State v. Khorrami

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RAMIN KHORRAMI, Appellant.

No. 1 CA-CR 20-0088
FILED 7-29-2021

Appeal from the Superior Court in Maricopa County
No. CR2015-002870-001
The Honorable Geoffrey H. Fish, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Coleman & Balogh LLP, San Diego, California
By Benjamin Lee Coleman, appearing Pro Hac Vice
Co-Counsel for Appellant

Papetti Samuels Weiss LLP, Scottsdale
By Bruce E. Samuels
Co-Counsel for Appellant
 STATE v. KHORRAMI
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the Court, in which
Judge Michael J. Brown and Judge David D. Weinzweig joined.

G A S S, Judge:

Ramin Khorrami appeals his convictions and the resulting
suspensions of sentences for one count of fraudulent schemes and artifices
and one count of theft. We affirm.

FACTUAL AND PROCEDURAL HISTORY

This court reviews the facts in the light most favorable to
sustaining the jury’s verdict, resolving all reasonable inferences against
Khorrami. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015). We use
pseudonyms for the victims to protect their privacy. See, e.g., State v. Bolivar, 250 Ariz. 213, 217, ¶ 2 n.1 (App. 2020).

Pearl and Khorrami met in May 2012. Pearl told Khorrami she
lived in Phoenix with her husband, Trey, and worked in real estate.
Khorrami told Pearl he lived in Los Angeles and offered to help her find
real estate clients there. They exchanged phone numbers. After Pearl
returned home, she and Khorrami regularly exchanged flirtatious text
messages and often spoke on the phone. When Pearl visited Khorrami a few
months later, they began a sexual relationship. Over the next few months,
Pearl frequently travelled to spend time with Khorrami. Pearl told
Khorrami she planned to leave Trey, and the two discussed a future
together.

Over time, Khorrami became jealous and paranoid. He
accused Pearl of having affairs with other men, demanded she send him
photographs throughout the day to show her location, and told her he hired
a private investigator to follow her. Later, Pearl angered Khorrami when
she decided to remain in her marriage. In response, he threatened to reveal
their affair to Trey. They then mended their relationship, and Khorrami did
not carry out his threat.

In June 2013, after another falling-out, Khorrami accused
Pearl of repeatedly lying to him and again threatened to reveal their affair
to Trey. Pearl pleaded with him not to do so, and he agreed to delay telling

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Trey while he thought about what to do. Khorrami called Pearl a few days
later and promised not to reveal the affair if she paid him $40,000.

After Khorrami’s money-for-silence proposal, Pearl began
secretly recording their phone calls. When Pearl next spoke with Khorrami,
they negotiated the terms. He agreed to accept $30,000, which she would
pay in multiple installments over a month. He required her to put a false
comment on the checks saying “Rose gold Rolex” and indicating the
remaining amount she owed. Khorrami sent Pearl text messages saying she
had “20 days to finish your deal, not one day more” and his “only
communication with [her] will be regarding [their] deal till [sic] the end of
July.”

The day they agreed to their deal, Pearl mailed Khorrami a
$5,000 check with the false comment. After Khorrami received the first
payment, he added to his demands. He told Pearl to call him every
morning, send pictures showing her location throughout the day, and
refrain from sexual relations with anyone except him. When Pearl at times
did not comply, he sent her text messages saying the “deal is off” and the
“deal is going to change.” He demanded an additional $10,000 after she
failed to answer a phone call. Khorrami eventually withdrew that demand.

A week after sending the first check, Pearl mailed Khorrami a
$2,000 check, then later a third check for the remaining amount of $23,000.
Khorrami rejected the final payment because Pearl did not include the false
comment on the check. At his demand, she sent another check with the false
comment. After receiving the fourth check, Khorrami demanded Pearl pay
$40,000 more and continue their sexual relationship, again threatening to
disclose the affair to Trey if she did not comply.

Pearl gave Khorrami another $4,000, but she also realized
Khorrami’s additional demands would never end and he never intended to
keep his side of the bargain. As a result, Pearl told Trey about the affair in
November 2013. The next day, Khorrami told Trey about the affair and
Pearl’s affairs with other men. Trey reported Khorrami to the police, and
Pearl and Trey filed a civil lawsuit against Khorrami.

