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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          ERIC RUSSELL, Appellant.

                             No. 1 CA-CR 16-0063
                               FILED 2-21-2017


            Appeal from the Superior Court in Apache County
                         No. S0100CR201500044
                The Honorable Michael Latham, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Williams Law Group, PLLC, Show Low
By Elizabeth M. Hale

The Brewer Law Office, Show Low
By Benjamin M. Brewer
Counsel for Appellant
                            STATE v. RUSSELL
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.


T H O M P S O N, Judge:

¶1           Eric Russell (defendant) appeals from his convictions and
sentences for aggravated assault with a deadly weapon and aggravated
assault causing serious physical injury. For the following reasons, we
affirm.

               FACTUAL AND PROCEDURAL HISTORY1

¶2            On the evening of February 12, 2015, defendant got into a
physical altercation with D.T. after defendant accused D.T. of stealing a
bike. During the fight, defendant stabbed D.T. at least five times in the back,
torso, and belly with a knife. D.T.’s friend B.C. intervened and beat up and
disarmed defendant. He took D.T., who was unconscious, to the hospital.
B.C. told police that he intervened in the fight because he thought D.T. was
going to die. Defendant also went to the hospital with a broken jaw.

¶3           The state charged defendant with one count of attempted first
degree murder, a class 2 felony (count 1), one count of aggravated assault
with a deadly weapon, a violent class 3 felony (count 2), one count of
aggravated assault causing serious physical injury, a violent class 3 felony
(count 3), and one count of aggravated assault, a violent class 3 felony
(count 4). Subsequently, the state moved to dismiss count 4 and the trial
court dismissed the count.

¶4            At trial, defendant testified that he stabbed D.T. in self-
defense. The jury acquitted defendant of attempted first degree murder but
convicted him on the two remaining aggravated assault counts. The trial
court sentenced defendant to aggravated terms of eighteen years in prison
on both counts, to be served concurrently. The court gave defendant credit


1      We view the evidence at trial in the light most favorable to sustaining
the convictions. State v. Boozer, 221 Ariz. 601, 601, ¶ 2, 212 P.3d 939 (App.
2009).



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                            Decision of the Court

for 323 days of presentence incarceration. Defendant timely appealed. We
have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1) (2016), 13-4031 (2010) and -4033 (A) (Supp. 2016).2

                               DISCUSSION

¶5           On appeal, defendant argues that the state committed
prosecutorial misconduct so pervasive that he was denied due process.
Defendant argues that the prosecutor improperly vouched for B.C., who
was called as a witness by the state, by giving B.C. immunity during the
trial and by telling the jury he had immunity. He also argues that the
prosecutor vouched for B.C. and misstated the evidence during closing
argument.

¶6            To determine whether a prosecutor’s remarks are improper,
we consider whether the remarks called the jurors’ attention to matters they
would not be justified in considering, and the probability that the remarks
influenced the jurors. State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360
(2000) (citation omitted). There are “two forms of impermissible
prosecutorial vouching: (1) where the prosecutor places the prestige of the
government behind its witness; [and] (2) where the prosecutor suggest that
information not presented to the jury supports the witness’s testimony.”
State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989) (citations
omitted). “To 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.’” State v. Morris, 215 Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214 (2007)
(quoting State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998)).
“Prosecutorial misconduct constitutes reversible error only if (1)
misconduct exists and (2) ‘a reasonable likelihood exists that the
misconduct could have affected the jury’s verdict, thereby denying
defendant a fair trial.’” Id. (quoting State v. Anderson, 210 Ariz. 327, 340, ¶
45, 111 P.3d 369, 382 (2005)) (citation omitted).

    A. B.C.’s Immunity

¶7           During direct examination, the prosecutor asked B.C.
whether he would deny having told police that he expected there would be
a fight when he and D.T. met up with defendant. B.C. responded that he
was “not going to say anything that would incriminate [himself].” The


2     Absent material revision after the relevant date, we cite a statute’s
current version.


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                           STATE v. RUSSELL
                           Decision of the Court

court excused the jury, and during the break the state offered B.C. judicial
immunity regarding his testimony about the night in question. The court
brought the jury back into the courtroom and the prosecutor resumed his
direct examination. The prosecutor asked B.C. whether he understood he
had immunity and would not be prosecuted for any of his testimony, and
B.C. answered in the affirmative. The prosecutor further asked B.C.
whether he was willing to testify truthfully and B.C. said that he was.
Defendant failed to object to the prosecutor’s questions. Accordingly, we
review for fundamental error only. See State v. Medina, 232 Ariz. 391, 409,
¶ 76, 306 P.3d 48, 66 (2013). We find no error, fundamental or otherwise.
The prosecutor did not place the prestige of the government behind B.C. by
giving him immunity for his testimony and asking him whether he
understood it in front of the jury.

