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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   LUIS WILLIAM WINIKER, Appellant.

                             No. 1 CA-CR 17-0447
                             No. 1 CA-CR 17-0457
                                 (Consolidated)
                               FILED 7-10-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-149219-002
                        No. CR2017-000951-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                           STATE v. WINIKER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.


B E E N E, Judge:

¶1            Luis William Winiker (“Winiker”) appeals his convictions
and sentences for attempted second-degree murder and aggravated assault.
For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            On July 23, 2016, Winiker completed his evening shift at work
and then spent several hours drinking and socializing with friends. At
approximately three o’clock the following morning, Winiker requested an
Uber-ride home, realizing he was too intoxicated to safely drive. Shortly
after being picked up, however, Winiker was ejected from the Uber-vehicle
because he had an open container of alcohol. Unfamiliar with the location
where he was dropped off, Winiker could not provide an address for
pickup from another service, so he decided to hitchhike home.

¶3            Before long, the victim drove up in a silver car, stopped, and
offered Winiker a ride. Winiker accepted and sat in the car’s front-
passenger seat. Although Winiker and the victim neither flirted nor
discussed engaging in sexual activity, at some point, the victim touched and
rubbed Winiker’s penis, both over and under his clothing. Feeling afraid
and “trapped,” Winiker initially did not move or speak. As minutes passed,
however, he contemplated how to stop the victim and eventually grabbed
the steering wheel, crashing the victim’s vehicle into a freeway barrier.

¶4             After the crash, both men exited the car and Winiker punched
and beat the victim to the ground. At that point, another motorist spotted
the victim’s disabled vehicle and stopped to assist. As the motorist walked
toward Winiker, he noticed the victim lying unconscious on the roadway
and asked whether Winiker had called 9-1-1. Angrily, Winiker responded
that the victim was “a child molester” who had grabbed his genitals.


1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


                                     2
                           STATE v. WINIKER
                           Decision of the Court

¶5             Undeterred by the motorist’s presence, Winiker then picked
up a piece of broken debris, a headlamp, and twice struck the victim’s face.
Although these blows caused substantial injury and profuse bleeding, the
victim never moved. The motorist implored Winiker to stop, stating the
police would deal with the sexual assault, but Winiker halted for only a
brief period, and subsequently resumed striking the victim.

¶6            Within five minutes of the motorist’s stop, patrol officers
arrived, immediately placing Winiker under arrest and then rendering aid
to the victim, who remained nonresponsive. In the weeks that followed,
the victim received substantial medical treatment, both in a hospital setting
and then in a long-term care facility, but he never fully recovered from his
injuries and sustained permanent disfigurement to his face and head.

¶7             The State charged Winiker with one count of attempted
second degree murder (Count 1) and two counts of aggravated assault
(Count 2 – used a deadly weapon or dangerous instrument; Count 3 –
intentionally, knowingly, or recklessly caused serious physical injury). The
State also alleged numerous aggravating circumstances and that Winiker
both had prior felony convictions and was on release when he committed
the current offenses.

¶8             At trial, Winiker acknowledged that he punched and kicked
the victim after the crash and repeatedly struck the victim with a headlamp
as he lied motionless on the road. Nonetheless, Winiker testified that he
never realized the victim had lost consciousness and claimed he continued
to feel threatened by the victim until police officers arrived.

¶9            After an eight-day trial, a jury found Winiker guilty as
charged and aggravated circumstances as to each count. The superior court
sentenced Winiker to concurrent, aggravated sentences on each count and
imposed a one-year term of imprisonment on an unrelated probation
violation matter. Winiker timely appealed, and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).

                              DISCUSSION

   I.     Preclusion of Evidence Regarding the Victim’s Other Act

¶10           Winiker contends the superior court improperly precluded
evidence of the victim’s other act. He asserts the court’s evidentiary ruling
deprived him of his constitutional right to present a complete defense.



