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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      LEONARD ESHAYA, Appellant.

                             No. 1 CA-CR 17-0592
                              FILED 4-23-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-118120-001
                  The Honorable Ronda R. Fisk, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
                            STATE v. ESHAYA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop joined.


B R O W N, Judge:

¶1           Leonard Eshaya appeals his convictions and sentences for
possession or use of narcotic drugs, possession or use of dangerous drugs,
possession of drug paraphernalia, and promoting prison contraband.
Finding no reversible error, we affirm.

                             BACKGROUND

¶2            Detective Chilczek drove to a residential complex that had
been the subject of numerous complaints and noticed an unfamiliar car
parked in a resident’s designated spot. Alerted to reports of possible illegal
activity, Chilczek became suspicious of the car and began conducting
surveillance. From his concealed location, Chilczek observed Eshaya and a
woman, K.B., moving items from a residence to the car.

¶3           Chilczek followed the pair after they finished loading the car
and drove away. Before long, he saw Eshaya extend his right arm outside
the passenger window to drop a crumpled piece of paper onto the road,
prompting Chilczek to ask Detective Goodsen—driving a marked police car
nearby—to initiate a traffic stop. During that stop, Goodsen arrested and
searched Eshaya, finding pieces of foil, a lighter, and a piece of a pen.

¶4             After completing the search, Goodsen transported Eshaya to
the city jail. Upon their arrival, Goodsen asked Eshaya if he had any
remaining contraband in his possession, warning that taking contraband
into jail is a serious separate offense. Eshaya did not respond. Shortly
thereafter, detention officers discovered a pouch in Eshaya’s shorts with a
glass pipe and multiple baggies containing drugs.

¶5           The State charged Eshaya with one count of possession or use
of narcotic drugs (Count 1: heroin), two counts of possession or use of
dangerous drugs (Count 2: methamphetamine; Count 3: 25B-NBOMe), two
counts of possession of drug paraphernalia (Count 4: pen; Count 5: pipe),
and three counts of promoting prison contraband (Count 6:
methamphetamine; Count 7: 25B-NBOMe; Count 8: heroin).


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                             STATE v. ESHAYA
                            Decision of the Court

¶6            At trial, Eshaya testified he first met K.B. at a party. Although
they had apparently just become acquainted, Eshaya offered to help K.B.
pack some of her belongings for a move and they departed for her
apartment. With the car loaded, Eshaya suggested they swim in the
apartment complex’s pool. Eshaya, who had no swim trunks, entered the
hot tub with the shorts he was already wearing. A short time later, K.B.
received a phone call and told Eshaya “we need to hurry and get out of
here.” When they returned to the apartment, K.B. asked Eshaya to grab
whatever dry clothing he could find because she did not want him to ride
in her car with wet clothing. Eshaya quickly donned a pair of oversized
shorts he found on the floor, not noticing the pouch sewn inside them.

¶7             At Eshaya’s first trial, the jury was unable to reach any
unanimous verdict and the superior court declared a mistrial. In his second
trial, the jury found him guilty as charged after the court provided an
impasse instruction. The court sentenced Eshaya to various terms of
imprisonment and this timely appeal followed.

                               DISCUSSION

¶8           Eshaya argues he was deprived of a fair trial due to
prosecutorial misconduct. However, except for one cursory statement in
his opening brief, Eshaya does not identify or argue that any single instance
of alleged impropriety warrants reversal on its own. Rather, we
understand Eshaya’s argument to be that the cumulative effect of the
prosecutor’s alleged misconduct compels us to order a new trial because
such misconduct shifted the burden of proof from the State to him.

¶9              We therefore address whether the totality of the prosecutor’s
actions that Eshaya identifies as misconduct “so infected the trial with
unfairness as to make the resulting conviction a denial of due process,” State
v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)), bearing in mind that reversal is required “only
when misconduct is ‘so pronounced and persistent that it permeated the
entire atmosphere of the trial, indicating that the prosecutor intentionally
engaged in improper conduct and did so with indifference, if not a specific
intent, to prejudice the defendant,’” State v. Acuna Valenzuela, 245 Ariz. 197,
224, ¶ 119 (2018) (citation omitted); see also United States v. Young, 470 U.S.
1, 11 (1985) (“Inappropriate prosecutorial comments, standing alone, would
not justify a reviewing court to reverse a criminal conviction obtained in an
otherwise fair proceeding.”); State v. Bible, 175 Ariz. 549, 601 (1993)
(recognizing that the touchstone of our analysis is trial fairness).




