State v. Keeten

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

GREGERY KEETEN, Appellant.

No. 1 CA-CR 18-0525
FILED 9-24-2019

Appeal from the Superior Court in Maricopa County
No. CR2016-149044-001
The Honorable Jay R. Adleman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Casey Ball
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
 STATE v. KEETEN
Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.

J O H N S E N, Judge:

¶1 Gregery Keeten appeals his conviction and sentence for
misconduct involving weapons. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mesa police detectives contacted Keeten during an
undercover investigation into prostitution and sex trafficking.1 They found
Keeten in the driver's seat of his parked car, a handgun beside him. Keeten
was on supervised probation for an armed robbery conviction at the time.

¶3 A grand jury indicted Keeten on one count of misconduct
involving weapons, a Class 4 felony. After a five-day trial, the jury found
him guilty as charged, and the superior court sentenced him to a term of 10
years' imprisonment. Keeten timely appealed, and we have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019), 13-4031 (2019),
and -4033(A)(1) (2019).2

DISCUSSION

A. Motion to Suppress.

¶4 Before trial, Keeten moved to suppress evidence of the
firearm, arguing the detectives lacked reasonable suspicion to conduct an
investigatory stop when they detained him in his parked car. Keeten argues
on appeal that the superior court erred by denying his motion.

1 We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

2 Absent material revision after the relevant date, we cite the current
version of rules and statutes.

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¶5 The Fourth Amendment protects individuals against
unreasonable searches and seizures. U.S. Const. amend. IV. Evidence
obtained by a search and seizure that violates the Fourth Amendment is
generally inadmissible in a criminal trial. Mapp v. Ohio, 367 U.S. 643, 654-
55 (1961); State v. Valenzuela, 239 Ariz. 299, 302, ¶ 10 (2016). We review the
denial of a motion to suppress for an abuse of discretion. State v. Mitchell,
234 Ariz. 410, 413, ¶ 11 (App. 2014). We review de novo, however, the
superior court's legal determination whether a search "complied with the
dictates of the Fourth Amendment." State v. Valle, 196 Ariz. 324, 326, ¶ 6
(App. 2000). In doing so, we will uphold the superior court's ruling if it is
legally correct for any reason. State v. Huez, 240 Ariz. 406, 412, ¶ 19 (App.
2016).

¶6 A police officer may briefly detain a person for investigative
purposes if the officer has reasonable, articulable suspicion based upon the
totality of the circumstances that the suspect is involved or about to be
involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 30 (1968); State v.
Teagle, 217 Ariz. 17, 22-23, ¶ 20 (App. 2007). "Although 'reasonable
suspicion' must be more than an inchoate 'hunch,' the Fourth Amendment
only requires that police articulate some minimal, objective justification for
an investigatory detention." Teagle, 217 Ariz. at 23, ¶ 25. In applying this
standard, "we accord deference to a trained law enforcement officer's ability
to distinguish between innocent and suspicious actions." Id. at 24, ¶ 26.

¶7 At an evidentiary hearing on the motion to suppress, the State
presented evidence that undercover detectives responded to a sexually
explicit advertisement in the "Female Escorts" section of the website
"backpage.com," which commonly ran advertisements for prostitution.
Through text messages, the detectives negotiated a price for some services
and arranged to meet two females the next afternoon. At the designated
time, detectives observed Keeten drive his car through the parking lot of
the apartment complex at which they had agreed to meet.

¶8 Keeten parked the car, and two females got out and walked
toward the apartment. Detectives intercepted them before they reached the
apartment. Meanwhile, other detectives had obtained information that the
parked car was registered to Keeten and that he was on supervised
probation following an armed robbery conviction. They approached
Keeten's car and found him in the driver's seat next to the handgun.

¶9 In response to the motion to suppress, the State argued that
the officers' prior communications with the contact from the advertisement,
along with their training and experience, caused them to reasonably suspect

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that the driver of the car was transporting the two females to the apartment
complex for prostitution. At the hearing, detectives recounted their
exchange of text messages with the contact listed in the "backpage.com"
advertisement. In the texts, the detectives solicited sexual services, once by
using the abbreviation "FS" (by which they meant certain "full service" sex)
and once by expressly using the word "sex." The reply to the solicitation
was "we can discuss in person honey," and negotiation of price immediately
followed. The recipient of the solicitation then offered the detectives a "two
girl special." The detectives asked whether the second "girl" was "young";
the response was "[y]es she's young honey." At one point, the recipient of
the solicitation asked, "[A]re you affiliated with law enforcement?" The
detectives further testified that in prostitution activity, a "pimp" commonly
will drive the prostitute to an appointment and wait until the conclusion of
the appointment to drive her away.

