IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, 

Appellee, 

v.

ROBERT JAMES NEESE, 

Appellant. 

No. 1 CA-CR 14-0705 

 

Appeal from the Superior Court in Maricopa County 

No. CR2005-007461-001 

The Honorable Pamela Hearn Svoboda, Judge 

AFFIRMED AS MODIFIED

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Michael O’Toole 

Counsel for Appellee 

The Hopkins Law Office, PC, Tucson 

By Cedric Martin Hopkins 

Counsel for Appellant 
STATE v. NEESE 

Opinion of the Court 

2 

OPINION 

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

Presiding Judge Margaret H. Downie and Judge Maurice Portley joined. 

O R O Z C O, Judge: 

¶1 Robert James Neese appeals from his convictions and 

resulting sentences for seven counts of burglary in the second degree, one 

count of burglary in the first degree, and seven counts of theft. Neese 

argues the trial court erred in denying his motion to dismiss based on the 

running of the statute of limitations. The State contends that the use of a 

DNA profile to commence a prosecution of an unnamed defendant tolled 

the statute of limitations. For the following reasons, we affirm Neese’s 

convictions and sentences. Additionally, we amend a typographical error 

in the sentencing minute entry. 

FACTS AND PROCEDURAL HISTORY

¶2 Beginning in 1999, Scottsdale police investigated a number of 

residential burglaries and related thefts. Although unable to identify a 

possible suspect, police obtained DNA evidence from the crime scenes, and 

the evidence was forensically tested. DNA analysts subsequently found 

that the multiple samples of DNA shared the same genetic markers and a 

unique DNA profile was created (DNA Profile) from that evidence. A 

federal databank of DNA profiles did not produce a match for an individual 

whose genetic markers matched those of the DNA Profile. 

¶3 On March 15, 2005, an indictment (Indictment) was filed 

charging “John Doe, I” with seven counts of burglary in the second degree, 

class 3 felonies; three counts of theft, class 5 felonies; one count of burglary 

in the first degree, a class 3 felony; three counts of theft, class 3 felonies; and 

one count of theft, a class 2 felony. The Indictment identified John Doe I as 

an “Unknown Male with Matching Deoxyribonucleic Acid . . . Profile at 

Genetic Locations” followed by a string of the genetic markers found at 

thirteen locations that collectively characterize the DNA Profile. The 

alleged offenses occurred between 1999 and 2004. 

¶4 In May, 2011, a DNA sample was obtained from Neese that 

matched the DNA Profile. An amended indictment (Amended Indictment) 
STATE v. NEESE 

Opinion of the Court 

3 

was filed substituting the John Doe I designation and DNA Profile 

identification with Neese’s name as the defendant. The court issued a 

second warrant based on the Amended Indictment that identified Neese by 

his full name, date of birth, and other physical characteristics. Neese was 

arrested and entered a not guilty plea at his arraignment. 

¶5 Neese subsequently moved to dismiss the twelve counts 

relating to offenses occurring before May 2004, arguing that the applicable 

seven-year statute of limitations had expired before the State amended the 

Indictment naming him as the defendant.1 Neese argued that the DNA 

Profile in the Indictment did “not serve to identify someone,” and, because 

a “John Doe” could not be convicted, the Indictment did not toll the statute 

of limitations. 

¶6 The court denied the motion, and Neese unsuccessfully 

sought special action relief. A jury subsequently found Neese guilty as 

charged, and he was sentenced to prison for 22.75 years. Neese appealed, 

and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona 

Constitution and A.R.S. §§ 12-120.21.A.1, 13-4031 and -4033.A.1 (West 

2015).2

DISCUSSION

I. Motion to Dismiss: Statute of Limitations 

¶7 The applicable statute of limitations for the 1999 offenses was 

seven years, and it began to expire at the end of June 2006. See A.R.S. 

§ 13-107.B.1. Although the Indictment was filed on March 15, 2005, well 

within the limitations period, the Amended Indictment naming Neese was 

filed in 2011, years after the statutory limitations period expired. See A.R.S. 

