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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                MARK RUSSELL HENDERSON, Appellant.

                             No. 1 CA-CR 16-0467
                               FILED 7-18-2017


          Appeal from the Superior Court in Maricopa County
                       No. CR2015-1343412-002
          The Honorable Virginia L. Richter, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Michael J. Dew, Phoenix
By Michael J. Dew
Counsel for Appellant
                         STATE v. HENDERSON
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Samuel A. Thumma joined.


H O W E, Judge:

¶1           Mark Russell Henderson appeals his conviction and sentence
for one count of forgery. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In July 2015, Henderson and another man walked into a Wells
Fargo bank to each cash a check. Because Henderson did not have an
account with the bank, the bank required him to sign in with a personal
banker to verify the check’s authenticity, as was routine for all customers
who did not bank with Wells Fargo. Henderson handed the banker the
check, which stated was from “Destiny Trucking LLC,” to Henderson for
$793.99. The check’s memo line simply stated “Cargo Driver/AZ to PA.”

¶3            As part of her verification process, the banker looked at the
last three months’ worth of checks issued by Destiny Trucking. The banker
noticed that Henderson’s check was different than those that the company
had previously issued. For example, the check was printed on different
stock than past checks, had a different signature, and was typed instead of
handwritten. Additionally, Henderson’s check lacked an image of a truck
which was present on the other checks that Destiny Trucking issued.

¶4            Because Henderson’s check was so different, the banker told
Henderson that she needed to take it to her manager for a second look.
Henderson responded that the company had told him that he was going to
have a hard time verifying it. Upon receiving the check from the banker,
the manager called the trucking company to ask whether it authorized the
check. The company’s sole owner, who had the sole hiring and accounting
authority, stated that he did not authorize the check and that he did not
know Henderson or hire anyone to drive from Arizona to Pennsylvania.
Accordingly, the manager called the police.

¶5              By the time the officers had arrived, Henderson had moved
to the teller line. The officers, who had received a description of Henderson
and what he was wearing, saw him in the line and immediately called him


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                           Decision of the Court

over. Henderson obliged, getting out of line, walking straight to one of the
officers, turning around, and putting his hands behind his back. The officers
then put Henderson in the back of a police car, where he told an officer that
he was at the bank to tend to “business matters.” The State charged
Henderson with one count of forgery. The State alleged that Henderson had
one historical prior conviction. The State also alleged several aggravating
circumstances.

¶6             At his jury trial, from which Henderson absented himself
after jury selection, the State called one of the arresting officers during its
case-in-chief. The State asked the officer what Henderson’s demeanor was
after placing him in custody and when interviewing him. The officer
responded that Henderson “seemed defeated, like he admitted that he—he
didn’t want to go to jail and he knew he messed up.” At a sidebar on an
unrelated subject held not long after this testimony, Henderson told the
court that he wanted to question the officer about the statement that he said
Henderson made and its relation to Henderson’s invocation of his Miranda1
rights.

¶7            Out of the jury’s presence, the officer, in response to a
question from Henderson, admitted that at some point during the
investigation at the bank, he found that Henderson had marijuana on him.
Henderson asked the officer whether Henderson made the statement about
messing up and not wanting to go to jail before or after the officer found
Henderson’s marijuana. After initially saying that he was unsure, the officer
stated that he believed that Henderson said it “instantaneously” after the
marijuana was found. The officer explained that Henderson invoked his
Miranda rights after all of that had occurred, so he then ended the interview.
On cross-examination, however, the officer stated that Henderson did not
make the statements immediately after the marijuana was found, but a
minute or two after. He further testified that he understood Henderson’s
statements as “I’m going to jail no matter what. You know, you don’t need
me to say anything reference [sic] the bank incident. I could go to jail on
that bag alone.” The officer stated that he did not interpret Henderson’s
comment to relate only to the marijuana, but to both offenses.

¶8             Based on this testimony, the trial court concluded that the
officer had not intentionally misled the jury regarding the context of
Henderson’s statements, but just understood the statements to refer
generally to his wrongdoing. Nevertheless, the court stated that it would
instruct the jury to disregard the statements that the officer said Henderson

1      Miranda v. Arizona, 384 U.S. 436 (1966).


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                           Decision of the Court

made. The court believed that the instruction would adequately “cure[] any
misconception that the jury might have about the strength of those
statements, in terms of [the] charge that he’s facing here in this case.” The
court stated that this was especially so because the jury did not know that
forgery and possession of marijuana were separate charges, so it could not
make the determination of which incident the statements referred to if the
court allowed the testimony to stand.

¶9              Henderson, however, then moved for mistrial, arguing that
the officer’s testimony was misleading because the statement referred to the
marijuana, not the forgery charge. Henderson further stated that the
curative instruction would not allow him to cross-examine the officer about
the statement and that the testimony was prejudicial. In response, the State
argued that the curative instruction would suffice if the court believed that
the testimony was misleading. The court stood by its ruling, concluding
that the curative instruction to disregard the testimony sufficiently
ameliorated any prejudice that the testimony might have caused and, at
Henderson’s request, agreed to specifically repeat the statement that the
jury should disregard when giving the instruction.

