State v. Daniel

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS ALLEN DANIEL, Appellant.

No. 1 CA-CR 21-0356
FILED 10-06-2022

Appeal from the Superior Court in La Paz County
No. S1500CR201600165
The Honorable Matthew G. Newman, Judge

AFFIRMED

COUNSEL

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

Carr Law Office PLLC, Kingman
By Sandra Carr
Counsel for Appellant
 STATE v. DANIEL
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E, Judge:

¶1 Thomas Allen Daniel appeals from his convictions and
sentences for second-degree murder and arson of an occupied structure. He
argues that the superior court failed to enforce its rulings to exclude
irrelevant and inflammatory personal information. He also claims the State
engaged in intentional misconduct and that two instances of jury
misconduct denied him a fair trial. Finally, he argues the court failed to limit
or preclude highly prejudicial DNA evidence and erred by denying his Rule
20 and Rule 24.1 motions based on the insufficiency of the evidence. We
find no reversible error and affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 On August 23, 2012, the Quartzsite Fire Department received
a 9-1-1 call at 8:40 p.m. about a trailer on fire in a trailer park. Firefighters
arrived at the scene at 8:46 p.m. and extinguished the fire within six
minutes. They searched the trailer and found Lucy’s2 body on the bathroom
floor. Firefighters wrapped a blanket around her and carried her body
outside. Meanwhile, one of Lucy’s neighbors stepped outside to see what
was happening and saw a white man “who appeared to be in a hurry”
walking away from Lucy’s trailer. The neighbor could not see the man’s
face, but she believed the man was five feet and ten inches tall, “with a
normal to thin build . . . in his 30s or younger.” The man wore a black shirt,
jeans, and a baseball cap that hid his hair color.

¶3 A forensic pathologist conducted an autopsy on Lucy’s body
and determined that Lucy had suffered nine stab wounds and “died as a
result of multiple sharp force injuries.” The pathologist also concluded that

1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

2 We use a pseudonym to protect the victim’s identity.

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the wounds were likely caused by a knife or “a cutting object.” She
identified three superficial wounds on Lucy’s right forearm that “fall under
[the] category of defense injuries” because victims often try to defend
themselves with their arms. The pathologist swabbed Lucy’s fingers,
scraped underneath her fingernails, clipped her fingernails, and sent the
samples to the lab for DNA testing. The pathologist also concluded that
Lucy died before any smoke or fire reached her.

¶4 The fire chief’s arson investigation revealed that someone had
set the fire intentionally.

¶5 In search of a lead, detectives began interviewing Lucy’s
neighbors, friends, and family. One detective spoke with Lucy’s son’s
girlfriend, Betty Vanderford. He learned that Vanderford and Lucy usually
talked over the phone several times a week, and around 7:00 p.m. on
August 23, 2012, Vanderford called Lucy. Lucy did not answer but returned
Vanderford’s call, and they spoke for about 15 minutes. About halfway
through the call, Lucy told Vanderford that someone was knocking on her
door. Lucy did not seem concerned, but she did not answer the door and
said, “I hope it’s not her.” The knocking continued, and eventually,
Vanderford “could hear the banging” over the phone. Lucy said, “I hope
it’s not them,” and told Vanderford that she might pretend she was in the
shower as an excuse for not hearing the knocking. Vanderford could still
hear the banging when they hung up at 7:09 p.m.

¶6 A detective also spoke with Lucy’s friend, Clara Watanabe,
who was near Lucy’s trailer the night of the fire. The detective collected a
DNA sample from Watanabe. Watanabe gave the detective the names of
people she thought may have been in contact with Lucy, including two men
and a woman named Julie Bottelsen.

¶7 Watanabe described Bottelsen as Lucy’s friend but contended
that Bottelsen “was taking advantage of [Lucy]” because Lucy would give
her rides, food, and money. Watanabe thought Lucy “was kind of afraid of
Julie Bottelsen” and was trying to distance herself from her. Because of
Vanderford’s statement that Lucy had said, “I hope it’s not her,” detectives
focused their initial investigation on female suspects. Bottelsen became a
person of interest.

¶8 Shortly after, two detectives saw Bottelsen in a restaurant
parking lot. They approached her, and she agreed to be interviewed. She
willingly provided a DNA sample and turned over a knife she had been
carrying. The knife was later tested for blood, but none was found.

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¶9 In October 2013, detectives received a call from the crime lab’s
DNA analyst updating them on the DNA test results from the samples
obtained during the autopsy. The results revealed Lucy’s DNA mixed with
one “partial unidentified male DNA profile.” Based on this information, the
investigators shifted their focus to male suspects but understood that they
could not rule out females entirely.

¶10 The same month, detectives obtained Lucy’s phone records
for August 2012. When a detective reviewed the records for the day of the
homicide, he noticed that they corroborated Vanderford’s statements about
her call with Lucy. But the detective also saw another call at 7:26 p.m., just
over an hour before the fire. It stood out to the detective because it came
from a number that did not appear elsewhere in the August 2012 records.
The detective learned that the number belonged to Daniel, who became a
suspect for the first time during the investigation. The detective then
obtained Daniel’s phone records, which confirmed the call to Lucy and
showed another call made to a local gas station at 7:16 p.m. the same day.

