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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    RUFUS YOUTY GARWO, Appellant.

                             No. 1 CA-CR 15-0577
                               FILED 9-13-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2014-000192-001
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
                            STATE v. GARWO
                           Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Jon W. Thompson and Chief Judge Michael J. Brown joined.


J O H N S E N, Judge:

¶1            Rufus Youty Garwo appeals his convictions of aggravated
driving under the influence of intoxicating liquor ("DUI") while his license
was suspended and aggravated DUI with a blood alcohol concentration
("BAC") of .08 or higher, each a Class 4 felony. For the reasons that follow,
we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On the night of his arrest, Garwo attended a party at a Mesa
park. At some point after the party, Garwo drove to his girlfriend's
      1

apartment complex. As Garwo attempted to park his vehicle, he collided
with a parked vehicle and a pole. The owner of the parked vehicle saw the
collision and, after a brief encounter with Garwo, called the police. After
Garwo performed field sobriety tests, he was arrested and police performed
a blood draw. Garwo concedes he was drunk at the time of his arrest.

¶3            The jury convicted Garwo of the charged offenses, and the
court sentenced him to a total of four months' incarceration. Garwo filed a
timely notice of appeal, and we have jurisdiction pursuant to Arizona
Revised Statutes sections 12-120.21(A)(1) (2016), 13-4031 (2016) and
-4033(A)(1) (2016).2

                              DISCUSSION

¶4           Garwo argues the prosecutor committed misconduct when
she asked Garwo whether police officers lied when they testified about
what Garwo told them the night of his arrest. Garwo also argues the
prosecutor then compounded that error during closing argument. Because
Garwo failed to raise these objections at trial, we review for fundamental

1      We view the trial evidence in the light most favorable to sustaining
the jury's verdicts. State v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007).

2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                     2
                              STATE v. GARWO
                             Decision of the Court

error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To prevail,
Garwo must prove both fundamental error and resulting prejudice. See id.
at ¶ 20.

¶5              In general, parties should refrain from questioning a witness
about whether another witness lied. State v. Morales, 198 Ariz. 372, 375, ¶
13 (App. 2000). "Were they lying" questions may be allowed, however,
"when the only possible explanation for the inconsistent testimony is deceit
or lying or when a defendant has opened the door by testifying about the
veracity of other witnesses on direct examination." Id. "In determining
whether a prosecutor's improper statement constitutes fundamental error,
we examine, under the circumstances, whether the jurors were probably
influenced and whether the statement probably denied Defendant a fair
trial." State v. Bible, 175 Ariz. 549, 601 (1993).

¶6             During the State's case-in-chief, a police officer testified that a
clear red cup of "dark liquid" was found inside Garwo's vehicle. A second
police officer recounted that Garwo told the officers he (1) had consumed
alcohol (beer) over the span of three hours before the collision at the Mesa
party, (2) was a "three" on a drunkenness scale from zero to ten ("zero being
completely sober and ten being falling down drunk") at the time of the
collision, and (3) had not consumed any alcohol after the collision. On
direct examination, Garwo denied he told police he drank at the party in
Mesa, denied he told police he had not consumed alcohol after the collision,
and denied the existence of an open container of alcohol in his vehicle at the
time of the collision:

       Q. Okay. Did you ever tell the police that you drank two
       beers at a party in Mesa?

       A. There was no beer in the party. I don't know where they
       got those stories from.

                                 *      *      *

       Q. Did you ever tell the police that you drank at the park in
       Mesa?

       A. No.

       Q. Did you ever tell the police that you drank at a party in
       Mesa?

       A. No.


                                        3
                              STATE v. GARWO
                             Decision of the Court

                                *      *     *

     Q. Did you tell Officer [] you did not drink any alcohol after
     this collision?

     A. I never did.

                                *      *     *

     Q. There was testimony that a cup was found in your Ford
     Fusion? . . . Do you recall that?

     A. That's what they said.

     Q. Okay. Do you recall any open containers of alcohol being
     in the vehicle?

     A. Not that I recall.

Subsequently, while cross-examining Garwo, the prosecutor asked,
without objection, whether the police officers were lying:

     Q. So Officer [] lied when he said that you told him [you did
     not have anything else to drink after the collision]?

     A. Exactly.

                                *      *     *

     Q. And you never told them that you had alcohol, specifically
     beer, two of them, whatever you said, before you drove your
     car?

     A. No.

     Q. So that part is a lie, too?

     A. Yeah.

                                *      *     *

     Q. And you told the officers when they asked you to rate
     yourself on a scale from 0 to 10, 0 being completely sober, 10
     being drop dead drunk, that at the time of driving you rated
     yourself a three.



                                      4
                             STATE v. GARWO
                            Decision of the Court

       A. That's what he said, I did.

                                *       *     *

       Q. So he made that part up, too?

       A. (Nods head.)

¶7            The prosecutor's questions did not constitute misconduct,
much less fundamental error that deprived Garwo of a fair trial. The
prosecutor asked Garwo whether the officers were lying only after Garwo
questioned the veracity of the officer's testimony on direct examination,
opening the door to the prosecutor's questions. Morales, 198 Ariz. at 375, ¶
13. See generally State v. Doerr, 193 Ariz. 56, 63, ¶ 27 (1998) ("When a party
elicits evidence or comments that make otherwise irrelevant evidence
highly relevant or require some response or rebuttal," the door is opened to
pertinent, generally impermissible evidence.).3              Accordingly, the
prosecutor did not commit misconduct by asking Garwo whether the police
officers were lying. Morales, 198 Ariz. at 375, ¶ 13; see People v. Overlee, 236
A.D.2d 133, 137-38 (N.Y. App. Div. 1997).

¶8            Garwo argues the prosecutor also distorted the State's burden
of proof during closing argument by asking the jury to consider whether
the police officers had any motive to lie.4 In support, Garwo cites United
States v. Richter, 826 F.2d 206 (2d Cir. 1987). In that case, however, the
prosecutor not only repeatedly asserted that the jury could acquit the
defendant only if it found FBI agents committed perjury "over and over
again, in this courtroom," the prosecutor also misquoted evidence in an
effort to frame the controversy as between the defendant and the FBI
agents. Richter, 826 F.2d at 208-09. Here, the prosecutor's statement, read
in the proper context, simply emphasized the jury's duty to determine
witness credibility and outlined relevant factors bearing on that
determination. Further, the superior court instructed the jurors before and

3      Garwo asks this court to reconsider Morales, but we decline to do so.

4      The prosecutor said:

       [A]ll different types of witnesses . . . are all judged the same.
       So when the officers take the stand, you get to judge them the
       same way. What bias do they have? What motive do they
       have for them to lie now when they say that he said he was
       drinking before? You get to decide that.



                                        5
                            STATE v. GARWO
                           Decision of the Court

after the presentation of evidence that the State had the burden of proving
the defendant guilty beyond a reasonable doubt and defined that burden
for the jury. Under the circumstances, the prosecutor's statement did not
distort the State's burden of proof and did not constitute misconduct. See
State v. Haverstick, 234 Ariz. 161, 164, ¶ 6 (App. 2014) ("We consider
arguments made in closing together with the jury instructions to determine
whether the prosecutor's statements constituted fundamental error.").

                              CONCLUSION

¶9            For the foregoing reasons, we affirm Garwo's convictions and
resulting sentences.




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




                                        6
