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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          KOYOYA ISSA, Appellant.

                             No. 1 CA-CR 16-0619
                               FILED 11-14-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-126046-001
               The Honorable John Christian Rea, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Jason Lewis
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant



                       MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.
                              STATE v. ISSA
                            Decision of the Court

J O H N S E N, Judge:

¶1           Koyoya Issa appeals his conviction and sentence for
misconduct involving weapons, a Class 4 felony and repetitive offense. We
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Phoenix police executed a traffic stop of a raised sport utility
vehicle Issa was driving.1 After officers activated their colored lights to
signal Issa to stop, he continued driving for an eighth to a tenth of a mile
before he pulled into a strip mall. As officers followed Issa's vehicle, they
saw him leaning over to the right, reaching toward the passenger side three
or four times—suggesting he might be attempting to access the glove box
of the car. After Issa's SUV came to a stop, officers saw him make another
similar motion toward the right side of the passenger compartment.

¶3            When an officer approached and asked Issa if any weapons
were in the vehicle, Issa at first changed the subject. Asked a second time,
Issa glanced toward the right side of the vehicle before denying there were
any weapons in the vehicle. When Issa would not provide identification,
the officer removed him from the SUV and walked with him to the rear of
the vehicle. Issa then told the officer that his identification was in the car's
driver's-side door panel. Leaving Issa with the other officer, the first officer
then approached the driver's side of the SUV again. With the driver's-side
door open, the officer saw the grip and the top (the "slide") of a handgun
sticking out from beneath the front-left side of the front-passenger seat
cushion, which was completely detached from the seat frame and raised
three to four inches. A records check later revealed that Issa was a
convicted felon and prohibited possessor.

¶4             At trial, Issa's defense was that he had not put the gun in the
vehicle and did not know it was there. Issa's live-in girlfriend testified the
handgun was hers, and said she had taken it from a locked box in her closet
in their home and put it under the front-passenger seat cushion of the SUV
because a rambunctious young nephew was visiting their home. She
testified she had forgotten to tell Issa she had hidden the gun in the vehicle
before she asked him to pick up something at the store. She testified she




1     We view the evidence in the light most favorable to supporting the
conviction. State v. Boozer, 221 Ariz. 601, 601, ¶ 2 (App. 2009).


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                            Decision of the Court

placed the gun under the side of the front-passenger seat cushion closer to
the driver. She further stated the gun did not cause the cushion to bulge.

¶5            Issa's first trial ended in a hung jury. In his second trial, the
jury convicted him of misconduct involving weapons. The court sentenced
Issa to a presumptive term of 4.5 years in prison. Issa filed a timely notice
of appeal. This court has jurisdiction pursuant to Arizona Revised Statutes
("A.R.S.") sections 12-120.21(A)(1) (2017), 13-4031 (2017) and -4033(A)
(2017).2

                               DISCUSSION

A.      Purported Prosecutorial Misconduct During Closing Argument.

¶6           Issa argues that during closing argument, the prosecutor
repeatedly misstated the law on constructive possession and the burden of
proof, depriving him of a fair trial.

¶7             We will reverse a conviction for prosecutorial misconduct
only when "(1) misconduct is indeed present; and (2) a reasonable
likelihood exists that the misconduct could have affected the jury's verdict,
thereby denying [the] defendant a fair trial." State v. Martinez, 218 Ariz. 421,
426, ¶ 15 (2008). "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 (2007) (quotation omitted).
"The misconduct must be so pronounced and persistent that it permeates
the entire atmosphere of the trial." Id. (quotation omitted).

¶8            Because Issa failed to object at trial to any of the prosecutor's
alleged misstatements, we review only for fundamental error. See State v.
Henderson, 210 Ariz. 561, 568, ¶ 22 (2005). As applied here, that means that
Issa has the burden of proving that the prosecutor engaged in misconduct,
that the error was fundamental in nature and that he was prejudiced
thereby. Id. at 567, ¶ 20. Fundamental error is "error going to the
foundation of the case, error that takes from the defendant a right essential
to his defense, and error of such magnitude that the defendant could not
possibly have received a fair trial." Id. at 567, ¶ 19 (quotation omitted).




2      Absent material revision after the relevant date, we cite the current
version of statutes.


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       1.     Constructive possession.