¶11 The detective contacted Daniel at his home, where he lived
with his fiancée in a trailer park near Lucy’s trailer park. Daniel stated he
knew Lucy because they had worked together at a local gas station and that
sometimes he and his fiancée would smoke with Lucy on her porch and
talk about their day. Daniel denied calling Lucy on the evening of her death.
But the detective learned the first call was to the same gas station where
Daniel had worked with Lucy. Although Daniel had not worked there for
a few years, Lucy still worked there at the time of her death.

¶12 The detective asked Daniel for a DNA sample, and Daniel
willingly complied. By the end of the month, detectives had collected DNA
samples from eight men, including Daniel.

¶13 In November 2014, detectives received another call from the
crime lab reporting more DNA results. The male samples had been
compared to the profile obtained from the autopsy swabs and fingernail
clippings. Based on these comparisons, the DNA analyst could exclude
seven of the eight men as contributors to the DNA found on Lucy’s body,
but she could not exclude Daniel.

¶14 In May 2015, police arrested Daniel. They interviewed him
again and asked where he was during Lucy’s murder, and he claimed he
was working an overnight shift that started at either 10:00 or 11:00 p.m.
Police later obtained work records that showed Daniel had clocked in that
night at 10:41 p.m.

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¶15 A grand jury indicted Daniel for first-degree murder and
arson of an occupied structure. The case proceeded to trial, and the jury
acquitted Daniel on the first-degree murder charge but could not decide on
the lesser included offense of second-degree murder or the arson charge.
The State elected to retry Daniel for second-degree murder and arson of an
occupied structure.

¶16 Before the start of the second trial, Daniel filed a motion in
limine to exclude personal information about him and his fiancée. The
superior court ruled as inadmissible testimony that Daniel’s fiancée left her
disabled ex-husband for Daniel after he moved in with them as a roommate.
The court later clarified that the State was not to ask about the prior
marriage.

¶17 Daniel also moved to exclude testimony by the DNA analyst.
The court ruled that the testimony would be allowed generally, but the
analyst could not testify that the DNA conclusively identified Daniel. Our
supreme court later issued State v. Gomez, 250 Ariz. 518 (2021), which
related to the admittance of DNA evidence, and the superior court asked
the parties to address its impact on this case. After considering the
arguments, the court ruled that “[t]he experts the State has called are
entitled to give their expert opinion and explain that opinion in the terms
that they use to do that.” The court held that the evidence is probative, and
it did not “see any [Rule] 403 issues,” adding that it did not foresee any
more jury confusion than expected “in any case with scientific evidence.”

¶18 The case proceeded to jury selection, and the prospective
jurors were told that Daniel was charged with causing Lucy’s death. One
prospective juror asked to be dismissed because he knew Lucy, and the
court obliged. Another prospective juror said he knew something about the
case and was excused. Daniel objected to passing the rest of the panel for
cause, but the court denied the motion.

¶19 During the State’s case-in-chief, the prosecution called the
DNA analyst who performed the DNA tests. The analyst testified that she
compared the profile of the male DNA found under Lucy’s fingernails to
the eight male DNA profiles she received from the police. Seven of the eight
profiles did not match, so those individuals could be excluded. But Daniel’s
profile matched in a way that “Daniel and all of his paternally-related male
relatives [could ]not be excluded.” The analyst also explained that she
calculated a “likelihood ratio” that revealed she would be more likely to see
the obtained DNA mixture if it came from Lucy and Daniel than from Lucy
and other “random” individuals.

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¶20 Later, the analyst explained how DNA might end up
underneath someone’s fingernails. She stated that it “is possible” to transfer
DNA via an accidental scratch, but it likely “would take more than just a
. . . casual touch.” She added that “[i]n a normal setting with hand washing
and manipulating other things with the hands,” it would be unlikely that
DNA would remain underneath someone’s fingernails for months.

¶21 Daniel chose to testify in his defense. He stated that he did not
recall what he was doing on the day of Lucy’s death. He also denied calling
Lucy that evening but said he shared his cell phone with his fiancée. When
Daniel’s fiancée testified, she claimed she was trying to contact Lucy and
had used Daniel’s phone to call Lucy and the gas station where Lucy
worked. They both claimed the last time they saw Lucy was July 4, 2012.

¶22 Daniel also called Rodney Prestridge to testify. Prestridge
testified that, in 2012, he had been squatting in an abandoned trailer in
Quartzsite. After Prestridge heard about Lucy’s death, someone asked him
to let Bottelsen “hide” in the trailer. He allowed her to stay, but he did not
remain with her. Bottelsen stayed in the trailer for three days to a week.
When Prestridge returned, he noticed that someone had left a purse with
some items in it, including a credit card. He testified that he was sure the
name on the card was “Laura,” until he was asked if he “remember[ed]
hearing about [Lucy,]” to which he replied that the name on the card was,
in fact, Lucy. He stated that a friend told him that he “may not want to have
that,” so he “got rid of it.”

