Opinion
No. 2 CA-CR 2014-0036
10-08-2014
THE STATE OF ARIZONA, Appellee, v. JOE LOUIS CANO, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee Ramos Law Firm, Scottsdale By Paul A. Ramos Counsel for Appellant
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NOT FOR PUBLICATION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 Gila County
No. S0400CR201300139
The Honorable Robert Duber II, Judge
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Ramos Law Firm, Scottsdale
By Paul A. Ramos
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Joe Cano was convicted of one count of continuous sexual abuse of a child and three counts of kidnapping. The trial court sentenced him to consecutive prison terms totaling sixty-two years. On appeal, Cano argues the court erred by (1) denying his motion to dismiss eight counts of sexual conduct with a minor and two counts of molestation of a child and permitting the state to amend the indictment to charge those same counts in the alternative to the continuous sexual abuse count; (2) commenting on the evidence; and, (3) denying his request for a jury instruction on a lesser-included offense for child molestation. He also contends the prosecutor committed misconduct and he was denied a fair and impartial jury. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We limit our recitation of the facts to those relevant to the issues on appeal, see State v. Garcia, 220 Ariz. 49, ¶ 2, 202 P.3d 514, 515 (App. 2008), and we view the facts in the light most favorable to sustaining Cano's convictions, see State v. Gay, 214 Ariz. 214, ¶ 2, 150 P.3d 787, 790 (App. 2007). A grand jury indicted Cano with eight counts of sexual conduct with a minor, three counts of kidnapping, two counts of child molestation, and continuous sexual abuse of a child, all committed against one victim, J.M., from April 1, 2006, to May 22, 2009, while he was attending a daycare operated by Cano's wife. The indictment alleged all of the offenses were dangerous crimes against children. ¶3 At the close of evidence, the trial court excused the jury and informed the parties that it was time to address its concerns over "what was intended by the particulars" of the continuous sexual abuse of a child statute, A.R.S. § 13-1417, "especially Subparagraph D." The court noted that the period of continuous sexual abuse alleged in the indictment "encompasses every other count in the Indictment." And the court stated it was troubled by "the language [in § 13-1417(D)] that says that any other felony sexual offense involving the victim shall not be charged in the same proceeding with a charge under this section unless the other charged felony offense occurred outside the time period charged under this section." ¶4 Cano moved to dismiss the sexual conduct and molestation counts, suggesting they were not charged "in the alternative" to the continuous sexual abuse count as required by § 13-1417(D). In response, the state moved to amend the indictment to charge the sexual conduct and molestation counts in the alternative. The court noted that the state's motion "may be too late now, but we have tried the case as if it was amended, and I will permit the record to reflect the Defendant was put in jeopardy on those counts." And, in denying Cano's motion to dismiss, the court stated it was "going to treat this case as a case [in which] all of the counts that are not the kidnapping counts . . . [are alleged] under the Count XIV continuous sexual abuse allegation. It is one conviction."
¶5 The court also denied Cano's motions for a mistrial based on prosecutorial misconduct, for a lesser-included instruction to child molestation, and for dismissal based on the manner in which jury selection was conducted. ¶6 The jury found Cano guilty of continuous sexual abuse and three counts of kidnapping, and the trial court sentenced Cano as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The jury also found two aggravating factors pursuant to A.R.S. § 13-701. Nevertheless, the trial court sentenced Cano to presumptive or slightly mitigated terms.
