                                                                         FILED BY CLERK
                                                                            MAR 23 2009
                             IN THE COURT OF APPEALS
                                 STATE OF ARIZONA                            COURT OF APPEALS
                                                                               DIVISION TWO
                                   DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )           2 CA-CR 2007-0074
                                 Appellee,    )           DEPARTMENT A
                                              )
                    v.                        )           OPINION
                                              )
SHAWN DE NEAN EDMISTEN,                       )
                                              )
                                Appellant.    )
                                              )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. CR-20060019

                      Honorable Frank Dawley, Judge Pro Tempore

                                       AFFIRMED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and David A. Sullivan                                          Tucson
                                                                    Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By Frank P. Leto                                                                  Tucson
                                                                   Attorneys for Appellant


H O W A R D, Presiding Judge.


¶1            After a jury trial, Shawn Edmisten was convicted of several felony offenses

including burglary, aggravated assault, kidnapping, armed robbery, and drive-by shooting.

On appeal, Edmisten contends the trial court erred by giving erroneous jury instructions and
the prosecutor engaged in misconduct during closing argument. For the following reasons,

we affirm.

                                            Facts

¶2            “We view the facts in the light most favorable to sustaining the convictions.”

State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). Armed with various

weapons, Edmisten and three other perpetrators invaded a home, with the intent to steal

drugs, by kicking in a door and attacking the residents inside. The perpetrators found no

drugs but stole two handguns and left in a car. When a sheriff’s deputy tried to pull their car

over, Edmisten pointed a handgun at the deputy. During an ensuing car chase, Edmisten and

one of his codefendants shot at two patrol cars and one passing motorist. The innocent

motorist was struck by a bullet and suffered severe injuries. The car containing Edmisten

and the others eventually crashed into a ditch, and the occupants fled into the desert.

¶3            Edmisten approached a house carrying an AK-47 rifle. The residents of the

house, a family with two children, were sitting on the back porch. Edmisten demanded car

keys and then ordered everyone into the house. He told the family that the police were after

him and he did not want to get caught. After learning one of the residents had called 911,

Edmisten himself called 911 and told the operator he was the owner of the house and

“everything was fine, that the person moved on.” He then ripped the telephone from the wall

and removed the battery from another, portable telephone. Edmisten also took control of a

cellular telephone, which he used to call someone to ask for a ride. He then watched the six

o’clock television news to see coverage of the events, and he asked the residents about

different transportation possibilities including whether he could ride a horse they owned and

                                              2
whether they owned an all-terrain vehicle. After one of the residents asked him to put the

rifle down so as not to make everyone nervous, Edmisten removed the clip, hid the weapon

behind a couch, and put the clip under a cushion. He also asked for and received a change

of clothes.

¶4            Edmisten then discovered there was a portable telephone on the back porch and

ordered one of the residents to retrieve it. The resident saw sheriff’s deputies outside and

informed them that Edmisten was in the house. The deputies entered and arrested Edmisten.

After he was in custody, Edmisten told a sergeant that he had taken LSD and that the

emergency lights on the sergeant’s car were “wigging him out.” The deputy who had initially

tried to stop the perpetrators’ car drove to where Edmisten was being held and identified

Edmisten as the person who had aimed a gun at him.

¶5            At trial, Edmisten’s primary defense was that he had been involuntarily

intoxicated at the time of the crimes. Edmisten’s former girlfriend, Yolanda V., testified that,

earlier on the day of the offenses, she had secretly slipped two Ecstasy pills into his drink.

Yolanda testified that Ecstasy made Edmisten disoriented, uncomfortable because it

prevented him from urinating, and incapable of driving a car.           The state challenged

Yolanda’s credibility by eliciting testimony that she had not come forward with this evidence

until approximately five months after the date of the offenses and by pointing out

inconsistencies in her story with respect to the precise date she had allegedly given Edmisten

the drug. The state also suggested Yolanda’s motive for testifying was that she wanted

Edmisten to pay child support for the child they had together.




                                               3
                                      Jury Instructions

¶6            Edmisten first argues the trial court’s instructions on involuntary intoxication

were “incomplete, confusing, and misled the jury as to the State’s and defendant’s respective

burdens of proof.” Division One of this court has described the involuntary intoxication

defense as permitting a defendant “to negate the requisite state of mind for a criminal act.”

State v. McKeon, 201 Ariz. 571, ¶ 20, n.2, 38 P.3d 1236, 1240 & n.2 (App. 2002); cf. A.R.S.

