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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

           CURTIS BENJAMIN HOLLINGSWORTH, Appellant.

                             No. 1 CA-CR 12-0684
                              FILED 3-3-2016


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201101229
                 The Honorable Tina R. Ainley, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Yavapai County Public Defender’s Office, Prescott
By Robert K. Gundacker
Counsel for Appellant
                        STATE v. HOLLINGSWORTH
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Peter B. Swann joined.


P O R T L E Y, Judge:

¶1            Curtis Benjamin Hollingsworth appeals his conviction and
sentencing for kidnapping. In this case, we must resolve two issues. First,
did the trial court violate Hollingsworth’s right to be free from double
jeopardy by allowing him to be retried after the prosecutor’s pretrial and
trial conduct caused a mistrial? Second, did the prosecutor’s misconduct in
the second trial warrant reversal? For the following reasons, we affirm.

          FACTUAL1 AND PROCEDURAL BACKGROUND

¶2             While driving his Buick in Cordes Lakes in December 2011,
Hollingsworth followed the victim, a seventeen-year-old girl taking an
evening walk. When the victim realized she was being followed, she ran
and thought she was safe when she saw the Buick parked next to a store.
But as she walked past a church parking lot, the Buick came towards her
and, before she could run, Hollingsworth opened the driver’s side door,
grabbed her right wrist and told her to “[g]et in my car.” Although he
grabbed her hard enough to leave marks on her wrist, she broke free and
ran into the front yard of a nearby house. Hollingsworth drove slowly by
the front of the house, but sped away after the victim yelled at him.

¶3             The victim ran home, told her mother about the incident, and
her mother called 9-1-1. The victim gave the deputy sheriff a detailed
description of the Buick, including its license plate number. She also told
the deputy that she saw the driver, and described the shirt he was wearing
as either “yellow or cream-colored” with “dark stripes going down
vertically,” and told the deputy that the driver had a beer belly.




1We view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all inferences against defendant. State v. Vandever, 211
Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).

                                     2
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

¶4             The sheriff’s office quickly traced the license plate to
Hollingsworth, and a deputy went to Hollingsworth’s house. The deputy
saw a Buick that matched the description and the license plate number
given by the victim parked in front of Hollingsworth’s house. He touched
the car, and the front grille area felt warm, which indicated that the car had
been driven recently. Hollingsworth answered the front door wearing a
shirt that matched the description of the shirt given by the victim. After
getting a warrant, the deputies searched Hollingsworth’s car, and found a
box of condoms in the glove compartment.

I.     First Trial

¶5             Hollingsworth was arrested, charged and the case proceeded
to trial. Although all the police reports and discovery materials indicated
that the victim said she could not see the driver’s face, the prosecutor asked,
“Is that man who was driving in the vehicle in the courtroom today?” The
victim affirmatively identified Hollingsworth. Then, over objection, the
prosecutor introduced Exhibit 170, a picture of Hollingsworth in the shirt
when he was arrested, and Exhibit 171, a photograph of an officer holding
the shirt Hollingsworth was wearing when he was arrested.

¶6          During the cross-examination of the victim, the following
exchange occurred:

              Defense Counsel: And all you could see was a
              cream-colored shirt with dark stripes?

              Victim: (Nodding head affirmatively.)

              Defense Counsel: Yes?

              Victim: Yes.

              Defense Counsel: And you could not see his
              face.

              Victim: No.

              Defense Counsel: The officers never did a photo
              lineup with you, did they?




                                      3
            STATE v. HOLLINGSWORTH
               Decision of the Court

Victim: No.

Defense Counsel: So when you identified Mr.
Hollingsworth earlier, you’re not sure that’s him.

Victim: They showed me a picture afterwards.

Defense Counsel: Who showed you a picture?

Victim: They showed me when I went to the
courtroom. When I came in to talk to them, they
asked me if this is the shirt and this is the guy inside
the Buick.

Defense Counsel: The State did that, or the
Victim Services?

Victim: I don’t know.

Defense Counsel: [The prosecutor] or Julie . . .
Judy?

Victim: They showed me the picture.

Defense Counsel: Who?

Victim: The people you just identified.

Defense Counsel: When did they show you this
picture?

Victim: When I first talked to them.

Defense Counsel: And how long ago was that?

Victim: I don’t remember.

[* * * *]

Victim: When I first met him.

Defense Counsel: And when was that?



                           4
                    STATE v. HOLLINGSWORTH
                       Decision of the Court


            Victim: Maybe a month ago.

            Defense Counsel: When did Judy show you the
            picture?

            Victim: They were together.

            Defense Counsel: They were together a month
            ago. But on December 4th, 2011, you could not
            identify this person.

            Victim: No.

(Emphasis added.)

¶7          On redirect, the victim said:

            Prosecutor: What have I continuously told you?

            Victim: Tell nothing but the truth.

            Prosecutor: Have you been telling the truth?

            Victim: Yes.

            Prosecutor: [W]hen I showed you this photo,
            Exhibit 170, did I simply ask you if you recognized
            who that was?

            Victim: Yes.

            Prosecutor: Who is that?

            Victim: That’s Curtis.

            Prosecutor:    Do you have any doubts
            whatsoever, that this man right here—right here
            — You see him?

