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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     MICHAEL A. ABBOTT, Appellant.

                             No. 1 CA-CR 14-0046
                               FILED 5-26-2015

           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-007859-001
                 The Honorable Robert E. Miles, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

The Nolan Law Firm, PLLC, Mesa
By Cari McConeghy Nolan, Todd E. Nolan
Counsel for Appellant
                           STATE v. ABBOTT
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Chief Judge Diane M. Johnsen
joined.


O R O Z C O, Judge:

¶1            Michael A. Abbott appeals his convictions and sentences for
aggravated assault and endangerment. Abbott argues that the trial court
erred by denying his motion to continue, admitting evidence of his blood
alcohol content (BAC) and giving a deficient jury instruction. He also
claims that he was denied a fair trial due to prosecutorial misconduct. For
reasons that follow, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            During the early morning hours of November 26, 2011,
Abbott drove through warning flares and rear-ended a tow truck parked
on the roadway at an intersection closed by police due to an unrelated
rollover accident. The police officer maintaining the flares in the roadway
to signal the traffic diversion had to jump out of the way to avoid being
struck by Abbott’s vehicle. Three other officers were near the tow truck
when Abbott’s vehicle hit it.

¶3           The passenger in Abbott’s vehicle was seriously injured in the
collision. Abbott had no outward signs of trauma, but he appeared dazed
and stumbled as he walked to the officer’s vehicle. Abbott denied drinking,
but his eyes were bloodshot and watery and his breath smelled of an
alcoholic beverage. An officer attempted to perform a horizontal gaze
nystagmus test, but Abbott either would not or could not participate in the
test.

¶4           Paramedics arrived on the scene and air-evacuated Abbott
and his passenger to the hospital. A hospital nurse who attended to Abbott



1      On appeal, this court views the evidence in the light most favorable
to sustaining the convictions. State v. Karr, 221 Ariz. 319, 320, ¶ 2 (App.
2008).


                                    2
                             STATE v. ABBOTT
                            Decision of the Court

provided the police with two vials of Abbott’s blood. Subsequent testing
of the blood revealed that Abbott’s BAC was 0.255 percent.

¶5            A grand jury indicted Abbott on one count of aggravated
assault, a class 3 felony and dangerous offense, and four counts of
endangerment, each a class 6 felony and dangerous offense. After a jury
trial, Abbott was found guilty of aggravated assault and one count of
endangerment as charged but was acquitted of the three other
endangerment charges. The trial court sentenced Abbott to a presumptive,
concurrent prison term of 7.5 years on the aggravated assault conviction
and 2.5 years on the endangerment conviction. Abbott timely appealed.
This court has jurisdiction pursuant to the Article 6, Section 9 of the Arizona
Constitution and Arizona Revised Statutes (A.R.S.) sections 12–120.21.A.1,
13–4031, and 13–4033.A.1 (West 2015).2

                               DISCUSSION

    I.    Motion to Continue Was Properly Denied.

¶6             Abbott argues the trial court violated his rights to due process
and a fair trial by denying his motion to continue the trial. We review a
denial of a motion to continue for abuse of discretion. State v. Barreras, 181
Ariz. 516, 520 (1995). The trial court does not abuse its discretion in denying
a continuance unless, considering all the circumstances of the case, the
decision “substantially prejudiced the defendant.“ Id. (citation omitted).

¶7             Abbott filed an untimely motion to continue the day before
trial was set to begin. At the hearing on the motion, Abbott explained he
was requesting the continuance because he had just learned that drug
charges were recently filed against him in an unrelated matter and he
wanted to determine if a global plea agreement could be reached with the
State. In denying the motion, the trial court stated that the parties were free
to discuss a global resolution of the two cases but the trial would proceed
as scheduled.

¶8            The trial court acted well within its discretion in denying the
motion to continue. It had already granted several continuances at Abbott’s
request and the charges in this case were more than a year old. Moreover,
the motion to continue had nothing to do with Abbott’s ability to present
his defense or obtain a fair trial, but rather a delay was requested solely to
engage in plea bargaining. There is, however, no right to a plea agreement

2      Absent material revisions after the relevant dates, we cite the current
version of statutes and rules unless otherwise indicated.


