Cited by

n.2 (App. 1995) (using absolute disparity in a Duren analysis); see also Berghuis v. Smith, 559 U.S. 314, 329 (2010) (identifying three methods: absolute disparity, comparative disparity, and standard deviation and holding “neither Duren nor any other decision of this Court specifies the method or test courts mus

(explaining that “[p]rospective jurors’ age, marital status and lack of employment have been identified as non-discriminatory reasons supporting the exercise of peremptory strikes”).

Given the long-standing Arizona rule that the State is not required to prove sexual intent to successfully prosecute a defendant for child molestation, which provided the background for the “prevailing professional practice at the time of the trial,” see Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (per curiam), we cannot conclude that trial counsel’s failure to object to the constitutionality of the statute’s

("Prospective jurors' age, marital status and lack of employment have been identified as non-discriminatory reasons supporting the exercise of peremptory strikes.") (citing United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988)); see also Rice v. Collins, 546 U.S. 333, 341 (2006) ("It is not unreas

We thus agree with Simpson that “[t]he ‘sexual interest’ provision of § 13-1407(E) is not an element of the offense of child molestation [or sexual abuse], but rather ‘create[s] an affirmative defense regarding motive.’” 217 Ariz. at 329 ¶ 19, 173 P.3d at 1030 ( , ).

We thus agree with Simpson that “[t]he ‘sexual interest’ provision of § 13-1407(E) is not an element of the offense of child molestation [or sexual abuse], but rather ‘create[s] an affirmative defense regarding motive.’” 217 Ariz. at 329 ¶ 19, 173 P.3d at 1030 ( ).

Difficulty understanding English is an appropriate ground for excusing a prospective juror, A.R.S.

5, 1993) (describing bill as making “a number of technical and conforming changes”)

-42, -91 (App. 1995), and later specified that a defendant must prove this affirmative 7 STATE v. MENDOZA Opinion of the Court defense by a preponderance of the evidence.

¶ 19 The “sexual interest” provision of § 13-1407(E) is not an element of the offense of child molestation, but rather “create[s] an affirmative defense regarding motive.”

-24, -57 (1995) (noting that “[g]ranting excuses based on the application of neutral criteria to prospective jurors’ individual situations” is a proper exercise of the jury commissioner’s discretion ( )).

See, , , 671 P.2d *483 399, 403 (1983)

(considering an appeal in which the defendant presented a prima facie showing of discrimination on the combined bases of race and gender).

(comparing percentage of Native Americans in venire from which jury was selected with proportion in population of county).

“Granting excuses based on the application of neutral criteria to prospective jurors’ individual situations does not constitute systematic exclusion.”