¶10 The superior court denied the motion to suppress, finding
that the State met its burden by a preponderance of the evidence to establish
that the stop, the search and the seizure were lawful. We agree. Based upon
the training and experience of the detectives, the nature of their undercover
operation, the sexually explicit substance of the advertisement, its
placement in "backpage.com," and the illicit content of the text messages,
the detectives had reasonable suspicion that the person or persons who
responded to their texts were engaging or about to engage in prostitution.
When Keeten arrived with two females at the appointed place and time, the
officers thus had reasonable, articulable suspicion that he was transporting
the females for prostitution in violation of A.R.S. § 13-3210 (2019) or was
acting as their "pimp" in violation of A.R.S. § 13-3203 (2019).

¶11 Given the totality of the circumstances, the superior court did
not err by denying Keeten's motion to suppress.

B. Purported Disclosure and Brady Violations.

¶12 Keeten next argues the State violated its disclosure
obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Arizona Rule
of Criminal Procedure 15 by failing to disclose copies of the "backpage.com"
advertisement and the text messages before the first evidentiary hearing.
Keeten contends the superior court erred by denying his multiple motions
for sanctions based on the alleged violations.

¶13 Rule 15.7 governs a superior court's duty and power to
sanction a party for a discovery violation. The court maintains broad
discretion to determine the nature of a sanction. See State v. Moody, 208 Ariz.

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424, 454, ¶ 114 (2004); State v. DeCamp, 197 Ariz. 36, 40, ¶ 22 (App. 1999).
We review the imposition of a discovery sanction for an abuse of discretion.
Moody, 208 Ariz. at 454, ¶ 114. The superior court abuses its discretion in
ruling on a motion for a discovery sanction "only when 'no reasonable
judge would have reached the same result under the circumstances.'" State
v. Naranjo, 234 Ariz. 233, 242, ¶ 29 (2014) (quoting State v. Armstrong, 208
Ariz. 345, 354, ¶ 40 (2004)). A sanction must be proportional to the
discovery violation. State v. Payne, 233 Ariz. 484, 518, ¶ 155 (2013). An
appropriate sanction "should have a minimal effect on the evidence and
merits of the case." State v. Towery, 186 Ariz. 168, 186 (1996).

¶14 We likewise review a superior court's ruling on an alleged
Brady violation for an abuse of discretion. See State v. Arvallo, 232 Ariz. 200,
206, ¶ 36 (App. 2013). Under Brady, the State is required to disclose all
exculpatory evidence in its possession that is material to the issue of guilt
or punishment. Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (citing United
States v. Agurs, 427 U.S. 97, 110 (1976), and Brady, 373 U.S. at 87); see also
Ariz. R. Crim. P. 15.1(b)(8), (f)(2), (3) (disclosure requirements). To establish
a Brady violation, a defendant must show: (1) the undisclosed evidence is
favorable, i.e., exculpatory or impeaching, for the defendant; (2) the State
failed to disclose the evidence, whether intentionally or inadvertently; and
(3) prejudice resulted. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). If the
State fails to timely disclose exculpatory evidence, the court may impose
sanctions based on the degree of prejudice caused and the availability of
sufficient, less stringent remedies. See State v. Ramos, 239 Ariz. 501, 504, ¶ 9
(App. 2016).

¶15 The disclosure issue arose at the conclusion of the evidentiary
hearing, after a detective had testified about the "backpage.com"
advertisement and the text messages. The detective testified on cross-
examination that copies of the advertisement and the texts may be available
for review. According to the prosecutor, the items had not been
impounded, and hence had not been disclosed, because no prostitution
arrest was made.

¶16 Keeten requested disclosure of the items. The superior court
ordered the State to make the disclosure and recessed the hearing in the
meantime. After the State disclosed the items, Keeten filed several motions
for sanctions, alleging discovery violations. The court granted Keeten a
second evidentiary hearing and set the hearing for a date more than three
months after the State disclosed the materials at issue.

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¶17 In denying Keeten's motion to suppress, the superior court
also denied his motions for sanctions. The court ruled the State should not
be sanctioned for failing to disclose the items before the first day of the
hearing and that Keeten had not shown any prejudice arising out of what
the court deemed an ancillary matter.

¶18 Brady applies only to exculpatory evidence, and Keeten
argues the advertisement and text messages were exculpatory because they
stopped short of showing an express "sex for money" agreement. The
advertisement and text messages, however, constituted inculpatory,
corroborating evidence of prostitution that included sexually explicit
exchanges concerning negotiations over the price to be paid for services,
along with concern for law enforcement contact, all of which directly
implicate a "sex for money" transaction. See Strickler, 527 U.S. at 281-82
(Brady evidence must be favorable to the defendant). Moreover, as noted,
the issue to which the advertisement and text messages were relevant was
whether the officers had reasonable suspicion of prostitution to conduct an
investigatory stop; an express agreement was not required.

