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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     MELISSIA MULDROW, Appellant.

                             No. 1 CA-CR 17-0662
                               FILED 11-8-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-005720-001
               The Honorable Michael D. Gordon, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By William S. Simon
Counsel for Appellee

Barbara Hull Attorney at Law, Phoenix
By Barbara L. Hull
Counsel for Appellant
                          STATE v. MULDROW
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.


B R O W N, Judge:

¶1             Melissia Muldrow appeals her convictions and sentences for
two counts of sale or transportation of dangerous drugs. She argues the
trial court erred in denying her motion to sever. Muldrow also asserts the
prosecutor committed misconduct by attempting both to shift and reduce
the State’s burden of proof. Finally, Muldrow contends these purported
errors cumulatively resulted in an unfair trial. For the following reasons,
we affirm.

                             BACKGROUND

¶2            Detective Castellanos was working undercover in a drug
investigation when she approached Muldrow’s apartment and asked to see
“Spice,” a nickname for Muldrow’s husband Joe, whom Castellanos had
previously met.       Joe was not home, so Castellanos purchased
methamphetamine from Muldrow. A few days later, Castellanos returned
to the apartment with Detective Romo and conducted two additional
undercover purchases of methamphetamine from Muldrow and Joe. A jury
found them guilty of two counts each of sale or transportation of dangerous
drugs. As for Muldrow, the trial court imposed concurrent prison
sentences, the longest being 10 years. This timely appeal followed.

                              DISCUSSION

      A.     Denial of Motion to Sever

¶3              On the first day of trial, the court denied Muldrow’s renewed
Motion to Sever Counts and Defendants or in the Alternative Impanel Dual
Juries. Muldrow unsuccessfully re-urged her motion after Castellanos
clarified, as follows, a conversation between herself and Muldrow that had
been recorded and played for the jury:

      [Muldrow] is explaining to me that the stuff that she had was
      really good. It’s sweet. And I was telling her, yeah, it is really
      good. Like some of the other stuff that I’m buying from some

                                      2
                           STATE v. MULDROW
                            Decision of the Court

       of the other people is not as good. And I told her that [Joe]
       was really good -- has been good to me since I had been
       coming there . . . .

Muldrow argues the court erred by not trying her separately from Joe;
specifically, Muldrow contends she was prejudiced because Castellano’s
statement revealed that Joe had prior contacts with police.

¶4            When two or more defendants are joined for trial, Arizona
Rule of Criminal Procedure 13.4(a) requires a court to sever the trials if
“necessary to promote a fair determination of any defendant’s guilt or
innocence of any offense.” The decision to grant or deny a severance
motion is within the sound discretion of the trial court and will not be
disturbed absent an abuse of that discretion. State v. Cruz, 137 Ariz. 541,
544 (1983). In making its decision, the court must “balance the possible
prejudice to the defendant against interests of judicial economy.” Id.
When, as here, a defendant challenges the court’s failure to grant a
severance motion, she “must demonstrate compelling prejudice against
which the trial court was unable to protect.” Id. Our supreme court has
described four circumstances under which a defendant will generally be
able to prove the requisite level of prejudice: “(1) evidence admitted against
one defendant is facially incriminating to the other defendant; (2) evidence
admitted against one defendant has a harmful ‘rub-off effect’ on the other
defendant; (3) there is a significant disparity in the amount of evidence
introduced against each of the two defendants; or (4) co-defendants present
defenses that are so antagonistic that they are mutually exclusive.” State v.
Grannis, 183 Ariz. 52, 58 (1995) (citations omitted).

