State v. Njike

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

COLLINS NJIKE, Appellant.

Nos. 1 CA-CR 22-0589 and 1 CA-CR 23-0073
(Consolidated)
FILED 07-23-2024

Appeal from the Superior Court in Maricopa County
No. CR2021-139933-001
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Phillip Tomas
Counsel for Appellee

Law Office of Stephen M. Johnson, Inc., Phoenix
By Stephen M. Johnson
Counsel for Appellant
 STATE v. NJIKE
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Jennifer M. Perkins joined.

W E I N Z W E I G, Judge:

¶1 Collins Njike appeals his convictions of sexual conduct with
a minor. We use a pseudonym to protect the victim’s identity. Because we
find no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Njike was a tennis coach who taught Jane from the ages of
thirteen to sixteen. Jane and Njike practiced together five to six days a week
at a Scottsdale park. Njike sexually assaulted Jane at least three times
during these practices.

¶3 Jane eventually asked her mom to schedule a counselling
appointment. At that appointment, Jane disclosed the sexual assaults to a
therapist. The therapist told Jane’s mother, who contacted the police. The
police interviewed Jane and staged a recorded confrontation call between
Jane and Njike. Police arrested Njike the next day.

¶4 The State unsuccessfully moved to preadmit a transcript of
the confrontation call before trial. At trial, the State successfully moved to
admit an audio recording of the confrontation call. Njike had no objection.
A “blind” expert witness testified at trial about the general practice of
grooming and how children react to sexual assault.

¶5 After the jury began deliberations, Juror 10 accused Juror 9 of
being “on a first–name basis with the blind expert.” The court heard from
both jurors and concluded Juror 9 could remain impartial.

¶6 The jury found Njike guilty on two of three counts of sexual
conduct with a minor. Njike timely appealed. We have jurisdiction. A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A).

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 STATE v. NJIKE
Decision of the Court

DISCUSSION

I. Confrontation Call

¶7 Njike first argues the superior court erred by admitting an
audio recording of the confrontation call into evidence. Njike did not
preserve the issue for appeal, so we review for fundamental error, which
requires error that is both fundamental and prejudicial. State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018).

¶8 Njike contends the confrontation call was an involuntary
confession under the 14th Amendment’s due process clause. For a
confession to be involuntary, the record must include evidence of “coercive
police activity,” Colorado v. Connelly, 479 U.S. 157, 167 (1986), like threats,
violence, improper influence, and direct or indirect promises of a benefit.
Malloy v. Hogan, 378 U.S. 1, 7 (1964). But the record here has no evidence of
coercive police activity. And without coercion, Jane’s cooperation with the
police during the call did not render Njike’s statements involuntary. See
State v. Stevenson, 104 Ariz. 313, 314–15 (1969) (holding that the
government’s use of an informant to obtain inculpatory statements did not,
in itself, make the statements involuntary).

¶9 Njike next argues the court should have considered the
voluntariness factors in A.R.S. § 13-3988, but that statute does not apply to
confessions made before arrest when the subject is not detained. See A.R.S.
§ 13-3988(C).

¶10 Njike also argues the confrontation call should have been
suppressed because it contained hearsay. See Ariz. R. Evid. 801. Not so.
Njike’s statements on the call are not hearsay—they are statements of an
opposing party. Ariz. R. Evid. 801(d)(2). And Jane’s statements on the call
are not hearsay—they were not offered to prove the truth of the matter
asserted. See Ariz. R. Evid. 801(c).

¶11 Njike contends the call should also have been excluded under
Rule 403 because the danger of unfair prejudice substantially outweighed
the probative value. Ariz. R. Evid. 403. We are not persuaded. It is rarely
unfair to introduce a defendant’s own statements. See State v. Cañez, 202
Ariz. 133, 153, ¶ 61 (2002), abrogated on other grounds in State v. Valenzuela, 239 Ariz. 299, 302–03, ¶ 11, n.1 (2016) (“[I]t would require a rare case for the
defendant’s own statement to be seen as prejudicial to the extent it should
be excluded under Rule 403.”). And the confrontation call here was highly
probative.

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 STATE v. NJIKE
Decision of the Court

¶12 Lastly, Njike contends that critical information was deleted
from the recorded call, Ariz. R. Evid. 106, but the entire phone call was
recorded and provided.

II. Juror Bias

¶13 Njike argues the superior court should have stricken Juror 9
or 10. Because he never moved to strike either juror, we review for
fundamental error, which requires trial error that is both fundamental and
prejudicial. Escalante, 245 Ariz. at 140, 142, ¶¶ 12, 21.

¶14 Criminal defendants have the right to an impartial jury. U.S.
Const. amend. VI; Ariz. Const. art. II, § 24. Rule 18.4(b) requires the court
to dismiss a juror if there are reasonable grounds to believe the juror cannot
be fair and impartial. Ariz. R. Crim. P. 18.4(b). The trial judge is in the best
position to assess a juror’s credibility, State v. Hoskins, 199 Ariz. 127, 139, ¶
37 (2000), and the court has broad discretion when enforcing this rule, State
v. Eddington, 226 Ariz. 72, 79, ¶ 17 (App. 2010).

¶15 Njike argues that either Juror 9 or 10 were lying because their
accounts were inconsistent. We disagree, both accounts can be harmonized.
Juror 9 could have known the blind expert’s name from reports and from
her presence in his workplace without knowing the expert personally. The
superior court is best positioned to judge credibility. State v. Blackman, 201
Ariz. 527, 533, ¶ 13 (App. 2002). The court believed Juror 9’s promise that
he could be fair and impartial. That was not error. See id. at ¶ 12 (observing
that “a juror need not be excused ‘merely because he knows something of
the case to be tried’” provided the court is satisfied that the juror can render
an impartial verdict) (citation omitted). And without an error, there is no
fundamental error. See Escalante, 245 Ariz. at 142, ¶ 21 (“To summarize, the
first step in fundamental error review is determining whether trial error
exists.”).

CONCLUSION

¶16 We affirm.

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