 

1 Although the first degree burglary offense allegedly occurred before 

2004, Neese did not seek dismissal of that count ostensibly because the 

applicable statute of limitations had not expired on that serious offense 

when the State amended the indictment. See Arizona Revised Statutes 

(A.R.S.) section 13-107.E (period of limitation does not run for a serious 

offense as defined in A.R.S. § 13-706 during any time when the identity of 

the person who commits the offense or offenses is unknown). 

2 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 
STATE v. NEESE 

Opinion of the Court 

4 

§ 13-107.C (filing of indictment commences prosecution). As a result, Neese 

argues the court erred by denying his motion to dismiss because the DNA 

Profile used in the Indictment did not sufficiently identify him to toll the 

statute of limitations beyond the seven year limitation period. Analogizing 

the DNA Profile to fingerprints, Neese contends that the DNA Profile was 

merely evidence; thus, the Indictment was not issued against a “known 

person.” He implies, as a result, that the Indictment improperly failed to 

give him notice of the charges. Neese further argues that based on A.R.S. 

§ 13-107.E,3 the legislature did not contemplate DNA profiles being used as 

“identification mechanism[s,]” and he warns of the “practical fallout” of 

issuing warrants to a DNA profile. 

¶8 We interpret statutes and rules of procedure de novo. Taylor 

v. Cruikshank, 214 Ariz. 40, 43, ¶ 10 (App. 2006). Similarly, we 

“independently review any questions of law relating to the statute of 

limitations defense.” State v. Aguilar, 218 Ariz. 25, 30, ¶ 15 (App. 2008) 

(quoting Logerquist v. Danforth, 188 Ariz. 16, 18 (App. 1996)). 

¶9 An indictment charging an unknown defendant must contain 

“any name or description by which he can be identified with reasonable 

certainty.” Ariz. R. Crim. P. 13.2, cmt.4 The propriety of using a DNA 

profile for identification purposes to commence prosecution of an unnamed 

defendant is an issue of first impression in Arizona. 

¶10 Courts in other jurisdictions, however, have addressed the 

issue and concluded that a unique DNA profile in a “John Doe” indictment 

(or other prosecution-commencing event) identifies the defendant (or 

suspect) with “reasonable certainty” or other similar standard of 

particularity. See, e.g., State v. Danley, 853 N.E.2d 1224, 1226-28, ¶¶ 7-12 

(Ohio Ct. Comm. Pleas 2006) (holding statute of limitations tolled when 

John Doe DNA warrant was served on defendant); People v. Martinez, 52 

A.D.3d 68, 70-71 (N.Y. App. Div. 2008) (rejecting argument that John Doe 

DNA indictment was defective because it did not name or adequately 

 

3 “The period of limitation does not run for a serious offense as 

defined in § 13-706 during any time when the identity of the person who 

commits the offense or offenses is unknown.” A.R.S. § 13-107.E. 

4 See also Ariz. R. Crim. P. 3.2(a) (“[An arrest] warrant shall . . . contain 

the name of the defendant or, if the defendant’s name is unknown, any 

name or description by which the defendant can be identified with 

reasonable certainty.”). 
STATE v. NEESE 

Opinion of the Court 

5 

describe defendant); People v. Robinson, 224 P.3d 55, 75 (Cal. 2010) (holding 

that an arrest warrant describing a defendant by a DNA profile identifies 

the defendant with “sufficient particularity”); State v. Burdick, 395 S.W.3d 

120, 128 (Tenn. 2012) (holding that a “DNA profile exclusively identifies an 

accused with nearly irrefutable precision”); State v. Younge, 321 P.3d 1127, 

1131-33, ¶¶ 12-14 (Utah 2013) (holding that the requirement that a charging 

document “charge a person” was satisfied by identifying an unknown John 

Doe defendant with a DNA profile); State v. Carlson, 845 N.W.2d 827, 831-

32 (Minn. Ct. App. 2014) (holding that a DNA profile meets and exceeds 

particularity requirements); see also Daniel Gaudet, Waiting for John Doe: The 

Practical and Constitutional Implications of DNA Indictments, 18 Suffolk J. Trial 

& App. Advoc. 106, 107 (2013) (noting that “courts have found 

overwhelmingly in favor of the constitutionality of [John Doe DNA] 

indictments.”).

