                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                          Respondent,

                               v.

                    PHILLIP GREGORY SPEERS,
                           Petitioner.

                   No. 2 CA-CR 2015-0315-PR
                    Filed November 2, 2015


   Petition for Review from the Superior Court in Yuma County
                      No. S1400CR200000472
           The Honorable Christopher T. Whitten, Judge

       REVIEW GRANTED; RELIEF GRANTED IN PART


                           COUNSEL

Jon R. Smith, Yuma County Attorney, Yuma
Counsel for Respondent

Law Office of Harley Kurlander, Tucson
By Harley Kurlander
Counsel for Petitioner
                           STATE v. SPEERS
                          Opinion of the Court



                              OPINION

Judge Espinosa authored the opinion of the Court, in which Chief
Judge Eckerstrom and Judge Brammer1 concurred.


E S P I N O S A, Judge:

¶1            Petitioner Phillip Gregory Speers seeks review of the
trial court’s order summarily denying his petition for post-
conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., alleging,
inter alia, claims of ineffective assistance of counsel. We grant
review and, for the following reasons, we vacate the court’s order in
part and remand the case for an evidentiary hearing on two of
Speers’s claims.

                    Relevant Procedural History

¶2          This post-conviction proceeding relates to Speers’s
second jury trial in this cause for charges brought against him in
2000. He was convicted in 2003 of four counts of child molestation
and one count of sexual conduct with a minor involving four girls
who had been students in his second-grade class. The trial court
sentenced him to prison terms totaling seventy-one years. We
reversed Speers’s convictions on appeal, concluding the court had
erred in “precluding expert testimony regarding suggestive
interview techniques and its influence on children’s memories” and
that the error “[could not] be deemed harmless.” State v. Speers,
1 CA-CR 03-0812, ¶¶ 8-9, 34 (memorandum decision filed Feb. 24,
2005).

¶3           After the case was remanded in 2005, Speers waived his
right to counsel and began representing himself, with the assistance
of advisory counsel Kristi Riggins. On the seventh day of trial, the

      1 The   Hon. J. William Brammer, Jr., a retired judge of this
court, is called back to active duty to serve on this case pursuant to
orders of this court and our supreme court.

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                         Opinion of the Court

court granted Speers’s request to appoint Riggins to represent him
for the remainder of the proceedings.

¶4          The jury began deliberating on the fourteenth day of
trial. During deliberations, the foreperson sent the trial court a note
reporting that one of the jurors had asked an adult relative, who had
been molested as a child, about the clarity of her memories of those
events and that he had related her responses to other jurors. After
questioning each of the jurors, the court denied Riggins’s request for
a mistrial; excused juror eleven, who reportedly had made the
statements about his relative; recalled an alternate juror to service;
and directed the jury to begin deliberations anew.2

¶5           On the nineteenth day of trial, the jury found Speers
guilty of molesting M.G. and M.A., as alleged in counts three and
five of the indictment, and acquitted him of the other charges.
Riggins filed a motion for new trial raising numerous issues,
including a claim that juror misconduct had warranted a mistrial.
The trial court denied the motion and sentenced Speers to two
consecutive seventeen-year prison terms.             Speers represented
himself on appeal, and this court affirmed his convictions and
sentences, rejecting, inter alia, his claim that he had been entitled to a
mistrial based on juror eleven’s misconduct. State v. Speers, 1 CA-CR
07-0796 (memorandum decision filed June 1, 2010).

¶6           In his Rule 32 petition below, Speers alleged Riggins, in
her role as trial counsel, had rendered ineffective assistance in the
following ways: (1) abandoning a proposed jury instruction on
contributing to the delinquency of a minor as a lesser-included
offense of molestation; (2) interfering with his right to self-
representation by failing to inform him, before he agreed to waive
his right and be represented by her, of her intent to withdraw his
request for the instruction; and (3) failing to develop a record of
alleged misconduct by another juror, juror two, thereby precluding
him from raising the issue on appeal. He also claimed, as a newly

      2 The   trial court empaneled sixteen jurors, including four
alternates. When identifying a juror by number in this decision, we
refer to the number originally assigned to each juror.


