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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 LARRY THOMAS JERNIGAN, Appellant.

                             No. 1 CA-CR 15-0171
                               FILED 10-11-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-103109-001
                 The Honorable Bruce R. Cohen, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

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



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Patricia A. Orozco and Judge Jon W. Thompson joined.


S W A N N, Judge:

¶1             Larry Thomas Jernigan (“Defendant”) appeals his convictions
and sentences for one count of robbery, one count of burglary in the first
degree, and two counts of aggravated assault. He contends the trial court
erred when it (1) admitted evidence of a prior altercation between
Defendant and another person, (2) failed to hold a voluntariness hearing,
(3) admitted evidence of a photographic lineup, and (4) denied a mistrial
based on prosecutorial misconduct. He also contends that the evidence was
insufficient to support his convictions. For the following reasons, we affirm
Defendant’s convictions and sentences.

                FACTS1 AND PROCEDURAL HISTORY

¶2            The two victims were the mother and aunt of “Son.”
Defendant forced his way into the victims’ home after the mother answered
the front door, believing that the person at the door had an emergency.
Defendant told the victims that Son had taken his gun and demanded that
the victims return it. The victims did not know about Defendant’s earlier
disagreement with Son about a gun.

¶3             Defendant refused to leave and eventually attacked the
victims, both of whom fought back. Defendant repeatedly struck both
victims on the face and head with a jack handle he took from one of the
victims. Defendant took a cell phone, two purses and money when he
finally left. Defendant’s defense at trial was that he went to the residence
to retrieve his backpack, and he acted only in self-defense after the victims
attacked him. Defense counsel argued that Defendant’s actions were
necessary to escape the house alive.


1       “We construe the evidence in the light most favorable to sustaining
the verdict, and resolve all reasonable inferences against the defendant.”
State v. Greene, 192 Ariz. 431, 436, ¶ 12 (1998). In our review of the record,
we resolve any conflict in the evidence in favor of sustaining the verdict.
State v. Guerra, 161 Ariz. 289, 293 (1989).


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                           STATE v. JERNIGAN
                           Decision of the Court
¶4            The state charged Defendant with two counts each of
aggravated assault, armed robbery, and kidnapping, and one count of
burglary in the first degree. The state also charged Defendant with
misconduct involving weapons, but the court severed this count before
trial. The trial court granted the state’s motion to dismiss one count of
armed robbery mid-trial.

¶5             Defendant filed a pretrial motion in limine to exclude
evidence of an altercation with Son. During the hearing on the motion,
Defendant agreed that if the trial court severed the count of misconduct
involving weapons, he would have no objection to the admission of the
evidence and would even stipulate to the basic facts of the prior altercation.
When the court severed the count, Defendant suggested that rather than
stipulate to the evidence, the parties could simply introduce evidence of the
prior altercation through one of the investigating officers. By the time of
trial, however, the parties had agreed to stipulate to the evidence. The trial
court read the stipulation before the state’s opening statement. The
stipulation read:

       The agreement of the parties is on January 1st, 2014, at
       approximately 20 minutes before the incident at [the mother’s
       home], there was an altercation between [Son] and
       [Defendant] over a handgun. This altercation occurred at
       6800 West Heatherbrae Drive.

The state and Defendant both referenced the stipulation in their opening
statements. Defendant referenced the prior altercation again in his cross-
examination of Son’s mother and at least four times in his closing argument.

¶6           The jury acquitted Defendant of both counts of kidnapping.
The jury found Defendant guilty of the remaining counts; the trial court
sentenced him to an aggregate term of eleven years’ imprisonment.
Defendant appeals.

                               DISCUSSION

I.     SUFFICIENCY OF THE EVIDENCE

¶7            Defendant argues the evidence was insufficient to support his
convictions. He does not address the elements of the offenses, does not
discuss the evidence in the context of those elements, and does not argue
that the state presented no testimony or other evidence to support each
element of each offense. Defendant instead attacks the victims’ credibility.
He asserts that “[t]he testimony of the witnesses, taken as a whole, was



                                      3
                           STATE v. JERNIGAN
                           Decision of the Court
inconsistent at best, and possibly even unbelievable.” He also argues the
victims’ testimony differed from their statements to investigators and that
the medical evidence did not support their claims.

