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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                BRIAN KRISTOPHER COOPER, Appellant.

                             No. 1 CA-CR 13-0410
                                FILED 5-26-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-008008-001
                 The Honorable Pamela S. Gates, Judge

                                  AFFIRMED


                                   COUNSEL

Gail Gianasi Natale, Attorney at Law, Phoenix
By Gail Gianasi Natale
Counsel for Appellant

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



                       MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
                             STATE v. COOPER
                            Decision of the Court

P O R T L E Y, Judge:

¶1            Defendant Brian Kristopher Cooper appeals his convictions
and the resulting sentences for fleeing from a law enforcement vehicle,
disorderly conduct, misconduct involving weapons, possession of
marijuana, and three counts of possession of drug paraphernalia. He
argues the trial court erred by: (1) denying his motion to sever the unlawful
flight, endangerment, and aggravated assault counts (Counts 1 through 3)
from the possession of marijuana, possession of drug paraphernalia, and
misconduct involving weapons counts (Counts 4 through 8); and (2)
denying his motion for mistrial due to prosecutorial misconduct. For the
following reasons, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2            Cooper was driving 85 miles per hour and making “sudden
lane changes” without signaling on State Route 101 on November 11, 2011,
and Arizona Department of Public Safety Officer Gerald Baker tried to stop
him. The officer turned on his lights and siren, but Cooper just accelerated
and refused to stop. Officer Baker requested an “air unit,” and Phoenix
Police Air Unit eventually located and followed Cooper’s progress from the
air during the high-speed pursuit that lasted for almost an hour.

¶3             Cooper eventually drove southbound onto Interstate 17, got
off at the tunnel on the Rose Garden Lane frontage road, stopped, and got
out of his car. Officer Cottrell, who had been following him, pulled behind
Cooper’s car at “a 45-degree angle,” got out, and, using his “engine block
as cover,” drew his weapon and pointed it at Cooper. When Cooper saw
Officer Cottrell approaching, he got back into his car, “threw it in reverse
and accelerated full speed backward,” past Officer Cottrell and towards the
north end of the tunnel. Seeing his escape was blocked, Cooper drove back
into the tunnel, and accelerated directly towards Officer Cottrell.

¶4            Officer Cottrell “didn’t have any place to go,” and testified
that he thought he “was going to die.” He began firing at Cooper, who
“leaned over and ducked down,” while driving directly at Officer Cottrell.
Officer Cottrell jumped out of the way while continuing to fire at Cooper,



1We view the facts in the light most favorable to upholding the convictions.
State v. Lowery, 230 Ariz. 536, 538, ¶ 2, 287 P.3d 830, 832 (App. 2012) (citation
omitted).



                                       2
                             STATE v. COOPER
                            Decision of the Court

and Cooper crashed into Officer Cottrell’s patrol car and then into the
concrete barrier.2

¶5            Other officers joined Officer Cottrell and ordered Cooper to
get out of his car and “show us your hands.” Initially, Cooper did not
comply, and the officers saw him throw a cell phone into a storm drain.
After tasing, and taking Cooper into custody, the officers searched his car
and found multiple cell phones, marijuana, digital scales, a grinder, and a
.45 caliber handgun. Cooper also had $1219 in cash wrapped in plastic.
Officers obtained a search warrant for the cell phone Cooper threw in the
drain and found incriminating text messages.

¶6              Cooper was indicted for unlawful flight from law
enforcement, endangerment, aggravated assault, misconduct involving
weapons, possession of marijuana for sale, and three counts of possession
of drug paraphernalia. Before trial, Cooper filed a motion to sever the
unlawful flight, endangerment, and aggravated assault counts from the
others. The motion was denied “because evidence of [counts] 4-8 are
‘inextricably intertwined’ with his failure to stop (counts 1-3), and all counts
are part of a ‘single criminal episode.’” Cooper unsuccessfully renewed the
motion during a pretrial conference, but did not renew the motion during
trial.

