                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

             ANTONIO JOHNSON NAVARRETTE, Appellant.

                             No. 1 CA-CR 14-0038
                              FILED 12-18-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-428423-001
             The Honorable Harriett Chavez, Judge Retired

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant

Antonio Johnson Navarrette, San Luis
Appellant
                          STATE v. NAVARRETTE
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.


W I N T H R O P, Judge:

¶1             Antonio Johnson Navarrette (“Appellant”) appeals his
convictions and sentences for one count of aggravated assault and one
count of assault. Appellant’s counsel has filed a brief in accordance with
Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967);
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has
searched the record on appeal and found no question of law that is not
frivolous. Appellant’s counsel therefore requests that we review the record
for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89,
96 (App. 1999) (stating that this court reviews the entire record for
reversible error). This court allowed Appellant to file a supplemental brief
in propria persona, and Appellant has done so.

¶2            We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1) (West 2014),1 13-4031, and 13-4033(A). Finding no
reversible error, we affirm.

                 FACTS AND PROCEDURAL HISTORY2

¶3            On July 12, 2013, the State charged Appellant by indictment
with Count I, aggravated assault, a class four felony, in violation of A.R.S.
§ 13-1204, Count II, theft, a class one misdemeanor, in violation of A.R.S.
§ 13-1802, and Count III, assault, a class one misdemeanor, in violation of
A.R.S. §§ 13-1203 (A)(1) and (B). All three charges were initially designated


1     We cite the current Westlaw version of the applicable statutes
because no revisions material to this decision have since occurred.

2     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).




                                       2
                         STATE v. NAVARRETTE
                           Decision of the Court

as domestic violence offenses under A.R.S. § 13-3601.3 The State further
alleged that Appellant had six historical prior felony convictions.

¶4             At trial, the State presented the following evidence: On June
16, 2013, Appellant’s former girlfriend (“the victim”) agreed to place
Appellant’s bicycle on her patio so Appellant could come retrieve it without
further contacting her. The victim then went to sleep in her apartment.
When the victim awoke, she opened the patio door to let her dog outside,
then went to the bathroom. Upon exiting her bathroom, the victim noticed
Appellant was walking into her apartment through the patio door.
Appellant appeared intoxicated, aggressive, and upset.             Appellant
“lunged” at the victim and strangled her, pinning her against a wall. The
victim could not breathe or speak. Appellant eventually released the
victim, causing her to fall onto her bicycle. Appellant then grabbed the
front wheel of the victim’s bike and attempted to leave with her bicycle
using the front door of the victim’s apartment. The victim grabbed the back
tire and a “tug of war” ensued, resulting in the victim being dragged
outside of her apartment into a common area of the apartment complex.
Appellant released the bicycle, grabbed the victim’s purse that was sitting
in the front basket of her bicycle, and fled.

¶5            A neighbor who heard the altercation between the victim and
Appellant called the police. The neighbor testified to hearing a woman
screaming, prompting her to step outside her apartment to investigate, and
subsequently discover the victim and Appellant “pushing and shoving.”
The Phoenix Police Department responded to the emergency call and
interviewed the victim in her apartment. The victim identified the
Appellant and officers began to search for him, to no avail. One officer took
several photographs of the victim’s injuries. Later that evening, the victim
found her purse in the hallway of her apartment and was unsure of how it
got there. The following day, a Phoenix Police officer took the victim to see
a forensic nurse examiner, who conducted a full exam, documenting the
victim’s injuries. Two days after the incident, the victim contacted the
Phoenix Police, stating she knew where the Appellant was located. The
Phoenix Police arrived at the location and arrested Appellant.

¶6           The jury found Appellant guilty of Count I, aggravated
assault, and Count III, assault, and not guilty of Count II, theft. The jury
also found the allegation of domestic violence was true. At sentencing,

3      The trial court recognized that Count II should not have been
designated as a domestic violence offense and subsequently struck the
allegation of domestic violence from Count II.


                                     3
                         STATE v. NAVARRETTE
                           Decision of the Court

Appellant admitted having three historical prior felony convictions. On
Count I, aggravated assault, the trial court sentenced Appellant to a
presumptive term of 10 years’ imprisonment in the Arizona Department of
Corrections, with credit for 205 days of pre-sentence incarceration. As to
Count III, assault, the trial court sentenced Appellant to six months in the
county jail, but awarded Appellant time-served. Appellant filed a timely
notice of appeal.

                                 ANALYSIS

¶7          Appellant raises several arguments in his supplemental brief.
We address each in turn.

