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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

KARRUS DEMAR WAITS, Appellee.

No. 1 CA-CR 16-0245

Appeal from the Superior Court in Maricopa County

No. CR2015-145527-001

The Honorable Jerry Bernstein, Judge Pro Tempore

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Adena J. Astrowsky

Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix

By Nicholaus Podsiadlik

Counsel for Appellee

FILED 12-29-2017
STATE v. WAITS

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which 

Judge Donn Kessler (retired) joined. Judge Kent E. Cattani dissented.

S W A N N, Judge:

¶1 Moments before the jury was to be sworn, the state sought to 

dismiss its case against Karrus Demar Waits without prejudice. The court 

dismissed the case with prejudice, and the state appeals that order. We 

conclude the court acted within its discretion, and we therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2015, police officers responded to a report of a 

family fight at an apartment complex. The officers were flagged down by 

the victim, who told them that “Karrus” had assaulted him and taken his 

phone. The officers saw Waits walking away from the complex. When they 

approached him, he began to run and he threw a cell phone. Officers 

arrested Waits and recovered the cell phone. Waits was charged with 

robbery, a class 4 felony.

¶3 The last day for trial under Ariz. R. Crim. P. (“Rule”) 8 was 

April 28, 2016. On March 23, 2016, the parties informed the court they were 

ready for trial and the court set a “Firm Trial Date” of March 29, 2016. And 

despite its representation that it was ready to proceed to trial on a date 

certain, the state had not yet located the victim.

¶4 On March 28, after the state had confirmed its readiness for 

trial, the state’s investigator informed the prosecutor that all leads to the 

victim had been exhausted and that he was giving up the search. But on 

March 29, the victim contacted the investigator, and informed the 

prosecutor he would be in town for trial. That morning, the prosecutor 

again informed the court he was ready for trial. The prosecutor told the 

victim he would call him later that day with the trial schedule. The jury 

was selected on March 30. But at the state’s request, it was not sworn that 

day.

¶5 Over the course of March 29 and 30, the prosecutor called the 

victim “at least 30 times,” sent him multiple text messages, had a victim 
STATE v. WAITS

Decision of the Court

3

advocate call him, and sent the investigator and a uniformed police officer 

to the victim’s mother’s house where the victim had indicated he was 

staying. The victim’s mother informed the officers that the victim was not 

at her house and that she had not seen him for months.

¶6 Immediately before jury selection, the state asked that the jury 

be selected but not sworn until the next day, because it could not reach the 

victim. The state represented that it would dismiss the case if the victim 

could not be located. The court agreed to consider the matter later but was 

hesitant to delay swearing the jury. In the midst of jury selection, the court 

revisited the issue. The relevant exchange was as follows:

THE COURT: . . . so I probably will swear in the jury. . . . 

Unless there is a good reason why not.

[PROSECUTOR]: . . . there is a slight familial relationship 

between the victim and the defendant.

THE COURT: There is?

[PROSECUTOR]: As I understood it, the victim’s girlfriend’s 

mother was or is dating the defendant.

THE COURT: All right. I’ll consider it then.

The prosecutor’s speculative statements aside, there was no evidence of a 

familial relationship, an emergency, or undue influence on the victim by 

the defendant. After selecting the jury panel, and without discussing the 

matter further with the parties, the court decided it would wait to swear the 

jury.

¶7 On March 31, despite his earlier representation that the state 

was ready for trial, the prosecutor told the court that the state was unable 

to proceed without the victim, and moved to dismiss the case without 

prejudice under Rule 16.6. Waits did not object to the state’s request for 

dismissal, but asked that it be with prejudice.

¶8 The court found that the prosecutor was not attempting to 

circumvent Rule 8, but ruled that:

The dismissal shall be with prejudice; however, there’s 

something [the prosecutor] said yesterday, that is some sort 

of familia[l] relationship . . . .
STATE v. WAITS

Decision of the Court

4

If it’s found -- if the State presents evidence to show that there 

was some coercion or influence to get [the victim] not to 

appear or finds out there was some emergency why he 

couldn’t be here, the Court will entertain a motion to modify 

its decision.

At the behest of [the State], I did not swear in the jury 

yesterday, so if I had, it would have been with prejudice, and 

that also factors into this.1

¶9 The court granted the motion and dismissed the case with 

prejudice.

DISCUSSION

¶10 The state asks us to strike the words “with prejudice” from

the court’s order dismissing the case. We review orders dismissing criminal 

charges for abuse of discretion. State v. Lemming, 188 Ariz. 459, 460 (App. 

