                                                                   FILED BY CLERK
                            IN THE COURT OF APPEALS                   MAR 15 2007
                                STATE OF ARIZONA                       COURT OF APPEALS
                                  DIVISION TWO                           DIVISION TWO


THE STATE OF ARIZONA,                       )
                                            )          2 CA-CR 2006-0015
                               Appellee,    )          DEPARTMENT B
                                            )
                  v.                        )          OPINION
                                            )
JILL IRENE PARIS-SHELDON,                   )
                                            )
                               Appellant.   )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR20041301

                          Honorable Howard Hantman, Judge
                       Honorable Howard Fell, Judge Pro Tempore

                                     AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Kathryn A. Damstra                                    Tucson
                                                               Attorneys for Appellee

Robert J. Hooker, Pima County Public Defender
 By Nancy F. Jones                                                            Tucson
                                                              Attorneys for Appellant


B R A M M E R, Judge.
¶1            A jury found appellant Jill Irene Paris-Sheldon guilty of two counts of

disorderly conduct. Paris-Sheldon argues on appeal the trial court erroneously denied her

motion for substitute counsel and motion to dismiss. She also asserts the jury selection

procedure was improper and the court erred when it denied her motion for a judgment of

acquittal made pursuant to Rule 20, Ariz. R. Crim. P., 17 A.R.S. Finding no error, we affirm.

                          Factual and Procedural Background

¶2            On appeal, “[w]e view the facts in the light most favorable to sustaining the

verdict[s].” State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408 (2003). On September 8,

2003, Pima County Sheriff’s deputies responded to a report of a “possible suicide threat” at

a trailer belonging to Bud Love. Paris-Sheldon had been living in the trailer with Love and

was present when the deputies arrived. She initially denied any firearms were in the trailer

but admitted a revolver found on top of the television set belonged to her. The deputies

unloaded the revolver, placed the ammunition in the freezer, without telling Paris-Sheldon

where they had put the ammunition, and left the premises.

¶3            That same day, Frank Palmer had been visiting his friend, Gary Hyatt, Love’s

neighbor. Palmer had been friends with Paris-Sheldon for about four years, and the two of

them had worked together. Palmer went to Love’s trailer to find out what had happened, and

he and Paris-Sheldon began talking and drinking. Paris-Sheldon was packing items from the

trailer and moving them to her truck while he sat at the kitchen table. Palmer testified there

was a revolver and a box of ammunition on the kitchen table and Paris-Sheldon had told him


                                              2
she “had worked on the gun and made it so it had a hair-trigger on it.” He stated he had had

“three or four shots of whiskey and probably about four or five beers” when he “saw [Paris-

Sheldon] leave the trailer at one point and then come back in and, bam, [he] got shot in the

face.” When she came into the trailer, he could “see that she was holding something in front

of her, . . . but it was . . . so quick. . . . [A]s soon as she stepped in the door it was like

instantaneous, the gun went o[ff].”

¶4            Gary Hyatt testified he had heard a loud pop, “like someone had slammed the

trailer door,” before “[Paris-Sheldon] came over and told [him] that [s]he had shot [Palmer]

and for [him] to call 911.” While Hyatt was on the telephone with the 911 operator, he heard

what he believed to be a gunshot, and then “lock[ed] [his] doors and turned out [his] lights

and went and got [his] pistol.” The same deputies who had come earlier in the day responded

to Hyatt’s 911 call and saw Paris-Sheldon exiting Love’s trailer as they arrived. She initially

told the deputies “that nobody had been shot,” but when asked where the revolver was, she

stated she had shot Palmer and “thrown [the gun] near a truck.” The deputies then took

Paris-Sheldon into custody.

¶5            A grand jury indicted Paris-Sheldon on charges of disorderly conduct and

attempted first-degree murder in CR-20033007. On the first day of trial, following Paris-

Sheldon’s rejection of the state’s plea offer, the court granted the state’s motion to dismiss

all charges without prejudice, but denied Paris-Sheldon’s motion to dismiss them with

prejudice. Approximately one month later, in April 2004, a second grand jury charged Paris-



                                              3
Sheldon with aggravated assault with a deadly weapon or dangerous instrument, aggravated

assault causing serious physical injury, disorderly conduct, and attempted second-degree

murder in this case, CR-20041301.

