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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

STATE OF ARIZONA
, Appellee
,

v.

LARRY THOMAS JERNIGAN
, Appellant

.

No. 1 CA

- CR 15

- 0171

Appeal from the Superior Court in Maricopa County

No. CR 2014

- 103109

- 001 The Honorable Bruce R. Cohen
, Judge

AFFIRMED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Myles A. Braccio Counsel for Appellee

The Stavris Law Firm
, PLLC
, Scottsdale By Christopher Stavris C ounsel for AppellantSTATE v. JERNIGAN Decision of the Court

2 MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court , in which Presiding Judge Patricia A. Orozco and Judge Jon W . Thompson joined.

S W A N N
, Judge:

¶1 Larry Thomas Jernigan (“Defendant”) appeals his convictions and sentences for one count of robbery, one count of burglary in the first degree
, and two counts of aggravated assault. He contends the trial court erred when it (1) admitted evidence of a prior altercation between Defendant and another person , (2) failed to hold a voluntariness hearing, (3) ad mitted evidence of a photographic lineup
, and (4) denied a mistrial based o n prosecutorial misconduct. He also contends that the evidence was insufficient to support his convictions. For the following reasons, we affirm Defendant’s convictions and sentences.

FACTS 1 AND PROCEDURAL HISTORY

¶2 The two victims were the mother and aunt of “ Son. ” Defendant forced his way into the victims’ home after the mother answered the front door
, believing that the person at the door had an emergency

. Defendant told th e victims that Son had taken his gun and demanded that the victims return it . T he victims did not know about Defendant ’s earlier disagreement with Son about a gun.

¶3 Defendant refused to leave and eventually attacked the victims , both of whom fought ba ck

. Defendant repeatedly struck both victims on the face and head with a jack handle he took from one of the victims. Defendant took a cell phone, two purses and money when he finally left. Defendant ’s defense at trial was that he went to the residence to retrieve his backpack
, and he acted only in self

- defense after the victims attacked him

. Defense counsel argued that Defendant’s actions were necessary to escape the house alive.

1 “We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant.” State v. Greene , 192 Ariz. 431, 436, ¶ 12 (1998). In our review of the record, we resolve any conflict in the evidence in favor of sustaining the verdict. State v. Guerra , 161 Ariz. 289, 293 (1989).STATE v. JERNIGAN Decision of the Court

3 ¶4 The state charged Defendant with two counts each of aggravated assault, armed robbery
, and kidnapping
, and one count of burglary in the first degree. The s tate also charged Defendant with misconduct involving weapons, but the court severed this count before trial. The trial court granted the state’s moti on to dismiss one count of armed robbery mid

- trial.

¶5 Defendant filed a pretrial motion in limine to exclude evidence of an altercation with Son. During the hearing on the motion, Defendant agreed that if the trial court severed the count of misconduct in volving weapons, he would have no objection to the admission of the evidence and would even stipulate to the basic facts of the prior altercation. When the court severed the count, Defendant suggested that rather than stipulate to the evidence, the partie s could simply introduce evidence of the prior altercation through one of the investigating officers. By the time of trial, however, the parties had agreed to stipulate to the evidence. The trial court read the stipulation before the state’s opening stat ement. The stipulation read:
The agreement of the parties is on January 1 st , 2014, at approximately 20 minutes before the incident at [ the mother’s home], there was an altercation between [Son] and [Defendant] over a handgun. This altercation occurred at 6800 West Heatherbrae Drive.

The state and Defendant both referenced the stipulation in their opening statements. Defendant referenced the prior altercation again in his cross

examination of Son’s mother and at least four times in his closing argument.

¶6 The jury acquitted Defendant of both counts of kidnapping. The jury found Defendant guilty of the remaining counts ; t he trial court sentenced him to an aggregate term of eleven years’ imprisonment. Defendant appeals

.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

¶7 Defendant argues the evidence was insufficient to support his convictions. He does not address the elements of the offenses, does not discuss the evidence in the context of those elements
, and does not argue that the state presented no testimony or other evidence to support each element of each offense

. Defendant instead attacks the victims’ credibilit y. He asserts that “ [ t] he testimony of the witnesses, taken as a whole, wasSTATE v. JERNIGAN Decision of the Court

4 inconsistent at best, and possibly even unbelievable.” He also argues the victims’ testimony differed from their statements to investigators and that the medical evidence did not suppo rt their claims.

