                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    LORENZO DAMIAN, JR., Appellant.

                             No. 1 CA-CR 13-0449
                              FILED 09-23-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-127793-001
             The Honorable Brian Kaiser, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                                STATE v. DAMIAN
                                Decision of the Court



                           MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding
Judge Jon W. Thompson and Chief Judge Diane M. Johnsen joined.


J O N E S, Judge:

¶1             Defendant Lorenzo Damian Jr. appeals his conviction and sentence
for possession of marijuana for sale. Damian argues the trial court abused its
discretion in refusing to grant his request for a mistrial, and in failing to sua sponte1
impose any lesser remedy, when a police officer improperly referred to the
existence of a video recording of Damian’s interrogation that was precluded from
evidence. For the reasons that follow, we affirm.

                          FACTS2 AND BACKGROUND

¶2             In the early morning hours of May 26, 2012, several law enforcement
officers executed a search warrant at the home Damian resided in with his mother.
During the search, an officer found an envelope containing a set of keys taped to
the back of a picture hanging on the wall in a bedroom. The keys unlocked the
trunk of a car parked in the garage. When the officers unlocked the trunk, they
discovered a cooler containing 1.32 pounds of marijuana in two separate bags, a
box of plastic baggies, a pair of scissors, and a pay stub with Damian’s name on it.
Also found in the home and garage were two scales, several pieces of mail
addressed to Damian, a marijuana dispensary “business card” for the “Cannibas
King,” and additional plastic baggies of varying sizes. When Damian was
arrested, officers found $692 on his person.

¶3           At trial, Damian stipulated to the majority of the evidence, including
the marijuana, the bags, the scale, and the photographs taken during the execution
of the warrant. The State offered evidence that the quantity and packaging of the
marijuana, the close proximity of the scales and baggies, and the absence of any


1“Sua sponte” is defined as “without prompting or suggestion; on its own motion.”
Black’s Law Dictionary (9th ed. 2009).

2“We view the facts in the light most favorable to sustaining the convictions, with
all reasonable inferences resolved against the defendant.” State v. Riley, 196 Ariz.
40, 42, ¶ 2, 992 P.2d 1135, 1137 (App. 1999) (citing State v. Valencia, 186 Ariz. 493,
495, 924 P.2d 497, 499 (App. 1996)).


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                                STATE v. DAMIAN
                                Decision of the Court

smoking paraphernalia, were indicative of possession for sale, rather than use.
Additional evidence was introduced that drug dealers would typically carry large
sums of money on their person, as Damian had, and keep marijuana in a cooler to
conceal the substance and its distinct odor.

¶4             Damian moved to preclude from admission at trial the video
recording of his interrogation on the basis it was not timely disclosed. The trial
court granted Damian’s motion, but permitted testimony regarding statements
made by Damian during the interrogation, the substance of which were previously
disclosed. The trial court advised the prosecutor that the testifying officer should
take care not to refer to the existence of a video recording, to avoid inviting inquiry
from the jury as to the reasons the recording was not entered into evidence. The
trial court specifically suggested that if the officer’s memory was attacked, he
could “testify to having reviewed his notes or report without saying that there is
a video of [the interrogation].”

¶5              During cross-examination, however, the officer mentioned the video
recording on two occasions. When Damian’s attorney examined the officer
regarding the length of the interrogation, he responded, “If you want an exact
number, you should really refer to the recordings,” and after further questioning,
stated, “I’ll take your word for it if that’s what the tape says.” Damian moved for
a mistrial based upon improper admission of evidence referencing the video
recording of his interrogation. The trial court denied the motion, finding Damian’s
counsel “opened the door” through his line of questioning. Damian did not ask
the trial court to strike the testimony, give a special instruction, or provide any
lesser remedy.

