NOTICE: NOT FOR PUBLICATION. 

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT 

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, Appellee, 

v.

STEVEN WILLIAM DYER, Appellant. 

No. 1 CA-CR 12-0264 

 

Appeal from the Superior Court in Maricopa County 

No. CR2001-090180 

The Honorable Barbara M. Jarrett, Judge (Retired) 

The Honorable Patricia Ann Starr, Judge 

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Eliza C. Ybarra 

Counsel for Appellee 

Coppersmith Schermer & Brockelman PLC, Phoenix 

By James J. Belanger, Scott M. Bennett 

Counsel for Appellant
STATE v. DYER 

Decision of the Court 

2 

MEMORANDUM DECISION 

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in 

which Judge Kenton D. Jones and Chief Judge Diane M. Johnsen joined. 

O R O Z C O, Judge: 

¶1 Steven William Dyer (Dyer) appeals his convictions and 

sentences for one count of public sexual indecency to a minor and twelve 

counts of sexual conduct with a minor. Dyer argues the trial court erred 

when it: refused to order disclosure of the victim's medical and school 

records; commented on Dyer’s absence during jury selection; denied his 

right to confrontation at a pretrial hearing; and imposed what Dyer claims 

are excessive sentences. Dyer further argues the prosecutor engaged in 

misconduct during closing argument. For the reasons that follow, we 

affirm Dyer's convictions and sentences. 

I. Background 

¶2 Dyer was a neighbor of the victim and his family. The 

offenses occurred between January 1999 and January 2001 when the 

victim was eleven to thirteen years old. The jury found Dyer guilty as 

charged in 2002 after a trial in absentia. After authorities apprehended 

Dyer approximately ten years later, the trial court sentenced him to a 

presumptive, aggregate term of 240 years' imprisonment. Dyer timely 

appealed. We have jurisdiction pursuant to Arizona Constitution, Article 

6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-

120.21(A)(2003), 13-4031 (2010) and -4033 (2010). 

II. Denial of the Motion to Compel Disclosure of the Victim's Medical 

and School Records 

¶3 Dyer contends the trial court erred when it refused to 

compel the disclosure of the victim's medical, mental health, and school 

records. Dyer argues the records were relevant to impeach the victim and 

support his defense that the victim fabricated or fantasized the events 

between him and Dyer. We review the decision of whether to compel 

disclosure of records, including a victim's medical records, for abuse of 

discretion. State v. Connor, 215 Ariz. 553, 557, ¶ 6, 161 P.3d 596, 600 (App. 
STATE v. DYER 

Decision of the Court 

3 

2007). To the extent the trial court's decision implicates constitutional 

issues, our review is de novo. Id. 

A. Background 

¶4 Among other information, Dyer sought the following from 

the victim: 

Any and all medical and mental health records, notes 

and generated data including physical, psychological, 

psychiatric, counseling, hospitalization (in-patient 

and out-patient), including treatments, prescribed 

medications and diagnosis[; and] 

Any and all school and education records, notes and 

generated data including behavioral, disciplinary, 

achievement testing, academic, attendance, 

counseling and mental health records of educational 

institutions attended by [the victim]. 

The only limitation on Dyer’s requests was that he sought records for the 

previous five years. 

¶5 The trial court denied this portion of Dyer's motion to 

compel, finding Dyer failed to make a threshold showing of materiality 

for either the victim's medical or school records. Regarding the medical 

records, the court found Dyer offered no evidence the victim suffered 

from any medical or mental condition that might impact his ability to 

observe, recall or relate events or that would otherwise affect his ability to 

differentiate between fact and fantasy. The court further found that even 

if Dyer's allegations regarding the victim's medical or mental condition 

were true, Dyer offered no evidence the victim suffered from a condition 

or illness that warranted court-ordered disclosure of his confidential 

medical and mental health records. The court noted it was unaware of 

any authority for the proposition that the conditions Dyer identified in his 

motion can affect a person's ability to perceive or relate events, or that a 

person with those conditions or disorders is any less truthful than a 

person without those conditions or disorders. The court further noted 

Dyer and the expert he retained to support his motion were speculating 

what information the victim's medical records might contain and how that 

information might be helpful. The court held that speculation did not 

warrant disclosure. Moreover, the court noted that speculation did not 

warrant an in camera inspection. 
STATE v. DYER 

Decision of the Court 

4 

¶6 The court further held Dyer already had "ample material 

and information" to prepare his cross-examination of the victim. The 

court noted Dyer could use that information to obtain additional 

information to assist his preparation of the cross-examination of the victim 

and to otherwise support his defense. This included talking to numerous 

witnesses to obtain information and opinions regarding the victim's 

credibility. Finally, the court held its analysis regarding disclosure of the 

medical records applied equally to the victim's school records. 