¶7             The jury found Cooper guilty of fleeing from a law
enforcement vehicle (Count 1), misconduct involving weapons (Count 4),3
and all three possession of drug paraphernalia counts (Counts 6-8). The
jurors, however, could not unanimously agree that Cooper was guilty of
aggravated assault (Count 3) or possession of marijuana for sale (Count 5),
but found him guilty beyond a reasonable doubt of the lesser-included
offenses of disorderly conduct and possession of marijuana, respectively.
The jurors also found Cooper not guilty of endangerment (Count 2). The
trial court found that Cooper had two historical prior felony convictions,
and sentenced Cooper to concurrent prison terms on each count, the
maximum of which was ten years. He was given 560 days of presentence
incarceration credit.




2 Officer Cottrell fired a total of 11 rounds at Cooper. One hit Cooper and
four bullets hit his car.
3 Cooper stipulated that he was a prohibited possessor.




                                       3
                              STATE v. COOPER
                             Decision of the Court

¶8            Cooper filed a timely notice of appeal. We have jurisdiction
pursuant to 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(A).4

                                 DISCUSSION

      I.     Motion to Sever Counts

¶9            Cooper argues that the court erred in denying his severance
motion. He contends that the court should have severed the first three
counts, relating to the high-speed car chase, from the last five counts,
concerning the drug and weapon charges, because they represented two
distinct offenses. The State responds that Defendant has waived this
argument on appeal. We agree. See State v. Martinez, 210 Ariz. 578, 580, ¶
4, n.2, 115 P.3d 618, 620 n.2 (2005) (when issue not properly preserved
below, defendants “forfeit the right to obtain appellate relief unless they
prove that fundamental error occurred”).

¶10             Arizona Rule of Criminal Procedure 13.4(c) requires a
defendant to renew a denied motion to sever at trial. The renewal
requirement for severance motions prevents a defendant from “playing
‘fast and loose’ with the trial court” and allows the court to reassess the
need for separate trials as the evidence is developed. State v. Flythe, 219
Ariz. 117, 119, ¶ 5, 193 P.3d 811, 813 (App. 2008). And compliance with
Rule 13.4(c) assists the appellate court in reviewing the trial court’s findings
and rulings on the motions. See id. at 120, ¶ 10, 193 P.3d at 814. As a result,
we strictly apply the waiver provisions of Rule 13.4(c), particularly the
explicit requirement that motions for severance be renewed during trial.
See id.; see also State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996)
(defendant waived issue by failing to renew motion to sever count).

¶11           Here, although Cooper timely requested severance of the
counts and renewed his motion before trial, he failed to renew his motion
during trial. Moreover, he has not asserted that the court’s refusal to grant
a severance constitutes fundamental error. Cooper, as a result, has waived
the issue, and because he has not asked us to review for fundamental error,
we do not reach the merits of his claim. See State v. Smith, 184 Ariz. 456, 460,
910 P.2d 1, 5 (1996) (appellate court not obligated to search record for
fundamental error). Accordingly, the court did not err by denying Cooper’s
severance motion.



4   We cite to the current version of the statute unless otherwise noted.


                                        4
                              STATE v. COOPER
                             Decision of the Court

   II.     Prosecutorial Misconduct

¶12          During the State’s initial closing argument, the prosecutor
noted that, while the burden of proof is on the State, Cooper failed to call
any witnesses to support his defense. Cooper objected, but the court
overruled his objection. The court, however, gave the following limiting
instruction:

              Ladies and gentlemen, with regard to any
              statements made from the State regarding the
              lack of contradictory testimony from the
              witness stand, I simply remind you that the
              defendant is not required to testify, moreover
              the law does not require the defendant to prove
              innocence. The decision on whether or not to
              testify is left to the defendant acting with the
              advice of an attorney and you must not let this
              choice affect your deliberations in any way.

¶13           After closing arguments, Cooper renewed his Rule 20 motion
and moved for a mistrial. The court denied both motions. Cooper now
argues that the court erred by denying his motion for mistrial because the
prosecutor engaged in misconduct by commenting upon his decision not to
testify or present evidence in his defense and by shifting the burden of
persuasion to the defense.