¶8 “Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction.” State v. Soto

- Fong , 187 Ariz. 186, 200 (1996) (citation omitted). “To set aside a j ury verdict for insufficient evidence, it must clearly appear that u pon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.” State v. Arredondo
, 155 Ariz. 314, 316 (1987).

¶9 A person commits aggravated assault if he commits assault with a deadly weapon or dangerous instrument. A .R.S. § 13

- 1204(A)(2). A person commits robbery if he takes the property of another from the other’s person or immediate presence against the other’s will and does so by threatening or using force against any person with the intent to coerce surrender of the property or prevent resistance to taking or keeping the property. A.R.S. § 13

- 1902(A). Finally, a person commits first degree burglary if he commits burglary in the second degree while knowingly possessing a deadly weapon or dangerous instrument. A.R.S. § 13

- 1508(A). A person commits burglary in the second degree if he enters or remains unlawfully in a residential structure with the intent to commit a theft or felony therein. A.R.S. § 13

- 1507(A).

¶10 The evidence cited above was sufficient to support Defendant ’s convictions beyond a reasonable doubt

. And t he victims’ credibility “is an issue to be resolved by the jury.” Soto

- Fong , 187 Ari z. at 200 (citation omitted)

. “Because a jury is free to credit or discredit testimony, we cannot guess what they believed, nor can we determine what a reasonable jury should have believed.” State v. Bronson , 204 Ariz. 321, 328, ¶ 34 (App. 2003) (citation omitted)

. We find no reversible error.

II. THE PRIOR ALTERCATION

¶11 Defendant contends the trial court erred when it admitted evidence of the prior altercation between Defendant and Son over a gun

. When a defendant informs a trial court not only that he does n ot object to the admission of evidence, but that the evidence is admissible, the defendant may not raise that issue on appeal. State v. Pandeli , 215 Ariz. 514, 528, ¶ 50 (2007). Defendant did not merely tell the trial court the evidence was admissible, he stipulated to its admission and then used the evidence to support his defense. He has waived appellate review of this issue. Further, even if there was any error , it was invited. Id

. And “ [i] f error isSTATE v. JERNIGAN Decision of the Court

5 invited, we do not consider whether the alleged error is fundamental.” State v. Logan , 200 Ariz. 564, 565, ¶ 9 (2001).

III. THE FAILURE TO HOLD A VOLUNTARINESS HEARING

¶12 Defendant asserts the trial court erred when it failed to hold a hearin g to determine whether his statements to a detective were voluntary. Defendant contends his statements were not voluntary because the detective used deceptive tactics to cause him to have further contact with the detective after he asked for an attorney. 2

¶13 The failure to move to suppress statements or object to their admission at trial waives any error. State v. Sutton , 115 Ariz. 417, 420 (1977). Defendant did not file a motion to suppress his statements , nor did he object to the ir admission. Indeed, he used many of his statements to the detective in support of his defense . Because Defendant did not testify, his statements to the detective were the sole evidence for his defense

. ¶14 Regardless
, Defendant argues his failure to move to suppress or object is unimportant because the trial court should have held a voluntariness hearing sua sponte

. He argues that the court was required to do so because Arizona law presumes that a defendant’s statements to law enforcement personnel are involuntary

. See State v. Emery , 131 Ariz. 493, 498 (1982). He further argues tha t A.R.S. § 13

- 3988(A) requires a trial court to hold a voluntariness hearing sua sponte in all cases in which the state seeks to admit a defendant’s statements to law enforcement personnel
, regardless of w hether the defendant seeks to suppress or otherwise objects
to those statements

. ¶15 Arizona law , however, does not require a trial court to hold a voluntariness hearing sua sponte absent a defendant’s request for a hearing or objection to the admission of the statement