¶11 The issue first arose in State v. Dabney, 663 N.W.2d 366 (Wis. 

Ct. App. 2003), and the Tennessee Supreme Court, in agreeing with the 

Dabney decision, described the Wisconsin court’s reasoning as follows: 

In State v. Dabney, . . . , under circumstances almost identical 

to those in the case before us, the complaint and arrest 

warrant initially identified the suspect as “John Doe,” 

charged him with certain sexual assault offenses, and set forth 

a unique DNA profile obtained from evidence recovered from 

the victim. [Dabney] at 369. Similar to the statutory 

requirements in Tennessee, Wisconsin law required an arrest 

warrant to “[s]tate the name of the person to be arrested, if 

known, or if not known, designate the person to be arrested 

by any description by which the person to be arrested can be 

identified with reasonable certainty.” Id. at 371 (citing Wis. 

Stat. § 968.04(3)(a)(4)). Because “the particularity or 

reasonable certainty requirements [of the statute did] not 

absolutely require that a person's name appear in the 

complaint or warrant,” id. at 371, the Wisconsin court 

concluded “that for purposes of identifying ‘a particular 

person’ . . . , a DNA profile is arguably the most discrete, 

exclusive means of personal identification” and, therefore, 

satisfied the “reasonable certainty” requirements of an arrest 

warrant, id. at 372 (citing [Meredith A. Bieber, Comment, 

Meeting the Statute or Beating It: Using “John Doe” Indictments 

Based on DNA to Meet the Statute of Limitations, 150 U. Pa. 

L.Rev. 1079, 1085 (2002)] (“A genetic code describes a person 
STATE v. NEESE 

Opinion of the Court 

6 

with far greater precision than a physical description or a 

name.”)). 

Burdick, 395 S.W.3d at 127. 5 

¶12 We agree with the reasoning of Dabney, Burdick, and similar 

rulings in other jurisdictions. We do so because Arizona law does not 

require an indictment to name a defendant; rather, if the person’s name is 

unknown, the indictment need only provide a description that identifies the 

defendant “with reasonable certainty.” Ariz. R. Crim. P. 13.2, cmt. The 

DNA Profile in the Indictment satisfied the “reasonable certainty” 

requirement.6 Also, nothing in A.R.S. § 13-107.E implies a legislative intent 

to require a suspect’s name for identification purposes. Furthermore, the 

impracticality of using a DNA profile to serve an arrest warrant on a 

physically unrecognizable person, as Neese argues, is not dispositive. Such 

a warrant will only be served after law enforcement discovers a name 

connected to a DNA profile. “This extra step, however, is not unique to a 

warrant based on DNA. No matter how well a warrant describes the 

individual, extrinsic information is commonly needed to execute it. If a 

name is given, information to link the name to the physical person must be 

acquired.” Dabney, 663 N.W.2d at 372, ¶ 17. 

¶13 We thus hold that for limitation purposes, a criminal 

prosecution commences upon the filing of a “John Doe” indictment that 

identifies a defendant with a unique DNA profile. Our holding is limited 

to the facts and procedural history of this case. There may be instances 

where a “John Doe” indictment containing a less comprehensive recitation 

 

5 In what apparently is the only reported decision concluding 

otherwise, the Kansas Supreme Court, while agreeing with the reasoning 

in Dabney and Robinson, held that John Doe DNA arrest warrants 

insufficiently identified perpetrators of crimes because the DNA profiles in 

that case referred only to DNA loci that are common to all humans. State v. 

Belt, 179 P.3d 443, 449-51 (Kan. 2008). 

