                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                DONALD WAYNE DALTON, Appellant.

                         No. 1 CA-CR 15-0074
                          FILED 1-26-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR 2014-000938-001
               The Honorable Michael W. Kemp, Judge

                   REVERSED AND REMANDED


                               COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz, Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant

Donald Wayne Dalton, Safford
Appellant
                             STATE v. DALTON
                             Opinion of the Court



                                  OPINION

Presiding Judge Patricia K. Norris delivered the opinion of the Court, in
which Judge Patricia A. Orozco joined. Judge Kent E. Cattani dissented.


N O R R I S, Judge:

¶1             Donald Wayne Dalton appeals from his conviction and
sentence for one count of burglary in the second degree, a class 3 felony.
After searching the record on appeal and finding no arguable question of
law that was not frivolous, Dalton’s counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and asked this court to
search the record for fundamental error. This court also granted counsel’s
motion to allow Dalton to file a supplemental brief in propria persona. After
reviewing both briefs and the record, we determined the record failed to
demonstrate whether the superior court had complied with its obligation
under Arizona Rule of Criminal Procedure 18.5(h) to instruct the jury it
needed to begin its deliberations anew when it replaced a deliberating juror
with the alternate.1 Accordingly, we requested counsel for the parties to
brief whether the court committed fundamental, prejudicial error by
apparently failing to comply with Rule 18.5(h). Having reviewed that
briefing and given the State’s acknowledgment that the superior court did
not instruct the jury to begin its deliberations anew when the alternate
joined it, we agree with Dalton the court’s non-compliance with Rule
18.5(h) constituted fundamental, prejudicial error. Accordingly, we vacate
Dalton’s conviction and sentence for burglary in the second degree and
remand for a new trial.

             FACTS AND PROCEDURAL BACKGROUND2

¶2             On May 2, 2013, police responded to a 911 caller who reported
a man was removing a swamp cooler from the roof of a vacant house. The
caller told dispatch he saw the man who had been on the roof along with a

              1Rule  18.5(h) states, in relevant part, “If an alternate joins the
deliberations, the jury shall be instructed to begin deliberations anew.”

              2We   view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Dalton. See
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

                                       2
                            STATE v. DALTON
                            Opinion of the Court
second man, who turned out to be Dalton, walking away from the house
and down the alley. Dalton and the man who had been on the roof, Brian
Day, matched the descriptions given by the caller. An officer arrived at the
scene and saw that the swamp cooler had been removed from the roof. The
officer detained the two men and questioned them.

¶3             In the questioning recorded by the police at the scene, Dalton
first denied being inside the house. After further questioning, however, he
admitted he had been inside. He denied any wrongdoing and told the
officer that Day was acting “stupid,” and he was trying to “get Brian to
leave the premises and [to] stop doing what he was doing because [he]
didn’t want to see him being an idiot and getting in trouble.” Day did not
tell the police Dalton was helping him with the swamp cooler.

¶4            On January 21, 2014, a grand jury indicted Dalton for burglary
in the second degree and criminal damage. At trial, Dalton testified he had
been “living homelessly,” and had occasionally slept in the house. He
explained that on the day police arrested him, he had been inside the house
sleeping when he heard a banging noise. He went outside through a back
window and saw the swamp cooler hanging “over [his] head.” He saw
Day, who appeared “not very coherent,” mumbling and talking to himself.
Dalton testified he tried to get Day to leave the house with him so Day
would not hurt himself, and he had first lied to police about being in the
house because he did not want to get “wrapped up with Brian Day’s
stupidity.”

¶5             After final instructions and closing argument, the court
designated the alternate juror by lot and advised the jury the alternate could
be called back if “something happens overnight.” The court then excused
the alternate. The jurors retired to consider their verdicts at 2:15 p.m., and
the court recessed. At 3:22 p.m., the court reconvened—with counsel
present telephonically and Dalton’s presence waived—to consider a
question from the jury. The court provided a written response to the
question and recessed again at 3:23 p.m. At 4:21 p.m., the court reconvened
with counsel present telephonically, and it advised counsel the jury had
decided to “quit for the day,” but that one of the jurors had informed the
bailiff she could not return the next day. The court told counsel its solution
was to “bring the alternate back and have them start over at 11:00
tomorrow.” The court and counsel then agreed the court would telephone
the alternate and inform her that she had to return the next day at 11:00 a.m.
to begin deliberations with the other jurors.

