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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ROBERT JOHN ADKINS, Appellant.

                             No. 1 CA-CR 15-0245
                               FILED 5-12-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400015
                The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Law Office of David Michael Cantor, PC, Phoenix
By Stephen S. Garcia
Counsel for Appellant
                           STATE v. ADKINS
                          Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Maurice Portley and Judge Patricia K. Norris joined.


T H O M P S O N:

¶1           Robert John Adkins (defendant) appeals from his convictions
and sentences for second degree murder and vulnerable adult abuse. For
the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Defendant and the male victim were roommates and both in
their early 50s. Because the victim’s deteriorating health impacted his
mobility in the latter part of 2013, defendant became, by default, his
roommate’s “caregiver.” And defendant complained about his increasing
responsibilities to the victim’s daughter, who lived in California.

¶3             Defendant called 9-1-1 at approximately 7:30 p.m. on
December 24, 2013, requesting assistance for the victim, who was not
breathing and “might be dying.” While speaking with the dispatcher,
defendant mentioned that the victim was in a fight with his cousin, and
stated that when he returned home he discovered the victim on the shower
floor in the bathroom.

¶4            Medical personnel and police officers arrived quickly.
Officer Oktay noticed that there was “blood everywhere” in the residence,
including on the walls, the washer and dryer, and defendant’s pants. And
inside the dryer, officer Oktay noticed what appeared to be blood-stained
sheets and pillows. Subsequent DNA analysis revealed the presence of the
victim’s blood on defendant’s shoes.

¶5             Defendant told officer Oktay about the victim’s on-going
medical issues, such as high blood pressure, dementia, and hemiplegia
resulting from a prior stroke. Defendant explained that the victim had
fallen in the bedroom four days earlier and hit his head on a television
causing it to break, and the television was subsequently moved to the
garage. Officer Oktay proceeded to the garage and observed a television
there, but it did not have blood on it, and it did not appear to have been
washed or wiped down.


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                             STATE v. ADKINS
                            Decision of the Court

¶6           Officer Oktay observed the victim laying in the shower and
bright red blood in the bathroom. The victim’s eyes were swollen, and
bruises covered his lifeless “cool-to-the-touch” body.               Defendant
mentioned that he had earlier attempted to get the victim into the shower,
but he said nothing about the victim falling in the bathroom.              And,
although he had telephoned the victim’s daughter in the past, defendant
never attempted to call her after the fall or to tell her that he had died.

¶7            Although the victim’s death was suspicious, defendant was
not brought in for further questioning and was not arrested that evening.
A supervising officer at the scene, concluded that, the medical examiner’s
report would be necessary to determine whether the death was the result
of a criminal act.

¶8              Two days later, the medical examiner opined that the victim
died of “bilateral tension pneumothorax . . . due to blunt force trauma of
the chest due to assault.” The autopsy revealed serious recent injuries,
including twenty-seven displaced rib fractures. Some of the ribs were
broken in more than one place, resulting in nine flail segments, which are
pieces of fractured ribs “that just kind of float there” when a person
breathes, resulting in significant pain and the inability to take a deep breath.
Several of the fractured ribs punctured the victim’s lungs, causing them to
collapse. According to the medical examiner, the victim’s injuries were
definitely not the result of a fall, nor were they consistent with a television
set falling on the victim; rather, the victim appeared to have been repeatedly
stomped on and kicked. The medical examiner estimated the victim could
have survived thirty minutes to an hour after sustaining the injuries.

¶9            The next day, detective Gilbert secured a warrant and
searched defendant’s home. However, before the search began, defendant
proceeded to the police station “to lodge a complaint” against an officer and
to discuss an unrelated dispute he had been having with a local hospital.
Detective Zach spoke with defendant and the conversation eventually
turned to the Christmas Eve incident. Defendant explained he had
returned home from an errand and discovered the victim had soiled the
bed. He described how he proceeded to drag the victim to the shower,
where, approximately a week before, the victim had fallen face first into the
shower step resulting in injuries and copious bleeding.

¶10          After a break in the interview, detective Zach advised
defendant of his Miranda1 rights. Defendant, however, continued to speak


1      Miranda v. Arizona, 334 U.S. 436 (1966).

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                            STATE v. ADKINS
                           Decision of the Court

with the detective. When asked about the victim’s fight with a cousin that
defendant referred to during the 9-1-1 call, defendant “seemed like he . . .
did not know what [detective Zach] was talking about, and [defendant
explained that the victim] had never been in[] a fight with a family
member.” At some point, detective Fisk took over the interview.
Defendant never mentioned during any of his conversations with the police
officers that items were missing from his and the victim’s home or that there
were other indications of intruders who could have murdered the victim.

