State v. Sanders

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

GRANT EDWARD SANDERS, Appellant.

Nos. 1 CA-CR 24-0647
1 CA-CR 25-0046
(Consolidated)
FILED 11-28-2025

Appeal from the Superior Court in Yavapai County
No. S1300CR202301335
The Honorable Tina R. Ainley, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Deborah Celeste Kinney
Counsel for Appellee

C. Kenneth Ray, II, P.C., Prescott
By C. Kenneth Ray, II
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in
which Judge Daniel J. Kiley and Judge Brian Y. Furuya joined.

P A T O N, Judge:

¶1 Grant Edward Sanders appeals his aggravated assault
conviction and the superior court’s denial of his motion to vacate judgment.
For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to upholding the
jury’s verdict. State v. Burgess, 245 Ariz. 275, 277, ¶ 3 (App. 2018).

¶3 In November 2023, twelve-year-old Harry1 and his family
visited a family friend who lived in Sanders’s neighborhood. While biking
one evening, Harry saw some sheep or goats near Sanders’s property.
Harry returned a few times to look at the animals.

¶4 Once, after spotting Harry, Sanders and his girlfriend yelled
at him and called him a “little thief.” Harry left but later passed by on his
return to view the animals. This time, Sanders chased Harry down and
started loudly berating him. Harry repeatedly said he did not steal
anything and was only there to look at the animals. Sanders grabbed him
by the neck of his sweatshirt and yanked him off the ground. Harry
screamed for his dad.

¶5 One of the neighbors called 9-1-1. An officer interviewed
Sanders and his girlfriend at the scene, who both claimed they had heard
about several recent thefts in the neighborhood and thought Harry was
trying to commit burglary.

¶6 The State charged Sanders with one count of aggravated
assault—aggravated because he was over eighteen years of age at the time

1 We use a pseudonym to protect the victim’s identity. See Ariz. R. Sup. Ct.
111(i).

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of the alleged assault and Harry was less than fifteen years old. A.R.S. § 13-
1204(A)(6).

¶7 At trial, Sanders’s girlfriend testified that a neighbor, Ben,
grabbed Harry first, and Sanders pulled Harry away from Ben to protect
him. She did not mention Ben to law enforcement when she was
interviewed at the scene.

¶8 In his defense, Sanders’s counsel argued that (1) Harry was
not in reasonable apprehension of imminent physical injury, (2) Sanders’s
actions were justified because he was defending his property, and (3) he
only grabbed Harry to protect Harry from Ben. The jury found Sanders
guilty as charged.

¶9 During the sentencing phase, the court received a letter from
Sanders’s neighbor in support of mitigation. The letter detailed several
recent alleged crimes in the neighborhood. Sanders moved to vacate the
judgment, arguing his counsel provided ineffective assistance by failing to
exercise reasonable diligence to discover evidence of these alleged crimes.
The superior court denied his motion.

¶10 Sanders timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) Sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. The superior court did not err by not sua sponte striking Juror
No. 5 for cause.

¶11 Sanders argues he was denied his right to an impartial jury
because the superior court did not sua sponte strike an allegedly biased
juror. We review the court’s decision not to strike a juror for abuse of
discretion. State v. Medina, 232 Ariz. 391, 403, ¶ 36 (2013). Because Sanders
did not move to strike the juror, we review for fundamental error. Id.

¶12 Under fundamental error review, Sanders carries the burden
to show error exists, the error is fundamental, and the error caused him
prejudice. See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). An error is
fundamental if it (1) goes to the “foundation of the case,” (2) deprives the
defendant of “a right essential to his defense,” or (3) is “so egregious that
[the defendant] could not possibly have received a fair trial.” Id. If a
defendant establishes fundamental error, he must show prejudice by

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establishing that “a reasonable jury could have plausibly and intelligently
returned a different verdict” absent the error. Id. at 144, ¶ 31.

¶13 A criminal defendant has a constitutional right to be tried by
an impartial jury. U.S. Const. amend. VI; Ariz. Const. art. II, § 24. But “a
juror’s preconceived notions . . . do not necessarily render that juror
incompetent to fairly and impartially sit on the case.” State v. Martinez, 196
Ariz. 451, 459, ¶ 28 (2000) (citation omitted).

¶14 The defendant bears the burden of establishing that an
allegedly biased juror is “incapable of rendering a fair and impartial
verdict.” State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 21 (2018) (citation
omitted). The superior court must consider “the totality of a prospective
juror’s conduct and answers given during voir dire” in making this
determination and excuse a juror “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), 18.5(h). But the court has broad discretion to excuse or
retain a potential juror. State v. Jimenez, 255 Ariz. 550, 553, ¶ 8 (App. 2023).
Because the court personally observed the juror, we defer to its credibility
findings and question only whether the record supports the court’s
findings. State v. Puga, 259 Ariz. 229, ¶ 27 (App. 2025).

