                              IN THE
             ARIZONA COURT OF APPEALS
                           DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                        ESLYN ADRIAN VILLA,
                             Appellant.

                     No. 2 CA-CR 2013-0442
                     Filed October 14, 2014


         Appeal from the Superior Court in Pinal County
                    No. S1100CR201202164
           The Honorable Jason R. Holmberg, Judge

                            AFFIRMED


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee

Heard Law Firm, Mesa
By James L. Heard
Counsel for Appellant
                         STATE v. VILLA
                        Opinion of the Court


                             OPINION

Judge Howard authored the opinion of the Court, in which Judge
Vásquez and Judge Brammer1 concurred.


H O W A R D, Judge:

¶1           Eslyn Villa was convicted of possession of a dangerous
drug for sale and conspiracy following a jury trial. On appeal, he
argues the trial court abused its discretion by instructing the jury on
a lesser-included offense while the jury was deliberating and that
doing so denied his constitutional rights to an effective closing
argument. Because we find no error, we affirm.

                Factual and Procedural Background

¶2           In September 2012, Villa drove a vehicle containing
methamphetamine and the drug then was sold to an undercover
police officer. Villa initially was charged with transportation of a
dangerous drug for sale and conspiracy to transport a dangerous
drug for sale. The trial court instructed the jury accordingly,
including possession of a dangerous drug as a lesser-included
offense of transportation of a dangerous drug for sale. During jury
deliberations, the court also instructed the jury on possession of a
dangerous drug for sale as another lesser-included offense. Villa
was convicted of the conspiracy charge and possession of a
dangerous drug for sale. He was sentenced to concurrent prison
terms, the longer of which is twelve years. We have jurisdiction
over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and
13-4033(A)(1).




      1 The   Hon. J. William Brammer, Jr., a retired judge of this
court, is called back to active duty to serve on this case pursuant to
orders of this court and the supreme court.


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                          STATE v. VILLA
                         Opinion of the Court

       Introduction of New Lesser-Included Offense During
                          Deliberations

¶3            Villa first argues the trial court erred by instructing the
jury on the lesser-included offense of possession of a dangerous
drug for sale after the jury had begun deliberations.2 We review a
trial court’s decision to give a requested jury instruction for an abuse
of discretion. State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 616-17
(2009).

¶4           Before closing arguments, as relevant here, the jury was
instructed on transportation of a dangerous drug for sale, conspiracy
to transport a dangerous drug for sale, and possession of a
dangerous drug as a lesser-included offense. During deliberations,
the jury asked “[i]f Villa is found not guilty of Transportation of
Dangerous Drug for Sale, but found guilty of Possession of
Dangerous Drug, can he still be found guilty of Conspiracy also?”
The parties agreed that the jury could do so.

¶5            The state then requested that the trial court also instruct
the jury on possession of a dangerous drug for sale. The court
granted the state’s request over Villa’s objection and instructed the
jury on the new lesser-included offense. It told the jury it had
“neglected” to provide the other lesser-included offense instruction
originally and therefore had brought them back to provide the
additional instructions. It also told the jury to consider the
transportation charge first and, if it acquitted Villa or was unable to
decide on that charge, it should consider the possession for sale
charge and, if it acquitted Villa or was unable to decide on that
charge, it then should consider possession of a dangerous drug. The
jury ultimately found Villa guilty of possession of a dangerous drug
for sale.




      2 The   parties do not dispute that the evidence could have
supported a conviction of possession of a dangerous drug for sale. It
was therefore a necessarily included offense. State v. Wall, 212 Ariz.
1, ¶ 14, 126 P.3d 148, 150 (2006).


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                           STATE v. VILLA
                          Opinion of the Court

¶6            The state asserts that Rule 22.3, Ariz. R. Crim. P.,
permitted the trial court to give the additional instruction. Rule 22.3
allows a trial court to “give appropriate additional instructions”
after the jury has begun deliberations. That rule, however, and the
cases relying on it, do not address the issue here: whether the court
may add an entirely new lesser-included offense instruction during
jury deliberations and after the jury asks a question indicating it
might not convict of the greater offense. See, e.g., State v. Harlow, 219
Ariz. 511, ¶¶ 4-11, 200 P.3d 1008, 1009-11 (App. 2008) (no error in
adding special interrogatory during deliberations); State v. Walker,
185 Ariz. 228, 242-43, 914 P.2d 1320, 1334-35 (App. 1995) (no error to
instruct jury on definition of element of offense during
deliberations), superseded by statute on other grounds as recognized by
State v. Ofstedahl, 208 Ariz. 406, ¶ 5, 93 P.3d 1122, 1123-24 (App.
2004); State v. Govan, 154 Ariz. 611, 613, 744 P.2d 712, 714 (App. 1987)
(correcting erroneous self-defense instruction during deliberations
not error).