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                         STATE v. SPEERS
                        Opinion of the Court

discovered material fact entitling him to a new trial, see Ariz. R.
Crim. P. 32.1(e), that juror thirteen wrongly failed to disclose during
voir dire that he had worked for the Yuma County Detention Center
when Speers was incarcerated there during his first trial. With
respect to this last claim, he argued, in the alternative, that
previously assigned Rule 32 counsel 3 had rendered ineffective
assistance in failing to investigate juror thirteen’s alleged
misconduct in a timely manner.

¶7            Speers supported his petition with his own affidavits
and the affidavits of others, including juror two and C.W., an
apparent friend who averred she had voluntarily assisted Speers
during his trials with such activities as “typing, phone calls, [and]
finding case law.” He also submitted transcripts of recorded
interviews with jurors eleven and thirteen, supported by an affidavit
of current counsel regarding reasons affidavits from these jurors
were unavailable. He additionally provided the affidavit of attorney
Harold L. Higgins Jr., who averred he had forty years’ experience in
criminal law and opined that Riggins’s performance “fell below
community standards and was ineffective under prevailing case
law” with respect to the following two issues: (1) her failure to
request a lesser-included offense instruction that “was appropriate
both factually and legally” and relevant to “the counts on which
guilty verdicts were returned” and (2) her failure to present the trial
court with extrinsic evidence, “by affidavit or other verifying
documentation,” of juror two’s alleged jury misconduct, thereby
“fail[ing] to preserve the issue for direct appellate review.”

¶8           The trial court summarily denied the petition, finding
Speers failed to state a colorable claim for relief. In addition, the
court found Speers’s ineffective assistance claims precluded by his
failure to raise them on direct appeal. This petition for review
followed.




      3Speerswas appointed several different counsel in this Rule 32
proceeding before his current counsel filed a notice of substitution of
counsel.


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                         Opinion of the Court

                              Discussion

¶9            A trial court must summarily dismiss a Rule 32 petition
if all claims are precluded or if, with respect to non-precluded
claims, it finds no “material issue of fact or law exists which would
entitle the defendant to relief.” Ariz. R. Crim. P. 32.6(c). But a
defendant is entitled to a hearing if a non-precluded claim for post-
conviction relief “is colorable.” State v. Bennett, 213 Ariz. 562, ¶ 17,
146 P.3d 63, 67 (2006). A colorable claim is one that has “the
appearance of validity,” State v. Boldrey, 176 Ariz. 378, 380, 861 P.2d
663, 665 (App. 1993)—“one that, if the allegations are true, might
have changed the outcome,” State v. Runningeagle, 176 Ariz. 59, 63,
859 P.2d 169, 173 (1993).

¶10          We review a summary denial of post-conviction relief
for an abuse of discretion, which may include an error of law. See
State v. Petty, 225 Ariz. 369, ¶ 7, 238 P.3d 637, 639 (App. 2010).
Although a defendant’s entitlement to an evidentiary hearing “is, to
some extent, a discretionary decision for the trial court,” that court
“must be mindful . . . that when doubt exists, ‘a hearing should be
held to allow the defendant to raise the relevant issues, to resolve
the matter, and to make a record for review.’” State v. D’Ambrosio,
156 Ariz. 71, 73, 750 P.2d 14, 16 (1988), quoting State v. Schrock, 149
Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). We review de novo issues
of law, such as whether a claim is precluded by waiver pursuant to
Rule 32.2(a)(3). See Petty, 225 Ariz. 369, ¶ 7, 238 P.3d at 639; see also
State v. Denz, 232 Ariz. 441, ¶ 6, 306 P.3d 98, 101 (App. 2013)
(performance and prejudice components of ineffective assistance
claim present mixed questions of fact and law).