The State ultimately tried Khorrami for one count of
fraudulent schemes and artifices, a class 2 felony, and theft, also a class 2
felony. After a twelve-day trial, the jury convicted Khorrami on both
counts. The superior court entered judgments of conviction, suspended
Khorrami’s sentence, and placed him on concurrent two-year terms of
supervised probation. The superior court also imposed a two-month jail

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term. Khorrami timely appealed. This court has jurisdiction under article
VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-
4033.A.1.

ANALYSIS

I. Sufficiency of the Evidence

Khorrami first argues his convictions lack sufficient evidence.
Citing Fasulo v. United States, 272 U.S. 620 (1926), and Norton v. United States,
92 F.2d 753 (9th Cir. 1937), he asserts the statutes underlying his convictions
“were not meant to govern the circumstances of this case.”

This court reviews de novo whether sufficient evidence
supports a conviction. State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). Evidence
is sufficient if the record contains “substantial evidence” of guilt, meaning
evidence “reasonable persons could accept as sufficient to support a guilty
verdict beyond a reasonable doubt.” Id. (citation omitted). “Reversible error
based on insufficiency of the evidence occurs only [when] there is a
complete absence of probative facts to support the conviction.” State v. Soto-
Fong, 187 Ariz. 186, 200 (1996) (quoting State v. Scott, 113 Ariz. 423, 424–25
(1976)).

“Evidence is not insubstantial simply because testimony is
conflicting or reasonable persons may draw different conclusions from the
evidence.” State v. Toney, 113 Ariz. 404, 408 (1976). This court will not
“reweigh evidence or reassess the witnesses’ credibility.” State v. Buccheri-
Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013). In its review, this court does not
distinguish between circumstantial and direct evidence. State v. Bible, 175
Ariz. 549, 560 n.1 (1993). Jurors usually must “infer [a defendant’s mental
state] from [the defendant’s] behaviors and other circumstances
surrounding the event.” State v. Noriega, 187 Ariz. 282, 286 (App. 1996).

To support Khorrami’s fraudulent-schemes-and-artifices
conviction, substantial evidence in the record must show: (1) pursuant to a
scheme or artifice to defraud; (2) Khorrami knowingly obtained any benefit
from the victim(s); (3) by means of false or fraudulent pretenses,
representations, promises, or material omissions. A.R.S. § 13-2310.A; see
State v. Haas, 138 Ariz. 413, 418–24 (1983) (describing statutory elements
under an earlier version of the fraud statute). “Reliance on the part of any
person” is not an element of the offense. A.R.S. § 13-2310.B. The superior
court instructed the jurors “the State must prove that the scheme or artifice
to defraud was intended to defraud, meaning it was intended to mislead
another person for the purpose of gaining some benefit.”

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The fraudulent-schemes-and-artifices statute is meant to
“encompass[] a very broad range of fraudulent activities.” Haas, 138 Ariz.
at 422 (citation omitted). Section 13-2310.A is violated “when [a] defendant
has knowingly [mis]led the adverse party . . . by active misrepresentations,
or omitting material facts which defendant knew were being
misunderstood, or by stating half-truths, or by any combination of these
methods.” Id. at 423.

To convict on the theft charge, the superior court instructed
the jurors the State had to prove Khorrami, without lawful authority,
knowingly obtained the victims’ “U.S. currency of a value of $25,000 or
more, but less than $100,000” by means of any material misrepresentation,
with the intent to deprive them of such currency. See A.R.S. § 13-1802.A.3.
Material misrepresentation means “a pretense, promise, representation or
statement of present, past or future fact that is fraudulent and that, when
used or communicated, is instrumental in causing the wrongful control or
transfer of property or services.” A.R.S. § 13-1801.A.8.

The record contains ample evidence from which a reasonable
juror could conclude Khorrami obtained money from Pearl under the false
pretense he would not reveal their affair to Trey. Pearl repeatedly testified
she believed she was buying Khorrami’s silence on the affair when they
agreed to the initial, negotiated payment of $30,000. She described in detail
how he led her to have that belief. She recounted the terms of their deal and
her compliance with them, despite Khorrami’s ever-changing demands.
And Pearl finally disclosed the affair to Trey once she was convinced
Khorrami had deceived her.

Pearl’s testimony, together with reasonable inferences, alone
is sufficient to support the jury’s verdicts. See State v. Felix, 234 Ariz. 118,
120–21, ¶ 10 (App. 2014) (affirming conviction based on single witness’s
testimony). The State further corroborated Pearl’s account with evidence of
phone calls and text messages between Pearl and Khorrami in which they
discussed the arrangement and its terms. And Khorrami took the money
from Pearl, spent it soon afterward, and made additional demands before
ultimately revealing the affair to Trey.

