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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  STEPHEN RAY WILKINSON, Appellant.

                             No. 1 CA-CR 18-0546
                               FILED 10-10-2019


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201601054
           The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                         STATE v. WILKINSON
                          Decision of the Court



                      MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Samuel A. Thumma joined.


W E I N Z W E I G, Judge:

¶1          Stephen Ray Wilkinson appeals his convictions and sentences
for two counts of aggravated assault and one count of child abuse. We
affirm.

            FACTS AND PROCEDURAL BACKGROUND 1

¶2          In the summer of 2016, Wilkinson and his wife lived with their
son and daughter, then eleven and sixteen years old, respectively.

¶3            Wilkinson came home drunk one night and began arguing
with his wife. She eventually locked him out of the home, but he regained
entry and tried grabbing her purse. A struggle followed. Wilkinson shoved
his wife over a couch and she fell to the ground. He pinned her down and
kicked her head; she punched him back and bit him. When their son tried
to intervene and protect his mother, Wilkinson pushed him to the ground,
injuring his wrist.

¶4             Their daughter ran outside and called 911, explaining she
feared for her mother’s life. Wife, son and daughter eventually fled to a
neighbor’s house and waited for law enforcement to arrive. Officers
observed the injuries to the wife and son. Wilkinson, who blamed his wife
for hitting herself, was arrested.

¶5            The State charged Wilkinson with two counts of aggravated
assault involving his wife and their son, and two counts of child abuse
involving their son and daughter, all domestic violence offenses. After the
victims refused to cooperate with the prosecution, the superior court issued
subpoenas and then arrest warrants for the wife and daughter, but neither
appeared for trial.



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. WILKINSON
                            Decision of the Court

¶6            At trial, the State introduced a certified recording of
daughter’s 911 call, and photographs of the injuries to wife and son. The
responding officers testified, as did the son. After the State rested, the court
granted Wilkinson’s motion for judgment of acquittal on one count of child
abuse (involving the daughter). The jury deliberated and returned guilty
verdicts on all remaining counts and found two aggravating factors. The
court suspended Wilkinson’s sentence on each count and placed him on
concurrent three-year terms of supervised probation. Wilkinson timely
appealed. We have jurisdiction under Article 6, Section 9 of the Arizona
Constitution,      and       A.R.S.      §§     12-120.21(A)(1),        13-4031,
 -4033(A)(1).

                                DISCUSSION

I.     Comment on Post-Arrest Silence or Request for Counsel.

¶7              Wilkinson argues the State impermissibly commented on his
post-arrest silence or request for counsel, violating his due process rights.
We review for fundamental error because Wilkinson did not raise the issue
at trial. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). Wilkinson must
show the alleged error is both fundamental and prejudicial. Id. at 142, ¶ 21.

¶8            A prosecutor may not comment on a defendant’s post-arrest
silence for substantive or impeachment purposes. Doyle v. Ohio, 426 U.S.
610, 618-19 (1976); State v. VanWinkle, 229 Ariz. 233, 237, ¶ 15 (2012). But
“to be impermissible, the prosecutor’s comments must be calculated to
direct the jurors’ attention to the defendant’s exercise of his fifth
amendment privilege.” State v. McCutcheon, 159 Ariz. 44, 45 (1988).

¶9            We find no fundamental error. Wilkinson’s argument is
premised on two questions by the prosecutor to an investigating officer
about the officer’s conversation with Wilkinson. The officer answered that
Wilkinson “wanted it on the record that he gave [his wife] $800 when he
got paid” and “asked for his lawyer after that.” The prosecutor never
sought to elicit evidence that Wilkinson exercised his right to remain silent
or request counsel. Nor does the record show that the State ever sought to
direct the jury’s attention to the issue, whether as evidence of guilt or for
impeachment. State v. Mauro, 159 Ariz. 186, 197-98 (1988) (finding questions
permissible where “evidence of defendant’s silence was not used to
establish either defendant’s guilt or sanity,” and “[t]he subject of the
prosecutor’s inquiry was defendant’s demeanor, not his silence”).

¶10          Moreover, the record does not show the officer’s passing
reference had any impact on the jury’s decision. The prosecutor never


                                       3
                           STATE v. WILKINSON
                            Decision of the Court

commented on Wilkinson’s request for counsel, including in her closing
arguments, and never implied that his request for counsel was reason to
find him guilty. Cf. State v. Sorrell, 132 Ariz. 328, 329–30 (1982) (finding
fundamental prejudicial error where prosecutor deliberately and
repeatedly elicited testimony on invocation of right to counsel and focused
on testimony in argument).

