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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SAMUEL CLAYTON PRESTON, Appellant.

No. 1 CA-CR 21-0138

Appeal from the Superior Court in Maricopa County

No. CR2018-001000-001

The Honorable Timothy J. Ryan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael Valenzuela

Counsel for Appellee

Jones Skelton & Hochuli PLC, Phoenix

By Lori L. Voepel, Elizabeth B.N. Garcia

Counsel for Appellant

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass

joined.

FILED 4-26-2022
STATE v. PRESTON

Decision of the Court

2

P A T O N, Judge:

¶1 Samuel C. Preston appeals from his sexual abuse and child 

molestation convictions. For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the 

verdicts. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1 n.1 (App. 2019). Twelve-yearold K.F. lived with her parents directly across the street from Preston and 

his family. K.F. was friends with Preston’s niece and regularly spent time 

at his home. One night, K.F. had a sleepover at Preston’s house with his 

niece. The two girls slept on the living room couch.

¶3 K.F. later testified that at around 2:00 a.m., Preston woke her 

up by touching her leg. She testified that he climbed on top of her, forced 

her hand into his pants, and forced her to rub his penis. K.F. described how 

Preston then forced his hand down her pants and rubbed, then digitally 

penetrated, her vagina. After removing his hand from K.F.’s vagina, 

Preston grabbed and rubbed her left breast underneath her clothing.

¶4 Moments later, Preston’s wife walked in and noticed an 

uncomfortable feeling in the room. Preston told his wife that K.F. had asked 

him to “rub her,” and he refused. Preston’s wife spoke with K.F. who said

Preston assaulted her. Preston and his wife went to K.F.’s house to speak 

with K.F.’s mother. K.F.’s parents called the police early that morning, 

sometime after 6:00 a.m.

¶5 K.F. underwent a sexual assault exam at the hospital that 

afternoon. The doctor swabbed her left breast, inner vagina, external 

genital area, palms, anus, and mouth for DNA.

¶6 Nearly twenty-four hours after the assault, police interviewed

Preston, who denied K.F.’s allegations. Pursuant to a valid warrant, police 

photographed Preston and collected a buccal swab from him. Police did 

not collect additional DNA samples from Preston and did not arrest him 

that night.

¶7 K.F.’s sexual assault exam revealed Preston’s DNA on the 

swabs from her left breast, and his Y-STR DNA profile from the swabs from 

her external genital area, which matched him and his paternally related 

male relatives. Preston’s DNA was not found on the swabs from K.F.’s 

hands, anus, or inner vagina. 
STATE v. PRESTON

Decision of the Court

3

¶8 The State charged Preston with three counts of sexual conduct 

with a minor: masturbatory contact with penis (count 1), masturbatory 

contact with vulva (count 2), and digital vaginal penetration (count 3); one 

count of kidnapping (count 4); and one count of sexual abuse: sex conduct 

with breast (count 5).

¶9 After a twelve-day trial, the jury acquitted Preston of two 

counts of sexual conduct with a minor (counts 1 and 3) and kidnapping 

(count 4). The jury convicted Preston of sexual abuse (count 5) but could 

not agree on the remaining sexual conduct charge (count 2) and convicted 

him of the lesser-included crime of child molestation. The court sentenced 

Preston to the presumptive seventeen-year term on count 2 and lifetime 

probation for count 5.

¶10 Preston timely appealed from his convictions and sentences. 

We have jurisdiction under Article 6, Section 9, of the Arizona Constitution 

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

DISCUSSION

I. The superior court did not abuse its discretion by denying 

Preston’s request for a Willits instruction.

¶11 Preston contends the superior court committed reversible 

error by denying his request for a Willits instruction on the State’s failure to 

collect “potentially exculpatory” DNA evidence from his clothes, hands, 

and genitals. See State v. Willits, 96 Ariz. 184 (1964). A Willits instruction

permits jurors to draw an adverse inference against the State if they find the 

State “lost, destroyed, or failed to preserve evidence.” Rev. Ariz. Jury Instr. 

(“RAJI”) Stand. Crim. 42 (5th ed. 2019). We review the superior court’s 

denial of a Willits instruction for an abuse of discretion. State v. Glissendorf, 

235 Ariz. 147, 150, ¶ 7 (2014) (citation omitted).

¶12 “Generally, a defendant is entitled to a Willits instruction if: 

(1) the state failed to preserve obviously material and reasonably accessible 

evidence that could have had a tendency to exonerate the accused; and (2) 

there was resulting prejudice.” State v. Hernandez, 250 Ariz. 28, 31, ¶ 10 

(2020). Here, the superior court concluded that collecting additional DNA 

from Preston was not “obviously material” for Willits purposes. We agree. 

