State v. Rodriguez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TAMI HANSON RODRIGUEZ, Appellant.

No. 1 CA-CR 24-0114
FILED 03-27-2025

Appeal from the Superior Court in Maricopa County
No. CR2022-145999-001
The Honorable Scott Minder, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey D. Ball
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld, Laila Ikram
Counsel for Appellant
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MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Vice Chief Judge Randall M. Howe and Judge Andrew M. Jacobs
joined.

B A I L E Y, Judge:

¶1 Tami Hanson Rodriguez appeals her conviction and sentence
for third-degree burglary. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining
Rodriguez’s conviction and resolve all reasonable inferences against her.
See State v. Fierro, 254 Ariz. 35, 38, ¶ 2 (2022).

¶3 In October 2022, a condominium resident (“Homeowner”)
was on her patio in the middle of the night when she heard a loud bang
from the condominium complex’s mailboxes. Suspecting mail theft,
Homeowner began recording video on her phone as she walked over to the
mailboxes. There, she found a man, later identified as Kendrick Miller,
holding a bag open while Rodriguez was “shoveling” mail into it.

¶4 When Miller saw Homeowner recording them, he yelled,
“[H]urry up!” He pushed Homeowner to the ground and grabbed her
phone. Homeowner fought back, and Miller dropped the phone.
Rodriguez and Miller ran to the parking lot, with Rodriguez holding the
bag of mail.

¶5 Hoping to capture their license plate number, Homeowner
ran after Rodriguez and Miller to the parking lot. She heard a female voice
yell, “[P]hone!” Miller turned around and tackled Homeowner, trying to
again grab her phone. Homeowner held onto her phone and fought Miller
off. Miller ran to join Rodriguez in their car, and the two drove off.

¶6 The State charged Rodriguez with third-degree burglary and
attempt to commit aggravated robbery. Rodriguez testified in her own
defense at trial. The jury found Rodriguez guilty of third-degree burglary
but acquitted her of attempted aggravated robbery. The court sentenced
Rodriguez to a mitigated term of six years’ imprisonment, with 36 days of

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presentence incarceration credit, followed by a term of community
supervision. Rodriguez timely appealed.

¶7 We have jurisdiction over Rodriguez’s timely appeal under
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶8 On appeal, Rodriguez argues the superior court erred by: (1)
refusing to strike prospective Juror 15 (“Juror 15”), (2) denying her motion
for mistrial, (3) denying her motion for acquittal under Arizona Rule of
Criminal Procedure 20(a)(1), and (4) denying her request to include
criminal trespass as a lesser-included offense of third-degree burglary.

I. The superior court did not err by refusing to strike Juror 15.

¶9 During voir dire, the State and defense counsel questioned
Juror 15 regarding a defendant’s right to not testify at trial. After Juror 15
stepped out of the courtroom, defense counsel moved to strike Juror 15 for
cause, arguing Juror 15’s responses revealed equivocation and bias as to a
defendant’s right not to testify. The court denied the motion and
empaneled Juror 15.

¶10 In her opening brief, Rodriguez claims Juror 15’s responses
revealed equivocation and bias regarding her right to not testify, which she
argues violated her right to a fair and impartial jury. See Ariz. Const. art. 2,
§§ 23, 24; U.S. Const. amends. VI, XIV.

¶11 “Persons biased or prejudiced” for “or against” any party in
an action “shall be disqualified to serve as jurors.” A.R.S. § 21-211; accord
Ariz. R. Crim. P. (“Rule”) 18.4(b) (“The court, on motion or on its own, must
excuse a prospective juror . . . if there is a reasonable ground to believe that
the juror . . . cannot render a fair and impartial verdict.”). “The party
challenging a juror for cause has the burden to establish by a preponderance
of the evidence that the juror cannot render a fair and impartial verdict.”
Ariz. R. Crim. P. 18.5(h).