            Victim: Yes.




                                     5
                        STATE v. HOLLINGSWORTH
                           Decision of the Court

              Prosecutor: —is the man who grabbed you that
              night on December 4th?

              Victim: No.

(Emphasis added.)

II.    Motion for Mistrial

¶8            Hollingsworth moved to preclude the victim’s pretrial and in-
court identifications under State v. Dessureault, 104 Ariz. 380, 453 P.2d 951
(1969). He argued that the pretrial identification made one month before
trial was tainted and unduly suggestive, and the in-court identification
should have been precluded because the State never disclosed that the
victim could now identify Hollingsworth.

¶9            The court held a separate evidentiary hearing, and the parties
stipulated that the court could review the transcript of the victim’s trial
testimony. Detective Marvin Cline, who interviewed Hollingsworth,
testified about Hollingsworth’s statements, which were similar to the
victim’s statements. The detective testified that Hollingsworth admitted
that he had driven by a young female wearing clothes similar to the victim’s
apparel while he was in Cordes Lakes earlier that evening. Hollingsworth
explained, however, that the girl had been walking in the middle of the
road, in his lane of travel, and that, when he slowed his vehicle down to
pass her, the girl yelled at him something to the effect of, “Get out of here.”
He also said that she might be able “to identify him because he had slowed
down to go by her.”

¶10             After submitting the evidence, the prosecutor acknowledged
that showing the victim a one-person photograph before trial would be a
suggestive pretrial identification procedure. He argued, however, that in
light of Neil v. Biggers, 409 U.S. 188, 198-99 (1972), the victim’s identification
of Hollingsworth should not be precluded given her detailed description of
Hollingsworth’s vehicle, license plate number, and shirt.

¶11           Hollingsworth then orally amended his Dessureault motion to
request a mistrial or dismissal, and argued that the prosecutor admitted
showing the victim a photograph of Hollingsworth wearing the shirt and,
on redirect, admitted that he showed the victim the picture about a month
before trial. Hollingsworth also argued that not only was the victim’s
identification tainted, but that none of the information had been provided




                                        6
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

before trial; as a result, the conduct amounted to prosecutorial misconduct
and violated his right to a fair trial.

¶12           The court recognized that before trial the victim “could not
identify the [attacker’s] face or hair color,” but at trial the victim was “one
hundred percent positive that [Hollingsworth] was her attacker,” and the
court noted there was no testimony explaining why the victim was
suddenly sure Hollingsworth was the attacker. After considering the
evidence, including the length of time between the crime, the identification,
and the victim’s testimony, the court granted a mistrial because “the photo
shown to the victim prior to the trial was unduly suggestive.”

III.   Motion to Dismiss for Double Jeopardy and Vindictive
       Prosecution

¶13            Before the second trial, and citing Pool v. Superior Court, 139
Ariz. 98, 677 P.2d 261 (1984), Hollingsworth moved to dismiss the case with
prejudice due to prosecutorial misconduct and due process violations. He
argued that the prosecutor had either “knowingly and intentionally
tampered with his primary witness” or acted with indifference to the
danger of a mistrial or reversal to obtain a tactical advantage and a
conviction. He also argued that the State’s allegations of aggravating
factors in the second trial violated due process as a vindictive prosecution.

¶14            In response, the State noted that in the meeting before the first
trial the victim had said that she would not forget Hollingsworth’s face.
Then, when reviewing trial exhibits with the victim, the prosecutor showed
her Exhibit 170, the photograph of Hollingsworth wearing the shirt. The
prosecutor asserted that although he made a mistake by showing the victim
the photograph, he did not have an improper purpose or intend to act
improperly. The State also argued that the mistrial and the court’s
preclusion of the pretrial and in-court identifications were sufficient
sanctions. The State also mentioned the victim told the prosecutor after the
mistrial, and for the first time, that she had searched the internet before the
first trial looking for Hollingsworth, and found information about him,
including his photograph and the fact that he was a level three sex offender.

¶15            The trial court held an evidentiary hearing. After the hearing,
the trial court denied the motion to dismiss. Although the court found that
the prosecutor’s conduct was the basis for the mistrial, the court did not
find that Hollingsworth had proved prosecutorial misconduct under Pool,
and, after looking at all the facts and evidence, found that the experienced
prosecutor had made a mistake.



                                       7
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

¶16           Hollingsworth filed a special action petition challenging the
ruling, but his petition was denied. The second trial proceeded, and based
on the court’s rulings in the first trial, the prosecutor did not ask and the
victim did not identify Hollingsworth directly or with the photograph of
him in the shirt. At the conclusion of the trial, Hollingsworth was convicted
of kidnapping. After the court found that he had two prior historical felony
convictions at the sentencing hearing, Hollingsworth was sentenced to
twenty-two years in prison, with credit for presentence incarceration.2 We
have jurisdiction under the Arizona Constitution, Article 6, Section 9, and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and
-4033.3

                                DISCUSSION

I.       Double Jeopardy

¶17           Hollingsworth contends that the trial court erred in denying
his motion to dismiss the second trial for violation of double jeopardy. We
disagree.

