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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    PHILLIP MERIL GRIFFET, Appellant.

                             No. 1 CA-CR 16-0240
                               FILED 6-20-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-001258-001
              The Honorable George H. Foster, Jr., Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Law Office of Kyle T. Green, PLLC, Tempe
By Kyle T. Green
Counsel for Appellant
                             STATE v. GRIFFET
                            Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Jennifer B. Campbell joined.


J O H N S E N, Judge:

¶1            Phillip Meril Griffet appeals his conviction and the sentence
imposed after a jury found him guilty of sexual conduct with a minor.
Griffet argues insufficient evidence supported the jury's verdict and
contends the court therefore erred when it denied his motion for judgment
of acquittal. He also argues the court erred in denying his motion for a new
trial based on alleged juror misconduct. For the following reasons, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             The State indicted Griffet on one count of sexual conduct with
a minor under the age of 15, in violation of Arizona Revised Statutes
("A.R.S.") section 13-1405 (2017).1 After the jury found Griffet guilty, the
court sentenced him to life imprisonment without the possibility of release
for 35 years. Griffet moved for a new trial, claiming jurors received
evidence not admitted at trial. The court held an evidentiary hearing at
which the jury foreman testified; the court then denied the motion.

¶3            Griffet timely appealed the court's denial of his motion for a
directed verdict and motion for a new trial. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2017), 13-4031 (2017) and -4033(A) (2017).

                               DISCUSSION

A.     Motion for a Directed Verdict.

¶4             The court shall enter a judgment of acquittal "if there is no
substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a); accord
State v. Davolt, 207 Ariz. 191, 212, ¶ 87 (2004). "Substantial evidence is that
which reasonable persons could accept as sufficient to support a guilty
verdict beyond a reasonable doubt." Davolt, 207 Ariz. at 212, ¶ 87. Evidence

1      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


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                             STATE v. GRIFFET
                            Decision of the Court

is substantial if reasonable jurors could disagree about whether it
establishes a fact in issue. Id. The requisite substantial evidence may be
direct or circumstantial. State v. Escalante-Orozco, 241 Ariz. 254, 282, ¶ 105
(2017). When reasonable jurors could differ "on inferences drawn from the
facts," the court "may not re-weigh the facts or disregard [those] inferences,"
and "has no discretion to enter a judgment of acquittal." State v. West, 226
Ariz. 559, 563, ¶ 18 (2011) (quoting State v. Lee, 189 Ariz. 590, 603 (1997)).
We review the superior court's denial of a Rule 20 motion de novo. Id. at 562,
¶ 15.

¶5            Griffet was charged with intentionally or knowingly
engaging in "oral sexual contact" with a minor under the age of 15, in
violation of A.R.S. § 13-1405. Oral sexual contact means "oral contact with
the penis, vulva or anus." A.R.S. § 13-1401(A)(1) (2017). The vulva is "the
external part of the female genital organ[]," whereas "the vagina is the canal
leading from the uterus to the external orifice of the genital canal." State v.
Marshall, 197 Ariz. 496, 506, ¶ 38 (App. 2000).

¶6             At trial, a witness testified that as she walked toward Griffet's
vehicle in a restaurant parking lot, she noticed the vehicle was "rocking just
slightly."2 As the witness neared the driver's side of the vehicle, she saw
Griffet inside, bent over, with his back facing the driver's window. The
witness saw the seven-year-old victim in either the front passenger or back
seat, naked "from the waist down," with her "legs . . . open." The witness
testified she saw Griffet's head near the victim's vagina, and that she could
see the victim's vagina. Although the witness did not testify she saw Griffet
make oral contact with the victim's vulva, based on the evidence presented,
the jury could reasonably infer such contact occurred; that was the inference
the witness drew when she testified she saw Griffet's head "in" the victim's
vagina.3

¶7          As this account makes clear, the jury received sufficient
evidence to conclude Griffet was guilty of the charged offense. The



2       On appeal, we view the facts in the light most favorable to sustaining
the jury verdict and resolve all reasonable inferences against the defendant.
State v. Lee, 189 Ariz. 608, 615 (1997).

