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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NEIL RYAN MENTE, Appellant.

No. 1 CA-CR 15-0649

 1 CA-CR 15-0654

 1 CA-CR 15-0656

 1 CA-CR 16-0077

 (Consolidated)

Appeal from the Superior Court in Maricopa County

 No. CR2013-000411-001

CR2006-164038-001

CR 2005-033349-001

The Honorable Virginia L. Richter, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Alice Jones

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Rena P. Glitsos

Counsel for Appellant
STATE v. MENTE

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Margaret H. Downie and Judge James P. Beene joined.

J O H N S E N, Judge:

¶1 Neil Ryan Mente appeals his conviction of taking the identity 

of another, a Class 4 felony. He argues the superior court erred by 

instructing the jury in a manner that permitted it to come to a nonunanimous verdict. We affirm the conviction, the resulting revocations of 

probation and the sentences imposed.

1

FACTS AND PROCEDURAL BACKGROUND

¶2 In the early morning hours of November 28, 2012, a police 

officer stopped Mente for speeding.2 When the officer asked Mente for his

driver's license, Mente handed the officer a valid Arizona identification 

card and admitted that his driver's license was suspended. As a result, the 

officer returned to his patrol car and prepared to have Mente's vehicle

towed. Meanwhile, Mente emptied his pockets and handed the contents to 

his girlfriend, who was sitting in the front passenger seat of the car. Mente

told her to put the items in her purse, and she did so. Soon after, a second 

officer arrived and began to question Mente's girlfriend. She consented to 

a search of her purse, where the officer found an Arizona driver's license 

bearing Mente's photo but a different name and other identifying 

information.

 

1 Mente's appeal from the superior court's ruling denying his motion 

to vacate his identity-theft conviction is consolidated with his appeals from 

the judgment of conviction and the revocations of his probation. In Mente's 

motion to vacate, he argued newly discovered evidence would have 

changed the verdicts. He also argued his due-process rights were violated 

by the admission of his statements to police regarding how and when the 

information on the false license was obtained. Mente's briefs on appeal do 

not address these issues; therefore, we will not address them.

2 On review, we view the evidence and all inferences from it in the 

light most favorable to upholding the conviction. State v. Jackson, 208 Ariz. 

56, 57, ¶ 2 (App. 2004).
STATE v. MENTE

Decision of the Court

3

¶3 The date on the fictitious license was November 10, 2010, 

roughly two years before Mente was stopped. Asked by police about the 

false license, Mente responded that he "had a friend make it several years 

ago." The officer testified that when he asked Mente where he obtained the 

information for the license, Mente replied that he "must have obtained it in 

a burglary several years ago." The officer testified that when he questioned

Mente further after his arrest:

[Mente] told me he had it made several years ago from a 

friend. He again told me he had planned on using it. Because 

when I said, "Why are you carrying this around?" He told me 

he planned on using it to represent a real license so the police 

wouldn't find out he was suspended.

When I asked him where he obtained it from, he told me it 

was from a burglary from years ago. But he wasn't positive.

¶4 Mente was charged with taking the identity of another 

pursuant to Arizona Revised Statutes ("A.R.S.") section 13-2008 (2017).3 At 

trial, over Mente's objection, the court instructed the jury it could convict 

Mente if it found he "knowingly took, manufactured, recorded, possessed,

or used any personal identifying information of another person . . . without 

the consent of that person . . . with the intent to obtain or use the other 

person's identity for any unlawful purpose or to cause loss to the person

. . . ."

¶5 Mente was convicted and sentenced to ten years' 

imprisonment. At the time of the traffic stop, Mente was on probation for 

two other convictions, one committed in 2005 and the other in 2006. His 

identity-theft conviction rendered him in violation of his probation on the 

two earlier crimes. The court revoked his probation on the two earlier

offenses and sentenced him to concurrent sentences of 2.5 years and five 

years, to be served consecutively to the ten-year term it imposed for identity 

theft.

¶6 Mente timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-

120.21(A)(1) (2017), 13-4031 (2017) and -4033(A)(1) (2017).

 

3 Absent material revision after the date of an alleged offense, we cite 

a statute's current version.
STATE v. MENTE

Decision of the Court

4

DISCUSSION

¶7 Mente argues the jury instruction setting out the elements of 

the charge against him created a duplicitous charge, allowing the jury to 

convict him "for crimes committed years prior to the charged date."

¶8 When an indictment charges just one crime, but the State 

presents evidence of more than one alleged criminal act to prove that crime, 

the charge is duplicitous. See State v. Klokic, 219 Ariz. 241, 243-44, ¶¶ 11-12 

(App. 2008). On the other hand, a duplicitous indictment charges two or 

more distinct offenses in a single count. State v. Paredes-Solano, 223 Ariz. 

284, 287, ¶ 4 (App. 2009). The problem with both varieties of error is the 

possibility of a non-unanimous verdict. Id. at 288, ¶ 8; Klokic, 219 Ariz. at 

244, ¶ 12.

