State v. Zamora

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRANDON KENNETH ZAMORA, Appellant.

No. 1 CA-CR 25-0138
FILED 08-13-2026

Appeal from the Superior Court in Maricopa County
No. CR2024-006111-001
The Honorable Monica Edelstein, Judge

AFFIRMED

COUNSEL

Feldman Royle Ahl, PLLC, Phoenix
By David E. Ahl
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Joseph A. Newburg, II
Counsel for Appellee

STATE v. ZAMORA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the Court’s decision, in
which Judge Anni Hill Foster, and Vice Chief Judge David D. Weinzweig
joined.

W I L L I A M S, Judge:

¶1 Brandon Kenneth Zamora appeals his convictions and
sentences. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The State charged Zamora with eight counts of sexual
conduct with a minor (Counts 1–7 and 11), two counts of furnishing obscene
or harmful items to minors (Counts 8 and 12), one count of molestation of
a child (Count 9), and one count of attempt to commit sexual conduct with
a minor (Count 10), alleging he sexually abused his niece (“Simone”) and
nephew (“Conrad”) (collectively, “the victims”) on multiple occasions.1 The
State also alleged numerous aggravating circumstances.

¶3 Nearly three months before trial, the State moved to dismiss
Count 2, renumber the indictment, and amend it. Specifically, and as
relevant to this appeal, the State moved to amend Count 7 by changing the
“to wit” language describing the location of the offense. 2 In making this
request, the prosecutor avowed that he had provided defense counsel with
the proposed amendment and counsel had “indicated” he had “no
objection to the motion.”

¶4 Because the superior court took no action on the motion, the
State moved to amend the indictment a second time approximately three
weeks before the trial start date. As part of that motion, the prosecutor again
represented that he had contacted defense counsel about the proposed

1 We use pseudonyms to protect the identity of victims and witnesses.
See Ariz. R. Sup. Ct. 111(i).

2 For clarity, we refer to all counts as numbered in the original
indictment.

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amendment and defense counsel had “indicated” he had “no objection to
the motion.”

¶5 At a trial procedure conference held the next day, defense
counsel waived Zamora’s presence, and the superior court addressed the
State’s outstanding motions. After confirming that counsel did not object,
the court dismissed Count 2 and granted the unopposed motion to amend
the indictment.

¶6 The matter then proceeded to trial. After presenting the
State’s case-in-chief, the prosecutor moved for a directed verdict in
Zamora’s favor on Counts 6 and 11, which the superior court granted. A
jury then convicted Zamora of the remaining charges, finding that Simone
was under 12 years of age and Conrad was under 15 years of age when the
offenses occurred.

¶7 After denying Zamora’s motion for new trial, the superior
court sentenced him to life with the possibility of release after 35 years on
Count 3 and consecutive and concurrent presumptive terms of
imprisonment on the other counts, totaling an additional 107 years. Zamora
timely appealed. We have jurisdiction under Article 6, Section 9, of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

DISCUSSION

I. Amendment of the Indictment

¶8 Zamora argues that the superior court improperly granted the
State’s motion to amend Count 7. He contends the amendment violated
Arizona Rule of Criminal Procedure (“Rule”) 13.5(b) and deprived him of
“his constitutional right to a probable cause determination and to notice of
the charges against him.”

¶9 Because Zamora failed to challenge the amendment in the
superior court, he has forfeited review for all but fundamental, prejudicial
error. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018); see also State v.
Freeney, 223 Ariz. 110, 114, ¶ 26 (2009) (holding “a violation of Rule 13.5(b)
is neither prejudicial per se nor structural error”). To establish fundamental
error, a defendant must show error that: (1) went to the foundation of his
case, (2) denied him a right essential to his defense, or (3) was so egregious
as to deny him the possibility of a fair trial. Escalante, 245 Ariz. at 142, ¶ 21.
Under the first two prongs, a defendant must also show prejudice. Id. If a

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defendant “establishes the third prong, he has shown both fundamental
error and prejudice, and a new trial must be granted.” Id.

