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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JAMES RODRIGO HIGUERA, Appellant.

                             No. 1 CA-CR 15-0023
                               FILED 1-26-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-152694-002
            The Honorable Brian Kaiser, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
                           STATE v. HIGUERA
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1           James Rodrigo Higuera appeals his convictions and sentences
for two counts of aggravated driving under the influence (“DUI”). For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            A gas station customer observed Higuera “passed out” in his
truck next to one of the pumps at around 2:00 p.m. The truck’s engine was
not running, but the customer called the police worried that Higuera might
need medical attention. Officer Lynch arrived and noticed Higuera
slumped over the steering wheel. Lynch eventually succeeded in waking
Higuera who appeared “very confused . . . [and] very out of it.” Higuera
denied having consumed alcohol or drugs, and he also denied driving to
the gas station.

¶3           Officer Kuntz, a drug recognition expert, arrived and
observed Higuera exhibiting signs of impairment. The keys to the truck
were in Higuera’s pocket, and when Kuntz requested them to start the
truck, Higuera explained the ignition was malfunctioning and a key was
not required to start the engine. Higuera also explained that his friend
“Cricket” had driven the truck to the gas station.

¶4            Higuera declined to perform field sobriety tests or to
voluntarily submit to a blood draw. Kuntz then secured a search warrant
and obtained a sample of Higuera’s blood. Subsequent testing of the
sample revealed the presence of methamphetamine, amphetamine,
cannabinoids, and methadone. Specifically, one milliliter of Higuera’s
blood contained 508 nanograms of methamphetamine and 89 nanograms
of amphetamine.




                                    2
                            STATE v. HIGUERA
                            Decision of the Court

¶5            The State charged Higuera with two counts of aggravated
DUI.1 He testified at trial, but the jury returned guilty verdicts. Higuera
was subsequently sentenced to concurrent prison terms of four months,
followed by three years of concurrent probation for each offense. We have
jurisdiction over this appeal 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).2

                               DISCUSSION

¶6          Higuera raises two issues on appeal. He argues that the
charged DUI offenses are duplicitous. He also contends prosecutorial
misconduct denied him a fair trial.

¶7             Higuera correctly notes that we review both issues for
fundamental error because he did not raise either argument at trial. See
State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (failure
to object to alleged trial error results in fundamental error review). To
obtain relief under fundamental error review, Higuera has the burden to
show that error occurred, the error was fundamental and that he was
prejudiced thereby. See id., at 567, ¶ 20, 115 P.3d at 607. Fundamental error
is error that “goes to the foundation of his case, takes away a right that is
essential to his defense, and is of such magnitude that he could not have
received a fair trial.” Id. at 568, ¶ 24, 115 P.3d at 608. The showing required
to establish prejudice “differs from case to case.” Id. at ¶ 26. A defendant
“must show that a reasonable jury, applying the appropriate standard of
proof, could have reached a different result.” Id. at 569, ¶ 27, 115 P.3d at
609. Speculation about how a purported error may have resulted in
prejudice is insufficient; the prejudice must affirmatively appear in the
record. State v. Trostle, 191 Ariz. 4, 13-14, 951 P.2d 869, 878-79 (1997); State
v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006).




1 Higuera’s driver’s license was suspended at the time of the incident. The
State also charged Higuera with possessing drug paraphernalia and an
additional count of aggravated DUI based on an allegation that he was
required to have an ignition interlock device on his vehicle. Those counts
were dismissed before the case went to the jury.
2 We cite the current version of the applicable statutes unless otherwise

noted.

                                       3
                            STATE v. HIGUERA
                            Decision of the Court

I.     Duplicitous Charges

¶8            Count 1 of the indictment charged, in relevant part, as
follows: “JAMES RODRIGO HIGUERA . . . drove or was in actual physical
control of a vehicle, while under the influence of . . . any drug . . . or any
combination of . . . drugs . . . while his driver’s license . . . was suspended.”
See A.R.S. § 28-1381(A)(1). Count 2 charged, in relevant part: “JAMES
RODRIGO HIGUERA . . . drove or was in actual physical control of a
vehicle, while there was any drug defined in A.R.S. § 13-3401 or its
metabolite in his body, while his driver’s license . . . was suspended.” See
A.R.S. § 28-1381(A)(3); see also A.R.S. § 13-3401(6)(c)(vi) (amphetamine),
-(xxxviii) (methamphetamine).

