Opinion
No. 2 CA-CR 2017-0225
04-03-2018
THE STATE OF ARIZONA, Appellee, v. NORMAN BURT BEVERLY, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20002304
The Honorable Sean E. Brearcliffe, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, Norman Beverly was convicted of sexual conduct with a minor under fifteen and molestation of a child. The trial court sentenced him to life imprisonment without the possibility of release for thirty-five years for sexual conduct and a consecutive seventeen-year prison term for molestation. On appeal, Beverly argues the court erred in denying his motion for a mistrial after a defense witness unexpectedly stated that Beverly had been "caught for child pornography." For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to affirming Beverly's convictions. See State v. Hollenback, 212 Ariz. 12, ¶ 2 (App. 2005). In 2000, six-year-old A.A. lived with her mother, J.A. Beverly lived nearby with his wife, whose developmentally delayed, eight-year-old granddaughter, S.H., occasionally stayed with them. A.A. and S.H. became friends and often had sleepovers. One evening, A.A. reported to her mother that, when she had previously been at Beverly's house with S.H., Beverly had "touched her." She explained the three of them had been in Beverly's bed and he had "put his hand down her shirt [and] into her panties" and "rubbed her." The next day, J.A. contacted S.H.'s mother, M.K., who "thought something had been going on with [Beverly] and [S.H.]" because of remarks S.H. had made. J.A. and M.K. contacted the police.
¶3 After the girls described the incident in separate forensic interviews, Beverly was charged with two counts each of sexual conduct with a minor under fifteen and molestation of a child—one each for A.A. and S.H. Beverly subsequently failed to appear for a pretrial hearing, and the trial court issued a warrant for his arrest. He was not apprehended until 2015.
¶4 A jury convicted Beverly of the two counts pertaining to A.A. but acquitted him of the counts relating to S.H. The trial court sentenced him as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
¶5 Beverly argues the trial court erred in denying his motion for a mistrial "after [M.K.] blurted out that [he] had been charged with child pornography." We review for a clear abuse of discretion the denial of a motion for a mistrial. State v. Welch, 236 Ariz. 308, ¶ 21 (App. 2014); State v. Slover, 220 Ariz. 239, ¶ 19 (App. 2009).
Beverly also suggests the trial court erred in denying his motion for a new trial based on the same ground. Although he maintains the court used the "wrong standard in evaluating the motion," he admits he created the problem by applying that standard as part of his argument. Beverly concedes that "it cannot be said that the trial court abused its discretion in denying the motion for a new trial" and instead focuses on the court's denial of his motion for a mistrial. We therefore limit our analysis to that issue. See Ariz. R. Crim. P. 31.10(a)(7) (appellant's argument must contain supporting reasons and legal authorities); see also State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
¶6 Before trial, Beverly filed a motion in limine to preclude evidence of "charges related to alleged possession of child pornography on the . . . family computer." He argued, in part, that it constituted inadmissible, other-act evidence under Rule 404(b), Ariz. R. Evid. Because the child-pornography charges were dismissed after the evidence was suppressed for being obtained without a search warrant, the state agreed not to admit "matters related to [the] charges." Accordingly, the court granted the motion.
¶7 The state also filed a motion in limine to preclude any testimony about M.K. "accusing one of her step-fathers of molesting her when she was a teenager" and "project[ing] her experiences onto her daughter, S.H., thereby causing S.H. to claim [Beverly] molested her." The court deferred ruling on the motion but granted the state leave to re-urge its position "upon completion of the witness interviews." However, at the state's request, the court appointed counsel for M.K. based on "the nature of certain questions to be asked by counsel at any interview [that] may result in self-incrimination."
¶8 At a subsequent hearing at which M.K.'s counsel appeared, the parties explained that they had been unable to reach M.K. However, they agreed that, because M.K. was a victim advocate for S.H., she could refuse to be interviewed. See A.R.S. §§ 13-4403(C) (if victim is minor, victim's parent may exercise rights for victim), 13-4433(A), (G) (victim cannot be compelled to submit to defense interview; same applies to parent who exercises rights for minor child); see also J.D. v. Hegyi, 236 Ariz. 39, ¶ 22 (2014) (parent who exercises rights for minor child can refuse defense interview through disposition of case, even if child turns eighteen). The day before trial, M.K.'s counsel finally spoke with her, but M.K. indicated she did not trust him and asked him to leave. Thus, no interview occurred.
¶9 Despite a defense subpoena, M.K. failed to appear at trial. The court issued a material-witness warrant, and a detective brought her in to testify. During cross-examination, the following exchange occurred:
Q. You said that you told [S.H.] that when the bad man got caught, that he would go to jail; is that right?
A. I don't know where he goes, but hopefully, yes. So everybody can be safe.
Q. So why did you say if he got caught?
A. Because they caught him, put him in jail. And then he got caught for child pornography—
Q. Okay. I'm going to stop you. Hang on a second.
Was there a time where you didn't know where he was?
¶10 After M.K. was excused, Beverly moved for a mistrial, arguing, "There's no way . . . that bell can be unrung" and M.K. "should have been told not to testify about that." The prosecutor responded, "She's a defense witness. So everybody has to admonish their own witnesses about what to say and what not to say." The court denied the motion, noting, in part, that the statement "came out voluntarily" and "wasn't prompted by a question." The court asked Beverly if he wanted a curative instruction, but he declined.
