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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHAD DANIEL GARCIA, Appellant.

No. 1 CA-CR 16-0155

Appeal from the Superior Court in Coconino County

No. S0300CR201400243

The Honorable Mark R. Moran, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Elizabeth B. N. Garcia

Counsel for Appellee

Law Office of David Michael Cantor PC, Phoenix

By Christine Whalin

Counsel for Appellant
STATE v. GARCIA

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MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.

N O R R I S, Judge:

¶1 Chad Daniel Garcia appeals his conviction and sentence for 

sexual assault arguing the superior court: first, failed to preserve the trial 

record; second, should not have dismissed a juror; third, should have 

questioned another juror more extensively about his relationship with 

Garcia; and finally, improperly imposed a presumptive sentence. We reject 

these arguments and affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 In March 2012, Garcia’s girlfriend, and her then fifteen-yearold daughter (“the victim”), traveled to northern Arizona to visit Garcia. 

The victim reported to police that Garcia had raped her in the motel room 

that Garcia and her mother were sharing. Police initially arrested Garcia for 

a misdemeanor charge of furnishing alcohol to a minor and a misdemeanor 

charge of contributing to delinquency. A grand jury later indicted Garcia

on one count of sexual assault and two counts of sexual abuse of a minor.

¶3 The jury found Garcia guilty of sexual assault but not guilty 

of the two counts of sexual abuse. In the aggravation phase of trial, the jury 

found the State had not proved the single alleged aggravating 

circumstance, physical and emotional harm to the victim. See Ariz. Rev. 

Stat. (“A.R.S.”) § 13-701(D)(9) (2010). The superior court then sentenced 

Garcia to a presumptive term of seven years’ imprisonment. 

DISCUSSION

I. Adequacy of the Appellate Record

¶4 Garcia first argues the superior court failed to preserve the 

trial record and infringed on his constitutional right to a meaningful appeal 

 

1We view the facts in the light most favorable to sustaining 

the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93, 314 P.3d 1239, 1264 (2013)

(citation omitted).
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when it held 11 off-the-record bench conferences. Reviewing for 

fundamental error because Garcia did not raise this objection in the 

superior court, we disagree. See State v. Scott, 187 Ariz. 474, 476, 930 P.2d 

551, 553 (App. 1996). To prevail on fundamental error review, a defendant 

bears the burden of showing error, and that the error was fundamental and 

prejudicial. State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 

607-08 (2005). 

¶5 Our supreme court has disapproved of the practice of holding 

unrecorded bench conferences. State v. Hargrave, 225 Ariz. 1, 16, ¶ 61, 234

P.3d 569, 584 (2010). The superior court, however, is not required to record 

verbatim bench conferences. Id. at 16, ¶ 62, 234 P.3d at 584 (record 

sufficiently complete when trial court made after-the-fact record of

unrecorded bench conferences). “[A]bsent a timely objection or some 

demonstrable prejudice, the failure to make a contemporaneous record of a 

bench conference does not constitute fundamental error.” Scott, 187 Ariz. at 

476, 930 P.2d at 553. A defendant who “point[s] to no appealable issues for 

which an alleged unrecorded objection has been made” fails to demonstrate 

prejudice. State v. Paxton, 186 Ariz. 580, 589, 925 P.2d 721, 730 (App. 1996). 

¶6 Here, Garcia has failed to demonstrate prejudice. First, the 

subject matter of eight of the unrecorded bench conferences can be 

discerned from the context in which they occurred at trial, and they 

addressed issues that Garcia does not raise on appeal. Second, of the 

remaining unrecorded bench conferences, Garcia identifies only one bench 

conference, preceding dismissal of Juror No. 1, that may be related to two 

of the issues he has raised on appeal, see infra ¶¶ 7, 11. As we discuss in 

more detail below, see infra ¶¶ 7, 13, we have presumed Garcia made a 

timely objection and properly preserved these two issues for appellate 

review during this unrecorded bench conference. Thus, Garcia has not been 

prejudiced. Paxton, 186 Ariz. at 589, 952 P.2d at 730 (subsequent inability to 

show on record that defendant preserved issue for appeal may constitute 

prejudice). Accordingly, Garcia has not demonstrated fundamental error. 

II. Dismissal of Juror No. 1

¶7 Garcia next argues the superior court should not have 

dismissed Juror No. 1 because that juror was only accused of falling asleep 

during opening statements and was able to “recite information from 

opening statements” when questioned by the court. Although the record 

does not reflect Garcia objected to the court’s dismissal of Juror No. 1, given 

that the court held an unrecorded bench conference with counsel before 

dismissing Juror No. 1, we have assumed that Garcia objected to the 
STATE v. GARCIA

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dismissal of Juror No. 1 during that conference. Thus, reviewing the

superior court’s decision to dismiss Juror No. 1 for an abuse of discretion, 

we reject Garcia’s argument. State v. Lavers, 168 Ariz. 376, 390, 814 P.2d 333, 

347 (1991) (appellate court reviews trial court’s decision to dismiss a 

potential juror for an abuse of discretion).