1997). “Abuse of discretion” is a catchall term for errors trial courts make 

in their gamut of decisions, orders, and rulings. See City of Phoenix v. Geyler, 

144 Ariz. 323, 329 (1985). When a court’s decision is based on “an 

assessment of conflicting procedural, factual or equitable considerations 

which vary from case to case and which can be better determined or 

resolved by the [court], [which] has a more immediate grasp of all the facts 

of the case, an opportunity to see the parties, lawyers and witnesses, and 

[which] can better assess the impact of what occurs before [it],” we are loath 

to substitute our judgment. Id. (citation omitted).

¶11 Rule 16.6 provides in relevant part:

a. On Prosecutor’s Motion. The court, on motion of the 

prosecutor showing good cause therefor, may order that a 

prosecution be dismissed at any time upon finding that the 

 

1 On appeal, the state did not provide a transcript of the March 30 

proceedings, during which the victim’s potential testimony was discussed, 

the request not to swear the jury was made, and the prosecutor discussed a 

possible “familial relationship” between the defendant and the victim. See 

State v. Zuck, 134 Ariz. 509, 512–13 (1982) (“It is the duty of counsel who 

raise objections on appeal to see that the record before us contains the 

material to which they take exception.”). In the interests of justice, we sua 

sponte ordered transcripts of the March 30 proceeding. See ARCAP 11(g)(4).
STATE v. WAITS

Decision of the Court

5

purpose of the dismissal is not to avoid the provisions of Rule 

8.

. . . .

c. Record. The court shall state, on the record, its reasons for 

ordering dismissal of any prosecution.

d. Effect of Dismissal. Dismissal of a prosecution shall be 

without prejudice to commencement of another prosecution, 

unless the court order finds that the interests of justice require 

that the dismissal be with prejudice.

¶12 Though the language of the rule refers only to the “interests 

of justice,” this court has held that the most important factor in determining 

“whether a dismissal should be with or without prejudice is whether a 

delay will result in prejudice to the defendant.” State v. Granados, 172 Ariz. 

405, 407 (App. 1991).

¶13 The state argues that because Rule 16.6(d) favors dismissals 

without prejudice, the superior court’s failure to make a record of the 

prejudice Waits would suffer if the case were dismissed without prejudice 

constituted an abuse of discretion. See State v. Gilbert, 172 Ariz. 402, 404 

(App. 1991) (holding that court abused discretion by basing dismissal with 

prejudice solely on generalized finding of desirability of finality). But even 

in the absence of an express finding as to the interests of justice or prejudice 

to the defendant, we affirm dismissals with prejudice when the record 

supports the order. See State v. Marquess, 168 Ariz. 123, 126 (App. 1991).

¶14 On this record, we cannot say the court abused its discretion.

¶15 Before the victim contacted the investigator, the prosecutor 

told the court the state was ready to proceed to trial. When a party asserts 

that it is ready for trial, it assents to the court’s power to put it to its proof 

at the peril of its case. The assertion—made by an officer of the court—has 

meaning, and the court was entitled to rely on it. The parties agreed to a 

trial date (and the agreement was not conditional on the participation of the 

then-unavailable victim), the court’s calendar was dedicated to the case, 

other cases necessarily were required to wait for trial, and a jury was 

chosen. In these circumstances, the breadth of the court’s discretion 

regarding the management of the case and its own calendar was at its apex.

¶16 We observe that nothing unexpected happened on the eve of 

trial to impair the state’s case—the victim had not been located, much less 
STATE v. WAITS

Decision of the Court

6

subpoenaed, at the time the state represented it was ready for trial. The 

fortuitous communication from the victim raised the possibility that the 

state’s case might be easier to try than planned, but the absence of the victim 

merely left the state in the same position in which it had always been. The 

superior court simply declined to use its discretion in a way that would 

have allowed the state to use a dismissal to secure an advantage. We 

perceive no abuse.

¶17 Had the victim never come forward, the trial would have 

proceeded. Had the court declined the prosecutor’s request not to swear 

the jury, jeopardy would have attached and the dismissal would have been

with prejudice.

2 See State v. Riggins, 111 Ariz. 281, 283 (1974). But here, 

because the state suddenly perceived the prospect of a new advantage at 

trial, it contends that the court was without discretion to do anything but 

discharge a sitting jury and facilitate its pursuit of that advantage. We 

disagree.

