One Hundred Eighteen Members of Blue Sky Mobile Home Owners Association v. Murdock

Appellant was charged by indictment with five counts of molestation of a child, class two felonies in violation of A.R.S. §§ 13-1410, -701, -702 and -801. The counts alleged violations of the statutes on April 1, 2 and 3, 1982 which allegedly occurred with his minor son. The prosecution subsequently amended the indictment to allege two Hannah priors on each of the five counts. See State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980). Following a jury trial, appellant was convicted on all five counts and sentenced to five concurrent fourteen year terms. Although appellant has raised a number of issues only one question needs to be answered in this appeal. Was it fundamental harmful error for the appellant to be tried by an 8-person jury when, under our state constitution, he was entitled to a jury of 12? We conclude that it was fundamental harmful error which requires appellants conviction to be reversed and his case remanded for a new trial before a 12-person jury.