Petition for Writ of Certiorari — Ramin Khorrami, Petitioner v. Arizona

APPENDIX

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APPENDIX A

Supreme Court

State of Arizona

1501 West Washington Street, Suite 402

Phoenix, Arizona 85007

[Letter]

February 9, 2022

RE:

STATE OF ARIZONA v RAMIN KHORRAMI

Arizona Supreme Court No. CR-21-0282-PR

Court of Appeals, Division One No. 1 CA-CR 20-0088

Maricopa County Superior Court No. CR2015-002870001

GREETINGS:

The following action was taken by the Supreme Court

of the State of Arizona on February 8, 2022, in regard

to the above-referenced cause:

ORDERED:

Petition for Review = DENIED.

Justice Montgomery did not participate in the determination of this matter.

Tracie K. Lindeman, Clerk

TO:

Linley Wilson

Andrew Reilly

Bruce E Samuels

Benjamin Lee Coleman

Amy M Wood

tel

3a

Notice: Not for Official Publication.

* * *

APPENDIX B

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

No. 1 CA-CR 20-0088

STATE OF ARIZONA,

Appellee,

v.

RAMIN KHORRAMI,

Appellant.

Appeal from the Superior Court in Maricopa County

No. CR2015-002870-001

The Honorable Geoffrey H. Fish, Judge

AFFIRMED

Filed July 29, 2021

* * *

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of

the Court, in which Judge Michael J. Brown and Judge

David D. Weinzweig joined.

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G A S S , Judge:

¶1

Ramin Khorrami appeals his convictions and

the resulting suspensions of sentences for one count of

fraudulent schemes and artifices and one count of theft.

We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2

This court reviews the facts in the light most

favorable to sustaining the jury’s verdict, resolving all

reasonable inferences against Khorrami. See State v.

Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015). We use pseudonyms for the victims to protect their privacy. See,

e.g., State v. Bolivar, 250 Ariz. 213, 217, ¶ 2 n.1 (App.

2020).

¶3

Pearl and Khorrami met in May 2012. Pearl

told Khorrami she lived in Phoenix with her husband,

Trey, and worked in real estate. Khorrami told Pearl

he lived in Los Angeles and offered to help her find real

estate clients there. They exchanged phone numbers.

After Pearl returned home, she and Khorrami regularly exchanged flirtatious text messages and often spoke

on the phone. When Pearl visited Khorrami a few

months later, they began a sexual relationship. Over

the next few months, Pearl frequently travelled to

spend time with Khorrami. Pearl told Khorrami she

planned to leave Trey, and the two discussed a future

together.

¶4

Over time, Khorrami became jealous and paranoid. He accused Pearl of having affairs with other

men, demanded she send him photographs throughout

the day to show her location, and told her he hired a

private investigator to follow her. Later, Pearl angered Khorrami when she decided to remain in her

marriage. In response, he threatened to reveal their

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affair to Trey. They then mended their relationship,

and Khorrami did not carry out his threat.

¶5

In June 2013, after another falling-out,

Khorrami accused Pearl of repeatedly lying to him and

again threatened to reveal their affair to Trey. Pearl

pleaded with him not to do so, and he agreed to delay

telling Trey while he thought about what to do.

Khorrami called Pearl a few days later and promised

not to reveal the affair if she paid him $40,000.

¶6

After Khorrami’s money-for-silence proposal,

Pearl began secretly recording their phone calls. When

Pearl next spoke with Khorrami, they negotiated the

terms. He agreed to accept $30,000, which she would

pay in multiple installments over a month. He required

her to put a false comment on the checks saying “Rose

gold Rolex” and indicating the remaining amount she

owed. Khorrami sent Pearl text messages saying she

had “20 days to finish your deal, not one day more” and

his “only communication with [her] will be regarding

[their] deal till [sic] the end of July.”

¶7

The day they agreed to their deal, Pearl mailed

Khorrami a $5,000 check with the false comment. After

Khorrami received the first payment, he added to his

demands. He told Pearl to call him every morning,

send pictures showing her location throughout the day,

and refrain from sexual relations with anyone except

him. When Pearl at times did not comply, he sent her

text messages saying the “deal is off” and the “deal is

going to change.” He demanded an additional $10,000

after she failed to answer a phone call. Khorrami eventually withdrew that demand.