¶6             Approximately eight months later, Paris-Sheldon moved to dismiss the

disorderly conduct and attempted murder charges in this case, arguing, pursuant to Rule

16.6(a), Ariz. R. Crim. P., 16A A.R.S., that the state had sought to dismiss the charges in

CR-20033007 to avoid the speedy trial requirements of Rule 8, Ariz. R. Crim. P., 16A A.R.S.

Although argument on the motion was scheduled, it apparently was never held, and the trial

court did not rule on the motion before trial. On the first day of trial, before a different judge,

Paris-Sheldon brought the motion to the court’s attention. The court stated it was “not

prepared to rule on the motion,” but noted, “we’ll have an appellate record,” and permitted

the trial to proceed. The court granted the state’s motion to dismiss the attempted second-

degree murder charge with prejudice on the third day of trial.

¶7             The jury did not reach a verdict on the aggravated assault charges but found

Paris-Sheldon guilty of the lesser-included offense of disorderly conduct as to Palmer and

of disorderly conduct as to Hyatt. The jury found both offenses to be of a dangerous nature.

The trial court sentenced Paris-Sheldon to concurrent, presumptive prison terms of 2.25 years

for each count. This appeal followed.




                                                4
                                           Discussion

Motion for Substitute Counsel

¶8             Paris-Sheldon first contends the trial court erroneously denied her motion

requesting substitute counsel. We review a trial court’s denial of a defendant’s request for

substitute counsel for a clear abuse of discretion. See State v. Moody, 192 Ariz. 505, ¶ 11,

968 P.2d 578, 580 (1998). A trial court abuses its discretion if it fails to inquire into the basis

for the defendant’s dissatisfaction with counsel or fails to conduct a hearing on the

defendant’s complaint after being presented with specific factual allegations in support of

the request for new counsel. See State v. Torres, 208 Ariz. 340, ¶¶ 7-8, 93 P.3d 1056, 1059

(2004).

¶9             The Sixth Amendment to the United States Constitution entitles a criminal

defendant to competent representation but does not guarantee a defendant “counsel of

choice,” or “a meaningful relationship with his or her attorney.” Moody, 192 Ariz. 505, ¶ 11,

968 P.2d at 580. In deciding whether to grant a request for substitute counsel, a trial court

must therefore consider several factors, including

               whether an irreconcilable conflict exists between counsel and
               the accused, and whether new counsel would be confronted with
               the same conflict; the timing of the motion; inconvenience to
               witnesses; the time period already elapsed between the alleged
               offense and trial; the proclivity of the defendant to change
               counsel; and quality of counsel.

Id., quoting State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987).




                                                5
¶10            On the morning of the first day of trial, November 1, 2005, Paris-Sheldon

called the trial court’s office concerning her appointed attorney. When the court later

questioned her about the telephone call in open court, she stated she wanted to “fire” her

attorney “and have a change of counsel.” The court further questioned her concerning the

basis for her request, and she stated her attorney had lied to her and “failed to investigate the

case.” She asserted her attorney had maintained she “had a good defense” until a recent

meeting when he told her she “had no defense, and he had done nothing.” She was initially

unable to recall when that meeting had occurred but later stated she “believ[ed] it was the

19th [of October].” She also stated she had, at that time, asked her attorney to withdraw from

the case, although her attorney asserted she did not ask him to do so until the Friday before

trial. When queried by the court, Paris-Sheldon’s attorney stated he was prepared for trial

and denied having told her she “had a good defense.” The court denied Paris-Sheldon’s

motion, stating her request was not timely and “[her attorney was] prepared to go to trial.”

¶11            Paris-Sheldon asserts the trial court’s inquiry into the basis for her request for

new counsel was improper because it was “limited” and “based solely on its being

untimely . . . , because timing is only one of several relevant factors the court is to consider.”

Paris-Sheldon cites no authority, however, and we find none, requiring a trial court to make

explicit findings in support of its decision to deny a motion for substitute counsel. All Torres

requires is for the court to “inquire [on the record] as to the basis of a defendant’s request,”

and, if necessary, conduct a hearing to determine whether substitution is proper. Torres, 208



                                                6
Ariz. 340, ¶ 7-8, 93 P.3d at 1059. We find nothing improper in the procedure the court

followed here; it explored the basis of Paris-Sheldon’s reasons supporting her motion for new

counsel and, albeit informally, conducted a hearing to evaluate those reasons by questioning

both her and her attorney. Paris-Sheldon does not explain what other pertinent evidence or

information would have come to light had the court conducted a more formal or extensive

hearing.

