State v. Mullet ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAEL DUANE MULLET, Appellant.
No. 1 CA-CR 17-0179
FILED 6-14-2018
Appeal from the Superior Court in Maricopa County
No. CR2016-002063-001
The Honorable Warren J. Granville, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Nicholas Klingerman, Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
Piccarreta Davis Keenan Fidel P.C., Tucson
By Jefferson Keenan
Co-Counsel for Amicus Curiae, Arizona Attorneys for Criminal Justice
Pima County Public Defender’s Office, Tucson
By David J. Euchner
Co-Counsel for Amicus Curiae, Arizona Attorneys for Criminal Justice
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge James P. Beene joined.
C A M P B E L L, Judge:
¶1 Michael Duane Mullet appeals his convictions and sentences
for 35 counts of fraudulent schemes and artifices and one count of theft. He
argues the fraud convictions should be reversed because the fraudulent
schemes and artifices statute criminalizes the “aggregate of benefits
pursuant to the same scheme” and the State presented evidence of, at most,
only one scheme. Mullet also challenges the sufficiency of evidence
supporting his fraud convictions and contends the trial court improperly
precluded him from cross-examining a State’s witness about the witness’s
prior felony convictions. Finally, Mullet argues the trial court erred in
denying his requested supplemental jury instruction, and he raises a
prosecutorial misconduct claim. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND1
¶2 A Homeowner discovered a water leak under his driveway
and called Lawson Family Plumbing (“Lawson”) to request a service
technician. Because Homeowner had recently depleted his savings, he
asked the Lawson dispatcher whether he could pay for plumbing services
with a credit card. The representative assured him that Lawson accepted
credit cards.
¶3 Mullet was the Lawson service technician who responded to
the home. After completing the repairs, Mullet informed Homeowner that
Lawson’s credit card “machine” was inoperable, and he would have to
issue a check payable to Mullet personally. Unable to pay by check,
1 We view the facts in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against Mullet. See State v.
Valencia, 186 Ariz. 493, 495 (App. 1996).
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Homeowner called Lawson directly to relay his credit card information so
the company could charge the card to pay for the plumbing work. The
Lawson representative who responded to Homeowner’s call was
“confused” because “she had a hard time finding the job” Mullet had
completed at his location. J.L., Lawson’s founder and president,
immediately investigated and learned Mullet had been receiving checks
from numerous Lawson customers payable to himself for plumbing work
Mullet performed on behalf of the company.2 The following day, J.L.
contacted police and terminated Mullet’s employment with Lawson.
¶4 J.L. subsequently determined that Mullet exploited a loophole
in the company’s computer invoicing system whereby Mullet would e-mail
the customer an invoice from a company-supplied tablet stating the amount
the customer paid Mullet by check, but the electronic invoice copy that the
company received would either show no work was done (indicating Mullet
only furnished the customer with a free estimate but did not perform any
work) or the invoice would show an amount paid that was less than the
customer actually paid Mullet. Mullet would then deposit the funds into
his personal bank accounts. Mullet sent J.L. a letter and then a separate e-
mail expressing remorse. In the email he offered to repay Lawson “to
mak[e] all issues right.” Mullet never repaid the company.
¶5 After a police investigation, the State charged Mullet with 43
counts of fraudulent schemes and artifices and one count of theft. Each
fraud count alleged a date of offense relating to a check a Lawson customer
had issued to Mullet. The theft count alleged a loss of property with a value
between four and twenty-five thousand dollars. J.L. dba Lawson Family
Plumbing was the alleged victim in all counts.
¶6 For eight of the fraud counts, the trial court entered a
judgment of acquittal pursuant to Arizona Rule of Criminal Procedure
20(a). The jury found Defendant guilty of all remaining counts. For 20 of the
fraud convictions, the court imposed presumptive 9.25-year prison terms
and, for the remaining 15 fraud counts, 10-year prison terms. The court
2 Lawson required its service technicians to collect customers’ checks
made payable only to the company. Every Friday, the technicians would
turn over the checks and cash to the company, and the company would pay
each technician a commission based on the total amount of customer
payments the technician collected that week. Furthermore, each technician,
including Mullet, signed an “Associate Agreement” with the company that,
among other things, prohibited the technician from soliciting Lawson’s
customers during his or her employment.
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imposed a 6.5-year prison term for the theft conviction and ordered all
prison terms be served concurrently.
