                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                           Appellant,

                                 v.

                    AUSTIN GARRETT HANSEN,
                            Appellee.

                     No. 2 CA-CR 2014-0103
                      Filed March 10, 2015


         Appeal from the Superior Court in Pinal County
                    No. S1100CR201300597
           The Honorable Gilberto V. Figueroa, Judge

                          AFFIRMED


                           COUNSEL

M. Lando Voyles, Pinal County Attorney
By Renee J. Waters, Deputy County Attorney, Florence
Counsel for Appellant

Shell & Nermyr, PLLC, Chandler
By Chad Shell
Counsel for Appellee
                        STATE v. HANSEN
                        Opinion of the Court


                              OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Miller concurred.


E C K E R S T R O M, Chief Judge:

¶1            The state challenges the trial court’s order granting a
mistrial after the jury returned contradictory verdict forms in which
it found appellee Austin Hansen guilty of aggravated assault with a
deadly weapon but not guilty of its lesser included offense of simple
assault.1 We conclude the state lacks a right to appeal the mistrial
order. We nonetheless exercise our special action jurisdiction to
resolve a legal question of statewide importance regarding the effect
of an ambiguous verdict. See A.R.S. § 12-120.21(A)(4).

                Factual and Procedural Background

¶2           Hansen was charged with a single count of aggravated
assault with a deadly weapon or dangerous instrument pursuant to
A.R.S. § 13-1204(A)(2) as a result of a stabbing at a music festival.
For sentencing enhancement purposes, the state alleged the offense
was of a dangerous nature due to the use of a knife. See A.R.S. §§ 13-
105(13), 13-704. The court bifurcated the trial to separately address
the questions of guilt and dangerousness.

¶3         During the guilt phase, the jury received instructions
and verdict forms for aggravated assault and its lesser included


      1“Logically,   . . . if one has not committed the lesser offense,
one cannot have committed the greater,” Peak v. Acuna, 203 Ariz. 83,
¶ 5, 50 P.3d 833, 834 (2003), and “the extra element distinguishing
the lesser included offense of assault from the greater offense,
aggravated assault, is the use of a deadly weapon.” State v. Torres,
156 Ariz. 150, 152, 750 P.2d 908, 910 (App. 1988). We refer to the
contradictory verdict forms here as an ambiguous verdict, following
People v. Carbajal, 155 Cal. Rptr. 3d 335, 342 (2013).


                                  2
                         STATE v. HANSEN
                         Opinion of the Court

offense of simple assault. When the jury returned the forms in open
court, the judge initially overlooked that the forms stated the jury
had found Hansen both guilty of aggravated assault and not guilty
of simple assault. Only the verdict of guilt was announced in court.
The court asked the jurors whether this was their verdict, they
replied in the affirmative, and no dissent was registered when the
jury was polled at Hansen’s request.

¶4            After the jury was instructed on the question of
dangerousness and returned an affirmative finding, the trial court
discovered its previous oversight.2 The judge explained that he had
seen only the guilty verdict form and had handed that form alone to
the clerk to be announced. When the court asked the foreperson of
the jury whether the jurors had believed they were required to
render a verdict on simple assault, the foreperson responded, “I
think it was more my confusion on what I was doing with the two
sheets.” The court interrupted this response to maintain the secrecy
of the jury’s deliberative process. Hansen’s counsel stated his belief
that the only option was a mistrial, and the court agreed over the
state’s objection. The state then filed its notice of appeal from the
mistrial order.

                              Jurisdiction

¶5           This court’s appellate jurisdiction is provided and
limited by statute. State v. Avila, 147 Ariz. 330, 333, 710 P.2d 440, 443
(1985); see Ariz. Const. art. VI, § 1; A.R.S. § 12-120.21(A)(1). Appeals
by the state are historically disfavored, State v. Bejarano, 219 Ariz.
518, ¶ 9, 200 P.3d 1015, 1019 (App. 2008), and A.R.S. § 13-4032 sets
forth the exclusive grounds on which the state may appeal. State v.
Fendler, 127 Ariz. 458, 461, 622 P.2d 17, 20 (App. 1980). Because this
statute provides a right in derogation of the common law, we

      2The  record indicates that two bench conferences were held on
this matter, but, because those discussions were not transcribed, we
do not know what arguments or requests the parties may have made
during that time. We disapprove the practice of not recording bench
conferences. State v. Dann, 220 Ariz. 351, ¶ 104, 207 P.3d 604, 623
(2009).


