Opinion
2 CA-CR 2022-0177
06-06-2024
The State of Arizona, Appellee, v. Gino Anthony Antone, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Megan Page, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20202589001 The Honorable Brenden J. Griffin, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee
Megan Page, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, Tucson Counsel for Appellant
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 Gino Antone appeals from his convictions and sentences for two counts of sexual assault and one count each of kidnapping and misdemeanor assault. He argues the indictment charging him with two counts of sexual assault was "multiplicitous" and violated double jeopardy protections. He further contends the trial court abused its discretion by: (1) failing to strike a juror for cause when she answered equivocally about whether she could be fair and impartial; and (2) failing to investigate a claim of juror misconduct and denying his related motion for a new trial based on juror bias. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the jury's verdicts. See State v. Forde, 233 Ariz. 543, n.2 (2014). Early one morning in March 2019, S.S. ordered a ride using a ride-share application on her cellphone. A vehicle pulled up and the driver, Antone, asked S.S. if she needed a ride. S.S. got into the front passenger seat of the vehicle believing it was the ride she had ordered. Shortly after getting in the vehicle, S.S. received a notification on her cellphone that she had been charged for missing her scheduled ride. When S.S. bent down to put her phone into her bag, Antone grabbed her hair and shoved her face down below the front center console, then hit the back of her head several times. Each time S.S. attempted to move or speak, Antone hit her on the back of her head while continuing to drive.
¶3 Antone parked the car and told S.S. to take her pants off. He hit her when she said, "no," so she lowered her pants to avoid getting "knocked out." Antone got out of the car and dragged S.S. by her hair to the driver's seat. He stood just outside the vehicle and "started raping" her by putting his penis in her vagina. S.S. tried to escape but Antone grabbed her and pushed her down. Antone pulled off S.S.'s shoe and one side of her pants, which had been around her ankles, and while pulling her leg out of her pants, his penis came out. He then "pushed [her] back down and re-inserted himself." Antone eventually stopped and told S.S. to run away. She ran to a nearby building and called 9-1-1. A responding officer found clumps of S.S.'s hair on the ground and observed S.S.'s facial injuries, including a "busted blood vessel" in her left eye, with swelling and black and blue skin around it.
¶4 Police recovered DNA evidence from S.S.'s clothing, which eventually led them to Antone. He was indicted for two counts of sexual assault, one count of kidnapping, and one count of misdemeanor assault. Antone failed to appear at trial. The jury found him guilty on all charges, and, after Antone was later taken into custody, the trial court sentenced him to time served for misdemeanor assault and consecutive terms of imprisonment totaling 40.5 years for the remaining convictions. We have jurisdiction over Antone's appeal under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033.
Discussion
I. Multiplicitous Indictment
¶5 Antone argues that the indictment was multiplicitous because it charged him with two counts of sexual assault. He maintains "there is no reasonable basis to distinguish between the two vaginal penetrations that occurred during a single sexual assault." And he contends "the removal and reinsertion [of his penis] was incidental and cannot be categorized as a separate completed offense."
¶6 The Double Jeopardy Clause protects a defendant against multiple punishments for the same offense. State v. Jurden, 239 Ariz. 526, ¶ 10 (2016). "[I]f multiple violations of the same statute are based on the same conduct, there can only be one conviction if there is a single offense." Id. ¶ 11. "Whether charges are multiplicitous is an issue of statutory interpretation, which we review de novo." State v. Brown, 217 Ariz. 617, ¶ 7 (App. 2008). The statutory definition of the crime "determines the scope of conduct for which a discrete charge can be brought." Jurden, 239 Ariz. 526, ¶ 11. As relevant here, A.R.S. § 13-1406(A) provides that a person commits sexual assault by intentionally or knowingly "engaging in sexual intercourse . . . with any person without consent of such person." Sexual intercourse, in turn, means "penetration into the . . . vulva . . . by any part of the body." A.R.S. § 13-1401(A)(4). Thus, the unit of prosecution for a sexual assault is defined by penetration. As such, separate, distinct penetrations during the course of a single attack constitute separate sexual assaults.