¶23 After the defense rested, Daniel moved for a judgment of
acquittal under Arizona Rule of Criminal Procedure (“Rule”) 20, arguing
that there was not “sufficient evidence to show that Mr. Daniel is the one
who killed [Lucy] or set her trailer on fire” and “that the majority of the
evidence actually points to [Bottelsen].” The court denied the motion.

¶24 During jury deliberations, the jury asked the court if it would
be harmful if a juror conducted internet research and found that Daniel was
previously tried. The court spoke with the foreperson, who explained that
the juror only informed the rest of the jury that Daniel had been a part of a
previous trial in La Paz County a few years ago; no other information was
shared. Other jurors were critical of her mistake. The foreperson added that
the jurors did not converse about or seem influenced by the alleged prior
trial. Daniel moved for a mistrial, but the court denied the motion. The court
replaced the misbehaving juror with an alternate and instructed the panel
to begin their deliberations anew.

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¶25 The jury found Daniel guilty of second-degree murder and
arson. Daniel moved for a new trial under Rule 24.1(c)(1) and (3)(A),
arguing that the misconduct of the empaneled juror deprived him of a fair
trial and the verdict went against the weight of the evidence. The court
denied the motion and sentenced Daniel to a presumptive term of 16 years’
imprisonment for second-degree murder and a concurrent presumptive
term of 10.5 years’ imprisonment for arson.

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

DISCUSSION

A. The Court Did Not Abuse Its Discretion by Modifying Its Pretrial
Ruling on the Witness Testimony and Denying Daniel’s Mistrial Motion.

¶27 Daniel argues that the superior court denied him a fair trial
by failing to enforce its pretrial ruling prohibiting the prosecutor from
asking about his fiancée’s ex-husband.

¶28 Relevant evidence may be excluded if “its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” Ariz. R. Evid.
403. “Unfair prejudice means an undue tendency to suggest decision on an
improper basis . . . such as emotion, sympathy or horror.” State v. Riley, 248
Ariz. 154, 177, ¶ 70 (2020) (quoting State v. Schurz, 176 Ariz. 46, 52 (1993)).
“We will not reverse the admission of evidence absent a clear abuse of
discretion.” State v. Meraz, 152 Ariz. 588, 589 (1987).

¶29 When Daniel moved pretrial to exclude personal information
about him and his fiancée, the court ruled that the State was not to ask about
Daniel’s fiancée’s prior marriage. But when the State cross-examined
Daniel’s fiancée during the trial, the prosecutor asked her if she had been
married before dating Daniel. When the defense objected to the State
violating the pretrial ruling, the court chose to “allow it a short bit” to see
where the line of questioning was headed. The State then asked Daniel’s
fiancée, “[D]o you remember when the defendant moved in with you and
your husband as a renter in your trailer?” Daniel objected again. The parties
conferred with the court, and Daniel again moved for a mistrial, arguing
that the court had ruled that the testimony was inadmissible as irrelevant.
The State countered that the testimony “sets up a timeline of when they
met, which [Daniel’s fiancée] can never remember.” The court ruled that
the testimony was “foundational, setting the stage” and allowed the
question, adding that it would not “let it go much farther” without “a

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connection of some kind.” The State asked no other questions about
Daniel’s fiancée’s prior marriage.

¶30 Daniel argues that “[t]his evidence provided unwarranted
disparagement to a key defense witness” and its admission “requires that
[Daniel’s] convictions be vacated.” The court found the questions
foundational and allowed the State to use them to test the witness’s
memory only “to a limit.” The State did not further question Daniel’s
fiancée about her prior marriage. The testimony was also not inflammatory
or unfairly prejudicial, as Daniel contends. Rather, the two questions
merely revealed to the jury that Daniel’s fiancée was married before her
relationship with Daniel. Because of the testimony’s meager prejudicial
effect, the court did not abuse its discretion by allowing it.

¶31 To that end, Daniel argues the superior court “committed an
error of law” by failing to declare a mistrial because it had “already deemed
the personal information to be unduly prejudicial.” Although we generally
“review the denial of a mistrial motion for an abuse of discretion,” State v.
Miller, 234 Ariz. 31, 40, ¶ 23 (2013), Daniel asserts that because “the trial
judge failed to enforce his own pretrial rulings[,] [t]he trial court is not
entitled to any deference regarding this issue.” Daniel cites no authority to
support this contention.

¶32 A court generally “will not reconsider in the same case a point
of law it has already decided” under the law-of-the-case doctrine. Love v.
Farmers Ins. Grp., 121 Ariz. 71, 73 (App. 1978). But because this doctrine is
“a rule of procedure, not substance,” the superior court “does not lack the
power to change a ruling simply because it ruled on the question at an
earlier stage.” State v. King, 180 Ariz. 268, 279 (1994) (quoting Love, 121 Ariz.
at 73). And if it chooses to do so, “we review any such reconsideration for
abuse of discretion.” Id. As stated, the superior court did not abuse its
discretion by allowing the State to ask two questions eliciting testimony that
Daniel’s fiancée was married in the past. Thus, it did not err by denying the
motion for a mistrial.

