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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

S TATE OF ARIZONA

, Appellee

,

v.

T IMOTHY MARVIN WARREN

, Appellant

.

No. 1 CA-CR 20-0242

A ppeal from the Superior Court in Maricopa County

No. CR2019-114671-001
The Honorable Dewain D. Fox , Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office

, Phoenix By Alice M. Jones Counsel for Appellee

Br own & Little, P.L.C., Chandler By Matthew O. Brown

C ounsel for Appellant FILED 7-8-2021STATE v. WARREN

Decision of the Court

2 MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the Court, in which Judge Michael J. Brown and Judge David D. Weinzweig joined.

G A S S

, Judge:

¶1 Timothy Marvin Warren appeals his conviction fo r aggravated robbery. Because any potential error was harmless, we affirm

his conviction.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court reviews the facts in the light most favorable to sustaining the jury’s verdict, resolving all reasonable inferences against

Warren

. See State v. Felix , 237 Ariz. 280, 283, ¶ 2 (App. 2015).

¶3 On April 2, 2019, the victim rece ived a text message from a phone number he did not recognize , but he believed it was someone he

knew. He agreed to meet the person at an apartment complex to give the

person “wax”

— a form of cannabis with a h igh THC content. The person

turned out to be R.W. , Warren’s cousin. The victim arrived at the complex

, parked his car, and text ed R.W. he was there. Soon after, R.W. approached

and entered the victim ’s car. R. W . grabbed his gun, aimed it at the victim
and demanded “everything ” he had. The victim complied

, handing his backpack to R.W., which contain ed cash , marijuana

, and wax. R.W. left the

victim ’s vehicle and returned to the passenger side of a nearby SUV driven by Warren

. Warren dr o ve off. The victi m followed and call ed the police

. During the ensuing police chase

, a tire on the SUV blew out and Warren
and R .W. fled the vehicle

. T he police later arrested them. The State indicted

Warren on one count of armed robbery and one count of aggravated robbery.

¶4 During jury selection, the superior court discussed the burden of proof and the presumption of innocence, adding “ the defendant is not required to prove innocence or produce any evidence.” The superior court gave preliminar y instructions

, includ ing the burden of proof, the presumption of innocence, and the defendant ’s right not to testify

.STATE v. WARREN

Decision of the Court

3 ¶5 T he State rested at the end of the fifth day of trial

. In releasing the jur ors for the evening , the superior court reminded them of the

admonition :

So please remember the admonition. Please remember you’ve only heard one side of the case at this point in time. Do not start thinking about how you’re going to decide the case. Please keep an open mind until you hear all the rest of the ev idence and all of the closing
arguments.

¶6 Warren’s counsel immediately moved for mistrial , arguing
th e superior court incorrectly implied Warren had an obligation to present

evidence . The superior court denied the motion for mistrial , but promised

to correc t and clarify the statement for the jurors the next day

.

¶7 The next day, the superior court offer ed a curative instructi on

. At Warren ’s request, the superior court did not read t he curative instruction to the jury . T he defense rested without presenting any evidence . The final jury instructions described the presumption of innocence and the burden of proof , adding a defendant need n ot testify or p resent evidence

.

¶8 The jury acquitted Warren of armed robbery but found him guilty of aggravated robb ery. Warren timely appealed. This court has jurisdiction under a rticle VI

, s ection 9, of the Arizona Constitution, and
A.R.S. §§ 13

- 4031 and 13

- 4033.A. 1.

ANALYSIS

¶9 Warren first argues th e superior court’s statement telling the jury it had “only heard one side of the case at this point” and to “keep an open mind until you hear all of the rest of the evidence” was an improper

instructi on and misled the jury because it failed to “adequately reflect the

law

. ” According to Warre n, the superior court then compounded the error by not providing a special, corrective instruction. Second, Warren argues

the statement infringed his right to remain silent. See U.S. Const. amend. V ; Ariz. Const

. art. II

, § 10. The State re casts Warren’s arguments as whether the superior court abused its discretion in de n ying his motion for mistrial. We analyz e the arguments as Warren frame d them

.

