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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JIMMY WAYNE GUINARD, Appellant.

                             No. 1 CA-CR 14-0810
                               FILED 8-11-2015


           Appeal from the Superior Court in Yavapai County
                       No. P1300CR2012-00975
                 The Honorable Tina R. Ainley, Judge

                       AFFIRMED AS CORRECTED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

David Goldberg, Esq., Fort Collins, CO
By David Goldberg
Counsel for Appellant

Jimmy Wayne Guinard, Douglas
Appellant
                            STATE v. GUINARD
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kent E. Cattani joined.


N O R R I S, Judge:

¶1             Jimmy Wayne Guinard timely appeals from his convictions
and sentences for one count of Transportation of Dangerous Drugs for Sale
(Methamphetamine), a class 2 felony, and one count of Possession of
Methamphetamine Drug Paraphernalia, a class 6 felony. After searching
the record on appeal and finding no arguable question of law that was not
frivolous, Guinard’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v.
Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record
for fundamental error. This court granted counsel’s motion to allow
Guinard to file a supplemental brief in propria persona, and he did so. We
reject the arguments raised in Guinard’s supplemental brief and, after
reviewing the entire record, find no fundamental error. Therefore, we
affirm Guinard’s convictions and sentences as corrected.

             FACTS AND PROCEDURAL BACKGROUND1

¶2            The State charged Guinard with committing one count of
transportation of methamphetamine for sale and one count of possession of
drug paraphernalia when, on April 26, 2012, he gave a police informant a
“sample” of methamphetamine packaged in a plastic baggie. The State also
charged Guinard with one count of transportation of methamphetamine for
sale and one count of possession of drug paraphernalia when, on May 14,
2012, Guinard sold the same informant $40 worth of methamphetamine,
also packaged in a plastic baggie. See Ariz. Rev. Stat. (“A.R.S.”) §§ 13-3407
(Supp. 2014), -3415 (2010).2


              1We   view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Guinard. See
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

              2Although  the Arizona Legislature has amended certain
statutes cited in this decision after the date of Guinard’s offenses, the



                                       2
                            STATE v. GUINARD
                            Decision of the Court
¶3           A jury found Guinard guilty of the May 14, 2012
transportation and possession counts, but not guilty of the April 26, 2012
transportation and possession counts. The superior court sentenced
Guinard to a mitigated term of five years’ flat time imprisonment on the
transportation count and .75 years’ imprisonment on the paraphernalia
count. The court ordered the sentences to run concurrently to each other
and consecutive to a term of imprisonment in an unrelated case and
awarded Guinard 781 days of presentence incarceration credit.

                                DISCUSSION

I.     Supplemental Brief3

       A.     Sufficiency of the Evidence

¶4             In his supplemental brief, Guinard argues the superior court
abused its discretion in denying his Rule 20 motion because the State failed
to test the methamphetamine baggies for his fingerprints and DNA, thereby
presenting insufficient evidence to support his convictions.

¶5              Although the State did not test the methamphetamine baggies
for Guinard’s DNA and fingerprints, it was under no obligation to do so,
and it presented substantial evidence supporting the jury’s verdicts. See
State v. Torres, 162 Ariz. 70, 76, 781 P.2d 47, 53 (1989) (“Police generally have
no duty to seek out and obtain potentially exculpatory evidence.” (citation
omitted)); see also State v. Kuhs, 223 Ariz. 376, 382, ¶ 24, 224 P.3d 192, 198
(2010) (appellate court reviews sufficiency of the evidence by determining
whether jury’s findings are supported by substantial evidence; that is,
evidence that is adequate to support a reasonable person’s conclusion of
defendant’s guilt beyond a reasonable doubt); State v. Henry, 205 Ariz. 229,
232, ¶ 11, 68 P.3d 455, 458 (App. 2003) (substantial evidence may be direct
or circumstantial; denial of Rule 20 motion reviewed for abuse of
discretion). At trial, the police informant testified he had worked with
police under contract after the State charged him with selling
methamphetamine. The contract required the informant to assist police in
apprehending other drug dealers. To that end, on April 26, 2012, the
informant went to Guinard’s home and asked “about meth.” Guinard then
handed the informant a “sample” of methamphetamine, which the


revisions are immaterial to the resolution of this appeal. Thus, we cite to
the current version of these statutes.