II.    Prosecutorial Misconduct.

¶11             Wilkinson next argues the prosecutor committed misconduct
by improperly shifting the burden of proof during the closing argument.
We again review for fundamental error because Wilkinson did not raise the
issue at trial. See Escalante, 245 Ariz. at 140, 142, ¶¶ 12, 21.

¶12            Prosecutorial misconduct is “intentional conduct which the
prosecutor knows to be improper and prejudicial” and that “is not merely
the result of legal error, negligence, mistake, or insignificant impropriety.”
State v. Martinez, 221 Ariz. 383, ¶ 36 (App. 2009) (quoting Pool v. Superior
Court, 139 Ariz. 98, 108-09 (1984)). To prevail on a claim for prosecutorial
misconduct, Wilkinson must prove that (1) misconduct is indeed present;
and (2) a reasonable likelihood exists that the misconduct could have
affected the jury’s verdict, denying him a fair trial. State v. Moody, 208 Ariz.
424, ¶ 145 (2004). Reversal is warranted when prosecutorial misconduct
“so permeated the trial that it probably affected the outcome and denied
[the] defendant his due process right to a fair trial.” State v. Blackman, 201
Ariz. 527, ¶ 59 (App. 2002).

¶13          During closing argument, defense counsel stressed that two
victims of the alleged crime did not testify (the wife and daughter) and
asked how the State could have met its burden of proof without such “key”
witnesses. On rebuttal, the prosecutor countered that the jury heard
eyewitness testimony, observations of law enforcement, and saw photos of
the victims’ injuries. The prosecutor also argued the jury should not
“speculate about anyone’s position or what they would have said or could
have said” if they testified. Defense counsel did not object at trial, but
Wilkinson now argues the prosecutor’s statement “misled the jury[] and
unconstitutionally shifted the burden of proof to [him].”

¶14             We find no fundamental error for at least two reasons. A
prosecutor may present “fair rebuttal to an area opened by the defense,”
State v. Gillies, 135 Ariz. 500, 510-11 (1983), and argue the State’s case has
not been contradicted, State v. Byrd, 109 Ariz. 10, 11 (1972). Wilkinson’s
counsel opened the door in his closing argument on whether the State’s



                                       4
                          STATE v. WILKINSON
                           Decision of the Court

failure to call two witnesses meant it did not meet its burden, and the
prosecutor fairly could rebut that argument.

¶15           Beyond that, the prosecutor reiterated the court’s instructions
that the State bears the burden of proof and the jury may not speculate
about evidence not presented at trial. See State v. Jerdee, 154 Ariz. 414, 419
(App. 1987). We presume the jurors followed the court’s instruction,
including that statements of counsel are not evidence. See State v. Tucker,
215 Ariz. 298, 319-20, ¶ 89 (2007).

III.   Law Enforcement Officer’s Testimony About Victims of Domestic
       Violence.

¶16           Wilkinson argues the superior court abused its discretion by
allowing the police investigator to testify about victims of domestic
violence under Arizona Rule of Evidence (“Rule”) 702. We review the
court’s decision for fundamental error because Wilkinson’s counsel did not
object after the State offered more foundation in response to his initial
objection. See Ariz. R. Evid. 103(a)(1).

¶17            A witness may qualify as an expert based on “knowledge,
skill, experience, training, or education” and where the expert’s
“specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.” Ariz. R. Evid. 702(a). When the
proper showing is made, law enforcement officers may provide expert
testimony based on their training and experience. See State v. Delgado, 232
Ariz. 182, 187, ¶ 14 (App. 2013). The court has broad discretion in
determining the reliability of expert testimony. State v. Perez, 233 Ariz. 38,
43, ¶ 19 (App. 2013). Questions about the level of expertise typically impact
the weight and credibility of the testimony, not admissibility. Delgado, 232
Ariz. at 186, ¶ 12 (App. 2013).

¶18            Without deciding whether the witness’ testimony was
properly admitted, we find no fundamental error or prejudice. The officer
only provided a brief description of his experience with domestic violence
victims and noted their reluctance to cooperate with law enforcement after
the initial contact. He did not offer any opinion about the victims here or
any statements about all domestic violence victims. Wilkinson then had a
chance to cross-examine the officer. On this record, Wilkinson has not met
his burden to show fundamental error, including that the challenged
testimony went to the foundation of his case, was essential to his defense,
or was so egregious as to deny the possibility of a fair trial. See Escalante,
245 Ariz. at 142, ¶ 21.



                                      5
                 STATE v. WILKINSON
                  Decision of the Court

                      CONCLUSION

¶19   We affirm the convictions and sentences.




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




                               6