              I.     Evidence

¶8             Appellant contends the State failed to produce all of the
available evidence. Specifically, Appellant argues that deoxyribonucleic
acid (“DNA”) swabs taken by the forensic nurse examiner should have
been tested and the results submitted as evidence. The State is not required
to produce or introduce all evidence so long as material evidence has been
presented to the court that “bear[s] upon the charge for which the
defendant is on trial.” State v. Maloney, 105 Ariz. 348, 354, 464 P.2d 793, 799
(1970) (citation omitted). Accordingly, the State had no obligation to
perform DNA tests or produce DNA test results, especially given that the
victim identified Appellant as the perpetrator. The State presented ample
material evidence to demonstrate both Appellant’s identity and liability for
the charged crimes. To the extent Appellant argues his attorney’s failure to
seek DNA testing results constitutes ineffective assistance of counsel, we do
not address this claim on appeal. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39
P.3d 525, 527 (2002).

              II.    Ineffective Assistance of Counsel

¶9            Appellant’s next argument on appeal combines two issues.
First, Appellant contends he should have been given the right to exercise
his own or additional preemptory challenge during the jury selection
process. Second, Appellant argues his attorney should have presented an
expert witness to testify about injuries that may occur during an assault.

¶10           Based on this record, it is clear Appellant, through counsel,
fully exercised the number of preemptory challenges allotted to the defense,
and there is no indication that Appellant or his counsel asked the court for
additional preemptory strikes. Further, there is nothing in the record that
demonstrates Appellant did not provide input to his counsel regarding the


                                       4
                          STATE v. NAVARRETTE
                            Decision of the Court

section of the jury, or that Appellant’s attorney disregarded that input
during the jury selection process.

¶11            “[T]he power to decide questions of trial strategy and tactics
rests with counsel, and the decision as to what witnesses to call is a tactical,
strategic decision.” State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984)
(internal citation omitted). Appellant’s attorney’s decision to not call an
expert witness was a trial tactic that rested solely in counsel’s discretion.
Further, on appeal, this court will not address whether counsel’s decision
not to call an expert witness constitutes ineffective assistance of counsel.
See Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527.

              III.   Perjury

¶12            Appellant alleges several different acts of perjury occurred
during trial. These allegations all stem from apparent discrepancies
between prepared police and medical reports and testimony given by
several witnesses. “The credibility of witnesses is an issue of fact to be
resolved by the jury; as long as there is substantial supporting evidence, we
will not disturb their determination.” State v. Harrison, 111 Ariz. 508, 509,
533 P.2d 1143, 1144 (1975) (citation omitted). In this case, the victim, a
neighbor, a forensic nurse examiner, and two police officers testified
regarding the incident at issue and were subject to full cross-examination.
By convicting Appellant, the jury resolved the issue of witness credibility
in favor of the State. We agree with the jury’s resolution, as ample evidence
exists on the record to substantiate the finding of the jury.

              IV.    Coercion by the State

¶13           Appellant argues that the prosecutor coerced or induced
portions of the victim’s testimony. “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. Hughes, 193 Ariz. 72, 79, ¶ 26,
969 P.2d 1184, 1191 (1998) (citation omitted). On the record before us, we
cannot say the prosecutor engaged in any misconduct. The portions of
testimony cited by Appellant demonstrate appropriate redirect
examination of the victim.

              V.     Closing Argument

¶14           Appellant alleges the prosecutor made a statement in closing
argument concerning the victim’s injuries for which Appellant contends
there was no factual proof. Appellant did not object to any statements made


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                          STATE v. NAVARRETTE
                            Decision of the Court

during closing arguments; accordingly, we review this issue for
fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d
601, 607 (2005) (stating fundamental error review “applies when a
defendant fails to object to alleged trial error”). Even assuming Appellant’s
assertion is correct, closing arguments are not evidence, State v. Gonzales,
105 Ariz. 434, 437, 466 P.2d 388, 391 (1970) (citation omitted), and the jury
was specifically instructed that the closing arguments, and any opinions
given by the attorneys therein, did not constitute evidence. Our review of
the evidence and this record indicates the State’s closing argument was
appropriate. There was no error, let alone fundamental error, associated
with the State’s closing argument; accordingly, Appellant’s argument fails.

              VI.    Other Issues

¶15           We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537,
¶ 30, 2 P.3d at 96. As we have recognized, the evidence presented at trial
was substantial and supports the verdict, and the sentences were within the
statutory limits. Appellant was represented by counsel at critical stages of
the proceedings and was given the opportunity to speak at sentencing. The
proceedings were conducted in compliance with his constitutional and
statutory rights and the Arizona Rules of Criminal Procedure.

¶16            After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended. Counsel
need do no more than inform Appellant of the status of the appeal and of
his future options, unless counsel’s review reveals an issue appropriate for
petition for review to the Arizona Supreme Court. See State v. Shattuck, 140
Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days
from the date of this decision to proceed, if he desires, with a pro per motion
for reconsideration or petition for review.




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                STATE v. NAVARRETTE
                  Decision of the Court

                     CONCLUSION

¶17   Appellant’s convictions and sentences are affirmed.




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