¶7 But Antone claims that the law requires the penetrations to be more than "incidental" or distinguishable in some other "significan[t]" way. Even assuming this were the case, the two sexual assaults here are factually distinguishable. Specifically, as explained above, S.S. testified Antone had first "started raping" her and then, when he removed her shoe and pulled her leg out of her pants, his penis had come out. S.S. explained that Antone had then "pushed [her] back down and re-inserted himself." See State v. Williams, 182 Ariz. 548, 562-63 (App. 1995) (multiple charges permissible for sexual assaults "of the same type that occur in very rapid succession"). The indictment was not multiplicitous.
II. Failure to Strike Juror 3 for Cause
¶8 Antone argues the trial court erred by failing to strike Juror 3 for cause. "[E]xcusing jurors is committed to the sound discretion of the trial court," and we generally will not set aside a court's decision whether to strike a juror for cause "absent clear and prejudicial abuse of that discretion." State v. Milke, 177 Ariz. 118, 122 (1993); see also State v. Colorado, 256 Ariz. 97, ¶ 23 (App. 2023). Because Antone did not move to strike Juror 3 for cause, however, our review is limited to fundamental, prejudicial error. See State v. Cruz, 218 Ariz. 149, ¶¶ 30-31 (2008).
¶9 The Arizona and United States constitutions afford a criminal defendant the right to be tried by a fair and impartial jury. See Ariz. Const. art. II, § 24 ("In criminal prosecutions, the accused shall have the right to . . . an impartial jury .... "); Morgan v. Illinois, 504 U.S. 719, 726 (1992) (Sixth Amendment and Fourteenth Amendment due process clause of United States Constitution independently guarantee trial by impartial jury). As we discussed in State v. Jimenez, 255 Ariz. 550, ¶¶ 6-8 &6 (App. 2023), our supreme court's elimination of peremptory strikes in criminal trials places the responsibility on our trial courts to "exclusively determine the final composition of juries in criminal cases." Because the defendant's right to a fair and an impartial jury is integral to the public's confidence in the judicial system, under certain circumstances, "[t]he potential for an appearance of bias suffice[s] to require disqualification regardless of any juror-specific finding of actual bias." Id. ¶ 7 (alterations in Jimenez) (quoting State v. Eddington, 228 Ariz. 361, ¶ 10 (2011)).
¶10 A trial court must excuse prospective jurors for cause "if there is a reasonable ground to believe" they "cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b). In making this determination, the court has broad discretion to excuse or retain a potential juror. Jimenez, 255 Ariz. 550, ¶ 8. A trial court is in the best position "to assess whether prospective jurors should be allowed to sit," State v. Blackman, 201 Ariz. 527, ¶ 13 (App. 2002), because it "has the opportunity to observe the juror's demeanor and the tenor of his or her answers first hand," State v. Cook, 170 Ariz. 40, 54 (1991). Moreover, "[a] juror's assurance of impartiality need not be couched in absolute terms." State v. Trostle, 191 Ariz. 4, 13 (1997). As the party challenging the court's failure to strike a juror for cause, Antone bears the burden of establishing that Juror 3 could not be fair and impartial. See id.
¶11 During voir dire, Juror 3 disclosed that her mother had experienced domestic violence committed by her ex-husband when Juror 3 was younger, but said it "was a long time ago for me, so I think I can be impartial." Antone asked Juror 3 if that history would affect her ability to be fair, and she answered, "I don't think so." He asked again whether she could "still be fair," and she said, "Yes," and further agreed she could "[p]ut that aside and just listen."
