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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       CLARK LEE WYLIE, Appellant.

                             No. 1 CA-CR 19-0207
                               FILED 8-13-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-006288-003
                The Honorable Michael W. Kemp, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Brian Coffman
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                            STATE v. WYLIE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Peter B. Swann joined.


H O W E, Judge:

              Clark Lee Wylie appeals his convictions and sentences for
first-degree murder, first-degree burglary, conspiracy to commit
first-degree burglary, and disorderly conduct. For the following reasons,
we affirm.

                FACTS AND PROCEDURAL HISTORY

              We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Wylie. See State v.
Payne, 233 Ariz. 484, 509 ¶ 93 (2013). Victim C.C. started dating
co-defendant Tiffany Van Nest in October 2016 while they were living in
Texas. C.C. and Van Nest moved in together after a few months along with
Van Nest’s infant son, K.N. Wylie is K.N.’s father.

              C.C., Van Nest, and K.N. moved to Arizona in March 2017. In
mid-May 2017, C.C. and Van Nest got into a heated argument, and C.C.
assaulted Van Nest, knocking out a tooth. C.C. later assaulted Van Nest
again and hit K.N., causing them each injuries. When Van Nest told Wylie
about the incident, he became enraged. Van Nest and K.N. soon returned
to Texas and visited Wylie.

               The day after that visit in Texas, Wylie and Van Nest drove
back to Arizona to confront C.C. Wylie brought two baseball bats, and they
picked up Wylie’s friend, Jesus Gomez (referred to at times at trial as
“Killa”) for assistance. During the trip, they discussed attacking C.C.

              The three went to C.C.’s apartment. Wylie and Gomez walked
to the door with the baseball bats and knocked. After C.C. opened the door,
Wylie and Gomez “rushed in” and attacked C.C., hitting him with the bats
repeatedly. C.C. attempted to defend himself with a golf club.

             The fighting woke up C.C.’s younger brother, twelve-year-
old A.C. A.C. entered the living room where the attack was happening and
saw Wylie and Gomez standing over C.C., who was face down and


                                     2
                            STATE v. WYLIE
                           Decision of the Court

“gurgling blood.” Wylie and Gomez then fled with Van Nest. C.C. died
from blunt force trauma to the head. After they were arrested in Texas,
Wylie told Van Nest and Gomez that they should not have taken their
phones because “that’s how they got us.”

              The State charged Wylie with first-degree murder, first-
degree burglary, conspiracy to commit first-degree burglary, and
disorderly conduct. Van Nest entered a testimonial plea agreement with the
State and testified at trial.

              Wylie did not dispute the primary facts at trial, and his “only
defense was that he did not premeditate the murder and he did not commit
a burglary that resulted in C.C.’s death.” Wylie’s defense focused
significantly on Van Nest’s role and her credibility. In opening statement,
Wylie’s counsel told the jury:

      [B]ut for [Van Nest] we all wouldn’t be here in this case. We
      all wouldn’t—this trial wouldn’t have happened. These
      charges wouldn’t have happened. It’s all about Tiffany Van
      Nest and her maneuvering and manipulating all of the
      individuals in this case, including the State of Arizona. And I
      will submit to you that the State of Arizona cut a deal with the
      devil[.]

When concluding her opening statement, Wylie’s counsel described Van
Nest as a “femme fatale” and repeated her assertion that the State made a
“deal with the devil.”

             Defense counsel began her closing argument by stating, “At
the end of my argument this afternoon to you, I’m going to ask you to
consider finding [Wylie] guilty of something lesser than first-degree
murder.” Defense counsel concluded her closing argument as indicated:

      I’m asking you not to buy that house for Murder 1. I’m asking
      you to consider second-degree murder or more
      appropriately, a manslaughter charge, because that is what
      this was. . . . I’m asking you to give him the benefit of the
      doubt in this case. I’m not asking you to set him free. I’m not
      saying that he doesn’t deserve to be punished. I’m just asking
      you to consider less than Murder 1 in this case. This is not a
      first-degree murder case. This is a case of heat of passion. This
      is a case that got completely out of control. And again, but for
      the femme fatale, we all wouldn’t be here.