              3Forclarity, we have reordered and restated the arguments
Guinard raised in his supplemental brief.


                                       3
                            STATE v. GUINARD
                            Decision of the Court
informant turned over to Detective J. The informant was not wired at the
time Guinard gave him the sample.

¶6            On May 14, 2012, Detective J assisted the informant in setting
up a “controlled buy” with Guinard. Detective J recorded the informant’s
side of a phone call with Guinard, and the informant could be heard saying,
“Hey Jimbo”—Guinard’s nickname—and asking to buy some “shit”—a
slang term for methamphetamine. After the informant and Guinard
established a meeting place, Detective J wired the informant, conducted a
thorough search of the informant and his Jeep for drugs and money, gave
him $40 to buy the methamphetamine, and followed him to the meeting
place.

¶7            Detective J saw the informant meet Guinard’s brother in the
parking lot and observed the two walk to a parked truck. Immediately after
the controlled buy, the informant handed Detective J a baggie of
methamphetamine, which the informant said he had bought from Guinard.
The baggie of methamphetamine the informant gave to Detective J looked
like “it was worth $40.00.” Thus, even though the State did not test the
methamphetamine baggies for Guinard’s DNA and fingerprints, it
presented sufficient evidence supporting Guinard’s convictions, and the
superior court did not abuse its discretion in denying his Rule 20 motion.4

       B.     The Informant’s Credibility

¶8             Guinard also argues the State should have polygraph and
drug tested the informant “to either uphold or diminish [his] credibility to
testify truthfull[y],” and because the State failed to do so, the informant was
not credible. We disagree with Guinard’s argument for three reasons. First,
polygraph test results are categorically inadmissible at trial absent a
stipulation. State v. Perez, 233 Ariz. 38, 42, ¶ 16, 308 P.3d 1189, 1193 (App.
2013). Second, the State’s failure to test the informant “without further
evidence of materiality to the guilt or innocence of the defendant constitutes
no error.” State v. Rhodes, 112 Ariz. 500, 504, 543 P.2d 1129, 1133 (1975).

¶9             Third, whether the informant was credible was an issue for
the jury to decide. See State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App.

              4Guinard  also argues the superior court abused its discretion
in denying his post-trial motion to dismiss with prejudice or for a new trial.
Based on this record, the superior court did not abuse its discretion in
denying Guinard’s post-trial motion. See State v. Spears, 184 Ariz. 277, 289,
908 P.2d 1062, 1074 (1996); State v. Wills, 177 Ariz. 592, 593, 870 P.2d 410, 411
(App. 1993).


                                       4
                           STATE v. GUINARD
                           Decision of the Court
1995) (“The finder-of-fact, not the appellate court . . . determines the
credibility of witnesses.”). And indeed, Guinard vigorously attacked the
informant’s credibility during trial. For example, in his cross-examination
of the informant, Guinard highlighted several inconsistencies in the
informant’s testimony regarding the May 2012 controlled buy. Guinard
also established the informant had failed drug tests in July, September, and
November 2013, which resulted in a probation violation and 60 days’
imprisonment in early 2014. The informant testified his drug test results
were positive for methamphetamine because of prescription drugs he was
taking, but Guinard presented evidence impeaching that testimony.
Further, Detective J and the informant both testified the State had not
polygraph or drug tested the informant.

¶10          Thus, even though the State did not polygraph or drug test
the informant, Guinard was able to argue to the jury the informant “sat in
this courtroom and lied.”

       C.     Severance

¶11            Guinard next argues the superior court should have severed
the April 26, 2012 counts from the May 14, 2012 counts, and because it failed
to do so, it prejudiced him. As we construe Guinard’s argument, he was
entitled to severance as a matter of right under Arizona Rule of Criminal
Procedure 13.4(b) because the counts were joined solely by virtue of Rule
13.3(a)(1).5 Because Guinard objected to the joinder and timely renewed his
objection, we review the superior court’s denial of his motion to sever for
an abuse of discretion, and, as we explain, even if we assume arguendo the
superior court should have severed the April counts from the May counts,
Guinard was not prejudiced. See State v. Burns, 237 Ariz. 1, —, ¶ 29, 344
P.3d 303, 315 (2015) (appellate court reviews for abuse of discretion and will
reverse only if defendant can show “compelling prejudice against which
the trial court was unable to protect” (citation omitted) (internal quotation
marks omitted)); see also Ariz. R. Crim. P. 13.4.