¶11           A grand jury subsequently indicted defendant for second
degree murder, a class 1 felony, and vulnerable adult abuse, a class 2 felony.
Subsequently, and after defendant testified in his own behalf, the jury
found defendant guilty as charged, and found defendant committed the
offenses in an especially cruel manner, an aggravating factor. Defendant
unsuccessfully moved for a new trial. After defendant was sentenced to
concurrent aggravated prison terms, he filed a timely appeal. We have
jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and
Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2016), 13-4031
(2010), and -4033(A) (2010).

                               DISCUSSION

¶12           Defendant essentially raises three issues on appeal. First,
whether the trial court erred in permitting the state to improperly comment
on his right to remain silent. Second, whether the court improperly
admitted other-act evidence and then failed to give the jury a curative
instruction regarding that evidence. Finally, whether a new trial is required
because the court failed to give the jury a written copy of instructions when
the jury began its deliberations.

       A.     Comment on Defendant’s Silence

¶13         Defendant asserts the following portions of trial testimony
amounted to an improper comment on his right to remain silent:

       Q. Did he [defendant] tell you anything about anything
       missing?

       [Oktay]. No.

       ....

       Q. Did he ever say anything to you, during that interview,
       about intruders in the house, in general?


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                             STATE v. ADKINS
                            Decision of the Court

       [Zach]. No.

       Q. Did he report that he realized anything had been stolen?

       [Zach]. No.

       ....

       Q. Did [defendant] talk to you about anything being missing,
       or stolen?

       [Fisk]. There was nothing. He didn't mention it; no.

¶14           As defendant properly acknowledges, we review for
fundamental error because he did not object to the testimony. State v.
Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). To obtain relief
under fundamental error review, defendant has the burden to show that
error occurred, the error was fundamental and that he was prejudiced
thereby. See id. at 567-68, ¶¶ 20-22, 115 P.3d at 607-08 (2005).

¶15            We agree with defendant that a prosecutor generally may not
comment on a defendant's post-arrest, post-Miranda warnings silence as
evidence of guilt. State v. Mauro, 159 Ariz. 186, 197, 766 P.2d 59, 70 (1988)
(citing Doyle v. Ohio, 426 U.S. 610 (1976)). As the United States Supreme
Court has repeatedly stated, “Doyle rests on ‘the fundamental unfairness of
implicitly assuring a suspect that his silence will not be used against him
and then using his silence to impeach an explanation subsequently offered
at trial.’” Wainwright v. Greenfield, 474 U.S. 284, 291 (1986) (quoting South
Dakota v. Neville, 459 U.S. 553, 565 (1983).

¶16            However, there was no fundamental prejudicial error.
Defendant testified on cross-examination that he “[doesn’t] believe
anybody broke into the house . . . [or] anybody else was there.” Thus, even
if the challenged testimony can be construed as comments on his “silence,”
and we do not decide that it was, defendant testified in his cross-
examination consistently with his description in his direct testimony and
with his “silence” during the police investigation. Therefore, any error that
may have been caused by the officer’s testimony was, at best, harmless and
does not warrant a new trial. See State v. Lopez, 217 Ariz. 433, 436 n.2, ¶ 12,
175 P.3d 682, 685 n.2 (App. 2008) (concluding that admission of




                                      5
                             STATE v. ADKINS
                            Decision of the Court

inadmissible hearsay harmless when cumulative with defendant’s own
testimony).2

¶17           Defendant also summarily asserts, without any authority,
that the state “engaged in burden shifting during the entirety of its case,
referencing how [defendant] never initially told law enforcement
representatives that he thought that [the victim] could have been murdered
during the course of a burglary.” We could permissibly refuse to address
this undeveloped argument. See State v. Lindner, 227 Ariz. 69, 70 n.1, ¶ 3,
252 P.3d 1033, 1034, n.1 (App. 2010) (appellate court will not address
arguments that are not developed in a defendant’s opening brief).

¶18             However, defendant’s argument also fails on the merits. In
general, the state may comment on a criminal defendant’s failure to present
exculpatory evidence, so long as the comment is not directed to the
defendant’s failure to testify. State v. Sarullo, 219 Ariz. 431, 437, ¶ 24, 199
P.3d 686, 692 (App. 2008) (noting that [w]hen a prosecutor comments on a
defendant’s failure to present evidence to support his or her theory of a
case, it is neither improper nor shifts the burden of proof to the defendant
so long as such comments are not intended to direct the jury’s attention to
the defendant’s failure to testify”). Here, defendant did testify, so the police
officers’ testimony was not “directed to [his] failure to testify.”