A reasonable juror could infer Khorrami required Pearl to
include the false comment on the checks from the outset so he could later
reveal the affair but still say he obtained the money legitimately.
Khorrami’s additional demands to maintain his silence after Pearl paid the
agreed-upon $30,000 bolstered the inference Khorrami’s intent was to
extract as much money as he could before he ultimately revealed the affair.

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Based on the above evidence, a reasonable jury could decide
Khorrami purposely misled Pearl to believe a false state of facts: if she paid
him $30,000, he would not reveal their affair. At the very least, reasonable
minds could disagree on the point. See Toney, 113 Ariz. at 408. Accordingly,
sufficient evidence supports his convictions.

Khorrami counters that he merely threatened Pearl, which is
not actionable fraud under Fasulo and Norton. We are not persuaded. Those
cases interpret a federal mail fraud statute to require an intent to deceive
but do not suggests a fraud conviction cannot stand simply because it is
accompanied by a threat. See State v. Johnson, 179 Ariz. 375, 381 (1994) (“This
is not to say that a crime can never satisfy the overlapping elements of both
theft and fraud.”). Those cases do not change our conclusion. The evidence
here was sufficient.

II. Jury Instructions

For the first time on appeal, Khorrami challenges the jury
instructions given for the charged offenses. First, Khorrami argues the
fraudulent-schemes-and-artifices instruction failed to require proof of
“materiality.” Second, he asserts the theft-by-misrepresentation instruction
should have required proof of justifiable reliance. Fundamental-error
review applies because Khorrami did not object to the instructions at trial.
See State v. Gomez, 211 Ariz. 494, 499, ¶ 20 (2005).

To obtain relief on fundamental-error review, a defendant
first must show “trial error exists.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21
(2018). If error exists, the defendant then must establish the error: (1) went
to the foundation of the case; (2) took away a right essential to the defense;
or (3) was so egregious the defendant could not possibly have received a
fair trial. Id.

Here, the instructions tracked the applicable statutory
language. See A.R.S. §§ 13-1802.A.3, -2310.A; see also Rev. Ariz. Jury Instr.
Stat. Crim. 18.02.01, 23.10 (5th ed. 2019). And the fraudulent-schemes-and-
artifices instruction was nearly identical to the instruction endorsed by the
Arizona Supreme Court. See State v. Bridgeforth, 156 Ariz. 60, 64–65 (1988).
Khorrami fails to carry his burden to show the superior court erred.

For the same reasons, we reject Khorrami’s argument the
superior court erred by failing to sua sponte instruct the jurors: (1) a breach
of contract does not constitute fraud, even if intentional; (2) the State had to
prove Khorrami did not intend to keep his promise at the time he made it;
and (3) a “heightened intent requirement cannot be met” by a defendant’s

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failure to perform. See State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998) (“Where
the law is adequately covered by instructions as a whole, no reversible error
has occurred.”).

Without citing any Arizona authority, Khorrami relies on
several federal cases addressing the materiality requirement in the federal
mail-fraud, wire-fraud, and bank-fraud statutes to assert the State must
prove materiality for all means of committing a violation of § 13-2310.A.
Those decisions are not controlling here. See Phoenix Newspapers, Inc., v.
Reinstein, 240 Ariz. 442, 449, ¶ 25 (App. 2016) (decisions of federal circuit
courts may be persuasive authority but are not binding on Arizona courts).

Unlike the federal mail-fraud statute, which is silent on
materiality, our legislature expressly included a “material” requirement in
§ 13-2310.A and only applied the requirement to “omissions.” The United
States Supreme Court held “materiality of falsehood is an element of the
federal mail fraud, wire fraud, and bank fraud statutes” because, in part,
those statutes neither defined “scheme or artifice to defraud” nor “even
mention[ed] materiality.” Neder v. United States, 527 U.S. 1, 20–25 (1999). The
Supreme Court said the absence of an express reference to materiality in the
federal fraud statutes indicated Congress’s intent to incorporate the
common-law meaning of fraud, which includes materiality. Id. Arizona’s
statute is different.

Khorrami’s suggested interpretation would render
superfluous the materiality element set forth in § 13-2310.A. See City of
Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552, ¶ 31 (2005) (“[W]e
do not interpret statutes in such a manner as to render a clause
superfluous.”). Khorrami invites us to impose a requirement the legislature
expressly chose not to require, which this court will not do. See Hart v. Hart, 220 Ariz. 183, 187, ¶ 17 (App. 2009).

