                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                   RICHARD LLOYD GRAY, JR., Appellant.

                              No. 1 CA-CR 18-0330
                               FILED 11-19-2019


            Appeal from the Superior Court in Maricopa County
                         No. CR2015-106843-001
                  The Honorable Pamela S. Gates, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                             STATE v. GRAY
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.


C R U Z, Judge:

¶1            Richard Lloyd Gray, Jr., (“Gray”) appeals his convictions and
sentences for multiple counts of sexual conduct with a minor, arguing the
superior court erred by denying his three motions for mistrial. For the
following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2           The State charged Gray with thirteen counts of sexual conduct
with a minor involving Gray’s daughters. Counts 1 through 9 alleged
offenses committed against “Ann” between March 31, 2004 and June 30,
2013, when she was between nine and seventeen years old.1 The remaining
counts pertained to “Beth,” Ann’s younger sister, and alleged offenses
committed between January 1, 2013 and February 5, 2015, when Beth was
between thirteen and sixteen years old. Requesting separate trials for the
offenses involving each victim, Gray unsuccessfully moved to sever the
charges.

¶3            The victims testified at trial. Ann explained she delayed
reporting Gray’s sexual abuse because Gray warned her the police “would
tear the family apart.” She finally did so, however, after speaking with her
“ministers about it,” and they instructed her to “go to the police.” Ann
continued testifying about other matters before Gray moved for a mistrial
based on the State “bringing religion into [the case]” in order to bolster
Ann’s credibility. The superior court denied the motion.

¶4             Later, during a break in Ann’s testimony, Gray objected to a
facility dog “sitting in the back of the courtroom, potentially in an area
where the jury can see it.” Gray moved for a mistrial on the purported basis
the State did not abide by the statutory requirements governing the use of
facility dogs at trial. The superior court denied Gray’s motion.



1      For ease of reference, we adopt the fictitious names used by the
parties to identify the victims. See Ariz. R. Crim. P. 31.10(f).

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                               STATE v. GRAY
                             Decision of the Court

¶5           Gray also requested a mistrial after the following transpired
during Beth’s redirect testimony:

       Q. I’m going to move you to a new topic. You said [during
       cross-examination] that your dad told you that you could stop
       whenever you wanted. Did I understand you correctly?

       A. Correct.

       Q. Would you explain that to us?

       A. Well, he -- throughout time he would say this so it started
       when I was really young and as I got older and I would -- I
       would be, like, I don’t really want to do this, and we would do
       it anyway. And after we were done, he would be, like, I do
       this for you, I do this to help you. Everything I do is for you,
       and any time that you don’t want to do anymore [sic], all you
       have to say to me is I don’t want to do this anymore and we’ll
       stop. And I said okay. And he has told me this over time. So
       when I say over time, I mean, like when I was ten, he would say
       it; and then when I turned 15, he would say it; and jumping
       years, but every so often every blue moon he would say that.

(Emphasis added.) Gray argued Beth’s reference to being “really young”
and ten years old when Gray said “we’ll stop” constituted improper other-
act evidence under Arizona Rule of Evidence (“Rule”) 404 because the
charged acts occurred when Beth was between thirteen and sixteen years of
age. The superior court refused to grant a mistrial.

¶6            The jury found Gray guilty as charged. The superior court
imposed presumptive prison terms, and this timely appeal followed. We
have jurisdiction under Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and -4033(A)(1).

                                DISCUSSION

¶7             We review a superior court’s decision denying a motion for
mistrial for abuse of discretion. State v. Hardy, 230 Ariz. 281, 292, ¶ 52 (2012).
A mistrial is the “most dramatic remedy for trial error and should be granted
only when it appears that justice will be thwarted unless the jury is
discharged and a new trial granted.” State v. Speer, 221 Ariz. 449, 462, ¶ 72
(2009) (quoting State v. Dann, 205 Ariz. 557, 570, ¶ 43 (2003)). When a witness
makes an improper statement in front of the jury, we give deference to the
superior court’s denial of a mistrial “because the trial judge is in the best
position to evaluate ‘the atmosphere of the trial, the manner in which the

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                                STATE v. GRAY
                              Decision of the Court

objectionable statement was made, and the possible effect it had on the jury
and the trial.’” State v. Bible, 175 Ariz. 549, 598 (1993) (quoting State v. Koch,
138 Ariz. 99, 101 (1983)).

