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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JOHN ALBERT MULTARI, Appellant.

                             No. 1 CA-CR 13-0474
                               FILED 2-26-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-006354-001
                The Honorable Cynthia J. Bailey, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele G. Ponce
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
                            STATE v. MULTARI
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Randall M. Howe joined.


D O W N I E, Judge:

¶1           John Albert Multari appeals his convictions and sentences for
aggravated assault, unlawful discharge of a firearm in city limits, and
unlawful discharge of a firearm at a non-residential structure. For the
following reasons, we affirm.

                    FACTS AND PROCEDURAL HISTORY1

¶2           Multari fired a shot into the front driver’s-side window of a
Volkswagen at about 9:30 p.m. in a residential neighborhood. The bullet
shattered the window and hit the dashboard and front windshield but
missed the driver. The driver, R.C., left the area and called 9-1-1.

¶3           Police officers drove R.C. back to the scene, and he identified
Multari, who had returned to the neighborhood in a different vehicle, as the
person who had been circling the area in a Toyota Corolla and who ran
toward R.C.’s vehicle right before shooting at it. That night, Multari denied
firing his gun. He also initially denied owning the Corolla. When
confronted with the registration information, Multari admitted owning the
Corolla, but stated it was inoperative. After questioning and a gunshot
residue swab of his hands, Multari was released.

¶4            Gunshot residue tests on Multari’s hands came back positive,
and tests on a shell casing found at the scene established it had been fired
by Multari’s gun. Multari was arrested and interrogated three weeks after
the incident. At that time, he admitted firing his gun at the Volkswagen,
but said he did so because he feared R.C. was going to steal his car while he
approached R.C.’s vehicle on foot. At trial, Multari testified he fired the
shot into the driver’s-side window because R.C. sped toward him as he
approached the car on foot, and he thought R.C. was going to run over him.


1      We view the trial evidence in the light most favorable to sustaining
the jury’s verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769,
769 (App. 2007).


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                            Decision of the Court

Although Multari testified he shot at the car as he was jumping out of its
way “in one motion,” he also testified that when he shot at the car, it was
no longer coming at him. He testified he aimed for the car and intended to
cause bodily injury to the driver.

¶5            The jury convicted Multari of the charged offenses, and the
court imposed concurrent sentences, the longest of which was 7 years.
Multari filed a timely notice of appeal. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
13-4033(A).

                                    DISCUSSION

       A.     Disorderly Conduct Instruction

¶6            Multari argues the superior court erred by denying his
request for an instruction on disorderly conduct as a lesser included offense
of the charged aggravated assault offense because the jury could have
found he fired the gun intending only to disturb R.C.’s peace. We assume,
without deciding, that Multari sufficiently preserved this argument for
appellate review by citing State v. Angle, 149 Ariz. 478, 720 P.2d 79, (1986),
in requesting the instruction.2 We review the denial of a requested
instruction for abuse of discretion. See State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126
P.3d 148, 150 (2006).

¶7             As charged in this case, aggravated assault requires proof that
the defendant intended to place the victim in reasonable apprehension of
imminent physical injury, using a deadly weapon.                    See A.R.S.
§ 13-1203(A)(2) (“A person commits assault by . . . [i]ntentionally placing
another person in reasonable apprehension of imminent physical injury.”);
-1204(A) (A person commits aggravated assault “[i]f the person uses a
deadly weapon.”). In pertinent part, disorderly conduct requires proof that
the defendant “with intent to disturb the peace or quiet of a . . . person, or
with knowledge of doing so, such person . . . recklessly . . . discharges a
deadly weapon.” A.R.S. § 13-2904(A)(6). Disorderly conduct by recklessly
discharging a firearm with intent to disturb the peace is a lesser included
offense of aggravated assault as charged in this case. State v. Miranda, 200
Ariz. 67, 68, ¶ 3, 22 P.3d 506, 507 (2001); Angle, 149 Ariz. at 479, 720 P.2d at
80.


2      In settling jury instructions, Multari argued R.C. was not placed in
reasonable apprehension because of the handgun, but rather his peace was
disturbed by Multari’s crossing the street and flashing his cell phone at R.C.


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                            STATE v. MULTARI
                            Decision of the Court

¶8            However, a court is required to instruct and provide verdict
forms only on “necessarily included offenses.” See Wall, 212 Ariz. at 3, ¶¶
13-14, 126 P.3d at 150; see also Ariz. R. Crim. P. 23.3 (“Forms of verdict shall
be submitted to the jury for all offenses necessarily included in the offense
charged. . . .”). “An offense is necessarily included when it is lesser
included and the facts of the case as presented at trial are such that a jury
could reasonably find that only the elements of a lesser offense have been
proved.” State v. Gipson, 229 Ariz. 484, 486 n.2, ¶ 14, 277 P.3d 189, 191 n.2
(2012). “To determine whether there is sufficient evidence to require the
giving of a lesser included offense instruction, the test is whether the jury
could rationally fail to find the distinguishing element of the greater
offense.” State v. Jackson, 186 Ariz. 20, 27, 918 P.2d 1038, 1045 (1996).

¶9            No jury could have reasonably found that Multari intended
only to disturb R.C.’s peace, in light of his admission that he fired a shot
through the driver’s-side window intending to injure the driver. Nor could
a reasonable jury have found only that R.C.’s peace was disturbed and that
he was not placed in reasonable apprehension of imminent physical injury,
as required to prove the greater offense. See State v. Angle, 149 Ariz. 499,
504, 720 P.2d 100, 105 (App. 1985), vacated in other part, 149 Ariz. 478, 479,
720 P.2d 79, 80 (1986).