Motion to Dismiss
¶7 Cano argues the trial court erred by denying his motion to dismiss the sexual conduct and molestation counts. He maintains "§ 13-1417 is clear in that underlying offenses involving the same victim shall not be charged as separate and independent charges, unless charged in the alternative." "We review a trial court's denial of a motion to dismiss for an abuse of discretion but, to the extent it presents a question of statutory interpretation, our review is de novo." State v. Villegas, 227 Ariz. 344, ¶ 2, 258 P.3d 162, 163 (App. 2011). We will affirm "the court's ruling if legally correct for any reason supported by the record." State v. Childress, 222 Ariz. 334, ¶ 9, 214 P.3d 422, 426 (App. 2009); see also State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). ¶8 Section 13-1417(A) states:
A person who over a period of three months or more in duration engages in three or more acts in violation of § 13-1405 [sexual conduct with a minor], 13-1406 [sexual assault] or 13-1410 [molestation] with a child who is under fourteen years of age is guilty of continuous sexual abuse of a child.Subsection (D) provides further that, during a prosecution under this statute, the state may not charge the defendant with any other sexual felony offense in the same case, unless the offense falls "outside the time period" of continuous sexual abuse, involves a different victim, or is "charged in the alternative." If two counts are charged in the alternative, the trial court should "instruct[] the jurors on the difference between the two charges, and inform[] them that they [can] sign one form of verdict only." State v. Montoya, 125 Ariz. 155, 157, 608 P.2d 92, 94 (App. 1980); see also State v. Canion, 199 Ariz. 227, ¶ 23, 16 P.3d 788, 794 (App. 2000) (charging in the alternative "designed to prevent conviction for two crimes arising from a single factual scenario"). ¶9 At the start of Cano's trial, the court expressed its concerns about the sexual conduct and child molestation counts being charged separately from the continuous sexual abuse of a child count in the same prosecution when all the offenses allegedly were committed during the same timeframe. Addressing the issue again at the close of evidence, the court interpreted the phrase "charged in the alternative" to mean "that you either can't charge [any other felony sexual offense committed during the same time period], or if you do charge it, you do it with the understanding that it becomes one of the various acts which can be assessed by the jury when they are deciding whether three or more [acts in violation of §§ 13-1405, 13-1406, or 13-1410] occurred." ¶10 Although the trial court denied Cano's motion to dismiss the sexual conduct and child molestation counts, it treated "all of the counts . . . as being under the . . . continuous sexual abuse allegation." Accordingly, it gave the following jury instruction for continuous sexual abuse:
The crime of continuous sexual abuse of a child requires proof that the defendant, over a period of three months or more in duration, engaged in three or more of the following acts with a child who was under 14 years of age:¶11 The state maintains that "the [sexual conduct and child molestation] counts were effectively dismissed with prejudice; they were not separately submitted to the jury, and the court barred the State, effectively, from refiling them by finding that Cano had been 'put in jeopardy on those counts.'" We agree. As noted above, the court's jury instruction on continuous sexual abuse listed the individual acts of sexual conduct and molestation for the jury's consideration as the acts potentially constituting continuous sexual abuse. And the instruction made clear that the jury "must unanimously agree that the requisite number of contacts, three or more, occurred." The jury also received verdict forms for only four offenses: three for kidnapping and one for continuous sexual abuse. Moreover, Cano's sentence was consistent with the requirements of § 13-1417. He was sentenced only for continuous sexual abuse and did not receive separate sentences for any of the individual acts of sexual conduct or child molestation. ¶12 In sum, the trial court's ruling was consistent with dismissing the separate counts of sexual conduct and molestation with prejudice, and Cano essentially received the relief he had requested. We conclude the court's ruling was legally correct. See Villegas, 227 Ariz. 344, ¶ 2, 258 P.3d at 163; Childress, 222 Ariz. 334, ¶ 9, 214 P.3d at 426.
Sexual conduct with a minor . . . committed between April 1st, 2006, and April 30, 2006.
Sexual conduct with a minor . . . committed between April 1st, 2006, and April 30, 2006.
Molestation of a child . . . committed between May 1st, 2007, and May 31st, 2007.
Molestation of a child . . . committed between June, 2006, and May, 2007.
Sexual conduct with a minor . . . committed between May 24, 2008, and August 31st, 2008.
Sexual conduct with a minor . . . committed between May 24, 2008, and August 31st, 2008.
Sexual conduct with a minor . . . committed between August 4th, 2008, and May 22nd, 2009.
