IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

JOSE LUIS JIMENEZ,

Appellant.

No. 2 CA-CR 2022-0062

Filed July 13, 2023

Appeal from the Superior Court in Pima County

No. CR20173703001

The Honorable Teresa Godoy, Judge Pro Tempore

The Honorable James E. Marner, Judge 

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General

Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, Phoenix

Counsel for Appellee

Megan Page, Pima County Public Defender

By Erin K. Sutherland, Assistant Public Defender, Tucson

Counsel for Appellant
STATE v. JIMENEZ

Opinion of the Court

2

OPINION

Judge Eckerstrom authored the opinion of the Court, in which Presiding 

Judge Brearcliffe and Judge Kelly concurred.

E C K E R S T R O M, Judge:

¶1 Defendant Jose Jimenez appeals from his conviction and 

sentence for continuous sexual abuse of a minor. Jimenez argues the trial 

court committed structural error by refusing to strike a “biased juror” for 

cause. He also maintains the court committed reversible error when it 

precluded a defense expert from testifying as to Jimenez’s sexual normalcy 

unless he also submitted to a psychosexual evaluation by a state expert, 

thereby forcing Jimenez to choose between presenting a complete defense 

or giving up his constitutional privilege against self-incrimination. For the 

reasons that follow, we affirm.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to affirming 

the conviction. See State v. Payne, 233 Ariz. 484, n.1 (2013). At trial, the state 

presented evidence that, repeatedly over the course of about eighteen 

months, Jimenez had sexually abused his niece, P.B., who was nine years 

old when the abuse began. After P.B.’s parents learned of the abuse and 

reported it to police, Jimenez was charged with one count of continuous 

sexual abuse of a child. After a six-day trial, the jury found Jimenez guilty. 

The trial court sentenced him to thirteen years’ imprisonment. This timely 

appeal followed. We have jurisdiction pursuant to A.R.S. 

§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Juror Number 8

¶3 Jimenez first argues the trial court committed structural error 

by not striking for cause Juror 8, a retired Federal Bureau of Investigation 

(FBI) agent with experience surveilling suspected “pedophiles.” During 

voir dire, Juror 8 stated that for the final third of his FBI career, he had run 

a surveillance team “assigned to surveil” suspected pedophiles as they

interacted with children. Although Jimenez moved to strike Juror 8 for 

cause, the court denied the motion, finding credible the juror’s indication 

that he “could be fair and impartial.” On appeal, Jimenez maintains that 

Juror 8’s training and experience rendered him “clearly biased,” as 
STATE v. JIMENEZ

Opinion of the Court

3

evidenced by his responses to questioning during jury selection. As the 

party asserting error, Jimenez bears the burden of establishing Juror 8 was 

“incapable of rendering a fair and impartial verdict.” State v. Acuna 

Valenzuela, 245 Ariz. 197, ¶ 21 (2018) (quoting State v. Lavers, 168 Ariz. 376, 

390 (1991)). 

¶4 The due process right to a jury composed of unbiased, 

impartial jurors is protected by the United States and Arizona constitutions, 

as well as by Arizona statute and procedural rule. U.S. Const. amends. VI

& XIV, § 1; Ariz. Const. art. II, § 24; A.R.S. § 21-211; Ariz. R. Crim. P. 18.4(b); 

see also Morgan v. Illinois, 504 U.S. 719, 726 (1992) (guarantee of trial by 

impartial jury guaranteed independently by Sixth Amendment and by 

Fourteenth Amendment’s due process clause). A trial court must excuse 

prospective jurors for cause “if there is a reasonable ground to believe” they 

“cannot render a fair and impartial verdict,” Ariz. R. Crim. P. 18.4(b), 

including if they are “biased or prejudiced in favor of or against either of 

the parties,” § 21-211(4). 

¶5 “In assessing a potential juror’s fairness and impartiality, the 

trial court has the best opportunity to observe prospective jurors and 

thereby judge the credibility of each.” State v. Hoskins, 199 Ariz. 127, ¶ 37 

(2000). Trial courts thus “retain broad discretion” to determine whether 

there are reasonable grounds to doubt that a venireperson will be able to 

serve as a fair and impartial juror. State v. Eddington (Eddington I), 226 Ariz. 

72, ¶ 17 (App. 2010). We will not set aside a trial court’s ruling absent a 

showing that the court abused that discretion. Hoskins, 199 Ariz. 127, ¶ 37;

see also Acuna Valenzuela, 245 Ariz. 197, ¶¶ 20-21. 

