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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JERMAINE PLEDGER, Appellant.

                             No. 1 CA-CR 12-0604
                               FILED 1-8-2015

           Appeal from the Superior Court in Maricopa County
                        No. CR2011-005417-001
                 The Honorable Robert E. Miles, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender, Phoenix
By Peg Green
Counsel for Appellant



                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.


G E M M I L L, Judge:
                           STATE v. PLEDGER
                           Decision of the Court


¶1             Jermaine Pledger appeals his convictions and sentences for
conspiracy to commit possession of marijuana for sale, possession of
marijuana for sale, armed robbery, kidnapping, misconduct involving
weapons, misconduct involving body armor, and two counts of aggravated
assault. Pledger argues the prosecutor engaged in misconduct when she
vouched for a witness during closing argument and that the second count
of aggravated assault could not be a class 2 felony because the State failed
to prove Pledger knew the victim was a peace officer engaged in the
execution of official duties. We have jurisdiction pursuant to Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.")
sections 12-120.21(A) (2003), 13-4031 (2010) and 13-4033 (2010). We address
the first issue — alleged prosecutorial misconduct in the form of vouching
— in this memorandum decision. We address the second issue — involving
statutory interpretation — in a published opinion filed contemporaneously
with this decision.      For the reasons explained below and in the
accompanying opinion, we affirm Pledger's convictions and sentences.

                             BACKGROUND

¶2            Pledger sought to purchase approximately 170 pounds of
marijuana from “Ruiz.” Led by Pledger, Ruiz eventually drove a vehicle
containing 170 pounds of marijuana to a residence. Ruiz parked the vehicle
in the garage, and Pledger closed the garage door. As Ruiz walked into the
residence from the garage, another person struck Ruiz in the chest with a
handgun and told him it was “a rip,” meaning they were going to steal the
marijuana. Pledger and two other armed men then held Ruiz in the
residence at gunpoint. Pledger and his accomplices were unaware that
Ruiz was a paid informant working with an undercover police officer who
was observing the residence from an unmarked car parked up the street.

¶3           Believing they would kill him, Ruiz fled through the back
door of the residence when the opportunity arose. Pledger and his two
accomplices then fled the house. Pledger and one accomplice fled in
Pledger’s vehicle, while the third accomplice fled in Ruiz’s vehicle with the
marijuana.

¶4            Ruiz ran to the undercover officer and informed him it was a
“drug rip.” The officer and Ruiz pursued Pledger’s vehicle and eventually
found it stopped in an industrial cul-de-sac. The officer stopped his vehicle
up the street from the cul-de-sac, retrieved a bullet-proof-vest from the
trunk and put it on in a manner that he hoped would allow Pledger and his
accomplice to see the word “POLICE” emblazoned in yellow letters on the


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                            STATE v. PLEDGER
                            Decision of the Court

vest. Because he was in plain clothes, the officer hoped this would prevent
Pledger and his accomplice from taking any action against them.

¶5            After the officer got back in his vehicle, Pledger drove straight
at him. As Pledger’s car approached, Pledger lowered his driver’s window,
held a gun out the window, and pointed it at the officer. Although the
officer feared that Pledger would shoot, Pledger drove past the officer’s
vehicle without firing. Other officers eventually apprehended Pledger.

             ALLEGED PROSECUTORIAL MISCONDUCT

¶6             Pledger contends the prosecutor engaged in misconduct
during her rebuttal argument when she allegedly vouched for the
credibility of Ruiz.

¶7            In his closing argument, Pledger’s counsel argued, “Well, we
know before [Ruiz] ever was brought into this that he lied to police twice.
So we have a liar to start. So we have a liar coming into this courtroom
when another man is on trial, and you're just supposed to accept what he
says because he's in the courtroom? Think about that.” Pledger’s counsel
continued, “Basically, what I'm saying is that you need to disregard
everything that he said, because that's justice. Think about that person that
testified. Think about the inconsistencies he talked about, okay, and let me
talk about those.” After counsel discussed alleged inconsistencies in Ruiz’s
testimony, he argued, “Do we, as a society, as a criminal justice system, use
that to convict somebody? Is that what we do?”

¶8           After he discussed more alleged inconsistencies in Ruiz's
testimony, Pledger’s counsel further argued:

       Let’s talk about the ridiculous things that [Ruiz] says that
       trump everything else that he says, where you cannot derive
       or find a fact from him.

       He goes on a monologue about how the police get no credit.
       They risk their lives every day. He talks about he’s found the
       love of his life and this is why he’s snitching out Jermaine
       Pledger, because he found the love of his life.

