                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

               RODOLFO MARQUEZ RAMOS, Appellant.


                         No. 1 CA-CR 13-0076
                          FILED 07-22-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-126450-002
              The Honorable Harriett E. Chavez, Judge

                             AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Office of the Legal Defender, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant
                           STATE v. RAMOS
                          Opinion of the Court



                               OPINION

Judge Michael J. Brown delivered the Opinion of the Court, in which
Presiding Judge Andrew W. Gould and Judge Donn Kessler joined.


B R O W N, Judge:

¶1            Rodolfo Marquez Ramos appeals from his convictions and
sentences for conducting a chop shop and theft of a means of
transportation, and raises several claims of prosecutorial misconduct.
Although the prosecutor improperly commented on Ramos’s failure to
testify, we conclude the error, while fundamental, was not prejudicial.
We therefore affirm.

                            BACKGROUND

¶2            R.H. left her home one evening to stay overnight elsewhere.
As she was leaving, R.H. saw her mother’s car parked next to the curb in
front of their home. When R.H. returned home the following afternoon,
she noticed the car was missing and contacted the police.

¶3           Officer Glenn Doerr was able to track the car to a Glendale
residence. He arrived at the residence shortly thereafter and walked
toward an “open-back” trailer located on the property. Officer Doerr saw
Ramos and co-defendant James Wilson standing inside the trailer next to a
car. The officer noticed both men were dirty and Ramos’s hands and
clothing were covered in grease.

¶4             At that point additional patrol units arrived and Ramos and
Wilson were taken into custody. Officer Doerr entered the trailer and
found a car stripped of its motor, tires, and “other suspension
components.” Other officers found tools in the trailer, including bolt
cutters, tire irons, and a tool used “to cut the parts off a vehicle.” In
Ramos’s pocket, officers also found a key that had been “ground down”
such that it could “manipulate the tumblers” in multiple ignitions. When
officers checked the vehicle identification number, they confirmed it was
the car R.H. reported as missing.

¶5           The State charged Ramos and Wilson each with one count of
conducting a chop shop and one count of theft of a means of
transportation. The State also charged Ramos with one count of


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                             Opinion of the Court

possession of burglary tools and alleged he had one historical prior felony
conviction.

¶6             The charges against Ramos and Wilson were consolidated
for trial. 1 R.H. and her mother testified they did not know either Ramos

or Wilson and did not give either of them permission to take the car from
their home. Neither Ramos nor Wilson testified. The jury convicted each
of them of conducting a chop shop and theft of a means of transportation,
but hung on the charge of possession of burglary tools against Ramos.
The trial court imposed concurrent three-year terms of standard probation
on Ramos for each count and this timely appeal followed.

                                DISCUSSION

¶7            Ramos argues the prosecutor engaged in several forms of
misconduct that warrant setting aside his convictions and sentences.
Specifically, Ramos contends the prosecutor improperly (1) commented
on Ramos’s failure to testify at trial; (2) bolstered the prosecutor’s
credentials and impugned the integrity of defense counsel; (3) provided
personal opinion as to Ramos’s guilt; and (4) vouched for the State’s
witnesses. We address each issue in turn.

¶8           Ramos objected at trial to the alleged prosecutorial
vouching; we therefore review that contention for harmless error. State v.
Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005). Because
Ramos failed, however, to object at trial to any of the other acts or
comments he contends on appeal constituted prosecutorial misconduct, he
has waived those arguments absent a showing of fundamental error. Id.
at ¶ 19.

       A.     Comments on Ramos’s Failure to Testify

¶9              Ramos argues the prosecutor improperly commented on his
failure to testify. We agree, but conclude the error was not prejudicial.

¶10           It is well-established that both federal and state laws
prohibit a prosecutor from making any comment, direct or indirect, about
a defendant’s failure to testify. See U.S. Const. amend. V (“No person . . .
shall be compelled in any criminal case to be a witness against himself [ . ] ”);
Ariz. Const. art., 2, § 10 (“No person shall be compelled in any criminal

1      Wilson was sentenced separately and is not a party to this appeal.




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                             Opinion of the Court

case to give evidence against himself [ . ] ”); Ariz. Rev. Stat. (“A.R.S.”) § 13-
117(B) (”The defendant’s neglect or refusal to be a witness in his own
behalf shall not in any manner prejudice him, or be used against him on
the trial or proceedings.”); see also Griffin v. California, 380 U.S. 609, 613-14
(1965); State v. Rutledge, 205 Ariz. 7, 12, ¶ 26, 66 P.3d 250, 255 (2003); State
v. Smith, 101 Ariz. 407, 410, 420 P.2d 278, 281 (1966).