                                      3
                             STATE v. ABBOTT
                            Decision of the Court

in Arizona. State v. Morse, 127 Ariz. 25, 31 (1980). Abbott fails to show that
his rights to due process and a fair trial were substantially prejudiced by
the denial of the motion to continue.

   II.     Admission of Blood Evidence Was Proper.

¶9            The State presented evidence of Abbott’s BAC to prove that
his conduct in causing the collision was reckless. Abbott argues the
admission of this evidence was error because: 1) there was insufficient
foundation to admit the BAC evidence, and 2) prosecutorial misconduct
occurred in the admission of the BAC evidence because the police obtained
his blood without a warrant. We review the admission of evidence for
abuse of discretion. State v. Robinson, 165 Ariz. 51, 56 (1990).

¶10           Because Abbott did not object to the admission of the BAC
evidence in the trial court based on the arguments advanced on appeal, he
has forfeited appellate review of these issues except for fundamental error.
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005); see also State v. Hamilton,
177 Ariz. 403, 408-09 (App. 1993) (holding that an objection to evidence on
one ground fails to preserve other issues on appeal). To show fundamental
error, Abbott “bears the burden to establish that (1) error exists, (2) the error
is fundamental, and (3) the error caused him prejudice.” State v. James, 231
Ariz. 490, 493, ¶ 11 (App. 2013) (citations and internal quotations omitted).

              A. Insufficient Foundation

¶11            Abbott argues there was insufficient foundation to admit the
BAC evidence because the State failed to establish a proper chain of custody
for the blood drawn from him. Arizona Rule of Evidence 901(a) sets forth
the requirements for authenticating and identifying evidence and “governs
the sufficiency of an evidentiary foundation.” State v. Lavers, 168 Ariz. 376,
386 (1991). “An item is authenticated when there is ‘evidence sufficient to
support a finding that the [item] . . . is what [the] proponent claims [it is].’”
State v. McCray, 218 Ariz. 252, 256, ¶ 9 (2008) (quoting Arizona Rule of
Evidence 901(a)). When the foundation for the admission of evidence is
based on a chain of custody, “evidence can be admitted ‘notwithstanding
the inability of the state to show a continuous chain of custody . . . unless a
defendant can offer proof of actual change in the evidence, or show that the
evidence has, indeed, been tampered with.’“ Id. at ¶ 11 (quoting State v.
Ritchey, 107 Ariz. 552, 557 (1971)).

¶12          Abbott makes no showing his blood was altered, changed, or
tampered with before being tested. His argument on appeal is limited to
the discrepancy in times testified to by the nurse and the officer as to when


                                       4
                             STATE v. ABBOTT
                            Decision of the Court

the blood was transferred to the officer and the fact that there were three
vials of blood in the blood kit rather than only two as the officer testified.

¶13           The officer testified that the blood vials were given to him by
the nurse two minutes after the blood was drawn, but the nurse testified
that the transfer would not have occurred for a minimum of five minutes
after it was drawn. This timing discrepancy does not establish any gap in
the chain of custody. The nurse testified that the blood vials were in his
possession from the time the blood was drawn until the vials were
transferred to the officer. The inconsistency between the testimony of the
nurse and the officer as to the precise times when the blood was drawn and
when it was given to the officer goes to the weight of the evidence, not its
admissibility. See McCray, 218 Ariz. at 257, ¶ 15.

¶14            Likewise, the fact that there were three vials of blood in the
blood kit received by the Department of Public Safety laboratory for testing
when the officer testified to only receiving two from the nurse does not
render admission of the BAC evidence erroneous. The criminalist who
tested the blood testified that the blood kit was sealed when he received it
and showed no signs of tampering. Moreover, all three vials had identical
labels identifying them as containing blood drawn from Abbott. This
evidence, together with the nurse’s testimony that he was certain that the
vials he gave the officer contained only Abbott’s blood, was more than
sufficient to permit a finding that the blood tested by the criminalist was
Abbott’s, notwithstanding that the officer recalled receiving only two vials.

