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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     HUMBERTO LARA, JR., Appellant.

                             No. 1 CA-CR 18-0384
                               FILED 6-6-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-151699-001
                  The Honorable Ronda R. Fisk, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
                             STATE v. LARA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.


C R U Z, Judge:

¶1           After a jury trial, Humberto Lara, Jr. was convicted of
aggravated assault. On appeal, Lara argues the superior court erred by
admitting improper opinion testimony and that the prosecutor committed
misconduct by vouching for the victim’s testimony. For the following
reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2             In November 2017, C.P. was walking to work when a woman
approached him. C.P. noticed she was upset and saw a man following her
in a truck. C.P. went to speak with him and recognized he was C.P.’s co-
worker, Lara. After the two spoke for about fifteen minutes, Lara pulled a
metal object from the truck and used it to strike C.P.’s head, causing C.P. to
fall to the ground. While C.P. was still down, Lara struck C.P. again in the
back.

¶3             At trial, C.P. testified that as he spoke to Lara by the truck,
Lara was “reaching for something metal” and struck C.P. with “a tire-iron-
looking” item, which was “long, metal, [with] a little bit of shine to it.” As
a result, C.P. was “bleeding pretty heavily” and required several stitches
behind his ear and neck, chin and shin. The superior court admitted
photographs of C.P.’s injuries.

¶4              Buckeye Police Officer Hauschild, who responded to C.P.’s
911-call, testified that C.P. “had an actual gash wound like open laceration
[on] the right side of his neck.” The prosecutor showed Officer Hauschild
a photograph of C.P.’s injuries and asked, based on the officer’s “training
and experience, is that injury consistent with something that could have
been caused by a fist?” The superior court sustained defense counsel’s
objection on grounds of speculation and foundation. The prosecutor
questioned, “[i]n your training and experience, have you seen an injury like
that come from a fist?” Officer Hauschild answered, “[n]o, I haven’t.” The




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                              STATE v. LARA
                            Decision of the Court

prosecutor then asked, “have you seen injuries come like that from an
object?” and Officer Hauschild answered, “[y]es.”

¶5             Buckeye Police Detective Delgado also testified for the State.
Showing him the same photograph, the prosecutor asked, “based on your
training and experience and particularly your experience with persons
crimes, . . . have you ever seen that type of injury be caused by simply a
fist?” The superior court sustained defense counsel’s objection on the basis
of foundation. After questioning Detective Delgado about his relevant
work experience, including four years of work in “persons crimes” and
about fifty injuries resulting from blunt force, the prosecutor asked, “is that
the type of injury that you have seen caused by a fist?” Defense counsel
objected again, and the superior court sustained the objection on
speculation. The superior court then overruled defense counsel’s objection
to the prosecutor’s question, “have you ever seen [an injury like] that
caused simply by a fist?” Detective Delgado answered, “[n]o.” Again, the
superior court overruled defense counsel’s speculation objection to the
prosecutor’s next question, “have you seen injuries like that caused by an
object?” Detective Delgado answered, “[y]es.”

¶6           A third witness, Buckeye Police Detective Rourke, testified for
the State. The prosecutor initially asked about his relevant experience.
Then, the prosecutor showed Detective Rourke the same photo she showed
the other two officers and asked, “have you ever seen that type of injury
caused simply by a fist?” Defense counsel did not object, and Detective
Rourke answered he had not; but, answered affirmatively when asked
whether he had seen similar injuries caused by objects.

¶7            After the trial, the jury found Lara guilty of aggravated
assault and it also found that the aggravated assault was a dangerous
offense. The jury also found that the offense caused physical, emotional, or
financial harm to the victim as an aggravating factor. Lara admitted to the
commission of a prior dangerous offense. The superior court sentenced
Lara to twelve years’ imprisonment. Lara timely appealed. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and 13-4033(A)(1).

                               DISCUSSION

I.     Standard of Review

¶8           Lara objected to the officers’ testimony below for different
reasons than he now raises on appeal. See State v. Hamilton, 177 Ariz. 403,



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                              STATE v. LARA
                            Decision of the Court

408 (App. 1993) (“an objection to the admission of evidence on one ground
will not preserve issues relating to the admission of that evidence on other
grounds.”). Lara also did not raise any objections for prosecutorial
misconduct during trial. Because Lara raises these issues for the first time
on appeal, we review for fundamental error. State v. Escalante, 245 Ariz.
135, 142, ¶ 21 (2018).

