State v. Warren

S
                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                         v.

                 TIMOTHY MARVIN WARREN, Appellant.

                              No. 1 CA-CR 20-0242
                                FILED 7-8-2021


            Appeal from the Superior Court in Maricopa County
                         No. CR2019-114671-001
                   The Honorable Dewain D. Fox, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice M. Jones
Counsel for Appellee

Brown & Little, P.L.C., Chandler
By Matthew O. Brown
Counsel for Appellant
                           STATE v. WARREN
                           Decision of the Court



                      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.


G A S S, Judge:

¶1            Timothy Marvin Warren appeals his conviction for
aggravated robbery. Because any potential error was harmless, we affirm
his conviction.

               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
Warren. See State v. Felix, 

237 Ariz. 280

, 283, ¶ 2 (App. 2015).

¶3            On April 2, 2019, the victim received a text message from a
phone number he did not recognize, but he believed it was someone he
knew. He agreed to meet the person at an apartment complex to give the
person “wax”—a form of cannabis with a high THC content. The person
turned out to be R.W., Warren’s cousin. The victim arrived at the complex,
parked his car, and texted R.W. he was there. Soon after, R.W. approached
and entered the victim’s car. R.W. grabbed his gun, aimed it at the victim
and demanded “everything” he had. The victim complied, handing his
backpack to R.W., which contained cash, marijuana, and wax. R.W. left the
victim’s vehicle and returned to the passenger side of a nearby SUV driven
by Warren. Warren drove off. The victim followed and called the police.
During the ensuing police chase, a tire on the SUV blew out and Warren
and R.W. fled the vehicle. The police later arrested them. The State indicted
Warren on one count of armed robbery and one count of aggravated
robbery.

¶4           During jury selection, the superior court discussed the burden
of proof and the presumption of innocence, adding “the defendant is not
required to prove innocence or produce any evidence.” The superior court
gave preliminary instructions, including the burden of proof, the
presumption of innocence, and the defendant’s right not to testify.




                                     2
                            STATE v. WARREN
                            Decision of the Court

¶5           The State rested at the end of the fifth day of trial. In releasing
the jurors for the evening, the superior court reminded them of the
admonition:

       So please remember the admonition. Please remember you’ve only
       heard one side of the case at this point in time. Do not start thinking
       about how you’re going to decide the case. Please keep an open mind
       until you hear all the rest of the evidence and all of the closing
       arguments.

¶6            Warren’s counsel immediately moved for mistrial, arguing
the superior court incorrectly implied Warren had an obligation to present
evidence. The superior court denied the motion for mistrial, but promised
to correct and clarify the statement for the jurors the next day.

¶7            The next day, the superior court offered a curative instruction.
At Warren’s request, the superior court did not read the curative instruction
to the jury. The defense rested without presenting any evidence. The final
jury instructions described the presumption of innocence and the burden
of proof, adding a defendant need not testify or present evidence.

¶8            The jury acquitted Warren of armed robbery but found him
guilty of aggravated robbery. Warren 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.1.

                                 ANALYSIS

¶9            Warren first argues the superior court’s statement telling the
jury it had “only heard one side of the case at this point” and to “keep an
open mind until you hear all of the rest of the evidence” was an improper
instruction and misled the jury because it failed to “adequately reflect the
law.” According to Warren, the superior court then compounded the error
by not providing a special, corrective instruction. Second, Warren argues
the statement infringed his right to remain silent. See U.S. Const. amend. V;
Ariz. Const. art. II, § 10. The State recasts Warren’s arguments as whether
the superior court abused its discretion in denying his motion for mistrial.
We analyze the arguments as Warren framed them.