¶6           At 11:00 a.m. the next day, the jury reconvened. Although the
day before the court had told counsel it would have the jury “start over”


                                      3
                            STATE v. DALTON
                            Opinion of the Court
when the alternate joined it, the record contains no indication—and the
parties do not argue otherwise—that the court actually instructed the jury
to “start over.” Neither Dalton nor the State brought the court’s failure to
comply with Rule 18.5(h) to its attention. The jury returned to the
courtroom to announce its verdict 43 minutes later, at 11:43 a.m. The trial
transcript, however, reflects the jury actually deliberated less than 43
minutes as the court apologized for making the jury wait before it could
return its verdicts. The jury found Dalton guilty of burglary in the second
degree, but not guilty of criminal damage. The court polled the jury, and
the individual members of the jury confirmed the verdicts.

                               DISCUSSION

I.     Non-Compliance with Rule 18.5(h)

¶7             In his supplemental brief filed at our request, Dalton argues
the court failed to comply with its obligation under Rule 18.5(h) and,
therefore, committed fundamental, prejudicial error entitling him to a new
trial. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-21, 115 P.3d 601,
607-08 (2005). We agree.

¶8            In State v. Guytan, 192 Ariz. 514, 968 P.2d 587 (App. 1998), this
court explained the inherent problems when a new juror joins deliberations
that have already begun:

              Where an alternate juror is inserted into a
              deliberative process in which some jurors may
              have      formed opinions regarding           the
              defendant’s guilt or innocence, there is a real
              danger that the new juror will not have a
              realistic opportunity to express his views and to
              persuade others. Moreover, the new juror will
              not have been part of the dynamics of the prior
              deliberations, including the interplay of
              influences among and between jurors, that
              advanced the other jurors along their paths to a
              decision. Nor will the new juror have had the
              benefit of the unavailable juror’s views. Finally,
              a lone juror who cannot in good conscience vote
              for conviction might be under great pressure to
              feign illness in order to place the burden of
              decision on an alternate.




                                      4
                            STATE v. DALTON
                            Opinion of the Court
Id. at 518, ¶ 11, 968 P.2d at 591 (quoting People v. Burnette, 775 P.2d 583, 588
(Colo. 1989)). The requirement that the jury begin deliberations anew
guards against these problems.

              If deliberations have begun, some issues
              already may have been decided as a practical
              matter. In that case, there is an inherent risk that
              the resulting verdict as to those issues will
              reflect only the views of the original jurors,
              thereby depriving the defendant of his right to
              unanimity from the requisite number of jurors.

 Id. at 521, ¶ 22, 968 P.2d at 594 (emphasis added). Article 2, Section 23, of
the Arizona Constitution guarantees a defendant the right to a unanimous
jury verdict in a criminal case. The right to a unanimous jury verdict is not
met, however, unless the jurors

              reach their consensus through deliberations
              which are the common experience of all of them.
              It is not enough that [the jurors] reach a
              unanimous verdict if 1 juror has not had the
              benefit of the deliberations of the other [jurors].
              Deliberations provide the jury with the
              opportunity to review the evidence in light of
              the perception and memory of each member.
              Equally important in shaping a member’s
              viewpoint are the personal reactions and
              interactions as any individual juror attempts to
              persuade others to accept his or her viewpoint.
              . . . [A] defendant may not be convicted except by
              [jurors] who have heard all the evidence and
              argument and who together have deliberated to
              unanimity.

People v. Collins, 552 P.2d 742, 746 (Cal. 1976) (emphasis added). For these
reasons, the error here was fundamental. See Henderson, 210 Ariz. at 567, ¶
19, 115 P.3d at 607.3 Thus, the issue becomes whether the error was also
prejudicial.