B. Discussion 

¶7 We find no error. First, the unlimited nature of the request 

provided a sufficient basis for the trial court to refuse to conduct an in 

camera inspection and deny the motion. See Connor, 215 Ariz. at 561-62, 

¶¶24-25, 161 P.3d at 604-05. Second, we recognize the right to refuse 

production of a victim's medical records is not absolute. See State v. 

Sarullo, 219 Ariz. 431, 437, ¶ 20, 199 P.3d 686, 692 (App. 2008). 

Circumstances exist in which a trial court may order a victim to produce 

medical records for an in camera inspection and ultimately provide those 

records to a defendant. Id. Before the defendant is entitled to an in camera

inspection, however, the defendant must first show a reasonable 

probability the records sought contain information the defendant is 

entitled to as a matter of due process. Id. Where a defendant fails to 

provide the trial court with any reason to believe a victim's medical 

records contain exculpatory material, the trial court does not err when it 

fails to order the production of those records. See id. at ¶ 21. 

¶8 As the trial court correctly noted, the "ample materials and 

information" already in Dyer's possession afforded him the opportunity to 

fully and effectively cross-examine the victim. Regarding direct evidence 

of the victim's credibility, the jury heard testimony that the victim lied to 

his parents and other members of his family at various times and lied 

when he told others he had a sexual encounter with a friend from school. 

The jury heard testimony the victim lied to the first forensic interviewer 

who interviewed him, he lied to investigators about the last time he saw 

Dyer and regarding what occurred the first time he and witness "GS" went 

to Dyer's home. The jury also heard testimony the victim never identified 

a distinctive tattoo and numerous moles on Dyer’s back despite allegedly 

seeing him naked numerous times. Furthermore, the jury heard 

testimony from former neighbors of the victim that the victim was not 

truthful. 
STATE v. DYER 

Decision of the Court 

5 

¶9 Regarding evidence of the victim's medical history, the jury 

also heard testimony the victim had been treated and counseled for 

attention deficit disorder, anger, and depression. The jury heard 

testimony the victim could become violent. Further, healthcare providers 

prescribed Zoloft, lithium carbonate, Risperdal, Cogentin, Ritalin and 

Wellbutrin for the victim at various times.1 The jury learned the victim 

had run away from home more than once. The jury also heard testimony 

that major illnesses associated with people who make false allegations 

include bipolar/manic depressive disorder, which is frequently treated 

with lithium, one of the victim's medications. The jury further heard 

testimony that anger at an alleged perpetrator can be a factor in false 

allegations, at least by adolescent females. The victim told investigators 

he was upset with Dyer because Dyer broke off contact with him after the 

victim's parents became concerned about the relationship between the 

victim and Dyer. 

¶10 Regarding the victim's prior sexual experience, the jury 

heard testimony the victim began viewing at "a wide range" of 

pornography when he was ten years old and viewed pornography on his 

family's home computer. The victim acknowledged his mother claimed 

he looked at pornography on a school computer. The jury also heard 

testimony the victim discussed his sexual fantasies with others, including 

Dyer, and sometimes did so as if those fantasies were real. 

¶11 Regarding the victim's school history, the jury heard 

testimony the victim had been to multiple schools and changed schools 

frequently.2 Regarding the victim's alcohol and drug use, the jury heard 

 

1 Dyer offered no evidence regarding how any medical or mental 

condition for which the victim underwent treatment could affect a 

person's ability to perceive, recall and relate events, whether they could 

cause a person to fabricate or fantasize events that never occurred, nor 

how they would otherwise affect a person's credibility. Further, Dyer 

offered little evidence regarding the actual purpose of the medications 

prescribed to the victim or how those medications might affect a person's 

ability to perceive, recall and relate events, whether they could cause a 

person to fabricate or fantasize events that never occurred, nor how they 

would have otherwise affected a person's credibility. 