¶10            This court “review[s] a decision to give or refuse a requested
jury instruction for an abuse of discretion,” but reviews de novo whether the
jury instruction accurately reflects the law. Leon v. Marner, 

244 Ariz. 465

,
469, ¶ 11 (App. 2018). Considering the instructions as a whole, this court
decides whether “the jury was properly guided in arriving at a correct


                                       3
                            STATE v. WARREN
                            Decision of the Court

decision.” Pima Cnty. v. Gonzalez, 

193 Ariz. 18

, 20, ¶ 7 (App. 1998). This court
also reviews de novo questions of constitutional law. Gallardo v. State, 

236
Ariz. 84

, 87, ¶ 8 (2014).

¶11           This court reviews for harmless error because Warren moved
for mistrial. See Leon, 244 Ariz. at 469, ¶ 12 (“With limited exceptions,
erroneous jury instructions are subject to either harmless or fundamental
error review.”); State v. VanWinkle, 

229 Ariz. 233

, 237, ¶ 16 (App. 2011)
(applying harmless error analysis to improper comment on defendant’s
constitutional right to silence). “Error, be it constitutional or otherwise, is
harmless if we can say, beyond a reasonable doubt, that the error did not
contribute to or affect the verdict.” State v. Bible, 

175 Ariz. 549

, 588 (1993).
The State carries the burden to establish any error was harmless. State v.
Anthony, 

218 Ariz. 439

, 446, ¶ 39 (2008).

¶12            We express no opinion about whether the superior court
erred because any error was harmless. After making the statement, the
superior court drafted a proposed curative instruction, which Warren
rejected. Both Warren and the superior court agreed the proposed
instruction would needlessly duplicate the final jury instructions. The
superior court is in the best position to determine the appropriate remedy
for a trial error. State v. Herrera, 

203 Ariz. 131

, 135, ¶ 6 (App. 2002). We
recognize some states have held rejecting a curative instruction constitutes
a waiver of that issue on appeal. See, e.g., Dobbins v. State, 

844 S.E.2d 814

,
818 (Ga. 2020); Pennsylvania v. Ramos, 

231 A.3d 955

, 958–59 (Pa. Super. Ct.
2020). In Arizona, declining a proposed curative instruction weighs against
abuse of discretion. See Herrera, 

203 Ariz. at 134

–35, ¶¶ 5–6 (superior court
did not abuse its discretion by denying a mistrial based in part on
defendant’s declination of a curative instruction).

¶13            Regardless, “it is not error for the [superior] court to refuse to
give a requested instruction that is covered adequately by the given
instructions.” Haynes v. Syntek Fin. Corp., 

184 Ariz. 332

, 341 (App. 1995). The
superior court properly instructed the jury before and after it made the
statement. The preliminary instructions correctly informed the selected
jurors of the presumption of innocence, the burden of proof, and Warren’s
right not to testify. The final jury instructions, given the day after the
putative error, repeated those same principles. This court presumes jurors
follow the instructions they are given. State v. LeBlanc, 

186 Ariz. 437

, 439
(1996). The final jury instructions sufficiently rendered any error harmless
by giving the jury proper guidance.




                                       4
                            STATE v. WARREN
                            Decision of the Court

¶14            The verdict also weighs against error. The jury convicted
Warren of aggravated robbery but acquitted him of armed robbery,
demonstrating it considered the evidence on each charge. See State v. Stuard,

176 Ariz. 589

, 600 (1993) (acquittal of relevant charges weighs against
reversible error). A juror who improperly concluded Warren bore a burden
to provide evidence would not have acquitted Warren on any of the
charges. The superior court’s reminder of the admonition did not affect the
verdict. See State v. Jones, 

203 Ariz. 1

, 10, ¶ 33 (2002) (error was harmless
because the jury made reasoned decisions and acquitted on one of four
counts); cf. State v. Barger, 

167 Ariz. 563

, 567 (App. 1990) (harmless error to
exclude a statement when the jury acquitted defendant of the charge to
which statement would have been relevant); State v. Davis, 

117 Ariz. 5

, 7–8
(App. 1977) (not prejudicial error when improperly communicated
instruction went to the charge of which defendant was acquitted).

                               CONCLUSION

¶15           We affirm Warren’s conviction.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




                                        5

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