¶18            “The double jeopardy clause of the Fifth Amendment protects
a criminal defendant from multiple prosecutions for the same offense.”
State v. Minnitt, 203 Ariz. 431, 437, ¶ 27, 55 P.3d 774, 780 (2002) (citation
omitted). The Arizona Constitution “provides the same protection in article
2, section 10, stating that no person shall be ‘twice put in jeopardy for the
same offense.’” Id. The protections afforded by the double jeopardy clause
are not absolute, and “[a]s a general rule, if the defendant successfully
moves for . . . a mistrial, retrial is not barred on double jeopardy grounds.”
Id. at ¶ 28. There are, however, circumstances, like Pool, where intentional
and pervasive misconduct on the part of the prosecution structurally
impairs the trial and destroys the ability of the tribunal to reach a fair
verdict. Id. at 781, ¶ 29, 55 P.3d at 781.

¶19           To resolve the claim that the trial court erred by denying the
double jeopardy motion to bar the retrial, “[w]e review a trial court’s
decision whether to dismiss a prosecution with prejudice under [Pool] for
an abuse of discretion.” State v. Korovkin, 202 Ariz. 493, 495, ¶ 5, 47 P.3d
1131, 1133 (App. 2002) (citation omitted); see State v. Cuffle, 171 Ariz. 49, 51,
828 P.2d 773, 775 (1992) (noting that “[a]ppellate review of a trial court’s
findings of fact is limited to a determination of whether those findings are


2   Hollingsworth does not appeal his conviction for misdemeanor assault.
3   We cite the current version of the statute unless otherwise noted.

                                       8
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

clearly erroneous”); see also United States v. Lopez-Avila, 678 F.3d 955, 961
(9th Cir. 2012) (“When reviewing a denial of a motion to dismiss on double
jeopardy grounds before trial [based on prosecutorial misconduct], this
court reviews de novo legal questions but reviews factual findings,
including those on which denial may be based, for clear error.”) (internal
citations and quotation marks omitted). We then review de novo whether
double jeopardy should have barred the retrial, a question of law. State v.
Moody, 208 Ariz. 424, 437, ¶ 18, 94 P.3d 1119, 1132 (2004). Accordingly, to
the extent Hollingsworth argues the court erred in finding the prosecutor
did not merely make a mistake in showing the victim the photograph of
him in the shirt, we review for clear error. And to the extent Hollingsworth
argues the court erred in applying those facts to the law, we review de novo.

¶20           In Pool, our supreme court stated:

              We hold, therefore, that jeopardy attaches
              under art. 2, § 10 of the Arizona Constitution
              when a mistrial is granted on motion of
              defendant or declared by the court under the
              following conditions:

              1. Mistrial is granted because of improper
              conduct or actions by the prosecutor; and

              2. such conduct 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; and

              3. the conduct causes prejudice to the defendant
              which cannot be cured by means short of a
              mistrial.

139 Ariz. at 108-09, 677 P.2d at 271-72.

¶21           The parties agree that the first and third elements were
satisfied. As a result, we have to decide whether the trial court committed
clear error in finding that Hollingsworth failed to establish the second
element. The second element of the Pool analysis can be dissected into three
subparts for analysis:


                                      9
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

              (a) such conduct is not merely the result of legal
                  error, negligence, mistake, or insignificant
                  impropriety, but,

              (b) taken as a whole, amounts to intentional
                  conduct which the prosecutor knows to be
                  improper and prejudicial, and

              (c) which [the prosecutor] pursues for any
                  improper purpose with indifference to a
                  significant resulting danger of mistrial or
                  reversal. Id.; see State v. Trani, 200 Ariz. 383,
                  384, ¶ 7, 26 P.3d 1154, 1155 (App. 2001)
                  (discussing the second element of the Pool
                  analysis).

¶22           To decide whether a prosecutor’s conduct, in the totality of
the circumstances, amounts to “intentional conduct which the prosecutor
knows to be improper and prejudicial,” a court should “measure what the
prosecutor ‘intends’ and ‘knows’ by objective factors, which include the
situation in which the prosecutor found himself, the evidence of actual
knowledge and intent and any other factors which may give rise to an
appropriate inference or conclusion.” Pool, 139 Ariz. at 108-09 n.9, 677 P.2d
at 271-72 n.9. And the court may also consider “the prosecutor’s own
explanations of his ‘knowledge’ and ‘intent’ to the extent that such
explanation can be given credence in light of the minimum requirements
expected of all lawyers.” Id.

¶23          Hollingsworth argues that the evidence shows that the
prosecutor acted with intent and was indifferent to the danger of causing a
mistrial. The trial court, however, found that the prosecutor’s conduct
resulted from a mistake.

¶24             Based on the record, we cannot state that the trial court’s
finding that the prosecutor’s actions resulted from a mistake during his
final trial preparations is clearly erroneous. See State v. Lamar, 205 Ariz. 431,
440, ¶ 45, 72 P.3d 831, 840 (2003), supplemented by 210 Ariz. 571, 115 P.3d 611
(2005) (noting that we will reverse a trial court’s finding of fact that the
prosecutor’s actions were not intentional if it is clearly erroneous). At the
evidentiary hearing, the victim on direct examination testified:




                                       10
                         STATE v. HOLLINGSWORTH
                            Decision of the Court

             Defense Counsel: So [the prosecutor] knew that
             you couldn’t see the face of your attacker.