¶9             Higuera argues that the counts are duplicitous because the
State presented evidence that Higuera drove, and was in actual physical
control of the truck in which he was found passed out.3 Characterizing the
different evidence as evidence of two separate criminal acts, Higuera
contends the jury may have reached non-unanimous verdicts because some
of the jurors may have concluded Higuera drove the truck while others may
have found he was in actual physical control of it. We disagree.

¶10           A criminal defendant is entitled to a unanimous jury verdict.
Ariz. Const. art. 2, § 23. To this end, “Arizona law requires that each
separate offense be charged in a separate count, [and] an indictment which
charges more than one crime within a single count may be dismissed as
duplicitous.” State v. Schroeder, 167 Ariz. 47, 51, 804 P.2d 776, 780 (App.
1990). “When the text of an indictment refers only to one criminal act, but
multiple alleged criminal acts are introduced to prove the charge, our
supreme court has sometimes referred to this problem in shorthand as a
duplicitous charge rather than a duplicitous indictment.” State v. Klokic, 219
Ariz. 241, 244, ¶ 12, 196 P.3d 844, 847 (App. 2008). Duplicitous charges are

3 In his opening brief, Higuera argues that a case entitled State v. Tarr
controls the analysis. Although he says it is a memorandum decision,
which was issued in 2009, he cites to a subsequent opinion by the same
name. In the memorandum decision, involving Rebecca Marie Tarr, we
found that the defendant did not timely discover or challenge the
duplicitous charging before trial; which is not an issue in this appeal. See
State v. Tarr, 1 CA-CR 08-0253, 2009 WL 1530722 (Ariz. App. June 2, 2009)
(mem. decision). And in the opinion, we did not discuss the duplicitous
issue raised here because that case involved reviewing jury instructions in
a DUI case, which is not an issue here. See State v. (Kenneth) Tarr, 235 Ariz.
288, 331 P.3d 423 (2014).

                                       4
                            STATE v. HIGUERA
                            Decision of the Court

prohibited, in part, because of the risk of a non-unanimous jury verdict. Id.;
State v. Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989). Violation of the
right to a unanimous verdict constitutes fundamental error. State v. Davis,
206 Ariz. 377, 390, ¶ 64, 79 P.3d 64, 77 (2003). We review de novo whether
the trial court violated Higuera’s right to a unanimous verdict. See State v.
Beasley, 205 Ariz. 334, 336, ¶ 9, 70 P.3d 463, 465 (App. 2003).

¶11           Here, the charges were not duplicitous, or rendered
duplicitous by evidence at trial showing Higuera drove the truck, actually
physically possessed it, or both. Driving or being in actual physical control
of the truck “are two ways of committing a single DUI offense.” State v.
Rivera, 207 Ariz. 69, 72, ¶ 8, 83 P.3d 69, 72 (App. 2004). Although each of
the two types of acts are alternative theories of culpability, each is not an
independent crime. Id. Jurors in DUI trials are not required to unanimously
agree on which theory—driving or actually physically controlling the
truck—forms the basis of a guilty verdict.4 Id. at 73, ¶ 12, 83 P.3d at 73.
Here, the jury unanimously found Higuera guilty of both counts, which is
all the unanimity that is required. See id. Consequently, Higuera’s right to
unanimous verdicts was not violated. No error, fundamental or otherwise,
occurred.

II.    Prosecutorial Misconduct

¶12            Higuera points to two instances of purported prosecutorial
misconduct during closing arguments that he argues cumulatively denied
him a fair trial.

¶13            We will reverse a conviction for prosecutorial misconduct
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, 94
P.3d 1119, 1154 (2004) (citation omitted). To justify reversal, the misconduct
“must be ‘so pronounced and persistent that it permeates the entire
atmosphere of the trial.’” State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230
(1997) (citations omitted). If we conclude that the challenged instances of
misconduct do not amount to error or are otherwise harmless, “an incident
may nonetheless contribute to a finding of persistent and pervasive


4 In fact, if some of the jurors found Higuera was driving the truck, those
jurors necessarily concluded he was in actual physical possession of it. See
Rivera, 207 Ariz. at 73, ¶ 11, 83 P.3d at 73 (“[A] person who drives a vehicle
actually physically controls it; driving is a subset of actual physical
control.”).

                                       5
                             STATE v. HIGUERA
                             Decision of the Court

misconduct . . . if the cumulative effect of the incidents shows that the
prosecutor intentionally engaged in improper conduct and did so with
indifference, if not a specific intent, to prejudice the defendant.” State v.
Roque, 213 Ariz. 193, 228, ¶ 155, 141 P.3d 368, 403 (2006) (internal quotation
marks and citations omitted).