                                     3
                            STATE v. WINIKER
                            Decision of the Court

¶11           A few weeks before trial, Winiker noticed his intent to
introduce evidence regarding the victim’s other act, explaining he would
use the evidence to prove the victim’s “intent, knowledge, modus
[operandi], or absence of mistake or accident.” Attached to the notice,
Winiker submitted: (1) a plea agreement the victim had entered in which he
pled guilty to sexual abuse; (2) a police report detailing the victim’s
previous, nonconsensual sexual contact with a hitchhiker; and (3) the
victim’s statement, acknowledging that he had picked up and “groped” a
hitchhiker, but characterizing his conduct as “simply an error in judgment.”

¶12           In response, the State moved in limine to preclude any
evidence regarding the victim’s other act. The State argued the other act
was not relevant because “even if the victim touched [Winiker]
inappropriately . . ., [Winiker] consented to the touching as he allowed it to
continue[.]” In addition, the State contended the evidence was irrelevant
because the victim was unconscious when the charged offenses occurred,
and therefore he presented no threat to Winiker that justified the use of
force.

¶13            At a hearing on pretrial motions, the prosecutor clarified the
State’s position, explaining the State did not contest Winiker’s allegation
that the victim had touched his penis without consent. Rather, the State
theorized that any threat the victim may have posed indisputably ceased
once Winiker beat him unconscious. Therefore, the victim’s conduct in the
car, even if unlawful, did not justify Winiker’s subsequent attack with the
headlamp. In making this argument, the prosecutor assured the court that
she would not introduce any evidence regarding Winiker’s allegation of
sexual abuse and would not present his police interview statements at trial.
After hearing from counsel, the superior court granted the State’s motion to
preclude, finding the other-act evidence was not relevant, though noting
the evidence could become relevant for impeachment purposes depending
on the evidence presented at trial. As such, the court invited defense
counsel to revisit the issue if testimony or other evidence introduced at trial
rendered the victim’s other act relevant.

¶14            Notwithstanding her representations at the pretrial hearing,
the prosecutor played a recording of Winiker’s police interrogation to the
jury and elicited the interviewing detective’s opinion that the sexual contact
between the victim and Winiker was consensual. Indeed, the detective
testified that no “reasonable person” could believe the victim knew “that
his advances were unwanted” because Winiker failed to convey, either
verbally or physically, a lack of consent until he grabbed the steering wheel
and crashed the car.


                                      4
                            STATE v. WINIKER
                            Decision of the Court

¶15           After the detective’s direct examination, defense counsel
petitioned the court to reconsider its earlier preclusion ruling, arguing the
State had “opened the door to the victim’s prior conduct.” The court denied
defense counsel’s motion, finding any evidence regarding the victim’s other
act was both irrelevant and unduly prejudicial.

¶16            We review a superior court’s evidentiary ruling for an abuse
of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). A court abuses
its discretion when the reasons given for its decision are clearly untenable,
legally incorrect, unsupported by the record, or otherwise amount to a
denial of justice. State v. Chapple, 135 Ariz. 281, 297 n.18 (1983), superseded
on other grounds by A.R.S. § 13-756; State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App.
2004).

¶17           A defendant has a constitutional right to present a defense,
but not the right to present “that theory in whatever manner and with
whatever evidence [the defendant] chooses.” State v. Carlson, 237 Ariz. 381,
393, ¶ 36 (2015) (internal quotation and citation omitted). Stated differently,
a defendant’s right to present evidence in support of his defense, though
constitutionally protected, is nonetheless subject to the rules of evidence.
Id.

¶18           At trial, the parties did not dispute that Winiker repeatedly
hit the victim in the face with a headlamp, causing life-threatening injuries
and substantial and permanent disfigurement. Instead, the narrow issue
before the jury was whether Winiker’s actions were legally justified.

