THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

OROZCO, Judge.

¶1 Chad Jarrett Weitherow appeals his convictions and sentences for ten counts of kidnapping, eight counts of aggravated assault, five counts of armed robbery, three counts of attempted armed robbery, four counts of attempted aggravated robbery, two counts of first degree burglary, two counts of misconduct involving weapons and one count each of arson of an occupied structure, criminal damage and assisting a criminal street gang. Weitherow argues the trial court erred when it: admitted hearsay statements of a serologist and two of Weitherow's accomplices; precluded cross-examination regarding whether one of Weitherow's accomplices had committed rape; admitted evidence of Weitherow's three prior felony convictions; admitted two photographs of Weitherow; and failed to strike the entire panel of prospective jurors during voir dire. Finally, Weitherow argues the evidence was insufficient to permit the jury to find he committed many of the offenses in an especially cruel manner. For the reasons that follow, we affirm Weitherow's convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 The State alleged Weitherow and several accomplices committed three violent home invasion robberies. During the invasions, Weitherow terrorized, beat, threatened to kill the occupants and demanded money and drugs from the occupants. During the third home invasion, the occupants escaped. When police arrived while Weitherow was still inside, Weitherow set fire to the residence and was eventually arrested by law enforcement officers.

¶3 The State charged Weitherow with sixty counts alleging kidnapping, aggravated assault, armed robbery, attempted armed robbery, aggravated robbery, attempted aggravated robbery, first degree burglary, arson of an occupied structure, criminal damage, misconduct involving weapons, endangerment and participating in or assisting a criminal street gang. The trial court dismissed two counts prior to trial and granted Weitherow's motion for judgment of acquittal on a third after the State rested. A jury acquitted Weitherow of twenty counts alleging kidnapping, first degree burglary, aggravated assault, armed robbery, aggravated robbery, endangerment, misconduct involving weapons and participating in a criminal street gang, including all counts related to the first home invasion. The jury convicted Weitherow of the remaining thirty-seven counts. The jury further found that Weitherow committed the offenses while he was on parole; had prior felony convictions; committed the offenses to promote, further or assist a criminal street gang; and that there were numerous aggravating factors for sentencing purposes. The trial court sentenced Weitherow to aggregate terms totaling more than two hundred years' imprisonment. Weitherow filed a timely appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010) and -4033.A.1 (2010).

DISCUSSION

Admission of Information from the Serologist

¶4 A criminalist testified regarding her analysis of various items of DNA evidence. During her testimony, the criminalist explained that before performing a DNA analysis the laboratory uses serology to make a preliminary determination of whether the evidence submitted contains blood, semen or cellular material. The criminalist explained how the laboratory conducted the preliminary serology tests even though she did not conduct those tests in this case. R.L.H., who worked with the criminalist, conducted the preliminary serological tests to determine whether the samples contained cellular material. In her testimony, the criminalist went through each item of evidence submitted for DNA analysis and told the jury whether R.L.H. did or did not find cellular material in each of those samples. Once she identified the items of evidence for which R.L.H. found cellular material, the criminalist testified regarding her independent analysis of the DNA found within the cellular material and whether she was able to identify a match. R.L.H. did not testify at trial.

¶5 Weitherow contends the trial court erred when it allowed the criminalist who conducted the DNA analysis to testify regarding the preliminary work conducted by R.L.H. He argues that by doing so, the trial court denied him the right to confront R.L.H. See U.S. Const. amend. VI.

¶6 Ordinarily, we review an evidentiary issue that implicates the Confrontation Clause de novo. See State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006). Weitherow, however, raised no objection below. "A party must make a specific and timely objection at trial to the admission of certain evidence in order to preserve that issue for appeal." State v. Hamilton, 177 Ariz. 403, 408, 868 P.2d 986, 991 (App. 1993). Absent a finding of fundamental error, failure to raise an issue at trial waives the issue on appeal. State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). "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 if the defendant establishes fundamental error, however, the defendant must still demonstrate the error was prejudicial. Id. at ¶ 26.

