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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JOSEPH PAUL MCKINNEY, Appellant.

                             No. 1 CA-CR 17-0069
                               FILED 4-26-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-002339-001
                     The Honorable Erin Otis, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
                           STATE v. MCKINNEY
                            Decision of the Court

W I N T H R O P, Presiding Judge:

¶1           Joseph Paul McKinney (“McKinney”) appeals his convictions
and sentences for multiple counts of sexual abuse, sexual conduct with a
minor, and kidnapping. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In 2016, McKinney was indicted on fourteen counts related to
the sexual abuse of minors from 1991 to 1992. A nine-day trial was held in
February and March 2016 (“March Trial”), which ultimately ended in a
mistrial. McKinney was then retried in November 2016 (“November
Trial”). Before the November Trial the witnesses were informed that they
were prohibited from mentioning the March Trial. During the six-day
November Trial, however, the victim/witness, L.L., referenced the
previous trial five times.

¶3            On direct examination, the State asked L.L. whether she
remembered a conversation she had with defense counsel and she
responded, “[o]h, the last trial, yeah . . . .” McKinney then moved for a
mistrial, arguing L.L.’s reference to the prior trial was prejudicial. The State
objected, arguing a curative instruction would remedy any harm that may
have arisen from L.L.’s reference to a previous trial. The trial court denied
McKinney’s motion, finding L.L.’s brief reference to a prior trial did not
warrant a mistrial.

¶4            On cross examination, L.L. again referenced a previous trial:

       Q. Do you recall testifying previously that you [knew] there
       were times you asked him to stop, you just don’t remember
       the words?

       A. In trial or with Detective []?

                                      ...

       Q. When you were in this [therapy] group do you recall
       speaking to other people in this group about what had
       happened to you?

       A. I don’t remember ever giving any details. I didn’t really
       talk about this with any degree of detail until these trials or
       Detective [] apparently.




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                          STATE v. MCKINNEY
                           Decision of the Court

      Q. Do you recall speaking about what had happened . . .

      [A.] Sorry. I don’t remember -- I don’t remember speaking to
      anyone ever about details surrounding this until I was
      questioned by Detective [] and the trial.

                                    ...

      Q. You never told [your sister] about what had happened to
      you when you were younger?

      A. No.

      Q. Not until this whole process started?

      A. I think the first time she heard the details was at the last
      trial.

¶5             After L.L. testified, a juror asked: “Defense mentioned she
testified in another case against [McKinney] – How many others have come
forward [with] similar charges.” McKinney then renewed his motion for a
mistrial. The trial court denied McKinney’s motion and, instead, gave a
curative instruction, even though it was unclear, at times, whether L.L.’s
reference to a trial referred to the current November Trial, or the previous
March Trial. The curative instruction included McKinney’s desired
language that the jury did not return a verdict in the March Trial and read
as follows:

      You have heard testimony that [L.L.] testified at a prior trial.
      That trial involved the same charges and the same alleged
      victims that are the subject of this trial. There was no verdict
      in the prior trial and you should not guess as to why there
      was no verdict or not -- let that affect your determination of
      the issues in this case.

¶6            After deliberation, the jury found McKinney guilty on ten of
the fourteen counts. Before sentencing McKinney again moved for a
mistrial based on L.L.’s references to a previous trial. In particular,
McKinney argued the curative instruction was insufficient to overcome any
prejudice and that the instruction drew too much attention to L.L.’s
improper testimony. The court, however, denied the motion and sentenced
McKinney to over eighty years in prison with 879 days pre-incarceration
credit. McKinney filed a timely notice of appeal. We have appellate
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and


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                            STATE v. MCKINNEY
                             Decision of the Court

Arizona Revised Statutes sections 12-120.21(A)(1) (2016), 13-4031 (2010),
and 13-4033(A) (2010).