             Victim: Yes.

             [* * * *]

             Defense Counsel: What did he say when he
             showed you that picture?

             Victim: Is this the shirt?

             Defense Counsel: He didn’t say, “Is this the
             face?”

             Victim: No.

¶25           On cross-examination, she testified that the prosecutor had
shown her several photographs of a map, of her neighborhood, and of a
vehicle that would be exhibits at trial and had asked her if she “recognized
these photographs.” The following exchange then took place:

             Prosecutor: Do you recall telling me, on June
             21st, that you knew the defendant’s face, and it
             was words to the effect that you wouldn’t forget
             it?

             Victim: I don’t remember.

             Prosecutor:   Do you remember saying
             something about the pockmarks on his cheeks?

             Victim: Yes.

             Prosecutor: And you told me that prior to trial
             on June 21st.

             Victim: Can you explain what you are trying to
             ask?

             Prosecutor: You told me that prior to the trial
             beginning.



                                     11
                        STATE v. HOLLINGSWORTH
                           Decision of the Court

               Victim: Oh, yes.

               Prosecutor: Which indicated to me that you
               knew who Mr. Hollingsworth was.

               Victim: Yes.

¶26           On redirect, the victim said that she could not see her
attacker’s face on the night of the incident. But she said that because
Hollingsworth was the only person in the car with a shirt, she assumed it
was Hollingsworth when she saw his picture.

¶27            The prosecutor then testified4 that he had two meetings with
the victim before trial: the first on June 12, to give her a copy of the transcript
of her interview with Detective Surak; and the second on June 21, to review
trial exhibits. During the second meeting, the victim said that she “would
not forget Mr. Hollingsworth’s face” and “indicated something about the
pockmarks on his cheeks,” and then he showed her the photograph of
Hollingsworth “wearing the shirt that she had described to the detectives.”
The prosecutor acknowledged that it was a mistake to show her
Hollingsworth’s photograph, but maintained that he had not indicated to
her “in any way, shape or form that this was the person who had grabbed
her on December 4.” And he only asked her, “if she recognized that
photograph.”

¶28            On cross-examination, the prosecutor acknowledged reading
the police reports and knowing those reports stated that the victim could
not see the attacker’s face. When asked why he had not then disclosed that
the victim could now identify the attacker, the prosecutor said there were
multiple police reports and numerous transcripts and audiotapes, and he
made a mistake forgetting that she had given previous contrary statements.
He acknowledged then that he should have known that showing the victim
Hollingsworth’s photograph could cause a mistrial, but he did not intend
to cause a mistrial. Furthermore, he said that the victim’s “confidence that
she could identify Mr. Hollingsworth” caused him to “show her a




4At oral argument, Hollingsworth’s counsel asserted that the prosecutor
was not under oath when he testified at the hearing. We requested
supplemental briefing to address if the prosecutor was under oath. Both
parties agree, and the record shows, that the prosecutor was under oath and
subject to cross-examination when he testified.

                                        12
                        STATE v. HOLLINGSWORTH
                           Decision of the Court

photograph of the shirt with Mr. Hollingsworth wearing it, instead of just
the shirt.”

¶29           Although our review of the record demonstrates that the
prosecutor never answered why he failed to disclose to the defense that he
showed the victim a picture of Hollingsworth in the shirt and that she
readily was able to identify him, the court accepted the prosecutor’s
explanation that he was negligent and made a mistake by showing the
victim Hollingsworth’s photograph wearing the shirt, instead of a
photograph of just the shirt. The court based its ruling, in part, on the
victim’s testimony that the prosecutor asked her, while showing her the
photograph at their pretrial meeting, “Is this the shirt?” That question
supports the court’s conclusion that the prosecutor was only showing the
victim the photo to identify the shirt; the prosecutor thought the victim had
told him she would never forget Hollingsworth’s face, so showing her the
photo of Hollingsworth in the shirt was only meant to have her identify the
shirt. Consequently, and regardless of whether we would have reached the
same conclusion or limited the sanction to a mistrial, there is factual support
for the court’s finding. As a result, we cannot find that the court clearly
erred in finding the prosecutor simply made a mistake in showing the
photo to the victim. See Lamar, 205 Ariz. at 440, ¶ 45, 72 P.3d at 840.5

¶30           Hollingsworth also contends that the trial court had an
erroneous view of law because the court only focused on the prosecutor
showing the victim the photograph instead of reviewing all the alleged
prosecutorial misconduct. Pool requires the court to review whether the
“[m]istrial is granted because of improper conduct or actions by the
prosecutor; and . . . [whether] such conduct is not merely the result of legal
error, negligence, mistake, or insignificant impropriety.” 139 Ariz. at 108-
09, 677 P.2d at 271-72 (emphasis added).