¶19 Additionally, when presented with the disclosure issue at the
end of the first day of the hearing, the superior court recessed the hearing
to address the issue and only resumed the hearing three months after the
State had disclosed the items. Even if it could be said that the State
"suppressed" the items under these circumstances, the significant length of
time between the eventual disclosure of the materials and the second day
of hearing remedied any potential prejudice to Keeten. See id. (no Brady
violation absent prejudice).

¶20 As for the superior court's decision not to impose a discovery
sanction under Rule 15, both the 2017 and 2018 versions of Rule 15.7
required the court to consider whether a party's failure to comply with
discovery obligations was (1) harmless or (2) could not have been disclosed
earlier even with due diligence. See Ariz. R. Crim. P. 15.7(b) (2017); Ariz. R.
Crim. P. 15.7(a) (2018).3 Here, to remedy any possible prejudice, the

3 Rule 15.7 was modified, but the relevant provision remained
substantively the same. Compare Ariz. R. Crim. P. 15.7(b) (2017) with Ariz.
R. Crim. P. 15.7(a) (2018). The modifications became effective January 1,
2018. Ariz. R. Crim. P. 15.7(a) (2018). Keeten's first three motions for
sanctions were filed in 2017; he filed his final motion in 2018. The record
does not contain a ruling on the 2018 motion, but it raised similar issues as
the earlier motions and we deem it denied as a matter of law. See State v.
Hill, 174 Ariz. 313, 323 (1993).

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superior court continued the evidentiary hearing more than 90 days after
the State had completed its disclosure, giving Keeten the opportunity to use
the materials to the extent he thought they were exculpatory. See State v.
Martinez-Villareal, 145 Ariz. 441, 448 (1985) ("In order for a reviewing court
to find an abuse of discretion, appellant must demonstrate that he suffered
prejudice by nondisclosure."); see also State v. Lee, 185 Ariz. 549, 556 (1996)
("The trial court's failure to impose a particular sanction, or any sanction at
all, was not an abuse of discretion" when the defendant had "suffered no
prejudice.") In denying the motions for sanctions, the superior court found
that Keeten failed to show any prejudice resulting from the delayed
disclosure, meaning any failure at the outset by the State to comply with its
disclosure obligations was harmless. The court did not abuse its discretion
in making that ruling.

C. Motion for Mistrial.

¶21 Keeten finally argues the superior court erred by denying his
motion for mistrial after a witness violated an order on a motion in limine.
We review the denial of a motion for mistrial for an abuse of discretion.
State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). In evaluating whether a mistrial
is warranted, the superior court "is in the best position to determine
whether [improper] evidence will actually affect the outcome of the trial."
Id. When improper evidence has been admitted, the superior court should
consider: (1) whether the remarks brought information to the jurors'
attention that they would not be justified in considering to reach their
verdict; and (2) the probability that the jurors, under the circumstances of
the particular case, were influenced by the remarks. Id. Because a
"declaration of a mistrial is the most dramatic remedy for trial error," it
should be granted "only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz.
250, 262 (1983).

¶22 After jury selection, Keeten moved in limine to preclude any
reference to the fact that he was on "intensive probation" at the time of his
arrest, arguing such evidence would be excessively prejudicial. The State
agreed with Keeten's request, and the superior court ordered that the
reference would be precluded. The court, however, permitted the State to
offer evidence that Keeten was on felony supervised probation to prove his
status as a prohibited possessor.

¶23 At trial, responding to a question on cross examination about
whether Keeten was performing community service on the date of the
incident, Keeten's probation officer stated that Keeten "had it on his

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intensive -– sorry. He had it on his weekly schedule, yes." The testimony
concluded without any other mention of "intensive probation."

¶24 Keeten moved for a mistrial, and the prosecutor advised the
court that he had instructed the probation officer both orally and by email
not to mention "intensive." The superior court denied the motion but
offered to provide a curative instruction. Keeten declined the court's offer.

¶25 Although the witness's use of "intensive" referred to
information the court had precluded, the witness stopped before finishing
saying the phrase and the jury heard no other testimony concerning
"intensive probation." Throughout trial, Keeten did not dispute that he was
a prohibited possessor; indeed, early in jury selection, his counsel informed
the jury of that fact. The superior court permitted the State to present
evidence that Keeten was on felony supervised probation. Thus, any
potential prejudice resulting from the statement at issue was
inconsequential in relation to the extensive undisputed evidence that
Keeten had a prior felony conviction for which he was on supervised
probation.

¶26 Considering the partial nature of the statement and the
witness's self-correction, the jury may have interpreted the phrase simply
as a misstatement. The absence of any juror questions regarding the phrase
or Keeten's type of probation supports that proposition. In any event, the
single, partial use of the phrase did not provide sufficient cause for a
mistrial. The superior court did not abuse its discretion by denying the
motion and offering to give a curative instruction as an alternative.

CONCLUSION

¶27 For the foregoing reasons, we affirm the conviction and
resulting sentence.

AMY M. WOOD • Clerk of the Court
FILED: AA

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