2 Dyer did not explore in any significant way why the victim 

changed schools or why he did so frequently. 

 
STATE v. DYER 

Decision of the Court 

6 

testimony that despite the victim's age, he drank alcohol and binged when 

he did so. The jury also heard evidence the victim used marijuana and 

that Dyer refused to use marijuana with the victim. 

¶12 The evidence cited above was more than sufficient to permit 

Dyer the opportunity to present information bearing on the victim's 

credibility and develop and support his defense that the victim fabricated 

the events at issue or that they were merely a fantasy. The trial court's 

refusal to compel disclosure of the victim's medical and school records did 

not prevent Dyer from developing these themes at trial and exploring how 

the victim's medical and/or mental condition, medications, sexual 

knowledge and experience, drug or alcohol use, troubles at school, or any 

other factor Dyer identified in his motion to compel could have affected 

the victim's credibility or led him to fabricate or fantasize events that 

never occurred.3 

III. The Trial Court's Comments During Jury Selection 

¶13 As noted above, the court tried Dyer in absentia. Dyer argues 

the trial court erred when it made comments about Dyer's absence during 

voir dire. Because Dyer did not object to the court's comments, we review 

for fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 

626, 627 (1991) (recognizing the failure to raise an issue at trial waives all 

but fundamental error.). "To establish fundamental error, [a defendant] 

must show that the error complained of goes to the foundation of his case, 

takes away a right that is essential to his defense, and is of such 

magnitude that he could not have received a fair trial." State v. Henderson, 

210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even when a defendant 

establishes fundamental error, however, the defendant must still show 

prejudice. Id. at ¶ 26. 

 

3 Dyer argues our decision in State v. Superior Court (Roper), 232 Ariz. 

232, 836 P.2d 445 (App. 1992) is directly on point and required disclosure 

of the documents. The defendant in Roper, however, showed there was 

more than a reasonable probability, if not a certainty, that the records she 

sought contained information material to her ability to cross-examine the 

victim and to support her defense. Id. at 234-35, 237, 836 P.2d at 447-48, 

450. Dyer made no such showing here. 
STATE v. DYER 

Decision of the Court 

7 

A. Background 

¶14 During voir dire, a prospective juror questioned Dyer's 

absence and expressed his belief it would be in Dyer's best interest to be 

present for trial. The prospective juror then asked if the panel would 

receive more information regarding why Dyer was absent. The court 

responded: 

[N]o, you're not going to be hearing anything about that. 

I'm just telling you that he is aware that the matter is 

proceeding to trial. He is aware that he has a right to be 

here, and he is not going to be here. His interests are being 

represented at trial by his attorneys. And other than saying 

that, and that the jurors are not going to be allowed to 

consider that factor in determining whether the State has 

proven his guilt. I'm going to leave it at that. 

When the prospective juror commented that it seemed out of character for 

an innocent person to not come to court, the court responded: 

[S]ometimes there are things that we just can't explain to you 

or tell you about, but suffice it to say that if you are a 

member of the jury panel, having heard the evidence, you'll 

be deliberating on the evidence that's before you and you 

won't get to consider that factor that the defendant was not 

present during the trial. 

When another prospective juror in turn asked if Dyer was incarcerated or 

not, the trial court responded that Dyer was not incarcerated. While the 

trial court made other comments during voir dire regarding Dyer's 

absence, on appeal, Dyer only takes issue with the comments identified 

above. 

B. Discussion 

¶15 We find no error, fundamental or otherwise. The trial 

court's statements were appropriate responses to the questions and 

concerns expressed by the potential jurors. The trial court did not portray 

Dyer in a negative light. It did not comment on matters not in evidence, 

express any opinions, display any bias or partiality, or interfere with the 

jury's independent evaluation of the evidence. The trial court did not 

imply or suggest, as claimed by Dyer, that he was "thumbing his nose at 

the legal system" or that he was "some kind of roving, dangerous 

pedophile, who was out in the world molesting other children." 
STATE v. DYER 

Decision of the Court 

8 

¶16 The trial court also took steps that were more than adequate 

to ensure the jurors ultimately selected were not affected by Dyer's 

absence and that his absence played no role in their deliberations. At the 

beginning of voir dire, the court informed the prospective jurors that Dyer 

would not be present for trial and told them, "None of you are to draw 

any inferences one way or the other from his absence during the trial." 