¶9             "A person commits misconduct involving weapons by
knowingly . . . [p]ossessing a deadly weapon . . . if such person is a
prohibited possessor." A.R.S. § 13-3102(A)(4) (2017). "'Possess' means
knowingly to have physical possession or otherwise to exercise dominion
or control over property." A.R.S. § 13-105(34). As charged here, the State
had the burden to prove that Issa knew the gun was in the vehicle and that
he exercised control over it. State v. Cox, 217 Ariz. 353, 357, ¶ 26 (2007). Issa
argues that the prosecutor misstated the law by repeatedly arguing that as
soon as Issa saw the handgun within his reach in the SUV, he constructively
possessed it.

¶10            At the beginning of the prosecutor's discussion during closing
argument of whether Issa possessed the gun, the prosecutor invited the jury
to assume "for the sake of the argument" that everything that Issa's
girlfriend said was true. He then continued:

       The next question that comes to your mind . . . is probably
       going to be, okay, at what point does the defendant have to
       knowingly possess the gun for me to vote guilty? How long
       does he have to knowingly possess a firearm? Does it matter
       when, over the course of his trip in the Expedition, he realizes
       it's there?

              Is there a legal difference between, for example, the
       defendant climbing into the car, noticing the gun as he gets
       in, and driving around with it anyway? Or a difference
       between that or seeing the red-and-blues come on behind
       him, glancing over as he is trying to pick up a fuse in the
       center console of the car and realizing there is a gun stuck
       under the passenger's seat, lying to the cops about it in a
       moment of panic? And the answer to that question is no.

               The two are legally indistinguishable because knowing
       possession happens the instant that you combine those two
       things: control over the gun, being in a place in which it's
       within your grasp, within your reach, you can reach over []
       and grab it and use it if you wanted to, and knowledge that
       it's there. It doesn't have to happen for any length of time.

              And so, legally, it doesn't really matter if—whether
       you believe the defendant climbed into the car with the gun
       on his hip and tried to stash it after the cops pulled him over


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                             Decision of the Court

       or whether he climbed in, [his girlfriend] having,
       unbeknownst to him, put it there earlier, but realizing at some
       point during his trip that it was in fact there, and lying to the
       police about it to try not to get caught.

The prosecutor continued to argue at considerable length that the jury
could find Issa guilty if it found that "at some point in that hour-long drive
that he is taking from the apartment to being pulled over, as long as, at some
point, he realizes [the gun is] there and it's within his grasp."3

¶11         A person does not "exercise dominion or control" of
contraband merely by knowingly being within reach of it.

       Constructive possession exists when the prohibited property
       is found in a place under the defendant's dominion or control
       and under circumstances from which it can be reasonably
       inferred that the defendant had actual knowledge of the
       existence of the property. . . . [H]owever, the mere presence

3       This argument was an alternative to the State's chief theory, which
the prosecutor emphasized in his second closing argument. That argument
was that Issa not only knew the handgun was in the car but was trying to
conceal it by stuffing it under the passenger seat cushion when officers saw
him leaning over in that direction before he stopped the car. As the
prosecutor reminded the jury, officers found nothing else on the passenger
seat of the SUV that Issa might have been reaching for as he repeatedly
leaned over in that direction. The prosecutor urged the jury to reject the
girlfriend's testimony that she had placed the gun under the cushion,
pointing out that the maneuver the girlfriend described (standing outside
the passenger side of the raised SUV and reaching over to place the loaded
handgun under the cushion so that it was nearer the driver's side, with the
butt of the gun protruding toward the driver from beneath the seat cushion)
would have been awkward for her to perform. Moreover, the prosecutor
argued that the evidence showed that the handgun would have been easily
visible to Issa beneath the cushion because as he entered the car from the
driver's side and as he sat in the driver's seat, he had the same view of the
passenger seat cushion as the officer who approached the car to look for his
identification after the stop. (That officer testified that with the driver's side
door open, he quickly saw the handgun protruding from beneath the
passenger seat cushion, which itself was noticeably raised up.) As the
prosecutor said, "We're left with evidence that all points to beyond any
reasonable doubt the defendant, knowing from the start that he had a gun,
trying to hide it, trying to conceal it, and trying to lie about it."