Sexual conduct with a minor . . . committed between August 4th, 2008, and May 22nd, 2009.
Sexual conduct with a minor . . . committed between April 1st, 2008, and April 30, 2009.
Sexual conduct with a minor . . . committed between April 1st, 2008, and April 30, 2009.
To convict the defendant, you must unanimously agree that the requisite number of contacts, three or more, occurred.
You need not unanimously agree on which acts constitute the requisite number.
In addition, Cano suggests the trial court erred in granting the state's motion to amend the indictment to charge the offenses in the alternative because the state "did not move to amend . . . until after the close of evidence in the trial." Because we conclude the court implicitly denied the state's motion, we reject Cano's argument.
Comment on the Evidence
¶13 Cano argues the trial court's jury instruction for continuous sexual abuse of a child constituted an improper comment on the evidence. Specifically, he asserts "the instruction reads as if the listed specific acts were true and the jury needed to select at least three of them in order to find [him] guilty." The state contends Cano has waived this argument because he failed to object to the instruction below. Generally, this court will only consider issues raised in the trial court. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 16, 185 P.3d 135, 140 (App. 2008); see also State v. Gendron, 168 Ariz. 153, 154-55, 812 P.2d 626, 627-28 (1991) (failure to object to jury instructions waives right to raise issue on appeal for all but fundamental, prejudicial error). To preserve an issue on appeal, a party first must give the trial court an "opportunity to correct asserted errors." State v. Mendez, 2 Ariz. App. 77, 79, 406 P.2d 427, 429 (1965). "And an objection on one ground does not preserve the issue on another ground." State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008). ¶14 Although Cano did not object below to the trial court's proposed jury instruction on continuous sexual abuse, he nevertheless argues his motion to dismiss the sexual conduct and molestation counts preserved the issue for appeal. We disagree. Cano's motion to dismiss did not give the court an opportunity to consider whether its instruction amounted to an improper comment on the evidence. See Mendez, 2 Ariz. App. at 79, 406 P.2d at 429. The record shows the court invited Cano to review the instruction "carefully over the next day or two" and to inform the court "if there [wa]s [any] concern about it" before the final jury instructions were given. And just before the instructions were given, Cano responded "[n]o" when the court asked if there was anything that "need[ed] to [be] address[ed] before the jury [was] called in." Thus, Cano has forfeited this issue for all but fundamental, prejudicial error. See Moreno-Medrano, 218 Ariz. 349, ¶ 16, 185 P.3d at 140. And, because he does not argue fundamental error has occurred, we do not address this issue further. See id. ¶ 17 (failure to argue error was fundamental waives issue on appeal).
Prosecutorial Misconduct
¶15 Cano argues the trial court erred by denying his motions for a mistrial and to dismiss based on four instances of alleged prosecutorial misconduct. We examine the alleged instances of misconduct individually, as well as for their cumulative effect on the trial. See State v. Roque, 213 Ariz. 193, ¶ 155, 141 P.3d 368, 403 (2006). We will not disturb a court's ruling on a motion to dismiss for prosecutorial misconduct absent an abuse of discretion. State v. Trani, 200 Ariz. 383, ¶ 5, 26 P.3d 1154, 1155 (App. 2001); see also State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (denial of motion for mistrial based on prosecutorial misconduct reviewed for abuse of discretion). ¶16 "In reviewing prosecutorial misconduct, we focus on whether it affected the proceedings in such a way as to deny the defendant a fair trial." State v. Hughes, 193 Ariz. 72, ¶ 32, 969 P.2d 1184, 1192 (1998).
Prosecutorial misconduct "is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial."State v. Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d 423, 426-27 (App. 2007), quoting Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). To constitute reversible error, the cumulative effect of the misconduct must have "so permeated the entire atmosphere of the trial with unfairness that it denied [Cano] due process." Roque, 213 Ariz. 193, ¶ 165, 141 P.3d at 405.
