State v. Preston

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SAMUEL CLAYTON PRESTON, Appellant.

No. 1 CA-CR 21-0138
FILED 4-26-2022

Appeal from the Superior Court in Maricopa County
No. CR2018-001000-001
The Honorable Timothy J. Ryan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Jones Skelton & Hochuli PLC, Phoenix
By Lori L. Voepel, Elizabeth B.N. Garcia
Counsel for Appellant

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass
joined.
 STATE v. PRESTON
Decision of the Court

P A T O N, Judge:

¶1 Samuel C. Preston appeals from his sexual abuse and child
molestation convictions. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
verdicts. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1 n.1 (App. 2019). Twelve-year-
old K.F. lived with her parents directly across the street from Preston and
his family. K.F. was friends with Preston’s niece and regularly spent time
at his home. One night, K.F. had a sleepover at Preston’s house with his
niece. The two girls slept on the living room couch.

¶3 K.F. later testified that at around 2:00 a.m., Preston woke her
up by touching her leg. She testified that he climbed on top of her, forced
her hand into his pants, and forced her to rub his penis. K.F. described how
Preston then forced his hand down her pants and rubbed, then digitally
penetrated, her vagina. After removing his hand from K.F.’s vagina,
Preston grabbed and rubbed her left breast underneath her clothing.

¶4 Moments later, Preston’s wife walked in and noticed an
uncomfortable feeling in the room. Preston told his wife that K.F. had asked
him to “rub her,” and he refused. Preston’s wife spoke with K.F. who said
Preston assaulted her. Preston and his wife went to K.F.’s house to speak
with K.F.’s mother. K.F.’s parents called the police early that morning,
sometime after 6:00 a.m.

¶5 K.F. underwent a sexual assault exam at the hospital that
afternoon. The doctor swabbed her left breast, inner vagina, external
genital area, palms, anus, and mouth for DNA.

¶6 Nearly twenty-four hours after the assault, police interviewed
Preston, who denied K.F.’s allegations. Pursuant to a valid warrant, police
photographed Preston and collected a buccal swab from him. Police did
not collect additional DNA samples from Preston and did not arrest him
that night.

¶7 K.F.’s sexual assault exam revealed Preston’s DNA on the
swabs from her left breast, and his Y-STR DNA profile from the swabs from
her external genital area, which matched him and his paternally related
male relatives. Preston’s DNA was not found on the swabs from K.F.’s
hands, anus, or inner vagina.

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¶8 The State charged Preston with three counts of sexual conduct
with a minor: masturbatory contact with penis (count 1), masturbatory
contact with vulva (count 2), and digital vaginal penetration (count 3); one
count of kidnapping (count 4); and one count of sexual abuse: sex conduct
with breast (count 5).

¶9 After a twelve-day trial, the jury acquitted Preston of two
counts of sexual conduct with a minor (counts 1 and 3) and kidnapping
(count 4). The jury convicted Preston of sexual abuse (count 5) but could
not agree on the remaining sexual conduct charge (count 2) and convicted
him of the lesser-included crime of child molestation. The court sentenced
Preston to the presumptive seventeen-year term on count 2 and lifetime
probation for count 5.

¶10 Preston timely appealed from his convictions and sentences.
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).

DISCUSSION

I. The superior court did not abuse its discretion by denying
Preston’s request for a Willits instruction.

¶11 Preston contends the superior court committed reversible
error by denying his request for a Willits instruction on the State’s failure to
collect “potentially exculpatory” DNA evidence from his clothes, hands,
and genitals. See State v. Willits, 96 Ariz. 184 (1964). A Willits instruction
permits jurors to draw an adverse inference against the State if they find the
State “lost, destroyed, or failed to preserve evidence.” Rev. Ariz. Jury Instr.
(“RAJI”) Stand. Crim. 42 (5th ed. 2019). We review the superior court’s
denial of a Willits instruction for an abuse of discretion. State v. Glissendorf,
235 Ariz. 147, 150, ¶ 7 (2014) (citation omitted).

¶12 “Generally, a defendant is entitled to a Willits instruction if:
(1) the state failed to preserve obviously material and reasonably accessible
evidence that could have had a tendency to exonerate the accused; and (2)
there was resulting prejudice.” State v. Hernandez, 250 Ariz. 28, 31, ¶ 10
(2020). Here, the superior court concluded that collecting additional DNA
from Preston was not “obviously material” for Willits purposes. We agree.
Evidence is “obviously material” when, at the time the State encounters the
evidence, it either “relies on the evidence or knows the defendant will use
[it] for his or her defense.” Id. at 33, ¶ 16.

