NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

ECKERSTROM, Judge.

¶1 After a jury trial, appellant Colin Galipo was convicted of possession of a dangerous drug and possession of drug paraphernalia. He was sentenced to concurrent, enhanced, presumptive prison terms, the longest of which was 4.5 years. Galipo now appeals, raising multiple claims of trial error. For the following reasons, his convictions and sentences are affirmed.

Factual and Procedural Background

¶2 In June 2012, the Tucson Police Department received a tip that Galipo was using methamphetamine. Officer Michael Szelewski located Galipo's vehicle, ran a check on the license plate, and discovered the vehicle's insurance had been canceled. He stopped the vehicle and asked Galipo for permission to search. During the search of Galipo's vehicle and person, officers found methamphetamine and a methamphetamine pipe. When interviewed, Galipo admitted the methamphetamine was his, but claimed he had placed it in his pants two months previously.

¶3 Galipo was charged with possession of methamphetamine and drug paraphernalia.1 At trial, Galipo's girlfriend, C.H., claimed she had planted the methamphetamine and pipe, then reported Galipo to the police, because she was angry with him. Galipo was convicted of both counts and sentenced to concurrent prison terms. This timely appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A).

Motion to Suppress

¶4 Galipo first claims the trial court erred in denying his motion to suppress the evidence found during the search of his vehicle and person and his resulting statement to police. "In reviewing the denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing, and view that evidence in the light most favorable to upholding the trial court's ruling." State v. Olm, 223 Ariz. 429, ¶ 2, 224 P.3d 245, 246 (App. 2010) (citation omitted). We defer to the court's factual findings, but review legal conclusions de novo. Id. ¶ 7.

Traffic Stop

¶5 Galipo argues the stop was unconstitutional because it was not based on reasonable suspicion. A traffic stop is justified by reasonable suspicion if the officer possesses "`a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" State v. Livingston, 206 Ariz. 145, ¶ 9, 75 P.3d 1103, 1105 (App. 2003), quoting State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). While observing Galipo's vehicle, Officer Szelewski ran a records check of the license plate, which revealed a notice that an insurance policy associated with the vehicle had been canceled the previous month. The parties agree that that was the officer's sole basis for stopping Galipo. Galipo contends this was not sufficient to raise reasonable suspicion because the canceled insurance on the vehicle did not show that the driver was not insured.

¶6 We find this contention without merit. Reasonable suspicion does not require an officer to be certain; it "only requires that police articulate some minimal, objective justification for an investigatory detention." State v. Teagle, 217 Ariz. 17, ¶ 25, 170 P.3d 266, 272 (App. 2007). Reasonable suspicion is "considerably less than a preponderance of the evidence." State v. Ramsey, 223 Ariz. 480, ¶ 18, 224 P.3d 977, 981 (App. 2010). Given that the vehicle Galipo was driving had a current notice of canceled insurance, it was reasonable for the officer to suspect Galipo might be in violation of A.R.S. § 28-4135, which generally requires that all motor vehicles be covered by a vehicle insurance policy. Galipo is correct that the notice of canceled insurance did not conclusively prove that he was driving without insurance, see A.R.S. § 28-4009(B), but that is not what reasonable suspicion requires. See State v. Biggs, 167 P.3d 544, ¶¶ 19-21 (Utah Ct. App. 2007). We conclude the notice of canceled insurance was sufficient to constitute reasonable suspicion.

Search of the Vehicle

¶7 Galipo also claims the search of his vehicle was illegal either because he did not consent or his consent was involuntary. Galipo asserts he did not understand that he was consenting to the search of his entire vehicle and only intended to consent to allow the officer to verify his insurance paperwork. However, when the officer asked for permission to search, he began, "Do you mind though if before you go if we can just take a quick look, make sure there's nothing, nothing there that shouldn't be, would that be alright?" Galipo responded, "Fine, fine." The officer continued, saying, "I'm not gonna . . . go throw all your shit dude, I just you know, just [a] quick look around, make sure there's no firearms, anything that's not supposed to be . . . ." Galipo asked, "I mean, are you gonna move everything around or . . . ?" The officer responded, "Well no, . . . I'm wondering if you wouldn't mind just maybe just stepping out real fast and we can just do a quick once over and you'll be on your way." Galipo then said, "Yeah man."

