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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                GILBERT ANTHONY MAINEZ, Appellant.

                             No. 1 CA-CR 16-0727
                              ),/('


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201500617
              The Honorable Jennifer B. Campbell, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee

Craig Williams Attorney at Law, PLLC, Prescott Valley
By Craig Williams
Counsel for Appellant
                            STATE v. MAINEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Patricia A. Orozco1 joined.


S W A N N, Judge:

¶1            Gilbert Anthony Mainez appeals his convictions and
sentences for attempted aggravated assault, aggravated assault, resisting
arrest, and disorderly conduct. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           On an evening in March 2015, Mainez arrived at his parents’
home in an agitated and intoxicated state. After his father denied him
entry, Mainez sat on a chair outside his parents’ home, called 9-1-1, and
reported he had a gun and would shoot any police officers who came to his
parents’ home.

¶3          When police officers arrived at the scene shortly thereafter,
they saw Mainez seated in front of his parents’ garage and ordered him to
show his hands. Rather than comply, Mainez yelled at the officers and
walked toward his parents’ front door.

¶4           At that point, the officers rushed toward Mainez and he
turned and assumed a fighting stance. Fearing for their safety, the officers
attempted to physically restrain Mainez, but he repeatedly swung at them,
and they struck back as they attempted to gain control.

¶5            Once the officers took Mainez into custody, they transported
him to a nearby hospital so he could receive treatment for a substantial cut
he sustained during the altercation. As medical personnel closed his
laceration, Mainez pulled surgical staples out of his head and threw them
at the officers, threatened to beat and choke them, spat on them, and
urinated on himself and shook his urinated pants at the officers.


1      The Honorable Patricia A. Orozco, retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.



                                     2
                            STATE v. MAINEZ
                           Decision of the Court

¶6            The state charged Mainez with three counts of aggravated
assault, one count of resisting arrest, two counts of disorderly conduct, and
one count of attempted aggravated assault. After an eight-day trial, the jury
found Mainez guilty on all counts.2 The superior court found Mainez had
historical prior felony convictions and imposed sentences totaling 8.75
years in prison. Mainez timely appealed.

                               DISCUSSION

I.     DENIAL OF MAINEZ’S MOTION FOR MISTRIAL WAS WITHIN
       THE SUPERIOR COURT’S DISCRETION.

¶7             Mainez argues the superior court improperly denied his
motion for mistrial. Specifically, he asserts the court should have declared
a mistrial after the state failed to inform an officer victim that Mainez had
requested an interview.

¶8            We review the superior court’s denial of a motion for mistrial
for prosecutorial misconduct for an abuse of discretion. State v. Jones, 197
Ariz. 290, 301, ¶ 20 (2000). Because “a 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).

¶9             Three weeks before trial commenced, defense counsel
emailed the prosecutor and requested an interview with each of the state’s
witnesses, “including the officers if they w[ould] consent to such a request.”
A week later, defense counsel sent a follow-up email asking whether the
prosecutor had “a chance to ask the victim officers” whether they would
consent to an interview. On the same day, a victim advocate contacted
defense counsel to arrange an interview with Officer S.R., a named victim.
A few days later, however, the prosecutor notified defense counsel that (1)
Officer S.R. withdrew his consent to an interview, (2) the remaining officer
victims likewise declined interviews, and (3) Officer M.B. no longer worked
for the police department.

¶10           At trial, the state called Officer M.B. to testify. On direct
examination, Officer M.B. testified that he worked for the police
department on the day in question and responded to a report of an
aggressive patient at a local hospital. When he arrived at the scene, Officer
M.B. joined other officers who were watching Mainez as medical personnel

2      Before the matter was submitted to the jury, one of the aggravated
assault charges was reduced to attempted aggravated assault.

                                      3
                            STATE v. MAINEZ
                           Decision of the Court

attempted to treat his injury. Mainez threatened the officers and moved
aggressively toward one of them. To thwart a possible attack, Officer M.B.
grabbed and restrained Mainez.

¶11           On cross-examination, defense counsel asked Officer M.B.
whether the state had notified him that Mainez had requested an interview.
Officer M.B. testified he did not recall an interview request in the case, but
explained he could not be certain because he had received interview
requests in multiple cases. When asked whether he would have consented
to an interview if notified of such a request, Officer M.B. answered
affirmatively. Defense counsel then questioned the officer extensively
regarding two videos he recorded at the hospital.

¶12           When the superior court excused the jury for lunch, defense
counsel moved for a mistrial based on the state’s failure to convey Mainez’s
interview request to Officer M.B. The prosecutor responded that she did
not inquire whether Officer M.B. would consent to an interview because
“he was no longer a law enforcement officer,” and explained her failure was
an oversight, “not an intentional act.”