¶19            Winiker presented two justification defenses: (1) self-defense
(A.R.S. § 13-404), and (2) the use of force in crime prevention (A.R.S. § 13-
411). As set forth in A.R.S. § 13-404(A) and relevant here, a person’s use of
physical force against another is justified only “to the extent a reasonable
person would believe that physical force is immediately necessary to
protect . . . against the other’s use or attempted use of unlawful physical
force.” Similarly, under A.R.S. § 13-411(A), a person’s use of physical force
against another to prevent certain, enumerated crimes (including sexual
assault) is legally justified only “if and to the extent the person reasonably
believes that physical force . . . is immediately necessary to prevent the
other’s commission” of the crime.

¶20           Contrary to its pretrial framing of the case, the State placed
the victim’s intent and knowledge directly at issue by eliciting testimony
that under a reasonable person standard, the victim could not have known
his “sexual advances” were unwelcome. To rebut this testimony and



                                       5
                            STATE v. WINIKER
                            Decision of the Court

corroborate his claim that the victim sexually assaulted him, Winiker
sought to introduce evidence that the victim had previously sexually
assaulted another hitchhiker and therefore knew that grabbing another
person’s genitals without warning was illegal.

¶21             Arizona Rules of Evidence (“Rule”) 404 governs the
admission of character and “other act” evidence. Rule 404(b) prohibits
evidence of other crimes, wrongs, or acts to prove a person’s character to
act in a certain way, but allows such evidence for non-propensity purposes,
such as showing “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid.
404(b); see also State v. Fish, 222 Ariz. 109, 117, ¶ 21 (App. 2009) (explaining
evidence of specific other acts by a victim is generally inadmissible unless
permitted under Rule 404(b)). Before admitting other-act evidence, a
superior court must find: (1) there is clear and convincing evidence the
defendant committed the other act; (2) the evidence is relevant under Rule
402; (3) the evidence is offered for a proper purpose under Rule 404(b); and
(4) the probative value of the evidence is not substantially outweighed by
the potential for unfair prejudice under Rule 403. State v. Terrazas, 189 Ariz.
580, 584 (1997); State v. Mott, 187 Ariz. 536, 545 (1997).

¶22             The first three Rule 404(b) factors were satisfied in this case.
First, it is uncontroverted that the victim committed the other act, a sexual
crime against another hitchhiker. Second, the other-act evidence was
proffered for a proper purpose, namely, to corroborate Winiker’s account
and prove the victim knew his conduct was unlawful. See Fish, 222 Ariz. at
123, ¶ 45 (holding evidence regarding a victim’s other acts may be
admissible to show the victim’s intent or to corroborate the defendant’s
version of events). Third, the victim’s other act became relevant once the
State elicited testimony that his sexual contact with Winiker was
consensual, directly challenging Winiker’s sexual assault allegation and
credibility. See id. at 124 n.11, ¶ 48 (concluding the State’s argument
challenging the defendant’s account of the victim’s conduct “opened the
door to introduction of prior act evidence to show [the victim’s] state of
mind and the exact alleged threat [the defendant] may have been facing”).

¶23           Turning to the fourth factor, the State’s challenge to Winiker’s
credibility rendered the other-act evidence probative. Although we
generally defer to a superior court’s Rule 403 analysis, in this case, that
balancing was inherently skewed because the court found the other-act
evidence was not relevant and was therefore necessarily of minimal
probative value. See id. at 125, ¶¶ 51-52. Contrary to the court’s finding,
however, the veracity of Winiker’s sexual assault allegation was crucial to


                                       6
                              STATE v. WINIKER
                              Decision of the Court

his defense, and therefore the probative value of the corroborating other-
act evidence was significant. See State v. Castro, 163 Ariz. 465, 473 (App.
1989) (under Rule 403, proffered evidence must be evaluated in the light
most favorable to the proponent, “maximizing its probative value and
minimizing its prejudicial effect.”) (internal quotations and citation
omitted).

