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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JORDAN DONALD BILLUPS, Appellant.

No. CA-CR 16-0429

Appeal from the Superior Court in Maricopa County

No. CR2012-006726-001 DT

The Honorable John R. Ditsworth, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jason Lewis

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Nicholaus Podsiadlik

Counsel for Appellant
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2

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Kenton D. Jones and Judge Patricia K. Norris1 joined.

W I N T H R O P, Presiding Judge:

¶1 Jordan Billups (“Appellant”) appeals his sentences and 

convictions for one count of sale or transportation of narcotic drugs and two 

counts of misconduct involving weapons. Appellant argues the trial 

judge’s bias prevented him from receiving a fair trial. Appellant also 

contends the trial court improperly aggravated his sentence and abused its 

discretion in denying his motion for mistrial. For the following reasons, we 

affirm.

FACTS AND PROCEDURAL HISTORY2

¶2 In 2012, Appellant was indicted for one count of sale or 

transportation of narcotic drugs, a class two felony, and two counts of 

misconduct involving weapons, both class four felonies. Pursuant to 

Arizona Revised Statutes (“A.R.S.”) sections 13-701 (Supp. 2016), -703

(Supp. 2016), and -704 (Supp. 2016), the State gave notice of multiple 

aggravating circumstances and filed allegations of prior felony convictions 

and historical priors.

¶3 At trial, Agent Brendan Iver of the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives testified on behalf of the State. Iver 

testified that, while working undercover, he leased a store front in a strip 

mall in an area that had been “identified as a problem area.” The store, set 

 

1 The Honorable Patricia K. Norris, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article 6, Section 3, of the Arizona Constitution.

2 We view the evidence in the light most favorable to upholding the 

jury’s verdict. State v. Moody, 208 Ariz. 424, 435 n.1, 94 P.3d 1119, 1130 n.1 

(2004).
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3

up as a pawn shop, was open to the public and “was run like your regular 

business.”

¶4 On July 15, 2010, Appellant, a tattoo artist, entered the store 

and spoke to Iver about his availability to provide tattoo services. As the 

conversation progressed, Appellant “handed [Iver] a little latex baggie with

five oxycodone pills inside of it.” Appellant and Iver “agreed on a price of 

$225 for the five pills” and Iver paid Appellant. At some point during the 

transaction, Appellant informed Iver that he “had a friend that had a 

shotgun,”3 and Iver indicated that he would “take a look” if Appellant 

“wanted to bring it by.” Appellant then left the store.

¶5 On August 12, 2010, Appellant returned to the store with a 

friend who was carrying a shotgun wrapped in a towel. Appellant stated 

that his friend was carrying the shotgun because “[Appellant] was a felon 

so he [could not] carry the firearm himself.” Iver and Appellant agreed on 

a price for the shotgun,4 Iver gave Appellant the money, and Appellant left 

the store.

¶6 On August 25, 2010, Appellant again arrived at the store with 

a woman and a child “that [Appellant] had stated was his daughter.” The 

woman carried a shotgun into the store and set it down behind the counter. 

Appellant and Iver agreed on a price, Iver paid Appellant, and Appellant 

left the store with the woman and his daughter. Appellant was later 

arrested and indicted on the above-described charges.

¶7 In addition to Iver’s testimony, the State played audio and 

video recordings depicting the transactions that took place between Iver 

and Appellant on July 15, August 12, and August 25. The State also 

presented testimony from several other witnesses, including forensic 

chemist Shana Middleton, who stated that she had tested the pills 

Appellant sold to Iver on July 15, and had identified them as oxycodone.

 

3 Iver testified that Appellant later told him the shotgun was his and 

that “[h]e needed it for home protection.” At sentencing, defense counsel 

indicated that the gun belonged to someone else who “owed [Appellant] 

money for [a] tattoo.”

4 Iver gave Appellant $250 that day, with the understanding that 

Appellant would later provide tattoo services to Iver.
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¶8 The jury convicted Appellant on all charges.5 The court 

sentenced Appellant to 16.75 years for the sale or transportation of narcotic 

drugs and 10 years for each count of misconduct involving weapons, with 

all three sentences to run concurrently. Appellant appealed, and we have 

jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and 

A.R.S. §§ 12-120.21(A)(1) (2016), 13-4031 (2010), and 13-4033(A) (2010).