¶7 We find no error, fundamental or otherwise. "[W]e repeatedly have held that the Confrontation Clause is not violated when an expert bases testimony on data provided by others who are not subject to cross-examination . . . as long as the testifying expert does not simply act as a conduit for another non-testifying expert's opinion." State v. Gomez, 226 Ariz. 165, 169-70, ¶ 22, 244 P.3d 1163, 1167-68 (2010) (citation and internal quotation marks omitted). Here, the only "data" from R.L.H. that the criminalist relied upon was whether the evidentiary samples contained cellular material and, in some instances, whether preliminary tests showed the cellular material was blood. If the sample contained cellular material, the criminalist performed her own independent DNA analysis and formed her own opinions based on her own work. If the sample did not contain cellular material, the criminalist did not analyze the sample. The criminalist did not become a "conduit" for any opinions of R.L.H. Under these circumstances, the criminalist's references to preliminary work performed by R.L.H. did not violate the Confrontation Clause. See Id. at 170, ¶ 24, 244 P.3d at 1168.

Admission of the Statements of McLennan and Padilla

¶8 Weitherow contends the trial court erred when it admitted the hearsay statements of his accomplices, McLennan and Padilla. We review a trial court's evidentiary rulings for an abuse of discretion. State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990).1

¶9 McLennan and Padilla both asserted their Fifth Amendment right not to testify. See U.S. Const. amend. V. In anticipation of this, the State filed a motion in limine to admit some of the statements of McLennan and Padilla as the adoptive admissions of Weitherow. The trial court granted the motion and admitted the statements as the adoptive admissions of Weitherow pursuant to Arizona Rule of Evidence 801(d)(2)(B). The court further found the statements were "non-testimonial" and, therefore, exempt from the requirements of the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 821 (2006) (non-testimonial hearsay is not subject to Confrontation Clause scrutiny).

¶10 The statements of McLennan and Padilla came in through two of Weitherow's other accomplices, Cannon and Liewer. Cannon testified that on the night of the incidents, McLennan and Padilla explained to him that in the first home invasion they attempted to rob someone they believed was a drug dealer, but they went to the wrong house. As part of this conversation, Weitherow stated that they did not get anything during the attempted robbery.2 Cannon further testified that he went with McLennan, Padilla and Weitherow to the second house and waited outside while they committed the second home invasion. Cannon testified that Padilla later told him they kicked in the door during the second home invasion, held those victims at gunpoint and Padilla beat one of those victims. As part of this conversation, Weitherow stated they "came up," this was what he lived for and that robbing people was his "drug of choice."3

¶11 Liewer testified that on the night of the incidents, he drove McLennan, Padilla, Weitherow and Cannon to the location of the second home invasion, where Liewer waited in his car. Liewer testified that, after the second home invasion, Padilla said he had pistol whipped one of the victims, to which Weitherow added that he "live[d] for this." Liewer further testified that when Weitherow indicated he needed more money, Padilla told Weitherow where he could get $200 and Liewer then drove Weitherow to the third home. Weitherow told Liewer that if he left him at the third house, he would shoot him, and if there was not any money in the house, he would shoot Padilla.

¶12 We find no abuse of discretion in the admission of the statements of McLennan or Padilla. An admission by a defendant is not hearsay. Ariz. R. Evid. 801(d)(2)(A). A statement by a third party offered against a defendant who has "manifested an adoption or belief in [the statement's] truth" is similarly not hearsay. Ariz. R. Evid. 801(d)(2)(B). "Adoption occurs when a defendant affirmatively agrees to statements made in his presence, or expounds on the statements by adding his own `explanations and comments.'" State v. Anderson, 210 Ariz. 327, 339, ¶ 36, 111 P.3d 369, 381 (2005). Here, Weitherow adopted the statements of McLennan and Padilla, made in his presence, when he agreed with their statements and expounded on the statements by adding his own explanations or comments. As Weitherow's adopted admissions, the statements were not hearsay.

¶13 While Weitherow also makes the blanket assertion that it is fundamental error to admit the out-of-court statements of a witness who has asserted a right not to testify, he cites no authority for this proposition. To the contrary, the Rules of Evidence and Arizona case law recognize the out-of-court statements of a declarant who asserts the Fifth Amendment privilege may be admissible. See Ariz. R. Evid. 804(a)(1) (for purposes of the admission of hearsay pursuant to Rule 804, a declarant is unavailable if they are exempt from testimony based on the grounds of privilege); State v. Nieto, 186 Ariz. 449, 454, 924 P.2d 453, 458 (App. 1996) (a declarant who asserts a Fifth Amendment right not to testify is "unavailable" for purposes of Arizona Rule of Evidence 804).

