State v. Armendaris

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ROBERT ARMENDARIS, Appellant.

No. 1 CA-CR 24-0267
FILED 03-13-2025

Appeal from the Superior Court in Maricopa County
No. CR2023-006577-001
The Honorable Michael W. Kemp, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Damon A. Rossi
Counsel for Appellant
 STATE v. ARMENDARIS
Opinion of the Court

OPINION
Chief Judge David B. Gass delivered the opinion of the court, in which
Presiding Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe
joined.

G A S S, Chief Judge:

¶1 Defendant Robert Armendaris appeals his convictions and
sentences for luring a minor for sexual exploitation and attempted sexual
conduct with a minor.

¶2 Armendaris’s convictions arise out of his online
communications with an adult undercover officer who posed as a minor on
a website. Under Article II, Section 23 of the Arizona Constitution,
Armendaris was entitled to a jury of 8 people because he did not face a
sentence of at least 30 years. Even so, Armendaris asked the superior court
to empanel a 12-person jury, arguing it was a requirement of the Sixth
Amendment of the United States Constitution. The superior court denied
the request, which Armendaris claims was error. Armendaris also argues
the superior court should have allowed him to elicit testimony about
whether the undercover officer committed the crime of computer
tampering when she lied about her age.

¶3 Because the superior court did not err, Armendaris’s
convictions and sentences are affirmed.

FACTUAL AND PROCEDURAL HISTORY

¶4 An undercover police officer created an account on an adult
website called MocoSpace. The police officer posed as a 16-year-old girl
named “Nancy” and used an age-regressed picture of herself for the profile.
Because the website’s terms of use forbid minors from creating accounts,
she listed her age on the website as 18 years old.

¶5 Armendaris began a conversation with “Nancy” on
MocoSpace. After exchanging some messages, he asked how old she was.
She told him she was 16. They exchanged phone numbers and continued
chatting through text messages and MocoSpace. Armendaris asked
“Nancy” if she wanted to meet in person, and they made plans to meet.

¶6 The two sent multiple messages asking each other what they
wanted to do when they met. At first, Armendaris suggested going to a

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Opinion of the Court

restaurant, a movie, or “Nancy’s” apartment. She replied, saying a movie
was boring and she liked to have fun. He asked if she meant “kissing,
hugging, that kind of fun.” She responded with a smiley face and he asked
if having sex was the kind of fun she was talking about. When she
responded with a smiley face and hearts, he replied: “Is that what you
want? I’m okay with that.” She replied she did not want to be “16 and
pregnant.” He then asked if he should bring condoms.

¶7 They agreed to meet at “Nancy’s” apartment. When
Armendaris arrived at the apartment complex, the police arrested him and
searched his vehicle. They found no condoms, but they did find a cell phone
Armendaris used to communicate with “Nancy.”

¶8 The officer who posed as “Nancy” interrogated Armendaris
at the police station. Armendaris said he did not believe “Nancy” was 16
years old because Internet users often are not truthful. He also claimed he
would have left if she had been 16.

¶9 The State indicted Armendaris for luring a minor for sexual
exploitation, a class 3 felony, and attempted sexual conduct with a minor, a
class 1 misdemeanor. Armendaris moved for a 12-person jury, which the
superior court denied following oral argument.

¶10 The superior court seated an 8-person jury for Armendaris’s
2-day trial. During the trial, defense counsel questioned the undercover
officer about how impersonating “Nancy” violated the MocoSpace terms of
use. But the superior court precluded him from asking about whether the
officer’s conduct amounted to the crime of computer tampering, reasoning
it did not “appl[y] to the facts . . . .”

¶11 The jury convicted Armendaris on both counts. The superior
court suspended his sentence and imposed a term of lifetime supervised
probation for the class 3 felony and a 2-month jail term for the class 1
misdemeanor. The superior court also required Armendaris to register as a
sex offender.

¶12 The court has jurisdiction over Armendaris’s timely appeal
under Article VI, Section 9, of the Arizona Constitution and A.R.S.
§§ 12-120.21.A, 13-4031, and -4033.A.1.

