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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         SEAN J. CAHILL, Appellant.

                             No. 1 CA-CR 14-0165
                                 FILED 8-13-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2010-005843-001
            The Honorable Jerry Bernstein, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                             STATE v. CAHILL
                            Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.


P O R T L E Y, Judge:

¶1            Defendant Sean J. Cahill appeals his convictions and the
resulting sentences for two counts of aggravated driving or actual physical
control while under the influence of intoxicating liquor or drugs. He argues
that the prosecutor committed misconduct by misstating the law, appealing
to the passions of the jury, and engaging in vouching. For the following
reasons, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2            Detective Florence was dispatched on September 18, 2007, to
check on a person in a car at a gas station parking lot. The detective found
Cahill asleep in the driver’s seat of a car with the engine running. The
detective knocked on the window, startling Cahill who sat up and “hit the
steering wheel like as if someone would honk the horn.” The detective
found Cahill was “obviously confused” because Cahill reached for the
gearshift, but then reached up and turned the ignition key. Because the
engine was already running, the starter “grinded (sic) pretty substantially.”

¶3            Detective Florence then opened the driver’s side door and
asked Cahill to get out of the car. Although Cahill told the detective he was
a chauffeur and was waiting to pick up a customer, he volunteered that he
had been arrested earlier that morning for driving under the influence.

¶4            Two other police officers arrived and continued the
“impaired driver investigation.” Cahill admitted that he had taken “two
doses of two milligrams of Ativan,” but stated he had gotten the drugs from
a client. Cahill performed poorly on two field sobriety tests and was
arrested. When searching the vehicle, the officers found three prescription
bottles including one for Lorazepam (also known as “Ativan”).


1We view the facts in the light most favorable to upholding the convictions.
State v. Lowery, 230 Ariz. 536, 538, ¶ 2, 287 P.3d 830, 832 (App. 2012) (citation
omitted).


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                              STATE v. CAHILL
                             Decision of the Court

¶5           At the police station, Cahill voluntarily spoke with Officer
Krueger, a drug recognition expert, and participated in other sobriety tests.
Cahill also provided a urine sample, which tested positive for
methamphetamine and amphetamine. Cahill was subsequently indicted.

¶6            On the final day of trial, Cahill failed to appear. The jury,
however, found him guilty as charged. After delays caused by his arrest,
release, and then failures to appear for sentencing, Cahill was subsequently
arrested and sentenced to concurrent prison terms of five months, with
fifty-one days of presentence incarceration credit, and upon release would
be on probation for three years.

¶7            Cahill filed a notice of appeal. We have jurisdiction under
Arizona Constitution Article VI, Section 9, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and -4033.2

                                DISCUSSION

¶8           Cahill argues that the prosecutor committed misconduct
during closing argument, requiring reversal. Specifically, he contends that
the prosecutor misstated the law regarding “actual physical control” of a
vehicle, improperly appealed to the jury’s passions and sense of duty, and
engaged in vouching.

¶9             Prosecutorial misconduct is defined as conduct not merely
the result of legal error, negligence, mistake, or insignificant impropriety,
but conduct that, taken as a whole, amounts to intentional conduct that the
prosecutor knows to be improper and prejudicial. State v. Martinez, 221
Ariz. 383, 393, ¶ 36, 212 P.3d 75, 85 (App. 2009) (citation omitted). “To
prevail on a claim of prosecutorial misconduct a defendant must
demonstrate that the prosecutor’s conduct so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Id.
(internal citations and quotation marks omitted). Thus, even improper
comments by a prosecutor will not warrant reversal of a defendant’s
convictions unless it is shown that there is a “reasonable likelihood” that
the “misconduct could have affected the jury’s verdict.” State v. Newell, 212
Ariz. 389, 403, ¶ 67, 132 P.3d 833, 847 (2006) (internal citations and quotation
marks omitted).




2   We cite the current versions of statutes unless otherwise noted.


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                              STATE v. CAHILL
                             Decision of the Court

¶10         In this case, the prosecutor argued during his closing
argument that Cahill was in actual physical control of his car, in large part,
because he was behind the wheel of the car with its engine running:

       And some people, to be honest with you, don‘t agree with
       that. They don‘t agree with, well — well, their opinion is,
       well, in order for someone to get a DUI, an officer should
       testify or an officer should have to see that person driving a
       car. And that‘s not what the law actually requires. What the
       law requires is evidence of actual physical control.

       And if you think about it, I mean, it makes sense. [1] We don’t
       want people behind the wheel with engines running of vehicles who
       are under the influence of alcohol or drugs. We don’t want that, and
       so actual physical control is prohibited if you are —

       [Defense counsel]: Objection, Your Honor, misstating the law.

       THE COURT: Overruled.

       [Prosecutor]: So let’s talk about the instruction.

       In determining whether the defendant was in actual physical
       control, you should consider the totality of the circumstances.
       It’s important to note that these are not elements of an offense
       like these are. These are elements of the offense that the State
       is required to prove. These 12 — this list . . . is not required to
       prove each and every one of them beyond a reasonable doubt.
       These are for your consideration to determine whether the
       defendant was in actual physical control of the vehicle.