¶12           Paris-Sheldon also contends the trial court’s inquiry revealed evidence

demonstrating “a breakdown of communication and an irreconcilable conflict . . . between

[Paris-Sheldon] and her appointed counsel.” “[W]hen there is a complete breakdown in

communication or an irreconcilable conflict between a defendant and his appointed counsel,

that defendant’s Sixth Amendment right to counsel has been violated.” Id. ¶ 6. “The types

of communication breakdowns that constitute ‘total breakdowns’ defy easy definition.”

United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002). “As a general matter, however,

we believe that to prove a total breakdown in communication, a defendant must put forth

evidence of a severe and pervasive conflict with his attorney or evidence that he had such

minimal contact with the attorney that meaningful communication was not possible.” Id.

¶13           When a trial court encounters a factual dispute in conducting the Torres

inquiry, as the court did here, the court must resolve it. And we must defer to that resolution

so long as the record supports it. Cf. State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307

(App. 2000) (when reviewing motion to suppress evidence, “[w]e defer to the trial court’s



                                              7
factual findings that are supported by the record and not clearly erroneous”). As we noted,

Paris-Sheldon’s attorney denied he had misled her about the strength of her defense and

stated he was adequately prepared for trial. These avowals support the trial court’s apparent

determination that Paris-Sheldon’s attorney had not misled her or failed to investigate the

case and prepare for trial.

¶14           Paris-Sheldon also apparently asserts she was entitled to a new attorney

because she had lost trust in her appointed counsel. We, however, do not agree a loss of

trust, without more, requires a trial court to appoint new counsel. See Thomas v. Wainwright,

767 F.2d 738, 742 (11th Cir. 1985) (“A defendant’s general loss of confidence or trust in his

counsel, standing alone, is not sufficient [to require the appointment of new counsel].”). No

doubt many criminal defendants mistrust their attorneys. And, even if Paris-Sheldon and her

attorney had miscommunicated about the strength of her defense, that is not a complete

breakdown in communication sufficient to deprive her of her right to counsel.1 See Lott, 310

F.3d at 1249. Accordingly, the trial court did not abuse its discretion in resolving the factual

dispute between Paris-Sheldon and her attorney and determining she had failed to show an

irreconcilable conflict or complete breakdown in communication between her and defense

counsel. See Moody, 192 Ariz. 505, ¶ 11, 968 P.2d at 580.




       1
        We do not address what effect, if any, that asserted miscommunication may have on
any future ineffective assistance of counsel claim Paris-Sheldon may assert. As Paris-
Sheldon correctly notes, such claims cannot be raised on direct appeal. State v. Spreitz, 202
Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002).

                                               8
¶15           Paris-Sheldon next argues the trial court’s ruling was improper because it

“questioned defense counsel as to the veracity of [Paris-Sheldon’s] statements, thus violating

the attorney-client privilege.” We fail to see how a trial court can comply with our supreme

court’s instructions in Torres, particularly where a defendant asserts his or her attorney has

been dishonest, without some inquiry into confidential matters.2 Paris-Sheldon’s assertion

her attorney had lied to her and failed to properly investigate her case clearly “question[ed]

the competency and reputation of the attorney who represented [her].” State v. Cuffle, 171

Ariz. 49, 52, 828 P.2d 773, 776 (1992) (finding attorney-client privilege waived where

ineffective assistance of counsel claimed). Therefore, we agree with the state that Paris-

Sheldon cannot “use the attorney-client privilege as a shield to block inquiry into an issue

that she raised.” See Alexander v. Superior Court, 141 Ariz. 157, 163, 685 P.2d 1309, 1315

(1984) (“If the client himself does not treat the particular communication as privileged, that

communication will not be recognized as a confidence.”).

¶16           Paris-Sheldon also contends, relying on Maricopa County Public Defender’s

Office v. Superior Court, 187 Ariz. 162, 927 P.2d 822 (App. 1996), that a trial court must

determine whether a defendant’s motion for substitute counsel is proper without “[i]nquiry

into the area of confidential communications.” That case, however, addressed an attorney’s




       2
         If the trial court determines it must make a detailed inquiry into confidential
communications between a defendant and his or her attorney, it may need to conduct that
portion of the hearing when the state is not present. Paris-Sheldon does not argue, however,
that the state’s presence during the court’s inquiry prejudiced her.

