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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  EVELYN JENNY JOHNSON, Appellant.

                             No. 1 CA-CR 15-0197
                               FILED 1-21-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400333
                The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Scott Simon
Counsel for Appellee

Mohave County Legal Defender’s Office, Kingman
By Eric Devany
Counsel for Appellant
                             STATE v. JOHNSON
                             Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.


P O R T L E Y, Judge:

¶1           Evelyn Jenny Johnson challenges her conviction and sentence
for hindering prosecution in the first degree. She argues there was
insufficient evidence to support her conviction and prosecutorial
misconduct deprived her of a fair trial. For the following reasons, we
affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             Deputy Patterson attempted to execute a felony arrest
warrant for Brian Johnson at a mobile home owned by Johnson and her
family.1 After knocking on the trailer and announcing he had a warrant to
arrest Brian, Patterson heard a female voice, then what sounded like a door
close and several “thuds” as if someone was jogging or running in the
home. No one from the trailer responded to his continual yelling for Brian
to come out, but neighbors congregated near the deputy.

¶3           Deputy Patterson called for backup, and as other deputies
began arriving, Patterson learned from a neighbor that Johnson was in the
mobile home. Patterson subsequently used the vehicle PA system to again
announce he had a warrant for Brian’s arrest, and requested Johnson to
come out. No one responded. Four hours later, however, deputies fired
“glass breakers” through a window of the trailer, and both Brian and
Johnson came out.

¶4            Johnson later admitted to deputies that she knew there was a
warrant for Brian’s arrest. She explained that she did not come out of the
trailer because she did not hear Patterson’s requests. She further explained
that she was not wearing her hearing aids; was taking a bath; was taking a
nap and is a heavy sleeper; her heater was turned up; and her room is
possibly sound proof.


1 Johnson and Brian Johnson are apparently not related.   For clarity, we refer
to the latter by his first name.

                                      2
                           STATE v. JOHNSON
                           Decision of the Court

¶5             Johnson was subsequently charged with one count of
hindering prosecution in the first degree, a class 5 felony, and, after trial,
the jury found her guilty. She was sentenced to a mitigated prison term of
2.6 years.2 We have jurisdiction over her appeal pursuant to Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12–120.21(A)(1), 13–
4031, and –4033(A).3

                               DISCUSSION

I.     Sufficiency of Evidence

¶6             “A person commits hindering prosecution in the first degree
if, with the intent to hinder the apprehension, prosecution, conviction or
punishment of another for any felony, the person renders assistance to the
other person.” A.R.S. § 13-2512(A). A person renders assistance to another
by knowingly “[h]arboring or concealing the other person,” or by
“[p]reventing or obstructing by means of force, deception or intimidation
anyone from performing an act that might aid in the discovery,
apprehension, prosecution or conviction of the other person.” A.R.S. § 13–
2510(1), (4).

¶7            Johnson asserts the evidence fails to establish that she
intentionally hindered Brian’s arrest because the State did not present
evidence that she “took any overt action” to prevent his arrest, such as
telling deputies that Brian was not in the home, disguising him, or
distracting the deputies so he could escape.4 She also implies the jury was
required to accept as true her exculpatory statements to the deputies
explaining why she did not abide by their commands to exit her home.

¶8            Our review of the sufficiency of evidence is limited to whether
substantial evidence exists to support the verdict. State v. Scott, 177 Ariz.
131, 138, 865 P.2d 792, 799 (1993). Substantial evidence is such proof that
“reasonable persons could accept as adequate and sufficient to support a


2 The jury found that Johnson committed the offense while on release for a
separate felony offense. As a result, Arizona Revised Statutes (“A.R.S.”)
section 13-708(D) required the court to impose a term two years longer for
a class 5 felony conviction.
3 We cite the current version of the applicable statutes unless otherwise

noted.
4 The record reveals that the State pursued a conviction only on the ground

that Johnson hindered the apprehension of Brian, not on the other bases of
unlawful hindrance listed in § 13-2512(A).

                                      3
                            STATE v. JOHNSON
                            Decision of the Court

conclusion of defendant’s guilt beyond a reasonable doubt.” State v.
Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125
Ariz. 417, 419, 610 P.2d 51, 53 (1980)).