       You’ll notice that they are in no specific order, but [2] it just so
       happens that the two most important ones, clearly the most
       important ones, are at the top; whether the vehicle was running and
       whether the ignition was on. Those are critical, because
       obviously a person with an engine running to a vehicle,
       whether it’s in park or not, if they’re under the influence, they
       do pose a real danger to themselves or others. [3] At any point
       in time they could wake up, you know, and just automatically kind
       of grab the — either grab the steering wheel or the gear shift, move
       that car out of park and God knows what can happen.

       Whether the person was awake or asleep, the person’s
       position in the vehicle. Of course he was in the driver’s seat


                                        4
                              STATE v. CAHILL
                             Decision of the Court

       with his head tilted against the window, which was rolled up.
       The time of the day. It’s early in the morning obviously. The
       weather conditions and whether the heater or air conditioner
       was on. Also, any explanation of the circumstances shown by
       the evidence.

       What was the explanation given by the defendant himself?
       That he drove the car in there and he fell asleep. Drove the
       car in there at 5 a.m., fell asleep, and the officer testified, he
       was pretty surprised to hear it was nearly 7 a.m. when he got
       woken up.

       So we submit to you — we don’t have to prove every single
       one of these elements, but [4] we submit to you that this is
       textbook, textbook actual physical control. That is exactly what the
       statute was meant to prevent. Someone sleeping behind the wheel,
       whether it’s in a parking lot or on the road, that is what the statute
       is meant to prevent.

(Emphasis added to reflect the statements being challenged on appeal.)

¶11           Cahill only objected to the prosecutor’s first alleged
misstatement of the law — “We don’t want people behind the wheel with
engines running of vehicles who are under the influence of alcohol or
drugs. We don’t want that, and so actual physical control is prohibited . . . .”
We review whether the court abused its discretion by overruling the
objection. See State v. Benson, 232 Ariz. 452, 463, ¶ 44, 307 P.3d 19, 30 (2013).
We review the other challenged statements for fundamental error because
Cahill did not object to those statements. State v. Roque, 213 Ariz. 193, 228,
¶ 154, 141 P.3d 368, 403 (2006) (when a defendant raises an instance of
alleged prosecutorial misconduct for the first time on appeal, we review for
fundamental error only). “Fundamental error” is “error going to the
foundation of the case, error that takes from the defendant a right essential
to his defense, and error of such magnitude that the defendant could not
possibly have received a fair trial.” State v. Henderson, 210 Ariz. 561, 567, ¶
19, 115 P.3d 601, 607 (2005) (citation omitted). We also review the
arguments with the appreciation that the jurors had the jury instructions as
the court was reading them out loud, and one of the first instructions stated
the following: “Lawyers comments are not evidence. . . . What the lawyers
say is not evidence, but it may help you to understand the law and the
evidence. You are to determine what the facts in the case are from the




                                         5
                            STATE v. CAHILL
                           Decision of the Court

evidence produced in court.”3 And in the absence of evidence to the
contrary, we presume the jury followed the court’s instructions. State v.
Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248 (1994).

¶12          Cahill first argues that the prosecutor improperly misstated
the law regarding “actual physical control” of a vehicle in the first two
challenged statements:

       We don’t want people behind the wheel with engines running
       of vehicles who are under the influence of alcohol or drugs.
       We don’t want that, and so actual physical control is
       prohibited if you are —

       ...

       it just so happens that the two most important ones, clearly
       the most important ones, are at the top; whether the vehicle
       was running and whether the ignition was on.

Specifically, Cahill argues that the prosecutor’s statements prioritized two
factors (whether the vehicle was running and whether the ignition was on)
above others when evaluating whether he was in actual physical control.
We disagree.

¶13           When read in the context of the complete argument, the
prosecutor’s argument did not misstate the law. For example, during his
closing, the prosecutor referred to the actual-physical-control instruction
and stated: (1) the “totality of the circumstances” should be considered in
determining “actual physical control”; (2) all the items listed in the
instruction were for the jury’s consideration in determining whether Cahill
was in actual physical control of the vehicle; and (3) the items were “in no
specific order.” And the prosecutor explained that the fact that the car was
running and the key was in the ignition were the most important factors
because a person in that situation “pose[s] a real danger to themselves or
others.” The argument tracked the portion of the jury instruction,4 which
had been given to and read before the closing arguments, requiring the jury
to determine whether the circumstances established that Cahill’s “current


3 And the court reiterated just before arguments began that “what [the
lawyers] tell you in their closing arguments is not evidence.”
4 The court distributed a copy of the final jury instructions to each juror so

that the jury could follow the instructions while the court was reading them
out loud. Ariz. R. Crim. P. 21.3(d).


                                      6
                            STATE v. CAHILL
                           Decision of the Court

or imminent control of the vehicle presented a real danger to himself or
others at the time alleged.”