¶11 The next day, Beverly renewed his motion for a mistrial, asserting that he did not have a duty to admonish M.K. not to discuss the child-pornography charges because she had refused an interview. The trial court offered a "stronger curative instruction," but Beverly indicated he did not want to mention "child pornography" to avoid "highlight[ing]" the statement. Beverly suggested a "more proper" instruction would be: "If, ladies and gentlemen, you heard any witness talk of any prior bad act of Mr. Beverly or anyone else that is not a charge before you today, you are to disregard it and not discuss it among yourselves when you deliberate in this case." After the state rested, the court instructed the jury as follows: "You may have heard testimony of a witness, during [the] course of the trial, referring to bad acts or crimes as to any party, other than those charged in the case. You are to disregard that testimony and not consider it for any reason."
The trial court noted for the record that Beverly had objected to the instruction.
¶12 "A declaration of mistrial is the most dramatic remedy for trial error and is appropriate only when justice will be thwarted if the current jury is allowed to consider the case." State v. Lamar, 205 Ariz. 431, ¶ 40 (2003), quoting State v. Nordstrom, 200 Ariz. 229, ¶ 68 (2001). "To determine whether a mistrial is warranted, courts consider '(1) whether the jury has heard what it should not hear, and (2) the probability that what it heard influenced [it].'" State v. Miller, 234 Ariz. 31, ¶ 25 (2013), quoting State v. Laird, 186 Ariz. 203, 207 (1996) (alteration in Miller). We defer to the trial court because it is in the "best position to determine whether a particular incident calls for a mistrial because the trial judge is aware of the atmosphere of the trial, the circumstances surrounding the incident, the manner in which any objectionable statement was made, and the possible effect on the jury and the trial." State v. Williams, 209 Ariz. 228, ¶ 47 (App. 2004).
¶13 Beverly argues that M.K.'s statement about the child-pornography charges was inadmissible and that the jury must have been influenced by it because "[c]hild pornography is highly inflammatory." The state concedes that M.K.'s statement was "improper"; however, it maintains the trial court correctly denied Beverly's motion for a mistrial because M.K. "had made an isolated and non-responsive comment that the jury was instructed to disregard." We find no abuse of discretion.
¶14 M.K. testified as a defense witness and had been uncooperative with both parties and her own counsel. Indeed, the trial court issued a warrant for her arrest, and a detective had to escort her to court. Notably, M.K.'s statement was unsolicited. See Miller, 234 Ariz. 31, ¶¶ 24-25 (no abuse of discretion in denying mistrial motion based on witness's unexpected statement that she did not know defendant was felon); State v. Almaguer, 232 Ariz. 190, ¶¶ 27-29 (App. 2013) (no abuse of discretion in denying mistrial motion based on unsolicited comment in violation of previous court order).
¶15 Prior to her testimony, defense counsel never advised M.K. about the trial court's ruling precluding evidence of the child-pornography charges or asked the prosecutor, with whom M.K. was also not cooperating, to relay that information to her. Although Beverly argues he had no duty to inform M.K. of the ruling given that she was represented by counsel and had refused an interview, he has not explained why he could not have given the admonition just before her testimony, or requested the court or the state to do so. In any event, this issue was discussed at length during trial, and it does not appear to have influenced the court's decision to deny the motion for a mistrial. It likewise does not influence our conclusion that the court did not abuse its discretion. See State v. Perez, 141 Ariz. 459, 464 (1984) ("We are obliged to affirm the trial court's ruling if the result was legally correct for any reason.").
¶16 Although we agree that discussing a defendant's involvement with child pornography carries with it a potential inflammatory effect, see generally State v. Salazar, 181 Ariz. 87, 92 (App. 1994) (discussing "inflammatory detail" and "overwhelming prejudice against defendant" upon admission of pornography evidence), here, M.K.'s reference was fleeting and isolated and occurred on the third day of a four-day trial, cf. State v. Jones, 197 Ariz. 290, ¶ 34 (2000) (no abuse of discretion in admitting testimony that vaguely referred to other unproven crimes and incarcerations); Laird, 186 Ariz. at 207 (trial court properly denied mistrial motion based on "brief" responses that were "tiny part of extensive trial testimony"). The prosecutor immediately cut M.K. off and changed the subject. In addition, the child-pornography charges were not discussed again in the presence of the jury. We are therefore unpersuaded by Beverly's argument that the verdict was necessarily influenced by the jurors' "[un]conscious[] aware[ness] of the . . . possession of child pornography."
¶17 We are also not convinced that the jury was influenced by M.K.'s statement because her credibility was questioned throughout the trial. Cf. Jones, 197 Ariz. 290, ¶ 35 ("When the statements are made by a witness, whose credibility is already at issue, they do not carry the same weight . . . ."). In addition, the jury found Beverly not guilty of the two charges pertaining to S.H., suggesting that, even had the jury considered M.K.'s reference to the child-pornography charges, it did not hold it against him.
In a post-trial, off-the-record discussion between counsel and the jury, the jurors indicated that M.K.'s reference to child pornography came up in the deliberation room but not until after they had determined the verdicts and that the mention of child pornography did not in any way affect their decisions. --------
¶18 Lastly, the trial court instructed the jurors to "disregard . . . and not consider . . . for any reason" the testimony of any witness "referring to bad acts or crimes as to any party, other than those charged in the case." We presume the jurors followed their instructions. See State v. Newell, 212 Ariz. 389, ¶ 67 (2006). Although Beverly declined an instruction that would "highlight" the child pornography, he did suggest language that was largely consistent with the court's ultimate instruction. And Beverly does not suggest on appeal that the curative instruction somehow compounded the problem. Accordingly, based on all the above, we cannot say the court abused its discretion in denying the motion for a mistrial. See Welch, 236 Ariz. 308, ¶ 21; see also Slover, 220 Ariz. 239, ¶ 19.
Disposition
¶19 For the foregoing reasons, we affirm Beverly's convictions and sentences.