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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                CHRISTOPHER LEE DEVORCE, Appellant.

                             No. 1 CA-CR 15-0751
                              FILED 11-22-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-121101-001
           The Honorable Annielaurie Van Wie, Commissioner

                                  AFFIRMED


                                   COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
                           STATE v. DEVORCE
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.


K E S S L E R, Judge:

¶1             Christopher Lee Devorce (“Devorce”) appeals his convictions
and sentences for aggravated driving of a vehicle while under the influence
of intoxicating liquor or drugs, a class 4 non-dangerous, non-repetitive
felony, in violation of Arizona Revised Statutes (“A.R.S.”) sections 28-1381
and 28-1383 (2016).1 Devorce argues that the trial court erred by allowing
the State to impeach his testimony in violation of his Fifth Amendment right
not to have his silence used as evidence of guilt. For the reasons set forth
below, we affirm Devorce’s convictions and sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶2           Devorce was indicted for two counts of aggravated driving or
actual physical control of a vehicle while under the influence of intoxicating
liquor or drugs. A jury found him guilty of both counts.

¶3             Sergeant P of the Phoenix Police Department was on patrol
when he noticed a black Honda with a loose bumper. Sergeant P testified
that he saw Devorce driving this vehicle and identified him as a person who
had “very close shaved hair, a couple days (sic) growth beard, wearing a
black T-shirt, dark complexion, [and] heavier set.” Sergeant P observed the
vehicle make abrupt movements and followed it into the El Pollo Loco
parking lot. Sergeant P momentarily lost sight of the vehicle but, upon
parking in the El Pollo Loco parking lot, he saw the same black Honda with
the driver side door open and no occupants in the vehicle.

¶4           Sergeant P then noticed Devorce sitting outside El Pollo Loco
and recognized him as the Honda’s driver. Before confronting Devorce,
Sergeant P heard the Honda’s electric doors lock. Sergeant P approached
Devorce and asked him for his license. While speaking with Devorce,


1       We cite to the current versions of statutes when no changes material
to this decision have since occurred.



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                            STATE v. DEVORCE
                            Decision of the Court

Sergeant P noticed that Devorce had slurred speech, had a moderate sway
when he stood up, and that Devorce had removed the vehicle’s key from
his pocket when searching for his identification. The record does not reflect
whether Devorce was given his Miranda2 warnings, however, when
confronted by Sergeant P, Devorce invoked his Fifth Amendment rights by
requesting counsel. Sergeant P then arrested Devorce for driving under the
influence and placed him in the backseat of his patrol vehicle. Upon
entering the patrol vehicle, Devorce fell asleep and began to snore. Devorce
was arrested at approximately 8:49 am however, his blood was not drawn
until 11:11 am. At the time Devorce’s blood was drawn, approximately two
hours after his arrest, he had a BAC of .191, more than twice the legal limit.3

¶5            At trial, Devorce testified that his friend, Jay, had been driving
the vehicle and had driven the vehicle into the El Pollo Loco parking lot.
However, on cross examination, Devorce testified that he did not remember
whether he had told Sergeant P that he was not driving, and that Jay was
driving the vehicle at the time of his arrest. The State then re-called
Sergeant P for rebuttal to testify that Devorce “never told [him] that anyone
else was driving or that Jay had existed at this point.” Sergeant P testified
that Devorce never told him that he was not the driver of the vehicle and
never informed Sergeant P that someone named Jay had been driving.

¶6           The jury found Devorce guilty on both counts. Devorce now
timely appeals. We have jurisdiction pursuant to Article 6, Section 9 of the
Arizona Constitution and A.R.S §§ 12-120.21(A)(1) (2003), 13-4031 (2010),
and 13-4033(A)(1) (2010).