       B.     Motion for Mistrial: Other-Act Evidence; Burden-Shifting

¶19            Before trial, the court ordered that evidence of defendant’s
threatening behavior while in a dispute with a local hospital before, and
right after, the victim was killed was inadmissible other-act evidence under


2      Defendant also suggests that the court erred in permitting detective
Gilbert and an evidence technician to testify that, while they participated in
the search of defendant’s home, they did not see signs of a break-in,
ransacking, or other indicia of a burglary. The testimony, however, is not a
comment on defendant’s silence, but on the investigation at the house and
whether evidence suggested that someone else assaulted and killed the
victim. Defendant also implies the court should not have permitted
detective Gilbert to testify regarding information defendant failed to
provide during the 9-1-1 call, such as defendant’s name, “where the call was
placed,” and the callback number. The testimony he complains about,
however, does not come from any police interrogation, and, as a result, the
implied argument has no merit.




                                       6
                             STATE v. ADKINS
                            Decision of the Court

Arizona Rule of Evidence (Rule) 404(b).3 At trial, a recording of defendant’s
interview with detective Zach was played for the jury. Defendant’s
comments during the interview about his dispute with the hospital were
supposed to be redacted, but some of those comments were inadvertently
introduced because of technical difficulties.4 Defendant contents the
improperly introduced comments consist of the following: “the lady said I
was threatening . . . that’s not my proudest moment,” “people at hospital,
I’m a jerk,” and “woman who called . . . threat.”5 Defendant unsuccessfully
moved for a mistrial, and did not request a curative instruction despite the
court’s invitation.6

¶20          Defendant now argues on appeal that the court erred in
denying his mistrial motion. He contends the improperly admitted
statements were irrelevant and improper other-act evidence, introduced to
prove his propensity to commit the charged offenses. We disagree.

¶21           We review for abuse of discretion a trial court’s denial of a
motion for mistrial based on an unexpected admission of inadmissible
evidence. State v. Doty, 232 Ariz. 502, 506, ¶ 17, 307 P.3d 69, 73 (App. 2013).
“In deciding whether to grant a motion for mistrial after inadmissible
testimony is unexpectedly interjected, the trial court should consider ‘(1)
whether the remarks called to the attention of the jurors matters that they
would not be justified in considering in determining their verdict, and (2)
the probability that the jurors, under the circumstances of the particular




3      Rule 404(b) generally prohibits evidence of uncharged acts “to prove
the character of a person in order to show action in conformity therewith.”
Ariz. R. Evid. 404(b).

4     The precise terms of the stipulation are not in the record on appeal
because the parties did not inform the trial court on the record of the
agreed-upon terms.

5     The court reporter did not record the contents of the exhibit when it
was played for the jury, and the exhibit is not in the record.

6     To the extent defendant is arguing that the court should have sua
sponte given a curative instruction, we disagree given that he has not
provided any authority for his position.




                                      7
                             STATE v. ADKINS
                            Decision of the Court

case, were influenced by the remarks.’” Id. (quoting State v. Stuard, 176 Ariz.
589, 601, 863 P.2d 881, 893 (1993)).

¶22            In denying the mistrial motion, the court reviewed the
inadvertently introduced statements, and specifically found that none of
them violated its prior order precluding other-act evidence.7 The court also
found that none of the “fragments of conversations” were prejudicial
because they had no context. Because we do not have a transcript of what
the jury heard, we must presume the record supports the court’s findings.
See State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982) (“Where matters
are not included in the record on appeal, the missing portions of the record
will be presumed to support the action of the trial court.”). Furthermore,
the court’s finding regarding the lack of prejudice resulting from the
inadvertent admission of the comments is buttressed by defendant’s
decision to not request or submit a curative instruction. Consequently, we
find no abuse of discretion.

¶23          Defendant also argues the state improperly shifted the
burden of proof when, in response to defendant’s mistrial motion based on
the inadvertently admitted statements, the prosecutor stated:

               The other thing is, and maybe this can be revisited after
       he testifies; but I’m just as sure as I can be, not having heard
       him testify yet, it’s going to be Katie bar the door after he
       testifies on direct examination, and a lot of doors are going to
       be opened to rebuttal to not just these little innocuous things
       ― I mean it’s easy for me to say they are innocuous. I
       understand [defense counsel’s] concern, but you know, I
       think there’s going to be a lot more coming in that we had
       agreed to keep out, because of doors the defendant will open
       when he testifies.

¶24        Moreover, according to defendant, the trial court
acknowledged “the shift in burden” when it later advised defendant:



7      Although the court had precluded other act evidence, the court had
not considered the portions of the recorded transcript of the police
interview when defendant discussed his dispute with the hospital.
Accordingly, there is no basis for defendant’s unsupported assertions on
appeal that the court “already precluded these portions of [defendant’s]
recorded interview on Exhibit #63 due to the dangers of how the jury could
make impermissible assumptions if it were to consider such testimony.”

                                      8
                              STATE v. ADKINS
                             Decision of the Court

              Now, I also understand you could be sitting there
       thinking well, yeah, that’s fine that you ruled that they
       couldn’t do that, but they have already done that by their
       inept handling of the interview tape; and I don’t have a really
       great response to that, but you just need to be aware that if
       you testify and you get into things that I have ruled were
       inadmissible, they become admissible.

