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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                WANSFORD EUGENE FRAZER, Appellant.

                             No. 1 CA-CR 18-0489
                               FILED 7-30-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-131980-001
           The Honorable Lauren R. Guyton, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
                              STATE v. FRAZER
                             Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop joined.


M c M U R D I E, Judge:

¶1            Wansford Eugene Frazer appeals his conviction and sentence
for robbery. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2             On July 4, 2016, the robbery victim was riding his bicycle near
83rd Avenue and Cactus Road in Peoria. During his trip, he noticed a
person standing in the bushes by the sidewalk. As the victim rode closer,
he saw Frazer come out and move towards him. As Frazer approached, he
knocked the victim from the bicycle and punched him in the jaw, splitting
his lip. Frazer then grabbed the bike and rode away. The victim called 911.

¶3             Peoria Police Department Officer James Hunter responded to
the 911 call a few minutes later. The victim provided the officer with the
details of the robbery, giving the officer descriptions of the suspect and the
bicycle.

¶4           The following day, two Peoria police officers, Aaron Brewer
and David Ayres, were conducting patrol in the area where the robbery
occurred. The officers had details of the robbery from an earlier briefing.
Officer Brewer saw a person riding a bicycle who matched the description
of the suspect. However, the person disappeared before the officer could
make contact.

¶5          The officers later responded to a call approximately half of a
mile from the robbery location. When they arrived, the officers found
Frazer being taken into custody for his involvement in another


1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Frazer. State v. Harm,
236 Ariz. 402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493,
495 (App. 1996)).



                                        2
                             STATE v. FRAZER
                            Decision of the Court

investigation. Officer Brewer recognized Frazer as the person he had seen
earlier riding the bicycle.

¶6           Because Frazer’s appearance matched the physical
description given by the robbery victim, Officers Hunter and Ayres
photographed Frazer and created a photographic lineup. The officers
presented the photographic lineup to the victim, who identified Frazer as
the person who had robbed him. Based on the identification, the officers
obtained a search warrant for Frazer’s home. In the search, the officers
found the victim’s bicycle.

¶7           The officers further obtained a search warrant for Frazer’s cell
phone. The officers recovered text messages from the phone referencing the
robbery. The text messages included the following:

       9:54 p.m.:    “I just socked a white boy for hitting me
                     cursing up behind me. He gave me his bike,
                     pops. Really. Why don’t you come get me? You
                     better not call the cops,”;

       10:19 p.m.:   “Baby, baby, I’m at home. I went to get some
                     o f smokes and this white boy crept up behind
                     me on a cruiser. He hit my leg so I socked him
                     twice and took his shit, baby. Love you. Wish
                     your man well, miss you. That’s all I got to say.
                     I have to work on my music. Real talk.”; and,

       10:19 p.m.:   “Ah Bro, I just socked this white boy in his
                     jaw. . . . Took his shit too.”

¶8            A grand jury charged Frazer with one count of robbery, a class
4 felony. After a three-day trial, the jury found Frazer guilty as charged. The
superior court sentenced Frazer to a term of 10 years’ imprisonment. Frazer
timely appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

A.     The Superior Court Did Not Err by Denying Frazer’s Motion for
       Judgment of Acquittal.

¶9           Following the conclusion of the state’s presentation of
evidence, Frazer moved for a judgment of acquittal according to Arizona
Rule of Criminal Procedure (“Rule”) 20. The superior court found the State


                                      3
                              STATE v. FRAZER
                             Decision of the Court

had provided substantial evidence to warrant a conviction and denied the
motion. Frazer contends the superior court erroneously denied his motion
for judgment of acquittal because the State failed to present enough
evidence.

¶10            We review de novo a superior court’s ruling on a Rule 20
motion. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). “[T]he relevant
question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (quotation
omitted). In reviewing the sufficiency of the evidence, we test the evidence
“against the statutorily required elements of the offense,” State v. Pena, 209
Ariz. 503, 505, ¶ 8 (App. 2005), and we neither reweigh conflicting evidence
nor reassess the credibility of witnesses, see State v. Buccheri-Bianca, 233 Ariz.
324, 334, ¶ 38 (App. 2013). Sufficient evidence upon which a reasonable jury
can convict may be direct or circumstantial. West, 226 Ariz. at 562, ¶ 16;
Pena, 209 Ariz. at 505, ¶ 7.

