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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  CYNTHIA JANE MUELLER, Appellant.

                             No. 1 CA-CR 15-0561
                               FILED 1-12-2017


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201300376
              The Honorable Jennifer B. Campbell, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Craig Williams Attorney at Law PLLC, Prescott Valley
By Craig Williams
Counsel for Appellant
                           STATE v. MUELLER
                           Decision of the Court



                      MEMORANDUM DECISION

Acting Presiding Judge Samuel A. Thumma delivered the decision of the
Court, in which Judge Margaret H. Downie and Judge Patricia A. Orozco
joined.


T H U M M A, Judge:

¶1            Cynthia Jane Mueller appeals her convictions and resulting
sentences for first degree murder, conspiracy to commit first degree
murder, fraudulent schemes and artifices and unlawful use of a power of
attorney. Mueller argues the superior court deprived her of her
constitutional right to testify, erred by admitting unfairly prejudicial
testimony and erred in reading jury questions aloud in open court that were
not to be answered by the witness who was testifying at the time. Because
Mueller has shown no fundamental error resulting in prejudice, her
convictions and sentences are affirmed.

                             BACKGROUND

¶2            The State charged Mueller with first degree murder, a Class 1
felony; conspiracy to commit first degree murder, a Class 1 felony;
fraudulent schemes and artifices, a Class 2 felony and unlawful use of a
power of attorney, a Class 2 felony, in connection with her husband’s death
in November 2012. After a nine-day trial, the jury found Mueller guilty as
charged. The court sentenced Mueller to concurrent life terms on the
murder and conspiracy convictions to be served consecutive to concurrent
five-year prison terms on the other convictions. This court has jurisdiction
over Mueller’s timely appeal pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1), 13-4031, 13-4033(A) (2016).1

                              DISCUSSION

¶3           Because Mueller did not timely object to the issues she argues
on appeal, this court’s review is limited to fundamental error. See State v.


1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.



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                             STATE v. MUELLER
                             Decision of the Court

Henderson, 210 Ariz. 561, 567 ¶¶ 19-20 (2005). “Accordingly, [Mueller]
‘bears the burden to establish that “(1) error exists, (2) the error is
fundamental, and (3) the error caused [her] prejudice.’” State v. James, 231
Ariz. 490, 493 ¶ 11 (App. 2013) (citations omitted).

I.     Mueller Was Not Denied Her Right To Testify.

¶4             Mueller argues she was deprived of her constitutional right to
testify because the State objected to portions of her testimony as being
nonresponsive and the superior court sustained some objections and struck
some of her testimony. Mueller has a due process right to have “’a
meaningful opportunity to present a complete defense,’” State v. Lehr, 227
Ariz. 140, 150 ¶ 39 (2011) (quoting California v. Trombetta, 467 U.S. 479, 485
(1984)), including to testify on her own behalf if she elects to do so, Rock v.
Arkansas, 483 U.S. 44, 52 (1987); see also Ariz. Const. art 2, § 24; State v. Noble,
109 Ariz. 539, 540 (1973). This right to present a complete defense “is not
unlimited, but rather is subject to reasonable restrictions,” including the
application of applicable procedural rules. United States v. Scheffer, 523 U.S.
303, 308 (1998). Thus, “the accused . . . must comply with established rules
of procedure and evidence designed to assure both fairness and reliability
in the ascertainment of guilt and innocence.” Chambers v. Mississippi, 410
U.S. 284, 302 (1973).

¶5            Mueller’s reliance on Rock is misplaced. Rock held a rule
excluding all hypnotically refreshed testimony impermissibly infringed on
the defendant’s constitutional right to testify. 483 U.S. at 45. Rock stated this
per se rule “had a significant adverse effect of the defendant’s ability to
testify” because “[i]t virtually prevented her from describing any of the
events that occurred on the day of the shooting, despite corroboration of
many of those events by other witnesses.” Id. at 56-57. Unlike Rock, there
was no per se preclusion of Mueller’s testimony. The State objected to
Mueller’s testimony during cross-examination when she sought to interject
matters into her answers that were nonresponsive and went beyond the
scope of the questions asked. The superior court sustained many of these
objections. As a result, counsel asked Mueller to listen to the question and
answer the question being asked, and the court admonished her to do so.