¶12 On appeal, Antone maintains that although Juror 3 eventually said she could be fair, "her other assurances were couched in equivocal terms." We disagree. In any event, the law does not require her assurances of fairness and impartiality to have been couched in absolute terms. Id. And, contrary to Antone's argument that there was "sufficient evidence that Juror 3 possessed biases," her responses to the court's questioning during voir dire do not reflect that she could not render a fair and impartial verdict. Accordingly, the court did not err, fundamentally or otherwise, in failing to sua sponte strike Juror 3 for cause. See State v. Rose, 121 Ariz. 131, 139 (1978) (no abuse of discretion in court's refusal to strike juror who had been victim of crime similar to one with which defendant was charged based on temporal remoteness and juror's assurances); see also State v. Escalante, 245 Ariz. 135, ¶ 21 (2018) (first step in fundamental error review is determining whether trial error occurred).
III. Juror Misconduct and Bias
¶13 After the jury informed the bailiff it had reached a verdict during the guilt phase of trial, one of the jurors handed the bailiff an envelope containing four notes several jurors had written to the victim. The trial court informed the parties of the incident before the jury returned its verdicts in the aggravation phase. When asked, the bailiff explained that the jurors asked her for an envelope after they "let [her] know they had a verdict," which she provided. The jury then returned the envelope to the bailiff when she lined up the jurors to return to court to present their verdict. The notes generally expressed sympathy and support for the victim.
¶14 Antone asked the trial court to determine when the notes had been written because he was concerned about juror misconduct if they were written during deliberations. The court declined to "do any more follow up" on the notes, stating it had read them and "they all seem reasonable reactions to the evidence that was heard." The court explained that "[t]here was nothing about these notes that in the [c]ourt's mind in any way affected or impacted the verdict improperly." And in denying Antone's motion for a new trial based on juror misconduct, the court found no misconduct had occurred because at the time the notes had been written, the jury was deliberating and "[t]here is nothing improper when the jury is deliberating to start making up their mind" about the case.
¶15 On appeal, Antone maintains the trial court abused its discretion by "refusing to investigate when or how the notes were written, . . . denying the motion for a new trial," in which the issue was raised, and refusing to allow the parties to investigate whether Antone was denied his right to a fair and impartial jury. We review a trial court's decision to investigate allegations of juror misconduct for an abuse of discretion. State v. Davolt, 207 Ariz. 191, ¶ 56 (2004). We likewise review a court's denial of a motion for new trial for an abuse of discretion. State v. Hoskins, 199 Ariz. 127, ¶ 52 (2000).
¶16 When there are premature deliberations that do not involve external influence, "there is no reason to doubt that the jury based its ultimate decision only on evidence formally presented at trial." State v. Dann, 220 Ariz. 351, ¶ 115 (2009) (quoting United States v. Gianakos, 415 F.3d 912, 921-22 (8th Cir. 2005)). Accordingly, juror misconduct only warrants a new trial if the defense shows actual prejudice or if prejudice may be fairly presumed from the facts. State v. Nelson, 229 Ariz. 180, ¶ 12 (2012); Dann, 220 Ariz. 351, ¶ 115. However, if a jury is found to be biased in a criminal case, that may amount to structural error. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ...." (emphasis added)); State v. Henderson, 210 Ariz. 561, ¶ 12 (2005) (structural errors "deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for guilt or innocence" (quoting State v. Ring, 204 Ariz. 534, ¶ 45 (2003))). "If error is structural, prejudice is presumed." State v. Valverde, 220 Ariz. 582, ¶ 10 (2009).