              3InState v. Tucker, a capital case, the Arizona Supreme Court
held the superior court was not required to instruct under Rule 18.5(i) when
an alternate juror joined the jury after it had completed the aggravation



                                       5
                              STATE v. DALTON
                              Opinion of the Court
¶9             Not every failure by a trial court to instruct the jury that it
must begin deliberations anew when it replaces a juror will constitute
reversible error. Guytan, 192 Ariz. at 521, ¶ 23, 968 P.2d at 594. Whether
such a failure is reversible depends on whether it is prejudicial—an inquiry
that overlaps with fundamental error review under Henderson. Prejudice
under fundamental error review “is a fact-intensive inquiry, the outcome
of which will ‘depend [] upon the type of error that occurred and the facts
of a particular case.’” State v. Dickinson, 233 Ariz. 527, 531, ¶ 13, 314 P.3d
1282, 1286 (App. 2013). To show prejudice, Dalton bears the burden of
showing that a reasonable jury “could have reached a different result” had
it been properly instructed under Rule 18.5(h). See Henderson, 210 Ariz. at
569, ¶ 27, 115 P.3d at 609. Guytan—and other courts that have considered
whether a defendant was prejudiced when a trial court failed to instruct a
jury that it must begin deliberations anew when it replaces a juror4—
recognized a court should take into account the following factors to
determine prejudice: first, whether other instructions given by the court to
the jury ameliorated the failure to instruct the jury to begin deliberations
anew; second, the length of time the jury deliberated before and after the
substitution; and third, the strength of the evidence against the defendant.




phase of the case, but before it had begun the penalty phase. 215 Ariz. 298,
319, ¶ 83, 160 P.3d 177, 198 (2007). Citing Tucker, the dissent asserts it stands
for the proposition that a “substitute juror can properly reach a verdict
without having participated in every discussion relevant to the ultimate
issue as long as the substitute juror fully deliberates and reaches an
independent verdict.” See infra ¶ 39. First, the supreme court did not say
this. Second, as noted, Tucker is a capital case, and thus the aggravation
phase is separate from the penalty phase, see A.R.S. § 13-752 (2015), and the
alternate joined the penalty phase deliberations before they had begun.
Accordingly, the supreme court held the superior court “was not required
to instruct the jury to begin deliberations anew because such an instruction
is required only where a substitution is made after deliberations have
begun.” Tucker, 215 Ariz. at 319, ¶ 83, 160 P.3d at 198.

               4See People v. Collins, 552 P.2d 742 (Cal. 1976); State v. Gomez,
56 P.3d 1281 (Idaho 2002); David B. Sweet, Annotation, Propriety, under state
statute or court rule, of substituting state trial juror with the alternate after case
has been submitted to jury, 88 A.L.R. 4th 711 (2015); cf. State v. Martinez, 198
Ariz. 5, 6 P.3d 310 (App. 2000).




                                          6
                            STATE v. DALTON
                            Opinion of the Court
Applying these factors here, the error was prejudicial. See Guytan, 192 Ariz.
at 518-19, ¶¶ 12-13, 968 P.2d at 591-92.

¶10           First, none of the court’s other instructions to the jury
ameliorated the failure to instruct the jury it was required to begin its
deliberations anew when the alternate joined it. Although we recognize—
as the State argues in its supplemental brief—that in its preliminary
instructions, the court instructed the jurors they should form their final
opinions only after they have had “an opportunity to discuss the case with
each other in the jury room at the end of the trial,” and in its final
instructions told the jury, “[d]o not deliberate unless all of you are present,”
and, “[d]o not take a vote until you’ve discussed all the evidence in the
case,” neither those instructions nor the other instructions noted by the
dissent can be understood as instructing the jurors that when the alternate
joined them, they were to start over again from the proverbial square one.5

¶11             In Guytan, other instructions given to the jury by the court
after the alternate joined the jury ameliorated the risk of confusion. Those
instructions—unlike the instructions here—specifically required all of the
jurors, including the alternate, to “actively participate” and to return a
verdict “that would represent individual thinking expressed collectively.”
Id. at 518, ¶ 6, 968 P.2d at 591. Thus, although the court in Guytan failed to
comply with Rule 18.5(h), its instructions—given to the jurors after the jury
had been reconstituted—focused the jurors’ attention on what they were
individually and collectively required to do after the alternate joined them.
That did not happen here. The court’s general instructions to the jurors—
instructions that generally explained what they needed to do as jurors and
given before the court replaced the deliberating juror with the alternate—
were not comparable to or even a reliable substitute for an instruction that
explicitly informed the reconstituted jury that it had to start over again.