¶6           At the conclusion of trial, the jury found Damian guilty of possession
of marijuana for sale. He was sentenced to a mitigated term of eight years, plus
two years because the offense was committed while Damian was on felony release.
Damian filed a timely notice of appeal, and we have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1),3 13-4031, and 13-
4033(A)(1).

                                   DISCUSSION

¶7             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,


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



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                                STATE v. DAMIAN
                                Decision of the Court

¶ 43, 74 P.3d 231, 244 (2003) (quoting State v. Adamson, 136 Ariz. 250, 262, 665 P.2d
972, 984 (1983)). In determining whether to grant a mistrial, the trial court
considers “whether the remarks call attention to information that the jurors would
not be justified in considering for their verdict, and whether the jurors in a
particular case were influenced by the remarks.” State v. Jones, 197 Ariz. 290, 304,
¶ 32, 4 P.3d 345, 359 (2000). We review a trial court’s denial of a motion for mistrial
for abuse of discretion, id., and reverse only where there is a “’reasonable
probability’ that the verdict would have been different had the [improper]
evidence not been admitted.” State v. Hoskins, 199 Ariz. 127, 142–43, ¶ 57, 14 P.3d
997, 1012–13 (2000) (citing State v. Atwood, 171 Ariz. 576, 639, 832 P.2d 593, 656
(1992)).

¶8              We conclude the trial court did not abuse its discretion in denying
the request for mistrial based upon the officer’s improper reference to the
recording. A mistrial is not appropriate every time a witness unexpectedly
volunteers an inadmissible statement. Adamson, 136 Ariz. at 262, 665 P.2d at 984;
see also Dann, 205 Ariz. at 570, ¶ 46, 74 P.3d at 244 (finding no abuse of discretion
in denying mistrial after witness unexpectedly volunteered that defendant had
been in prison); Jones, 197 Ariz. at 304, ¶ 32, 4 P.3d at 359 (holding that witness’s
“relatively vague references to other unproven crimes and incarcerations” did not
create undue prejudice and finding no abuse of discretion in denying mistrial).
Instead, the remedy rests within the sound discretion of the trial court, which must
evaluate the situation and decide an appropriate course of action in light of the
specific facts and circumstances presented. See 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
statements were 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) (quoting State v. Koch,
138 Ariz. 99, 101, 673 P.2d 297, 299 (1983)).

¶9             Here, the officer’s brief references to “the recording” and “tape,”
although improper and inadmissible, did not trigger any apparent curiosity in the
jurors as to why the tape was not shown; the jurors did not ask any follow-up
questions about the tape or the recording. Nor did the prosecutor refer to the
recording in closing argument. Under these circumstances, there was no
indication that the jurors were influenced by the remarks. Moreover, in light of
the insignificance of the references to the video recording and the overwhelming
circumstantial evidence supporting the conviction, there is no reasonable
probability that the references solicited by Damian’s counsel could have
meaningfully affected the jury’s verdict.

¶10          Nor are we persuaded the trial court was required to impose some
lesser remedy where none was requested. A defendant cannot simply lay in wait


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                               STATE v. DAMIAN
                               Decision of the Court

for the court to make alleged errors of omission in lieu of trying his case. State v.
Vanderlinden, 111 Ariz. 378, 380, 530 P.2d 1107, 1109 (1975) (“[M]ischief might
otherwise occur if a party can remain mute when a court omits an unrequested
[lesser included offense] instruction, counsel knowing that the judgment will be
reversed because of the omission.”)

¶11            Damian argues that his counsel did not invite the testimony;
however, we need not address this issue because we defer to the trial court’s
evaluation of the impact of the brief testimony, and find no abuse of discretion in
its decision to direct Damian’s counsel to “move on,” rather than draw additional
attention to the statements through further remedial action. See Shannon v. U.S.,
512 U.S. 573, 586 (1994) (acknowledging inevitable result of instruction may be to
draw jury’s attention toward information it should ignore).

¶12           For the foregoing reasons, we affirm Damian’s conviction and
sentence.




                                      :gsh




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