¶8

A week after sending the first check, Pearl

mailed Khorrami a $2,000 check, then later a third

check for the remaining amount of $23,000. Khorrami

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rejected the final payment because Pearl did not include the false comment on the check. At his demand,

she sent another check with the false comment. After

receiving the fourth check, Khorrami demanded Pearl

pay $40,000 more and continue their sexual relationship, again threatening to disclose the affair to Trey if

she did not comply.

¶9

Pearl gave Khorrami another $4,000, but she

also realized Khorrami’s additional demands would

never end and he never intended to keep his side of the

bargain. As a result, Pearl told Trey about the affair in

November 2013. The next day, Khorrami told Trey

about the affair and Pearl’s affairs with other men.

Trey reported Khorrami to the police, and Pearl and

Trey filed a civil lawsuit against Khorrami.

¶10

The State ultimately tried Khorrami for one

count of fraudulent schemes and artifices, a class 2 felony, and theft, also a class 2 felony. After a twelve-day

trial, the jury convicted Khorrami on both counts. The

superior court entered judgments of conviction, suspended Khorrami’s sentence, and placed him on concurrent two-year terms of supervised probation. The superior court also imposed a two-month jail term.

Khorrami timely appealed. This court has jurisdiction

under article VI, section 9, of the Arizona Constitution,

and A.R.S. §§ 13-4031 and 13-4033.A.l.

ANALYSIS

I.

Sufficiency of the Evidence

¶11

Khorrami first argues his convictions lack sufficient evidence. Citing Fasulo v. United States, 272

U.S. 620 (1926), and Norton v. United States, 92 F.2d

753 (9th Cir. 1937), he asserts the statutes underlying

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his convictions “were not meant to govern the circumstances of this case.”

¶12

This court reviews de novo whether sufficient

evidence supports a conviction. State v. Pena, 235 Ariz.

277, 279, ¶ 5 (2014). Evidence is sufficient if the record

contains “substantial evidence” of guilt, meaning evidence “reasonable persons could accept as sufficient to

support a guilty verdict beyond a reasonable doubt.”

Id. (citation omitted). “Reversible error based on insufficiency of the evidence occurs only [when] there is a

complete absence of probative facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996)

(quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)).

¶13

“Evidence is not insubstantial simply because

testimony is conflicting or reasonable persons may

draw different conclusions from the evidence.” State v.

Toney, 113 Ariz. 404, 408 (1976). This court will not

“reweigh evidence or reassess the witnesses’ credibility.” State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38

(App. 2013). In its review, this court does not distinguish between circumstantial and direct evidence.

State v. Bible, 175 Ariz. 549, 560 n.1 (1993). Jurors usually must “infer [a defendant’s mental state] from [the

defendant’s] behaviors and other circumstances surrounding the event.” State v. Noriega, 187 Ariz. 282,

286 (App. 1996).

¶14

To support Khorrami’s fraudulent-schemesand-artifices conviction, substantial evidence in the

record must show: (1) pursuant to a scheme or artifice

to defraud; (2) Khorrami knowingly obtained any benefit from the victim(s); (3) by means of false or fraudulent pretenses, representations, promises, or material

omissions. A.R.S. § 13-2310.A; see State v. Haas, 138

Ariz. 413, 418-24 (1983) (describing statutory elements

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under an earlier version of the fraud statute). “Reliance on the part of any person” is not an element of the

offense. A.R.S. § 13-2310.B. The superior court instructed the jurors “the State must prove that the

scheme or artifice to defraud was intended to defraud,

meaning it was intended to mislead another person for

the purpose of gaining some benefit.”

¶15

The fraudulent-schemes-and-artifices statute is

meant to “encompass[] a very broad range of fraudulent activities.” Haas, 138 Ariz. at 422 (citation omitted). Section 13-2310.A is violated “when [a] defendant

has knowingly [mis]led the adverse party … by active

misrepresentations, or omitting material facts which

defendant knew were being misunderstood, or by stating half-truths, or by any combination of these methods.” Id. at 423.

¶16

To convict on the theft charge, the superior

court instructed the jurors the State had to prove

Khorrami, without lawful authority, knowingly obtained the victims’ “U.S. currency of a value of $25,000

or more, but less than $100,000” by means of any material misrepresentation, with the intent to deprive them

of such currency. See A.R.S. § 13-1802.A.3. Material

misrepresentation means “a pretense, promise, representation or statement of present, past or future fact

that is fraudulent and that, when used or communicated, is instrumental in causing the wrongful control or

transfer of property or services.” A.R.S. § 13-1801.A.8.