¶6 Effective January 1, 2022, our supreme court amended the 

Arizona Rules of Criminal Procedure to make Arizona the first jurisdiction

in the nation to eliminate peremptory strikes in all criminal trials. Ariz. 

Sup. Ct. Order R-21-0020 (Aug. 30, 2021). Voir dire in the present case 

occurred nine days later. This substantial change eliminates the power of 

criminal defendants and prosecutors to strike venirepersons, including 

those whom they suspect might be biased. As our supreme court has

acknowledged, the peremptory strike system played an important

“auxiliary” role in assuring a fair and impartial jury in those cases when a 

trial court may have erred in failing to strike a venireperson for cause. State 

v. Hickman, 205 Ariz. 192, ¶¶ 1, 31, 40 (2003). Under the amendment, our 

trial courts exclusively determine the final composition of juries in criminal 

cases. 
STATE v. JIMENEZ

Opinion of the Court

4

¶7 The fairness and impartiality of juries “goes to the very 

integrity of the legal system.” Gray v. Mississippi, 481 U.S. 648, 668 (1987).

Given these stakes, we address the approach our jurisprudence has 

counseled and the tools our trial judges possess to ensure an impartial jury. 

As noted by our supreme court, under certain circumstances, “[t]he 

potential for an appearance of bias suffice[s] to require disqualification 

regardless of any juror-specific finding of actual bias.” State v. Eddington

(Eddington II), 228 Ariz. 361, ¶ 10 (2011), aff’g 226 Ariz. 72 (App. 2010). This 

is so, in part, because “protecting the appearance of fairness . . . helps instill 

public confidence in the judicial system.” Id. ¶ 8. 

¶8 In determining whether there is a reasonable ground to 

believe that a venireperson might be unable to render a fair and impartial 

verdict, our trial courts retain broad discretion to excuse or retain potential 

jurors who have been challenged for cause. See Eddington I, 226 Ariz.

72,¶ 17. They may excuse potential jurors on their own motions. See Ariz. 

R. Crim. P. 18.4(b). And, they have the authority to conduct voir dire of a 

venireperson and allow the parties to follow up with voir dire of their own. 

After that process, the court need not accept the subjective beliefs of 

challenged venirepersons regarding their ability to remain unbiased. See 

Eddington I, 226 Ariz. 72, ¶ 17. Rather, our trial courts may determine that 

any objective factors suggesting bias alone provide reasonable grounds to 

excuse the potential juror. Id. And, when the decision to excuse or retain a 

potential juror presents a close question, our courts may trust that other 

potential venirepersons are ready to serve if that juror is excused. See 

Hickman, 205 Ariz. 192, ¶ 31 (acknowledging that such determinations 

involve “shades of gray” (quoting United States v. Martinez-Salazar, 528 U.S. 

304, 316 (2000))). 

¶9 Here, the trial court was required to grapple with a non-trivial 

motion to strike a juror for cause. Juror 8 had been a career law enforcement 

officer. A substantial portion of that career involved investigating cases like 

the one before the court. That task included acquiring special expertise in 

assessing the truthfulness of a suspect’s claims of innocence—a claimed 

aptitude especially relevant in the instant case, where Jimenez testified at 

trial. Based on these facts, the trial court could have reasonably questioned

Juror 8’s objective ability to be unbiased. And, on that basis, it possessed 

the broad discretion to excuse him from the panel. See Eddington I, 226 Ariz. 

72, ¶ 17. 

¶10 However, based on its first-hand interactions with, and 

observation of, the challenged juror during extensive voir dire, the trial 

court found the opposite and properly exercised its equally broad 
STATE v. JIMENEZ

Opinion of the Court

5

discretion to retain Juror 8. The record supports the court’s conclusion that 

Juror 8 could be fair and impartial. See State v. Hill, 174 Ariz. 313, 319, 321 

(1993) (finding no abuse of discretion in trial court’s refusal to strike police 

officer for cause). 

¶11 In challenging that conclusion, Jimenez identifies two 

exchanges in particular.

1 First, after Juror 8 described his training and 

experience in lie detection and suspect interrogation, defense counsel asked 

him whether he could “evaluate the credibility of a witness without 

employing those techniques used in an interrogation room.” Juror 8 

replied, “I won’t be saying anything, so yes.” Jimenez contends this 

statement demonstrates Juror 8’s inability to evaluate the evidence 

impartially, particularly because jurors in Arizona may participate in the 

questioning of the witnesses through the submission of anonymous 

questions. 