¶18 Waits was prepared for trial. The state moved to dismiss,

contending contrary to its earlier avowal that it was not prepared to 

prosecute the case even though the judge, court staff, defendant, 

defendant’s attorney, witnesses, and jury were present at the state’s own 

request and prepared to proceed to trial.

¶19 Witnesses regularly change their story on the stand or 

unexpectedly fail to appear, weakening one party’s case to the benefit of the 

other. The state had the same evidence at its disposal when it asked for a 

dismissal as it did when it asked for trial. The victim’s fleeting reemergence 

had no effect—apart from forcing the state to confront the existing 

weaknesses of its case. Granting a motion to dismiss without prejudice 

would have prejudiced Waits, who would lose his chance to argue against 

the state’s weaker case, which it had represented to the court it was ready 

to prosecute. If we were to hold that the court lacked discretion in these 

circumstances, we would effectively hold that the court has no discretion at 

 

2 The state never sought a continuance at any point to try to locate the 

victim and gather evidence of the “familial relationship” with Waits that it 

thought might have caused his absence. See Rule 8.5. If it had done so, we 

have little doubt that the continuance would have been granted. But if we 

were to reverse on this record, we would effectively hold that a motion for 

continuance is the equivalent of a motion for dismissal without prejudice 

on the day of trial. These two procedures are vastly different: A 

continuance allows the court to empower the parties to prepare their cases 

in due course, while a dismissal disrupts the function of the judicial system.
STATE v. WAITS

Decision of the Court

7

all to dismiss with prejudice when the state gets cold feet on the day of trial. 

We find no support for such a proposition in the language of Rule 16.6, and 

we conclude the court reasonably held that justice would not be served by 

permitting the state to seek new evidence after attesting it was ready for 

trial.

CONCLUSION

¶20 For the foregoing reasons, we affirm the superior court’s

order dismissing the case with prejudice.

C A T T A N I, Judge, dissenting

¶21 I respectfully dissent. Our case law has made clear that the 

determination whether to dismiss a charge with or without prejudice turns 

on whether a defendant will be prejudiced by the dismissal, and I disagree 

that the loss of a chance to face a weaker case is the type of prejudice that 

warrants a dismissal with prejudice. Accordingly, and because the superior 

court did not make a particularized finding of factors establishing actual

prejudice, I would reverse the decision of the superior court.

¶22 Rule 16.6(d) requires that dismissal of criminal charges be 

without prejudice “unless the court order finds that the interests of justice 

require that the dismissal be with prejudice.” Thus, the rule, by its terms, 

favors dismissal without prejudice. State v. Gilbert, 172 Ariz. 402, 404 (App. 

1991). And the “most important” factor in determining whether the 

interests of justice require dismissal with prejudice “is whether a delay will 

result in prejudice to the defendant.” State v. Granados, 172 Ariz. 405, 407 

(App. 1991). Such a showing of prejudice may include that “the state 

delayed for the purpose of gaining a tactical advantage over [the defendant]

or to harass him, and [] that he actually suffered prejudice as a result of the 

state’s conduct.” State v. Garcia, 170 Ariz. 245, 248 (App. 1991); see also 

Gilbert, 172 Ariz. at 405 (reversing a dismissal with prejudice because the 

defendant failed to articulate how a last-minute dismissal “actually hurt her 

ability to defend against the charges”).

¶23 Further, when dismissing criminal charges with prejudice, a 

court must make “a reasoned finding that the interests of justice require the 

dismissal to be with prejudice” and must “actually weigh the factors that 

bear on the issue.” Garcia, 170 Ariz. at 248. The court must make “a 

particularized finding that to do otherwise would result in some articulable 

harm to the defendant.” State v. Wills, 177 Ariz. 592, 594 (App. 1993).
STATE v. WAITS

Cattani, J., dissenting

8

¶24 Here, in dismissing the charges with prejudice, the superior 

court did not cite any articulable harm that impaired Waits’s ability to 

defend against the charges or that otherwise prejudiced Waits, the key 

factor in determining whether to dismiss with prejudice. See Granados, 172 

Ariz. at 407; see also Garcia, 170 Ariz. at 248 (court must make a “reasoned 

finding” regarding the interests of justice); cf. State v. Vasko, 193 Ariz. 142, 

147, ¶ 22 (App. 1998) (noting that, in the related context of a speedy trial 

violation, assessing prejudice turns on “whether defendant has shown that 

his defense has been harmed by the delay; it is not sufficient for a defendant 

to contend that the state may not have made its case had the trial proceeded 

without the continuance”).