¶14             We will not disturb a trial court’s denial of a motion for
mistrial for prosecutorial misconduct absent a clear abuse of discretion.
State v. Sarullo, 219 Ariz. 431, 437, ¶ 23, 199 P.3d 686, 692 (App. 2008). We
give the trial court “great deference” because it “is in the best position to
determine whether the [alleged error] will actually affect the outcome of the
trial.” State v. Lamar, 205 Ariz. 431, 439, ¶ 40, 72 P.3d 831, 839 (2003) (quoting
State v. Jones, 197 Ariz. 290, 304, ¶ 32, 4 P.3d 345, 359 (2000)).

¶15            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)
(internal quotation marks and citations omitted); see also Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). To require reversal, prosecutorial
misconduct must affect the jury’s ability to fairly assess the evidence and be
“so pronounced and persistent that it permeates the entire atmosphere of
the trial.” Sarullo, 219 Ariz. at 437, ¶ 23, 199 P.3d at 692 (citation omitted).



                                        5
                             STATE v. COOPER
                            Decision of the Court

¶16            It is constitutionally and statutorily impermissible for a
prosecutor to comment upon a defendant’s decision not to testify at trial.
A.R.S. § 13–117(B); Griffin v. California, 380 U.S. 609, 611–12 (1965); State v.
Fuller, 143 Ariz. 571, 574–75, 694 P.2d 1185, 1188–89 (1985). However,
prosecutors have “wide latitude” in presenting their closing arguments to
the jury. State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). And
when a prosecutor comments on a defendant’s failure to present evidence
to support his or her defense or theory of the case, it is not improper and
does not shift the burden of proof to the defendant so long as such
comments are not intended to direct the jury’s attention to the defendant’s
failure to testify. Hughes, 193 Ariz. at 87, ¶ 64, 969 P.2d at 1199 (citation
omitted); Sarullo, 219 Ariz. at 437, ¶ 24, 199 P.3d at 692; see also State v.
Edmisten, 220 Ariz. 517, 525, ¶ 26, 207 P.3d 770, 778 (App. 2008) (“It is well
settled that a prosecutor may properly comment upon the defendant’s
failure to present exculpatory evidence, so long as the comment is not
phrased to call attention to the defendant’s own failure to testify.”) (citation
and internal quotation marks omitted).

¶17          In this case, during the prosecutor’s initial closing argument,
the following remarks were made:

              THE STATE: Again, undisputed. Absolutely
              undisputed. No one came in here to say that
              the —

              DEFENSE COUNSEL: I’m going to object to
              that as improper argument.

              THE COURT: Overruled.

              THE STATE: Nobody came here took the stand
              to say that Officer Cottrell got it wrong. In fact,
              [K.P.], she testified that Officer Cottrell had
              nowhere to go. Officer Cottrell told you, he had
              nowhere to go.

              ...

              THE STATE: Again, reasonable apprehension,
              ladies and gentlemen, and nothing to
              contradict, no evidence from that witness stand
              to contradict —




                                       6
                            STATE v. COOPER
                           Decision of the Court

             DEFENSE COUNSEL: Objection; improper
             argument.

             THE COURT: Overruled.

             THE STATE: — to contradict Officer Cottrell,
             Officer Cottrell’s statements.

             ...

             THE STATE: Nobody came in here to say it was
             just for personal use.

             DEFENSE COUNSEL: Objection; improper
             argument.

             THE COURT: Overruled.

¶18            The prosecutor’s remarks did not comment on Cooper’s
failure to testify nor did they shift the burden of proof from the State to
Cooper; the comments were not improper. See Hughes, 193 Ariz. at 87,
¶ 64, 969 P.2d at 1199; Sarullo, 219 Ariz. at 437, ¶ 24, 199 P.3d at 692;
Edmisten, 220 Ariz. at 525, ¶ 26, 207 P.3d at 778. But, the court properly
stepped in and gave the limiting instruction to remind the jurors of their
obligation. As a result, the limiting instruction cured any potential problem
with the rhetoric of the argument. See State v. Ramirez, 178 Ariz. 116, 127,
871 P.2d 237, 248 (1994) (“We presume that the jurors read and followed the
relevant instructions.”). Therefore, we find no error.

                              CONCLUSION

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




                                  :ama




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