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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JOSHUA STEVEN COHN, Appellant.

                             No. 1 CA-CR 15-0590
                              FILED 5-24-2016


          Appeal from the Superior Court in Maricopa County
                        No. CR2014-00584-001
           The Honorable Brian D. Kaiser, Judge Pro Tempore
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Adams
Counsel for Appellant
                             STATE v. COHN
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


G O U L D, Judge:

¶1             Joshua Steven Cohn (“Defendant”) appeals from his
convictions and sentences for two counts of aggravated DUI. He argues the
court violated his constitutional right to be present at trial when, after his
girlfriend’s death, it denied his motion for a mistrial or a continuance on the
grounds he was too mentally distraught to participate in the trial. For the
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Defendant was stopped by police at 2:30 a.m. because his car's
license plate light was out. The officers noticed signs of impairment and
performed field sobriety tests. Based on Defendant’s performance, he was
arrested for suspicion of DUI and required to submit to a blood draw. The
blood test revealed Defendant had amphetamine and methamphetamine in
his system. Defendant’s license was suspended at the time of the traffic
stop.

¶3              Defendant was charged with two counts of aggravated DUI,
both class four felonies. On May 26, 2015, after jury selection was complete,
Defendant’s long-term girlfriend was killed in a traffic accident. Before the
start of trial on May 27, Defendant moved for a mistrial or a continuance on
the grounds he was too distraught to participate in the trial or assist his
attorney.

¶4             The court verified that Defendant’s girlfriend had been killed
on May 26. However, the court denied Defendant’s motion for a mistrial
or, alternatively, a four-day continuance. Instead, the court granted a one-
day continuance to May 28.

¶5           Trial resumed the next morning, May 28. The State filed a
motion in limine to preclude any mention of Defendant’s girlfriend’s death,
and Defendant sought reconsideration of his motion for mistrial. The court
granted the State’s motion and denied Defendant’s motion for



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                             STATE v. COHN
                            Decision of the Court

reconsideration.   Trial commenced and the State began presenting its
evidence.

¶6           After the weekend, on June 1, Defendant filed a Rule 11
motion claiming he was not competent to stand trial. The court denied the
motion based on its observations of Defendant on May 28. Specifically, the
court explained that it had observed Defendant’s demeanor during the
proceedings on May 28 and had noted Defendant was alert, calm, taking
notes, and communicating with his attorney.

¶7           Defendant was convicted of both counts. The State proved
Defendant had a historical prior felony conviction. Accordingly, the court
sentenced Defendant to concurrent terms of 3.5 years’ imprisonment.
Defendant timely appealed.

                               DISCUSSION

¶8             Defendant argues the court violated his due process right to
be present at trial by denying his motion for mistrial and only granting him
a one-day continuance. Defendant was physically present for the entire
trial; however, he argues his emotional distress over the recent death of his
girlfriend rendered him mentally absent throughout the trial. He asserts
this mental absence amounted to structural error.

I.     Structural Error

¶9            Structural error is error that infects “’the entire trial process’
from beginning to end.” State v. Ring, 204 Ariz. 534, 553, ¶ 46 (2003)
(quoting Neder v. United States, 527 U.S. 1, 8 (1999)). To determine whether
a defendant’s absence may be structural error, we consider “the character
of the proceeding from which the defendant was excluded . . . to ascertain
the impact of the constitutional violation on the overall structure of the
criminal proceeding.” State v. Garcia-Contreras, 191 Ariz. 144, 148, ¶ 16
(1998) (quoting Hegler v. Borg, 50 F.3d 1472, 1477 (9th Cir. 1995)).

¶10            Defendant was physically present for the entire trial. In
addition, the record shows he was mentally engaged during all significant
portions of the trial including jury selection and presentation of the State’s
case. On the second day of trial, after his girlfriend’s death, Defendant’s
attorney saw him quietly crying while the court read the preliminary jury
instructions. After trial was continued to the morning of May 28, the court
observed that Defendant was mentally present and engaged, and was
assisting his attorney during the trial.



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                             Decision of the Court

¶11           Accordingly, we conclude Defendant was not involuntarily
absent from any portion of the trial. Compare Garcia-Contreras, 191 Ariz. at
149 ¶¶ 17, 22 (defendant’s involuntary physical absence during jury
selection, resulting from a delay in the arrival of the defendant’s civilian
clothing for trial, was structural error). We therefore find no structural
error.

II.    Motion for Mistrial

¶12           A trial court has broad discretion to grant or deny a motion
for mistrial. State v. Bible, 175 Ariz. 549, 598 (1993). This remedy “’should
be granted only when it appears that justice will be thwarted unless the jury
is discharged and a new trial granted.’” State v. Dann, 205 Ariz. 557, 570, ¶
43 (2003) (quoting State v. Adamson, 136 Ariz. 250, 262 (1983)).

¶13          The record shows Defendant was emotional and visibly upset
on May 27. The court, however, decided to grant the interim remedy of a
short continuance rather than the drastic remedy of a mistrial. After the
continuance, when trial commenced on May 28, Defendant appeared to be
calm, attentive and engaged. Based on the record, we are unable to
conclude the court abused its discretion in denying Defendant’s motion for
mistrial.

III.   Motion to Continue

¶14           We review the trial court’s denial of a motion to continue for
an abuse of discretion. State v. Forde, 233 Ariz. 543, 555, ¶ 18 (2014). We
will not disturb the trial court’s ruling “unless it clearly appears that the
discretion of the trial court has been so abused as to prejudice the
defendant.” State v. Eisenlord, 137 Ariz. 385, 391 (App. 1983).

¶15           The court acted within its discretion in granting a one-day
continuance and denying Defendant’s request for a four-day continuance.
A number of factors weighed in the court’s decision. The court explained
that a longer continuance was unlikely to significantly alter Defendant’s
emotional situation, and the stress of trial would also be present if a longer
continuance were granted. Additionally, the court considered the limited
availability of the jury and its own calendar conflicts, which weighed
against a longer continuance.

¶16          Finally, the record shows the court’s decision did not
prejudice Defendant. During presentation of the evidence, Defendant was
able to take notes, communicate with his attorney, and maintain a calm
demeanor. Defendant does not now contend that grief prevented him from


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                            STATE v. COHN
                           Decision of the Court

testifying. Indeed, although there was discussion of Defendant’s intent to
testify during trial, the court’s ruling permitting the State to impeach
Defendant with his two prior felony convictions likely weighed in
Defendant’s ultimate decision not to testify. Thus, in our review, the court’s
grant of a short continuance was not an abuse of its discretion.1

                              CONCLUSION

¶17          For the reasons above, we affirm Defendant’s convictions
and sentences.




                                    :ama




1       The sudden and extraordinary nature of the circumstances in this
case, in combination with the demands of a busy criminal calendar, placed
the court in a difficult position. However, it is incumbent upon the court to
apply justice humanely. Although it was within the court’s discretion to
grant a one-day continuance, the more compassionate remedy may have
been to grant a longer continuance.


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