¶11          In Griffin, the United States Supreme Court explained the
purpose of the prohibition:

       [A] comment on the refusal to testify is a remnant of the
       inquisitorial system of criminal justice, which the Fifth
       Amendment outlaws. It is a penalty imposed by courts for
       exercising a constitutional privilege. It cuts down on the
       privilege by making its assertion costly. It is said, however,
       that the inference of guilt for failure to testify as to facts
       peculiarly within the accused’s knowledge is in any event
       natural and irresistible, and that comment on the failure
       does not magnify that inference into a penalty for asserting a
       constitutional privilege. What the jury may infer, given no
       help from the court, is one thing. What it may infer when
       the court solemnizes the silence of the accused into evidence
       against him is quite another.

380 U.S. at 614 (internal quotations and citations omitted). Given those
concerns, the Supreme Court held that “the Fifth Amendment, in its direct
application to the Federal Government and in its bearing on the States by
reason of the Fourteenth Amendment, forbids either comment by the
prosecution on the accused’s silence or instructions by the court that such
silence is evidence of guilt.” Id. at 615.

¶12            In this case, the prosecutor’s initial closing argument was
brief and did not discuss the elements of the crimes or any specific
evidence. Counsel for Ramos asserted several times in his closing
argument that the State failed to present any “direct evidence”
demonstrating Ramos participated in the crimes and that the State’s
reliance on circumstantial evidence was insufficient to prove guilt beyond
a reasonable doubt.        During his detailed rebuttal, the prosecutor
referenced the definitions of direct and circumstantial evidence included
in the final jury instructions. He explained that the State was required to
prove all of the elements of the crimes alleged and argued it had done so.
The prosecutor also stated:




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                            Opinion of the Court

       You don’t strip a car that doesn’t belong to you without at
       least alluding to the fact that it might be stolen. It’s that
       simple. The defendants are never gonna get on the stand and say
       “I did it. You got me.” So they’re going to try to poke holes in
       whatever evidence the State has.

(Emphasis added.) Shortly thereafter, the prosecutor added: “So, red
herring is a distraction. That’s what the whole defense counsel raised is
red herrings, because, again, the defendant's [sic] never gonna say, ‘I did
it.’” A few minutes later, the prosecutor made a similar point: “Whatever
evidence the State presents, the defense will always attack something that
wasn’t done because in any criminal case there’s going to be something
that’s missed. Again, the defendants are never gonna say, ‘I did it. You
got me.’”

¶13            “Whether a prosecutor’s comment is improper depends
upon the context in which it was made and whether the jury would
naturally and necessarily perceive it to be a comment on the defendant’s
failure to testify.” Rutledge, 205 Ariz. at 13, ¶ 33, 66 P.3d at 56. “To be
constitutionally proscribed, a comment must be adverse; that is, it must
support an unfavorable inference against the defendant and, therefore,
operate as a penalty imposed for exercising a constitutional privilege.”
State v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53 (1980).

¶14            While the prosecutor in this case may have intended to aim
his statements at rebutting defense counsel’s argument about lack of
direct proof, the statements directly pointed to Ramos’s failure to take the
stand, which “support[ed] an unfavorable inference” that Ramos chose
not to testify because he could not do so without incriminating himself.
Cf. Mata, 125 Ariz. at 238, 609 P.2d at 53 (holding that a prosecutor’s
remarks did not “support an unfavorable inference” when “the remarks
were inadvertent and immediately corrected”).               The prosecutor’s
comments thus operated as a penalty on Ramos’s exercise of his
constitutional right to remain silent. See State v. Still, 119 Ariz. 549, 551,
582 P.2d 639, 641 (1978) (finding a constitutional violation when the jury
would necessarily conclude that the defendant “was the only person who
could possibly contradict or explain the State’s evidence” and the




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                            Opinion of the Court

prosecutor’s pointing toward the defendant emphasized his failure to take
the witness stand and tell his side of the story). 2

