                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
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                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  EDUARDO SOTELO-NAVA, Appellant.

                             No. 1 CA-CR 17-0277
                               FILED 2-22-2018


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201400055
              The Honorable Jennifer B. Campbell, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Craig Williams Attorney at Law PLLC, Prescott Valley
By Craig Williams
Counsel for Appellant
                        STATE v. SOTELO-NAVA
                          Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Patricia A. Orozco1 joined.


B R O W N, Judge:

¶1             Eduardo Sotelo-Nava appeals his convictions and sentences
for sale or transport of a dangerous drug, a class 2 felony, and possession
or use of drug paraphernalia, a class 6 felony. He argues the prosecutor
engaged in misconduct and the superior court failed to timely consider his
motion for judgment of acquittal. Sotelo-Nava also asserts the court
interfered with his right to remain silent and improperly limited the scope
of his testimony. Finding no reversible error, we affirm.

          FACTUAL AND PROCEDURAL BACKGROUND2

¶2          Deputy Winfrey conducted a traffic stop on the pickup Sotelo-
Nava was driving on I-17. Sotelo-Nava explained he had borrowed the
pickup from a friend—the vehicle’s registered owner—in Texas, driven it
to Phoenix for a two-week holiday to visit family, and was presently
returning home to Texas.3 The pickup bore Mississippi license plates.

¶3           After noticing several details of Sotelo-Nava’s unusual
behavior indicating possible involvement in criminal activity, Winfrey
requested permission to search the vehicle. Sotelo-Nava verbally assented
and signed a consent-to-search form. Winfrey and Sergeant Dartt
subsequently located 11 one-pound bags of methamphetamine in hidden
compartments in the pickup’s rear passenger area. When Winfrey
informed Sotelo-Nava of the drugs that were found, Sotelo-Nava did not

1      The Honorable Patricia A. Orozco, retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2       “We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.”
State v. Valencia, 186 Ariz. 493, 495 (App. 1996)

3       The personal identification information that Winfrey inspected
listed a Phoenix address for Sotelo-Nava.

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                         STATE v. SOTELO-NAVA
                           Decision of the Court

visibly react, nor did he deny knowing the drugs were there. Winfrey
arrested Sotelo-Nava and transported him to the county sheriff’s office.

¶4            After two hung juries resulted in mistrials, a third jury found
Sotelo-Nava guilty of sale or transport of a dangerous drug (Count 1) and
possession or use of drug paraphernalia (Count 2). He was later sentenced
to concurrent prison terms of eight years on Count 1 and one year for Count
2. The superior court then permitted Sotelo-Nava to file this delayed
appeal.

                               DISCUSSION

       A.     Prosecutorial Misconduct

¶5           Sotelo-Nava testified he was unaware of the drugs in the
pickup. He explained that, during the month before the incident, he
became acquainted in Phoenix with an individual, “Juan,” who had friends
in Texas willing to temporarily employ Sotelo-Nava as a demolition
worker, and Juan loaned Sotelo-Nava a vehicle to drive from Phoenix to
Texas. Sotelo-Nava added that he had lived in Phoenix for approximately
11 years and was out of work when he met Juan.

¶6           During cross-examination, the prosecutor asked Sotelo-Nava
whether this was “the very first time any of us are hearing about this story
about Juan?” Sotelo-Nava answered affirmatively. Sotelo-Nava contends
the question amounted to misconduct because the prosecutor knew that,
based on Sotelo-Nava’s similar testimony in the two previous trials, Sotelo-
Nava had mentioned Juan before.

¶7             A conviction will be reversed for prosecutorial misconduct “if
(1) the prosecutor committed misconduct and (2) a reasonable likelihood
exists that the prosecutor’s misconduct could have affected the verdict.”
State v. Benson, 232 Ariz. 452, 463, ¶ 40 (2013). The defendant must prove
“the prosecutor’s 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)). “The misconduct must be so pronounced and persistent that it
permeates the entire atmosphere of the trial.” State v. Morris, 215 Ariz. 324,
335, ¶ 46 (2007) (internal quotations and citation omitted).