¶9            To establish fundamental error, a defendant bears the burden
of “showing that (1) the error went to the foundation of the case, (2) the
error took from the defendant a right essential to his defense, or (3) the error
was so egregious that he could not possibly have received a fair trial.” Id.
If a defendant establishes fundamental error under either prong one or two,
he must make a separate showing of prejudice. Id. Lara has not met his
burden of establishing fundamental error.

II.    Opinion Testimony

¶10           Lara argues the superior court erred by allowing officers to
provide improper “hybrid lay/expert” opinion testimony that C.P.’s
injuries were consistent with injuries caused by an object. We disagree.

¶11            At trial, the superior court properly sustained defense
counsel’s speculation and foundation objections in response to the
prosecutor’s line of questioning about a photograph showing C.P.’s
injuries. After the officers testified about their training and experience with
“persons crimes,” specifically assaults, the superior court overruled defense
counsel’s further objections. And the officers testified that C.P.’s injuries
were consistent with the types of injuries they had seen caused by an object
and not a fist.

¶12           Arizona Rule of Evidence (“Rule”) 701 permits opinion
testimony by lay witnesses that is “(a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or
to determining a fact in issue; and (c) not based on scientific, technical, or
other specialized knowledge” within the scope of expert testimony. When
a lay witness is “drawing a reasonable inference from [his] firsthand
knowledge and perceptions of a situation, the witness is competent to voice
[his] opinion.” State v. Peltz, 242 Ariz. 23, 29, ¶ 17 (App. 2017) (internal
quotations and citation omitted).

¶13           Here, the officers’ opinions were based on their perceptions
and not scientific, technical, or specialized knowledge. All the officers
offered opinions only after viewing a photograph of the victim’s injuries.
Specifically, Officer Hauschild’s testimony stemmed from his firsthand


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                               STATE v. LARA
                             Decision of the Court

observation of C.P.’s injuries when the officer interviewed the victim at the
hospital. The officers provided their opinions based on their training and
experience regarding their personal observations of other physical injuries.
And their testimony assisted the jury in determining a fact in issue—
whether the victim suffered an aggravated assault with a dangerous
instrument. See A.R.S. § 13-1204(A)(2). Accordingly, the testimony was
admissible under Rule 701. This was not fundamental error.

III.   Prosecutorial Misconduct

¶14          Lara argues the prosecutor committed misconduct by
improperly vouching for C.P.’s testimony through the officers’ testimony.
We disagree.

¶15           To secure reversal for prosecutorial misconduct, a defendant
must show the prosecutor’s actions were improper and “a reasonable
likelihood exists that the misconduct could have affected the jury’s verdict,
thereby denying the defendant a fair trial.” State v. Moody, 208 Ariz. 424,
459, ¶ 145 (2004). Impermissible vouching occurs “(1) when [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.” State v. Doerr, 193 Ariz. 56, 62, ¶ 24
(1998) (citation omitted). A prosecutor places the prestige of the
government behind a witness by personally assuring the jury of the
witness’s veracity. See State v. Dumaine, 162 Ariz. 392, 401 (1989), disapproved
on other grounds by State v. King, 225 Ariz. 87 (2010).

¶16           No misconduct occurred here. Lara does not contend that the
prosecutor made any personal assurances to the jury about C.P.’s
truthfulness. The prosecutor did not express a personal belief regarding
C.P.’s penchant for truthfulness. Nor did the prosecutor suggest that
information not in evidence supported C.P.’s testimony or the State’s theory
of the case. Instead, Lara asserts that the State “indirectly vouched for
[C.P.]’s credibility by having all three testifying officers opine about the
causation of his injuries.” Contrary to Lara’s argument, the prosecutor did
not elicit testimony “that fists could not have caused the injuries
presented.” Rather, the officers testified that, in their time as police officers,
they had never seen that type of injury caused by a fist. Accordingly, the
prosecutor’s actions did not constitute improper vouching.                    No
fundamental error occurred.




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                          STATE v. LARA
                        Decision of the Court

                           CONCLUSION

¶17         For the foregoing reasons, we affirm Lara’s conviction and
sentence.




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

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