¶10             Later, during redirect examination—and in response to
questioning on cross-examination about whether Henderson ran away or
left the building during this time—the State asked what Henderson’s
demeanor was when the officers arrived. Consistent with the police body
camera video footage presented to the jury, the officer stated that
Henderson looked down, walked toward the officer, turned around, and
put his hands behind his back. The State then asked if that behavior was
typical for someone being arrested, to which the officer replied, “No, it is
not. Well, it is if they are guilty and they have nowhere to go. The gig is up.
Yes, they are giving up. Knowing they messed up and committed a crime,
it is typical.” At the end of the State’s examination, the court took questions
from the jury.

¶11           One juror asked whether Henderson asked the officer any
questions, “like why is he being taken into custody?” The officer responded
that he did not, nor did he protest the arrest. Another juror asked if
Henderson ever admitted to committing the forgery when the officer
interviewed him. The officer responded that he did not, and that he “only
asked a couple of questions before he asked for a lawyer.” Henderson
immediately objected and moved for a mistrial based on the officer’s
mention of Henderson’s invocation, arguing that it caused bias. The State
agreed that the testimony should be stricken, but argued that a mistrial was
unnecessary. The trial court denied Henderson’s motion for mistrial,


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                           STATE v. HENDERSON
                            Decision of the Court

concluding that it did not believe that the statements drew attention to the
invocation of Henderson’s rights.

¶12            After the State rested its case-in-chief, the court, the State, and
Henderson discussed the final jury instructions. Henderson then asked the
court to add a curative instruction requiring the jury to disregard the
officer’s testimony regarding Henderson’s invocation, or in the alternative,
to declare a mistrial. The court stated that it would review the testimony
and decide whether a curative instruction was necessary. Henderson also
wanted the court to instruct the State to not mention the officer’s statement
that being quiet and turning around to be arrested is typical behavior of
guilty people. Regarding that comment, Henderson stated that a curative
instruction to the jury was not needed. The State agreed that a curative jury
instruction was unnecessary for that comment and agreed to not mention it
in its closing argument.

¶13           Before the parties made their closing statements, Henderson
again moved for mistrial based on the officer’s mentioning of Henderson’s
invocation. He argued that the totality of the circumstances—namely, the
instances from which he previously moved for mistrial and the officer’s
statements about the typical behavior of guilty people—warranted a
mistrial because of the bias and prejudice Henderson suffered.
Alternatively, Henderson asked for an express curative instruction on the
comments that the jury could not consider as evidence. But the trial court
again denied Henderson’s motion, stating that the statement, alone or
together with the officer’s other statements, did not affect the proceedings
such that Henderson could not receive a fair trial. The court did, however,
agree to give the curative instruction to the jury that it could not consider
the statement and advising that because Henderson was entitled to an
attorney, his request for one could not be used to determine guilt or
innocence.

¶14           After deliberating, the jury convicted Henderson and found
that the State had proved two aggravating circumstances. The trial court
sentenced Henderson to a presumptive term of 4.5 years’ imprisonment
with 108 days’ pre-sentence incarceration credit. Henderson timely
appealed.

                                DISCUSSION

¶15           Henderson argues that the trial court erred by failing to grant
a mistrial. We review the trial court’s denial of a motion for mistrial for an
abuse of discretion. State v. Hardy, 230 Ariz. 281, 292 ¶ 52 (2012). In doing



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                           STATE v. HENDERSON
                            Decision of the Court

so, we bear in mind that a mistrial is the “most dramatic” sanction that
should be granted only when it appears that justice cannot be done unless
the court discharges the jury and grants a new trial. State v. Herrera, 203
Ariz. 131, 134 ¶ 4 (App. 2002). In considering whether to grant a mistrial
based on a witness’s testimony, the trial court must (1) determine whether
the testimony called to the jury’s attention matters that it would not be
justified in considering in reaching its verdict and (2) consider, under the
case’s circumstances, the probability that the testimony influenced the
jurors. State v. Lamar, 205 Ariz. 431, 439 ¶ 40 (2003). Because the trial court
is in the best position to determine whether the alleged error actually
affected the outcome of the trial, we defer to it and will not reverse its ruling
unless the error was clearly injurious. State v. Jones, 197 Ariz. 290, 304 ¶ 32
(2000); State v. Williams, 209 Ariz. 228, 239 ¶ 47 (App. 2004).

¶16           Henderson argues first that the trial court erred by not
granting a mistrial when the officer impermissibly commented on
Henderson’s post-arrest, pre-Miranda silence by “volunteering” testimony
on Henderson’s quiet demeanor upon arrest—behavior that he believed
was typical of a guilty person. He contends that commenting on
Henderson’s pre-Miranda silence violated his Fifth Amendment rights. The
Fifth Amendment to the United States Constitution provides that no person
“shall be compelled in any criminal case to be a witness against himself.”
Use of a defendant’s silence as evidence of guilt violates his Fifth
Amendment rights. State v. VanWinkle, 229 Ariz. 233, 236–37 ¶ 15 (2012). A
defendant’s right to due process may also be violated when a witness
introduces a statement that the defendant asserted his right to remain silent.
Doyle v. Ohio, 426 U.S. 610, 617 (1976).

