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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 JOSHUA CLARENCE HARRIS, Appellant.

                             No. 1 CA-CR 14-0428
                               FILED 7-23-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-105391-002
             The Honorable Jerry Bernstein, Commissioner

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Margaret M. Green
Counsel for Appellant
                            STATE v. HARRIS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Maurice Portley joined.


N O R R I S, Judge:

¶1            Joshua Clarence Harris appeals from his convictions and
sentences for two counts of aggravated driving under the influence. On
appeal he argues, first, the State failed to present sufficient evidence
supporting his convictions; second, the superior court committed structural
error during voir dire by allowing the prosecutor to instruct the jury panel
on the law; third, the prosecutor committed prosecutorial misconduct
during opening statement and closing argument; and fourth, the court
improperly instructed the jury on “actual physical control.” We disagree
with Harris’s arguments and affirm his convictions and sentences.

            FACTS AND PROCEDURAL BACKGROUND1

¶2            Police officer H. was on patrol at approximately 9:00 p.m. on
January 24, 2012 when he stopped to investigate a car parked on the
shoulder. Officer H. noticed that the car’s front right tire was “shredded”
and saw Harris, the car’s only occupant, “passed out” in the driver’s seat
with a key in the ignition.

¶3           After Officer H. woke him, Harris explained he was trying to
get home and asked whether he had “hit anything.” Harris also exhibited
numerous signs of alcohol impairment, including red, watery eyes, slurred
speech, and a strong odor of alcohol. Harris told the officer his driver’s
license had been suspended. Officer H. arrested Harris for suspected DUI
and transported him to the police station where his blood was drawn at
10:08 p.m. A Department of Public Safety criminalist tested Harris’s blood
and determined it had a .251 blood alcohol concentration (“BAC”).

¶4             A grand jury indicted Harris on two counts of aggravated
DUI. At trial, the State argued Harris was driving the car—or, alternatively,
exercising actual physical control of the car—while impaired and with a

             1We    view the facts in the light most favorable to sustaining
the jury’s verdict and resolve all reasonable inferences against Harris. See
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).


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                             STATE v. HARRIS
                            Decision of the Court
BAC greater than .08. Harris and his sister, D., testified D. was driving
Harris home, and after a tire “blew out” and the car stalled, she walked
home leaving Harris in the car sitting in the passenger seat. The jury found
Harris guilty as charged.

                               DISCUSSION

I.     Sufficiency of the Evidence

¶5            Harris first argues the State failed to present sufficient
evidence proving beyond a reasonable doubt he had exercised actual
physical control of the car. Specifically, he contends the State failed to
present sufficient evidence he posed a threat to the public by exercising
present or imminent control of the car while impaired. We disagree.

¶6            Our review of the sufficiency of the evidence is limited to
whether substantial evidence exists to support the guilty verdict. See State
v. West, 226 Ariz. 559, 562, ¶ 14, 250 P.3d 1188, 1191 (2011); see also Ariz. R.
Crim. P. 20(a) (directing courts to enter judgment of acquittal “if there is no
substantial evidence to warrant a conviction”). Substantial evidence is such
proof that “reasonable persons could accept as adequate and sufficient to
support a conclusion of defendant’s guilt beyond a reasonable doubt.”
West, 226 Ariz. at 562, ¶ 16, 250 P.3d at 1191 (citations omitted) (internal
quotation marks omitted).

¶7             The State was required to prove beyond a reasonable doubt
that Harris, while his license was suspended, either drove or exercised
actual physical control of the car while either impaired to the slightest
degree or with a BAC of .08 or more within two hours of driving or being
in actual physical control of the car. See Ariz. Rev. Stat. (“A.R.S.”) section
28-1383(A)(1) (Supp. 2014).2 “Actual physical control” is not defined by
statute. Our supreme court, however, has instructed that the finder of fact
should consider the totality of the circumstances in “determining whether
the defendant’s current or imminent control of the vehicle presented a real
danger to [himself] [herself] or others at the time alleged.” State v. Zaragoza,
221 Ariz. 49, 52, 54, ¶¶ 12, 21, 209 P.3d 629, 632, 634 (2009). In making such
a determination, the Zaragoza court delineated a non-exclusive list of




              2Although   the Arizona Legislature amended A.R.S. § 28-1383
after the date of Harris’s offenses, the amendments are immaterial to the
resolution of this appeal. Thus, we cite to the current version.



