Opinion
2 CA-CR 2022-0122
10-26-2023
The State of Arizona, Appellee, v. Mark Lee Lindrud, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR20212780 The Honorable Renee T. Bennett, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee
James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, JUDGE
¶1 Mark Lindrud appeals his convictions and sentences for sexual conduct with a minor and sexual abuse of a minor. He asserts the trial court erred in denying his third and fourth motions to continue his trial and by excusing a juror during his trial. For the following reasons, we affirm.
Facts and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences" against Lindrud. State v. Bolivar, 250 Ariz. 213, ¶ 2 (App. 2020). In 2002, Lindrud was teaching Spanish at a high school in Oro Valley, Arizona, and he began communicating through an online messaging service with the victim, his fourteen-year-old student. In September 2002, Lindrud asked her to meet him at a park, where he "forcefully kissed" her and placed his hands under her shirt, "touch[ing] [her] bare breasts." Thereafter, Lindrud engaged in sexual relations with her "once or twice a week for a year and a half." The victim ended these encounters in early 2004.
¶3 In 2021, the victim contacted the principal of a school in Colorado where Lindrud was employed, and the principal then contacted the Oro Valley Police Department about Lindrud's past relationship with the victim. The victim and an Oro Valley Police Department detective arranged a one-party consent call for the victim to speak to Lindrud in a recorded phone call. During the call, the victim asked Lindrud why he had engaged in a sexual relationship with her knowing she was fourteen. Lindrud apologized and stated he did not have a "great answer" for her. He blamed his behavior on "immaturity" and "stupidity."
¶4 Lindrud was later arrested by Colorado police and placed into custody in Colorado. While Lindrud was in custody, detectives asked him if he would like to write a letter of apology to his wife and to the victim. In the letter to his wife, Lindrud acknowledged having had a relationship with a student "years ago," while the letter to the victim contained an extended apology "for what happened." Lindrud was ultimately charged in Pima County with three counts of sexual conduct with a minor under fifteen, seventeen counts of sexual conduct with a minor under eighteen, and one count of sexual abuse of a minor.
¶5 Lindrud filed four separate motions to continue his trial date. The trial court granted his first and second motions over the victim's objection, but it denied his third and fourth motions.
¶6 Following a three-day jury trial, Lindrud was convicted as charged, and the trial court sentenced him to consecutive and concurrent terms of imprisonment totaling 66.75 years. This appeal followed. We have jurisdiction pursuant to Ariz. Const. art. VI, § 9, A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
Motions to Continue Trial
¶7 Lindrud argues on appeal that the trial court erroneously denied his third motion to continue his trial date to allow him to "find and retain an expert to evaluate his autism diagnosis" and his fourth motion to continue due to the unavailability of a witness he had disclosed eight days before trial. Lindrud asserts these rulings violated his "constitutional rights to due process, [to] a fair trial, to call his own witnesses, and to present a defense."
¶8 We review the denial of a motion to continue for an abuse of discretion. State v. Forde, 233 Ariz. 543, ¶ 18 (2014). We will not find an abuse of discretion unless the defendant demonstrates prejudice. State v. VanWinkle, 230 Ariz. 387, ¶ 7 (2012). "A court may continue trial only on a showing that extraordinary circumstances exist, and that delay is indispensable to the interests of justice, and only for so long as is necessary to serve the interests of justice." Ariz. R. Crim. P. 8.5(b). "In deciding a motion to continue a trial date, the court must also consider the victim's views and the right of the victim to a speedy disposition of the case." Ariz. R. Crim. P. 8.5(v); see also State v. Dixon, 226 Ariz. 545, ¶ 56 (2011) ("Rule 8.5(b) expressly directs the trial judge to consider the rights of victims, who, like the defendant, are entitled under our Constitution to a speedy disposition of criminal charges.").
The Arizona Constitution protects a victim's right "[t]o a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence." Ariz. Const. art. II, § 2.1(A)10.
¶9 "Whether denying a continuance violates a defendant's constitutional rights depends on the facts and circumstances of a particular case." State v. Lamar, 205 Ariz. 431, ¶ 28 (2003). We must therefore examine the trial court's denial of Lindrud's third and fourth motions to continue his trial date in the context of this case's history. See id.