¶10 Both the United States Constitution and the Arizona
Constitution guarantee criminal defendants the right to know the nature
and cause of the accusations against them. U.S. Const. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right . . . to be informed
of the nature and cause of the accusation. . . .”); see also Ariz. Const. art. 2,
§ 24 (“In criminal prosecutions, the accused shall have the right . . . to
demand the nature and cause of the accusation against him. . . .”).
Consistent with this constitutional mandate, an indictment provides “a
plain, concise statement of the facts sufficiently definite to inform the
defendant of a charged offense.” Ariz. R. Crim. P. 13.1(a).

¶11 Apart from satisfying the notice requirement, an indictment:
(1) “ensure[s] that a neutral intermediary—a grand jury comprised of
ordinary citizens—finds that probable cause exists before the State can bring
charges,” McKaney v. Foreman ex rel. Cnty. of Maricopa, 209 Ariz. 268, 274–75,
¶ 31 (2004) (Hurwitz, J., dissenting in part and concurring in part) (citing
Ariz. Const. art. 2, § 30 (“No person shall be prosecuted criminally . . .
otherwise than by information or indictment. . . .”)); and (2) establishes trial
boundaries—limiting the scope “to the specific charge or charges” alleged,
Ariz. R. Crim P. 13.5(b). “Unless the defendant consents, a charge may be
amended only to correct mistakes of fact or remedy formal or technical
defects.” Id. (emphasis added). Under this “prophylactic rule of criminal
procedure,” Freeney, 223 Ariz. at 114, ¶ 25, an amendment that changes the
nature of an offense—by either changing the factual allegations or the legal
description of the elements—is impermissible absent the defendant’s
consent, State v. Montes Flores, 245 Ariz. 303, 307, ¶ 16 (App. 2018).

¶12 Here, the amendment to Count 7 did not change the legal
description of the elements of the offense. Both in the original and the
amended indictment, the State alleged that “Zamora, on or between August
20, 2009, and August 24, 2011, intentionally or knowingly did engage in
sexual intercourse or oral sexual contact with [Simone], who was a minor
under the age of fifteen years” in violation of A.R.S. § 13-1405.

¶13 But the State charged Zamora with numerous counts of sexual
conduct with a minor and differentiated between these counts by including
“to wit” language describing the nature and location of each offense.
Specific to Count 7, the State moved to change the original “to wit”
language from “oral/penile – another time in the garage when victim was
with a cousin” to “time when victim was in the bathtub.”

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¶14 While an amendment to the location of an offense may correct
a mere mistake of fact without violating Rule 13.5(b), see State v. Buccheri-
Bianca, 233 Ariz. 324, 330, ¶ 19 (App. 2013) (concluding an amendment that
changed “the location where the conduct was alleged to have occurred did
not change the elements necessary to prove the crime and therefore did not
change the nature of the offense”), in this case, the record makes clear that
the “bathtub” incident charged under the amendment was wholly distinct
from the “oral/penile” contact alleged in Count 7 of the original indictment.
When the prosecutor asked Simone to recount the bathtub incident at trial,
she testified that Zamora entered the bathroom while she was bathing,
undressed, slipped into the bathtub with her, and touched her genitals both
manually and with his genitals. No reasonable interpretation of this
testimony is consistent with the oral/penile sexual contact alleged in the
original indictment. Thus, the amendment alleged a separate offense.