¶17            First, Henderson has not shown that the trial court abused its
discretion by denying Henderson’s motion for mistrial after the officer’s
first statement that Henderson stated that he had “messed up.” Henderson
did not initially object to the testimony. After Henderson later requested
and conducted a voir dire, the trial court concluded that allowing the jury
to consider the statement without knowing about the separate marijuana
charge would be misleading. However, it believed that a curative
instruction would sufficiently ameliorate any prejudicial influence the
statement could have on any jury “misconception . . . about the strength of
the statements”—a determination that it was in the best position to make.
See Jones, 197 Ariz. at 304 ¶ 32. At Henderson’s request, the court agreed to
specifically repeat in its instruction the specific phrase that the jury was to
disregard and not consider as evidence. We presume that juries follow the
court’s instructions. State v. Dann, 205 Ariz. 557, 570 ¶ 46 (2003). Thus, the
court did not abuse its discretion. See Lamar, 205 Ariz. at 439 ¶ 43


                                       6
                          STATE v. HENDERSON
                           Decision of the Court

(concluding that the curative instruction sufficiently overcame any
probability that the jury would consider the officer’s improper testimony).

¶18            Second, Henderson has not shown that the court abused its
discretion by not granting a mistrial after the officer testified about
Henderson’s quiet demeanor when he was being arrested because the
testimony did not call matters to the jury’s attention that it would not be
justified in considering when reaching its verdict. The officer described
Henderson’s demeanor, not on his own accord, but in response to a redirect
question about Henderson’s demeanor when being arrested. The officer’s
testimony was neither a comment on Henderson’s silence or evidence of his
guilt, but described Henderson’s conduct during the arrest. Cf. VanWinkle,
229 Ariz. at 234 ¶ 4 (explaining that the prosecutor introduced evidence of
defendant’s silence upon being accused of the crime by someone at the
crime scene and “argued to the jury that this was a tacit admission of guilt”).
Looking at the case’s circumstances as a whole, the State introduced and
the jury saw body camera video footage of Henderson’s arrest, which
clearly shows Henderson getting out of the teller line when called, walking
straight to the officer, turning around, and placing his hands behind his
back without saying anything. The officer did not testify to anything
different from or beyond what was clearly visible in the video. Thus, the
jury could still consider the evidence of and judge Henderson’s demeanor
and conduct from the video even if the officer had not testified about it and
the trial court did not err by not granting a mistrial.

¶19            Third, the officer’s subsequent statement about Henderson’s
behavior as being consistent with that of a guilty person who knew they
had “messed up” also did not mandate a mistrial. A witness’s statement
about belief in a defendant’s guilt does not necessarily warrant a mistrial.
State v. Moody, 208 Ariz. 424, 456 ¶ 126 (2004). Here, the officer’s testimony
described generally behavior typical of someone who has committed a
crime; he did not specifically state that Henderson acted or said he was
guilty. In fact, Henderson did not move for mistrial when the officer made
this statement, nor did he request a curative instruction. Instead,
Henderson only asked that the prosecutor agree to not mention that
comment in his closing statement. Accordingly, the trial court did not err.

¶20           To the extent that Henderson argues that the officer’s first
statement that Henderson said he “messed up,” the officer’s testimony
about Henderson’s quiet demeanor when he was arrested, and opinion that
it was consistent with the behavior of a guilty person who knows he has
“messed up” constitutes cumulative error, his argument fails. Except for in
cases of prosecutorial misconduct, Arizona does not recognize cumulative


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                          STATE v. HENDERSON
                           Decision of the Court

error because “something that is not prejudicial error in and of itself does
not become such error when coupled with something else that is not
prejudicial error.” State v. Roscoe, 184 Ariz. 484, 497 (1996). Because none of
the three instances above in and of itself constitutes prejudicial error, the
three together do not constitute cumulative prejudicial error. Regardless,
Henderson has failed to sufficiently develop this argument. See Ariz. R.
Crim. P. 31.13(c)(1)(vi) (requiring each contention raised on appeal to
include citations with authorities, parts of the record relied on, and the
reasons for the argument).

¶21           Henderson next argues that the court erred by denying his
motion for mistrial after the officer stated that he only asked Henderson a
few questions before he invoked his Miranda rights. In denying
Henderson’s motion for mistrial, the court viewed the statement in the
context of the case as a whole and determined that the officer’s statements
did not draw attention to Henderson’s invocation of his rights. Because the
trial court is in the best position to make this finding, we defer to its
conclusion. Despite its finding, the court gave a detailed jury instruction to
disregard the statement because Henderson had a right to speak to a
lawyer. The court explained that any person is entitled to have an attorney’s
help and that evidence of getting that help could not be used to determine
guilt or innocence. We presume that the jury followed the trial court’s
instruction. Dann, 205 Ariz. at 570 ¶ 46. Thus, the court did not abuse its
discretion by denying Henderson’s motion for mistrial.

                               CONCLUSION

¶22           For the foregoing reasons, we affirm.




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




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