B. The State Did Not Engage in a Course of Intentional Misconduct
that Deprived Daniel of a Fair Trial.

¶33 Daniel contends he was deprived of a fair trial by the State’s
“course of intentional misconduct.” “We will reverse a conviction because
of prosecutorial [error] if misconduct is present and ‘a reasonable likelihood
exists that [it] could have affected the jury’s verdict.’” See State v. Bocharski, 218 Ariz. 476, 491, ¶ 74 (2008) (quoting State v. Anderson, 210 Ariz. 327, 340,

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¶45 (2005)). To prevail, Daniel “must demonstrate that the prosecutor’s
conduct so infected the trial with unfairness as to make [his] conviction a
denial of due process.” State v. Roque, 213 Ariz. 193, 228, ¶ 152 (2006)
(quoting State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998), disapproved on other
grounds by State v. Escalante-Orozco, 241 Ariz. 254 (2017)). We will not
reverse unless “the conduct [is] so pronounced and persistent that it
permeates the entire atmosphere of the trial. To determine whether
prosecutorial [error] permeates the entire atmosphere of the trial, the court
necessarily has to recognize the cumulative effect of the misconduct.” Id.
(quoting Hughes, 193 Ariz. at 79, ¶ 26).

¶34 Daniel asserts the prosecutor erred by (1) launching a
“character smear campaign” against his fiancée, (2) misstating the law and
facts throughout various proceedings, and (3) trying to intimidate a defense
witness. Finally, he argues that the cumulative effect of the misconduct was
so pronounced and pervasive that we should vacate his conviction and bar
the State from retrying him.

1. The State Did Not Err in its Questioning of Daniel’s
Fiancée.

¶35 Daniel contends the State engaged in a “character smear
campaign” during its cross-examination of Daniel’s fiancée, pointing to the
questions about his fiancée’s prior marriage and later about love letters
Daniel had written to her.

¶36 Daniel lodged relevance objections to a pair of questions
during the trial, and both were sustained. The court sustained another
relevance objection after a few more questions. The prosecutor then asked
Daniel’s fiancée if “people ma[d]e comments” when she first started dating
Daniel. Daniel objected again and moved for a mistrial, but the court did
not hear the question and asked the prosecutor to repeat it. The prosecutor
complied, and the court sustained the objection. The prosecutor then asked,
“What comments are you talking about here that . . . people say . . . at
work?” While asking this question, the prosecutor spoke over the court as
it twice sustained another objection.

¶37 Daniel argues that “it cannot be said, beyond a reasonable
doubt, that the prosecutor’s misconduct did not contribute to the verdict.”
We disagree. As noted above, the questions about the prior marriage were
not unduly prejudicial. Similarly, they do not rise to the level of
misconduct. As for the remaining questions, the court sustained each
objection to them. The court instructed the jurors that “[i]f an objection to a

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question [was] sustained, [they] must disregard the question and [they]
must not guess what the answer to the question might have been.” Because
we presume the jurors followed the court’s instructions, State v. Newell, 212
Ariz. 389, 404, ¶ 69 (2006), we conclude the prosecutor’s questions did not
contribute to the verdict. See also State v. Gallardo, 225 Ariz. 560, 569, ¶ 40
(2010) (conviction affirmed when the trial court’s instructions cured any
possible prejudice from the prosecutor’s statements).

2. The Prosecution’s Misstatement of the Facts and Law Does
Not Constitute Prosecutorial Error.

¶38 Daniel argues that the prosecutor misstated the law and facts
throughout the case. He alleges the prosecutor incorrectly argued to the
court that it had to provide instructions for lesser-included offenses in the
first trial. Still, Daniel concedes this was not a trial error in the retrial. He
also claims that the prosecutor, during jury selection but outside the
presence of a voir dire panel, misstated the law about the requirements of
presenting a third-party defense. And, he asserts, the State submitted a
sentencing memorandum allegedly containing many misstatements and
inaccuracies. But, again, he concedes that he addressed these in his
response.

¶39 We need not decide whether any of these statements by the
prosecutor were substantively incorrect because even if they were, none
were made in the presence of the jury that convicted Daniel. Thus, no
“reasonable likelihood exists that [these comments] could have affected the
jury’s verdict.” See Bocharski, 218 Ariz. at 491, ¶ 74 (quoting Anderson, 210
Ariz. at 340, ¶ 45); see also State v. Armstrong, 208 Ariz. 345, 357, ¶ 60 (2004)
(no misconduct when actions occurred outside the presence of the jury).

¶40 Daniel also asserts that the State argued facts not in evidence.
During the State’s closing argument, the prosecutor recounted the
neighbor’s statements about the man she saw the night of Lucy’s death. The
prosecutor stated that the neighbor saw “a young male, thin, white man,
blondish-brown hair, baseball cap walking quickly.” Daniel did not object,
and during the defense closing argument, he reminded the jury that the
neighbor could not determine the color of the man’s hair.

