                                 IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                   v.

                        CRISPIN GRANADOS,
                             Appellant.

                      No. 2 CA-CR 2013-0206
                       Filed August 5, 2014

    THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
 MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
                      NOT FOR PUBLICATION
       See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.


       Appeal from the Superior Court in Santa Cruz County
                          No. CR10209
               The Honorable James A. Soto, Judge

                            AFFIRMED


                                COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee

Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
                       STATE v. GRANADOS
                        Decision of the Court


                   MEMORANDUM DECISION

Judge Howard authored the decision of the Court, in which Judge
Vásquez and Judge Miller concurred.


H O W A R D, Judge:

¶1            After a jury trial, Crispin Granados was convicted of
kidnapping, second-degree burglary, two counts of sexual assault,
aggravated assault, and aggravated harassment. On appeal, he
argues the trial court deprived him of his right to a full and complete
trial record and erred in failing to strike certain jurors.1 We affirm.

                Factual and Procedural Background

¶2          We view the evidence in the light most favorable to
upholding the convictions. State v. Pena, 233 Ariz. 112, ¶ 2, 309 P.3d
936, 938 (App. 2013). In September 2010, P.L., at the time
approximately seventy-two years old, went outside to feed her dog.
Granados grabbed her, threw her against the wall several times, and
told her that “he was going to suffocate [her] with [his] jacket.”
Granados then took P.L. inside the house and continued hitting her.
He then took P.L. into her bedroom and sexually assaulted her.

¶3          Granados remained in the house for the next two days;
he continually watched P.L. to ensure she did not leave the house,
disconnected her telephones, threatened her, threatened to kidnap
her grandchildren and kill her children if she told anyone about him,
did not allow her to eat, and allowed her to have only one glass of
water. During that time, Granados continued to physically assault
P.L. and sexually assaulted her two more times.



      1 Ina separate, contemporaneously filed, published opinion,
we address two issues that meet the requirements for publication.
See Ariz. R. Sup. Ct. 111(b), (h); see also Ariz. R. Crim. P. 31.26
(providing for partial publication of decision).

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                        STATE v. GRANADOS
                         Decision of the Court

¶4           On the third day, P.L. told Granados she would lift an
injunction against harassment she had obtained against him before
this incident if he allowed her to go to a previously scheduled
doctor’s appointment, and Granados agreed. P.L. met her daughter
at the doctor’s office, told her what had happened, and they
reported it to the police.

¶5          Granados was charged and convicted as noted above.
He was sentenced to aggravated, enhanced, concurrent and
consecutive terms of imprisonment totaling twenty years.

                   Right to a Complete Transcript

¶6            Granados argues the trial judge improperly
“interfer[ed] with the translations of answers by Mr. Granados”
which “deprived [him] of a complete transcript of his trial.”
Granados contends the trial court impermissibly interfered with the
record by sustaining objections during testimony and failing to
ensure that certain statements made by Granados during jury
selection were accurately transcribed into the record. He contends
this interference violated his right to appeal by depriving him of a
complete trial record. See Ariz. Const. art. II, § 24.

¶7           Granados did not make this argument below and
therefore has forfeited review for all but fundamental, prejudicial
error.2 See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607
(2005). A fundamental error is “‘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


      2Granados    contends we should review for “plain error” but
Arizona courts do not apply that concept. State v. Valverde, 220 Ariz.
582, ¶ 9, 208 P.3d 233, 235 (2009) (“Alleged trial court error in
criminal cases may be subject to one of three standards of review:
structural error, harmless error, or fundamental error.”); see also State
v. Henderson, 209 Ariz. 300, n.4, 100 P.3d 911, 916 n.4 (App. 2004)
(explaining similarities between federal concept of plain error and
fundamental error), vacated in part on other grounds by State v.
Henderson, 210 Ariz. 561, 115 P.3d 601 (2005).