¶12            First, the jury found Guinard not guilty on the April counts.
Second, the superior court properly admitted evidence of the April counts
to explain the background for the controlled buy and, thus, the May counts.
See State v. Price, 123 Ariz. 166, 168, 598 P.2d 985, 987 (1979) (“Evidence of
other criminal acts is admissible when so blended or connected with the

              5The  superior court also found joinder proper under Rule
13.3(a)(2) and (3). Because, as discussed, Guinard was not prejudiced by
the joinder of the counts, we do not need to address whether joinder was
proper under 13.3(a)(2) and (3).


                                      5
                            STATE v. GUINARD
                            Decision of the Court
crime of which defendant is accused that [p]roof of one incidentally
involves the other or explains the circumstances of the crime.” (citation
omitted)).

¶13           Third, the superior court properly instructed the jury on the
State’s burden of proof as to each element of each count and that it should
consider each count separately. And fourth, the likelihood that the jury
confused the counts was minimal, especially because, as noted, the jury
found Guinard not guilty on the April counts.6 See State v. Comer, 165 Ariz.
413, 418, 799 P.2d 333, 338 (1990). Therefore, under these circumstances,
Guinard was not prejudiced by the superior court’s refusal to sever the
counts against him.

       D.     Prosecutorial Misconduct

¶14            Guinard next argues the prosecutor committed a “pattern of
intentional errors made to strengthen [the] State’s case,” which, collectively
viewed, amount to prosecutorial misconduct. See State v. Anderson, 210
Ariz. 327, 340, ¶ 45, 111 P.3d 369, 383 (2005) (“We will reverse a defendant’s
conviction because of prosecutorial misconduct if two conditions are
satisfied: (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.” (citation omitted) (internal quotation
marks omitted)). Although, as we explain, misconduct occurred, the
cumulative effect of the misconduct did not deprive Guinard of a fair trial.
See State v. Morris, 215 Ariz. 324, 335, ¶ 47, 160 P.3d 203, 214 (2007) (whether
“persistent and pervasive misconduct” occurred depends on cumulative
effect of alleged errors (citation omitted)).

              1.     Vouching

¶15            Guinard argues the prosecutor vouched during closing
argument    and the superior court failed to take “curative measures,”
including   instructing the jury to disregard the prosecutor’s “specific
erroneous    statements.” Impermissible prosecutorial vouching occurs
when, as     relevant here, “the prosecutor places the prestige of the

              6During   trial, the parties stipulated the drugs Detective J
identified during his testimony were “the same drugs that went to the lab.”
The preliminary and final jury instructions regarding the stipulation should
have, but did not, explain to the jury that it was free to accept or reject the
stipulation, just as any other evidence. See State v. Allen, 223 Ariz. 125, 127
n.2, ¶ 11, 220 P.3d 245, 247 n.2 (2009); Rev. Ariz. Jury Instr. (“RAJI”) Stand.
Crim. 3.


                                       6
                            STATE v. GUINARD
                            Decision of the Court
government behind its witness.” State v. Bible, 175 Ariz. 549, 601, 858 P.2d
1152, 1204 (1993).

¶16            The first instance of alleged prosecutorial vouching occurred
in closing argument, when the prosecutor stated, “The State seeks the truth
in this matter and only wants to see the truth come out. It’s the State’s belief
the truth is that [Guinard] transferred meth and sold methamphetamine on the
dates referenced . . . .” (emphasis added). Guinard’s counsel asked to
approach and said, “I’m not going to ask for a mistrial at this point, but I
have every right to do it because that is highly improper . . . .”