¶24            Nonetheless, we need not decide whether the probative value
outweighed the prejudicial effect because even assuming the superior court
abused its discretion by excluding the other-act evidence, such error was
necessarily harmless. Fish, 222 Ariz. at 114, ¶ 8 (explaining error is harmless
if we can conclude, beyond a reasonable doubt, that the error did not
contribute to or affect the jury’s verdict). The State did not charge Winiker
for crashing the victim’s car into a barrier or beating the victim into a state
of unconsciousness. Instead, the State charged Winiker only for striking the
victim with a headlamp after he had rendered the victim immobile.
Because it is uncontroverted that the victim lied unconscious on the road
while Winiker repeatedly hit his face with a large metal object, inflicting
life-threatening injuries and causing permanent physical disfigurement, the
victim’s alleged unlawful conduct in the vehicle provided no defense to the
charges. That is, even accepting Winiker’s account in its entirety, no
reasonable person would have believed that use of physical force against
the unconscious victim was “immediately necessary” to protect against the
victim’s use of unlawful force or to prevent the victim’s commission of a
crime. As a matter of law, an unconscious person presents no imminent
threat or danger. Therefore, given the uncontroverted evidence that
Winiker repeatedly struck the unconscious victim in the face with a
headlamp, the superior court’s exclusion of the other-act evidence, if error,
was necessarily harmless.

    II.      Denial of Batson2 Challenge

¶25           Winiker challenges the State’s peremptory strike of five
racial-minority jurors from the venire panel, arguing the superior court
erred by denying his Batson challenge.

¶26            “[U]sing a peremptory strike to exclude a potential juror
solely on the basis of race violates the Equal Protection Clause of the
Fourteenth Amendment.” State v. Newell, 212 Ariz. 389, 400, ¶ 51 (2006)
(citing Batson v. Kentucky, 476 U.S. 79, 89 (1986)). We will uphold the denial
of a Batson challenge absent clear error. Newell, 212 Ariz. at 400, ¶ 52.


2         Batson v. Kentucky, 476 U.S. 79 (1986).


                                         7
                            STATE v. WINIKER
                            Decision of the Court

Because the superior court is in the best position to assess a prosecutor’s
credibility, which is a primary factor in evaluating the State’s motive for
exercising a peremptory strike, we extend “great deference” to the court’s
ruling. State v. Roque, 213 Ariz. 193, 203, ¶ 12 (2006) (internal quotation and
citation omitted), abrogated on other grounds by State v. Escalante-Orozco, 241
Ariz. 254 (2017); Newell, 212 Ariz. at 401, ¶ 54.

¶27            A Batson challenge is comprised of three steps. Newell, 212
Ariz. at 401, ¶ 53. First, the defendant must make a prima facie showing of
racial discrimination. Id. If such a showing is made, the prosecutor must
then present a race-neutral reason for the strike. Id. Finally, if the
prosecutor provides a facially neutral basis, the superior court must
determine whether the defendant has nonetheless “established purposeful
discrimination.” Id. (internal quotation and citation omitted). “To pass step
two, the explanation need not be persuasive, or even plausible[,]” but
“implausible or fantastic justifications may (and probably will) be found to
be pretext” when the court determines whether the defendant has proven
purposeful discrimination. Id. at ¶ 54 (internal quotations and citation
omitted).

¶28            During jury selection in this case, Winiker challenged the
State’s peremptory strike of Juror Nos. 1, 5, 26, 35, and 37, each a member
of a racial minority. Without expressly finding that Winiker had made a
sufficient prima facie showing of racial discrimination, the court asked the
prosecutor to state her basis for each strike. By asking this question, the
court implicitly found that Winiker had met his initial burden, satisfying
the first step of the Batson analysis. See State v. Bustamante, 229 Ariz. 256,
261, ¶ 16 (App. 2012).

¶29            For Juror No. 1, the prosecutor cited a recent arrest, work
conflicts, and inappropriate attire. In response, defense counsel noted that
“a number of people” were similarly dressed in casual clothing, including
venire members the State did not strike. Although the court did not accept
casual attire “as a race neutral reason,” it found the juror’s recent arrest and
“contact with the criminal justice system” qualified as permissible, race-
neutral bases to exercise the peremptory strike.

¶30           Next, the prosecutor noted that Juror No. 5, like Juror No. 1,
had been arrested and expressed concern that his employer would not
compensate him for his jury service. As with Juror No. 1, the court found
Juror No. 5’s previous arrest and work conflicts constituted legitimate, race-
neutral bases for the strike.