. State v. Finn , 111 Ariz. 271, 275 (1974). A.R.S. § 13

- 3988(A) provides only that a trial court determine

2 N othing in the record support s Defendant’s claims of involuntariness or deceptive tactics. Neither p arty offered this portion of the interview into evidence, the interview is not otherwise in the record on appeal
, and his request for counsel and subsequent initiation of further contact were not addressed in any detail with any witness. The record shows o nly that a detective testified that Defendant requested counsel at the beginning of the interview and then engaged in further contact with the detective.STATE v. JERNIGAN Decision of the Court

6 “any issue as to voluntariness” out of the presence of the jury before the court admits the s tatement into evidence. 3

¶16 There is no “issue as to voluntariness” until a defendant places voluntariness in issue , and a defendant has the burden to raise issues regarding voluntariness and compliance with Miranda

. S ee, e.g., State v. Alvarado , 121 Ariz. 485 , 487

- 88 (1979); S tate v. Anaya , 170 Ariz. 436, 443 (App. 1991). Until the defendant seeks to suppress the statements or otherwise objects to their admission, the state has no burden to prove a defendant’s statements were voluntary

. State v. Wilson
, 164 Ariz. 406, 407 (App. 1990). 4 And a defendant need only file a timely motion to suppress or make a timely objection to place the burden of persuasion on the state

. Ryan v. Superior Court (City of Phoenix) , 121 Ariz. 385, 387 (1979). U ntil the defenda nt does so, the trial court is not required to hold a voluntariness hearing. 5 We find no error.

IV. EVIDENCE OF THE PHOTOGRAPHIC LINEUP

¶17 Defendant argues that the trial court erred when it admitted testimony that the two victims identified Defendant in photograph ic lineups. He argues that the photographic lineup police showed the victims was unduly suggestive and taint ed their in

- court identif ications.

¶18 Defendant did not object to the testimony at issue but objected to the admission of the photographic lineup it self because of a n alleged disclosure violatio n. 6 During t he discussion of disclosure
, Defendant alleged the lineup was suggestive

. B ut he also argued the lineup was

3 The word “confession” as used in A.R.S. § 13

- 3988 means any confession of guilt or self

- incriminatin g statement. A.R.S. § 13

- 3988(C).

4 Absent an objection to the admission of a defendant’s statements, there is no constitutional requirement that the court hold a voluntariness hearing. Wainwright v. Sykes , 433 U.S. 72, 86 (1977); State v. Fayle , 134 Ar iz. 565 , 579

- 80 (App. 1982).

5 Defendant’s reliance on State v. Montes to support his argument to the contrary is unavailing because the defendant in Montes raised the issue of voluntariness. 136 Ariz. 491, 496 (1983).

6 N othing in the record support s Defendant’s claim that the s tate conceded it failed to disclose the lineup.STATE v. JERNIGAN Decision of the Court

7 irrelevant because he was not presenting a defense of alibi or mistaken identity nor challenging that he was the person involved in the altercation with the victims. The court agreed with Defendant that identity was not an issue. The trial court sustained the objection an d excluded the lineup. 7

¶19 First, the court did not admit the photographic lineup into evidence and it is not otherwise in the record on appeal. T herefore, nothing in the record support s Defendant ’s claim that the photographic lineup was unduly suggestive. While the trial court criticized the quality of the lineup, it did not find the lineup was unduly suggestive
, and we will not speculate that it was so based solely on general criticisms. Second
, Defendant not only did not challenge the in

- court identificatio ns, he argued that the pretrial identifications were unimportant because he did not contest the validity of the in

- court identifications. If a defendant does not challenge an in

- court identification at trial, we presu me any pretrial identification procedure did not taint the in

- court identification. State v. Dessureault , 104 Ariz. 380, 384 (1969). Finally , any error would be harmless because Defendant did not contest that he was the person involved in the altercation with the victims. We find no error.

¶20 Defendant contends the trial court also erred when it failed to give a “cautionary instruction” to the jury about the unduly suggestive nature of the lineup. Defendant did not request such an instruction and does not ide ntify any specific instruction the court should have given. A cautionary jury instruction is required when a defendant presents evidence that the pretrial identification was made under suggestive circumstances that might cause the later identification to be of questionable reliability. State v. Nottingham , 231 Ariz. 21, 26

- 27 , ¶ ¶ 13

- 14 (App. 2012). T here is no such evidence here

. Thus, no instruction was necessary.