¶15 The juror at issue here indicated on her written questionnaire
that she found “aggravated assault of a minor a particularly heinous
crime.” When defense counsel questioned her orally, however, she
repeatedly and unequivocally assured the court that she could be impartial.
She avowed that her feelings about the crime would “[a]bsolutely not”
affect her ability to be fair and impartial because she was “able to hear facts
and make a legal decision with the facts presented . . . in a fair manner.” As
previously mentioned, Sanders did not object to the empanelment of this
juror—in fact, defense counsel expressly stated, “[s]ounds good to me”
regarding the juror at the end of his questioning.

¶16 The record supports the superior court’s implicit conclusion
that the juror could be fair and impartial. See Martinez, 196 Ariz. at 459, ¶
28 (“If a juror is willing to put aside his opinions and base his decision solely
upon the evidence, he may serve.”); State v. Bible, 175 Ariz. 549, 573 (1993)
(concluding that no fundamental error occurred when the superior court
did not sua sponte strike jurors who indicated that “they would find it
difficult but not impossible to be fair and impartial”). We discern no error—
let alone prejudicial, fundamental error.

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II. The superior court did not commit fundamental, prejudicial
error in failing to sua sponte instruct the jury on disorderly
conduct.

¶17 Sanders next contends the court committed fundamental
error in failing to sua sponte provide a jury instruction on the lesser-
included offense of disorderly conduct. He claims the jury could have
found that he did not place Harry in reasonable apprehension of imminent
physical injury but instead only disturbed Harry’s peace by engaging in
seriously disruptive behavior or making unreasonable noise. See A.R.S. §
13-1203(A)(2), -2904(A)(1), (2).

¶18 “An offense is ‘lesser included’ when the ‘greater offense
cannot be committed without necessarily committing the lesser offense.’”
State v. Carter, 249 Ariz. 312, 316, ¶ 10 (2020) (citation omitted). Whether an
offense is lesser included is a question of statutory interpretation, which we
review de novo. State v. Cheramie, 218 Ariz. 447, 448, ¶¶ 7-8 (2008). But we
review the superior court’s failure to sua sponte instruct the jury on a lesser-
included offense for fundamental error. State v. Tschilar, 200 Ariz. 427, 437,
¶ 39 (App. 2001). Sanders bears the burden of proving that (1) the trial court
erred, (2) the error was fundamental, and (3) he suffered prejudice from the
error. See Escalante, 245 Ariz. at 142, ¶ 21.

¶19 In non-capital cases, the superior court is not required to sua
sponte instruct the jury on every lesser offense supported by the record; in
fact, it should “exercise restraint” in doing so. State v. Gipson, 229 Ariz. 484,
486-87, ¶¶ 13, 15-16 (2012). The superior court must provide a lesser-
included offense instruction only when the absence of such an instruction
“would fundamentally violate [the] defendant’s right to a fair trial” and
“interferes with [the] defendant’s ability to conduct his defense.” State v.
Lucas, 146 Ariz. 597, 604 (1985), overruled in part on other grounds by State v.
Ives, 187 Ariz. 102, 106-09 (1996). We need not reach the issue Sanders raises
regarding whether disorderly conduct is a lesser-included offense of
aggravated assault, nor do we decide whether not instructing the jury on
disorderly conduct amounted to fundamental error, because, as discussed
below, Sanders has not met his burden of proving prejudice. See Escalante,
245 Ariz. at 142, ¶ 21.

¶20 Sanders relies on State v. Wall, 212 Ariz. 1 (2006) to argue he is
not precluded from a lesser-included offense instruction merely because he
pursued an “all-or-nothing” defense—meaning “that he is either guilty of
the charged offense or not guilty at all.” Id. at 3, ¶ 9.

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¶21 In Wall, our supreme court held the superior court abused its
discretion in denying the defendant’s lesser-included offense instruction
that was both requested by the defendant and supported by sufficient
evidence—merely because the defendant pursued an “all-or-nothing”
defense. Id. at 5-6, ¶¶ 25, 30. But Wall is distinguishable from the case at
hand because Sanders never requested the disorderly conduct instruction
he now claims the court should have sua sponte instructed the jury on. Id.
at 2-3, ¶ 7. Whereas the State bore the burden to show lack of prejudice in
Wall, here, Sanders bears the burden to show prejudice. State v. Wilson, 253
Ariz. 191, 197-99, ¶¶ 21, 28 (App. 2022) (reviewing the superior court’s
failure to give requested jury instruction for harmless error).