DISCUSSION
I. Unit of Prosecution for Fraudulent Schemes and Artifices
¶7 Mullet argues that the plain language of the fraudulent
schemes and artifices statute evinces a legislative intent to criminalize the
“aggregate of benefits” a suspect obtains pursuant to the same scheme.
Relying on State v. Suarez, 137 Ariz. 368 (App. 1983), Mullet notes that the
scheme to defraud is the criminal conduct under Arizona Revised Statutes
(“A.R.S.”) § 13-2310, not the acts committed in furtherance of the scheme.
Consequently, Mullet contends he was properly subject to only one count
of fraud based on his scheme to defraud the Lawson company and that
collecting customer checks made out to him personally were mere acts that
effectuated the scheme. According to Mullet, the indictment was therefore
multiplicitous. See State v. Powers, 200 Ariz. 123, 125, ¶ 5 (App. 2001)
(“Multiplicity occurs when an indictment charges a single offense in
multiple counts . . . rais[ing] the potential for multiple punishments, which
implicates double jeopardy.”).
¶8 Although Mullet did not raise this argument at trial, we
nonetheless address it de novo because it implicates Mullet’s double
jeopardy rights, and a violation of the Double Jeopardy Clause constitutes
fundamental error. State v. McGill, 213 Ariz. 147, 153, ¶ 21 (2006); Powers,
200 Ariz. at 125, ¶ 5. We also review issues of statutory interpretation de
novo. State v. Peek, 219 Ariz. 182, 183, ¶ 6 (2008). To determine a statute’s
meaning, we look first to its text. State v. Holle, 240 Ariz. 300, 302, ¶ 11 (2016).
When the text is clear and unambiguous, we apply the plain meaning and
our inquiry ends. Id. at 302, ¶ 11. “[T]he words of a statute are to be given
their ordinary meaning unless it appears from the context or otherwise that
a different meaning is intended.” State v. Miller, 100 Ariz. 288, 296 (1966).
¶9 The fraudulent schemes and artifices statute, in relevant part,
states: “Any person who, pursuant to a scheme or artifice to defraud,
knowingly obtains any benefit by means of false or fraudulent pretenses,
representations, promises or material omissions is guilty of [committing
fraudulent schemes and artifices].” A.R.S. § 13-2310(A) (emphasis added).
Generally, “if multiple violations of the same statute are based on the same
conduct, there can be only one conviction if there is a single offense.” State
v. Jurden, 239 Ariz. 526, 529, ¶ 11 (2016). “In such cases, the statutory
definition of the crime determines the scope of conduct for which a discrete
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charge can be brought, which the United States Supreme Court has referred
to as the ‘allowable unit of prosecution.’” Id. (quoting U.S. v. Universal C.I.T.
Credit Corp., 344 U.S. 218, 221 (1952)).
¶10 Mullet’s argument, similar to the argument raised by amicus
curiae Arizona Attorneys for Criminal Justice (“AACJ”), improperly
focuses on the overarching scheme to steal the company’s money and
suggests that should be the “unit of prosecution” for charging purposes.
Mullett and the AACJ attempt to use the word “scheme” in accordance with
one of its common definitions—“a plan or program of action.” Merriam-
Webster’s Collegiate Dictionary 1110 (11th ed. 2014). To be sure, Mullet
engaged in such a scheme, but the ongoing conduct was not the “scheme”
contemplated by the legislature in A.R.S. § 13-2310 to be used as the unit of
prosecution. Rather, as we explain, the legislature intended the requirement
of “knowingly obtains any benefit” to be the unit of prosecution for
charging purposes.
¶11 Even if the existence of a scheme was the intended unit of
prosecution, that scheme was complete each time Mullet requested and
received a check—“any benefit”—from a Lawson customer payable to him
personally with the intent to defraud the company from the financial
benefit of the service provided. The transaction with each such customer
took place on a date distinct from the other transactions, and each such
transaction was a separate scheme that consisted of a series of acts, such as
(1) Mullet’s successful request to the customer that a check be made out to
him, (sometimes by falsely stating that paying by credit card was not
possible), (2) Mullet depositing the check funds into his personal bank
accounts, and (3) his manipulation of Lawson’s invoicing system to hide the
fact that he received payment for work he performed on behalf of Lawson.