V. THE DENIAL OF THE MOTION FOR MISTRIAL

¶21 Defendant finally argues that the trial court erred when it denied his motion for mistrial based on prosecutorial misconduct.

¶22 During the aggravation phase of trial, the state called Defendant’s probation officer to establish that he was on probation at the time he committed the offenses. During her testimony, the officer explained that she took pictures of the people she supervised to help identify them. The state showed the officer a photograph of Defendant from the officer’s file and asked, “Is that what we’re looking at when we’re

7 Despite Defendant ’ s claims , the trial court did not exclude the lineup because it was unduly suggestive.STATE v. JERNIGAN Decision of the Court

8 looking at Exhibit number 86?” The officer responded, “Yes. This wouldn’t have been the first meeting, this would have been a meeting, the day of it, would have been after he was released from jail for violating his probation.”

¶23 Defendant objected and moved for a mistrial, ar guing that the state should have warned the witness not to reference jail or the probation violation. Defendant, however, did not argue at the trial court that the prosecutor engaged in misconduct. The court took Defendant’s motion for mistrial under advisement, struck the answer, instructed the jury to disregard it
, and informed them it had no relevance to any issue they had to decide. The trial court held there was no prosecutorial misconduct, noting that the probation officer’s answer was not respon sive to the state’s question or the general line of inquiry.

¶24 The court ultimately denied the motion for mistrial. It held that the probation ’ s officer testimony did not deny Defendant a fair trial on the aggravating circumstances and noted that the jury had already determined Defendant’s guilt. The court reasoned that the jury was no more inclined to find aggravating circumstances knowing that Defendant had been in jail for violatin g the terms of his probation than if they knew only that he was on probation when he committed the offenses. When the jury returned its verdicts on the aggravating circumstances, it found the state failed to prove five of the alleged aggravating circumstances. This convinced the trial court that the probation officer ’ s testimony had no prej udicial impact and that the jury did, in fact, disregard it.

¶25 The decision to deny a motion for mistrial is error only if it was a clear abuse of discretion. State v. Murray , 184 Ariz. 9, 35 (1995). We will reverse t he trial court’s decision only if it was “palpably improper and clearly injurious.” Id. ( citation omitted ). T his is because t he trial judge is in the best position to determine whether a particular incident calls for a mistrial. State v. Koch , 138 Ariz. 99, 101 (1983)

. The trial judge is a ware of the atmosphere of the trial, the circumstances surrounding the incident, the manner in which a witness made any o bjectionable statement
, and its possible effect on the jury and the trial. See i d. “When a witness unexpectedly volunteers an inadmiss ible statement, the remedy rests largely within the discretion of the trial court.” State v. Marshall , 197 Ariz. 496, 500, ¶ 10 (App. 2000).

¶26 Regarding the alleged misconduct, we likewise will not reverse the denial of a mistrial based on prosecutorial m isconduct absent a clear abuse of discretion. State v. Lee , 189 Ariz. 608, 616 (1997). P rosecutorial misconduct is not merely “legal error, negligence, mistake or insignificant impropriety, but, taken as a whole, amounts to intentional conduct whichSTATE v. JERNIGAN Decision of the Court

9 the prosecutor knows to be improper and prejudicial.” Pool v. Superior Court (State of Arizona) , 139 Ariz. 98, 108

- 09 (1984).

¶27 W e find no abuse of discretion. First, there was no prosecutorial misconduct. The probation officer’s statement that a photograp h “[w]ould have been after he was released from jail for violating his probation” was not in response to any question from the state , and the prosecutor did nothing to elicit the testimony

. Second, n othing suggest s the incident otherwise required a mistrial. The incident occurred during the aggravation phase after t he jury had already determined Defendant ’s guilt and heard evidence that he was on probation at the time he committed the offenses. That the jury was expose d to additional information that he had been arrested and later released for violating his probation did not deny him a fair trial. Finally, the trial court struck the testimony and instructed the jury to disregard it. W e presume the jury followed the co urt’s instruction. S tate v. Dunlap , 187 Ariz. 441, 461 (App. 1996).

CONCLUSION

¶28 For the foregoing reasons, we affirm Defendant ’s convictions and sentences.