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     UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          KENNETH CHAVEZ, Appellant.

                                 No. 1 CA-CR 13-0913
                                   FILED 2-5-2015


               Appeal from the Superior Court in Mohave County
                            No. S8015CR201200846
               The Honorable Derek C. Carlisle, Judge Pro Tempore

                                      AFFIRMED


                                       COUNSEL

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

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



                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge Kenton D. Jones and Judge Michael J. Brown joined.


S W A N N, Judge:

¶1           Kenneth Chavez appeals his convictions and sentences for
possession of between two and four pounds of marijuana for sale,
possession of narcotic drugs (cannabis), and two counts of possession of
drug paraphernalia. For the reasons that follow, we find no reversible error
and affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Police responding to a domestic violence call discovered 3.8
pounds of usable marijuana and 24.6 grams of cannabis in Chavez’s house.
Police also discovered a dozen marijuana plants growing in the garage. In
a bathroom, police found a scale, baggies, and tools to break the marijuana
down and process it.

¶3             Chavez had a valid medical marijuana card, but his card
stated that he was not authorized to cultivate marijuana. Chavez told police
that he believed he was allowed to grow marijuana, that he had been
growing marijuana for about ten months, and that he had made six
harvests, each time obtaining two to four ounces per plant. Chavez told the
officers that he had “donated” excess marijuana to other medical
cardholders. He used air quotes when he said donated and admitted that
he had received things in exchange for the marijuana.

¶4           At trial, Chavez denied giving or selling marijuana to another
cardholder, but admitted on cross-examination that people gave him things
in exchange for marijuana, but “it was not money.”

¶5            The jury was instructed on the presumptions and immunity
afforded cardholders under the Arizona Medical Marijuana Act for
possession of two and one-half ounces or less of marijuana (or, if the card
states the holder is authorized to cultivate, 12 plants), and for giving a
cardholder marijuana if nothing of value is transferred in return and the
provider does not knowingly cause the recipient to possess more than the
allowable amount. See A.R.S. § 36-2811(A)(1); A.R.S. § 36-2801(1)(a)(i)-(ii);


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                            Decision of the Court

A.R.S. § 36-2811(B)(1) and (3).

¶6           The jury convicted Chavez of the charged offenses and the
superior court imposed mitigated, concurrent sentences, the longest of
which was 2.5 years in prison. Chavez timely appeals.

                                  DISCUSSION

I.     Denial of Mistrial

¶7            Chavez argues that the trial court abused its discretion when
it denied his motion for a mistrial after a detective volunteered testimony
that a confidential informant told another officer that Chavez “was indeed
selling marijuana.”

¶8            The testimony was prompted by the last in a series of
questions by defense counsel as to whether Chavez had been under any
investigation by the drug task force prior to his arrest:

       Q: And did you ever have any contact with Kenny Chavez
       while working with MAGNET?1

       A: No, not prior to that day.

       Q: Were you aware of any investigations involving Mr.
       Chavez prior to February 5th --

       A: No.

       Q: -- 2012? And you share information with other agencies,
       as part of MAGNET, you share information with other
       agencies, correct, like sheriff’s office and Kingman Police
       Department?

       A: Correct.

       Q: Okay. And to your knowledge, was Kenneth under any
       investigation by any other law enforcement agency?

       A: Prior to?




1     MAGNET is the acronym for the Mohave Area General Narcotics
Enforcement Team.


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                              STATE v. CHAVEZ
                              Decision of the Court

       Q: Prior to February 5, 2012.

       A: Not prior to.

       Q: And he was not under investigation by MAGNET?

       A: No, sir, not at that time.

       Q: And were you aware of any reports of traffic coming and
       going from the residence at all hours of the day and night?

       A: Not prior to, no.

       Q: You keep saying prior to. Is there any new information
       since --

       A: Well, after the February 12th incident, I did have
       information from a GITTIM officer who was utilizing a
       confidential informant [who] had given information that Mr.
       Chavez was indeed selling marijuana, although no buys, no
       search warrants or anything since that point.