Finally, this court has previously rejected Khorrami’s
argument a theft-by-misrepresentation conviction requires justifiable
reliance. See State v. Schneider, 148 Ariz. 441, 444–45 (App. 1985). We discern
no reason on this record to reconsider that decision.

III. Asserted Insufficient Notice

A. Indictment

Khorrami argues the indictment was fatally defective and
lacked sufficient notice because it “simply tracked the statutory language
and did not even identify the false promise or pretense that formed the basis

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of the two charges.” But Khorrami filed pretrial motions to dismiss the
indictment and never objected on the grounds he asserts now. Criminal
defendants are barred on appeal from challenging an alleged facial defect
in an indictment when they fail to make a proper objection before the
superior court. State v. Anderson, 210 Ariz. 327, 335–36, ¶¶ 14–17 (2005).

Even absent waiver, we find no error. “An indictment is
legally sufficient if it informs the defendant of the essential elements of the
charge, is definite enough to permit the defendant to prepare a defense
against the charge, and affords the defendant protection from subsequent
prosecution for the same offense.” State v. Far W. Water & Sewer Inc., 224
Ariz. 173, 187, ¶ 36 (App. 2010); see State v. Mallory, 19 Ariz. App. 15, 18
(1972) (charging document tracking statutory language generally provides
sufficient notice). Defendants must receive “actual notice of the charges,
from either the indictment or other sources.” State v. Freeney, 223 Ariz. 110,
115, ¶ 29 (2009).

The indictment was sufficiently specific. It tracked the
elements of the charged offenses, provided the statutory citations,
identified the victims, and listed the dates of the offenses and the county
where they occurred. Khorrami received notice of the factual allegations
from the grand jury transcript, joint pretrial statements, and pretrial
disclosures. See Freeney, 223 Ariz. at 114, ¶ 27 (listing other sources of
notice). Indeed, Khorrami recounted the factual allegations in his dismissal
motions. Accordingly, Khorrami received actual notice. See id.

B. Rebuttal Closing Argument

In this appeal, Khorrami for the first time argues the
prosecutor’s statement in rebuttal closing argument was a new liability
theory, impermissibly amending the indictment and risking a non-
unanimous verdict:

So whether you believe that the misrepresentation took place
the first time, the second time, the third time, the fourth time,
whatever time that you think that he misrepresented and he
was getting all this money, that’s a misrepresentation. If you
believe that the first time he said $30,000 for silence, do you
believe that he was really going to stay silent that time? Okay.
But do you believe it the second time? Do you believe it with
the $40,000? Do you believe it with the sexual demands?
During that time period if you believe he misrepresented this
one time, then that’s enough for that element.

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Because Khorrami failed to object at trial, this court reviews for
fundamental, prejudicial error. See Escalante, 245 Ariz. at 140, ¶ 12.

“Unless the defendant consents, a charge may be amended
only to correct mistakes of fact or remedy formal or technical defects. The
charging document is deemed amended to conform to the evidence
admitted during any court proceeding.” Ariz. R. Crim. P. 13.5(b). The
evidence and jury instructions constructively amend an indictment if they
“modify essential terms of the charged offense” and cause “a substantial
likelihood that the jury may have convicted the defendant for [a different]
offense.” United States v. Daraio, 445 F.3d 253, 259–60 (3rd Cir. 2006); see also
State v. Lua, 237 Ariz. 301, 305–06, ¶¶ 15–18 (2015) (reviewing whether jury
instructions constructively amended indictment).

Nothing in the record suggests the prosecutor sought to
amend the indictment by making the challenged remarks. The elements of
the offenses submitted to the jury were identical to those of the charged
offenses. See Freeney, 223 Ariz. at 113, ¶¶ 15–20. This court presumes jurors
follow the instructions they are given. State v. LeBlanc, 186 Ariz. 437, 439
(1996). For that reason alone, we reject Khorrami’s argument the State
violated Rule 13.5(b).

Moreover, the prosecutor did not urge conviction on an
improper basis. The State’s theory before and during trial was Khorrami
had a single scheme he implemented through a series of ongoing
transactions and he always intended to disclose the affair. See State v. Suarez, 137 Ariz. 368, 373 (App. 1983) (“A scheme to defraud thus implies a plan,
and numerous acts may be committed in furtherance of that plan.”). The
State pointed to Khorrami’s actions after making the agreement to further
demonstrate his fraudulent promissory intent.

