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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    FELIX VALDEZ NORIEGA, Appellant.

                              No. 1 CA-CR 18-0488
                                FILED 5-30-2019


            Appeal from the Superior Court in Coconino County
                         No. S0300CR201700742
                   The Honorable Dan R. Slayton, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

John Trebon, P.C., Flagstaff
By John J. Trebon
Counsel for Appellant
                           STATE v. NORIEGA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jon W. Thompson joined.


J O N E S, Judge:

¶1            Felix Noriega appeals his convictions and sentences for
kidnapping, armed robbery, aggravated assault, and disorderly conduct.
For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            On August 29, 2016, the victim took Noriega’s truck without
permission.1 Noriega located the victim in the early morning hours of
August 30, pistol-whipped him, forced him into the truck, and drove him
to a tattoo parlor/vape shop. Once inside the shop, Noriega pushed the
victim to the ground and then escorted him to a couch in the back. The
victim sat on the couch while Noriega and others grabbed him by the hair,
shouted at him, pointed a gun in his face, struck him multiple times, and
threatened him with guns, a rope, and a knife. With a gun in hand, Noriega
ordered the victim to empty his pockets, the contents of which Noriega
promptly removed from the victim’s reach. The events were captured on
surveillance video at the shop and expounded upon by the other
participants.

¶3             After several hours, Noriega allowed the victim to leave. The
victim immediately called 9-1-1 to report having been assaulted and his
wallet and cell phone having been stolen. During their investigation, law
enforcement officers found bloody paper towels and the victim’s wallet
inside the tattoo parlor/vape shop.

¶4          Noriega was charged with kidnapping, armed robbery, and
four counts of aggravated assault. The jury convicted Noriega of


1      “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).



                                     2
                            STATE v. NORIEGA
                            Decision of the Court

kidnapping, armed robbery, two counts of aggravated assault, and
disorderly conduct as a lesser-included offense of a third count of
aggravated assault.2 The trial court sentenced Noriega as a dangerous, non-
repetitive offender to concurrent terms of imprisonment, the longest being
10.5 years. Noriega timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),3 13-4031,
and -4033(A)(1).

                               DISCUSSION

I.     The Trial Court Did Not Abuse its Discretion in Denying
       Noriega’s Motion for Mistrial.

¶5             Noriega argues the trial court erred in denying his motion for
mistrial after the State mistakenly introduced an unredacted version of the
9-1-1 call where the victim stated, “I know they [the guns] were illegal
because I know that the person is illegal as well.” Noriega contends that
the victim’s statement constituted an impermissible comment upon his
immigration status and was sufficiently prejudicial to deny him a fair trial.
We disagree.

¶6             “Mistrial is an extraordinary remedy for trial error ‘and
should be granted only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.’” State v. Payne, 233 Ariz.
484, 504, ¶ 61 (2013) (quoting State v. Speer, 221 Ariz. 449, 462, ¶ 72 (2009)).
We review the denial of a motion for mistrial for an abuse of discretion,
bearing in mind “the trial judge is in the best position to evaluate ‘the
atmosphere of the trial, the manner in which the objectionable statement
was made, and the possible effect it had on the jury and the trial.’” State v.
Kuhs, 223 Ariz. 376, 380, ¶ 18 (2010) (citing State v. Hoskins, 199 Ariz. 127,
142, ¶ 52 (2000), and then quoting State v. Bible, 175 Ariz. 549, 598 (1993)).

¶7             Although Noriega cites cases from other jurisdictions
suggesting reference to a person’s undesirable immigration status is
inherently prejudicial, “brief, inadvertent juror exposure” to inimical
information does not obviate the need for a showing of prejudice. Payne,
233 Ariz. at 505, ¶¶ 65-66 (citing Speer, 221 Ariz. at 462-63, ¶ 74). Therefore,


2      The State voluntarily dismissed the fourth count of aggravated
assault during trial.

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


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                            STATE v. NORIEGA
                            Decision of the Court

Noriega must show actual prejudice from the comment. See id. He has not
done so here.

¶8            First, the statement did not specifically refer to Noriega, who
was only one of four individuals involved in the encounter. Nor did the
statement clearly refer to the unidentified person’s immigration status
rather than his or her general ability to possess a firearm. Thus, we cannot
say the vague reference to illegality is clearly related to Noriega’s
immigration status.

¶9            Second, there is no indication that the jury was influenced by
the victim’s remark. To the contrary, the jury demonstrated it remained
capable of making critical factual determinations when it convicted Noriega
of a lesser-included offense. See State v. Rushing, 156 Ariz. 1, 3 (1988)
(considering the jury’s decision to convict a defendant of lesser-included
offenses as indication that the challenged evidence “did not so inflame the
jury as to render it incapable of making critical factual determinations”).

¶10           Finally, the record contains overwhelming evidence of
Noriega’s guilt, including approximately thirty minutes of surveillance
video that captured the events underlying the offenses, which were
corroborated and expounded upon by testimony from the victim and two
other participants. See State v. Gallegos, 178 Ariz. 1, 11 (1994) (finding
beyond a reasonable doubt that trial error was harmless where
overwhelming evidence in the record supported the jury’s verdict).

¶11          On this record, we cannot conclude the trial court
inaccurately assessed the situation, abused its discretion in denying
Noriega’s motion for the extraordinary remedy of mistrial, or otherwise
deprived Noriega of a fair trial.

II.    Sufficient Evidence       Supports     Noriega’s    Armed      Robbery
       Conviction.

¶12            Noriega argues the State failed to prove he committed armed
robbery. We review the sufficiency of the evidence to support a conviction
de novo. Harm, 236 Ariz. at 406, ¶ 11 (citing State v. West, 226 Ariz. 559, 562,
¶ 15 (2011)). “The relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)) (emphasis omitted). Thus, we will affirm a conviction
so long as it is supported by substantial evidence. Id. (quotation omitted).
Substantial evidence is that which is sufficient for a reasonable mind to


                                       4
                           STATE v. NORIEGA
                           Decision of the Court

support the conclusion. State v. West, 173 Ariz. 602, 610 (App. 1992) (citing
State v. Goswick, 142 Ariz. 582, 586 (1984)).

¶13           A person commits robbery if, “in the course of taking any
property of another from his person or immediate presence and against his
will, such person threatens or uses force against any person with intent
either to coerce surrender of property or to prevent resistance to such
person taking or retaining property.” A.R.S. § 13-1902(A). The offense is
an armed robbery if a person takes such action while armed with, using, or
threatening to use a deadly weapon, A.R.S. § 13-1904(A), such as a gun, see
A.R.S. § 13-105(15) (“‘Deadly weapon’ means anything designed for lethal
use, including a firearm.”).

¶14           Sufficient evidence supports Noriega’s conviction of armed
robbery here. Although Noriega points to evidence suggesting that certain
items taken did not belong to the victim, a person is not free to forcibly
retrieve his own property from another. See A.R.S. § 13-1801(A)(13)
(defining “[p]roperty of another” broadly to include “property in which the
defendant also has an interest”); State v. Schaefer, 163 Ariz. 626, 629 (App.
1990) (suggesting the criminal code’s broad definition of property
“implicitly denies a claim of right defense” such that “one can . . . be
criminally charged with taking one’s own property”). Regardless, the
record contains sufficient evidence upon which a reasonable jury could find
that Noriega took the victim’s wallet and cell phone from his person, by
force, and while using or displaying a firearm. See supra ¶¶ 2-3. The State
proved Noriega committed armed robbery, and we find no error.

                              CONCLUSION

¶15          Noriega’s convictions and sentences are affirmed.




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




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