¶8 The officer's comments, in particular "make sure there's nothing . . . there that shouldn't be" and "I'm not gonna . . . go throw all your shit," showed that he intended to search the vehicle for weapons and contraband, not merely to inspect Galipo's paperwork. Furthermore, Galipo's question regarding whether the officer was "gonna move everything around" likewise shows that he understood that the officer sought consent to probe into his vehicle. We conclude that the trial court did not err in concluding Galipo gave his consent for the vehicle to be searched.

¶9 Galipo also argues his consent was involuntary because the officer implied "that a search was inevitable; it was merely a matter of when the search would occur, not if it would occur." Galipo claims this was a "material misrepresentation." Whether consent for a search is voluntary is a question of fact, and we review the trial court's finding for an abuse of discretion. State v. Butler, 232 Ariz. 84, ¶ 19, 302 P.3d 609, 613 (2013). The burden of proving the voluntariness of consent is on the state. Id.

¶10 Consent is not voluntary if obtained through deception. State v. Petersen, 124 Ariz. 336, 338, 604 P.2d 267, 269 (App. 1979). But Galipo began to consent before the officer even made the statement Galipo challenges. Additionally, the officer's statement— "[A]t some point in time we're probably gonna run into ya again. You know, better, better now than later, you know what I'm saying?"—did not create the impression that Galipo had no power to refuse the search. Finally, Galipo was not in custody when asked for his consent and had not been threatened in any way. See State v. Wilkerson, 117 Ariz. 143, 145, 571 P.2d 289, 291 (App. 1977). We conclude the trial court did not abuse its discretion in finding that the consent was voluntary.

¶11 Because the traffic stop was supported by reasonable suspicion and Galipo voluntarily consented to the search of the vehicle, the trial court did not err in denying Galipo's motion to suppress.

Mistrial/New Trial

¶12 Galipo next asserts the trial court erred in denying his motions for mistrial and new trial based on two statements made by a defense witness, Officer Douglas Reid. We review a trial court's decision to grant or deny a mistrial for an abuse of discretion. State v. Adamson, 136 Ariz. 250, 260, 665 P.2d 972, 982 (1983).

¶13 During direct examination, Galipo asked Reid, "Do you remember if [C.H.] told you that Mr. Galipo was driving around town with narcotics on him?" Reid replied, "I don't specifically remember the narcotics, but at the suppression hearing the other day, hearing other officers—." At that point, the state objected and a brief bench conference was held out of the presence of the jury. The court asked Galipo if it could instruct the jury to disregard "the issue of the other hearings," to which Galipo replied, "That's fine." The court issued such an instruction, then gave Galipo an opportunity, out of the presence of the jury, to discuss with Officer Reid the proper limits of his testimony. Galipo continued his direct examination.

¶14 A few minutes later, Galipo asked Reid, "What was the main reason you decided to investigate Mr. Galipo?" Reid responded, "Well, there were several reasons. One was the information that was being provided by [C.H.] that he was abusive towards her—." Galipo interrupted Reid with a new question, but before Reid could answer, Galipo asked to approach the bench. Out of the hearing of the jury, Galipo asked permission to lead the witness, but declined to have the court issue an instruction to disregard the testimony, for fear of calling more attention to the comment. Galipo finished his examination of Reid, both parties rested, and court concluded for the day.

¶15 When the proceedings resumed the following morning, Galipo immediately requested a mistrial based on Reid's comments. The trial court denied the motion, finding that it was untimely and that Galipo had not been prejudiced.

¶16 After the jury returned its verdict, the trial court held an informal question-and-answer session with nine of the twelve jurors and counsel for Galipo and the state. During this session, one juror asked if Officer Reid was supposed to mention the suppression hearing. Another juror "mentioned Officer Reid's statement that [C.H.] had accused Mr. Galipo of abuse." Galipo filed a motion for new trial asserting the court had erred in denying his motion for mistrial. The court again found the motion for mistrial untimely and denied Galipo's request for new trial.

¶17 In determining whether a mistrial is warranted, we look to "`(1) whether the jury has heard what it should not hear, and (2) the probability that what it heard influenced [it].'" State v. Miller, 234 Ariz. 31, ¶ 25, 316 P.3d 1219, 1228 (2013), quoting State v. Laird, 186 Ariz. 203, 207, 920 P.2d 769, 773 (1996) (alteration in Miller). "[B]ecause the trial judge is in the best position to assess the impact of a witness's statements on the jury, we defer to the trial judge's discretionary determination." State v. Dann, 205 Ariz. 557, ¶ 43, 74 P.3d 231, 244 (2003). "[D]eclaration of a mistrial is the most dramatic remedy for a trial error and should be granted only if the interests of justice will be thwarted otherwise." State v. Roque, 213 Ariz. 193, ¶ 131, 141 P.3d 368, 399 (2006). We will not reverse a trial court's denial of a mistrial "unless there is a `reasonable probability that the verdict would have been different had the [improper] evidence not been admitted.'" Dann, 205 Ariz. 557, ¶ 44, 74 P.3d at 244, quoting State v. Hoskins, 199 Ariz. 127, ¶ 57, 14 P.3d 997, 1013 (2000).

