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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   KARI ANN MANWEILER, Appellant.

                             No. 1 CA-CR 15-0175
                              FILED 4-26-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400202
                The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

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

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



                      MEMORANDUM DECISION

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


N O R R I S, Judge:

¶1           Kari Ann Manweiler appeals her convictions and sentences
for possession of dangerous drugs, possession of drug paraphernalia,
conspiracy to sell dangerous drugs, and two counts of sale of dangerous
drugs. She argues the superior court improperly admitted prejudicial
testimony and the prosecutor intentionally deprived her of her right to due
process and a fair trial by intentionally arguing facts not in evidence. We
disagree with these arguments and affirm Manweiler’s convictions and
sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2           In a police-controlled buy, an informant purchased about
one-quarter ounce of methamphetamine from Manweiler on February 5,
2014, and about one-half ounce the following day. On February 7, police
executed a search warrant at Manweiler’s home in Bullhead City and found
$210 in marked bills used for the drug buys in her wallet.

¶3         L.M. and A.A. were at Manweiler’s home during the search.
L.M. told police that Manweiler had just sold her 2.4 grams of
methamphetamine, and A.A. told police he had purchased an “eight-ball”
of methamphetamine from Manweiler the night before. 1

¶4             At trial, when cross-examining a police corporal in the State’s
case-in-chief, defense counsel played a recording of the controlled buys.
The corporal testified he recognized Manweiler’s voice on the recording.
Defense counsel objected to the corporal’s statement because he was not “a
speech recognition expert.” The superior court overruled the objection,
noting defense counsel had asked the corporal to “point out whenever he

              1At
                trial, however, L.M. and A.A. both denied purchasing the
methamphetamine from Manweiler; they testified they could not
remember telling police otherwise.




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                         STATE v. MANWEILER
                          Decision of the Court
hears something.” On redirect, the prosecutor asked the corporal how he
could be “confident” that he had heard Manweiler’s voice on the recording.
He answered, “[b]ecause I know Kari. I’ve dealt with her for many years,
I’ve arrested her numerous times, I have had contacts with her, I’m going
to estimate a dozen times in the last 8 to 10 years” and had spent “quite
some time” interviewing her after executing the search warrant. 2

¶5             Defense counsel did not object or ask the superior court to
strike this testimony, but the following day, after the State rested, defense
counsel, in “an overabundance of caution,” asked for a mistrial “because of
the reference to the prior arrests.” The superior court refused to grant a
mistrial, explaining:

             So, if in fact he has had prior contact with the
             defendant, then he is more likely to recognize
             her voice. If he has actually arrested her in the
             past, that would be the type of contact that
             would be likely to involve more interaction than
             a traffic citation, or something like that. So, I
             think the fact that his contact was in the context
             of an arrest would be relevant.

¶6            During the defense case-in-chief, defense counsel questioned
Manweiler about her past drug use and police contacts. Manweiler testified
she was an “ex-meth user” and had sold drugs in the past. But, she testified
she had not sold drugs recently or to the informant, to L.M., or to A.A., and
any drug paraphernalia found in her home was not hers. She also testified
she “[didn’t] believe” she had met the corporal before February 7, 2014, and
had never been arrested before.

¶7            In the State’s rebuttal case, the prosecutor recalled the
corporal and asked him about the first time he had contact with Manweiler.
The corporal responded, “I don't know the exact date. It was approximately
8 to 10 years ago. . . . We got a call from an adjoining room saying they
could smell what was methamphetamine either being used or cooked in the
room next to them.” He said he arrived on the scene and arrested
Manweiler, but other detectives handled any further investigation. He
believed the other detectives released Manweiler without booking her.




             2On  recross, defense counsel asked the corporal, “Corporal,
you’ve never actually arrested my client prior to this incident. Correct?” He
responded, “No. I have.”