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¶13 The State did not rely on the uncollected DNA evidence or
know that Preston would use it in his defense. When police interviewed
Preston, they had already collected swabs from K.F., and Preston told police
they “100% unequivocally” would not find his DNA on her. Preston,
therefore, indicated he intended to use the absence of his DNA on the victim
in his defense, but not the absence of the victim’s DNA on him.

¶14 Preston has also failed to show the uncollected evidence
tended to exonerate him. As the superior court correctly found, additional
testing would have either revealed the victim’s DNA on Preston, which
would be inculpatory, or no DNA match, which would not be exculpatory.
See id. at 33-34, ¶¶ 19-21 (holding that absence of DNA at an expected
location does not tend to exonerate the defendant because, even if guilty,
the defendant “may not have left identifiable DNA.”) (citation omitted).
Accordingly, the superior court did not abuse its discretion in denying
Preston’s request for a Willits instruction.

II. The superior court did not err by instructing the jury on the
lesser-included offense of child molestation.

¶15 At the State’s request, and without objection from Preston, the
superior court instructed the jury that sexual conduct with a minor (counts
1-3) includes the lesser-included offense of child molestation. Preston now
argues that insufficient evidence supported a jury instruction on child
molestation as a lesser-included offense of count 2 (masturbatory contact
with vulva). Because Preston failed to object at trial, we review for
fundamental error and Preston bears the burden of proving that (1) the trial
court erred, (2) the error was “fundamental,” and (3) he suffered prejudice
from the error. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

¶16 The superior court “must” instruct the jury on all lesser-
included offenses of the charged offense if “any party” requests the
instruction and the evidence supports the instruction. See Ariz. R. Crim. P.
21.4(a)(1). Sufficient evidence supports a lesser-included instruction if “the
jury could rationally fail to find the distinguishing element of the greater
offense.” State v. Detrich, 178 Ariz. 380, 383 (1994).

¶17 Preston concedes that child molestation is a lesser-included
offense of sexual conduct with a minor. Because the State requested it, the
court was required to give the instruction where the evidence supported a
finding that Preston touched, fondled, or manipulated K.F.’s genitals
without engaging in “masturbatory contact” with her vulva. Compare
A.R.S. §§ 13-1410(A), and 13-1401(A)(3)(a) (molestation requires proof of

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“touching, fondling or manipulating of any part of the genitals”), with 13-
1405(A), and 13-1401(A)(4) (sexual conduct requires proof of “masturbatory
contact” with vulva).

¶18 K.F. testified that Preston “forced his hand down [her] pants”
and “rub[bed] [her] vagina” for “a couple [of] seconds.” The State’s DNA
expert also testified that K.F.’s external genital swabs contained Preston’s
DNA profile. The jury, therefore, could have reasonably found that the
brief rubbing K.F. testified to, and the presence of Preston’s DNA on her
outer genitals, proved molestation that did not rise to masturbatory contact.
See State v. Smith, 242 Ariz. 98, 106, ¶ 31 (App. 2017) (victim’s testimony that
defendant “rubbed” her genitals, and presence of DNA on victim’s
underwear was sufficient evidence to support a conviction for child
molestation). Accordingly, sufficient evidence supported the molestation
instruction.

III. The superior court did not abuse its discretion by
precluding testimony from two of K.F.’s juvenile friends
about their sexual victimization.

¶19 Preston argues the superior court abused its discretion by
precluding testimony that two of K.F.’s juvenile friends talked to her about
their sexual victimization. Preston contends the juvenile friends’ testimony
was relevant evidence that K.F. fabricated her accusation based on their
accounts. We review the superior court’s ruling for an abuse of discretion.
See State v. McGill, 213 Ariz. 147, 156, ¶ 40 (2006) (citation omitted).

¶20 Evidence is relevant if it has “any tendency” to make a
consequential fact “more or less probable.” Ariz. R. Evid. 401. The superior
court has “considerable discretion” to determine the relevance and
admissibility of evidence. State v. Smith, 136 Ariz. 273, 276 (1983). The court
may exclude relevant evidence if “its probative value is substantially
outweighed by a danger of . . . confusing the issues, [or] misleading the
jury.” Ariz. R. Evid. 403. Irrelevant evidence is inadmissible. Ariz. R. Evid.
402.

