State v. Platero

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

PAUL RANDOLPH PLATERO, JR.,
Appellant.

No. 1 CA-CR 19-0556
FILED 12-3-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-141031-001
The Honorable William R. Wingard, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael O'Toole
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
 STATE v. PLATERO
Decision of the Court

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

M O R S E, Judge:

¶1 Paul Randolph Platero Jr. ("Platero") appeals his convictions
and sentences for six counts of sexual conduct with a minor. For the
following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Dennis1 and his siblings moved with their mother, Melanie,
to Arizona in July 2017. Before moving into their own apartment, Dennis
and his family stayed approximately four weeks in a Phoenix home with
various men, including Platero.

¶3 In 2018, Platero was indicted on various charges, including six
counts of sexual conduct with a minor under fifteen years of age ("counts
one through six"). See A.R.S. § 13-1405. The offenses were charged as a
"class 2 felony" and "dangerous crime against children." See A.R.S. §§ 13-
1405(B), -705(Q)(1)(e).

¶4 Platero was tried in the summer of 2019. Dennis testified that
Platero engaged him in a series of sexual encounters while staying in the
same home in 2017. Dennis also testified at trial that he was eleven years
old, was born in January 2008, and was nine when he and his family were
staying in a home with Platero in the summer of 2017. Neither party
contested Dennis's age.

¶5 A jury found Platero guilty of sexual conduct with Dennis, a
minor, and further found that Dennis was under fifteen for counts one
through six. The trial court's minute entry reflects that the jury rendered its
verdicts at 3:15 p.m., which were then read aloud by a clerk. The trial judge

1 We adopt the pseudonym provided in the State's answering brief to
refer to the victim. See Ariz. R. Crim. P. 31.10(f).

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then polled the jury members. Upon conclusion of the poll, the trial judge
discharged the jury, stating:

Folks, that concludes your service as jurors on this case, and I
very much appreciate all the time and effort you put into this.
It means a whole lot to our system of justice, and all of the
parties appreciate it. You will be released from the
admonition now. Feel free to talk about the case, not talk
about the case, however you wish to handle it. But in any
event, I truly do, on behalf of all the parties, wish to thank you
for all of your time and effort that you've put into this.

¶6 The trial judge finished by noting that the jurors, if they so
desired, were free to stick around to provide feedback to the attorneys.
After the jury exited the courtroom, and the court began discussing
sentencing dates, the prosecution indicated that the verdict forms for counts
one through six should have included the option of finding that Dennis was
under the age of twelve. The prosecution asked the court to recall the jury
so it could make this further determination, and the court sent a clerk to
gather the jurors back into the courtroom. Platero's defense did not object
to the recall and consented to amend the verdict forms to allow the jury to
find whether Dennis was under twelve years of age, "without going
through the guilty/not guilty part again[.]" The jury returned and was
present in the courtroom at 3:26 p.m. Addressing the jury, the trial judge
explained:

Folks, after you left—and I apologize for bringing you back.
But after you left, we realized I had an error on the jury form.
The finding as to the age of the child is not [fifteen]. It should
be [twelve]. Okay? So . . . I'm going to ask you to take forms
[one] through [six] back and to talk amongst yoursel[ves], just
like you did for deliberations, to determine whether or not
you find the child was under the age of [twelve] at the time of
the offenses. And if you could just write that on these forms,
I'd very much appreciate it.

¶7 After deliberating, the jury further found that Dennis was
under twelve for counts one through six.

¶8 Platero timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and -4033(A).

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DISCUSSION

¶9 Platero argues the trial court violated the Fifth Amendment
of the United States Constitution and committed fundamental error when
it recalled the jury to determine whether Dennis was under twelve for
counts one through six. He also argues that the trial court violated Article
6, Section 27, of the Arizona Constitution by commenting on evidence when
addressing the jury.

I. Recalling the Jury.

¶10 Platero argues the trial court erred in recalling the jury after it
had been discharged. Because Platero consented to recalling the jury and
amending the jury verdict forms, we review for fundamental error. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). "[T]he first step in fundamental
error review is determining whether trial error exists." State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). If we find error, we "must decide whether
the error is fundamental." Id. An error is fundamental if "(1) the error went
to the foundation of the case, (2) the error took from the defendant a right
essential to his defense, or (3) the error was so egregious that he could not
possibly have received a fair trial." Id. A defendant who establishes
fundamental error under the first or second prong "must make a separate
showing of prejudice," while a defendant who establishes fundamental
error under the third prong has ipso facto shown prejudice. Id. "The
defendant bears the burden of persuasion at each step." Id.