¶12           Second, the jury deliberated for approximately two hours
before the alternate joined it, but for less than 43 minutes afterwards. See

              5The  dissent argues that because, when polled, each of the
jurors, including the alternate, confirmed the guilty verdict was his or her
true verdict, the jurors must have discussed all of the evidence in the case
before they voted. See infra ¶¶ 33, 41. Not only is this suggestion
speculative, but as explained in Guytan, a juror who joins the deliberations
mid-stream may not have a realistic opportunity to express his or her views
and to persuade others. And, to put the point plainly, a juror who joins in
mid-stream may well be pressured by the other jurors to “go along” with
what they have already discussed or even decided.



                                       7
                            STATE v. DALTON
                            Opinion of the Court
supra ¶ 6. Thus, unlike the situation in Guytan, the bulk of the jury’s
deliberations here occurred before the alternate joined the panel. Given
this, the record provides no reasonable assurances that the reconstituted
jury began deliberations anew, with each juror fully participating.6

¶13            Third, the State’s case against Dalton was not overwhelming,
and a jury could have reached a different result had it been instructed
pursuant to Rule 18.5(h). Dalton consistently denied he had been on the
roof, and indeed, the 911 caller never reported to dispatch or the police he
had seen Dalton on the roof, or even acting as a lookout. And, although
Dalton initially misled police about being inside the house, see supra ¶ 3, he
consistently denied he had assisted Day in attempting to remove the
swamp cooler. This is an important point. Contrary to the State’s argument
in its supplemental brief, Dalton never “essentially admitted he was Day’s
accomplice . . . when he told [the police] that it was ‘stupid to help’ Day
because ‘he could have gotten [him]self in so much trouble.’” Instead, as
the police recording at the scene makes clear, Dalton actually told the police
he had only been trying to “get Brian to leave the premises and [to] stop
doing what he was doing because [he] didn’t want to see him being an idiot
and getting in trouble” and he “was scared because [he] just realized how
stupid it is to help somebody and [he] could have gotten [him]self into so
much trouble over it.”

¶14           Under the circumstances presented here, we cannot say
beyond a reasonable doubt that the jury would have reached the same
result had the superior court properly instructed it to begin deliberations
anew when the alternate joined it. Cf. State v. Ruiz, 236 Ariz. 317, 323, ¶ 18,
340 P.3d 396, 402 (App. 2014) (applying fundamental error review; error in
instructing jury was prejudicial when appellate court could not “say
beyond a reasonable doubt that the jury would have convicted” defendant
without erroneous jury instruction). The error was, thus, prejudicial.


              6The  dissent argues “there is no evidence—or even
suggestion—that the jurors decided ‘some issues’ relating to Dalton’s
conviction before the substitute juror joined in deliberations.” See infra ¶
35. The dissent essentially rests this argument on the assertion that this was
an easy case and the jurors were presented with only one question—
whether they believed Dalton’s testimony he did not intend to assist Day in
removing the swamp cooler. See infra ¶¶ 35-37. To answer this question,
the jury had to decide whether Dalton acted as an accomplice—an inquiry
that is not as simple as the dissent portrays—or whether he was merely
present at the crime scene—an inquiry that requires the finder of fact to
consider multiple issues.

                                      8
                           STATE v. DALTON
                           Opinion of the Court
Accordingly, we vacate Dalton’s conviction for burglary in the second
degree and remand for a new trial.

II.   Other Matters

¶15         In his in propria persona supplemental brief, Dalton also argues
we should vacate his conviction and sentence for two other reasons.

¶16           First, Dalton argues the prosecutor “used threats and coercion
to try to make” him accept a plea in this case. Dalton has not explained
when and under what circumstances the prosecutor allegedly used threats
and coercion, and in any event, the record does not support this argument.
Moreover, even if we were to assume the prosecutor used threats and
coercion, the alleged threats and coercion had no impact on Dalton as he
did not plead guilty.

