                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                          v.

            CHRISTOPHER WILLIAM SYLVESTER, Appellant.

                              No. 1 CA-CR 13-0543
                               FILED 06-17-2014


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201200503
                  The Honorable Derek Carlisle, Judge
                 The Honorable Steven F. Conn, Judge

                                    AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Mohave County Legal Advocate Attorney’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                          STATE v. SYLVESTER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the
Court, in which Judge Maurice Portley and Judge Andrew W. Gould
joined.


W I N T H R O P, Presiding Judge:

¶1            Christopher William Sylvester (“Appellant”) appeals his
convictions and sentences for possession of drug paraphernalia and
misconduct involving a weapon. Appellant argues the State improperly
commented on the fact that he had invoked his Fifth Amendment right to
remain silent. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY 1

¶2            On April 5, 2012, police officers executed a search warrant at
a residence in Bullhead City, Arizona. They found Appellant and a
woman lying on a bed in the front bedroom, with a loaded handgun on
the nightstand next to Appellant. Next to the bed, the officers found a
shower kit that contained men’s toiletry items and a glass
methamphetamine pipe. On the covers near the middle of the bed, the
officers found a small marijuana pipe, which contained burnt marijuana
residue and fresh marijuana packed into the pipe.

¶3           Appellant was charged by indictment with Count V,
possession of drug paraphernalia, a class six felony, in violation of
Arizona Revised Statutes (“A.R.S.”) section 13-3415 (West 2014) 2; Count
VI, possession of marijuana, a class six felony, in violation of A.R.S. § 13-
3405(A)(1); and Count VII, misconduct involving a weapon, a class four
felony, in violation of A.R.S. § 13-3102(A)(4). At trial, the parties
stipulated Appellant had been convicted of a felony and his right to


1      We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Appellant. See State
v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997).

2      We cite the current version of each statute unless revisions material
to our decision have occurred after the relevant date.



                                     2
                           STATE v. SYLVESTER
                            Decision of the Court

possess a gun had not been restored - i.e., he was a prohibited possessor.
The jury found Appellant guilty of Counts V and VII as charged, and not
guilty of Count VI. After finding Appellant had one historical prior felony
conviction, the court sentenced Appellant to consecutive mitigated
sentences of one year in prison for Count V and three years’ imprisonment
for Count VII. We have jurisdiction over Appellant’s timely appeal
pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S.
§§ 13-4031 and 13-4033.

                                 ANALYSIS

¶4           At trial, the following exchange took place between defense
counsel and a testifying police officer who was present during Appellant’s
arrest:

       Q: Did you ever have an opportunity to ask [Appellant]
       about him having a vehicle there?

       A: Both the subjects in the bed, including [Appellant],
       invoked their rights, so there was no questioning beyond
       that.

Defense counsel approached the bench and objected to the answer as an
impermissible comment on Appellant’s right to remain silent. The
prosecutor argued the answer should have been expected, and the court
agreed. Nonetheless, the court instructed the jury to disregard the answer
and struck it from the record.

¶5           Appellant argues his convictions should be reversed because
“the officer intentionally volunteered the extra and unnecessary
information that Appellant invoked his Miranda[3] rights, rather than just
answering the question in the negative.” We disagree.

¶6            In general, a defendant’s right to due process is violated
when the State elicits testimony from a witness at trial that the defendant
asserted his right to remain silent. See State v. Gilfillan, 196 Ariz. 396, 406,
¶¶ 36-37, 998 P.2d 1069, 1079 (App. 2000). A defendant who invites error
at trial, however, may not then assign the same as error on appeal. State v.
Pandeli, 215 Ariz. 514, 528, ¶ 50, 161 P.3d 557, 571 (2007) (citations
omitted); accord State v. Logan, 200 Ariz. 564, 565-66, ¶¶ 9, 11, 30 P.3d 631,
632-33 (2001) (recognizing the invited error doctrine precludes a party

3      Miranda v. Arizona, 384 U.S. 436 (1966).



                                       3
                           STATE v. SYLVESTER
                            Decision of the Court

from injecting error into the record and then profiting from it on appeal
(citations omitted)).

¶7             In this case, the police officer’s testimony that Appellant had
“invoked [his] rights” was directly responsive to a question posed by
defense counsel. Because it was Appellant’s own counsel – and not the
prosecutor – who elicited the testimony, Appellant’s argument is
foreclosed by the invited error doctrine. Consequently, Appellant cannot
use the alleged error as grounds for reversal on appeal. See Pandeli, 215
Ariz. at 528, ¶ 50, 161 P.3d at 571.

¶8            Moreover, even if the officer’s statement could be attributed
to the State, that statement was the only reference to Appellant’s Fifth
Amendment rights made during trial, and the court immediately struck
the statement and instructed the jury to disregard it. We presume jurors
follow a court’s instructions. State v. Newell, 212 Ariz. 389, 403, ¶ 69, 132
P.3d 833, 847 (2006). Here, the plain facts of the case, as well as the trial
court’s prompt instruction striking the officer’s statement and directing
the jury to disregard it, render the statement harmless beyond a
reasonable doubt. See State v. Anderson, 110 Ariz. 238, 241, 517 P.2d 508,
511 (1973) (acknowledging the doctrine of harmless error may be applied
“when the evidence of guilt is overwhelming and the record reflects that
the error, though fundamental, did not contribute to the guilty verdict”).

                              CONCLUSION

¶9            Appellant’s convictions and sentences are affirmed.




                                   :gsh




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