State v. Hines

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LEON HINES, JR., Appellant.

No. 1 CA-CR 20-0397
FILED 11-18-2021

Appeal from the Superior Court in Maricopa County
No. CR2018-001315-001
The Honorable Jeanne M. Garcia, Judge, Retired

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
 STATE v. HINES
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Maurice Portley1 joined.

T H U M M A, Judge:

¶1 Defendant Leon Hines, Jr., appeals his convictions and
resulting sentences for 17 felony counts of sexual crimes against children.
Although vacating two financial assessments as violating the prohibition
against ex post facto laws, Hines has not otherwise shown error. As a result,
his convictions and resulting sentences are affirmed.

FACTS2 AND PROCEDURAL HISTORY

¶2 Hines’ wife operated a daycare at their Phoenix residence.
Beginning in 2008, girls who attended the daycare began disclosing
incidents of Hines inappropriately touching them at various times starting
in 1988. Phoenix Police Detectives investigated the allegations.

¶3 In 2018, a grand jury returned an 18-count indictment
charging Hines with dangerous crimes against children, including: 11
counts of sexual conduct with a minor; three counts of sexual abuse; two
counts of child molestation; and one count each of kidnapping and
furnishing obscene material to a minor. One of the molestation charges was
dismissed before trial.

¶4 After the jury began deliberations, Hines moved for a mistrial
based on a conversation between Juror 10 and two other jurors during a
break. The court addressed the jury collectively and the three jurors
individually about the purported comments. Although denying the motion
for mistrial, the court dismissed Juror 10 and replaced her with an alternate.

1The Honorable Maurice Portley, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
VI, Section 3, of the Arizona Constitution.

2The evidence is construed in a light most favorable to sustaining the
verdicts, resolving all reasonable inferences against Hines. See State v.
Payne, 233 Ariz. 484, 509 ¶ 93 (2013).

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¶5 After renewed deliberations, the jury found Hines guilty on
all counts. The court sentenced Hines to a combination of concurrent and
consecutive presumptive prison terms, including three consecutive life
terms with the possibility of release after 35 years. Hines was allowed to file
a delayed notice of appeal. This court has jurisdiction pursuant to 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) (2021).3

DISCUSSION

I. Hines Has Not Shown Error in the Denial of his Batson Challenge

¶6 Hines argues the court erred by denying his challenge under
Batson v. Kentucky, 476 U.S. 79 (1986), to the State’s peremptory strike of the
only remaining African American potential juror (Prospective Juror 18).
Challenging a peremptory strike under Batson “involves three steps: (1) The
defendant must make a prima facie showing of discrimination, (2) the
prosecutor must offer a race-neutral reason for each strike, and (3) the trial
court must determine whether the challenger proved purposeful racial
discrimination.” State v. Medina, 232 Ariz. 391, 404 ¶ 44 (2013) (internal
quotation marks and citations omitted). As applicable here, a decision
regarding the prosecution’s rationale for a peremptory strike is reviewed
for clear error. State v. Roque, 213 Ariz. 193, 203 ¶ 12 (2006), abrogated on other
grounds by State v. Escalante-Orozco, 241 Ariz. 254, 267 ¶¶ 13-14 (2017).

¶7 Hines first argues the State’s reasons for striking Prospective
Juror 18 were not supported by “record evidence.” To support his
argument, Hines relies on State v. Ross, 250 Ariz. 629 (App. 2021). As noted
by the State, Ross was depublished by the Arizona Supreme Court on
October 6, 2021. Even if Ross had not been depublished, it does not show
error in this case. In Ross, the dispositive issue was whether the prosecutor’s
avowed observation of a potential juror “blessing” the defendant
constituted “record evidence” that the court could find properly
constituted a race-neutral reason for striking a potential juror. 250 Ariz. at
635, ¶ 23. Concluding, on those unique facts, it did not, Ross found a Batson
violation. Id. at 635-38 ¶¶ 24, 29-30, 38-39.