Preclusion of Cross-Examination Regarding a Prior Rape

¶14 Cannon testified on cross-examination that Padilla was a "nice guy" but agreed nice guys do not kick in doors and rob people. Weitherow then asked Cannon, "And [Padilla] raped a fifteen-year-old girl, correct?" The State objected based on relevance and the trial court sustained the objection. Weitherow then asked, "Did [Padilla] ever tell you of anything that happened between him and a fifteen-year-old girl?" The State again objected based on relevance and the court sustained the objection. The parties did not address the matter any further.

¶15 On appeal, Weitherow argues the trial court erred when it sustained the State's objections to these two questions. Weitherow argues the court should have allowed him to ask Cannon these questions so that he could impeach certain of Padilla's unspecified statements. Weitherow further argues that the trial court denied him the right to confrontation.

¶16 The trial court has considerable discretion to determine the extent of cross-examination and may reasonably limit its scope. State v. Doody, 187 Ariz. 363, 374, 930 P.2d 440, 451 (App. 1996). We review a court's restriction of the scope of cross-examination "to determine whether the court unduly inhibited the defendant's ability to present information bearing on issues or on the credibility of witnesses." Id. "[W]e will not disturb the court's ruling absent a clear showing of prejudice." Id.

¶17 The trial court did not abuse its discretion when it sustained the objections. First, Wietherow never offered any proof that Padilla ever raped anyone.4 If such proof exists, there is nothing in the record to indicate any party presented it to the trial court, and it is not contained in the record on appeal. It is improper to ask a question which implies the existence of a prejudicial factual predicate if the examiner cannot support the question by evidence. State v. Holsinger, 124 Ariz. 18, 20-22, 601 P.2d 1054, 1056-58 (1979). Second, the trial court properly sustained the relevance objection because "evidence of sexual misconduct is not probative of truthfulness." State v. Oliver, 158 Ariz. 22, 31, 760 P.2d 1071, 1080 (1988). Finally, Weithrow suffered no prejudice because the credibility of Cannon's testimony that Padilla was a "nice guy" had already been seriously undercut by evidence not challenged on appeal. Cannon testified about how Padilla had participated in at least two violent, armed home invasions and how Padilla had personally beaten victims. It was properly within the trial court's discretion to limit further cross-examination regarding Cannon's statement that Padilla was a "nice guy."

Admission of Three Prior Convictions

¶18 Weitherow next contends the trial court erred when it admitted all three of his prior felony convictions to prove the charges of misconduct involving weapons rather than limit the evidence to only one prior conviction. Weitherow argues the admission of all three was unduly prejudicial because the jury considered the prior convictions "as evidence in the other counts, or for some other prohibited purpose." Weitherow further argues the trial court erred when it failed to give the jury an instruction limiting their consideration of the evidence of the prior convictions. We review the admission of evidence for an abuse of discretion. Amaya-Ruiz, 166 Ariz. at 167, 800 P.2d at 1275. Because Weitherow failed to request a limiting instruction, however, we review the failure to give a limiting instruction for fundamental error. See State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986).

¶19 The State charged Weitherow with three counts of misconduct involving weapons pursuant to A.R.S. § 13-3102.A.4 (Supp. 2011).5 This section provides, in relevant part, that a person commits misconduct involving weapons if the person knowingly possesses a deadly weapon and the person is a "prohibited possessor." A.R.S. § 13-3102.A.4. As charged in this case, a "prohibited possessor" is a person who has been convicted of a felony and whose civil right to possess or carry a gun or firearm has not been restored. A.R.S. § 13-3101.A.7(b) (Supp. 2011). Weitherow claimed he was willing to stipulate that he was a prohibited possessor, yet he refused to stipulate that he had a prior felony conviction. The State agreed to stipulate only if Weitherow agreed to stipulate to every element of the offense. Weitherow refused.

¶20 The trial court noted a prior felony conviction was an element of the offense and, citing State v. Lopez, 209 Ariz. 58, 59-60, ¶¶ 4-8, 97 P.3d 883, 884-85 (App. 2004), noted the court could not force the State to stipulate. The trial court held that, under these circumstances, it would allow the State to introduce evidence of all three of Weitherow's prior felony convictions. The court "sanitized" evidence of those convictions so that the jury would know nothing more than Weitherow had three prior felony convictions and that one of those convictions was for unlawful flight. Weitherow asked the court to limit the evidence solely to the conviction for unlawful flight, but the State objected. The trial court denied Weithrow's request, stating, "I appreciate the request, but I'm having a tough time seeing a great difference in the prejudicial effect between one felony prior conviction and three, in light of the allegations of the case and the evidence being presented."