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                         STATE v. MANWEILER
                          Decision of the Court
¶8            The superior court concluded the best way to handle the
corporal’s testimony about his prior contacts with Manweiler was to give
the following limiting instruction:

             Evidence was presented in this case suggesting
             that the defendant has had prior contact with
             law enforcement. Such evidence was not
             presented and may not be considered by you to
             conclude that she is a bad person, or that she is
             disposed to engage in criminal activity. Such
             evidence was presented and may be considered
             by you only for the limited purpose of
             determining whether any such prior contact
             would have enabled the officer to recognize her
             voice.

¶9           The jury convicted Manweiler as noted above. See supra ¶ 1.

                              DISCUSSION

I.    The Corporal’s Testimony

      A.     Motion for Mistrial

¶10            Manweiler argues the superior court abused its discretion in
denying her motion for a mistrial after it admitted prejudicial testimony
concerning her previous contacts with police. State v. Jones, 197 Ariz. 290,
304, ¶ 32, 4 P.3d 345, 359 (2000) (reviewing superior court’s denial of a
motion for mistrial for abuse of discretion). We will only reverse a superior
court's denial of a mistrial if “there is a ‘reasonable probability that the
verdict would have been different had the [improper] evidence not been
admitted.’” State v. Dann, 205 Ariz. 557, 570, ¶ 44, 74 P.3d 231, 244 (2003)
(citation omitted). In determining whether to grant a mistrial, a court
should consider whether the testimony called the jurors’ attention to
matters they would not be justified in considering in reaching a verdict and
the probability under the circumstances that the testimony influenced the
jurors. State v. Bailey, 160 Ariz. 277, 279, 772 P.2d 1130, 1132 (1989).

¶11           The corporal’s testimony that he knew Manweiler’s voice
because he had arrested her numerous times in the past called the jurors’
attention to matters they would not normally be justified in considering in
reaching a verdict. Although the evidence might have been minimally
relevant to prove Manweiler’s identity, and accordingly admissible under
Arizona Rule of Evidence 404(b), it could have been precluded as unfairly



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                          STATE v. MANWEILER
                           Decision of the Court
prejudicial under Rule 403 had defense counsel timely objected. 3 Defense
counsel, however, did not object or ask the superior court to strike this
apparently unexpected testimony, and the prosecutor immediately
followed up by eliciting testimony that the corporal had spent “quite some
time” interviewing Manweiler after she was arrested for the instant
offenses.

¶12            Nevertheless, the record reflects little probability this
testimony influenced the jury. During the State’s direct examination of the
corporal in its case-in-chief—which occurred a day before defense counsel
cross-examined him—the corporal testified without objection that he had
known Manweiler through police contacts for at least ten years. The
corporal also testified that during his post-arrest interview of Manweiler,
she had repeatedly told him she was trying to change her lifestyle and had
not recently sold methamphetamine. This testimony minimized any unfair
prejudice the reference to prior arrests might have had on the jury’s
consideration of the instant offenses. Further, the court’s instruction to the
jury that evidence of the “prior contact with law enforcement” could not be
used as evidence that Manweiler “is disposed to engage in criminal
activity” further limited any unfair prejudice from the reference to
numerous arrests in the previous decade. Jones, 197 Ariz. at 304, ¶ 32, 4 P.3d
at 359 (“When the witness unexpectedly volunteers information, the trial
court must decide whether a remedy short of mistrial will cure the error.”).

¶13          Moreover, the evidence supporting Manweiler’s convictions
was overwhelming. See supra ¶¶ 2-3. There was little probability that the
jury’s verdict would have been any different absent this improper
testimony. The superior court therefore did not abuse its discretion in
denying a mistrial.

       B.     Rebuttal Testimony

¶14          Manweiler also argues the superior court should not have
allowed the corporal to rebut her testimony that she had never been
arrested and did not believe that she had ever met the corporal before by
detailing his first contact with her. Manweiler did not object to this
testimony or renew her request for a mistrial on the basis of this testimony,

              3We  reject the State’s argument that defense counsel invited
the corporal’s testimony that he had arrested Manweiler numerous times
by challenging his qualifications to recognize her voice. See State v. Lucero,
223 Ariz. 129, 136, ¶ 20, 220 P.3d 249, 256 (App. 2009) (“A party . . . invites
prejudicial testimony by being the first party to elicit the testimony.”)