¶17

The record contains ample evidence from which

a reasonable juror could conclude Khorrami obtained

money from Pearl under the false pretense he would

not reveal their affair to Trey. Pearl repeatedly testified she believed she was buying Khorrami’s silence on

the affair when they agreed to the initial, negotiated

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payment of $30,000. She described in detail how he led

her to have that belief. She recounted the terms of

their deal and her compliance with them, despite

Khorrami’s ever-changing demands. And Pearl finally

disclosed the affair to Trey once she was convinced

Khorrami had deceived her.

¶18

Pearl’s testimony, together with reasonable

inferences, alone is sufficient to support the jury’s verdicts. See State v. Felix, 234 Ariz. 118, 120-21, ¶ 10

(App. 2014) (affirming conviction based on single witness’s testimony). The State further corroborated

Pearl’s account with evidence of phone calls and text

messages between Pearl and Khorrami in which they

discussed the arrangement and its terms.

And

Khorrami took the money from Pearl, spent it soon afterward, and made additional demands before ultimately revealing the affair to Trey.

¶19

A reasonable juror could infer Khorrami required Pearl to include the false comment on the checks

from the outset so he could later reveal the affair but

still say he obtained the money legitimately.

Khorrami’s additional demands to maintain his silence

after Pearl paid the agreed-upon $30,000 bolstered the

inference Khorrami’s intent was to extract as much

money as he could before he ultimately revealed the

affair.

¶20

Based on the above evidence, a reasonable jury

could decide Khorrami purposely misled Pearl to believe a false state of facts: if she paid him $30,000, he

would not reveal their affair. At the very least, reasonable minds could disagree on the point. See Toney, 113

Ariz. at 408. Accordingly, sufficient evidence supports

his convictions.

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¶21

Khorrami counters that he merely threatened

Pearl, which is not actionable fraud under Fasulo and

Norton. We are not persuaded. Those cases interpret

a federal mail fraud statute to require an intent to deceive but do not suggests a fraud conviction cannot

stand simply because it is accompanied by a threat. See

State v. Johnson, 179 Ariz. 375, 381 (1994) (“This is not

to say that a crime can never satisfy the overlapping

elements of both theft and fraud.”). Those cases do not

change our conclusion. The evidence here was sufficient.

II. Jury Instructions

¶22

For the first time on appeal, Khorrami challenges the jury instructions given for the charged offenses.

First, Khorrami argues the fraudulentschemes-and-artifices instruction failed to require proof

of “materiality.” Second, he asserts the theft-bymisrepresentation instruction should have required

proof of justifiable reliance. Fundamental-error review

applies because Khorrami did not object to the instructions at trial. See State v. Gomez, 211 Ariz. 494, 499,

¶ 20 (2005).

¶23

To obtain relief on fundamental-error review, a

defendant first must show “trial error exists.” State v.

Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). If error exists, the defendant then must establish the error: (1)

went to the foundation of the case; (2) took away a right

essential to the defense; or (3) was so egregious the defendant could not possibly have received a fair trial. Id.

¶24

Here, the instructions tracked the applicable

statutory language. See A.R.S. §§ 13-1802.A.3, -2310.A;

see also Rev. Ariz. Jury Instr. Stat. Crim. 18.02.01,

23.10 (5th ed. 2019). And the fraudulent-schemes-and-

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artifices instruction was nearly identical to the instruction endorsed by the Arizona Supreme Court. See

State v. Bridgeforth, 156 Ariz. 60, 64-65 (1988).

Khorrami fails to carry his burden to show the superior

court erred.

¶25

For the same reasons, we reject Khorrami’s

argument the superior court erred by failing to sua

sponte instruct the jurors: (1) a breach of contract does

not constitute fraud, even if intentional; (2) the State

had to prove Khorrami did not intend to keep his promise at the time he made it; and (3) a “heightened intent

requirement cannot be met” by a defendant’s failure to

perform. See State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998)

(“Where the law is adequately covered by instructions

as a whole, no reversible error has occurred.”).

¶26

Without citing any Arizona authority,

Khorrami relies on several federal cases addressing the

materiality requirement in the federal mail-fraud, wirefraud, and bank-fraud statutes to assert the State must

prove materiality for all means of committing a violation of § 13-2310.A. Those decisions are not controlling

here. See Phoenix Newspapers, Inc., v. Reinstein, 240

Ariz. 442, 449, ¶ 25 (App. 2016) (decisions of federal circuit courts may be persuasive authority but are not

binding on Arizona courts).

