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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     DOUGLAS CRISWELL, Appellant.

                             No. 1 CA-CR 14-0228
                               FILED 6-4-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-108449-002
             The Honorable Pamela Hearn Svoboda, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Margaret M. Green
Counsel for Appellant
                           STATE v. CRISWELL
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kent E. Cattani joined.


N O R R I S, Judge:

¶1            Douglas Criswell appeals his conviction and sentence for
burglary in the second degree, arguing the State committed prosecutorial
misconduct by vouching and shifting the burden of proof in closing
argument. Because Criswell did not object to either of these alleged
improprieties at trial, we review for fundamental error, see State v.
Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005), and find none.
We thus affirm his conviction and sentence.

I.    The Prosecutor Did Not Act Improperly by Vouching

¶2            Criswell argues the prosecutor committed prosecutorial
misconduct by placing the prestige of the government behind its witness,
C.R., when, in closing argument, she referred to testimony from a detective
who had interviewed C.R. See State v. Vincent, 159 Ariz. 418, 423, 768 P.2d
150, 155 (1989) (impermissible prosecutorial vouching occurs “where the
prosecutor places the prestige of the government behind its witness”). We
disagree.

¶3            In the interview, C.R. told the detective he and Criswell had
committed the burglary. At trial, C.R. testified he did not remember what
he said during the interview or whether Criswell was involved in the
burglary. After the State played portions of a video recording of the
interview outside the presence of the jury in an unsuccessful attempt to
refresh C.R.’s recollection, the superior court allowed the State to play a
redacted version of the recording for the jury. Afterward, C.R. refused to
answer either parties’ questions.1

¶4             Subsequently, in the State’s case-in-chief, the detective
testified he thought C.R. had been truthful during the interview:




             1Criswell
                     does not argue on appeal that he was deprived of a
meaningful opportunity to cross-examine C.R.


                                     2
                         STATE v. CRISWELL
                         Decision of the Court
            Prosecutor: Okay. Would you say that [C.R.]
            was cooperative [during the interview]?

            Detective: I would say, I would say that he
            initially was misleading with some answers and
            some questions. And that I could I will [sic] a
            basis that I felt like he was being more truthful
            towards the end of the interview.

            ....

            Prosecutor: Okay. And at some point so is it
            your testimony that at some point after the
            interview went on for a while he became more
            cooperative.

            Detective: Yes.

            Prosecutor: Were his answers as the interview
            went on in your[—]based on your experience in
            interviewing people, did it seem to you that his
            answers became more truthful toward the end
            of the interview?

            Detective: They did.

¶5          On cross-examination the detective affirmed this belief:

            Defense counsel: Did you think that [C.R.] was
            truthful in his statement that he made to you?

            Detective: Towards the end of the interview, I
            believe he was being truthful.

¶6          Criswell’s counsel attacked C.R.’s credibility in closing
argument. In rebuttal, the prosecutor countered:

            The detective told you when he testified, he
            believed that when [C.R.] was talking to him
            initially, he was a little bit hesitant, he was
            trying to minimize his involvement in this case.
            But he felt like as time went on that [C.R.] was
            giving him honest answers.




                                   3
                           STATE v. CRISWELL
                           Decision of the Court
              You get to decide what you think about that.
              But based on the fact that what he says matches
              what the detectives or what the officers saw,
              what the victims saw, what the 911 caller saw,
              his testimony is more credible than they will
              have you believe.

¶7            “[W]hen the prosecutor makes clear that it was for the jury to
determine the credibility of the witnesses, improper vouching does not
occur so long as the prosecutor’s characterization of the witnesses as
truthful was sufficiently linked to the evidence.” State v. Haverstick, 234
Ariz. 161, 164, ¶ 6, 318 P.3d 877, 880 (App. 2014) (quoting State v. Corona,
188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 1997) (internal quotation marks
omitted). Here, the prosecutor did no more than point to evidence that
supported C.R.’s credibility, and she explicitly reminded the jury that it
“get[s] to decide what [to] think about” the detective’s testimony. See
Corona, 188 Ariz. at 91, 932 P.2d at 1362 (prosecutor did not improperly
vouch when she “made clear that it was for the jury to determine the
credibility of the witnesses and her characterization of the witnesses as
truthful was sufficiently linked to the evidence” (internal quotation marks
omitted)).