¶8             Sotelo-Nava did not object to the prosecutor’s question at
trial; thus, we review for fundamental error. See State v. Henderson, 210 Ariz.
561, 567, ¶ 19 (2005) (explaining that failure to object to alleged trial error
results in fundamental error review). “Accordingly, [Sotelo-Nava] bears


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                         STATE v. SOTELO-NAVA
                           Decision of the Court

the burden to establish that (1) error exists, (2) the error is fundamental, and
(3) the error caused him prejudice.” State v. James, 231 Ariz. 490, 493, ¶ 11
(App. 2013) (citations and internal quotation marks omitted). “Before we
may engage in a fundamental error analysis, however, we must first find
that the trial court committed some error.” State v. Lavers, 168 Ariz. 376, 385
(1991).

¶9            Properly construing the record, the prosecutor’s reference to
“us” in “[t]his is the first time any of us are hearing about Juan?” was not
improper. From the perspective of the jury at the third trial, this was the
first time Sotelo-Nava raised the “Juan story.” No error or misconduct
occurred. See Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974) (“[A] court
should not lightly infer that a prosecutor intends an ambiguous remark to
have its most damaging meaning or that a jury, sitting through lengthy
exhortation, will draw that meaning from the plethora of less damaging
interpretations.”).

¶10           On direct examination, Sotelo-Nava testified he did not
inform Winfrey about Juan. On cross-examination, the prosecutor asked
Sotelo-Nava whether, while he was at the police station after the traffic stop,
he had the opportunity to speak with Deputy Lopez, who spoke Spanish
fluently. Sotelo-Nava replied, without objection, “[y]es[,]” and he affirmed
that he declined to speak with Lopez. Immediately after Sotelo-Nava
affirmed “this is the first time we are hearing about Juan,” the prosecutor
asked, “[d]id you ever describe Juan to law enforcement?” Again, without
objection, Sotelo-Nava answered, “[n]o.”

¶11           Sotelo-Nava contends the prosecutor’s questioning regarding
his refusal to speak with Deputy Lopez amounted to misconduct that
elicited “an unconstitutional infringement on [Sotelo-Nava’s] right to
remain silent[.]” Based on the lack of objection at trial, we review for
fundamental error.

¶12           Under the Fifth Amendment and as a matter of due process,
a person in police custody has the right to remain silent in response to
interrogation, and, at trial, the State generally cannot refer to the
defendant’s decision to do so. Doyle v. Ohio, 426 U.S. 610, 617–20 (1976);
Miranda v. Arizona, 384 U.S. 436, 474, 478-79 (1966); State v. VanWinkle, 229
Ariz. 233, 236, ¶ 14 (2012); State v. Smith, 193 Ariz. 452, 457, ¶ 18 (1999). One
who speaks voluntarily after receiving Miranda warnings, however, has not
remained silent, Anderson v. Charles, 447 U.S. 404, 408 (1980); a prosecutor
may, therefore, discuss statements a defendant has voluntarily made
without commenting on the accused’s right to remain silent. See State v.


                                       4
                         STATE v. SOTELO-NAVA
                           Decision of the Court

Raffaele, 113 Ariz. 259, 263 (1976); see also Anderson, 447 U.S. at 409
(concluding a prosecutor may demonstrate inconsistencies between
descriptions of an event that “involve ‘silence’ insofar as [each] omits facts
included in the other version”). As a corollary, a prosecutor may impeach
a defendant who has made “new exculpatory statements at trial” with his
earlier, voluntary statements made to police officers. State v. Tuzon, 118
Ariz. 205, 207 (1978).