¶8 Under Arizona Rule of Criminal Procedure 18.4(b), the 

superior court “shall excuse” a juror for cause “[w]hen there is reasonable 

ground to believe that a juror cannot render a fair and impartial verdict[.]”

Here, after the first recess on the second day of trial, the superior court 

questioned Juror No. 1 after the bailiff reported that Juror No. 1 had fallen 

asleep during opening statements. Juror No. 1 acknowledged she had 

retired to bed very late the previous evening and felt a need to close her

eyes, but denied falling asleep. 

¶9 The superior court then excused Juror No. 1 from the 

courtroom. The bailiff informed the court, on the record, that Juror No. 1 

did not leave the courtroom with the other jurors at recess and she saw that

Juror No. 1’s eyes were closed. The bailiff then explained she “called” Juror 

No. 1 and “it took [Juror No. 1] a couple [of] minutes to open her eyes.” The

bailiff reported she had asked Juror No. 1 whether she had been sleeping, 

and the juror admitted she had. Based on the bailiff’s statements, the

superior court then found Juror No. 1 had indeed “fall[en] asleep during 

the opening statements” and excused her from service. 

¶10 The record reflects, as the superior court found, that Juror No. 

1 fell asleep during opening statements. Under these circumstances, the 

superior court did not abuse its discretion in concluding there was a 

reasonable basis to believe Juror No. 1 would be unable to fulfill her duties 

and render a fair verdict. Cf. State v. Cota, 229 Ariz. 136, 150, ¶¶ 73-74, 272 

P.3d 1027, 1041 (2012) (trial court did not abuse its discretion in declining 

to dismiss a juror accused of sleeping without conducting voir dire; trial 

court personally observed juror tapping his foot and moving his wrist while 

his eyes were closed). 

III. Failure to Voir Dire Juror No. 4

¶11 Garcia argues that the superior court should have questioned

Juror No. 4 after Juror No. 4 disclosed he had previously worked for the 

same employer as Garcia. See Ariz. R. Crim. P. 18.4(b) (court shall excuse 

juror if reasonable ground to believe juror unable to render a fair and 

impartial verdict). We disagree.

¶12 After dismissing Juror No. 1, the superior court stated:
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[F]or the record, I mentioned to counsel another 

piece of information which was relayed to the 

court by the bailiff. Juror No. 4 [informed the 

bailiff] that he had worked at [a drug store

distribution center] during a short period of 

time in which [Garcia] was also employed there 

but did not know [Garcia]. He did not work 

with [Garcia]. 

¶13 Because immediately before the superior court made its “for 

the record” statement, it had held an unrecorded bench conference, see supra

¶ 6, we assume that during this bench conference defense counsel asked the 

superior court to question juror No. 4 regarding his employment at the drug 

store distribution center. We thus review the superior court’s implicit 

finding that Juror No. 4 could be fair and impartial for an abuse of 

discretion. State v. Hoskins, 199 Ariz. 127, 139, ¶ 37, 14 P.3d 997, 1009 (2000). 

¶14 During jury voir dire, after Garcia stood up and defense 

counsel introduced him, none of the prospective jurors stated he or she

knew Garcia. After the jury had been selected, and during his opening 

statements, defense counsel provided additional information about Garcia, 

including that he had previously worked at a drug store distribution center 

for 14 years. At the next recess, Juror No. 4 informed the bailiff that he had 

also worked for the same drug store distribution center. 

¶15 Although Juror No. 4 had previously worked for the same 

employer as Garcia, Juror No. 4 ‘s statements during voir dire that he had 

worked for his current employer for over four years demonstrated that he 

had stopped working at the drug store distribution center before Garcia 

committed the sexual assault. Additionally, the superior court had 

reasonable grounds to believe Juror No. 4 would be able to render a fair and 

impartial verdict given that Juror No. 4 failed to recognize Garcia by 

appearance or name, his immediate efforts to inform the superior court that 

he and Garcia may have had overlapping employment as soon as defense 

counsel told the jury that Garcia had been employed at the drug store

distribution center, and his uncontested assurances to the bailiff that he did 

not know Garcia and had not worked with him. 

¶16 Based on this record, the superior court did not abuse its

discretion in failing to further question Juror No. 4. See id. (trial court is in 

the best position to address questions of fairness); State v. Trostle, 191 Ariz. 
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4, 13, 951 P.2d 869, 878 (1997) (juror “prejudice will not be presumed but 

must appear affirmatively from the record”) (citation omitted).

