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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JULIE MAZZOLA, Defendant/Appellant.

                             No. 1 CA-CR 15-0738
                              FILED 1-26-2017


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201401533
            The Honorable Billy K. Sipe Jr., Judge Pro Tem

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                          STATE v. MAZZOLA
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill1 joined.


T H O M P S O N, Judge:

¶1           Julie Mazzola (defendant) appeals from her convictions and
sentences for possession of methamphetamine for sale and possession of
drug paraphernalia. For the following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY2

¶2            In November 2014, Lake Havasu City Police Department
Detective T.J. Frances obtained a search warrant to search defendant’s
residence, where she lived with her then-boyfriend, Kevin Minert (Minert),
and her person, vehicle, and electronic devices. Detective Frances found
text messages containing typical drug trade language on defendant’s cell
phone, including messages referencing “20 and 40 bags” and a “quarter
ounce for 350.” Police searched defendant’s home and found two glass
methamphetamine pipes with residue in a woman’s purse and a large
chunk of methamphetamine in a makeup container in one of the two
bedrooms. They also found “tooter” straws with methamphetamine
residue and a small baggie with methamphetamine residue in a metal
container in a bedroom closet. In another bedroom, police found more
methamphetamine and drug paraphernalia.               When tested, the
methamphetamine found at defendant’s home totaled about a quarter of an
ounce or about seven grams.3 Police found a third glass pipe in a pair of

1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2      We view the evidence in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against defendant. State v.
Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769 (App. 2007).

3     Detective Francis testified that the combined weight of a quarter of
an ounce (about seven grams) of methamphetamine found in defendant’s



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                          STATE v. MAZZOLA
                          Decision of the Court

woman’s jeans hanging in a bedroom closet and $290 in cash throughout
the bedroom.

¶3            Police arrested defendant and interviewed her at the police
station. Defendant told Detective Frances that she sold methamphetamine,
typically in small amounts (20 or 40 bags) to three or four individuals, but
that she had recently upped the amount she sold to a quarter ounce.
Defendant stated she had done so in order to get rid of the
methamphetamine she had so she could stop selling it. Defendant told
Detective Frances that she was forced to sell drugs to pay off a debt, and
that the individuals she owed money to had threatened to harm her mother.
Defendant told Detective Francis that Minert knew she was selling drugs
but he was not involved in her drug selling.

¶4             The state charged defendant with one count of possession of
dangerous drugs for sale, a class 2 felony (count one), and one count of
possession of drug paraphernalia, a class 6 felony (count two). Defendant
was tried in absentia and a jury convicted her as charged.4 The trial court
held an evidentiary hearing and found that defendant had three prior
historical felony convictions. The court sentenced her to a mitigated
sentence of thirteen years in prison for count one and three years in prison
for count two, to be served concurrently. The court gave defendant credit
for 129 days of presentence incarceration. Defendant timely appealed. We
have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1) (2016), 13-4031 (2010), and -4033(A)(1) (2010).5

                              DISCUSSION

¶5            Defendant raises three issues on appeal: 1) whether the trial
court committed reversible error by failing to grant her motion to instruct
the jury on the lesser-included offense of possession of methamphetamine;
2) whether the trial court abused its discretion by failing to find that her
absence from trial was involuntary or to inquire into the issue, and 3)


residence was indicative of possession for sale, and that the most common
purchase for a typical methamphetamine user was about a quarter of a
gram.

4     At trial defendant argued she only sold methamphetamine under
duress and the jury was instructed on duress.

5     Absent material changes from the relevant date, we cite a statute’s
current version.


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                           STATE v. MAZZOLA
                           Decision of the Court

whether the trial judge committed reversible error by failing to sua sponte
recuse himself.

   A. Defendant’s Requested Jury Instruction

¶6              During the settling of the final jury instructions, defendant
requested an instruction on the “lesser included of simple possession.” The
trial court declined to instruct the jury on simple possession. In explaining
its ruling, the trial court noted that defendant was arguing that she sold the
methamphetamine while under duress, and further stated:

              [E]ven just standing alone - - even absent the
              duress defense, I don’t even know that a lesser
              included would be appropriate under the facts
              of the case. Because there was no statement
              from her to the detective that she was actually
              just using these drugs. The statement was she
              was selling drugs. . . . So I don’t think that the
              facts even support a lesser included on simple
              possession.