                                              9
motion to withdraw from a case, not a defendant’s motion for substitute counsel based, in

part, on counsel’s asserted representations. Id. at 164, 927 P.2d at 824. There, Division One

of this court held a trial court must give “great weight” to an attorney’s “avowal of an ethical

conflict requiring withdrawal” because “‘[a]ttorneys are officers of the court, and when they

address the judge solemnly upon a matter before the court, their declarations are virtually

made under oath.’” Id. at 166, 927 P.2d at 826, quoting Holloway v. Arkansas, 435 U.S. 475,

486, 98 S. Ct. 1173, 1179 (1978) (internal quotations omitted).              Of course, these

considerations do not apply to criminal defendants. Moreover, our supreme court did not

suggest in Torres that a trial court must take a defendant seeking new counsel at his or her

word; it instead requires the court to make an inquiry and, if necessary, resolve any factual

dispute.

¶17           Additionally, Paris-Sheldon reasons the trial court’s inquiry placed her attorney

“in a position adverse to [her,]” thereby creating an “irreconcilable conflict” requiring

substitution of counsel. She relies on cases from other jurisdictions holding a defendant is

entitled to new counsel when his or her attorney takes an adverse position concerning a

motion to withdraw a guilty plea, or at sentencing. See People v. Lawrence, 812 N.Y.S.2d

199 (N.Y. App. Div. 2006); Mattia v. State, 907 So.2d 683 (Fla. Dist. Ct. App. 2005); Garcia

v. State, 846 So. 2d 660 (Fla. Dist. Ct. App. 2003); People v. Caccavale, 760 N.Y.S.2d 210

(N.Y. App. Div. 2003); Gunn v. State, 841 So. 2d 629 (Fla. Dist. Ct. App. 2003). These

cases, however, only address the effectiveness of counsel at the same proceeding where the



                                              10
defendant and his or her counsel were at odds, not whether such a conflict necessarily renders

counsel ineffective in subsequent proceedings. We reject the notion that the factual dispute

between Paris-Sheldon and her attorney about her motion for substitute counsel requires that

she be granted a new trial; the mere fact that counsel and client disagreed about a single

communication does not demonstrate an irreconcilable conflict or lack of communication

sufficient to deprive her of her right to counsel. Moreover, by requiring the inquiry the trial

court conducted, our supreme court in Torres could not have intended for that inquiry to

create the need for substitute counsel where it did not previously exist, unless the inquiry

itself was particularly acrimonious.

¶18           In a related argument, Paris-Sheldon asserts the “denial of conflict free counsel

at the hearing on [her] motion to substitute counsel requires that the case be remanded for a

hearing at which new counsel should be appointed.” She relies primarily on United States

v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987). There, the defendant’s attorney admitted he

had stopped working on his client’s case, was unprepared to proceed, id. at 1507-08, and had

expressed hostility toward his client, id. at 1510. Thus, the Ninth Circuit Court of Appeals

concluded the attorney “had taken an adversary and antagonistic position on a matter

concerning his client’s right to counsel and to prepare for trial,” and held “the district court

should have suspended the proceedings and appointed an attorney for the defendant at the

competency of counsel hearing.” Id. at 1511.




                                              11
¶19           Although the Ninth Circuit in Wadsworth stated, “[t]here can be no question

that th[ose] proceedings were critical,” id. at 1510, it confined its determination to the

“unusual circumstances of th[e] case.” Id. at 1511. In contrast, Paris-Sheldon’s attorney

avowed he was prepared for trial and expressed no animosity toward his client or

unwillingness to proceed as her attorney. Moreover, Paris-Sheldon does not articulate how

an appointed attorney could have assisted her at the hearing. Accordingly, we conclude the

trial court did not err by failing to appoint Paris-Sheldon new counsel to advise her during

the hearing on her motion for substitute counsel.

Dismissal Without Prejudice in CR-20033007

¶20           Paris-Sheldon raises in this appeal the propriety of the trial court’s grant of the

state’s motion to dismiss without prejudice the charges in CR-20033007. As the state

correctly points out,we lack jurisdiction to address this issue. See State v. Alvarez, 210 Ariz.

