                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    MIKE RUBEN ALVAREZ, Appellant.

                             No. 1 CA-CR 13-0275
                                   FILED 9-9-14

           Appeal from the Superior Court in Maricopa County
                        No. CR2011-145005-001
               The Honorable Joseph C. Kreamer, Judge

                              AFFIRMED


                               COUNSEL

Arizona Attorney General’s Office, Phoenix
By David A. Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
                            STATE v. ALVAREZ
                            Decision of the Court



                        MEMORANDUM DECISION

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


P O R T L E Y, Judge:

¶1             Defendant Mike Ruben Alvarez was convicted of two counts
of attempted second-degree murder, four counts of aggravated assault, two
counts of endangerment, and other offenses arising from his running gun
battle with police officers attempting to arrest him. He appeals his
convictions and the resulting sentences. He raises three arguments: (1) the
prosecutor impermissibly vouched for the State during the closing
argument; (2) there was insufficient evidence to show that two of the
victims were recklessly endangered by a substantial risk of imminent death
during the running gun battle; and (3) this court should enlarge the right to
a jury trial to include any sentencing enhancement. For the reasons that
follow, we affirm.

                        FACTUAL BACKGROUND

¶2             Two police officer were on patrol on August 4, 2011. Alvarez
was riding his bicycle on the sidewalk and going very fast. The officers
were suspicious and tried to make contact with Alvarez, but he pedaled
away and rode through a park with the officers following him. He crashed
his bicycle and, as the officers tried to take him into custody, he rolled over
and shot and wounded both officers and, in turn, was shot by one of them.
Alvarez then went into the adjacent house with an open garage door,
confronted a victim, pointed a gun at her and demanded the keys to her car,
but left after she told him the car was broken. Alvarez came out yelling
profanities, and shooting at the officers. The officers returned fire as he
moved towards them. After Alvarez went down, the guns were kicked
away.

¶3            The two officers and Alvarez were taken to the hospital. The
officers were released later that day. Alvarez was subsequently indicted for
two counts of attempted first-degree murder, four counts of aggravated
assault, burglary in the first degree, attempted theft of a means of
transportation, misconduct involving weapons and two counts of
endangerment. After the trial, the jury did not convict Alvarez of attempted


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                             STATE v. ALVAREZ
                             Decision of the Court

first-degree murder, but did convict him of the lesser-included counts of
attempted second-degree murder and all the other counts. We have
jurisdiction over this appeal pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-120.21(A)(1), 13-4031, and -4033(A).1

                                 DISCUSSION

                                        I

¶4             Alvarez argues that the prosecutor repeatedly engaged in
misconduct during closing argument. Specifically, he contends that the
prosecutor: (1) used the pronouns “I” and “we” during his closing
argument and improperly injected his personal beliefs; (2) implied that
Alvarez might offend again if acquitted; and (3) advised the jury that only
the judge could consider sympathy for Alvarez. Because Alvarez failed to
object to any of the claimed misconduct at trial, he bears the burden of
establishing the prosecutor engaged in misconduct, the misconduct
constituted fundamental error, and the misconduct caused him prejudice.
See State v. Henderson, 210 Ariz. 561, 568, ¶ 22, 115 P.3d 601, 608 (2005). Error
is fundamental when it goes to the foundation of the defendant’s case, takes
from him a right essential to his defense, and is error of such magnitude
that he could not possibly have received a fair trial. Id. at 567, ¶ 19, 115 P.3d
at 607. To prove prejudice, defendant must show that a reasonable jury
could have reached a different result absent the error. Id. at 569, ¶ 27, 115
P.3d at 609.

¶5             “[P]rosecutors have wide latitude in presenting their closing
arguments to the jury: ‘excessive and emotional language is the bread and
butter weapon of counsel's forensic arsenal, limited by the principle that
attorneys are not permitted to introduce or comment upon evidence which
has not previously been offered and placed before the jury.’” State v. Jones,
197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000) (citation 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) (citation and internal quotation
marks omitted).




1   We cite to the current version of the statute unless otherwise noted.


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                             STATE v. ALVAREZ
                             Decision of the Court

¶6             First, even though the prosecutor used “I” and “we,” the
question is whether the prosecutor engaged in impermissible vouching
during the closing argument. 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 suggests that
information not presented to the jury supports the witness’s testimony.”
State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33 (1994) (citation
omitted). Alvarez argues that the prosecutor engaged in both types of
vouching, by implicitly suggesting that the prosecutor personally believed
in the case, and by “making explicit references to his personal knowledge
or information not in the record.” We disagree.

¶7            The use of personal pronouns is not necessarily improper in
closing arguments when used to marshal evidence admitted at trial, as long
as it is not used to bolster the credibility of witnesses or to suggest that
evidence not presented to the jury supports the argument. See State v. Lee,
185 Ariz. 549, 554, 917 P.2d 692, 697 (1996) (holding that prosecutor’s
repeated preface of statements with, “I think,” was not improper and, in
any case, did not rise to the level of fundamental error); United States v. Ruiz,
710 F.3d 1077, 1086 (9th Cir. 2013) (holding that use of “we know” was
proper because it was used “to marshal evidence actually admitted at trial
and reasonable inferences from the evidence, not to vouch for witness
veracity or suggest that evidence not produced would support a witness’s
statements.”). Here, the prosecutor’s use of the personal pronouns in his
closing argument did not suggest that he had information not presented to
the jury, but rather was simply a means of introducing and summarizing
his view of what the evidence — which he outlined at length —
demonstrated. This was not improper.

