State v. Holmes

1

The State of Arizona, Appellee, v. Steven Charles Holmes, Appellant.

No. 2 CA-CR 2023-0076

Court of Appeals of Arizona, Second Division

October 21, 2024

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County Nos. CR20192402001 and CR20213430001 The Honorable Kimberly H. Ortiz, Judge The Honorable James E. Marner, Judge

Kristin K. Mayes, Arizona Attorney General Alice M. Jones Deputy Solicitor General/Section Chief of Criminal Appeals By Emily Tyson-Jorgenson, Assistant Attorney General, Tucson Counsel for Appellee

Megan Page, Pima County Public Defender By Erin K. Sutherland Assistant Public Defender, Tucson Counsel for Appellant

Judge Vasquez authored the decision of the Court, in which Presiding Judge O'Neil and Judge Kelly concurred.

MEMORANDUM DECISION

VASQUEZ, JUDGE:

¶ 1 After a jury trial, Steven Holmes was convicted of three counts of sexual assault; two counts of sexual assault, domestic violence; aggravated assault, domestic violence; and kidnapping, domestic violence.^[1]The trial court sentenced him to concurrent and consecutive prison terms totaling thirty-three years. On appeal, Holmes argues the court erred by failing to strike a juror for cause and admitting other-acts evidence. He also contends that the prosecutor committed multiple errors, which individually and cumulatively tainted the verdict and denied Holmes his right to a fair trial. For the following reasons, we affirm.

Factual and Procedural Background

¶ 2 We view the evidence in the light most favorable to sustaining the jury's verdicts. See State v. Causbie, 241 Ariz. 173, ¶ 2 (App. 2016). Holmes and C.R. met on a dating website in 2015. On their second date, C.R. drove to Holmes's apartment to watch a movie. After giving Holmes a back massage and believing he was asleep, C.R. tried to leave, but Holmes "pulled [her] back onto the bed and got on top of [her] and began to strangle [her]" with "both of his hands around [her] neck." Holmes then forced C.R. to perform oral sex on him and penetrated her both vaginally and anally without her consent.

¶ 3 Several weeks later, C.R. went back to Holmes's apartment because she "was pissed" and "wanted to fight him." But once she arrived, "the fight in [her] just kind of left" and they talked "[f]or quite some time" before engaging in consensual sex. Over the next several months, C.R. continued to see Holmes "about twice a month" for consensual vaginal sex, until their last encounter on February 14, 2016. On that date, C.R. drove to Holmes's apartment, and he again penetrated her vaginally without her consent.

¶ 4 Sometime after the end of their relationship, C.R. began an online search to determine whether Holmes had "do[ne] this to somebody else." C.R. created fake profiles on a dating website and used them to communicate with Holmes, "wrote a Craig list ad out asking if anyone else had been sexually assaulted by him," and conducted public records searches to discover the names of "various people [she] thought he might be connected to." C.R. found several women, who had been involved with Holmes, and contacted them using fake profiles through various communication outlets. When C.R. eventually reported Holmes to the Tucson Police Department in 2019, she relayed those names to the detective.

¶ 5 One of these women was L.M., who had met Holmes through work in 2018.^[2] Between September 2018 and January 2019, Holmes and L.M. engaged in what L.M. described as a "purely physical" extra-marital affair, meeting a "few times a month" for consensual vaginal intercourse and oral sex.^[3] Holmes expressed interest in anal sex to L.M., but she refused. During one instance of vaginal sex, Holmes "pulled out for a second and then when he tried to reenter, it was in the wrong place." L.M. told him he was in the "wrong spot," and when Holmes tried again, L.M. got upset because she "could not have been more clear that that wasn't [her] thing." L.M. continued to see Holmes periodically until she moved out of the state in January 2019, ending their relationship.

¶ 6 Holmes was arrested in May 2019, after C.R. had reported him to the police. As amended, the 2019 indictment charged Holmes with three counts of sexual assault and one count of sexual assault, domestic violence against C.R., and one count of sexual abuse against L.M. In June 2019, Holmes was granted conditional release pending trial for those charges.