¶17           The next instance of alleged prosecutorial vouching occurred
during the State’s rebuttal closing argument, when the prosecutor stated,
“It’s been presented to you that the State is not serving justice or is doing
something improper. The State seeks the truth and will endure whatever
the consequences may be. If the State believed [Guinard] was innocent, [the]
State would have dismissed the charges long ago.” (emphasis added). The
prosecutor then argued:

              It’s the State’s belief, after you look at each and
              every piece of evidence . . . that was presented
              on the stand, that you look at [the informant] as
              you observed him here on the stand, and his
              testimony, his demeanor, that he was truthful in
              telling you . . . exactly what occurred both those
              days. State believes it’s presented sufficient
              evidence to leave each and every one of you
              firmly convinced of [Guinard’s] guilt[].

(emphasis added). Guinard’s counsel objected after the prosecutor
concluded but once again declined to move for a mistrial, stating, “I don’t
want a mistrial, because I think that the evidence is very strong in the favor,
for the lack of evidence, of Mr. Guinard . . . .”

¶18          The quoted statements italicized above did indeed place the
prestige of the government behind its witnesses and thus constituted
impermissible vouching.7 It was improper for the prosecutor to preface his
remarks with variations of “the State’s belief.” The prosecutor, however,
did not simply state his personal belief during closing and rebuttal
arguments. He presented his argument in the context of the trial evidence

               7Guinard also argues the prosecutor’s closing argument
concerning the phone calls between the informant and Guinard constituted
vouching. The argument, however, was proper in light of the trial evidence.


                                       7
                           STATE v. GUINARD
                           Decision of the Court
and told the jury, “What this case comes down to is the credibility of [the
informant], and it’s your job to judge the credibility.” See State v. Corona,
188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 1997) (prosecutor’s remarks that
witnesses testified “truthfully,” when viewed in context, were sufficiently
linked to trial evidence).

¶19           Further, the superior court properly instructed the jury that
the lawyers’ arguments were not evidence and it was to determine the
“accuracy” of the witnesses’ testimony. Our supreme court has instructed
that we are to presume jurors follow the court’s instructions. See Morris,
215 Ariz. at 336-37, ¶ 55, 160 P.3d at 215-16 (superior court may cure error
resulting from prosecutorial misconduct by instructing jury not to consider
attorneys’ arguments as evidence). Thus, the superior court cured any error
in prosecutorial vouching through its instructions.

              2.     Untimely Disclosure

¶20           Guinard also argues the State prejudiced him by disclosing
“critical impeachment evidence . . . on the eve of trial,” and, relatedly, the
superior court abused its discretion in failing to impose sanctions. We
disagree with both arguments.

¶21            On the first day of trial, the State disclosed that Detective J
had told the prosecutor he “believe[d]” the informant was referred to Silent
Witness in order to collect money to assist the informant in “leav[ing] town”
because arrests were going to be made. While Detective J did not have any
records of the informant being referred to Silent Witness, “he believe[d] that
[was] what occurred in this particular case.” Guinard moved to preclude
this information because, ten days earlier during a defense interview,
Detective J had stated he could not remember if the informant had been
referred to Silent Witness. The superior court, on the record before it,
denied Guinard’s preclusion request, but did admonish the prosecutor and
offered Guinard the option of continuing the trial or taking a recess to re-
interview Detective J. Guinard rejected the court’s options and instead
asked that he be allowed to call “the head of Silent Witness” as a defense
witness. The court allowed the additional witness “as a sanction in this
case,” and thus Guinard’s argument that the superior court failed to impose
sanctions is without merit. See State v. Delgado, 174 Ariz. 252, 257, 848 P.2d
337, 342 (App. 1993) (superior court should use preclusion as a last resort,
but otherwise has wide latitude in determining whether to impose
sanctions and choice of sanctions for discovery violation); see also Ariz. R.
Crim. P. 15.7.