                                   3
                         STATE v. HANSEN
                         Opinion of the Court

construe its terms strictly and presume that the state has no right of
appeal “in the absence of express legislative authority” to the
contrary. State v. Dawson, 164 Ariz. 278, 280, 792 P.2d 741, 743
(1990); see State v. Moore, 48 Ariz. 16, 18, 58 P.2d 752, 752 (1936)
(noting “right of appeal in criminal cases is not known to the
common law”).

¶6          The state identifies § 13-4032(2) as the basis of our
appellate jurisdiction. That provision allows the state to appeal
“[a]n order granting a new trial.” Id. An order declaring a mistrial,
however, is not equivalent to an order granting a new trial.

¶7            Although a new trial typically follows the declaration of
a mistrial, see Gray v. Gardiner, 92 Ariz. 208, 211, 375 P.2d 562, 564
(1962), there are situations that plainly illustrate both the distinct
nature of these orders and the fact a new trial is not an inevitable
consequence of a mistrial. For purposes of changing judges, for
instance, we distinguish an order granting a new trial from one
granting a mistrial. King v. Superior Court, 108 Ariz. 492, 493, 502
P.2d 529, 530 (1972); see State v. Neil, 102 Ariz. 110, 117, 425 P.2d 842,
849 (1967) (Bernstein, C.J., dissenting) (noting “[t]here is a critical
distinction between a new trial and a mistrial,” because latter entails
no judgment or sentence having been rendered by court). Similarly,
if numerous trials have failed to result in a verdict, then a criminal
defendant’s due process rights might prohibit a successive
prosecution following the declaration of a mistrial. See State v.
Huffman, 222 Ariz. 416, ¶¶ 12-15, 215 P.3d 390, 394-96 (App. 2009). A
new-trial order likewise might never result from a “mistrial” that is
imposed as a sanction for a disclosure violation under
Rule 15.7(a)(3), Ariz. R. Crim. P.

¶8            In the criminal context more broadly, the declaration of
a mistrial does not automatically result in a new trial when the
mistrial is occasioned by intentional prosecutorial misconduct. See
State v. Jorgenson, 198 Ariz. 390, ¶ 4, 10 P.3d 1177, 1178 (2000).
Furthermore, in the civil context the declaration of a mistrial is not
equivalent to a new trial and cannot be appealed under the
analogous provision in our civil statute, A.R.S. § 12-2101(A)(5)(a),
which allows an appeal from an order “[g]ranting or refusing a new
trial, or granting a motion in arrest of judgment.” See Davis v. Davis,

                                    4
                          STATE v. HANSEN
                          Opinion of the Court

195 Ariz. 158, ¶ 12, 985 P.2d 643, 646-47 (App. 1999). Given these
substantive differences between the terms of art, as well the
applicable rule of strict construction, Dawson, 164 Ariz. at 280, 792
P.2d at 743, we therefore hold that the state does not have a right to
appeal an order granting a mistrial under § 13-4032(2).

¶9            With our appellate jurisdiction lacking, we nevertheless
find it appropriate to exercise our special action jurisdiction
pursuant to § 12-120.21(A)(4) and address the merits of the state’s
arguments presented in its brief. We exercise our discretion in this
manner because this case presents an important legal question
concerning the effect of an ambiguous verdict, and the state is
without “an equally plain, speedy, and adequate remedy by
appeal.” Ariz. R. Spec. Actions 1(a); see State v. Bayardi, 230 Ariz.
195, ¶ 7, 281 P.3d 1063, 1065-66 (App. 2012).

                                 Mistrial

¶10           Both parties agree that a final verdict was returned by
the jury that must be given effect; they simply disagree about which
verdict is final and which should be ignored. We reject this
premise. 3 Following federal authorities, we previously have held
that “[a] verdict is final if (1) the deliberations are over, (2) the result
is announced in open court, and (3) the jury is polled and no dissent
is registered.” State v. Kiper, 181 Ariz. 62, 68, 887 P.2d 592, 598 (App.
1994); accord State v. Webb, 186 Ariz. 560, 563, 925 P.2d 701, 704 (App.
1996).