When a prospective juror asked the court if a defendant has a right to be 

present for trial under Arizona law, the court responded: 

[T]hat is a defendant's choice. A defendant is made aware 

when the matter is going to proceed to trial. That's his or her 

choice whether to be there or not. You know, the law does 

not require that the defendant be here, and as I said, you're 

not allowed to draw any inference one way or the other from 

that factor. 

When voir dire continued the next day with additional prospective jurors, 

the court again informed the panel: 

[Dyer] will not be present during the course of the trial. He 

does have a right to be here. He is not going to be here. You 

are not to draw any inference one way or the other from his 

absence during the course of the trial. And I'll ask you at a 

later time if anyone would have any problem with that. 

When a prospective juror expressed concerns about Dyer's absence, the 

court told the panel that regardless of whether Dyer was present for trial, 

he did not have to prove his innocence, had no obligation to call any 

witnesses or present any evidence and the State had the burden to prove 

its case beyond a reasonable doubt. 

¶17 We also note the court struck every prospective juror who 

expressed any concern or doubt regarding Dyer's absence. Finally, in the 

final instructions, the court instructed the jury it must not consider or 

speculate about Dyer's absence; his absence was not evidence; and it must 

not consider his absence in its determination of whether the State proved 

its case beyond a reasonable doubt. We presume jurors follow 

instructions. State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 

1996). 

IV. Prosecutorial Misconduct 

¶18 Dyer argues the prosecutor engaged in misconduct during 

closing and rebuttal arguments. Dyer argues the prosecutor intentionally 
STATE v. DYER 

Decision of the Court 

9 

misrepresented the testimony of GS regarding the second time GS and the 

victim went to Dyer's house. He further argues the prosecutor shifted the 

burden of proof. 

¶19 Dyer did not object to any of the alleged misconduct. A 

failure to object to alleged prosecutorial misconduct at the time of trial 

waives the issue absent fundamental error. State v. Wood, 180 Ariz. 53, 66, 

881 P.2d 1158, 1171 (1994). In our determination of whether a prosecutor’s 

conduct amounts to fundamental error, we focus our inquiry on the 

probability the conduct influenced the jury and whether the conduct 

denied the defendant a fair trial. Id. In doing so, we bear in mind that 

"[d]uring closing arguments, counsel may summarize the evidence, make 

submittals to the jury, urge the jury to draw reasonable inferences from 

the evidence, and suggest ultimate conclusions." State v. Bible, 175 Ariz. 

549, 602, 858 P.2d 1152, 1205 (1993). Further, prosecutors have wide 

latitude in closing argument. "Excessive and emotional language is the 

bread and butter weapon of counsel’s forensic arsenal, limited by the 

principle that attorneys are not permitted to introduce or comment upon 

evidence which has not previously been offered and placed before the 

jury." State v. Jones, 197 Ariz. 290, 305, ¶37, 4 P.3d 345, 360 (2000). 

A. The Testimony of GS 

¶20 The prosecutor discussed the testimony of GS during her 

closing argument. When the prosecutor addressed GS's testimony 

regarding the second time GS and the victim went to Dyer's home, the 

prosecutor stated, "[GS] remembers performing oral sex on Mr. Dyer or 

having Mr. Dyer perform it on him, but he also remembers, he thinks, seeing 

Mr. Dyer perform oral sex on [the victim], which is what [the victim] said." 

Dyer argues the italicized portion of the statement misrepresented the 

testimony of GS. 