¶21 We find no error. Abuse of discretion is "an exercise of discretion which is manifestly unreasonable, exercised on untenable grounds or for untenable reasons." State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487, 489 (App. 1992) (citation omitted). To admit evidence of three prior felony convictions rather than one under these circumstances did not amount to an abuse of discretion. This is especially true here where the only prior offense identified was for felony flight and the court sanitized all other information regarding all three prior convictions. Further, Weitherow's speculation that the jury considered the additional two prior felony convictions "as evidence in the other counts, or for some other prohibited purpose" is contrary to the record. Of the sixty counts charged, the jury acquitted Weitherow of twenty counts, including one count of misconduct involving weapons. These verdicts show the jury was not unduly influenced by the evidence of two additional, sanitized prior convictions or otherwise confused about the proper use of that evidence.

¶22 Also, the trial court did not commit fundamental error in failing to give a limiting instruction sua sponte. In this case, the failure to request a limiting instruction "constitutes a waiver of any right to the instruction." State v. Taylor, 127 Ariz. 527, 531, 622 P.2d 474, 478 (1980). Accordingly, there was no fundamental error on this point.

Sufficiency of the Evidence of Cruelty

¶23 As an aggravating factor for sentencing purposes, the jury found that Weitherow committed thirty-three of the thirty-seven offenses in an especially cruel manner. See A.R.S. § 13-701.D.5 (Supp. 2012) (that the offense was committed in an especially cruel manner may be an aggravating factor for sentencing purposes). Weitherow argues the evidence was insufficient to find he committed the offenses in an especially cruel manner. Weitherow argues "there was no evidence of cruelty, in part, because there was no death." He further argues that the violence committed during the offenses was not excessive but was what "would normally be found in the completion of a burglary."

¶24 First, we summarily dispose of the argument that there was no evidence of cruelty because none of the victims died. The Arizona criminal sentencing scheme expressly provides that whether the defendant committed the offense in an especially cruel manner may be considered as an aggravating factor for sentencing purposes in a non-capital felony case. See A.R.S. § 13-701.D.5. A victim's death is not a prerequisite to the consideration of that aggravating factor. The cases relied upon by Weithrow are unavailing because they address aggravating factors in the context of capital cases governed by A.R.S. § 13-751.F (2010).

¶25 Next, of the thirty-three offenses the jury found Weitherow committed in an especially cruel manner, it is necessary to address this issue only in the context of the two counts of first degree burglary. Because of a confluence of sentencing factors, the sentences the trial court imposed for the thirty-one other "cruel" counts were, as acknowledged by the trial court at sentencing, the minimum sentences the court could impose.

¶26 All thirty-one of the other "cruel" offenses were "dangerous" offenses, either by definition or as found by the jury. Further, Weitherow had three prior convictions, two of which were for armed robbery, itself a dangerous offense. Therefore, the court sentenced Weitherow for these thirty-one dangerous offenses pursuant to the "dangerous offender" provisions of A.R.S. § 13-704.C and E (2010). The jury also found Weitherow committed the offenses while he was on parole or community supervision. This made the maximum sentence available pursuant to A.R.S. § 13-704 the minimum sentence the trial court could impose for these thirty-one offenses. See A.R.S. § 13-708.B (Supp. 2011). The jury also found Weitherow committed the offenses to promote, further or assist criminal conduct by a criminal street gang. This increased the maximum sentences for the class 2 and 3 felonies by five years and the class 4 felonies by three years. See A.R.S. § 13-709.02 (Supp. 2011).

¶27 For these reasons, when the trial court imposed the enhanced maximum sentence for each of the thirty-one dangerous offenses the jury found Weitherow committed in an especially cruel manner, the court sentenced Weitherow to the minimum sentence available for each of those counts for reasons independent of the "cruel" finding. Therefore, the jury's identification of aggravating factors played no role in the court's determination of the appropriate sentence for those thirty-one counts.