24, ¶ 23, 107 P.3d 350, 356 (App. 2005), vacated in part on other grounds by 213 Ariz. 467,

143 P.3d 668 (App. 2006). “Only the convictions in [CR-20041301] are properly before us.”

Id.

¶21           In this case, Paris-Sheldon filed a motion to dismiss, arguing the charges of

attempted murder and disturbing the peace should be dismissed with prejudice because the

state previously obtained the dismissal in CR-20033007 “solely ‘to avoid the provisions of

Rule 8, [Ariz. R. Crim. P., 16A A.R.S.]’” in violation of Rule 16.6(a), Ariz. R. Crim. P., 16A

A.R.S. On appeal, she argues that, because the dismissal without prejudice in CR-20033007


                                              12
“was based upon legal error . . . the subsequent motion to dismiss the re-filed counts with

prejudice should have been granted.”

¶22           The state, relying on State v. Lujan, 136 Ariz. 326, 666 P.2d 71 (1983), argues

Paris-Sheldon has waived this claim because she failed to obtain a ruling from the trial court

on her motion to dismiss. As we noted above, the trial court declined to rule on the motion

but nevertheless permitted the trial to proceed, thereby implicitly denying the motion.

Because Paris-Sheldon made the court aware she had not abandoned her motion to dismiss

and requested the court rule on it, she has not waived this issue on appeal. See id. at 328, 666

P.2d at 73; see also State v. Deschamps, 105 Ariz. 530, 533, 468 P.2d 383, 386 (1970)

(“[T]he trial court must be given the opportunity to rule on the issue and correct possible

errors . . . before any assignments of error will be considered on appeal.”); State v. West, 173

Ariz. 602, 611, 845 P.2d 1097, 1106 (App. 1992) (addressing “implicit denial of the state’s

motion to dismiss”).

¶23           Paris-Sheldon waited eight months after the indictment was issued in this case

to file her motion to dismiss and provides no explanation for this delay. Moreover, the

proper method to raise the issue was through a motion for reconsideration or petition for

special action filed in CR-20033007, not by a motion to dismiss filed in a different case.3

See, e.g., Ariz. R. Crim. P. 16.1(d) (“Except for good cause, or as otherwise provided by


       3
         Indeed, it could be fairly argued Paris-Sheldon failed to raise this issue before the
trial court in CR-20033007. She asserted there only that she had “been in custody for a long
time” and there was no reason the state could not go forward with its charges.

                                              13
these rules, an issue previously determined by the court shall not be reconsidered.”); Alvarez,

210 Ariz. 24, ¶ 23, 107 P.3d at 356 (“[A]ppropriate avenue of review [of an order of

dismissal without prejudice] is a petition for special action.”); see also Duron v. Fleischman,

156 Ariz. 189, 191, 751 P.2d 39, 41 (App. 1988) (“An order of dismissal without prejudice

may not be appealed by a defendant.”).4 Rule 16.6(a) does not require a trial court to dismiss

charges with prejudice if it finds the purpose of the state’s motion is to avoid the provisions

of Rule 8. Indeed, a court may only dismiss with prejudice if “the interests of justice” require

it. Ariz. R. Crim. P. 16.6(d). Instead, if the court concludes the state is attempting to avoid

Rule 8, the court must deny the motion to dismiss altogether. See Ariz. R. Crim. P. 16.6(A)

(“The court, on motion of the prosecutor showing good cause therefor, may order that a

prosecution be dismissed at any time upon finding that the purpose of the dismissal is not to

avoid the provisions of Rule 8.”).

¶24           The situation before us is analogous to those in which courts have applied the

invited error doctrine. “The purpose of the doctrine is to prevent a party from ‘inject[ing]

error in the record and then profit[ing] from it on appeal.’” State v. Logan, 200 Ariz. 564,

¶ 11, 30 P.3d 631, 633 (2001), quoting State v. Tassler, 159 Ariz. 183, 185, 765 P.2d 1007,


       4
        Paris-Sheldon reasons Duron and Alvarez do not control because those cases “did not
in any way state that the defendant could not have waited until the charges were refiled and
then moved to dismiss them under the new cause number.” As we explain, however, that
procedure was improper. For the same reason, we do not address Paris-Sheldon’s argument
that the grant of the state’s motion to dismiss is an appealable order in light of this court’s
decision in State v. Felix, 214 Ariz. 110, 149 P.3d 488 (App. 2006) (declining to require
interlocutory double jeopardy claim be brought by special action).