       That was information that was given to a gang officer that Mr.
       Chavez was indeed selling.

       Q: And do you know who, the name of that CI was?

       A: I wouldn’t give it.

The court initially denied defense counsel’s request to strike the testimony,
reasoning, “You asked him the question, which seemed like a fairly
dangerous question to ask if you didn’t know the answer to it.” The
prosecutor also avowed that he had not known this information before
hearing the detective’s testimony.

¶9             The next day, the court denied defense counsel’s oral motion
for a mistrial, but offered to instruct the jury that it should not consider the
testimony. Defense counsel, however, withdrew his request to strike the
testimony and the prosecutor agreed not to mention the detective’s
testimony in closing argument. Chavez now argues that the admission of
this testimony denied him a fair trial because the state’s use of a confidential
informant had not been disclosed as required by Ariz. R. Crim. P. 15.1(b),
and the danger of unfair prejudice substantially outweighed any probative
value under Ariz. R. Evid. 403.



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                             STATE v. CHAVEZ
                             Decision of the Court

¶10            As an initial matter, we find that Chavez’s claim is precluded
by the invited error doctrine, which prevents a party who causes an error
from profiting from it on appeal. State v. Lucero, 223 Ariz. 129, 135, ¶ 17, 220
P.3d 249, 255 (App. 2009). A party “invites prejudicial testimony by being
the first party to elicit the testimony.” Lucero, 223 Ariz. at 136, ¶ 20, 220 P.3d
at 256. See also State v. Fish, 109 Ariz. 219, 220, 508 P.2d 49, 50 (1973) (“The
defense cannot complain when the objectionable material was actually
introduced by the defense.”). When defense counsel asks a question to
which the witness’s answer is clearly responsive, defense counsel invites
the error when the response would otherwise be inadmissible. State v.
Maggard, 104 Ariz. 462, 465, 455 P.2d 259, 262 (1969). See also State v.
Lawrence, 123 Ariz. 301, 304-05, 599 P.2d 754, 757-58 (1979) (affirming denial
of mistrial, reasoning, “[I]t is evident that defense counsel invited error by
venturing onto dangerous ground and carelessly framing a question” that
invited the witness to testify on an inadmissible matter). In this case, the
witness’s answer was clearly responsive to defense counsel’s direct
question, and accordingly defense counsel invited any error.

¶11           However, even assuming that defense counsel did not invite
the error, we conclude the trial court did not abuse its discretion when it
denied his request for a mistrial. “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. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). “We
will only reverse a trial court’s decision denying a mistrial when it has
clearly abused its discretion.” State v. Bailey, 160 Ariz. 277, 279, 772 P.2d
1130, 1132 (1989). See also State v. Jones, 197 Ariz. 290, 304, ¶¶ 32, 34, 4 P.3d
345, 359 (2000) (holding that trial court did not abuse its discretion in
denying mistrial for a witness’s “relatively vague references to other
unproven crimes and incarcerations”).

¶12            “When a witness unexpectedly volunteers an inadmissible
statement, the action called for rests largely within the discretion of the trial
court which must evaluate the situation and decide if some remedy short
of mistrial will cure the error.” Adamson, 136 Ariz. at 262, 665 P.2d at 984.
We give deference to the trial court's ruling because it 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. Bible, 175 Ariz. 549, 598, 858 P.2d 1152, 1201 (1993).
We cannot say that the trial court abused its discretion when it denied the
motion for mistrial in light of the fact that it was defense counsel who
elicited the testimony, and that the testimony itself was a brief, relatively



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                            STATE v. CHAVEZ
                            Decision of the Court

vague reference to unsubstantiated information from a person of unknown
credibility.

II.    Denial of Motion to Suppress

¶13          Chavez also argues that the trial court erred when it denied
his motion to suppress the statements he made to police in the absence of
any Miranda2 warnings.

