State v. Mente
1 CA-CR 15-0649
| Ariz. Ct. App. | May 9, 2017Background
- In Nov. 2012 police stopped Neil Mente for speeding; he produced a valid AZ ID card and admitted his driver’s license was suspended.
- Officers found in his girlfriend’s purse a falsified Arizona driver’s license bearing Mente’s photo but a different name; the fake listed a 2010 date.
- Mente told police a friend made the fake license and that he may have obtained the information in a burglary years earlier; he said he planned to use it to avoid detection while driving.
- Mente was charged under A.R.S. § 13-2008(A) (identity theft) alleging he “took, purchased, manufactured, recorded, possessed or used” another’s personal identifying information on or about Nov. 28, 2012.
- At trial the court instructed the jury using those alternative means language; Mente did not object pretrial to the indictment/instruction as duplicitous.
- Jury convicted Mente; he received 10 years for identity theft and concurrent/probation revocation sentences for earlier convictions. He appealed, arguing the instruction permitted a non‑unanimous verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment/instruction was duplicitous and risked a non‑unanimous verdict | State: offense can be charged by listing alternative means; no fundamental error shown | Mente: instruction/indictment allowed conviction for different acts (taking, manufacturing, recording, possessing, using) across different times, risking non‑unanimity | Court: Mente waived all but fundamental‑error review by not objecting pretrial; no prejudice shown, conviction affirmed |
| Whether evidence of prior acts (his statements about burglary/creation of ID) was inadmissible character/other‑acts evidence | State: Mente’s statements were admissible to prove intent at time of stop | Mente: statements about prior theft/burglary were irrelevant and prejudicial to intent on the stop date | Court: trial court did not abuse discretion; the statements were admissible to show Mente’s intent when found with the fake license |
| Whether the State improperly asked jury to find identity theft occurred on a date other than the stop | State: no evidence was offered proving a crime occurred before the stop; prior statements used only to show intent on stop date | Mente: prosecutor’s theory invited jurors to find different temporal acts, creating unanimity problem | Court: prosecutor limited use to intent at time of stop; jury was not asked to find guilt for acts on other dates |
| Whether appellate relief is warranted absent a timely objection (fundamental‑error standard) | State: error, if any, is not fundamental and no prejudice shown | Mente: contends error affected foundational right to unanimous verdict | Court: applied Henderson standard; Mente failed to show fundamental error or prejudice |
Key Cases Cited
- State v. Klokic, 219 Ariz. 241 (App. 2008) (discusses duplicitous presentations and risk of non‑unanimous verdicts)
- State v. Paredes‑Solano, 223 Ariz. 284 (App. 2010) (failure to object to duplicitous indictment before trial waives all but fundamental error)
- State v. Henderson, 210 Ariz. 561 (2005) (sets standard for fundamental‑error review on appeal)
- State v. Jackson, 208 Ariz. 56 (App. 2004) (viewing evidence in the light most favorable to sustain a conviction)