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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    MARTINE R. APODACA, Appellant.

                             No. 1 CA-CR 15-0096
                               FILED 8-4-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2011-007703-003
                 The Honorable Pamela S. Gates, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of Patricia A. Hubbard, Phoenix
By Patricia A. Hubbard
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee
                           STATE v. APODACA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1           Martine R. Apodaca (Defendant) appeals his convictions and
sentences. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           Defendant was charged with thirteen counts stemming from
a home invasion in 2010. A jury trial was held, and the State presented
DNA evidence. A forensic scientist, Cynthia Gutierrez, testified that
Defendant’s DNA was found on a ski mask linked to the crime.

¶3             On cross-examination, Ms. Gutierrez testified that DNA from
two other individuals was present on the ski mask (Minor Profiles).
However, the Minor Profiles were incomplete, and could not be compared
against any known DNA profiles. Ms. Gutierrez further testified that the
DNA samples were only tested once, pursuant to standard practice.
Defense counsel then asked, “[s]o even though [the Minor Profiles] had
missing information, you never went back to run it again to see if . . . added
information could have been found for the missing information so that you
could have possibly got a [DNA match]?” Ms. Gutierrez responded that
“[i]t’s possible[,]” but “usually there’s generally not a significant change in
the samples when you run them over and over again that would yield the
information. . . . [B]ased on my experience, it’s not likely.”

¶4             On redirect examination, the State asked Ms. Gutierrez
without objection whether “anybody in this case ever contacted you and
said they disagreed with the results and would like these things retested[,]”
and whether she would have retested the items if requested. Ms. Gutierrez
testified that “we can run them over[,]” but she was never contacted about
retesting the items. Ms. Gutierrez also confirmed that another DNA lab
could have swabbed the ski mask and ran their own DNA analysis, if
requested.

¶5           The jury convicted Defendant on all counts and Defendant
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of


                                      2
                            STATE v. APODACA
                            Decision of the Court

the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections
12-120.21.A.1, 13-4031, and -4033 (West 2016).1

                                DISCUSSION

¶6               Defendant argues that after he challenged the accuracy of the
DNA results at trial, the State “impermissibly attempted to shift the burden
[of proof] to [Defendant]” by establishing on redirect examination that
Defendant could have—but did not—retest the DNA. Because Defendant
did not raise this argument to the trial court, we review for fundamental
error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). An error is
fundamental if it goes to the foundation of the case, takes from a defendant
a right essential to the defense, and is of such magnitude that is prevents a
fair trial. Id. (quoting State v. Hunter, 142 Ariz. 88, 90 (1984)). The defendant
bears the burden of establishing both that fundamental error occurred, and
that the error caused prejudice. Id. at ¶ 22 (citations omitted).

¶7             As a general rule, a prosecutor “may properly comment on
the defendant’s failure to present exculpatory evidence which would
substantiate defendant’s story, as long as it does not constitute a comment
on defendant’s silence.” State ex rel. McDougall v. Corcoran, 153 Ariz. 157,
160 (1987).      When a defendant challenges the sufficiency of the
investigation, a prosecutor’s argument that the defendant had the
opportunity to independently test evidence does not impermissibly shift
the burden of proof to the defendant. See State v. McKinley, 157 Ariz. 135,
138 (App. 1988) (finding that prosecutor’s argument that a defendant had
the opportunity to independently test evidence and failed to do so did not
shift the burden of proof to defendant). Such comments by the prosecution
which refute a defendant’s theory are proper because they “are a fair
rebuttal to areas opened by the defense.” State v. Alvarez, 145 Ariz. 370, 373
(1985) (citing State v. Martinez, 130 Ariz. 80, 82-83 (App. 1981)).

¶8             Here, Defendant’s questions on cross examination of
Ms. Gutierrez were meant to show that the State’s DNA analysis was
deficient. In turn, the State’s questioning on redirect examination rebutted
the theory advanced by the defense, and did not shift the burden of proof
to Defendant. Therefore, the State’s questioning was proper. See id.;
Martinez, 130 Ariz. at 82-83. Finding that no error occurred, much less
fundamental error, Defendant has not met his burden.



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


                                       3
                         STATE v. APODACA
                         Decision of the Court

                            CONCLUSION

¶9           For the foregoing reasons, we affirm Defendant’s convictions
and sentences.




                                  :AA




                                   4