¶31          The court granted Hollingsworth’s motion for mistrial
because the prosecutor showed the victim the unduly suggestive
photograph of Hollingsworth in the shirt. The court then focused on
whether the prosecutor acted with intent or was negligent, and found that
he negligently made a mistake in preparing for trial. Although the
prosecutor failed to timely disclose the new information which was

5 Because we affirm the trial court’s finding that the prosecutor’s actions
were the result of a mistake, we need not address Hollingsworth’s
arguments that the prosecutor’s actions were intentional and demonstrated
an indifference to a significant risk of mistrial or reversal. See Pool, 139 Ariz.
at 108-09, 677 P.2d at 271-72.

                                       13
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

material, the court focused on the unduly suggestive photograph because
it was the linchpin that ultimately led to the declaration of the mistrial. As
a result, it was not the lack of disclosure that led to the mistrial (even though
disclosure could have resulted in the court’s earlier intervention to resolve
the issue), but showing the victim the unduly suggestive photograph.
Given that the court was aware that the State had not disclosed the
information at any time before trial, but focused on the unduly suggestive
photograph, we do not find that the failure to integrate the disclosure
violation requires us to grant the double jeopardy motion.

II.    Prosecutorial Vindictiveness

¶32          Hollingsworth argues that the trial court erred by denying his
motion to dismiss for prosecutorial vindictiveness. We disagree.

¶33            Prosecutorial vindictiveness occurs when a prosecutor makes
a decision to punish or increase the punishment because the defendant
exercised a protected legal right. State v. Mieg, 225 Ariz. 445, 447, ¶ 10, 239
P.3d 1258, 1260 (App. 2010). We must distinguish “between the acceptable
vindictive desire to punish [a defendant] for any criminal acts, and
vindictiveness which violates due process.” Id. at 448, ¶ 12, 239 P.3d at 1261
(quoting United States v. Doran, 882 F.2d 1511, 1518 (10th Cir. 1989) (internal
quotation marks omitted). As a result, we review a trial court’s ruling on a
motion to dismiss for vindictive prosecution for an abuse of discretion.
Mieg, 225 Ariz. at 447, ¶ 9, 239 P.3d at 1260; State v. Brun, 190 Ariz. 505, 506,
950 P.2d 164, 165 (App. 1997). A court abuses its discretion when “the
reasons given by the court for its action are clearly untenable, legally
incorrect, or amount to a denial of justice.” State v. Chapple, 135 Ariz. 281,
297 n.18, 660 P.2d 1208, 1224 n.18 (1983) (citation omitted).

¶34           Hollingsworth argued that the State acted vindictively after
the mistrial was granted by filing a notice alleging aggravating
circumstances that the State had not alleged in the first trial. Hollingsworth,
however, conceded that the State alleged historical prior felonies, but
argued that it was not fair to allow the State to allege the prior convictions
as aggravating circumstances in the second trial because it was possible that
the State would not have proved the prior felonies. After finding that
Hollingsworth had not met his burden, the court then denied the motion to
dismiss.

¶35          Hollingsworth argues that the trial court did not apply the
proper legal standard. A trial court, however, is presumed to know and
apply the law correctly. State v. Williams, 220 Ariz. 331, 334, ¶ 9, 206 P.3d



                                       14
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

780, 783 (App. 2008) (noting that “[t]rial judges are presumed to know the
law and to apply it in making their decisions”) (internal citations and
quotation marks omitted). And “[a] trial judge is not required to expressly
state the burden of proof applied; [instead, this Court] assume[s] the judge
applied the proper burden of proof.” In re William L., 211 Ariz. 236, 238, ¶
7, 119 P.3d 1039, 1041 (App. 2005).

¶36           In United States v. Goodwin, the Supreme Court stated that a
defendant may prove prosecutorial vindictiveness either by: (1) showing
actual vindictiveness “through objective evidence that a prosecutor acted
in order to punish him for standing on his legal rights,” or (2) showing that
the circumstances provide for a “presumption of vindictiveness.” 457 U.S.
368, 380-81 n.12 (1982); see Brun, 190 Ariz. at 507-08, 950 P.2d at 166-67
(Arizona follows the Supreme Court standard on presumed prosecutorial
vindictiveness). Here, before the first trial, the State alleged Hollingsworth
had prior felony convictions, and the court held an Arizona Rule of
Evidence 609 hearing. And before that trial, the court told Hollingsworth
that, if he was convicted, he could be sentenced to prison from a range of
10.5 to 35 years.

¶37           After the court declared a mistrial and before the start of the
second trial, the State filed a notice of aggravating circumstances, which
included the prior felony convictions and two other circumstances. See
A.R.S. § 13-701(D). The notice did not, however, expose Hollingsworth to
more punishment in the second trial than if there had not been a mistrial.

¶38            The jury subsequently found Hollingsworth guilty, and, at
the presentencing hearing, the State proved that he had two prior historical
felony convictions. As a result, the court was free to consider those felony
convictions, as well as any statutory aggravating and mitigating factors,
A.R.S. § 13-701(D) – (E), including the letters Hollingsworth presented in
mitigation. The court, as a result, considered the prior felonies and found
that the presumptive term was 15.75 years and a maximum aggravated
term of 35 years,6 and was free to consider any relevant aggravating factors
that could be found by the fact of the conviction. See Martinez, 210 Ariz. at
583, ¶ 16, 115 P.3d at 623 (the sentencing court can exercise discretion within
a sentencing range established by the fact of a prior conviction, facts found
by a jury, or facts admitted by a defendant, and as a result, after a

6 In addition to the prior felonies, because one of Hollingsworth’s prior
felonies was the failure to register as a sex offender, the court considered
the need to protect the community as an aggravating circumstance. See
State v. Martinez, 210 Ariz. 578, 583, ¶ 16, 115 P.3d 618, 623 (2005).