      3 We   need not specifically address Hansen’s claim that the
verdict form finding him not guilty of simple assault constitutes an
acquittal for purposes of the Double Jeopardy Clause. Hansen did
not file a notice of appeal from the trial court’s mistrial order, and
the double jeopardy issue is not otherwise ripe for our review. See
State v. Rasch, 188 Ariz. 309, 312-13, 935 P.2d 887, 890-91 (App. 1996)
(“[A] double jeopardy issue is not ‘ripe’ until the defendant is
prosecuted following a mistrial.”), quoting State v. Marquez, 113 Ariz.
540, 541, 558 P.2d 692, 693 (1976).


                                     5
                         STATE v. HANSEN
                         Opinion of the Court

¶11           This statement is an oversimplification, however,
insofar as it presumes the verdict is valid and has been accepted by
the court. “There is no verdict as long as there is any uncertainty or
contingency to the finality of the jury’s determination.” Cook v.
United States, 379 F.2d 966, 970 (5th Cir. 1967). “[A] verdict must be
unqualified and unambiguous,” and “[a] trial court may not accept a
verdict if it is defective but must either direct the jury to retire for
further deliberation or declare a mistrial.” United States v. Lee, 532
F.2d 911, 913 (3d Cir. 1976). “The test for validity of the verdict is
whether it ‘was certain, unqualified and unambiguous considering
the circumstances of the receipt of the verdict and poll of the jurors
relative to their verdict.’” United States v. Morris, 612 F.2d 483, 490
(10th Cir. 1979), quoting Cook, 379 F.2d at 968; see State v. Marin, 107
Ariz. 580, 582, 490 P.2d 1170, 1172 (1971) (verdict valid when jury’s
intent “unmistakably expressed”). “‘An attempt by a jury to return
a verdict that is not accepted by the trial judge is not a verdict. A
verdict is not binding until the court accepts it and the jury is
discharged.’” State v. Martinez, 198 Ariz. 5, ¶ 11, 6 P.3d 310, 313
(App. 2000), quoting State v. Peters, 855 S.W.2d 345, 349-50 (Mo. 1993).

¶12          Here, the trial court did not accept the ambiguous
verdict but rather discharged the jury and declared a mistrial as
permitted by our rules of procedure. Under Rule 23.4, Ariz. R.
Crim. P., which is derived from Rule 31(d), Fed. R. Crim. P., either
party or the court may poll the jury “[a]fter the verdict is returned
and before the jury is discharged.” The rule also allows the court to
“direct [jurors] to retire for further deliberations or . . . discharge[]”
them based on their responses.            This process “compels the
conclusion that a verdict is not final when announced.” United States
v. Love, 597 F.2d 81, 84 (6th Cir. 1979). And, although the language
of the federal rule focuses on the need for jury unanimity, the rule
has been interpreted to address “the equally important needs for
clarity and certainty as to the meaning of the verdict being
reported.” United States v. Rastelli, 870 F.2d 822, 835 (2d Cir. 1989).

¶13          Historically, Arizona has permitted trial courts to
reinstruct jurors and direct them to continue deliberations when the
jury returns a verdict “‘so defective that the court cannot determine
whether the jurors intended to acquit the defendant or to convict


                                    6
                         STATE v. HANSEN
                         Opinion of the Court

him of an offense for which judgment could be entered.’” State v.
Barker, 94 Ariz. 383, 387, 385 P.2d 516, 518 (1963), quoting Ariz. R.
Crim. P. 298, 17 A.R.S. (1956). The 1973 changes to our rules of
criminal procedure did nothing to diminish this authority. See State
v. Rich, 184 Ariz. 179, 181, 907 P.2d 1382, 1384 (1995) (noting
preference for reinstruction and further deliberations when jury
returns guilty verdicts for charged and lesser included offense); cf.
State v. Davolt, 207 Ariz. 191, ¶¶ 93-95, 84 P.3d 456, 478 (2004)
(permitting court to allow jurors to make changes to verdict forms
when foreperson’s comments indicated jurors had been confused
about how to complete forms and forms therefore did not reflect
jury’s verdict). Under the current Rule 23.2(a), “the jury shall in all
cases render a verdict finding the defendant either guilty or not
guilty.” It cannot do both simultaneously. And a trial court should
take “immediate corrective action where, as here, the jury’s verdict
is patently uncertain.” Rastelli, 870 F.2d at 835.