§ 13-503 (prohibiting voluntary intoxication as defense “for any criminal act or requisite state

of mind”). As a general matter, the burden in a criminal trial is on the state to prove the

defendant’s guilt beyond a reasonable doubt. See State v. Portillo, 182 Ariz. 592, 594, 898

P.2d 970, 972 (1995). This burden includes any required mental state. See State v.

Amaya-Ruiz, 166 Ariz. 152, 173, 800 P.2d 1260, 1281 (1990) (state has burden to prove

every element of offense including mental state). And the statutes do not expressly provide

for any burden-shifting when a defendant offers evidence of involuntary intoxication in an

attempt to negate the culpable mental state for the offenses charged. See McKeon, 201 Ariz.

571, n.2, 38 P.3d at 1240 n.2 (noting legislature “neither abolished the State’s burden of

proving that a defendant possessed the requisite state of mind at the time of the offense, nor

abolished the defendant’s opportunity to introduce evidence to counter the State’s

evidence”).

¶7            The state, however, impliedly argues involuntary intoxication is an affirmative

defense and relies on State v. Figueroa, 151 Ariz. 213, 215, 216, 726 P.2d 629, 631, 632

(App. 1986), for the proposition that the burdens of proof and persuasion are on the

defendant. But since Figueroa was decided, the legislature has abolished all common law

                                               4
affirmative defenses and provided that any affirmative defense can only exist by statute. See

A.R.S. § 13-103(A); 1997 Ariz. Sess. Laws, ch. 136, § 3. Today, no Arizona statute

explicitly makes involuntary intoxication an affirmative defense. And, pursuant to § 13-

103(B), the term “‘affirmative defense’ . . . does not include . . . any defense that either

denies an element of the offense charged or denies responsibility.” Thus, involuntary

intoxication is not an affirmative defense, and Figueroa is no longer good authority for

determining the applicable burden of proof and persuasion.

¶8            We conclude, consistent with McKeon, that involuntary intoxication is a

defense that “denies an element of the offense charged or denies responsibility” as provided

in § 13-103(B). See McKeon, 201 Ariz. 571, ¶ 20, n.2, 38 P.3d at 1240, 1240 n.2. Therefore,

when the defendant offers evidence of involuntary intoxication, the burden remains on the

state to prove beyond a reasonable doubt that the defendant is guilty of the offenses charged,

which necessarily includes proving the requisite mental state beyond a reasonable doubt.1




       1
         We acknowledge Judge Hall’s special concurrence in McKeon, in which he argued
that the defense of involuntary intoxication does not exist in Arizona unless it is pled as the
affirmative defense of temporary insanity under A.R.S. § 13-502. McKeon, 201 Ariz. 571,
¶¶ 39, 44, 38 P.3d at 1244, 1245. If involuntary intoxication were raised as an insanity
defense, the burden would be on the defendant to prove his insanity resulting from
involuntary intoxication by clear and convincing evidence. See § 13-502(c). Numerous other
jurisdictions allow an involuntary intoxication defense only as a form of insanity defense.
See Paul H. Robinson, 2 Criminal Law Defenses § 176(a) (2008); see also Commonwealth
v. Smith, 831 A.2d 636, ¶ 9 (Pa. Super. Ct. 2003); State v. Gardner, 601 N.W.2d 670, 673-74
(Wis. Ct. App. 1999); State v. Voorhees, 596 N.W.2d 241, 250 (Minn. 1999); People v.
Wilkins, 459 N.W.2d 57, 59-60 (Mich. Ct. App. 1990) (collecting cases). In this case,
Edmisten did not pursue an insanity defense. But because neither party has argued on appeal
that McKeon was incorrectly decided, we do not decide today whether we agree with the
McKeon majority or concurrence.

                                              5
See Portillo, 182 Ariz. at 594, 898 P.2d at 972; Amaya-Ruiz, 166 Ariz. at 173, 800 P.2d at

1281.

¶9            At Edmisten’s request, the trial court provided the following instruction on

involuntary intoxication:

                      Intoxication resulting from the involuntary use of alcohol
              or drugs may be considered by you with respect to the culpable
              mental state required to prove an offense. The requisite mental
              states are “intentionally” or “with intent to[,”] “knowingly[,”]
              “recklessly” and “with premeditation[.”]

                      If you find that the defendant became intoxicated solely
              as a result of drugs or alcohol administered to him against his
              will or against his knowledge, you should then consider whether
              the degree of intoxication precluded the defendant from acting
              with a particular mental state or states required to establish an
              offense.