                                      15
                        STATE v. HOLLINGSWORTH
                           Decision of the Court

conviction, the court may consider any additional factors in determining
what sentence to impose, so long as the sentence falls within the established
range). As a result, the sentence imposed was within the court’s discretion
even if the State had not filed the notice of aggravating circumstances.
Consequently, the record does not demonstrate that the trial court erred in
denying the motion to dismiss based on prosecutorial vindictiveness. See
State v. Bonfiglio, 228 Ariz. 349, 354, ¶ 21, 266 P.3d 375, 380 (App. 2011),
affirmed, 231 Ariz. 371, 295 P.3d 948 (2013) (noting, “[a] trial court may use
the same convictions to enhance or increase the sentencing range and to
aggravate a defendant’s sentence within the enhanced range”); see also State
v. Webb, 140 Ariz. 321, 323, 681 P.2d 473, 475 (App. 1984) (concluding that
there was no vindictive prosecution where “[t]he prosecutor did not charge
[the defendant] with a higher crime”).

III.   Prosecutorial Misconduct in the Second Trial

¶39           Hollingsworth argues that the prosecutor’s misconduct in the
second trial warrants reversal. Hollingsworth did not object to any
prosecutorial misconduct in the second trial, so we review for fundamental
error. See State v. Dixon, 226 Ariz. 545, 549, ¶ 7, 250 P.3d 1174, 1178 (2011)
(stating that “[b]ecause [there was] no claim of prosecutorial misconduct
below, we review for fundamental error.”); see also State v. Henderson, 210
Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).

¶40            “To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that the prosecutor’s misconduct ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.’” State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Because
“[m]isconduct alone will not cause a reversal,” State v. Hallman, 137 Ariz.
31, 37, 668 P.2d 874, 880 (1983), “[t]he focus is on the fairness of the trial, not
the culpability of the prosecutor.” State v. Bible, 175 Ariz. 549, 601, 858 P.2d
1152, 1204 (1993).

¶41            Error is fundamental if it goes to the “foundation of [the] case,
takes away a right that is essential to [the] defense, and is of such magnitude
that [the defendant] could not have received a fair trial.” Henderson, 210
Ariz. at 568, ¶ 24, 115 P.3d at 608. “To qualify as ‘fundamental error’ . . . the
error must be clear, egregious, and curable only via a new trial.” State v.
Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). For prosecutorial
misconduct to qualify as fundamental error, the error must be “so
pronounced and persistent that it permeates the entire atmosphere of the
trial.” State v. Harrod, 218 Ariz. 268, 278, ¶ 35, 183 P.3d 519, 529 (2008)


                                        16
                        STATE v. HOLLINGSWORTH
                           Decision of the Court

(quoting Hughes, 193 Ariz. at 79, ¶ 26, 969 P.2d at 1191). In addition, once
fundamental error has been established, a defendant must show that the
error was prejudicial before we will reverse a verdict. Henderson, 210 Ariz.
at 568-69, ¶ 26, 115 P.3d at 608-09.

¶42            Ordinarily, Arizona does not recognize the cumulative error
doctrine because “something that is not prejudicial error in and of itself
does not become such error when coupled with something else that is not
prejudicial error.” State v. Roscoe, 184 Ariz. 484, 497, 910 P.2d 635, 648 (1996).
Prosecutorial misconduct cases are, however, the exception because “this
general rule [of cumulative error] does not apply when the court is
evaluating a claim that prosecutorial misconduct deprived defendant of a
fair trial.” Hughes, 193 Ariz. at 78-79, ¶ 25, 969 P.2d at 1190-91.
Consequently, if we find more than one instance of prosecutorial
misconduct, it may amount to enough to create prejudice to warrant a new
trial.

       A.      Opening Statement

¶43        Hollingsworth first asserts that the prosecutor’s misconduct
during his opening statement warrants reversal because the State
commented on his right to remain silent. We disagree.

¶44           During the opening statement the prosecutor, previewing
what the jurors would hear about Hollingsworth’s interview with the
sheriff deputy, said:

              [Hollingsworth] indicated that the vehicle, the ’94
              Buick, was his vehicle; that’s the vehicle he had been
              driving in Cordes Lakes. And importantly, when
              asked when he simply drove by this girl who was
              walking in the road and she said, “Hey, get out of
              here,” it was the defendant’s recollection that his
              windows were rolled up and he [said h]e could hear
              her through this rolled-up glass. That’s the only
              contact the defendant indicated, or would admit to, to
              the deputies.

(Emphasis added.)