¶17            Second, Dalton argues the State violated his speedy trial
rights, asserting the prosecutor’s reasons for requesting continuances did
not constitute extraordinary circumstances. We reject this argument.

¶18          As noted above, a grand jury indicted Dalton on January 21,
2014. Before he was indicted in January 2014, a prior grand jury had
indicted Dalton for criminal trespass in the first degree. On the State’s
motion, on March 13, 2014, the superior court dismissed the criminal
trespass prosecution without prejudice, and the State proceeded with the
charges against Dalton returned by the grand jury in the January 2014
indictment.

¶19          When the State elects to refile charges against a defendant,
Rule 8 time limits “commence[] to run from the date” of the second
arraignment. See State v. Johnson, 113 Ariz. 506, 510, 557 P.2d 1063, 1067
(1976). Dalton’s Rule 8 time limits thus began to run on January 21, 2014.
On May 5, 2014, defense counsel moved to continue the trial to the week of
June 9, 2014. The State did not object to counsel’s motion, and the court
granted the motion and excluded time between May 28 and June 9, 2014.
Dalton’s new last day became July 10, 2014.

¶20          On June 2, 2014, the State moved to continue the trial because
Dalton had an older, unrelated pending case. Defense counsel objected to
the continuance, but the superior court granted the continuance, excluded
time between June 9 and July 28, 2014, and set Dalton’s last day as August
28, 2014.

¶21          On July 7, 2014, the State moved to continue the trial because
the prosecutor in Dalton’s older case was in trial on another matter and the


                                     9
                             STATE v. DALTON
                             Opinion of the Court
State’s forensic interviewer in Dalton’s older case was on maternity leave.
Over defense counsel’s objection, the superior court found extraordinary
circumstances, continued the trial, excluded time between July 28 and
August 18, 2014, and set Dalton’s last day as September 18, 2014. Then, on
August 12, 2014, defense counsel moved to continue the trial because of a
scheduling conflict. Dalton waived time and the court excluded time
between August 18 and October 28, 2014, and set Dalton’s last day as
December 4, 2014.

¶22            “Continuances are, to a great extent, discretionary with the
trial court, and an appellate tribunal will not review its action in this respect
unless it clearly appears that the discretion has been abused.” State v. Miller,
111 Ariz. 321, 322, 529 P.2d 220, 221 (1974) (citation omitted) (internal
quotation marks omitted). Here, the superior court did not abuse its
discretion in granting the State’s motions to continue given the pendency
of Dalton’s older case, the prosecutor’s trial conflict, and the unavailability
of the State’s forensic interviewer.

¶23            Even if we assume, however, the superior court abused its
discretion in granting one or both of the State’s motions to continue, Dalton
has not demonstrated any prejudice. See State v. Vasko, 193 Ariz. 142, 143,
¶ 3, 971 P.2d 189, 190 (App. 1998) (“[I]n the absence of a showing of
prejudice, a speedy trial violation raised as error on appeal after conviction
does not warrant reversal of that conviction.”). Although he argues Day
was no longer available to testify on his behalf because of the continuances,
he has not explained how Day’s absence prejudiced him. See State v. Rose,
24 Ariz. App. 25, 27, 535 P.2d 617, 619 (1975) (defendant’s allegation of
prejudice resulting from unavailable witness insufficient when no evidence
presented “which would indicate that any specific unavailable witness’s
testimony would have been beneficial”). Accordingly, on the record before
us, Dalton has not shown prejudice.

¶24          Dalton also argues the superior court was not entitled to
sentence him as a category two repetitive offender. Because we are
remanding for a new trial, we briefly address whether the superior court
could sentence Dalton as a category two repetitive offender if convicted on
remand.