6 Neese does not expressly argue that the DNA Profile in the 

Indictment could have identified another person. To the extent he 

implicitly does so, we disagree. See, e.g., Com. v. Dixon, 938 N.E.2d 878, 885 

(Mass. 2010) (“A DNA profile is not merely a word ‘of description,’ it is . . . 

metaphorically, an indelible ‘bar code’ that labels an individual’s identity 

with nearly irrefutable precision.”) (internal citation omitted); see also 

Dabney, 663 N.W.2d at 372. 
STATE v. NEESE 

Opinion of the Court 

7 

of genetic markers may not sufficiently describe the defendant with 

reasonable certainty. Because the Indictment was filed before the sevenyear time limit expired, Neese’s prosecution was timely. Neese’s reliance 

on Taylor, 214 Ariz. 40, is misplaced. In Taylor, the applicable statute of 

limitations had expired before the State filed a John Doe DNA indictment. 

Id. at 41-42, 47, ¶¶ 3, 5-6, 29. 

¶14 We also reject Neese’s argument that the Indictment’s DNA 

Profile failed to notify him of the charges, and therefore, the State’s 

amendment of the Indictment after the statute of limitations expired 

violated his due process rights. Criminal statutes of limitation such as 

A.R.S. § 13-107 are “not based on [a] fundamental, constitutional right.” 

State v. Jackson, 208 Ariz. 56, 63, ¶ 25 (App. 2004) (citing State v. Timoteo, 952 

P.2d 865, 870 (Haw. 1997)). Rather, statutes of limitation reflect “legislative 

assessments.” United States v. Marion, 404 U.S. 307, 322 (1971). Accordingly, 

the Amended Indictment did not violate Neese’s due process rights. 

Furthermore, Neese does not argue that he lacked notice of the charges 

when he was arraigned. Because he knew what the charges were at the 

time of his arraignment, he has demonstrated no prejudice. See State v. 

Rosario, 195 Ariz. 264, 267, ¶ 15 (App. 1999). 

II. Evidentiary Hearing 

¶15 Neese also argues the trial court erred in not conducting an 

evidentiary hearing before ruling on his motion to dismiss. Although 

Neese requested oral argument on the motion, he did not request an 

evidentiary hearing; thus, we review the issue for fundamental error. See 

State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (failure to object to alleged 

trial error results in fundamental error review). To obtain relief under 

fundamental error review, Neese has the burden to show that error 

occurred, the error was fundamental and that he was prejudiced thereby. 

See id. at 567-68, ¶¶ 20-22. 

¶16 We review the court’s failure to sua sponte hold an evidentiary 

hearing for an abuse of discretion. State v. Wassenaar, 215 Ariz. 565, 576, 

¶ 48 (App. 2007). We find none here. 

¶17 The issue to be decided by Neese’s motion was a legal, not 

factual, one. Neese does not point to any factual dispute that needed to be 

resolved before the court ruled on his motion to dismiss. Accordingly, 

Neese has failed to establish error, let alone fundamental error, in the trial 

court’s failure to sua sponte order an evidentiary hearing. For the foregoing 
STATE v. NEESE 

Opinion of the Court 

8 

reasons, we find the superior court acted within its discretion in denying 

Neese’s motion to dismiss. 

III. Right to a Speedy Trial 

¶18 Neese argues the trial court should have dismissed the 

Indictment because the State failed to timely prosecute him from March 

2005, the date of the Indictment, to May 2011, the date of the Amended 

Indictment. 

¶19 As Neese concedes, we review for fundamental error because 

he did not assert his speedy trial rights in superior court. As noted, it is 

Neese’s burden under fundamental error review to establish prejudice. We 

will not presume prejudice where none appears affirmatively in the record. 

See State v. Trostle, 191 Ariz. 4, 13 (1997). 

¶20 Neese does not explain how the six-year delay between the 

filing of the Indictment and the Amended Indictment prejudiced him. The 

only issues to be determined by the jury were whether Neese was 

impermissibly in the victims’ homes intending to commit a felony, and 

whether he stole the victims’ personal property. Neese has not shown how 

the six-year delay prevented him from obtaining any exculpatory evidence. 

He was not incarcerated on the charges until he was arrested in 2011. 