¶45           The challenged statement — “[t]hat’s the only contact the
defendant indicated, or would admit to, to the deputies” — was the only
reference in the State’s opening statement about what the State hoped or
intended to present to the jury. In part, it was factual, and the State went


                                       17
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

on to prove that Hollingsworth voluntarily made the pretrial statement that
he was driving, saw the girl walking in the road, and told her to get out of
here. Although there was no basis for the part of the statement that “or [he]
would admit to,” it was not about Hollingsworth’s future decision about
testifying at trial, nor about his invocation of his constitutional rights, nor
does it imply that the jury could find Hollingsworth guilty because he
would not admit to further facts to the deputies. Even though part of the
statement was an inappropriate comment on the fact that Hollingsworth
did not confess, it was tempered by the fact that the jury was instructed just
before opening statements that “[s]tatements or arguments made by the
lawyers in th[is] case are not evidence.” The same instruction was included
in the final instructions given to the jury, and we presume, in the absence
of evidence to the contrary, that juries follow their instructions. See State v.
Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App. 1996).

¶46            Moreover, Hollingsworth cites to cases where a prosecutor
made the statement during closing argument, which reflected that the
defendant did not testify; a clear violation of law. See A.R.S. § 13-117(B);
State v. Shing, 109 Ariz. 361, 364, 509 P.2d 698, 701 (1973). That standard
does not apply here because the statement was made in the opening
statement and subject to future proof, and we will not assume that the jury
interpreted the prosecutor’s statement in a manner most damaging to the
defense. See Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999) (recognizing
that a reviewing “‘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.’”) (quoting Donnelly, 416 U.S. at
647). Additionally, the court in both its preliminary instructions and final
instructions not only instructed the jury that the State was required to prove
each element of each offense beyond a reasonable doubt, but also told the
jury that a defendant has a constitutional right not to testify at trial and the
exercise of that right cannot be considered by the jury in determining
whether a defendant is guilty or not guilty. As a result, we do not find that
the prosecutor’s statement during the opening statement is prosecutorial
misconduct, nor do we find fundamental or any resulting prejudice. See
State v. Anderson, 210 Ariz. 327, 341-42, ¶¶ 50-52, 111 P.3d 369, 383-84 (2005)
(finding no error in prosecutor’s statement because the court had
admonished the jury that the lawyers’ statements were not evidence).

       B.      Questions to Witnesses

¶47            Hollingsworth next argues that the prosecutor’s misconduct
during      witness examinations warrants reversal.            Specifically,


                                      18
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

Hollingsworth contends that the prosecutor inflamed the jury when he
elicited testimony from the victim that she “doesn’t go walking by herself
anymore.” After cross-examination of the victim, which implied the victim
was fabricating her testimony, the victim’s mother testified that the victim
is more cautious and does not go walking by herself anymore. The
testimony was proper because it substantiated the victim’s testimony and
was designed to undermine the inference that she was fabricating her
testimony. See State v. Thomas, 130 Ariz. 432, 434, 636 P.2d 1214, 1216 (1981)
(observing that “any evidence which substantiates the credibility of a
prosecuting witness on the question of guilt is relevant and material”)
(citation omitted). Accordingly, we find no misconduct by the prosecutor’s
questions to the victim or her mother, which was a response to undermine
the inference that the victim fabricated her testimony.

¶48           Hollingsworth also maintains that the prosecutor “back-
doored” hearsay testimony by asking each responding deputy what was
the nature of the call. The record shows that the prosecutor was eliciting
the testimony to set the foundation for the deputies’ testimony, and the
testimony was not hearsay because it was not admitted to prove the truth
of the matter asserted. See State v. Tucker, 215 Ariz. 298, 315, ¶ 61, 160 P.3d
177, 194 (2007) (noting “testimony that is not admitted to prove its truth is
not hearsay”). Thus, the prosecutor’s questions did not amount to
misconduct.

¶49            Next, Hollingsworth asserts that the prosecutor engaged in
bolstering by asking the victim if she was “mad at her mother, was seeking
attention, or had any reason to lie.” The question and resulting testimony
was not about bolstering, but concerned the victim’s lack of a motive to
testify falsely. The question, as a result, is not improper bolstering but an
attempt to mitigate the anticipated cross-examination, which would
explore the victim’s motivation to falsify the occurrence. See State v.
Vazquez, 830 A.2d 261, 271 n.10 (Conn. App. 2003) (stating that because a
witness’s motivation to lie may be explored on cross-examination, it may
also be discussed during direct examination).

¶50            Hollingsworth also asserts that the prosecutor had the victim
characterize the evidence by asking her on redirect examination if certain
facts brought out during cross-examination “meant she was lying,” and if
she had been lying, why would she “continue to lie.” The record shows
that the prosecutor’s questions during redirect were a response to
Hollingsworth’s impeachment during cross-examination. See, e.g., Jones v.
State, 733 S.E.2d 400, 405 (Ga. App. 2012) (concluding that prosecutor could
ask the victim “if she was telling the truth” on redirect after “defense


                                      19
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

counsel attempted to impeach the victim’s credibility”). As a result, the
question was not impermissible, and we find no misconduct.

¶51           Finally, Hollingsworth asserts that the prosecutor misled the
jurors about the lack of a photo line-up. Hollingsworth complains that the
prosecutor asked the detective why a lineup was not conducted, and the
detective said, “[The victim] did say she did not see his face clear enough
that she would be able to identify him in any photo.” The question and
answer were designed to explain why the police did not conduct a
photographic line-up to have the victim identify her assailant. As a result,
the prosecutor did not mislead the jury about the lack of a photo line-up.
Consequently, we do not find any fundamental error or any resulting
prejudice.