¶14           As noted, a trial court’s choice of remedies when faced
with such a verdict is either to reinstruct jurors and direct them to
resume deliberations or declare a mistrial. Lee, 532 F.2d at 913; see
Ariz. R. Crim. P. 23.4 (allowing discharge of jury if responses to poll
“do not support the verdict”). A mistrial is a dramatic remedy
reserved for situations in which the interests of justice would be
thwarted unless a mistrial is granted. State v. Miller, 234 Ariz. 31,
¶ 25, 316 P.3d 1219, 1228 (2013). When a trial court is presented with
a verdict finding a defendant guilty and not guilty of the same
offense, or guilty of one crime and not guilty of its lesser included
offense, the best practice for the court is to attempt to discern the
jury’s intention and remove the ambiguity from the verdict, if
possible. See United States v. McCaleb, 552 F.3d 1053, 1058 (9th Cir.
2009) (recognizing “such a practice ‘comports with common sense as
well as efficiency and fairness’”), quoting Larson v. Neimi, 9 F.3d 1397,
1402 (9th Cir. 1993).4 The opportunity for a “simple and efficient
solution[] is permanently lost when jurors walk out the courtroom


      4A  trial court also might postpone the discharge of the jury to
allow legal briefing or to allow a party to seek a stay from this court
for a special action. See Ariz. R. P. Spec. Actions 5.


                                   7
                         STATE v. HANSEN
                         Opinion of the Court

door.” United States v. Poole, 545 F.3d 916, 919 (10th Cir. 2008). The
decision to grant a mistrial, however, lies within the court’s sound
discretion. State v. Adamson, 136 Ariz. 250, 260, 665 P.2d 972, 982
(1983). And “the mere availability of another alternative does not
render a mistrial order an abuse of discretion.” State v. Givens, 161
Ariz. 278, 281, 778 P.2d 643, 646 (App. 1989).

¶15           Although we conclude the trial court partially erred, we
cannot find the court’s declaration of a mistrial constitutes a
reversible error. A discretionary determination predicated on an
error of law constitutes abuse of discretion. See Jimenez v. Chavez,
234 Ariz. 448, ¶ 15, 323 P.3d 731, 734 (App. 2014). The state is correct
that the trial court abused its discretion here insofar as it based its
order on the mistaken impression that a mistrial was “required by
law.” But we have been presented with no authority establishing
the existence of an adequate remedy at this juncture. As discussed
above, the verdict here was ambiguous, the effect of the mistrial was
to nullify the proceeding without a verdict, see State ex rel. Sullivan v.
Patterson, 64 Ariz. 40, 45, 165 P.2d 309, 312 (1946), and the only relief
now available, either from this court or the lower court, would
appear to be the grant of a new trial.

¶16           The state urges us to consider the record as a whole and
find that the verdict of guilt, coupled with the dangerousness
determination, represents the jury’s true intention to convict Hansen
as charged. Although the state makes a non-trivial argument about
the jury’s likely intentions, we cannot validate and accept the verdict
in this manner for two principal reasons.

¶17         First, the trial court did not poll individual jurors to
determine whether the not guilty verdict also represented their true
verdict. Accordingly, while the existing record certainly suggests
the foreperson viewed the not guilty verdict as an unintended
mistake, we decline to speculate on this limited record about what
the remaining seven members of the jury intended by their verdicts.5

      5While  Hansen asserts that the not guilty verdict should be
given effect because it was announced in court, we note that not
every declaration by a jury in favor of a defendant constitutes a final
verdict. See, e.g., Rastelli, 870 F.2d at 834 (acquittals announced,

                                    8
                         STATE v. HANSEN
                         Opinion of the Court

Cf. Rich, 184 Ariz. at 180, 181, 907 P.2d at 1383, 1384 (noting jury not
polled on verdict form for lesser included offense, and declining to
speculate about “what the jury would have done” with further
instruction and deliberations). And, while we must be mindful that
Arizona courts will give effect to inconsistent verdicts, the defendant
also enjoys a constitutional right to a valid, unanimous verdict. See
Morris, 612 F.2d at 490 (recognizing need for “safeguard[s] . . . to
protect the constitutional right of [defendants] to valid, unanimous
verdicts”).