Violation of Prior Evidentiary Rulings
¶17 Cano first argues that two instances of misconduct occurred when the prosecutor sought to elicit testimony the trial court previously had excluded. The background for the first instance is as follows: Three weeks before trial, Cano was arraigned in a separate case involving a charge he had molested another child. The state moved to consolidate the cases or, alternatively, to introduce evidence of the other allegations pursuant to Rule 404(b) and (c), Ariz. R. Evid. The trial court denied both motions but ruled that the state could ask Cano's character witnesses, "[A]re you aware another allegation has been raised . . . and would that change your opinion" of Cano. ¶18 During trial, Cano's daughter testified about his daily schedule, her own schedule, and the fact that she had rarely seen Cano interact with the children attending her mother's daycare. On cross-examination, the prosecutor asked the daughter if she was "aware that more than one child ha[d] come forward." After sustaining Cano's objection, the trial court excused the jury from the courtroom so the matter could be addressed further. The prosecutor then stated, "Your Honor, you specifically said when you said you weren't going to consolidate the cases or allow my [Rule] 404(b) motion, that I could ask the witnesses if they knew that there was another child that had come forward." The court clarified that the prosecutor "could impeach anyone who expressed an opinion about reputation or character . . . based upon some information that they may not have had," but that Cano's daughter was "not a character witness who [had] expressed any opinion." ¶19 The second incident occurred when the state called Maria Rodriquez, the specialist who had conducted a forensic interview with the victim. Defense counsel objected to the scope of her testimony, claiming the state had not disclosed there would be a "blind expert" to discuss why children generally delay reporting sexual abuse. The trial court sustained the objection and limited Rodriquez's testimony to "the specifics of the interview that was conducted." During direct examination, however, the prosecutor asked, "[W]ould you expect [the victim] . . . , if he were undergoing counseling, to be more open?" After Rodriquez responded "[y]es," Cano objected and the court sustained the objection. ¶20 On appeal, Cano argues the prosecutor's questioning of his daughter and Rodriquez "went astray" of the trial court's rulings and constituted misconduct. Generally, a prosecutor is "not entitled to refer, by innuendo or otherwise," to evidence the court has precluded. See State v. Leon, 190 Ariz. 159, 163, 945 P.2d 1290, 1294 (1997). As to the prosecutor's first question posed to Cano's daughter, whether she was aware of another victim, the court's prior ruling was not a blanket prohibition against any mention of the separate case. And the prosecutor's reaction during the sidebar indicates she misunderstood the exact scope of the court's ruling. The court implicitly accepted this explanation, and it was within the court's discretion to do so. See United Metro Materials, Inc. v. Pena Blanca Props., L.L.C., 197 Ariz. 479, ¶ 22, 4 P.3d 1022, 1026 (App. 2000) (whether to accept avowal of counsel within court's discretion). The record does not support Cano's argument that the prosecutor deliberately violated the court's order. See Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d at 426-27. ¶21 We reach the same conclusion as to the prosecutor's questioning of Rodriquez. We agree the prosecutor exceeded the scope of the trial court's ruling by asking Rodriquez for her impressions about whether the victim would have been more "open" during the forensic interview "if he were undergoing counseling." But, after the court sustained Cano's objection to this single question, the prosecutor did not pursue the line of questioning. ¶22 We conclude that the prosecutor's questioning of Cano's daughter and Rodriquez did not rise to the level of intentional misconduct that would require reversal of Cano's convictions. See Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d at 426-27. In addition, the trial court mitigated any harm that may have resulted from these individual errors. The court sustained defense counsel's objection to each question. And, during final instructions, the court instructed the jurors not to consider responses to any question for which it had sustained an objection. We presume the jurors followed the court's instructions. See State v. Velazquez, 216 Ariz. 300, ¶ 50, 166 P.3d 91, 103 (2007).