¶10 Lindrud was held in custody on a $50,000 bond after his initial appearance in August 2021. The following month, Lindrud appeared in custody and asserted his right to a speedy trial under Rule 8, Ariz. R. Crim. P. The trial court set his trial date for January 10, 2022. In October, the court granted Lindrud's motion to modify the conditions of his release, and he was released from custody to the supervision of pretrial services. In December, Lindrud filed his first motion to continue the January trial date in order to give his newly retained counsel more preparation time. The court granted this motion over the victim's objection and reset the trial for May 2, 2022. On April 14, Lindrud filed a second motion to continue in order to obtain an autism screening and to explore "[a]ny impact" autism may have had on his interactions with the victim during both "the alleged events and in the more recent interactions." The court again granted the motion over the victim's objection, and, after conferring with counsel regarding the new date, trial was reset for the end of June.
¶11 On June 9, Lindrud filed his third motion to continue, stating that he had obtained an autism screening but had been unable to locate an appropriate expert to evaluate him and potentially provide expert testimony concerning the effects his purported autism may have had on his interactions with the victim and his "interview with police officers." Based on this "evaluation and investigation of the Autism effects," Lindrud stated that a motion to suppress "may be appropriate and necessary." Lindrud offered no timeframe aside from noting that the ongoing search and any resulting expert consultation "will undoubtedly take time." The victim opposed the motion, and the state noted the disruptive impact the delay would have on the victim and her family, who had already "spent significant funds" to be present for trial. The trial court denied the continuance.
¶12 Lindrud then disclosed a new witness, M.D., eight days before trial and filed his fourth motion to continue, citing M.D.'s unavailability and asserting she was hospitalized following a heart attack. Lindrud avowed that M.D. would testify she did not recall seeing Lindrud with the victim during the years 2000-2003, nor did she meet the victim while living with Lindrud from late-2003 through 2004. The state objected to the continuance, citing surprise from the late disclosure, while the victim objected due to the emotional and financial strain of prolonging the trial and noted her family had already spent "thousands" on travel costs to enable her to be present at trial. The trial court denied the motion, and the case proceeded to trial on June 28.
¶13 Lindrud argues the trial court's denial of his motion to continue in order to find and retain an expert to evaluate his claimed autism diagnosis prevented him from challenging the credibility of the evidence against him, thereby violating his constitutional rights. Lindrud asserts the expert's evidence would have explained "his suggestibility and tendency to agree rather than confront or contradict the accusations made against him," which he maintains is relevant "to the voluntariness and veracity of his statements during the confrontation call." Lindrud similarly alleges that the denial of his motion to continue due to the unavailability of M.D. violated his "constitutional rights to due process, [to] a fair trial, to call his own witnesses, and to present a defense." Lindrud asserts that because M.D.'s absence was not his fault, it should have constituted an "extraordinary circumstance."
¶14 The trial court is in the best position to observe the parties and the proceedings. Therefore, it is the "only party in a position to judge the inconvenience of a continuance to the litigants, counsel, witnesses, and the court," State v. Hein, 138 Ariz. 360, 368 (1983), or whether "extraordinary circumstances" justify a continuance, and if "delay is indispensable to the interests of justice." Id. (quoting Ariz. R. Crim. P. 8.5(b)). The decision to grant a continuance "because of the absence of even a material witness is well within the trial court's discretion." State v. Nadler, 129 Ariz. 19, 22 (App. 1981). Furthermore, a trial court does not abuse its discretion in denying a continuance when there is "no real showing that the witness would have furnished testimony that would have altered the outcome of the case." State v. Bishop, 137 Ariz. 5, 9 (App. 1983). An argument relying on vague, speculative assertions is insufficient to demonstrate prejudice. Cf. State v. Wills, 177 Ariz. 592, 594-95 (App. 1993) (concluding defendant failed to establish prejudice from dismissal where claim of harm was "sheer speculation").
¶15 Lindrud's third motion to continue referred to an autism screening that he claimed indicated he had traits for autism, but it otherwise provided no information concerning the screening's results. Furthermore, Lindrud failed to provide any medical records to support his assertion that he was impaired by autism to a degree that he would falsely confess. This omission occurred despite the trial court granting a prior continuance to allow Lindrud to obtain the screening and explore any impact autism may have had on Lindrud's interactions with the victim.