                                              14
1009 (App. 1988). Although Paris-Sheldon did not directly cause the error she now asserts,

her failure to seek review or reconsideration until now prevented the matter from being

properly addressed. Had Paris-Sheldon filed a timely motion for reconsideration or petition

for special action, the reviewing court could have provided her, if appropriate, the relief Rule

16.6(a) contemplates—denial of the state’s motion to dismiss. By instead waiting eight

months after the second indictment issued to assert the previous dismissal had been

erroneous,5 Paris-Sheldon effectively prevented Rule 16.6(a) from being applied as our

supreme court intended.6 Thus, because Paris-Sheldon’s filing a motion to dismiss in the

second case was not the correct method by which to challenge the grant of the state’s motion

to dismiss without prejudice in the first case, the trial court did not err by implicitly denying

it.



       5
        Moreover, “a defendant may waive speedy trial rights by not objecting to the denial
of speedy trial in a timely manner.” State v. Spreitz, 190 Ariz. 129, 138, 945 P.2d 1260, 1269
(1997); cf. State v. Vasko, 193 Ariz. 142, ¶ 30, 971 P.2d 189, 195-96 (App. 1998) (defendant
not entitled to dismissal for Rule 8 violation absent showing of prejudice). It follows that a
defendant may waive any argument Rule 16.6(a) was not properly complied with by failing
to promptly seek review of the trial court’s ruling.
       6
        Paris-Sheldon, relying on Cornell v. Superior Court, 160 Ariz. 1, 770 P.2d 305
(1989), argues a trial court is required to dismiss charges with prejudice if the state fails to
meet the requirements of Rule 16.6(a), Ariz. R. Crim. P., 16A A.R.S. Cornell, however,
addressed dismissals by the state following egregious violations of Rule 8, Ariz. R. Crim. P.,
16A A.R.S. Cornell, 160 Ariz. at 2, 770 P.2d at 306. Paris-Sheldon does not assert her
Rule 8 speedy trial rights were violated by the dismissal of the charges in CR-20033007. See
Godoy v. Hantman, 205 Ariz. 104, ¶ 7, 67 P.3d 700, 702 (2003) (“Arizona courts consistently
hold that time limits for purposes of the right to a speedy trial begin to run anew when a
grand jury reindicts a defendant following the dismissal of an earlier action against the
defendant.”).

                                               15
Jury Selection

¶25           During jury selection, after the parties had exercised their allocated peremptory

challenges pursuant to Rule 18.4(c), Ariz. R. Crim. P., 17 A.R.S., fourteen jurors were

impaneled and both parties approved the panel. Before the jury was impaneled, the trial

court asked the jurors if any had scheduling conflicts “that suggest you cannot be here all day

Wednesday, Thursday, and Friday.” After closing arguments, the court, with the agreement

of the parties, designated an alternate juror. Paris-Sheldon then stated, “we’ve impaneled

essentially a 12-person jury,” and requested the court to “change . . . to a 12-person jury.”

The parties agreed only an eight-person jury was required. See A.R.S. § 21-102(B). The

court decided, over Paris-Sheldon’s objection, that “it’s an eight-person jury by law, and

based on a miscalculation by the Court and counsel I’m not inclined to let four more people

sit on the case.” The court then, again over Paris-Sheldon’s objection, excused two jurors

because they could not return the following Monday for further deliberations. Three

alternates were then selected by lot.

¶26           Paris-Sheldon argues that, by “changing the number of jurors the parties had

anticipated hearing the case” and “bifurcat[ing] voir dire” by “ask[ing] hardship questions

of the jurors after the parties had exercised their peremptory challenges,” the trial court

interfered with her right to peremptory challenges.7       “Although the right to exercise


       7
       When objecting at trial, Paris-Sheldon stated she did not “think it[] [was] unlawful
to impanel a 12-person jury even if the imposing sentence is less than 30 years” and argued
she “might have had a different strategy” in exercising her peremptory challenges had “[the

                                              16
peremptory challenges is not protected by either the federal or the state constitution, such

challenges have long been viewed as one means to assure the selection of a qualified and

unbiased jury.” State ex rel. Romley v. Superior Court, 181 Ariz. 271, 274, 889 P.2d 629,

632 (App. 1995). “We regard the right as ‘a substantial rather than a mere procedural or

technical right [that] should be fully enforced as an aid in securing an impartial jury.’” Id.,

quoting State v. Thompson, 68 Ariz. 386, 390, 206 P.2d 1037, 1039 (1949).

