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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

         ERVIN THEODORE VALANDINGHAM, JR., Appellant.

                             No. 1 CA-CR 16-0282
                               FILED 5-18-2017


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-123294-001
         The Honorable Richard L. Nothwehr, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

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



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.


J O N E S, Judge:

¶1            Ervin Valandingham appeals his conviction and sentence for
one count of forgery, arguing the trial court abused its discretion in denying
his motion for mistrial. For the following reasons, we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2             On a Friday evening in November 2011, Josefina P. placed a
money order in her apartment complex’s drop box to pay her rent. When
Josefina followed up with the complex the next day, the staff informed her
they had not received her rent payment. Thereafter, the company that
issued Josefina the money order told her it had been cashed and instructed
her to file a police report.

¶3           Police obtained a copy of the money order, which appeared
to have been altered to list Valandingham as the payee. When interviewed,
Valandingham stated he received the money order from a man named Jose
as payment for landscaping work. Valandingham did not have an
explanation for the alterations. Nor could Valandingham provide any
documentation to corroborate his story.

¶4            On the third day of a six-day jury trial, Valandingham moved
for a mistrial, alleging he had been prejudiced by the Maricopa County
Sheriff’s Department’s mishandling of his civilian clothing. Specifically,
Valandingham’s counsel related how he had brought Valandingham’s
clothing the day of jury selection, but the deputy would not accept it
because the clothing was not properly packaged. When counsel returned,
he “found the shirt on the floor in the lobby where it obviously had been
trampled upon . . . [a]nd as you can see it’s stained on the front.” The trial


1      “We view the evidence and all reasonable inferences therefrom in
the light most favorable to sustaining the jury’s verdict[].” State v. Miles,
211 Ariz. 475, 476, ¶ 2 (App. 2005) (citing State v. Riley, 196 Ariz. 40, 42, ¶ 2
(App. 1999)).


                                       2
                       STATE v. VALANDINGHAM
                          Decision of the Court

court judge observed “three white marks from [the bench] that are the size
of a 12-point typewriter setting.”      Accordingly, the court found
Valandingham was not prejudiced thereby and denied the motion for
mistrial.

¶5            On the third day of trial, Valandingham identified Josefina’s
son, who was named Jose, as the man who paid him for the landscaping
services. He thereafter defended the charge on the theory that Jose stole his
mother’s money order to pay for landscaping services. Valandingham
called Thomas B. as a witness to corroborate his story that the two worked
a landscaping job in November 2011 and were paid by a man named Jose.
Josefina’s son testified he did not take his mother’s money order, did not
know Valandingham, and had never held a landscaping job.

¶6            The jury found Valandingham guilty of forgery, and, after
Valandingham admitted two historical prior felony convictions, the trial
court sentenced him as a non-dangerous, repetitive offender to an
aggravated term of twelve years’ imprisonment. In response to a petition
for post-conviction relief, the court allowed Valandingham to file a delayed
notice of appeal. Valandingham timely complied, and this Court has
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1),2 13-4031, and -4033(A)(1).

                               DISCUSSION

¶7             Valandingham argues the trial court abused its discretion in
denying his motion for mistrial, asserting he was deprived his “garb of
innocence” for trial. “We review the denial of a motion for mistrial for [an]
abuse of discretion.” State v. Hardy, 230 Ariz. 281, 292, ¶ 52 (2012) (citing
State v. Speer, 221 Ariz. 449, 462, ¶ 72 (2009)). “[B]ecause 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,” the decision on a motion for
mistrial “will be reversed only if it is clearly injurious.” State v. Williams,
209 Ariz. 228, 239, ¶ 47 (App. 2004) (internal quotation and citations
omitted).

¶8          Without question, a criminal defendant has the right “to
appear in civilian clothing and be free from visible restraints in the
courtroom during trial.” Hardy, 230 Ariz. at 292, ¶ 54 (citations omitted).


2     Absent material changes from the relevant date, we cite a statute’s
current version.


                                      3
                        STATE v. VALANDINGHAM
                           Decision of the Court

Thus, a defendant may not be compelled to appear before a jury in prison
attire. State v. Garcia-Contreras, 191 Ariz. 144, 146-47, ¶ 8 (1998) (citing Estelle
v. Williams, 425 U.S. 501, 512 (1976), and State v. Jeffers, 135 Ariz. 404, 416
(1983)). However, violation of these rights does not entitle that defendant
to a new trial absent a showing of actual prejudice. See Hardy, 230 Ariz. at
292, ¶ 54.

¶9           Valandingham does not allege, and the record does not
indicate, he was forced to wear identifiable prison attire. Rather,
Valandingham asserts his initial set of civilian clothing was mishandled,
and he was then refused the ability to receive a second set. Valandingham
contends that, as a result, he presented a dirty appearance analogous to
appearing in prison attire or shackles.

¶10            We disagree. First, the record reflects defense counsel had not
complied with guidelines for safely providing clothing to defendants in
custody. Second, the trial court personally inspected Valandingham’s
civilian clothing and preserved the inspection on the record, noting the
clothing remained adequate despite a few blemishes barely detectable from
the bench. On these facts, Valandingham’s allegedly unkempt appearance
did not undermine the presumption of innocence to the same degree as
forcing him to appear in prison attire. We find no abuse of discretion.

                                 CONCLUSION

¶11            Valandingham’s conviction and sentence are affirmed.




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




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