¶11           On review, Speers argues the trial court abused its
discretion in concluding he failed to state colorable claims and in
determining his ineffective assistance claims were precluded by his
failure to raise them on appeal. As addressed below, we agree with
Speers that his claims are not precluded. We also conclude he was
entitled to a hearing on his claims that counsel was ineffective in
abandoning a proposed jury instruction and in failing to develop a
record of alleged misconduct by juror two. But we find no abuse of
discretion in the court’s summary denial of Speers’s claims alleging



                                   5
                           STATE v. SPEERS
                          Opinion of the Court

counsel’s impairment of his right of self-representation and newly
discovered evidence of misrepresentations by juror thirteen.

Ineffective Assistance of Counsel

¶12          “To state a colorable claim of ineffective assistance of
counsel, a defendant must show both that counsel’s performance fell
below objectively reasonable standards and that this deficiency
prejudiced the defendant.” Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at
68, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). To
prevail on such a claim, a defendant must overcome the “strong
presumption” that counsel performed “within the wide range of
reasonable professional assistance” by demonstrating that counsel’s
conduct fell below “prevailing professional norms.” Strickland, 466
U.S. at 687-89; see also State v. Febles, 210 Ariz. 589, ¶ 20, 115 P.3d 629,
636 (App. 2005); State v. Herrera, 183 Ariz. 642, 647, 905 P.2d 1377,
1382 (App. 1995). Thus, he is “required to show counsel’s decisions
were not tactical in nature, but were instead the result of ‘ineptitude,
inexperience or lack of preparation.’” Denz, 232 Ariz. 441, ¶ 7, 306
P.3d at 101, quoting State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673,
677 (1984).

¶13           A defendant establishes prejudice resulting from such
deficient performance “if []he can show a ‘reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’”
Bennett, 213 Ariz. 562, ¶ 25, 146 P.3d at 69, quoting Strickland, 466 U.S.
at 694; see also Nix v. Whiteside, 475 U.S. 157, 175 (1986) (Strickland’s
prejudice component does not require defendant to establish
attorney’s errors “more likely than not” altered result).

Preclusion

¶14            Rule 32.2(a)(3) precludes relief on a claim that has been
“waived at trial, on appeal, or in any previous collateral
proceeding.” This is Speers’s first Rule 32 proceeding and his first
opportunity to raise claims of ineffective assistance of counsel. See
State ex rel. Thomas v. Rayes, 214 Ariz. 411, ¶ 20, 153 P.3d 1040, 1044
(2007) (defendant may bring ineffective assistance claims “only in a


                                     6
                          STATE v. SPEERS
                         Opinion of the Court

Rule 32 post-conviction proceeding—not before trial, at trial, or on
direct review”). Because Speers was not permitted to raise such
claims on direct appeal, see State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d
525, 527 (2002), they are not precluded by waiver for his failure to do
so. “The preclusion rules exist to prevent multiple post-conviction
reviews, not to prevent review entirely.” State v. Rosales, 205 Ariz.
86, ¶ 12, 66 P.3d 1263, 1267 (App. 2003).

Lesser-Included Offense Instruction

¶15          In its order denying relief, the trial court relied on
Riggins’s affidavit, submitted with the state’s response, to conclude
she had made a reasoned “tactical decision” to withdraw Speers’s
proposed jury instruction on the lesser-included offense of
contributing to the delinquency of a minor.4 The court noted our
supreme court in State v. Lee held “[d]isagreements in trial tactics
will not support a claim of ineffectiveness provided the conduct has
some reasoned basis,” 142 Ariz. 210, 214, 689 P.2d 153, 157 (1984),
and concluded, on that ground, that Speers had failed to state a
colorable claim that counsel performed deficiently.

¶16           We agree that “strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Strickland, 466 U.S. at 690. But in the
context of an ineffective assistance claim, “[s]trategic decisions are
‘conscious, reasonably informed decision[s] made by an attorney
with an eye to benefitting his client.’” Denz, 232 Ariz. 441, ¶ 11, 306
P.3d at 102, quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001)
(first alteration added, second alteration in Denz). Based on
Riggins’s affidavit, her acquiescence in omission of the lesser-
included instruction was not a reasoned choice among strategic
options, designed to benefit her client. See id. Instead, she
maintained her decision was based on her legal conclusion that



      4 Before trial, Speers had submitted his proposed jury
instructions, including the same lesser-included offense instruction
that had been given at his first trial, limited in application to
molestations charged in counts three through five of the indictment.