¶12 Jimenez also argues Juror 8 demonstrated bias in his response 

to defense counsel’s question of whether Juror 8 believed, at the time of jury 

selection, that Jimenez was a “pedophile.” Juror 8 responded, “I have no 

idea.” Jimenez contends this statement suggests Juror 8 did not presume 

Jimenez was innocent at the outset of the trial. 

¶13 Nothing in the record before us, including the two exchanges

Jimenez identifies, compelled the trial court to excuse Juror 8 for cause. “A

juror’s assurance of impartiality need not be couched in absolute terms.” 

State v. Trostle, 191 Ariz. 4, 13 (1997); see also Hoskins, 199 Ariz. 127, ¶ 37. 

And here, Juror 8 repeatedly asserted that he could be fair and impartial. 

1We decline the state’s invitation to deem this issue waived because 

Jimenez did not move to strike Juror 8 for cause immediately following the 

first line of questioning about the juror’s law enforcement experience. 

Jimenez requested that Juror 8 be stricken for cause because “he is going to 

try to . . . use his expertise. He has demonstrated that he relies on his 

training that none of the other jurors have the benefit of and that is on the 

record as out-of-date.” Although this motion was made in the immediate 

aftermath of questioning on interrogation techniques, Jimenez’s concern 

that Juror 8 would use “his expertise” covers the general argument asserted 

on appeal—that Juror 8 would be unable to overcome bias stemming from 

his law enforcement background. In any event, we may in our discretion 

reach an issue even if it “could be deemed waived” due to a party’s failure 

to raise the issue during trial court proceedings. State v. Boteo-Flores, 230 

Ariz. 551, ¶ 7 (App. 2012).
STATE v. JIMENEZ

Opinion of the Court

6

See Acuna Valenzuela, 245 Ariz. 197, ¶¶ 25-32 (“extensive questioning” 

sufficed to rehabilitate challenged jurors). He stated that he could remain 

impartial, that he understood the applicable burdens of proof, that he 

would not give any special deference or skepticism to law enforcement 

witnesses, and that every case “is individual and stands on its own.” He 

noted that he had worked on “a number of cases” in which his investigation 

led him to conclude the suspect “wasn’t guilty.” And, he stated that he 

believed he could find Jimenez not guilty despite never, in his own career,

having made an arrest of a suspect who was ultimately acquitted of charges. 

Each of these assurances of impartiality was unqualified. The court acted 

within its discretion in finding them credible. See Eddington I, 226 Ariz. 72, 

¶ 17.

¶14 As to the challenged juror’s professional training and 

experience, Jimenez correctly notes that Juror 8 indicated he was very good 

at identifying when people lie, having been trained in “detecting people’s 

lies” and having personally conducted “over a thousand interviews.” Juror 

8 agreed, however, that his role as a juror was not the same as his former 

role as an interrogator. And, he unequivocally agreed he would be able to 

evaluate witness credibility without employing interrogation-room

techniques. He further responded that when balancing his intuition against 

the evidence, “[i]t’s always the evidence, always.” Under these 

circumstances, the trial court acted within its discretion to accept as credible 

Juror 8’s assurances that his training and experience would not impair his 

impartiality. See Trostle, 191 Ariz. at 13 (no presumption that potential 

jurors having served on jury that convicted in similar type of case or having 

had personal experiences with violent crime would be biased); see also 

Eddington I, 226 Ariz. 72, ¶ 6 (“peace officer is not automatically barred from 

serving as a juror”). 

¶15 We also find no clear prejudice underlying Juror 8’s statement 

that he had “no idea” at that moment whether Jimenez was “a pedophile.”

So long as a prospective juror agrees to decide the case only on the evidence 

presented at trial, “[e]ven a juror with preconceived notions about the 

defendant’s guilt need not be excused.” State v. Anderson, 210 Ariz. 327, 

¶ 28 (2005). Here, read in the context of the trial court’s instructions, as well 

as Juror 8’s repeated assertions that the evidence would guide his ultimate 

conclusion as to Jimenez’s guilt, we disagree that this statement signaled 

that Juror 8 had either discarded the presumption of innocence or 

prejudged the case. Rather, the statement “was the answer of a juror who 

was willing to listen to the evidence before making up h[is] mind.” State v. 