Although the individual acts in furtherance of each scheme may not have
been properly chargeable as separate frauds, those acts comprised the total
fraudulent transaction or scheme that Mullet engaged in numerous times
with different customers. See Suarez, 137 Ariz. at 373 (“A scheme to defraud
. . . implies a plan, and numerous acts may be committed in furtherance of
that plan.”); cf. State v. Johnson, 179 Ariz. 375, 380 (1994) (noting employee
entrusted with key to display case first using key to embezzle jewels and
then lying to employer would not be fraud; the fraud statute “requires a
false pretense to be the means by which the benefit is obtained, not the means
to avoid detection”). Because the scheme relating to each separate fraud
count required proof that the other counts did not, the fraud counts were
not multiplicitous. Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 12 (App. 2004)
(“Offenses are not the same, and therefore not multiplicitous, if each
requires proof of a fact that the other does not.”).
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¶12 Although A.R.S. § 13-2310 contemplates the existence of a
scheme or artifice to defraud, we conclude that “knowingly obtains any
benefit” is the intended unit of prosecution as illustrated by the facts of this
case. Significantly, the mens rea of “knowingly” clearly refers to
“obtain[ing] any benefit.” The statute plainly refers to “knowingly obtains
any benefit,” not the “aggregate of benefits” as proposed by Mullet. As
such, we reject Mullet’s argument that the legislature intended multiple
similar schemes, perpetuated on different dates, against one victim should
properly subject the perpetrator to only one count of fraudulent schemes
and artifices.
¶13 We note that had Mullet engaged in only one fraudulent
transaction with a Lawson customer, charging him with one count of
fraudulent schemes and artifices would have been proper. Mullet does not
argue otherwise. It logically follows that when Mullet engaged in
subsequent independent fraudulent transactions, each one would be
properly chargeable as a discrete offense of fraudulent schemes and
artifices. After all, each time Mullet fraudulently received a check payable
to him, he caused Lawson additional harm and received a benefit to which
he was not entitled. Construing A.R.S. § 13-2310 in the fashion Mullet
proposes would lead to an absurd result: a defendant who commits a
fraudulent act would be insulated from prosecution for additional discrete
fraudulent acts committed against the same victim. State v. Barragan-Sierra,
219 Ariz. 276, 282, ¶ 17 (App. 2008) (when construing statutory language,
“[w]e employ a common sense approach, reading the statute in terms of its
stated purpose and the system of related statutes of which it forms a part,
while taking care to avoid absurd results”).
¶14 Our conclusion is supported by case law construing 18 U.S.C.
§ 1341, the federal mail fraud statute from which A.R.S. § 13-2310 was
adapted. See Johnson, 179 Ariz. at 379 (“In Haas, we acknowledged the
persuasive value of decisions construing the federal mail fraud statute in
our construction of § 13–2310(A).”); State v. Haas, 138 Ariz. 413, 418 (1983)
(noting legislature adapted A.R.S. § 13-2310 from 18 U.S.C. § 1341). Federal
courts that have engaged in such a construction have uniformly held that
each separate use of the mails in execution of a scheme to defraud
constitutes a separate offense of mail fraud. See, e.g., U.S. v. McClelland, 868
F.2d 704, 706 (5th Cir. 1989) (“Each separate use of the mails to further a
scheme to defraud is a separate offense.”); U.S. v. Joyce, 499 F.2d 9, 18 (7th
Cir. 1974) (“[There] is no doubt that the law may make each putting of a
letter into the post office a separate offence.”) (quoting Badders v. U.S., 240
U.S. 391, 394 (1916)).
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¶15 Mullet suggests that State v. Suarez leads to the conclusion that
the legislature intended A.R.S. § 13-2310 to apply to an “aggregate of
benefits.” There, the defendant accepted a number of fraudulent kickback
payments as part of the same scheme to defraud Lake Havasu City. Suarez,
137 Ariz. at 371-72. The State elected to charge all of the kickbacks as a single
count of fraudulent schemes and artifices. Id. at 372. This court rejected the
defendant’s challenge to the indictment on duplicity grounds, reasoning
the evidence established one plan to defraud, not separate plans related to
each kickback. Id. at 373. The State could elect to charge a single count and
prove the scheme through evidence of some, but not all of the events. Here,
on the other hand, the State elected to charge each transaction as a single
count or unit of prosecution. As the State points out, Suarez also stands for
the proposition that a prosecutor is permitted to aggregate multiple
“obtain[ings]” of “benefits” into a single charge of fraudulent schemes and
artifices, which is consistent with Arizona law generally. See State v. Klokic,
219 Ariz. 241, 244, ¶ 14 (App. 2008) (“[I]n drafting an indictment, the State
may choose to charge as one count separate criminal acts that occurred
during the course of a single criminal undertaking even if those acts might
otherwise provide a basis for charging multiple criminal violations.”).