¶21 Before trial, the State moved to preclude “testimonial
evidence from [the] juvenile witnesses . . . related to their sexual assault
cases.” The State argued, among other things, that the evidence was not
relevant and that the danger of confusing the issues and misleading the jury
substantially outweighed its probative value. The State conceded that
Preston could “certainly, cross examine [K.F.] to ask if she knew if either [of
her juvenile friends] had been abused.” The superior court granted the

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State’s motion and precluded Preston from introducing testimony about the
juvenile friends’ victimization.

¶22 The superior court ruled on this issue in a minute entry as part
of the State’s motion in limine. Additionally, at trial, when Preston tried to
elicit testimony regarding the juvenile friends’ sexual victimization from
Preston’s wife, the court admonished Preston: “Don’t do that. The ruling
was pretty clear several times. I wouldn’t do that, if I were you.”

¶23 Preston asserts that the juvenile friends’ testimony was
“relevant to . . . address the presumption that [K.F.] could not have made
such detailed allegations unless [he] abused her.” We disagree. The
juvenile friends’ sexual assaults were unlike K.F.’s because one friend was
orally sexually abused by her grandfather and the other was a victim of a
juvenile-on-juvenile attack when she was nine years old.

¶24 Additionally, Preston could have cross-examined K.F. about
whether she knew her juvenile friends had also been sexually abused.
Balancing this against the risk of confusing and misleading the jury into
evaluating the credibility of the juvenile friends’ sexual assaults rather than
the evidence before them, we find the court did not abuse its discretion.
Moreover, any potential error was harmless. See State v. Dixon, 226 Ariz.
545, 552, ¶ 32 (2011) (finding trial error harmless given the strength of the
DNA evidence and circumstances implicating the defendant in the crime).

IV. We find no instances of fundamental prosecutorial error.

¶25 Preston next argues that the prosecutor committed various
errors during closing argument—the cumulative effect of which denied
him a fair trial. Because Preston failed to object to the prosecutor’s
statements he now contends were error, we review for fundamental error.
See Henderson, 210 Ariz. at 567, ¶ 19.

¶26 We review claims of prosecutorial error by assessing each
claim individually and, after determining whether any constitute error, we
assess the “cumulative misconduct to conclude whether the total errors
resulted in an unfair trial.” State v. Acuna Valenzuela, 245 Ariz. 197, 216,
¶ 66 (2018) (citation and internal quotation marks omitted). We will reverse
only if (1) the prosecutor committed error and (2) a “reasonable likelihood”
exists “that the misconduct could have affected the jury’s verdict,” thereby
denying the defendant his due process right to a fair trial. Id. We address
each of Preston’s claims in turn.

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a. Burden-shifting

¶27 Preston argues that the prosecutor shifted the burden of proof
regarding the absence of DNA by suggesting he had a duty to collect
evidence in his defense. We disagree.

¶28 In his interview with police, Preston said he could not
remember what underwear he wore during the alleged assault. At trial,
however, Preston testified that when police interviewed him, he was still
wearing the same underwear he wore during the incident. The prosecutor
argued in closing argument that if Preston had been wearing the same
underwear during the interview “as he suggested during his testimony, he
would’ve turned it all over. He would’ve remembered and given [police]
the underwear.”

¶29 Preston’s testimony contradicted his earlier statement to
police that he did not remember what underwear he was wearing during
the incident and opened the door to attacks on his credibility. See State v.
Alvarez, 145 Ariz. 370, 373 (1985) (prosecutorial comments are proper when
they are a fair rebuttal to areas opened by the defense).