Hearsay
¶23 Cano also argues the prosecutor repeatedly sought to elicit hearsay testimony despite several sustained objections to her line of questioning. ¶24 On the fourth day of trial, during cross-examination of Cano's wife, Sylvia, the prosecutor asked, "Of the children that you watched, did your husband ever play games with them?" When Sylvia denied that Cano had ever played with the children, the prosecutor pressed the issue:
Q. [PROSECUTOR]: Did you ever, do you know a Paul Licano?¶25 Shortly after this exchange, the prosecutor asked if Sylvia had received "certification visits to make sure [she was] in compliance" with requirements for running a daycare. When Sylvia said yes, the prosecutor showed her a "document about [her] certification" and asked, "[W]ho does it list as your backup provider?" The prosecutor repeatedly attempted to ask this question, and each time the trial court sustained defense counsel's objections. Defense counsel then requested a sidebar, and an off-the-record discussion followed. When cross-examination resumed, the prosecutor asked if Sylvia had "ever list[ed her] husband as [her] backup provider," to which she answered "[y]es" without objection. ¶26 Cano argues the questions regarding these documents were "egregious example[s] of [the prosecutor's] failure to follow the [t]rial [c]ourt's instruction." But read in context, it appears the prosecutor's attempts to elicit hearsay testimony were the result of the prosecutor's difficulty in understanding the nature of the objections, rather than an indifference to the court's rulings. See Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d at 426-27. And again, each of defense counsel's objections were sustained and followed by the court's instruction to disregard such questions. See Velazquez, 216 Ariz. 300, ¶ 50, 166 P.3d at 103.
A. Yes, I do.
Q. And did you ask him to write a letter on behalf of your husband?
A. Yes, I did.
Q. And after he wrote the letter, in fact, in the letter, didn't he mention how —
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
Q. [PROSECUTOR]: Let me show you the letter. Let me show you what has been marked for identification as Exhibit 8.
A. This is a letter that Paul wrote.
. . . .
Q. And drawing your attention to the third paragraph, there is a strike out and the word "baseball" written; is that correct?
THE COURT: Sustained.
Ladies and Gentlemen, disregard the comment — the question in its entirety.
Cumulative Effect
¶27 In determining whether prosecutorial misconduct has permeated the entire atmosphere of a trial, we also must look to the cumulative effect of the misconduct rather than at individual incidents. See Hughes, 193 Ariz. 72, ¶¶ 26-27, 969 P.2d at 1191. Any one incident of alleged misconduct might not warrant reversal, but the prosecutor's conduct throughout the trial must be considered as a whole. See id. ¶ 27. As discussed above, however, none of the incidents raised by Cano constitute intentional misconduct, and the trial court did not abuse its discretion in finding the prosecutor's conduct had not "reached the level of error to prejudice the jury against [Cano] in any demonstrable way." Thus, "we cannot conclude that the prosecutor engaged in 'persistent and pervasive' misconduct" that deprived Cano of due process. State v. Morris, 215 Ariz. 324, ¶ 67, 160 P.3d 203, 218 (2007).