¶6            There was nothing improper in the superior court seeking to
keep Mueller on topic and, when the State objected and moved to strike,
sustaining the objection, granting the motion and striking volunteered,
nonresponsive statements. The superior court is directed to control the trial
proceedings and is vested with great discretion in doing so. See Hales v.
Pittman, 118 Ariz. 305, 313 (1978); see also Ariz. R. Evid. 611(a). This includes


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                            STATE v. MUELLER
                            Decision of the Court

the authority to strike nonresponse answers. See 1 Joseph M. Livermore et
al., Arizona Practice: Law of Evidence § 611.2 (Daniel J. McAuliffe & Shirley J.
McAuliffe eds., 4th ed. 2016). Moreover, Mueller was subject to redirect
examination by her own counsel after these actions. Neither the State’s
objections and motions to strike, nor the superior court’s rulings,
impermissibly infringed on Mueller’s right to testify.

¶7           Mueller also claims the State engaged in improper vouching
during her cross-examination. Mueller claims the State’s objections did so
by placing the prestige of the government behind its witness, State v. Bible,
175 Ariz. 549, 601 (1993), thereby providing personal assurances the
truthfulness of a witness, State v. King, 180 Ariz. 268, 277 (1994). The
exchange Mueller cites for this argument is as follows:

              [Prosecutor]: He paid for that stay with his
              credit card, right?
              [Mueller]: Right and then I paid him cash when
              I got there.
              [Prosecutor]: Not according to Chuck Todd; you
              never paid him back.
              [Mueller]: Well, of course not. He is obviously
              lying.
              [Prosecutor]: Is he lying or are you lying, Mrs.
              Mueller?
              [Mueller]: I took an oath and I believe in the
              Christian—
              [Prosecutor]: So did Mr. Todd.
              [Mueller: But I don’t believe he believes in God.
              Prosecutor]: Objection, move to strike, Your
              Honor.
              The Court: Shall be stricken.

¶8           Mueller argues the prosecutor’s remark “[s]o did Mr. Todd”
is improper vouching as stating his Christian faith supports his credibility.
Read in context, on a fundamental error review, the remark was a reference
to Todd taking the oath, not to his religious faith. Thus, Mueller’s comment
regarding her view of Todd’s religious beliefs, to which the prosecutor
objected, was both nonresponsive and improper. See also Ariz. R. Evid. 610.
Accordingly, on a fundamental error review, there was no impermissible
vouching.




                                       4
                            STATE v. MUELLER
                            Decision of the Court

II.    The Court Did Not Erroneously Admit Unfairly Prejudicial
       Testimony.

¶9             Mueller next argues that the superior court violated her due
process rights by admitting unfairly prejudicial testimony. At the time of
his death, Mueller’s husband was suffering from a terminal progressive
neurodegenerative disease. At trial, the jury heard testimony from an
attorney who prepared a trust at the request of Mueller’s husband seven
months before his death. The attorney testified that the trust was to be
funded by proceeds of the victim’s life insurance and would benefit the
Muellers’ two children; the attorney also testified that the trust was never
funded because Mueller would not sign off on it or relinquish her
designation as a life insurance beneficiary. Mueller argues admission of this
testimony requires reversal because it was irrelevant and unfairly
prejudicial in that it only served to portray her as a bad person, an issue this
court reviews for an abuse of discretion. State v. Chappell, 225 Ariz. 229, 238
¶ 28 (2010).

¶10           Evidence is relevant if it has any tendency to make a material
fact more or less probable than it would be without the evidence. Ariz. R.
Evid. 401. Although motive is not an element of murder, evidence
regarding motive is a circumstance that may be considered in determining
guilt or innocence. State v. Hunter, 136 Ariz. 45, 50 (1983). Stated differently,
while proof of motive is not essential, evidence of motive properly may be
relevant and admissible. Antone v. State, 49 Ariz. 168, 181 (1937).