¶13            Sotelo-Nava’s apparent claim of a Fifth and Fourteenth
Amendment violation fails. Significantly, our review is limited by the
absence in the record of opening statements and closing arguments at trial.
Absent such transcripts, we cannot determine how the prosecutor, in front
of the jury, actually commented on Sotelo-Nava’s testimony. Also, Sotelo-
Nava voluntarily spoke with Deputy Winfrey during the traffic stop, and
Sotelo-Nava’s “Juan story” presented at trial was inconsistent with his pre-
arrest explanations to Winfrey regarding Sotelo-Nava’s reason for driving
to Texas and the circumstances of his authorization to be driving another
person’s vehicle. Finally, by testifying that he never had the opportunity to
explain the “Juan story” to law enforcement, Sotelo-Nava opened the door
to the prosecutor asking Sotelo-Nava if indeed he did have such an
opportunity in the presence of Deputy Lopez, a Spanish speaker.4 Thus,
considering these circumstances, the prosecutor’s questioning can
reasonably be construed as a permissible attack on Sotelo-Nava’s trial
testimony, not as an improper comment on his “silence” during police
questioning. See State v. Stuck, 154 Ariz. 16, 22 (App. 1987).

¶14            On this record, we cannot find fundamental, prejudicial error
occurred when the prosecutor elicited testimony about Sotelo-Nava’s
failure to make the exculpatory statements regarding Juan until trial. See
State v. Zuck, 134 Ariz. 509, 513 (1982) (“Where matters are not included in
the record on appeal, the missing portions of the record will be presumed
to support the action of the trial court.”).

       B.     Superior Court’s Deferred Ruling on Rule 20 Motion

¶15         At the conclusion of the State’s case-in-chief, the superior
court proposed addressing Sotelo-Nava’s Arizona Rule of Criminal


4      The superior court found that Sotelo-Nava opened the door to the
prosecution asking him about whether he had an opportunity to mention
Juan after being arrested because, on direct, Sotelo-Nava claimed he was
not able to speak with the police.


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                         STATE v. SOTELO-NAVA
                           Decision of the Court

Procedure (Rule) 20 motion5 at the end of the day, adding, “I will reserve
any ruling and not consider any evidence [Sotelo-Nava] put[s] on between
now and then.” Sotelo-Nava agreed to the court’s request and proceeded
to testify. After the jury left for the evening break, the court asked the
parties whether there was anything to “reduce to the record.” Counsel for
Sotelo-Nava responded “no” and the Rule 20 motion was not addressed.

¶16            The next day, after Sotelo-Nava rested, the court affirmed that
the State did not have rebuttal evidence and informed the parties: “I
remember we had forgotten [the Rule 20 motion]. So what we’re going to
do is instruct [the jury] and - - final instructions, if we can do any closings,
but when we get to a brief spot, we’ll do the Rule 20 motion.” Defense
counsel agreed with the court’s stated approach. After instructions and
closing arguments later that morning, the jury began deliberations and the
court recessed for lunch. The court informed the parties that when
proceedings resumed that afternoon, “[w]e’re going to do the Rule 20
motion[.]” By the time court reconvened, the jury had reached a verdict.
The parties immediately argued their respective positions on the Rule 20
motion, and the court denied it. The jury then returned to the courtroom
and delivered the verdicts.

¶17           Sotelo-Nava argues the superior court committed
fundamental error by not addressing and ruling on the Rule 20 motion at
the close of the State’s case. See Ariz. R. Crim. P. 20(a) cmt. (“The rule
requires that the decision on [a Rule 20] motion be made with all possible
speed after the state has rested its case.”).6 Sotelo-Nava does not contend
the court’s ruling was based on insubstantial evidence. See State v. Nunez,
167 Ariz. 272, 278 (1991) (“A judgment of acquittal is appropriate when ‘no
substantial evidence [exists] to warrant a conviction.’” (quoting State v.
Clabourne, 142 Ariz. 335, 345 (1984))); see also Ariz. R. Crim. P. 20(a).

¶18           In denying the Rule 20 motion, the court stated:



5      We cite the Arizona Rules of Criminal Procedure in effect at the time
of Sotelo-Nava’s trial.

6      According to Sotelo-Nava, by addressing the Rule 20 motion at the
end of trial, the court interfered with his right not to testify. Sotelo-Nava
makes this assertion in summary fashion, and he fails to support it with
meaningful argument. As a result, we do not address this argument. See
State v. Sanchez, 200 Ariz. 163, 166, ¶ 8 (App. 2001) (finding issue waived
because defendant failed to develop argument in his brief).