¶41 During the State’s rebuttal, the prosecutor corrected her error
by instructing the jury to “absolutely ignore [her] comment about hair
color.” She reminded the jurors that the neighbor’s testimony was entered
by stipulation and asked them to read it, repeatedly telling them to “go with
the stip[ulation]” because her comments were not evidence. Because

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defense counsel and the prosecutor both corrected the error to the jury, and
the facts were available to the jury in a stipulation, we conclude the mistake
was not reversible error because it could not have affected the verdict.
Further, the prosecutor’s timely and unqualified self-correction
contraindicates any inference of intentionality or maliciousness that would
demonstrate true prosecutorial misconduct rather than an inadvertent
error. In re Martinez, 248 Ariz. 458, 470, ¶ 47 (2020) (“When reviewing the
conduct of prosecutors in the context of ‘prosecutorial misconduct’ claims,
courts should differentiate between ‘error,’ which may not necessarily
imply a concurrent ethical rules violation, and ‘misconduct,’ which may
suggest an ethical violation.”).

3. The Alleged Attempt to Intimidate a Defense Witness Does
Not Constitute Prosecutorial Misconduct.

¶42 Daniel also alleges that the prosecutor tried to intimidate
Prestridge, the defense witness who testified about Bottelsen and the credit
card he found in his trailer.

¶43 Before the second trial, the State filed a motion for discovery,
asking the court for an order to collect a sample of Prestridge’s DNA if he
refused to provide one. Daniel opposed the motion, arguing that it was an
implicit threat of prosecution designed to intimidate Prestridge. The State
responded that it needed the DNA to rebut a potential third-party defense
that a reasonable doubt exists because Prestridge’s DNA was never tested.
The State withdrew its motion at a later hearing because Prestridge’s DNA
was already “in the system.” Prestridge testified at the trial.

¶44 We again conclude that the prosecutor’s actions do not
constitute error. Although Daniel speculates that the State’s motion was
meritless and “clearly . . . designed to scare [Prestridge] away from
testifying,” the State withdrew the motion, and Prestridge ultimately
testified. The prosecutor did not commit error, and the withdrawn motion
did not prejudice Daniel.

4. The Cumulative Effect of the Prosecutor’s Alleged Actions
Did Not Deprive Daniel of a Fair Trial.

¶45 Finally, Daniel argues that the cumulative effect of the alleged
misconduct “clearly deprived [him] of due process.” Even if acts of
misconduct do not warrant reversal, they may still evidence “persistent and
pervasive misconduct.” Bocharski, 218 Ariz. at 491–92, ¶ 74 (quoting Roque,
213 Ariz. at 228, ¶ 155). But without a finding of some act of misconduct,

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“there can be no cumulative effect of misconduct sufficient to permeate the
entire atmosphere of the trial with unfairness.” Id. at 492, ¶ 75.

¶46 Having concluded that each alleged act did not amount to
prosecutorial error, there can be no cumulative effect of misconduct here.
Moreover, even if misconduct occurred, the alleged issues either arose
outside the jury’s presence or were remedied before the jury’s deliberations.
We, therefore, cannot conclude that Daniel’s trial was so permeated with
unfairness that he was denied due process.

C. Daniel Was Not Deprived of a Fair Trial Based on Pretrial Taint or
Juror Misconduct.

¶47 Daniel argues he was denied his right to trial by a fair and
impartial jury because the superior court (1) denied his motion to dismiss a
voir dire panel that heard a prospective juror’s comment on the case, and
(2) denied his motion for a new trial after an empaneled juror conducted
external research that she shared with her fellow jurors during
deliberations. Every criminal defendant “has a constitutional right to be
tried by a fair and impartial jury.” State v. Greenawalt, 128 Ariz. 150, 167
(1981); see also U.S. Const. amend. VI (right to an impartial jury); Ariz.
Const. art. 2, § 24 (same).

1. The Superior Court Did Not Abuse Its Discretion by
Denying the Motion to Strike the Jury Panel.

¶48 The prospective jurors were told during jury selection that
Daniel was charged with causing Lucy’s death. One prospective juror
immediately asked to be dismissed: “I can’t—That lady used to work for
us. I didn’t know that was the guy that did it.” The court dismissed the
prospective juror. Daniel then asked the court to dismiss the entire panel.
The court denied the motion, instead asking the rest of the panel if anyone
could not put aside the prospective juror’s comments. Another prospective
juror raised his hand and was excused. Daniel later objected to passing the
rest of the panel for cause, but the court again denied the motion.

¶49 Under Rule 18.4(a), “[a]ny party may challenge the panel on
the ground that its selection involved a material departure from the
requirements of law.” We review the superior court’s voir dire rulings for
an abuse of discretion. State v. Bush, 244 Ariz. 575, 584, ¶ 29 (2018).

