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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   SABINA ANN MARQUEZ, Appellant.

                             No. 1 CA-CR 18-0338
                               FILED 4-18-2019


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201500465
             The Honorable Jacqueline Hatch, Judge Retired

                                  AFFIRMED


                                   COUNSEL

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

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                           STATE v. MARQUEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge James B. Morse Jr. and Judge Jon W. Thompson joined.


S W A N N, Judge:

¶1            Sabina Ann Marquez appeals from her conviction and order
of probation for theft. Marquez challenges the superior court’s denial of
her motion for mistrial, in which she alleged multiple instances of
prosecutorial misconduct.     Even assuming the prosecutor’s actions
constituted misconduct, we find sufficient evidence to support the court’s
findings that the misconduct did not deny her a fair trial. We therefore
affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2              A grand jury indicted Marquez of one count of theft with a
value of $4,000 to $25,000, a class three felony. The state alleged that,
between June and December 2013, Marquez stole over $4,000 in cash from
her former employer, Flagstaff Bear Ridge Apartments, by keeping tenants’
cash rent payments. Marquez pleaded not guilty, and the matter proceeded
to a five-day jury trial. Near the end of trial, Marquez moved for mistrial,
citing several alleged incidents of prosecutorial misconduct, mostly related
to the state’s elicitation of testimony on topics that the court had precluded.
The court denied the motion. The jury found Marquez guilty of theft with
a value of $2,000 to $3,000, a class five felony. The court suspended
Marquez’s sentence and ordered that she serve three years’ probation and
pay restitution. Marquez appeals.

                               DISCUSSION

¶3             Marquez argues that the court erred by denying her motion
for mistrial after the prosecutor, despite court orders to the contrary,
elicited testimony regarding (1) Marquez’s receipt of cash payments from a
tenant before the time frame relevant to the charged offense, and (2) a non-
witness accountant’s work on the case for the state.

¶4          Prosecutorial misconduct constitutes reversible error only if
misconduct actually exists, and there is a reasonable likelihood that the
misconduct could have affected the jury’s verdict, thereby denying the


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                           Decision of the Court

defendant a fair trial. State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007). The
misconduct must have “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” State v. Hughes, 193 Ariz. 72,
79, ¶ 26 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
In reviewing claims of prosecutorial misconduct, our “focus is on the
fairness of the trial, not the culpability of the prosecutor.” State v. Bible,
175 Ariz. 549, 601 (1993). Alleged instances of prosecutorial misconduct are
evaluated both separately and for their cumulative effect. Hughes, 193 Ariz.
at 79.

¶5            A declaration of mistrial is “the most dramatic 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.
Dann, 205 Ariz. 557, 570, ¶ 43 (2003) (citation omitted). The superior court
is in the best position to determine whether a mistrial is appropriate
because the 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.” State v.
Williams, 209 Ariz. 228, 239, ¶ 47 (App. 2004) (citation omitted). We
therefore review a ruling on a motion for mistrial due to prosecutorial
misconduct for an abuse of discretion. State v. Trani, 200 Ariz. 383, 384, ¶ 5
(App. 2001). Here, we find sufficient evidence to support the court’s denial
of Marquez’s motion.

I.     THE STATE’S ELICITATION OF TESTIMONY REGARDING
       MARQUEZ’S RECEIPT OF CASH IN 2011 DID NOT DENY
       MARQUEZ A FAIR TRIAL.

¶6            Shortly before trial, Marquez filed a motion in limine to
preclude Bryan Landers, a former tenant at the apartment complex, from
testifying. Landers was planning to testify about, among other things,
paying Marquez in cash for a deposit and bills in 2011. While Marquez did
not dispute that she accepted cash during the charged time frame, she
argued that evidence of earlier cash payments would be redundant and
would invite the jury to believe that she had been stealing money from the
apartment complex since 2011. Noting that it “didn’t want to take this case
back to 2011,” the court concluded that Landers may testify, but his
testimony must be limited to observations in the time frame of the charged
offense (June to December 2013).