                                       8
                            STATE v. WINIKER
                            Decision of the Court

¶31          Turning to Juror No. 26, the prosecutor stated the juror’s
hardship prompted the peremptory strike. The court found the State had
met its burden of providing a race-natural reason and also noted that other
Hispanic jurors remained on the panel, such that the prosecutor’s
peremptory strikes did not “exclud[e] all members of a particular
community.”

¶32          For Juror No. 35, the prosecutor explained she struck the juror
based on his employment as a high school baseball coach and teacher,
believing he would “be more sympathetic to a young male defendant.” In
response, defense counsel noted the State had not struck another juror that
coached high school football. The court found the State had met its burden
of providing a race-neutral reason, again noting that other Hispanic jurors
remained on the panel.

¶33           Finally, as to Juror No. 37, the prosecutor cited the juror’s
employment as a school translator and her son’s arrest, explaining these
factors increased the likelihood that she would sympathize with a young
man. The court found the reasons race neutral and once more noted that
the empaneled jury included Hispanic jurors.

¶34           Winiker raises three discrete challenges to the State’s exercise
of peremptory strikes. First, he argues the superior court erred by
permitting the prosecutor to strike Juror No. 1 “despite [the court’s] finding
that the prosecutor had provided [a] discriminatory basis for striking the
potential juror.” Indeed, asserting the court “should have ended the
inquiry” once it found “the prosecutor acted with racial animosity,”
Winiker contends the court improperly “permitted the prosecutor to
obscure her racial animus” by providing “additional non-discriminatory
bases.”

¶35            This argument misstates the record. When asked to provide
her basis for striking Juror No. 1, the prosecutor outlined three reasons: first,
the juror’s recent arrest; second, the juror’s work-related concerns; and
third, the juror’s casual attire. Although the court determined the last basis
(inappropriate dress) failed to withstand scrutiny (“I don’t know if I would
count his attire as a race neutral reason.”), it found the first two bases were
race-neutral, and therefore the State had met its burden of presenting a race-
neutral reason for its exercise of the peremptory strike. Thus, contrary to
Winiker’s claims, the court neither found that the prosecutor acted with
racial animus nor permitted the prosecutor to provide “additional” bases
after finding a discriminatory basis. On this record, there is no basis to




                                       9
                            STATE v. WINIKER
                            Decision of the Court

conclude that the prosecutor’s proffered reasons for the strike were pretext
for racial discrimination.

¶36           Second, Winiker argues the superior court failed to determine
whether he had established purposeful discrimination, the last step of the
Batson analysis. The record reflects, however, that in evaluating the
prosecutor’s proffered reasons, the superior court noted that two minority
jurors remained on the panel and implicitly concluded that Winiker had
failed to establish purposeful discrimination. See State v. Hardy, 230 Ariz.
281, 285, ¶ 12 (2012) (“Although not dispositive, the fact that the state
accepted other minority jurors on the venire is indicative of a
nondiscriminatory motive.”) (internal citation omitted). At that point,
defense counsel offered nothing further to support her challenge, other than
noting that five of the State’s six peremptory strikes were used against
“minorities.”

       A.     Statistical Analysis

¶37             Winiker argues a statistical analysis of the stricken jurors
demonstrates a discriminatory basis because 83% of the State’s peremptory
strikes removed racial-minority jurors. Although 83% is a high percentage,
statistical disparity satisfies only step one of the Batson test. See Sorto v.
Herbert, 497 F.3d 163, 170 (2d Cir. 2007) (“[S]tatistical disparities are to be
examined as part of the Batson prima facie inquiry.”) (internal quotations
and citation omitted). In this case, the first step of the Batson inquiry was
satisfied when the superior court asked the prosecutor to explain the basis
for her peremptory strikes. In other words, by requiring the prosecutor to
articulate the bases for her strikes, the court determined that Winiker had
made a prima facie showing that the peremptory strikes were racially
discriminatory. See State v. Gay, 214 Ariz. 214, 221, ¶ 20 (App. 2007)
(“[S]tatistical disparity alone does not suggest the trial court erred.”).