¶21 The prosecutor's statement regarding what GS remembered 

was incorrect. GS testified he knew there was sexual contact between 

Dyer and the victim the second time GS and the victim went to Dyer's 

house. He testified he could not remember, however, if Dyer and the 

victim engaged in oral sex at that time. When asked if he had trouble 

remembering the types of sex that took place, GS answered he knew 

"there was oral sex and hand-to-genital touching," but he did not 

remember clearly if the types of sexual contact he, the victim and Dyer 

engaged in at Dyer's home occurred during the first or second visit to 

Dyer's home. 
STATE v. DYER 

Decision of the Court 

10 

¶22 Even though the prosecutor's argument was incorrect, we 

find no error, fundamental or otherwise. Prosecutorial misconduct is not 

merely "legal error, negligence, mistake or insignificant impropriety, but, 

taken as a whole, amounts to intentional conduct which the prosecutor 

knows to be improper and prejudicial." Pool v. Superior Court, 139 Ariz. 98, 

108-09, 677 P.2d 261, 271-72 (1984). Further, "[p]rosecutorial misconduct 

does not require reversal ‘unless the defendant has been denied a fair trial 

as a result of the actions of counsel.’" Bible, 175 Ariz. at 600, 858 P.2d at 

1203 (quoting State v. Dumain, 162 Ariz. 392, 400, 783 P.2d 1184, 1192 

(1989)). GS remembered that oral sex took place but he could not 

remember when. We cannot say it was improper or misleading for the 

prosecutor to argue GS's testimony supported the victim's testimony that 

Dyer performed oral sex on the victim the second time GS and the victim 

went to Dyer's home. To argue that GS testified he thinks he remembers

seeing that conduct occur during the second visit was incorrect. However, 

there is nothing in the record to suggest this was anything but an error or 

mistake. The argument did not deny Dyer a fair trial and nothing 

suggests the prosecutor misled the jury. Further, the trial court instructed 

the jury that what the attorneys say in closing is not evidence and Dyer's 

counsel reminded the jury of this in his closing argument. Again, we 

presume jurors follow their instructions, and there is nothing in the record 

to suggest the jurors in this case did not do that. 

B. Shifting the Burden of Proof 

¶23 Dyer argues the prosecutor shifted the burden of proof to 

Dyer during her rebuttal argument. In her rebuttal argument, the 

prosecutor went through the confrontation call between the victim and 

Dyer and the many incriminating statements Dyer made during that call. 

The prosecutor then addressed the problems with the State's case that 

Dyer focused on in his own closing argument. The prosecutor addressed 

the victim's "problems," how he viewed pornography, his various 

medications, his problems with anger, his anger at his family, his anger at 

Dyer and his alleged sexual disorders. The prosecutor also addressed 

GS's inability to remember a great deal of information and GS's immunity 

agreement with the State. The prosecutor then addressed problems with 

the victim's version of events, such as how he never identified the 

prominent tattoo on Dyer's back and how one could not see a television 

from a location in Dyer's bedroom as the victim had claimed. Finally, the 

prosecutor addressed Dyer's argument regarding how the police could 

have done more during their investigation. The prosecutor then argued, 

"There is nothing here that indicates that the defendant is innocent of 

these charges. I mean, there's nothing in any of this evidence that would 
STATE v. DYER 

Decision of the Court 

11 

show that he is innocent. There's nothing that shows – you know, I mean, 

as – it's innocuous either way." Dyer claims these statements shifted the 

burden of proof. 

¶24 We find no error, fundamental or otherwise. The 

prosecutor's statement did not shift the burden of proof. It did not draw 

attention to Dyer's failure to testify, did not suggest Dyer failed to 

introduce evidence, did not suggest he had a duty to introduce evidence 

and did not even hint that Dyer bore any burden of proof. The 

statements at issue summarized the evidence the prosecutor had just 

addressed and did so in an acceptable fashion. Further, the final 

instructions instructed the jury repeatedly that the State had the burden to 

prove every element of every offense beyond a reasonable doubt with its 

own evidence. The instructions further provided Dyer was not required 

to produce evidence of any kind, he was not required to prove he was 

innocent, and that his failure to produce evidence was not evidence of 

guilt. Again, we presume the jury followed its instructions. 

V. The Right to Confront Witness GS at a Pretrial Hearing 

¶25 Prior to trial, the State sought to introduce certain testimony 

of GS pursuant to Arizona Rule of Evidence 404(c). The State argued the 

evidence was admissible pursuant to Rule 404(c) to show Dyer had a 

character trait that gave rise to an aberrant sexual propensity to commit 

the offenses charged. In its consideration of the motion, and over Dyer's 

objection, the trial court watched a videotape of a police interview with 

GS rather than require GS to testify at the pretrial hearing on the motion. 