                                  ANALYSIS

¶7            On appeal, McKinney argues that the trial court abused its
discretion by denying his motion for mistrial. We review the trial court’s
denial of a motion for mistrial for an abuse of discretion. State v. Kuhs, 223
Ariz. 376, 380, ¶ 18 (2010).

¶8             A trial court should grant a motion for mistrial only if no other
remedy will correct the alleged wrong. See State v. Herrera, 203 Ariz. 131,
134, ¶ 4 (App. 2002) (finding that before granting a mistrial, the trial court
“must evaluate the situation and decide if some remedy short of mistrial
will cure the error” (quoting State v. Adamson, 136 Ariz. 250, 262 (1983))). A
mistrial based on improper trial testimony is appropriate if the witness’
testimony called the jurors’ attention to matters they are not allowed to
consider in reaching their verdict and if it was probable, under the
circumstances of the case, that the witness’ testimony influenced the jurors.
State v. Lamar, 205 Ariz. 431, 439, ¶ 40 (2003) (citation omitted). A witness’
unsolicited impermissible testimony, however, if brief, does not necessarily
require a mistrial. State v. Miller, 234 Ariz. 31, 40, ¶ 26 (2013). Further, even
if a jury hears improper testimony, the trial court need not grant a mistrial
if, after viewing the testimony “in the context of the evidence in the case as
a whole,” the court determines a curative instruction would correct the
error. State v. Dann, 205 Ariz. 557, 570, ¶ 46 (2003) supplemented, 206 Ariz.
371 (2003). See also Kuhs, 223 Ariz. at 380, ¶ 18 (finding the trial court is in
the best position to determine the impact an objectionable statement had on
the jury and on the trial (citation omitted)).

¶9             Here, although portions of L.L.’s testimony may have called
the jurors’ attention to the fact that there was a previous trial, it is unlikely
the jurors were influenced by L.L.’s brief references. Further, L.L.’s five
references to “a trial”—some of which were unclear as to whether they
referred to the March or November Trial—were the only times a previous
trial was mentioned during the six-day November Trial, at which
numerous witnesses testified. After considering the evidence presented,
and how the impermissible statements were made, the court determined
that a curative instruction would sufficiently resolve any potential error
that may have arisen from L.L.’s references to a prior trial. We agree.

¶10           The curative instruction explicitly informed the jury that there
was a prior trial involving the same charges and victims as the November



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                           STATE v. MCKINNEY
                            Decision of the Court

Trial. Further, the curative instruction included McKinney’s desired
language that no verdict was reached in the prior trial and instructed the
jury that they were prohibited from speculating as to why there was no
verdict. We presume jurors follow jury instructions unless the record
clearly indicates otherwise. State v. Felix, 237 Ariz. 280, 285, ¶ 17 (App.
2015); accord State v. Prince, 204 Ariz. 156, 158, ¶ 9 (2003). Although one
juror asked how many other victims came forward after hearing L.L.’s
references to a prior trial, this question was before the trial court gave the
curative instruction. The record does not reflect that the jury was unable or
incapable of following the court’s instruction. If anything, the record
reflects that the jury followed the court’s instructions and carefully
considered the charges and evidence because the jury acquitted McKinney
on four charges.1 Cf. State v. Stuard, 176 Ariz. 589, 600 (1993) (finding the
jury’s decision to acquit the defendant on some charges evidenced that the
jury followed the court’s precautionary instruction).

                               CONCLUSION

¶11           McKinney’s convictions and sentences are affirmed.




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




1       McKinney’s argument that the trial court violated his due process
rights by denying his motion for mistrial, resulting in his being tried by a
partial jury, likewise fails. See State v. Thomas, 133 Ariz. 533, 537 (1982)
(“[U]nless the record affirmatively shows that defendant was not tried by a
fair and impartial jury, then there is no error.” (citing State v. Zimmer, 106
Ariz. 166 (1970))). Here, the record does not support McKinney’s argument
that he was tried by a partial jury. As we previously found, the record
reflects the jury’s ability to follow the curative instruction and
independently assess the case.


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