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                             STATE v. ESHAYA
                            Decision of the Court

¶10            Moreover, because Eshaya failed to preserve this objection for
appeal we review for fundamental error only. State v. Sanders, 245 Ariz.
113, 132, ¶ 91 (2018) (explaining that because the defendant failed to
preserve his cumulative prosecutorial misconduct objection at trial, it
would be reviewed for fundamental error); see also State v. Rutledge, 205
Ariz. 7, 13, ¶ 30 (2003) (holding that an objection based on “shifting the
burden” failed to preserve for appeal the issue of prosecutorial
misconduct). To establish fundamental error, Eshaya must show that the
error either (1) went to the foundation of his case; (2) took away a right
essential to his defense; or (3) “was so egregious that he could not possibly
have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
We must reverse if Eshaya establishes error under prong three, but he must
“make a separate showing of prejudice” before we may reverse under
prongs one or two. Id.

       A.     Cross-examination

¶11           At trial, the prosecutor asked Eshaya whether he disputed
that he had carried drugs and drug paraphernalia on his person into a city
jail. Eshaya said he had, but had done so without knowledge. The
prosecutor then asked whether the jury “need[ed] . . . to believe” Eshaya to
acquit him, to which Eshaya answered, “[a]bsolutely.” The prosecutor
followed this question up later with twelve questions asking Eshaya if he
“need[ed]” the jury to “believe” certain implausible aspects of his testimony
to acquit him. The State concedes that the prosecutor’s questions were
argumentative but does not agree that they warrant reversal.

¶12         Eshaya analogizes the prosecutor’s questions to those
condemned in Pool v. Superior Court, 139 Ariz. 98 (1984), asserting they were
(1) an argument masquerading as questions and (2) intended to “punish
him by showing the jury that the state was free to humiliate and demean
him.” We agree the questions were argumentative but Eshaya’s attempt to
equate them with the circumstances in Pool is inapt.

¶13            “The problem” in Pool was “the cumulative effect of a line of
questioning in which the prosecutor posed numerous improper questions.”
139 Ariz. at 106. The amount of trial time and the sheer number of improper
questions in Pool created an atmosphere of unfairness and compelled an
inference of intentional misconduct by the prosecutor. Id. at 109. Here, the
twelve questions the prosecutor asked Eshaya are different in both respects.
First, they were confined to a brief exchange at the close of cross-
examination, mitigating the risk of unfairness. Compare Escalante, 245 Ariz.
at 143, ¶ 27 (reasoning that improperly admitted evidence “permeated the


                                       4
                              STATE v. ESHAYA
                             Decision of the Court

trial” when it was “elicited from eight officers over three days and referred
to by the prosecutor in both the opening statement and closing argument”),
with State v. Martinez, 230 Ariz. 208, 215, ¶ 32 (2012) (noting the misconduct
in Pool was “continuous and well-documented” and declining to reverse
when misconduct was “confirmed only twice by the trial judge”), and State
v. Cornell, 179 Ariz. 314, 329–30 (1994) (“Whatever prejudice this line of
questioning produced was mitigated by its brevity . . . .”).

¶14           Second, we can reasonably infer a proper purpose for these
questions. See State v. Bolton, 182 Ariz. 290, 308 (1995) (distinguishing Pool
because “the prosecutor here did not call defendant pejorative names, refer
to matters not in evidence, suggest unfavorable matter for which no proof
exists, or abuse defendant in any other way”). The questions appear
designed to undermine Eshaya’s credibility—undoubtedly a proper
purpose—and were asked after multiple attempts by the prosecutor to
impeach Eshaya with prior inconsistent statements and Eshaya’s
concession that he told police officers conflicting stories. To the extent the
prosecutor may have crossed the line in posing argumentative questions to
Eshaya, the consequences of doing so were mitigated by the prosecutor’s
phrasing at the end of this sequence. After asking multiple questions
phrased in terms of what Eshaya “need[ed]” the jury to believe, the final
question began “you are asking the jury to believe.” (Emphasis added.) This
latter phrasing was more clearly designed to attack Eshaya’s credibility, not
badger him into conceding an incorrect legal position.

       B.     Closing Arguments

¶15           Eshaya also contends two incidents in closing arguments
compounded the prejudicial effect of these cross-examination questions so
that the jury must have understood that Eshaya was required to prove his
innocence.