              B. Prosecutorial Misconduct

¶15           Following the third day of trial, Abbott moved to suppress the
BAC evidence, arguing his blood was improperly collected because a search
warrant was not obtained for the blood draw. Abbott based his motion on
Missouri v. McNeely, 133 S. Ct. 1552, 1563 (2013), which rejected the
argument that the metabolization of alcohol creates a per se exigency
justifying an exception to the Fourth Amendment’s search warrant
requirement for nonconsensual blood testing in all drunk-driving cases.
The Supreme Court held that “while the natural dissipation of alcohol in
the blood may support a finding of exigency in a specific case . . . it does not
do so categorically. Whether a warrantless blood test of a drunk-driving
suspect is reasonable must be determined case by case based on the totality
of the circumstances.” Id. In ruling on Abbott’s motion to suppress, the
trial court did not decide whether the warrantless collection of his blood
was unconstitutional under McNeely, but it instead denied the motion as




                                       5
                             STATE v. ABBOTT
                            Decision of the Court

untimely and, in the alternative, that the BAC evidence would be
admissible under the good faith exception to the exclusionary rule.

¶16             On appeal, Abbott does not challenge the trial court’s ruling
denying his motion to suppress the BAC evidence. Instead, Abbott
attempts to re-characterize the admission of the BAC evidence as one of
prosecutorial misconduct, arguing the prosecutor violated his right to due
process by introducing “constitutionally defective” evidence. As refined
at oral argument, Abbott’s claim is specifically that prosecutorial
misconduct occurred when the prosecutor failed to inform Abbott’s counsel
at a pre-trial settlement conference that the first blood draw performed on
Abbott was done without a warrant. By failing to note this at the settlement
conference, Abbott contends the prosecutor knowingly allowed the jurors
to rely on unconstitutional evidence.

¶17            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)). The fatal flaw in Abbott’s effort to frame
his claim on appeal as prosecutorial misconduct is that Abbott can merely
speculate that the prosecutor knowingly withheld information from
Abbott’s counsel at the settlement conference. Moreover, even if the
prosecutor knew the evidence from the first blood draw was performed
without a warrant, there is simply no misconduct by a prosecutor in relying
on evidence deemed admissible by a trial court. See State v. Dixon, 226 Ariz.
545, 549, ¶ 8 (2011) (stating it is “plainly not misconduct” that a prosecutor
presented evidence that the trial court ruled admissible); State v. Skinner,
110 Ariz. 135, 147 (1973) (holding “we find no specific misconduct on the
part of the prosecutor in calling [the witness] to the stand since the court
had given permission for him to do so”). This is true even if it is
subsequently determined that the trial court erred in its ruling. See State v.
Corrales, 138 Ariz. 583, 589 (1983) (noting that a prosecutor who relied on a
trial court ruling later found erroneous “did not commit misconduct by
following the order which the court had made”)

¶18            Given our conclusion that Abbott fails to state a viable claim
of prosecutorial misconduct, we need not address Abbott’s contention that
the warrantless hospital blood draw was unconstitutional under McNeely
or the State’s argument that, because Abbott’s blood was collected before
the decision in McNeely in accordance with existing Arizona law, the BAC


                                      6
                               STATE v. ABBOTT
                              Decision of the Court

evidence would be admissible in any case under the good faith exception
to the exclusionary rule. See Davis v. United States, 131 S. Ct. 2419, 2423-24
(2011) (holding “searches conducted in objectively reasonable reliance on
binding appellate precedent are not subject to the exclusionary rule”).

   III.      Endangerment Instruction.

¶19            Abbott contends the trial court erred in instructing the jury on
the offense of endangerment. He claims the endangerment instruction was
an incorrect statement of the law because it did not require that the jury find
as an element of the offense that he was aware of and disregarded a
substantial risk that his conduct would cause imminent death.

¶20           “The purpose of jury instructions is to inform the jury of the
applicable law in understandable terms.” State v. Noriega, 187 Ariz. 282, 284
(App. 1996). We review the instructions as a whole “to determine if they
adequately reflected the law.” State v. Cordova, 198 Ariz. 242, 245, ¶ 11 (App.
1999). “We will reverse only if the instructions, taken together, would have
misled the jurors.“ State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998).