¶ 7 While on release, Holmes became friends with C.O., and they eventually began a sexual relationship. Over the course of their relationship, C.O. would drive to Holmes's apartment "quite a bit" to engage in consensual vaginal sex, which also occasionally included consensual strangulation. In August 2021, C.O. went to Holmes's apartment, and what had started as consensual sex turned into Holmes vaginally penetrating C.O. without her consent while "start[ing] to choke [her] with both of his hands" and refusing to let go. C.O. reported the incident to the Tucson Police Department that afternoon, and she subsequently underwent a sexual assault examination and an interview with a forensic sexual assault nurse. The exam revealed injuries consistent with strangulation and signs of vaginal penetration. Holmes was arrested, and in September 2021, he was indicted for sexual assault, aggravated assault, and kidnapping, all domestic violence offenses, against C.O.

¶ 8 The 2019 and 2021 cases were consolidated for trial, and Holmes was convicted and sentenced as described above. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion I. Failure to Strike Juror 11 for Cause

¶ 9 Holmes argues that the trial court's refusal to strike Juror 11 for cause was structural error that resulted in a denial of his constitutional right to a fair trial. We review a court's refusal to strike a juror for cause for an abuse of discretion. State v. Colorado, 256 Ariz 97, ¶ 23 (App. 2023).

¶ 10 A criminal defendant has a constitutional right to be tried by an impartial jury. U.S. Const. amend. VI; Ariz. Const. art. II, § 24. A trial court must excuse a prospective juror if there is "reasonable ground to believe" that the juror "cannot render a fair and impartial verdict." Ariz. R. Crim. P. 18.4(b). Because the court has the greatest "opportunity to observe the potential juror's demeanor and credibility," State v. Lavers, 168 Ariz. 376, 390 (1991), it is in the best position "to assess whether prospective jurors should be allowed to sit," State v. Blackman, 201 Ariz. 527, ¶ 13 (App. 2002). "Trial courts thus 'retain broad discretion' to determine whether there are reasonable grounds to doubt that a venireperson will be able to serve as a fair and impartial juror." State v. Jimenez, 255 Ariz. 550, ¶ 5 (App. 2023) (quoting State v. Eddington, 226 Ariz. 72, ¶ 17 (App. 2010)). We will not set aside a court's ruling on whether to excuse a juror for cause "absent clear and prejudicial abuse of that discretion." State v. Milke, 177 Ariz. 118, 122 (1993); see Colorado, 256 Ariz. 97, ¶ 23. As the party challenging a juror for cause, Holmes has the burden to establish by a preponderance of the evidence that Juror 11 was incapable of being fair and impartial. See Ariz. R. Crim. P. 18.5(h); see also State v. Comer, 165 Ariz. 413, 426 (1990). Based on the record before us, we conclude the trial court did not abuse its discretion by denying Holmes's request to strike Juror 11.

¶ 11 Holmes testified in the morning and the afternoon on the fifth day of trial. After the defense rested, Holmes moved to strike Juror 11 for cause because she had "refused to look at [him] during his testimony" and had "her right shoulder and right back to him the entire time," looking only "at the defense table and prosecutor during questioning." Holmes further argued that, although Juror 11 took an oath to be fair and impartial, "[b]y her body language, she [had] indicated she was unwilling to consider [his] testimony." The state countered that Juror 11 "didn't have her hands over her ears" and that there was "no reason to believe that she was not listening or not absorbing what he had to share." Relying on the presumption that jurors will follow their oath of impartiality, the state urged that "unless and until we receive some kind of affirmative evidence that she is not following her oath," the trial court should not "take any actions." The court denied Holmes's request to strike Juror 11.

¶ 12 Before closing arguments the next day, Holmes renewed his motion to strike Juror 11, specifically requesting "that she be made an alternate" and suggesting the trial court "do a random drawing of the other alternate." The state objected. The court then stated the following:

I also noted what [defense counsel] pointed out .... Juror number 11, while Mr. Holmes was testifying[,] did not look at Mr. Holmes and I didn't see that behavior with any other witness. I did notice it as well. What I don't want to do is read into too much body language so I understand your concern. I'm acknowledging it. I saw similar behavior and noted it myself. However, I don't think it rises to the level of excusing her for cause because that [is] essentially what it would be. So while I do acknowledge your concern, the request is denied.

¶ 13 Citing Rule 18.4(b), Holmes contends the trial court abused its discretion because Juror 11's "body language provided reasonable grounds to believe that she was biased" and the court was therefore "required to strike her for cause." Holmes maintains the only "reasonable way to interpret" Juror 11's body language was as a clear signal that "she was biased against him, had made her mind up, and was not going...