¶10            R.C. testified he was so frightened by Multari’s conduct that
he drove away “as fast as [he] could” and called 9-1-1. R.C. was covered in
glass, had blood on his hand, and the window of his car had a large hole in
it. Based on this evidence, as well as Multari’s admission he intentionally
shot through the driver’s-side window, no reasonable jury could have
failed to find that R.C. was placed in reasonable apprehension of imminent
physical injury. See State v. Lara, 183 Ariz. 233, 235, 902 P.2d 1337, 1339
(1995) (given defendant’s “relentless and deadly” attack on the officer, “it
is not possible the jury could have found that [the officer] was only
disturbed,” and thus, evidence did not support disorderly conduct
instruction). The superior court did not abuse its discretion by denying
Multari’s request for a disorderly conduct instruction.

       B.     Alleged Prosecutorial Misconduct

¶11          Multari contends the prosecutor engaged in misconduct by
suggesting he claimed for the first time at trial that he fired the shot in self-
defense. The cross-examination to which Multari objects for the first time
on appeal was as follows:




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                           Decision of the Court

       Q: And now here we are in trial and here we are with story
       number three, which you’ve never told any officer before.
       This is the first time we’re hearing this today and that’s that
       [R.C.] tried to run you over; is that correct?

                                      ...

       Q: Sir, that’s not my question. Today’s the first day that
       anyone from the State is hearing that someone tried to run
       you over; is that correct?

                                      ...

       Q: You didn’t tell the officer, did you? Officer Redding?

                                      ...

       Q: You didn’t tell Detective Perkins[?]

                                      ....

       Q: That’s right. Story number three was he tried to run you
       over. I see. And you expect this jury to believe today that
       after all those chances you had to talk to the police, after all
       those chances you had to tell the officers that someone
       threatened your life and ran you over, today you expect them
       to believe that story; is that right?

Also for the first time on appeal, Multari objects to the prosecutor’s
statement in closing argument that he “didn’t tell anyone that [R.C.] tried
to run him over until he came in this courtroom today,” and “he told you
self-defense for the very first time,” and “it’s just not true.”

¶12           Multari argues the prosecutor knew from pretrial
proceedings that he was claiming self-defense on the basis that R.C. tried to
run him over and asserts the prosecutor engaged in impermissible
vouching by stating “she had never before heard [Multari’s] self-defense
claim before his testimony, thereby making it clear that she personally
knew that he was lying, as she personally knew that he’d never made the
claim before.” Because Multari did not raise these objections below, we
review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 568,
¶ 22, 115 P.3d 601, 608 (2005). Multari bears the burden of demonstrating
that misconduct occurred, the misconduct constituted fundamental error,




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                            STATE v. MULTARI
                            Decision of the Court

and that he was prejudiced thereby. Henderson, 210 Ariz. at 567, ¶ 20, 115
P.3d at 607.

¶13            To determine whether a prosecutor’s remarks are improper,
we consider whether they called to the attention of jurors matters they
would not be justified in considering, and the probability, under the
circumstances, that jurors were influenced by the remarks. State v. Jones,
197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). There are “two forms of
impermissible prosecutorial vouching: 1) where 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. King, 180 Ariz. 268, 276-77, 883 P.2d 1024,
1032-33 (1994). “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. Morris, 215 Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214 (2007).
“Prosecutorial misconduct constitutes reversible error only if (1)
misconduct exists and (2) a reasonable likelihood exists that the misconduct
could have affected the jury's verdict, thereby denying defendant a fair
trial.” Id.

¶14             We find no misconduct based on the prosecutor’s references
to a self-defense claim being raised for the first time at trial. In considering
whether an argument constitutes misconduct, we consider “the context in
which the statements were made.” State v. Nelson, 229 Ariz. 180, 189, ¶ 39,
273 P.3d 632, 641 (2012). We will not assume the prosecutor intended the
most sinister meaning of ambiguous remarks. State v. Dunlap, 187 Ariz. 441,
462-63, 930 P.2d 518, 539-40 (App. 1996). The prosecutor’s questions and
comments focused on Multari’s failure to tell police officers who questioned
him that he believed R.C. was trying to run him over. Multari has not
denied the accuracy of that assertion. Indeed, at trial, he testified he did not
tell officers that R.C. tried to run him over, saying, “I kind of wanted to keep
all of that from the officer.”

¶15            Nor are we persuaded the prosecutor improperly suggested
to jurors that she had personal knowledge outside the record that Multari
was lying. The prosecutor argued the jury should not believe his claim of
self-defense for many reasons: because it was Multari’s third story; because
neither the physical evidence, common sense, nor his own testimony
supported the claim; because he lied; and because he was the only witness
with a motive to lie. It was only in the context of detailing the reasons for
disbelieving the self-defense assertion that the prosecutor remarked
Multari’s story was “not true.” Because the prosecutor sufficiently linked


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                            STATE v. MULTARI
                            Decision of the Court

her remarks to the evidence and emphasized that the jury was the sole
judge of credibility, we conclude no improper vouching occurred. See State
v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 1997); cf. United States
v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013) (holding that use of “we know”
was proper because it was used “to marshal evidence actually admitted at
trial and reasonable inferences from the evidence, not to vouch for witness
veracity or suggest that evidence not produced would support a witness’s
statements”).

                              CONCLUSION

¶16          For the foregoing reasons, we affirm Multari’s convictions
and sentences.




                                    :ama




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