Suarez does not require the State to make that charging decision, but rather
gives the State the ability to charge each event separately or all events in a
single aggerate charge. Id. at 374.
¶16 The evidence establishes that each fraudulent transaction
between Mullet and a customer constituted a separate and distinct plan to
defraud J.L. and the jury determined it was in fact a separate fraud scheme
or artifice.
¶17 Finally, we reject Mullet’s contention that, because there was
one victim, there could be only one chargeable fraudulent scheme. As a
general matter, charging a defendant with multiple counts of the same
crime committed against the same victim is legally permissible if the
offenses occurred, as here, on different dates and involved distinct acts with
each one causing increased harm. See supra ¶¶ 12-13. Mullet provides no
authority to the contrary. And Mullet’s reliance on State v. Via, 146 Ariz. 108
(1985), is misplaced. There, the State charged the defendant with two counts
of fraudulent schemes based on the defendant’s use of two credit cards
stolen from the murder victim and issued by different banks, which the
State alleged were the victims of the fraud. Id. at 115-16. Appealing from his
guilty verdicts, the defendant argued the fraud counts were multiplicitous
because his acts constituted only one scheme to defraud banks. Id. at 116. In
rejecting this argument, our supreme court stated:
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Admittedly, the removal of the victim’s credit cards
constituted only one act. Defendant, however, subsequently
embarked upon what could only be construed as two separate
courses of conduct, each involving a distinct scheme to
defraud a bank using a different credit card. The crime of
fraudulent schemes and artifices requires that a defendant act
with the specific intent to defraud. State v. Haas, 138 Ariz. 413,
418 (1983). Defendant may have had the same general intent
in each count—to defraud banks using stolen credit cards.
There was, however, a specific and separate victim, as well as
a specific and separate credit card, in each count. There was
then specific intent to defraud twice, once as to each card and
bank. Charging under two counts was not, therefore,
multiplicitous.
Id.
¶18 The supreme court did not rely solely on the fact of two bank
victims to conclude that the fraud counts in Via were not multiplicitous.
Rather, the fact of two victims indicated to the court, along with “two
separate courses of conduct” involving two different credit cards, that the
defendant acted with “specific intent to defraud twice.” Id. Thus, Via
actually supports our conclusion that the fraud counts here are not
multiplicitous. As noted, Mullet engaged in a separate course of conduct
relating to a specific customer on the exclusive dates alleged in each fraud
count.3
¶19 In sum, we hold that the legislature intended “knowingly
obtains any benefit” to be the proper unit of prosecution applicable to the
crime of fraudulent schemes and artifices. When a defendant obtains
multiple benefits at the expense of a single victim and pursuant to distinct
plans, which although perhaps similarly executed are factually
independent, an indictment charging each obtained benefit as a separate
offense in A.R.S. § 13-2310 is not deficient as multiplicitous. We are mindful
3Mullet summarily asserts A.R.S. § 13-2310(C), which increases the
punishment for those convicted of a fraud involving a benefit of one
hundred thousand dollars or more, supports his interpretation of A.R.S.
§ 13-2310(A). However, by not developing a supporting argument, Mullet
waives the issue. See State v. Lindner, 227 Ariz. 69, 70 n.1, ¶ 3 (App. 2010)
(appellate court will not address arguments that are not developed in a
defendant’s opening brief).
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of the public policy concerns amicus raises regarding the possibility of
prosecutorial “overcharging,” but those concerns are more properly
brought to the legislature’s attention.
II. Sufficiency of Evidence
¶20 Mullet argues insufficient evidence supports his fraud
convictions. Mullett contends the State presented no evidence of a
misrepresentation or material omission relative to each count and therefore
there was insufficient evidence to support his convictions. Mullet argues
that he did not misrepresent anything to the customers; they all received
what they paid for, namely, the services of a plumber. Alternatively, Mullet
contends that, in the incidents underlying 29 of the fraud convictions, the
State presented no evidence that Mullet misrepresented any fact to the
customers for purposes of obtaining checks made payable to himself.4 We
review claims of insufficient evidence de novo. State v. West, 226 Ariz. 559,
562, ¶ 15 (2011).
