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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

BRETT ERIC SALTUS, Appellant.

No. 1 CA-CR 15-0172 

Appeal from the Superior Court in Maricopa County 

No. CR2013-418527-001 SE

The Honorable Danielle J. Viola, Judge 

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Linley Wilson 

Counsel for Appellee 

Law Offices of Patricia A. Hubbard, P.L.C., Phoenix 

By Patricia A. Hubbard 

Counsel for Appellant
STATE v. SALTUS 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Donn Kessler joined. 

W I N T H R O P, Judge:

¶1 Brett Eric Saltus appeals his convictions and sentences for one 

count of public sexual indecency (Count 2), one count of public sexual 

indecency to a minor (Count 3), and one count of resisting arrest (Count 7). 

For the reasons that follow, we affirm. 

ANALYSIS 

¶2 Saltus argues the trial court abused its discretion in denying 

him a mistrial after an eight-year-old witness (“A.V.”), the alleged victim of 

public sexual indecency as charged in Count 1, testified about an uncharged 

act in violation of the court’s pretrial order precluding other-act evidence. 

After voir dire of the witness outside the presence of the jury, the court found 

the witness had testified about an earlier, uncharged act. The court noted, 

however, that the victim’s testimony related to only one of eight charged 

counts, and the victim had not identified Saltus as the person who had 

engaged in the other act. The court reasoned that, in the circumstances, it

could take curative actions, including an instruction striking the victim’s 

testimony, because “a mistrial is not necessary to ensure justice to the 

Defendant in this case.” Immediately after the jury returned, the court 

instructed it as follows:

As you know we ended yesterday with the direct examination 

of [A.V.]. Following that examination and the recess that we 

took the Court held a separate hearing where it was 

determined that the witness testified on direct examination 

about an event that was wholly unrelated to this case. As a 

result the [C]ourt is striking all of [A.V.]’s direct testimony 

provided yesterday here in Court and you are being 

instructed to disregard her testimony in it’s [sic] entirety. You 
STATE v. SALTUS 

Decision of the Court 

3

shall not consider the testimony of [A.V.] provided on 

Tuesday, September 16, for any purpose.[1]

The court then allowed the prosecutor to recall the witness “to provide 

correct testimony as to the charged Count.” On recall, the victim described 

the charged act using language nearly identical to that she had used 

describing the uncharged act.

¶3 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, 74 P.3d 231, 244 (citation omitted), 

supplemented on other grounds by 206 Ariz. 371, 79 P.3d 58 (2003). In 

determining whether to grant a mistrial, the trial court should consider (1) 

whether the testimony called the jurors’ attention to matters they would not 

be justified in considering in reaching a verdict; and (2) the probability 

under the circumstances that the testimony influenced the jurors. State v. 

Bailey, 160 Ariz. 277, 279, 772 P.2d 1130, 1132 (1989). “When the witness 

unexpectedly volunteers information, the trial court must decide whether a 

remedy short of mistrial will cure the error.” State v. Jones, 197 Ariz. 290, 

304, ¶ 32, 4 P.3d 345, 359 (2000) (emphasis and citation omitted). 

¶4 We review a trial court’s denial of a motion for mistrial for an 

abuse of discretion. Id. We will not reverse a conviction based on a trial 

court’s denial of a motion for mistrial unless a reasonable probability exists 

that the verdict would have been different had the improper evidence not 

been admitted. Dann, 205 Ariz. at 570, ¶ 44, 74 P.3d at 244 (citations 

omitted).

¶5 The court acted well within its discretion in deciding a 

mistrial was not necessary to ensure a fair trial. The trial judge was in the 

best position to determine whether a step short of mistrial—the instruction 

striking the eight-year-old’s testimony about the uncharged act—would 

cure the error, and we cannot say the judge abused her discretion in 

concluding it would. See Jones, 197 Ariz. at 304, ¶ 32, 4 P.3d at 359. 

Moreover, the jury was instructed to consider each charge separately, and 

it clearly followed that instruction. The jury acquitted Saltus of the offense 

against this eight-year-old (and of four more of the eight charged offenses). 

The jury convicted Saltus only of one charge of public sexual indecency 

 

1 Also, as part of its final instructions to the jury, the court reiterated, 

“If testimony was ordered stricken from the record you must not consider 

that testimony for any purpose.”
STATE v. SALTUS 

Decision of the Court 

4

involving an adult victim, one charge of public sexual indecency involving 

a different minor victim, and one charge of resisting arrest. Under these 

circumstances, there was no reasonable probability the jury would have 

reached a different verdict had the eight-year-old not testified about the 

uncharged incident. We find no reversible error.

¶6 Saltus also argues that striking this eight-year-old witness’s 

testimony and allowing the State to recall her and present correct testimony 

was an insufficient sanction for the prosecutor’s misconduct in eliciting the 

improper testimony. “Prosecutorial misconduct ‘is not merely the result of 

legal error, negligence, mistake, or insignificant impropriety, but, taken as 

a whole, amounts to intentional conduct which the prosecutor knows to be 

improper and prejudicial, and which he pursues for any improper purpose 

with indifference to a significant resulting danger of mistrial.’” State v. 

Aguilar, 217 Ariz. 235, 238-39, ¶ 11, 172 P.3d 423, 426-27 (App. 2007) (citation 

omitted). Saltus reasons that, although the trial court did not find the 

prosecutor’s conduct was intentional, knowing, or reckless, “nothing in the 

record justifies an inference that the prosecutor had some proper purpose 

in mind when he elicited seriously improper testimony from [A.V.] in 

violation of a pretrial order.”

¶7 We disagree. The court noted for the record that defense 

counsel’s pretrial motion on other-act evidence did not address “this 

specific incident.” Moreover, our review of the record persuades us that, 

during the eight-year-old witness’s initial testimony, the prosecutor 

attempted to elicit testimony only on the charged incident; he also avowed, 

during a sidebar to discuss defense counsel’s concern the child was going 

to talk about the uncharged act, that he was “doing my best to focus the 

questions to the particular event that’s charged.” On this record, we cannot 

say the prosecutor engaged in misconduct. 

¶8 Saltus next argues the court abused its discretion when it 

overruled his objection to a police officer testifying he had fractured his 

finger in the course of the struggle to arrest Saltus. Saltus argues now, as 

he did at trial, that the officer was not qualified to offer expert testimony. 

The court overruled the objection, reasoning “the witness can testify as to 

his own understanding of his injuries and of what he believes happened to 

him.” We review a court’s rulings on admissibility of evidence for an abuse 

of discretion. State v. Dann, 220 Ariz. 351, 368, ¶ 89, 207 P.3d 604, 621 (2009). 

The court did not abuse its discretion. The officer testified he had broken 

the finger when he was young, and it felt the same this time. The officer’s 

testimony was admissible as a lay opinion under Rule 701, Ariz. R. Evid. 

See State v. Tiscareno, 190 Ariz. 542, 544, 950 P.2d 1163, 1165 (App. 1997) (“A
STATE v. SALTUS 

Decision of the Court 

5

person does not have to be a medical expert to testify that her own nose has 

been broken.”). Moreover, any conceivable error was harmless, because the 

jury acquitted Saltus of Count 8, aggravated assault, which required proof 

of a fracture.

CONCLUSION 

¶9 For the foregoing reasons, we affirm Saltus’s convictions and 

sentences.