State v. Diaz

II16 I must respectfully dissent. Diaz has failed to carry his burden to show that fundamental error occurred because, he claims, he was deprived of the required twelve-person jury. He relies solely on the transcript of the jury poll, which omits juror number six from the poll.

¶ 17 Diaz did not object to the alleged absence of a juror below and bears “the burden of persuasion” to show that fundamental error occurred. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). The statement from State v. Avila, 217 Ariz. 97, ¶ 12, 170 P.3d 706, 709 (App.2007), does not shift or lessen…