¶18           Second, any judicial interpretation of the verdict after
the discharge of the jury deprives Hansen of the opportunity to poll
the jurors and confirm such an interpretation. In addition, it might
undermine the voluntary choice Hansen made arguing for a
mistrial—a choice that waived any claim of double jeopardy
protections arising from the verdict form in his favor. See United
States v. Scott, 437 U.S. 82, 99 (1978) (“[T]he Double Jeopardy Clause,
which guards against Government oppression, does not relieve a
defendant from the consequences of his voluntary choice.”). In sum,
given the limited record, the uncertainty about the jury’s intended
meaning, and the potential constitutional problems involved in
imposing a verdict at this stage by judicial construction, we find no
basis to reverse the trial court’s ruling.

¶19          The state further asserts that the ambiguous verdicts
here were simply “inconsistent verdicts” that “the law clearly
allows.” Indeed, in Arizona we do not disturb inconsistent verdicts.
Gusler v. Wilkinson, 199 Ariz. 391, ¶ 25, 18 P.3d 702, 707 (2001); State
v. Zakhar, 105 Ariz. 31, 32, 459 P.2d 83, 84 (1969); e.g., Webb, 186 Ariz.
at 561, 925 P.2d at 702 (defendant acquitted of felony DUI but
convicted of DUI and driving without license); State v. Parsons, 171

foreman indicated confusion, deliberations resumed, and verdicts of
guilt returned on some counts previously acquitted); United States v.
Mears, 614 F.2d 1175, 1179 (8th Cir. 1980) (jury permitted to correct
not guilty verdict form after announcement in court when foreman
immediately indicated form was incorrectly signed; verdict changed
to guilty after further deliberation); Love, 597 F.2d at 83-84 (acquittal
announced, but non-unanimous poll led to mistrial).


                                    9
                         STATE v. HANSEN
                         Opinion of the Court

Ariz. 15, 15-16, 827 P.2d 476, 476-77 (App. 1992) (defendant
convicted of aggravated assault with deadly weapon, but crime
found not to be dangerous-nature offense); State v. Estrada, 27 Ariz.
App. 38, 39-40, 550 P.2d 1080, 1081-82 (1976) (defendant guilty of
conspiracy but acquitted of underlying drug offenses).

¶20          The rationale for this approach is that the inconsistency
might not represent an error detrimental to the defendant but
instead could be a favorable error or the result of jury nullification,
compromise, or lenity. See United States v. Moran-Toala, 726 F.3d 334,
342 (7th Cir. 2013); United States v. Siegelman, 640 F.3d 1159, 1185 n.36
(11th Cir. 2011); Zakhar, 105 Ariz. at 32-33, 459 P.2d at 84-85. It is
unclear “whose ox has been gored” by the inconsistency, United
States v. Powell, 469 U.S. 57, 65 (1984), as the defendant might have
received a benefit to which he or she was not entitled. Id. at 69. We
do not guess about what the jury “‘really meant’” by its verdicts, id.
at 68, nor do we generally inquire into the jury’s deliberative
process. Id. at 66; see Ariz. R. Crim. P. 24.1(d). Hence, we will not
subject an inconsistent verdict to any special judicial review. Powell,
469 U.S. at 68-69.

¶21          However, this rationale does not apply to contradictory
verdicts returned on a single count. These verdicts are not simply
legally inconsistent or “‘rationally incompatible,’” United States v.
Suarez, 682 F.3d 1214, 1218 (9th Cir. 2012), quoting United States v.
Guzman, 849 F.2d 447, 448 (9th Cir. 1988), as the state suggests.
Rather, they are impossible in the sense that they cannot be given
simultaneous effect. Nullification, compromise, and lenity cannot
explain the result; there is no question but that the jury erred and
failed to express a meaningful intention. Moreover, a court cannot
simply let this type of ambiguous verdict stand, as it may with other
inconsistencies, because the verdicts of guilt and acquittal together
prevent either one from functioning. Neither party receives a
benefit from such an unintelligible determination, and resolving the
ambiguity by any other means than further deliberations would
require a court to speculate about the reason for the inconsistency or
inquire into the jury’s deliberations. This, as Powell explains, we do
not do. 469 U.S. at 66.