And the record belies Khorrami’s complaint he had no notice
of the culpability theory he now protests. The day before the jury was
empaneled, during a hearing on trial issues, Khorrami sought and received
clarification from the State on the terms allegedly constituting the
agreement. Khorrami’s contention that he lacked notice is unfounded. See
Freeney, 223 Ariz. at 115, ¶ 29; see also State v. Eastlack, 180 Ariz. 243, 258
(1994) (“Defendant is entitled to notice of the crimes with which he may be
convicted, not the manner in which the [S]tate will prove his guilt.”).

IV. Victim Testimony

Khorrami challenges the admission of what he alleges are
“victim-impact” and “victim-opinion” testimony. This court generally

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reviews a superior court’s evidentiary rulings for abuse of discretion. State
v. Dann, 220 Ariz. 351, 365, ¶ 66 (2009). But because Khorrami did not object,
fundamental-error review applies. See Escalante, 245 Ariz. at 140, ¶ 12.

A. Asserted Victim-Impact Testimony

Khorrami argues the superior court improperly allowed the
State to elicit testimony from the victims describing how the offenses
personally affected them. We disagree.

Khorrami’s defense was he never entered into any agreement
with Pearl, arguing she fabricated its existence and manipulated Trey into
believing Khorrami exploited her. Khorrami’s counsel explained the
defense’s theory to the jurors in opening statement: Pearl and Trey sought
revenge against Khorrami.

To support that theory, defense counsel cross-examined Pearl
about her reasons for disclosing the affair to Trey when Khorrami had not
done so. Defense counsel then asked why she would pursue criminal
charges and a civil lawsuit against Khorrami, and not just “let sleeping dogs
lie?” Pearl said she had a “mental breakdown” from the experience, which
led Trey to report Khorrami to the police.

On redirect examination, the prosecutor asked Pearl to
explain “why [she] couldn’t let sleeping dogs lie.” She answered she
“endured so much pain and suffering” and “almost died.” She continued,
“I wouldn’t be alive if my husband didn’t make sure I was okay and fed
me. I really suffered and there’s a lot of this stuff what he did that’s not
covered in this case.” Khorrami did not object.

While cross-examining Trey, defense counsel asked, “How
much are you hoping to get from the civil lawsuit?” Trey replied he sought
only justice, not money. Defense counsel also questioned why Trey, and not
Pearl, had contacted the police and a civil attorney.

On redirect examination, the prosecutor asked Trey to explain
why he, not Pearl, reported Khorrami to the police. Trey said “[Pearl] was
unable to. She was completely incapable of doing anything. She wouldn’t
remember anything. She would be very fearful. Every day she locked the
door. [He’s] going to come after me to kill me.” Khorrami objected to this
response. Over Khorrami’s objection, Trey testified he had to help Pearl
deal with the effects of the experience, which in turn affected his career.

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When a party “open[s] the door” and invites later, generally
objectionable testimony, no error occurs if the other party’s response is
“pertinent,” meaning “specifically responsive to the invitation.” State v.
Leyvas, 221 Ariz. 181, 189, ¶ 25 (App. 2009) (citations omitted). Khorrami’s
opening statement and cross-examination suggested the victims reported
Khorrami to the police and filed a civil claim against him for money and
revenge. Khorrami opened the door to rebuttal testimony on those subjects,
making the victims’ reasons for their actions relevant. We find the questions
and answers sufficiently responsive to Khorrami’s invitation. See id. at ¶¶
25–26. The superior court did not err.

B. Religious References

Khorrami contends the State improperly elicited testimony
from the victims concerning religious beliefs to “demonize” him and to
portray the victims sympathetically. Specifically, he points to: (1) Trey’s
testimony he was initially attracted to Pearl in part because she was
interested in his religious faith; (2) Pearl’s testimony Khorrami and Trey
share Persian heritage; and (3) Pearl’s testimony she and Khorrami
envisioned a future together despite their different religious faiths.
Khorrami did not object to any of the cited instances.

Assuming without deciding the isolated remarks constituted
fundamental error, Khorrami fails to establish prejudice. He merely
speculates the remarks “likely added to the improper prejudice that tainted
the fairness of Mr. Khorrami’s trial.” Speculative prejudice is insufficient to
prevail on fundamental-error review. See Escalante, 245 Ariz. at 142, ¶ 21
(showing prejudice “involves a fact-intensive inquiry” (citation omitted)).