3      The State also presented DNA evidence supporting the verdict: A
forensic scientist testified the victim's underwear yielded DNA evidence
that matched the Y-STR DNA profile on a buccal swab obtained from
Griffet.


                                       3
                             STATE v. GRIFFET
                            Decision of the Court

superior court, therefore, did not err in denying Griffet's motion for
judgment of acquittal.

B.     Motion for a New Trial.

¶8            During deliberations, the jury was given a laptop computer to
watch surveillance footage admitted in evidence. A member of the jury
discovered a disk in the computer's disk drive. The disk was labeled
"Witness interviews," and seemed to identify the victim's two guardians as
the witnesses. Jurors immediately called the bailiff, who retrieved the disk
shortly thereafter. After learning of the incident, the court informed the
parties that same afternoon. Griffet moved for a mistrial based on juror
misconduct, and the court set an evidentiary hearing to determine "what
had happened to that CD while it was in the jury room."

¶9             At the hearing, the jury foreman testified that when another
juror turned on the computer and opened the disk drive, there was already
a disk inside the drive. The disk, the foreman said, was "labeled interview
of some kind," but he did not remember the exact title. He also testified the
computer was "still initializing, turning on" when the drive opened, and so
no video or audio played before the disk was discovered. Upon discovering
the disk, he explained, jurors called the bailiff, who arrived within minutes
to collect the disk. He testified jurors did not discuss the disk further. After
considering the jury foreman's testimony, the court denied the motion for a
new trial, finding "there was nothing about the existence of the CD in the
computer that [led] to any further deliberation or discussion by the jury,"
and the "advent of the CD . . . [did not] result[] in any demonstrated
prejudice" to Griffet.

¶10           Griffet argues that even though the jury did not play the disk,
because its label indicated it contained recorded interviews of the victim's
guardians, the jury could have learned that evidence was available but not
admitted, which "violated the spirit of the Rules." Griffet adds that whether
the two guardians were interviewed by police was "[o]ne of the points of
contention" at trial.

¶11            The court may grant a new trial for juror misconduct when a
jury or juror "receive[s] evidence not properly admitted during the trial."
Ariz. R. Crim. P. 24.1(c)(3)(i). But it is not sufficient that the evidence have
been available for review by the jury: A defendant seeking a new trial on
this ground "bears the initial burden of proving that jurors received and
considered extrinsic evidence." State v. Olague, 240 Ariz. 475, 481, ¶ 21 (App.
2016) (emphasis added). If a defendant meets this burden, "prejudice must



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                             STATE v. GRIFFET
                            Decision of the Court

be presumed and a new trial granted unless the prosecutor proves beyond
a reasonable doubt that the extrinsic evidence did not taint the verdict."
State v. Hall, 204 Ariz. 442, 447, ¶ 16 (2003). Prejudice is not presumed,
however, "without the requisite showing that the jury received and
considered extrinsic evidence on the issues." Davolt, 207 Ariz. at 208, ¶ 59.
We review the superior court's ruling on a motion for new trial for an abuse
of discretion. Hall, 204 Ariz. at 447, ¶ 16.

¶12           Griffet's motion merely argued the jurors saw the disk and
that the label on the disk reflected it contained interviews of the victim's
guardians. Griffet concedes jurors did not listen to the recording, a
concession reflecting the foreman's testimony that the computer was still
powering up when the jurors opened the drive, and no video or audio
played from the disk. Most significantly, Griffet has shown no prejudice
from the purported juror misconduct. The foreman testified the jury did
not discuss the disk, explaining that "wasn't part of the evidence . . . [s]o we
knew not to view it, [or] . . . read it." Finally, although the witnesses'
interviews were not admitted at trial and there was some contention about
the content of the interviews, the jury already knew from trial proceedings
that the interviews had occurred. Even if the jurors had noticed the
guardians' names on the disk, the fact that they had been interviewed
would not have been new information sufficient to "taint the verdict." See
Hall, 204 Ariz. at 447, ¶ 16.

¶13           Accordingly, the superior court did not err in denying
Griffet's motion for a new trial based on purported juror misconduct under
Rule 24.1(c)(3)(i).

                               CONCLUSION

¶14           For the foregoing reasons, we affirm Griffet's conviction and
sentence.




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




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