                                   10
                         STATE v. HANSEN
                         Opinion of the Court

¶22           We publish this opinion, as the state requests, to clarify
this important distinction and give guidance to trial courts and
parties who face issues of inconsistency or ambiguity. Ordinarily,
an inconsistency involving criminal verdicts does not render them
invalid or permit a trial court to reject them; in other words, an
inconsistency does not authorize a court to reinstruct jurors and
resume deliberations. See Webb, 186 Ariz. at 563, 925 P.2d at 704;
Malott v. Miller, 162 Ariz. 239, 242, 782 P.2d 715, 718 (App. 1989). A
court must simply accept the verdicts without probing into the
jurors’ thought processes or demanding adherence to its
instructions.

¶23          Remedial efforts are appropriate, however, when a jury
returns (1) guilty verdicts on both a greater and lesser included
offense or (2) an ambiguous verdict finding the defendant guilty and
not guilty of the same offense, or guilty of the greater offense but not
guilty of the lesser included offense.6 In the latter situation, a court
cannot give legal effect to the verdicts without resolving the
question of the jury’s intended meaning. See Brown v. Ohio, 432 U.S.
161, 167-68 (1977) (holding greater and lesser included offenses are
same for jeopardy purposes). In the former, our supreme court has
required such action in Rich, 184 Ariz. at 181, 907 P.2d at 1384, and
we are not at liberty to ignore this precedent, see State v. Miranda, 198
Ariz. 426, ¶ 13, 10 P.3d 1213, 1216 (App. 2000), aff’d, 200 Ariz. 67, 22
P.3d 506 (2001).

¶24       Under controlling Arizona case law, the trial court here
would have erred by simply ignoring the not guilty verdict on the

      6A  third possible situation, which was contemplated in Powell,
469 U.S. at 69 n.8, occurs when a jury returns verdicts of guilt on
separate offenses but the “verdict on one count logically excludes a
finding of guilt on the other.” Arizona has yet to address such a case
of so-called “mutually exclusive verdicts,” United States v. Maury,
695 F.3d 227, 263 (3d Cir. 2012), and we do not purport to resolve
that question. We note, however, that the problem of ambiguous
verdicts, as we use the term, is akin to the problem of mutually
exclusive verdicts: in both scenarios, the verdicts negate one another
and the defendant receives no benefit.


                                   11
                         STATE v. HANSEN
                         Opinion of the Court

lesser included offense and accepting the defective verdict
announced in court. See Rich, 184 Ariz. at 181 & n.1, 907 P.2d at 1384
& n.1. That the court declared a mistrial rather than directing jurors
to resume deliberations and thereby resolve the ambiguity in the
verdict does not constitute a reversible error under the
circumstances of this case.

¶25           We understand the perspective that the jury’s intentions
to convict were “abundantly clear,” as our dissenting colleague
maintains. And, on the dry record before us, we do not dispute that
our colleague’s interpretation of the jury’s intent is a plausible one.
But we do not write on a clean slate. Implicit in the trial court’s
ruling was a conclusion that the jury’s intent had not been clarified
either by the dangerousness finding or the foreperson’s incomplete
statement thereafter. And, although the court presided over the
proceeding and had the opportunity to assess the demeanor of both
the foreperson and the jury, it declined to credit the foreperson’s
suggestion that the not guilty verdict was a mere clerical error.
Moreover, given the availability of the curative measures not taken,
which could have readily clarified the jurors’ intent, we are reluctant
now to place undue confidence in the limited evidence of such intent
that still survives. Although the dissent maintains the poll of the
jury demonstrates the jury’s intent to convict, the jury’s return of a
not guilty verdict on the lesser offense is substantial evidence of a
conflicting intent, and the trial court was entitled to consider it as
such. Here, the jury poll did nothing to eliminate the ambiguity
when that ambiguity was clearly the product of the jury’s
misunderstanding of the law. We decline to speculate on the precise
nature of that misunderstanding and do not consider the incomplete
statement of the foreperson dispositive evidence of the mindset of
the remaining seven jurors.

¶26          Procedurally, Hansen was entitled to a certain verdict
confirmed by all jurors, and we cannot agree with the dissent that he
somehow waived his right to poll the jury anew or otherwise
confirm its intent when, after the trial court had refused to accept the
verdicts based on their ambiguity, he requested a mistrial. A
defendant does not waive an alternative remedy when he asks for,
and is granted, relief that the law entitles him to have. In short,


                                  12
                          STATE v. HANSEN
                          Opinion of the Court

Hansen requested a mistrial rather than another poll, and it would
be fundamentally unfair to now provide him neither.