¶5             Muldrow is unable to meet her burden to show “compelling
prejudice” for several reasons. The trial court struck the last sentence of
Castellano’s statement from the record and immediately admonished the
jury not to consider it. We presume the jury followed this admonishment.
State v. Newell, 212 Ariz. 389, 403, ¶ 69 (2006). Neither defendant implicated
the other, as they did not testify, nor did they present antagonistic defenses.
See State v. Murray, 184 Ariz. 9, 25 (1995). Moreover, nothing in the record
shows the joint trial rendered the jury unable to “‘keep separate the
evidence that is relevant to each defendant and render a fair and impartial
verdict’ as to each.” See State v. Van Winkle, 186 Ariz. 336, 339 (1996)
(quoting State v. Lawson, 144 Ariz. 547, 556 (1985)) (noting mere introduction
of evidence concerning only one defendant is generally insufficient to
establish prejudicial rub-off).



                                      3
                            STATE v. MULDROW
                             Decision of the Court

¶6             Lastly, the trial court later instructed the jury as follows:
“[Y]ou must consider the charges against each defendant separately. Each
defendant is entitled to have the jury determine the verdict as to each of the
crimes based on that defendant’s own conduct and from the evidence
which applies to that defendant as if that defendant were being tried alone.”
When other-act evidence implicates one defendant only, “the absence of
[the other defendant] diminishes the prejudicial impact of the [prior]
episode as to him,” such that limiting instructions are sufficient, and
severance is not merited. See State v. Robinson, 165 Ariz. 51, 57 (1990); see
also State v. Runningeagle, 176 Ariz. 59, 68 (1993) (noting risk that evidence
against defendant “rubbed off” on co-defendant was minimized by similar
jury instruction); cf. Van Winkle, 186 Ariz. at 341 (finding trial court’s error
in not severing defendants’ joint trial was not harmless because court failed
to admonish jury “to keep separate the evidence applying to each
defendant, uninfluenced by evidence pertaining to the other defendant”).
Given the court’s proper instruction, we presume the jury considered the
evidence against each defendant separately. See Parker v. Randolph, 442 U.S.
62, 73 (1979).

       B.     Burden Shifting

¶7             During the prosecutor’s redirect examination of the expert
who tested the methamphetamine purchased by Castellanos, the trial court
overruled Muldrow’s objections to a series of questions concerning the lack
of requests from defense counsel to independently test the drugs. Muldrow
also unsuccessfully objected to the prosecutor’s references during closing
arguments to her failure to independently test the drugs.

¶8              Muldrow contends the prosecutor’s questioning of the
forensics expert and the related statements during closing argument
improperly commented on her failure to present evidence and shifted the
burden of proof to her. Because Muldrow objected during both the
examination of the expert and closing argument, we apply the standard of
review set forth in State v. Anderson, 210 Ariz. 327 (2005). State v. Morris, 215
Ariz. 324, 335, ¶ 47 (2007). “Prosecutorial misconduct constitutes reversible
error only if (1) misconduct exists and (2) ‘a reasonable likelihood exists that
the misconduct could have affected the jury’s verdict, thereby denying
defendant a fair trial.’” Id. at ¶ 46 (quoting Anderson, 210 Ariz. at 340, ¶ 45).

¶9            A prosecutor may not comment on a defendant’s post-arrest
silence for substantive or impeachment purposes. Doyle v. Ohio, 426 U.S.
610, 617–20 (1976); State v. VanWinkle, 229 Ariz. 233, 236–37, ¶¶ 14–15 (2012).
However, a prosecutor may comment on a defendant’s failure to present

                                       4
                            STATE v. MULDROW
                             Decision of the Court

exculpatory evidence so long as the defendant’s silence is not mentioned.
State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160 (1987) (“It strikes us as
elemental fairness to allow the State to comment upon the defense’s failure
to adduce potentially exculpatory evidence to which defendant had access
when defendant is attacking the accuracy of the State’s evidence.”).
Furthermore, “[c]omments that are invited and prompted by opposing
counsel’s arguments are not improper if they are reasonable and pertinent
to the issues raised.” State v. Trostle, 191 Ariz. 4, 16 (1997).