                                     3
                             STATE v. WYLIE
                            Decision of the Court

              After a 13-day trial, the jury convicted Wylie as charged. The
trial court sentenced Wylie to concurrent terms of natural life with the
possibility of release after 25 years for first-degree murder; 20 years’
imprisonment for first-degree burglary; and 20 years’ imprisonment for
conspiracy to commit first-degree burglary. The trial court imposed a
consecutive sentence of 5.75 years’ imprisonment for disorderly conduct.
Wylie timely appealed.

                               DISCUSSION

              1. Alleged Prosecutorial Misconduct

              Wylie claims that the prosecutor committed misconduct
during his closing argument by “pandering” and “impugning defense
counsel.” Wylie urges that the cumulative effect of the prosecutor’s
statements denied him a fair trial. We address each of the individual
allegations of misconduct and their cumulative effect below.

              We initially examine each instance of alleged misconduct to
determine if the defendant has established error. State v. Goudeau, 239 Ariz.
421, 465 ¶ 192 (2016). Our standard of review depends on whether Wylie
objected to the individual allegations. State v. Morris, 215 Ariz. 324, 335 ¶ 47
(2007). “When a defendant objects to an alleged act of prosecutorial
misconduct, we review the issue for harmless error; when a defendant fails
to object, we engage in fundamental error review.” State v. Dann, 220 Ariz.
351, 373 ¶ 125 (2009).

               “Prosecutorial misconduct ‘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.’” State v.
Aguilar, 217 Ariz. 235, 238–39 ¶ 11 (App. 2007) (quoting Pool v. Superior
Court, 139 Ariz. 98, 108–09 (1984)). “After reviewing each incident for error,
we must assess whether the incident should count towards [the]
prosecutorial misconduct claim[,]” and we then evaluate the cumulative
effect of the incidents on the trial. State v. Roque, 213 Ariz. 193, 228 ¶ 155
(2006) (quotations and citations omitted). The 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.” Id.
at ¶ 152 (quotations and citations omitted).

            “[D]uring closing arguments counsel may summarize the
evidence, make submittals to the jury, urge the jury to draw reasonable


                                       4
                              STATE v. WYLIE
                             Decision of the Court

inferences from the evidence, and suggest ultimate conclusions.” State v.
Bible, 175 Ariz. 549, 602 (1993). To determine whether a prosecutor’s
remarks during closing argument were improper, we examine whether the
remarks call the jury’s attention to matters that they should not consider for
their verdict and the probability, under the circumstances, that the remarks
influenced the jurors. State v. Jones, 197 Ariz. 290, 305, ¶ 37 (2000) (quotation
omitted). In making that determination, we look at the context of the
comments and examine the entire record and totality of the circumstances.
State v. Rutledge, 205 Ariz. 7, 13, ¶ 33 (2003) (citations omitted).

              a. Pandering

              Wylie argues that the prosecutor made the following
statements intending to “inflame the passions and fears of the jury:”(1) that
A.C. “was made to experience what no 12 year old should ever have to
experience,” watching Wylie and Gomez “beat his brother to death with
baseball bats;” (2) C.C.’s apartment was “his home, his sanctuary;”(3) the
jurors are “wards of justice,” urging that “justice demands” a guilty verdict;
and (4) jurors should “envision yourself” when hearing a “clamor at the
door,” which Wylie argues asked the jurors to “put themselves in the shoes
of the victim.” Wylie concedes that he made no objections, meaning we
review for fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135,
142 ¶ 21 (2018) (citation omitted).

              “Prosecutors have ‘wide latitude’ in presenting their
arguments to the jury” and may argue all reasonable inferences from the
evidence. Morris, 215 Ariz. at 336 ¶ 51 (2007) (quotation omitted). A
prosecutor exceeds that authority by using remarks that “inflame the minds
of jurors with passion or prejudice or influence the verdict in any degree.”
Goudeau, 239 Ariz. at 468, ¶ 210 (quotation omitted).

              The prosecutor’s statements about A.C. accurately
summarized the evidence that A.C. witnessed C.C.’s murder and was
“screaming,” “hysterical” and “going into shock” because of it. The
prosecutor’s comments also reflect argument that Wylie’s actions disturbed
A.C.’s peace, which is an element of disorderly conduct. See A.R.S. 13-
2904(A)(1) (defining disorderly conduct, which includes showing that a
defendant knowingly or intentionally disturbed a person’s peace). We see
nothing inflammatory in the brief description and find no misconduct. See
Jones, 197 Ariz. at 305, ¶ 37; State v. Zaragoza, 135 Ariz. 63, 68 (1983) (“Some
amount of emotion in closing argument is not only permissible, it is to be
expected.”).