                               Disposition

¶27           Accordingly, we accept special action jurisdiction and
affirm the trial court’s order.


E S P I N O S A, Judge, dissenting:

¶28           I must respectfully dissent because I cannot agree with
my colleagues’ foundational premise, which redefines the attributes
of a final verdict to conclude that the jury’s verdict here, on the only
count the defendant was charged with, was ambiguous. On the
record before this court, the jury’s intent to convict Hansen of
aggravated assault was made abundantly clear, and the trial court
reversibly erred in disregarding the jury’s decision on the basis of a
mere clerical mix-up.

¶29           As my colleagues acknowledge, this court has observed
that “[a] verdict is final if (1) the deliberations are over, (2) the result
is announced in open court, and (3) the jury is polled and no dissent
is registered.” State v. Kiper, 181 Ariz. 62, 68, 887 P.2d 592, 598 (App.
1994); accord State v. Webb, 186 Ariz. 560, 563, 925 P.2d 701, 704 (App.
1996). “[M]ere irregularity in a verdict of conviction is immaterial if
the intent to convict the accused of the crime charged is
unmistakably expressed.” State v. Marin, 107 Ariz. 580, 582, 490 P.2d
1170, 1172 (1971).

¶30          Here, not only did the jurors expressly confirm their
intentions when individually polled after the verdict had been
rendered and announced, but any possible ambiguity was
eliminated when the jury went on to find the offense a dangerous
one, based on Hansen’s use of a weapon, and then verbally
confirmed its decision in open court when queried by the judge.
That a second verdict form relating to the lesser-included offense of
simple assault was marked “not guilty,” while inconsistent with the
court’s instructions, was readily explained by the foreperson as
simple confusion on her part in dealing with “the two sheets.” My


                                    13
                         STATE v. HANSEN
                         Opinion of the Court

colleagues greatly overstate this irregularity by regarding it as
“substantial evidence of a conflicting intent” on the aggravated
assault charge. See Marin; see also People v. Camacho, 90 Cal. Rptr. 3d
559, 562 (Cal. Dist. Ct. App. 2009) (error in recording judgment as
opposed to rendering judgment immaterial if, viewing record as a
whole, jury’s intent to convict unmistakable).

¶31          My colleagues also voice concern that upholding the
jury’s expressly confirmed verdict would deprive Hansen of the
opportunity to have polled the jurors about the aberrational, if
semantically logical, verdict sheet marked “not guilty” of simple
assault. But Hansen was free to request such polling, just as he did
without hesitation for the aggravated assault verdict. Doing so
would certainly have further clarified the foreperson’s mistake, a
mere clerical matter not involving the jury’s deliberative process.
Contrary to my colleagues’ assessment, the trial court did not
decline to credit the foreperson’s explanation, but rather cut her off
and did not consider it, under the erroneous belief that it went to the
jury’s thought process. See Plummer v. Springfield Terminal Ry. Co.,
5 F.3d 1, 3 (1st Cir. 1993) (well established that juror testimony
regarding alleged error, such as announcing a verdict different than
that intended, does not invoke deliberative processes). Hansen,
however, strategically chose not to inquire further or poll the jury on
the lesser-included offense. Accordingly, no unfairness arises from
his concededly “voluntary choice,” which waived any further rights
he had in that regard. See State v. Engram, 171 Ariz. 363, 365, 366, 831
P.2d 362, 364, 365 (App. 1991) (following guilty verdicts on both
charged and lesser-included offense, had defendant “ask[ed] that
the jury be questioned further on the subject” “the trial judge might
very well have explained the inconsistency to the jury and
determined its true intent on the record”).

¶32           It requires no speculation, but only common sense to
conclude the jury’s verdict finding Hansen guilty of aggravated
assault with a dangerous weapon “‘was certain, unqualified and
unambiguous considering the circumstances of the receipt of the
verdict and poll of the jurors relative to their verdict.’” United States
v. Morris, 612 F.2d 483, 490 (10th Cir. 1979), quoting Cook v. United
States, 379 F.2d 966, 968 (5th Cir. 1967). I would accordingly reverse


                                   14
                       STATE v. HANSEN
                       Opinion of the Court

the trial court’s mistrial ruling, reinstate the jury’s verdict, and
remand the case for sentencing.




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