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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

         EMANUEL LINCOLN RIGSDALE SPRIGGS, Appellant.

                             No. 1 CA-CR 19-0008
                              1 CA-CR 19-0010
                               FILED 1-9-2020

           Appeal from the Superior Court in Maricopa County
                        No. CR2016-002354-001
                        No. CR2016-119757-001
            The Honorable Julie Ann Mata, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Poster Law Firm PLLC, Glendale
By Rick D. Poster
Counsel for Appellant
                             STATE v. SPRIGGS
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge David D. Weinzweig and Judge David B. Gass joined.


H O W E, Judge:

¶1            This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for Emanuel
Spriggs has advised this Court that he has found no arguable questions of
law and asks us to search the record for fundamental error. Spriggs was
convicted of two counts of promoting prison contraband, a class 2 felony.
Spriggs was given an opportunity to file a supplemental brief in propria
persona; he has not done so. After reviewing the record, we affirm Spriggs’s
convictions and sentences.

                 FACTS AND PROCEDURAL HISTORY

¶2           We view the facts in the light most favorable to sustaining the
judgment and resolve all reasonable inferences against Spriggs. See State v.
Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998). In February 2016, Spriggs was
arrested and transported to the Maricopa County Jail. A detention officer
searched Spriggs inside the jail and found a clear plastic bag that had fallen
from Spriggs’s waistband, which Spriggs said he found in the jail. The bag
contained a green leafy substance and a second bag with a crystal-like
substance. The City of Mesa crime laboratory tested the substances and
confirmed them to be marijuana and methamphetamine. The State charged
Spriggs with two counts of promoting prison contraband and, after a
three-day jury trial, Spriggs was found guilty on both counts.

¶3           The trial court found that the State had proved that Spriggs
had four prior felony convictions, making him a category three repetitive
offender. The trial court conducted the sentencing hearing in compliance
with Spriggs’s constitutional rights and Arizona Rule of Criminal
Procedure 26. The trial court considered Spriggs’s mental health, physical
health, upbringing, and his substance abuse as mitigating factors. Spriggs
was sentenced to concurrent terms of 15.75 years’ imprisonment on each
charge with 732 days’ presentence incarceration credit.

                               DISCUSSION



                                      2
                            STATE v. SPRIGGS
                           Decision of the Court

¶4            We review Spriggs’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512 ¶ 12 (App. 2011).
Counsel for Spriggs has advised this Court that after a diligent search of the
entire record, he has found no arguable question of law.

¶5              One issue, however, merits consideration. Spriggs, who
represented himself with advisory counsel, stated in closing argument, “I
have a voice that needs to be heard. I didn’t provide a testimony because
my voice was in my questions.” The prosecutor responded in the State’s
rebuttal argument that “[W]hat the attorneys say . . . is not evidence. What
he says in his closing argument is not evidence. Evidence means words that
come out of people’s mouths when they sit in that chair. He did not sit in
that chair. What he says is not evidence and your instructions tell you that.”
Spriggs objected, claiming that the State improperly commented on his
failure to testify.

¶6             Generally, “a prosecutor is prohibited from directly or
indirectly drawing the jury’s attention to the fact a defendant did not
testify.” State v. Christensen, 129 Ariz. 32, 38 (1981). A prosecutor’s
statements must be examined in the context in which they were made. Id.
at 39. Normally, a comment by a prosecutor that the defendant failed to
testify constitutes fundamental error unless the error is invited. State v.
Arredondo, 111 Ariz. 141, 144 (1974).

¶7            The prosecutor’s comment does not warrant vacating
Spriggs’s convictions or sentences because Spriggs invited any error. The
invited error doctrine bars a defendant from raising an issue on appeal if he
affirmatively and independently initiated the error below. State v. Villa, 236
Ariz. 63, 69 ¶ 25 (App. 2014). The prosecutor’s comment in the State’s
rebuttal argument was the product of invited error because Spriggs
initiated the error by commenting on his own failure to testify. See
Arredondo, 111 Ariz. at 144 (noting that references to a defendant’s failure
to testify cannot be charged to the state when they are first made by the
defense).

¶8             If an error is invited, we do not consider whether the error is
fundamental. State v. Logan, 200 Ariz. 564, 565 ¶ 9 (2001). Even so, the
prosecutor’s comment does not constitute fundamental error either because
Spriggs did not suffer any prejudice, as he brought up his own failure to
testify. See State v. Henderson, 210 Ariz. 561, 567 ¶ 20 (2005) (noting that
fundamental error requires a defendant to prove not only that an error was
fundamental but that the error caused him prejudice).




                                      3
                             STATE v. SPRIGGS
                            Decision of the Court

¶9            We have read and considered counsel’s brief and fully
reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find
none. All the proceedings were conducted in compliance with the Arizona
Rules of Criminal Procedure. So far as the record reveals, counsel
represented Spriggs at all stages of the proceedings, and the sentences
imposed were within the statutory guidelines. We decline to order briefing
and affirm Spriggs’s convictions and sentences.

¶10            Upon the filing of this decision, defense counsel shall inform
Spriggs of the status of the appeal and of his future options. Counsel has no
further obligations unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Spriggs shall have 30 days
from the date of this decision to proceed, if he desires, with a pro per motion
for reconsideration or petition for review.

                               CONCLUSION

¶11           For the foregoing reasons, we affirm.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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