State v. Cornwall

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHNNY CORNWALL, Appellant.

No. 1 CA-CR 21-0305
FILED 10-04-2022

Appeal from the Superior Court in Navajo County
No. S0900CR201800977
The Honorable Dale P. Nielson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Mariette S. Ambri
Counsel for Appellee

Zhivago Law PLLC, Phoenix
By Kerrie D. Zhivago
Counsel for Appellant
 STATE v. CORNWALL
Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.

B A I L E Y, Judge:

¶1 Johnny Cornwall appeals his convictions for sexual assault
and sexual conduct with a minor. Because Cornwall has shown no error,
we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 In September 2018, the victim, a minor, reported to police that
Cornwall had sexually assaulted her. Two months later, Cornwall was
indicted on one count of sexual assault and one count of sexual conduct
with a minor.

¶3 At trial, during voir dire, the court read the charges, including
the allegation that Cornwall “intentionally or knowingly engaged in sexual
intercourse with [the victim], a minor, who was at least 15 years of age.”
The court then permitted both the State and Cornwall to give a brief
opening statement to the jury panel. The State told the panel that the
evidence would show that the victim was 17 years old, Cornwall was 22
years old, and when they met at a local park to play basketball, Cornwall
“forced sex” on the victim. Cornwall’s counsel told the panel that Cornwall
and the victim met up after messaging online, “shot basketball for a while,”
and then “started fooling around and having sex, consensual sex.”

¶4 The court then instructed the panel on the presumption of
innocence and the State’s burden to prove the charges beyond a reasonable
doubt and asked whether any juror disagreed with those principles. Juror
Ten responded, “I fail to understand, the defense already pleaded that they
are guilty, that the [victim] was 15 [sic] years old and he was 22, so that’s
still statutory rape.” When asked if he believed “these principles should

1 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

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Decision of the Court

not be the law” or if he “disagree[d] with them in any way,” Juror Ten
responded, “No.” When asked if he could be fair and impartial, Juror Ten
responded, “I believe so.”

¶5 When the court asked jurors if there was “[a]nything about
the nature of the case that would make it difficult for [them] to be fair and
impartial,” Juror Nine responded, “She was under the age of 18, he was 22.
I don’t care if it was consensual or not.” Unlike Juror Ten, when asked if he
believed he could be fair and impartial, Juror Nine responded, “I do not.”

¶6 Outside the panel’s presence, Jurors Nine and Ten were then
each questioned individually by the court, the State, and Cornwall. The
court instructed both jurors that the parties’ brief opening statements were
not evidence, and they must decide the case based solely on the court’s
instructions on the law and admitted evidence. When the court asked Juror
Ten if he could “judge the case solely by what the witnesses testify to, and
what the instructions are on the law, and . . . be fair to both sides,” Juror
Ten responded, “Yes, sir.” When questioned by the State, Juror Nine
revealed he had family members who experienced sexual abuse and stated
he “just [didn’t] know” whether he could “render a fair decision in this
case.” When questioned by the court, he said he would “certainly try” to
follow the law, and he considered himself “a fair man.”

¶7 At the close of voir dire, Cornwall moved to strike Juror Ten
for cause. The court granted the motion and sua sponte removed Juror Nine
for cause. The State did not object to Juror Nine’s removal. The state then
argued Juror Ten should remain on the panel because, unlike Juror Nine,
Juror Ten stated he could be fair and impartial and decide the case solely
on the evidence and the court’s instructions on the law.

¶8 Following the State’s argument, the court reconsidered
Cornwall’s motion to strike Juror Ten. Cornwall later used a peremptory
strike to remove Juror Ten. After a two-day trial, the jury found Cornwall
guilty of both counts. We have jurisdiction over Cornwall’s timely appeal
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 13-4033(A).

DISCUSSION

¶9 Cornwall argues the superior court erred in denying his
motion to strike Juror Ten for cause. We review the denial of a motion to
strike a juror for abuse of discretion. State v. Acuna Valenzuela, 245 Ariz. 197,
209, ¶ 21 (2018).

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¶10 Those “biased or prejudiced in favor of or against either of the
parties” are barred from serving as jurors. A.R.S. § 21-211(4). Additionally,
the court must excuse a juror “if there is a reasonable ground to believe that
the juror . . . cannot render a fair and impartial verdict.” Ariz. R. Crim. P.
(“Rule”) 18.4(b).2

¶11 But a juror’s “preconceived notions concerning the
defendant’s guilt” will not necessarily disqualify the juror. State v. Comer, 165 Ariz. 413, 426 (1990). “If a juror is willing to put aside his opinions and
base his decision solely upon the evidence, he may serve.” State v. Johnson, 247 Ariz. 166, 198, ¶ 113 (2019) (citation omitted). Additionally, the court
may rehabilitate a juror through questioning to ensure the juror “can sit as
a fair and impartial juror.” Acuna Valenzuela, 245 Ariz. at 209, ¶ 24 (citation
omitted).

¶12 Cornwall argues Juror Ten decided his guilt before evidence
was presented and the superior court erred by confusing the answers given
by Juror Ten and Juror Nine.

¶13 Though Juror Ten expressed an initial opinion about the law
and Cornwall’s guilt, the court properly instructed Juror Ten that he could
not consider Cornwall’s brief opening statement as evidence and must
follow the court’s instructions on the law. After the court questioned him
again, Juror Ten stated he could be fair and impartial, follow the court’s
instructions on the law, and decide the case based on the evidence
presented. It was Juror Nine who could not say he would be fair and
impartial. Because Juror Ten confirmed he could set aside his prior
opinions and be fair and impartial, the superior court did not abuse its
discretion in denying Cornwall’s motion to strike. See Johnson, 247 Ariz. at
199, ¶ 121.

¶14 Finally, any conceivable error by the superior court was not
prejudicial, as Cornwall used a peremptory challenge to remove Juror Ten
and he was tried by a fair and impartial jury. See State v. Hickman, 205 Ariz.
192, 199, ¶ 31 (2003) (“[W]hen a defendant secures an impartial jury, even
through the curative use of a peremptory challenge, a conviction by that
jury will not have prejudiced that defendant.”).

2 On January 1, 2022, Rule 18.4 was amended to remove subsection (c)
to eliminate peremptory challenges. That subsection is not at issue, and
Rule 18.4(b) has not materially changed.

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CONCLUSION

¶15 For the foregoing reasons, we affirm Cornwall’s convictions.

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

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