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Opinion of the Court

DISCUSSION

I. Armendaris was not entitled to a 12-person jury.

¶13 Armendaris argues the Sixth Amendment of the United States
Constitution required the superior court to try him to a 12-person (not
8-person) jury. The court reviews “constitutional issues and purely legal
issues de novo.” State v. Moody, 208 Ariz. 424, 445 ¶ 62 (2004). Because
Armendaris raised this issue before the superior court, the court conducts
a harmless error review in which the State bears the burden “to prove
beyond a reasonable doubt that the error did not contribute to or affect the
verdict or sentence.” State v. Strong, ___ Ariz. ___, ___ ¶ 45, 555 P.3d 537,
553 (Ariz. 2024) (quoting State v. Henderson, 210 Ariz. 561, 567 ¶ 18 (2005)).

¶14 Armendaris is not the first defendant to raise this issue. In the
past four years, four other defendants have made similar arguments. The
court rejected those arguments in unpublished memorandum decisions.
The Arizona Supreme Court declined to accept review in all four, and the
United States Supreme Court denied certiorari in one. 1

¶15 The Sixth Amendment guarantees criminal defendants “the
right to a speedy and public trial, by an impartial jury.” U.S. Const. amend.
VI. The Sixth Amendment applies to the states through the Fourteenth
Amendment. See Williams v. Florida, 399 U.S. 78, 86 (1970). More than 50
years ago, the United States Supreme Court ruled the Sixth Amendment
does not require a 12-person jury. Id. (“hold[ing] that the 12-man panel is
not a necessary ingredient of ‘trial by jury’”). Two years later, Arizona
voters amended the Arizona Constitution to permit fewer than 12 jurors in
criminal cases when the maximum permitted sentence is less than 30 years.
Ariz. Const. art. II, § 23 (amended 1972); see State v. Soliz, 223 Ariz. 116, 118
¶ 6 (2009).

¶16 Since then, the Arizona Supreme Court discussed Williams
and said the Arizona legislature “reserved the 12-person jury only for the

1 State v. Jose, 2 CA-CR 2023-0224, 2024 WL 2118759, at *3–4 (Ariz. App.
May 10, 2024) (mem. decision) (review denied Dec. 13, 2024); State v.
Zamanzadeh, 1 CA-CR 23-0080, 2024 WL 380014, at *1 (Ariz. App. Feb. 1,
2024) (mem. decision) (review denied Aug. 19, 2024); State v. Richardson, 1
CA-CR 22-0321, 2023 WL 5934909, at *1 (Ariz. App. Sept. 12, 2023) (mem.
decision) (review denied June 3, 2024); State v. Khorrami, 1 CA-CR 20-0088,
2021 WL 3197499, at *8 (Ariz. App. July 29, 2021) (mem. decision) (review
denied Feb. 8, 2022), cert. denied, Khorrami v. Arizona, 143 S. Ct. 22 (2022).

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most serious offenses,” as measured “by the potential sentence upon
conviction.” Soliz, 223 Ariz. at 118 ¶ 7 (discussing A.R.S. § 21-102). Section
21-102 requires a 12-person jury in criminal cases “in which a sentence of
death or imprisonment for thirty years or more is authorized by law” and
an 8-person jury in “any other criminal case.” A.R.S. § 21-102.A, -.B. The
Arizona Supreme Court concluded Arizona’s jury laws passed
Sixth-Amendment muster under Williams. See Soliz, 223 Ariz. at 118 ¶¶ 6
–7.

¶17 Despite this 50-plus-year history of express precedent,
Armendaris argues the United States Supreme Court “effectively
overruled” Williams in Ramos v. Louisiana, 590 U.S. 83 (2020). But Ramos did
not address jury size. Instead, Ramos ruled the Sixth Amendment required
unanimous jury verdicts in criminal cases. 590 U.S. at 93. Though nothing
in Ramos suggests the United States Supreme Court was abrogating the
Williams holding regarding a 12-person jury, Armendaris argues Ramos
abrogated the reasoning underlying Williams such that it is no longer
controlling precedent.