¶7            On the same day as argument on Marquez’s motion in limine,
the state called Landers to testify and asked, without referring to any
particular time frame:


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                           Decision of the Court

       Q: Did you yourself ever give the defendant cash?

       A: I did.

       Q: And what was that for?

       A: It was $150 for a security deposit and I believe 30 --
       approximately $30 twice for electric.

As the state asked a follow-up question about Landers’s cash payments,
Marquez objected. The court sustained the objection, and at Marquez’s
request, struck the testimony from the record and instructed the jury not to
consider it in its deliberations.

¶8              Near the end of trial, Marquez moved for mistrial, citing the
state’s elicitation of the 2011 cash payment testimony as an alleged instance
of prosecutorial misconduct. After argument, the court denied the motion,
explaining that it did not interpret the state’s questioning as “flouting the
Court’s orders” to stay within the relevant time frame. On the issue of
whether the jury would still consider the testimony, the court noted that
“you also have to take into consideration these people have been sitting
here for five days,” and that “[t]hey’ve been instructed to ignore it, and I
have to feel confident that that’s what they will do.”

¶9             Marquez’s argument that the state’s elicitation of testimony
about the 2011 cash payment constitutes misconduct that “so infected the
trial with unfairness as to make the resulting conviction a denial of due
process” fails. See Hughes, 193 Ariz. at 79, ¶ 26. Even if the state’s actions
constituted misconduct, there is sufficient evidence that Marquez was not
convicted as a result of misconduct, and she was not denied a fair trial. See
State v. Newell, 212 Ariz. 389, 403–04, ¶¶ 67–70 (2006). Landers’s testimony
about Marquez accepting cash did not refer to the time frame in which the
payments occurred, nor did it assert that Marquez kept any of the cash for
herself. The testimony therefore did not give the jury a reason to believe,
as Marquez suggests, that she had been stealing from the apartment
complex since 2011. Rather, the testimony established that Marquez had
accepted cash from tenants at some point in time, which, though
cumulative, is a fact she does not dispute. Though the testimony may have
related to a prohibited topic, it was not presented with sufficient detail to
create the prejudice that the order in limine was designed to prevent. And
the court sustained Marquez’s objection, struck the testimony from the
record, immediately instructed the jury not to consider it, and, in the final
jury instructions, again instructed the jury not to consider it. We find no
error.


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                           STATE v. MARQUEZ
                           Decision of the Court

II.    THE STATE’S ELICITATION OF TESTIMONY REGARDING A
       NON-WITNESS’S ACCOUNTING DID NOT DENY MARQUEZ A
       FAIR TRIAL.

¶10           At a pretrial hearing, the court determined that a state
witness, Chris Lambert, who conducted an accounting of the apartment
complex’s receipts and deposits, was not qualified to testify as an expert,
but that he could nevertheless testify as a lay witness. The state ultimately
did not call Lambert because his expected testimony overlapped with that
of Brad Conway, a detective for the Flagstaff Police Department who had
worked the case since 2016.

¶11            At trial, while questioning Conway about his review of the
records of receipts and deposits, the state asked, “[c]ould you explain sort
of the process in determining whether money was missing and whether or
not you were able –– ever able to find whether an actual theft had
occurred[?]” Conway responded, “[y]es” and began to explain the work
Lambert had done in the investigation. Marquez objected on hearsay
grounds, argued that the question called for an opinion on Marquez’s guilt,
and moved for a mistrial. The court sustained the objection, explaining that
“[it doesn’t] want [Conway] testifying to what Mr. Lambert did.” And,
noting that the state’s compound question was likely confusing for the jury,
the court denied the motion for mistrial. The court then read back the
state’s question to the jury, informed it that the question and answer were
stricken from the record, and instructed it “not to consider it at all in your
deliberations.”

