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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   ARRON WILLIAM CROOK, Appellant.

                             No. 1 CA-CR 16-0423
                               FILED 8-15-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2013-443323-001 DT
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant
                             STATE v. CROOK
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia A. Orozco1 joined.


C R U Z, Judge:

¶1             Appellant Arron William Crook appeals his conviction and
sentence for manslaughter, a Class 2 felony. He asserts the State’s alleged
misstatements of the law during closing argument deprived him of a fair
trial. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            After an altercation in which Crook fatally shot victim J.S., the
State charged Crook with one count of second degree murder, a Class 1
dangerous felony. At trial, Crook requested jury instructions regarding
self-defense, use of deadly force in self-defense, and use of force in crime
prevention. The superior court included Crook’s requested instructions.

¶3            During closing argument, the State commented upon the
instructions for self-defense and for use of physical force in self-defense.
With regards to using physical force, the State commented that “[i]f
shooting someone in the leg would stop them, you can’t shoot them in the
chest. You can’t shoot them in the head. Only what is necessary.” He later
said in reference to Crook’s lack of duty to retreat:

       [T]here’s nothing in these instructions that merely says, ‘if
       you don’t want to fight, you get to shoot someone.’ It does
       not say that anywhere. But for whatever reason—maybe he’s
       a little cowardly—he didn’t want to fight. He didn’t want to
       get his clothes ruffled, didn’t want to get a bloody lip. And
       so he keeps backing down.

¶4            A short while later, he continued:



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 6, Section 3, of the Arizona Constitution.


                                      2
                            STATE v. CROOK
                           Decision of the Court

      [Crook] could have done any number of things other than
      shoot him in the chest. He could have run. Did he have to?
      No. But he could have run. He could have fired a warning
      shot, could have yelled for help.         How about help?
      ‘Somebody help me. Help, help, help.’ . . . Could have fired a
      warning shot, could have shot him in the leg. But, no. He
      shoots him and kills him. Because of that, he’s guilty of
      second-degree murder.

¶5            Crook responded by saying, “Now, does a person who is
being pursued and attacked have to wait to defend themselves until they’re
actually hurt? That’s not the law.” The State rebutted:

      He did not have to kill him. There were so many other
      options. You were told ‘well, he can’t drop the gun.’ He
      could have thrown it. How about dropping the magazine?
      How about giving it to [Crook’s friend]? How about firing it
      in the air? How about firing all the rounds up in the air or
      into the ground so that there’s no more bullets left, and it can’t
      be used? How about just continuing to point it at him and
      yelling, ‘help, help’ until police come? How about shooting it
      towards the ground?

¶6             The jury was unable to agree to a second-degree murder
conviction but found Crook guilty of the lesser included offense of
manslaughter. It also found the State proved the aggravating factors of
dangerousness and causing emotional or financial harm to the immediate
family of the victim, J.S. The superior court sentenced Crook to the
presumptive term of 10.5 years’ imprisonment and credited him 998 days
of presentence incarceration. Crook moved for a new trial, asserting the
State misstated the law during closing argument by suggesting Crook could
fire the gun into the air,2 but the court denied his motion.




2      With limited exceptions, a criminally-negligent discharge of a
firearm within or into the limits of any municipality constitutes a Class 6
felony. Ariz. Rev. Stat. § 13-3107(A).




                                      3
                             STATE v. CROOK
                            Decision of the Court

¶7           Crook timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
13-4033(A).3

                                DISCUSSION

I.     Standard of Review

¶8             Crook asserts the State engaged in misconduct by making
improper statements during closing arguments. Because Crook failed to
make a timely, specific objection at trial, we review only for fundamental
error. See State v. Goudeau, 239 Ariz. 421, 465, ¶ 192, 372 P.3d 945, 989 (2016).
We will reverse a defendant’s conviction only if: (1) misconduct is present;
and (2) a reasonable likelihood exists that the misconduct could have
affected the jury’s verdict. Id. at ¶ 193. Crook bears the burden of proving
the misconduct was “so pronounced and persistent that it permeate[d] the
entire atmosphere of the trial.” Id. (quoting State v. Morris, 215 Ariz. 324,
335, ¶ 46, 160 P.3d 203, 214 (2007)).

II.    Prosecutorial Misconduct

¶9             Crook argues the State misstated the law by repeatedly
indicating to the jury that Crook could have engaged in alternative conduct
rather than using deadly force. He asserts this error was fundamental
because it went to the foundation of his defense.

¶10            “Counsel is given wide latitude in closing argument to
comment on the evidence and argue all reasonable inferences from it.” State
v. Moody, 208 Ariz. 424, 464, ¶ 180, 94 P.3d 1119, 1159 (2004) (internal
quotations omitted).     When determining whether an argument is
misconduct, “we consider two factors: (1) whether the prosecutor’s
statements called to the jury’s attention matters it should not have
considered in reaching its decision and (2) the probability that the jurors
were in fact influenced by the remarks.” State v. Nelson, 229 Ariz. 180, 189
¶ 39, 273 P.3d 632, 641 (2012). We look at “the context in which the
statements were made as well as the entire record and to the totality of the
circumstances.” Id. (internal quotations omitted). “We also address the
cumulative effect of any misconduct.” Goudeau, 239 Ariz. at 465, ¶ 192, 372
P.3d at 989.



3     We cite the current version of relevant statutes unless revisions
material to this decision have occurred since the events in question.


                                       4
                             STATE v. CROOK
                            Decision of the Court

¶11           We find no error. The State did not misstate the law in any of
its statements and did not call the jury’s attention to matters it should not
have considered in reaching its decision. The State accurately stated that
although Crook had no duty to retreat, the justification defense of using
physical force for self-defense requires that “the force used may not be
greater than reasonably necessary to defend against the apparent danger.”
Deadly physical force in self-defense is justified only when immediately
necessary to protect against another’s use of apparent attempted or
threatened use of deadly physical force, as viewed by a reasonable person.
A.R.S. § 13-405(A). The fact that certain circumstances may warrant the use
of deadly physical force presupposes that others do not. The State’s
presentation urged jurors to find that the circumstances were such that
deadly physical force was not apparent, attempted, nor threatened by J.S.
and, therefore, Appellant was only justified in applying non-lethal self-
defense mechanisms. Although the State’s suggestion that one of Crook’s
options was to fire his weapon in the air was misguided, it was not conduct
that “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Goudeau, 239 Ariz. at 465, ¶ 193, 372
P.3d at 989. Furthermore, there is little probability the jurors were in fact
influenced by the remarks because the State made its comments in the
context of Crook’s instructions and, as Crook acknowledges, the State
clearly stated that Crook had no duty to retreat. We conclude that none of
the State’s comments, taken alone or cumulatively, constituted
prosecutorial misconduct.

¶12            Furthermore, even if the State’s conduct were somehow
deemed to constitute error, it could not be fundamental error because, as
Crook notes, the superior court properly instructed the jury as to self-
defense and the use of deadly force; to follow the jury instructions in
deciding the case; and not to view the attorneys’ comments as evidence. See
State v. Anderson, 210 Ariz. 327, 341-42, ¶¶ 49-52, 111 P.3d 369, 383-84 (2005)
(holding State’s misstatement of the law was not fundamental error because
the superior court properly instructed the jury, indicated the instruction
was the law that applied to the hearing, and instructed the jury that the
lawyers’ statements were not evidence). No fundamental error occurred in
this case.




                                      5
                         STATE v. CROOK
                        Decision of the Court

                            CONCLUSION

¶13         For the foregoing reasons, we affirm Crook’s conviction and
sentence.




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




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