¶25 The superior court’s only stated basis for its ruling was the 

State’s prior request that the jury not be sworn immediately following jury 

selection. But that fact does not by itself point to any type of prejudice to 

Waits, and is in fact a counterintuitive basis for a dismissal with prejudice. 

By agreeing not to swear in the jury, the court implicitly agreed to avoid the 

double jeopardy implications of impaneling a jury. See State v. Soloman, 125 

Ariz. 18, 21 (1980) (noting that the Double Jeopardy Clause of the United 

States Constitution protects a criminal defendant against repeated 

prosecutions for the same offense and attaches as soon as the jury is 

impaneled). And having agreed not to swear in the jury, it was 

unreasonable for the court to then use that as the basis for dismissing the 

case with prejudice and imposing a double jeopardy bar to a subsequent 

prosecution. In my view, if the court believed that the State’s request to 

delay swearing in the jury established a basis for dismissing the case with 

prejudice, the court should have advised the parties of that belief before 

agreeing not to swear in the jury. The State then could have decided 

whether to proceed without testimony from the victim or to seek special 

action relief to avoid the double jeopardy implications of swearing in the 

jury.

¶26 The court also noted its belief that the victim may not be 

interested in testifying. But the victim’s alleged recalcitrance does not 

support a finding of prejudice, and instead simply highlights a factor the 

State must consider in deciding whether to pursue the case in the future. 

Thus, none of the court’s statements can be construed as a reasoned finding 

regarding prejudice to Waits justifying dismissing the case with prejudice.

¶27 Even in the absence of a particularized finding, we will affirm 

if the record otherwise clearly supports dismissal with prejudice. Wills, 177 

Ariz. at 594. But here, looking beyond the superior court’s reasoning, the 

record does not show cognizable prejudice to Waits. Significantly, when 
STATE v. WAITS

Cattani, J., dissenting

9

given a chance to explain why the proposed dismissal should be with 

prejudice, Waits’s counsel argued only that his client wanted to “put this 

behind him” and “prove his innocence.” But “annoyance and [] 

inconvenience to the defendant” are not the type of harm justifying 

dismissal with prejudice. See Gilbert, 172 Ariz. at 405; see also Granados, 172 

Ariz. at 407 (“Such generalizations will not support a dismissal with 

prejudice.”). And nothing else in the record supports a finding of prejudice.

¶28 The majority sidesteps our case law requiring a showing of 

prejudice and instead emphasizes that the State had represented that it was 

ready for trial a week before jury selection. But there was no suggestion by 

either the court or defense counsel that the announcement of being ready 

for trial was the triggering event justifying a dismissal with prejudice; 

instead the court focused on the prosecutor’s request not to swear in the 

jury, and defense counsel focused on inconvenience to his client. And in 

any event, the State’s prior representation as to its readiness for trial (even 

if false) does not demonstrate any specific prejudice to Waits. Thus, the 

announcement that the State was ready to proceed does not establish a basis 

for dismissing the case with prejudice.

¶29 Furthermore, contrary to the majority’s assertion, there is no 

suggestion that the superior court believed the State was dismissing the 

case so it could look for new evidence, or that such a factor otherwise 

demonstrated that Waits’s ability to defend himself had been impaired. 

The day before the dismissal with prejudice, the prosecutor noted that the 

State had been unable to reach the victim after having previously been in 

contact with him, and the prosecutor simply requested that the court defer 

swearing in the jury. The prosecutor also indicated that there might be a 

“familial relationship” between Waits and the victim, but the court did not 

suggest in any way that its decision to dismiss the case with prejudice was 

based on that factor, and the court instead simply noted that any improper 

coercion or influence by Waits (something not proven or disproven at the 

time of the court’s ruling) would support a dismissal without prejudice.

Given these circumstances, the superior court’s ruling is not supported by 

the record.

¶30 Finally, reversing the superior court’s ruling would not 

necessarily result in the case going forward. If the State chooses to refile the 

charges, Waits can proffer evidence demonstrating any actual prejudice 

suffered as a result of the delay in prosecution. At that point, the superior 

court can properly assess whether dismissing the case prejudiced Waits’s

ability to defend himself, and can determine whether to dismiss the charges 

with prejudice or allow the case to go forward.
STATE v. WAITS

Cattani, J., dissenting

10

CONCLUSION

¶31 The record does not support dismissing the case with 

prejudice, and the superior court’s only stated reasoning for doing so is in 

fact counterintuitive and unreasonable. Accordingly, and for the foregoing 

reasons, I would reverse the order dismissing the charges against Waits 

with prejudice and remand with instructions that the charges be dismissed 

without prejudice.