              ...

              And again, standing alone, even if this was not
              a duress-suggested defense, I don’t believe the
              facts support a lesser included. And typically
              you always do give a lesser included,
              sometimes out of routine, on possession for sale
              cases. But, again, I just don’t think, based on the
              evidence presented by the State and the defense
              . . . there really is a justification for a lesser
              included, because there’s no evidence this was
              personal use.

The court noted that while there were methamphetamine pipes and straws
found in defendant’s residence, the evidence at trial was that “somebody
that can sell drugs can also be a user of drugs.”

¶7            A defendant is entitled to a jury instruction on any theory
reasonably supported by the evidence. State v. Rodriguez, 192 Ariz. 58, 61,
¶ 16, 961 P.2d 1006, 1009 (1998). We review the trial court’s denial of a
requested jury instruction for an abuse of discretion. State v. Musgrove, 223
Ariz. 164, 167, ¶ 5, 221 P.3d 43, 46 (App. 2009). We will affirm the trial



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                            STATE v. MAZZOLA
                            Decision of the Court

court’s ruling if the result was legally correct for any reason. State v. Perez,
141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (citation omitted).

¶8            Defendant argues that the trial court improperly precluded
her from raising inconsistent defenses when it denied her request for an
instruction on the lesser-included offense of possession of
methamphetamine. However, no rational juror could conclude that
defendant committed the crime of possession of methamphetamine for
personal use but not the charged offense. See State v. Wall, 212 Ariz. 1, 4, ¶
18, 126 P.3d 148, 151 (2006) (citation omitted) (“[T]he evidence must be such
that a rational juror could conclude that the defendant committed only the
lesser offense.”). The evidence in this case overwhelmingly showed that
defendant possessed methamphetamine for sale. Defendant told Detective
Francis that she sold methamphetamine in small amounts to three or four
individuals, but that she had increased the amount she sold. She also told
Frances that she was forced to sell drugs to pay off a debt and that Minert
was not involved in her drug selling. Further, police found about seven
grams of methamphetamine, a scale, and a large amount of cash in small
denominations at defendant’s residence, and her phone contained text
messages indicative of drug sales. Accordingly, we find no error.

   B. Trial in Absentia

¶9              At a pretrial hearing in May 2015, the trial court indicated it
would set a trial date of June 1, 2015. Defendant’s counsel informed the
court that the date would not work for defendant because she had no one
else to care for her mother. After going through a number of potential trial
dates in July that did not work for the court or the state, the court set the
case for trial on June 1. Defendant told the court “My mom will just starve
to death if I can’t take care of her.” The court warned defendant that she
must appear for trial and that if she did not, the trial would proceed in her
absence.

¶10             Defendant failed to appear at the May 13, 2015 final trial
management conference. Her attorney indicated that the defense was
ready to proceed with trial as scheduled and that he did not know why
defendant had failed to appear for the hearing. The state requested the trial
court to issue a warrant for the defendant. The court declined to do so,
stating, “[t]he bottom line is she’s been warned . . . if she fails to appear for
her trial, the trial will proceed in her absence. So [if] she’s not here June 1st,
obviously we’ll proceed without her and the Court will address her
nonappearance at that time.”




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                           STATE v. MAZZOLA
                           Decision of the Court

¶11             Defendant failed to appear for trial on June 1. Defense
counsel indicated he was ready to proceed with trial. At the conclusion of
the first day of trial, the state requested a bench warrant for defendant’s
arrest. The court indicated it would not issue a warrant for defendant
unless there was a guilty verdict, because “the defendant has a right not to
show for trial and participate if she chooses not to.”

