                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   JOSEPH NORRIS CLIFTON, Appellant.

                             No. 1 CA-CR 13-0514
                              FILED 08-28-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-154538-001
                The Honorable Karen A. Mullins, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
                           STATE v. CLIFTON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.


C A T T A N I, Judge:

¶1           Joseph Norris Clifton appeals his convictions and sentences
for two counts of organized retail theft and two counts of trafficking in
stolen property. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND1

¶2            In mid-October 2012, the Scottsdale Police Department
surveilled Clifton and William “Billy” Connolly. The officers observed
Clifton and Connolly drive to two different grocery stores at which Clifton
dropped Connolly off, parked nearby, and communicated with him
telephonically as he went into the stores. While Clifton waited outside,
Connolly took cosmetics, hid them under a bag of cereal in a shopping
basket, and walked out without paying. Clifton then picked Connolly up
and sped away.

¶3            Shortly after leaving the second grocery store, Clifton drove
to his apartment, parked his car, and went inside. He eventually left his
apartment and drove to a local gym, where he placed some of the stolen
cosmetics in a dumpster behind the gym. Meanwhile, Connolly got out of
Clifton’s vehicle carrying a large, heavy backpack and walked to a red
vehicle parked at a nearby apartment complex. Connolly got into the red
vehicle, and its driver drove it to a secluded area, parked for about five
minutes, and then returned to Clifton’s apartment complex. Connolly got
out of the vehicle carrying a now-empty backpack. Connolly subsequently
made a call on his cell phone, Clifton reappeared, and the two drove off
again in Clifton’s car.

¶4           Shortly thereafter, officers arrested Clifton and Connolly.
Following the arrest, police officers found two bags of cereal and Connolly’s


1      We view the facts in the light most favorable to upholding the jury’s
verdicts. State v. Kindred, 232 Ariz. 611, 613, ¶ 2, 307 P.3d 1038, 1040 (App.
2013).


                                      2
                            STATE v. CLIFTON
                            Decision of the Court

empty backpack inside Clifton’s car, along with two empty grocery-store
baskets in the trunk. Police also found two more empty grocery baskets in
a set of dumpsters behind the gym where they had previously seen Clifton.
The police searched the red vehicle and found a bag full of cosmetics
consistent with those Connolly had taken from the grocery stores.

¶5             In late October 2012, a grand jury indicted Clifton and
Connolly on two counts of organized retail theft, class 4 felonies, and two
counts of trafficking in stolen property in the second degree, class 3 felonies.
Before Clifton’s trial, Connolly entered into a plea agreement with the State.

¶6            At trial, the State called six police officers and the manager of
one of the grocery stores to testify. The State also played a recording in
which Clifton confessed to knowing that Connolly had been shoplifting.
Clifton also admitted he received $60 for driving Connolly and that he
knew Connolly was targeting cosmetics. Although the State called
Connolly as a witness, he refused to testify against Clifton despite a grant
of immunity from the State and an order of contempt by the court.

¶7             The jury found Clifton guilty on all counts. At a post-trial
hearing, the State presented certified documents that contained Clifton’s
name, date of birth, fingerprints, and photograph, and that described four
of Clifton’s prior convictions. A latent fingerprint examiner testified at the
hearing that the fingerprints on the documents matched Clifton’s
fingerprints, and the trial judge found that Clifton had previously been
convicted of two counts of shoplifting and two counts of possession of
narcotic drugs, all class 4 felonies.

¶8            The court sentenced Clifton to concurrent, mitigated terms of
6 years each for the two counts of organized retail theft, and 7.5 years each
for the two counts of trafficking in stolen property, with 250 days’
presentence incarceration credit.

¶9            Clifton timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033.2

                               DISCUSSION

¶10         Clifton presents two issues on appeal: (1) whether the
prosecutor committed misconduct during closing argument and (2)

2     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                       3
                            STATE v. CLIFTON
                            Decision of the Court

whether this court is bound by the United States Supreme Court’s decisions
in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and Apprendi v.
New Jersey, 530 U.S. 466 (2000), which held that when a prior conviction is
used to enhance a criminal sentence, the prior conviction need not be
proven to a jury.

I.     Prosecutorial Misconduct During Closing Argument.

¶11            To prevail on a claim of prosecutorial misconduct, a
defendant must show that misconduct occurred and that there is a
reasonable likelihood the misconduct could have affected the jury’s verdict
and denied the defendant a fair trial. State v. Morris, 215 Ariz. 324, 335, ¶
46, 160 P.3d 203, 214 (2007). In determining whether a prosecutor’s remarks
were improper, we consider factors including “(1) whether the remarks
call[ed] to the attention of the jurors matters that they would not be justified
in considering in determining their verdict, and (2) the probability that the
jurors, under the circumstances of the particular case, were influenced by
the remarks.” State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000)
(citation omitted). “The misconduct must be ‘so pronounced and persistent
that it permeates the entire atmosphere of the trial.’” Morris, 215 Ariz. at
335, ¶ 46, 160 P.3d at 214 (citation omitted). Because prosecutors have wide
latitude in presenting closing arguments, and the trial court is in the best
position to determine if a prosecutor’s statements require a mistrial, we
review for a clear abuse of discretion. Jones, 197 Ariz. at 305 ¶ 37, 4 P.3d at
360; State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997).