Lesser-Included Instruction
¶28 Cano argues that the trial court erred by denying his request for an instruction on "contributing to the delinquency of a minor," which he maintains is a lesser-included offense of molestation of a child. "We review the court's denial of a requested jury instruction for an abuse of discretion." State v. Price, 218 Ariz. 311, ¶ 21, 183 P.3d 1279, 1284 (App. 2008). ¶29 Pursuant to Rule 23.3, Ariz. R. Crim. P., a trial court must instruct the jury on "all offenses necessarily included in the offense charged." An offense is necessarily included if it is a "lesser-included offense" of the crime charged and if evidence in the record could support a conviction on the lesser offense alone. State v. Wall, 212 Ariz. 1, ¶ 14, 126 P.3d 148, 150 (2006). "Under the 'elements' test, a lesser-included offense is one 'composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one.'" State v. Larson, 222 Ariz. 341, ¶ 8, 214 P.3d 429, 431 (App. 2009), quoting State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). "And, conversely, it must also be shown 'that the lesser cannot be committed without always satisfying the corresponding elements of the greater.'" State v. Brown, 204 Ariz. 405, ¶ 21, 64 P.3d 847, 852 (App. 2003), quoting In re Victoria K., 198 Ariz. 527, ¶ 17, 11 P.3d 1066, 1070 (App. 2000). ¶30 The elements of continuous sexual abuse of a child are as follows:
First, the State must prove beyond a reasonable doubt that a person engaged in three or more sexual acts, each of which would otherwise independently violate §§ 13-1405 [sexual conduct with a minor], -1406 [sexual assault], or -1410 [molestation of a child]. Second, the State must also prove that the acts took place over a period of three or more months.Larson, 222 Ariz. 341, ¶ 10, 214 P.3d at 432, citing § 13-1417(A). In contrast, "[a] person who by any act, causes, encourages or contributes to the dependency or delinquency of a child," is guilty of contributing to delinquency and dependency. A.R.S. § 13-3613(A). And, "'[d]elinquency' means any act that tends to debase or injure the morals, health or welfare of a child." A.R.S. § 13-3612(1). Because a person can contribute to the delinquency of a child without satisfying the corresponding elements of continuous sexual abuse — for example, by providing alcohol to a child — contributing to delinquency and dependency is not a lesser-included offense of continuous sexual abuse of a child under the elements test. See Loveland v. State, 53 Ariz. 131, 132-33, 140-41, 86 P.2d 942, 942-43, 946 (1939); Brown, 204 Ariz. 405, ¶ 21, 64 P.3d at 852. ¶31 But, relying on State v. Sutton, 104 Ariz. 317, 452 P.2d 110 (1969), Cano argues that, because § 13-1417(A) "incorporates Sexual Conduct with a Minor and Child Molestation offenses and [their] underlying offenses, the Contributing to the Delinquency of a Child instruction, as a lesser included offense of Child Molestation, was an appropriate lesser included offense." In Sutton, our supreme court held that "contributing to the delinquency of a minor is a lesser included offense of child molesting." 104 Ariz. at 318-19, 452 P.2d at 111-12. However, the holding in Sutton is inapplicable here. ¶32 First, as discussed above, the trial court effectively dismissed the two counts of child molestation as Cano had requested. Cano was not entitled to an instruction on a lesser-included offense to counts that had been dismissed. Second, the sexual felonies listed in § 13-1417(A) "constitute the means rather than elements of [continuous sexual abuse of a child] because the statute 'incorporates the other statutes merely to define the acts that make up the continuous course of sexual abuse.'" Larson, 222 Ariz. 341, ¶ 11, 214 P.3d at 432, quoting State v. Ramsey, 211 Ariz. 529, ¶ 27, 124 P.3d 756, 765 (App. 2005). Moreover, the jury could have convicted Cano of continuous sexual abuse without finding he had committed molestation. See id. ¶ 12 ("One can commit continuous sexual abuse of a child without committing sexual conduct with a minor."). Because the jury was not required to convict Cano of molestation, the holding in Sutton did not require the court to instruct the jury on contributing to the delinquency of a child. ¶33 In any event, even if contributing to the delinquency of a minor was a lesser-included offense of continuous sexual abuse, Cano has not argued the record supported such an instruction. See Wall, 212 Ariz. 1, ¶ 14, 126 P.3d at 150. When a defendant uses an all-or-nothing defense, as did Cano in this case, "there is usually little evidence on the record to support an instruction on the lesser included offenses." State v. Caldera, 141 Ariz. 634, 637, 688 P.2d 642, 645 (1984). And, if the record indicates "that [the] defendant is either guilty of the crime charged or not guilty, the trial court should refuse a lesser included instruction." State v. Salazar, 173 Ariz. 399, 408, 844 P.2d 566, 575 (1992).
Finally, the State must prove that the victim was a child less than fourteen years of age.
¶34 Here, the trial court found that the record supported only two conclusions: "[I]t either happened according to the victim['s account] or it didn't happen." And Cano has not articulated any reason why the court erred in making this finding. Thus, the issue is waived. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellant's brief on appeal must contain argument and citations to authority); State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) (opening brief in criminal appeal must contain significant arguments and supportive authority; lack of compliance can result in abandonment and waiver of claim).
