                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                       ERIKIAH OSBORNE, Appellant.

                             No. 1 CA-CR 13-0837
                              FILED 12-02-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-115808-001
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

Office of the Attorney General, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender, Phoenix
By Margaret M. Green
Counsel for Appellant



                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.
                            STATE v. OSBORNE
                            Decision of the Court

G E M M I L L, Judge:

¶1              Defendant Erikiah Karlyn Osborne appeals his conviction for
aggravated assault, a class 3 dangerous felony. On appeal, Osborne argues
that the trial court erred when it denied his motion for mistrial based on the
jury hearing a recorded police interview of the victim’s mother during its
deliberations that was not entered into evidence at trial. For reasons set
forth below, we affirm.

                              BACKGROUND

¶2              The applicable standard of review requires that we view the
facts in the light most favorable to sustaining the jury’s verdict and resolve
all reasonable inferences against defendant. State v. Vendever, 211 Ariz. 206,
207 n.2, 119 P.3d 473, 474 (App. 2005). Osborne was accused of chasing and
threatening one of his neighbors with a machete. During the trial, the
jurors heard testimony to this effect from the victim, the victim’s mother,
and four other witnesses related to the victim, all of whom resided at the
victim’s house at the time of the incident. The jurors also heard from
Osborne’s roommate, who testified that he saw Osborne hide his machete
under a mattress shortly before it was located by police who responded to
a 911 call. Osborne testified at trial and maintained that the victim and the
witnesses were all lying, that the victim had attacked him, and that he had
never removed the machete from its storage place under the mattress on
the day of the incident. Based on Osborne’s testimony, the trial court
instructed the jury on self-defense.

¶3             The jury retired to deliberate on September 25, 2013, but did
not reach a verdict that day and resumed their deliberations the following
morning. On September 26, the trial judge met with counsel out of the
presence of the jury to inform counsel about a matter that had been brought
to her attention by the bailiff when she had returned from a lunch meeting.
The bailiff explained that when the jury had started up the computer to
listen to one of the 911 tapes that had been entered into evidence, “an audio
played.” A juror had then handed the bailiff a CD marked “Hope S . . . ,”
which the bailiff had listened to over the lunch break and determined was
an interview of Hope, the victim’s mother, by one of the officers.1 The bailiff



1The CD was apparently inadvertently left inside the laptop computer that
was provided to the jury to utilize if they wanted to listen to tapes of the



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                             STATE v. OSBORNE
                             Decision of the Court

reported that he asked the jury members “how long they listened to it,” and
they informed him “about two to three minutes” until they realized it was
something they had not heard during the trial.

¶4             The trial judge, counsel, and Osborne listened to the CD of the
interview. The court and counsel noted that at “around two minutes” there
was reference to the fact that “[Osborne] was bad news,” and that was why
Hope stopped him from coming to her house. They also noted that,
“sometime just before 3:40 [on the recording],” Hope mentioned seeing “a
[B]lack man with a gun.”2 Both counsel agreed that the reference to
Osborne’s friend was something that they had agreed would be “kept out
of the trial.” Once they had listened to the entire recording, which lasted
approximately seven minutes, defense counsel stated, “I don’t know if you
want to bring the jury in, but my position right now is that I would ask for
a mistrial.” Nonetheless, the parties were unclear about how much of the
CD the jurors had actually listened to, and defense counsel agreed that they
should talk to the jurors and “make a record” about what precisely they
had heard. Defense counsel suggested that the judge bring each juror in
separately because she wanted to obtain “their own independent memory
of what they heard.”

¶5            The trial judge instructed the jurors to “stop deliberations and
not consider the case any further until the Court permits it.” Thereafter, the
trial judge brought each one of the eight jurors into the courtroom
separately to be questioned individually by counsel and the court about
“what they remember[ed] hearing in the portion of the CD that was actually
played and listened to” in the jury room. Upon hearing from each juror
what he or she had heard, the trial judge asked each one if he or she could
disregard what he or she had heard and not have it affect his or her
deliberations or the verdict in this case. Each juror assured the court that
he or she could.

¶6           When the last juror had been interrogated and had left the
courtroom, the trial judge asked, “So is everybody satisfied that there was
no harm done by virtue of that exhibit . . . being in the computer and heard,


911 calls that were introduced at trial. There is no allegation, either below
or on appeal, of any intentional wrongdoing.

2 On the CD, Hope states that Osborne’s “friend,” a “[B]lack guy,” came
out, “stood at the gate,” and stated, “if you guys call the cops I will kill you,”
and “pulled out a gun.”


                                        3
                            STATE v. OSBORNE
                            Decision of the Court

at least in part, by some of the jurors?” The prosecutor replied, “State agrees
there’s no issue.” Defense counsel replied, “Yes, Your Honor.” Addressing
defense counsel specifically, the trial judge asked, “You agree there’s no
issue?” Defense counsel again replied, “Yes, Your Honor.” The trial judge
next stated that it was her intention to further instruct them:

       Do not have any further discussions . . . do not have any
       discussions with one another about what any of you talked
       about here in the courtroom . . . . [Y]ou’re to set aside entirely
       anything you heard from that CD and not let it affect your
       deliberations in any way . . . . Each of you has told me that
       you’re able to do that. Is there anybody who believes they’re
       unable to do that?, and give them an opportunity to just affirm
       that they’re capable of that.”

Defense counsel replied, “Perfect.”