¶11            A judgment of acquittal is appropriate only when “there is no
substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a)(1); see
State v. Mathers, 165 Ariz. 64, 66 (1990). Substantial evidence means proof
that a reasonable person “could accept as sufficient to support a conclusion
of a defendant’s guilt beyond a reasonable doubt.” State v. Rivera, 226 Ariz.
325, 327, ¶ 3 (App. 2011) (quoting State v. Spears, 184 Ariz. 277, 290 (1996)).

¶12           Under A.R.S. § 13-1902(A):

       A person commits robbery if in the course of taking any
       property of another from his person or immediate presence
       and against his will, such person threatens or uses force
       against any person with intent either to coerce surrender of
       property or to prevent resistance to such person taking or
       retaining property.

Use of force distinguishes robbery from theft. State v. Rutledge, 197 Ariz. 389,
393, ¶ 18 (App. 2000). “Although we stated in Lopez, ‘[w]hen the use of force
and the taking of property are not contemporaneous, there may be a theft,
but there is not a robbery,’ we did not intend to suggest that when a person
uses force with the intent to take another’s property he has not committed
robbery.” State v. Comer, 165 Ariz. 413, 420 (1990) (alteration in original)
(quoting State v. Lopez, 158 Ariz. 258, 264 (1988)).

¶13           Frazer argues that the evidence failed to show that he
intended to steal the bicycle contemporaneously with his use of force when


                                        4
                            STATE v. FRAZER
                           Decision of the Court

he knocked the victim from the bike and punched him in the jaw. Frazer
contends that because the purpose of his use of force did not involve the
taking of the property of another, he may be guilty of theft or assault, but
not guilty of robbery.

¶14           Frazer’s argument is unpersuasive. The evidence shows that
Frazer: (1) approached the victim suddenly, directly, and from a hidden
position; (2) knocked the victim from the bicycle as soon as he was near
enough to do so; and then (3) punched the victim and grabbed the bike
immediately and fled. These facts demonstrate enough evidence that a jury
could reasonably find him guilty of robbery.

B.     The Superior Court Did Not Abuse Its Discretion by Denying
       Frazer’s Motions for Mistrial.

¶15           Frazer argues that the superior court erred by denying his
motions for mistrial. Specifically, Frazer cites two instances in Officer
Hunter’s testimony that he contends deprived him of a fair trial.

¶16          The first instance arose from the following statement on direct
examination:

       [The State:]         What do you mean by time sensitivity?

       [Officer Hunter:]     We already had Mr. Frazer in custody
       and we believed he was a very good lead because of how
       well he matched the description and the area where we
       found him. So we wanted to quickly see if he was going to be
       a person or the suspect from the robbery the night
       before . . . he went down to get booked for other unrelated
       things.

Frazer objected and moved for a mistrial claiming the statement “booked
for other unrelated things” called to the juror’s attention inadmissible other
acts in violation of Arizona Rule of Evidence 404(b). Frazer argued that
while the officer could refer to an “unrelated incident,” the statement that
Frazer would be “booked” made it clear to the jury Frazer had been arrested
for another crime.

¶17            The State asked the court to deny the motion for mistrial and
to instruct the jurors to disregard the comment and strike it from the record.
The court ruled:




                                      5
                             STATE v. FRAZER
                            Decision of the Court

       I don’t believe at this time it rises to a mistrial. But I will
       instruct the jurors if you want me to. If I instruct them, I’m
       afraid it might call more attention to it.

Frazer concurred with the court’s statement that instructing the jury could
draw more attention to it. Frazer then stated that if the court denied the
motion for mistrial, he sought no remedy.

¶18          Frazer’s second motion for a mistrial came after Officer
Hunter’s response to a juror question. The exchange follows:

       [The Court:]         Officer, the question is: When you came
       in contact with the defendant on July 5th, was he walking,
       riding a bike or in a car?

