motion to vacate
the verdict and order a new trial. Specifically, he contends the State failed
to disclose relevant, material evidence that may have led to a different
verdict.

¶28           Pursuant to Rule 24.1(c), a court may order a new trial when,
as relevant here, the prosecutor has been guilty of misconduct or “[f]or any
other reason not due to the defendant’s own fault the defendant has not
received a fair and impartial trial.” We generally review the denial of a
motion for new trial for an abuse of discretion. State v. Spears, 184 Ariz. 277,
287 (1996). We review constitutional claims, however, de novo. State v.
Harrod, 218 Ariz. 268, 279, ¶ 38 (2008).

¶29          The day after the case was submitted to the jury, the
prosecutor informed defense counsel and the trial court that the State had


                                       8
                              STATE v. LOVE
                            Decision of the Court

received notice from the FBI that certain DNA random match probability
tables from the 2001 CODIS database were inaccurate. Because the DNA
profile in this case was uploaded to the FBI’s database in 2001, defense
counsel suggested the State may have failed to comply with its disclosure
obligations, depending on when the State learned that the probability
calculations were not wholly reliable. The prosecutor avowed that he
disclosed the FBI notice the day after the county attorney’s office received
it. The court instructed the prosecutor to provide defense counsel with the
initial notice the State received. Later that day, the jury returned its verdict.

¶30           The following day, after receiving the State’s additional
disclosures, Love moved to vacate the guilty verdict and requested a new
trial. Arguing that the State, via the Phoenix Crime Lab, was notified of the
probability table inaccuracies no later than May 11, 2015, Love argued the
failure to timely disclose the information violated Brady v. Maryland, 373
U.S. 83 (1963). The State argued in response that no disclosure was
mandated because, applying the FBI’s amended probability statistics, the
only change from the calculations presented to the jury was a slight increase
in the confidence level of the match.

¶31            The trial court denied Love’s motion, concluding the
prosecutor did not engage in misconduct and Love was not denied a fair
trial. Specifically, the court found:

       [T]he State promptly turned over the information regarding
       faulty CODIS statistics as soon as the information was
       obtained. While general evidence of CODIS errors would be
       relevant and material in a case involving a CODIS
       identification, the specific data in this case could not have led
       the jury to entertain a reasonable doubt about the defendant’s
       guilt because the statistics presented to the jury did not
       change (or did not change in Defendant’s favor). The Court
       finds that there was no prejudice to the Defendant in this case
       that resulted from the disclosure of the CODIS errors or from
       the prosecutor’s conduct.

¶32           The State must disclose all “evidence in its possession that is
both favorable to the accused and material to guilt or punishment.”
Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987). “The test for a Brady violation
is whether the undisclosed material would have created a reasonable doubt
had it been presented to the jury.” State v. Jessen, 130 Ariz. 1, 4 (1981). Here,
even assuming the State had notice of the updated probability tables as
early as May 11, 2015, it is undisputed that the revised information was not


                                       9
                              STATE v. LOVE
                            Decision of the Court

favorable to Love. Indeed, Love does not challenge the trial court’s finding
that the only change was a slight increase in the confidence level associated
with his DNA match. Under these circumstances, the court did not err by
denying Love’s motion to vacate the verdict.

                               CONCLUSION

¶33          Love’s conviction and sentence are affirmed.




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




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