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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   STEPHAN JAMAL JONES, Appellant.

                       No. 1 CA-CR 18-0468
                           FILED 9-26-19
                  AMENDED PER ORDER FILED 9-30-19

           Appeal from the Superior Court in Maricopa County
                        No. CR2017-144340-001
               The Honorable Kathleen H. Mead, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
                            STATE v. JONES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge David D. Weinzweig joined.


T H U M M A, Judge:

¶1            Stephan Jamal Jones appeals his convictions and sentences for
assault and two counts of aggravated assault. He argues the superior court
made three reversible evidentiary errors. First, he asserts the court admitted
impeachment evidence that violated the Arizona Rules of Evidence.
Second, the court erred by admitting evidence of an order of protection that
he argues was irrelevant and unfairly prejudicial. Third, the court abused
its discretion by denying his motion for mistrial after the State, in the
presence of the jury, referred to “jail calls,” suggesting Jones had been
incarcerated. Because Jones has shown no reversible error, his convictions
and sentences are affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2            Jones and the victim, S.W., were in a romantic relationship.
One morning in November 2016, S.W. called her mother seeking help. Her
mother rushed to S.W.’s home and found S.W. drifting in and out of
consciousness with blood running down her face. After receiving treatment
from paramedics, S.W. told them Jones had punched her in the face and the
ribs. She also told a police officer, a detective, a physician, and two social
workers that Jones had caused her injuries.

¶3           A jury found Jones guilty of assault and two counts of
aggravated assault for breaking S.W.’s ribs, breaking her orbital bone and
otherwise causing her physical injury. He was sentenced to ten years’
imprisonment. This court has jurisdiction over Jones’ timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona




1This court views the facts in a light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013).



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                             STATE v. JONES
                            Decision of the Court

Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-4033(A)
(2019).2

                               DISCUSSION

I.     Jones Has Shown No Error In The Admission Of Impeachment
       Evidence.

¶4             At trial, the victim testified inconsistently with what she told
the police, paramedics and others on or soon after she suffered her injuries.
The victim also testified that she could not remember what occurred on the
day she suffered her injuries. She could not remember speaking with the
paramedics, law enforcement, the physician or the social workers. She first
testified that she never told anyone that Jones caused her injuries and that
someone other than Jones assaulted her. The State presented testimony
from the police officer, the detective and the social workers to impeach the
victim’s testimony. On appeal, Jones argues the use of this impeachment
evidence as substantive evidence of guilt was error and unfairly prejudicial.
Because Jones did not timely object, this court reviews for fundamental
error resulting in prejudice. State v. Escalante, 245 Ariz. 135, 138 ¶ 1 (2018).

¶5             Although a prior inconsistent statement generally may be
admitted as substantive evidence of guilt in Arizona state court, Ariz. R.
Evid. 801(d)(1)(A), other evidentiary rules may preclude admission of such
evidence, State v. Allred, 134 Ariz. 274, 276–77 (1982).3 To be admissible, a
prior inconsistent statement used for substantive purposes must also
comply with Arizona Rule of Evidence 403. In this context, when assessing
the danger of unfair prejudice or other mischief addressed in Rule 403, the
court is directed to consider various factors, including whether:



2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

3 As noted by the State on appeal, without dispute by Jones in reply, in
allowing S.W. to be impeached with her prior statements, the superior court
tacitly concluded that S.W.’s alleged memory loss was feigned, meaning her
responses at trial that she did not recall various statements were deemed
inconsistent with her prior statements. State v. Joe, 234 Ariz. 26, 29 ¶ 14
(App. 2014) (citing cases); see also State v. Moody, 208 Ariz. 424, 449 ¶ 81
(2004) (“Although the trial court’s [ruling] included no specific findings, we
presume that the court was aware of the relevant law and applied it
correctly in arriving at its ruling[.]”).