¶16            Prosecutors’ comments during closing arguments must be
viewed in context to determine if they exceed the “wide latitude” our
precedents afford them. State v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016).
Despite such latitude, the State cannot “improperly argue the burden of
proof.” Acuna Valenzuela, 245 Ariz. at 219, ¶ 88 (quoting State v. Schneider,
148 Ariz. 441, 447 (App. 1985)). Prosecutors stay within permissible bounds
when their comments “are invited and prompted by opposing counsel’s
arguments . . . if they are reasonable and pertinent to the issues raised,” or
“make arguments and . . . draw inferences that are reasonably supported
by the evidence.” Id. (first quoting State v. Trostle, 191 Ariz. 4, 16 (1997); and
then quoting State v. Burns, 237 Ariz. 1, 31, ¶ 152 (2015)). To determine


                                        5
                            STATE v. ESHAYA
                           Decision of the Court

when prosecutors exceed those bounds, we look to (1) whether the
prosecutor’s statements called inappropriate matters to the jury’s attention
and (2) the probability that the jury was in fact influenced by those
statements. Goudeau, 239 Ariz. at 466, ¶ 196.

¶17             Eshaya first directs us to the following comments from the
State’s initial closing argument, asserting the prosecutor improperly shifted
the burden of proof to him by allegedly instructing the jurors that Eshaya
had to create reasonable doubt before they could acquit him.

            And remember, because it’s in your instructions,
      reasonable doubt is not a numerical calculation. . . .
      Reasonable doubt is whatever you find reasonable. . . .

             . . . [P]roof beyond a reasonable doubt is proof that
      leaves you firmly convinced. There are few things that we
      can know for absolute certainty. You don’t have to know for
      absolute certainty. If you find the doubt reasonable, you find
      him not guilty. You should not find the defendant’s story
      reasonable because it isn’t.

The thrust of the prosecutor’s argument was that the circumstantial
evidence proved Eshaya knew about the drugs in his shorts. The
prosecutor repeatedly attacked Eshaya’s claim of not noticing the pouch
inside his shorts, pointing out it was undermined by Eshaya’s own in-court
demonstration because he looked down each time he put the shorts on, and
the pouch would have been visible from that perspective. Indeed, as
defense counsel would later acknowledge in closing argument, Eshaya’s
story was one that was “not very plausible for most of us.” The prosecutor
had also recently drawn the jury’s attention to the court’s instruction
regarding the credibility of witnesses and the reasonable doubt standard.
Although the prosecutor unnecessarily added some confusion by deviating
from the reasonable doubt instruction in the comment quoted above, it is
difficult to believe the jury would have understood that it must apply the
reasonable doubt standard to Eshaya when the verbal and written
instructions explicitly stated it applied to the State’s burden of proof.
Instead, it is more likely that the jurors would have understood the
comments to be part of the broader credibility theme. Moreover, any risk
that the jurors would have misunderstood the instructions was mitigated
by Eshaya’s own repeated insistence that the State’s failure to produce
certain evidence meant that it could not discharge its burden.




                                     6
                             STATE v. ESHAYA
                            Decision of the Court

¶18            The second incident Eshaya identifies occurred during the
State’s rebuttal closing argument, beginning with the prosecutor’s
statement: “This defendant has an excuse for everything. He needs you to
believe that he’s a victim of just terrible circumstance. So let’s go over what
it is that you would need to believe to find the defendant not guilty.”
(Emphasis added.) Eshaya objected, arguing that although the prosecutor
could argue “that you would need to believe he didn’t have knowledge for
the following reasons,” the prosecutor could not argue that Eshaya was
“not not guilty for the following reasons.” After conferring with counsel,
the superior court did not rule on the objection, and the prosecutor went on
to list aspects of Eshaya’s testimony she claimed the jury “need[ed] to
believe to buy the defendant’s story, to find him not guilty.” As the
prosecutor enumerated the sixth item, Eshaya renewed his objection as
burden shifting. The parties and the court reconvened to discuss the
objection, and without comment or direction to the jury, the court again
allowed the prosecutor to continue the argument unimpeded.

¶19            Viewing these comments in their proper context, we disagree
with Eshaya’s contention that they prejudiced him by shifting the burden
of proof from the State to him for at least four reasons. First, because they
concerned Eshaya’s own testimony, each comment was reasonably
supported by evidence. Second, this portion of the argument was situated
within a wider discussion of credibility. Before the objected-to comments,
the prosecutor noted Eshaya’s testimony was the only evidence that the
shorts he displayed to the jury at trial were actually the shorts he wore when
taken to the jail after his arrest. Soon after, the prosecutor emphasized that
credibility was “really . . . what this case turns on” and “the most important
issue.” Although the prosecutor initially spoke of what the jury “need[ed]
to believe to buy the defendant’s story, to find him not guilty,” each
subsequent use referred to what the jury would “have to believe” to credit
Eshaya’s narrative and she never again told the jury it could not acquit
Eshaya absent that belief. This indicates the prosecutor’s awkwardly-stated
aim was to undermine Eshaya’s credibility, not shift the burden of proof.
See Donnelly, 416 U.S. at 647 (“[I]mprovisation frequently results in syntax
left imperfect and meaning less than crystal clear.”). It was in that context
the objected-to statements were made and we “should not lightly infer” that
the jury “sitting through lengthy exhortation” drew the “most damaging
meaning . . . from [a] plethora of less damaging interpretations.” See id.