¶25            Under the sentencing statutes in effect on the date of the
alleged burglary offense—May 2, 2013—the superior court could sentence
Dalton as a category two repetitive offender if it finds he has been convicted
of “three or more felony offenses that were not committed on the same
occasion but that either are consolidated for trial purposes or are not
historical prior felony convictions.” Ariz. Rev. Stat. (“A.R.S.”) § 13-703(B)(1)


                                       10
                             STATE v. DALTON
                             Opinion of the Court
(Supp. 2012). Before trial, the State alleged Dalton had been convicted of
eight prior felonies from the State of Washington. Dalton could be
sentenced as a category two repetitive offender if he is convicted on remand
and the State properly proves that at least two of these Washington felonies
meet the requirements of A.R.S. § 13-703(B)(1). See State v. Smith, 228 Ariz.
126, 129-31, ¶¶ 12-18, 263 P.3d 675, 678-80 (App. 2011) (prior conviction
counted with current conviction to determine whether defendant qualifies
as a category one repetitive offender under the 2008 version of A.R.S. § 13-
703(A) that, inter alia, required defendant to be convicted of two felony
offenses not committed on the same occasion).

¶26            Alternatively, the court could sentence Dalton as a category
two repetitive offender if it finds he was “at least eighteen years of age or
has been tried as an adult and stands convicted of a felony and has one
historical prior felony conviction.” A.R.S. § 13-703(B)(2) (Supp. 2012). The
State alleged that one of the eight prior Washington felonies included a
conviction for “controlled substance possession.” At the time of Dalton’s
alleged burglary offense, A.R.S. § 13-105(22)(e) (Supp. 2012) defined a
historical prior felony conviction as including “[a]ny offense committed
outside the jurisdiction of this state that was punishable by that jurisdiction
as a felony” and which was “committed within the five years immediately
preceding the date of the present offense.” Although the record reflects
Dalton committed the Washington controlled substance possession felony
in either March or June 2007,7 the record contains evidence that reflects he
was subsequently incarcerated for various periods of time for other
offenses. Time spent incarcerated is excluded from the five-year calculation.
Id. (“Any time spent . . . incarcerated is excluded in calculating if the offense
was committed within the preceding five years.”); see State v. Rodriguez, 227
Ariz. 58, 60-61, ¶¶ 8-11, 251 P.3d 1045, 1047-48 (App. 2010) (statute
excluding time spent incarcerated from calculation of statutory period for a
historical felony not limited to time spent as a result of a conviction of a
crime, but also includes time spent in jail before sentencing); State v. Derello,
199 Ariz. 435, 439, ¶ 22, 18 P.3d 1234, 1238 (App. 2001) (plain meaning of
phrase “any time spent incarcerated” indicates Legislature intended to
exclude “all time that a defendant spent in prison, regardless of whether
that incarceration was for the particular prior conviction at issue or for some
other crime”). Accordingly, if the State properly proves Dalton committed
this particular Washington offense within five years of the alleged burglary,



              7Although the State alleged Dalton committed this offense on
June 10, 2007, the criminal history portion of the pre-sentence report
reported that he had committed the offense on March 10, 2007.

                                       11
                            STATE v. DALTON
                            Opinion of the Court
excluding time spent incarcerated, then the superior court could sentence
him as a category two repetitive offender under A.R.S. § 13-703(B)(2).

                               CONCLUSION

¶27           For the foregoing reasons, we vacate Dalton’s conviction and
sentence for burglary in the second degree and remand for a new trial.




C A T T A N I, Judge, dissenting:

¶28           I respectfully dissent from the majority’s ruling that the
superior court’s failure to instruct the jurors to deliberate anew resulted in
reversible error. Although I agree that an instruction to deliberate anew is
required under Rule 18.5(h) when an alternate juror is substituted for an
excused juror, in this case, the unobjected-to failure to instruct the jurors
regarding deliberating anew did not rise to the level of fundamental,
prejudicial error under State v. Henderson, 210 Ariz. 561, 115 P.3d 601 (2005).

¶29            Under Henderson, “[a] defendant who fails to object at trial
forfeits the right to obtain appellate relief except in those rare cases that
involve ‘error going to the foundation of the case, error that takes from the
defendant a right essential to his defense, and error of such magnitude that
the defendant could not possibly have received a fair trial.’” 210 Ariz. at
567, ¶ 19, 115 P.3d at 607 (citation omitted). Henderson further holds that a
defendant bears the burden of persuasion in fundamental error review to
“establish both that fundamental error exists and that the error in his case
caused him prejudice.” Id. at ¶ 20.