¶11 Platero argues that recalling the jury to deliberate on Dennis's
age was fundamental error. However, because it was undisputed that
Dennis was only eleven years old when he testified at trial, it is beyond
implausible that any jury could have failed to find that he was under twelve
at the time of the alleged offenses. See Henderson, 210 Ariz. at 570, ¶ 33
(finding no reasonable jury could have failed to find the existence of a
statutory aggravator where it was undisputed that victim's age was over
sixty-five). Therefore, even assuming that recalling the jury constituted
error, Platero is unable to make the necessary showing that that the error
caused him prejudice. Id. at 569, ¶ 28 ("We review for fundamental error to
determine whether a reasonable jury, applying the correct standard of
proof, could have failed to find the existence of [the] aggravator."). Because
Platero cannot show prejudice, recalling the jury was not so egregious an
error "that [Platero] could not possibly have received a fair trial." Escalante,
245 Ariz. at 142, ¶ 21.

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¶12 Platero cites to State v. Crumley, in which a trial court recalled
a discharged jury after realizing the issue of the defendant's prior
convictions had been overlooked. 128 Ariz. 302 (1981). The trial court
attempted to recall the jury but some of the jurors had already left the
courthouse and returned home. Id. at 305. The entire jury did not
reconvene until the following morning to consider the defendant's prior
convictions. Id. The Arizona Supreme Court set aside the sentence on
appeal, holding:

Once discharged, we think this jury could not be properly
recalled to further decide an issue of this case. It is simply too
dangerous a practice to discharge the individual jurors from
the duties and obligations of their oath, send them back into
the community without admonitions or instructions, and then
recall those same jurors to make a fair and impartial
determination of any remaining issue connected with the
case.

Id. at 306; see also Dietz v. Bouldin, 136 S. Ct. 1885, 1894 (2016) (stating that
federal district courts should "determine whether any juror has been
directly tainted" when considering whether to recall a jury in a civil case).2

¶13 While the Court in Crumley expressed concern with recalling
jurors who had been "sen[t] . . . back into the community without
admonitions or instructions," it limited its decision to "an ad hoc
determination based on the narrow factual situation of this case," and, thus,
did not establish a rule barring courts from ever reconvening a discharged
jury for further deliberation. Id. Precedent from other jurisdictions "falls
within two camps on whether a jury may be recalled after discharge . . . ."
Wagner v. Jones, 758 F.3d 1030, 1034-35 (8th Cir. 2014) (collecting cases),
abrogated by Dietz, 136 S. Ct. at 1891. Some courts have declined to find that
a jury can never be recalled in a criminal case. E.g., United States v. Figueroa,
683 F.3d 69, 73 (3rd Cir. 2012) (finding the jury's release does not preclude
recall if the "jurors did not disperse and interact with any outside
individuals, ideas, or coverage of the proceedings"); United States v. Rojas,
617 F.3d 669, 678 (2d Cir. 2010) ("It is significant that, although the jury had
technically been declared discharged by the court, it had not dispersed. The

2 The holding in Dietz is limited "to civil cases only." 136 S. Ct. at 1895.
The Supreme Court noted the "additional concerns in criminal cases, such
as attachment of the double jeopardy bar," and expressly declined to
address "whether it would be appropriate to recall a jury after discharge in
a criminal case." Id.

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jurors were therefore not exposed to outside factors . . . ." (internal quotation
marks omitted)); Summers v. United States, 11 F.2d 583, 586 (4th Cir. 1926)
("[T]he mere announcement of [the jury's] discharge does not, before they
have dispersed and mingled with the bystanders, preclude recalling them.")
(citation omitted); State v. Clements, 423 P.3d 253, 261-62, ¶¶ 40-46 (Wash.
App. 2018) (affirming recall where verdicts had been read at 2:26 p.m. and
jury reassembled in courtroom at 2:42 p.m.); People v. McNeeley, 575 N.E. 2d
926, 929 (Ill. App. 1991) (affirming recall where the judge "could have
properly concluded that the [discharged] jurors were subjected to no
improper outside influences"); Masters v. State, 344 So.2d 616, 620 (Fla. App.
1977) (placing the burden on the defendant to prove outside influence on a
jury during the period of discharge). But other courts have applied a bright-
line rule against jury recall following discharge. E.g., State v. Green, 995
S.W.2d 591, 614 (Tenn. Crim. App. 1998) ("[O]nce a jury in a felony case has
been discharged and outside contacts may have occurred, the jury may not
be reconvened for the purpose of taking further action involving the
accused") (internal quotation marks omitted); Blevins v. State, 591 N.E.2d
562, 563 (Ind. App. 1992) ("Any action of the jury after its discharge is null
and void."); People v. Rushin, 194 N.W.2d 718, 721-22 (Mich. App. 1971)
(finding error where jury reconvened after leaving the courtroom, "be it for
two minutes or two days"); Melton v. Commonwealth, 111 S.E. 291, 293 (Va.
1922) ("When the court announces their discharge, and they leave the
presence of the court, their functions as jurors have ended, and neither with
nor with without the consent of the court can they amend or alter their
verdict.").