¶20           Third, Eshaya’s own closing argument repeatedly attacked
the sufficiency of the police investigation for failing to collect forensic
evidence, arguing the police made no attempt to “find the right person”
because they had “a warm body” and so “they didn’t want to do this


                                      7
                              STATE v. ESHAYA
                             Decision of the Court

investigation.” Although such comments do not give prosecutors “license
to make otherwise improper arguments” in response, their presence may
lessen or remove any unfairness concerning the prosecutorial argument in
response. Young, 470 U.S. at 12; see Darden v. Wainwright, 477 U.S. 168, 179–
83 (1986) (reasoning that prosecutor’s comments, though improper, were
not fundamentally unfair where defense’s argument, inter alia, blamed the
sheriff’s office for a lack of evidence). Fourth, the State’s burden was
mentioned multiple times throughout the trial, including by the court, the
defense, and the prosecutor—ameliorating the risk of unfairness. See Acuna
Valenzuela, 245 Ariz. at 220, ¶ 91.

       C.     Cumulative Effect

¶21            To reiterate, Eshaya’s sole argument on appeal is that the
cumulative effect of the foregoing alleged instances of prosecutorial
misconduct denied him a fair trial. As we have already explained, supra
¶ 9, this requires the misconduct to be pronounced and persistent, to infect
the entire trial with an atmosphere of unfairness, and to indicate the
prosecutor acted intentionally and without regard to how it might
prejudice Eshaya.

¶22            We have reviewed each instance of alleged misconduct
Eshaya cites and have concluded that none rise to the level of prosecutorial
misconduct. The cross-examination, although argumentative, was neither
very egregious nor very long. The comments made during closing
arguments were reasonably supported by the evidence, raised in the wider
context of a credibility discussion, and made only after both parties
repeatedly emphasized the State’s burden. The prosecutor’s phrasing was
less than careful but that does not indicate any malice. Moreover, the jurors
were properly instructed on burden of proof multiple times, including
when the court delivered its impasse instruction during their deliberations.
We see no reason to depart from our usual presumption that the jury
followed this instruction. Goudeau, 239 Ariz. at 469, ¶ 214. Simply put,
Eshaya has failed to demonstrate these isolated incidents over the course of
the six-day trial rendered it so unfair as to deny him due process. Sanders,
245 Ariz. at 134, ¶ 103; see State v. Hulsey, 243 Ariz. 367, 389–90, ¶ 89 (2018)
(holding that although the prosecutor “engaged in several instances of
misconduct or near misconduct, altogether it was not so prolonged or
pronounced that it affected the fairness of trial”); State v. Schneider, 148 Ariz.
441, 447 (App. 1985) (reasoning that the court’s instruction and the length
of trial when compared to isolated argument resolved any prejudice); see
also Donnelly, 416 U.S. at 645 (same).



                                        8
                             STATE v. ESHAYA
                            Decision of the Court

¶23           After considering each of the instances Eshaya identifies as
improper conduct, we conclude “[t]he record does not suggest pervasive
prosecutorial misconduct that deprived [him] of a fair trial.” State v.
Gallardo, 225 Ariz. 560, 570, ¶ 47 (2010).

¶24            Recognizing “that we have the luxury of reflecting upon a
written record and are not surrounded by the heated battle” of trial, Pool,
139 Ariz. at 104 n.7, we nonetheless caution prosecutors to avoid using the
awkward language the prosecutor used in this case. Our decision to affirm
should not be taken as a license for the State to repeatedly phrase its
questions or argue that a jury “must believe” or “needs to believe” a
defendant’s testimony in order to find him not guilty. The State’s
responsibility to prove each element of the charged offense is not just any
“right essential to the defense,” Escalante, 245 Ariz. at 138, ¶ 1, it “provides
concrete substance for the presumption of innocence—that bedrock
‘axiomatic and elementary’ principle whose ‘enforcement lies at the
foundation of the administration of our criminal law,’” In re Winship, 397
U.S. 358, 363 (1970) (citation omitted). Thus, prosecutors would do well to
err on the side of caution and not vary from the concepts underlying the
standard reasonable doubt instruction.

                               CONCLUSION

¶25           For the foregoing reasons, we affirm Eshaya’s convictions and
sentences.




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

                                         9