¶8             The superior court did not abuse its discretion in denying
Gray’s mistrial motions. Regarding Ann’s comment about meeting with the
family’s ministers, the State did not improperly use the testimony to bolster
her credibility. See Ariz. R. Evid. 610 (“Evidence of a witness’s religious
beliefs or opinions is not admissible to attack or support the witness’s
credibility.”); State v. Marvin, 124 Ariz. 555, 558 (1980) (“[T]he state cannot
assail a witness’ credibility because of religious beliefs or lack thereof . . . .”).
Instead, the testimony helped explain why Ann finally reported the abuse to
police after years of not doing so. Thus, the testimony was proper. Further,
the prosecutor only referred to the “clergymen” during closing arguments
to rebut Gray’s argument that the ministers would be required to report the
sexual abuse, and no such report was made. We find no error.

¶9             The superior court also did not err in refusing to grant a
mistrial based on the presence of the facility dog. The record reflects the dog
and its handler were in the gallery when Ann testified, and nothing indicates
the jury was aware of the dog’s presence.2 And although the State did not
file a statutory notice before Ann testified, it apparently did so later. See
A.R.S. § 13-4442(A) (“A party seeking the use of a facility dog must file a
notice with the court that includes the certification of the facility dog, the
name of the person or entity who certified the dog and evidence that the
facility dog is insured.”).

¶10           Finally, the superior court properly denied Gray’s request for
a mistrial based on Beth’s unsolicited testimony regarding Gray’s offers to
stop the abuse from the time Beth was “very young” and ten years old. Gray
argues that the parties never addressed the possibility of admitting evidence
that Beth had been sexually abused since she was ten years old. But in
objecting to Gray’s pretrial motion to sever the trial, the State filed a notice
to introduce evidence under Rule 404(c)3 and argued evidence of each

2    Gray declined the court’s invitation to voir dire the jurors to discern
whether they observed the dog and/or to provide a limiting instruction.

3      Although uncharged acts evidencing a particular character trait are
generally inadmissible to prove a defendant’s guilt because he or she acted
in conformity with the trait, Rule 404(c) allows admission of other-act
evidence in sexual misconduct cases if such evidence shows the defendant
has “a character trait giving rise to an aberrant sexual propensity to commit


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                              STATE v. GRAY
                            Decision of the Court

victim’s abuse would be cross-admissible at separate trials. See Ariz. R.
Crim. P. 13.4(b) (“A defendant is entitled to a severance of offenses joined
solely [because they are of the same or similar character], unless evidence of
the other offense or offenses would be admissible if the offenses were tried
separately.”).

¶11           In support of its motion, the State provided the court with
recorded interviews of the victims describing the abuse. As relevant here,
in Beth’s forensic interview, she described Gray sexually abusing her when
she was five years old. The court reviewed the recordings, and in declining
to order separate trials, found other-act evidence admissible under Rule
404(c). Specifically, the court found: Gray forced sexual acts on the girls
when they were “as young as 5 years old,” “when [Beth] turned 5 . . . she
was assaulted by [Gray],” and “[e]ach victim has stated that the acts went
on over a number of years from the time that each was 5 years old.” On
appeal, Gray does not challenge these findings.

¶12           Based on the foregoing, Gray was aware that evidence of his
sexual abuse of Beth when she was five years old had been deemed
admissible. Accordingly, his argument suggesting surprise at the admission
of this evidence is unavailing.

¶13            The superior court, therefore, properly permitted the State to
present propensity evidence under Rule 404(c), and the court did not abuse
its discretion by declining to grant a mistrial based on Beth’s testimony.

                               CONCLUSION

¶14           For the foregoing reasons, we affirm Gray’s convictions and
sentences.




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


the offense charged.” Ariz. R. Evid. 404. When a superior court admits Rule
404(c) evidence, the defendant is entitled to an instruction limiting the jury
to consider the evidence not as guilt of the charged offense, but only to
determine whether the other-act evidence shows defendant had an aberrant
sexual propensity as described in the Rule. See Ariz. R. Evid. 404(c)(2).

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