¶12 We review the superior court’s refusal to strike a juror for
cause for an abuse of discretion. State v. Montoya, ___ Ariz. ___, ___, ¶ 72,
554 P.3d 473, 500 (2024). Given the superior court is in the best position to
assess a potential juror’s fairness and impartiality, we will affirm unless the
refusal was “clearly untenable, legally incorrect, or amounted to a denial of
justice.” Id. at ¶ 71 (quoting State v. Chapple, 135 Ariz. 281, 297 n.18 (1983),

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superseded on other grounds by A.R.S. § 13-756). Because defense counsel
objected to Juror 15’s empanelment, we review any error for harmless error.
See id. at ¶ 72.

¶13 Here, because Rodriguez chose to testify at trial, any error that
could have resulted from Juror 15’s empanelment was harmless. We
therefore need not reach whether the superior court abused its discretion in
denying Rodriguez’s motion to strike Juror 15.

¶14 In her reply brief, Rodriguez makes additional arguments
about her motion to strike Juror 15. Even assuming Rodriguez did not
waive these arguments by raising them for the first time in her reply brief,
see State v. Cohen, 191 Ariz. 471, 474, ¶ 13 (App. 1998), these arguments fail.

¶15 Rodriguez asserts that she proved there existed a “reasonable
ground to believe” Juror 15 could not be fair and impartial, pursuant to Rule
18.4(b). But absent an abuse of discretion, we defer to the superior court’s
determination of whether such a “reasonable ground” was proved. See
Montoya, 554 P.3d at 500, ¶¶ 72–79. Here, by empaneling Juror 15, the court
implicitly found no reasonable ground to believe Juror 15 could not render
a fair and impartial verdict. We defer to this finding, which the record
supports.

¶16 Rodriguez also cites the 2022 Comment to Rule 18.5(f), which
instructs the superior court to “refrain from attempting to rehabilitate
prospective jurors by asking leading, conclusory questions . . . .” But this is
irrelevant because only the State and defense counsel questioned Juror 15.
The court did not question Juror 15, much less attempt to rehabilitate her.

II. The superior court did not err by denying Rodriguez’s motion for
mistrial.

¶17 The State sought to admit into evidence a compilation of
video clips excerpted from Rodriguez’s interview with the investigating
detective. At Rodriguez’s objection, the parties agreed to redact a portion
of one of the video clips by muting it.

¶18 The court admitted into evidence the edited video clip
compilation. After playing the video clip to the jury, the State asked the
detective, “So regarding the portion that’s been edited out, was she talking
about something other than this incident?” The detective replied, “No.”
The State also asked, “[D]uring your interview with the Defendant, you
discussed a lot of things and some of those things have been edited out as

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they are not specifically related to this incident. Is that an accurate
assessment?” The detective responded, “Yes.”

¶19 Rodriguez did not contemporaneously object to the State’s
questioning. She later moved for a mistrial, arguing the questioning could
have led the jury to infer that the redacted portion concerned other crimes
or wrongdoing. The court advised it would rule on the mistrial motion after
reviewing a video recording of the State’s questioning. The next day, the
court denied the motion in a written ruling, explaining:

The phrase “something other than this incident” does not
necessarily imply that there are multiple instances. The
detective could have been discussing just about anything.
Perhaps if the State had emphasized “this” when she said
“this incident,” that may have signaled something along the
lines of Ms. Rodriguez’ concern. But the Court did not detect
that inflection during the trial or on its video review. And
beyond that, the answer “no” does not raise suspicions.
Likewise, a questioning indicating that the conversation
covered “a lot of things” other than “this incident” absent
more does not raise any additional concerns or inferences.

¶20 The final jury instructions also instructed the jury not to
speculate about deleted portions of the exhibits.

¶21 Rodriguez argues the court erroneously denied her motion
for a mistrial. “A declaration of a mistrial [] is ‘the most dramatic remedy
for trial error and should be granted only when it appears that justice will
be thwarted unless the jury is discharged and a new trial granted.’” State v.
Dann, 205 Ariz. 557, 570, ¶ 43 (2003) (citation omitted). We review the
superior court’s denial of a motion for mistrial for an abuse of discretion.
State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000).