¶14           In reviewing the denial of a motion to suppress, we restrict
our review to consideration of the evidence presented at the suppression
hearing, State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996),
viewed in the light most favorable to sustaining the superior court's ruling.
State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (App. 1996). We give
deference to the court’s factual findings, but review de novo the court’s
ultimate legal conclusion. State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118, 927
P.2d 776, 778 (1996).

¶15          At the suppression hearing, a deputy sheriff testified that he
entered Chavez’s residence with the permission of Chavez’s girlfriend. The
deputy observed a broken water bong, marijuana, and items used for
cultivating marijuana. The deputy smelled marijuana around the garage;
he also saw an irrigation hose going underneath the garage door and heard
a motor running inside. Chavez’s girlfriend told the deputy that Chavez
had a medical marijuana card and that she believed Chavez was growing
marijuana in the garage.

¶16            When Chavez returned to the residence about an hour later,
the deputy told him he wanted to talk to him about the alleged domestic
violence situation and the marijuana. While the deputy was looking over
his notes, Chavez volunteered that he had a medical marijuana card, and
that he believed he was allowed to grow it, based on conversations with the
state health department and because there was no dispensary within 25
miles of his residence. He told the deputy that he had obtained six harvests
from his plants.

¶17         Chavez offered to show the deputy the growing operation in
his garage. On viewing the marijuana plants, the deputy asked Chavez
how much it cost to run the growing operation, and Chavez told him he
had spent about $2,000 since he had started. The deputy asked Chavez if
he was employed, and Chavez said he was not.


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


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                           STATE v. CHAVEZ
                           Decision of the Court

¶18           Once they exited the garage, the deputy informed Chavez
“that we were going to contact the detectives with MAGNET, and we
would just wait [ ] till they responded.” Chavez sat on the front porch for
the one or two hours it took for the detectives to arrive, although the deputy
had not told him that he had to wait. During the wait, Chavez did not seem
upset, and volunteered a story about being stopped by a highway
patrolman when he was traveling to Pinetop with a small amount of
marijuana.

¶19           When the detective from MAGNET arrived, Chavez agreed
to show him the growing operation and around the seven acres of property,
and responded to questions about the marijuana-growing operation. When
the detective asked him if he was selling marijuana, Chavez told the
detective that he “donated” excess marijuana. Chavez was “very helpful
and cooperative” the entire time. Chavez was arrested and handcuffed only
after he returned from the walk around the property.

¶20             Miranda’s procedural safeguards apply only “where there has
been such a restriction on a person’s freedom as to render him ‘in custody.’”
Oregon v. Mathiason, 429 U.S. 492, 495 (1977). An individual is considered
in custody for purposes of Miranda if, in light of all the circumstances, “A
‘reasonable person would have felt he or she was not at liberty to terminate
the interrogation and leave.’” Howes v. Fields, 132 S.Ct. 1181, 1189 (2012).
Relevant factors in determining whether a suspect is in custody include: “1)
the site of the interrogation; 2) whether the investigation has focused on the
accused; 3) whether the objective indicia of arrest are present; and 4) the
length and form of the interrogation.” State v. Perea, 142 Ariz. 352, 355, 690
P.2d 71, 74 (1984).

¶21           On this record, the court correctly concluded that Chavez was
not in custody at the time he made the statements at issue, and accordingly
the statements were admissible notwithstanding the absence of Miranda
warnings. The court found that Chavez was not in custody because the
questioning occurred at his residence, in the absence of any objective indicia
of arrest such as handcuffs, advice that he was under arrest, or directive
that he was not permitted to leave. The court also noted that “[Chavez’s]
conduct in voluntarily showing deputies the garage and walking them
around the property was consistent with someone who was not under
arrest.” We agree that a reasonable person in Chavez’s position would not
have considered himself in custody under these circumstances.




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                         STATE v. CHAVEZ
                         Decision of the Court

                           CONCLUSION

¶22          For the foregoing reasons, we affirm Chavez’s convictions
and sentences.




                               :ama




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