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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              ROLAND DEWAYNE MCDONALD, Appellant.

                             No. 1 CA-CR 17-0445
                               FILED 10-4-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-144817-001
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

Stephen M. Johnson, Attorney at Law, Phoenix
By Stephen M. Johnson
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
                           STATE v. MCDONALD
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge James B. Morse Jr. and Chief Judge Samuel A. Thumma joined.


B E E N E, Judge:

¶1            After having been found guilty of three felony offenses,
Roland McDonald (“McDonald”) argues that the superior court abused its
discretion by denying his motion for mistrial after a police officer testified
about inadmissible evidence. For the reasons stated below, we affirm the
superior court’s denial of McDonald’s motion for mistrial.

                 FACTS AND PROCEDURAL HISTORY

¶2           McDonald was convicted of attempted second degree
murder, a class 2 dangerous felony, aggravated assault, a class 3 dangerous
felony, and misconduct involving weapons, a class 4 dangerous felony. The
convictions relate to a shooting on August 22, 2016, when McDonald
approached D.F. and R.G. in a convenience store parking lot. McDonald
pulled a small semi-automatic weapon from his pocket, pointed it at D.F.,
and fired multiple times, leaving a bullet permanently lodged in D.F.’s
back. The three individuals knew each other previously, and McDonald
and D.F. had recently experienced a “falling out.” Two additional
witnesses were present near the shooting and testified at trial: W.K., a “sign
spinner,”1 who was working nearby, and J.S., a friend of McDonald.

¶3             D.F., R.G. and J.S. each identified “Cash” or “Cash Flow” as
the shooter. W.K. testified that an African-American man riding a
distinctive red bike was the shooter.2 Police later determined “Cash Flow”
to be McDonald, based on other, unrelated investigations. Before trial,
McDonald moved for and the superior court granted an unopposed motion
in limine to exclude testimony regarding these other police investigations.
At trial, however, McDonald’s counsel elicited testimony from a police


1     A “sign spinner” is a person who advertises for a business by
standing outside a business spinning a large sign to attract the attention of
passersby. See generally, City of Scottsdale v. State, 237 Ariz. 467 (App. 2015).

2      McDonald is African-American and known to ride a red bike.


                                       2
                          STATE v. MCDONALD
                           Decision of the Court

officer during cross-examination that briefly referenced McDonald’s
involvement in the other investigations. McDonald moved for a mistrial,
which the court denied. The court did, however, strike the testimony and
told the jury that the testimony was stricken and that both the question and
the answer are “to be disregarded entirely by the jury.”

¶4            The jury found McDonald guilty on all three counts, resulting
in a twenty-year prison sentence. McDonald timely appealed. 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), 13-4031,
and -4033(A)(1).

                                DISCUSSION

¶5             We review the denial of a motion for mistrial for abuse of
discretion. State v. Miller, 234 Ariz. 31, 40, ¶ 23 (2013). Because “a
declaration of a mistrial is the most dramatic remedy for trial error,” it
should be granted “only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” State v. Adamson, 136 Ariz.
250, 262-63 (1983).

¶6           In granting the motion in limine, the superior court precluded
testimony of police investigations involving McDonald that were unrelated
to the shooting. On cross examination, however, defense counsel
repeatedly inquired as to how Sergeant Angel Romo was able to identify
McDonald as “Cash Flow.” When the witness indicated he did not
understand a question, the following exchange took place:

       Q. I believe you indicated earlier that this was like a two-
       week investigation, correct?

       A. Yeah, just -- I don’t think I was asked directly. But over
       several months in my specific area of town that I was
       responsible for, my officers had -- we continued to review –
       part of our responsibilities is to do followup on major crimes
       if we can and assist case agents in various different types of
       crime.

       The name Cash Flow was just a reoccurring name that we
       kept hearing, and there were two or three cases specifically
       that we believed he was directly involved. So the name Cash
       Flow, at least in my involvement, as early as April of 2016 up
       until September, kept hearing the name. And we had the



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                           STATE v. MCDONALD
                            Decision of the Court

       description, the description of the bike. So the physical
       description was well known not only to me but to my officers.

¶7            After this testimony, defense counsel moved for a mistrial
stating:

       This officer has now divulged to the jury that Cash Flow was
       involved in a number of investigations over a several-month
       period, and that information specifically precluded based on
       motion in limine, no mention of other investigations could be
       put forth before this jury and now they have heard that he
       was the subject of multiple different investigations.

¶8             “When a witness unexpectedly volunteers an inadmissible
statement, the remedy rests largely within the discretion of the trial court.”
State v. Doty, 232 Ariz. 502, 506, ¶ 17 (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 case, were influenced by the remarks. We give
       great deference to the trial court's decision because the trial
       court is in the best position to determine whether the evidence
       will actually affect the outcome of the trial.

Id. (internal quotation marks and citations omitted).

¶9             Although it may have been improper for Romo to testify
about unrelated investigations regarding McDonald,3 the superior court
struck defense counsel’s question and the officer’s answer and instructed
the jury to disregard both. Because we assume that jurors follow the court’s
instructions, we cannot conclude that the corrective action taken by the
superior court was insufficient to cure the possible prejudicial impact of the
officer’s testimony. See State v. Goudeau, 239 Ariz. 421, 450, ¶ 95 (2016) (jury
is presumed to follow court’s instructions).



3      The court granted McDonald’s motion in limine precluding
statements made in reports by three police officers. Sergeant Romo was not
one of the officers listed in McDonald’s motion to preclude.


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                         STATE v. MCDONALD
                          Decision of the Court

¶10            Moreover, the jury heard other testimony establishing
McDonald’s guilt, specifically, testimony by D.F., who saw the shooter
“face to face” and “who knows the guy that shot him,” as well as from R.G.,
an eyewitness to the shooting, who also knew McDonald. Accordingly, a
mistrial was not necessary, and the superior court did not abuse its
discretion in failing to grant McDonald’s request. See State v. Maximo, 170
Ariz. 94, 99 (App. 1991) (“Here, there was overwhelming evidence of
appellant’s guilt and an adequate instruction to the jury to disregard the
remarks. We find no abuse of discretion in denying the motion for a
mistrial.”).

                                CONCLUSION

¶11 For the foregoing reasons, McDonald’s convictions and sentences are
affirmed.




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




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