Moreover, the jurors learned of far more pertinent evidence
about Khorrami’s conduct. The jurors heard recorded phone calls in which
Khorrami repeatedly insulted Pearl using demeaning and profane
language. Pearl testified at length about the derogatory way he spoke to
her. Khorrami even conceded his demeaning conduct. In closing argument,
defense counsel told the jurors, “[Khorrami’s] an asshole. Okay? The way
that he spoke to [Pearl] is absolutely reprehensible and indefensible . . . . It
was disgusting, right? . . . He’s an ass.” Admitting the testimony, therefore,
did not deprive Khorrami of a fair trial by prejudicing the jury against him.
See State v. Weatherbee, 158 Ariz. 303, 305 (App. 1988) (improperly admitted
evidence may be harmless when it is “entirely cumulative”).

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C. Alleged Improper Opinion Testimony

On redirect examination, the prosecutor asked Pearl the
following:

Q: In your line of work, you know when people want to come
to a deal, right?

A: Yes.

Q: From everything that you experienced, did the defendant
ever want this -- ever intend on this deal staying in place?

A: Retrospectively looking at it, no.

Q: What do you feel like he wanted?

[Defense counsel]: Objection, speculation.

THE COURT: Overruled.

A: Revenge.

Khorrami argues the testimony constituted an improper
opinion. Fundamental-error review applies because Khorrami did not
object at trial on the ground he asserts on appeal. Escalante, 245 Ariz. at 140,
¶ 12.

“[L]ay testimony may include inferences or opinions” if based
on the witness’s perceptions and helpful to understanding the witness’s
testimony. State v. Ayala, 178 Ariz. 385, 387 (App. 1994); see also Ariz. R.
Evid. 701(a). The prosecutor’s introductory question pertaining to Pearl’s
“line of work” did not seek to qualify her under Rule 702 to offer an expert
opinion on the intent of contracting parties. See State v. Peltz, 242 Ariz. 23,
29, ¶ 18 (App. 2017) (approving lay witness opinion based on “training and
experience” as well as “logic”). Pearl’s testimony did not involve scientific,
technical, or specialized knowledge implicating Rule 702. Rather, her
testimony amounted to a reasonable inference based on her perception and
personal knowledge. See Ariz. R. Evid. 701. Pearl’s perception of
Khorrami’s motive assisted the jurors in determining whether Khorrami
had deceived Pearl by falsely promising payment would ensure his silence.
See id.

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V. Jury Size

Citing Ramos v. Louisiana, 140 S. Ct. 1390 (2020), Khorrami
argues—for the first time on appeal—he was unconstitutionally tried by an
eight-person jury. A twelve-person jury “is not a necessary ingredient of
‘trial by jury.’” Williams v. Florida, 399 U.S. 78, 86 (1970). Arizona’s state
constitution, however, guarantees criminal defendants a twelve-person
jury in cases when the sentence authorized by law is death or imprisonment
for thirty years or more. Ariz. Const. art. II, § 23; see also A.R.S. § 21-102.A.
Otherwise, a criminal defendant may be tried with an eight-person jury.
A.R.S. § 21-102.B. “Improper denial of a twelve-person jury is fundamental
error that may provide a basis for relief even if not raised in the trial court.”
State v. Kuck, 212 Ariz. 232, 233, ¶ 8 (App. 2006).

Khorrami argues Ramos requires twelve-person juries in all
criminal trials. In Ramos, however, the Supreme Court did not address any
issue of constitutionally permissible jury size, much less overrule Williams.
Rather, the Supreme Court said due process requires unanimous verdicts
in criminal trials. See Ramos, 140 S. Ct. at 1397.

The Supreme Court “does not normally overturn . . . earlier
authority sub silentio.” Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S.
1, 18 (2000). We cannot conclude the Supreme Court silently changed a
fundamental feature of its Sixth Amendment jurisprudence, particularly
given the issue was neither raised nor litigated in Ramos. We decline
Khorrami’s invitation to reconsider the constitutionality of eight-person
juries in Arizona.

VI. Cumulative Error

Finding no error in any of Khorrami’s individual challenges,
we discern no merit in his argument the cumulative effect of the asserted
trial errors violated his due-process rights. See State v. Bocharski, 218 Ariz.
476, 492, ¶ 75 (2008) (“Absent any finding of [error], there can be no
cumulative effect of [error] sufficient to permeate the entire atmosphere of
the trial with unfairness.”).

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CONCLUSION

We affirm Khorrami’s convictions.

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

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