¶16 Moreover, Lindrud's motion acknowledged that no expert had been found and that locating such an expert would "undoubtedly take time, as w[ould] the consultation, evaluation, and interviews that should occur once an expert is located." During the hearing on his motion, Lindrud stated that he "fully anticipat[ed]" filing a motion to suppress "statements made during the interrogation" with police once an appropriate expert was found. However, Lindrud's interview with law enforcement was not introduced into evidence at trial. Therefore, he was not prejudiced by the court's denial of his motion to continue in order to further his efforts to suppress those statements. See State v. Morris, 215 Ariz. 324, n.8 (2007) (holding defendant could not "establish prejudice from exhibits never admitted into evidence"). Lindrud did not clearly express a similar intention to attempt to suppress the one-party consent call or the letters written in police custody, even if he were able to locate an expert. He also conceded that none of the resources he had utilized to find an expert thus far had provided any viable assistance and that his search was "continu[ing]."
¶17 Lindrud's claim of error relies on speculative assertions, and he fails to demonstrate that the witness would have furnished testimony that would have altered the outcome of the case. See Bishop, 137 Ariz. at 9. He has therefore failed to demonstrate prejudice. See Wills, 177 Ariz. at 59495. Moreover, the trial court properly ruled that such an indeterminate delay, after two prior continuances over the victim's objection, would conflict with the victim's constitutional right to a speedy resolution of the case. See Dixon, 226 Ariz. 545, ¶ 56. Accordingly, the facts and circumstances of this case do not support Lindrud's assertion that the denial of his third motion to continue violated his constitutional rights, and we cannot say the court abused its discretion. See State v. Barreras, 181 Ariz. 516, 520 (1995) (finding court did not violate defendant's rights by rejecting continuance where "nothing in the record" indicated defendant was prejudiced).
"[W]hen the defendant's constitutional right to due process conflicts with the Victim's Bill of Rights in a direct manner. . . then due process is the superior right." State v. Kellywood, 246 Ariz. 45, ¶ 8 (App. 2018) (quoting State ex rel. Romley v. Superior Court, 172 Ariz. 232, 236 (App. 1992).
In their appellate briefs, the parties dispute the admissibility of the expert testimony Lindrud sought to obtain. However, because Lindrud has not established the trial court abused its discretion by denying his third motion to continue, we need not address whether the prospective expert testimony would have been admissible at trial.
¶18 Next, Lindrud asserts the trial court violated his Sixth Amendment right to present a defense by denying his fourth motion to continue. However, Rule 15.2(d)(1), Ariz. R. Crim. P., required Lindrud to disclose witnesses no later than ten days after the state's Rule 15.1(b) disclosure, which occurred in November 2021. The court may preclude a witness as a result of a party's untimely disclosure of that witness, unless the court finds (1) "the failure to comply was harmless" or (2) "the party could not have disclosed the information earlier with due diligence." See Ariz. R. Crim. P. 15.7(b). In addition, "Rule 8 does require more than just a mere allegation of a witness's unavailability to justify a continuance on that basis." State v. Vasko, 193 Ariz. 142, ¶ 14 (App. 1998). A court does not abuse its discretion by denying a continuance when a defendant fails to exercise proper diligence in securing a witness's appearance. State v. Richie, 110 Ariz. 590, 592 (1974).
¶19 Here, although Lindrud had ten months to prepare for trial, he disclosed M.D. as a witness eight days prior to the third trial setting of June 28, far outside the time limit imposed by Rule 15.2(d)(1). In addition, Lindrud and M.D. had apparently been friends since 2000, making Lindrud aware of this potential witness long before her disclosure. However, However, the defendant's right to present a complete defense does not include a right to perpetual trial continuances that do not meet the requirements of Rule 8.5(b). See State v. Prasertphong, 210 Ariz. 496, ¶ 26 (2005) (A defendant exercising the right to present a defense must conform to recognized evidentiary and procedural rules.). Lindrud offered no explanation as to why he had not disclosed M.D. within the timeframe required.