¶7           No Arizona case has addressed the issue of whether a
court may add a new lesser-included offense instruction for the
jury’s consideration under these circumstances. We therefore turn
to case law from other jurisdictions to resolve the issue. See State v.
Emerson, 171 Ariz. 569, 571, 832 P.2d 222, 224 (App. 1992) (where
issue undecided in Arizona, courts “may look to [other] jurisdictions
for guidance on [the] issue”).

¶8            Among the courts that have addressed the issue
presented here, nearly all “have expressed some concern with this
procedure.” State v. Thurmond, 677 N.W.2d 655, ¶ 14 (Wis. Ct. App.
2004); see also, e.g., United States v. Welbeck, 145 F.3d 493, 498 (2d Cir.
1998); Rush v. State, 395 S.W.2d 3, 7-8 (Ark. 1965); People v. Carron, 44
Cal. Rptr. 2d 328, 333 (Ct. App. 1995); People v. Jennings, 99 Cal. Rptr.
739, 741 (Ct. App. 1972); People v. Stouter, 75 P. 780, 781 (Cal. 1904);
State v. LaPierre, 754 A.2d 978, ¶ 21 (Me. 2000); State v. Amos, 553
S.W.2d 700, 703, 706 (Mo. 1977); State v. Jones, 518 A.2d 496, 499 (N.J.
Super. Ct. App. Div. 1986); Garza v. State, 55 S.W.3d 74, 77-78 (Tex.
Ct. App. 2001); State v. Anderson, 185 S.E. 212, 213-14 (W. Va. 1936).
We agree with the view stated in LaPierre that “[a] reinstruction
presenting for the first time choices for lesser-included offenses not


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                          STATE v. VILLA
                         Opinion of the Court

presented in the initial instructions, if proper at all, would be a rare
event, only done in exceptional circumstances.” 754 A.2d 978, ¶ 21.

¶9            In examining these cases, “[t]he weight of state
authority holds that ‘it would not be appropriate to adopt a per se
rule which would declare the belated giving of any [lesser-included
offense] instruction to be prejudicial error.’” Welbeck, 145 F.3d at
496-97, quoting Amos, 553 S.W.2d at 705 (alteration in Welbeck); but see
People v. Gramc, 647 N.E.2d 1052, 1056 (Ill. App. Ct. 1995) (if
“fundamental justice requires” giving lesser-included offense
instructions for first time during deliberations, “better to declare a
mistrial”), abrogated on other grounds by People v. Garcia, 721 N.E.2d
574 (Ill. 1999); Miller v. State, 392 S.E.2d 334, 336 (Ga. Ct. App. 1990)
(trial court has right sua sponte to provide instructions on lesser-
included offense for first time to deliberating jury). Rather, the
propriety of such a procedure is dependent upon “the facts and
circumstances of each trial” and whether the defendant would be
unfairly prejudiced. Welbeck, 145 F.3d at 497.

¶10           In many of the cases reversing convictions where lesser-
included offenses were provided first during jury deliberations, the
new instruction was prompted when the jury sought further
instructions or advice from the trial court after announcing it was
either stalled or deadlocked. See Rush, 395 S.W.2d at 6-7; Jennings, 99
Cal. Rptr. at 740-41; Stouter, 75 P. at 780-81; Amos, 553 S.W.2d at 704;
Jones, 518 A.2d at 497-98; Garza, 55 S.W.3d at 76; Anderson, 185 S.E. at
213-14; Thurmond, 677 N.W.2d 655, ¶¶ 6-8. Courts have found a
significant risk of prejudice in this situation.

¶11           For example, in Thurmond, the jury initially was
instructed that the defendant was charged with first-degree sexual
assault and attempted armed robbery. Id. ¶ 7. During deliberations,
the jury requested instructions on lesser-included offenses, which
the trial court initially rebuffed. Id. ¶ 8. The jury later informed the
court it was deadlocked and “needed a new way to deliberate.”
Id. ¶¶ 6, 21. The state moved to instruct the jury on lesser-included
offenses and, after fourteen hours of deliberations, the court agreed
and instructed the jury on the new lesser-included offenses.
Id. ¶¶ 7-8. Less than two hours after receiving this new instruction,



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                          STATE v. VILLA
                         Opinion of the Court

the jury convicted the defendant of one of those lesser-included
offenses. Id. ¶ 9.