¶8            “Reversible error based on insufficiency of the evidence
occurs only where there is a complete absence of probative facts to support
the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (citation
omitted). “To set aside a jury verdict for insufficient evidence, it must
clearly appear that upon no hypothesis whatever is there sufficient
evidence to support the conclusion reached by the jury.” State v. Arredondo,
155 Ariz. 314, 316 (1987).

¶9            A person commits aggravated assault if he commits assault
with a deadly weapon or dangerous instrument. A.R.S. § 13-1204(A)(2). A
person commits robbery if he takes the property of another from the other’s
person or immediate presence against the other’s will and does so by
threatening or using force against any person with the intent to coerce
surrender of the property or prevent resistance to taking or keeping the
property. A.R.S. § 13-1902(A). Finally, a person commits first degree
burglary if he commits burglary in the second degree while knowingly
possessing a deadly weapon or dangerous instrument. A.R.S. § 13-1508(A).
A person commits burglary in the second degree if he enters or remains
unlawfully in a residential structure with the intent to commit a theft or
felony therein. A.R.S. § 13-1507(A).

¶10            The evidence cited above was sufficient to support
Defendant’s convictions beyond a reasonable doubt. And the victims’
credibility “is an issue to be resolved by the jury.” Soto-Fong, 187 Ariz. at
200 (citation omitted). “Because a jury is free to credit or discredit
testimony, we cannot guess what they believed, nor can we determine what
a reasonable jury should have believed.” State v. Bronson, 204 Ariz. 321, 328,
¶ 34 (App. 2003) (citation omitted). We find no reversible error.

II.    THE PRIOR ALTERCATION

¶11           Defendant contends the trial court erred when it admitted
evidence of the prior altercation between Defendant and Son over a gun.
When a defendant informs a trial court not only that he does not object to
the admission of evidence, but that the evidence is admissible, the
defendant may not raise that issue on appeal. State v. Pandeli, 215 Ariz. 514,
528, ¶ 50 (2007). Defendant did not merely tell the trial court the evidence
was admissible, he stipulated to its admission and then used the evidence
to support his defense. He has waived appellate review of this issue.
Further, even if there was any error, it was invited. Id. And “[i]f error is


                                      4
                            STATE v. JERNIGAN
                            Decision of the Court
invited, we do not consider whether the alleged error is fundamental.”
State v. Logan, 200 Ariz. 564, 565, ¶ 9 (2001).

III.    THE FAILURE TO HOLD A VOLUNTARINESS HEARING

¶12           Defendant asserts the trial court erred when it failed to hold a
hearing to determine whether his statements to a detective were voluntary.
Defendant contends his statements were not voluntary because the
detective used deceptive tactics to cause him to have further contact with
the detective after he asked for an attorney.2

¶13           The failure to move to suppress statements or object to their
admission at trial waives any error. State v. Sutton, 115 Ariz. 417, 420 (1977).
Defendant did not file a motion to suppress his statements, nor did he object
to their admission. Indeed, he used many of his statements to the detective
in support of his defense. Because Defendant did not testify, his statements
to the detective were the sole evidence for his defense.

¶14           Regardless, Defendant argues his failure to move to suppress
or object is unimportant because the trial court should have held a
voluntariness hearing sua sponte. He argues that the court was required to
do so because Arizona law presumes that a defendant’s statements to law
enforcement personnel are involuntary. See State v. Emery, 131 Ariz. 493,
498 (1982). He further argues that A.R.S. § 13-3988(A) requires a trial court
to hold a voluntariness hearing sua sponte in all cases in which the state
seeks to admit a defendant’s statements to law enforcement personnel,
regardless of whether the defendant seeks to suppress or otherwise objects
to those statements.

¶15           Arizona law, however, does not require a trial court to hold a
voluntariness hearing sua sponte absent a defendant’s request for a hearing
or objection to the admission of the statement. State v. Finn, 111 Ariz. 271,
275 (1974). A.R.S. § 13-3988(A) provides only that a trial court determine



2      Nothing in the record supports Defendant’s claims of
involuntariness or deceptive tactics. Neither party offered this portion of
the interview into evidence, the interview is not otherwise in the record on
appeal, and his request for counsel and subsequent initiation of further
contact were not addressed in any detail with any witness. The record
shows only that a detective testified that Defendant requested counsel at
the beginning of the interview and then engaged in further contact with the
detective.