    B. Alleged Vouching During Closing Argument

¶8              Next, defendant argues that the prosecutor improperly
vouched for B.C. during closing argument 1) by telling the jury that B.C.
was acting in self-defense and in defense of D.T. when he beat up and
injured defendant, 2) by arguing that B.C. was more credible than
defendant because he was afraid to testify until he was given immunity, 3)
by telling the jury that the entire prosecutor’s office agreed with him that
B.C. was credible because the office could have charged B.C. for a crime but
did not, 4) by mischaracterizing B.C.’s testimony about a statement B.C.
allegedly made to police about what defendant said following the stabbing
and before B.C.’s beating of defendant,3 and 5) by referring to medical
records that were not in evidence in order to bolster B.C.’s credibility and
undermine defendant’s.

¶9            Courts allow counsel “wide latitude” in making closing
arguments and any reasonable inferences that can be drawn from the
evidence. State v. Amaya-Ruiz, 166 Ariz. 152, 171, 800 P.2d 1260, 1279 (1990)
(citation omitted). “Prosecutorial comments which are a fair rebuttal to
areas opened by the defense are proper.” State v. Alvarez, 145 Ariz. 370, 373,
701 P.2d 1178, 1181 (1985) (citation omitted). Telling the jury that B.C. was

3      At trial, the prosecutor asked B.C. whether he remembered telling
police that defendant stood over D.T. after the stabbing and stated “[Y]eah,
I fucking stabbed you; bleed, mother fucker, bleed.” B.C. said that he may
have said that but did not recall. When asked what he did recall about that
moment, B.C. stated that defendant seemed “real satisfied with himself.”
The prosecutor argued in closing several times that defendant told the
unconscious victim “that’s right, mother F-er, bleed out.”


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                           STATE v. RUSSELL
                           Decision of the Court

acting in self-defense and in defense of D.T. did not amount to improper
vouching, because this argument was linked to the evidence at trial. See
State v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 1997). Nor did
telling the jury that B.C. was credible because he was afraid to testify
constitute vouching.

¶10           Although there is a proper inference that could be made, the
prosecutor’s statement that the entire prosecutor’s office agreed that B.C.
acted in self-defense because B.C. was not charged was improper. The
statement did not amount to reversible error, however. Further, the
prosecutor’s argument that defendant told the victim to “bleed out” was
improper because it misstated the evidence – B.C. testified that he recalled
defendant making a statement and looking satisfied, but that he could not
recall the statement. Defense counsel chose not to object during the
prosecutor’s closing argument and to instead address the
mischaracterization of the evidence in his own closing argument:

              [Defense counsel]: The State mentioned over
              and over in its closing that [defendant] stood
              over the alleged victim and said bleed out. Who
              did you hear that from? Nobody. That’s not in
              evidence. He wants it to be in evidence.

In his rebuttal closing the prosecutor stated:

              Now, you heard [defense counsel] characterize
              how I spoke to you. I realize I get passionate
              about what I’m saying. But if there is anything
              that I said that does not match up with your
              recollection of what was said during the
              testimony, or does not match up with what is in
              your notes, then disregard what I said, because
              what I’m saying right now is not evidence.

Additionally, the trial court instructed the jury that the lawyer’s arguments
were not evidence and that it was the jury’s role to “[d]etermine the facts
only from the evidence that was produced in court.” The court’s
instructions, together with counsels’ statements, were sufficient to render
any vouching harmless error. See State v. Payne, 233 Ariz. 484, 512, ¶ 113,
314 P.3d 1239, 1267 (2013).

¶11           Finally, the prosecutor should not have argued that the
hospital records showed that defendant used drugs on the day of the fight,



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                           STATE v. RUSSELL
                           Decision of the Court

contrary to his testimony at trial, because the records were not in evidence.
However, the jury instructions were sufficient to render this error harmless.

                              CONCLUSION

¶12           For the foregoing reasons, we affirm the convictions and
sentences.




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




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