6

ANALYSIS

I. Judicial Bias

¶9 Appellant argues the trial judge’s bias deprived him of the 

right to a fair trial and, despite his failure to object below, he is entitled to 

structural error review. See State v. Valverde, 220 Ariz. 582, 584-85, ¶ 10, 208 

P.3d 233, 235-36 (2009) (stating that structural error “deprive[s] defendants 

of basic protections” and, if an appellate court finds such error, “reversal is 

mandated regardless of whether an objection is made below”). The State 

contends Appellant’s allegations of bias do not amount to structural error 

implicating due process, and because Appellant did not object below, the 

appropriate standard of review on appeal is fundamental error. See State v. 

Henderson, 210 Ariz. 561, 564-65, ¶ 8, 115 P.3d 601, 604-05 (2005) (explaining 

that fundamental error review applies where no objection is made at trial). 

However, because we conclude Appellant has not shown bias necessary for 

reversal under either standard of review, we need not decide which 

standard of review applies in this case.

¶10 “Bias and prejudice means a hostile feeling or spirit of ill-will, 

or undue friendship or favoritism” toward one of the parties. State v. Myers, 

117 Ariz. 79, 86, 570 P.2d 1252, 1259 (1977). Generally, “the bias and 

 

5 At some point after the jury began to deliberate, Appellant left the 

courthouse. Appellant had still not returned when the jury later notified 

the court it had reached a verdict; consequently, the court requested the jury 

return the next morning to read its verdict and issued a bench warrant for 

Appellant’s arrest. When Appellant did not appear the next day, the court 

found that Appellant had “voluntarily absented himself from the 

proceedings,” and the clerk read and recorded the jury’s verdicts in 

Appellant’s absence.

6 Appellant initially filed an untimely appeal, which this court 

dismissed. However, the trial court later granted Appellant’s request to file 

a “delayed appeal.”
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prejudice necessary to disqualify a judge must arise from an extra-judicial 

source and not from what the judge has done in his participation in the 

case.” State v. Emanuel, 159 Ariz. 464, 469, 768 P.2d 196, 201 (App. 1989) 

(citing State v. Thompson, 150 Ariz. 554, 557, 724 P.2d 1223, 1226 (1986))

(internal quotations omitted). “The fact that a judge may have a strong 

opinion on the merits of the cause or a strong feeling about the type of 

litigation involved, does not make the judge biased or prejudiced.” State v. 

Menard, 135 Ariz. 385, 387, 661 P.2d at 649, 651 (App. 1982) (citing Myers, 

117 Ariz. at 86, 570 P.2d at 1259).

¶11 Appellant asserts that the trial judge “exhibited a ‘hostile 

feeling’ toward [him]” during sentencing. Specifically, Appellant 

references a portion of the sentencing transcript during which the trial 

judge stated to Iver, 

And my only disagreement with that whole 

thing about this transaction was, it was a tattoo 

artist who was going to get payment, and the 

only thing the guy had to give him was the 

shotgun as I recall. Isn’t that the way it went 

down?

So [Appellant] knew he wasn’t supposed to 

have [the gun] and I thought to some extent, he 

was doing—it was a dumb-ass way of doing it. 

If he hadn’t shown up [at the pawn shop] and 

sent his wife, there, there wouldn’t be a 

problem, would there? To some extent I think 

“dumb ass” should be engraved on his 

forehead.

But shortly thereafter, Iver stated, “[Appellant] is actually a likable guy,” to 

which the judge responded, “Which is the sad part of all of this.”

¶12 After a close review of the record, we cannot conclude the trial 

judge’s remarks were anything more than an expression of his opinion 

about the admittedly ill-considered way in which Appellant executed the 

crimes for which he was charged. See Liteky v. United States, 510 U.S. 540, 

555 (1994) (“[J]udicial remarks during the course of a trial that are critical 

or disapproving of, or even hostile to, counsel, the parties, or their cases, 

ordinarily do not support a bias or partiality challenge.”). Although ill-
STATE v. BILLUPS

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6

advised and inconsistent with the Arizona Code of Judicial Conduct,

7 the 

judge’s remarks do not rise to the level of “deep-seated favoritism or 

antagonism” required to demonstrate bias. See id. at 555.