¶18 Armendaris then argues, under Ramos, the court should look
“at what the phrase trial by an impartial jury” meant at the time of the Sixth
Amendment’s adoption. Based on sources explaining the understanding of
“impartial jury” in English common law and even post-ratification of the
Sixth Amendment by the United States of America, he argues the phrase
“meant [12] jurors” at the time of ratification. See Robert H. Miller, Six of
One Is Not A Dozen of the Other: A Reexamination of Williams v. Florida and
the Size of State Criminal Juries, 146 U. Pa. L. Rev. 621, 643 (1998); see also
James B. Thayer, The Jury and Its Development, 5 Harv. L. Rev. 295, 297 (1892).

¶19 But even if the Arizona Supreme Court or United States
Supreme Court ultimately agrees with Armendaris’ position, this court is
bound by the holdings in Williams and Soliz. Arizona courts must follow
United States Supreme Court precedent “with regard to the interpretation
of the federal constitution.” See Pool v. Superior Ct., 139 Ariz. 98, 108 (1984);
see also Agostini v. Felton, 521 U.S. 203, 207 (1997) (saying courts should not
conclude the United States Supreme Court has overruled its earlier
precedent by implication, “[r]ather, lower courts should follow the case
which directly controls”). Williams still holds today. See Khorrami v. Arizona, 143 S. Ct. 22, 23 (Gorsuch, J., dissenting from denial of certiorari)
(“Regrettably, the Court today declines to take up” reconsidering Williams).
And this court is bound by the decisions of the Arizona Supreme Court. See
State v. Smyers, 207 Ariz. 314, 318 ¶ 15 n.4 (2004); see also Soliz, 223 Ariz. at
118 ¶¶ 6–7 (recognizing the holding in Williams).

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¶20 At bottom, Armendaris faced no more than 8.75 years in
prison for count 1 and no more than 6 months in jail for count 2. See A.R.S.
§§ 13-702, -707, -1405.B, -3554.C. Because the maximum possible sentence
was less than 30 years, he was not entitled to a 12-person jury. See Ariz.
Const. art. II, § 23; A.R.S. § 21-102; Soliz, 223 Ariz. at 118 ¶¶ 6–7. Based on
controlling precedent, Armendaris has not established error.

II. The superior court did not err when it precluded questioning
about the crime of computer tampering.

¶21 Armendaris argues the superior court erred when it
precluded his testimony about whether the officer’s conduct amounted to
the crime of computer tampering. He argues precluding that line of
questioning prevented him from presenting a complete defense because
“he sought to show that persons such as [Armendaris] would plausibly not
expect a minor on MocoSpace because obtaining a user profile would
perhaps be illegal.”

¶22 The court reviews the superior court’s evidentiary rulings for
an abuse of discretion. State v. Blakley, 204 Ariz. 429, 437 ¶ 34 (2003). Because
Armendaris raised this issue before the superior court, the court conducts
a harmless error review. See Strong, ___ Ariz. at ___ ¶ 45, 555 P.3d at 553.

¶23 Armendaris elicited testimony from the officer conceding she
violated MocoSpace’s terms of use by lying about her age and
impersonating another person when she created a false profile. The officer
further admitted she agreed under the terms not to promote false or
misleading information, and if an underage “Nancy” pretended to be 18
years old on MocoSpace, she would be “committing a crime in Arizona.”

¶24 With the above evidence admitted, the superior court did not
err when it precluded Armendaris from questioning the officer about the
specific crime of computer tampering. Armendaris does not establish how
the crime would have applied to the officer’s acts. And even if it would
have, the superior court “could have precluded [the testimony] on the
ground that [it] was so marginally relevant and cumulative of stronger
testimony that its probative value was substantially outweighed by
considerations of delay and confusion.” State v. Wargo, 145 Ariz. 589, 589
–90 (App. 1985); see also Ariz. R. Evid. 403. Armendaris has shown no error.

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 STATE v. ARMENDARIS
Opinion of the Court

CONCLUSION

¶25 Armendaris’s convictions and sentences are affirmed.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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