¶9             When addressing a sufficiency of evidence argument, “[w]e
construe the evidence in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” See State v.
Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). We “draw all
reasonable inferences that support the verdict,” State v. Fulminante, 193
Ariz. 485, 494, ¶ 27, 975 P.2d 75, 84 (1999), and we resolve any conflict in the
evidence in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289,
293, 778 P.2d 1185, 1189 (1989). We will reverse a conviction only if there is
a complete absence of probative facts to support the conviction. State v.
Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976). The finder-of-fact,
not the appellate court, however, weighs the evidence and determines the
credibility of witnesses. State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220
(App. 1995). No distinction exists between circumstantial and direct
evidence in Arizona. State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895
(1993). When determining one’s intent, absent an admission, the court uses
inferences “from all relevant surrounding circumstances.” In re William G.,
192 Ariz. 208, 213, 963 P.2d 287, 292 (App. 1997).

¶10            Despite Johnson’s argument, there is no statutory
requirement that she needed to commit an overt act to hinder Brian’s arrest.
See A.R.S. § 13–2510(1), (4). Her obstruction was deception; pretending not
to be home for four hours or unable to hear the repeated requests by law
enforcement to come out of the trailer, see id., and is sufficient to sustain her
conviction. See State v. Martinez, 175 Ariz. 114, 117, 854 P.2d 147, 150 (App.
1993) (rejecting contention that defendant’s action of closing door on police
was inadvertent and not to hinder execution of search warrant).

¶11           Although she claimed she could not hear the requests to leave
the mobile home, the jury was free to reject the truthfulness of her
statements. Instead, and based on the evidence, the jury could have
reasonably concluded Johnson, like her neighbors, heard that the deputy
was outside of the mobile home. Additionally, the jury could have
reasonably concluded she was aware of the deputy’s presence because
Deputy Patterson heard a female voice followed by a closing door after he
first pounded on the trailer and announced his presence, and she was the
only woman who eventually came out of the trailer. Moreover, because
Johnson knew there was a warrant for Brian’s arrest, which was announced
a number of times during the standoff, the jury could have inferred that she
intentionally hindered Brian’s arrest by harboring or concealing him in her


                                       4
                            STATE v. JOHNSON
                            Decision of the Court

home for the four hours before they both came out of the trailer.
Consequently, there was sufficient evidence supporting Johnson’s
conviction for hindering prosecution in the first degree.5

II.    Prosecutorial Misconduct

¶12          Johnson contends she was denied a fair trial because of the
prosecutor’s misconduct during closing arguments. She argues the
prosecutor improperly referred to facts not in evidence and commented on
events “beyond the date-based limit of the indictment.”

¶13            We review the issue, as Johnson correctly notes, for
fundamental error because she did not object at trial to the purported
misconduct. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601,
607 (2005) (failure to object to alleged trial error results in fundamental error
review). To obtain relief under fundamental error review, Johnson has the
burden to show that error occurred, the error was fundamental and that she
was prejudiced thereby. See id. at 567-68, ¶¶ 20-22, 115 P.3d at 607-08.
Fundamental error is error that “goes to the foundation of [her] case, takes
away a right that is essential to [her] defense, and is of such magnitude that
[s]he could not have received a fair trial.” Id. at 568, ¶ 24, 115 P.3d at 608.
The showing required to establish prejudice “differs from case to case.” Id.
at ¶ 26. Speculation about how a purported error may have resulted in
prejudice is insufficient; the prejudice must affirmatively appear in the
record. State v. Trostle, 191 Ariz. 4, 13, 951 P.2d 869, 878 (1997); State v.
Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006).

¶14            We will reverse a conviction for prosecutorial misconduct
only if “(1) misconduct is indeed present[,] and (2) a reasonable likelihood
exists that the misconduct could have affected the jury’s verdict, thereby
denying defendant a fair trial.” State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94
P.3d 1119, 1154 (2004) (citation omitted). To justify reversal, the misconduct
“must be ‘so pronounced and persistent that it permeates the entire
atmosphere of the trial.’” State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230
(1997) (citations omitted).

       A.     Facts Not In Evidence

¶15          To prove that Johnson knew Brian was the subject of an arrest
warrant at the time of the incident, the State presented evidence showing

5 Because we conclude the evidence is sufficient to show Johnson
intentionally hindered Brian’s apprehension, we need not address her
arguments that focus on her purported hindrance of Brian’s prosecution.

                                       5
                            STATE v. JOHNSON
                            Decision of the Court

that Brian did not appear at arraignment in a burglary case where he and
Johnson were co-defendants. In rebuttal closing argument, the prosecutor
stated:
        Defense counsel . . . talked about – and she knows she
        shouldn’t have, about what happened on [Johnson’s] other
        case; but I could tell you a whole lot more [that] is not relevant
        here. So whatever happened in the other case is not for your
        consideration. There’s a whole long story that we could be here
        for days about.