¶12           Defendant failed to appear for the second day of trial on June
2. Defendant was convicted as charged and the court issued a bench
warrant for defendant’s arrest. Defendant was arrested in Kansas several
months later and charged with failure to appear in another case. While in
jail awaiting sentencing in this case, defendant wrote the court a letter
claiming that Minert (to whom she was now married) had kidnapped her
on May 12, drugged her, and driven her to New Mexico. She wrote that
Minert had kept her locked up for three months until he took her to Kansas,
where she was able to call 911, and they were both arrested on their
outstanding warrants. Defendant also told the pre-sentence report writer
that Minert was mentally ill and that he had held her hostage against her
will.

¶13           Defendant argues that she did not voluntarily waive her due
process right to be present at trial and the trial court did not allow her to
provide an explanation for her absence. She argues that the trial court
abused its discretion by proceeding to sentencing without finding her
absence was involuntary or inquiring into the issue, and she requests this
court to remand for a hearing on whether she was voluntarily absent from
trial.

¶14          Arizona Rule of Criminal Procedure 9.1 provides:

             [A] defendant may waive the right to be present
             at any proceeding by voluntarily absenting
             himself or herself from it. The court may infer
             that an absence is voluntary if the defendant
             had personal notice of the time of the
             proceeding, the right to be present at it, and a
             warning that the proceeding would go forward
             in his or her absence should he or she fail to
             appear.

Once the requirements of Rule 9.1 are met, the defendant has the burden of
showing that her absence was involuntary. State v. Tudgay, 128 Ariz. 1, 2,
623 P.2d 360, 361 (1981). Here, the trial court informed defendant at the



                                     6
                           STATE v. MAZZOLA
                           Decision of the Court

pretrial hearing that the court would set a trial date of June 1, 2015, warned
her that she must appear for trial, and informed her that if she did not, the
trial would proceed in her absence. Thus, the court satisfied the
requirements of Rule 9.1. Furthermore, defendant’s attorney did not object
to the court proceeding with trial in her absence. Defendant was present at
the sentencing hearing on October 29, 2015, did not then argue that her
absence from trial was involuntary, and did not ever request a
determination that her failure to appear was involuntary. Having never
been asked to determine whether defendant’s absence was involuntary, the
trial court was not required to do so sua sponte. See State v. Sainz, 186 Ariz.
470, 473, 924 P.2d 474, 477 (App. 1996) (under “Rule 9.1, the trial court must,
if asked, determine whether the defendant’s absence was, in fact,
voluntary.”). In her October 9 letter to the court, defendant apologized to
the court for her absence at trial, blamed her absence on Minert, and
requested the court to “sentence [her] to the least amount possible.” The
letter did not ask the court to do anything other than give defendant
leniency in sentencing. Accordingly, we find no error.

   C. Judicial Misconduct

¶15            Finally, defendant argues that the trial court “committed
judicial misconduct based on actual bias or an appearance of impropriety”
by failing to disclose that he had previously represented Minert, a “material
witness and third party suspect.” Minert was not ultimately called as a
witness at trial. When discussing the final jury instructions with counsel
and the “mere presence” instruction, the trial court corrected the
pronunciation of Minert’s name, stating “it is pronounced Minert, because
I represented him about 20 years ago . . . .” Defendant did not object or
make further inquiry into the judge’s previous representation of Minert.
She did not at any time file a motion for a change of judge or ask the judge
to recuse himself.

¶16           The constitutional right to a fair trial includes the right to a
fair and impartial judge. State v. Mincey, 141 Ariz. 425, 442, 687 P.2d 1180,
1197 (1984). Because defendant failed to object at trial or file a motion for
change of judge, we review for fundamental, prejudicial error. See State v.
Granados, 235 Ariz. 321, 326, ¶ 13, 332 P.3d 68, 73 (App. 2014). We will
presume that a trial judge is free from prejudice and bias. State v. Hurley,
197 Ariz. 400, 404, ¶ 24, 4 P.3d 455, 459 (App. 2000). Here, defendant does
not point to any action, ruling, or conduct by the trial court evidencing bias
or prejudice against her. She thus fails to meet her burden of showing she
was prejudiced by the court’s failure to sua sponte recuse itself.



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                        STATE v. MAZZOLA
                        Decision of the Court

                           CONCLUSION

¶17           For the foregoing reasons, defendant’s convictions and
sentences are affirmed.




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




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