                                       5
                            STATE v. JERNIGAN
                            Decision of the Court
“any issue as to voluntariness” out of the presence of the jury before the
court admits the statement into evidence.3

¶16           There is no “issue as to voluntariness” until a defendant
places voluntariness in issue, and a defendant has the burden to raise issues
regarding voluntariness and compliance with Miranda. See, e.g., State v.
Alvarado, 121 Ariz. 485, 487-88 (1979); State v. Anaya, 170 Ariz. 436, 443 (App.
1991). Until the defendant seeks to suppress the statements or otherwise
objects to their admission, the state has no burden to prove a defendant’s
statements were voluntary. State v. Wilson, 164 Ariz. 406, 407 (App. 1990).4
And a defendant need only file a timely motion to suppress or make a
timely objection to place the burden of persuasion on the state. Ryan v.
Superior Court (City of Phoenix), 121 Ariz. 385, 387 (1979). Until the
defendant does so, the trial court is not required to hold a voluntariness
hearing.5 We find no error.

IV.    EVIDENCE OF THE PHOTOGRAPHIC LINEUP

¶17          Defendant argues that the trial court erred when it admitted
testimony that the two victims identified Defendant in photographic
lineups. He argues that the photographic lineup police showed the victims
was unduly suggestive and tainted their in-court identifications.

¶18           Defendant did not object to the testimony at issue but objected
to the admission of the photographic lineup itself because of an alleged
disclosure violation.6 During the discussion of disclosure, Defendant
alleged the lineup was suggestive. But he also argued the lineup was

3     The word “confession” as used in A.R.S. § 13-3988 means any
confession of guilt or self-incriminating statement. A.R.S. § 13-3988(C).

4      Absent an objection to the admission of a defendant’s statements,
there is no constitutional requirement that the court hold a voluntariness
hearing. Wainwright v. Sykes, 433 U.S. 72, 86 (1977); State v. Fayle, 134 Ariz.
565, 579-80 (App. 1982).

5      Defendant’s reliance on State v. Montes to support his argument to
the contrary is unavailing because the defendant in Montes raised the issue
of voluntariness. 136 Ariz. 491, 496 (1983).
6     Nothing in the record supports Defendant’s claim that the state
conceded it failed to disclose the lineup.




                                       6
                           STATE v. JERNIGAN
                           Decision of the Court
irrelevant because he was not presenting a defense of alibi or mistaken
identity nor challenging that he was the person involved in the altercation
with the victims. The court agreed with Defendant that identity was not an
issue. The trial court sustained the objection and excluded the lineup.7

¶19            First, the court did not admit the photographic lineup into
evidence and it is not otherwise in the record on appeal. Therefore, nothing
in the record supports Defendant’s claim that the photographic lineup was
unduly suggestive. While the trial court criticized the quality of the lineup,
it did not find the lineup was unduly suggestive, and we will not speculate
that it was so based solely on general criticisms. Second, Defendant not
only did not challenge the in-court identifications, he argued that the
pretrial identifications were unimportant because he did not contest the
validity of the in-court identifications. If a defendant does not challenge an
in-court identification at trial, we presume any pretrial identification
procedure did not taint the in-court identification. State v. Dessureault, 104
Ariz. 380, 384 (1969). Finally, any error would be harmless because
Defendant did not contest that he was the person involved in the altercation
with the victims. We find no error.

¶20            Defendant contends the trial court also erred when it failed to
give a “cautionary instruction” to the jury about the unduly suggestive
nature of the lineup. Defendant did not request such an instruction and
does not identify any specific instruction the court should have given. A
cautionary jury instruction is required when a defendant presents evidence
that the pretrial identification was made under suggestive circumstances
that might cause the later identification to be of questionable reliability.
State v. Nottingham, 231 Ariz. 21, 26-27, ¶¶ 13-14 (App. 2012). There is no
such evidence here. Thus, no instruction was necessary.