Goodyear, 98 Ariz. 304, 324-25 (1965) (after counsel inquired whether juror 

presumed defendant innocent as baseline, response that juror could not 
STATE v. JIMENEZ

Opinion of the Court

7

“make up [her] mind right now” because she did “not know enough” did 

“not show that she was not fair and impartial”), reh’g granted and abrogated 

on other grounds by State v. Goodyear, 100 Ariz. 244 (1966). For all of these 

reasons, we affirm the trial court’s conclusion that Juror 8 credibly showed 

he could render a fair, impartial verdict.

Expert Testimony

¶16 Jimenez also argues the trial court infringed on his due 

process right to present a complete defense. In particular, he contends the 

court erred in conditioning his presentation of expert testimony as to his 

sexual normalcy on more extensive testing by a state’s rebuttal expert.

Before trial, Jimenez disclosed his intention to introduce character trait 

evidence of his sexual normalcy through expert testimony. His chosen

expert, Dr. Samuels, conducted an evaluation of Jimenez over the course of 

approximately six hours and created a report, which was filed under seal 

with the trial court. The court denied the state’s motion to preclude Dr. 

Samuels’s testimony but granted its request for a continuance to allow it to 

seek its own expert to rebut that testimony. 

¶17 Jimenez attended one six-hour evaluation session with the 

state’s expert, Dr. Jones, but then refused to attend a second session, 

claiming he had not realized additional testing would be required. 

Specifically, he objected to the second session, observing that his own 

expert took only one session to complete the evaluation. The state then 

renewed its motion to preclude Dr. Samuels as an expert witness. 

¶18 After hearing argument on the matter, the trial court directed 

Jimenez that if he chose to raise the defense of sexual normalcy by 

presenting Dr. Samuels’s testimony, the state would be allowed to rebut 

that evidence with the testimony of its own expert witness, Dr. Jones, whose 

evaluation Jimenez would be required to complete. The court reasoned the 

state was not limited to merely reviewing the report of Jimenez’s expert; 

rather, it was entitled to hire a separate expert to “evaluate everything and 

come to an independent conclusion.” 

¶19 At trial, Jimenez did not call his expert to testify regarding his 

sexual normalcy. He instead presented this theory through lay witness 

testimony, including that of his former romantic partner. 

¶20 On appeal, Jimenez argues he “had a due process right to 

present the testimony from Dr. Samuels regarding his sexual normalcy” 

and the trial court erred by conditioning its admission on Jimenez 

“submitting to additional testing and evaluation by the State’s expert.” He 
STATE v. JIMENEZ

Opinion of the Court

8

further argues this ruling forced him to choose between his right to present 

a complete defense and “his constitutional privilege against 

self-incrimination.” We review a trial court’s evidentiary ruling for an 

abuse of discretion. See State v. Snelling, 225 Ariz. 182, ¶ 18 (2010). We 

review constitutional questions de novo. See State v. Armstrong, 218 Ariz. 

451, ¶ 20 (2008).

¶21 Criminal defendants have a constitutional right to present a 

complete defense. U.S. Const. amend. XIV, § 1; see also California v. 

Trombetta, 467 U.S. 479, 485 (1984). They also enjoy a constitutional 

protection against self-incrimination. U.S. Const. amend. V. However, so 

long as evidentiary rules are not arbitrary or disproportionate to the 

purposes they are designed to serve and do not infringe upon an accused’s 

“weighty” rights, state rule makers have “broad latitude” to establish 

criminal evidentiary rules. Holmes v. South Carolina, 547 U.S. 319, 324-25

(2006) (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)). Jimenez 

does not challenge the constitutionality of our state’s evidentiary rules. 

Rather, his argument relates to the trial court’s application of those rules. 

¶22 Under Rule 404(a)(1), Ariz. R. Evid., if a criminal defendant 

presents pertinent character trait evidence to show action in conformity 

with that trait, the state is entitled to present evidence to rebut that claim. 

Arizona courts have applied this general principle in a variety of contexts 

during criminal proceedings. See State v. LaBianca, 254 Ariz. 206, ¶¶ 19-20 

(App. 2022) (defendant who puts sexual normalcy at issue during Rule 

404(c) hearing opens door for state rebuttal expert); Phillips v. Araneta, 208 

Ariz. 280, ¶¶ 6, 8 (2004) (same, regarding mental-health-related mitigation 

evidence in penalty phase of trial); State v. Rushing, 243 Ariz. 212, ¶¶ 50, 

53-55 (2017) (same, because “under Phillips and its progeny, a trial court can 

condition admission of a defendant’s mental health-related mitigation 

evidence on his cooperation with the state’s mental health evaluation”); 

State v. Schackart, 175 Ariz. 494, 499-501 (1993) (applying case law allowing 

rebuttal expert testimony in insanity defense cases to expert testimony in 

Rule 11, Ariz. R. Crim. P., proceedings, where mens rea at issue). 