¶15 Without denying a material change to the nature of the
alleged offense, the State asserts the amendment to Count 7 did not run
afoul of Rule 13.5(b) because the State requested the amendment before trial
and Zamora did not object. See State v. Schwartz, 188 Ariz. 313, 319 (App.
1996) (“Although a person cannot be convicted of an offense not charged
against him through indictment or information, the trial court can amend
an indictment upon an oral motion by the state if the defendant does not
object.”). For his part, Zamora argues that Rule 13.5(b) “requires a
defendant’s express consent,” and that neither his attorney’s failure to
object nor his “silence” concerning “a fundamental, due process right”
reasonably can be construed as the requisite consent. See State v. Sanders, 115 Ariz. 289, 293 (App. 1977) (noting that an amendment to an indictment
raises fundamental due process concerns and concluding “[i]t is therefore
not too much to ask that the defendant be apprised of what is occurring and
that his consent be secured”).

¶16 Because the amendment did not correct a mistake of fact but
instead materially changed the factual allegations of Count 7, under Rule
13.5(b)’s plain language, Zamora’s consent was required. See State v.
Johnson, 198 Ariz. 245, 247–48, ¶¶ 3, 9–11 (App. 2000) (concluding an
amendment changing the factual basis for sexual conduct with a minor
from digital penetration to penile penetration changed the nature of the
offense). In the absence of such consent, the amendment violated Rule
13.5(b).

¶17 “But not every violation of Rule 13.5(b) infringes a
defendant’s [constitutional] right to notice.” Montes Flores, 245 Ariz. at 307,
¶ 17. “Even when the nature of the offense is changed, if the defendant

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receives constitutionally adequate notice of the modification, he is not
prejudiced” and his constitutional rights are not violated. Id. (citation
modified).

¶18 To determine whether a defendant received constitutionally
sufficient notice, we examine whether he “had actual notice of the charge,
from either the indictment or other sources.” Freeney, 223 Ariz. at 115, ¶ 29;
see also State v. Copeland, 253 Ariz. 104, 109–10, ¶ 8 (App. 2022) (“In
determining sufficiency, the indictment must be read in the light of the facts
known by both parties.” (citation modified)). In cases “involving a young
victim and an alleged resident child molester,” 3 an indictment provides the
defendant “with adequate notice of the charges against him” if it tracks the
relevant statutory language, identifies the victims, specifies the location in
which the offenses occurred, and provides “a time frame for the offenses.”
Id. at 108, 111, ¶¶ 1, 13 (citation modified).

¶19 Here, three months before trial, Zamora had actual notice that
the State alleged he engaged in sexual intercourse or oral sexual contact
with Simone in a bathtub between August 20, 2009 and August 24, 2011. In
other words, the amendment set forth the statutory elements of the offense
and identified the victim, location, and relevant timeframe; providing
legally-sufficient notice. Contrary to Zamora’s vagueness argument, “the
State was not required to provide notice of the specific acts giving rise to
the charges or the manner in which the offenses would be proven.” Id. at
111, ¶ 13 (citation modified).

¶20 Despite the uncontroverted evidence of actual notice, Zamora
contends that the amendment deprived him of a right essential to his
defense. Had he received “proper notice,” Zamora argues his attorney
would have questioned Simone’s mother about her knowledge of the
bathtub incident during “a pretrial interview to develop inconsistencies in
[Simone’s] testimony.”

¶21 At trial, Simone testified to the details of the bathtub incident.
She stated that after the assault, Zamora stepped out of the bathtub,
dressed, and exited the bathroom. Simone said she immediately began
experiencing a “burning” sensation, got out of the tub, urinated, and then
complained to her mother that her genitals burned without disclosing any

3 “Resident child molesters have been defined as defendants who
have regular access to and control over children whom they sexually abuse
in secrecy for long periods of time.” Copeland, 253 Ariz. at 108, ¶ 1 n.1
(citation modified).

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details of the assault because she did not want Zamora “to get in trouble.”.
When Simone’s mother responded that bath soap likely caused the
irritation.

¶22 Although Zamora speculates that his attorney could have
elicited testimony from Simone’s mother that contradicted or otherwise
undermined Simone’s account, such speculation fails to establish prejudice
under fundamental error review. See State v. Munninger, 213 Ariz. 393, 397,
¶ 14 (App. 2006). Notably, Zamora sought neither a recess nor a
continuance in response to Simone’s trial testimony. See Freeney, 223 Ariz.
at 115, ¶ 28. Moreover, had Simone’s mother testified that she did not recall
Simone complaining of a burning sensation following a bath taken at least
thirteen years before trial—as Zamora speculates—the evidentiary value of
such testimony would have been negligible.