¶50 Daniel asserts that the potential juror had a “strong” and
“personal” reaction that he describes as an “emotional outburst” in which
the potential juror “literally pointed directly at” Daniel, which he argues

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affected the remaining panel members. But the record does not reflect any
emotion or gesture by the potential juror. Nor does it contain evidence that
the panel was prejudicially tainted. On the contrary, the court excused the
potential juror and questioned the rest of the panel. All but one remaining
panel member conveyed that they could put aside what they heard, and the
potential juror who could not was excused. Essentially, Daniel “merely
speculates that this contamination occurred. We will not, however, indulge
in such guesswork.” See State v. Doerr, 193 Ariz. 56, 62, ¶ 18 (1998); see also
State v. Tison, 129 Ariz. 526, 535 (1981) (“Unless there are objective
indications of jurors’ prejudice, we will not presume its existence.”). The
court thus did not abuse its discretion by denying Daniel’s motion to strike
the panel.

2. Daniel Is Not Entitled to a New Trial Based on the
Misconduct of a Deliberating Juror.

¶51 During jury deliberations, the court received a question from
the jury asking if it would be “harmful to the trial if one jury member looked
on [the] internet two days ago about a trial that was referred to by [the]
defense and prosecution[.]” The question added that “[t]he outcome of [the]
trial was not stated during . . . deliberation[s].” To gain clarity, the court
spoke with the foreperson.

¶52 The foreperson explained that a juror was curious “as to why
it took so long to get this case to trial” and “apparently . . . looked up on the
internet and found out that there had been a previous trial in [La Paz
County].” The foreperson told the court that the juror “blurted that out in
jury deliberations,” and “a couple of other jurors were immediately critical
of doing external research contrary to [the court’s] instructions.” The
foreperson added that the jurors only heard “that there was a previous trial
of the same defendant in [La Paz County] a couple years ago,” but they
“stopped it before she commented about the outcome of the trial or
anything else that might have influenced everybody else in the room.”

¶53 The court asked if the foreperson felt that “anybody was
curious and influenced” or if the jurors were more concerned that she was
“not supposed to do that.” The foreperson replied that it was “exactly the
latter” and that “[t]he discussion at that point became only criticism of her
for having violated [the] instructions . . . . There was no discussion beyond
that of . . . the results of her research on the internet.”

¶54 Daniel moved for a mistrial, arguing “[t]he jury now knows
that there was another trial; and there might be the assumption that . . . the

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trial got reversed on a technicality.” The court denied the motion but spoke
with the errant juror and replaced her with an alternate. Based on the
foreperson’s explanation of the incident, the court felt confident that the
jurors were not influenced by what they heard and declined to question
them. The court instructed the jurors that they were to begin their
deliberations anew with the alternate juror in place.

¶55 We generally review the superior court’s decision on a motion
for a new trial based on alleged jury misconduct for an abuse of discretion.
State v. Hall, 204 Ariz. 442, 447, ¶ 16 (2003). The superior court may order a
new trial if a juror “receiv[es] evidence not admitted during the trial.” Ariz.
R. Crim. P. 24.1(c)(3)(A). A defendant is entitled “to a new trial if the jury
receives extrinsic evidence and ‘it cannot be concluded beyond a reasonable
doubt that the extrinsic evidence did not contribute to the verdict.’” Hall,
204 Ariz. at 447, ¶ 16 (quoting State v. Poland, 132 Ariz. 269, 283 (1982)).
Thus, “juror misconduct warrants a new trial if the defense shows actual
prejudice or if prejudice may be fairly presumed from the facts.” Id.
(emphasis omitted) (quoting State v. Miller, 178 Ariz. 555, 558 (1994)). We
will not, however, presume prejudice “without the requisite showing that
the jury received and considered extrinsic evidence on the issues.” State v.
Nelson, 229 Ariz. 180, 184 (2012) (emphasis added) (quoting State v. Davolt, 207 Ariz. 191, 208, ¶ 59 (2004)).

¶56 The jurors received extrinsic evidence, but the record does not
reflect that they considered it in reaching their verdict. On the contrary, the
foreperson stated that when the juror told the rest of the panel about a
previous trial, the other jurors immediately interrupted her before she
could say anything “that might have influenced everybody else in the
room.” He added that the jurors did not seem “curious [or] influenced” but
were instead critical of the juror’s disobedience.

¶57 Daniel fails to show actual prejudice, conceding that “it is
unknown what input or impact [the juror] had.” But he argues that the
court breached its affirmative duty to investigate the misconduct. The court,
however, examined the misconduct by thoroughly questioning the
foreperson and speaking with the juror in question before dismissing her.
The court also reminded the remaining jurors of their previous admonitions
and instructed them to disregard prior deliberations and start anew with
the alternate. We presume the jury followed those instructions. See Newell,
212 Ariz. at 404, ¶ 69; see also State v. Hoskins, 199 Ariz. 127, 141, ¶ 48 (2000)
(“Prejudice will not be presumed but must appear affirmatively from the
record.”).

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¶58 Although the jury received improper extrinsic evidence, we
conclude beyond a reasonable doubt that Daniel was not prejudiced. The
court did not abuse its discretion by denying the motion.