                                   7
                          STATE v. SPEERS
                         Opinion of the Court

Speers was not entitled to the instruction and her determination that
she could not “make an ethical, good faith argument requesting [it].”

¶17          Specifically, Riggins stated she had been aware of
Speers’s request for the jury instruction and, after she was appointed
to represent him but before final instructions were settled, she
researched whether the instruction “was supported by the law and
the facts presented at trial.” She said her research had “revealed that
[contributing to the delinquency of a minor is] a lesser-included
offense to child molestation, but not if the defense is that the
defendant never inappropriately touched the victim.” According to
Riggins’s affidavit, the trial court brought up Speers’s request when
settling final instructions and said it did not believe the lesser-
included instruction applied; Riggins agreed and did not object to its
omission, “[b]ased on her research and the defense presented at
trial.”

¶18            “[T]rial decisions that appear to be based on counsel’s
beliefs respecting his or her duty to the court rather than his or her
professional assessment of strategic options are . . . subject to judicial
review” in an ineffective assistance claim, and counsel may have
performed deficiently if she was “unreasonably mistaken” about the
law. Lee, 142 Ariz. at 218-19, 689 P.2d at 161-62; see also Hinton v.
Alabama, ___ U.S. ____, ____, 134 S. Ct. 1081, 1089 (2014) (counsel’s
performance may be found deficient based on “inexcusable mistake
of law”). Citing Riggins’s affidavit, Speers argues she relied on an
incorrect legal analysis to the extent she concluded it would have
been “improper under Arizona law to give the lesser charge where
an ‘all or nothing’ defense is posed” and failed to consider evidence
at trial that supported the instruction.

¶19           A trial court must instruct the jury on all offenses
“necessarily included in the offense charged” if asked to do so. Ariz.
R. Crim. P. 23.3. “[A]n offense is ‘necessarily included,’ and so
requires that a jury instruction be given, only when it is lesser
included and the evidence is sufficient to support giving the
instruction.” State v. Wall, 212 Ariz. 1, ¶ 14, 126 P.3d 148, 150 (2006),
quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980)
(emphasis omitted). On direct appeal, we review a court’s omission
of a lesser-included offense instruction that has not been requested

                                    8
                           STATE v. SPEERS
                          Opinion of the Court

for fundamental error. See State v. Fish, 222 Ariz. 109, ¶ 79, 213 P.3d
258, 281 (App. 2009). But a defendant who has withdrawn his
request for a lesser-included instruction has invited error and
forfeited review of the issue on direct appeal. See id. ¶ 80.

¶20          In Wall, decided the year before Speers’s trial, our
supreme court clarified that “evidence in the record can be sufficient
to require a lesser-included offense instruction even when the
defendant employs an all-or-nothing defense,” although, “[a]s a
practical matter, when a defendant asserts an all-or-nothing defense
such as alibi or mistaken identity, there will ‘usually [be] little
evidence on the record to support an instruction on the lesser
included offenses.’” 212 Ariz. 1, ¶¶ 29-30, 126 P.3d at 153, quoting
State v. Caldera, 141 Ariz. 634, 637, 688 P.2d 642, 645 (1984) (first
alteration added, second alteration in Wall). The court further
explained evidence is “sufficient to require a lesser-included offense
instruction if two conditions are met. The jury must be able to find
that (a) the State failed to prove an element of the greater offense
and (b) the evidence is sufficient to support a conviction on the
lesser offense”; in other words, “the evidence must be such that a
rational juror could conclude that the defendant committed only the
lesser offense.” Id. ¶ 18; see also State v. Celaya, 135 Ariz. 248, 252-53,
660 P.2d 849, 853-54 (1983) (instruction warranted when, from
evidence presented, jury could rationally find state failed to prove
disputed element distinguishing greater offense from lesser).