¶23 Other than speculating about Simone’s mother’s potential
testimony, Zamora fails to identify any prejudice the amendment caused
“his litigation strategy, trial preparation, examination of witnesses,” or
global defense that the victims’ simply lied. See id. At trial, defense counsel
challenged Simone’s credibility, argued she had motive to fabricate the
allegations, and highlighted discrepancies between her testimony and that
of other witnesses. Simply put, Zamora has not shown that the amendment
hampered his defense.

¶24 Apart from his unsubstantiated claim that the amendment
impaired his trial defense, Zamora contends the amendment infringed on
his constitutional right to double jeopardy protection from a subsequent
prosecution on the original Count 7 charge. For purposes of this appeal,
however, we need not resolve a hypothetical future prosecution.

¶25 Finally, Zamora argues the amendment deprived him of his
substantive right to be tried only on charges presented in an indictment
returned by a grand jury. “The issue of probable cause is a closed question
after the jury determines a defendant’s guilt beyond a reasonable doubt.”
State v. Charo, 156 Ariz. 561, 566 (1988) (citation modified); Freeney, 223 Ariz.
at 115, ¶ 30 n.4 (“Any failure to have submitted an element to the grand
jury for a finding of probable cause is perforce harmless error because the
jury found [the defendant] guilty beyond a reasonable doubt.” (citation
modified)). Indeed, “Arizona case law is clear that, with one exception, all
challenges to a grand jury’s findings of probable cause must be made by
motion followed by special action before trial; they are not reviewable on
appeal.” State v. Moody, 208 Ariz. 424, 439–40, ¶ 31 (2004). “That one
exception to the rule occurs when a defendant has had to stand trial on an

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indictment which the government knew was based partially on perjured,
material testimony.” Id. (citation modified). Because the exception does not
apply to this case, we do not consider Zamora’s probable cause claim
further.

¶26 In sum, the superior court erred in granting the State’s motion
to amend the indictment under Rule 13.5(b) because the amendment
changed the nature of the offense alleged in Count 7. However, because
Zamora had actual notice of the charges against him before trial and ample
opportunity to prepare a defense, he suffered no prejudice from the Rule
13.5(b) violation and no infringement of his constitutional rights.

II. Admission of Witness Testimony

¶27 Zamora argues that the superior court improperly permitted
the victims’ cousin (“Ariana,” a pseudonym) to testify at trial. According to
Zamora, Ariana’s refusal to appear at a court-ordered deposition or
otherwise submit to a pretrial interview compelled the preclusion of her
testimony.

¶28 We review a superior court’s decision to allow a witness to
testify for an abuse of discretion. State v. Carlos, 199 Ariz. 273, 277, ¶ 10
(App. 2001). “An error of law in reaching a discretionary conclusion may
constitute an abuse of discretion.” State v. Thompson, 252 Ariz. 279, 290, ¶ 26
(2022).

¶29 To address Zamora’s claim, we first review the relevant rules
of criminal procedure. In any felony case, the State must disclose to the
defendant, among other things, “the name and address of each person the
State intends to call as a witness in the State’s case-in-chief and any relevant
written or recorded statement of the witness.” Ariz. R. Crim. P. 15.1(a),
(b)(1). Both the prosecutor and the defense attorney may request that the
superior court order the deposition of a recalcitrant witness upon a showing
“that the person’s testimony is material to the case or necessary to
adequately prepare a defense or investigate the offense . . . and that the
person will not cooperate in granting a personal interview.” Ariz. R. Crim.
P. 15.3(a)(2). Either party may also “move to compel disclosure or request
an appropriate sanction for a disclosure violation of Rule 15.” Ariz. R. Crim.
P. 15.7(a). “If the court finds that a party violated a disclosure obligation
under Rule 15, it must order disclosure as necessary and impose an
appropriate sanction, unless the court finds that: . . . the party could not
have disclosed the information earlier with due diligence and the party
disclosed the information immediately upon its discovery.” Ariz. R. Crim.

