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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  RAYPHE DANIEL NICHOLS, Appellant.

                             No. 1 CA-CR 16-0070
                             No. 1 CA-CR 16-0071
                               FILED 8-10-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-150435-001
                        No. CR2015-110851-001
                     The Honorable Erin Otis, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence H. Blieden
Counsel for Appellant
                           STATE v. NICHOLS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Paul J. McMurdie joined.


C A T T A N I, Judge:

¶1           Rayphe Daniel Nichols appeals his convictions and sentences
for two counts of aggravated assault and one count of burglary in the
second degree, and the resultant revocation of probation imposed for two
convictions of threatening and intimidating. For reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In February 2015, Nichols broke through the locked door of a
house in South Phoenix at 2 a.m. and attacked the residents, a man and a
woman, while they attempted to guard the bedroom where their infant
daughter was sleeping. During the struggle, the man hit Nichols in the
head several times with a baseball bat. Nichols briefly separated himself
after being hit, but then again attempted to grab the man and attack him.
The man repeatedly yelled at Nichols to get out of the house, but Nichols
would not leave. The man sustained scratches to his arm and swollen
fingers from hitting Nichols, and the woman sustained a bump on her
forehead. Nichols sustained severe head injuries. When the man called out
to a neighbor for help, Nichols fled. A responding officer followed Nichols
to a parking lot near the house, where Nichols collapsed.

¶3            Nichols was charged with burglary in the second degree and
two counts of aggravated assault. A jury convicted Nichols as charged, and
found as aggravating circumstances that (1) he had a felony conviction
within ten years of the offense, (2) he was on felony probation at the time
of this offense, and (3) the offense caused physical, emotional, or financial
harm to the victim.

¶4            At sentencing, the court found Nichols had violated the terms
of his probation imposed after he pleaded guilty to two counts of
threatening and intimidating in 2012. The court also found that Nichols
had eight prior felony convictions, and used two of the prior convictions to
enhance his sentences for the current offenses. The court revoked probation



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                           Decision of the Court

in the 2012 case and sentenced Nichols to concurrent terms of 1.5 years for
those offenses. The court sentenced Nichols to concurrent terms totaling 15
years for the current offenses, to be served consecutive to the sentence in
the 2012 case. Nichols timely appealed, and this court consolidated the 2012
and 2015 cases. We have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) § 13-4033.1

                               DISCUSSION

I.     Purported Prosecutorial Misconduct.

¶5           Nichols raises several claims of prosecutorial misconduct.
Because Nichols failed to object to any of the alleged misconduct at trial, he
bears the burden of establishing fundamental, prejudicial error. See State v.
Henderson, 210 Ariz. 561, 567–68, ¶¶ 19–20 (2005).

¶6             “To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that the prosecutor’s misconduct so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.” State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (citation omitted).
“The misconduct must be so pronounced and persistent that it permeates
the entire atmosphere of the trial.” Id. (citation omitted). Prosecutorial
misconduct can be a basis for reversing a conviction, but only if (1) the
prosecutor’s conduct was improper and (2) there is a reasonable likelihood
that the misconduct may have affected the verdict, and thereby denied the
defendant a fair trial. Id.

       A.     Voir Dire.

¶7            Nichols argues that during voir dire, the prosecutor
improperly asked “stake out” questions designed to identify prospective
jurors who would be “inclined to nullify the law because of a belief that it
would be wrongly applied to a defendant who suffered a traumatic brain
injury during the commission of the offense.” Although none of the jurors
who responded to this line of questioning were empaneled, Nichols argues
that the prosecutor’s questions improperly conditioned the remaining
jurors to see the evidence in a certain way before the introduction of any
evidence.




1     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                            STATE v. NICHOLS
                            Decision of the Court

¶8            The prosecutor posed the following question to the panel of
prospective jurors:

       You will hear during the course of trial that the victim--after
       the defendant was in his house, the victim hit him in the head
       with a baseball bat while he was in his house, and the
       defendant had to go to the hospital and suffered an injury as
       a result of that.