¶27

Unlike the federal mail-fraud statute, which is

silent on materiality, our legislature expressly included

a “material” requirement in § 13-2310.A and only applied the requirement to “omissions.” The United

States Supreme Court held “materiality of falsehood is

an element of the federal mail fraud, wire fraud, and

bank fraud statutes” because, in part, those statutes

neither defined “scheme or artifice to defraud” nor

“even mention[ed] materiality.”

Neder v. United

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States, 527 U.S. 1, 20-25 (1999). The Supreme Court

said the absence of an express reference to materiality

in the federal fraud statutes indicated Congress’s intent

to incorporate the common-law meaning of fraud, which

includes materiality. Id. Arizona’s statute is different.

¶28

Khorrami’s suggested interpretation would

render superfluous the materiality element set forth in

§ 13-2310.A. See City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552, ¶ 31 (2005) (“[W]e do not

interpret statutes in such a manner as to render a

clause superfluous.”). Khorrami invites us to impose a

requirement the legislature expressly chose not to require, which this court will not do. See Hart v. Hart,

220 Ariz. 183, 187, ¶ 17 (App. 2009).

¶29

Finally, this court has previously rejected

Khorrami’s argument a theft-by-misrepresentation

conviction requires justifiable reliance. See State v.

Schneider, 148 Ariz. 441, 444-45 (App. 1985). We discern no reason on this record to reconsider that decision.

III. Asserted Insufficient Notice

A. Indictment

¶30

Khorrami argues the indictment was fatally defective and lacked sufficient notice because it “simply

tracked the statutory language and did not even identify the false promise or pretense that formed the basis

of the two charges.” But Khorrami filed pretrial motions to dismiss the indictment and never objected on

the grounds he asserts now. Criminal defendants are

barred on appeal from challenging an alleged facial defect in an indictment when they fail to make a proper

objection before the superior court. State v. Anderson,

210 Ariz. 327, 335-36, ¶¶ 14-17 (2005).

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¶31

Even absent waiver, we find no error. “An indictment is legally sufficient if it informs the defendant

of the essential elements of the charge, is definite

enough to permit the defendant to prepare a defense

against the charge, and affords the defendant protection from subsequent prosecution for the same offense.”

State v. Far W. Water & Sewer Inc., 224 Ariz. 173, 187,

¶ 36 (App. 2010); see State v. Mallory, 19 Ariz. App. 15,

18 (1972) (charging document tracking statutory language generally provides sufficient notice). Defendants

must receive “actual notice of the charges, from either

the indictment or other sources.” State v. Freeney, 223

Ariz. 110, 115, ¶ 29 (2009).

¶32

The indictment was sufficiently specific. It

tracked the elements of the charged offenses, provided

the statutory citations, identified the victims, and listed

the dates of the offenses and the county where they occurred. Khorrami received notice of the factual allegations from the grand jury transcript, joint pretrial

statements, and pretrial disclosures. See Freeney, 223

Ariz. at 114, ¶ 27 (listing other sources of notice). Indeed, Khorrami recounted the factual allegations in his

dismissal motions. Accordingly, Khorrami received actual notice. See id.

B. Rebuttal Closing Argument

¶33

In this appeal, Khorrami for the first time argues the prosecutor’s statement in rebuttal closing argument was a new liability theory, impermissibly

amending the indictment and risking a nonunanimous

verdict:

So whether you believe that the misrepresentation took place the first time, the second time,

the third time, the fourth time, whatever time

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that you think that he misrepresented and he

was getting all this money, that’s a misrepresentation. If you believe that the first time he

said $30,000 for silence, do you believe that he

was really going to stay silent that time? Okay.

But do you believe it the second time? Do you

believe it with the $40,000? Do you believe it

with the sexual demands? During that time

period if you believe he misrepresented this

one time, then that’s enough for that element.

Because Khorrami failed to object at trial, this court

reviews for fundamental, prejudicial error. See Escalante, 245 Ariz. at 140, ¶ 12.

¶34

“Unless the defendant consents, a charge may

be amended only to correct mistakes of fact or remedy

formal or technical defects. The charging document is

deemed amended to conform to the evidence admitted

during any court proceeding.” Ariz. R. Crim. P. 13.5(b).