       B.     Comparative Analysis

¶38            Winiker also contends a comparative analysis of the
similarities between stricken and retained jurors (Juror Nos. 20, 31, and 32)
demonstrates racial bias. When asked to explain the basis for his challenge
in the superior court, however, Winiker noted only that one empaneled
juror (“Juror No. 31”) worked with young men as a high school football
coach. Although this juror works with young men similar to stricken Juror
Nos. 35 and 37, the record reflects that Juror No. 31 self-identifies as
Hispanic, and therefore this comparative analysis does not support a
finding of purposeful discrimination. Because Winiker did not present to



                                      10
                           STATE v. WINIKER
                           Decision of the Court

the superior court the other, more “detailed comparisons” he sets forth on
appeal, we do not consider them. Escalante-Orozco, 241 Ariz. at 272, ¶ 37
(explaining the appellate court would “not examine more detailed
comparisons” of “the jurors who were stricken and those who remained on
the panel” than were “presented to the trial court”) (citation omitted).

¶39           Finally, without citing any authority, Winiker argues the
prosecutor’s failure to ask more detailed and probing voir dire questions
demonstrates that she acted with purposeful discrimination when she
exercised her peremptory strikes. Because Winiker provides no support for
this argument, we do not consider it. See State v. Moody, 208 Ariz. 424, 452
n.9, ¶ 101 (2004) (“Merely mentioning an argument is not enough[.]”).

¶40          Thus, on this record, Winiker has failed to present any
evidence that the peremptory strikes were the result of purposeful racial
discrimination, and there is no basis to conclude the prosecutor’s race-
neutral reasons for the strikes were pretext. For these reasons, the superior
court did not clearly err by concluding the State’s strikes did not violate
Batson.

   III.   Preclusion of Statements to Police Officers

¶41           Winiker contends the superior court improperly precluded
certain statements he made to police officers. Because these statements
conveyed his physical discomfort, he argues they were admissible as
present-sense impressions under Rule 803(1).

¶42           Before trial, the State moved to preclude all statements
Winiker made to law enforcement officers, arguing the statements were
inadmissible hearsay. In response, Winiker asserted that each of his
statements was admissible under Rule 803(3) as evincing his then-existing
mental, emotional, or physical condition. In addition, he contended his
statements “that he was hot and needed water” were admissible under Rule
803(1) as present-sense impressions.

¶43           At a hearing on the motions, defense counsel argued
Winiker’s statements that he was hot and thirsty were relevant to show that
police officers immediately “disregarded his claims” and “treated [him]
like a suspect.” The State countered that Winiker’s complaints were not
“relevant to anything.” After hearing from the parties, the court granted
the State’s motion in limine.




                                     11
                             STATE v. WINIKER
                             Decision of the Court

¶44              We review a superior court’s evidentiary ruling for an abuse
of discretion, Ellison, 213 Ariz. at 129, ¶ 42, and uphold the court’s decision
if it is legally correct for any reason, State v. Perez, 141 Ariz. 459, 464 (1984).

¶45            In general, relevant evidence is admissible unless it is
otherwise precluded by the federal or state constitution, an applicable
statute, or a rule. Ariz. R. Evid. 402. Evidence is relevant if it has “any
tendency” to make a fact of consequence in determining the action “more
or less probable than it would be without the evidence[.]” Ariz. R. Evid.
401.