Edmisten argued below that involuntary intoxication was similar to a justification defense

and that the “jurors should [also] be instructed that the burden is on the State to affirmatively

disprove the intoxication [defense].” The court rejected Edmisten’s analysis and his oral

request for this separate instruction but instructed the jury on the state’s burden to prove

defendant’s guilt beyond a reasonable doubt using the language mandated in Portillo, 182

Ariz. at 596, 898 P.2d at 974. The court also instructed that each charged offense required

proof of particular elements including a specific mental state.

¶10           On appeal, Edmisten argues the trial court erred in failing to instruct the jury

on the level of proof necessary to show involuntary intoxication, failing to instruct that the

state had the burden to prove every element of the offenses beyond a reasonable doubt, and

failing to instruct on the operative effect of a finding of involuntary intoxication by


                                               6
explaining that, if the jurors “had a reasonable doubt about the defendant’s mental state based

on his involuntary intoxication, they could acquit or find him guilty of a lesser offense.” 2 But

Edmisten did not raise these issues below, and his objection to the court’s refusal to instruct

that the state must affirmatively disprove intoxication did not preserve these new claims of

error. See Ariz. R. Crim. P. 21.3(c) (grounds of objection to instruction must be stated

distinctly); see also State v. Schurz, 176 Ariz. 46, 54, 859 P.2d 156, 164 (1993) (general

objection to instruction does not preserve specific).

¶11           When a defendant fails to raise an objection below, we review for fundamental

error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005); see also Ariz. R.

Crim. P. 21.3(c). Fundamental error involves “‘error going to the foundation of the case,

error that takes from the defendant a right essential to his defense, and error of such

magnitude that the defendant could not possibly have received a fair trial.’” Henderson, 210

Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982

(1984). With regard to jury instructions, fundamental error occurs “when the trial judge fails

to instruct upon matters vital to a proper consideration of the evidence.” State v. Laughter,

128 Ariz. 264, 267, 625 P.2d 327, 330 (App. 1980). To prevail on a claim of fundamental

error, the appellant must first show error and then show that the error is fundamental and




       2
         In his reply brief, Edmisten repeated his contention below that involuntary
intoxication is like a justification defense and for the first time argued that, under a recent
amendment to A.R.S. § 13-205(A), the legislature imposed on the state the burden to prove
the defendant had not acted with justification. An argument first raised on appeal in the reply
brief is waived, and we will not address it. State v. Ruggiero, 211 Ariz. 262, n.2, 120 P.3d
690, 695 n.2 (App. 2005).

                                               7
prejudicial. Henderson, 210 Ariz. 561, ¶¶ 20, 23, 115 P.3d at 607, 608. For several reasons,

we find no fundamental, prejudicial error here.

¶12           First, the trial court did not fail to instruct on a level of proof. As we already

observed, the court properly instructed the jury that the state had the burden of proving the

defendant’s guilt beyond a reasonable doubt. See Portillo, 182 Ariz. at 594, 898 P.2d at 972.

Because involuntary intoxication is not a defense that triggers any type of burden-shifting,

there was no other level of proof on which to instruct.

¶13           Second, although our supreme court has approved instructions using the “every

element” language that Edmisten claims on appeal was erroneously omitted, see State v.

Orendain, 188 Ariz. 54, 55, 56, 932 P.2d 1325, 1326, 1327 (1997), Edmisten has cited no

authority that would require the trial court to use that language.3 As we stated above, the trial

court properly instructed the jury on the state’s burden, using the language mandated by our

supreme court in Portillo, 182 Ariz. at 596, 898 P.2d at 974.

¶14           Third, the trial court did not fail to instruct the jury on the “operative effect”

of a finding of involuntary intoxication. The court explained that the jury could consider the

evidence of involuntary intoxication “with respect to the culpable mental state required to

prove an offense.” And, again, the court told the jury that, if it had a reasonable doubt as

defined in Portillo, 182 Ariz. at 596, 898 P.2d at 974, it should find Edmisten not guilty.

Thus, the court did instruct the jury on what to do if it determined Edmisten had been

involuntarily intoxicated.


       3
        Although an instruction using the “every element” language was not required, adding
such language may indeed be helpful to juries.