¶18 Here, Galipo can demonstrate through the juror's comments that the jury "`heard what it should not hear.'" Miller, 234 Ariz. 31, ¶ 25, 316 P.3d at 1228, quoting Laird, 186 Ariz. at 207, 920 P.2d at 773. But the record does not reflect that there was a reasonable probability the verdict would have been different but for the improper remarks. See id.; Hoskins, 199 Ariz. 127, ¶ 57, 14 P.3d at 1012-13.

¶19 As to the mention of the suppression hearing, the trial court issued a curative instruction for the jury to disregard the statement. We presume jurors follow a court's instructions, State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006), and although the record and the juror's comment demonstrate that the jury heard about the motion to suppress, it does not show that the jury considered this during deliberations. Nor does Galipo clearly explain how this comment could have affected the verdict.

¶20 As to the comment regarding allegations of domestic abuse, Galipo asserts this prejudiced him because it gave the jury cause to believe C.H. was testifying that she had planted the methamphetamine and pipe only out of fear of Galipo. But the jury already had been provided with far better evidence that C.H. was afraid of Galipo—her own testimony. On cross-examination, C.H. was asked if she was scared of Galipo. In response, she explained she was afraid of dealing with several emotional difficulties in her life, and specifically noted that Galipo "has got a temper." When asked if Galipo was a "scary guy," C.H. responded, "He can be when he is mad. He is a big guy."

¶21 Furthermore, Galipo's theory of the case was that he was in possession of the methamphetamine and pipe only because C.H. had planted the items on his person. But this theory was contradicted by other evidence. First, two officers testified that Galipo attempted to hide the pipe in the vehicle. This demonstrated he was aware of the pipe's presence, which would be unlikely had he possessed it only because C.H. had planted it. Second, Galipo admitted ownership of the methamphetamine. This further contradicted C.H.'s story.

¶22 We acknowledge Galipo's point that the improper evidence could have created doubt as to C.H.'s credibility based on her fear of Galipo. But such fear already had been established through other evidence, and C.H.'s credibility was further undermined by the other evidence presented in the case. Accordingly, we conclude there was no reasonable probability that the statement regarding domestic abuse affected the jury's verdict. The trial court therefore did not err in denying Galipo's motion for mistrial or subsequent motion for new trial.2

Jury Instruction

¶23 Galipo's final claim is that the trial court erred in refusing to give a jury instruction on third-party culpability. We review that decision for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 616-17 (2009). Galipo claims the requested instruction should have been given because the evidence supported a finding that C.H., and not Galipo, was the person responsible for the presence of the methamphetamine and paraphernalia on Galipo's person. The state responds that the instruction was not required because the evidence did not support "that [C.H.] committed [Galipo]'s offenses of possession of methamphetamine and drug paraphernalia," but rather that Galipo "lacked the required mens rea of knowing possession because [C.H.] had planted the methamphetamine and paraphernalia there without his knowledge."

¶24 In general, "[a] defendant is entitled to a jury instruction on any theory reasonably supported by the evidence." State v. Moody, 208 Ariz. 424, ¶ 197, 94 P.3d 1119, 1162 (2004). However, a court is not required to give an instruction "when its substance is adequately covered by other instructions." State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009 (1998). Our supreme court concluded in State v. Parker, 231 Ariz. 391, ¶¶ 54-56, 296 P.3d 54, 68 (2013), that the substance of a third-party culpability instruction is adequately covered when the jury is instructed on the presumption of innocence and the state's burden of proof beyond a reasonable doubt. Because the jury had been so instructed, the court found no reversible error. Id. ¶ 56.

¶25 Here, even assuming arguendo that the evidence supported a third-party culpability instruction, the jury was instructed that Galipo was entitled to the presumption of innocence and that the state had the burden of proving all elements of the crimes charged beyond a reasonable doubt. Accordingly, as in Parker, no reversible error occurred. Id.

Disposition

¶26 For the foregoing reasons, Galipo's convictions and sentences are affirmed.