This court has consistently held that the nature and imposition of sanctions for violation of discovery rules are within the sound discretion of the trial court and will not be disturbed unless defendant can show prejudice. State v. Hunt, 118 Ariz. 431, 434, 577 P.2d 717, 720 (1978); State v. Ramirez, 116 Ariz. 259, 265, 569 P.2d 201, 207 (1977); State v. Clark, 112 Ariz. 493, 543 P.2d 1122 (1975). No prejudice has been shown here.
We find that appellant's reliance on State v. Robin, 112 Ariz. 467, 543 P.2d 779 (1975); State v. Werring, 111 Ariz. 68, 523 P.2d 499 (1974); and State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956), is misplaced. In Robin the jury sent the judge questions of fact, upon which he commented from his notes and recollection of relevant testimony. Werring involved a judge who refused to let defense counsel see written questions from the jury and later responded to oral questions in the jury room. The objectionable *306 conduct in Burnetts stemmed from the judge's standing at the door to the jury room and answering an oral question with neither defendant nor his counsel present. The trial judge in the instant case summoned the state and defense counsel, who were then permitted to express any objections to the proposed instructions. At no time did the judge physically intrude into the jury room or communicate with the jurors on questions of fact.
When we focus upon the particular circumstances of Perez, the following facts emerge as very significant: The jury wanted to hear testimony that dealt with forced, deviate sexual acts allegedly perpetrated on the victim. The record reflected no proof that defendant had personally and voluntarily waived his right to be present. This court in Perez was especially troubled by what difference defendant's presence might have made if the jury had been able to observe defendant while the damaging testimony was being read. Citing State v. Armenta, 112 Ariz. 352, 541 P.2d 1154 (1975), and conceding that the right to be present is of constitutional dimension, this court found there was insufficient proof of defendant's intent to waive his right. We were not willing to say, under the circumstances of Perez, that defendant's absence was harmless error.
It has long been the law in Arizona that on appeal the Supreme Court will not substitute its judgment for that of the jury and will reverse only if there is a complete lack of probative facts to support the verdict. State v. Pittman, 118 Ariz. 71, 75, 574 P.2d 1290, 1294 (1978); Childs, supra; State v. Barnett, 112 Ariz. 210, 540 P.2d 682 (1975). Considering all the evidence, we find that there was substantial evidence to support the verdict. We have thoroughly reviewed the record pursuant to A.R.S. § 13-4035 and find no fundamental error. The judgment of conviction and the sentence are affirmed.
The case upon which Justice WHITE relies, Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948), was disposed of in an opinion which commanded the votes of seven of the nine Members of the Court. There could therefore be no question of an infringement of the "rule of four." Certainly any intimation from that case that this Court should not review questions of law in cases where the District Court has granted summary judgment is belied by subsequent decisions too numerous to catalogue. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). 2b1af7f3a8