                                       3
                             STATE v. HARRIS
                            Decision of the Court
factors, including the location of the ignition key, the position of the driver
in the vehicle, and the vehicle’s location. Id. at 54, ¶ 21, 209 P.3d at 634.

¶8           Here, the State presented substantial evidence supporting
several of the factors identified by the supreme court in Zaragoza. For
example, the car was parked on the shoulder of an urban freeway, thereby
posing a danger to Harris and passing motorists. Further, Harris was in the
driver seat with the key in the ignition, was within reach of the steering
wheel and gas pedal, and was the car’s sole occupant. Harris’s BAC was
over three times the legal limit, and he showed obvious signs of severe
impairment.

¶9            Under these circumstances, a reasonable jury could conclude
Harris was in actual physical control of the car and presented a real danger
to himself and others on the roadway. And contrary to Harris’s argument
on appeal, even if the car was inoperable, that did not, as a matter of law,
preclude a finding that he had exercised actual physical control over it. See
State v. Dawley, 201 Ariz. 285, 288, ¶ 9, 34 P.3d 394, 397 (App. 2001) (jury
should not be instructed that “actual physical control means that a person
has the apparent ability to start and move a vehicle”) (internal quotation
marks omitted); State v. Larriva, 178 Ariz. 64, 65, 870 P.2d 1160, 1161 (App.
1993) (concluding vehicle’s operability “is only tangentially relevant to the
determination of actual physical control”); State v. Vermuele, 160 Ariz. 295,
297, 772 P.2d 1148, 1150 (App. 1989) (intoxicated defendant was in actual
physical control of his parked car when he entered it and turned ignition to
on position even though engine never started).

¶10            Further, the trial evidence supports a finding that Harris,
while intoxicated, had driven the car before pulling over to the shoulder
and falling asleep. This evidence includes Harris’s statement to Officer H.
he was trying to get home and his question to Officer H. asking whether he
had “hit anything.” Additionally, Officer H. testified Harris neither denied
driving nor asserted D. had driven the car. Thus, even if the car was
inoperable by the time Officer H. arrived on the scene and found Harris,
substantial evidence still supports his convictions.3 See State v. Love, 182
Ariz. 324, 327–28, 897 P.2d 626, 629–30 (1995) (“[E]ven where a defendant is
determined to have relinquished actual physical control, if it can be shown


              3That is, because the DUI statutes provide in the disjunctive
that an intoxicated person may be guilty by driving or exercising actual
physical control of a vehicle, the evidence of Harris driving the vehicle
while intoxicated also supports his convictions. See A.R.S. § 28-1381(A)(1),
(2) (2012).


                                      4
                             STATE v. HARRIS
                            Decision of the Court
that such person drove while intoxicated to reach the place where he or she
was found, the evidence will support a judgment of guilt.”).

II.    Voir Dire

¶11          During voir dire, and without objection, the prosecutor
discussed the concept of actual physical control and told the jury panel the
following:

              [T]he State either has to prove the defendant
              was driving or was in actual physical control.
              And I want to read to you a little portion of the
              law with regard to that issue.

              A person who drives a vehicle actually controls
              it. Driving is a subset of actual physical control.
              The actual physical control portion of the
              statute is broader than the driving portion. The
              legislature intended to extend the driving under
              the influence statutes to encompass those
              situations in which a person who is not driving
              nonetheless poses an equivalent risk. The
              purpose of the actual physical control provision
              is to enable the person to be apprehended before
              he strikes.

The prosecutor continued by asking if the panel understood what she had
explained and whether anyone disagreed with actual physical control being
a basis for DUI culpability. None of the potential jurors indicated any
disagreement with what the prosecutor had said.

¶12            Relying on State v. Anderson, 197 Ariz. 314, 323, 4 P.3d 369, 378
(2000), Harris contends the prosecutor’s statements improperly
conditioned the jury and amounted to structural error.4 See State v.
McMurtrey, 136 Ariz. 93, 99, 664 P.2d 637, 643 (1983) (“It is not a legitimate
function of voir dire to condition the jury to the receipt of certain evidence
or to a particular view of the evidence.”). When structural error occurs in
a criminal trial which results in a guilty verdict, this court automatically
reverses without considering whether the error prejudiced the defendant.
State v. Ring, 204 Ariz. 534, 552, ¶ 45, 65 P.3d 915, 933 (2003).