¶21           Our supreme court has long held that contributing to
the delinquency of a child is a lesser-included offense of child
molestation, as Riggins recognized in her affidavit. See State v.
Jerousek, 121 Ariz. 420, 428, 590 P.2d 1366, 1374 (1979); State v. Sutton,
104 Ariz. 317, 318-19, 452 P.2d 110, 111-12 (1969). “A person
commits molestation of a child by intentionally or knowingly
engaging in . . . sexual contact . . . with a child who is under fifteen
years of age,” A.R.S. § 13-1410, with “sexual contact” defined, as
relevant here, as “any direct or indirect touching, fondling or
manipulating of any part of the genitals.” A.R.S. § 13-1401(A)(3). A
person contributes to the delinquency of a child when he “by any
act, causes, encourages or contributes to the . . . delinquency of a
child,” A.R.S. § 13–3613(A), with delinquency defined as “any act


                                    9
                           STATE v. SPEERS
                          Opinion of the Court

that tends to debase or injure the morals, health or welfare of a
child,” A.R.S. § 13–3612(1).5

¶22            As Speers argued below, contributing to a child’s
delinquency is a broadly drawn offense, such that whether “the act
falls within the statutory prohibition is a question for the trier of
fact.” State v. Hixson, 16 Ariz. App. 251, 253, 492 P.2d 747, 749 (1972)
(noting “myriad of acts” might satisfy definition; evidence
defendant “French-kiss[ed]” thirteen-year-old girl and gave her
cigarette sufficient to withstand motion for acquittal); see also A.R.S.
§ 13-3618(A) (providing “[A.R.S.] §§ 13-3612 through 13-3618 shall
be liberally construed in favor of the state . . . to protect children . . .
from the effects of the improper conduct, acts or bad example of any
person which may be calculated to cause, encourage or contribute to
the . . . delinquency of children”); State v. Locks, 94 Ariz. 134, 136, 382
P.2d 241, 242 (1963) (defendant store owner sold minor “‘Girlie’
magazines”); Loveland v. State, 53 Ariz. 131, 132–33, 86 P.2d 942, 942–
43 (1939) (defendant provided minor alcohol).

¶23          With respect to the evidence at issue here, Speers points
out that, although he denied molesting the girls, he did not contest
the state’s evidence that he had admitted engaging in what he

      5 In Sutton, our supreme court determined “contributing to the
delinquency of a minor is a lesser included offense of child
molesting” because “a person who molests a child necessarily
performs an act which ‘tends to debase or injure the morals, health
or welfare of a child.’” 104 Ariz. at 318–19, 452 P.2d at 111–12,
quoting former A.R.S. § 13-821, renumbered as § 13-3612 by 1977
Ariz. Sess. Laws, ch. 142, § 99. This definition has remained
unchanged. See A.R.S. § 13-3612(1). Although whether an offense is
lesser-included “typically requires a close analysis of the elements of
the two relevant offenses,” precedent controls that determination
here. State v. Garcia, 235 Ariz. 627, ¶ 7, 334 P.3d 1286, 1289 (App.
2014); see also State v. Davis, 137 Ariz. 551, 562, 672 P.2d 480, 491
(App. 1983) (because “current definitions of contributing to the
delinquency of a minor and child molesting are identical to the
former definitions of those crimes, . . . Sutton and its progeny are still
applicable”).


                                    10
                          STATE v. SPEERS
                         Opinion of the Court

characterized as “inappropriate” conduct with them, including
kissing, hugging, and “patting some of the students on the bottom.”
Each of the victims named in counts three through five testified she
had been sitting on Speers’s lap when he reached into her jumper
pocket and touched her vagina. The state also elicited testimony
from other school employees that it was “inappropriate” for Speers
to have held second-grade girls on his lap, and the state made a
point, in both initial and rebuttal closing arguments, of mentioning
Speers’s admissions to such inappropriate conduct, as well as the
testimony of the three girls who said they had been molested while
Speers held them on his lap. Speers thus distinguished this case
from State v. Cousin, 136 Ariz. 83, 87, 664 P.2d 233, 237 (App. 1983),
on which the state relies. There, we affirmed a denial of the same
lesser-included instruction, urged based on the defendant’s
admissions of spanking the victims while they were naked, when
the trial court found “no evidence that the spankings occurred at the
times of the molestations.” Id.