¶14           Because of the context of the argument, the prosecutor did not
misstate the law, and the court did not abuse its discretion by overruling
the objection. See Benson, 232 Ariz. at 463, ¶¶ 42–44, 307 P.3d at 30.

¶15            Cahill also challenges on appeal the prosecutor’s argument
about the most important factors about actual physical control. Again, in
the context of the total argument, the statement was not error, much less
fundamental error. Additionally, Cahill’s lawyer reminded the jurors that
whether Cahill was using the car as a shelter with its air conditioning, or
whether he was about to drive, poses an interesting question that the jury
had to resolve. Consequently, the prosecutor’s statement about the most
important factors of actual physical control did not improperly misstate the
law. See Boyde v. California, 494 U.S. 370, 384 (1990) (rejecting contention
that prosecutor’s closing argument “reinforced an impermissible
interpretation” of the relevant law, noting that “arguments of counsel
generally carry less weight with a jury than do instructions from the court”
and such arguments “must be judged in the context in which they are
made”); Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974) (“[A] court should
not lightly infer that a prosecutor intends an ambiguous remark to have its
most damaging meaning or that a jury, sitting through lengthy exhortation,
will draw that meaning from the plethora of less damaging
interpretations”); Benson, 232 Ariz. at 463, ¶¶ 42–44, 307 P.3d at 30
(concluding that when viewed in context, the prosecutor did not misstate
the law); State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000)
(Prosecutors have considerable latitude in presenting their closing
arguments to the jury.).

¶16           Cahill also argues that the prosecutor improperly appealed to
the jury’s passions and sense of duty in the following statement:

       At any point in time they could wake up, you know, and just
       automatically kind of grab the — either grab the steering
       wheel or the gear shift, move that car out of park and God
       knows what can happen.

Cahill asserts that the statement was impermissible because it appealed to
the jury’s sense of duty to protect society and encouraged the jurors “to
consider ‘what can happen’ in the hypothetical possibility that a person
awakes and moves the car.”




                                      7
                             STATE v. CAHILL
                            Decision of the Court

¶17            However, the argument was consistent with the actual-
physical-control instruction, which required the jurors to determine
“whether the defendant’s current or imminent control of the vehicle
presented a real danger to himself or others at the time alleged.” Moreover,
the statement was not improper even if the prosecutor intended to invoke
the jury’s sense of duty to protect society against drunk driving. See State
v. Herrera, 174 Ariz. 387, 396–97, 850 P.2d 100, 109–10 (1993) (concluding
that “prosecutor’s statements about justice and protecting society” were not
improper); State v. Sullivan, 130 Ariz. 213, 219, 635 P.2d 501, 507 (1981)
(“[A]rguments referring to the prevalence of crime, the duty of the jury, and
the efforts of the police in combatting crime are not improper.”); see also
State v. Walker, 181 Ariz. 475, 483, 891 P.2d 942, 950 (App. 1995).

¶18            Finally, Cahill argues that the prosecutor engaged in
vouching by making improper references to “cases and laws” not presented
to the jury in the following statement:

       [W]e submit to you that this is textbook, textbook actual
       physical control. That is exactly what the statute was meant
       to prevent. Someone sleeping behind the wheel, whether it’s
       in a parking lot or on the road, that is what the statute is meant
       to prevent.

“Prosecutorial vouching” occurs (1) when “the prosecutor places the
prestige of the government behind its evidence” and (2) “where the
prosecutor suggests that information not presented to the jury supports the
evidence.” State v. Martinez, 230 Ariz. 208, 215, ¶ 29, 282 P.3d 409, 416 (2012)
(internal citation and quotation marks omitted). Cahill contends that
because the jury did not receive evidence regarding the legislative intent
behind the actual physical control law nor any “textbooks,” the prosecutor’s
statement improperly suggested that information not presented to the jury
supported the State’s argument.

¶19            The prosecutor’s argument was not referring to any specific
prior cases or actual textbooks, but rather, after discussing the instruction
of actual physical control and relevant evidence, was arguing that Cahill
was exercising actual physical control of his car by sleeping in it while it
was running. As a result, the prosecutor’s use of the colloquial phrase
“textbook case” was not improper. See State v. Fouse, 319 P.3d 778, 787, ¶ 33
(Utah App. 2014) (noting that “colloquial, vigorous, and colorful comments
often fall within the wide latitude permitted counsel in presenting closing
arguments to the jury”) (internal citations and quotation marks omitted); cf.
State v. Gonzales, 105 Ariz. 434, 436-37, 466 P.2d 388, 390-91 (1970) (“Our law


                                       8
                           STATE v. CAHILL
                          Decision of the Court

permits trial counsel wide latitude in presenting closing arguments to the
jury.”). Therefore, the prosecutor’s statement, while colloquial, did not
introduce or comment on evidence that was not in the record, and, as a
result, did not constitute impermissible vouching, nor was it misconduct,
much less fundamental error leading to prejudice.

                            CONCLUSION

¶20          For the foregoing reasons, we affirm Cahill’s convictions and
sentences.




                                  :RT




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