              4Harris
                    also argues the prosecutor’s statements misstated the
law. We address that issue infra at paragraph 18.


                                       5
                             STATE v. HARRIS
                            Decision of the Court
¶13           Anderson, however, is not controlling. In that capital murder
case, our supreme court held the superior court had committed structural
error during voir dire by not permitting the defendant an opportunity to
question and possibly rehabilitate potential jurors who had stated they
were opposed to the death penalty. Anderson, 197 Ariz. at 318, 324, ¶¶ 5,
23, 4 P.3d at 373, 379. Here, in contrast, Harris had the opportunity to
question the prospective jurors and in fact did so. Accordingly, we will not
review the prosecutor’s statements for structural error.

¶14             Instead, because Harris did not object to the prosecutor’s
statements during voir dire, we review for fundamental error. See State v.
Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To obtain relief
under fundamental error review, Harris has the burden to show error
occurred, the error was fundamental, and he was prejudiced thereby. See
Henderson, 210 Ariz. at 567–68, ¶¶ 20–22, 115 P.3d at 607–08. Fundamental
error is error that “goes to the foundation of his case, takes away a right that
is essential to his defense, and is of such magnitude that he could not have
received a fair trial.” Id. at 568, ¶ 24, 115 P.3d at 608.

¶15          As we explain below, the prosecutor’s statements during voir
dire accurately reflected Arizona law. The statements also did not
condition the jury to view the trial evidence in a manner favored by the
State. Instead, the prosecutor’s statements and following question, see
supra ¶ 11, allowed the State “to intelligently exercise [its] peremptory
challenges and challenges for cause.” McMurtrey, 136 Ariz. at 99, 664 P.2d
at 643. Thus, Harris has not demonstrated error, let alone fundamental
error. Moreover, Harris has not demonstrated how the purported error
prejudiced him.5

III.   Prosecutorial Misconduct

¶16          Similar to her comments during voir dire, during opening
statement and closing argument the prosecutor stated, “The purpose of
actual physical control is for the person to be apprehended before he
strikes.” The prosecutor also stated in closing that whether the car was
operable was not a factor for the jury to consider in determining whether
Harris was in actual physical control. Harris argues the prosecutor’s
statements misstated the law and her “misconduct” requires us to reverse


              5As noted, Harris’s convictions could be based on the jury’s
finding that he drove the car while intoxicated before stopping on the
freeway. Thus, any error in discussing actual physical control was
immaterial to the verdicts.


                                       6
                             STATE v. HARRIS
                            Decision of the Court
his convictions. Reviewing for fundamental error because Harris failed to
object to these statements, we disagree.

¶17           Prosecutorial misconduct is not merely “legal error,
negligence, mistake, or insignificant impropriety, but, taken as a whole,
amounts to intentional conduct which the prosecutor knows to be improper
and prejudicial.” Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271
(1984). To justify reversal, the misconduct “must be so pronounced and
persistent that it permeates the entire atmosphere of the trial.” State v. Lee,
189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (citations omitted) (internal
quotation marks omitted). Even then, reversal is not required unless the
defendant was denied a fair trial. State v. Bible, 175 Ariz. 549, 600, 858 P.2d
1152, 1203 (1993).

¶18            The prosecutor’s statements about the purpose of the actual
physical control element in a DUI prosecution accurately reflects Arizona
law. See State v. Webb, 78 Ariz. 8, 11, 274 P.2d 338, 339–40 (1954) (“actual
physical control” provision is to “enable the drunken driver to be
apprehended before he strikes”); State v. Rivera, 207 Ariz. 69, 72, ¶ 9, 83 P.3d
69, 72 (App. 2004) (citing with approval Webb’s “before he strikes”
language); Dawley, 201 Ariz. at 288, ¶ 9, 34 P.3d at 397 (“[T]he purpose of
the statute’s ‘actual physical control’ provision . . . is to ‘enable the drunken
driver to be apprehended before he strikes.’”) quoting Webb, 78 Ariz. at 11,
274 P.2d at 339.