¶13            On the next day of trial, after the parties had submitted
written briefing, the court held a hearing on Mainez’s motion. Defense
counsel maintained the state had a mandatory duty to notify Officer M.B.
of the interview request and asserted a showing of prejudice was therefore
unnecessary. Nonetheless, defense counsel argued Mainez sustained
prejudice because Officer M.B. was “the only officer who tape recorded any
of the proceedings” and defense counsel would have thoroughly
questioned his recording practices during a pretrial interview. In response,
the prosecutor again argued that she “did not do anything intentionally”
and “certainly did nothing to . . . block defense counsel’s access to
witnesses.”

¶14             After hearing from the parties, the superior court denied the
motion for mistrial. The court concluded that the prosecutor breached her
duty to inform the victim of the request for a defense interview, but found
the omission was inadvertent rather than intentional. To cure any possible
resulting prejudice, the court ordered the prosecutor to immediately
schedule a defense interview of Officer M.B., “based on his acquiescence
. . . on the stand.”

¶15          Although a victim is not compelled to submit to any
interview, a defendant may request a victim interview “through the
prosecutor’s office.” A.R.S. § 13-4433(A)–(B). Once a defendant submits



                                      4
                            STATE v. MAINEZ
                           Decision of the Court

such a request, the “prosecutor’s office shall promptly inform the victim.”
A.R.S. § 13-4433(B).

¶16             Relying on State v. Rasch, 188 Ariz. 309 (App. 1996), Mainez
argues that a mistrial was the appropriate remedy for the prosecutor’s
statutory breach. In Rasch, the prosecutor failed to inform the victim of the
defendant’s request for an interview because the prosecutor assumed the
victim would refuse. Id. at 310. At trial, however, the victim testified that
she would have consented to an interview had the prosecutor notified her
of the request. Id. On this basis, upon the defendant’s motion, the court
dismissed the case with prejudice. Id. On appeal, this court noted that the
prosecutor’s omission was “inadvertent rather than intentional,” and
modified the judgment to reflect dismissal without prejudice. Id. at 312. The
state’s appeal, however, did not consider whether a dismissal was proper
in the first place, which is the core issue here. Id. at 312–13.

¶17           In fashioning a remedy in this case, the superior court
addressed defense counsel’s claim that she would have more thoroughly
questioned Officer M.B. regarding his recording practices in a pretrial
interview by ordering the prosecutor to immediately arrange a defense
interview of the victim. The court could have reasonably concluded that
allowing defense counsel additional time to interview Officer M.B.
ameliorated any prejudice from the prosecutor’s inadvertent statutory
breach. Given defense counsel’s extensive and thorough cross-examination
of Officer M.B. at trial, and the interview’s collateral scope, the court also
could have reasonably concluded the prosecutor’s breach was harmless.
The superior court acted well within its discretion by denying Mainez’s
motion for mistrial.

II.    THE SUPERIOR COURT’S RESPONSE TO THE                             JURY
       DELIBERATION QUESTION WAS HARMLESS ERROR.

¶18          Mainez also contends that the superior court improperly
responded to a jury question without notifying the parties.

¶19           Shortly after noon on August 3, 2016, the jurors retired to
deliberate. After deliberating for approximately two and one-half hours,
the jurors returned guilty verdicts on all counts. While deliberating, the
jurors submitted a question to the court, “What is a hostile witness?” The
superior court responded in writing, “The law given is in the instructions.
Follow the instructions.”

¶20          “The general rule in Arizona is that reversible error occurs
when a trial judge communicates with jurors after they have retired to


                                      5
                            STATE v. MAINEZ
                           Decision of the Court

deliberate unless the defendant and counsel have been notified and given
an opportunity to be present.” State v. Dann, 220 Ariz. 351, 368, ¶ 86 (2009).
“Erroneous jury communications do not require reversal, however, if it can
be said beyond a reasonable doubt that the defendant was not prejudiced
by the communication.” Id.

¶21           Here, the superior court erred by communicating with the
jurors without notifying counsel. The error does not warrant reversal,
however, because the court’s written communication merely referred the
jurors to the final instructions without “impart[ing] any erroneous
information,” and therefore caused no prejudice. State v. Shumway, 137
Ariz. 585, 588 (1983); see also State v. Sammons, 156 Ariz. 51, 57 (1988)
(concluding superior court’s ex parte communication that the jurors had
“received all the instructions relevant to th[e] case” was harmless,
specifically noting “that the judge’s response was in writing and added
nothing to the settled instructions which had been given”).

                               CONCLUSION

¶22          For the reasons set forth above, we affirm Mainez’s
convictions and sentences.




                            ADz M. WKK • Clerk of the ourt
                            FILED:    JT

                                        6