¶30          Here, the error did not go to the foundation of the case or take
away a right essential to the defense such that Dalton “could not possibly
have received a fair trial,” and Dalton has not met his burden of showing
prejudice. See id. at 567–71, ¶¶ 19, 26–34, 115 P.3d at 607–10 (citation
omitted).

¶31            The majority relies primarily on a pre-Henderson case, State v.
Guytan, 192 Ariz. 514, 968 P.2d 587 (App. 1998), which held that when a new
juror is substituted for an excused juror, it is error not to instruct jurors to
deliberate anew as required by Rule 18.5, while also holding that the error
in that case did not require reversal. Contrary to the majority’s assertion,
the analysis set forth in Guytan did not provide a framework for error
review that “overlaps” with fundamental error review under Henderson.


                                      12
                            STATE v. DALTON
                            Cattani, J., dissenting
Moreover, in Guytan, the court in fact noted that some jurisdictions do not
have a statute or rule expressly requiring an instruction such as that
mandated by Rule 18.5, while further noting that in those jurisdictions,
courts “typically and wisely” impose such a requirement. Id. at 521, ¶ 23,
968 P.2d at 594. But reliance on a “typical” and “wise” approach is not co-
terminous with an evaluation of whether unobjected-to error is
fundamental and prejudicial under Henderson.

¶32             Dalton does not come close to meeting his burden of
establishing fundamental, prejudicial error. The jurors were correctly
instructed regarding the elements of second-degree burglary and the State’s
burden of proof. Compare State v. Ruiz, 236 Ariz. 317, 340 P.3d 396 (App.
2014) (reversing based on instructional error relating to the State’s burden
of proving the charged offense). Although the jurors were not instructed to
deliberate anew, they were instructed that (1) they should not form final
opinions until they had discussed the case with each other in the jury room;
(2) their verdict “must be unanimous” and “everyone must agree”; (3) they
were required to discuss their own personal views “as well as the views of
the other jurors”; and (4) they were prohibited from “tak[ing] a vote until
[they had] discussed all the evidence in this case.” There is no indication
whatsoever that the jurors who decided this case failed to understand and
comply with these directives. See also State v. LeBlanc, 186 Ariz. 437, 439, 924
P.2d 441, 443 (1996) (reiterating presumption that jurors follow their
instructions).

¶33           In light of our standard of review, and absent some indication
otherwise, the majority errs by hypothesizing that the jurors voted without
discussing all the evidence in the case or that all of the jurors did not agree
on the verdict. Moreover, the jurors were individually polled in this case,
and every juror—including the alternate juror—confirmed that the verdict
was his/her true verdict. Under these circumstances, the failure to instruct
the jurors as required by Rule 18.5 was not prejudicial error of such
magnitude that Dalton could not possibly have received a fair trial.

¶34           The majority’s reliance on Guytan is further undermined by
the absence in the instant case of the particular concern underlying the
discussion of error in Guytan:

       The requirement that jurors begin deliberations anew after a
       substitution guards against the potential problems that
       substitution poses. In particular, if deliberations have begun,
       some issues already may have been decided as a practical matter. In
       that case, there is an inherent risk that the resulting verdict as
       to those issues will reflect only the views of the original jurors,


                                       13
                           STATE v. DALTON
                           Cattani, J., dissenting
       thereby depriving the defendant of his right to unanimity
       from the requisite number of jurors.

192 Ariz. at 521, ¶ 22, 968 P.2d at 594 (emphasis added) (citing People v.
Burnette, 775 P.2d 583, 588 (Colo. 1989); People v. Collins, 552 P.2d 742, 746
(Cal. 1976)).8

¶35             Here, there is no evidence—or even suggestion—that the
jurors decided “some issues” relating to Dalton’s conviction before the
substitute juror joined in deliberations. Dalton was convicted of only one
offense—burglary—stemming from his alleged involvement with another
man, Brian Day, in taking a swamp cooler from a vacant home. Dalton
testified at trial and acknowledged that he was trespassing by sleeping at
the vacant residence, but claimed he did not know Day planned to remove
the swamp cooler, and that his only involvement was persuading Day to
leave the house with him so Day would not “get[] in trouble.”