V.     THE DENIAL OF THE MOTION FOR MISTRIAL

¶21          Defendant finally argues that the trial court erred when it
denied his motion for mistrial based on prosecutorial misconduct.

¶22           During the aggravation phase of trial, the state called
Defendant’s probation officer to establish that he was on probation at the
time he committed the offenses. During her testimony, the officer
explained that she took pictures of the people she supervised to help
identify them. The state showed the officer a photograph of Defendant
from the officer’s file and asked, “Is that what we’re looking at when we’re

7     Despite Defendant’s claims, the trial court did not exclude the lineup
because it was unduly suggestive.


                                      7
                            STATE v. JERNIGAN
                            Decision of the Court
looking at Exhibit number 86?” The officer responded, “Yes. This wouldn’t
have been the first meeting, this would have been a meeting, the day of it,
would have been after he was released from jail for violating his probation.”

¶23            Defendant objected and moved for a mistrial, arguing that the
state should have warned the witness not to reference jail or the probation
violation. Defendant, however, did not argue at the trial court that the
prosecutor engaged in misconduct. The court took Defendant’s motion for
mistrial under advisement, struck the answer, instructed the jury to
disregard it, and informed them it had no relevance to any issue they had
to decide. The trial court held there was no prosecutorial misconduct,
noting that the probation officer’s answer was not responsive to the state’s
question or the general line of inquiry.

¶24            The court ultimately denied the motion for mistrial. It held
that the probation’s officer testimony did not deny Defendant a fair trial on
the aggravating circumstances and noted that the jury had already
determined Defendant’s guilt. The court reasoned that the jury was no
more inclined to find aggravating circumstances knowing that Defendant
had been in jail for violating the terms of his probation than if they knew
only that he was on probation when he committed the offenses. When the
jury returned its verdicts on the aggravating circumstances, it found the
state failed to prove five of the alleged aggravating circumstances. This
convinced the trial court that the probation officer’s testimony had no
prejudicial impact and that the jury did, in fact, disregard it.

¶25            The decision to deny a motion for mistrial is error only if it
was a clear abuse of discretion. State v. Murray, 184 Ariz. 9, 35 (1995). We
will reverse the trial court’s decision only if it was “palpably improper and
clearly injurious.” Id. (citation omitted). This is because the trial judge is in
the best position to determine whether a particular incident calls for a
mistrial. State v. Koch, 138 Ariz. 99, 101 (1983). The trial judge is aware of
the atmosphere of the trial, the circumstances surrounding the incident, the
manner in which a witness made any objectionable statement, and its
possible effect on the jury and the trial. See id. “When a witness
unexpectedly volunteers an inadmissible statement, the remedy rests
largely within the discretion of the trial court.” State v. Marshall, 197 Ariz.
496, 500, ¶ 10 (App. 2000).

¶26           Regarding the alleged misconduct, we likewise will not
reverse the denial of a mistrial based on prosecutorial misconduct absent a
clear abuse of discretion. State v. Lee, 189 Ariz. 608, 616 (1997). Prosecutorial
misconduct is not merely “legal error, negligence, mistake or insignificant
impropriety, but, taken as a whole, amounts to intentional conduct which


                                       8
                           STATE v. JERNIGAN
                           Decision of the Court
the prosecutor knows to be improper and prejudicial.” Pool v. Superior
Court (State of Arizona), 139 Ariz. 98, 108-09 (1984).

¶27           We find no abuse of discretion. First, there was no
prosecutorial misconduct. The probation officer’s statement that a
photograph “[w]ould have been after he was released from jail for violating
his probation” was not in response to any question from the state, and the
prosecutor did nothing to elicit the testimony. Second, nothing suggests
the incident otherwise required a mistrial. The incident occurred during
the aggravation phase after the jury had already determined Defendant’s
guilt and heard evidence that he was on probation at the time he committed
the offenses. That the jury was exposed to additional information that he
had been arrested and later released for violating his probation did not
deny him a fair trial. Finally, the trial court struck the testimony and
instructed the jury to disregard it. We presume the jury followed the court’s
instruction. State v. Dunlap, 187 Ariz. 441, 461 (App. 1996).

                              CONCLUSION

¶28          For the foregoing reasons, we affirm Defendant’s convictions
and sentences.




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




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