¶21             “A person commits endangerment by recklessly
endangering another person with a substantial risk of imminent death or
physical injury.” A.R.S. § 13-1201.A. Endangerment is a class 6 felony
when it “involv[es] a substantial risk of imminent death. . . . In all other
cases, it is a class 1 misdemeanor.” A.R.S. § 13-1201.B. The instruction
given by the trial court tracked the statutory language for felony
endangerment:

                The crime of endangerment requires proof that the
          defendant recklessly endangered another person with a
          substantial risk [of] imminent death.

¶22           The trial court also instructed the jury on the definition of
“recklessly” as follows:

                 Recklessly means that a defendant is aware of and
          consciously disregards a substantial and unjustifiable risk
          that conduct will result in physical injury. The risk must be
          such that disregarding it is a gross deviation from what a
          reasonable person would do in the situation.

                  A person who created such a risk, but was unaware of
          it solely because of voluntary intoxication also acts recklessly
          with respect to such a risk.


                                         7
                                 STATE v. ABBOTT
                                Decision of the Court

This language fully and correctly instructed the jury on all the
elements of endangerment. The trial court did not err in instructing
the jury on the offense of endangerment.

   IV.       Closing Argument

¶23          Abbott contends he was denied a fair trial because the
prosecutor brought improper matters to the jury’s attention during closing
argument. Specifically, Abbott challenges references by the prosecutor to
public campaigns against drunk driving such as Mothers Against Drunk
Driving and electronic highway billboard slogans that state “Drive
Hammered Get Nailed” in arguing that Abbott was reckless:

         And in today’s day [and] age where the impact of impaired
         drivers is so publicized and so well known, you got
         organizations like MADD, Mothers Against Drunk Driving,
         there [are] new stories all the time. You can’t even drive your
         car in this city over a Labor Day weekend without seeing
         those signs on the freeway above you, saying something,
         drive hammered get nailed, those kinds of things.

         You cannot be part of today’s society and not know that
         getting behind the wheel when you are a .255 blood alcohol
         concentration is not safe.

         In fact, it is senseless.

         Or wait I have to sound like a lawyer. It is reckless.

¶24          Abbott argues that the prosecutor’s references to the public
campaigns against drunk driving were improper because no evidence was
introduced at trial regarding them. Because Abbott did not object at trial to
the prosecutor’s alleged misconduct, our review of this claim is limited to
fundamental error. State v. Roque, 213 Ariz. 193, 228, ¶ 154 (2006).

¶25            To determine whether a prosecutor’s remarks are improper,
we consider whether they called to the jury’s attention matters it would not
be justified in considering, and the probability, under the circumstances,
that it was influenced by the remarks. State v. Newell, 212 Ariz. 389, 402, ¶
60 (2006). A claim of prosecutorial misconduct warrants reversal only if
“(1) misconduct is indeed present [,] and (2) a reasonable likelihood exists
that the misconduct could have affected the jury’s verdict, thereby denying
defendant a fair trial.“ State v. Moody, 208 Ariz. 424, 459, ¶ 145 (2004)
(citation omitted).


                                         8
                            STATE v. ABBOTT
                           Decision of the Court

¶26           “[P]rosecutors have wide latitude in presenting their closing
arguments to the jury[.]” State v. Jones, 197 Ariz. 290, 305, ¶ 37 (2000).
Though it is improper to refer to matters not in evidence during closing
argument, references may be made to subjects that are “common
knowledge or are illustrations drawn from common experience, history or
literature.” Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 48 (App.
1996). Abbott has not shown that the prosecutor ran afoul of this limitation
in arguing that everyone in today’s society, including Abbott, cannot help
but know that drunk driving is unsafe in light of the ubiquitous public
campaigns directed at that subject. On this record, Abbott has not shown
fundamental error amounting to reversible prosecutorial misconduct in the
prosecutor’s closing argument.

                              CONCLUSION

¶27           For the reasons stated, we affirm Abbott’s convictions and
sentences.




                                  :ama




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