¶14 This case does not present the "narrow factual situation" that
was present in Crumley. 128 Ariz. at 306. There, when the court tried to
recall the jury, two of the jurors had already returned home and at least
some of the jurors did not return to the courtroom until the following
morning. Id. at 305. In contrast, each of the jurors in this case returned to
the courtroom only minutes after discharge, and there is no indication that
the jurors had left the courthouse. Indeed, the jury was present in the
courtroom at 3:15 p.m. before returning their initial verdicts, which were
then read aloud by the clerk. After discharge, the jurors were gathered back
to the courtroom by 3:26 p.m. and had been gone for less than ten minutes
before returning for further deliberation.

¶15 Platero points out that we have no record of the emotions to
which the jurors may have been exposed, whether they had discussions
with non-jurors, or what phone calls or text messages they may have made
to family and friends during the brief period between their discharge and
recall. See Dietz, 136 S. Ct. at 1894-95 (stating that federal district courts

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should consider "whether the jurors have spoken to anyone about the case
after discharge[,]" "the reaction to the verdict[,]" and the "extent just-
dismissed jurors accessed their smartphones or the internet"). Although the
best practice would have been for the trial court to conduct an inquiry to
"determine whether any juror ha[d] been directly tainted," id. at 1894,
Platero consented to re-empaneling the jury and did not ask the court to
make such an inquiry, see Dietz v. Bouldin, 794 F.3d 1093, 1099 n.6 (9th Cir.
2015) (stating that an inquiry into whether jurors were exposed to
compromising influences "may not be necessary where the parties have
explicitly stipulated to the recall procedure"), aff'd, 136 S. Ct. 1885 (2016); see
also Clements, 423 P.3d at 262, ¶ 43 (noting that when the jury reconvened
within sixteen minutes after verdict had been read that "[t]he time was so
short that neither a cautious court nor counsel expressed a need to question
the jurors about what they had been doing in those few minutes").

¶16 Because he did not object below, the burden is on Platero to
establish that any fundamental error caused him prejudice, Escalante, 245
Ariz. at 142, ¶ 21, and mere speculation about what the jurors may have
been exposed to in the minutes between discharge and recall is insufficient
to carry that burden, see State v. Riley, 248 Ariz. 154, 180, ¶ 88 (2020)
(affirming convictions where defendant pointed to no evidence that he was
prejudiced by an allegedly erroneous trial instruction and merely asked the
court "to speculate that the jurors were misled or confused"); cf. also Dietz,
136 S.Ct. at 1896 ("There is no benefit to imposing a rule that says that as
soon as a jury is free to go a judge cannot rescind that order to correct an
easily identified and fixable mistake, even as the jurors are still in the
courtroom collecting their things.").

¶17 The lack of any potential prejudice and the immediate return
of the jury only minutes after discharge persuade us that the trial court did
not commit fundamental, prejudicial error. See Escalante, 245 Ariz. at 138,
¶ 1.

II. Double Jeopardy.

¶18 Platero also argues that the trial court placed him in double
jeopardy and violated his due process rights when it recalled the jury to
determine whether Dennis was under twelve for counts one through six.
See U.S. Const. amend. V ("[N]or shall any person be subject for the same
offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life,
liberty, or property, without due process of law . . . .").