                                               8
¶15           In addition, during closing argument, Edmisten explained any ambiguity in the

instructions. See State v. Johnson, 205 Ariz. 413, ¶ 11, 72 P.3d 343, 347 (App. 2003)

(appellate court will consider jury instructions “in context and in conjunction with the closing

arguments of counsel”); see also State v. Martinez, 175 Ariz. 114, 118, 854 P.2d 147, 151

(App. 1993). Edmisten told the jury that the state had to “prove each and every element,

including the mental state.” He reminded the jury that the state had the burden to prove him

guilty beyond a reasonable doubt. And he told the jurors that if they concluded he had been

under the influence of a drug to the point where he could not form the requisite mental state,

then they must find him not guilty.

¶16           The state, during closing argument, also reminded the jury that it had the

burden to prove the defendant’s guilt beyond a reasonable doubt. And during rebuttal

argument, the state asserted: “[E]ven if Mr. Edmisten had taken those drugs without his

knowledge, all that allows you to do is say, gee, given that fact, is there evidence that he

intended to commit these crimes independent of that?” The state then summarized all the

evidence it had presented to show Edmisten was “able to form the intent to make decisions”

and concluded the jury should find this was overwhelming evidence of guilt.

¶17           Thus, both parties clarified the instructions concerning who had the burden of

proof, and both emphasized the issue of whether the state had met its burden to prove

Edmisten had the requisite mental state in light of the evidence of involuntary intoxication.

We can safely conclude that these instructions, together with the arguments, left the jury

“with the unqualified impression that each element of the crime,” including mental state,

“must be proven beyond a reasonable doubt.” Orendain, 188 Ariz. at 56, 932 P.2d at 1327.

                                               9
Therefore, any error in the instructions—including the omission of an instruction that the jury

could acquit if they had a reasonable doubt about the defendant’s mental state in light of the

evidence of involuntary intoxication—did not constitute fundamental error. Cf. State v.

Tucker, 215 Ariz. 298, ¶¶ 65, 69, 160 P.3d 177, 195-96, cert. denied, ___ U.S. ___, 128

S. Ct. 296 (2007) (error in instructing jury on burden of proof regarding mitigation evidence

not fundamental); State v. Moody, 208 Ariz. 424, ¶¶ 188, 193, 94 P.3d 1119, 1161-62 (2004)

(misstatement of law in instruction on voluntary intoxication not fundamental error).

¶18           Moreover, the evidence that Edmisten was actually involuntarily intoxicated

was weakened considerably by the challenges to Yolanda’s credibility and the evidence of

Edmisten’s behavior during the incidents. A review of that behavior does not support

Edmisten’s contention that he “was sufficiently deprived of his reason that he did not intend

the natural results of his actions.” McKeon, 201 Ariz. 571, ¶ 24, 38 P.3d at 1241. On the

contrary, the evidence shows he made numerous deliberate decisions, was aware he was

engaging in criminal activity, and was calculating his options for escape. And the fact that

Edmisten had admitted at the time of his arrest to having taken LSD further compromised his

evidence of involuntary intoxication. See § 13-503 (temporary intoxication from voluntary

ingestion of illegal substance “not a defense for any criminal act or requisite state of mind”);

cf. Burchfield v. State, 464 S.E.2d 27, 28 (Ga. Ct. App. 1995) (testimony defendant’s

girlfriend slipped drug into defendant’s coffee not “conclusive evidence” of involuntary

intoxication where defendant consumed substantial amount of alcohol prior to offense).

Thus, even were we to conclude fundamental error did result from the instructions, there is




                                              10
no reasonable probability the jury would have reached a different result, and Edmisten has

not shown prejudice. See Henderson, 210 Ariz. 561, ¶¶ 26, 27, 115 P.3d at 608, 609.

¶19           At oral argument, Edmisten challenged for the first time the portion of the

involuntary intoxication instruction that read, “you should then consider whether the degree

of intoxication precluded the defendant from acting with a particular mental state.” Edmisten

argued this language, specifically the use of the word “precluded,” improperly suggested to

the jury that Edmisten had some burden of proof to show he did not have the requisite mental

state. But Edmisten himself requested this instruction below. Therefore, to the extent the

language to which he now objects was an incorrect statement of law, he invited the error, and

we will not consider it on appeal. See State v. Logan, 200 Ariz. 564, ¶ 9, 30 P.3d 631, 632-

33 (2001). Moreover, arguments raised for the first time at oral argument are generally

waived. State v. Murdaugh, 209 Ariz. 19, ¶ 29, 97 P.3d 844, 851 (2004).

