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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  ALEX ROBINSON DANIELS, Appellant.

                             No. 1 CA-CR 16-0084
                             No. 1 CA-CR 16-0085
                                 (Consolidated)
                              FILED 1-10-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-119261-001
                             CR2013-002007-001
                  The Honorable Jose S. Padilla, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                            STATE v. DANIELS
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Paul J. McMurdie joined.


T H O M P S O N, Judge:

¶1             Alex Robinson Daniels (defendant) appeals his conviction
and sentence in CR2015-119261-001 for second degree trafficking in stolen
property. He argues the trial court improperly gave the jury a permissive
inference instruction and erred in allowing the jury to consider extrinsic
evidence. Defendant also challenges the trial court’s denial of his motion
for mistrial. For the following reasons, we affirm.1

                 FACTS AND PROCEDURAL HISTORY

¶2            The victim discovered various items missing from her
residence, including her cello, laptop computers, and her work ID badge.
The victim’s parents purchased the cello for her in 1996 for approximately
$4,500.00.2 Defendant sold the cello for $125.00 to a retail store that buys

1      In Maricopa County Superior Court case number CR2013-002007-
001, defendant pleaded guilty to three counts of voyeurism. The superior
court sentenced defendant to 1.5 years’ incarceration for one count and
suspended imposition of sentences on the remaining counts, ordering
defendant be placed on 10-year concurrent terms of probation. Based on
the guilty verdict in CR2015-119261-001, defendant’s probation in CR2013-
002007-001 was revoked and concurrent 1.5-year prison terms were
imposed for two counts of voyeurism. The court ordered those terms
served consecutively to the prison term imposed in CR2015-119261-001.
Defendant appealed from the finding of probation violation and
disposition, and this court consolidated the appeals in both superior court
matters. On appeal, defendant raises no issues separately challenging the
probation revocation and disposition; thus, because we affirm defendant’s
conviction and sentence in CR2015-119261-001, we also affirm the probation
revocation and disposition in CR2013-002007-001.

2      The parties incorrectly assert the trial court sustained defendant’s
objection to the question that elicited this testimony. The transcript reflects



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                           STATE v. DANIELS
                           Decision of the Court

and resells secondhand books and other entertainment merchandise. As a
store employee completed paperwork documenting the transaction,
defendant falsely suggested he obtained the cello when he was a band
student in high school and he asked to play it at the store “one last time.”
Police discovered the victim’s laptops, paperwork, mail, and work ID in the
trunk of defendant’s vehicle and her phone in the glovebox.

¶3            The state indicted defendant on three charges related to
residential burglary and the sale of the cello. The court subsequently
severed the two burglary counts from the trafficking in stolen property
count. The jury found defendant guilty of second degree trafficking in
stolen property. Defendant thereafter pleaded guilty to theft in exchange
for dismissal of the burglary charges. The court imposed concurrent terms
of 4.5 years’ and 11.25 years’ incarceration, respectively, for the theft and
trafficking convictions, with 290 days’ presentence incarceration credit for
both. Defendant timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) (2016), 13-4031 (2016),
and -4033(A)(1) (2016).3

                               DISCUSSION

¶4            On appeal, we view the facts in the light most favorable to
upholding the verdict and resolve all reasonable inferences against the
defendant. State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2, 340 P.3d 1110, 1112 n.
2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495, 924 P.2d 497, 499
(App. 1996)).

I.     Jury Instruction

¶5           Over defendant’s objection, the court instructed the jury, as
requested by the state:

       The defendant has been accused of trafficking in stolen
       property by selling property of another knowing that the
       property was stolen.


that the court sustained defendant’s objection to the victim speculating
about the “probabl[e]” appreciation of the cello’s value after it was
purchased in 1996.

3     Absent material changes from the relevant date, we cite a statute’s
current version.



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                            STATE v. DANIELS
                            Decision of the Court

       ...

       Proof of the sale of stolen property at a price substantially
       below its fair market value, unless satisfactorily explained,
       may give rise to an inference that the defendant was aware of
       the risk that it had been stolen.

       You are free to accept or reject [this] inference[] as triers of
       fact.   You must determine whether the facts and
       circumstances shown by the evidence in this case warrant any
       inference that the law permits you to make. Even with the
       inference, the State has the burden of proving each and every
       element of the offense of trafficking in stolen property beyond
       a reasonable doubt before you can find the defendant guilty.