The trial court did not preclude M.D. as a witness, as it could have under Rule 15.7(b) and (c)(1). Instead, the court denied the motion to continue the trial but remained "open to hearing argument on whether this witness should be allowed to testify," if M.D. were to become available during trial and the state was given the opportunity to interview her. Lindrud made no further attempt to present M.D. as a witness.
¶20 Furthermore, the victim asserted that this potential continuance represented "a very significant hardship" to her financially and emotionally, while the state noted that M.D.'s late disclosure had disrupted its trial preparation. Lindrud's lack of diligence in securing M.D.'s attendance cuts against his claim of trial court error. See Richie, 110 Ariz. at 592. Moreover, the trial court is in the best position to determine the inconvenience of a continuance on the parties. Hein, 138 Ariz. at 368. Here, the court considered the "inconvenience to the litigants, counsel, witness, the Court, and other factors," as well as the victim's constitutional right to a speedy resolution of the case, and it did not abuse its discretion by denying Lindrud's fourth motion to continue his trial. See id.
The victim informed the trial court that her family and a close friend had spent "thousands of dollars" in travel costs to allow for the victim to be present for trial, and she further noted that delay would present a "significant hardship" to her work schedule, which she had already adjusted to accommodate the trial.
Dismissal of Juror
¶21 Lindrud asserts that the trial court erroneously excused a juror without evidence of bias, thereby denying him his right to an impartial jury. Because only the trial court can "observe the juror's demeanor and the tenor of his or her answers first hand," we will not disturb its decision absent a clear abuse of discretion. State v. Cook, 170 Ariz. 40, 54 (1991); see also State v. Hoskins, 199 Ariz. 127, ¶ 37 (2000).
¶22 During jury selection, the trial court asked the prospective jurors whether any of them, their close relatives, or their close friends had been charged with, convicted of, or witness to a crime. Juror 12, who did not respond to this question, had in fact testified the previous month in a criminal trial in which his former wife was the defendant and had separately been questioned by law enforcement during a child abuse investigation in which he was a suspect. The court, after conducting follow-up questions with Juror 12, determined that the juror had not been "forthcoming" during the selection process and excused the juror from the panel.
A bailiff from that previous criminal proceeding was in attendance at Lindrud's trial, recognized Juror 12, and informed the trial court of Juror 12's prior testimony.
¶23 A juror may be removed for cause "if there is a reasonable ground to believe that the juror or jurors cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b). "In assessing a potential juror's fairness and impartiality, the trial court has the best opportunity to observe prospective jurors and thereby judge the credibility of each." Hoskins, 199 Ariz. 127, ¶ 37. A juror's willful failure "to respond fully to a direct question posed during the voir dire examination" constitutes misconduct. Ariz. R. Crim. P. 24.1(c)(3)(C).
¶24 Here, the trial court provided the juror an opportunity to be rehabilitated before concluding that his dismissal was appropriate. See State v. Martinez, 196 Ariz. 451, ¶ 28 (2000). The court possessed "the best opportunity" to evaluate Juror 12's credibility, Hoskins, 199 Ariz. 127, ¶ 37, and was able to personally appraise the juror's "demeanor" and the "tenor" of the juror's answers during the follow-up questioning. Cook, 170 Ariz. at 54.
¶25 Moreover, a defendant is "entitled to an impartial jury, not a particular jury." State v. Kolmann, 239 Ariz. 157, ¶ 27 (2016). To demonstrate actual prejudice from a juror's wrongful excusal, a defendant needs to show "that the jurors who actually served were not fair and impartial." State v. Morris, 215 Ariz. 324, ¶ 43 (2007). A finding of guilt by a "reconstituted jury," where, as here, "the alternate juror was chosen along with the regular jurors, heard all the evidence, and was instructed on the applicable law," does not violate a defendant's constitutional right to a fair trial. See Kolmann, 239 Ariz. 157, ¶ 27. The trial court did not abuse its discretion in excusing Juror 12, and Lindrud was not prejudiced by his excusal. See Hoskins, 199 Ariz. 127, ¶ 37; Morris, 215 Ariz. 324, ¶ 43.
Disposition
¶26 We affirm Lindrud's convictions and sentences.