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                              STATE v. ISSA
                            Decision of the Court

       of a person where prohibited property is found is insufficient
       to show the person knowingly exercised dominion or control
       over it.

State v. Cox, 214 Ariz. 518, 520, ¶ 10 (App. 2007), aff'd, 217 Ariz. 353 (2017);
see Cox, 217 Ariz. at 357, ¶ 27 n.4 (declining to adopt broad rule that driver
always controls weapons within vehicle); cf. State v. Ottar, 232 Ariz. 97, 101,
¶¶ 12–13 (2013) (in a reverse-sting operation, defendant "does not possess
drugs merely by touching or inspecting them," but only when he "exerts
some control over or manifests an intent to control the drugs").

¶12            Accordingly, the prosecutor incorrectly stated the law when
he told the jury that it could convict Issa if it found he was aware that the
gun was within his reach in the car for even a brief moment. Although
"[e]ach side is permitted to argue its version of the evidence . . . [t]he state
may not misstate the law to the jury." State v. Serna, 163 Ariz. 260, 266 (1990).

¶13            Although improper, the argument Issa now challenges did
not go to the foundation of Issa's case, take from him a right essential to his
defense or deny him a fair trial. This is because, as noted, Issa's defense was
that "he did not know at any point that the gun was in the car." During
closing argument, Issa's lawyer argued the gun tucked under the seat
cushion was not easily visible and questioned the suggestion in the officers'
testimony that they saw Issa reach over toward the gun after the officers
activated the patrol car's flashing lights. (Defense counsel argued the
prosecution's theory that Issa leaned over the armrest to stuff the gun under
the seat as police approached was inconsistent with the testimony that
although the officers saw him lean toward the passenger side, they did not
see his shoulders dip down and did not see him bend forward.) During
closing, Issa's lawyer further challenged the officer's statement that the
passenger seat cushion was raised as high as three or four inches, and, more
fundamentally, argued that if the officer could not spot the gun until he
approached the car after Issa had stepped out of the front seat, then "how
was [Issa] able to see it from where he was sitting?"

¶14           In addition, and consistent with his defense that he never saw
the gun, Issa did not request, and the court did not give, an instruction on




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                              STATE v. ISSA
                            Decision of the Court

mere presence, and defense counsel mentioned that "[m]ere presence is not
enough" only once in passing in his closing argument.4

¶15            Finally, we note that the superior court's instructions that
possession required that Issa "knowingly . . . exercise . . . control over" the
gun, that the jury must follow its instructions on the law, and that the State
had the burden of proving beyond a reasonable doubt each element of the
offense minimized any prejudice from the prosecutor's erroneous
argument.

¶16          On this record, the prosecutor's argument did not constitute
fundamental, reversible error. Exercise of dominion or control may be
proved by direct or circumstantial evidence. See State v. Villalobos Alvarez,
155 Ariz. 244, 245 (App. 1987). Here, there was ample circumstantial
evidence that Issa exerted control over the gun by, at a minimum, reaching
over toward the passenger seat where police found the gun shoved under
the cushion.

       2.     Burden of proof.

¶17          Issa also argues the prosecutor improperly shifted the burden
of proof by arguing in closing that the jury should apply every bit of
skepticism to evidence offered by the defense that it would apply to
evidence offered by the State, and by asserting that "[i]t is not enough for
the defendant to throw every theory at the wall and see what sticks, but to
present something that is reasonable and real that rises to the level of
evidence that defeats the overall picture of the case in a reasonable way."

¶18           Issa has failed to meet his burden on fundamental error
review. It is well settled that:

       [w]hen a prosecutor comments on a defendant's failure to
       present evidence to support his or her theory of the case, it is
       neither improper nor shifts 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.

State v. Sarullo, 219 Ariz. 431, 437, ¶ 24 (App. 2008) (prosecutor did not shift
the burden of proof by arguing defendant had failed to call expert witnesses

4      The court gave the standard jury instruction defining possession. See
Rev. Ariz. Jury Instr. ("RAJI") Stat. Crim. 4 at 30, Std. Crim. 37. The
instruction defines "[d]ominion or control" as "either actual ownership of
the object or power over it." Id.