¶24          Based on the record before us, including, in particular,
Higgins’s affidavit, we conclude Speers stated a colorable claim that
Riggins performed deficiently in abandoning his request for a jury
instruction on the lesser-included offense of contributing to the
delinquency of a minor.

Alleged Misconduct of Juror Two

¶25             When the trial court was interviewing the jurors
individually about whether they could disregard the extrinsic
information provided by juror eleven, juror sixteen mentioned that
another juror, determined to be juror two, also had commented
“[t]hat she was familiar with similar situations” to those “presented
. . . in court.” The court made no further inquiry, of either that juror
or juror two, regarding the substance of any such comments. In
arguing for a mistrial, Riggins maintained the court’s colloquy
provided an insufficient basis to proceed, “particularly regarding
personal experiences that apparently had been brought into the jury
deliberations,” such as juror sixteen’s mention that juror two had
shared “some personal experience she may have had.” When
Riggins referred to the “inflammatory” “nature of this information,”
the court stopped her to ask, “Because of the—what was the

                                  11
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                        Opinion of the Court

pronoun ‘this’? I didn’t catch—what do you mean ‘this’? Because
this information is so inflammatory. Which . . . information?”
Riggins responded that if juror eleven “was saying what a major
impact emotionally this had on his family” and juror two “shar[ed]
personal experiences of a similar nature,” such “information . . . can
very easily sway a jury considering these very, very difficult issues
in this case.”

¶26          According to juror two’s affidavit, she herself had been
molested as a child and had “reported the molestation,” along with
“the fact that [she] remembered all of the details,” to all members of
the jury. And C.W. stated in her affidavit that she had, with
Riggins’s permission, attempted to interview jurors after the verdicts
were returned, and had told Riggins, before a motion for new trial
was filed, that two jurors told her juror two had said during
deliberations that she remembered the molestation “like it happened
yesterday.”

¶27           In a motion for new trial, Riggins argued the trial court
had erred in denying a mistrial based on juror misconduct.
Although the motion focused on juror eleven’s revelation of his
conversation with a relative, Riggins suggested those statements
reportedly “resulted in a response of Juror #2, who indicated she
had the same experiences regarding abuse or molestation”6 and was
not questioned further. In a footnote to a discussion of juror eleven’s
failure to disclose during voir dire that a family member had been a
victim of a crime, Riggins wrote, “It appears that other trial jurors
may have been similarly misleading during voir dire. For example,
Juror #2 never revealed her prior molestation during voir dire
despite being asked directly about previous victimization.” 7


      6 Although    Riggins attributed this report to juror number
eight, the only such reference during the trial court’s interviews was
juror sixteen’s statement that juror two had commented “[t]hat she
was familiar with similar situations” to those “presented . . . in
court.” See supra ¶ 25.
      7Jurortwo explained in her affidavit that she had not revealed
the information to the trial court when asked if she had been “a

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                         STATE v. SPEERS
                        Opinion of the Court

¶28          In denying Speers’s claim that Riggins was ineffective
in “failing to perfect,” in her motion for a new trial, claims of jury
misconduct and bias by juror two, thus precluding him from raising
the issue on appeal, the trial court wrote,

            [Speers’s] assertion that the issue of juror
            misconduct was not properly preserved for
            appeal is, at best, speculation. The issue
            was not raised by [Speers] on direct appeal,
            nor did the Court of Appeals indicate or
            find that the issue could not be reviewed
            due to lack of a trial court record. Coupled
            with the Court of Appeals’ ability to review
            claims for fundamental error, even when
            an issue is not directly raised, the Court
            finds there is no basis to conclude the issue
            could not have been raised on appeal. The
            unfounded conclusory assertion that Ms.
            Riggins did not make a proper record is
            insufficient to support a finding of
            ineffective assistance of counsel.