¶12            In reversing the conviction, the Wisconsin Court of
Appeals first noted that the jury reasonably could have seen the trial
court’s “change of heart” on providing the lesser-included
instructions “‘as the court’s recommendation to resolve the impasse
by agreeing to the lesser offense.’” Id. ¶ 19, quoting Welbeck, 145 F.3d
at 497. Additionally, the relative speed with which the jury returned
the guilty verdict suggested the jury “may have been driven more
by [its] desire to be released from its duty than its having reached a
fair decision.” Id. ¶ 20. The jury’s note that it “needed a new way to
deliberate” was particularly concerning and suggested that the
verdict was used as a “way of ending their deadlock rather than
reaching a unanimous decision.” Id. ¶ 21. Consequently, the court
found the instruction improper and the defendant entitled to a new
trial. Id. ¶ 26.

¶13           Similarly, in Jones, the defendant was charged with
three offenses, and the trial court did not instruct the jury initially on
any lesser-included offenses. 518 A.2d at 497. The jury spent over a
day deliberating before announcing it had come to a verdict on one
of the charges, but was deadlocked on the other two. Id. at 497-98.
Shortly after that announcement, the court sua sponte instructed the
jury on a lesser-included offense of one of the two charges causing
difficulty. Id. at 498. Thirty minutes later the jury returned a guilty
verdict on that lesser-included offense. Id. On appeal, the court
reversed the conviction and observed that offering “a deadlocked or
apparently deadlocked jury with a theretofore uncharged lesser-
included offense is unduly and unfairly coercive.” Id. at 499.

¶14          In Stouter, the jury initially was tasked with deciding
whether the defendant was guilty of one specific charge. 75 P. at
780. It deliberated for twenty-four hours before requesting further
instructions. Id. The dialogue between the trial court and the jury
made clear that the jury was unable to agree the alleged crime had
been committed in the manner alleged in the information. Id. at 780-
81. The trial court then, for the first time, instructed the jury on
attempt as a lesser-included offense. Id. at 781. The jury retired and



                                    6
                        STATE v. VILLA
                       Opinion of the Court

returned a guilty verdict on the newly provided attempt charge. Id.
On appeal, the court observed that:

            There is no doubt of the general rule that
            after a jury have retired for consultation
            they may be called into court for further
            instructions; but we think that it was
            erroneous and unfair to defendant to give
            the last instruction as to the attempt, at the
            time and under the circumstances at and
            under which it was given. . . . The project
            of instructing the jury for the first time,
            after they had been unable to agree for 24
            hours, that they might, notwithstanding the
            former instructions, convict the defendant
            of the attempt, was clearly an afterthought
            suggested by the statements of the jurors as
            to how they then stood, and apparently
            intended to help them, not generally to
            arrive at a verdict, but to arrive at some
            sort of a verdict of guilty.         Such a
            proceeding is, we think, a most dangerous
            interference with the right of a defendant to
            a fair trial. . . . Moreover, the jury might
            very well have considered the last
            instruction as an intimation of the desire of
            the court that the defendant be convicted of
            some offense. Jurors exhausted by a long
            confinement, and naturally desirous of
            being released, are not in a suitable frame
            of mind to thoroughly consider an entirely
            new phase of the case under a new
            instruction which might fairly be construed
            as an expression of the court hostile to the
            defendant.

Id. Consequently, the court reversed the defendant’s conviction and
remanded for a new trial. Id. at 782.




                                  7
                          STATE v. VILLA
                         Opinion of the Court

¶15           Another common concern is that “the defendant has
somehow been harmed by his reasonable expectation that he faces
exposure to liability only for the greater offense charged.” Welbeck,
145 F.3d at 497. This often occurs “where the supplemental
instruction deprives the defendant of the opportunity to address
effectively in summation the offense on which he is ultimately
convicted.” Id.; see also United States v. Gaskins, 849 F.2d 454, 459-60
(9th Cir. 1988); Rollins v. State, 757 P.2d 601, 602 (Alaska Ct. App.
1988); Garza, 55 S.W.3d at 77-78; People v. Millsap, 724 N.E.2d 942,
947-48 (Ill. 2000); People v. Richards, 413 N.Y.S.2d 698, 699 (App. Div.
1979); Thurmond, 677 N.W.2d 655, ¶¶ 24-25; but see Cheely v. State,
850 P.2d 653, 663 (Alaska Ct. App. 1993) (no “detrimental reliance”
where state did not explicitly disavow “theft by receiving” theory
and theory encompassed by general instruction on theft).