¶46           In this case, the only question before the jury was whether
Winiker was legally justified in repeatedly striking the victim with a
headlamp. Given this framing, Winiker’s physical condition of being hot
and thirsty after his arrest did not have any tendency to make a fact of
consequence in determining the action more or less probable. The State did
not contest that Winiker was extremely excited and sweating profusely
when police officers arrived at the scene, and more importantly, these
circumstances had no bearing on whether Winiker’s actions were lawful.
Likewise, to the extent Winiker contends the officers’ failure to respond to
his complaints shows that they treated him as a suspect, the officers’
assessment of Winiker’s culpability did not have any tendency to make a
fact of consequence in determining the action more or less probable. The
State did not contest that officers immediately handcuffed and arrested
Winiker, and the officers’ collective belief that Winiker had assaulted the
victim had no bearing on whether his conduct was justified. For these
reasons, the superior court did not abuse its discretion by precluding
Winiker’s statements complaining of heat and thirst.

   IV.     Alleged Misstatement of the Law

¶47           Winiker argues the superior court erred by failing to sua
sponte instruct the jury that contrary to the State’s representations, the
victim was not entitled to a presumption of innocence.

¶48           In its final instructions, the superior court told the jurors that:
(1) Winiker was entitled to a presumption of innocence; (2) the State bore
the burden of proving Winiker guilty beyond a reasonable doubt; (3)
Winiker was justified in using physical force to defend himself if a
reasonable person would have believed physical force was immediately
necessary to protect against the victim’s use or apparent use of unlawful
physical force, and Winiker used no more physical force than would have
appeared necessary to a reasonable person; (4) the State bore the burden of



                                        12
                            STATE v. WINIKER
                            Decision of the Court

proving beyond a reasonable doubt that Winiker did not act with such
justification; (5) Winiker was justified in using physical force against the
victim if and to the extent he reasonably believed that physical force was
immediately necessary to prevent the victim from committing sexual
assault or kidnapping; (6) Winiker was presumed to have acted reasonably
if he reasonably believed he was acting to prevent the imminent
commission of sexual assault or kidnapping; (7) the State bore the burden
of proving beyond a reasonable doubt that Winiker did not act with such
justification; and (8) the lawyers’ arguments were not evidence.

¶49            During closing argument, defense counsel reminded the
jurors that unlike other countries, the United States affords defendants
certain constitutional protections, such as the presumption of innocence,
which prevent the State from acting as “judge, jury, and executioner.”
Continuing with this theme, defense counsel later argued that the lead
detective disregarded Winiker’s sexual assault allegations because he
“wanted to be the judge, the jury, and the executioner” in this case. On
rebuttal, the prosecutor stated, over objection, that the victim, like Winiker,
was entitled to a presumption of innocence. Acknowledging Winiker’s
claims of sexual assault, the prosecutor argued that the victim “deserved to
be arrested . . . not taken to a hospital[.]” She also responded to defense
counsel’s claim that the lead detective “didn’t care about the sexual assault”
and only wanted to exact punishment on Winiker, countering, “It was
[Winiker] who decided to act as the judge, the jury, and [the victim’s]
executioner.”

¶50           Although a prosecutor is permitted to argue her version of the
evidence to the jury, she may not misstate the law. State v. Serna, 163 Ariz.
260, 266 (1990). Nonetheless, the superior court retains broad discretion “in
controlling closing argument,” and we affirm the court’s rulings absent an
abuse of discretion. State v. Lynch, 238 Ariz. 84, 97, ¶ 33 (2015), overturned
on other grounds by Lynch v. Arizona, 136 S. Ct. 1818 (2016).

¶51            Viewed in the context of counsels’ full closing argument, the
prosecutor’s challenged statements were not a misstatement of the law, but
an attempt to address and refute defense counsel’s attacks on the adequacy
of the police investigation. Importantly, in making these limited remarks,
the prosecutor did not directly refer to either of Winiker’s justification
defenses or otherwise attempt to modify the court’s final instructions to the
jury.   See State v. Hernandez, 170 Ariz. 301, 307-08 (App. 1991)
(“[P]rosecutorial comments which are fair rebuttal to areas opened by the
defense are acceptable.”).