Evidence is “obviously material” when, at the time the State encounters the 

evidence, it either “relies on the evidence or knows the defendant will use 

[it] for his or her defense.” Id. at 33, ¶ 16.
STATE v. PRESTON

Decision of the Court

4

¶13 The State did not rely on the uncollected DNA evidence or

know that Preston would use it in his defense. When police interviewed 

Preston, they had already collected swabs from K.F., and Preston told police 

they “100% unequivocally” would not find his DNA on her. Preston, 

therefore, indicated he intended to use the absence of his DNA on the victim

in his defense, but not the absence of the victim’s DNA on him. 

¶14 Preston has also failed to show the uncollected evidence 

tended to exonerate him. As the superior court correctly found, additional

testing would have either revealed the victim’s DNA on Preston, which

would be inculpatory, or no DNA match, which would not be exculpatory. 

See id. at 33-34, ¶¶ 19-21 (holding that absence of DNA at an expected 

location does not tend to exonerate the defendant because, even if guilty,

the defendant “may not have left identifiable DNA.”) (citation omitted).

Accordingly, the superior court did not abuse its discretion in denying 

Preston’s request for a Willits instruction.

II. The superior court did not err by instructing the jury on the 

lesser-included offense of child molestation.

¶15 At the State’s request, and without objection from Preston, the 

superior court instructed the jury that sexual conduct with a minor (counts 

1-3) includes the lesser-included offense of child molestation. Preston now

argues that insufficient evidence supported a jury instruction on child 

molestation as a lesser-included offense of count 2 (masturbatory contact 

with vulva). Because Preston failed to object at trial, we review for 

fundamental error and Preston bears the burden of proving that (1) the trial 

court erred, (2) the error was “fundamental,” and (3) he suffered prejudice 

from the error. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

¶16 The superior court “must” instruct the jury on all lesserincluded offenses of the charged offense if “any party” requests the 

instruction and the evidence supports the instruction. See Ariz. R. Crim. P. 

21.4(a)(1). Sufficient evidence supports a lesser-included instruction if “the 

jury could rationally fail to find the distinguishing element of the greater 

offense.” State v. Detrich, 178 Ariz. 380, 383 (1994).

¶17 Preston concedes that child molestation is a lesser-included 

offense of sexual conduct with a minor. Because the State requested it, the 

court was required to give the instruction where the evidence supported a 

finding that Preston touched, fondled, or manipulated K.F.’s genitals 

without engaging in “masturbatory contact” with her vulva. Compare 

A.R.S. §§ 13-1410(A), and 13-1401(A)(3)(a) (molestation requires proof of 
STATE v. PRESTON

Decision of the Court

5

“touching, fondling or manipulating of any part of the genitals”), with 13-

1405(A), and 13-1401(A)(4) (sexual conduct requires proof of “masturbatory 

contact” with vulva).

¶18 K.F. testified that Preston “forced his hand down [her] pants” 

and “rub[bed] [her] vagina” for “a couple [of] seconds.” The State’s DNA 

expert also testified that K.F.’s external genital swabs contained Preston’s 

DNA profile. The jury, therefore, could have reasonably found that the

brief rubbing K.F. testified to, and the presence of Preston’s DNA on her 

outer genitals, proved molestation that did not rise to masturbatory contact.

See State v. Smith, 242 Ariz. 98, 106, ¶ 31 (App. 2017) (victim’s testimony that 

defendant “rubbed” her genitals, and presence of DNA on victim’s 

underwear was sufficient evidence to support a conviction for child 

molestation). Accordingly, sufficient evidence supported the molestation 

instruction.

III. The superior court did not abuse its discretion by 

precluding testimony from two of K.F.’s juvenile friends 

about their sexual victimization. 

¶19 Preston argues the superior court abused its discretion by 

precluding testimony that two of K.F.’s juvenile friends talked to her about 

their sexual victimization. Preston contends the juvenile friends’ testimony 

was relevant evidence that K.F. fabricated her accusation based on their 

accounts. We review the superior court’s ruling for an abuse of discretion. 

See State v. McGill, 213 Ariz. 147, 156, ¶ 40 (2006) (citation omitted). 

¶20 Evidence is relevant if it has “any tendency” to make a 

consequential fact “more or less probable.” Ariz. R. Evid. 401. The superior 

court has “considerable discretion” to determine the relevance and 

admissibility of evidence. State v. Smith, 136 Ariz. 273, 276 (1983). The court 

may exclude relevant evidence if “its probative value is substantially 

outweighed by a danger of . . . confusing the issues, [or] misleading the 

jury.” Ariz. R. Evid. 403. Irrelevant evidence is inadmissible. Ariz. R. Evid. 