       C.     Closing Argument

¶52        Hollingsworth next argues that the prosecutor’s closing
argument warrants reversal. We disagree.

¶53           Prosecutors generally are afforded wide latitude during
closing argument. State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990).
They, however, may not “make arguments which appeal to the passions
and fears of the jury.” Id. A prosecutor’s remarks are improper if they call
the jurors’ attention to matters that they would not be justified in
considering in determining their verdict and it is probable that the jurors
were influenced by the remarks. State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4
P.3d 345, 359 (2000); State v. Hansen, 156 Ariz. 291, 296-97, 751 P.2d 951, 956-
57 (1988). Thus, “[w]e will not reverse a conviction because of a
prosecutor’s improper comments during closing argument unless there is a
reasonable likelihood that the misconduct could have affected the jury’s
verdict.” State v. Edmisten, 220 Ariz. 517, 524, ¶ 23, 207 P.3d 770, 777 (App.
2009) (internal citations and quotation marks omitted).

¶54           Hollingsworth argues that the prosecutor improperly
compared his statements with the victim’s testimony. Here, the prosecutor
referred to the victim’s testimony as “sworn,” “under oath,” and “subject
to cross-examination.” Hollingsworth, however, has cited no authority,
and we have found none, for the proposition that a prosecutor cannot
compare and contrast a defendant’s pretrial statements with trial
testimony. See, e.g., State v. Hebert, 697 So.2d 1040, 1045–46 (La. App. 1997)
(where the “prosecutor was attempting to compare and contrast the state’s
evidence given by witnesses under oath with the unsworn statement of




                                      20
                       STATE v. HOLLINGSWORTH
                          Decision of the Court

defendant,” the comments were “not intended to draw the jury’s attention
to defendant’s failure to testify”). Consequently, we find no error.

¶55            Hollingsworth also contends that the prosecutor improperly
told the jurors that the victim’s statements were “uncontroverted” and
“unchallenged.” The record shows that the prosecutor’s statements were
focusing on the victim’s statement that she did not know Hollingsworth.
And there is no evidence in the record controverting or challenging the
victim’s statement. See State v. Kerekes, 138 Ariz. 235, 239, 673 P.2d 979, 983
(App. 1983) (“Not every reference to the fact that testimony has been
uncontroverted necessarily focuses on the appellant’s exercise of his right
not to testify.”). Again, we find no error.

¶56             Next, Hollingsworth argues that the prosecutor improperly
commented on the defense’s closing argument. The record demonstrates
that the prosecutor commented on the defense’s closing, but the prosecutor
was criticizing Hollingsworth’s theory that the offense did not happen or,
if it did, he did not commit the offense. The prosecutor, as a result, did not
improperly comment on Hollingsworth’s closing argument. See United
States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) (“Criticism of defense
theories and tactics is a proper subject of closing argument.”); see also State
v. Amaya-Ruiz, 166 Ariz. 152, 171, 800 P.2d 1260, 1279 (1990) (concluding
that prosecutor did not engage in misconduct when he characterized the
defendant’s defense as a “smoke screen” and called the defense counsel’s
argument “outrageous”).

¶57           Hollingsworth also asserts that the prosecutor engaged in
vouching when he said, “I believe the evidence shows that this [was] a
kidnapping.” “Vouching occurs when a prosecutor places the prestige of
the government behind a witness or when the prosecutor suggests that
information not presented to the jury supports a witness’s testimony.” State
v. Rosas-Hernandez, 202 Ariz. 212, 219, ¶ 26, 42 P.3d 1177, 1184 (App. 2002).
Here, the prosecutor was summing up his argument and was asking the
jury to find Hollingsworth guilty. When read in context, the prosecutor’s
statement is not vouching as it has been defined in Arizona. See id.; State v.
Lee, 185 Ariz. 549, 554, 917 P.2d 692, 697 (1996) (holding that when read in
context the prosecutor’s comments, “[n]ow she’s been, I think, honest when
she says she wasn’t even aware that [other witnesses] had seen her” and “I
think [another witness] was an honest man, certainly an honest man, but I
think he made an honest mistake” were not vouching).




                                      21
                      STATE v. HOLLINGSWORTH
                         Decision of the Court

¶58           Finally, Hollingsworth argues that the prosecutor committed
misconduct by calling him a “predator.” The use of the term was a single
isolated statement the prosecutor made after discussing the evidence that
supported the assertion that Hollingsworth followed the victim and
planned to sexually assault her. Although the use of the term “predator”
was excessive and emotional language, see Jones, 197 Ariz. at 305, ¶¶ 36–37,
4 P.3d at 360 (noting that “excessive and emotional language is the bread
and butter weapon of counsel’s forensic arsenal”) (internal citations and
quotation marks omitted), the isolated use of the term was not misconduct
warranting reversal of the conviction. Consequently, no prejudicial
fundamental error was committed during the closing arguments that so
permeated the trial that it requires us to reverse the conviction.

                             CONCLUSION

¶59          Hollingsworth’s conviction and sentence for kidnapping is
affirmed.




                                  :ama




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