                                      13
                            STATE v. WINIKER
                            Decision of the Court

¶52            Nonetheless, to the extent the prosecutor’s remarks arguably
conveyed that a victim of sexual assault may only avail himself of legal
remedies after the fact and may not use physical force to thwart a
continuing threat because his attacker is presumed innocent, such
argument misstates the governing law. The record clearly reflects,
however, that the superior court correctly instructed the jurors that: (1) a
victim of sexual assault may use physical force to defend against further
attack if reasonable under the circumstances, (2) the State bears the burden
of proving such conduct is not justified, and (3) attorneys’ arguments are
not evidence. Because we presume that jurors follow their instructions,
State v. Prince, 204 Ariz. 156, 158, ¶ 9 (2003), and the undisputed evidence
reflects that the victim was unconscious at the time Winiker used physical
force against him, any misstatement of the law did not contribute to or
affect the verdict in this case, and was therefore harmless. See State v.
Anderson, 210 Ariz. 327, 342, ¶ 52 (2005) (superior court’s correct instruction
on law and admonition that lawyers’ arguments were not evidence negated
error based on prosecutor’s clear misstatements of law); see also Fish, 222
Ariz. at 114, ¶ 8.

   V.     Alleged Double Jeopardy Violation

¶53           Winiker argues his two convictions for aggravated assault
arose out of a single, continuous act and therefore violate the constitutional
proscription against double jeopardy. Although he did not raise this issue
in the superior court, a violation of double jeopardy constitutes
fundamental, prejudicial error. State v. Price, 218 Ariz. 311, 313, ¶ 4 (App.
2008).

¶54           As set forth in the indictment, the State alleged Winiker used
a deadly weapon or dangerous instrument to intentionally, knowingly, or
recklessly cause the victim physical injury (Count 2). The State also alleged
Winiker intentionally, knowingly, or recklessly caused the victim serious
physical injury (Count 3).

¶55            An indictment that charges a single offense in multiple counts
is multiplicitous, and the corresponding convictions can violate double
jeopardy protections even when the court imposes concurrent sentences.
State v. Brown, 217 Ariz. 617, 621, ¶ 13 (App. 2008). This is because the
“separate conviction, apart from the concurrent sentence, has potential
adverse collateral consequences that may not be ignored.” Ball v. United
States, 470 U.S. 856, 864-65 (1985) (emphasis omitted).




                                      14
                            STATE v. WINIKER
                            Decision of the Court

¶56            Although Winiker contends his multiple blows to the victim
occurred as part of a single, continuous act, this claim is not substantiated
by the record. To the contrary, the motorist who stopped to assist Winiker
and the victim testified that Winiker “slammed” the victim’s face with a
headlamp twice before the motorist could “g[e]t to him.” After these first
two blows, however, the motorist “jumped” to action and confronted
Winiker, demanding that he stop hitting the victim and allow the police to
address the victim’s alleged sexual assault. At that point, Winiker repeated
that the victim was a “child molester” and then walked to the victim’s car,
searched its interior, and attempted to access the vehicle’s trunk. Unable to
open the trunk or persuade the motorist to assist him, Winiker approached
the victim, and with a “smirk on his face,” removed the victim’s wallet from
his pants’ pocket and began “looking through” it. After he examined the
wallet and then unsuccessfully attempted to flag down additional
motorists, Winiker returned to the victim, picked up the headlamp again,
and struck the victim’s face three more times. Given these facts, Winiker’s
five blows to the victim’s face cannot reasonably be characterized as arising
out of the same, uninterrupted conduct, and discrete evidence supports
each count. See State v. Scott, 243 Ariz. 183, 186-87, ¶ 12 (App. 2017) (holding
the defendant’s convictions for two counts of kidnapping were not
multiplicitous because the victim briefly escaped from his physical control,
and therefore the defendant’s subsequent physical restraint of the victim
constituted a separate act of kidnapping). Therefore, the indictment was
not multiplicitous and the convictions do not violate double jeopardy. See
State v. Jurden, 239 Ariz. 526, 529, ¶ 11 (2016) (explaining the Double
Jeopardy Clause protects against multiple convictions for the same offense
based on “the same conduct”).

                               CONCLUSION

¶57          For the foregoing reasons, we affirm Winiker’s convictions
and sentences.




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




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