¶30 Further, the parties and the court correctly informed the jury
that the State bears the burden of proving every element of the offense and
the “defendant is not required to produce evidence of any kind.” Thus,
even if error occurred, it was harmless. See Acuna Valenzuela, 245 Ariz. at
220, ¶ 91 (no prejudice from prosecutor’s stray burden-shifting argument
when the parties and court properly instructed the jury on the burden of
proof); see also State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160 (1987)
(“To the extent that the prosecutor’s statement in rebuttal closing argument
may have implied that defendant had the burden of proof, however, the
trial court’s cautionary instruction to the jury was sufficient to cure any
harm.”).

b. Lesser-included offense

¶31 Preston contends the prosecutor erred by arguing the jury
could “find molestation of a child” on count 2 if they “hav[e] difficulty
deliberating” on whether “the touch . . . rise[s] to the level of masturbatory
conduct,” and conclude instead it was “merely touching.” For the reasons
discussed above, the court correctly instructed the jury on the lesser-
included offense of molestation. See supra at ¶ 21. Therefore, the
prosecutor’s argument was not an error but a true statement of law. See
State v. LeBlanc, 186 Ariz. 437, 438 (1996) (“[T]he jury may deliberate on a
lesser offense if it either (1) finds the defendant not guilty on the greater

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charge, or (2) after reasonable efforts cannot agree whether to acquit or
convict on that charge.”).

c. Precluded evidence

¶32 Preston claims the prosecutor violated the court’s order
precluding evidence about K.F.’s juvenile friends’ sexual assaults. He cites
the part of the prosecutor’s closing argument where she argued it did “not
make sense” that a twelve-year-old would not only make up the allegations
against Preston but that she would “know about DNA, how to find invisible
DNA” and plant the corroborating DNA evidence on her body. But the
prosecutor’s argument did not refer to K.F.’s imaginative ability or
inspiration for fabricating the allegation, as Preston contends. Rather, it
attacked the credibility of Preston’s fabrication theory considering the DNA
evidence against him. Thus, the argument did not violate the court’s order
because it did not venture into K.F.’s ability to make up the allegation
without input from her juvenile friends.

d. Vouching

¶33 Preston argues the prosecutor “vouched for the testimony of
the state’s witnesses.” Prosecutorial vouching occurs either when the
prosecutor (1) “places the prestige of the government behind its witness”
or (2) “suggests that information not presented to the jury supports the
witness’s testimony.” State v. Johnson, 247 Ariz. 166, 204, ¶ 157 (2019). At
trial, Preston’s mother-in-law testified that she “had not prepared” her
niece to talk to the police alone. Referring to that testimony, the prosecutor
argued that the jury should “ask [themselves] . . . [d]o you have to prepare
someone to tell the truth? No, absolutely not.” Later, the prosecutor asked
the jury to consider “how the defendant’s witnesses were given copies of
their transcripts” before testifying, unlike the victim.

¶34 Preston contends these arguments constituted impermissible
vouching. We disagree. The arguments properly questioned the substance
of the witnesses’ testimony. Neither statement placed the prestige of the
government behind a witness or suggested that information not presented
to the jury supported a witness’s testimony. Instead, the prosecutor
correctly asked the jury to make a credibility determination based on the
evidence in the record. See State v. Hill, 174 Ariz. 313, 322 (1993) (“We have
consistently held that wide latitude is to be given in closing arguments and
that counsel may comment on the evidence and argue all reasonable
inferences therefrom.”).

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¶35 In closing, the prosecutor also argued it was “almost
impossible” for Preston to answer questions without his attorney “feeding
him the entire question and answer.” She explained that “[t]here were
times that [she] objected as leading, not as many times as [she] could’ve,
but [she] really wanted to draw [the jury’s] attention to those points in time
where the defendant and witnesses were being led to their answers.” This
was an improper comment because the prosecutor’s non-objections were
not in the record. See State v. Johnson, 247 Ariz. 166, 182, ¶ 24 (2019)
(“Counsel may not, however, comment on matters which were not
introduced in evidence”) (citation omitted). The court, however, instructed
the jury that a lawyer’s argument is not evidence and to “[d]etermine the
facts only from the . . . testimony of witnesses and the exhibits introduced
in court.” We presume the jury followed the court’s instructions. State v.
Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Accordingly, the prosecutor’s
improper statement did not constitute fundamental error.

e. Cumulative error

¶36 Preston asks this court to reverse his convictions and
sentences based on the cumulative effect of the prosecutor’s errors. We
consider whether “persistent and pervasive” error occurred and whether
the “cumulative effect of the [errors] shows that the prosecutor
intentionally engaged in improper conduct and did so with indifference, if
not a specific intent, to prejudice the defendant.” State v. Morris, 215 Ariz.
324, 339, ¶ 67 (2007) (citation and internal quotation marks omitted).
Because we find only one instance of non-prejudicial error, we cannot
conclude the prosecutor engaged in “persistent and pervasive”
misconduct.

