State v. Mills

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TYLER RICHARD MILLS, Appellant.

No. 1 CA-CR 18-0403
FILED 7-18-2019

Appeal from the Superior Court in Maricopa County
No. CR2014-156859-001
The Honorable David O. Cunanan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By William Scott Simon
Counsel for Appellee

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

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Maria Elena Cruz joined.

M O R S E, Judge:

¶1 Tyler Richard Mills appeals his convictions and sentences for
possession of narcotic drugs for sale, possession of drug paraphernalia,
conspiracy, forgery, and other related offenses. Mills argues that the trial
court erred when it denied his motion for a mistrial after two jurors
conversed with representatives from the State. Mills also challenges a count
of possession of drug paraphernalia as duplicitous. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 In May 2014, Mills was evicted from a hotel after he violated
hotel policy. Hotel employees notified police after they discovered
suspected heroin and drug paraphernalia in the room that Mills had
occupied. Subsequently, police found heroin, $200 in counterfeit currency,
$990 in real currency, and multiple items of drug paraphernalia, including
two digital scales. Mills was arrested and charged with multiple counts,
including possession of drug paraphernalia for the scales. After a three-day
trial, the jury found Mills guilty of all counts. The trial court sentenced Mills
to concurrent presumptive terms in the Arizona Department of Corrections.

¶3 Mills timely appealed, and we have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

1 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

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DISCUSSION

Juror Misconduct

¶4 Mills argues that the trial court erred by denying his motion
for a mistrial after the prosecutor and the State's case agent briefly spoke
with two jurors. We review a trial court's denial of a motion for a mistrial
for an abuse of discretion. State v. Garcia, 141 Ariz. 580, 583 (App. 1984).

¶5 On the second day of trial, the prosecutor alerted the court to
two brief conversations that had occurred between jurors and agents for the
State. The prosecutor explained that he was in the elevator with juror
number 4 and responded when the juror asked how old he was and how
long he had worked for the county. When the prosecutor recognized that
she was a juror on the case, he explained that he could not talk with the
juror. The prosecutor also told the court that juror number 12 conversed
with the State's case agent about the morning commute before the case
agent walked into the courtroom.

¶6 The trial judge questioned the jurors separately. Both jurors
admitted to speaking to the State's representatives but denied discussing
the case with them. Juror number 4 added she was just being "social," but
realized it was inappropriate after the prosecutor "scolded" her. Defense
counsel requested a mistrial based on these conversations. The court
denied the request because the questions asked by the jurors did not affect
the case, were just "general questions you would ask anybody," and did not
cause prejudice to Mills. The judge later admonished the entire jury panel
about engaging in any conversation—even "pleasantries"—with parties or
witnesses.

¶7 Conversation between a juror and a witness should be
avoided to ensure the defendant has a fair and impartial trial. See State v.
Vasquez, 130 Ariz. 103, 106-07 (1981). But "improper juror communication
with a witness during trial is not grounds for mistrial unless the defense
establishes that the misconduct was prejudicial or prejudice may be fairly
presumed." State v. Apodaca, 166 Ariz. 274, 276 (App. 1990).

¶8 Here, the conversations between the jurors and the State were
unrelated to the case, brief in length, and social in nature. See Vasquez, 130
Ariz. at 107 ("Idle conversation relating to subjects unrelated to the case is
generally not grounds for a mistrial."); State v. Medina, 232 Ariz. 391, 408, ¶
67 (2013) (finding no error "[g]iven the brevity of the contact between the
juror and the victim's daughter and the absence of any discussion
concerning the case or the defendant"). Acknowledging that the jurors'

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behavior was not to be condoned, the trial judge determined that the
conversations did not touch on the trial and, therefore, did not prejudice
Mills. Because the trial judge was in the best position to asses these
remarks, we find no abuse of discretion. See Apodaca, 166 Ariz. at 277 (trial
judge was in best position to find that jurors' remarks to State's witness did
not prejudice the defendant).

Duplicitous Indictment and Duplicitous Charge

¶9 Count 3 of the indictment charged Mills with using or
possessing "scale(s)," or drug paraphernalia. Mills argues that the count's
lack of specificity between a singular scale or multiple scales resulted in a
duplicitous indictment and a duplicitous charge such that "the real
possibility of a non-unanimous jury verdict existed." Because Mills failed
to raise these objections at trial, we review for fundamental error only. See
State v. Hargrave, 225 Ariz. 1, 11, ¶ 28 (2010). To establish fundamental error,
Mills must show error that either (1) went to the foundation of his case, (2)
denied him a right essential to his defense, or (3) was so egregious as to
deny the possibility of a fair trial. State v. Escalante, 245 Ariz. 135, 142, ¶ 21
(2018). Under the first two prongs, the defendant also bears the burden of
showing prejudice. Id.

¶10 An indictment is duplicitous if it charges "two or more
distinct and separate offenses in a single count." State v. Klokic, 219 Ariz.
241, 243, ¶ 10 (App. 2008). An indictment is not duplicitous "if a count
alleges only one offense, even if that offense may be committed in different
ways." State v. O'Laughlin, 239 Ariz. 398, 400, ¶ 5 (App. 2016). Similarly, a
charge is duplicitous when the indictment lists one criminal act, but
evidence of multiple criminal acts is introduced at trial to prove the charge.
Klokic, 219 Ariz. at 244, ¶ 12.

¶11 Assuming for argument's sake that the indictment or charge
was duplicitous, Mills has not demonstrated fundamental error. When the
indictment was read to the jury after it was empaneled, the court used only
the plural "scales," and did not include any alternative reference to
"scale(s)." During trial, the distinction between one or two scales was
irrelevant to Mills' defense that he did not possess the heroin, scales and
other drug-related items found in the hotel room. More importantly, and
contrary to Mills' suggestion that the verdict may have not been
unanimous, the verdict form did not reflect any ambiguity between the

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singular and plural, and indicated only the plural "scales."2 Thus, even
assuming error, Mills has not demonstrated fundamental error because he
has failed to show that an error went to the foundation of his case, interfered
with his defense, or denied the possibility of a fair trial. See State v.
Anderson, 210 Ariz. 327, 336, ¶ 19, n.6 (2005) (noting that jury verdicts can
moot any possibility of non-unanimity).

CONCLUSION

¶12 For the foregoing reasons, we affirm Mills' convictions and
sentences.

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

2 Appellant's brief incorrectly stated that the verdict form reflected
"Scale(s)." We have reviewed the signed verdict form and it stated the
plural, "[t]o wit: Scales."

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