¶6            Defendant argues the court abused its discretion in giving the
inference instruction because the only evidence of the cello’s fair market
value was provided by the store’s employee who testified the store paid
defendant $125.00 in exchange for the cello.4 We review a trial court’s
decision to give a jury instruction for an abuse of discretion. State v. Dann,
220 Ariz. 351, 363-64, ¶ 51, 207 P.3d 604, 616-17 (2009).

¶7             We find no abuse of discretion. The victim testified that her
parents bought her the cello in 1996 for approximately $4,500.00; thus,
defendant’s sale of the cello for $125.00 was not the only evidence of the
instrument’s fair market value. See State v. Ellis, 172 Ariz. 549, 551, 838 P.2d
1310, 1312 (App. 1992) (noting evidence of stolen property’s fair market
value includes original purchase price). Furthermore, we are unaware of
any authority suggesting that the price a retail store pays for used personal
property, which the store in turn sells to earn a profit, properly reflects the
property’s fair market value. Defendant was free to argue, and he did so,
that the $125.00 sales price represented the cello’s fair market value. But
the jury, based on the permissive nature of the inference instruction, was
free to accept or reject defendant’s argument.

¶8            Finally, any error in instructing the jury on the inference to be
drawn from the cello’s fair market value and its $125.00 sale was harmless.
Considerable other evidence allowed the jury to infer defendant was aware
the cello was stolen when he sold it. See State v. Bible, 175 Ariz. 549, 588,
858 P.2d 1152, 1191 (1993) (“Error, be it constitutional or otherwise, is


4      Defendant does not argue that the given instruction misstates the
law.


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                            STATE v. DANIELS
                            Decision of the Court

harmless if we can say, beyond a reasonable doubt, that the error did not
contribute to or affect the verdict.”) (citation omitted); State v. Shearer, 164
Ariz. 329, 339-40, 793 P.2d 86, 96-97 (App. 1989) (holding that the
introduction of inadmissible evidence was harmless error when it was
cumulative to and consistent with other trial testimony). For example,
defendant misled the store employee into believing he lawfully owned the
cello, and the victim’s other stolen property was found in defendant’s
vehicle.

II.    Extrinsic Evidence

¶9             During the victim’s testimony, the state showed her a copy of
the certificate of purchase that her parents received when they bought the
cello (Exhibit 3). When the state requested permission to publish Exhibit
3, defendant objected on hearsay grounds, and a bench conference ensued.
The court overruled the objection, but the state nonetheless agreed not to
publish Exhibit 3, and the document was not admitted into evidence.
Exhibit 3 was, however, transmitted to this court with the trial record.5

¶10           Defendant argues the trial court erred in permitting the jury
to consider Exhibit 3 during deliberations. We reject this argument.
Defendant does not identify anything in the record that establishes the jury
actually received and considered Exhibit 3. In fact, the record reflects
otherwise. Immediately prior to releasing the jury to deliberate, the court
informed the jurors: “You’ll go back to the jury room with the form of
verdict as well as the exhibits that have been admitted.” On this record, we
will not presume error, much less reversible error. Cf. State v. Hall, 204 Ariz.
442, 447, ¶ 16, 65 P.3d 90, 95 (2003) (“Once the defendant shows that the
jury has received and considered extrinsic evidence, prejudice must be
presumed[.]”).

III.   Motions for Mistrial

¶11            When the court clerk commenced reading the indictment for
the jury at the beginning of trial, she included the burglary counts. The
prosecutor realized the mistake, and, before the clerk could proceed to
reading the factual allegations supporting the charged offenses, he
interrupted and, at a sidebar, reminded the court that defendant was facing
only the trafficking in stolen property count at this trial. The court informed
the jury that the “wrong document” had just been read and ordered the


5      We note that this court regularly, and properly, receives exhibits that
are offered but not admitted into evidence at trial.


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                          STATE v. DANIELS
                          Decision of the Court

jurors to “disregard it[.]” The clerk then read the “right indictment.” The
court dismissed the jury for the evening recess, and defendant moved for a
mistrial based on the reading of the incorrect offenses. The court denied
the motion. Defendant unsuccessfully renewed his motion at the start of
the next trial day and again during the following trial day.

¶12           Defendant argues the court erred in denying his repeated
requests for a mistrial. We disagree. The court took appropriate corrective
measures by informing the jury that the “wrong document” was read and
admonishing the jury to disregard it. We find no reversible error.

                              CONCLUSION

¶13           Defendant’s conviction for trafficking in stolen property and
resulting sentence are affirmed.




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




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