¶28 Regarding the two non-dangerous counts of first degree burglary, we will affirm a jury's determination that an aggravating factor exists if the record contains substantial evidence to support the jury's finding. State v. Gunches, 225 Ariz. 22, 25, ¶ 14, 234 P.3d 590, 593 (2010). "Substantial evidence" is proof that reasonable persons could accept as sufficient to prove the aggravating factor exists beyond a reasonable doubt. Id. In our review of the record, we view the facts in the light most favorable to sustaining the jury's determination. Id. Our courts have defined "cruel" as disposed to inflict pain, especially in a wanton, insensate, vindictive or sadistic manner. State v. Stanhope, 139 Ariz. 88, 94, 676 P.2d 1146, 1152 (App. 1984) (citation omitted). Cruelty involves the pain and distress a defendant visits upon the victim. Id. Cruelty also includes a victim's uncertainty about his or her ultimate fate. State v. Hargrave, 225 Ariz. 1, 17, ¶ 70, 234 P.3d 569, 585 (2010).

¶29 The record contains sufficient evidence to support the jury's determination that Weitherow and his accomplices committed the two counts of first degree burglary in an especially cruel manner. As charged in this case, a person commits first degree burglary if that person enters or remains unlawfully in a residential structure with the intent to commit a theft or felony therein, and that person or an accomplice possesses a deadly weapon or dangerous instrument. A.R.S. § 13-1508.A (2010).

¶30 For count 30, which involved the second home invasion, Weitherow and his accomplices did not merely enter a residential structure while armed with deadly weapons with the intent to commit a theft or felony. They kicked in the door of the home, burst inside and demanded money and drugs as they beat the victims with their handguns and dragged them around the house, one of whom they dragged by her hair. Weitherow and his accomplices held their handguns to the heads and/or faces of the victims and told them they would kill them if they did not cooperate. They threatened to kill other victims if one victim did not give them what they wanted. If a victim went to the floor while being beaten, Weitherow and/or his accomplices would kick him as he lay on the ground. They beat one victim so badly the victim eventually slipped and fell in his own blood. They continued to beat one victim even after he gave them all he had. Another victim believed Weitherow and his accomplices would kill everyone in the house and pleaded with them and began to pray. When they took another victim and threw her on a bed, she believed they would rape her and decided she would rather be shot in the head than raped. By the time of trial, some of these victims still suffered from panic attacks, flashbacks and/or nightmares.

¶31 For count 41, the third home invasion, Weitherow again did not simply enter a residential structure while armed with a deadly weapon with the intent to commit a theft or felony. Weitherow broke into the house and held the victims at gunpoint. Weitherow held one victim by the hair as he pistol whipped her. When that victim tried to prevent Weitherow from entering her child's bedroom, Weitherow struck her with his gun, entered the child's bedroom and pointed his gun at the child. When the victim threw herself across her child, Weitherow grabbed the victim by the hair and dragged her out of the bedroom and down the hall, telling her that if he found anyone else in the house, he would kill her. Because the victim knew Weitherow would discover another adult in the house, she believed Weitherow would kill everyone, including her child. Once Weitherow found the other adult, Weitherow beat him on the head and face with his handgun. That victim believed Weitherow would kill him.

¶32 This evidence was more than sufficient to permit the jury to find beyond a reasonable doubt that Weitherow and/or his accomplices committed the two burglaries in an especially cruel manner.

The Admission of Two Photographs

¶33 Weitherow next asserts that the trial court erred when it admitted two photographs, exhibits 59 and 73. Exhibit 59 depicted Weitherow, another adult male and two boys performing what an expert witness identified as a "Hitler salute." The expert further testified Weitherow and the other man were wearing clothing and colors typically worn by a white supremacist gang known as the "Vinland Boot Boys." Exhibit 73 depicted Weitherow in similar clothing sitting on a couch with other people and a flag on the wall behind them. While part of the photograph had been obscured, the expert testified the flag on the wall was a Nazi flag. Both pictures were taken within ten days of the home invasions. On appeal, Weitherow argues these two photographs were highly prejudicial, inflammatory and irrelevant.6