       Given that bit of information, is there anyone who thinks,
       well, my goodness, you know, you get hit in the head with a
       baseball bat, that’s enough. Why are we here with criminal
       charges if he already suffered that much?

       Does anyone think that? For the record, I’m not seeing any
       responses.

       Does anyone have a problem with that – Juror number 43?

¶9             When juror number 43 expressed some confusion, the
prosecutor clarified that “[t]he allegation is the defendant went inside the
home and while inside the home, the homeowner hit the defendant with
the bat,” emphasizing, however, that “this isn’t evidence. You’ll have to
hear the evidence from the stand.” After this juror again expressed
confusion, the prosecutor again elaborated: “You will hear that the victim
defended his home, and he caused a serious injury as a result. Does anyone
have a problem with that or think that, you know, that shouldn’t be the law,
you shouldn’t be allowed to do that?” And in response to questioning from
another juror, the prosecutor stated: “My question is this, after seeing that
the defendant suffered an injury, does anyone think like, I don’t care what
he did, legal or illegal, he had an injury that bad, I’m just going to walk him
out the door because he’s already suffered enough? That’s the question.”

¶10           These questions were not improper. They were designed to
weed out jurors who could not follow the law because of the severe injuries
Nichols suffered. Thus, these questions were appropriately “directed to
bases for challenge for cause or to information to enable the parties to
exercise intelligently their peremptory challenges.” See Ariz. R. Crim. P.
18.5(e).

¶11           The questions were not designed—as Nichols argues—“to
condition the jury to the receipt of certain evidence or to a particular view
of the evidence.” State v. McMurtrey, 136 Ariz. 93, 99 (1983). And although
the prosecutor gave the jury a short preview of the relevant evidence, his


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                            STATE v. NICHOLS
                            Decision of the Court

question was phrased in such a way to specifically avoid commenting on
whether the defendant’s conduct was legal. The prosecutor attempted to
ascertain whether any of the jurors would be inclined not to follow the law
because Nichols had “already suffered enough,” and stopped short of
asking the panel “to speculate or precommit to how [they] might vote based
on any particular facts.” State v. Prince, 226 Ariz. 516, 529, ¶ 35 (2011)
(citation omitted). Given the unusual facts of this case in which there was
a legitimate possibility that the jurors might be inclined to render a verdict
based on sympathy for the defendant, the unobjected-to questions were not
improper. See Morgan v. Illinois, 504 U.S. 719, 734 n.7 (1992) (“The process
of voir dire is designed to cull from the venire persons who demonstrate
that they cannot be fair to either side of the case.”) (citation omitted).

¶12           Nichols points to the responses of some of the jurors as
evidence of the impropriety of the prosecutor’s questions. But the court
appropriately intervened after the jurors demonstrated confusion, and
reminded the panel that counsel’s statements were not evidence, and the
defendant “sits here innocent because we have not heard any testimony.”
The court struck for cause two prospective jurors (numbers 10 and 43) who
stated they would be unable to presume Nichols’s innocence, and none of
the prospective jurors who expressed possible bias in response to this line
of questioning were empaneled. On this record, any argument that the
empaneled jury was tainted by the remarks by the stricken jurors is simply
speculation. See State v. Tison, 129 Ariz. 526, 535 (1981) (“Unless there are
objective indications of jurors’ prejudice, we will not presume its
existence.”).

       B.     Opening Statement.

¶13          Nichols argues that during opening statement, the prosecutor
improperly played a 9-1-1 call and showed photographs of the victims’
injuries, commenting that they were a “visual representation of Nichols’
intent.” Nichols acknowledges that this evidence was admitted at trial, but
he argues that “this is another example of the prosecutor improperly
dominating the course of the trial.”

