State v. Kemp, 1 CA-CR 16-0035

James Lee Kemp was convicted by a jury of multiple sex offenses against his stepdaughter based on conduct when she was 12–14; convictions and sentences were affirmed on appeal.
Initial 2010 indictment was filed while the victim was a minor; a new indictment was filed in July 2011 after the victim turned 18 and the 2010 case was dismissed without prejudice.
At the 2015 trial the victim’s mother asked to remain in the courtroom under Arizona’s Victims’ Bill of Rights (VBR); defense counsel invoked the rule of exclusion.
The superior court allowed the mother to remain as a statutory “victim” under the VBR; Kemp argued on appeal that she was not entitled to that status because the victim was an adult at the time of the later indictment.
Kemp claimed the mother’s presence prejudiced the defense by “smoothing” the victim’s testimony (e.g., alleged corrections about a towel and the timing of a bathroom remodel).
The record showed the mother did not corroborate or correct the victim in a way that aided the prosecution; defense counsel chose not to pursue certain cross-examination topics after the mother’s unexpected testimony. The court found no prejudice and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether victim’s mother qualified as a statutory "victim" entitled to remain in courtroom under VBR	State: mother is a "victim" as relative to the person against whom the offense was committed	Kemp: victim was an adult at time of second indictment, so mother lacked statutory victim status	Court did not decide VBR applicability because outcome would be same; mother’s presence caused no prejudice
Whether denial of exclusion (or allowing mother to stay) requires reversal/presumed prejudice	State: VBR removes presumption of prejudice when a statutory victim remains	Kemp: if VBR inapplicable, denial of exclusion is presumed prejudicial	Court assumed arguendo prejudice but found record clearly rebutted any prejudice and affirmed
Whether mother’s presence "smoothed" victim’s testimony (towel)	Kemp: mother corrected victim re: a white towel, aiding prosecution	Kemp: presence permitted improper corroboration	Court: mother did not correct victim; she had no knowledge of abuse and her towel testimony did not corroborate victim
Whether mother’s presence impeded defense cross-examination	Kemp: presence chilled or altered cross-examination about towel and timeline	Kemp argued defense counsel was unable to probe due to mother’s presence	Court: defense counsel intentionally declined to pursue lines that would open prejudicial evidence; no interference shown

State v. Millis, 242 Ariz. 33, 391 P.3d 1225 (App. 2017) (mother of minor victim is a “victim” under the VBR)
State v. Roberts, 126 Ariz. 92, 612 P.2d 1055 (1980) (denial of exclusionary request is presumed prejudicial unless record clearly shows absence of prejudice)
State v. Fulminante, 193 Ariz. 485, 975 P.2d 75 (1999) (VBR altered the traditional presumption of prejudice from refusing to exclude a witness)
State v. Henderson, 210 Ariz. 561, 115 P.3d 601 (2005) (standard for preserved versus fundamental error review)