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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       NEIL RYAN MENTE, Appellant.

                             No. 1 CA-CR 15-0649
                                 1 CA-CR 15-0654
                                 1 CA-CR 15-0656
                                 1 CA-CR 16-0077
                                  (Consolidated)
                                  FILED 5-9-2017


          Appeal from the Superior Court in Maricopa County
                        No. CR2013-000411-001
                             CR2006-164038-001
                            CR 2005-033349-001
          The Honorable Virginia L. Richter, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
                            STATE v. MENTE
                           Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.


J O H N S E N, Judge:

¶1            Neil Ryan Mente appeals his conviction of taking the identity
of another, a Class 4 felony. He argues the superior court erred by
instructing the jury in a manner that permitted it to come to a non-
unanimous verdict. We affirm the conviction, the resulting revocations of
probation and the sentences imposed.1

             FACTS AND PROCEDURAL BACKGROUND

¶2             In the early morning hours of November 28, 2012, a police
officer stopped Mente for speeding.2 When the officer asked Mente for his
driver's license, Mente handed the officer a valid Arizona identification
card and admitted that his driver's license was suspended. As a result, the
officer returned to his patrol car and prepared to have Mente's vehicle
towed. Meanwhile, Mente emptied his pockets and handed the contents to
his girlfriend, who was sitting in the front passenger seat of the car. Mente
told her to put the items in her purse, and she did so. Soon after, a second
officer arrived and began to question Mente's girlfriend. She consented to
a search of her purse, where the officer found an Arizona driver's license
bearing Mente's photo but a different name and other identifying
information.



1      Mente's appeal from the superior court's ruling denying his motion
to vacate his identity-theft conviction is consolidated with his appeals from
the judgment of conviction and the revocations of his probation. In Mente's
motion to vacate, he argued newly discovered evidence would have
changed the verdicts. He also argued his due-process rights were violated
by the admission of his statements to police regarding how and when the
information on the false license was obtained. Mente's briefs on appeal do
not address these issues; therefore, we will not address them.

2       On review, we view the evidence and all inferences from it in the
light most favorable to upholding the conviction. State v. Jackson, 208 Ariz.
56, 57, ¶ 2 (App. 2004).


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                            STATE v. MENTE
                           Decision of the Court

¶3             The date on the fictitious license was November 10, 2010,
roughly two years before Mente was stopped. Asked by police about the
false license, Mente responded that he "had a friend make it several years
ago." The officer testified that when he asked Mente where he obtained the
information for the license, Mente replied that he "must have obtained it in
a burglary several years ago." The officer testified that when he questioned
Mente further after his arrest:

       [Mente] told me he had it made several years ago from a
       friend. He again told me he had planned on using it. Because
       when I said, "Why are you carrying this around?" He told me
       he planned on using it to represent a real license so the police
       wouldn't find out he was suspended.

       When I asked him where he obtained it from, he told me it
       was from a burglary from years ago. But he wasn't positive.

¶4            Mente was charged with taking the identity of another
pursuant to Arizona Revised Statutes ("A.R.S.") section 13-2008 (2017).3 At
trial, over Mente's objection, the court instructed the jury it could convict
Mente if it found he "knowingly took, manufactured, recorded, possessed,
or used any personal identifying information of another person . . . without
the consent of that person . . . with the intent to obtain or use the other
person's identity for any unlawful purpose or to cause loss to the person
. . . ."

¶5             Mente was convicted and sentenced to ten years'
imprisonment. At the time of the traffic stop, Mente was on probation for
two other convictions, one committed in 2005 and the other in 2006. His
identity-theft conviction rendered him in violation of his probation on the
two earlier crimes. The court revoked his probation on the two earlier
offenses and sentenced him to concurrent sentences of 2.5 years and five
years, to be served consecutively to the ten-year term it imposed for identity
theft.

¶6            Mente timely appealed. 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)(1) (2017).




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


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                             STATE v. MENTE
                            Decision of the Court

                               DISCUSSION

¶7            Mente argues the jury instruction setting out the elements of
the charge against him created a duplicitous charge, allowing the jury to
convict him "for crimes committed years prior to the charged date."

¶8             When an indictment charges just one crime, but the State
presents evidence of more than one alleged criminal act to prove that crime,
the charge is duplicitous. See State v. Klokic, 219 Ariz. 241, 243-44, ¶¶ 11-12
(App. 2008). On the other hand, a duplicitous indictment charges two or
more distinct offenses in a single count. State v. Paredes-Solano, 223 Ariz.
284, 287, ¶ 4 (App. 2009). The problem with both varieties of error is the
possibility of a non-unanimous verdict. Id. at 288, ¶ 8; Klokic, 219 Ariz. at
244, ¶ 12.

¶9           To the extent Mente argues that a non-unanimous jury may
have convicted him variously of taking, manufacturing, recording,
possessing or using the other person's personal information, on this record,
we agree with the State that his argument concerns a duplicitous
indictment, not a duplicitous charge. The failure to object to a duplicitous
indictment before trial waives all but fundamental error review. Paredes-
Solano, 223 Ariz. at 288, ¶ 8; see State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005).