¶21 Sufficient evidence may be direct or circumstantial and “is
such proof that reasonable persons could accept as adequate” to “support
a conclusion of defendant’s guilt beyond a reasonable doubt.” State v.
Borquez, 232 Ariz. 484, 487, ¶¶ 9, 11 (App. 2013) (citations omitted). In
evaluating the sufficiency of the evidence, we test the evidence “against the
statutorily required elements of the offense,” State v. Pena, 209 Ariz. 503,
505, ¶ 8 (App. 2005), and “do not reweigh the evidence to decide if we
would reach the same conclusions as the trier of fact.” Borquez, 232 Ariz. at
487, ¶ 9 (citation omitted). “To set aside a jury verdict for insufficient
evidence it must clearly appear that upon no hypothesis whatever is there
sufficient evidence to support the conclusion reached by the jury.”State v.
Arredondo, 155 Ariz. 314, 316 (1987).
¶22 In prosecutions for fraudulent schemes and artifices, the State
must prove specific facts showing that a defendant obtained some benefit
“by means of” a specific false picture or pretense. Haas, 138 Ariz. at 423.
“’[F]raudulent pretense’ encompasses intentional misleading by hiding or
concealing the truth.” Id. at 422. As our supreme court has noted:
The “fraudulent aspect of the scheme to ‘defraud’ is measured
by a nontechnical standard.” Blachly v. U.S., 380 F.2d 665, 671
(5th Cir. 1967). The statute proscribes conduct lacking in
4 The record reflects that, in these 29 incidents, Mullet merely
requested a check made payable to him, and the customers obliged.
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“fundamental honesty [and] fair play . . . in the general and
business life of members of society.” Id. In the final analysis,
we adopt a broad view of [A.R.S. § 13-2310] because no other
view is sensible. The definition of “fraud” must be broad
enough to cover all of the varieties made possible by
boundless human ingenuity.
Id. at 424.
¶23 The evidence establishes that Mullet asked customers to make
checks payable to him instead of Lawson, thereby implying that the
company approved this method of payment. This evidence was sufficient
for the jury to determine Mullet misrepresented the propriety of the
transactions and later knowingly obtained a benefit each time he deposited
a check in his personal account. Although in some of the illicit transactions
Mullet expressly misrepresented a fact—such as the credit card machine
being inoperable—an explicit false statement is not necessary to support a
conviction for fraudulent schemes and artifices. See State v. Fimbres, 222
Ariz. 293, 297, ¶¶ 6-7 (App. 2009) (addressing challenge to sufficiency of
evidence establishing misrepresentation element in fraud conviction and
rejecting argument that defendant’s use of his identification card and real
name in conjunction with apparently legitimate store gift cards did not
mislead store cashiers). Sufficient evidence supports Mullet’s fraud
convictions.
III. Limitation on Mullet’s Cross-Examination of J.L.
¶24 Before trial, Mullet verbally requested the court’s permission
to impeach J.L. with J.L.’s prior felony convictions, stating he did not intend
to refer to the nature of the crimes or their underlying facts. The court
denied the request because the convictions occurred in 2000, over 10 years
before. Before he commenced cross-examining J.L. at trial, Mullet
unsuccessfully repeated his request. Mullet argues the court erred in
denying his motion to impeach J.L. with J.L.’s prior felony convictions.5 We
disagree.
5Although additionally framing his argument as one implicating the
Confrontation Clause, Mullet did not argue at trial that he had the right
under the Confrontation Clause to impeach J.L. with J.L.’s prior convictions.
