NOT FOR PUBLICATION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

KELLY, Judge.

¶1 In this consolidated appeal, arising from a trial and a retrial on seven counts, William Hayes Jr. argues there was insufficient evidence to sustain one of his sexual assault convictions, the trial court erred in denying his motion to sever certain charges, and his right to not be twice placed in jeopardy was violated by the retrial. Finding no error, we affirm.

Factual and Procedural Background

¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts." State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). In June 2011, Hayes stopped S.W. as she was walking down the street, persuaded her to enter his vehicle and drove around with her for a while before ultimately taking her to a park. Once there, Hayes threatened to shoot S.W., touched her breasts, and penetrated her vagina. She later identified Hayes in a photographic lineup, and his DNA1 was found on a swab taken from S.W.'s vagina.

¶3 In November 2011, C.M. was involved in an automobile collision and went to a nearby convenience store to use a telephone. While there, she met Hayes, who told her he knew an attorney who could help her and she could use his telephone. Hayes and C.M. went to his apartment, but once inside Hayes showed her a gun, pushed her down, licked her vagina, touched her breasts, and penetrated her vagina with his penis. Hayes's DNA was found in swabs taken from C.M.'s vagina and abdomen.

¶4 In April 2012, B.R. met Hayes and went with him to his apartment. There, Hayes pushed B.R. down on a couch, removed her clothing, and attempted to penetrate her with his penis. He then spit on one or more of his fingers and inserted them into her vagina. B.R. eventually escaped and called 9-1-1. She showed officers the apartment and identified Hayes before going to the hospital and being examined by a nurse. Police later searched the apartment and found methamphetamine and drug paraphernalia.2

¶5 Hayes was charged with sexual assault, kidnapping, possession of a dangerous drug, and possession of drug paraphernalia in relation to the sexual assault of B.R. He was also charged with attempted sexual assault and sexual abuse of B.R.; sexual abuse, kidnapping, and two counts of sexual assault of C.M.; and kidnapping, sexual assault, and sexual abuse of S.W.

¶6 In July 2012, while in the county jail, Hayes transferred money to Bridget Miller, whom B.R. testified she had seen on the bus, and apparently sought to have Miller influence B.R. not to testify against him.3 Hayes was charged in a separate cause number with attempted tampering with a witness, and that charge was consolidated with the others for trial.

¶7 The jurors became deadlocked on some of the counts, but found Hayes guilty on six counts—the drug counts, the witness tampering count, and the charges relating to the sexual assault of B.R.—and not guilty on the count of sexual abuse of B.R. The remaining counts were set for a new trial, which proceeded without objection. Hayes was convicted on the remaining counts at that trial, and the trial court sentenced him to presumptive, consecutive and concurrent prison terms, totaling 31.5 years.4 This appeal followed.

Motion to Sever

¶8 Hayes contends the trial court erred in denying his motion to sever the drug-related charges. "We review the denial of severance for an abuse of discretion." State v. Garland, 191 Ariz. 213, 216, 953 P.2d 1266, 1269 (App. 1998). We first determine if the denial of severance was proper under Rule 13.3 and 13.4, Ariz. R. Crim. P., and if not, consider whether reversal is required. Id.

¶9 Hayes moved before trial to sever the drug and paraphernalia possession counts and renewed the motion after the voir dire of the jury panel. He argued, as he does on appeal, that the drug use had nothing to do with the sexual offenses and that the drug evidence would not have been admissible in the sexual assault case but for the joinder of the charges.

¶10 Under Rule 13.3, charges may be joined if they are, inter alia, "based on the same conduct or are otherwise connected together in their commission." A defendant is entitled to severance as a matter of right when charges are joined only because they are of the same or similar character and evidence of the other offense would not be admissible if the cases were tried separately. Ariz. R. Crim. P. 13.4(b). Otherwise, severance may be granted if it "is necessary to promote a fair determination of the guilt or innocence of any defendant of any offense." Ariz. R. Crim. P. 13.4(a).

¶11 In this case, the state argued, and the trial court apparently accepted, that Hayes's possession of the drugs was connected in its commission to the offenses committed against B.R., as well as the other victims, as drugs were involved in each of those cases. We agree. Although charges are not connected in their commission solely because they are committed on the same day, State v. Curiel, 130 Ariz. 176, 184, 634 P.2d 988, 996 (App. 1981), in this case the drug offenses and the assault on B.R. occurred within minutes of one another, see State v. Prince, 204 Ariz. 156, ¶ 17, 61 P.3d 450, 454 (2003) (charges connected when they were committed, inter alia, within seconds of each other). And, the evidence as to all the offenses overlapped at least to the degree that the presence of the drugs in Hayes's apartment was consistent with the victim's account of the sexual assault and was relevant to the sexual assault charges on that basis. See Ariz. R. Evid. 401; see also Garland, 191 Ariz. 213, ¶ 14, 953 P.2d at 1270 (offenses connected when arising out of connected acts and evidence overlaps).

¶12 Furthermore, we reject Hayes's argument that he was prejudiced because the jury necessarily would have used the drug evidence to convict him of the sexual offenses by concluding he was "a bad person" or was "prompted" by drug use "to commit a sexual assault." As the state points out, the trial court instructed the jury, "Each count charges a separate and distinct offense. You must decide each count separately on the evidence and the law applicable to it, uninfluenced by your decision as to any other count." See Prince, 204 Ariz. 156, ¶ 17, 61 P.3d at 454 ("[D]efendant is not prejudiced by a denial of severance where the jury is instructed to consider each offense separately and advised that each must be proven beyond a reasonable doubt."). We presume the jury followed that instruction. See id.; State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006).

