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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       BRETT ERIC SALTUS, Appellant.

                              No. 1 CA-CR 15-0172
                                FILED 5-3-2016


            Appeal from the Superior Court in Maricopa County
                       No. CR2013-418527-001 SE
                  The Honorable Danielle J. Viola, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Law Offices of Patricia A. Hubbard, P.L.C., Phoenix
By Patricia A. Hubbard
Counsel for Appellant
                             STATE v. SALTUS
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.


W I N T H R O P, Judge:

¶1           Brett Eric Saltus appeals his convictions and sentences for one
count of public sexual indecency (Count 2), one count of public sexual
indecency to a minor (Count 3), and one count of resisting arrest (Count 7).
For the reasons that follow, we affirm.

                                 ANALYSIS

¶2              Saltus argues the trial court abused its discretion in denying
him a mistrial after an eight-year-old witness (“A.V.”), the alleged victim of
public sexual indecency as charged in Count 1, testified about an uncharged
act in violation of the court’s pretrial order precluding other-act evidence.
After voir dire of the witness outside the presence of the jury, the court found
the witness had testified about an earlier, uncharged act. The court noted,
however, that the victim’s testimony related to only one of eight charged
counts, and the victim had not identified Saltus as the person who had
engaged in the other act. The court reasoned that, in the circumstances, it
could take curative actions, including an instruction striking the victim’s
testimony, because “a mistrial is not necessary to ensure justice to the
Defendant in this case.” Immediately after the jury returned, the court
instructed it as follows:

       As you know we ended yesterday with the direct examination
       of [A.V.]. Following that examination and the recess that we
       took the Court held a separate hearing where it was
       determined that the witness testified on direct examination
       about an event that was wholly unrelated to this case. As a
       result the [C]ourt is striking all of [A.V.]’s direct testimony
       provided yesterday here in Court and you are being
       instructed to disregard her testimony in it’s [sic] entirety. You




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       shall not consider the testimony of [A.V.] provided on
       Tuesday, September 16, for any purpose.[1]

The court then allowed the prosecutor to recall the witness “to provide
correct testimony as to the charged Count.” On recall, the victim described
the charged act using language nearly identical to that she had used
describing the uncharged act.

¶3             A declaration of a 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, ¶ 43, 74 P.3d 231, 244 (citation omitted),
supplemented on other grounds by 206 Ariz. 371, 79 P.3d 58 (2003). In
determining whether to grant a mistrial, the trial court should consider (1)
whether the testimony called the jurors’ attention to matters they would not
be justified in considering in reaching a verdict; and (2) the probability
under the circumstances that the testimony influenced the jurors. State v.
Bailey, 160 Ariz. 277, 279, 772 P.2d 1130, 1132 (1989). “When the witness
unexpectedly volunteers information, the trial court must decide whether a
remedy short of mistrial will cure the error.” State v. Jones, 197 Ariz. 290,
304, ¶ 32, 4 P.3d 345, 359 (2000) (emphasis and citation omitted).

¶4            We review a trial court’s denial of a motion for mistrial for an
abuse of discretion. Id. We will not reverse a conviction based on a trial
court’s denial of a motion for mistrial unless a reasonable probability exists
that the verdict would have been different had the improper evidence not
been admitted. Dann, 205 Ariz. at 570, ¶ 44, 74 P.3d at 244 (citations
omitted).

¶5              The court acted well within its discretion in deciding a
mistrial was not necessary to ensure a fair trial. The trial judge was in the
best position to determine whether a step short of mistrial—the instruction
striking the eight-year-old’s testimony about the uncharged act—would
cure the error, and we cannot say the judge abused her discretion in
concluding it would. See Jones, 197 Ariz. at 304, ¶ 32, 4 P.3d at 359.
Moreover, the jury was instructed to consider each charge separately, and
it clearly followed that instruction. The jury acquitted Saltus of the offense
against this eight-year-old (and of four more of the eight charged offenses).
The jury convicted Saltus only of one charge of public sexual indecency


1       Also, as part of its final instructions to the jury, the court reiterated,
“If testimony was ordered stricken from the record you must not consider
that testimony for any purpose.”

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involving an adult victim, one charge of public sexual indecency involving
a different minor victim, and one charge of resisting arrest. Under these
circumstances, there was no reasonable probability the jury would have
reached a different verdict had the eight-year-old not testified about the
uncharged incident. We find no reversible error.

¶6             Saltus also argues that striking this eight-year-old witness’s
testimony and allowing the State to recall her and present correct testimony
was an insufficient sanction for the prosecutor’s misconduct in eliciting the
improper testimony. “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) (citation
omitted). Saltus reasons that, although the trial court did not find the
prosecutor’s conduct was intentional, knowing, or reckless, “nothing in the
record justifies an inference that the prosecutor had some proper purpose
in mind when he elicited seriously improper testimony from [A.V.] in
violation of a pretrial order.”

¶7            We disagree. The court noted for the record that defense
counsel’s pretrial motion on other-act evidence did not address “this
specific incident.” Moreover, our review of the record persuades us that,
during the eight-year-old witness’s initial testimony, the prosecutor
attempted to elicit testimony only on the charged incident; he also avowed,
during a sidebar to discuss defense counsel’s concern the child was going
to talk about the uncharged act, that he was “doing my best to focus the
questions to the particular event that’s charged.” On this record, we cannot
say the prosecutor engaged in misconduct.

¶8              Saltus next argues the court abused its discretion when it
overruled his objection to a police officer testifying he had fractured his
finger in the course of the struggle to arrest Saltus. Saltus argues now, as
he did at trial, that the officer was not qualified to offer expert testimony.
The court overruled the objection, reasoning “the witness can testify as to
his own understanding of his injuries and of what he believes happened to
him.” We review a court’s rulings on admissibility of evidence for an abuse
of discretion. State v. Dann, 220 Ariz. 351, 368, ¶ 89, 207 P.3d 604, 621 (2009).
The court did not abuse its discretion. The officer testified he had broken
the finger when he was young, and it felt the same this time. The officer’s
testimony was admissible as a lay opinion under Rule 701, Ariz. R. Evid.
See State v. Tiscareno, 190 Ariz. 542, 544, 950 P.2d 1163, 1165 (App. 1997) (“A


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                           Decision of the Court

person does not have to be a medical expert to testify that her own nose has
been broken.”). Moreover, any conceivable error was harmless, because the
jury acquitted Saltus of Count 8, aggravated assault, which required proof
of a fracture.

                             CONCLUSION

¶9           For the foregoing reasons, we affirm Saltus’s convictions and
sentences.




                                  :ama




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