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                        STATE v. GRANADOS
                         Decision of the Court

possibly have received a fair trial.’” Id., quoting State v. Hunter, 142
Ariz. 88, 90, 688 P.2d 980, 982 (1984). “To prevail on a claim of
fundamental error, the [defendant] must first show error and then
show that the error is fundamental and prejudicial.” State v.
Edmisten, 220 Ariz. 517, ¶ 11, 207 P.3d 770, 775 (App. 2009).

¶8            Trial transcripts must be “satisfactory to afford
defendant a meaningful right of appeal.” State v. Schackart, 175 Ariz.
494, 499, 858 P.2d 639, 644 (1993); Ariz. Const. art. II, § 24. A record
need not be perfect so long as it is of “‘sufficient completeness for
adequate consideration of the errors assigned.’” Id., quoting State v.
Moore, 108 Ariz. 532, 534, 502 P.2d 1351, 1353 (1972). Even if a trial
record is incomplete, we assume that it supports the judgment
unless there is “‘at least a credible and unmet allegation of reversible
error.’” Id., quoting State v. Masters, 108 Ariz. 189, 192, 494 P.2d 1319,
1322 (1972).

¶9            Additionally, the parties can take steps to reconstruct
the record if parts of it are missing. Ariz. R. Crim. P. 31.8(f), (g), (h).
These steps include the appellant preparing a statement of the
evidence, the parties agreeing to a statement of the record on appeal,
and the trial court resolving any disputes. Id.

¶10          During trial, Granados testified in his defense in
Spanish, and a court interpreter translated his answers into English.
Granados seems to argue that because the court sustained objections
during the interpreter’s recitation of his answers, this court cannot
fully review his testimony because “[p]arts of over 130 answers to
questions during the testimony of Mr. Granados . . . were not
transcribed,” thus depriving the record of the “allegedly offending
answer.”

¶11           Granados further contends the record is incomplete
because several statements he made in Spanish during voir dire on
the first day of trial were not translated into English. On the first
day of trial, before jury selection, the trial court informed Granados
it would give him the opportunity to address the court, but warned
him that if he disrupted the proceedings, he would be removed from
the courtroom. Despite these admonitions, several times throughout
the proceeding, both in and out of the presence of the jury, the
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                       STATE v. GRANADOS
                        Decision of the Court

record states Granados “[m]umbl[ed]” and “interrupt[ed] in
Spanish.” These interruptions were not translated into English.
With each interruption, the court reminded Granados that he would
be afforded the opportunity to address the court, which it provided
several times, and requested that he refrain from interrupting the
proceedings.

¶12         Granados complains the record is incomplete as to his
own statements made in open court and on the record. Yet he did
not undertake any of the available steps to preserve or expand the
record. See Ariz. R. Crim. P. 31.8(f), (h); Ariz. R. Evid. 103(a).
Additionally, nothing in the record suggests that his mumbling
could have been understood, interpreted, and transcribed. And he
was given the opportunity to address the court after several of these
instances and was able to express his concerns on the record.

¶13           Granados has not shown the record is insufficient for
adequate consideration of any credible allegation of reversible error
or not satisfactory to afford him a meaningful right of appeal. See
Schackart, 175 Ariz. at 499, 858 P.2d at 644. Accordingly, Granados
has failed to show any error concerning the record.

¶14          In support of his argument, however, Granados relies
on State v. Hilliard, 133 Ariz. 364, 368, 651 P.2d 892, 896 (App. 1982).
But that case had a distinct procedural background different from
what occurred here. In that case, the trial judge conversed off the
record with a juror in the jury room, outside the presence of the
defendant and his counsel and then failed to inform counsel of the
conversation. Id. We stated that “[t]he most important fact is the
actual physical intrusion of the judge into the jury room during the
course of deliberations.” Id. at 366, 651 P.2d at 894. In this case,
Granados complains about his own statements’ absence from the
record. Accordingly, Hilliard does not support his claim.