¶16          In Garza, for example, the defendant was charged with
aggravated kidnapping after the state alleged he forced the victim
into her truck at knifepoint and held her there for several hours. 55
S.W.3d at 75-76. During closing arguments, the defendant “stressed
that the victim had not been taken without her consent, and that a
knife was not used.” Id. at 77. After retiring to deliberate, the jury
sent a note to the trial court stating it was “hung” because there was
“not enough evidence that the defendant actually had the knife in
his possession.” Id. at 76. Over the defendant’s objections, the court
sua sponte instructed the jury on the lesser-included offense of
kidnapping, which did not require the use of a knife. Id. at 76-77.
The defendant also objected to the court’s offer to provide
supplemental closing argument because his “entire defense was
built around the aggravated kidnapping charge and so [he] had not
prepared any part of [his] defense for a lesser included.” Id. at 76.
The court overruled the objection and the parties provided
additional argument. Id. The jury then received the new instruction
and, just four minutes later, returned a guilty verdict on the
kidnapping charge. Id.

¶17          In reversing the conviction, the Garza court found that
instructing the jury on kidnapping “vitally affected a defensive
theory.” Id. at 78. “The jury’s note clearly shows that the jury was
hung on the issue of whether appellant used a knife in the offense.


                                   8
                          STATE v. VILLA
                         Opinion of the Court

The trial court’s decision to supplement the charge with the
kidnapping charge effectively overrode the professional judgment of
appellant’s counsel that there was not enough evidence to convict
appellant on the aggravated kidnapping charge and that the jury
would have to acquit him.” Id. at 77-78. Under those circumstances,
“the opportunity to ‘re-close’ did not cure [the] defect.” Id. at 78.

¶18         In sum, courts have reversed convictions when lesser-
included offense instructions were given during deliberations

             when it appeared likely that the jury saw
             the belated instructions as a court
             recommendation to convict; when the
             timing of the instructions makes the new
             instruction appear overly significant,
             upsetting the orderly process of the trial
             and upsetting the defendant’s right to a fair
             trial; when the defendant’s presentation of
             his    case   is   harmed;      and    when
             circumstances suggest the verdict was
             driven by a stalled jury’s desire to disband
             rather than complete a fair assessment of
             the evidence.

Thurmond, 677 N.W.2d 655, ¶ 17. Although the addition of a new
lesser-included charge during jury deliberations “is dangerous and
will often cause reversible error, it is not per se illegal and will not
justify reversal if the circumstances do not give rise to unfair
prejudice.” Welbeck, 145 F.3d at 497.

¶19          Notably, although many courts have reversed
convictions when a lesser-included offense was submitted to the
jury for the first time during deliberations, a few courts have
affirmed such convictions. See Welbeck, 145 F.3d at 497-98; Miller, 392
S.E.2d at 336; Cheely, 850 P.2d at 663. In Welbeck, the defendant was
charged with possession of cocaine with the intent to distribute. 145
F.3d at 495. The jury sent two notes to the trial court, stating it was
“stuck on ‘distribution,’” and asking if there was a lesser charge
upon which they could convict the defendant. Id. at 495-96. The
court then instructed the jury on the lesser-included offense of


                                   9
                          STATE v. VILLA
                         Opinion of the Court

simple possession. Id. at 496. Although the defendant objected, he
did not request additional closing arguments. Id. Fifteen minutes
later, the jury convicted the defendant of simple possession. Id. The
Second Circuit Court of Appeals concluded the defendant was not
unfairly prejudiced. Id. at 497. The court found that because the
jury supplied the initiative for the supplemental instruction, “the
possibility that the timing of the charge was unfairly suggestive”
was precluded. Id. at 497. And the court could find no other
evidence in the record suggesting the defendant was unfairly
prejudiced. Id.