¶9 To the extent Mente argues that a non-unanimous jury may 

have convicted him variously of taking, manufacturing, recording, 

possessing or using the other person's personal information, on this record, 

we agree with the State that his argument concerns a duplicitous 

indictment, not a duplicitous charge. The failure to object to a duplicitous 

indictment before trial waives all but fundamental error review. ParedesSolano, 223 Ariz. at 288, ¶ 8; see State v. Henderson, 210 Ariz. 561, 567, ¶ 19 

(2005).

¶10 Mente argues that he did not have to object before trial 

because he "reasonably believed that the State was limited to proving one 

crime for which all elements occurred on or about" the date of his 2012 

traffic stop. But the jury instruction he complains of almost exactly 

mirrored the indictment, which alleged that "on or about the 28th day of 

November, 2012, [Mente] knowingly took, purchased, manufactured, 

recorded, possessed or used" the victim's personal identifying information. 

Because the asserted duplicitousness was found in the indictment, Mente 

was required to object before trial. Paredes-Solano, 223 Ariz. at 288, ¶ 8. 

Because he did not, to prevail on appeal, Mente "must establish both that 

fundamental error exists and that the error in his case caused him 

prejudice." Henderson, 210 Ariz. at 567, ¶ 20. Fundamental error is error 

that "goes to the foundation of his case, takes away a right that is essential 

to [the] defense, and is of such magnitude that [the defendant] could not 

have received a fair trial." Id. at 568, ¶ 24.

¶11 The State argues that no fundamental error occurred because 

identity theft under A.R.S. § 13-2008(A) is a unitary offense such that a 

defendant is not entitled to a unanimous jury verdict "on the manner in 
STATE v. MENTE

Decision of the Court

5

which he committed the offense[.]" We need not decide that issue because 

Mente cannot demonstrate prejudice from any asserted error, fundamental 

or otherwise.

¶12 At trial, Mente did not dispute that he possessed the victim's 

personal identification without the victim's consent; the only issue for the 

jury was whether the State had proved Mente's intent "to obtain or use the 

other person's . . . identity for any unlawful purpose," as prohibited by § 13-

2008(A).

¶13 Citing Mente's explanation to police for why he carried the 

fictitious license (to avoid being cited for driving with a suspended license), 

the prosecutor argued in closing that there could be no lawful purpose for 

carrying a false license. Beyond that, in the absence of any evidence that 

Mente actually used the fictitious license, the prosecutor also told the jury 

it could find Mente had the required criminal intent on the day of the traffic 

stop based on his admissions to police that he "had [the license] made" and 

that he had obtained it unlawfully, and that when stopped, he tried to hide 

the license by giving it to his girlfriend.

¶14 Contrary to Mente's argument, the State did not ask the jury 

to find he committed a crime by taking, manufacturing, recording, 

possessing or using the fictitious license or the victim's identifying 

information on any date before the traffic stop.4 As the prosecutor said in 

his final closing:

And his intent can be inferred from all of the facts and 

circumstances, such as how he obtained it. I already talked 

about, you know, creating the ID, you know, keeping it with 

you. Even though you had this other ID, you know, you have 

the option. You want to be able to pick and choose, and then 

 

4 Beyond recounting Mente's brief mention of a burglary to police, the 

State did not offer evidence of a burglary, nor did the prosecutor reference 

any particular theft. By contrast, during his opening statement, defense 

counsel told the jury to expect the victim of the identity theft "to tell you 

that the information was stolen from his son's vehicle about eight years 

ago." The only testimony to that effect, however, came during the defense 

cross-examination of one of the police officers, whom the defense asked to 

elaborate on the conversation in which the officer alerted the victim to the 

discovery of the fictitious license.
STATE v. MENTE

Decision of the Court

6

when you're busted, you hide it and you lie about it. And you 

even told the officers your intent, just in case you needed it.

* * *

So, in just concluding, this defendant, like I've said from the 

beginning, he stole someone's personal identifying 

information, used it to create a fictitious driver's license, 

carried it around with him, ready to use it when it was 

advantageous. Hid it, lied about it. You can infer intent.

¶15 In his reply brief, Mente argues the court erred by allowing 

the State to try to prove intent with evidence of "irrelevant and prejudicial 

areas that were not temporally or factually related to the question of 

whether or not he possessed the license with 'unlawful intent'" on the day 

of the traffic stop. He asserts "allegations about theft and burglary and 

manufacturing and recording" made it "impossible to know which criminal 

act the individual jurors concluded" he committed. The superior court, 

however, did not err in denying Mente's motion in limine pursuant to 

Arizona Rules of Evidence 403 and 404 to preclude his statements to police 

that the victim's information had been taken in a prior burglary. As the 

court ruled, that evidence was admissible to demonstrate Mente's criminal 

intent at the time he was stopped with the license in his possession.

¶16 In short, at trial the State offered no evidence of any prior 

illegal acts beyond Mente's own explanation for how he came into 

possession of the victim's personal information. Moreover, contrary to 

Mente's argument, the jury was not asked to find him guilty of committing 

identity theft on any date other than the day of the traffic stop; the only use 

the State made of Mente's own admissions about prior events was to 

demonstrate his unlawful intent on the date of the stop.
STATE v. MENTE

Decision of the Court

7

CONCLUSION

¶17 For the reasons stated, we affirm Mente's conviction, the 

resulting revocations of his probation and the resulting sentences.