                          NOTICE: NOT FOR PUBLICATION.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.

                VANESSA YANETTE CASTILLO, Appellant.

                             No. 1 CA-CR 13-0166
                              FILED 4-29-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-152180-001
               The Honorable Harriett E. Chavez, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
                           STATE v. CASTILLO
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1           Vanessa Yanette Castillo appeals the trial court’s denial of
her motion for mistrial. Because we find no abuse of discretion, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           On October 7, 2011, while Castillo was being booked into jail
for driving under the influence, Officer Rude noticed a “clear plastic
baggie with a white powdery substance” fall out of Castillo’s shoe. The
substance later tested positive for cocaine. Castillo was eventually
charged with one count of possession or use of narcotic drugs, a class four
felony.

¶3           Prior to trial, Castillo filed a motion to suppress any
statements she made to the police on the grounds she was not advised of
her Miranda rights. The parties eventually stipulated that Castillo’s
statements would be suppressed.

¶4             The State called Officer Rude to testify at trial. When the
prosecutor asked Officer Rude about the baggie falling out of Castillo’s
shoe, he testified:

      Officer Rude:        I immediately said, ‘What is this’ and
      picked it up.

      The State:           Officer, if I could stop you right there
      just for a second.

      Officer Rude:        Sure.

      The State:        Without telling us what, if anything, the
      defendant said during any of this, could you then tell us
      what happened next?




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                           STATE v. CASTILLO
                           Decision of the Court

       Officer Rude:         I picked it up and looked at the baggie .
       . . and it appeared to be cocaine.

¶5            Officer Rude then explained how he conducted a field test
on the substance, and the State then asked him what he did after the
substance tested positive for cocaine:

       Officer Rude:         At that point I believe I confirmed . . .
       that [Castillo] had already been Mirandized prior.

       The State:           And, Officer, without discussing any of
       that or anything relating to statements one way or the other,
       what did you do with the drugs?

       Officer Rude:       Oh, what I did with the drugs. Upon
       conclusion of the investigation, once I’d conducted my field
       test and confirmed that it was cocaine, I packaged the drugs
       for impounding and they were impounded at South
       Mountain Precinct.

¶6           At this point, Castillo’s attorney objected, requesting a
mistrial on the grounds (1) the State violated the parties’ stipulation to
suppress Castillo’s statements and (2) Officer Rude’s testimony made the
jury aware of the fact that Castillo had made statements to the police.
The court denied the motion for mistrial.

¶7            At the conclusion of Officer Rude’s testimony, the court
asked if the jury had any questions for Officer Rude. One juror asked,
“Did [Castillo] say anything when Officer Rude said ‘what is this?’ or how
did [Castillo] act?” Castillo’s attorney then renewed her request for a
mistrial, which the court again denied.

¶8           At the end of the trial the jury found Castillo guilty as
charged, and on February 20, 2013, the court sentenced her to one year of
unsupervised probation. Castillo filed a timely appeal.

                               DISCUSSION

¶9             We review the denial of a motion for mistrial for an abuse of
discretion. State v. Cruz, 218 Ariz. 149, 163, ¶ 67, 181 P.3d 196, 210 (2008).
In deciding whether to grant a mistrial based on a witness’s testimony, the
trial court considers (1) whether the testimony called the jury’s attention
to matters that it would not have been permitted to consider in reaching
its verdict, and (2) the probability that the testimony influenced the jury.


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                            STATE v. CASTILLO
                            Decision of the Court

State v. Gulbrandson, 184 Ariz. 46, 62, 906 P.2d 579, 595 (1995). We give
“great deference” to a trial court’s decision to deny a motion for a mistrial
because the trial court is in “the best position to determine whether the
evidence will actually affect the outcome of the trial.” State v. Lamar, 205
Ariz. 431, 439, ¶ 40, 72 P.3d 831, 839 (2003) (quoting State v. Jones, 197 Ariz.
290, 304, ¶ 32, 4 P.3d 345, 359 (2000)). A mistrial is the most dramatic
remedy for trial error and is granted only when justice will be thwarted
unless the jury is discharged and a new trial is granted. State v. Hardy, 230
Ariz. 281, 292, ¶ 52, 283 P.3d 12, 23 (2012) cert. denied, 133 S. Ct. 935 (U.S.
2013).

¶10             Castillo argues the trial court abused its discretion by
denying her motion for mistrial. Castillo asserts that Officer Rude’s
testimony that she “had already been Mirandized” and the prosecutor’s
questions urging Officer Rude not to discuss “anything related to
[Castillo’s] statements” violated the parties’ agreement that her statements
would be suppressed. In addition, Castillo contends that because Officer
Rude was not permitted to testify about her statements, it was likely the
jury inferred her statements were inculpatory. We disagree.

¶11           Officer Rude did not offer any statement by Castillo during
his testimony. Indeed, the prosecutor’s questions specifically steered
Officer Rude away from addressing anything that Castillo may have said.
Furthermore, the court instructed the jury that “[a] question is not
evidence” and jurors “must not try to guess what the answer might have
been” to an unanswered question. We presume the jury followed the
court’s instructions. State v. Morris, 215 Ariz. 324, 337, ¶ 55, 160 P.3d 203,
216 (2007).

¶12           Accordingly, we conclude the State did not violate the
suppression agreement, and the trial court acted within its discretion in
denying Castillo’s motion for mistrial. See State v. Marshall, 197 Ariz. 496,
500, ¶ 13, 4 P.3d 1039, 1043 (App. 2000) (“[A] mistrial based upon a claim
of evidentiary error is warranted only when the jury has been exposed to
improper evidence and the error might have affected the verdict.”).




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                   STATE v. CASTILLO
                   Decision of the Court

                     CONCLUSION

¶13   For the reasons outlined above, we affirm.




                          :MJT




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