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                          STATE v. MANWEILER
                           Decision of the Court
and thus we review for fundamental, prejudicial error. See State v.
Henderson, 210 Ariz. 561, 567-68, ¶ 19-20, 115 P.3d 601, 607-08 (2005).

¶15           The corporal’s testimony directly rebutted Manweiler’s
testimony that she had never been arrested by nor met the corporal before.4
And, Manweiler had at this point already testified to being an “ex-meth
user,” and in the final instructions, the superior court instructed the jury to
consider the evidence only for limited purposes. See supra ¶ 8. On this
record, the superior court’s failure to strike this testimony was not
fundamental, prejudicial error.

II.    Prosecutorial Misconduct

¶16            Manweiler argues the prosecutor intentionally deprived her
of her right to due process and a fair trial by arguing facts not in evidence.
Specifically, Manweiler argues the corporal testified in rebuttal he had had
“only one contact with her prior to the arrest in this case in an unrecorded
arrest 8 years prior,” but in rebuttal closing argument the prosecutor stated
the corporal had testified he had had many prior contacts with Manweiler.

¶17           Prosecutorial misconduct “is not merely the result of legal
error, negligence, mistake, or insignificant impropriety, but, taken as a
whole, amounts to intentional conduct which the prosecutor knows to be
improper and prejudicial and which he pursues for any improper purpose
with indifference to a significant resulting danger of mistrial.” State v.
Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172 P.3d 423, 426-27 (App. 2007)
(quotation omitted). Because Manweiler failed to object at trial, she bears
the burden of demonstrating prosecutorial misconduct and fundamental,
prejudicial error. See Henderson, 210 Ariz. at 567-68, ¶¶ 19-20, 115 P.3d at
607-08.

¶18           The record does not support Manweiler’s argument. Her
argument relies on the State’s question to the corporal about “the first time
that you had contact with Kari Manweiler.” See supra ¶ 7. In his closing,
defense counsel mistakenly argued the corporal testified that before her
current arrest the corporal last heard Manweiler’s voice eight years earlier.

              4Manweiler   also argues for the first time on appeal that the
State violated Arizona Rule of Criminal Procedure 15.1(b)(7) by failing to
disclose before trial the arrest as a “prior act[]” that it intended to use to
prove identity at trial. The record demonstrates, however, that the State
had not intended to elicit any testimony on the prior contacts, and warned
defense counsel after the State rested that if defense counsel opened the
door further, the State would elicit the details of this arrest.


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                         STATE v. MANWEILER
                          Decision of the Court
Defense counsel then argued, “I don’t see how it’s possible for most of us
to recognize somebody’s voice after not hearing it for eight years.”

¶19           As discussed, the corporal testified he had had multiple
contacts with Manweiler over the years. See supra ¶ 4. Accordingly, in
rebuttal closing, the prosecutor argued:

             [The corporal] did not testify the last time he
             heard Kari Manweiler’s voice was eight years
             ago. He testified that’s when he arrested the
             defendant. When he clarified, he said he had
             several contacts with her. He said that he
             conducted those interviews with her February
             7th of 2014, that those took several minutes of
             time. They were lengthy. He spoke to her on
             scene, he spoke to her twice at the police station,
             and he’s reviewed those tapes to write reports,
             he’s heard her voice; and sitting in court, being
             asked to listen to the video, he heard her voice
             because it’s different than [L.M.].

The prosecutor’s argument was therefore a fair summary of the evidence
and was not improper.

                             CONCLUSION

¶20          For the foregoing reasons, we affirm Manweiler’s convictions
and sentences.




                                 :ama




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