                                       5
                             STATE v. WYLIE
                            Decision of the Court

               For similar reasons, the prosecutor did not engage in
misconduct by describing C.C.’s apartment as his “home” and “sanctuary”
on two isolated occasions. The prosecutor first used the terms while arguing
that the jury should consider where the attack happened to assess whether
Wylie’s “conduct was privileged under the law of self[-]defense.” The
prosecutor asked the jury to consider that Wylie drove “some 450 miles”
before arriving at the victim’s “home, to his sanctuary.” He continued,
“This defendant created the situation which called for [violence]. He put
himself in this victim’s apartment. When you create a situation that requires
you to use deadly force by committing a crime, you do not get to claim self[-
]defense.” The second use of “sanctuary” occurred at the end of the
prosecutor’s closing argument: “They cross the line into this victim’s
residence, his sanctuary, and they beat him to death with no less than three
blows to the head and many more to his body.”

               The terms “home” and “sanctuary” did not “improperly
appeal to the jurors’ emotions, passions or prejudices by urging them to
convict [Wylie] for reasons wholly irrelevant to his own guilt or innocence.”
State v. Herrera, 174 Ariz. 387, 397 (1993). The references, first, were relevant
to the residential element of first-degree burglary and, therefore, felony
murder. See A.R.S. § 13-1508(B) (proving first-degree burglary requires
showing that a defendant “entered or remained unlawfully in a residential
structure”); A.R.S. § 13-1105(A)(1) (proving felony murder requires
showing that a defendant caused a person’s death during the commission
of an enumerated felony such as burglary). The prosecutor’s remarks also
aimed at explaining why Wylie’s actions showed he was guilty of
premeditated murder as opposed to manslaughter resulting from adequate
provocation, arguing that Wylie “can’t break into the house and claim self-
defense. And [Wylie] can’t claim adequate provocation to justify his
actions.”

               Wylie further challenges the prosecutor’s two remarks
mentioning “justice.” The first instance occurred while the prosecutor was
discussing reasonable doubt and he stated, “This is a straightforward case,
and you have a serious job to do. You are the wards of justice in the death
of a 20 year old.” The second instance came in the prosecutor’s final
statement of his closing argument: “[T]he State is asking you to find that
the evidence compels and the [sic] justice demands, to find this defendant
guilty of all Counts.”

              Viewed in context, the prosecutor’s “wards of justice”
comment permissibly referred to the jury’s role and duty. See State v. Acuna
Valenzuela, 245 Ariz. 197, 222–23 ¶ 111 (2018) (holding that discussing the


                                       6
                            STATE v. WYLIE
                           Decision of the Court

jury’s role in the justice system is not error within the proper context);
Herrera, 174 Ariz. at 396 (finding no misconduct in a prosecutor’s statements
that “if the [S]tate has met its burden and the law does apply, then you do
your duty so a civilized society can keep going” because the “duty” was to
convict if the State met its burden). Similarly, the prosecutor’s submission
to the jury to do “what justice demands” summarized the State’s argument
that the evidence proved Wylie was guilty of first-degree murder, not a
lesser offense. See Goudeau, 239 Ariz. at 468 ¶¶ 210–11 (finding no
misconduct when the prosecutor told the jury that “[w]e are seeking a just
punishment for what this defendant has done”); see also Jones, 197 Ariz. at
307 ¶ 43 (concluding that the prosecutor’s request for the jury to find
defendant “guilty on behalf of those people and their families and the
people of the State of Arizona” was not misconduct).

             Finally, the prosecutor did not ask the jurors “to place
themselves in the shoes of the victim” in his “envision yourself” comment:

      You have to remember, not only is [C.C.] defending his home,
      his own health, but he has a 12 year old brother in the room
      next door. I want you to envision yourself when is the last
      time you heard a bump in the night, heard clamor, identified
      clamor at the door? How did you react? How did you
      respond? [C.C] had almost no time to react to what was
      coming through his door, while these defendants, this
      defendant had all the time in the world. How much time
      exactly? It depends on when you start the clock for Clark
      Wylie. There are a few major points for reflection that we
      can retrace to the defendant’s path to this murder.