       And then he tries to cry. I didn’t see any tears. I saw him
       trying to cry. That’s ridiculous. Does that trump everything
       else that he talks about? This is serious. This is a serious
       situation, a man is on trial. Are we going to accept that? Can
       you accept that?


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                           STATE v. PLEDGER
                           Decision of the Court

      Can you accept his credibility, period? You can’t. He’s
      working for cash. He’s working for straight cash. He keeps
      working after this happens. He gets pulled over. He’s facing
      potential charges. And there’s motive, bias – you look at the
      credibility of witnesses instruction – all over the place.

      What I submit to you is certain ridiculous things that he said
      in this trial that, using your common sense, you could almost
      laugh at. That trumps the rest of his testimony to the extent
      you need to reject it, because it’s not fair to try to derive facts
      from it otherwise. That’s not justice.

¶9           In rebuttal, the prosecutor argued:

      [Ruiz] stood in this courtroom, right where I’m standing, held
      his hand up and swore to tell the truth. He was honest with
      you when he told you that he lied to the police when he was
      stopped with $30,000 in his car. He was honest with you in
      telling you that the lied to the police when he had 80 pounds
      of marijuana in his car. He was honest with you when he told
      you that at that point in his life he was working for a drug
      trafficking organization, and he was honest with you when he
      relayed the events that happened between January 26th, 2011
      and February 16th, 2011.1

¶10           Pledger argues this portion of the prosecutor’s rebuttal
vouched for the credibility of Ruiz. “Two forms of impermissible
prosecutorial vouching exist: (1) when the prosecutor places the prestige of
the government behind its witness, and (2) where the prosecutor suggests
that information not presented to the jury supports the witness’s testimony.
In addition, a lawyer is prohibited from asserting personal knowledge of
acts in issue before the tribunal unless he testifies as a witness.” State v.
Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993). Pledger argues the
prosecutor’s rebuttal placed the prestige of the government behind Ruiz
and constituted an expression of the prosecutor’s personal opinion that
Ruiz was truthful.

¶11           Pledger concedes, however, that he raised no objection below.
A failure to object to alleged prosecutorial misconduct at the time of trial
waives the issue absent fundamental error. State v. Wood, 180 Ariz. 53, 66,


1 This is the only portion of the prosecutor’s argument Pledger identified
as improper in his opening brief.


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                            STATE v. PLEDGER
                            Decision of the Court

881 P.2d 1158, 1171 (1994). “To establish fundamental error, [a defendant]
must show that the error complained of 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.” State v. Henderson, 210 Ariz.
561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even when a defendant has
established fundamental error, the defendant must still demonstrate the
error was prejudicial. Id. at ¶ 26. In the context of whether a prosecutor’s
conduct amounts to fundamental error, we focus our inquiry on the
probability the conduct influenced the jury and whether the conduct denied
the defendant a fair trial. Wood, 180 Ariz. at 66, 881 P.2d at 1171. “The focus
is on the fairness of the trial, not the culpability of the prosecutor.” Bible,
175 Ariz. at 601, 858 P.2d at 1204.

¶12           We find no error, fundamental or otherwise. Prosecutors
have wide latitude in presenting closing arguments. State v. Jones, 197 Ariz.
290, 305, ¶37, 4 P.3d 345, 360 (2000). A prosecutor may characterize a
witness as truthful when the argument is sufficiently linked to the evidence
and the prosecutor does not place the prestige of the government behind
the witness or suggest that information not before the jury supports the
testimony. See State v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App.
1997).

¶13           Further, “[p]rosecutorial comments which are fair rebuttal to
comments made initially by the defense are acceptable.” State v. Duzan, 176
Ariz. 463, 468, 862 P.2d 223, 228 (App. 1993). Here, the prosecutor’s
argument was a fair rebuttal to Pledger’s counsel’s attack on Ruiz’s
credibility. The prosecutor’s argument addressed evidence introduced at
trial that counsel referenced directly and indirectly in his attack on Ruiz:
how Ruiz admitted he lied to police when stopped with $30,000 in his car,
how Ruiz admitted he lied to police when he was later stopped with a large
quantity of marijuana in his car, and how Ruiz admitted he had worked for
a drug organization. It was fair rebuttal for the prosecutor to argue that
Ruiz’s honesty regarding this unfavorable evidence showed he was also
honest when he testified about the events that led to the charges against
Pledger. Further, the prosecutor did so in a manner that did not place the
prestige of the government behind Ruiz, did not suggest that information
not before the jury supported Ruiz’s testimony, and did not express the
prosecutor’s personal opinion.

                              CONCLUSION

¶14           For the reasons stated in the accompanying opinion and
herein, we find no error and we affirm Pledger’s convictions and sentences.


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STATE v. PLEDGER
Decision of the Court




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