¶11            Here, the State’s theory was Mueller murdered her husband
for financial reasons, including to receive insurance proceeds. Evidence that
Mueller would not sign off on the trust or relinquish her rights to insurance
proceeds to fund the trust for their children is some evidence she wished to
retain the insurance proceeds. And evidence of other acts is admissible to
prove motive. Ariz. R. Evid. 404(b). Because the attorney’s testimony is
some proof of Mueller’s desire for the insurance proceeds, it is relevant to
motive.

¶12           Relevant evidence may be excluded if its probative value is
“substantially outweighed” by the danger of, among other things, “unfair
prejudice.” Ariz. R. Evid. 402, 403. In this case, the superior court properly
could conclude that the challenged evidence addressing motive was not
unfairly prejudicial. See State v. Hyde, 186 Ariz. 252, 276–77, 921 (1996)
(holding admission of evidence defendant was in arrears for several months
in child support obligations proper to establish financial motive for




                                       5
                            STATE v. MUELLER
                            Decision of the Court

murders). Accordingly, on a fundamental error review, Mueller has shown
no error in the superior court’s admission of such evidence.

III.   The Superior Court Did Not Commit Fundamental Error Resulting
       In Prejudice By Reading Juror Questions That Would Not Be
       Answered By The Witness Who Was Testifying At The Time.

¶13           Mueller argues the superior court erred in reading jury
questions aloud in open court that the court determined would not be asked
of the witness who was testifying at the time. The record shows the court,
after consultation with counsel and without objection, read several jury
questions aloud and explained either why the specific witness could not
answer the question or that another witness would be asked the question.
Mueller speculates this conduct could have caused jurors to believe that
information was being hidden from them or that the answers to the
questions might lead them down a path to a conclusion they might not have
otherwise made.

¶14            Questions submitted by jurors are subject to objections by the
parties and, as that implies, review by the court before they may be asked.
See Ariz. R. Crim. P. 18.6(e). A comment to the rule authorizing juror
questions states that, “[i]f the court determines that the juror’s question calls
for inadmissible evidence, the question shall not be read or answered.”
Ariz. R. Crim. P. 18.6(e) 1995 amend. cmt. Instead, the court is to tell the
jury that “trial rules do not permit some questions to be asked and that the
jurors should not attach any significance to the failure of having their
question asked.” Id.

¶15           Although the procedure used in this case may not entirely
square with this comment, no objection was made. Moreover, the record
does not show that the superior court simply read questions to which it had
sustained an objection. Instead, certain questions were read and the court
then noted that another witness would be asked the question or that the
extent of an attorney’s testimony was limited by the attorney-client
privilege or some similar explanatory information, again without objection.

¶16            Given this context, Mueller does not argue how the procedure
used constituted fundamental error; instead, she asserts it deprived her of
the right to a fair trial. Absent argument or authority that the alleged error
is fundamental, a defendant cannot sustain her burden to show
fundamental error resulting in prejudice. State v. Moreno-Medrano, 218 Ariz.
349, 354 ¶ 18 (App. 2008). Similarly, Mueller’s speculation about the impact
of reading the questions to the jury is insufficient to show fundamental



                                       6
                             STATE v. MUELLER
                             Decision of the Court

error resulting in prejudice. State v. Dickinson, 233 Ariz. 527, 531 ¶ 13 (App.
2013). Accordingly, on a fundamental error review, Mueller has shown no
error in the superior court’s reading aloud in open court juror questions
that would not be answered by the witness at the time they were read.2

                                CONCLUSION

¶17           Because Mueller has shown no fundamental error resulting in
prejudice, her convictions and resulting sentences are affirmed.




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




2 In her reply brief on appeal, Mueller argues for the first time cumulative
error, asserting the State’s trial conduct was prosecutorial misconduct. The
record does not support such an argument and, in any event, this court does
not review issues raised for the first time in a reply brief on appeal. See State
v. Watson, 198 Ariz. 48, 51 ¶ 4 (App. 2000).


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