The evidence and jury instructions constructively

amend an indictment if they “modify essential terms of

the charged offense” and cause “a substantial likelihood

that the jury may have convicted the defendant for [a

different] offense.” United States v. Daraio, 445 F.3d

253, 259-60 (3rd Cir. 2006); see also State v. Lua, 237

Ariz. 301, 305-06, ¶¶ 15-18 (2015) (reviewing whether

jury instructions constructively amended indictment).

¶35

Nothing in the record suggests the prosecutor

sought to amend the indictment by making the challenged remarks. The elements of the offenses submitted to the jury were identical to those of the charged

offenses. See Freeney, 223 Ariz. at 113, ¶¶ 15-20. This

court presumes jurors follow the instructions they are

given. State v. LeBlanc, 186 Ariz. 437, 439 (1996). For

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that reason alone, we reject Khorrami’s argument the

State violated Rule 13.5(b).

¶36

Moreover, the prosecutor did not urge conviction on an improper basis. The State’s theory before

and during trial was Khorrami had a single scheme he

implemented through a series of ongoing transactions

and he always intended to disclose the affair. See State

v. Suarez, 137 Ariz. 368, 373 (App. 1983) (“A scheme to

defraud thus implies a plan, and numerous acts may be

committed in furtherance of that plan.”). The State

pointed to Khorrami’s actions after making the agreement to further demonstrate his fraudulent promissory

intent.

¶37

And the record belies Khorrami’s complaint he

had no notice of the culpability theory he now protests.

The day before the jury was empaneled, during a hearing on trial issues, Khorrami sought and received clarification from the State on the terms allegedly constituting the agreement. Khorrami’s contention that he

lacked notice is unfounded. See Freeney, 223 Ariz. at

115, ¶ 29; see also State v. Eastlack, 180 Ariz. 243, 258

(1994) (“Defendant is entitled to notice of the crimes

with which he may be convicted, not the manner in

which the [S]tate will prove his guilt.”).

IV. Victim Testimony

¶38

Khorrami challenges the admission of what he

alleges are “victim-impact” and “victim-opinion” testimony. This court generally reviews a superior court’s

evidentiary rulings for abuse of discretion. State v.

Dann, 220 Ariz. 351, 365, ¶ 66 (2009). But because

Khorrami did not object, fundamental-error review applies. See Escalante, 245 Ariz. at 140, ¶ 12.

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A. Asserted Victim-Impact Testimony

¶39

Khorrami argues the superior court improperly

allowed the State to elicit testimony from the victims

describing how the offenses personally affected them.

We disagree.

¶40

Khorrami’s defense was he never entered into

any agreement with Pearl, arguing she fabricated its

existence and manipulated Trey into believing

Khorrami exploited her. Khorrami’s counsel explained

the defense’s theory to the jurors in opening statement:

Pearl and Trey sought revenge against Khorrami.

¶41

To support that theory, defense counsel crossexamined Pearl about her reasons for disclosing the affair to Trey when Khorrami had not done so. Defense

counsel then asked why she would pursue criminal

charges and a civil lawsuit against Khorrami, and not

just “let sleeping dogs lie?” Pearl said she had a “mental breakdown” from the experience, which led Trey to

report Khorrami to the police.

¶42

On redirect examination, the prosecutor asked

Pearl to explain “why [she] couldn’t let sleeping dogs

lie.” She answered she “endured so much pain and suffering” and “almost died.” She continued, “I wouldn’t

be alive if my husband didn’t make sure I was okay and

fed me. I really suffered and there’s a lot of this stuff

what he did that’s not covered in this case.” Khorrami

did not object.

¶43

While cross-examining Trey, defense counsel

asked, “How much are you hoping to get from the civil

lawsuit?” Trey replied he sought only justice, not money. Defense counsel also questioned why Trey, and not

Pearl, had contacted the police and a civil attorney.

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¶44

On redirect examination, the prosecutor asked

Trey to explain why he, not Pearl, reported Khorrami

to the police. Trey said “[Pearl] was unable to. She

was completely incapable of doing anything. She

wouldn’t remember anything. She would be very fearful. Every day she locked the door. [He’s] going to

come after me to kill me.” Khorrami objected to this

response. Over Khorrami’s objection, Trey testified he

had to help Pearl deal with the effects of the experience, which in turn affected his career.

¶45

When a party “open[s] the door” and invites

later, generally objectionable testimony, no error occurs if the other party’s response is “pertinent,” meaning “specifically responsive to the invitation.” State v.