¶19            The prosecutor’s statement that whether the car was operable
was not a “factor” for the jury to consider for determining actual physical
control was, however, a misstatement of the law because the jury is to
consider “any explanation of the circumstances shown by the evidence.”
Zaragoza, 221 Ariz. at 54, ¶ 21, 209 P.3d at 634. Nevertheless, when read in
context, it is clear the prosecutor was referring to the elements of the
offenses, none of which require the State to prove the vehicle was operable
at the time of the offense. See A.R.S. § 28-1383(A)(1).

¶20           The prosecutor stated:

              The defense is making a big point of telling you
              about how his sister believes the car died, even
              though she admitted she doesn’t know much
              about cars and about how, you know, whether
              the vehicle could have actually moved or been
              driven on the roadway. You will see nowhere in
              any of these instructions any requirement that
              the State prove the car was operable, could have


                                       7
                            STATE v. HARRIS
                           Decision of the Court
             moved, that is not in the instructions anywhere.
             That’s not one of the factors, that is not in the
             definition of actual physical control, that is
             nowhere in these instructions. The State is not
             required to prove that that vehicle could have
             moved anywhere. That’s simply not part of the
             law.

From the foregoing, it appears the prosecutor mistakenly used the word
“factor” instead of the word “element.” Such a mistake does not amount to
misconduct.

¶21            In any event, the jury was properly instructed to consider
“any explanation of the circumstances shown by the evidence,” and to not
consider the lawyers’ arguments as evidence. As Harris concedes, “A
misstatement of the law can be cured by the court’s instruction that the
attorney’s argument is not evidence in a case.” See State v. Anderson, 210
Ariz. 327, 342, ¶ 50, 111 P.3d 369, 384 (2005). Thus, to the extent the
prosecutor’s statement regarding operability amounted to intentional error,
the court’s instructions to the jury cured any resulting prejudice. See State
v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006) (superior court
properly instructed jury that lawyers’ statements during closing arguments
are not evidence; appellate court presumes jurors follow court’s
instructions).

IV.   Jury Instruction

¶22          The superior court instructed the jury as follows:

             In determining whether the Defendant was in
             “actual physical control” of the vehicle, you
             should consider the totality of circumstances
             shown by the evidence and whether the
             Defendant’s current or imminent control of the
             vehicle presented a real danger to himself or
             others at the time alleged. Factors to be
             considered in any given case might include, but
             are not limited to:

             (1) Whether the vehicle was running;

             (2) Whether the ignition was on;

             (3) Where the ignition key was located;



                                     8
                            STATE v. HARRIS
                           Decision of the Court
             (4) Where in and what position the driver was
             found in the vehicle;

             (5) Whether the person was awake or asleep;

             (6) Whether the vehicle’s headlights were on;

             (7) Where the vehicle was stopped;

             (8) Whether the driver had voluntarily pulled
             off the road;

             (9) Time of day;

             (10) Weather conditions;

             (11) Whether the heater or air conditioner was
             on;

             (12) Whether the windows were up or down;

             (13) Any explanation of the circumstances
             shown by the evidence.

             This list is not meant to be all-inclusive. It is up
             to you to examine all the available evidence and
             weigh its credibility in determining whether the
             Defendant actually posed a threat to the public
             by the exercise of present or imminent control
             of the vehicle while impaired.

¶23          Harris argues the two references to “driver” in this instruction
amounted to improper comment on the evidence and constituted
fundamental error because the jury could interpret the instruction as an
opinion by the court that Harris was the driver. Harris also contends,
without elaboration, that “[t]he instruction also relieved the state of its
burden of proving actual physical control . . . .”

¶24           We do not need to address the merits of Harris’s arguments.
The instruction given by the court was a verbatim recitation of the jury
instruction our supreme court approved in actual physical control DUI
prosecutions. See Zaragoza, 221 Ariz. at 54, ¶ 21, 209 P.3d at 634; State v.
Paredes-Solano, 223 Ariz. 284, 292, ¶ 23, 222 P.3d 900, 908 (App. 2009)
(declining to consider challenge to superior court’s reasonable doubt
instruction because the instruction was approved by the supreme court).


                                      9
                           STATE v. HARRIS
                          Decision of the Court
                            CONCLUSION

¶25          For the foregoing reasons, we affirm Harris’s convictions and
sentences.




                                 :ama




                                   10