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P. 15.7(b). If the court determines— upon considering: (1) “the significance
of the information not timely disclosed,” (2) “the violation’s impact on the
overall administration of the case,” (3) “the sanction’s impact on the party
and the victim,” and (4) “the stage of the proceedings when the party
ultimately made the disclosure”—that sanctions are warranted, it may,
among other things, preclude a witness’s testimony, grant a continuance,
or hold the witness in contempt. Ariz. R. Crim. P. 15.7(c).

¶30 In this case, the State noticed Ariana as a prospective witness
in its initial disclosure statement. Six months later, the prosecutor asked the
superior court to order Ariana to submit to a deposition, describing her as
an “uncooperative,” material eyewitness “to several of the charged
offenses” and chronicling her refusal to communicate with the State and
efforts to evade service of a subpoena for trial. The court granted the motion
and so ordered.

¶31 Although the State served Ariana with a subpoena for the
deposition, she did not appear. At a final trial management conference held
a few days after the scheduled deposition date, the prosecutor told the
superior court that Ariana had failed to appear and stated: “At this point,
I’m not asking for anything. That same person was served for trial. If they
do not appear at master calendar I will ask for a warrant at that time.”

¶32 Midtrial, Zamora moved to preclude Ariana’s testimony. The
prosecutor responded by denying any disclosure violation—again
characterizing Ariana as “uncooperative” and pointing to her refusal to
“communicate with the State”—explaining communication had been
limited to Ariana “acknowledging” a text message stating she was required
to appear in court subject to a criminal subpoena. The prosecutor also noted
he had “timely produced” all of Ariana’s “written or recorded statements
. . . in the State’s possession.” The superior court denied the motion, finding
preclusion an inappropriate remedy absent a discovery violation by the
State. The court assured defense counsel, however, that he would have “the
opportunity to interview” Ariana before she testified.

¶33 On the eighth day of trial, Ariana appeared in court,
accompanied by counsel. Her attorney informed the superior court that she
would submit to an interview with the prosecutor and defense counsel
before testifying. After meeting with Ariana during a two-hour recess,
Zamora’s attorney again moved to preclude her testimony. While
acknowledging the State did not have “access to her” and had not acted in
“bad faith,” defense counsel asserted that Ariana had disclosed “surprise
information” during the recess interview, compelling the preclusion of her

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testimony. The State objected to the motion, arguing the court could not
impose such “a sanction” absent a discovery violation and noting that both
sides had received the information “at the same time.” Apart from
recounting his considerable, unsuccessful efforts to secure Ariana’s
deposition, the prosecutor contended that Zamora suffered no prejudice
from the delayed disclosure: “The truth is I don’t quite understand the
prejudice . . . How did this change anything? He still can get up there and
accuse her of lying. . . The defense was going to be this no matter what.”

¶34 After hearing from counsel, the superior court denied the
motion to preclude Ariana’s testimony, concluding no disclosure violation
warranted such a sanction. Defense counsel then waived any objection to
Ariana’s testimony based on Arizona Rule of Evidence 404(b)–(c),
explaining he wanted to explore inconsistencies in her account that possibly
could be revealed by eliciting her testimony concerning alleged, uncharged
offenses.

