State v. Dayton

544 P.3d 94

The STATE of Arizona, Appellee,

v.Robert Guy DAYTON Jr., Appellant.

No. 2 CA-CR 2022-0087

Court of Appeals of Arizona, Division 2.

Filed February 8, 2024

Appeal from the Superior Court in Pima County, No. CR20200910001, The Honorable Brenden J. Griffin, Judge. REVERSED

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 David J. Euchner, Assistant Public Defender, Tucson, Counsel for Appellant

Vice Chief Judge Staring authored the opinion of the Court, in which Judge Sklar concurred and from which Judge O’Neil dissented.

OPINION

STARING, Vice Chief Judge:

¶1 Defendant Robert Dayton Jr. was convicted of six counts of sexual conduct with a minor under the age of fifteen, as well as one count of indecent exposure to a minor under the age of fifteen. Dayton contends the trial court violated his constitutional right to a public trial when it excluded all "nonessential people" from the courtroom during a portion of the victim’s testimony. Because the court committed structural error by closing the courtroom without satisfying the requirements set forth in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, .81 L.Ed.2d 31 (1984)—the test the state urged as the only one we should apply—we reverse Dayton’s convictions and sentences. See State v. Ring, 204 Ariz. 534, ¶ 45, 65 P.3d 915 (2003) (structural error "automatically" results in reversal of guilty verdict); State v. Hancock, 240 Ariz. 393, ¶ 7, 379 P.3d 1024 (App. 2016) ("Where error is structural, prejudice is presumed and reversal is mandated regardless of whether an objection [wa]s made below."). Given this reversal, we refrain from addressing Dayton’s other arguments on appeal.

Factual 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 Dayton. State v. Fierro, 254 Ariz. 35, ¶ 2, 517 P.3d 635 (2022). Dayton was the, sporadic boyfriend of S.K.’s mother, AK., between 2014 and 2020. From 2018, to 2020, Dayton would frequently stay overnight at A.K.’s home in Sahuarita, Arizona. A.K. often worked overtime and would leave, Dayton in charge of S.K. and her siblings for ten to twelve hours at a time.

¶3 Dayton rented a storage unit in South Tucson. He occasionally took S.K. with him to retrieve items from the storage unit. S.K. testified the first instance of sexual conduct had occurred in August 2019, when she was thirteen. Dayton took her to the storage unit and made her perform oral sex on him and have vaginal sex. S.K. testified sexual conduct then occurred multiple times at the storage unit. The sexual acts continued into the following year and began occurring in S.K.’s home.

¶4 During this time, S.K. began having behavioral problems and skipping classes and school assignments. She refused to talk to her mother about friends and ran away from home more than once. She also suffered from worsening depression.

¶5 In February 2020, S.K. told her grandmother, C.W., about Dayton’s actions. S.K. became upset and frightened after telling C.W., and C.W. took S.K. to her Green Valley home. C.W. reported the abuse to authorities the next day. A sexual assault examination was performed on S.K., which revealed male DNA on the folds of skin where her thigh attached to her genitals. The DNA found during the examination matched the DNA profile later obtained from Dayton.

¶6 Dayton was indicted on eight counts of sexual conduct with a minor under fifteen and one count of indecent exposure to a minor under fifteen. After a five-day jury trial, he was acquitted of two counts of sexual conduct but convicted of the remaining charges. The trial court sentenced Dayton to six consecutive twenty-year prison terms for the sexual conduct convictions and a one-year consecutive term for the indecent exposure conviction—a combined total of 121 years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

[1, 2] ¶7 Dayton argues the trial court committed structural error by closing the courtroom to "non-essential people", during S.K.’s testimony, in violation of his right to a public trial as guaranteed by the United States and Arizona Constitutions. "We review both constitutional and structural error claims de novo." Hancock, 240 Ariz., 393, ¶ 7, 379 P.3d 1024. We defer to the court’s factual findings, but we review de novo, its. ultimate legal determination. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).