¶23 Although the parties have identified no case law specifically 

addressing the factual scenario here, we see no reason our state’s more 

general jurisprudence should not apply with equal force. As Schackart and 

LaBianca have reasoned, “the rule that a defendant who elects to testify at 

trial may not invoke the self-incrimination privilege to avoid 

cross-examination” applies to a number of contexts. LaBianca, 254 Ariz. 206, 

¶¶ 8 -12 (quoting Schackart, 175 Ariz. at 500). As in those cases, to “hold 

otherwise would deprive the state of the only adequate means to contest 
STATE v. JIMENEZ

Opinion of the Court

9

the conclusions of a defense psychiatric expert.” Id. (quoting Schackart, 175 

Ariz. at 500). Simply put, if Jimenez “intends to offer the psychologist’s 

testimony and report grounded upon a personal examination, he opens the 

door to an expert examination by the State.” Id. ¶ 20. 

¶24 Jimenez argues that, because sexual normalcy was not an 

ultimate issue for the jury, his situation is distinguishable from those in 

which courts have held that denying the state a full rebuttal expert would 

unfairly prevent it from meaningfully rebutting testimony of a defense 

expert. See, e.g., Schackart, 175 Ariz. at 500-01; Rushing, 243 Ariz. 212, ¶¶ 50, 

53-55. But, as Jimenez himself notes, “[t]he sole defense in this case was 

that [Jimenez] did not engage in the sexual conduct with PB that she 

alleged,” making testimony on his sexual normalcy “both relevant and 

appropriate.” See State v. Rhodes, 219 Ariz. 476, ¶ 12 (App. 2008) (lay witness 

testimony as to defendant’s “sexual normalcy, or appropriateness in 

interacting with children, is a character trait, and one that pertains to 

charges of sexual conduct with a child”). Under these circumstances, 

preventing the state from rebutting that testimony “would deprive the state 

of the only adequate means to contest the conclusions of a defense 

psychiatric expert,” Schackart, 175 Ariz. at 500, on a highly relevant defense 

theory in what is, ultimately, a case built on conflicting narratives. After 

all, our criminal rules “generally establish reciprocal discovery rights, 

which are ‘intended to further the concept that a defendant is not entitled 

to an unfair advantage in the presentation of his defense.’” LaBianca, 254 

Ariz. 206, ¶ 11 (quoting Cabanas v. Pineda, 246 Ariz. 12, ¶ 25 (App. 2018)). 

The state’s “only adequate means” of contesting Jimenez’s expert’s 

testimony would have been “allowing the State’s expert to examine”

Jimenez, as well. Id. ¶ 12. 

¶25 We are unpersuaded by Jimenez’s argument that he “had 

already submitted to testing” by the state and its “request for further testing 

was unreasonable under the circumstances.” He argues in particular that 

standard evaluations for sexual normalcy run for approximately six hours 

and the state’s expert’s request for several hours of evaluation beyond that 

was unreasonable. But, as the trial court reasoned, an expert is entitled to 

conduct an examination that meets his or her professional standards. See 

State ex rel. Adel v. Hannah, 250 Ariz. 426, ¶ 21 (App. 2020) (in accordance 

with psychological ethical codes, state’s “expert must be allowed to conduct 

the scope of examination, including testing, he believes ethically necessary 

to provide adequate support for his opinions”). The court did not abuse its 

discretion in so concluding.
STATE v. JIMENEZ

Opinion of the Court

10

¶26 Finally, a trial court may preclude expert testimony if a 

defendant refuses to cooperate with a court-ordered mental health 

examination. Phillips, 208 Ariz. 280, ¶ 15. Here, over the state’s objection, 

the trial court ruled the testimony of Jimenez’s proffered expert admissible. 

The court imposed conditions on the admission of that testimony only after 

Jimenez refused to attend the second day of court-ordered testing. Under 

these circumstances, we find no abuse of discretion in the court’s ruling as 

to Jimenez’s expert’s testimony. See id. ¶ 16 (refusal to submit to 

court-ordered mental health examination “closely analogous” to preclusion 

sanctions provided by Rule 15.7, Ariz. R. Crim. P.).

Disposition

¶27 For the foregoing reasons, we affirm Jimenez’s conviction and 

sentence.