Sufficiency of Evidence

¶13 Hayes maintains there was insufficient evidence to sustain his conviction for sexual assault of B.R. He asserts that B.R. "testified unequivocally and emphatically that [his] finger did not penetrate past her outer vaginal lips." Thus, he contends, the only evidence of digital penetration was the examining nurse's testimony that B.R. had told her there had been digital penetration. And, relying on State v. Allred, 134 Ariz. 274, 655 P.2d 1326 (1982), he argues that such evidence should not have been admitted and was insufficient in itself to sustain the conviction.

¶14 But Allred addressed prior inconsistent statements admitted as impeachment evidence pursuant to Rule 801, Ariz. R. Evid., and the test set forth therein clearly relates to a trial court's decision to admit evidence in that context. 134 Ariz. at 275-78, 655 P.2d at 1327-30. The evidence here, however, was not admitted for impeachment, indeed B.R. was not recalled for questioning about the nurse's testimony. Rather, the testimony was admitted under Rule 803(4), Ariz. R. Evid., as a statement made for medical diagnosis or treatment. The nurse testified that she asked questions about the assault in order to aid her in diagnosis and treatment. Hayes did not object to the testimony on that ground and has not addressed on appeal how the trial court erred in admitting the evidence pursuant to that rule. See also Ariz. R. Crim. P. 31.13(c)(1)(vi). Indeed, this court has concluded that such evidence is admissible. See State v. Lopez, 217 Ariz. 433, 175 P.2d 682 (App. 2008) (concluding statements to medical professionals in post-sexual assault examination admissible under Rule 803(4)). Furthermore, the Allred court's concerns, particularly that "the key issue of guilt or innocence is likely to turn upon resolution of an issue of credibility in a `swearing contest' between interested witnesses from `opposing camps,'" are simply not present in the context of statements made to an impartial medical professional for purposes of medical treatment and diagnosis. 134 Ariz. at 277, 655 P.2d at 1329.

¶15 Additionally, we do not agree that B.R. "unequivocally" testified that Hayes did not digitally penetrate her. Although she testified that Hayes had only touched her on the outside, she also testified he had touched her vagina. Touching a woman's vagina, as a matter of anatomy, necessarily requires passing the vulva. In view of B.R.'s arguably conflicting statements and the properly admitted testimony of the nurse that B.R. had told her Hayes "spit on his fingers, and stuck them up my vagina," there was sufficient evidence to establish that Hayes had sexually assaulted B.R.5 See A.R.S. §§ 13-1401(3), 13-1406(A).

Double Jeopardy

¶16 Finally, Hayes contends his right to not be twice placed in jeopardy was violated as to counts eight and nine of the indictment—the charges for the sexual assault and sexual abuse of C.M. Because he did not object to a mistrial as to those counts at the first trial or to their retrial, we review solely for fundamental error. State v. Cooney, 233 Ariz. 335, ¶ 11, 312 P.3d 134, 138-39 (App. 2013). A violation of double jeopardy, however, constitutes fundamental error.6 Id.

¶17 During their deliberations in the first trial, the jurors sent a note to the court stating they had reached an agreement on the drug counts and the charges relating to B.R., but were at "a dead stand still" on counts seven, ten, eleven, twelve, and thirteen. Defense counsel asked, "What about 8 [and] 9," but the court indicated that if the jurors did not think further deliberation would yield verdicts it would "declare a mistrial as to those counts and go on." The court brought the jurors into the courtroom and stated, "My understanding . . . [is] that you've reached a verdict as to some counts, but not as to others." The court asked if anyone thought they could reach a verdict through further debate, and the jurors all indicated they could not. The clerk then read the jury's verdicts, in which the jury found Hayes guilty on six counts—the drug counts, the witness tampering count, and the charges relating to the sexual assault of B.R. The jurors were polled and each of them agreed, without elaboration, that those were their verdicts.

¶18 Hayes contends that because counts eight and nine were not mentioned in the jury's original note, he was "aware that the jury was only at `a dead stand still' on 5 of the remaining 7 counts," and therefore his agreement to a mistrial was limited to those counts. But, a defendant's agreement is not the only means by which jeopardy may continue when a jury is dismissed without returning a verdict. See State v. Espinoza, 233 Ariz. 176, ¶ 14, 310 P.3d 52, 56 (App. 2013) (jeopardy continues if defendant consents or state demonstrates manifest necessity). Thus, when a mistrial occurs as the result of a "hung jury," double jeopardy does not bar a second trial. See Richardson v. United States, 468 U.S. 317, 324-25 (1984); Lemke v. Rayes, 213 Ariz. 232, ¶ 19, 141 P.3d 407, 414 (App. 2006).

¶19 In reviewing whether there was manifest necessity for a mistrial based on a deadlocked jury, we give "great deference" to the trial court's decision. State v. Aguilar, 217 Ariz. 235, ¶ 13, 172 P.3d 423, 427 (App. 2007). In this case, as detailed above, the court asked the jurors if further deliberation would be helpful as to the counts on which they could not agree; it did not specify which counts. The jurors indicated further deliberation would be futile as to those counts and gave their verdicts on the ones as to which they had reached agreement. Although the jury's note did not include counts eight and nine, nothing suggested those counts were among the counts on which agreement had been reached. And the court asked them globally whether further deliberation would help them reach a verdict "as to the counts not resolved"; it did not limit its questioning to the counts included in the note. On the record before us, we cannot say the court abused its discretion in determining there was an impasse as to all remaining counts, including eight and nine, and declaring a mistrial due to manifest necessity on that basis. That being so, double jeopardy did not bar Hayes's second trial.

Disposition

¶20 For the above reasons, Hayes's convictions and sentences are affirmed.