NOTICE: NOT FOR PUBLICATION.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

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CHRISTOPHER WILLIAM SYLVESTER, Appellant.

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 Appellee

Mohave County Legal Advocate Attorney’s Office, Kingman

By Jill L. Evans

Counsel for Appellant
STATE v. SYLVESTER

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered 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 

convictions and sentences 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 HISTORY1

¶2 On April 5, 2012, police officers executed a search warrant at 

a residence in Bullhead City, Arizona. They found Appellant and a 

woman lying on a bed in the front bedroom, with a loaded handgun on 

the nightstand next to Appellant. Next to the bed, the officers found a 

shower kit that contained 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 Appellant 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 2014)2; Count 

VI, possession of marijuana, a class six felony, in violation of A.R.S. § 13-

3405(A)(1); and Count VII, misconduct involving a weapon, a class four

felony, in violation of A.R.S. § 13-3102(A)(4). At 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 Appellant. See State 

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

2 We cite the current version of each statute unless revisions material 

to our decision have occurred after 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.

The jury found Appellant guilty of Counts V and VII as charged, and not 

guilty of Count VI. After finding Appellant had one historical prior felony 

conviction, the court sentenced Appellant to consecutive mitigated

sentences of one year in prison for Count V and three years’ imprisonment 

for Count VII. 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 officer 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 

asserted his right to remain silent. See State v. Gilfillan, 196 Ariz. 396, 406, 

¶¶ 36-37, 998 P.2d 1069, 1079 (App. 2000). A defendant 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) (citations

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 into the record and then profiting from it on appeal

(citations omitted)).

¶7 In this case, the police officer’s testimony that Appellant had 

“invoked [his] rights” was directly responsive to a question posed by 

defense counsel. Because it was Appellant’s own counsel – and not the 

prosecutor – who elicited the testimony, Appellant’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 the statement harmless beyond a 

reasonable doubt. See State v. Anderson, 110 Ariz. 238, 241, 517 P.2d 508, 

511 (1973) (acknowledging the doctrine of harmless error 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 Appellant’s convictions and sentences are affirmed.