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¶19 We fail to find that the trial court ever subjected Platero to
double jeopardy or deprived him of due process. The state indicted Platero
on charges of committing sexual conduct with a minor under fifteen years
of age, a "class 2 felony" and "dangerous crime against children," in
violation of A.R.S. § 13-1405 and -705. When the jury returned its initial
verdicts finding Platero guilty as charged, he became subject to an
enhanced sentence under A.R.S. § 13-705. See A.R.S. § 13-1405(B) ("Sexual
conduct with a minor who is under fifteen years of age is a class 2 felony
and is punishable pursuant to § 13-705."). Section 13-705 imposes enhanced
sentencing for persons convicted of sexual conduct with a minor under
twelve years of age. See A.R.S. § 13-705(A) (providing that an adult
convicted of a dangerous crime against children in the first degree
involving sexual conduct with a minor who is twelve or younger shall be
sentenced to life imprisonment); see also A.R.S. § 13–705(B) (providing that
the same may be sentenced to life imprisonment, or alternatively, to a term
between thirteen and twenty-seven years). Thus, when the jury was
recalled, it determined whether Platero would be subject to an enhanced
sentence, not whether Platero was guilty of any new offense. See Rev. Ariz.
Jury Instr. ("RAJI") Statutory Crim. 7.05 (jury instructions) (5th ed. 2019)
("The sentence under A.R.S. § 13-705 differs depending on the age of the
victim. Therefore, the jury will still have to find the age of the child as part
of its aggravation verdict.").

¶20 Because the jury was recalled only to determine whether a
sentence-enhancing aggravator existed—whether Dennis was under
twelve at the time of the alleged offenses—the trial court did not subject
Platero to double jeopardy. See State v. Anderson, 210 Ariz. 327, 348, ¶ 87
(2005) (holding that "use of a second jury during the aggravation and
penalty phases does not constitute double jeopardy"); State v. Ring, 204 Ariz.
534, 548, ¶ 27 (2003) (noting that, except for in capital sentencing
proceedings, "[d]ouble jeopardy principles generally do not apply to
sentencing proceedings") (citing United States v. DiFrancesco, 449 U.S. 117,
132 (1980)).

III. Commenting on Evidence.

¶21 Platero claims the trial court coerced a guilty verdict by
commenting on evidence in violation of Article 6, Section 27, of the Arizona
Constitution, which provides that "[j]udges shall not charge juries with
respect to matters of fact, nor comment thereon, but shall declare the law."
Because Platero did not object to the trial court's statements, we review for
fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19. "A judge violates
Arizona's constitutional prohibition against commenting on evidence by

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expressing an opinion as to what the evidence proves, in a way that
interferes with the jury's independent evaluation of that evidence." Riley,
248 Ariz. at 179, ¶ 85 (internal quotation marks omitted). "An abstract
instruction may amount to a comment on the evidence if the instruction
indicates the trial judge's opinion regarding some evidence of the case." Id.
We will not reverse for technical error in pleadings or proceedings "when
upon the whole case it shall appear that substantial justice has been done."
Ariz. Const. art. 6, § 27.

¶22 Platero argues that the trial judge's statement that "[t]he
finding as to the age of the child is not [fifteen] . . . [i]t should be [twelve]"
was a "comment" on evidence which the jury may have misunderstood as
a directive to find that Dennis was under twelve. However, the court
prefaced this statement by explaining that it had made an error on the jury
verdict forms and followed it up by instructing the jury "to talk amongst
yoursel[ves], just like you did for deliberations, to determine whether or
not you find the child was under the age of [twelve] at the time of the
offenses." Read together, we do not see these statements as indicating to
the jury that the judge had formed an opinion about Dennis's age. Riley,
248 Ariz. at 179, ¶ 85. Instead, it is apparent the trial judge was clarifying
an earlier error with the verdict forms and explaining that the jury needed
to determine, for themselves, whether Dennis was under twelve for charges
one through six, rather than whether he was under fifteen.

¶23 Moreover, even were we to assume that the trial judge's
statements were an impermissible "comment" on the evidence, Platero fails
to show how the error caused him prejudice. See State v. Diaz, 110 Ariz. 32,
35 (1973) (noting that a judge's comment on evidence is error where
prejudicial). Mere speculation about how a jury may have confused an
instruction is insufficient to prove prejudice. See Riley, 248 Ariz. at 180, ¶
88. Moreover, because it was undisputed that Dennis was eleven years old
at the time of trial, no reasonable jury could have possibly failed to find that
Dennis was under twelve for counts one through six. See Henderson, 210
Ariz. at 570, ¶ 33. Any theoretical error with the judge's instructions did
not prejudice Platero. See Escalante, 245 Ariz. at 142, ¶ 21.

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CONCLUSION

¶24 We affirm Platero's convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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