                                       3
                              STATE v. JONES
                             Decision of the Court

              1) the witness being impeached denies making
              the impeaching statement, and 2) the witness
              presenting the impeaching statement has an
              interest in the proceeding and there is no other
              corroboration that the statement was made, or
              3) there are other factors affecting the reliability
              of the impeaching witness, such as age or
              mental capacity, . . . 4) the true purpose of the
              offer is substantive use of the statement rather
              than impeachment of the witness, 5) the
              impeachment testimony is the only evidence of
              guilt.

Allred, 134 Ariz. at 277; see also State v. Cruz, 128 Ariz. 538, 540–41 (1981).

¶6             Allred assessed these factors when confirming that admission
of prior inconsistent statements constituted prejudicial error in Cruz. Allred,
134 Ariz. at 277–78. In Cruz, the defendant was tried for second-degree
murder. The victim’s girlfriend testified that the defendant’s sister told her
that the defendant said he was going to shoot the victim. Cruz, 128 Ariz. at
539–40. The defendant’s sister denied making that statement. Id. at 539.
Although the testimony of the victim’s sister contained a prior inconsistent
statement admissible under Rule 801(d)(1)(A), Cruz found the statement to
be inadmissible for other reasons. Id. at 541. The statement lacked any
substantial corroboration. Id. The impeaching witness, the victim’s
girlfriend, was interested in the outcome of the proceeding. Id. at 539. The
impeachment of the defendant’s sister was collateral to the use of the
impeaching statement as substantive evidence of guilt. Id. at 540–41.
Moreover, Allred was partially based on the concern that the key issue of
guilt “[was] likely to turn upon the resolution of an issue of credibility in a
‘swearing contest’ between interested witnesses from ‘opposing camps.’”
Allred, 134 Ariz. at 277.

¶7              This case is different. Although the purpose of the
impeaching testimony was or may have been substantive, the other Allred
factors indicate that the danger of unfair prejudice did not substantially
outweigh the statements’ probative value. S.W. admitted she told witnesses
Jones caused her injuries. Six witnesses corroborated that S.W. made those
statements. No evidence suggests — and Jones does not argue — that the
reliability of these witnesses was impaired.

¶8           Jones does claim that the detective and police officer should
be considered interested witnesses because the evidence they obtained was


                                        4
                               STATE v. JONES
                              Decision of the Court

inadmissible under the Arizona Rules of Evidence. The record lacks any
indication that the witnesses were not acting in their professional capacities
or that they had personal interests in the outcome. Whether their
investigation yields admissible evidence does not alter that conclusion.
Further, the impeaching statements were not the only evidence of guilt.
Two witnesses, a treating physician and a paramedic, both testified —
under the medical-treatment exception to the rule against hearsay — that
S.W. said her injuries were caused by her boyfriend (Jones). Ariz. R. Evid.
803(4). The jury also heard evidence that S.W. sought an order of protection
against Jones with reference to the charged incident. In this case, there was
no concern — as there was in Cruz — that the key issue of guilt hinged on
a credibility issue between interested witnesses. Accordingly, the court did
not err, let alone fundamentally err, in admitting the evidence.

II.    Jones Has Not Shown Error In The Admission Of The Order Of
       Protection Evidence.

¶9              During the State’s case-in-chief, a detective testified about the
order of protection that S.W. obtained against Jones almost one year after
the charged incident, but based on the charged incident. The detective also
explained what an order of protection is, why someone might seek one and
the scope of such an order. He described it, in relevant part, as follows: “if .
. . the victim . . . feels like their life is in danger or in fear of injury from the
other party, including their children, they can get a protection order.” Jones
objected on relevance, which the court overruled. On appeal, he argues the
testimony was not only irrelevant but also unfairly prejudicial. Because
Jones did not object to the testimony on grounds of unfair prejudice, this
court reviews that claim for fundamental error resulting in prejudice.
Escalante, 245 Ariz. at 138 ¶ 1. The ruling on relevance is reviewed for an
abuse of discretion. State v. Childress, 222 Ariz. 334, 338 ¶ 9 (App. 2009).