D. The Superior Court Did Not Commit Reversible Error by
Permitting Expert Testimony and Argument on the DNA Evidence.

1. The Superior Court Did Not Err by Admitting the DNA
Evidence.

¶59 Daniel argues that the superior court failed to properly limit
or preclude the State’s use of DNA evidence. As mentioned, relevant
evidence may be excluded if “its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Ariz. R. Evid. 403. “We
review a trial court’s decision whether to admit DNA evidence for an abuse
of discretion and in the light most favorable to sustaining its ruling.” Gomez,
250 Ariz. at 521, ¶ 13. We defer to the superior court because “[t]he
conditions of admission of DNA evidence and expert testimony,
particularly from the standpoint of Rule 403 prejudice, are necessarily
fact-specific and dependent upon the context of the case.” Id. at 522, ¶ 15.

¶60 To the extent that Daniel argues that the expert testimony
should have been excluded, we disagree. In its pretrial ruling, the court
prohibited expert testimony that would conclusively identify Daniel as the
contributor to the DNA. The DNA analyst gave no such testimony. Instead,
the analyst testified that she tested the autopsy samples for nuclear DNA
and Y-STR DNA. She explained that nuclear DNA is unique to each person,
and “STR is actually a testing technique for that nuclear DNA.” She added
that Y-STR DNA is only found in males and is inherited along a male’s
paternal lineage. By testing for Y-STR, an analyst can distinguish between
male and female DNA when there is a mixture of both profiles.

¶61 The analyst testified that when she tested Lucy’s right-hand
fingernail clippings and the swabs of those clippings, she observed a DNA
mixture consisting of Lucy’s DNA and “a partially unidentified male DNA
profile.” By analyzing the Y-STR, she could identify a “full profile” in the
fingernail clippings, which meant each location she could test for was
present. She also observed a partial male profile in the swabs of the
clippings, which meant that not all the loci were present.

¶62 The analyst also ran an STR test for nuclear DNA and
observed a partial profile in both the clippings and the swabs. She explained
that much of what she obtained in nuclear STRs was “below threshold,” so
she could not compare “for inclusion,” but she could still “exclude anything

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that does not match.” One locus, however, “showed values that were high
enough” that it could be used “[n]ot for comparison, but for statistical
purposes.”

¶63 The analyst testified that she compared the unidentified
profile to the eight male DNA profiles she received from the police. Of the
eight, only Daniel’s profile matched the Y-STR profile found in the
fingernail clippings. Thus, she testified that “Daniel and all of his
paternally-related male relatives cannot be excluded.” The other seven men
could be excluded.

¶64 The analyst provided statistical analysis for the Y-STR DNA
and STR DNA results separately. She then explained that, because both
were present in this case, she could calculate a “likelihood ratio.” She
concluded that “[i]t is 500 times more likely to see the combined STR and
Y-STR DNA profile if . . . [Lucy] and Thomas Daniel are the contributors,
[than] if it is [Lucy] and a random unrelated Caucasian.” She continued,
explaining that it would be 5,500 times more likely to see the profile if it
were from Lucy and Daniel than if it were from Lucy and “a random
unrelated African-American,” 1,100 times more likely than if it were from
Lucy and “a random unrelated Hispanic,” and 280 times more likely than
if it were from Lucy and a “random unrelated Native American.” She
testified that this statistical analysis is accepted in the scientific community.

¶65 On appeal, Daniel concedes that “[t]he analyst properly
testified that [Daniel] could not be excluded as the contributor of the DNA.”
Nor did the testimony violate the court’s pretrial order or create any unfair
prejudice under Rule 403 because the analyst did not conclusively identify
Daniel as Lucy’s assailant or the contributor of the DNA. Instead, she
carefully described her processes and analysis. She explained to the jury
how much more likely it would be to find the mixed DNA profile if it came
from Lucy and Daniel instead of Lucy and certain other “random”
individuals. The court did not err by allowing this testimony.

2. The State Did Not Commit Fundamental Error by Arguing
that the Foreign DNA Found on the Victim Belonged to Daniel.

¶66 Daniel also argues that the court “failed to control” the State’s
use of DNA testimony. He contends that “during closing, the prosecutor
repeatedly stated, without qualification, that the DNA belonged to . . .
Daniel” and argues that “[t]his was not simply a reasonable inference to be
drawn from the evidence,” but “a highly prejudicial overstatement of the
weight of the evidence with little probative value.” Because Daniel raised

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no objections during the closing argument, we apply fundamental error
review. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Therefore, we
must determine whether the prosecutor committed fundamental error and
whether that error prejudiced the defendant. State v. Murray, 250 Ariz. 543,
549, ¶ 17 (2021).