Similarly, Neese points to nothing in the record indicating the State 

intentionally (or negligently) caused the delay or otherwise acted in bad 

faith. Because Neese’s right to a speedy trial was not violated, no 

fundamental error occurred. 7 

IV. State’s Closing Argument 

¶21 Neese also argues he was prejudiced by the prosecutor’s 

reference to the length of time it took to prosecute this case in closing 

argument: 

 

7 Although, the delay between the Indictment and Amended 

Indictment was undeniably lengthy, the reason for the delay is clear: the 

State had no named suspect until it accessed Neese’s DNA. And once it did 

possess Neese’s DNA, the State acted promptly in amending the Indictment 

and arresting Neese. See Barker v. Wingo, 407 U.S. 514, 530 (1972) 

(establishing four-factor balancing test to evaluate speedy trial claims: 

“[l]ength of delay, the reason for the delay, the defendant's assertion of his 

right, and prejudice to the defendant”).
STATE v. NEESE 

Opinion of the Court 

9 

And the other thing to keep in mind, it would be one thing if 

the first burglary in 1999, the next day, went to his house, 

there is the property. 

And/or the next burglary, the day after, they went to the 

house or they caught him on the street next to house (sic), 

what happened to the property? The, well, then there will be 

a question, where is all the property? 

We are talking [seven] years from the last burglary until when 

they got his DNA in 2011, [seven] years. We are talking 

[twelve] years from the 1999 burglaries to when they obtained 

his DNA. 

And do you think he can get rid of property in [seven] years, 

or [eight] years or ten years or [twelve] years without it 

turning up? Absolutely. 

The prosecutor’s comments were made to rebut defense counsel’s closing 

argument regarding the lack of evidence connecting Neese to the 

burglaries. Defense counsel explained to the jury: 

Well, if the evidence was acquired as to DNA in 2011, that 

they believed tied him to these matters in 1999 through 2004, 

where are the items? Where is the evidence he ever had them? 

Where is all the money? Where did it go? 

. . . 

There were no witnesses that he had anything, how does that 

go unnoticed? 

¶22 In light of defense counsel’s argument we find no misconduct. 

In addition, we find no prejudice in view of the DNA evidence linking 

Neese to the crime scenes. Accordingly, Neese fails to satisfy his burden of 

establishing prejudice. See State v. Diaz, 223 Ariz. 358, 361, ¶ 13 (2010) (“We 

will not reverse a conviction based on speculation or unsupported 

inference.”). 

V. Sentencing Minute Entry 

¶23 The Indictment incorrectly referred to a nonresidential 

structure in the first degree burglary count (Count 5), and, therefore, noted 

it was a class 3 felony. Because Count 5 alleged Neese or an accomplice 
STATE v. NEESE 

Opinion of the Court 

10 

knowingly possessed a handgun while committing the burglary, the State, 

without objection, orally amended Count 5 to reflect its proper class 2 

felony designation as a burglary of a residential structure. See A.R.S. 

§ 13-1508.B. 

¶24 The evidence at trial revealed that the victim’s home (i.e., 

residential structure) had been burglarized. Before deliberations 

commenced, the court instructed the jury on the amended count. The court 

sentenced Neese on Count 5 to 9.25 years’ incarceration, the presumptive 

term for a class 2 felony conviction as a subsequent offense to a second 

felony offense under then-applicable A.R.S. § 13-702.02.B.4 (2000). 

However, the sentencing minute entry incorrectly refers to Count 5 as a 

class 3 felony. Pursuant to our authority under A.R.S. § 13-4037.A, we 

amend the sentencing minute entry filed August 12, 2013, to correctly 

reflect Count 5 as a class 2 felony. See State v. Contreras, 180 Ariz. 450, 453 

n.2 (App. 1994) (“When we are able to ascertain the trial court’s intention 

by reference to the record, remand for clarification is unnecessary.”). 

CONCLUSION

¶25 For the foregoing reasons, we affirm Neese’s convictions and 

the resulting sentences, but amend the sentencing minute entry to reflect 

the correct nature of Count 5 as a class 2 felony.