¶13 Appellant further contends that the trial judge’s “comments 

regarding his long career as a prosecutor suggest that [the judge] viewed 

himself as a continuing advocate for the prosecution and against 

[Appellant].” The trial judge referenced his former career as a prosecutor 

once during jury selection and again during sentencing. During jury 

selection, when speaking to the jury about the importance of jury duty, the 

judge stated, “I have been called to jury duty eight times since I have 

become a judge. In 15 years that I was a prosecutor up here, I was never 

called.” After sentencing Appellant, the judge stated,

[T]hat sentence gets the defendant released at 

approximately the age of 50. In my mind, at the 

age of 64, looking at someone who is going to 

serve a 16-year sentence, I think it’s an 

extraordinarily long amount of time. For 

someone his age, 35. It’s a long amount of time.

In my mind, however, that release date of 50 is 

what is important because when I was a gang 

and repeat offender prosecutor, I was taught 

religiously that people do change somewhere 

between 45 and 50.

¶14 As support for his argument, Appellant cites Williams v. 

Pennsylvania. In Williams, the U.S. Supreme Court held that a judge who 

had been a supervising prosecutor on a defendant’s case could not later 

adjudicate an appeal of that defendant’s death sentence. 136 S. Ct. 1899, 

1905 (2016). Here, however, Appellant has presented no evidence that the 

trial judge “had significant, personal involvement as a prosecutor in a 

critical decision regarding [his] case,” let alone any involvement at all. See 

id. at 1905. Additionally, the record indicates the judge’s comment during 

jury selection about his former career as a prosecutor was nothing more 

than a passing remark intended to convey to the jurors the importance of 

 

7 Rule 2.8(B) of the Arizona Code of Judicial Conduct (2009) provides

that a judge “shall be patient, dignified, and courteous to litigants, jurors, 

witnesses, lawyers, court staff, court officials, and others with whom the 

judge deals in an official capacity . . . .”
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jury duty. And, although the trial judge again referenced his former career 

as a prosecutor during Appellant’s sentencing, earlier in the trial he had 

also mentioned that he had formerly worked as a public defender.8 The 

reference during sentencing also appears to have been designed to explain 

the court’s thinking and aspirations for Appellant when he completed his 

sentence. As such, the record does not support Appellant’s argument that 

the trial judge was “psychologically wedded to his . . . previous position as 

a prosecutor.” See id. at 1906 (internal quotations omitted).

¶15 Finally, Appellant claims the trial judge’s decision to impose 

an aggravated sentence was an indication of bias. Generally, judicial 

rulings alone do not support a finding of bias without a showing of an 

extrajudicial source of bias. See State v. Ellison, 213 Ariz. 116, 129, ¶ 40, 140 

P.3d 899, 912 (2006). In this case, Appellant contends the trial judge 

“literally adopted the prosecution’s handbook” during sentencing and 

“rationalized the aggravated sentence” based on the training he had 

received as a former prosecutor. But the trial judge did not impose the 

State’s recommended sentence of 18 years, instead imposing a shorter and 

only slightly aggravated sentence of 16.75 years.

9 Additionally, the 

sentencing transcript reveals that the judge based the imposition of an 

aggravated sentence on statutory aggravating factors that Appellant had 

admitted to, and on Appellant’s failure to appear during a portion of the 

trial.

¶16 Accordingly, we find no support for Appellant’s claims of 

judicial bias.

 

8 While the jury was deliberating, the judge stated to counsel, “When 

I was a public defender we talked about admission of priors.”

9 The court determined that the presumptive sentence in this case for 

the sale or transportation of narcotic drugs was 15.75 years, and the 

presumptive sentence for each charge of misconduct involving weapons 

was 10 years.
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II. Aggravation

¶17 Appellant argues the trial court erred in improperly

aggravating his sentence. We find no error, fundamental or otherwise.10

¶18 A trial court may impose a sentence greater than the 

presumptive term if the defendant admits “the circumstances alleged to be 

in aggravation of the crime” or if the defendant admits or the court finds 

the defendant has a prior felony conviction. A.R.S. § 13-701(C), (D). Here, 

the parties stipulated that Appellant committed the offenses for the 

expectation of pecuniary gain. See A.R.S. § 13-701(D)(6). The court also 

found that Appellant had been convicted of four prior felony offenses.11 See

A.R.S. § 13-701(D)(11). The court therefore had discretion in this case to 

impose a sentence greater than the presumptive term. A.R.S. § 13-701(C), 

(D). In addition, once the court “set[s] forth on the record at sentencing” 

one of the aggravating factors enumerated in A.R.S. § 13-701(D)(1)-(23), it 

may rely on the “catch-all” aggravator in § 13-701(D)(24) to increase the 

sentence “even if the court does not expressly use the specific statutory 

aggravator as a basis for increasing the sentence.”12 See State v. Bonfiglio, 

231 Ariz. 371, 372, ¶ 1, 295 P.3d 948, 949 (2013).

¶19 Appellant maintains the trial court improperly sentenced him 

“based on [his] age of 35” and a “sentencing philosophy” the judge had 

learned as a former prosecutor. But the trial court’s comment that “people 

 

10 Both parties contend that, because Appellant failed to object below, 

the applicable standard of review on appeal is fundamental error. See 

Henderson, 210 Ariz. at 564-65, ¶ 8, 115 P.3d at 604-05 (stating that 

fundamental error review applies where no objection is made at trial). 