¶8               Second, Alvarez argues that the prosecutor engaged in
misconduct by arguing that police acted appropriately in attempting to stop
Alvarez for what they viewed as suspicious behavior and by asking,
“not . . . talking about this defendant in particular, just . . . a general policy,”
“what if” police failed to stop a suspicious person, and it turns out that he
had committed murder or rape, or “victimizes somebody in the
neighborhood later that day,” “what do those officers end up saying?” The
prosecutor’s argument, however, was not directed to the risk Alvarez might
reoffend if he were acquitted, see State v. Makal, 104 Ariz. 476, 478, 455 P.2d
450, 452 (1969), but responded to Alvarez’s argument that police had no
good reason to stop him in the first place. The prosecutor’s example of what
might happen if police did not pursue persons acting suspiciously was not
improper rebuttal.



                                         4
                            STATE v. ALVAREZ
                            Decision of the Court

¶9            The prosecutor’s argument that only the judge could be
swayed by sympathy for the defendant in imposing punishment was
improper. It was improper because the argument was not based on any
evidence presented at trial and was not relevant to the jury’s consideration
of the evidence, especially given the fact that the jury had been instructed
not to worry about any possible sentence. There is nothing, however, in the
record to suggest that the single remark during argument could have
affected the verdict to such an extent that is necessary to reverse for
prejudicial misconduct. See Morris, 215 Ariz. at 335, ¶ 46, 160 P.3d at 214.
More importantly, the jury had been instructed that the argument of
counsel was not evidence and that the jury had to determine the facts based
on the evidence presented at trial. Because we presume the jury followed
the instructions, State v. Reyes, 232 Ariz. 468, 471, ¶ 7, 307 P.3d 35, 38 (App.
2013), we find no fundamental prejudice by the one improper comment
during argument.

¶10              Finally, Alvarez contends that because the “prosecutor
intentionally engaged in improper conduct and did so with indifference, if
not specific intent, to prejudice the defendant,” we should reverse on the
basis of cumulative argument error. See State v. Gallardo, 225 Ariz. 560, 568,
¶ 35, 242 P.3d 159, 167 (2010). The trial record does not suggest pervasive
prosecutorial misconduct during closing argument that deprived Alvarez
of a fair trial.

                                       II

¶11            Alvarez also contends that the evidence was insufficient to
prove that he fired shots at a nearby house occupied by a mother and child,
and thereby recklessly endangering them. We review de novo the
sufficiency of the evidence to support a conviction. State v. West, 226 Ariz.
559, 562, ¶15, 250 P.3d 1188, 1191 (2011). We view the facts in the light most
favorable to upholding the jury's verdict and resolve all conflicts in the
evidence against defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d
1301, 1307 (1983).

¶12            The offense of felony endangerment requires proof that the
defendant “recklessly endanger[ed] another person with a substantial risk
of imminent death or physical injury.” A.R.S. § 13-1201(A). At trial, the
ballistics evidence demonstrated that during the gun battle with police,
Alvarez fired one shot that hit the house occupied by the mother and child,
fired a second shot that hit one of the vehicles in the driveway, and likely
fired a third shot that hit the house, penetrated the wall and traveled
through the room where the mother and child were watching television. In


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                            STATE v. ALVAREZ
                            Decision of the Court

fact, Alvarez testified and admitted that the bullets that hit the house came
from his revolver. Moreover, the evidence demonstrated that Alvarez fired
first, and engaged the police officers in a gun battle in a yard between two
houses. The evidence was more than sufficient to demonstrate that Alvarez
recklessly created a substantial risk of imminent death for the mother and
child occupying one of those houses. We find no error.

                                       III

¶13            Alvarez also asks this court to use the holding of Alleyne v.
United States, 133 S. Ct. 2151 (2013) to require the jury, rather than the judge,
to find the existence of prior convictions used for sentencing enhancement.2
We decline the invitation.

¶14            In Alleyne, the U.S. Supreme Court held that any fact that
increases the mandatory minimum sentence must be submitted to the jury
and proved beyond a reasonable doubt. Id. at 2163. Alvarez concedes,
however, that Alleyne did not overrule the rule for proof of prior convictions
first delineated in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
reaffirmed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny.
See Alleyne, 133 S. Ct. at 2160 n. 1 (“Because the parties do not contest
[Almendarez-Torres’s] vitality, we do not revisit it for purposes of our
decision today.”); Almendarez-Torres, 523 U.S at 239-247 (rejecting
constitutional claim that prior conviction is an element of offense that must
be alleged in indictment and proved to jury beyond a reasonable doubt);
Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”); Blakely v. Washington, 542 U.S. 296, 301 (2004) (same). “Our
constitutional system requires adherence to the rule of law established in
Almendarez-Torres unless and until the [United States Supreme] Court
unequivocally disapproves its holding.” State v. Ring, 204 Ariz. 534, 557,
¶ 61, 65 P.3d 915, 939 (2003). The Supreme Court has not done so. See
Alleyne, 133 S. Ct. at 2160 n. 1. Accordingly, the superior court properly
found that Alvarez had prior felony convictions that could be used to
enhance his sentences.




2 We note that Alvarez testified at trial and admitted that he had prior
felony convictions.


                                       6
                         STATE v. ALVAREZ
                         Decision of the Court

¶15          For the foregoing reasons, we affirm Alvarez’s convictions
and sentences.




                               :JT



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