2

IV. Imposition of Presumptive Sentence

¶17 Garcia argues the superior court should not have relied on 

three aggravating circumstances in imposing the presumptive sentence:

first, physical and emotional harm to the victim—which the jury had 

rejected; second, Garcia’s prior convictions—which were not felonies; and

third, Garcia’s violation of a position of trust—which was not supported by 

the evidence. Garcia did not object to any of the superior court’s reliance on 

these circumstances, therefore, we review for fundamental error. See 

Henderson, 210 Ariz. at 567-68, ¶¶ 19-20, 115 P.3d at 607-08. 

¶18 At the sentencing hearing the superior court found several 

mitigating circumstances. The superior court also found several 

aggravating circumstances, concluded that the aggravating circumstances 

outweighed the mitigating circumstances, and imposed the presumptive 

term of imprisonment. See supra ¶ 3. 

¶19 Although “a trial court’s imposition of a sentence in violation 

of a defendant’s right to a jury trial constitutes an illegal sentence and is 

therefore fundamental error,” in Arizona, the maximum punishment 

authorized by a jury verdict alone, without any additional factual findings, 

is the presumptive term. State v. Johnson, 210 Ariz. 438, 440-41, ¶¶ 8, 10, 111 

P.3d 1038, 1040-41 (App. 2005). Thus, when the superior court finds 

aggravating circumstances not found by the jury, but “ultimately” imposes 

a presumptive sentence, the punishment “does not exceed the statutory 

maximum allowed by the jury verdicts alone,” and the sentence is not, 

therefore, an illegal sentence. Id. at 441, ¶ 10-11, 111 P.3d at 1041. Further, 

we will uphold the superior court’s imposition of a presumptive sentence, 

notwithstanding the presence of mitigating factors, unless the court 

“abused its considerable discretion” in imposing that sentence. State v. 

Olmstead, 213 Ariz. 534, 535, ¶ 6, 145 P.3d 631, 632 (App. 2006).

 

2To be fair, the superior court should have briefly questioned 

Juror No. 4 on the record to confirm Juror No. 4’s statements to the bailiff. 

See Hoskins, 199 Ariz. at 141, ¶ 48, 14 P.3d at 1011 (juror “statements” may 

“warrant further exploration by the trial court to assure fairness and 

impartiality”). But, the superior court did not abuse its discretion in not 

doing so.
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¶20 Here, although the superior court considered aggravating 

circumstances not found by the jury and an aggravating circumstance that 

was similar to the one the jury found “not proven,” the superior court 

imposed the presumptive sentence authorized by the jury’s verdict alone. 

See A.R.S. § 13-1406(B) (2010) (presumptive term for sexual assault is seven 

years’ imprisonment). Accordingly, the superior court did not impose an 

illegal sentence. 

¶21 Further, the superior court did not abuse its discretion in 

imposing the presumptive sentence. First, although the jury did not find 

physical and emotional harm to the victim, the superior court’s own 

findings that the victim suffered physical and emotional harm were

supported by both the victim’s testimony and other witness testimony. 

¶22 Second, although Garcia argues the superior court should not 

have considered his misdemeanor criminal record as an aggravating 

circumstance, under A.R.S. § 13-701(D)(25) (Supp. 2016) the superior court 

may consider any other factor that “is relevant to the defendant’s character 

or background or to the nature or circumstances of the crime.” During trial, 

Garcia admitted to two prior convictions for driving under the influence 

and, more importantly, to a prior conviction for furnishing alcohol to an

underage victim. As reflected in the record, the alcohol Garcia purchased 

and supplied rendered the victim especially vulnerable to the sexual 

assault, and was therefore relevant to the nature and circumstances of the 

crime. 

¶23 Third, although, as Garcia argues, the record does not directly 

support the superior court’s finding that Garcia violated a position of trust,

Garcia sexually assaulted the victim when her mother had become 

incapacitated because of an illness, thus, leaving the victim vulnerable and 

essentially reliant on Garcia’s care.3

¶24 Because the aggravating circumstances found by the superior 

court are supported by the record, the court carefully considered the 

various mitigating and aggravating circumstances in determining the 

appropriate sentence, and the superior court imposed the statutory 

maximum sentence, Garcia has failed to demonstrate fundamental error.

 

3At trial, Garcia acknowledged the victim’s mother suffered 

from an illness that produced “debilitating” and “stroke-like symptoms,” 

and admitted that the victim’s mother had “complained of feeling sick” 

before going to sleep. 
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CONCLUSION

¶25 For the foregoing reasons, we affirm Garcia’s conviction and 

sentence for sexual assault.