¶27           It was not error, however, for the trial court to reduce the jury to eight

members. Section 21-102(B) states that, in cases where the authorized sentence is less than

thirty years imprisonment, a jury “shall consist of eight persons.” (Emphasis added.) A trial

with a larger panel is not permitted. Moreover, we cannot ascertain how this necessary

reduction interfered with Paris-Sheldon’s right to exercise her peremptory challenges. She

asserts only that a “different” jury tried her than the one she participated in selecting. A

defendant, however, “‘is not entitled to be tried by any particular jury, but merely by one

which is fair and impartial.’” State v. Eisenlord, 137 Ariz. 385, 392, 670 P.2d 1209, 1216

(App. 1983), quoting Thompson, 68 Ariz. at 391, 206 P.2d at 1040.



parties] not been heading towards 12 rather than 8.” The state asserts Paris-Sheldon’s
“nebulous general objection was insufficient to preserve th[is] issue on appeal.” We
disagree. The fact that a defendant qualifies his or her objection does not mean the issue has
been waived on appeal. Paris-Sheldon’s objections gave the trial court “the opportunity to
rule on the issue and correct possible errors,” and thus were sufficient to preserve the issue.
State v. Deschamps, 105 Ariz. 530, 533, 468 P.2d 383, 386 (1970); see also State v.
Vanderlinden, 111 Ariz. 378, 380, 530 P.2d 1107, 1109 (1975) (“No matter how inartfully
the defense counsel may be said to have raised his point, it was clear that he was calling the
court’s attention to a serious error.”).

                                              17
¶28           The Louisiana Supreme Court reached a similar conclusion in State v. Mosley,

425 So.2d 764 (La. 1983). There, a twelve-person jury had been impaneled when only six

were permitted. Id. at 765-66; see also La. Code Crim. Proc. Ann. art. 782(A) (2007)

(“Cases in which the punishment may be confinement at hard labor shall be tried by a jury

composed of six jurors.”) (emphasis added). After some evidence was presented to the jury,

the trial court excused six of the jurors over the defendant’s objection. Id. The Louisiana

Supreme Court concluded there was no error because voir dire had been proper and the

defendant had approved the jurors before trial began. Id. at 766. The court also rejected

“defense counsel’s argument that he may have conducted his voir dire differently if the judge

and counsel had realized initially that the case was to be tried before a six-person jury,”

stating, although the argument had “some theoretical substance,” the defendant had not

exhausted all of his peremptory challenges and, in any event, was not “entitled to any

particular juror.” Id. Similarly, here, Paris-Sheldon passed the jury panel, and nothing in the

record suggests voir dire was incomplete or improper.

¶29           Nor was it error for the trial court to excuse two jurors for cause after closing

arguments. It is not uncommon for a court to excuse a juror after a trial has begun; a variety

of personal or economic hardships might arise during a trial. Cf. Ariz. R. Crim. P. 18.4(b)

(“A challenge for cause may be made at any time.”); Ariz. R. Crim. P. 18.5(h) (deliberating

juror may be “excused due to inability or disqualification to perform required duties”). Faced

with the need to reduce the jury panel to its statutorily required size, and with the possibility



                                               18
deliberations could continue into the following week, the court chose an appropriate solution.

This procedure could not have interfered with Paris-Sheldon’s use of her peremptory

challenges because the record does not suggest there was any risk apparent to the court

during jury selection that deliberations might continue into the following week. Therefore,

there is no possibility Paris-Sheldon used a peremptory challenge on a juror who should have

been excused for cause at the time the jury was selected.

¶30           Indeed, although the trial court did not dismiss the two jurors “by lot,” what

occurred here is otherwise indistinguishable from a trial court’s designation of alternate

jurors. See Ariz. R. Crim. P. 18.5(h). Paris-Sheldon neither argues the trial court’s method

of excusing jurors resulted in a jury panel that was not impartial nor suggests that the panel

was biased. See Eisenlord, 137 Ariz. at 392, 670 P.2d at 1216. Moreover, the Rules of

Criminal Procedure do not mandate any specific number of alternate jurors. See Ariz. R.

Crim. P. 18.5(b).

¶31           The case Paris-Sheldon primarily relies on, State v. Tinnes, 877 A.2d 313 (N.J.