¶14         Higuera first argues that the prosecutor improperly
minimized the State’s burden of proof when he argued to the jury:

       Beyond a reasonable doubt means not beyond any possibility
       of a doubt. It means beyond a reasonable doubt. Is the State’s
       version of events a reasonable version of events or is the defendant’s
       version of events a reasonable version of what happened . . . ? I
       would submit to you after you’ve considered everything
       that’s been prepared [sic] to you, you will find beyond a
       reasonable doubt that the defendant is guilty of both counts
       of aggravated DUI. Thank you.

(Emphasis added.)

¶15          Higuera contends the highlighted comment eroded the
applicable standard of care from “beyond a reasonable doubt” to
“preponderance of the evidence.” We disagree.

¶16           The State did not argue a different standard of proof. The
State started its argument by noting that it had the burden of proving its
case beyond a reasonable doubt; just as the court had earlier instructed the
jury. Then, the State outlined the evidence to support each element of each
charge and again told the jury that it had the burden of proof. The State
then asked the jury to determine if it believed the evidence presented by the
State or Higuera, and stated that “after you’ve considered everything that’s
been pre[sented] to you, you will find beyond a reasonable doubt that the
defendant is guilty of both counts of aggravated DUI.” Then, after
Higuera’s closing argument,5 the State again reminded the jury that it had
the burden of proving Higuera guilty beyond a reasonable doubt.
Consequently, given the totality of the arguments, as well as the jury


5 During Higuera’s closing argument, his lawyer stated: “And in the whole
process, the issue before you is whether the State has presented beyond a
reasonable doubt that [Higuera] was either driving the vehicle within two
hours of the stop or that he was in actual physical control.” And he then
illustrated for the jury the difference between the standards of proof
applicable to civil versus criminal cases.

                                         6
                            STATE v. HIGUERA
                            Decision of the Court

instructions, we find no error, much less fundamental prejudicial error was
caused, or permeated the trial, by the quoted portion of the argument.

¶17           Higuera next challenges the prosecutor’s comments made
during rebuttal closing argument: “I’ve been practicing law for almost 26
years now. During that 26 year period I have been a prosecutor. I have been
a defense attorney. I have even been a municipal court judge for four years.”
(Emphasis added.) Higuera contends that these statements amount to
improper vouching because they placed the prestige of the government
behind the State’s case. State v. Newell, 212 Ariz. 389, 402, ¶ 62, 132 P.3d 833,
846 (2006) (discussing vouching).

¶18           The challenged comments came at the outset of the State’s
rebuttal, and were a preamble to the following:

       And eliminating the judicial position, and the choice between
       being a prosecutor and a defense attorney, this is the reason
       why I like to be a prosecutor, because this is what every
       attorney dreams of, the opportunity to get the last word in.
       Okay. And I know it’s galling to defense attorneys and it may
       seem unfair, but the reason is quite simple. The reason is
       because the [S]tate has the burden of proving the defendant
       beyond a reasonable doubt, proving him guilty. And because
       the State has that burden, the State gets the opportunity to
       have two opportunities to have witnesse[s] testify. And the
       State has the opportunity to make closing arguments to you
       twice.

¶19            The statements, in context, amounted to the State telling the
jury that it was allowed to argue last because it had the burden of proof.
Although the introductory puffery was unnecessary, the jury was aware
from both the preliminary and final instructions that it had to determine the
facts of the case, and what the lawyers may say in closing argument “is not
evidence.” And our supreme court has long recognized that such
statements are not error, let alone fundamental prejudicial error, given the
fact that lawyers are given wide latitude in their arguments. See State v.
Gonzales, 105 Ariz. 434, 436-37, 466 P.2d 388, 390-91 (1970); State v. Narten,
99 Ariz. 116, 125, 407 P.2d 81, 87 (1965) (concluding that the following
comments made by prosecutor regarding his previous service on the bench
were not improper: “You know, this presumption of innocence is great. I’m
glad we have it. I served on the bench here myself. I know it. I’m glad we
have it. I, the judge, all the other judges are glad we have it.”). Consequently,
the challenged statements do not give rise to reversible error.


                                       7
                            STATE v. HIGUERA
                            Decision of the Court

¶20            We have also reviewed the cumulative effect of the
prosecutor’s statements. We find no reversible error since the prosecutor
did not intentionally engage in improper conduct “with indifference, if not
a specific intent, to prejudice [Higuera.]” Roque, 213 Ariz. at 228, ¶ 155, 141
P.3d at 403.

                              CONCLUSION

¶21           Based on the foregoing, we affirm Higuera’s convictions and
sentences.




                                  :ama




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