¶67 Prosecutors are generally given “wide latitude” to make their
closing arguments and may ask the jury to draw reasonable inferences from
the evidence presented. State v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016)
(quoting State v. Comer, 165 Ariz. 413, 426 (1990)). The State contends on
appeal that “it was not unreasonable for the prosecutor to argue that the
DNA belonged to Daniel” because it “was a reasonable inference to draw
from the evidence.” To be sure, it is hard to square the State’s position with
the prosecutor’s statements to the jury: “You don’t have to infer anything[.]
His DNA under her nails. . . . That is direct evidence. You don’t have to
make any inference.” The prosecutor also called the DNA “the defendant’s”
DNA and “his DNA” and concluded that “[t]here is no real possibility that
it’s anybody else. It’s nobody else’s DNA.”

¶68 But when viewed in the context of the entire closing
argument, the prosecutor did not make the statements “without
qualification,” as Daniel asserts. Instead, the prosecutor often asked the jury
to recall the analyst’s testimony. For example, she recounted the analyst’s
testimony about nuclear DNA, reminding the jury that “all [the analyst] can
tell you is all those other men are excluded. . . . and the defendant cannot
be excluded. Those are her words. She can’t say match [be]cause it’s not a
full profile.” Later, she reminded the jury how the expert analyzed the
nuclear DNA and Y-STR DNA together to calculate a likelihood ratio,
which is “where she gets her 500 times more likely” conclusion.
Furthermore, any potential error would have been cured by the court’s
instruction that the lawyers’ comments during closing arguments are not
evidence. See Newell, 212 Ariz. at 404, ¶ 69 (We presume the jurors follow
the instructions.).

¶69 When viewed in isolation, a select few of the prosecutor’s
remarks appear to overstate the DNA analyst’s testimony. Still, those
statements were not fundamental error when taken in the context of the
entire closing argument.

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E. Substantial Evidence Supports the Jury’s Verdict.

¶70 Finally, Daniel argues that the superior court erred by
denying his Rule 20 motion for a judgment of acquittal and his Rule 24.1
motion for a new trial.

1. The Superior Court Did Not Err by Denying the Rule 20
Motion.

¶71 After the defense rested, Daniel moved for a Rule 20
judgment of acquittal, arguing there was insufficient evidence that Daniel
killed Lucy and that the evidence instead pointed toward Bottelsen. The
court denied the motion. We review the denial of a Rule 20 motion de novo.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). Under Rule 20(a)(1), “the court
must enter a judgment of acquittal . . . if there is no substantial evidence to
support a conviction.” “Substantial evidence . . . is such proof that
‘reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.’” West, 226
Ariz. at 562, ¶ 16 (internal quotation marks omitted) (quoting State v.
Mathers, 165 Ariz. 64, 67 (1990)).

¶72 Daniel notes the State’s heavy reliance on DNA evidence and
contends the DNA only established that Daniel could not be excluded from
a small group of suspects. This argument understates the significance of the
DNA evidence. While the analyst testified that the Y-STR DNA led to her
conclusion that Daniel could not be “excluded,” her statistical analysis of
the likelihood ratios was more informative. She concluded that it was at
least 280 times more likely to see the DNA profile found under Lucy’s
fingernails if it came from Lucy and Daniel rather than from Lucy and
another “random” individual. Reasonable jurors could then consider the
likelihood ratios combined with other evidence of Daniel’s connection to
Lucy, such as the phone calls, his nearby home, and the testimony of the
neighbor witness, to conclude that the DNA belonged to Daniel.

¶73 Further, Daniel’s testimony supports the jury’s verdict.
Daniel and his fiancée testified that they last saw Lucy on July 4, over a
month before her death. But the analyst testified that it would be unlikely
that DNA would remain underneath someone’s fingernails for months. The
analyst also testified that it likely “would take more than just a . . . casual
touch” to get DNA under someone’s fingernails, and the forensic
pathologist identified three “defense injuries” on Lucy’s arm, which could
suggest that she tried to fight back her assailant. A juror could reasonably
conclude from the totality of the evidence that Daniel attacked and killed

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Lucy, leaving his DNA under her fingernails as she tried to defend herself.
And a juror could reasonably conclude Daniel set Lucy’s trailer on fire to
cover it up.

¶74 Daniel argues that he “presented a strong third-party and
alibi defense.” Still, neither defense explains away the DNA evidence so
that no reasonable person could find him guilty beyond a reasonable doubt.
West, 226 Ariz. at 562, ¶ 16. The court did not err by denying the Rule 20
motion.

2. The Superior Court Did Not Err by Denying the Rule 24.1
Motion.

¶75 After his conviction, Daniel moved for a new trial under Rule
24.1, arguing that the weight of the evidence warranted a new trial. The
court summarily denied the motion. We will affirm the superior court’s
ruling on a motion for a new trial based on the weight of the evidence,
absent an abuse of discretion. State v. Neal, 143 Ariz. 93, 97 (1984). “A motion
for new trial should be granted ‘only if the evidence was insufficient to
support a finding beyond a reasonable doubt that the defendant committed
the crime.’” State v. Parker, 231 Ariz. 391, 408, ¶ 74 (2013) (quoting State v.
Landrigan, 176 Ariz. 1, 4 (1993)). As explained, the State presented sufficient
evidence to support the jury’s conclusions. The court, therefore, did not err
by denying the motion.

CONCLUSION

¶76 We affirm.

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

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