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                               STATE v. ISSA
                             Decision of the Court

to support his theory of defense). By the same token, it is not improper for
the prosecutor to encourage the jury to treat the defendant's evidence with
the same skepticism it treats the state's evidence. Cf. id. (acceptable to
comment on defendant's lack of evidence). To the extent, however, that the
prosecutor's suggestion in rebuttal argument might have been construed to
shift the burden of proof, the court's instructions that the law does not
require a defendant to produce evidence or to prove his innocence, and the
State has the burden of proof, were sufficient to cure any harm. State ex rel.
McDougall v. Corcoran, 153 Ariz. 157, 158–60 (1987) (cautionary instruction
that defendant was not required to produce any evidence or prove his
innocence was sufficient to cure any harm).

       3.     Cumulative error.

¶19            Finally, we are not persuaded that the "prosecutor
intentionally engaged in improper conduct and did so with indifference, if
not specific intent, to prejudice the defendant," as necessary to reverse on
the basis of cumulative error. State v. Gallardo, 225 Ariz. 560, 568, ¶ 35
(2010).

B.     Denial of Mistrial.

¶20           Issa argues the superior court abused its discretion in denying
his motion for a mistrial after a detective testified in violation of a pretrial
order that the area where officers stopped Issa "is infested with gangs and
gang members."

¶21            Issa filed a pretrial motion to preclude officers from testifying
they were assigned to a gang unit and that the area of the traffic stop was
known to be inhabited by a gang and to experience gang-related crimes, on
the ground Issa was not a gang member and evidence relating to gangs
would not be relevant. The court ruled officers would be allowed to
identify "their training and their assignments, going up through what their
current assignment is," and could be questioned as to "whether there was
any evidence of gang affiliation by the defendant or anything that tipped
them off that this would be related to a gang incident." The court ruled,
however, that,

       [a]s to the area of patrol, the officers are to be instructed to just
       refer to the geographic boundaries and not a description of
       this as a high crime area because that's not relevant to the type
       of charge that the defendant is defending against in this case,
       so just the geographic boundaries of their area of patrol . . .



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                              STATE v. ISSA
                            Decision of the Court

       high crime and all of those issues, those are not relevant either
       to the charges against the defendant.

¶22         On direct examination during the second day of trial,
however, a detective volunteered that as he approached Issa's vehicle, he
was keeping an eye on him

       as well as any other individuals that are in close proximity to
       us based on there is a lot of violence that occurs in that area.
       It is infested with gangs and gang members and stuff like that.
       So my duty is to kind of keep an eye on the individual and the
       vehicle, as well as the surrounding individuals in that parking
       lot.

At a recess soon after, defense counsel moved for a mistrial on the ground
that the court had precluded any reference to the area "as being a high crime
area and lots of gang activities." The court denied the motion for mistrial
but invited defense counsel to suggest "any other sort of remedy." Defense
counsel asked only "that it not be referred to again."

¶23            A declaration of mistrial is "the most dramatic remedy for trial
error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted." State v.
Dann, 205 Ariz. 557, 570, ¶ 43 (2003). In determining whether to grant a
mistrial, a judge should consider whether the testimony called the jurors'
attention to matters that they would not be justified in considering in
reaching a verdict and the probability under the circumstances that the
testimony influenced the jurors. State v. Bailey, 160 Ariz. 277, 279 (1989).
We review a court's denial of mistrial for abuse of discretion. State v. Jones,
197 Ariz. 290, 304, ¶ 32 (2000).

¶24           The court did not abuse its discretion. As an initial matter,
the pretrial order on the motion in limine permitted the officers to testify
about their assignment to the gang unit and their training and experience
as gang detectives, and permitted reference in closing argument to this
experience. As for the testimony given in violation of the pretrial ruling,
the court was in the best position to determine whether the reference to the
area as a high crime area infested with gang members would have
influenced the jurors. See Jones, 197 Ariz. at 304, ¶ 32. We cannot say the
court abused its discretion in concluding that the single brief reference
would have influenced the jury. Moreover, defense counsel eliminated any
possible prejudice by eliciting testimony on cross-examination of the




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                           STATE v. ISSA
                         Decision of the Court

detective that the charge against Issa did not "have anything to do with
gangs."

                            CONCLUSION

¶25          For the foregoing reasons, we affirm Issa's conviction and
sentence.




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




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