The court ultimately held the evidence was admissible pursuant to Rule 

404(c). Dyer argues the trial court's consideration of GS's videotaped 

interview and its failure to require GS to appear live at the pretrial hearing 

denied him his right to confrontation. We review evidentiary rulings that 

implicate the Confrontation Clause de novo. State v. Ellison, 213 Ariz. 116, 

129, ¶ 42, 140 P.3d 899, 912 (2006). 

¶26 We find no error. When a trial court decides preliminary 

questions involving the admissibility of evidence, the evidentiary rules do 

not apply. Ariz. R. Evid. 104(a); State v. Edwards, 136 Ariz. 177, 183, 665 

P.2d 59, 65 (1983). Further, the right to confrontation is a trial right. Barber 

v. Page, 390 U.S. 719, 725 (1968); Pennsylvania v. Ritchie, 480 U.S. 39, 52 

(1987) (plurality opinion); Connor, 215 Ariz. at 562, ¶ 28, 161 P.3d at 605. 

"[T]he literal right to 'confront' the witness at the time of trial . . . forms the 

core of the values furthered by the Confrontation Clause." Delaware v. 

Fensterer, 474 U.S. 15, 18 (1985) (quoting California v. Green, 399 U.S. 149, 
STATE v. DYER 

Decision of the Court 

12 

157 (1970)). While Dyer argues the 404(c) hearing was such a critical stage 

of the proceeding that the ability to confront GS at trial was not sufficient 

to protect his right to confrontation, "the question whether a particular 

proceeding is critical to the outcome of a trial is not the proper inquiry in 

determining whether the Confrontation Clause has been violated. The 

appropriate question is whether there has been any interference with the 

defendant's opportunity for effective cross-examination." Kentucky v. 

Stincer, 482 U.S. 730, 744, n. 17 (1987). 

¶27 This is not to say that we cannot foresee a situation in which 

a trial court must allow a defendant to confront a witness at a pretrial 

hearing in order to adequately afford the defendant the opportunity to 

conduct a full and effective cross-examination of that witness at trial. That 

situation, however, is not present here. Dyer interviewed GS before the 

pretrial hearing. The trial court placed no limitations on Dyer's crossexamination of GS at trial. Therefore, the trial court's failure to require GS 

to testify in person at the pretrial hearing did not interfere with Dyer's 

opportunity to conduct a full and effective cross-examination of GS at 

trial. The trial court's decision did not interfere with Dyer's rights under 

the Confrontation Clause. 

¶28 Within his argument on this issue, Dyer also argues the trial 

court's limiting instruction regarding other acts evidence was not 

sufficient. The trial court instructed the jury that it must not consider 

other acts evidence to prove Dyer's character or to prove he acted in 

conformity with that character, but that it could consider the other acts 

evidence as it related to Dyer's motive, opportunity, intent, preparation, 

plan, knowledge, identity or absence of mistake or accident. The court 

further instructed the jury it could consider evidence of other similar 

sexual offenses by Dyer only to the extent the evidence showed a 

propensity to commit the charged offenses, and even then it could not 

consider that evidence for any purpose other than Dyer's state of mind. 

¶29 Relying on the comment to Rule 404(c), Dyer argues this 

limiting instruction was not sufficient. Dyer argues the comment to Rule 

404(c) required the court to further instruct the jury that the admission of 

the other acts evidence did not lessen the State's burden to prove the 

offenses beyond a reasonable doubt, and that the jury could not convict 

Dyer simply because it found Dyer committed the other acts or had a 

character trait that predisposed him to the commit the charged offenses. 

See Ariz. R. Evid. 404, Comment to 1997 Amendment. 
STATE v. DYER 

Decision of the Court 

13 

¶30 We find no error. First, Dyer did not object to the court's 

limiting instruction. "The failure to object to an instruction either before 

or at the time it is given waives any error, absent fundamental error." 