¶15          Granados also appears to contend that because the trial
court sustained objections during the English translation of his
testimony and “[m]any of the jurors . . . were Spanish speakers,” this
court cannot review whether any of the Spanish testimony had a
prejudicial impact on those jurors because the Spanish testimony is
absent from the record. The jurors, however, were instructed both
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                        STATE v. GRANADOS
                         Decision of the Court

before and at the end of trial that “[t]he evidence you are to consider
is only that provided through the official court interpreters.
Although some of you may know Spanish, it is important that all
jurors consider the same evidence. Therefore, you must accept the
English interpretation.” And we presume jurors follow their
instructions. State v. Dann, 205 Ariz. 557, ¶ 46, 74 P.3d 231, 244
(2003). Granados did not challenge this instruction below, nor does
he argue it was inadequate here. Consequently, this contention is
without merit.

¶16           Granados additionally appears to argue that because his
impermissible testimony in Spanish during trial was not translated
into the record, the trial court violated its “duty of making sure that
evidence is ultimately provided in English.” As Granados correctly
points out, English is the language of Arizona courts. State v.
Cordova, 109 Ariz. 439, 441, 511 P.2d 621, 623 (1973); see also Ariz.
Const. art. XXVIII, § 2 (“The official language of the state of Arizona
is English.”). The proceedings during Granados’s trial were
conducted in English, albeit largely with the help of court-appointed
interpreters as Granados and many of the witnesses spoke Spanish.
Granados points to nothing in the record, nor can we find anything,
that shows his trial occurred in any language besides English. We
fail to see how the court’s correct evidentiary rulings made during
the English translation of Granados’s testimony somehow violated
its duty to conduct the trial proceedings in English. See Cordova, 109
Ariz. at 441, 511 P.2d at 623; see also Ariz. Const. art. XXVIII, § 2. We
consequently reject this argument.

                              Juror Issues

¶17            Granados next appears to argue that the trial court
erred by denying his motion to strike for misconduct two jurors who
sat on the jury through trial, but were dismissed before
deliberations.      He argues that Juror K. was “laughing and
misbehaving” and that Juror G. had been sleeping through various
parts of the trial. “[W]e review a trial court’s ruling on juror
misconduct and the decision on whether to strike for an abuse of
discretion.” State v. Payne, 233 Ariz. 484, ¶ 100, 314 P.3d 1239, 1265
(2013), cert. denied, 134 S. Ct. 1518 (2014). But we will reverse only if

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                        STATE v. GRANADOS
                         Decision of the Court

the defendant can show prejudice. State v. Hickman, 205 Ariz. 192,
¶ 28, 68 P.3d 418, 425 (2003).

¶18             “The trial court, which has the opportunity to observe
the . . . juror’s demeanor and the tenor of his answers, is in a position
to determine first hand whether a juror can render a fair and
impartial verdict.” State v. Chaney, 141 Ariz. 295, 303, 686 P.2d 1265,
1273 (1984) (internal quotation marks and citations omitted).
“Judges must respond to a claim of juror misconduct in a manner
‘commensurate with [its] severity.’” Payne, 233 Ariz. 484, ¶ 103, 314
P.3d at 1266, quoting State v. Miller, 178 Ariz. 555, 557, 875 P.2d 788,
790 (1994) (alteration in Payne). Where an impartial jury convicts the
defendant, the jury has not prejudiced the defendant. Hickman, 205
Ariz. 192, ¶ 31, 68 P.3d at 425.

¶19          After Granados testified on the eighth day of trial, the
trial court addressed counsel concerning the entire jury’s “facial
expressions and perhaps eye contact” in response to the testimony.
Granados’s counsel took particular exception to Juror K.’s behavior
and asked that he be excused. The court denied the motion, stating
that it would instead “admonish all of the jurors.”