(Emphasis added.)

¶16           She argues the highlighted language constituted a comment
regarding facts not in evidence and improper other-act evidence. Since a
prosecutor may not comment on facts not introduced into evidence, it was
improper for the prosecutor to comment directly or by innuendo on aspects
of her burglary case that were unknown to the jury. See State v. Zaragoza,
135 Ariz. 63, 68, 659 P.2d 22, 27 (1983) (citation omitted). However, the
comments were brief and isolated and were made in response to Johnson’s
closing argument that she was not convicted of the burglary charge. Thus,
the comments did not “permeate[] the entire atmosphere of the trial,” Lee,
189 Ariz. at 616, 944 P.2d at 1230 (citation omitted), and, under these
circumstances, there was no reasonable likelihood that the comments
influenced the verdict.

¶17             Similarly, we conclude that Johnson failed to establish any
prejudice. The evidence of guilt was overwhelming, and the trial court
advised the jury both before and after the closing arguments that counsels’
arguments were not law or evidence. See State v. Newell, 212 Ariz. 389, 403
¶ 68, 132 P.3d 833, 847 (2006) (citation omitted) (“[T]he superior court
instructed the jury that anything said in closing arguments was not
evidence. We presume that the jurors followed the court’s instructions.”);
State v. Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881 (1997) (noting that although
the prosecutor impermissibly commented on defendant’s failure to testify,
“we cannot say it contributed to the jury’s verdict in view of the
overwhelming evidence of guilt and the context within which it was
made”). The court further instructed the jury as follows:

       Evidence was presented in this case that the defendant had
       another case pending at the time of the crime she is alleged to
       have committed in this case. Such evidence was not
       presented, and may not be considered by you to conclude that
       she is a bad person, or that she is disposed to engage in


                                       6
                           STATE v. JOHNSON
                           Decision of the Court

       criminal activities. Such evidence was presented and may be
       considered by you only for the limited purpose of
       determining whether she knew that there was a felony
       warrant outstanding for the arrest of Brian Johnson.

¶18           We presume that jurors follow the court’s instructions.
Newell, 212 Ariz. at 403, ¶ 68, 132 P.3d at 847 (citation omitted). Given this
presumption, in addition to the overwhelming evidence of guilt, Johnson
failed to prove any prejudice.

       B.     Comments Regarding Events That Occurred Before the Date
              of the Offense

¶19          The indictment provides that the charged offense occurred on
or about March 4, 2014. Without citation to relevant authority, Johnson
contends the evidence in her trial should have been “limited to a time ‘on
or about the 4th day of March, 2014.’” Thus, she argues the prosecutor
engaged in misconduct during closing arguments by making the following
statements:

       [A]nd Brian Johnson did not appear [on the warrant] until
       he’s arrested on March 4th, several months after he’s ordered
       to appear, hanging out at [Johnson’s] house, and she allows
       him to stay there, to harbor and conceal him.”

       ...

       It started back in January when the warrant was issued for
       Brian Johnson, and continued until culminated on March 4th
       when the deputies went there.

       ...

       There’s no reason for her not to ride this out with the deputies
       for hours after three months of a fugitive living in her house
       other than to hinder [Brian’s] arrest and prosecution.

¶20           The arguments do not invite the jury, as Johnson suggests, to
convict her for uncharged conduct. Instead, the arguments are fair
comments on the evidence. See State v. Bible, 175 Ariz. 549, 602, 858 P.2d
1152, 1205 (1993) (“[D]uring closing arguments counsel may summarize the
evidence, make submittals to the jury, urge the jury to draw reasonable
inferences from the evidence, and suggest ultimate conclusions.”).
Additionally, even if the arguments were improper, Johnson only


                                      7
                          STATE v. JOHNSON
                          Decision of the Court

hypothesizes that her conviction “may have” been based on uncharged
conduct. Not only is such speculation insufficient under fundamental error
review to establish prejudice, but we find no prejudice resulted from the
prosecutor’s arguments. Because there was overwhelming evidence to
support the conviction and the jury was properly instructed that counsels’
arguments were not law or evidence, we find no fundamental error.

                            CONCLUSION

¶21          Based on the foregoing, we affirm Johnson’s conviction and
sentence.




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