¶12           During her case, Marquez called the detective who initially
worked on the investigation, Jolene Coules. On cross-examination, the state
asked Coules whether she submitted the receipt and deposit slips from the
investigation “to a forensic accountant,” and then named Lambert as that
accountant. Marquez objected and again moved for a mistrial, arguing that
bringing up Lambert again was “egregious conduct.” The state argued that
the court’s earlier ruling only pertained to eliciting hearsay about Lambert,
and that this instance did not involve hearsay. The court sustained the
objection, asserting that “[w]e’re not going into Mr. Lambert at all,” because
mentioning him may lead the jury to wonder “[w]hy didn’t we bring this
person in? Why aren’t we hearing from him?” The court denied Marquez’s
motion for mistrial. Marquez requested to strike any comments about
Lambert, and the court warned that would “just bring[ ] more attention to
it.” Ultimately, at the suggestion of Marquez, the court instructed the jury
to “disregard the last question and any answer thereto.” Near the end of



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trial, Marquez filed a written motion for mistrial, which reiterated her
earlier arguments, and which the court denied.

¶13           Here, Marquez argues that the state’s elicitation of testimony
about Lambert’s accounting suggested to the jury that Marquez’s thefts had
been verified by an expert. But, even assuming the state’s actions
constituted prosecutorial misconduct, Marquez has not established that the
misconduct was so egregious as to deny her due process, or that there is a
reasonable likelihood that the testimony could have affected the jury’s
verdict. See Morris, 215 Ariz. at 335, ¶ 46. To begin with, hearing that a
“forensic accountant” was involved in analysis of the investigation did not
provide the jury with new substantive information, as the state had offered
other evidence establishing that Marquez’s cash receipts did not match up
with her bank deposits. To whatever extent the improper testimony
bolstered the credibility of the state’s other evidence, that was remedied—
as with the testimony about the 2011 cash payments—by the court
sustaining Marquez’s objections, striking testimony about Lambert, and
instructing the jury not to consider it both immediately after the testimony
and again before deliberations. See Newell, 212 Ariz. at 403, ¶ 68 (presuming
the jury follows the court’s instructions); cf. State v. Manuel, 229 Ariz. 1, 6,
¶¶ 23–24 (2011) (finding that a court’s cautionary instruction generally
cures any possible prejudice in the context of argumentative comments
during opening statements).

III.   THE CUMULATIVE EFFECT OF THE ALLEGED INSTANCES OF
       MISCONDUCT DOES NOT WARRANT REMAND TO THE
       SUPERIOR COURT.

¶14             Marquez also argues that the cumulative effect of both alleged
instances of misconduct—eliciting testimony about (1) Marquez receiving
cash from a tenant in 2011 and (2) Chris Lambert’s accounting on the case—
warrants vacating the superior court’s denial of her motion for mistrial. See
Hughes, 193 Ariz. at 79, ¶ 26. She further argues, relying on Pool v. Superior
Court, 139 Ariz. 98 (1984), that the state’s alleged misconduct was so
egregious and intentional that it warrants vacating her conviction and
ordering dismissal of the case with prejudice, barring retrial under the
double jeopardy clause. But, even considering the alleged instances
cumulatively, the record does not reflect pervasive misconduct that
deprived Marquez of a fair trial. As discussed above, any misconduct by
the state, to the extent it elicited testimony supporting the state’s case, was
adequately remedied by the court’s precautionary measures, i.e., striking
the testimony and repeating jury instructions. And the court’s denial of the
motion for mistrial is supported by its implied finding that the nature of the


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                            STATE v. MARQUEZ
                            Decision of the Court

five-day trial made the brief instances of improper testimony less
significant. See State v. Nelson, 229 Ariz. 180, 190, ¶ 46 (2012) (noting that a
prosecutor’s improper argument “took up less than one page out of more
than twenty pages of transcript”). Accordingly, the court did not abuse its
discretion by denying Marquez’s motion for mistrial.

                               CONCLUSION

¶15           We therefore affirm Marquez’s conviction and order of
probation.




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




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