402. 

¶21 Before trial, the State moved to preclude “testimonial 

evidence from [the] juvenile witnesses . . . related to their sexual assault 

cases.” The State argued, among other things, that the evidence was not 

relevant and that the danger of confusing the issues and misleading the jury 

substantially outweighed its probative value. The State conceded that 

Preston could “certainly, cross examine [K.F.] to ask if she knew if either [of 

her juvenile friends] had been abused.” The superior court granted the 
STATE v. PRESTON

Decision of the Court

6

State’s motion and precluded Preston from introducing testimony about the 

juvenile friends’ victimization.

¶22 The superior court ruled on this issue in a minute entry as part 

of the State’s motion in limine. Additionally, at trial, when Preston tried to 

elicit testimony regarding the juvenile friends’ sexual victimization from 

Preston’s wife, the court admonished Preston: “Don’t do that. The ruling 

was pretty clear several times. I wouldn’t do that, if I were you.”

¶23 Preston asserts that the juvenile friends’ testimony was 

“relevant to . . . address the presumption that [K.F.] could not have made 

such detailed allegations unless [he] abused her.” We disagree. The

juvenile friends’ sexual assaults were unlike K.F.’s because one friend was 

orally sexually abused by her grandfather and the other was a victim of a 

juvenile-on-juvenile attack when she was nine years old.

¶24 Additionally, Preston could have cross-examined K.F. about 

whether she knew her juvenile friends had also been sexually abused.

Balancing this against the risk of confusing and misleading the jury into 

evaluating the credibility of the juvenile friends’ sexual assaults rather than 

the evidence before them, we find the court did not abuse its discretion. 

Moreover, any potential error was harmless. See State v. Dixon, 226 Ariz. 

545, 552, ¶ 32 (2011) (finding trial error harmless given the strength of the 

DNA evidence and circumstances implicating the defendant in the crime).

IV. We find no instances of fundamental prosecutorial error. 

¶25 Preston next argues that the prosecutor committed various 

errors during closing argument—the cumulative effect of which denied 

him a fair trial. Because Preston failed to object to the prosecutor’s 

statements he now contends were error, we review for fundamental error. 

See Henderson, 210 Ariz. at 567, ¶ 19.

¶26 We review claims of prosecutorial error by assessing each 

claim individually and, after determining whether any constitute error, we 

assess the “cumulative misconduct to conclude whether the total errors 

resulted in an unfair trial.” State v. Acuna Valenzuela, 245 Ariz. 197, 216, 

¶ 66 (2018) (citation and internal quotation marks omitted). We will reverse 

only if (1) the prosecutor committed error and (2) a “reasonable likelihood” 

exists “that the misconduct could have affected the jury’s verdict,” thereby 

denying the defendant his due process right to a fair trial. Id. We address 

each of Preston’s claims in turn. 
STATE v. PRESTON

Decision of the Court

7

a. Burden-shifting

¶27 Preston argues that the prosecutor shifted the burden of proof 

regarding the absence of DNA by suggesting he had a duty to collect 

evidence in his defense. We disagree.

¶28 In his interview with police, Preston said he could not 

remember what underwear he wore during the alleged assault. At trial, 

however, Preston testified that when police interviewed him, he was still 

wearing the same underwear he wore during the incident. The prosecutor

argued in closing argument that if Preston had been wearing the same 

underwear during the interview “as he suggested during his testimony, he 

would’ve turned it all over. He would’ve remembered and given [police] 

the underwear.”

¶29 Preston’s testimony contradicted his earlier statement to 

police that he did not remember what underwear he was wearing during 

the incident and opened the door to attacks on his credibility. See State v. 

Alvarez, 145 Ariz. 370, 373 (1985) (prosecutorial comments are proper when 

they are a fair rebuttal to areas opened by the defense). 