Leyvas, 221 Ariz. 181, 189, ¶ 25 (App. 2009) (citations

omitted). Khorrami’s opening statement and crossexamination suggested the victims reported Khorrami

to the police and filed a civil claim against him for money and revenge. Khorrami opened the door to rebuttal

testimony on those subjects, making the victims’ reasons for their actions relevant. We find the questions

and answers sufficiently responsive to Khorrami’s invitation. See id. at ¶¶ 25-26. The superior court did not

err.

B. Religious References

¶46

Khorrami contends the State improperly elicited testimony from the victims concerning religious beliefs to “demonize” him and to portray the victims sympathetically. Specifically, he points to: (1) Trey’s testimony he was initially attracted to Pearl in part because she was interested in his religious faith; (2)

Pearl’s testimony Khorrami and Trey share Persian

heritage; and (3) Pearl’s testimony she and Khorrami

envisioned a future together despite their different re-

18a

ligious faiths. Khorrami did not object to any of the cited instances.

¶47

Assuming without deciding the isolated remarks constituted fundamental error, Khorrami fails to

establish prejudice. He merely speculates the remarks

“likely added to the improper prejudice that tainted the

fairness of Mr. Khorrami’s trial.” Speculative prejudice

is insufficient to prevail on fundamental-error review.

See Escalante, 245 Ariz. at 142, ¶ 21 (showing prejudice

“involves a fact-intensive inquiry” (citation omitted)).

¶48

Moreover, the jurors learned of far more pertinent evidence about Khorrami’s conduct. The jurors

heard recorded phone calls in which Khorrami repeatedly insulted Pearl using demeaning and profane language. Pearl testified at length about the derogatory

way he spoke to her. Khorrami even conceded his demeaning conduct. In closing argument, defense counsel

told the jurors, “[Khorrami’s] an asshole. Okay? The

way that he spoke to [Pearl] is absolutely reprehensible

and indefensible …. It was disgusting, right? … He’s

an ass.” Admitting the testimony, therefore, did not

deprive Khorrami of a fair trial by prejudicing the jury

against him. See State v. Weatherbee, 158 Ariz. 303, 305

(App. 1988) (improperly admitted evidence may be

harmless when it is “entirely cumulative”).

C. Alleged Improper Opinion Testimony

¶49

On redirect examination, the prosecutor asked

Pearl the following:

Q: In your line of work, you know when people

want to come to a deal, right?

A: Yes.

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Q: From everything that you experienced, did the

defendant ever want this—ever intend on this deal

staying in place?

A: Retrospectively looking at it, no.

Q: What do you feel like he wanted?

[Defense counsel]: Objection, speculation.

THE COURT: Overruled.

A: Revenge.

¶50

Khorrami argues the testimony constituted an

improper opinion. Fundamental-error review applies

because Khorrami did not object at trial on the ground

he asserts on appeal. Escalante, 245 Ariz. at 140, ¶ 12.

¶51

“[L]ay testimony may include inferences or

opinions” if based on the witness’s perceptions and

helpful to understanding the witness’s testimony. State

v. Ayala, 178 Ariz. 385, 387 (App. 1994); see also Ariz.

R. Evid. 701(a). The prosecutor’s introductory question

pertaining to Pearl’s “line of work” did not seek to qualify her under Rule 702 to offer an expert opinion on the

intent of contracting parties. See State v. Peltz, 242

Ariz. 23, 29, ¶ 18 (App. 2017) (approving lay witness

opinion based on “training and experience” as well as

“logic”). Pearl’s testimony did not involve scientific,

technical, or specialized knowledge implicating Rule

702. Rather, her testimony amounted to a reasonable

inference based on her perception and personal

knowledge. See Ariz. R. Evid. 701. Pearl’s perception

of Khorrami’s motive assisted the jurors in determining

whether Khorrami had deceived Pearl by falsely promising payment would ensure his silence. See id.

20a

V. Jury Size

¶52

Citing Ramos v. Louisiana, 140 S. Ct. 1390

(2020), Khorrami argues—for the first time on appeal—

he was unconstitutionally tried by an eight-person jury.

A twelve-person jury “is not a necessary ingredient of

‘trial by jury.’ ” Williams v. Florida, 399 U.S. 78, 86

(1970). Arizona’s state constitution, however, guarantees criminal defendants a twelve-person jury in cases

when the sentence authorized by law is death or imprisonment for thirty years or more. Ariz. Const. art.

II, § 23; see also A.R.S. § 21-102.A. Otherwise, a criminal defendant may be tried with an eight-person jury.