¶14           The unobjected-to opening statement did not result in error.
Opening statements “orient jurors to the pertinent facts that would be
presented and [] assist in their understanding of the evidence.” State v.
Goudeau, 239 Ariz. 421, 450, ¶ 94 (2016) (citing State v. King, 180 Ariz. 268,
278 (1994)). “Specific evidence may be referenced in the opening statement
as long as the proponent has a good faith basis for believing the proposed
evidence exists and will be admissible.” State v. Pedroza-Perez, 240 Ariz. 114,


                                      5
                            STATE v. NICHOLS
                            Decision of the Court

116, ¶ 12 (2016). Nichols does not argue that the prosecutor lacked a good
faith basis for believing that the 9-1-1 call and the photographs were
admissible, and Nichols offers no support for his claim that the prosecutor
thereby “improperly dominat[ed] the course of the trial.” And the
prosecutor explained that the photographs of the broken door would be
“crucial pieces of evidence” in determining whether Nichols had been
invited into the house and what his intent was at the time. Under these
circumstances, the prosecutor’s use of the photographs and 9-1-1 call
during opening statement was not improper.

       C.     Closing Argument.

¶15            Nichols asserts that the prosecutor improperly appealed to
the sympathy of the jurors during closing argument by misstating the law
and the facts, and by vouching for the State’s witnesses. Generally,
“prosecutors have wide latitude in presenting their closing arguments to
the jury: excessive and emotional language is the bread and butter weapon
of counsel’s forensic arsenal, limited by the principle that attorneys are not
permitted to introduce or comment upon evidence which has not
previously been offered and placed before the jury.” State v. Jones, 197 Ariz.
290, 305, ¶ 37 (2000) (citation omitted). In considering whether an argument
constitutes misconduct, this court “looks at the context in which the
statements were made as well as the entire record and [] the totality of the
circumstances.” State v. Nelson, 229 Ariz. 180, 189, ¶ 39 (2012) (citation
omitted).

¶16           Nichols argues that the prosecutor improperly played on the
jurors’ fears by stating that everyone has the right to be secure in their
home, by referring to photos of the “bloody mess” as “images you can’t get
out of your mind,” and by linking his argument that motives are sometimes
elusive to the inability to ascertain motives for freeway shootings or
inappropriate touching of a child. It is improper for the prosecutor to
appeal to the fears or passions of the jury. See Morris, 215 Ariz. at 337, ¶ 58.
But these arguments were within the wide latitude afforded prosecutors in
closing argument. Rather than an appeal to jurors’ fears, this was simply
part of an explanation of the State’s theory of the case: that the victims’
home was invaded in the early morning hours by Nichols, whose
unexplained presence terrified them. The prosecutor’s arguments, in
context, were not improper.

¶17           Nichols argues the prosecutor misstated the law by stating
that the victim could have shot Nichols dead “the second the defendant
walked in the door,” and by incorrectly referring to the burglary as


                                       6
                           STATE v. NICHOLS
                           Decision of the Court

“burglary in the first degree.” The prosecutor’s comment that the victim
could have shot Nichols the second he walked through the door was a fair
statement of the law. See A.R.S. § 13-411(A), (C) (establishing that a person
is justified in using deadly physical force if the person reasonably believes
it to be immediately necessary to prevent commission of second-degree
burglary); A.R.S. § 13-419(A) (affording a presumption of reasonableness if
the person has reason to believe another person “has unlawfully or
forcefully entered and is present in the person’s residential structure”).
And although the prosecutor mistakenly referred to “burglary in the first
degree,” the reference was of no consequence in light of the jury
instructions and verdict form that correctly identified the charge as
“burglary in the second degree.” Thus the prosecutor’s inadvertent (and
unobjected-to) reference to a more serious burglary offense did not result
in reversible error.

¶18            Nichols also asserts that the prosecutor misstated the facts by
indicating that Nichols beat both victims. “The prosecutor is permitted to
argue all reasonable inferences from the evidence, but cannot make
insinuations that are not supported by the evidence.” Morris, 215 Ariz. at
336, ¶ 51 (citation omitted). The prosecutor’s argument was a reasonable
inference from the evidence, which demonstrated that both the man and
woman sustained injuries during the altercation.

¶19           Finally, Nichols argues that the prosecutor improperly
vouched for the State’s witnesses by indicating that (1) he doubted that
defense counsel would suggest that Nichols did not enter or remain in the
house; (2) he doubted that the jury could find an absence of criminal
trespass, although it was the jury’s call; (3) he was “not big on reading
instructions because there’s a lot of legalese”; and (4) apologizing for the
aggravation hearing, referring to it as “this song and dance” that was the
fault of the Arizona Supreme Court.