¶22 Sanders raises two arguments in support of prejudice—first,
that he is entitled to “assurance” that the jury did not only find him guilty
of aggravated assault because it determined he was guilty of “something”
and that was the only crime for it to consider. And second, that the jury
“may have concluded” that he did not intend to place Harry in reasonable
apprehension but rather was merely “seriously disruptive or acting
unreasonable in the verbal noise directed at [Harry].” (Emphasis added.)

¶23 Both of these arguments are based on pure speculation, and
he bears the burden to affirmatively prove prejudice beyond speculation.
Compare State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013), as amended
(Dec. 17, 2013) (citation and internal quotation marks omitted) (under
fundamental error review, defendant must “affirmatively prove prejudice
and may not rely upon speculation to carry his burden”), with State v.
Henderson, 210 Ariz. 561, 567, ¶ 18 (2005) (“Harmless error review places
the burden on the state to prove beyond a reasonable doubt that the error
did not contribute to or affect the verdict or sentence.”). He has therefore
not met his burden. The superior court did not commit fundamental,
prejudicial error by not sua sponte instructing the jury on disorderly
conduct.

III. The prosecutor did not commit prosecutorial error.

¶24 Sanders next argues the prosecutor committed prosecutorial
error or misconduct by falsely suggesting during witness questioning and
in closing argument that Ben did not exist. Sanders did not make this
objection at trial, so we review for fundamental error. State v. Murray, 250
Ariz. 543, 547, ¶ 11 (2021). To be entitled to relief, the defendant must show
the alleged error occurred, and the prosecutor erred intentionally, knowing
it was improper and prejudicial. State v. Shortman, 254 Ariz. 338, 343, ¶ 21
(App. 2022) (citation omitted). The defendant must then show that “it is

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reasonably likely the error could have affected the jury’s verdict, thereby
denying defendant a fair trial.” Id.

¶25 Sanders claims the prosecutor knew Ben existed because the
prosecutor listed Ben as a potential witness and, therefore, intentionally
misled the jury by suggesting that Ben was “a fabrication.” But the
prosecutor did not claim Ben did not exist. To the contrary, the prosecutor
expressly acknowledged that Ben was at the scene and argued that Sanders
fabricated his claim that Ben committed the crime instead of him. And
while cross-examining Sanders’s girlfriend, the prosecutor asked why she
did not tell police about Ben when she was interviewed at the scene, to
which she responded, “that night it might have slipped my mind” and she
questioned the “relevancy” of it. When the prosecutor asked her if she
created the story she responded, “[a]bsolutely not.” In other words, the
jury heard Sanders’s girlfriend’s explanation as to why she did not mention
Ben at the scene and her testimony that she did not fabricate Ben’s
involvement. We discern no error.

IV. The superior court did not err in denying Sanders’s motion to
vacate judgment.

¶26 Finally, Sanders claims the superior court erroneously denied
his motion to vacate. We review the denial of a motion to vacate for abuse
of discretion. State v. Nordstrom, 200 Ariz. 229, ¶ 90 (2001).

¶27 In his motion to vacate, Sanders argued that his trial counsel
was ineffective in failing to exercise due diligence to discover evidence of
the alleged crimes detailed in his neighbor’s letter. But we do not address
ineffective assistance of counsel claims on direct appeal. State v. Spreitz, 202
Ariz. 1, 3, ¶ 9 (2002).

¶28 Sanders also argues for the first time on appeal that the new
evidence presented in the letter provided basis to vacate the judgment.
Because he did not make this argument in the superior court, it is waived.
State v. West, 238 Ariz. 482, 496, ¶ 49 (App. 2015). Regardless, his claim fails
on the merits. Newly discovered evidence may provide a basis to vacate
judgment if (1) the defendant exercised due diligence in discovering the
evidence, (2) the evidence is material, not merely cumulative or
impeaching, and (3) the evidence would have likely changed the verdict if
introduced at trial. Ariz. R. Crim. P. 24.2(A)(2), 32.1(e); State v. Parker, 231
Ariz. 391, 408, ¶ 78 (2013).

¶29 The information about neighborhood crime is not newly
discovered evidence. See Ariz. R. Crim. P. 32(e). Sanders admits the

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evidence could have been discovered with due diligence. See id. Further,
the evidence is cumulative because Sanders’s girlfriend testified extensively
about reports of alleged crimes in the neighborhood at trial, and Sanders
argued to the jury that his actions were justified as a result. See id.
Therefore, additional evidence of alleged crimes in the area contained in the
letter would not have likely changed the jury’s verdict. See Ariz. R. Crim.
P. 24.2(A)(2), 32.1(e)(3).

CONCLUSION

¶30 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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