3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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¶8 Here, by contrast, the State’s race-neutral reason for striking
Prospective Juror 18 was his “distrust or [dis]belief in the inaction of
police,” evidenced in his statements during jury selection. The voir dire
transcript reflects that Prospective Juror 18 explained he had witnessed a
murder in another state, and the police “wrote it off as another violence
thing.” He also said that family members who worked in law enforcement
thought he would not be a fair and impartial juror.

¶9 Prospective Juror 18’s on-the-record statements during voir
dire amounted to “record evidence” for evaluating the State’s proffered
race-neutral reason for striking him. See id. at 634 ¶ 23 (noting “record
evidence” for a Batson challenge includes “a prospective juror’s answers,
provided under oath, during voir dire”).4 Ross therefore does not support
Hines’ argument.

¶10 As to the third Batson prong, Hines implies that the court
erred by failing to “make specific findings about the prosecutor’s reasons
or demeanor.” This argument, however, is waived as it is not supported
with any argument or authority. See State v. Bolton, 182 Ariz. 290, 298 (1995)
(“Failure to argue a claim on appeal constitutes waiver of that claim.”). The
record supports the court’s determination that the State proffered a race-
neutral reason for striking Prospective Juror 18. The court therefore did not
err in denying Hines’ Batson challenge.

II. Hines Has Not Shown That Improper Profile Evidence Was
Admitted at Trial

¶11 Without objection, Dr. Wendy Dutton testified for the State as
a “blind” or “cold” expert, meaning she did not testify about any case-
specific factual information. Rather, based on research in the field and her
own experience as a forensic interviewer, Dutton described forensic
interviewing techniques, the “process of victimization,” and general
behavioral traits and characteristics of child victims of sexual abuse.

4Hines also argues the State’s reference to a YouTube video of Prospective
Juror 18’s “show” was insufficient evidence of a different race-neutral
reason for the strike. But because Prospective Juror 18’s comments during
voir dire provided sufficient evidence to deny the Batson challenge, the
propriety of the YouTube video is immaterial.

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¶12 Hines argues Dutton’s testimony constituted improper
profile evidence and should have been precluded. He relies almost entirely
on State v. Starks, 251 Ariz. 383, 387 ¶ 1, 391 ¶ 21 (2021) (concluding, on facts
presented, that Dutton’s testimony was “profiling testimony” leading to
“reversible error”). Because Hines did not timely object on this basis, this
court reviews for fundamental error. See Ariz. R. Evid. 103; State v. Escalante, 245 Ariz. 135, 138 ¶ 1 (2018). Hines therefore “bears the burden to establish
that (1) error exists, (2) the error is fundamental, and (3) the error caused
him prejudice.” State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013).

¶13 Profile evidence is an informal compilation of behavioral
characteristics typical of persons who commit a particular crime. See State
v. Haskie, 242 Ariz. 582, 585 ¶ 14 (2017). Although admissible in limited
circumstances, profile evidence is generally inadmissible as substantive
proof of guilt. See, e.g., State v. Garcia-Quintana, 234 Ariz. 267, 272–73 ¶¶ 23–
24 (App. 2014) (citing State v. Lee, 191 Ariz. 542, 545 ¶ 14 (1998)).

¶14 In Starks, a molestation case, the defendant preserved for
appeal his claim that Dr. Dutton’s cold expert testimony constituted
improper profile evidence. 251 Ariz. at 388 ¶ 7. On appeal, Starks found
Dutton “simply listed things that sexual abusers commonly do to establish
a relationship with the victim to enable the sexual abuse.” Id. at 390 ¶ 16.
Starks concluded such testimony was improper profile evidence that served
“to improperly invite the jury to conclude that Starks was guilty because
his actions matched those that the expert reported to be common to
perpetrators.” Id. Noting Dutton “did not attempt to explain any victim
behavior,” id., and her testimony generally “lacked the larger context of
victimization,” id. at 392 ¶ 21, Starks concluded Dutton’s testimony served
no purpose other than as improper profile evidence, id. at 393 ¶ 30. The
court then concluded that admitting the evidence constituted reversible
error. Id. at 395 ¶ 42.