The prosecutor invited the jurors to use a personal experience as a point of
reference to understand C.C.’s reaction time. The prosecutor did not,
however, ask the jurors to consider how each would react being in C.C.’s
place when he saw Wylie and Gomez with baseball bats at his door. Cf.
Morris, 215 Ariz. at 337 ¶¶ 57–60 & n.6 (holding that a prosecutor’s
comments constituted misconduct, but not fundamental error, when the
prosecutor asked which jurors wanted to “volunteer . . . by a show of
hands” to be a victim and describing the facts in detail). In context, the
prosecutor’s argument here again explained why Wylie’s actions were
premeditated; that Wylie was the unprovoked aggressor; and that C.C.’s
retaliation was justified. The statement was not improper. See Herrera, 174
Ariz. at 397.




                                     7
                             STATE v. WYLIE
                            Decision of the Court

              b. Impugning Defense Counsel

               Wylie also contends that the prosecutor impugned defense
counsel’s integrity during closing argument. Specifically, Wyle identifies
the following comments as misconduct: (1) arguing that defense counsel
“overinflate[d]” or “overemphasize[d]” Van Nest’s role; (2) asking the jury
not to be “distracted” by defense counsel’s arguments, referring to them as
“smoke and mirrors”; (3) stating that “defense counsel can’t seem to pick a
lane” because she was hoping that the jury would “pick whichever one gets
her client off”; and (4) arguing that “defense is asking you to split the baby.”
Generally, Wylie argues that the prosecutor committed misconduct by
referring to defense counsel directly (by “defense counsel” or a pronoun)
instead of Wylie’s theories and tactics.

             Wylie objected to two of these statements. Both occurred
during rebuttal argument. After the prosecutor remarked that defense
counsel sought to “get her client off,” defense counsel interjected, “I‘m
going to object.” Following the “smoke and mirrors” comment, defense
counsel objected, “This is improper.” Wylie did not provide a ground or
argument for either objection. The trial court overruled the first objection
on the basis that defense counsel argued Wylie was “guilty of a lesser-
included.” The trial court instructed the prosecutor to rephrase after the
second objection but did not give a ruling.

              A proper objection requires “states the specific ground, unless
it was apparent from the context.” Ariz. R. Evid. 103(a)(1)(B) A general
objection or an objection on a ground other than the one asserted on appeal
does not preserve the issue. Id. Fundamental error review applies when a
defendant fails to object properly to the trial court. Id. Because Wylie’s
unspecified objections did not sufficiently preserve his claims of
prosecutorial misconduct, we review for fundamental, prejudicial error.
Dann, 220 Ariz. at 373 ¶ 125. Assuming arguendo that Wylie’s objections
asserted prosecutorial misconduct, we review for harmless error. Id.
“Regardless of how an alleged error ultimately is characterized, however, a
defendant on appeal must first establish that some error occurred.” State v.
Diaz, 223 Ariz. 358, 360 ¶ 11 (2010).

              None of the challenged remarks constitute error, fundamental
or otherwise. “While commentary about the defense’s theory is common,
[a]n argument that impugns the integrity or honesty of opposing counsel is
. . . improper.” State v. Hulsey, 243 Ariz. 367, 390 ¶ 99 (2018) (quotation
omitted). The prosecutor’s “smoke and mirrors,” “split the baby,” “pick a
lane,” and “whichever gets her client off” statements all occurred during


                                       8
                             STATE v. WYLIE
                            Decision of the Court

rebuttal argument and directly responded to Wylie’s arguments that
“[Wylie] was guilty of manslaughter or second-degree murder” and “the
femme fatal[e], set [Wylie] up for a surprise murder.” See State v. Gillies, 135
Ariz. 500, 510–11 (1983) (stating that a prosecutor may present “fair rebuttal
to an area opened by defense”). The remaining comments occurred during
the State’s initial argument and criticized Wylie’s tactics during trial
blaming Van Nest. See State v. Ramos, 235 Ariz. 230, 237-38 ¶¶ 24–25 (App.
2014) (finding no error from a prosecutor’s comments that defense counsel’s
arguments were distractions or “red herrings” because prosecutors may
criticize “defense theories and tactics”) (quotation omitted). None of the
challenged remarks contain any personal attack, derogatory language, or
accusation directed at defense counsel. See Hulsey, 243 Ariz. at 390 ¶ 99
(finding that a prosecutor’s comments equating defense counsel to Don
Quixote improperly impugned counsel’s integrity); compare State v. Amaya-
Ruiz, 166 Ariz. 152, 171–72 (1990) (finding a prosecutor’s comments that
defense counsel “blind sided witnesses,” used “innuendo and inference,”
made an “outrageous” argument, and accused witnesses were “not
improper . . . and certainly did not rise to the level of fundamental error”),
with State v. Hughes, 193 Ariz. 72, 86 ¶ 61 (1998) (finding misconduct for a
prosecutor’s remarks that defense counsel and experts “fabricated” an
insanity defense without supporting evidence).