                                       6
                         STATE v. SOTELO-NAVA
                           Decision of the Court

       Based on the presentation of evidence during the State’s case
       in chief, what we have is evidence of methamphetamine
       obtained in two hidden compartments, total of 11 pounds of
       methamphetamine.

       Parties have stipulated that the methamphetamine was in fact
       a dangerous drug, methamphetamine. The defendant was
       the sole occupant of the vehicle, while not the owner of the
       vehicle.

       The single issue in this trial has been knowledge. Did the
       defendant know the methamphetamine was there?
       Circumstantial evidence is [the] only evidence we have
       leading the defendant to the methamphetamine.

       When we look at [the] circumstantial evidence, I do find it is
       substantial evidence to warrant a conviction. So at this time
       I’m going to deny the Rule 20 motion.

¶19            Although Sotelo-Nava correctly notes that our supreme court
has recognized “[t]here is precedent for holding . . . the reservation of a
ruling on a motion for directed verdict made at the close of the State’s case
is reversible error[,]” State v. Villegas, 101 Ariz. 465, 467 (1966), Sotelo-Nava
cannot establish prejudice. He points to no evidence referenced in the
superior court’s ruling that was based only on his testimony; rather, the
court based its decision on the evidence the State presented before Sotelo-
Nava testified. As the court noted, the sole issue at trial was Sotelo-Nava’s
knowledge of the drugs in the vehicle. Based on the State’s uncontested
evidence that Sotelo-Nava was the driver and sole occupant of a vehicle
containing a large amount of drugs, his knowledge of the drugs’ presence
could be properly inferred. See State v. Teagle, 217 Ariz. 17, 28, ¶ 44 (App.
2007) (“A jury may properly infer that a driver and sole occupant of a
vehicle containing a large amount of drugs was aware that the drugs were
in the vehicle.”). Thus, Sotelo-Nava has not established that the court
would have granted the Rule 20 motion if it had been addressed at the close
of the State’s case. See State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013)
(“[A defendant] must affirmatively ‘prove prejudice’ and may not rely
upon ‘speculation’ to carry his burden [of establishing reversible
fundamental error].”). Absent prejudice, no reversible error occurred.

       C.     Limitations on Sotelo-Nava’s Testimony

¶20          Sotelo-Nava asserts the superior court deprived him of a fair
trial by improperly limiting his testimony. He points to a number of


                                       7
                        STATE v. SOTELO-NAVA
                          Decision of the Court

instances during his cross-examination where the court admonished him to
“answer the question . . . being asked” and to answer “yes or no” questions
appropriately and without further explanation. Sotelo-Nava also argues
the court improperly limited his redirect testimony to “very short
explanations” of “some of the items found in the tool . . . bag[.]” Because
Appellant did not object to these alleged errors at trial, we review for
fundamental error only. See Henderson, 210 Ariz. at 567, ¶ 19.

¶21          The superior court did not deprive Sotelo-Nava of a fair trial.
Whatever information Sotelo-Nava believed was improperly withheld
from the jury during his cross-examination could have been presented
during his redirect testimony.

¶22           Regarding the purported limitation of his redirect testimony,
Sotelo-Nava advised the court he intended “to go into more detail [about]
some of the items that were found in the . . . tool bag . . . [and] how these
tools are used in demolition[.]” The court permitted defense counsel to
question Sotelo-Nava about the tools, but requested brief rather than in-
depth descriptions about how each tool is used in demolition. Defense
counsel then agreed not to “[go] through all the tools.” Given this
exchange, Sotelo-Nava has failed to establish that any error occurred, much
less fundamental error.

                              CONCLUSION

¶23          Based on the foregoing, we affirm Sotelo-Nava’s convictions
and sentences. We decline Sotelo-Nava’s request to independently search
the record for fundamental error. See State v. Banicki, 188 Ariz. 114, 118




                                     8
                       STATE v. SOTELO-NAVA
                         Decision of the Court


(App. 1997) (“[B]because we are no longer obliged to search the record for
fundamental error in non-Anders cases, we decline defendant’s request.”).




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




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