Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2011-147566-003 The Honorable Cynthia Bailey, Judge
Arizona Attorney General's Office, Phoenix By Terry M. Crist Counsel for Appellee
Maricopa County Legal Advocate's Office, Phoenix By Kerri L. Chamberlin Counsel for Appellant
Presiding Judge Maurice Portley delivered the decision of the Court, in which Judge John C. Gemmill and Judge Kent E. Cattani joined.
Maurice Portley, Judge
¶1 Thomas Larry McLean appeals his conviction and sentence for possession for sale of narcotic drugs. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On the morning of September 13, 2011, Phoenix police observed McLean engaging in the sale of illegal drugs. As part of a two-man operation, McLean collected money from buyers and then directed the buyers to collect the drugs from his partner. McLean and his partner were subsequently arrested, indicted as codefendants and were tried together.
¶3 At trial, Officer H. testified that he had observed McLean selling drugs. The jury subsequently found McLean guilty of one count of possession for sale of narcotic drugs. He was sentenced to the presumptive term of 15.75 years in prison and given credit for 422 days of presentence incarceration.
¶4 McLean argues that the trial court erred by denying his two requests for a mistrial after inadmissible evidence was admitted. On appeal, we review a motion for mistrial based on evidentiary issues for an abuse of discretion. State v. Bible, 175 Ariz. 549, 598, 858 P.2d 1152, 1201 (1993). An abuse of discretion exists if a decision is "manifestly unreasonable, or exercised on untenable grounds or for untenable reasons." State v. Sandoval, 175 Ariz. 343, 347, 857 P.2d 395, 399 (App. 1993). We are deferential to the trial court because it is in "the best position to evaluate 'the atmosphere of the trial, the manner in which the objectionable statement was made, and the possible effect it had on the jury and the trial.'" Bible, 175 Ariz. at 598, 858 P.2d at 1201 (quoting State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983)). Furthermore, absent a reasonable probability that the verdict would have been different, we will not reverse a conviction based on the admission of erroneous evidence. State v. Hoskins, 199 Ariz. 127, 142-43, ¶ 57, 14 P.3d 997, 1012-13 (2000) (supplemented by 204 Ariz. 572, 65 P.3d 953 (2003)).
I. Prior Bad Act
¶5 McLean argues that his first motion for mistrial should have been granted because Officer H. testified that McLean was a known drug dealer, which was an inadmissible prior bad act. Evidence of a defendant's prior bad acts or other crimes is inadmissible to demonstrate the defendant's bad character or that his or her actions were in conformity with that ...