               We are also not persuaded by Wylie’s claim that the
prosecutor’s direct references to defense counsel were implicit ad hominem
attacks on her integrity. See Hulsey, 243 Ariz. at 390, ¶ 99. Viewed in context
and as illustrated supra ¶¶ 9–10, the record reveals that throughout opening
statement and closing argument, defense counsel consistently presented
Wylie’s defense using a first-person narrative form (e.g., “I ask,” “I submit,”
“I think,“ and “I told“). The prosecutor’s references to defense counsel
proportionately reflected the form through which counsel presented the
defense’s theories, and we do not find that it rose to the level of misconduct.
See Acuna Valenzuela, 245 Ariz. at 221 ¶¶ 99–100.

              c. Cumulative Effect

               Wylie argues that the cumulative effect of the prosecutor’s
comments deprived him of a fair trial. Determining that none of the
comments were improper, we further find no cumulative effect of
misconduct. State v. Bocharski, 218 Ariz. 476, 492 ¶ 75 (2008) (“Absent any
finding of misconduct, there can be no cumulative effect of misconduct
sufficient to permeate the entire atmosphere of the trial with unfairness.”).
Additionally, the trial court instructed the jury that lawyers’ comments are
not evidence, and we presume jurors follow the court’s instructions. Morris,


                                       9
                             STATE v. WYLIE
                            Decision of the Court

215 Ariz. at 336–37 ¶ 55. Assuming any comments were improper, the trial
court’s instructions “negated their effect,” and no prejudice resulted. Id.

              2. Alleged Sentencing Error

              Wylie argues that the “trial court erred by finding
aggravating factors and imposing an aggravated sentence” for the
disorderly conduct conviction because no aggravators were proven to the
jury. Because Wylie did not object to the sentence, we review his claim for
fundamental, prejudicial error. Escalante, 245 Ariz. at 142 ¶ 21. An illegal
sentence is fundamental error. See State v. Cox, 201 Ariz. 464, 468, ¶ 13 (App.
2002).

              The trial court sentenced Wylie, a category 3 repetitive
offender, to the aggravated term of 5.75 years for disorderly conduct, the
longest possible sentence for such a conviction. A sentence to the
aggravated term requires at least two aggravators to be found under A.R.S.
§ 13-701(D), and a jury must find at least one aggravator for any sentence
exceeding the maximum term, A.R.S. §§ 13–701(F), –703(K); Blakely v.
Washington, 542 U.S. 296, 301 (2004). Wylie stipulated to five prior felony
convictions, thereby providing one permissible aggravator under A.R.S.
§ 13-701(D)(11), but the State did not prove any aggravators to the jury.
Despite the absence of a jury finding, the trial court found additional
aggravating factors, including the presence of accomplices, A.C.’s age, and
the “trauma” A.C. suffered. The State concedes that the trial court
fundamentally erred but argues that the error was not prejudicial. We agree
with the State.

               “Blakely error . . . can be harmless if no reasonable jury, on the
basis of the evidence before it, could have failed to find [the factors] . . .
necessary to expose the defendant to the sentence imposed.” State v.
Hampton, 213 Ariz. 167, 183 ¶ 72 (2006) (citation omitted). Here, no
reasonable jury could have failed to find the presence of Wylie’s
accomplices (namely, Gomez and Van Nest). See A.R.S. §§ 13–701(D)(4), –
301 (defining accomplice). Likewise, no reasonable jury could have failed
to find that Wylie caused A.C. emotional harm. See A.R.S. § 13–701(D)(9).
Wylie did not dispute the underlying facts at trial concerning the presence
of accomplices or A.C.’s traumatic experience. And Wylie does not argue
on appeal that a reasonable jury could have failed to find either factor.
Accordingly, Wylie has not satisfied his burden to establish prejudice. See
Escalante, 245 Ariz. at 142 ¶ 21.




                                       10
              STATE v. WYLIE
             Decision of the Court

                CONCLUSION

For the foregoing reasons, we affirm.




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




                         11