                                      8
                            STATE v. GUINARD
                            Decision of the Court
¶22            Further, Guinard thoroughly cross-examined Detective J and
the informant on the informant’s receipt of Silent Witness money. During
cross-examination, Detective J testified consistently with his defense
interview—he could “not recall the Silent Witness stuff.” The informant
testified it was Detective J who told him to get in touch with Silent Witness
and that he was paid $400 for Guinard’s arrest. And, in closing argument,
Guinard argued the informant had “plenty of reasons to set [him] up,”
including receiving money for his arrest. Under these circumstances, the
State did not prejudice Guinard through its untimely disclosure.8

              3.     Cumulative Effect

¶23            Although, as discussed, we agree with Guinard that part of
the prosecutor’s closing and rebuttal argument constituted impermissible
vouching, the prosecutor did not engage in “persistent and pervasive
misconduct” so as to deprive Guinard of a fair trial. See Morris, 215 Ariz. at
339, ¶ 67, 160 P.3d at 218; cf. State v. Hughes, 193 Ariz. 72, 78-79, 88, ¶¶ 24-
26, 74, 969 P.2d 1184, 1190-91, 1200 (1998) (defendant deprived of fair trial
based on cumulative effect of prosecutor’s comment on defendant’s failure
to testify; argument outside the record; allegation defendant fabricated
insanity defense; and appeal to jurors’ fears).

       E.     Biased Trial Judge

¶24           Guinard also argues the trial judge was “partial and bias [sic]
toward [him] with the evidence being obvious[ly]” in his favor. After
reviewing the record, we find no merit in this argument. See State v. Carver,
160 Ariz. 167, 173, 771 P.2d 1382, 1388 (1989) (“Appearance of interest or
prejudice is more than the speculation suggested by the defendant. It
occurs when the judge abandons his judicial role and acts in favor of one
party or the other.”).

       F.     Ineffective Assistance of Counsel

¶25           Finally, Guinard argues his trial counsel was ineffective
because, first, he failed to move for a mistrial based on the State’s late
disclosure and prosecutorial vouching during closing argument, and
second, he did not “compel” the State to produce exculpatory DNA and


              8Guinard  also points to the State’s failure to test the
methamphetamine baggies for his DNA and fingerprints and polygraph
and drug test the informant, see supra ¶¶ 5, 8, as evidence of prosecutorial
misconduct. We reject this argument because, as discussed, the State was
under no obligation to conduct such testing.


                                       9
                           STATE v. GUINARD
                           Decision of the Court
fingerprint evidence that the State either did or should have obtained from
the methamphetamine baggies surrendered by the police informant. These
arguments are not properly before us. See State ex rel. Thomas v. Rayes, 214
Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007) (“[D]efendant may bring
ineffective assistance of counsel claims only in a Rule 32 post-conviction
proceeding—not before trial, at trial, or on direct review.”).

II.    Anders Review

¶26           We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Guinard received a
fair trial. He was represented by counsel at all stages of the proceedings
and was present at all critical stages.

¶27           As discussed, the evidence presented at trial was substantial
and supports the verdicts. The jury was properly comprised of 12 members
and the court properly instructed the jury on the elements of the charges,
Guinard’s presumption of innocence, the State’s burden of proof, and the
necessity of a unanimous verdict. Guinard waived a presentence report,
was given an opportunity to speak at sentencing, and his sentences were
within the range of acceptable sentences for his offenses.

¶28           The record reflects, however, that Guinard was entitled to
additional presentence incarceration credit. Guinard requested, and the
superior court awarded, 781 days of presentence incarceration credit. Our
review of the record, however, reveals that Guinard was entitled to 789
days of presentence incarceration credit. Guinard was taken into custody
for these charges on September 6, 2012. After posting a $50,000 secured
appearance bond, Guinard was released on October 5, 2012—for a total of
30 days presentence incarceration credit. On October 14, 2012, the bail bond
agent surrendered Guinard for failure to comply with the conditions of his
release. Guinard remained in custody until the date of his sentencing,
November 12, 2014—for a total of 759 days of presentence incarceration
credit. Thus, we correct the record to reflect 789 days of presentence
incarceration credit.

                              CONCLUSION

¶29          We decline to order briefing and affirm Guinard’s convictions
and sentences as corrected.

¶30           After the filing of this decision, defense counsel’s obligations
pertaining to Guinard’s representation in this appeal have ended. Defense
counsel need do no more than inform Guinard of the outcome of this appeal



                                     10
                           STATE v. GUINARD
                           Decision of the Court
and his future options, unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984).

¶31             Guinard has 30 days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. On the court’s
own motion, we also grant Guinard 30 days from the date of this decision
to file an in propria persona motion for reconsideration.




                                   :RT




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