¶8             Furthermore, our supreme court has instructed we are to
presume jurors follow the superior court’s instructions. See State v. Newell,
212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). Thus, we must assume the
jury followed the superior court’s instruction that “[w]hat the lawyers
sa[y]” in opening and closing arguments “is not evidence.” See State v.
Payne, 233 Ariz. 484, 512, ¶ 109, 314 P.3d 1239, 1267 (2013) (“When improper
vouching occurs, the trial court can cure the error by instructing the jury
not to consider attorneys’ arguments as evidence.”); Haverstick, 234 Ariz. at
166, ¶ 8, 318 P.3d at 882 (any effect of improper vouching was mitigated by
superior court’s instruction that attorney’s comments are not evidence).

II.    The State Did Not Improperly Shift the Burden of Proof

¶9            Criswell also argues the State improperly shifted the burden
of proof by pointing out in its closing argument that he did not call any
witnesses to corroborate his testimony. We disagree.

¶10           Criswell testified at trial that the reason the police found him
in possession of various consumer electronics and personal items in a park
near the burglarized apartment was because he, his brother, and a
roommate had just been evicted from their apartment, and the items were



                                      4
                          STATE v. CRISWELL
                          Decision of the Court
his. Criswell also denied he gave any property to V.M., the person who
pawned the stolen property.

¶11           In closing argument, the prosecutor pointed out that Criswell
did not call any witnesses to corroborate this testimony:

             And what doesn’t make sense, is the
             defendant’s story. His story about how he got
             evicted, about how his brother helped him to
             move all the stuff, how his brother’s friends
             watched, he’s got an answer for everything but
             nothing to back it up. Because you can bet the
             farm that if his brother or brother’s roommate
             were going to help him, we’re going to verify
             that story, they had issued a subpoena and they
             will have testified, you would have heard from
             them.

             But they didn’t come here. And there is a reason
             for that. And they know what that reason is,
             and so do you, because they have got nothing to
             back up the story.

¶12          In rebuttal, the prosecutor again picked up this theme:

             If [V.M.] will [sic] have been helpful to the case,
             they would have brought him in. The same
             things with who he says brother is a got evicted
             and his [roommate]. [sic]

             ....

             [T]here is no brother here testifying to help. No
             [roommate] here testifying to help his story to
             back it up, there is none of that because if they
             were going to help, you that [sic] make sure
             they were here. But you didn’t get to hear from
             them.

¶13          Although Criswell acknowledges that “[g]enerally, a
prosecutor may comment upon a defendant’s failure to produce material
witnesses who would substantiate his defense,” he nevertheless argues that
because his roommate, his brother, and V.M. were equally available as
witnesses to both sides, the State committed misconduct by drawing an



                                     5
                            STATE v. CRISWELL
                            Decision of the Court
inference unfavorable to Criswell from their absence. See State v. Condry,
114 Ariz. 499, 500, 562 P.2d 379, 380 (1977).

¶14            The record, however, does not show these witnesses were
“legally and practically” available to both parties. See id.; State v. Young, 109
Ariz. 221, 225, 508 P.2d 51, 55 (1973). In determining “whether [a] comment
regarding an uncalled witness [was] proper,” the superior court may
consider “whether the witness was under the control of the party who
failed to call him or her”; “whether the party failed to call a seemingly
available witness whose testimony it would naturally be expected to
produce if it were favorable”; and “whether the existence or nonexistence
of a certain fact is uniquely within the knowledge of the witness.” Gordon
v. Liguori, 182 Ariz. 232, 236, 895 P.2d 523, 527 (App. 1995) (citations
omitted); accord Kean v. C.I.R., 469 F.2d 1183, 1188 (9th Cir. 1972) (“The
determination of the question of equal availability depends upon all the
facts and circumstances bearing upon the witness’s relation to the parties
and not merely upon his physical presence at trial or accessibility for service
of a subpoena.”) cited in Ponce v. Indus. Comm’n, 120 Ariz. 134, 136, 584 P.2d
598, 600 (App. 1978). Here, because Criswell did not object to the
prosecutor’s argument, we have no record on which to make the fact-
intensive inquiry into the availability of Criswell’s brother, his roommate,
and V.M.

¶15           Accordingly, Criswell has failed to “prove error,” and,
therefore, show he is entitled to relief. See Henderson, 210 Ariz. at 568, ¶ 23,
115 P.3d at 608 (“To obtain relief under the fundamental error standard of
review, [defendant] must first prove error.”).

                               CONCLUSION

¶16           For the foregoing reasons, we affirm Criswell’s conviction
and sentence.




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