¶7             The trial judge then brought the entire jury back into the
courtroom and instructed them as she had stated. At the conclusion of the
instructions, the trial judge stated:

       Each of you has told me that you’re able to disregard [the CD]
       fully, set it aside out of your memory and not have it affect in
       any way your deliberations, and that’s what I’m asking you
       to do. You’ve each told me independently you’re able to do
       that. Is there anybody - - perhaps with, you know, the
       moments that have gone by, is there anybody that doubts
       they’re able to do that?

Seeing no hands in response to her query, the trial judge dismissed the jury
to return to its deliberations. After the jurors left the courtroom, the
following exchange occurred between the trial judge and counsel:

       THE COURT: And I will have the record reflect that all - - all
       eight of the jurors did affirm that they were able to set it aside
       and not have it affect their deliberations. Counsel, you both
       saw that; correct?

       [DEFENSE COUNSEL]: Yes, Your Honor.

       [Prosecutor]: Yes, Your Honor.




                                      4
                            STATE v. OSBORNE
                            Decision of the Court

       THE COURT: Okay. So they’re back to their deliberations.

       ***

       So we will let the jury just continue to deliberate. All right. [The
       bailiff] knows how to reach everybody when the time comes?

       [DEFENSE COUNSEL]: Yep.

       THE PROSECUTOR: Yes.

The jury deliberated for the remainder of the day and ultimately returned
a guilty verdict when it returned to its deliberations on September 30, 2013,
following the weekend break. On November 1, 2013, the trial court
sentenced Osborne to a mitigated term of five years in prison, and Osborne
timely appeals. This court has jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1)(1992), 13-4031 and 13-4033 (2010).

                                 ANALYSIS

¶8             On appeal, Osborne contends that the trial court abused its
discretion when it denied his motion for mistrial. We find that Osborne
effectively waived this argument on appeal when he abandoned his motion
for mistrial and agreed that the trial court’s remedial actions addressed his
concerns and the jury might resume its deliberations. See State v. McLemore,
230 Ariz. 571, 582, ¶ 36, 288 P.3d 775, 786 (App. 2012) (noting defendant
abandoned a motion by not asking the court to rule on that motion or
objecting to court’s proceeding without ruling on that motion, despite
several opportunities to do so). The trial court here conscientiously
consulted with defense counsel about the appropriate steps to take, and
defense counsel affirmatively agreed with the trial court’s proposals and
never renewed his motion for mistrial despite ample opportunity to do so.
Osborne has therefore forfeited the right to obtain appellate relief on this
basis unless he can establish both that fundamental error exists and that the
error in the case caused him prejudice. See State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005) (failure to object to alleged trial error
limits defendant to fundamental error review on appeal).

¶9             Fundamental error is “error going to the foundation of the
case, error that takes from the defendant a right essential to his defense, and
error of such magnitude that the defendant could not possibly have
received a fair trial.” Id. (internal quotation omitted). To prevail under this


                                       5
                            STATE v. OSBORNE
                            Decision of the Court

standard of review, the burden is on defendant to “establish both that
fundamental error exists and that the error in his case caused him
prejudice.” Id. at ¶ 20. Based on the record, we conclude the trial court did
not commit any error, let alone fundamental error.

¶10             On appeal, Osborne is concerned with Hope’s comments that
he was “bad news” and that his friend had threatened them with a gun if
they called police. At defense counsel’s behest, the trial court questioned
each juror separately to determine what, if anything, the juror had actually
heard on the CD. The court also permitted counsel to question each juror.
The court ascertained that the jurors had heard the tape the day before. Six
of the jurors specifically stated that they had realized when they heard it
that the information on the CD was not something that had been introduced
at trial and, consequently, that they either were not to consider it or that it
was not relevant to the incident. Three of the jurors acknowledged that
they had stopped the CD and discussed as a group that it did not seem that
the CD was played during the trial and that perhaps they should not be
listening to it.

¶11           Three of the jurors could not remember any of the specifics
about the conversation other than it was Hope speaking to a male or to an
officer. Five of the jurors remembered mention of either “someone” or a
“Black man” or “Black guy” with a gun. When questioned by either the
court or defense counsel, none of the five thought that Hope was referring
to Osborne. Additionally, defense counsel asked one of these jurors if that
juror’s view would be affected by the fact that someone whom Osborne
“associated with carried a gun,” and the juror replied “no,” that he could
“set that aside.” After the juror left the courtroom, the trial judge asked
defense counsel if she had an issue with that juror; she replied “No, Your
Honor.” Most importantly, all eight of the jurors, either when questioned
as individuals by the trial judge and counsel or when questioned again
collectively as a jury before returning to deliberations, assured the trial
court that they could disregard the evidence and that it would have no
bearing on their deliberations or the outcome of the case.


¶12           The trial court also gave a curative instruction, which defense
counsel agreed was “perfect,” before permitting the jurors to resume their
deliberations. In the absence of evidence or reason to conclude otherwise,
we follow the guidance of our supreme court that jurors are presumed to
follow such curative instructions. See State v. Dann, 205 Ariz. 557, 571, ¶ 48,
74 P.3d 231, 245 (2003). Defense counsel apparently shared this philosophy



                                      6
                           STATE v. OSBORNE
                           Decision of the Court

because she did not renew her motion for mistrial after participating in the
questioning; and she agreed that the jurors should be permitted to continue
their deliberations, given the curative instruction.

¶13           The trial court did not err by not declaring a mistrial. See
Lavers, 168 Ariz. at 385, 814 P.2d at 342. Reversal is unwarranted.

                             CONCLUSION

¶14           For the foregoing reasons, we affirm Osborne’s conviction
and sentence.




                                    :gsh




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