A.R.S. § 21-102.B. “Improper denial of a twelve-person

jury is fundamental error that may provide a basis for

relief even if not raised in the trial court.” State v.

Kuck, 212 Ariz. 232, 233, ¶ 8 (App. 2006).

¶53

Khorrami argues Ramos requires twelveperson juries in all criminal trials. In Ramos, however,

the Supreme Court did not address any issue of constitutionally permissible jury size, much less overrule

Williams. Rather, the Supreme Court said due process

requires unanimous verdicts in criminal trials. See

Ramos, 140 S. Ct. at 1397.

¶54

The Supreme Court “does not normally overturn … earlier authority sub silentio.” Shalala v. Ill.

Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000).

We cannot conclude the Supreme Court silently

changed a fundamental feature of its Sixth Amendment

jurisprudence, particularly given the issue was neither

raised nor litigated in Ramos. We decline Khorrami’s

invitation to reconsider the constitutionality of eightperson juries in Arizona.

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VI. Cumulative Error

¶55

Finding no error in any of Khorrami’s individual challenges, we discern no merit in his argument the

cumulative effect of the asserted trial errors violated

his due-process rights. See State v. Bocharski, 218

Ariz. 476, 492, ¶ 75 (2008) (“Absent any finding of [error], there can be no cumulative effect of [error] sufficient to permeate the entire atmosphere of the trial

with unfairness.”).

CONCLUSION

¶56

We affirm Khorrami’s convictions.

23a

APPENDIX C

SUPERIOR COURT OF ARIZONA

COUNTY OF MARICOPA

CR2015-002870-001 DT

THE STATE OF ARIZONA

v.

RAMIN KHORRAMI (001)

DOB: []/[]/1968

Electronically Filed February 11, 2020

Filing ID 11360352

Honorable Geoffrey Fish

SENTENCING ORDER

Supervised Probation

This is the time set for Sentencing hearing held on

February 07, 2020 at 1:30 PM in the Central Court

Building - 803 for CR2015-002870-001 DT and Defendant RAMIN KHORRAMI.

Hearing Start: 01:40 PM

Present in the courtroom,

Attorney

County Attorney

Defendant

Defendant’s Attorney

Defendant’s Attorney

Leiter, Edward Douglas

Addison Owen

Ramin Khorrami

Michael Kimerer

Rhonda Neff

24a

A record of the proceedings is recorded by

Court Reporter, MICHAEL BABICKY.

IT IS THE JUDGMENT of the Court that the Defendant is guilty of the following offense(s):

Count 001

The Defendant was found guilty after a trial by jury.

§13-2310A FRAUDULENT

SCHEMES/ARTIFICES, Felony 2

A.R.S. § 13-702

Date of Offense: 6/1/2013

Non Dangerous - Non Repetitive

Count 006

The Defendant was found guilty after a trial by jury.

§13-1802 THEFT, Felony 2

A.R.S. § 13-702

Date of Offense: 6/1/2013

Non Dangerous - Non Repetitive

The Court is suspending imposition or execution of sentence and, under the supervision of the Adult Probation

Department (APD), placing the Defendant on Probation for:

Count 001 - Supervised Probation for a term of 2

years to begin on: 2/7/2020

IT IS ORDERED that the Defendant shall abide by all

standard terms and conditions of probation including:

Condition: 3 I will report any contact I have with

law enforcement to the APD within 72

hours.

Condition: 6 I will report to the APD within 72

hours of sentencing, absolute discharge from prison, release from in-

25a

Condition: 8

Condition: 9

Condition: 16

Condition: 18

Condition: 22

carceration, or residential treatment

and continue to report as directed. I

will also keep APD advised of progress toward case plan goals and comply with any written directive of the

APD to enforce compliance with the

conditions of probation. I will provide

a sample for DNA testing if required

by law.

I will request and obtain written permission of the APD prior to leaving

the state.

I may apply for Interstate Compact

supervision in the state of California

and will not proceed to that state until

reporting instructions are received

and the APD issues a written travel

permit.

I will not consume or possess any substances containing alcohol.

I will serve 2 month(s), in the county

jail beginning 2/8/2020 with credit for

5 days served. I will comply with all

program rules. Be screened for Work

Furlough.

The defendant shall have no contact

with the victim(s) whatsoever. Defendant shall pay costs associated with

DNA testing required pursuant to

A.R.S. §13-610. Additional Term #18 –

The Court will impose an additional 6

months deferred jail to begin January

1, 2021. This deferred jail may be further deferred or deleted upon application from the assigned APO and/or the

26a

Defendant. Defendant shall selfsurrender at the jail at 5:00 p.m. on

February 8, 2020.