¶20           On this record, we see no abuse of discretion. The trial
court, sua sponte, addressed a potential problem that it saw with not
only Juror K. but the entire jury panel. Nothing in the record
suggests that the court’s decision to admonish the jury as a whole
was insufficient to correct any problem. See Payne, 233 Ariz. 484,
¶ 100, 314 P.3d at 1265. And given the court’s proximity to the
jurors, we defer to its judgment on Juror K.’s and the rest of the
jury’s ability to render a fair and impartial verdict. Chaney, 141 Ariz.
at 303, 686 P.2d at 1273.

¶21          But whatever error might have existed in the trial
court’s refusal to excuse Juror K. based on an appearance of
impartiality, the state has shown beyond a reasonable doubt that it
could not have affected the verdict: Juror K. was dismissed from the
jury before deliberations began. The jurors were admonished not to
discuss the trial with anyone, including each other, before
deliberations. We presume the jury followed its instructions. State
v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). Whatever
                                   7
                        STATE v. GRANADOS
                         Decision of the Court

partiality Juror K. may have evinced thus could not have affected
the verdict. See Hickman, 205 Ariz. 192, ¶ 31, 68 P.3d at 425.

¶22           With respect to Juror G., because Granados did not ask
the trial court to strike her from the jury below, we review only for
fundamental, prejudicial error. See State v. Valverde, 220 Ariz. 582,
¶ 12, 208 P.3d 233, 236 (2009). But because he does not argue the
court’s failure to strike Juror G. sua sponte created fundamental
error, and because we cannot characterize it as such, he has waived
this argument on appeal. See State v. Moreno-Medrano, 218 Ariz. 349,
¶ 17, 185 P.3d 135, 140 (App. 2008) (absent argument, fundamental
error claim waived on appeal); State v. Fernandez, 216 Ariz. 545, ¶ 32,
169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental
error if it finds it). Moreover, Juror G. was also dismissed before
deliberations, and, because she could not have impacted the verdict,
Granados cannot show he was prejudiced. See Hickman, 205 Ariz.
192, ¶ 31, 68 P.3d at 425.

¶23          Granados also appears to argue the trial court should
have dismissed jurors four and nine for misconduct. But he offers
no argument on what these jurors did that would have constituted
misconduct. Accordingly, this argument is waived on appeal. See
Ariz. R. Crim. P. 31.13(c)(1)(vi) (argument “shall contain the
contentions of the appellant with respect to the issues presented,
and the reasons therefor, with citations to the authorities, statutes
and parts of the record relied on”); State v. Bolton, 182 Ariz. 290, 298,
896 P.2d 830, 838 (1995) (“Failure to argue a claim on appeal
constitutes waiver of that claim.”).

                       State of Mind Evidence

¶24          Granados lastly argues the trial court erred by
precluding “evidence of Mr. Granados’s state of mind” which would
have weighed “on the finding of intent or the reflection that is
needed to form premeditation.” We review the court’s evidentiary
ruling for an abuse of discretion. Fischer, 219 Ariz. 408, ¶ 24, 199
P.3d at 671. But premeditation is not an element of any crime with
which Granados was charged. Further, on appeal, Granados does
not identify with specificity what evidence he believes should have
been admitted. Nor does he explain how the evidence he claims

                                   8
                       STATE v. GRANADOS
                        Decision of the Court

should have been admitted was relevant to his claim of
“impaired . . . impulse control abilities” or the mens rea
requirements of the crimes for which he was convicted. Thus,
although he claims the evidence was “clearly admissible,” Granados
has provided insufficient argument on appeal for this court to
review his claim. See Ariz. R. Crim. P. 31.13(c)(1)(vi); Bolton, 182
Ariz. at 298, 896 P.2d at 838. Accordingly, the claim is waived. See
Bolton, 182 Ariz. at 298, 896 P.2d at 838.

                            Disposition

¶25         For the foregoing reasons, as well as those set out in our
separate opinion, we affirm Granados’s convictions and sentences.




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