State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986). More 

importantly, when a defendant fails to request an instruction limiting the 

jury's consideration of other act evidence, the trial court's failure to give a 

limiting instruction sua sponte is not fundamental error. State v. Taylor, 127 

Ariz. 527, 530-31, 622 P.2d 474, 477-78 (1980). If Dyer wanted the court's 

limiting instruction to include further limitations or provide additional 

instructions, Dyer had to either object to their omission or submit his own 

requested instruction. 

¶31 Second, the purpose of jury instructions is to inform the jury 

of the applicable law. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 

(App. 1996). A set of instructions need not be faultless. The instructions, 

however, must give the jury an understanding of the issues and must not 

mislead the jury. See id. "Where the law is adequately covered by the 

instructions as a whole, no reversible error has occurred." State v. Doerr, 

193 Ariz. 56, 65, ¶ 35, 969 P.2d 1168, 1177 (1998). Here, the instructions as 

a whole adequately covered the applicable law. As noted above, the court 

instructed the jury more than once that the State bore the burden to prove 

every element of every offense beyond a reasonable doubt. Further, the 

court's limiting instruction informed the jury it could not consider the 

other act evidence for any purpose other than to prove motive, 

opportunity, intent, preparation, plan, knowledge, identity or absence of 

mistake or accident. In the more specific context of Rule 404(c), the court's 

limiting instruction further informed the jury it could consider evidence of 

Dyer's other sexual acts only to the extent it showed a propensity to 

commit the charged offenses, and even then only as evidence of Dyer's 

state of mind. This was sufficient to inform the jury of the limitations 

placed on its consideration of the other act evidence. The failure of the 

trial court to provide a more detailed limiting instruction in the manner 

suggested by the comment to Rule 404 did not constitute error. 

VI. The Twenty-Year Sentences for Sexual Conduct with a Minor 

¶32 The twelve counts of sexual conduct with a minor 

constituted, as established by statute, dangerous crimes against children. 

See A.R.S. § 13-604.01(L)(1)(e) (2000).4 The applicable version of A.R.S. § 

 

4 While the offenses occurred between 1999 and 2001, the substance 

of the applicable sentencing statutes did not change during that period. 
STATE v. DYER 

Decision of the Court 

14 

13-604.01(C) provides that a trial court shall sentence a defendant 

convicted of sexual conduct with a minor who is twelve, thirteen or 

fourteen years of age to a presumptive term of twenty years' 

imprisonment. The court may mitigate or aggravate the sentence by up 

to seven years. A.R.S. § 13-604.01(F) (2000). A.R.S. § 13-604.01(K) (2000) 

provides that a sentence for the commission of a dangerous crime against 

children must be served consecutively to any other sentence. 

¶33 The trial court sentenced Dyer to the presumptive term of 

twenty years' imprisonment for each count of sexual conduct with a 

minor. The mandatory consecutive terms resulted in an aggregate term of 

240 years' imprisonment. Dyer argues his presumptive twenty-year 

sentences for sexual conduct with a minor, both individually and in the 

aggregate, constitute cruel and unusual punishment. We review de novo

whether a sentence constitutes cruel and unusual punishment. See State v. 

Kasic, 228 Ariz. 228, 231, ¶ 15, 265 P.3d 410, 413 (App. 2011). 

¶34 The Eighth Amendment of the United States Constitution 

prohibits cruel and unusual punishment. State v. Berger, 212 Ariz. 473, 

475, ¶ 8, 134 P.3d 378, 380 (2006). In a "noncapital" setting, this means that 

the sentence imposed may not be "grossly disproportionate" to the crime. 

Id. at ¶ 10. In the analysis of whether a sentence is grossly 

disproportionate, "a court first determines if there is a threshold showing 

of gross disproportionality by comparing 'the gravity of the offense and 

the harshness of the penalty.'" Berger, 212 Ariz. at 476, ¶ 12, 134 P.3d at 

381 (quoting Ewing v. California, 538 U.S. 11, 28 (2003)). In doing so, the 

court "must accord substantial deference to the legislature and its policy 

judgments as reflected in statutorily mandated sentences." Id. at ¶ 13. If 

the legislature has reasonable grounds to believe that a sentence advances 

the goals of that state's criminal justice system in "any substantial way," 

and the sentence "arguably furthers the State's penological goals and thus 

reflects 'a rational legislative judgment, entitled to deference[,]'" a sentence 

is not grossly disproportionate and the analysis need not continue further. 