¶22 Here, the State’s questioning made no explicit reference to
other crimes or wrongdoing, and we defer to the superior court’s finding
that the State’s questioning did not similarly imply other crimes or
wrongdoing occurred. In addition, the jury was instructed on redacted
evidence, and we presume the jury followed its instructions. See State v.
Hidalgo, 241 Ariz. 543, 554, ¶ 43 (2017). The superior court did not abuse its
discretion in denying Rodriguez’s motion for mistrial.

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III. The superior court did not err by denying Rodriguez’s Rule 20
motion for acquittal.

¶23 In her opening brief, Rodriguez argues the evidence did not
support a conviction for aggravated robbery, and the superior court should
have granted her motion for judgment of acquittal. See Ariz. R. Crim. P.
20(a)(1). But Rodriguez has no conviction for aggravated robbery—the jury
acquitted her of that charge. And her reply brief merely reincorporates this
argument, stating: “The trial court erred in denying the Rule 20 Motion for
Acquittal. Undersigned counsel relies on the argument presented in the
Opening Brief.” Rodriguez has failed to raise, and thus waived, any
argument that would have allowed us to address the sufficiency of
evidence as to her burglary conviction. See State v. Bolton, 182 Ariz. 290, 298
(1995) (recognizing that an insufficient argument waives a claim on review),
abrogation on other grounds recognized by McKinney v. Ryan, 813 F.3d 798, 815–
16 (9th Cir. 2015).

IV. The superior court correctly refused to include criminal trespass as a
lesser-included offense of third-degree burglary.

¶24 At trial, Rodriguez requested “criminal trespass” as a lesser-
included offense of third-degree burglary, arguing the mailbox area should
be considered residential. The State argued the mailbox area was
nonresidential because it was in an unfenced common area. The court
denied Rodriguez’s requested instruction, explaining that first-degree
criminal trespass required a residential structure, and the mailbox area was
not residential.

¶25 In her opening brief, Rodriguez lists offenses “such as”
“theft,” “aiding and abetting,” and “possession of stolen property,”
suggesting one or more of these offenses should have been included as a
lesser-included offense of aggravated robbery. Again, we do not address
her arguments as to aggravated robbery because the jury acquitted her of
that charge.

¶26 In her reply brief, Rodriguez argues for the first time that the
jury should have been instructed on second-degree trespass as a lesser-
included offense of third-degree burglary. Rodriguez urges us to depart
from State v. Kozan, 146 Ariz. 427 (App. 1985), which holds that second-
degree trespass is not a lesser-included offense of third-degree burglary as
a matter of law. Id. at 429. But again, Rodriguez has waived this argument
by failing to raise it until her reply brief. See Cohen, 191 Ariz. at 474, ¶ 13.

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And even assuming she did not waive this argument, Rodriguez has shown
no error.

¶27 When she requested the lesser-included instruction at trial,
Rodriguez failed to specify which degree of criminal trespass she was
talking about—she argued only that the mailboxes were residential,
suggesting she was requesting only a first-degree criminal trespass
instruction. See A.R.S. § 13-1504(A) (defining first-degree criminal
trespass). The superior court correctly refrained from giving an
unrequested instruction for second-degree criminal trespass. See Ariz. R.
Crim. P. 21.4(a)(1) (“On request by any party and if supported by the
evidence, the court must submit forms of verdicts to the jury for [] all
offenses necessarily included in the offense charged . . . .”) (emphasis
added); see also State v. Gipson, 229 Ariz. 484, 487, ¶ 15 (2012) (“In general
the trial judge should withhold charging on lesser included offenses unless
one of the parties requests it . . . .”) (quoting Walker v. United States, 418 F.2d
1116, 1119 (D.C. Cir. 1969)). In fact, the court would have erred by giving
the instruction, as doing so would have required it to disregard Kozan,
which it is bound to follow.

CONCLUSION

¶28 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: TM

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