       A.     Burden Shifting.

¶12           Clifton argues that during the State’s closing rebuttal, the
prosecutor improperly tried to shift the burden of proof by stating that
Clifton did not “offer evidence” and that “the State isn’t the only side who
has the power to subpoena witnesses.” Following both remarks, defense
counsel objected, asserting that the prosecutor was shifting the burden of
proof. The superior court sustained both objections and gave curative
instructions. Clifton requested a mistrial both times, but the court denied
the requests.

¶13            Preliminarily, it is not improper for a prosecutor to comment
regarding a defendant’s failure to present evidence to support his or her
theory of the case, as long as the comment does not direct the jury’s
attention to the defendant’s failure to testify. State v. Sarullo, 219 Ariz. 431,
437, ¶ 24, 199 P.3d 686, 692 (App. 2008). Thus, the prosecutor’s comment in
this case was arguably proper. Nevertheless, we need not address the



                                       4
                           STATE v. CLIFTON
                           Decision of the Court

propriety of the comment because the court sustained Clifton’s objection
and instructed the jurors to disregard the prosecutor’s comments and to
look to the jury instructions for guidance, which included the following
directive:

       The State must prove guilt beyond a reasonable doubt based
       on the evidence. The defendant is not required to produce
       evidence of any kind. The decision on whether to produce
       any evidence is left to the defendant acting with the advice of
       an attorney. The defendant’s decision not to produce any
       evidence is not evidence of guilt.

Because we presume that the jurors followed the court’s instructions, State
v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006), and because the
evidence supports the jury’s verdict, see supra ¶¶ 2–4, Clifton has not
demonstrated that the alleged misconduct deprived him of a fair trial or
otherwise warranted a mistrial. See Morris, 215 Ariz. at 335, ¶ 46, 160 P.3d
at 214.

       B.     Vouching.

¶14          Clifton asserts that the prosecutor improperly suggested that
he could have called witnesses to corroborate the testimony of other State
witnesses. For this argument, Clifton relies on the following discussion by
the prosecutor:

       And we heard talk about why fingerprints weren’t – one, why
       cell phone records weren’t offered. I suppose, if we’re playing
       it sound, I could have called additional witnesses. Maybe I
       would have called a forensic examiner. Maybe a forensic
       examiner could have come up here and testified about all
       their training and all their experiences that allow them to
       download data off a cell phone. Then we could have had the
       forensic examiner discuss the cell phones in this case. Maybe
       we could have had the forensic examiner then correlate the
       cell phone data to certain numbers, then perhaps we could
       have subpoenaed the various cell phone companies. There
       [are] probably two. Probably don’t have the same carrier.
       That’s just odds. So we would have called two more
       witnesses to come and testify as to accounts and particular
       numbers and who is associated with particular accounts. And
       we could have gone all through that to know what we already
       know, that they were talking to each other.



                                      5
                            STATE v. CLIFTON
                            Decision of the Court

¶15           Because Clifton did not object to the prosecutor’s statements
during the trial, we review only for fundamental, prejudicial error. See State
v. Henderson, 210 Ariz. 561, 567, ¶¶ 19–20, 115 P.3d 601, 607 (2005).

¶16           Impermissible prosecutorial vouching occurs when “the
prosecutor places the prestige of the government behind its witness[es]” or
“the prosecutor suggests that information not presented to the jury
supports the witness’s testimony.” State v. Vincent, 159 Ariz. 418, 423, 768
P.2d 150, 155 (1989). Here, we find no such vouching. The prosecutor’s
statement simply explained his belief that it would be a “waste of
resources” to present evidence to establish something that was already
clear. The prosecutor did not argue that the State had undisclosed evidence
not presented to the jury and was speaking hypothetically by using the
terms “probably” and “maybe.” Clifton’s counsel’s failure to object to the
prosecutor’s remarks suggests that he, too, understood that the comments
were simply part of a hypothetical discussion and were not unfairly
prejudicial. See James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999) (noting
that “[t]he absence of a timely objection is particularly significant to a claim
of prosecutor misconduct in closing argument” because both defense
counsel and the court heard the remarks and were in a better position to
determine its significance to the trial).

¶17            Furthermore, the prosecutor’s remarks appropriately
rebutted Clifton’s closing argument, in which Clifton asserted that the
State’s evidence was insufficient because the State did not produce
fingerprints or phone records. See State v. Rosas-Hernandez, 202 Ariz. 212,
219, ¶ 26, 42 P.3d 1177, 1184 (App. 2002) (finding that a prosecutor did not
engage in vouching because his comments were directed at the non-
evidentiary statement of opposing counsel, not a witness’s testimony, and
the prosecutor did not suggest that he had outside knowledge). Therefore,
we conclude the prosecutor’s remarks did not constitute vouching.