Thus, we would review for fundamental error on this basis. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005); see State v. Dixon, 226 Ariz. 545,
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¶25 Pursuant to Arizona Rule of Evidence 609(a), a party may
attack a witness’s character for truthfulness with proof of the witness’s prior
conviction. However, if the prior conviction occurred over 10 years before
trial, evidence of the conviction is admissible only if “its probative value,
supported by specific facts and circumstances, substantially outweighs its
prejudicial effect.” Ariz. R. Evid. 609(b)(1). Prior convictions that occurred
over 10 years before trial are admissible under Rule 609(b) “very rarely and
only in exceptional circumstances.” State v. Green, 200 Ariz. 496, 500-01, ¶ 20
(2001). “The trial court has wide discretion in deciding whether to exclude
evidence of prior convictions because its prejudicial effect is greater than
the probativeness on lack of credibility, and the exercise of this discretion
should not be disturbed absent a clear showing of abuse.” Ritchie v. Krasner,
221 Ariz. 288, 302, ¶ 46 (App. 2009) (citation omitted).
¶26 The record reveals J.L.’s convictions occurred 17 years before
trial; thus, Mullet “bore the burden of proving exceptional circumstances.”
6
Green, 200 Ariz. at 499, ¶ 12. Mullet falls short of meeting his burden. He
points to no exceptional circumstance that required the trial court, in the
exercise of its discretion, to permit impeachment of J.L. with his prior
convictions. Instead, he asserts: “[T]he State relied primarily on one
witness, [J.L.], to establish [Mullet’s guilt.]” Accordingly, he should be able
to use the prior felony to impeach J.L.’s credibility.
¶27 Although J.L. did provide lengthy testimony, substantial
other evidence also supports the verdicts. Such evidence included
testimony by two former Lawson service technicians (now field
supervisors), customers who paid Mullet with checks, copies of the checks
themselves and the related invoices Mullet submitted to the customers and
the company, copies of Mullet’s bank records, and copies of the letter and
e-mail Mullet delivered to J.L. admitting his wrongdoing. On this record,
the trial court did not abuse its discretion.
553, ¶ 34 (2011). However, Mullet does not argue that fundamental error
occurred. Accordingly, we do not address Mullet’s Confrontation Clause
argument. See State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶¶ 16-17 (App.
2008) (declining to review for fundamental error when appellant failed to
raise claim in trial court and failed on appeal to address whether alleged
error was fundamental); see also State v. Carver, 160 Ariz. 167, 175 (1989)
(holding that the failure to argue a claim usually constitutes abandonment
and waiver of such claim) (citations omitted).
6 The trial court noted that J.L. received probation for the convictions.
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IV. Jury Instruction
¶28 Defense counsel made the following comments during his
closing argument:
So a question is, what does it mean to receive a benefit
pursuant to a fraud scheme? And the answer is, it means as a
result of the fraud scheme. If there’s a deception committed
and then someone gives you a benefit, that can be a fraud
scheme. If someone gives you a benefit and then there is a
deception committed, perhaps, to conceal the fact that you’ve
received a benefit, that is not a fraud scheme. It could be
something else, it could be a theft, but it can’t be a fraud
scheme. If the purpose of the deception is not to get the
benefit, but is, instead, to cover up the fact that you got the
benefit, not a fraud scheme.
...
[I]f there’s no evidence that those deceptions were made prior
to the receipt of the benefit, which is, again, I’m Mr. Mullet
and I’m receiving a check and once that check is in his hand,
the benefit has been received. Anything that happens after
that is for the purpose of concealment, not an element of the
fraud scheme.
¶29 In its rebuttal argument, the State responded:
No the State didn’t come up with some theory of fraud. The
theory of fraud for the State, it is an attorney argument based
on the instructions that you have and it’s right here in black
and white, that fraud is intending to mislead another person for the
purpose of gaining some benefit, and that’s what happened here. Mr.
Mullet misle[]d, misrepresented, omitted telling customers
information that resulted in them writing a check payable to him
which he deposited into his account. This is . . . simple. This is [a]
straightforward case. This is not a concealment case. There
isn’t even the word concealment in the jury instructions, so
look at the law, use your common sense, which is right in the
jury instructions, and think about what makes sense in this
case.
...
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This is not a concealment case. This is a fraud case. And it’s
completely different, because Mr. Mullet had a plan and he
went after customer after customer after customer, and that’s
in the instructions. The legal definitions, that is the law in
Arizona. It’s not a theory that the State just came up with. An
intent to defraud is an intent to mislead another person, all the
customers, for the purpose of gaining a benefit, all the checks, for the
purpose of inducing another person to give them property, and the
definition of property came up because property is in the
definition. There isn’t the word concealment. Don’t be
distracted, be smart about your deliberations, think about the
evidence you heard and use your common sense.
(Emphasis added.)