¶20           There are “two forms of impermissible prosecutorial
vouching: (1) where the prosecutor places the prestige of the government
behind its witness; [and] (2) where the prosecutor suggests that information
not presented to the jury supports the witness’s testimony.” King, 180 Ariz.
at 276–77 (citation omitted and alteration in original). Here, none of the
cited arguments constituted vouching. The first three of these remarks
were within the wide latitude afforded the prosecutor in closing arguments,
and were linked to the evidence presented at trial. Nevertheless, it was
improper for the prosecutor to characterize the aggravation hearing as “this
song and dance” that was the fault of the Arizona Supreme Court. The
prosecutor’s attempt to apologize for holding the jurors over for this second


                                      7
                            STATE v. NICHOLS
                            Decision of the Court

phase of trial belittled the proceeding and the jury. But the prosecutor
presented evidence at the aggravation hearing and argued that the evidence
at the hearing and at trial supported the aggravating factors. Moreover, the
jurors had been instructed that counsel’s arguments were not evidence, and
that they should consider only evidence admitted in court in reaching their
verdicts. Absent any indication in the record that the jury failed to heed
these instructions, we presume the jury followed them. See State v. Newell,
212 Ariz. 389, 403, ¶ 68 (2006).

       D.     Cumulative Error.

¶21           Nichols’s assertion of cumulative error fails because he has
not established that “the prosecutor intentionally engaged in improper
conduct and did so with indifference, if not specific intent, to prejudice the
defendant,” as necessary to reverse based on cumulative error. See State v.
Gallardo, 225 Ariz. 560, 568, ¶ 35 (2010) (citation omitted).

II.    Claimed Errors in Jury Instructions.

¶22           Nichols asserts that the superior court fundamentally erred
by instructing the jury that his self-defense claim was limited to the
aggravated assault charges, and that the victim’s use of force was justified.
He argues that “limiting Nichols’ self-defense claims to just the aggravated
assault charges was tantamount to the trial court stating that Nichols did
not have a defense to the burglary charge,” and “instructing the jury that
the victim’s use of force was justified singled out a particular factual aspect
of the case which caused the jury to attach undue significance to it.”

¶23           Nichols has failed to demonstrate error, much less
fundamental error. Self-defense was not a defense to the burglary charge.
The State’s theory of the case was that Nichols entered or remained in the
victim’s home with the intent to commit aggravated assault, and the court
so instructed the jury. The justification of self-defense by its own terms
applies only to a person “threatening or using physical force against
another.” A.R.S. § 13-404. Here, the jury was instructed to convict Nichols
if they found he had entered or remained in the victims’ home “with the
intent to commit the assault.” A self-defense instruction was thus
unwarranted under the facts of this case because the offense of burglary
was completed when Nichols entered the house with the requisite intent,
regardless of any subsequent use of physical force. Nor did the superior
court’s instruction limiting self-defense to the aggravated assault charges
suggest to the jury that Nichols had no defense to the burglary charge.




                                      8
                           STATE v. NICHOLS
                           Decision of the Court

Nichols was free to argue any defense to the burglary charge supported by
the evidence, including the insufficiency of the State’s evidence.

¶24            Furthermore, it was appropriate for the court to instruct the
jury that the victim’s use of force was justified. A person’s use of physical
force is presumed reasonable against an unlawful intruder in the person’s
home. A.R.S. § 13-419(A), (B). The justification instruction was warranted
in this case because defense counsel repeatedly challenged the victim’s use
of force as excessive. And even if the instruction constituted an
inappropriate comment on the evidence, it could not have constituted
fundamental, prejudicial error because defense counsel conceded in settling
jury instructions that the homeowner had not acted illegally and “could
have shot [Nichols] dead,” and reiterated throughout his closing argument
that the homeowner’s conduct in defending himself was not at issue.

                               CONCLUSION

¶25          For the foregoing reasons, we affirm Nichols’s convictions
and sentences for burglary and aggravated assault, and the resultant
probation revocation and sentences in the 2012 case.




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




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