¶25            These comments, made outside of the presence of the jury do
not support any notion that the state did not have the burden of proving its
case beyond a reasonable doubt. The state, having been informed that the
defendant was planning to testify, was merely projecting that defendant
could potentially open the door to the “innocuous” statements (and other
evidence) should he testify about the hospital dispute. And while the state
did not need to make the comment, the statement is inconsequential, given
that the court did not deny the mistrial motion on the basis of defendant’s
potential to testify.

¶26            The court’s statement that, “I don’t have a really great
response to that,” does not reflect the court’s belief that defendant must
testify in order to respond to the inadvertently introduced audio comments.
Rather, the statement simply is the court acknowledging it could not
respond to its perception that defendant may have believed the state’s
“inept handling” of the interview tape resulted in the admission of evidence
that the parties agreed would not be introduced. Additionally, the court
made the comment in response to an apparent conflict because defense
counsel informed the court that he was advising defendant not to testify.
Because the comments were made outside of the presence of the jury, there
was no improper shifting of the state’s burden onto defendant. In fact, the
jury was subsequently advised that the state had the burden of proving
each and every element of each charge beyond a reasonable doubt.
Accordingly we find no error.

       C.     Copies of Jury Instructions

¶27            The record reflects that the court read the final instructions to
the jury, but court staff failed to give jurors written copies of the instructions
when they retired to deliberate. The court eventually recognized the
problem after it had received two or three notes from the jury requesting
the specific instructions for the murder charge’s lesser-included crime of
manslaughter. The court immediately handed the bailiff copies of the
written instructions to give to the deliberating jury. Approximately fifteen
minutes later, the jury reached its verdicts. In a motion for new trial,


                                        9
                            STATE v. ADKINS
                           Decision of the Court

defendant subsequently challenged the court’s failure to timely provide the
written instructions to the jury. The court heard argument on the motion
and denied it.

¶28            Defendant argues that the court’s failure to initially give the
jury copies of the written instructions amounts to reversible error.8 We
review a court’s denial of a motion for new trial for an abuse of discretion.
State v. Waller, 235 Ariz. 479, 486, ¶ 22, 333 P.3d 806, 813 (App. 2014).

¶29            We find no abuse of discretion. Rule 22.1 provides that the
“court shall instruct the jury on the law” before deliberations, and the
instructions which have been reduced to writing, be made available during
deliberations. Ariz. R. Crim. P. 22.1(a). Rule 22.2 provides that the jury
shall take the forms of verdict, “copies of written or recorded instructions”
as well as their notes and any evidence that the court allows. Ariz. R. Crim.
P. 22.2(a-d).

¶30            Although the court failed to ensure that each juror had a copy
of the written instructions when they left to begin deliberating, the mistake
did not cause prejudice. See Ariz. R. Crim. P. 22.2(b) (requiring jurors to
take “copies of written or recorded instructions” upon retiring for
deliberation). The mistake was discovered and remedied before the jury
concluded the deliberations.

¶31           Defendant speculates that “the damage had been done” by
the time the court provided the written instructions, at which point
defendant posits “[t]he jury was simply expected to manifest its
determinations regarding its verdicts for the respective charges.”
Defendant muses that “it is unknown if the jury would have rendered
unanimous verdicts as to the charges if they were properly provided with
written instructions from when they were first excused to deliberate.” Such
speculation, however, is insufficient to find reversible error. Cf., State v.
Rosas-Hernandez, 202 Ariz. 212, 220, ¶ 31, 42 P.3d 1177, 1185 (App. 2002)
(“The failure to give an instruction is not reversible error unless it is
prejudicial to the defendant and the prejudice appears in the record.”).
Significantly, the jury heard the instructions—which defendant does not
contend improperly stated the law—before it deliberated and did not


8       Defendant asserts that the court “did not take seriously the jury’s
first request for the instructions” and instead responded to the request
“with cynicism and doubt.” The allegations are not supported by the
record.


                                     10
                             STATE v. ADKINS
                            Decision of the Court

return its verdicts until after it had the written instructions and the time to
review them. See People v. Patel, 851 N.E.2d 747, 757 (Ill. App. Ct. 2006)
(finding no plain error where jury instructions read in open court correctly
stated the law, but copies were not distributed to the jury until after jury
commenced deliberations and jury returned verdicts fifteen minutes
thereafter). Furthermore, the unanimity of the verdicts was confirmed
when the trial court polled the individual jurors regarding their assent to
the verdicts. Consequently, we find no reversible error.

                              CONCLUSION

¶32          Because we find no reversible error, we affirm defendant’s
convictions and sentences.




                                 :ama




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