Fair and Impartial Jury
¶35 Cano argues he "was denied due process and a fair and impartial jury," resulting from a defective jury selection process. Specifically, he maintains that, because jury selection was being conducted simultaneously for two separate trials, and given the sheer number of potential jurors, "[t]he process had a negative impact on [his] voir dire and his jury selection." Because "'the trial court has the best opportunity to observe prospective jurors,'" we generally review a trial court's ruling on questions concerning jury selection for an abuse of discretion. State v. Eddington, 226 Ariz. 72, ¶ 5, 244 P.3d 76, 79-80 (App. 2010), quoting State v. Hoskins, 199 Ariz. 127, ¶ 37, 14 P.3d 997, 1009 (2000); see also Moody, 208 Ariz. 424, ¶ 93, 94 P.3d at 1146; State v. Lopez, 134 Ariz. 469, 471, 657 P.2d 882, 884 (App. 1982). ¶36 A defendant is entitled to a fair and impartial jury under both the United States and Arizona Constitutions. U.S. Const. amends. VI, XIV § 1; Ariz. Const. art. II, §§ 23-24. And, the defendant must receive the "opportunity and reasonable time to question prospective jurors to discover information relevant to challenges and to possibly rehabilitate them." State v. Anderson, 197 Ariz. 314, ¶ 14, 4 P.3d 369, 376 (2000). But the party challenging a juror or the method of selection nevertheless bears the burden of establishing that the resulting panel was not fair and impartial. See Moody, 208 Ariz. 424, ¶¶ 93, 95, 94 P.3d at 1146; Eddington, 226 Ariz. 72, ¶ 5, 244 P.3d at 79. Although a defendant is entitled to an impartial jury, he is not entitled to any particular jury. Morris, 215 Ariz. 324, ¶ 40, 160 P.3d at 213. ¶37 At the start of Cano's trial, the court noted that it would "select two juries" that day, one for Cano's trial and one for an unrelated case occurring afterward. The court also explained it had subpoenaed an especially large number of potential jurors because attendance at recent jury selections had been low and Cano was well known in the community. Thus, according to Cano, approximately 170 potential jurors arrived for the joint jury selection. As a result, some jurors stood in the doorway of the courtroom during the court's initial questioning of the entire pool, and the clerk of the court had difficulty properly distributing numbers to jurors for identification. ¶38 Cano objected to this method of selection and renewed his objection on the fourth day of trial. The court agreed "[t]here was definitely error," clarifying that "there was . . . room for improvement under the circumstances." Nevertheless, it concluded that the large jury pool was justified and that there was "nothing to suggest that there was any significant deprivation of constitutional rights." ¶39 On appeal, Cano argues the large number of potential jurors "had a negative impact on [his] voir dire and his jury selection." However, he does not explain why he believes the jury ultimately selected was biased or partial. And, although he argues the initially large number of potential jurors "made the process very difficult and [that] it was very hard for [him] to keep track of 'what was going on,'" he does not claim that the circumstances prevented him from sufficiently examining the persons ultimately selected as jurors. See Moody, 208 Ariz. 424, ¶ 99, 94 P.3d at 1147; Eddington, 226 Ariz. 72, ¶ 5, 244 P.3d at 79. Therefore, we consider this issue waived. See Moody, 208 Ariz. 424, n.9, 94 P.3d at 1147 n.9.
Cano does not argue the Arizona Constitution provides any greater protection here than the United States Constitution, and, therefore, we do not analyze the issue separately under each. See State v. Rodarte, 173 Ariz. 331, 336, 842 P.2d 1344, 1349 (App. 1992) (noting possibility that United States Supreme Court may interpret protections under Sixth Amendment more restrictively than Arizona courts construe article II, § 24).
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Disposition
¶40 For the foregoing reasons, we affirm Cano's convictions and sentences.