¶35 When she took the stand, Ariana described her relationship
with Simone, stating they are “close,” “like sisters.” She recounted that in
2018, she and Simone, together, disclosed to their mothers that Zamora had
sexually abused them. Following their joint disclosure, Simone “went to the
police” while Ariana opted to handle the situation independent of any law
enforcement investigation. Over time, however, Ariana “felt guilty” for not
supporting Simone and decided to cooperate with the prosecution because
she “had to do what’s right.” In response to questioning, Ariana recalled
various acts of sexual abuse, both those she witnessed Zamora commit
against Simone and those he committed against her, including situations in
which she interceded to “protect” Simone and then became the focus of the
abuse. Ariana testified that Zamora initially convinced her and Simone not
to report the abuse by threatening any disclosure would hurt and anger
other family members.

¶36 “Deciding whether a disclosure violation has occurred and
the propriety of sanctions are within the sound discretion of the [superior]
court.” State v. Trujillo, 227 Ariz. 314, 320, ¶ 25 (App. 2011). On review, we
grant “considerable deference” to the court’s “perspective and judgment.”
Id. (citation modified). In so doing, “we will find an abuse of discretion only
when no reasonable judge would have reached the same result under the
circumstances.” State v. Naranjo, 234 Ariz. 233, 242, ¶ 29 (2014) (citation
modified).

¶37 To assess whether preclusion of a witness is warranted under
Rule 15.7, the superior court must consider: (1) how vital the witness’s

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testimony is to the case, (2) whether the witness’s testimony will surprise
the opposing party, (3) whether the untimely disclosure is attributable to a
discovery violation made in bad faith, and (4) any other relevant
circumstances. Id. at ¶ 30. “Any sanction must be proportional to the
violation and must have a minimal effect on the evidence and merits.” State
v. Payne, 233 Ariz. 484, 518, ¶ 155 (2013) (citation modified). Accordingly,
“a witness should be precluded only as a last resort.” State v. Delgado, 174
Ariz. 252, 257 (App. 1993) (citation modified).

¶38 With these principles in mind, we examine the relevant
criteria. First, Ariana’s testimony, though perhaps not vital, was material to
the prosecution. She corroborated the victims’ accounts of abuse, offering
eyewitness testimony of some of the charged offenses (though defense
counsel, on cross-examination, highlighted various discrepancies in her
recollections compared to Simone’s testimony), and additional,
independent evidence that Zamora engaged in a pattern of abusing his
young relatives over an extended period. Second, while defense counsel
described Ariana’s interview as including “surprise” disclosures, he did not
specify which statements or details were revelatory. Regardless, the
prosecutor did not challenge defense counsel’s description but noted that
both sides received the previously undisclosed information at the same
time. Third, and determinative here, the prosecutor did not thwart Ariana’s
deposition or otherwise act in bad faith to prevent the defense from
interviewing her. In fact, rather than engaging in willful noncompliance,
the record reflects that the prosecutor diligently sought Ariana’s
deposition, timely informed both the defense and the superior court that
Ariana would neither cooperate with nor communicate with the State,
requested and obtained a court order to depose her, and served her with
two subpoenas. And, as soon as Ariana made herself available to the State,
defense counsel had the opportunity to question her. To be clear, the
prosecutor complied with his disclosure obligations. Despite his diligent
efforts, Ariana simply refused to sit for a pretrial interview. On this record,
no discovery violation warranted a sanction under Rule 15.7.

¶39 Given the absence of a discovery violation, the superior court
did not abuse its discretion in permitting Ariana to testify. The State made
real efforts to produce her for an interview, and defense counsel was able
to cross-examine her on discrepancies with Simone’s account. While
Zamora correctly notes that Rule 15.3 “is intended to effectuate the
constitutional right of cross-examination contained in the confrontation
clause of the Sixth Amendment of the United States Constitution,” Murphy
v. Superior Court, 142 Ariz. 273, 278 (1984), he never requested a recess or
continuance so he could further interview Ariana, reassess his trial strategy,

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or develop his line of questioning on cross-examination. On this record, the
superior court was not required to order a continuance on its own initiative;
instead, it acted within its discretion by addressing Ariana’s earlier refusal
to sit for a pretrial interview through a requirement that she meet with
counsel before testifying. See State v. Krone, 182 Ariz. 319, 322 (1995)
(explaining some discovery violations “can be easily solved, say, by
allowing a witness to be interviewed during trial”); State v. Tyler, 149 Ariz.
312, 315 (App. 1986) (concluding superior court did not abuse its discretion
by determining “discovery sanctions were not appropriate,” despite the
State’s disclosure of a witness two days before trial, because the defense
had “sufficient time . . . to interview the witness and properly prepare for
trial”).