¶30 Based on the State’s rebuttal argument, Mullet requested a
supplemental jury instruction based on the rule enunciated in State v.
Johnson; namely, concealment of theft is not alone sufficient to uphold a
fraud conviction because obtaining a benefit “by means of” a specific false
picture or pretense must exist.7 Johnson, 179 Ariz. at 379. The trial court
denied the requested instruction.
¶31 Mullet argues the supplemental instruction was necessary to
remedy the State’s “improper legal assertion . . . that evidence of
concealment constitutes sufficient evidence of fraud to sustain a
conviction.” We review the decision to give a jury instruction for abuse of
discretion. State v. Bolton, 182 Ariz. 290, 309 (1995).
¶32 Although the instruction may reflect a correct statement of
law, the italicized comments in the State’s rebuttal argument reflect that the
State, contrary to Mullet’s argument, did not seek a conviction merely based
on Mullet’s manipulation of the invoices. The State reminded the jury
repeatedly that the crime of fraudulent schemes requires either an
affirmative misrepresentation or material omission. While Mullett argued
that there was only after-the-fact concealment, the jury was free to accept
or reject that argument. The State did not argue that concealment of the
misrepresentation would constitute an offense. The court did not abuse its
discretion in declining to give Mullet’s requested instruction.
7 The precise wording of the instruction is not clear from the record.
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V. Prosecutorial Misconduct
¶33 After defense counsel inferred during closing argument that
Mullet cashed the customers’ checks and delivered the proceeds to J.L., the
following exchange took place during the State’s rebuttal argument:
[Prosecutor:] If you wanted to do this . . . you could look
through every single page of the bank records for [Mullet’s
accounts], because I’ve actually done that, and [the second
trial prosecutor] did that the very first time that we heard this
questioning, and you can tabulate it yourself, these exhibits
are admitted, and you can literally go through there and pick
out--
[Defense counsel]: Facts not in evidence.
THE COURT: The lawyers’ comments in jury argument is not
evidence. Jurors can rely on their notes and memories of the
evidence.
[Defense counsel]: And vouching, as well.
THE COURT: [Prosecutor].
[Prosecutor]: You can go through the bank records and call
out the cash withdrawals. They do not parallel any of the
checks and they certainly do not come up to the amount -- the
full amount of the theft, assuming this ludicrous theory was
even true. So you could actually go and independently vet
yourself, if you felt you wanted to do that. It’s not there.
¶34 Mullet argues the trial court’s failure to admonish the
prosecutor and instruct the jurors that her “vouching was an improper
argument” amounted to reversible error. Mullet contends the prosecutor
vouched for the evidence “by informing the jury that both prosecutors . . .
had reviewed the evidence and concluded that the crimes occurred.”8
¶35 To determine whether the prosecutor’s argument was
improper, we consider whether she called the jury’s attention to matters it
should not consider. State v. Roque, 213 Ariz. 193, 224, ¶ 128 (2006), abrogated
8Mullet also asserts vouching occurred “in the form of putting the
prestige of the Arizona Attorney General’s Office behind the integrity of the
investigation and charges.”
14
STATE v. MULLET
Decision of the Court
on other grounds by State v. Escalante-Orozco, 241 Ariz. 254, 267, ¶¶ 13-14
(2017). Improper prosecutorial vouching consists of two types: “(1) where
the prosecutor places the prestige of the government behind its witness; (2)
where the prosecutor suggests that information not presented to the jury
supports the witness’s testimony.” State v. Vincent, 159 Ariz. 418, 423 (1989).
The first type of vouching consists of personal assurances of a witness’s
truthfulness; the second type “involves prosecutorial remarks that bolster a
witness’s credibility by reference to material outside the record.” State v.
King, 180 Ariz. 268, 277 (1994) (citations omitted).
¶36 The State did neither. Reasonably viewed, the prosecutor’s
comment simply referred to items admitted into evidence and argued how
they should be analyzed during deliberation to determine that Mullet
committed the charged offenses. Additionally, the prosecutor referred to
the State’s presentation of the records to the jury at trial. See Donnelly v.
DeChristoforo, 416 U.S. 637, 647 (1974) (“[A] court should not lightly infer
that a prosecutor intends an ambiguous remark to have its most damaging
meaning or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.”). The records
were admitted into evidence, and thus the jury could properly consider
them. The court did not reversibly err.
CONCLUSION
¶37 Mullet’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
15