¶34 We review the admission of photographs for an abuse of discretion. State v. Montano, 204 Ariz. 413, 425, ¶ 55, 65 P.3d 61, 73 (2003). "Photographs are relevant when they aid the jury in understanding an issue in the case." State v. Jones, 203 Ariz. 1, 9, ¶ 28, 49 P.3d 273, 281 (2002). In our determination of whether a trial court erred in the admission of a photograph, we examine "`the photograph's relevance, its tendency to inflame the jury, and its probative value compared to its potential to cause unfair prejudice.'" State v. Morris, 215 Ariz. 324, 339, ¶ 69, 160 P.3d 203, 218 (2007) (quoting State v. Hampton, 213 Ariz. 167, 173, ¶ 17, 140 P.3d 950, 956 (2006)). The trial court may admit inflammatory photographs so long as they are relevant and not admitted for the sole purpose of inflaming the jury. Id. at ¶ 70. "The [S]tate `cannot be compelled to try its case in a sterile setting.'" State v. Bocharski, 200 Ariz. 50, 56, ¶ 25, 22 P.3d 43, 49 (2001) (citation omitted).

¶35 The trial court did not abuse its discretion when it admitted exhibits 59 and 73. The State charged Weitherow with three counts of participating in or promoting a criminal street gang. As charged in this case, the State had to prove Weitherow incited or induced others to engage in violence or intimidation with the intent to promote or further the criminal objectives of a criminal street gang; that he furnished advice or direction in the conduct of a criminal street gang's affairs with the intent to promote or further those objectives; or that he committed a felony offense for the benefit of, at the direction of or in association with any criminal street gang. A.R.S. § 13-2321 (2010). Photographs which depicted Weitherow wearing the clothing and/or regalia of a known criminal street gang, making gestures associated with that gang and in the presence of symbols associated with that gang were relevant to prove those charges. This is especially so when those photographs were taken just days before the offenses were committed.

¶36 The record also shows the two photographs had no unfairly prejudicial or unduly inflammatory effect on the jury. As noted above, the jury acquitted Weitherow of twenty of the charged offenses, including one of the three counts of participating in a criminal street gang.

Voir Dire

¶37 Weitherow contends the trial court erred when it failed to strike the entire panel of prospective jurors based on statements some prospective jurors and the trial court made during voir dire. Weitherow argues the jurors' responses to questions and the trial court's "encouragement" of a juror were "excessive and prejudiced the entire panel." Weitherow further argues a misstatement of the trial court merited striking the entire panel. Ordinarily, we review the method of voir dire for abuse of discretion. State v. Canez, 202 Ariz. 133, 148, ¶ 37, 42 P.3d 564, 579 (2002). Weitherow, however, raised none of these objections at trial. The failure to object to the jury selection process constitutes waiver of that issue. State v. Trostle, 191 Ariz. 4, 12, 951 P.2d 869, 877 (1997).

The Statements of Prospective Jurors

¶38 Weitherow identifies fourteen prospective jurors he claims tainted the entire panel when they provided excessive detail in their answers during voir dire.7 During voir dire:

Juror "C1" told the court about her arrest and conviction for aggravated assault, the date and location of the incident and her successful completion of probation. She further stated she would favor one side over the other.

Juror "S" told the court about being robbed twice at gunpoint, when the incident happened and his robber's conviction. He also explained he had family and friends in law enforcement who discussed difficulties dealing with criminals. Finally, Juror "S" stated it was not a "good sight" looking down the barrel of a gun, that it was something that would stick in his mind and that his experience would make it difficult for anyone charged with using a gun against another person.

Juror "R" informed the court his cousin was killed in a gang shooting in California four years earlier. Juror "R" stated that, as a result, he would favor one side over the other.

Juror "P" had been attacked in her home and was still afraid. She never pressed charges because someone threatened her life if she did so. She informed the court this would affect her ability to be fair and impartial.

Juror "N" stated that he had lost friends in a recent, local murder. He explained that those events would make it difficult for him to be fair and impartial and that he would not be a good juror in this case.

Juror "M1" explained that a gang killed her son-in-law the previous year and that this would affect her ability to be fair and impartial.

Juror "B" had a son and grandson in prison for crimes similar to those charged in this case, and her son was a white supremacist. Juror "B" stated that the way their cases were handled would cause her to favor one side over the other.

Juror "M2" had a relative whose father was killed in a drive-by shooting several years prior. Juror "M2" explained the gang allegations in this case would make it impossible for her to make a decision based solely on the evidence and that she would think only of her family during the trial.

