NOTICE: NOT FOR PUBLICATION. UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS D IVISION O NE

STATE OF ARIZONA
, Appell ee ,

v.

CHRISTOPHER WILLIAM SYLVESTER
, Appell ant

.
No. 1 CA

- CR 13

- 0543

Appeal from the Superior Court in Mohave County No. S8015CR201200503 The Honorable Derek Carlisle
, Judge The Honorable Steven F. Conn, Judge

AFFIRMED

COUNSEL
Arizona Attorney General ’s Office , Phoenix By Colby Mills Counsel for Appell ee
Mohave County Legal Advocate Attorney ’s Office
, Kingman By Jill L. Evans C ounsel for Appell antSTATE v. SYLVESTER Decision of the Court

2 MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop deliver ed the decision of the Court, in which Judge Maurice Portley and Judge Andrew W. Gould joined.

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

¶1 Christopher William Sylvester (“Appellant”) appeals his conviction s and sentence s for possession of drug paraphernalia and misconduct involving a weapon. Appellant argues the State improperly commented on the fact that he had invoked his Fifth Amendment right to remain silent. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY 1

¶2 On April 5, 2012, police officers executed a search warrant at a residence in Bullhead City, Arizona. The y found Appellant and a

woman lying on a bed in the front bedroom
, with a loaded hand gun on the nightstand next to Appellant. Next to the bed
, the officers found a shower kit that contain ed men’s toiletry items and a glass methamphetamine pipe

. On the covers near the middle of the bed, the officers found a small marijuana pipe, which contained burnt marijuana residue and fresh marijuana packed into the pipe

. ¶3 Appell ant was charged by indictment with Count V , possession of drug paraphernalia, a class six felony, in violation of Arizona Revised Statutes (“A.R. S. ”) section 13

- 3415 (West 2 014) 2 ; Count VI , possession of marijuana , a c lass six felony
, in violation of A.R. S. § 13

- 3 405 (A)(1) ; and Count V II, mi sconduct involving a weapon, a c lass four felony, in violation of A.R. S. § 13

- 3102(A)(4 )

. A t trial, the parties stipulated Appellant had been convicted of a felony and his right to

1 We view the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against Appell ant. S ee S tate

v. Nihiser
, 191 Ariz. 199, 201
, 953 P. 2 d 1252, 1254 (App. 1997 ).

2 We cite the current version of each statute unless revision s material to our decision have occurred af ter the relevant date

.STATE v. SYLVESTER Decision of the Court

3 possess a gun had not been restored

- i.e., he was a prohibited possessor. T he jury found Appellant guilty of Counts V and V II as charged , and not guilty of Count V I

. After finding Appell ant had one historical prior felon y conviction , the court sentenced Appellant to consecutive mitigated sentences of one year in prison for Count V and three years’ imprisonment for Count VI I

. We have jurisdiction over Appellant’s timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 13

- 4031 and 13

- 4033.

ANALYSIS

¶4 At trial, the following exchange took place between defense counsel and a testifying police o fficer who was present during Appellant’s
arrest : Q: Did you ever have an opportunity to ask [Appellant] about him having a vehicle there?
A: Both the subjects in the bed, including [Appellant]
, invoked their rights, so there was no questioning beyond that.
Defense counsel approached the bench and objected to the answer as an impermissible comment on Appellant’s right to remain silent. The prosecutor argued the answer should have been expected, and the court agreed. Nonetheless , the court instructed the jury to disregard the answer and struck it from the record

. ¶5 Appellant argues his convictions should be reversed because

“ the officer intentionally volunteered the extra and unnecessary information that Appellant invoked his Miranda [ 3 ] rights, rather than just answering the question in the negative .” We disagree.

¶6 In general, a defendant’s right to due process is violated when the State elicits testimony from a witness at trial that the defendant

asser ted his right to remain silent. See State v. Gil fill an , 196 Ariz. 396, 406, ¶ ¶ 36

- 37 , 998 P.2d 1069, 1079 (App. 2000). A defe ndant who invites error at trial, however, may not then assign the same as error on appeal. State v. Pandeli , 215 Ariz. 514, 528, ¶ 50, 161 P.3d 557, 571 (2007) (citation s omitted) ; accord State v. Logan , 200 Ariz. 564, 565

- 66, ¶¶ 9, 11, 30 P.3d 631, 632

- 33 (2001) (recognizing the invited error doctrine precludes a party

3 Miranda v. Arizona , 384 U.S. 436 (1966).STATE v. SYLVESTER Decision of the Court

4 from injecting error in to the record and then profiting from it on appeal (citations omitted) )

. ¶7 In this case, the police officer’s testimony that A ppellant had

“ invo ked [ his ] rights ” w as direct ly respons iv e to a question posed by defense counsel. Because it was Appellant’s own counsel

– and not the prosecutor

– who elicited the testimony
, Ap pellant’s argument is foreclosed by the invited error doctrine. Consequently, Appellant cannot

use the alleged error as grounds for reversal on appeal. See Pandeli , 215 Ariz. at 528, ¶ 50, 161 P.3d at 571.

¶8 Moreover, even if the officer’s statement could be attributed
to the State, that statement was the only reference to Appellant’s Fifth Amendment rights made during trial, and the court immediately struck the statement and instructed the jury to disregard it. We presume jurors follow a court’s instructions. State v. Newell , 212 Ariz. 389, 403, ¶ 69, 132 P.3d 833, 847 ( 2006). Here, the plain facts of the case, as well as the trial court’s prompt instruction striking the officer’s statement and directing the jury to disregard it
, render t he statement harmless beyond a reasonable doubt

. See State v. Ande rson , 110 Ariz. 2 38, 241, 517 P. 2d 508, 511 (1973) (acknowledging the doctrine of harmless er r or may be applied “when the evidence of guilt is overwhelming and the record reflects that the error, though fundamental, did not contribute to the guilty verdict”)

.
CONCLUSION

¶9 Ap pell ant’s convictions and sentences are affirmed

.