However, another panel of this court has held that a defendant does not 

forfeit his right to ordinary appellate review by failing to object where the 

trial court imposed sentence immediately after finding an aggravating 

factor. See State v. Vermuele, 226 Ariz. 399, 402, ¶ 9, 249 P.3d 1099, 1102 (App. 

2011). Because we find no error, fundamental or otherwise, we need not 

decide whether Appellant forfeited his rights by not objecting below.

11 Appellant stipulated that he had previously been convicted of three 

felonies and “had not applied to have his right to be in possession of a 

firearm restored under Arizona law.”

12 The “catch-all” aggravator is defined as “[a]ny other factor that the 

state alleges is relevant to the defendant’s character or background or to the 

nature or circumstances of the crime.” A.R.S. § 13-701(D)(25).
STATE v. BILLUPS

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do change somewhere between 45 and 50” was in reference to the court’s

consideration and hope that, because of a maturing process, Appellant 

would not reoffend on release, not as a justification for imposing a harsher 

sentence. Moreover, the court clearly stated on the record at sentencing that 

it was imposing the aggravated sentence based on Appellant’s prior 

criminal history, Appellant’s failure to appear during the aggravation 

phase of the trial, and the fact that the offenses were committed for 

“pecuniary gain.” Accordingly, we find no support for Appellant’s 

argument that the trial court erred in imposing an aggravated sentence.

III. Denial of Motion for Mistrial

¶20 Appellant argues the trial court erred in denying his motion 

for mistrial after Iver testified about “an uncharged crime, guns, drugs, 

violence, murder, and gangs.” We review a trial court’s denial of a motion 

for mistrial for a clear abuse of discretion. State v. McCrimmon, 187 Ariz. 

169, 172, 927 P.2d 1298, 1301 (1996). We give great deference to the trial 

court’s decision because that court “is in the best position to determine 

whether the evidence will actually affect the outcome of the trial.” State v. 

Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000). “We will not reverse a 

conviction based on the erroneous admission of evidence without a 

‘reasonable probability’ that the verdict would have been different had the 

evidence not been admitted.” State v. Hoskins, 199 Ariz. 127, 142-43, ¶ 57, 

14 P.3d 997, 1012-13 (2000) (citing State v. Atwood, 171 Ariz. 576, 639, 832 

P.2d 593, 656 (1992)).

¶21 In determining whether unsolicited remarks made by a 

witness at trial are so improper as to require a mistrial, we consider (1) 

whether the jury has heard what it should not hear and (2) the probability 

that the jury was influenced by what it heard. State v. Laird, 186 Ariz. 203, 

207, 920 P.2d 769, 773 (1996) (citing State v. Hallman, 137 Ariz. 31, 37, 668 

P.2d 874, 880 (1983)).

¶22 Here, counsel apparently had an agreement that Appellant’s 

alleged participation in a home invasion would not be brought up at trial. 

However, Iver mentioned home invasions twice during his testimony. 

First, when the State asked if Iver could “elaborate on some of the training 

[he] received, as far as doing undercover work,” Iver responded that he had 

taken several courses related to undercover work, including a “two-week 

course where they dealt more with long-term undercover infiltrations” and 

a “two-week home invasion school, which was basically . . . charging and 

conducting undercover operations involving violent home invaders.” Iver 

then went on to generally describe these types of home invasions, stating,
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Go in, kill the guys, tie them up, beat them up. 

You know, it varies all the time. It’s in the 

newspapers as well, but going in there and 

ripping the drug loads or ripping the money, if 

they know where the money is, you know.

When Iver continued this narrative description, counsel for Appellant 

objected, and the trial court sustained the objection.

¶23 Later, with reference to the shotgun being offered for sale, the 

prosecutor asked Iver, “Did the defendant tell you that it was his firearm?” 

