State v. Lindrud

1

The State of Arizona, Appellee, v. Mark Lee Lindrud, Appellant.

No. 2 CA-CR 2022-0122

Court of Appeals of Arizona, Second Division

October 26, 2023

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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.").^[1]

¶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 ...