¶20           Under the circumstances here, Villa has not shown he
was unfairly prejudiced by the trial court’s actions. Unlike many of
the cases cited above, nothing suggested the jury was stalled or
deadlocked when it sent its note to the court. The jury had been
deliberating for a few hours and the note only requested a
clarification of the instructions. It therefore does not appear this was
a “stalled jury” which “regard[ed] the newly furnished theory of
liability as the court’s recommendation to resolve the impasse by
agreeing to the lesser offense.” See Welbeck, 145 F.3d at 497.

¶21           Additionally, after receiving the new instructions, the
jury retired for the night, and deliberated the following day into the
afternoon. Rather than a speedy turnaround suggesting the jury
“may have been driven more by [its] desire to be released from its
duty than its having reached a fair decision,” Thurmond, 677 N.W.2d
655, ¶ 20, the jury here appears to have deliberated carefully over
the new lesser-included offense. Additionally, the court told the
jury it had neglected to give the instruction earlier, so the new
instruction did not appear to be a response to the jury’s question or
deliberations. See Govan, 154 Ariz. at 613, 744 P.2d at 714 (not error
to re-instruct jury after error in instructions found). Under these
circumstances, the court’s decision to provide the lesser-included
instruction was not “essentially coercive or . . . persuasive.” See
Amos, 553 S.W.2d at 704.

¶22          Finally, Villa’s defense was that he only had been
“driv[ing] a friend and driv[ing] in the friend’s car,” and that he did
not know the vehicle contained drugs or that his friend was
involved in a drug deal. Adding the possession of a dangerous drug

                                  10
                          STATE v. VILLA
                         Opinion of the Court

for sale charge did not add any new elements to the state’s case that
Villa had not yet been able to address. See A.R.S. § 13-3407(A)(1), (2)
and (7). Villa’s defense therefore applied equally to all the charges
ultimately presented to the jury, including possession of a
dangerous drug for sale.

¶23          At oral argument, Villa suggested he might have
argued the case differently had he known he would face the lesser-
included instruction on possession of a dangerous drug for sale. But
he was unable to provide any specific examples of how he would
have done so and instead merely reiterated his general speculation.
Moreover, the trial court did, in fact, offer Villa the chance to
provide additional closing argument on the new charge, but Villa
expressly declined. This supports our conclusion that Villa’s
defense was not compromised by instructing the jury on possession
of a dangerous drug for sale. See Cheely, 850 P.2d at 663; see also, e.g.,
Thurmond, 677 N.W.2d 655, ¶ 24; Garza, 55 S.W.3d at 78. Having
reviewed the record, we find the facts and circumstances do not
establish that Villa’s right to a fair trial was jeopardized by the trial
court’s actions. See Welbeck, 145 F.3d at 497; see also Thurmond, 677
N.W.2d 655, ¶ 17.

¶24          Rule 22.3 allows the court to “give appropriate
additional instructions” after deliberations have begun. Rule 23.3,
Ariz. R. Crim. P., requires the trial court to submit forms of verdict
to the jury “for all offenses necessarily included in the offense
charged.” See State v. Gipson, 229 Ariz. 484, ¶¶ 14, 17, 277 P.3d 189,
191-92 (2012) (not error for court to instruct on lesser-included
offenses supported by evidence over party’s objection). Therefore,
although “[w]e will carefully scrutinize a conviction of a lesser-
included offense first charged to a deliberating jury without notice
to the defendant prior to summation,” Welbeck, 145 F.3d at 497,
under these particular facts we conclude Villa was not unfairly
prejudiced and the court did not abuse its discretion in granting the
state’s request. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d at 616-17.

                Right to Effective Closing Argument

¶25         Villa next argues he was denied his constitutional due
process rights because he could not re-argue to the jury after it


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                        STATE v. VILLA
                       Opinion of the Court

received the instruction on possession of a dangerous drug for sale.
The invited error doctrine, however, bars a defendant from raising
an issue on appeal if he “affirmatively and independently initiated
the error” below. State v. Lucero, 223 Ariz. 129, ¶ 31, 220 P.3d 249,
258 (App. 2009).

¶26           During the discussion regarding instructing the jury on
possession of a dangerous drug for sale as a lesser-included offense,
the trial court suggested it would reopen the case for additional
arguments if either party requested it. Villa responded by stating
that “if [the court is] going to add [possession of a dangerous drug
for sale], nobody gets to say anything else.” Villa therefore
“affirmatively and independently initiated” any possible error and
we reject his claim as invited error. See id.

                            Disposition

¶27         For the foregoing reasons, we affirm Villa’s convictions
and sentences.




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