[3–5] ¶8 The United States Constitution and the Arizona Constitution guarantee a criminal defendant the right to a public trial. See U.S. Const. amend. VI; Ariz. Const. art. II, §§ 11, 24; Presley v. Georgia, 558 U.S. 209, 211-12, 130 S.Ct., 721, 175 L.Ed.2d 675 (2010) (Sixth Amendment right to public trial applies to states). "A ‘public trial’ is ‘a trial which is open to the general public at all times.’ " State v. Tucker, 231 Ariz. 125, ¶ 8, 290 P.3d 1248 (App. 2012) (quoting People v. Woodward, 4 Cal.4th 376, 14 Cal. Rptr. 2d 434, 436, 841 P.2d 954 (1992)). Because "the value of the public trial guarantee to the judicial system is incalculable," we carefully scrutinize any court orders that deny or restrict public access to a trial. Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306, 1308 (1994).

[6–8] ¶9 The denial of a public trial is one of the "relatively few instances" that are regarded as structural error. Hancock, 240 Ariz. 393, ¶ 7, 379 P.3d 1024 (quoting Ring, 204 Ariz. 534, ¶ 46, 65 P.3d 915). Structural errors "deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence." Ring, 204 Ariz. 534, ¶ 45, 65 P.3d 915 (quoting Neder v. United States, 527. U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Structural errors require reversal as a matter of law. Hancock, 240 Ariz. 393, ¶ 7, 379 P.3d 1024.

[9] ¶10 A criminal defendant’s right to a public trial is not absolute, however. See Waller, 467 U.S. at 45, 104 S.Ct. 2210 ("[T]he right to an open trial may give way in certain cases to other rights or interests …."); Tucker, 231 Ariz. 125, ¶ 8, 290 P.3d 1248 ("[B]oth federal and Arizona courts have recognized that the right to a public trial may be limited under some circumstances."). "Courts have generally upheld limitations on public access to criminal proceedings when there has been a need to protect victims, witnesses, or jurors from embarrassment or intimidation." Tucker, 231 Ariz. 125, ¶ 14, 290 P.3d 1248. See Ariz. Const. art. II, § 2.1(A)(1) (victim has the right "[t]o be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process"). But see Globe Newspaper Co. v. Superior Court for: Norfolk Cnty., 457 U.S. 596, 610, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (mandatory closure of sex crime trials involving minor victims violated First Amendment).

[10, 11] ¶11 In Tucker, we determined the test set forth by the Supreme Court in Waller "applies to both complete and partial closures of Arizona criminal trials." 231 Ariz. 125, ¶ 13, 290 P.3d 1248. Under that test, to overcome the "presumption that criminal proceedings will be open to the public," id. ¶ 8, "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; the closure must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the proceeding; and the court must make findings to support the closure," KPNX-TV Channel 12 v. Stephens, 236 Ariz. 367, ¶ 11, 340 P.3d 1075 (App. 2014) (quoting Waller, 467 U.S. at 48, 104 S.Ct. 2210); Tucker, 231 Ariz. 125, ¶ 9, 290 P.3d 1248. The elements of the Waller test are conjunctive; all of them must be satisfied. 467 U.S. at 48, 104 S.Ct. 2210; Presley, 558 U.S. at 213-16, 130 S.Ct. 721.

¶12 S.K. testified on the second day of trial. She was sixteen years old at the time and had never testified in court. The court allowed S.K.’s personal service dog, which "helps her with anxiety and anticipating anxiety attacks and calming her," to sit beside her, outside the view of the jury. She stated she was "a little nervous" and testifying in court was "a little scary." The state began asking S.K. about her first sexual encounter with Dayton, and when asked to describe what had happened, she did not verbally respond initially. The state asked her whether "this [was] hard to talk about," and S.K. nodded her head before saying, "Yes," and indicating she "need[ed] a minute." After eliciting testimony from S.K. that Dayton had taken her to a storage unit and told her to take off her clothes, the state asked S.K. what had happened next. S.K. indicated she was having difficulty remembering details. S.K. testified Dayton had "[t]old [her] to get on [her] knees and start," after which the transcript indicates she trailed off. The state asked S.K. if it was "difficult to say out loud," and S.K. again responded, "Yes." The state told S.K. to take her time, and S.K. indicated she needed some water.

¶13 When questioning resumed, S.K. began to speak softly and mumble. The state asked S.K. if Dayton had said anything else to her, and she testified he had told her to "suck his D word" before stating she did not "want to say" what Dayton had told her. S.K. further testified Dayton had "put his penis in [her] mouth," and when the state asked her what had happened after that, S.K. did not respond. The state asked S.K. if she needed to take a break, and S.K. nodded her head and said, "Yeah." The state asked the trial court if S.K. could take a break, and the court agreed.

¶14 Outside the...