Condition 15: IT IS ORDERED that the Defendant

shall pay financial obligations through the Clerk of the

Superior Court as directed.

Total

Payment Begin

Note

Victim

$2.00

06/01/20

Rights Enforcement

Assessment

$13.00

06/01/20 Maricopa

Criminal

County

Penalty AsSheriff’s

sessment

Office

Probation

$20.00

06/01/20

Assess.

Interstate

$300.00

06/01/20

Compact

App. Fee***

Time Pay$20.00

06/01/20

ment Fee

Probation

$65.00

06/01/20

Svc

Fee/Standard

Total Resti$34000.00

$0.00

06/01/20

tution Ordered**

Count 006 - Supervised Probation for a term of 2 years

to begin on: 2/7/2020

IT IS ORDERED that the Defendant shall abide by all

standard terms and conditions of probation including:

Condition: 3 I will report any contact I have with

law enforcement to the APD within 72

27a

Condition: 6

Condition: 8

Condition: 16

Condition: 22

hours.

I will report to the APD within 72

hours of sentencing, absolute discharge from prison, release from incarceration, or residential treatment

and continue to report as directed. I

will also keep APD advised of progress toward case plan goals and comply with any written directive of the

APD to enforce compliance with the

conditions of probation. I will provide

a sample for DNA testing if required

by law.

I will request and obtain written permission of the APD prior to leaving

the state.

I will not consume or possess any substances containing alcohol.

The defendant shall have no contact

with the victim(s) whatsoever. Defendant shall pay costs associated with

DNA testing required pursuant to

A.R.S. §13-610.

IT IS ORDERED that restitution be paid in the following amount(s) for Count 001:

Monthly

Pay To:

Amount:

Payment: Pay Begin:

Agahi, Maggie $34000.00

06/01/20

The Court is in receipt of the Defendant’s Motion to

Dismiss for Lack of Jurisdiction filed 01/22/2020.

IT IS ORDERED denying the Defendant’s Motion

28a

IT IS FURTHER ORDERED that the Defendant shall

submit to fingerprint identification processing by the

Maricopa County Sheriff’s Office if directed to do so by

the Adult Probation Department. The Adult Probation

Department shall direct any Defendant who is placed

on probation and who does not already have a State

Identification Number (SID) established in this matter

be fingerprinted.

IT IS FURTHER ORDERED dismissing: Count(s):

[002],[003],[004],[005].

29a

IT IS FURTHER ORDERED that the Defendant

must submit to DNA testing for law enforcement identification purposes in accordance with ARS §13-610.

Defendant is advised that pursuant to ARS §13-805

that failure to maintain contact with the Adult Probation Department may result in the issuance of:

1.

A criminal restitution order in favor of the

state for the unpaid balance, if any, of any fines,

costs, incarceration costs, fees, surcharges or

assessments imposed.

2.

A criminal restitution order in favor of each

person entitled to restitution for the unpaid

balance of any restitution ordered.

The Adult Probation Department has prepared a

presentence investigation and recommendation to be

filed under the case number.

Hearing Concludes: 03:33 PM

Handwritten Signature

Hon. Geoffrey Fish

Maricopa County Superior

Court

IT IS ORDERED that defense counsel shall preserve

defendant’s file for post-conviction relief purposes. If

defense counsel receives notice that defendant is seeking post-conviction relief, counsel shall prepare the file

for delivery to PCR counsel and shall make timely arrangements for the exchange thereof when notified.

Further, upon exchange of the file, defense counsel

shall file with the court a Notice of Compliance that

shall, at a minimum, include the date of compliance, recipient of the file, and an itemization of contents of the

DONE IN OPEN COURT

02/07/20

30a

file. A copy of the Notice shall be provided to PCR

counsel, the State and the PCR Unit.

Let the record reflect that the Defendant’s right index

fingerprint is attached to this sentencing order in open

court.

Right Index finger

[image omitted]

31a

ENDORSEMENT PAGE

CASE NUMBER:

SIGNATURE DATE:

CR2015-002870-001

2/7/2020

E-FILING ID #:

FILED DATE: 2/11/2020

11360352

8:00:00 AM

ADDISON OWEN

EDWARD DOUGLAS

LEITER

MICHAEL D KIMERER

PRETRIAL SERVICES

AGENCY-CCC

RFR