¶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. This evidence was relevant given the victim
testified Jones did not cause her injuries, and her credibility also became a
material issue at trial. The detective’s generalized explanation of an order
of protection provided a basic understanding so the jurors could assess
whether or how it would affect the victim’s credibility. Specifically, the
evidence of the victim obtaining an order of protection against Jones with
reference to the charged incident impeached the victim’s trial testimony
that Jones did not cause her injuries.




                                         5
                             STATE v. JONES
                            Decision of the Court

¶11           Relevant evidence may be precluded if, among other things,
its probative value is substantially outweighed by a danger of unfair
prejudice. See Ariz. R. Evid. 403. Jones argues the testimony surrounding
the order of protection implicitly suggested he was a “bad man” because
the victim obtained the order of protection nearly a year after the charged
incident. Jones has not shown that the admission of the evidence rose to the
level of fundamental error. The evidence was strictly limited to a
generalized discussion of protective orders and the charged incident; it did
not refer to any other act committed by Jones. The jury was instructed to
base its verdicts solely on the presented evidence and not to guess about
any fact. Because jurors are presumed to follow the court’s instructions, the
evidence presented did not create a substantial danger of unfair prejudice
based on this alleged implicit suggestion. See State v. Newell, 212 Ariz. 389,
403 ¶ 68 (2006).

¶12           Jones also claims allowing evidence of the order of protection
violated Arizona Rules of Evidence 404. Again, the testimony surrounding
the protective order discussed no other crime, wrong or act committed by
Jones but, rather, was limited to issues of S.W.’s credibility. Therefore, Rule
404 does not apply.

III.   Jones Has Not Shown The Court Erred In Denying His Motion For
       Mistrial.

¶13            The State intended to present evidence of phone calls made
between the victim and the defendant when he was incarcerated before
trial. When addressing the foundation of that evidence, the State mentioned
that the calls were “jail calls.” Jones later moved for mistrial because of the
State’s reference to his incarceration status. The court denied his motion.
Jones now claims that this denial was error, arguing that the disclosure of
his custody status violated the presumption of innocence.

¶14            This court reviews the denial of a motion for a mistrial for an
abuse of discretion. State v. Welch, 236 Ariz. 308, 314 ¶ 20 (App. 2014). Two
factors are particularly relevant to that inquiry: “(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 case, were influenced by
the remarks.” State v. Stuard, 176 Ariz. 589, 601 (1993). Mistrial is “the most
dramatic remedy for trial error and should only be granted 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).




                                      6
                             STATE v. JONES
                            Decision of the Court

¶15              Here, the better course would have been for the jury to hear
no reference to “jail.” But even if that single reference by the prosecutor
caused the jurors to believe Jones had been incarcerated at some point, the
record does not support a conclusion that the jury was influenced by the
reference. Before the “jail calls” comment, the jury had already heard
evidence that Jones had been arrested. The jury’s knowledge of custody
status does not necessarily deny a defendant the presumption of innocence.
See State v. Murray, 184 Ariz. 9, 35 (1995) (“[c]ertainly the jurors were aware
that defendants were arrested and had spent some time in custody prior to
trial . . . [s]uch knowledge is not prejudicial and does not deny defendants
the presumption of innocence.”). And the jury was instructed that the
lawyers’ comments are not evidence and that the jury’s consideration was
confined to the facts from the testimony and admitted exhibits. Because
jurors are presumed to follow their instructions, it is presumed they did not
consider the State’s isolated remark when reaching their verdicts. Newell,
212 Ariz. at 403 ¶ 68.

¶16            To support his argument, Jones cites Estelle v. Williams, 425
U.S. 501, 512 (1976) (holding government may not compel a defendant to be
tried in identifiable prison clothes) and Deck v. Missouri, 544 U.S. 622, 624
(2005) (defendants generally may not be placed in visible shackles in the
guilt phase). These cases, however, do not resemble this case. The State’s
single remark does not serve as the same “constant reminder” of the
defendant’s condition that can affect a juror’s judgment like identifiable
prison clothing or visible shackling. Estelle, 425 U.S. at 504–05.

                               CONCLUSION

¶17          Because Jones has shown no reversible error, his convictions
and sentences are affirmed.




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

                                        7