Iver answered the question by stating, “Yes. Yes.” Iver then continued his 

response, without interruption or objection, and gave a lengthy narrative 

description of his transactions with Appellant, testifying that Appellant 

told him he “knew some individuals that were going to commit a home 

invasion.” Defense counsel objected, and the court sustained the objection. 

Shortly thereafter, defense counsel requested a mistrial, stating the parties 

had agreed that Appellant’s alleged participation in a home invasion would 

not be brought up. The State acknowledged the parties had made such an 

agreement, and offered to “clean this up very quickly” with a corrective 

question to Iver, so that Iver could clarify that he was not suggesting 

Appellant was involved in the home invasion he had mentioned. The court 

stated it did not believe the State had intentionally introduced the 

testimony, indicated it would allow the corrective question, and denied the 

motion for mistrial.13 Defense counsel rejected the offer of a curative 

question, stating it would not help and “would just bring attention back to 

the issue of the home invasion.”

¶24 The State concedes that Iver “briefly testified to a matter the 

jury should not have heard.” The parties dispute, however, whether the 

Iver’s testimony was so prejudicial as to warrant a mistrial. Appellant cites 

State v. Cruz as support for his argument that Iver’s remarks were 

“particularly prejudicial in this case.” However, the circumstances in Cruz

were different. There, the appellant was tried with a co-defendant after the 

court denied multiple requests to sever his trial. State v. Cruz, 137 Ariz. 541, 

543, 672 P.2d 470, 472 (1983). At trial, counsel for the co-defendant elicited 

from a witness potentially prejudicial testimony that would not have come 

 

13 The court also suggested that Appellant’s counsel failed to timely 

object when Iver was testifying about “marginally relevant” topics.
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out if the appellant had been tried separately.14 Id. at 546, 672 P.2d at 475. 

The supreme court concluded that, because the testimony would not have 

come out had the appellant and co-defendant been tried separately, “the 

trial judge should have either ordered a mistrial as to [the] appellant and 

severed him from [the co-defendant] . . . or taken sufficient measures to 

protect against the prejudice.” Id.

¶25 In this case, Iver’s remarks on home invasions constituted

only a brief part of a five-day trial, during which the State presented

significant evidence, including video and audio footage, directly 

implicating Appellant in the charged offenses. See Laird, 186 Ariz. at 207, 

920 P.2d at 773 (holding that a mistrial was not warranted where, “[i]n light 

of the significant amount of evidence implicating [the defendant],” a 

witness’ statements likely did not “add[] anything to the jury’s 

consideration of the case”). Unlike the testimony in Cruz, which directly 

connected the appellant to certain crimes, the complained-of testimony by 

Iver in this case consisted of generalized statements about home invasions 

and an ambiguous reference to an unproven crime involving other 

individuals. See Jones, 197 Ariz. at 305, ¶ 34, 4 P.3d at 360 (concluding the 

trial court did not abuse its discretion in denying a motion for mistrial 

where a witness made “relatively vague references to other unproven 

crimes and incarcerations”). Further, when defense counsel objected to 

Iver’s testimony, the trial court sustained both objections. The prosecutor 

offered and the court approved a curative question, which likely would 

have resolved any doubt on the part of the jury about Appellant’s 

involvement in the alleged home invasion. Although defense counsel

rejected the curative question, the court later instructed the jury, “If the 

Court sustained an objection to an attorney’s question, please disregard the 

question and any answer given.” Thus, although Iver’s unsolicited

narratives in this regard may have been improper, we cannot conclude the 

statements were so prejudicial as to influence the jury’s decision in this case. 

See State v. Celaya, 135 Ariz. 248, 256, 660 P.2d 849, 857 (1983) (“A mistrial or 

reversal is warranted only if it appears reasonably possible that error might 

have materially influenced the jury.”) (citing State v. Grier, 129 Ariz. 279, 630 

 

14 The witness testified that “he had heard that [the] appellant had 

affiliations with organized crime, that he heard that [the] appellant had 

once hired two people from Chicago to kill him, . . . that [the] appellant had 

asked him . . . to break someone’s legs, and that he . . . had arranged for 

someone to burn a building at [the] appellant’s request.” Id. at 545-46, 672 

P.2d at 474-75.
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P.2d 575 (App. 1981)). Accordingly, the trial court did not abuse its 

discretion in denying Appellant’s motion for mistrial.

CONCLUSION

¶26 Appellant’s sentences and convictions are affirmed.