¶10            Mente argues that he did not have to object before trial
because he "reasonably believed that the State was limited to proving one
crime for which all elements occurred on or about" the date of his 2012
traffic stop. But the jury instruction he complains of almost exactly
mirrored the indictment, which alleged that "on or about the 28th day of
November, 2012, [Mente] knowingly took, purchased, manufactured,
recorded, possessed or used" the victim's personal identifying information.
Because the asserted duplicitousness was found in the indictment, Mente
was required to object before trial. Paredes-Solano, 223 Ariz. at 288, ¶ 8.
Because he did not, to prevail on appeal, Mente "must establish both that
fundamental error exists and that the error in his case caused him
prejudice." Henderson, 210 Ariz. at 567, ¶ 20. Fundamental error is error
that "goes to the foundation of his case, takes away a right that is essential
to [the] defense, and is of such magnitude that [the defendant] could not
have received a fair trial." Id. at 568, ¶ 24.

¶11           The State argues that no fundamental error occurred because
identity theft under A.R.S. § 13-2008(A) is a unitary offense such that a
defendant is not entitled to a unanimous jury verdict "on the manner in



                                      4
                             STATE v. MENTE
                            Decision of the Court

which he committed the offense[.]" We need not decide that issue because
Mente cannot demonstrate prejudice from any asserted error, fundamental
or otherwise.

¶12           At trial, Mente did not dispute that he possessed the victim's
personal identification without the victim's consent; the only issue for the
jury was whether the State had proved Mente's intent "to obtain or use the
other person's . . . identity for any unlawful purpose," as prohibited by § 13-
2008(A).

¶13             Citing Mente's explanation to police for why he carried the
fictitious license (to avoid being cited for driving with a suspended license),
the prosecutor argued in closing that there could be no lawful purpose for
carrying a false license. Beyond that, in the absence of any evidence that
Mente actually used the fictitious license, the prosecutor also told the jury
it could find Mente had the required criminal intent on the day of the traffic
stop based on his admissions to police that he "had [the license] made" and
that he had obtained it unlawfully, and that when stopped, he tried to hide
the license by giving it to his girlfriend.

¶14            Contrary to Mente's argument, the State did not ask the jury
to find he committed a crime by taking, manufacturing, recording,
possessing or using the fictitious license or the victim's identifying
information on any date before the traffic stop.4 As the prosecutor said in
his final closing:

       And his intent can be inferred from all of the facts and
       circumstances, such as how he obtained it. I already talked
       about, you know, creating the ID, you know, keeping it with
       you. Even though you had this other ID, you know, you have
       the option. You want to be able to pick and choose, and then




4      Beyond recounting Mente's brief mention of a burglary to police, the
State did not offer evidence of a burglary, nor did the prosecutor reference
any particular theft. By contrast, during his opening statement, defense
counsel told the jury to expect the victim of the identity theft "to tell you
that the information was stolen from his son's vehicle about eight years
ago." The only testimony to that effect, however, came during the defense
cross-examination of one of the police officers, whom the defense asked to
elaborate on the conversation in which the officer alerted the victim to the
discovery of the fictitious license.


                                      5
                             STATE v. MENTE
                            Decision of the Court

       when you're busted, you hide it and you lie about it. And you
       even told the officers your intent, just in case you needed it.

                               *       *      *

       So, in just concluding, this defendant, like I've said from the
       beginning, he stole someone's personal identifying
       information, used it to create a fictitious driver's license,
       carried it around with him, ready to use it when it was
       advantageous. Hid it, lied about it. You can infer intent.

¶15            In his reply brief, Mente argues the court erred by allowing
the State to try to prove intent with evidence of "irrelevant and prejudicial
areas that were not temporally or factually related to the question of
whether or not he possessed the license with 'unlawful intent'" on the day
of the traffic stop. He asserts "allegations about theft and burglary and
manufacturing and recording" made it "impossible to know which criminal
act the individual jurors concluded" he committed. The superior court,
however, did not err in denying Mente's motion in limine pursuant to
Arizona Rules of Evidence 403 and 404 to preclude his statements to police
that the victim's information had been taken in a prior burglary. As the
court ruled, that evidence was admissible to demonstrate Mente's criminal
intent at the time he was stopped with the license in his possession.

¶16            In short, at trial the State offered no evidence of any prior
illegal acts beyond Mente's own explanation for how he came into
possession of the victim's personal information. Moreover, contrary to
Mente's argument, the jury was not asked to find him guilty of committing
identity theft on any date other than the day of the traffic stop; the only use
the State made of Mente's own admissions about prior events was to
demonstrate his unlawful intent on the date of the stop.




                                      6
                          STATE v. MENTE
                         Decision of the Court

                            CONCLUSION

¶17           For the reasons stated, we affirm Mente's conviction, the
resulting revocations of his probation and the resulting sentences.




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




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