¶20           Also at oral argument, Edmisten expanded on his contention that the trial court

erred in not giving a separate instruction on reasonable doubt as to mental state with regard

to involuntary intoxication. He contended for the first time that our supreme court’s analysis

in State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998), controls and it required the court

to give such an instruction. In Rodriguez, the court held that, when a defendant offers

evidence in support of an alibi defense, the trial court should instruct the jury on alibi in a

manner that will prevent the jury from “incorrectly assum[ing] that the defendant bears the

burden of proving his alibi.” Id. ¶ 25. The proffered instruction in Rodriguez stated:

                     The defendant has produced evidence of being absent at
              the time and place the alleged crime was committed. If you
              have a reasonable doubt whether the defendant was present at

                                              11
              the time and place the alleged crime was committed, you must
              find the defendant not guilty.

Id. ¶ 30. Edmisten now argues a similar instruction regarding involuntary intoxication was

necessary in his trial to prevent the risk that the jury would incorrectly conclude Edmisten

had some burden of proof with respect to his involuntary intoxication defense.

¶21           We recognize a conceptual similarity between the alibi and involuntary

intoxication theories in that each generally originates from the defense. Again arguments

raised for the first time at oral argument are generally waived. Murdaugh, 209 Ariz. 19, ¶ 29,

97 P.3d at 851. And, in Rodriguez, the defendant had requested the alibi instruction at trial

and had therefore preserved the issue for appeal. 192 Ariz. 58, ¶ 15, 961 P.2d at 1009. Here,

Edmisten did not request the instruction and therefore, as stated above, we review only for

fundamental error and prejudice. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.

Assuming without deciding that Edmisten would have been entitled to an instruction

comparable to that in Rodriguez—had he requested it—as we have already concluded above,

any error in omitting that instruction in this case was neither fundamental nor prejudicial.

Cf. State v. Valenzuela, 194 Ariz. 404, ¶¶ 14-16, 984 P.2d 12, 15-16 (1999) (failure to

instruct on reckless manslaughter as lesser-included offense denied defendant right essential

to defense and went to foundation of theory of defense).

                                Prosecutorial Misconduct

¶22           Edmisten also contends the prosecutor engaged in misconduct during closing

argument. Because he did not object to the alleged instances of misconduct, we review his




                                             12
allegations for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601,

607 (2005).

¶23            To show fundamental error, the defendant must first prove error—that is, here,

that misconduct actually occurred. Id. ¶ 23; State v. Harrod, 218 Ariz. 268, ¶ 35, 183 P.3d

519, 529 (2008). After establishing error,

               “[t]o prevail on a claim of prosecutorial misconduct, a defendant
               must demonstrate that the prosecutor’s misconduct so infected
               the trial with unfairness as to make the resulting conviction a
               denial of due process. Reversal on the basis of prosecutorial
               misconduct requires that the conduct be so pronounced and
               persistent that it permeates the entire atmosphere of the trial.”

Harrod, 218 Ariz. 268, ¶ 35, 183 P.3d at 529, quoting State v. Hughes, 193 Ariz. 72, ¶ 26,

969 P.2d 1184, 1191 (1998). Prosecutors have “wide latitude in their closing arguments to

the jury.” State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). When one party

raises an argument that is improper or irrelevant, “the other party may have a right to . . .

respond[] with comments . . . on the same subject.” Pool v. Superior Court, 139 Ariz. 98,

103, 677 P.2d 261, 266 (1984). We will not reverse a conviction because of a prosecutor’s

improper comments during closing argument unless there is a “‘reasonable likelihood’ that

the ‘misconduct could have affected the jury’s verdict.’” State v. Newell, 212 Ariz. 389,

¶ 67, 132 P.3d 833, 847 (2006), quoting State v. Atwood, 171 Ariz. 576, 606, 832 P.2d 593,

623 (1992).

¶24            Edmisten first argues the prosecutor made comments that improperly “appealed

to the fear of the jury, unfairly inflamed their passion, and unfairly appealed to their prejudice

and sympathy.”      During Edmisten’s closing argument, defense counsel discussed the


                                               13
differences in Edmisten’s behavior while committing the various offenses charged and in his

demeanor in the courtroom. During the state’s rebuttal argument, the prosecutor said:

                      Now, I’m not sure what counsel is asking you to do, but,
              in terms of when he talks to you about you have seen Mr.
              Edmisten sitting here this last week and you noticed his
              demeanor and, gee, does that look like the demeanor of
              somebody who would do all of these violent crimes, well, ladies
              and gentlemen, we certainly expect defendants, when they come
              into this courtroom, to sit here and be somewhat polite and not
              start shooting people. If that was the case, we would have a
              problem. We would expect this defendant to sit here before the
              jury and act polite and act just like he has been the last few days.
              His demeanor in court has nothing to do with whether or not he
              committed these crimes on December 22nd of 2005.