       [Officer Hunter:]    To answer your question, sir, the
       defendant was walking. He had actually just been seen
       coming over a backyard residential wall and was crossing
       Cactus Street. And I saw him approaching --

Frazer objected to Officer Hunter’s response and again moved for a mistrial
or, if the court would not grant that remedy, to strike the relevant
testimony. The superior court opted to strike the testimony and instructed
the jury:

       Okay. And so I will ask the jurors to disregard any of the
       other information beyond the walking when the officer came
       upon him. And I’ll ask that that testimony be stricken from
       the record.

¶19            We review the denial of a motion for mistrial for an abuse of
discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). In deciding whether
a remedy less severe than a mistrial will cure an error from witness
testimony, the superior court “is in the best position to determine whether
the [prejudicial] evidence will actually affect the outcome of the trial.” Id.
When unduly prejudicial evidence has been presented, the superior court
“must decide whether the remarks call attention to information that the
jurors would not be justified in considering for their verdict, and whether
the jurors in a particular case were influenced by the remarks.” Id. Because
“declaration of a mistrial is the most dramatic remedy for trial error,” it
should be granted “only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” State v. Adamson, 136 Ariz.
250, 262 (1983).



                                       6
                             STATE v. FRAZER
                            Decision of the Court

¶20          Officer Hunter’s statement that Frazer would be “booked for
other unrelated things” appears to involve inadmissible “other act”
evidence. See Ariz. R. Evid. 401–403, 404(b). Assuming the statement was
improper, we review the context in which it occurred, and the remedy
sought.

¶21            The officers located, contacted, and identified Frazer because
of their involvement in a separate, unrelated investigation. The State
discussed the unrelated incident in its opening statement without objection.
All three officers then testified regarding the details of how each contacted
Frazer on July 5, 2016, as part of the unrelated investigation. Frazer
acknowledged in the bench conference that he had no objection to calling it
an “unrelated incident,” and he had previously referred to the unrelated
investigation in cross-examination.

¶22           Officer Hunter’s further statement that Frazer would be
“booked” therefore did not provide new or significantly different
information, and its unrelated nature had already been made clear to the
jury. The single addition of the word “booked” to the existing testimony
would not substantially influence the jury’s perception of the evidence, and
the superior court did not abuse its discretion by denying the mistrial
motion.

¶23           The subsequent statement leading to Frazer’s second motion
for mistrial gave only a vague, undefined description of Frazer’s activity.
The officer stated Frazer “had just been seen . . . coming over a backyard
residential wall.” This statement, without more, does not expressly
reference an illicit act, and the answer generally appears responsive to the
juror question. Neither party objected to the juror question. As an initial
matter, we are not certain this statement contained irrelevant or unfairly
prejudicial evidence.

¶24            Nevertheless, the superior court sustained Frazer’s objection
to the statement. In determining the proper remedy, the superior court
instructed the jury to disregard the testimony and struck it from the record.
Subsequently, in the final jury instructions, the superior court told the jury,
“[i]f the court sustained an objection to a lawyer’s question, you must
disregard it and any answer given. Any testimony stricken from the court
record must not be considered.” We presume jurors follow their
instructions. State v. Dann, 205 Ariz. 557, 570, ¶ 46 (2003). Considering the
statement, the superior court did not abuse its discretion when it denied the
second motion for mistrial.




                                      7
                             STATE v. FRAZER
                            Decision of the Court

¶25           Finally, given the significant evidence establishing each
element of robbery, any presumed error from the challenged two instances
is rendered harmless beyond a reasonable doubt. See State v. Bible, 175 Ariz.
549, 588 (1993) (“Error, be it constitutional or otherwise, is harmless if we
can say, beyond a reasonable doubt, that the error did not contribute to or
affect the verdict.”). As discussed above, the robbery evidence was
substantial, and we do not view the officer’s two separate statements here
as affecting or contributing to the verdict.

                               CONCLUSION

¶26          For the foregoing reasons, we affirm.




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




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