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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                TROY LEE SULLIVAN, Defendant/Appellant.

                             No. 1 CA-CR 15-0559
                               FILED 8-25-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-001663-001
                  The Honorable Jose S. Padilla, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
                           STATE v. SULLIVAN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Chief Judge Michael J. Brown and Judge Kenton D. Jones joined.


G O U L D, Judge:

¶1           Troy Lee Sullivan (“Defendant”) appeals from his conviction
and sentence for one count of sale of narcotic drugs, a class two felony. For
the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            This case arises from an undercover investigation involving
complaints of drug deals being conducted in a neighborhood. As part of
the investigation, two undercover detectives drove into the neighborhood
to attempt to purchase drugs. Shortly after the detectives drove into the
neighborhood, a man, later identified as Defendant, approached the
driver’s side window of the car and offered to sell them some drugs.

¶3            Detective L., the driver, asked Defendant for $20 worth of
crack cocaine. Defendant initially showed him some drugs, but it was less
than what he had requested, so Defendant told the detectives to drive
around the corner and he would get them more. Not long after they did so,
Defendant returned; he again approached the driver’s side window, and
sold the detectives $32 worth of crack cocaine.

¶4            After completing the transaction and leaving the
neighborhood, Detective L. relayed a description of Defendant to a patrol
officer so that he could contact Defendant and obtain his identification.
Detective L. described Defendant as a black male, approximately six feet
tall, wearing a black sweatshirt with the words “For Life” written on the
back. The patrol officer drove into the neighborhood and saw an individual
matching that description; he made contact with Defendant and took down
the information from his driver’s license.

¶5            Defendant’s information was relayed to Detective L., who
performed a records check. Based on the records check, Detective L. was
able to obtain a photograph and confirm that Defendant was the individual
he had purchased cocaine from earlier that day. Detective L. showed the



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                           Decision of the Court

photograph to the other undercover detective, and he also identified
Defendant as the person who sold them drugs.

¶6            Later, Defendant was arrested and charged with one count of
sale of a narcotic drug.

¶7            Before trial, Defendant filed a motion to suppress the
detectives’ identification and requested a Desserault hearing. Defendant
argued the detectives’ use of the booking photograph was unduly
suggestive and unreliable. The court denied Defendant’s motion to
suppress, finding that even if the identification was unduly suggestive, it
was reliable.

¶8            During trial, defense counsel continued to attack the
reliability of the detectives’ identification of Defendant. Her cross-
examination of Detective L. focused on the fact that in order to identify
Defendant, he (1) used an allegedly suggestive photograph from a law
enforcement database and (2) used only one photo, rather than a photo line-
up. Thus, defense counsel repeatedly questioned Detective L. about his
decision to use a picture showing Defendant “had been stopped by officers
before.” On redirect, the prosecutor followed-up on defense counsel’s line
of questioning, but he mistakenly referred to the photograph as showing
Defendant had been “arrested” before.

¶9              Defense counsel objected to the prosecutor’s question.
Initially, the court did not catch defense counsel’s distinction between being
“stopped by officers” and “arrested,” so it overruled the objection. Once
out of the presence of the jury, Defendant moved for a mistrial. The court
denied Defendant’s motion. It reasoned that defense counsel had opened
the door to the State’s question; however, the court stated it would address
whether the misstatement was overly prejudicial if it happened again.

¶10           The prosecutor did not mention the nature of the photograph
for the remainder of the trial; defense counsel, however, raised the issue
again, questioning the second undercover detective about the source of the
photograph and repeatedly mentioning the issue during her closing
argument.

¶11          The jury found Defendant guilty. Following a trial on
aggravating circumstances, the jury also found Defendant committed the
offense while on felony release. Defendant was sentenced to 12.5 years’
imprisonment. He timely appealed.




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                               DISCUSSION

¶12           Defendant argues the trial court erred in denying his motion
for mistrial. Specifically, Defendant claims he was denied a fair trial
because the prosecutor improperly introduced evidence of his prior arrest.
See Ariz. R. Evid. 404(b) (evidence of prior bad acts is generally
inadmissible).

¶13            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 (2003) (quoting State v. Adamson, 136 Ariz. 250, 262 (1983)). A trial
court’s decision to deny a motion for mistrial is reviewed for an abuse of
discretion, and we “‘will not reverse a conviction based on the erroneous
admission of evidence’ unless there is a ‘reasonable probability that the
verdict would have been different had the evidence not been admitted.’”
Dann, 205 Ariz. at 570, ¶¶ 43-44 (quoting State v. Hoskins, 199 Ariz. 127, 142-
43, ¶ 57 (2000)). Additionally, the invited error doctrine “prevents a
defendant from introducing forbidden evidence and then seeking reversal
based on its erroneous introduction.” State v. Stuard, 176 Ariz. 589, 600
(1993).

¶14           The court did not abuse its discretion in denying Defendant’s
motion for mistrial, because any error was invited by Defendant. Defense
counsel, not the prosecutor, raised the issue of Defendant’s prior arrest
during her cross-examination of Detective L. In fact, defense counsel
questioned both detectives about whether the photograph showed
Defendant “had been stopped by police officers in the past.” In contrast,
the prosecutor did not raise this issue during his direct examination of
either detective; his misstatement about the “arrest” occurred during his re-
direct examination of Detective L.

¶15          Defendant claims, however, there is a difference between the
prosecutor mentioning a prior “arrest” and his own counsel’s reference to
a prior “stop.” We disagree. Defense counsel’s questions included the
following information: the police had, on a prior occasion, stopped
Defendant, taken his picture, and recorded his picture in a police database.
For the average juror, this line of questioning clearly implied the
photograph was most likely related to a prior arrest.

¶16            Finally, there is no “‘reasonable probability’ that the verdict
would have been different had the evidence not been admitted,” Dann, 205
Ariz. at 570, ¶ 44 (quoting Hoskins, 199 Ariz. at 142-43, ¶ 57), let alone that



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                           STATE v. SULLIVAN
                           Decision of the Court

fundamental error occurred. See Stuard, 176 Ariz. at 601 (“When defense
counsel unintentionally ‘invites’ error, the error must be fundamental
before relief will be granted.”). Defendant was closely observed by two
undercover detectives during a face-to-face interaction. Based on the
physical description given by these detectives, a uniformed officer
contacted Defendant shortly after the sale took place. Additionally,
Defendant was in the same neighborhood where he had just conducted the
drug sale.

¶17            Accordingly, we affirm. We conclude the prosecutor’s brief
statement Defendant had been arrested, when placed in the context of
defense counsel repeatedly mentioning that Defendant had been “stopped”
by the police, did not improperly influence the jury. Dann, 205 Ariz. at 570,
¶ 46.

                              CONCLUSION

¶18           For the reasons above, Defendant’s conviction and sentence
are affirmed.




                          Amy M. Wood • Clerk of the court
                          FILED: AA




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