¶36           Given Dalton’s admission to being present at the scene of the
burglary and leaving with Day, the only question for the jurors was
whether they believed Dalton’s testimony that he did not intend to assist in
removing the swamp cooler. Answering that question did not involve a
complex inquiry, and there were no other issues to resolve; thus the concern
underlying Guytan is absent and undermines any assertion of prejudice
resulting from the unobjected-to failure to give the Rule 18.5 instruction.

¶37         The majority cites the fact that the jurors “deliberated for
approximately two hours before the alternate joined it, but for less than 45
minutes afterwards.” But the pre-substitution deliberations included

8       As the majority notes, the Guytan court listed four “problems
inherent” in substituting an alternate juror once deliberations have begun:
(1) the other jurors may have already resolved relevant issues, leaving the
alternate no opportunity to express her views and persuade others; (2) the
alternate would not have the benefit of the discussions and dynamics of
prior deliberations; (3) the alternate would not have the benefit of the
unavailable juror’s views; and (4) the unavailable juror might have feigned
a conflict for some improper purpose. See supra ¶ 8; Guytan, 192 Ariz. at
518, ¶ 11, 968 P.2d at 591. But an instruction to “deliberate anew” does not
address the second and third concerns. And the fourth concern—that the
unavailable juror left deliberations for some impermissible reason—is not
implicated in this case; the excused juror asked to be relieved of her duties
because of child care issues. Accordingly, the only issue remaining—and
the one on which Guytan focused as well—is whether some issues have
already been decided.

                                     14
                            STATE v. DALTON
                            Cattani, J., dissenting
selecting a foreperson and asking and waiting for an answer to a question,
“[w]hy wasn’t the 911 caller subpoenaed,” that was not relevant to
resolving the burglary charge. Thus, the pre-substitution deliberations
were not necessarily extensive, and, again, there is no evidence that any
issues were resolved during those deliberations.

¶38           The fact that the jurors returned a verdict less than 45 minutes
after the substitute juror joined the jury does not establish fundamental
error or resulting prejudice. As noted above, this was a simple case, and
the relatively short period of post-substitution deliberations is not
surprising given the lack of complexity involved in deciding whether
Dalton was believable when he denied assisting with the burglary (while
admitting to being present and trespassing).

¶39            A substitute juror can properly reach a verdict without having
participated in every discussion relevant to the ultimate issue as long as the
substitute juror fully deliberates and reaches an independent verdict. See
State v. Tucker, 215 Ariz. 298, 319, ¶ 83, 160 P.3d 177, 198 (2007) (finding no
error—and no need for a Rule 18.5 instruction—when a juror is substituted
between the aggravation and penalty phases of a capital case sentencing
proceeding notwithstanding some degree of overlap in issues considered
in the two phases) (citing State v. Roseberry, 210 Ariz. 360, 372–73, ¶ 71, 111
P.3d 402, 414–15 (2005)).

¶40           Here, any suggestion that the substitute juror did not fully
deliberate is simply speculation and improperly ignores the substitute
juror’s affirmative statement that the verdict of guilt represented her true
individual verdict. See State v. Kiper, 181 Ariz. 62, 68, 887 P.2d 592, 598 (App.
1994) (“The purpose of polling the jury is to give each juror an opportunity,
before the verdict is recorded, to declare in open court his assent to the
verdict which the foreman has returned, and thus to enable the court and
the parties to ascertain with certainty that a unanimous verdict has in fact
been reached[.]”) (quotation omitted). There is nothing in the record
suggesting that issues were resolved prior to the dismissal of the excused
juror, and the remaining jurors and the substitute juror were adequately
instructed regarding their duty to reach a unanimous verdict.




                                       15
                           STATE v. DALTON
                           Cattani, J., dissenting
¶41            Under the circumstances, and particularly in light of the fact
that the jurors all individually confirmed their verdicts (without any hint of
ambivalence) when they were polled following deliberations, Dalton has
not met his burden of establishing that this is the “rare case” in which the
unobjected-to instructional error resulted in prejudice and was of such
magnitude that it cannot be said that he received a fair trial. Accordingly,
I would affirm his conviction and sentence.




                                  :ama




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