                                DISCUSSION

¶7               Devorce contends that the trial court violated his Fifth
Amendment rights by impeaching him with his post-arrest invocation of
silence, and thus his convictions and sentences should be overturned. We
review for fundamental error because Devorce failed to raise this objection
at trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (citation omitted).
Devorce therefore has the burden of persuasion and must establish both
that a “fundamental error exists and that the error in his case caused him
prejudice.” Id. at ¶ 20 (citations omitted). Determining whether an error is



2      Miranda v. Arizona, 384 U.S. 436 (1966).

3     Both parties admit Devorce’s BAC at the time of arrest was likely
between .181 and .212.


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                            STATE v. DEVORCE
                            Decision of the Court

fundamental is a fact specific inquiry. State v. James, 231 Ariz. 490, 493, ¶ 13
(App. 2013) (citation omitted).

   I.     Fifth Amendment Violation

¶8              In VanWinkle, our supreme court held that a person has the
right to remain silent once in custody regardless of whether Miranda
warnings had been given. State v. VanWinkle, 229 Ariz. 233, 236, ¶ 14 (2012)
(citations omitted). Further, a defendant’s invocation of his Miranda rights
and his post-arrest silence may not “be used to impeach an explanation
subsequently offered at trial.” Doyle v. Ohio, 426 U.S. 610, 618 (1976).
Consistent with these Fifth Amendment rights, “a defendant’s silence at the
time of arrest cannot be used against him as inconsistent with testimony
given at trial.” State v. Routhier, 137 Ariz. 90, 95 (1983) (citations omitted).
Despite this prohibition, a defendant’s silence can be used to attack his
credibility as a witness, id. at 98, when a “defendant makes a statement at
trial which is inconsistent with an earlier statement [so that] his credibility
is clearly in question,” State v. Calhoun, 115 Ariz. 115, 118 (App. 1977)
(citation and quotations omitted). In contrast to contradictory statements
at trial, a defendant’s “silence at the time of arrest is not an inconsistent or
contradictory statement.” State v. Anderson, 110 Ariz. 238, 241 (1973)
(emphasis added) (citation and quotations omitted). Rather, this silence “is
simply the exercise of a constitutional right that all persons must enjoy
without qualification.” Id. (citation and quotations omitted).

¶9            The parties agree that Devorce invoked his right to an
attorney, and thus to silence. Therefore, Devorce was not subject to
questioning by Sergeant P during his arrest. It is also uncontested that the
State heard about Jay for the first time at trial. However, the State argues
that it is permitted to introduce that silence for rebuttal to contradict
Devorce’s contention at trial that he was not silent to police.

¶10             We disagree with the State. Post-arrest silence can be used
“to contradict a defendant who testifies to an exculpatory version of events
and claims to have told the police the same version upon arrest.” Doyle, 426
U.S. at 619 n.11. This exception to impeachment with post-arrest silence is
limited to when the defendant testifies that he told the officers an
exculpatory story following his arrest and again tells an exculpatory story
at trial. See also Van Winkle, 229 Ariz. at 236, ¶ 14 (“The Fifth Amendment
gives a person the right to remain silent once in custody, even if Miranda
warnings have not yet been given”); State v. Stuck, 154 Ariz. 16, 21 (App.
1987) (“If a defendant, after receiving Miranda rights, voluntarily gives a




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                             STATE v. DEVORCE
                             Decision of the Court

statement, that statement may be used to impeach his credibility if he
testifies at trial to a directly exculpatory version of the facts.”).

¶11          Devorce never testified that he told the police an exculpatory
version of events. Rather, Devorce testified to the following on cross
examination:

         Q: Do you recall telling the officer I wasn’t driving?
         A: I’m not sure.
         Q: Did you tell the officer Jay was driving?
         A: I’m not sure of that either. I don’t remember too much. . . .
         Q: And you were in handcuffs and under arrest for driving
         under the influence, but you never told the officer that you
         weren’t driving?
         A: I was intoxicated. We didn’t really talk too much.