¶29          In view of Higgins’s affidavit, we conclude the trial
court abused its discretion in finding Speers failed to state a
colorable claim of deficient performance on this issue. In Higgins’s
opinion, Riggins was “clearly ineffective” in failing to investigate
juror two’s alleged misconduct and in “fail[ing] to preserve the issue
for direct appellate review.” As Higgins suggests, without an
“affidavit or other supporting documentation,” there was no record
evidence to support Riggins’s assertion that juror two had been
molested as a child, and nothing to indicate she had reported her
clear memory of that event to the jury during deliberations. Even
when reviewing for fundamental error, we may only consider error
that “affirmatively appear[s] in the record.” State v. Diaz, 223 Ariz.
358, ¶ 13, 224 P.3d 174, 177 (2010) (appellate court will not reverse
conviction “based on speculation or unsupported inference”).

victim of a crime of any kind” because the incident had never been
reported to the police.


                                 13
                         STATE v. SPEERS
                        Opinion of the Court

Speers has stated a colorable claim that counsel performed
deficiently in this regard.

Prejudice

¶30           In its order, the trial court addressed the issue of
prejudice only briefly, stating Speers had not “set forth any
reasonable theory of prejudice, let alone any legal or factual basis to
support a finding of prejudice,” and, therefore, “failed to
demonstrate that the outcome was unfairly prejudiced by, or would
have been different but for, the allegedly deficient performance of
trial counsel.” Based on Speers’s petition, appendix documents, and
portions of the record cited, we cannot agree. As Speers argued
below, his defense relied on expert testimony “concerning the
suggestive nature of the children’s interviews in generating false
memories” and was “consistent with the children’s memory of being
tickled, having their buttock[s] touched, as well as sitting on
[Speers’s] lap, during the reported acts.” His primary theory of
defense appears to have been that the children had “falsely
supplement[ed] these memories through subtle suggestion from an
outside source.” His suggestion that he was prejudiced by counsel’s
omission of a lesser-included offense instruction and her failure to
investigate and pursue evidence that a juror had proclaimed her
own clear memory of childhood molestation is sufficiently plausible
to entitle him to an evidentiary hearing.

¶31         To the extent Speers has framed the issue of prejudice in
the context of counsel’s failure to preserve these claims for appeal,
however, we cannot agree that the result of his appeal is the proper
focus for assessing prejudice. He is challenging his attorney’s
conduct at his trial, and must show that Riggins’s alleged
unprofessional errors and omissions were sufficiently prejudicial
that they “undermine[d] confidence in the outcome” of that
proceeding. Strickland, 466 U.S. at 694, 696 (stating “ultimate focus
of inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged”).




                                  14
                          STATE v. SPEERS
                         Opinion of the Court

Other Claims

¶32          With respect to Speers’s claim that Riggins
impermissibly interfered with his right of self-representation, we see
no abuse of discretion in the trial court’s ruling. Before appointing
Riggins, the court cautioned Speers that she would be responsible
for his representation going forward and explained that he would
not be permitted to return to self-representation if he thought
Riggins was “doing something wrong.” Speers told the court he
understood. Speers has cited no authority suggesting Riggins
performed deficiently in failing to inform him of her future decision
to abandon his lesser-included jury instruction, and no evidence she
had even considered such a decision when appointed as his counsel.

¶33          Nor did the trial court abuse its discretion in summarily
denying relief based on alleged “newly discovered” evidence of
misconduct by juror thirteen. In addition to issues of due diligence
identified by the court, we conclude the interview with juror
thirteen that Speers submitted below fails to support a colorable
claim that the juror either materially omitted or materially
misrepresented information about his law enforcement experience
and whether he “kn[e]w” Speers.

                              Disposition

¶34           For the foregoing reasons, we grant review and grant
partial relief. The trial court’s order is vacated in part and the case is
remanded for an evidentiary hearing limited to those issues
identified in this decision.




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