       C.     Improper and Misleading Statements Regarding Connolly.

¶18           Clifton also contends that the prosecutor improperly stated
that Connolly could have testified. Clifton argues that the statement was
improper and misleading because the State knew Connolly had pled guilty
to related charges and that Connolly had invoked his right to silence and
was otherwise unavailable to testify at trial. Clifton argues that this
comment left the jury with the erroneous impression that Clifton had an
obligation to call witnesses on his behalf, but did not do so. Clifton asserts
that the State thus improperly called to the jury’s attention “matters that
they would not be justified in considering in determining their verdict,”see


                                       6
                            STATE v. CLIFTON
                            Decision of the Court

Jones, 197 Ariz. at 305, ¶ 37, 4 P.3d at 360 (citation omitted), and
misleadingly suggested that Connolly had not been apprehended and did
not have any culpability in the case.

¶19          Clifton points in particular to the following remarks by the
prosecutor in his rebuttal closing argument:

       And we had, you know, a lot of inferences as to, well, where’s
       Billy? Why didn’t Billy come up? Where is Edward [sic]
       Lopez? Billy and Eduardo Lopez aren’t on trial, ladies and
       gentlemen. If they are arrested and if they’re charged, they’ll
       be in different trials on different days with different juries.

       The defense is playing a, look over here, don’t look here.
       Don’t look at my client’s guilt which the State has proven
       beyond a reasonable doubt, look at these guys. They’re the
       bad guys. It’s a bait and switch. They’re all guilty, all three.
       Based on the evidence that’s presented in this case, they’re all
       guilty. Don’t confuse the fact that this isn’t their trial with the
       fact that . . .

Clifton’s counsel interjected, asserting that the prosecutor was vouching for
the police officers. The court sustained the objection, and asked the jury to
disregard the prosecutor’s statements. The defense did not move for a
mistrial.

¶20            The prosecutor’s statement did not specifically vouch for any
particular testimony or suggest there was other evidence supporting the
State’s case. In fact, the prosecutor specifically directed the jury to consider
“the evidence that’s presented in this case.” Moreover, the prosecutor was
merely responding to defense counsel’s assertion that the police did not
conduct any further investigation into Connolly’s and Lopez’s involvement
in the case. Furthermore, the trial court sustained the objection, and we
assume that the jurors followed the court’s curative instruction. See Newell,
212 Ariz. at 403, ¶ 68, 132 P.3d at 847. Clifton has not demonstrated that the
prosecutor’s statements deprived him of a fair trial or otherwise warranted
a mistrial. See Morris, 215 Ariz. at 335, ¶ 46, 160 P.3d at 214.

II.    Prior Conviction Jurisprudence.

¶21         Clifton asks this court to remand the case for a jury
determination of his prior felony convictions used for sentencing
enhancement. Because Clifton did not raise this issue during trial, we



                                       7
                             STATE v. CLIFTON
                             Decision of the Court

review only for fundamental, prejudicial error. See Henderson, 210 Ariz. at
567, ¶¶ 19–20, 115 P.3d at 607. We find none.

¶22            The United States Supreme Court and the Arizona Supreme
Court have squarely decided this issue. See Almendarez-Torres, 523 U.S. at
226–27 (holding that a prior conviction, when used as a sentencing
enhancement, need not be charged as an additional element of an offense);
Jones v. United States, 526 U.S. 227, 243 n.6 (1999) (“[A]ny fact (other than prior
conviction) that increases the maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and proven beyond a reasonable
doubt.”) (emphasis added); Apprendi, 530 U.S. at 490 (“Other than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”) (emphasis added); State v. Ring (Ring III), 204
Ariz. 534, 555–56, ¶ 55, 65 P.3d 915, 936–37 (2003) (holding that Almendarez-
Torres controls and that the Sixth Amendment does not require a jury to
determine prior convictions as aggravating factors).

¶23           Clifton argues that Alleyne v. United States, 133 S. Ct. 2151
(2013), and State v. Gross, 201 Ariz. 41, 31 P.3d 815 (App. 2001), support his
position that the Almendarez-Torres and Ring holdings are no longer viable.
But in Alleyne, although the United States Supreme Court held that facts
that increase the statutory minimum (as well as maximum) sentence must
be submitted to a jury, see 133 S. Ct. at 2155, the court specifically
acknowledged the continued viability of the Almendarez-Torres exception
relating to proof of prior convictions. Id. at 2160 n.1. And in Gross, this
court held (in a pre-Ring III case) only that a defendant’s release status must
be determined by a jury. 201 Ariz. at 47, ¶ 27, 31 P.3d at 821. Thus, the
superior court properly found that the fact of Clifton’s prior convictions
need not be determined by a jury.

                                CONCLUSION

¶24            For the foregoing reasons, we affirm Clifton’s convictions and
sentences.




                                     :gsh




                                        8