¶15 Here, unlike in Starks, Dutton’s testimony mainly explained
victim behavior and forensic interviewing. Indeed, the “larger context of
victimization” found lacking in Starks was forecast here in the State’s
opening statement:

Dr. Dutton is a designated forensic interviewer
. . . and expert in the field of victimology. She
will address various topics on child victims of
sexual abuse, how these crimes happen, the
psychological effects that they have, and how

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and why these victims disclose these crimes the
way that they do.

Dutton’s testimony followed this forecast. And in contrast with Starks, the
prosecutor here did not rely on improper profile evidence during closing
arguments, but only mentioned Dutton’s testimony briefly to explain the
victims’ delayed disclosures. Given these differences, Hines has failed to
establish error, let alone fundamental error. See Starks, 251 Ariz. at 389 ¶ 11
(“A cold expert may testify about ‘general patterns of behavior’ of child
sexual abuse victims.”).

III. Hines Has Shown No Error in the Denial of His Motion for
Mistrial

¶16 Hines contends he was entitled to a mistrial because some
jurors violated their oath and the court’s admonition against discussing the
case outside the jury room. Specifically, Hines claims Juror 10 improperly
influenced other jurors, which led to a biased jury. According to Hines, he
was presumptively prejudiced and remand for a new trial is required. This
court reviews a ruling on a motion for mistrial for juror misconduct for an
abuse of discretion. See State v. Dann, 220 Ariz. 351, 370 ¶ 106 (2009); State
v. Walton, 159 Ariz. 571, 581 (1989).

¶17 The closing instructions to the jury contained a standard
admonition that the jurors were “not to discuss the case with each other, or
anyone else during breaks or recesses” and were not to tell anyone “how
you stand, numerically or otherwise, until after you have reached a verdict
or have been discharged.” During a break during deliberations, a court
reporter overheard three jurors discussing “the case, . . . [and] their
deliberations” while walking. Specifically, while getting on an elevator
with the three jurors, the court reporter heard “[o]ne of the males [say] that
he didn’t believe . . . deliberations would take that long based on Count 1,
maybe by the end of the day or tomorrow,” to which Juror 10 responded,
“I can’t believe anyone would vote not guilty.”

¶18 The court reporter properly informed the court, and the
parties were advised of the incident. Hines then moved for a mistrial,
arguing Juror 10 improperly discussed the case outside the jury room and
“has made up her mind” in violation of the admonition. Alternatively,
Hines asked that Juror 10 be excused from continuing to serve on the jury.

¶19 Before ruling on Hines’ motion, the court addressed the issue
with the jury in open court and none of the jurors said they knew about
improper juror discussions outside of deliberations. The court then

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questioned the three identified jurors individually. Juror 10 admitted she
talked with two other jurors about the case “in generalities . . . one of the
votes that we already had[,] . . . not in particulars of guilt or not guilty” as
they went to lunch, but she did not recall the specific comment attributed
to her. The two jurors who accompanied Juror 10 stated they did not hear
her talk about the case or the deliberations outside the jury room. The court
then denied the mistrial motion but dismissed Juror 10 from further service.

¶20 The court acted within its discretion by addressing Hines’
motion. Faced with the prospect of either denying the motion in full or
declaring a mistrial—the most “dramatic remedy” for trial error—the court
reasonably chose the intermediate option Hines suggested and dismissed
Juror 10. See State v. Speer, 221 Ariz. 449, 462 ¶ 72 (2009) (“Mistrial is the
most dramatic remedy for trial error and should be granted only when it
appears that justice will be thwarted unless the jury is discharged and a new
trial granted.”). And despite Hines’ speculation to the contrary, nothing
suggests Juror 10’s violation of the admonition influenced the remaining
jurors or otherwise prejudiced Hines. See State v. Miller, 178 Ariz. 555, 558
(1994) (“juror misconduct warrants a new trial if the defense shows actual
prejudice or if prejudice may be fairly presumed from the facts”). Moreover,
any improper influence Juror 10’s lunchtime comments had on the other
jurors was remedied by the trial court’s replacement of Juror 10 with an
alternate juror, after which the reconstructed jury began deliberations
anew.