Super. Ct. App. Div. 2005), is readily distinguishable. There, the trial court conducted

further voir dire immediately after the parties exercised their peremptory challenges and

excused several jurors because of scheduling conflicts. Id. at 326. The New Jersey appellate

court concluded “the integrity of the selection process was violated,” id. at 330, because it

was possible the defendant had used a peremptory challenge on a juror who should have been

excused for cause. Id. at 326, 326 n.4. Unlike in the case before us, however, there was no



                                             19
apparent reason for the trial court in Tinnes to conduct further voir dire after the parties had

exercised their challenges, rather than before.      Moreover, the mere possibility that a

defendant used a peremptory challenge on a juror who should have been excused for cause

is not sufficient to show prejudice. See State v. Hickman, 205 Ariz. 192, ¶ 28, 68 P.3d 418,

424 (2003) (defendant must show prejudice when trial court erroneously fails to excuse juror

for cause and defendant uses peremptory challenge to cure error). For the reasons stated

above, we conclude the trial court’s reduction of Paris-Sheldon’s jury to the number of jurors

prescribed by law and the procedure it used to do so were not erroneous.

Motion for Judgment of Acquittal

¶32           Lastly, Paris-Sheldon contends the trial court erroneously denied her motion

for a judgment of acquittal on the charge of disorderly conduct as to Hyatt, made pursuant

to Rule 20, Ariz. R. Crim. P. “We review the denial of a motion for a judgment of acquittal

for an abuse of discretion” and will reverse only if there is “‘a complete absence of probative

facts to support a conviction.’” Alvarez, 210 Ariz. 24, ¶ 10, 107 P.3d at 353, quoting State

v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). “If reasonable minds can differ on

the inferences to be drawn from the evidence, a trial court has no discretion to enter a

judgment of acquittal and must submit the case to the jury.” Id.

¶33           The state indicted Paris-Sheldon under A.R.S. § 13-2904(A)(6), which states:

“A person commits disorderly conduct if, with intent to disturb the peace or quiet of a

neighborhood, family or person, or with knowledge of doing so, such person . . . [r]ecklessly



                                              20
handles, displays or discharges a deadly weapon or dangerous instrument.” Paris-Sheldon

asserts the evidence was insufficient that she “knew . . . Hyatt would be able to hear the

firing of the weapon in the back trailer from his location at the front of the property.” See

State v. Burdick, 211 Ariz. 583, ¶ 8, 125 P.3d 1039, 1041 (2005) (“[W]hen a defendant is

charged with disorderly conduct for disturbing the peace of a particular person, the state is

required to prove that the defendant knowingly disturbed the victim’s peace. . . .”). She

reasons there was no evidence “indicat[ing] the distance between [Hyatt’s trailer and

Love’s],” nor that she “had reason to experience hearing a gunshot . . . coming from one

trailer when she was in the other trailer.”

¶34           Palmer testified Love’s trailer was “right behind” Hyatt’s “on the same

property.” This testimony, together with evidence that Paris-Sheldon lived for some time in

Love’s trailer, supports the inference the trailers were close enough together for Paris-

Sheldon to know an occupant of the neighboring trailer would hear the revolver’s report

when she fired it. The record does not suggest there was any significant distance between

the trailers or the presence of any obstruction that might have blocked the sound. And Hyatt

testified that, when he heard the gunshot, he initially believed “someone had slammed the

. . . door” of Love’s trailer. A jury could infer from this evidence that, if the trailers were

close enough for an occupant of one to hear a door slammed in the other, Paris-Sheldon

would know an occupant of the neighboring trailer could hear a gunshot. Moreover, the

evidence established Paris-Sheldon was intimately familiar with firearms, which supports the



                                              21
inference Paris-Sheldon would know the sound her revolver made and would also know that,

when she fired it, that sound would be heard in the neighboring trailer. Accordingly, the trial

court did not abuse its discretion by denying Paris-Sheldon’s motion for a judgment of

acquittal. See Alvarez, 210 Ariz. 24, ¶ 10, 107 P.3d at 353.

                                         Disposition

¶35           We affirm Paris-Sheldon’s convictions and sentences.




                                               J. WILLIAM BRAMMER, JR., Judge

CONCURRING:




PETER J. ECKERSTROM, Presiding Judge




PHILIP G. ESPINOSA, Judge




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