The proper conclusion from Devorce’s testimony is that he was unsure
whether he informed Sergeant P that Jay was driving the vehicle, not that
he informed Sergeant P about Jay. This testimony does not show that
Devorce’s trial testimony about not driving the car conflicted with his
earlier statements. This was insufficient to impeach Devorce under Doyle.

¶12            The State also argues that it did not comment on Devorce’s
silence at trial. The record does not support that argument. The State
repeatedly commented on Devorce’s silence about not driving the car
during its closing argument.

¶13           We conclude the State violated Devorce’s Fifth Amendment
right by implying that his silence and failure to speak during his arrest
aided in his plan to concoct a story to prove his innocence. Furthermore,
Devorce’s impeachment was improper because there was no evidence that
Devorce provided inconsistent statements. Instead, Devorce chose to
exercise his Fifth Amendment rights upon his arrest by remaining silent
and then chose to testify at trial.

   II.      Fundamental Error

¶14            We affirm Devorce’s conviction and sentence, however,
because he failed to show that the error was fundamental and that it
prejudiced him. Fundamental error is an error that “goes to the foundation
of the case or takes from the defendant a right essential to his defense.” State
v. Thomas, 130 Ariz. 432, 435 (1981) (citation and quotation omitted). If an
error occurred, “the prejudicial nature of the unobjected-to error must be
evaluated in light of the entire record.” Id. at 436 (citations omitted).


                                        5
                            STATE v. DEVORCE
                            Decision of the Court

Moreover, to obtain a reversal, a defendant must also show that the
fundamental error caused him prejudice. Henderson, 210 Ariz. at 568, ¶ 26.4

¶15            The error is harmless, even if fundamental, if the evidence of
guilt is overwhelming, the trial record reflects the error, and the error does
not contribute to a guilty verdict. Anderson, 110 Ariz. at 241. Therefore, even
if the court finds an error, reversal is not required if it appears from the
record that such error did not significantly affect the verdict of the case.
Thomas, 130 Ariz. at 436.

¶16           We conclude that the error was harmless given the
overwhelming evidence of guilt. Sergeant P positively identified Devorce
as the individual driving the vehicle. Additionally, when Sergeant P
arrested Devorce, Devorce was by himself outside of El Pollo Loco and had
the car keys in his pocket. Sergeant P further testified that he noticed
Devorce had the effects of alcohol impairment such as slurred speech and
a moderate sway when he stood up. Additionally, when Devorce’s blood
was drawn two hours after his arrest, he had a BAC of .191. While Devorce
claims that he was not driving the vehicle, he was unable to recall any
identifying information relating to Jay, the alleged driver. Additionally, Jay
was not called to testify on Devorce’s behalf.

¶17            The record indicates that the violation of Devorce’s Fifth
Amendment rights did not significantly affect the outcome of the case.5
Sergeant P’s positive identification of Devorce as the driver, the absence of
other individuals at Devorce’s arrest, Devorce’s BAC level, and Devorce’s
lack of identifying information relating to Jay, overwhelmingly lead to the
conclusion that the jury would have found Devorce guilty of the charged




4      The fundamental error test for prejudice is essentially the same as
the harmless error test. However, for fundamental error, the defendant
bears the burden of proving prejudice. Henderson, 210 Ariz. at 610-11, ¶¶
37-39 (Hurwitz, J., concurring).

5      While the State inappropriately commented on Devorce’s silence,
supra, ¶ 12, these comments are insufficient to find fundamental error or
prosecutorial misconduct. We reject Devorce’s apparent argument about
prosecutorial misconduct because to the extent the comments were
inappropriate, they did not “permeate[] the entire atmosphere of the trial.”
State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (citations and quotations
omitted).


                                      6
                         STATE v. DEVORCE
                         Decision of the Court

crimes even without the admission of the statements that violated
Devorce’s Fifth Amendment rights.

                            CONCLUSION

¶18          For the foregoing reasons, we affirm Devorce’s convictions
and sentences.




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




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