¶15                In light of the constitutional violation, fundamental error
occurred because Ramos was deprived of a right essential to his defense.
See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607; State v. Cannon, 118
Ariz. 273, 274, 576 P.2d 132, 133 (1978) (finding fundamental error based
on prosecutor’s comment to the jury that the defendant “never answered”
where he was on the night in question because it was “a direct comment
on defendant’s failure to take the witness stand”); State v. Decello, 113 Ariz.
255, 258, 550 P.2d 633, 636 (1975) (concluding that the prosecutor’s
statement “No one, no one, no one got up on this stand and testified to
you contrary to what was testified to you by the witness” constituted
fundamental error); State v. Rhodes, 110 Ariz. 237, 238, 517 P.2d 507, 508
(1973) (reversing defendant’s conviction based on prosecutor’s comment
that defendant “did not explain away off [the] witness stand” and
explaining that in a case in which the “rights against self-incrimination are
violated [ , ] it is fundamental error”).

¶16          Notwithstanding the fundamental nature of the error, we
must determine whether the error requires reversal. With no citation to
authority, Ramos argues that the error is prejudicial per se. Our supreme

2      Citing State v. Alvarez, 145 Ariz. 370, 373, 701 P.2d 1178, 1181 (1985),
State v. Gillies, 135 Ariz. 500, 510, 662 P.2d 1007, 1017 (1983), and State v.
Hernandez, 170 Ariz. 301, 307-08, 823 P.2d 1309, 1315-16 (App. 1991), the
State argues that the prosecutor’s comments referencing Ramos’s failure
to take “the stand” and testify were “fair rebuttal” to Ramos’s claim of
insufficient evidence. Alvarez and Hernandez did not involve violations of
the Fifth Amendment, and are therefore inapposite. In Gillies, defense
counsel argued in closing “that the state had accumulated and presented
to the jury physical evidence which had no real connection to the
defendant.” 135 Ariz. at 510, 662 P.2d at 1017. In rebuttal, the prosecutor
stated: “All other evidence points to the defendant. His cigarette on the
rock on top of her body, as in the car, all the physical evidence that had
been taken from the vehicle, all her property, all other evidence points to
the defendant, . . . [and] he didn’t try to explain that because he couldn’t.”
Our supreme court concluded that the prosecutor’s comments were “fair
rebuttal” to defense counsel’s argument. Id. Unlike Gillies, in this case the
prosecutor did not vaguely reference Ramos’s failure to “explain”
incriminating evidence, but directly commented on his failure to testify by
stating that Ramos would never “get on the stand and say ‘I did it.’”



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                            Opinion of the Court

court’s opinion in Smith supports Ramos’s position. 101 Ariz. at 410, 420
P.2d at 281. That case, decided shortly after Griffin, held that the general
rule of waiver absent a timely objection “was inapplicable” when “the
claimed error is so fundamental that it is manifest that the defendant did
not have a fair trial [ . ] ” Id. The court explained that “extreme caution
must be exercised in permitting an evasion of these fundamental rights”
and “[w]hen one has been denied a constitutional right as essential as the
right against self-incrimination, prejudicial effect will be presumed and
the error will be deemed fundamental.” 3 Id. at 409-10, 420 P.2d at 280-81.

¶17            Subsequent development of the law, however, persuades us
that a prosecutor’s comment on a defendant’s failure to testify does not
necessarily require reversal of the defendant’s conviction. See Chapman v.
California, 386 U.S. 18, 20 (1967) (recognizing that “some constitutional
rights [are] so basic to a fair trial that their infraction can never be treated
as harmless error” but declining to treat a violation of the Griffin rule as
compelling an automatic reversal of the conviction); Rutledge, 205 Ariz. at
13, nn. 5-6, ¶¶ 30-32, 66 P.3d at 56 nn. 5-6 (explaining that a comment on a
defendant’s failure to testify may be “harmless error” or “fundamental
error,” depending on the facts of the case); State v. Ring (Ring III), 204 Ariz.
534, 552-53, ¶ 46, 65 P.3d 915, 933-34 (2003) (providing specific examples
of structural error, which is rarely applied). Instead, evaluating prejudice
under the fundamental error standard of review is a fact-intensive inquiry
and varies “depending upon the type of error that occurred and the facts
of a particular case.” Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608;
State v. James, 231 Ariz. 490, 494, ¶ 15, 297 P.3d 182, 186 (App. 2013).