¶10 This court “review[s] a decision to give or refuse a requested jury instruction for an abuse of dis cretion

, ” but reviews de novo whether the jury instruction accurately reflects the law. Leon v. Marner , 244 Ariz. 465, 469, ¶ 11 ( App. 2018). C onsidering the instructions as a whole, this court
decide s whether “ the jury was properly guided in arriving at a correctSTATE v. WARREN

Decision of the Court

4 decision. ” Pima Cnty

. v. Gonzalez

, 193 Ariz. 18, 20

, ¶ 7 (App. 1998). T his court

also reviews de novo questions of constitutional la w

. Gallardo v. State , 236 Ariz. 84, 87, ¶ 8 (2014).

¶11 This court review s for harmless error b ecause Warren mov ed

for mistrial. See Leon , 244 Ariz. at 469, ¶ 1 2 ( “With limited exceptions,

erroneous jury instructions are subject to either harmless or fundamental

error review.”); State v. Va nWinkle

, 229 Ariz. 233

, 237, ¶ 1 6 ( App. 2011 ) ( applying harmless error analysis to improper comment on defendant’s constitutional right to silence). “ Error, be it constitutional or otherwise, is harmless if we can say, beyond a reasonable doubt, that the error did not

contribute to or affect the verdict.” Stat e v. Bible , 175 Ariz. 549, 588 ( 1993 ). The State carries the burden to establish any error w as harmless. State v. Anthony , 218 Ariz. 439, 446, ¶ 39 (2008).

¶12 We express no opinion about whether the superior court

erred because any error was harmless. After making the statement, t he superior court drafted a proposed curative instruction , which Warren rejected

. B oth Warren and the superior court agreed the proposed

instruction would needle ssly duplicat e the final jury instructions. The superior court i s in the best position to determine the appropriate remedy

for a trial error. State v

. Herrera , 203 Ariz. 131 , 135, ¶ 6 ( App. 20 0 2)

. We recognize some states have held rejecting a curative instruction constitutes a waiver of that issue on appeal. See , e .g. , Dobbins v. State , 844 S.E.2d 814, 818 (Ga. 2020); Pennsylvania v. Ramos , 231 A.3d 955, 95 8

– 5 9 (Pa. Super. Ct. 2020). In Arizona, declining a proposed curative instruction weighs against

abuse of discretion. See H errera , 203 Ariz. at 134

– 35

, ¶ ¶ 5

– 6 (superior court did not abuse its discretion by denying a mistrial based in part on

defendant’s declination of a curative in struction)

.

¶13 Regardless, “it is not error for the [superior] court to refuse to give a requested instruction that is covered adequately by the given

instructions.” Haynes v. Syntek Fin

. Corp.

, 184 Ariz. 332, 341 (App. 1995)

. The superior court properly instructed the jury before and after it made the

statement. The preliminary instructions correctly informed the selected jurors of the presumption of innocence, the burden of proof, and Warren’s right not to testify

. The final jury instructions , given the day after the putative error, repeated those same principles. This court presume s jur or s follow the instructions they are given

. State v. LeBlanc

, 186 Ariz. 437, 439 (1996)

. The final jury instructions sufficiently rendered any error harmless by giving the jury proper guidance.STATE v. WARREN

Decision of the Court

5 ¶14 T he verdict also weighs against error . T he jury convicted

Warren of aggravated robbery but acquitted him of a rmed robbery

, demonstrating it considered the evidence on each charge. See State v. Stuard

, 176 Ariz. 589, 600 (1993) (acquittal o f relevant charges weighs against
reversible error )

. A jur or who improperly concluded Warren bore a burden to provide evidence would not have acquit ted Warren on any of the charges. T he superior court’s reminder of the admonition did not affect the

verdict. See State v. Jones

, 203 Ariz. 1, 10, ¶ 33 (2002) ( error was harmless

because the jury made reasoned decisions and acquitted on one of four

count s ); cf. State v. Barger, 167 Ariz. 563, 567 (App. 1990) ( harmless error to
exclude a statement when the jury acquitted defendant of the charge to

which statement would have been relevant ); State v. Davis, 117 Ariz. 5, 7

– 8 (App. 1977) ( not prejudicial error whe n improper ly communicated

instruction went to the charge of which defendant was acquitted ).

CONCLUSION

¶15 W e affirm Warren’s conviction

.