STATE v. ROSS

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) DOUGLAS ERIC ROSS, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 1/3/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 11-0539 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-130472-001 The Honorable Connie Contes, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee Phoenix Ballacer & Segal By Natalee E. Segal Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 Douglas Eric Ross appeals his criminal convictions and sentences. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Ross was indicted for one count of burglary in the first degree, a class 2 dangerous felony (count 1); six counts of kidnapping, all class 2 dangerous felonies (counts 2-7); six counts of armed robbery, all class 2 dangerous felonies (counts 8-13); and one count of misconduct involving weapons, a class 4 dangerous felony (count 14). The charges stemmed from an armed robbery that took place at a Tempe home during a poker game. ¶3 Ross himself at counts. waived trial. his A right jury to counsel returned guilty and represented verdicts on all Ross was sentenced to 13 slightly aggravated terms of 17 years for counts 1-13 and a presumptive 10-year term for count 14. The sentences were ordered to run concurrently, with 390 days presentence incarceration credit. ¶4 to Ross timely appealed. Arizona Revised Statutes We have jurisdiction pursuant ( A.R.S. ) sections 12-120.21, 13-4031, and -4033. DISCUSSION ¶5 Ross raises one issue on appeal. He contends the superior court failed to respond meaningfully to a juror s question. Ross, however, did not object at trial, so we review 2 for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (citation omitted). ¶6 To obtain relief under the fundamental error standard of review, [the defendant] must first prove error. ¶ 23, 115 P.3d at 608. Id. at 568, 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 possibly have received a fair trial. Id. at 567, ¶ 19, 115 P.3d at 607 (internal quotation marks omitted). ¶7 On the fourth day of trial, the court received a juror question that stand? prosecution officers. At read: Can that point, witnesses, the jury the including recall jury six had a witness heard victims and to the from eight two police Out of the presence of the jury, the court consulted Ross and the prosecutor. The court stated, I don t think the jury has the power to call witnesses. I think if they ask a more precise question, we might be able to address it. . . . Any objection? Ross stated that he had no objection. The prosecutor agreed, stating, as long as we tell them if they have a more precise question, we can answer that. The court thereafter read the juror question in open court and informed the jury: 3 I ve discussed this with the parties. The jury does not have the subpoena power or the right to call witnesses. The parties have that. If there s a more precise question regarding specific information, I can address that with the parties, but the jury in terms of inherent powers does not have the right to call or recall a witness. ¶8 We himself find concedes no error, the court subpoena power. The Criminal Procedure was 18.6(e) they are directed permitted to court to witnesses fundamental correct complied ( Jurors submit to or the to or that with shall the otherwise. . jury no of instructed written . has Rule Arizona be court court a Ross . that questions . ). After receiving the question, the court suggested a possible response and gave Ross (who had advisory counsel) an opportunity to be heard. The court advised jurors they could pose a more precise question cites no regarding authority specific for the information, if proposition that desired. the court Ross was required to do more, and we are aware of none. ¶9 Additionally, Ross has failed to demonstrate prejudice arising from any arguable error. To prevail under fundamental error analysis, [the defendant] must show that the error is so substantial that it goes to the foundation of the case and it caused him prejudice. State v. Lucero, 223 Ariz. 129, 134, ¶ 12, 220 P.3d 249, 254 (App. 2009). 4 ¶10 and Ross asserts he was deprived of his right to a jury his due process right. However, authority for these conclusory claims. he cites no legal See Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) (appellate courts generally do not consider arguments posited without authority ). Moreover, even assuming that the juror who authored the question had a specific witness in mind, it is wholly speculative to assume that re-calling witness would have assisted the defense. Youngblood, 173 Ariz. 502, 506, 844 P.2d a prosecution See, e.g., State v. 1152, 1156 (1993) ( Speculation is not the stuff out of which constitutional error is made. ); State v. Martin, 225 Ariz. 162, 166, ¶ 15, 235 P.3d 1045, 1049 (App. 2010) ( Speculative prejudice is insufficient under fundamental error review. ). CONCLUSION ¶11 For the reasons stated, we affirm Ross s convictions and sentences. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ JOHN C. GEMMILL, Presiding Judge /s/ DIANE M. JOHNSEN, Judge 5

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