Berger, 212 Ariz. at 477, ¶ 17, 134 P.3d at 382 (quoting Ewing, 538 U.S. at 28, 

30). It is "exceedingly rare" that a sentence in a noncapital case will violate 

the prohibitions against cruel and unusual punishment. Id. 

¶35 A twenty-year sentence for sexual conduct with a minor 

who is twelve, thirteen or fourteen years of age is not grossly 

 

Therefore, we cite the 2000 version of the statutes regardless of when the 

offense actually occurred. 
STATE v. DYER 

Decision of the Court 

15 

disproportionate to the crime. "It is evident beyond the need for 

elaboration that a State's interest in 'safeguarding the physical and 

psychological well-being of a minor' is 'compelling.'" Berger, 212 Ariz. at 

477, ¶ 18, 134 P.3d at 382 (quoting Osborne v. Ohio, 495 U.S. 103, 109 

(1990)). Our legislature has a reasonable basis to believe that the lengthy 

sentences it has prescribed for sexual conduct with a minor advance the 

goals of the Arizona criminal justice system in a substantial way, and that 

those sentences further the State's penological goals. A twenty-year 

sentence for sexual conduct with a minor under the age of fifteen, is, 

therefore, not grossly disproportionate. 

¶36 We note that in Berger, our supreme court held a ten-year 

minimum sentence for sexual exploitation of a minor based upon the mere 

possession of a single image of a child engaged in exploitive exhibition or 

other sexual conduct is not grossly disproportionate to the crime. Berger, 

212 Ariz. at 474, ¶ 1, 134 P.3d at 379.5 Viewed in the context of Berger, a 

twenty-year presumptive sentence for an adult who intentionally or 

knowingly engages in sexual intercourse or oral sexual contact with a 

minor under the age of fifteen is not grossly disproportionate to the crime. 

See A.R.S. § 13-1405(A) (2000) (sexual conduct with a minor). The fact that 

Dyer must serve the sentences consecutively is inconsequential. "If the 

sentence for a particular offense is not disproportionately long, it does not 

become so merely because it is consecutive to another sentence for a 

separate offense or because the consecutive sentences are lengthy in 

aggregate." Berger, 212 Ariz. at 479, ¶ 28, 134 P.3d at 384.6 

¶37 This case is distinguishable from the circumstances 

presented in State v. Davis. In Davis, the Arizona Supreme Court held that 

under the specific facts and circumstances of that case, a mandatory 

minimum sentence of fifty-two years' imprisonment for having voluntary 

sex with two post-pubescent girls violated the prohibitions against cruel 

and unusual punishment. State v. Davis, 206 Ariz. 377, 379, ¶ 1, 79 P.3d 64, 

 

5 The United States Supreme Court denied certiorari in Berger. Berger 

v. Arizona, 549 U.S. 1252 (2007). 

6 Dyer also urges us to hold that the prohibition against cruel and 

unusual punishment in Article 2, Section 15 of the Arizona Constitution 

affords greater protections than the prohibition against cruel and unusual 

punishment in the Eighth Amendment of the United States Constitution. 

Our supreme court has already rejected this argument. See State v. Davis, 

206 Ariz. 377, 380-381, ¶ 12, 79 P.3d 64, 67-68 (2003). 
STATE v. DYER 

Decision of the Court 

16 

66 (2003). The supreme court also recognized, however, that "Davis

represents an extremely rare case[.]" Berger, 212 Ariz. at 480, ¶ 37, 134 

P.3d at 385 (internal quotations omitted). Davis was twenty years old. 

His level of maturity and intelligence was far below that of a normal 

adult. The girls involved actively sought out Davis, voluntarily went to 

his home and actively participated in the acts. Id. at 481, ¶ 41, 134 P.3d at 

386. Davis's conduct was, in the words of the supreme court, "swept up" 

in the broad terms and "expansive reach" of the statute. Id. at ¶¶ 41-42, 

134 P.3d at 386. Dyer, however, was not a young adult of far below 

average intelligence and maturity whose conduct was swept up and 

caught up in the broad terms and expansive reach of the law. This case is 

in no way analogous to Davis. 

VII. Conclusion 

¶38 We affirm Dyer's convictions and sentences.