¶18           To establish prejudice, Ramos carries the burden of showing
that absent the improper comments a reasonable jury could have reached
a different result. See Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609;
Rhodes, 110 Ariz. at 238, 517 P.2d at 508 (concluding prosecutorial
misconduct is prejudicial when “evidence hangs in delicate balance [and]

3       Based on Smith, some commentators have included Arizona as one
of several states that “appear to have adopted a more stringent standard
than that of the Supreme Court, indicating that a violation of the Griffin
rule is inherently prejudicial so as to call for automatic reversal.” See Stein
Closing Arguments § 1:59 (2013-2014 ed.); 1 Wharton’s Criminal Evidence
§ 3:22 (15th ed.) (stating that “nothing in Chapman [v. California, 386 U.S. 18
(1967)] would preclude a state court from holding that a violation of the
Griffin rule is prejudicial per se and thus a ground for automatic reversal
of a conviction, and some state courts have so held[,]” including Arizona).



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                            Opinion of the Court

any prejudicial comment [is] likely to tip the scales in favor of the State”).
If overwhelming evidence of guilt exists in the record, we may conclude
that a defendant has failed to meet his burden of establishing prejudice
from the impermissible comment. State v. Trostle, 191 Ariz. 4, 16, 951 P.2d
869, 881 (1997) (concluding that prosecutor’s statement was an
impermissible comment on defendant’s failure to testify, but the error did
not contribute to the jury’s verdict in view of the “overwhelming evidence
of guilt and the context within which it was made”).

¶19            To prove that Ramos conducted a chop shop in violation of
A.R.S. § 13-4702, the State was required to establish (1) he knowingly
owned or operated a “building, lot or other premises” in which he altered,
disassembled, dismantled, reassembled, or stored a vehicle; and (2) he
knew the vehicle was obtained by theft “with the intent to [a]lter,
counterfeit, deface, destroy, disguise, falsify, forge, obliterate or remove
the identity of the motor vehicles or motor vehicle parts [ . ] ” A.R.S. § 13-
4701(1). As relevant here, to prove Ramos committed theft of a means of
transportation, the State was required to show that Ramos “control[led]
another person’s means of transportation knowing or having reason to
know that the property is stolen.” A.R.S. § 13-1814(A). As set forth in
A.R.S. § 13-2305(1), “possession of property recently stolen, unless
satisfactorily explained, may give rise to an inference that the person in
possession of the property was aware of the risk that it had been stolen or
in some way participated in its theft.”

¶20           The overwhelming evidence presented at trial demonstrated
that less than twenty-four hours after the car was stolen, Officer Doerr
found Ramos covered in grease, standing in a trailer with the dismantled
car and various tools typically used to strip vehicles. R.H.’s mother
testified unequivocally that she never gave anyone permission to take the
car from her home. Given the strength of the State’s evidence and the
permissible inference in A.R.S. § 13-2305(1), we hold that even without the
prosecutor’s impermissible statements regarding Ramos’s failure to
testify, no reasonable jury could have acquitted Ramos of either
conducting a chop shop or theft of a means of transportation. Therefore,
Ramos has not met his burden of establishing the error was prejudicial.

¶21          Our holding, however, should not be interpreted as
minimizing the seriousness of this error. “[F]undamental error is still
error and is not turned into non-error by the overwhelming evidence of
guilt. By thus approaching the precipice of fundamental error, the
prosecution runs the risk of having an otherwise good case reversed
when, on appeal the evidence of guilt is less than overwhelming.” State v.


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                             Opinion of the Court

Anderson, 110 Ariz. 238, 241, 517 P.2d 508, 511 (1973). Therefore, as our
supreme court recently reminded prosecutors, they should “refrain from
venturing even close to commenting on a defendant’s exercise of the
significant rights protected by the Fifth Amendment [ . ] ” State v. Parker, 231
Ariz. 391, 407, ¶ 68, 296 P.3d 54, 70 (2013).

       B.      Other Claims of Prosecutorial Misconduct

¶22           We likewise conclude that none of the other claims of
prosecutorial misconduct merit reversal. Prosecutors are afforded “wide
latitude in presenting their closing arguments to the jury [ . ] ” State v. Jones,
197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). “To prevail on a claim of
prosecutorial misconduct, a defendant must demonstrate that (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) (internal quotations omitted). Prosecutorial misconduct
“is not merely the result of legal error, negligence, mistake, or insignificant
impropriety, but, taken as a whole, amounts to intentional conduct which
the prosecutor knows to be improper and prejudicial, and which he
pursues for any improper purpose with indifference to a significant
resulting danger of mistrial or reversal [ . ] ” Pool v. Superior Court, 139 Ariz.
98, 108-09, 677 P.2d 261, 271-72 (1984).