III. Denial of Motion for New Trial

¶40 Zamora challenges the superior court’s denial of his motion
for new trial without holding an evidentiary hearing. He contends he put
forward “sufficient allegations to warrant additional investigation and fact
finding.”

¶41 We review a superior court’s denials of a motion for a new
trial and a requested evidentiary hearing for an abuse of discretion. See State
v. Miller, 178 Ariz. 555, 556–57 (1994).

¶42 After the jury returned its verdicts, Zamora moved for a new
trial and requested an evidentiary hearing. Among other things, and as
relevant to this appeal, Zamora asserted that an unnamed juror committed
perjury “by indicating . . . he did not know any . . . of the State’s listed
witnesses.” As detailed in the motion, defense counsel stated he “was made
aware” that this juror knew the victims’ father and “had a previous
business relationship with him.” Because he did “not have a juror list and
the associated seat assignment,” defense counsel explained he could not
“identify the juror by name.” Counsel further alleged that the victims’
father had “enlisted his associate . . . [to] communicate with [unnamed]
members of the jury.” Although Zamora attached two exhibits to his
motion, neither pertained to the alleged juror perjury or jury tampering.
Notably, defense counsel also stated he expected to identify the perjurer
“by the time of the reply,” but failed to file a reply brief.

¶43 In response, the State asked the superior court to deny the
motion for new trial without holding an evidentiary hearing, contending
the motion lacked any factual basis and relied “solely upon hearsay and
rumors.” Pointing to defense counsel’s inability to identify either the

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purported perjurer or the “source of this information,” the State contended
that the bare allegations, devoid of any evidence, were insufficient to trigger
any duty to investigate the matter further.

¶44 Initially, the superior court scheduled oral argument on the
motion. It later determined that oral argument was unnecessary, however,
and denied the motion. Specific to the perjury allegation, the court found
Zamora had failed to present any “concrete information or evidence” to
support the claim.

¶45 “A criminal defendant is entitled to be tried by an impartial
jury” and a “jury’s verdict must be based upon the evidence developed at
the trial.” Miller, 178 Ariz. at 557 (citation modified). Pursuant to Rule
24.1(c)(3)(C), (F), the superior court may grant a new trial if a juror: (1)
committed misconduct by committing perjury “or willfully failing to
respond fully to a direct question posed during the voir dire examination,”
or (2) conversed “before the verdict with any interested party about the
outcome of the case.” While a court has a “duty” to resolve a “factual
conflict regarding the basis for a new trial,” State v. Rocco, 119 Ariz. 27, 29
(App. 1978), “if there is no significant factual question,” the court may
“deny a motion for new trial without holding an evidentiary hearing,” Am.
Power Prods., Inc. v. CSK Auto, Inc., 239 Ariz. 151, 154, ¶ 12 (2016) (citation
modified).

¶46 Here, Zamora failed to present any evidence creating a factual
dispute for the superior court to resolve. Instead of providing a juror
affidavit or other sworn statement, he offered only vague and
unsubstantiated hearsay allegations. See State v. Spears, 184 Ariz. 277, 288
(1996) (concluding the superior court did not abuse its discretion in denying
defendant a new trial without first holding an evidentiary hearing because
the juror affidavit submitted in support of the motion contained only vague
allegations). Therefore, on this record, the superior court did not abuse its
discretion by denying Zamora’s motion for a new trial without conducting
an evidentiary hearing.

CONCLUSION

¶47 We affirm.

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