V. The court’s COVID-19 protocols did not violate Preston’s
confrontation rights.

¶37 Preston claims that COVID-19 protocols during his trial
violated his confrontation rights. See U.S. Const. amend. VI; see Ariz. Const.
art. 2 § 24. He argues the superior court erred by erecting plexiglass
barriers, using an audio-system to transmit sound, and requiring testifying
witnesses to wear a transparent face shield. Because Preston failed to object
at trial, we review for fundamental error. See Henderson, 210 Ariz. at 567,
¶ 19.

¶38 A defendant’s right to confront witnesses may be satisfied
absent a traditional face-to-face confrontation when: (1) “denial of such
confrontation is necessary to further an important public policy,” and (2)

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“the reliability of the testimony is otherwise assured.” Maryland v. Craig,
497 U.S. 836, 850 (1990) (citation omitted). The reliability of the testimony
is assured when witnesses are physically present, testify under oath, are
subject to cross-examination, and can be seen by the trier of fact. Id. at 846.

¶39 Even assuming the COVID-19 protocols denied Preston a
“traditional face-to-face confrontation,” which this record does not support,
his confrontation rights were nevertheless satisfied. First, the protocols
were necessary to combat the spread of COVID-19 per an Arizona Supreme
Court order. See Ariz. Sup. Ct. Admin. Order No. 2020–75 (May 8, 2020).
Second, the reliability of the witnesses’ testimony was assured. Every
witness testified under oath. Preston was present in the courtroom and
cross-examined each witness who testified against him. The witnesses
wore transparent face shields and could be seen by the jury, Preston, and
the court. Accordingly, the superior court did not violate Preston’s
confrontation rights. See State ex rel. Montgomery v. Padilla, 237 Ariz. 263,
269, ¶ 19 (App. 2015) (“[W]hen a defendant is represented by counsel, his
confrontation rights are satisfied if he is in the courtroom and can face the
witness while his counsel conducts cross-examination.”).

VI. The superior court appropriately sentenced Preston to the
presumptive term on count 2.

¶40 Finally, Preston argues the superior court improperly
considered his rejected plea offer and lack of remorse when sentencing him
to the presumptive term for child molestation (count 2). Generally, a court
violates a defendant’s privilege against self-incrimination when it considers
his lack of remorse in sentencing. See State v. Trujillo, 227 Ariz. 314, 318,
¶ 14 (App. 2011). We review sentencing determinations for an abuse of
discretion. State v. Vermuele, 226 Ariz. 399, 403, ¶ 15 (App. 2011).

¶41 At sentencing, the court asked about a plea the State offered
to Preston carrying a sentence of lifetime probation. After hearing from
both parties, the court told Preston that he could have avoided prison time
by accepting the plea, but “that was never going to happen because you
have no remorse.” The court said Preston would have been eligible for
probation if he had “accepted responsibility, but that’s neither here nor
there now.”

¶42 The court then made its aggravation findings. It listed
Preston’s significant family support, lack of criminal history, and
amenability to treatment as mitigating factors, and the significant impact
on the victim as an aggravator. Balancing these factors, the court

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determined “the aggravating and mitigating circumstances don’t require
anything other than the presumptive term.”

¶43 To be sure, a better practice in sentencing is to not discuss the
absence of remorse. See State v. Hardwick, 183 Ariz. 649, 656 (App. 1995)
(“[I]t would be irrational or disingenuous” to expect a defendant “who
maintains his innocence to express contrition or remorse. A convicted
defendant’s decision not to publicly admit guilt is irrelevant to a sentencing
determination, and the trial court’s use of this decision to aggravate a
Defendant’s sentence offends the Fifth Amendment privilege against self-
incrimination.”). Here, however, when the court listed the factors it
weighed in mitigation and aggravation, it did not include lack of remorse.
Insofar as the court improperly considered lack of remorse, it ultimately
refrained from finding it to be an aggravating factor. On this record,
therefore, it is clear that any error in sentencing was harmless. See Trujillo,
227 Ariz. at 318, ¶ 13 (we will uphold a sentencing determination when the
record “clearly show[s] that the trial court would have reached the same
result even without consideration of the factor.”) (citation omitted).

CONCLUSION

¶44 We affirm.

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

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