¶23          Ramos contends the prosecutor improperly bolstered his
own credentials by informing the jury he had been practicing law for
twenty years. Specifically, during his rebuttal argument, the prosecutor
relayed advice to the jury he received “almost 20 years ago” when he was
preparing for the bar exam, namely, “not to miss the forest for the trees.”
We perceive no misconduct in the prosecutor’s fleeting reference to how
long ago he sat for the bar exam. It was not the focus of the statement and
the prosecutor did not attempt to argue he had superior knowledge or
expertise due to his years of experience.

¶24           Ramos also argues the prosecutor improperly impugned
defense counsel. During his rebuttal argument, the prosecutor claimed
that defense counsel’s focus on the State’s failure to prove Ramos owned
the property upon which the trailer and stripped vehicle were found was
an attempt to divert the jurors from the relevant evidence by raising
distractions or “red herrings.” The prosecutor also told jurors that defense
counsel asked them to speculate and “check [their] common sense at the
door.”




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                           Opinion of the Court

¶25           “Jury argument that impugns the integrity or honesty of
opposing counsel is [] improper,” State v. Hughes, 193 Ariz. 72, 86, ¶ 59,
969 P.2d 1184, 1198 (1998), but “[c]riticism of defense theories and tactics
is a proper subject of closing argument,” U.S. v. Sayetsitty, 107 F.3d 1405,
1409 (9th Cir. 1997). Although some of the prosecutor’s comments
suggested that defense counsel was attempting to mislead the jury, we
cannot say that those statements did more than criticize defense tactics.

¶26           Next, Ramos contends the prosecutor improperly offered his
personal opinions during rebuttal closing argument by repeatedly using
the phrases “the State submits” and “the State would submit.” “There are
two types of prosecutorial vouching: (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. Duzan, 176 Ariz. 463, 467, 862 P.2d 223,
227 (App. 1993) (internal quotation omitted). “A prosecutor must avoid
assertions of personal knowledge.” Id.

¶27          The statements cited by Ramos, however, were not improper
because the prosecutor’s use of the phrase “the State submits” was limited
to discussing the evidence presented at trial and did not suggest he was
aware of information not presented to the jury that would support a
finding of guilt. See U.S. v. Necoechea, 986 F.2d 1273, 1279 (9th Cir. 1993)
(holding that “I submit” statements do not constitute vouching).
Therefore, we do not agree that the prosecutor’s use of these phrases
constituted prosecutorial misconduct.

¶28            Finally, Ramos asserts the prosecutor engaged in
impermissible vouching by “placing the prestige of the government”
behind the testimony of the police officers. When determining whether a
prosecutor’s statements improperly vouched for a witness’s credibility,
the statements must be considered in context. State v. Haverstick, 234 Ariz.
161, 165, ¶ 7, 318 P.3d 877, 881 (App. 2014).

¶29            In his closing argument, defense counsel noted that Officer
Johnson’s testimony “seemed slightly inconsistent” with Officer Doerr’s
testimony and he invited the jurors to “review the photographs of the
trailer and come to [their] own conclusions” as to whether the officers’
“recollections” were accurate.      During his rebuttal, the prosecutor
responded by framing defense counsel’s statements as an argument “that
the officers somehow would have lied or fabricated” their testimony. The
prosecutor further argued that the “police are simply doing their job” and




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                           Opinion of the Court

suggested they have no motive to lie. The trial court sustained defense
counsel’s objection and warned counsel to be careful with his comments.

¶30           Although the prosecutor mischaracterized defense counsel’s
statements regarding the officers’ credibility, we conclude the prosecutor's
rhetorical questions to the jury “[W]hat motive would the police have to
lie in a case like this?” and “[W]hat motive would they have to lie or
fabricate any evidence?” did not rise to the level of misconduct.
Moreover, the trial court instructed the jury that the attorneys’ closing
arguments were not evidence, and we presume the jurors followed the
court’s instructions. See State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237,
248 (1994). On this record, there is no reasonable likelihood the
prosecutor’s statements could have affected the jury’s verdict. See State v.
Newell, 212 Ariz. 389, 403, ¶ 67, 132 P.3d 833, 847 (2006).

                              CONCLUSION

¶31          For the foregoing reasons, we affirm Ramos’s convictions
and sentences.




                                 :gsh




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