¶30 Further, the parties and the court correctly informed the jury 

that the State bears the burden of proving every element of the offense and 

the “defendant is not required to produce evidence of any kind.” Thus,

even if error occurred, it was harmless. See Acuna Valenzuela, 245 Ariz. at 

220, ¶ 91 (no prejudice from prosecutor’s stray burden-shifting argument 

when the parties and court properly instructed the jury on the burden of 

proof); see also State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160 (1987) 

(“To the extent that the prosecutor’s statement in rebuttal closing argument 

may have implied that defendant had the burden of proof, however, the 

trial court’s cautionary instruction to the jury was sufficient to cure any 

harm.”). 

b. Lesser-included offense

¶31 Preston contends the prosecutor erred by arguing the jury 

could “find molestation of a child” on count 2 if they “hav[e] difficulty 

deliberating” on whether “the touch . . . rise[s] to the level of masturbatory 

conduct,” and conclude instead it was “merely touching.” For the reasons 

discussed above, the court correctly instructed the jury on the lesserincluded offense of molestation. See supra at ¶ 21. Therefore, the 

prosecutor’s argument was not an error but a true statement of law. See 

State v. LeBlanc, 186 Ariz. 437, 438 (1996) (“[T]he jury may deliberate on a 

lesser offense if it either (1) finds the defendant not guilty on the greater 
STATE v. PRESTON

Decision of the Court

8

charge, or (2) after reasonable efforts cannot agree whether to acquit or 

convict on that charge.”). 

c. Precluded evidence

¶32 Preston claims the prosecutor violated the court’s order 

precluding evidence about K.F.’s juvenile friends’ sexual assaults. He cites 

the part of the prosecutor’s closing argument where she argued it did “not 

make sense” that a twelve-year-old would not only make up the allegations 

against Preston but that she would “know about DNA, how to find invisible 

DNA” and plant the corroborating DNA evidence on her body. But the 

prosecutor’s argument did not refer to K.F.’s imaginative ability or 

inspiration for fabricating the allegation, as Preston contends. Rather, it 

attacked the credibility of Preston’s fabrication theory considering the DNA 

evidence against him. Thus, the argument did not violate the court’s order 

because it did not venture into K.F.’s ability to make up the allegation 

without input from her juvenile friends.

d. Vouching

¶33 Preston argues the prosecutor “vouched for the testimony of 

the state’s witnesses.” Prosecutorial vouching occurs either when the 

prosecutor (1) “places the prestige of the government behind its witness” 

or (2) “suggests that information not presented to the jury supports the 

witness’s testimony.” State v. Johnson, 247 Ariz. 166, 204, ¶ 157 (2019). At 

trial, Preston’s mother-in-law testified that she “had not prepared” her 

niece to talk to the police alone. Referring to that testimony, the prosecutor 

argued that the jury should “ask [themselves] . . . [d]o you have to prepare 

someone to tell the truth? No, absolutely not.” Later, the prosecutor asked 

the jury to consider “how the defendant’s witnesses were given copies of 

their transcripts” before testifying, unlike the victim.

¶34 Preston contends these arguments constituted impermissible 

vouching. We disagree. The arguments properly questioned the substance 

of the witnesses’ testimony. Neither statement placed the prestige of the 

government behind a witness or suggested that information not presented 

to the jury supported a witness’s testimony. Instead, the prosecutor 

correctly asked the jury to make a credibility determination based on the 

evidence in the record. See State v. Hill, 174 Ariz. 313, 322 (1993) (“We have 

consistently held that wide latitude is to be given in closing arguments and 

that counsel may comment on the evidence and argue all reasonable 

inferences therefrom.”). 
STATE v. PRESTON

Decision of the Court

9

¶35 In closing, the prosecutor also argued it was “almost 

impossible” for Preston to answer questions without his attorney “feeding 

him the entire question and answer.” She explained that “[t]here were 

times that [she] objected as leading, not as many times as [she] could’ve, 

but [she] really wanted to draw [the jury’s] attention to those points in time 

where the defendant and witnesses were being led to their answers.” This 

was an improper comment because the prosecutor’s non-objections were 

not in the record. See State v. Johnson, 247 Ariz. 166, 182, ¶ 24 (2019) 

(“Counsel may not, however, comment on matters which were not 

introduced in evidence”) (citation omitted). The court, however, instructed 

the jury that a lawyer’s argument is not evidence and to “[d]etermine the 

facts only from the . . . testimony of witnesses and the exhibits introduced 

in court.” We presume the jury followed the court’s instructions. State v. 

Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Accordingly, the prosecutor’s

improper statement did not constitute fundamental error.

e. Cumulative error

¶36 Preston asks this court to reverse his convictions and 

sentences based on the cumulative effect of the prosecutor’s errors. We 

consider whether “persistent and pervasive” error occurred and whether 

the “cumulative effect of the [errors] shows that the prosecutor 

intentionally engaged in improper conduct and did so with indifference, if 

not a specific intent, to prejudice the defendant.” State v. Morris, 215 Ariz. 

324, 339, ¶ 67 (2007) (citation and internal quotation marks omitted).