¶21 Absent actual prejudice, Hines relies on Miller to argue
prejudice should be presumed. In Miller, a deliberating juror received a note
from a designated alternate juror stating a belief that the defendant was
guilty. 178 Ariz. 555 at 557. Upon learning about the note, the defendant
requested a new trial, which the court denied without receiving evidence
about the note. Id. On appeal, noting “the possibility of improper influence
certainly warranted investigation,” the court held the failure to inquire into
the note’s influence on the jury was an abuse of discretion. Id. Noting that,
“[i]n a criminal case, any private communication, contact or tampering
directly or indirectly, with a juror during a trial about the matter pending
before the jury is, for obvious reasons, deemed presumptively prejudicial,”
id. at 558-59 (quoting Remmer v. United States, 347 U.S. 227 (1954)), the Court
remanded for the State to have an opportunity to rebut the presumption of
prejudice, id. at 560.

¶22 As Miller made clear, presumptive prejudice applies only
when an “outside influence” compromises the integrity of a jury trial. Id. at
557. Miller, a case involving a third-party’s apparent attempt to influence

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the jury, is not controlling here where a deliberating juror made comments
in violation of the admonition. Hines cites no authority to support a
presumption of prejudice resulting from a violation of the admonition such
as occurred here. For these reasons, Hines has not shown that the superior
court abused its discretion in denying his motion for mistrial.

IV. Hines Was Properly Sentenced on Count 5 for a Dangerous Crime
Against Children

¶23 Hines argues he was improperly sentenced under A.R.S. § 13-
705 for the kidnapping conviction (Count 5) because the verdict form did
not require a jury finding that the victim was less than 15 years old. See
A.R.S. § 13-1304 (B). The jury, however, also found Hines guilty of Counts
3 and 4, both of which alleged the same date of offense and the same victim
as alleged in Count 5. In doing so, the jury expressly found the victim was
less than 12 years old. Nothing in the record suggests that, had the verdict
form for Count 5 properly required a specific finding for the victim’s age,
the jury would have found she was 15 or older.

V. Two Financial Assessments Violate the Prohibition Against Ex
Post Facto Laws

¶24 Hines argues that three of the financial assessments imposed
at sentencing violate the Ex Post Facto clauses of the federal and state
constitutions. Those provisions prohibit the legislature from enacting a law
that “imposes a punishment for an act which was not punishable at the time
it was committed; or imposes additional punishment to that then
prescribed.” State v. Yellowmexican, 142 Ariz. 205, 206-07 (App. 1984)
(quoting Weaver v. Graham, 450 U.S. 24, 28 (1981)); see U.S. Const., art. 1, §§
9, 10; Ariz. Const., art. 2, § 25.

¶25 The State concedes that all three statutes authorizing the
challenged assessments became effective after 2009, the most recent date
alleged in the indictment. The State’s concession is appropriate. See A.R.S.
§§ 12-116.04, -116.05, -116.09. The question then becomes whether the
challenged assessments constitute “a punishment” or “additional
punishment.” The State again properly concedes that both the $13 criminal
penalty imposed under § 12–116.04 and the $2 Victims’ Rights Fund
assessment imposed under § 12–116.09 are punishments because their
authorizing statutes refer to them each as a “penalty assessment.” See State
v. Beltran, 170 Ariz. 406, 408 (App. 1992) (reference in authorizing statute to
“penalty assessment” reflects Legislature’s determination that assessment

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is a “punishment” and therefore subject to the prohibition against ex post
facto application).

¶26 As for the third assessment -- a $50 address confidentiality
assessment -- the authorizing statute refers to an “assessment” not a
“penalty assessment.” See A.R.S. § 12–116.05(A). Thus, under Beltran’s
reasoning, the address confidentiality assessment is not a “punishment”
and therefore is not subject to ex post facto principles. Hines cites no
authority to the contrary.

¶27 Because the $13 criminal penalty imposed under § 12–116.04
and the $2 Victims’ Rights Fund assessment imposed under § 12–116.09
violate the prohibition against ex post facto laws, they are vacated.

CONCLUSION

¶28 The $13 criminal penalty imposed under § 12–116.04 and the
$2 Victims’ Rights Fund assessment imposed under § 12–116.09 are vacated.
In all other respects, Hines’ convictions and sentences are affirmed.

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

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