¶17 On appeal, as he did in support of his motion for a new trial, Antone relies on State v. Rojas, 177 Ariz. 454 (App. 1993), arguing the facts in his case are "nearly identical." In Rojas, a juror asked the judge's secretary-before deliberations began-whether the judge would sentence the defendant right away when the defendant is found guilty. 177 Ariz. at 456. Also before deliberations, that same juror handed the bailiff $20 and a note to the victims praising their courage in testifying. Id. When the juror was later questioned by the trial court, he stated that he had not yet made up his mind regarding the defendant's guilt when the note was written and he was willing to deliberate with his fellow jurors before reaching a conclusion about guilt. Id. at 457. On appeal, we noted that both parties had framed the issue "of juror misconduct in terms of whether the juror formed a fixed opinion about defendant's guilt before the case was submitted to the jury for decision." Id. And we stated that the inquiry for the court is the same whether an expression of opinion occurred during voir dire or during trial-"did the juror have a fixed opinion about the defendant's guilt?" Id. at 458. We observed that "[i]nasmuch as the only issue at trial appeared to be the truthfulness of the complaining witnesses, doubt that the juror had reserved judgment as to the defendant's guilt is unavoidable." Id. at 457. We concluded the trial court abused its discretion in denying the defendant's mistrial motion, finding that the juror's actions did not support the trial court's determination that the juror rendered a verdict that was fair and impartial. Id. at 458.
¶18 In this case, the state contends "[t]o the extent that the notes showed final opinions about any fact at issue in the case or about the outcome of the case, there was no evidence that they were written when it was impermissible for the jurors to form such opinions, i.e., before deliberations began." But although there is no evidence of when the notes were written, this is so, primarily because the trial court failed to investigate. Unlike Rojas, the trial court in this case refused to question the jurors about the circumstances surrounding the notes. The better practice would have been for the court to question the jurors. But we also disagree with Antone that "without inquiry into when and how the notes were written, the court could not know whether the verdict was valid."
¶19 During voir dire, the trial court and counsel for both parties had an opportunity to observe the jurors and ask questions to determine whether they could be fair and impartial. Antone does not challenge the voir dire process generally on appeal. And except for Juror 3, whom we have determined was properly seated, Antone does not argue that any of the other jurors could not be fair and impartial. See State v. Bush, 244 Ariz. 575, ¶ 36 (2018) (defendant's right to impartial jury predicated on adequate voir dire to identify unqualified jurors). Therefore, although there may be some question about when the notes were written, there is no basis for concluding, unlike in Rojas, that the jurors had a "fixed opinion" about Antone's guilt. 177 Ariz. at 458.
¶20 Even assuming the jurors wrote the notes during deliberations, as Antone argued below, or before deliberations, as he argues on appeal, a new trial is not warranted because he did not show actual prejudice, nor can prejudice be fairly presumed. See Dann, 220 Ariz. 351, ¶ 115. Even in the case of improper premature deliberations that involve discussions only among jurors and do not involve extrinsic evidence, "there is no reason to doubt that the jury based its ultimate decision only on evidence formally presented at trial." State v. Macias, 249 Ariz. 335, ¶ 13 (App. 2020) (quoting United States v. Resko, 3 F.3d 684, 690 (3rd Cir. 1993)).
¶21 When the matter was raised while the jury was deliberating in the aggravation phase, the trial court denied Antone's request to question the jury about the notes, finding "[t]here was nothing about these notes that in the Court's mind in any way affected or impacted the verdict improperly." And at the hearing on Antone's motion for a new trial, the court concluded:
Those letters were nothing more than expressions of concern that I think the jury is allowed to start having once they start deliberating. We instructed the jury that they're not allowed to make up their mind, that they're not allowed to decide this case based on passion and prejudice. I think I'm entitled to presume that the jury followed those instructions.
¶22 The record supports this conclusion. In its preliminary admonitions on the first day of trial, the court instructed the jury to "decide the facts only from the evidence produced in court," and not to "form final opinions about any fact or about the outcome of the case until you have heard and considered all of the evidence, the closing arguments, and the rest of the [court's] instructions." It further admonished jurors that "during breaks and recess, whether you are assembled in the jury room or not, you shall not discuss any aspect of the case with each other until the case is submitted to you for your deliberations at the end of trial." And the court reminded the jury of the admonitions before breaks throughout trial. See State v. Newell, 212 Ariz. 389, ¶ 68 (2006) (appellate court presumes jurors followed instructions). We cannot say the court abused its discretion in declining to question the jurors regarding their notes or in denying Antone's motion for a new trial.
Disposition
¶23 We affirm Antone's convictions and sentences.