Juror "H1" stated the ex-boyfriend of his current girlfriend is a white supremacist who has harassed and threatened his girlfriend. Juror "H1" stated that as a result of this, he could not be fair and impartial.

Juror "H2" was a victim of a home invasion committed by members of a white supremacist gang.

Juror "H3" explained his best friend had been killed in a drive-by shooting eight years earlier and that he would favor one side over the other.

Juror "C2" knew one of the codefendants and his family, knew about that codefendant's criminal past, knew several other witnesses and explained that based on this knowledge, he had already made a decision and could not be fair.

Juror "DC" explained how his father had been shot and wounded by a gang, how he does not like gangs, and that it would be difficult for him to be fair and impartial.

Juror "V" explained that he and his wife were the victims of a break-in earlier that year and that he would favor one side over the other and would have difficulty being objective. He further explained he understood how people could be "very terrified of those things."

The trial court struck each of these fourteen jurors for cause.

¶39 "The purpose of voir dire examination is to determine whether prospective jurors can fairly and impartially decide the case at bar[.]" State v. Baumann, 125 Ariz. 404, 409, 610 P.2d 38, 43 (1980). The trial court is in the best position to observe the demeanor of potential jurors, evaluate their credibility and assess whether they can be fair and impartial. State v. Purcell, 199 Ariz. 319, 323, ¶¶ 8-9, 18 P.3d 113, 117 (App. 2001). "When there is reasonable ground to believe that a juror cannot render a fair and impartial verdict, the court, on its own initiative, or on motion of any party, shall excuse the juror from service in the case." Ariz. R. Crim. P. 18.4.b.

¶40 We find no error, fundamental or otherwise, in the failure to strike the entire panel for cause based on the answers these jurors provided during voir dire. These jurors did nothing more than answer the questions asked of them, candidly explaining how their personal experiences and events in their lives or the lives of their family or friends would affect their ability to be fair and impartial in this particular trial. None of their answers were in any way excessive, histrionic or gratuitous. None of the jurors provided any information or made any statements that were remotely problematic. Further, a juror's inability to render a fair and impartial verdict will not be presumed, but must appear affirmatively from the record. State v. Sharp, 193 Ariz. 414, 422, ¶ 26, 973 P.2d 1171, 1179 (1999). Weitherow identifies nothing in the record that suggests these jurors' responses tainted the entire panel of prospective jurors, let alone the jurors ultimately selected to serve, and our review of the record reveals nothing to support Weitherow's allegations.

The Trial Court's Statements

¶41 Weitherow also argues that two statements of the trial court tainted the panel of prospective jurors to such an extent that the court should have struck the entire panel. Again, Weitherow failed to object at trial.

¶42 Weitherow first argues the trial court tainted the entire panel when it improperly offered "encouragement" to a prospective juror during voir dire. The record reveals that during voir dire, the prospective juror explained that he knew many of the witnesses who would testify, including "quite a few" of the law enforcement officers. The juror stated he would find those witnesses more believable because of his relationship with them. When the trial court asked the juror if he would still side with an officer he knew even if the testimony of other witnesses contradicted the officer's testimony, the juror responded, "I would have to listen to them first." Weitherow argues the trial court tainted the entire panel when it stated, "Okay. All right. That's sort of what I wanted to hear."8

¶43 We acknowledge it is not advisable for a trial court to inform prospective jurors what answers it wants to hear during voir dire. Given the context of this statement, however, we find no merit to the claim that this particular statement required the trial court to strike the entire panel and Wietherow cites no authority to the contrary.

¶44 Weitherow also argues the court should have struck the entire panel after it misspoke during the second day of voir dire and informed a new group of prospective jurors that Weitherow had pled guilty to all of the charged offenses. The court had just completed reading the entire sixty-count indictment. The court then stated, "And I want to remind you again, it's merely a charging document. And the defendant has pled guilty to all of the charged offenses. Has pled — excuse me, has pled not guilty to all of the charged offenses." We find no error. The court made it clear to the prospective jurors that it had simply misspoken and that Weitherow had, in fact, pled not guilty to all of the charged offenses. It was not necessary to strike the entire panel based on a single misstatement that was immediately corrected.

CONCLUSION

¶1 Because we find no error, we affirm Weitherow's convictions and sentences.

JON W. THOMPSON, Judge and SAMUEL A. THUMMA, Judge, concurring.