Because we find only one instance of non-prejudicial error, we cannot 

conclude the prosecutor engaged in “persistent and pervasive” 

misconduct.

V. The court’s COVID-19 protocols did not violate Preston’s 

confrontation rights. 

¶37 Preston claims that COVID-19 protocols during his trial 

violated his confrontation rights. See U.S. Const. amend. VI; see Ariz. Const. 

art. 2 § 24. He argues the superior court erred by erecting plexiglass 

barriers, using an audio-system to transmit sound, and requiring testifying 

witnesses to wear a transparent face shield. Because Preston failed to object 

at trial, we review for fundamental error. See Henderson, 210 Ariz. at 567, 

¶ 19. 

¶38 A defendant’s right to confront witnesses may be satisfied 

absent a traditional face-to-face confrontation when: (1) “denial of such 

confrontation is necessary to further an important public policy,” and (2) 
STATE v. PRESTON

Decision of the Court

10

“the reliability of the testimony is otherwise assured.” Maryland v. Craig,

497 U.S. 836, 850 (1990) (citation omitted). The reliability of the testimony 

is assured when witnesses are physically present, testify under oath, are 

subject to cross-examination, and can be seen by the trier of fact. Id. at 846. 

¶39 Even assuming the COVID-19 protocols denied Preston a 

“traditional face-to-face confrontation,” which this record does not support, 

his confrontation rights were nevertheless satisfied. First, the protocols 

were necessary to combat the spread of COVID-19 per an Arizona Supreme 

Court order. See Ariz. Sup. Ct. Admin. Order No. 2020–75 (May 8, 2020). 

Second, the reliability of the witnesses’ testimony was assured. Every 

witness testified under oath. Preston was present in the courtroom and 

cross-examined each witness who testified against him. The witnesses 

wore transparent face shields and could be seen by the jury, Preston, and 

the court. Accordingly, the superior court did not violate Preston’s 

confrontation rights. See State ex rel. Montgomery v. Padilla, 237 Ariz. 263, 

269, ¶ 19 (App. 2015) (“[W]hen a defendant is represented by counsel, his 

confrontation rights are satisfied if he is in the courtroom and can face the 

witness while his counsel conducts cross-examination.”). 

VI. The superior court appropriately sentenced Preston to the 

presumptive term on count 2. 

¶40 Finally, Preston argues the superior court improperly 

considered his rejected plea offer and lack of remorse when sentencing him 

to the presumptive term for child molestation (count 2). Generally, a court 

violates a defendant’s privilege against self-incrimination when it considers 

his lack of remorse in sentencing. See State v. Trujillo, 227 Ariz. 314, 318, 

¶ 14 (App. 2011). We review sentencing determinations for an abuse of 

discretion. State v. Vermuele, 226 Ariz. 399, 403, ¶ 15 (App. 2011).

¶41 At sentencing, the court asked about a plea the State offered

to Preston carrying a sentence of lifetime probation. After hearing from 

both parties, the court told Preston that he could have avoided prison time 

by accepting the plea, but “that was never going to happen because you 

have no remorse.” The court said Preston would have been eligible for 

probation if he had “accepted responsibility, but that’s neither here nor 

there now.”

¶42 The court then made its aggravation findings. It listed 

Preston’s significant family support, lack of criminal history, and 

amenability to treatment as mitigating factors, and the significant impact

on the victim as an aggravator. Balancing these factors, the court 
STATE v. PRESTON

Decision of the Court

11

determined “the aggravating and mitigating circumstances don’t require 

anything other than the presumptive term.”

¶43 To be sure, a better practice in sentencing is to not discuss the 

absence of remorse. See State v. Hardwick, 183 Ariz. 649, 656 (App. 1995) 

(“[I]t would be irrational or disingenuous” to expect a defendant “who 

maintains his innocence to express contrition or remorse. A convicted 

defendant’s decision not to publicly admit guilt is irrelevant to a sentencing 

determination, and the trial court’s use of this decision to aggravate a 

Defendant’s sentence offends the Fifth Amendment privilege against selfincrimination.”). Here, however, when the court listed the factors it 

weighed in mitigation and aggravation, it did not include lack of remorse. 

Insofar as the court improperly considered lack of remorse, it ultimately 

refrained from finding it to be an aggravating factor. On this record, 

therefore, it is clear that any error in sentencing was harmless. See Trujillo, 

227 Ariz. at 318, ¶ 13 (we will uphold a sentencing determination when the 

record “clearly show[s] that the trial court would have reached the same 

result even without consideration of the factor.”) (citation omitted). 

CONCLUSION

¶44 We affirm.