¶25           The prosecutor’s comments about Edmisten’s in-court demeanor responded

directly to a point defense counsel had raised and fell well within the latitude afforded

attorneys during closing argument. See Comer, 165 Ariz. at 426, 799 P.2d at 346. Even if

the prosecutor’s comment could be considered improper or irrelevant, Edmisten’s counsel

opened the door to such argument, and the prosecutor was entitled to respond. See Pool, 139

Ariz. at 103, 677 P.2d at 266.

¶26           Edmisten next argues the prosecutor engaged in misconduct by addressing

Edmisten’s failure to call a certain witness to testify and thus confused the jury regarding

who had the burden of proof. “It is well settled that a ‘prosecutor may properly comment

upon the defendant’s failure to present exculpatory evidence, so long as the comment is not

phrased to call attention to the defendant’s own failure to testify.’” State v. Herrera, 203

Ariz. 131, ¶ 19, 51 P.3d 353, 359 (App. 2002), quoting State v. Fuller, 143 Ariz. 571, 575,

694 P.2d 1185, 1189 (1985). “Such comment is permitted by the well recognized principle


                                              14
that the nonproduction of evidence may give rise to the inference that it would have been

adverse to the party who could have produced it.” State ex rel. McDougall v. Corcoran, 153

Ariz. 157, 160, 735 P.2d 767, 770 (1987). Our supreme court has stated: “It strikes us as

elemental fairness to allow the State to comment upon the defense’s failure to adduce

potentially exculpatory evidence to which defendant had access when defendant is attacking

the accuracy of the State’s evidence.” Id.

¶27           Here, a deputy testified that, after Edmisten was apprehended, the deputy had

identified Edmisten as the person who had pointed a gun at him during the police chase.

Edmisten offered evidence in an attempt to show the identification had never happened. The

prosecutor merely pointed out during closing arguments that, although Edmisten had no

burden to present any evidence or prove anything, he could have called another deputy

who—according to the first deputy’s testimony—had been present at the time of the

identification. “Elemental fairness” allowed the state to comment on Edmisten’s failure to

call this “potentially exculpatory” witness. Corcoran, 153 Ariz. at 160, 735 P.2d at 770; see

also Herrera, 203 Ariz. 131, ¶ 19, 51 P.3d at 359. The state was not unreasonable in

suggesting that Edmisten’s failure to produce the witness gave rise to an inference that the

witness’s testimony would have been unfavorable to Edmisten.4 See Corcoran, 153 Ariz. at


       4
        Edmisten cites State v. Corona, 188 Ariz. 85, 89-90, 932 P.2d 1356, 1360-61 (App.
1997), for the proposition that the state cannot comment on the defendant’s failure to call an
expert witness when no evidence has been presented that the defendant consulted an expert.
In discussing a case addressing a similar issue, the court in Corona reasoned “the restriction
on such comment was proper . . . ‘because defendants did not call the subject experts, the
jury knew nothing about them and there was no need to explain why they did not testify.’”
Id., quoting Gordon v. Liguori, 182 Ariz. 232, 236, 895 P.2d 523, 527 (App. 1995). But
here, the jury heard evidence that another deputy was present when the testifying deputy

                                             15
160, 735 P.2d at 770. Because we conclude the state did not engage in prosecutorial

misconduct, Edmisten cannot sustain his burden to show fundamental error. See Henderson,

210 Ariz. 561, ¶ 23, 115 P.3d at 608 (to establish fundamental error, defendant must first

show error).

                                        Conclusion

¶28            In light of the foregoing, we conclude no fundamental error resulted from the

trial court’s instructions to the jury or from the prosecutor’s remarks during closing

argument. We therefore affirm Edmisten’s convictions and sentences.



                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge



CONCURRING:



____________________________________
JOHN PELANDER, Chief Judge



____________________________________
J. WILLIAM BRAMMER, JR., Judge




identified Edmisten, and arguably there was a need to explain why the other deputy did not
testify. The reasoning in Corona is therefore inapplicable.

                                             16