¶10            Applying these principles, we find no error because none of
the conduct Muldrow objects to on appeal amounts to prosecutorial
misconduct. During her cross-examination of the expert who tested the
methamphetamine, Muldrow posed a series of questions that attempted to
discredit the results of the testing. Muldrow questioned whether the
equipment used was functioning properly, and whether the expert could
be sure that what he was testing had not been contaminated. Throughout,
Muldrow also attempted to discredit the State’s expert by implying his
failure to bring the lab’s policy manual to court meant the State could not
prove its testing procedures adequately minimized the risk of error. She
also questioned Detective Romo on law enforcement’s failure to collect
fingerprint and DNA evidence from the baggies containing the drugs.

¶11           Because the State did not comment on Muldrow’s post-arrest
silence, and Muldrow challenged the accuracy of the State’s testing
procedures, the court did not err in permitting the State to elicit testimony,
and make statements in closing argument, regarding Muldrow’s failure to
request independent tests of the drugs. See id. (finding that prosecutor’s
references to “defendant’s failure to call an expert witness” were
appropriate responses to defendant’s arguments); State v. Bible, 175 Ariz.
549, 602 (1993) (“[D]uring closing arguments counsel may summarize the
evidence, make submittals to the jury, urge the jury to draw reasonable
inferences from the evidence, and suggest ultimate conclusions.”); State v.
McKinley, 157 Ariz. 135, 138 (App. 1988) (finding that prosecutor’s
argument that a defendant had the opportunity to independently test
evidence and failed to do so did not shift the burden of proof to defendant).
At no time did the prosecutor state that Muldrow’s failure to request
independent testing required the jury to reach a particular result. Instead,
the prosecutor’s remarks were a “reasonable and pertinent [response] to the
issues raised by the defense.” State v. Arredondo, 111 Ariz. 141, 144 (1974).




                                       5
                           STATE v. MULDROW
                            Decision of the Court

       C.     Reduction of Burden of Proof

¶12           The prosecutor stated the following during rebuttal closing
argument:

       Now, one of the defense attorneys talked about taking lumps.
       You know what, responsibility is an important thing. The
       defendants don’t want to be held responsible. They want the
       [s]tate to meet its burden. That’s an important thing and
       that’s a constitutional right. But you know what, today is –-
       you’re right. They’re right. You are the kings and queens.
       You get to tell the defendants: [t]ake responsibility. The State
       has proven beyond a reasonable doubt that you sold meth to
       undercover officers. Take your lumps.

Muldrow argues the prosecutor’s statements regarding the defendants
taking “responsibility” amount to reversible prosecutorial misconduct
because they improperly diminished the State’s burden of proof. Because
Muldrow did not object at trial, we review for fundamental error. State v.
Escalante, 245 Ariz. 135, 138, ¶ 1 (2018). The first step in fundamental error
review is to determine whether error exists, meaning that we must first find
whether the prosecutor in fact committed misconduct. See id. at 142, ¶ 21.

¶13            The isolated “responsibility” references did not reduce the
State’s burden of proof. Throughout trial, including during closing
argument, the court and counsel repeatedly reminded the jury that the State
had the burden to establish guilt beyond reasonable doubt. Accordingly,
no prosecutorial misconduct occurred. See State v. Herrera, 174 Ariz. 387,
396–97 (1993) (finding no misconduct where prosecutor urged jurors “to do
justice” if burden of proof was met); State v. Goudeau, 239 Ariz. 421, 468,
¶ 210 (2016) (finding no misconduct where prosecutor argued that “[w]e
are seeking a just punishment for what this defendant has done”); see also
State v. Aguilar, 217 Ariz. 235, 238–39, ¶ 11 (App. 2007) (“Prosecutorial
misconduct ‘is not merely the result of 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, and
which he pursues for any improper purpose with indifference to a
significant resulting danger of mistrial.’” (quoting Pool v. Superior Court, 139
Ariz. 98, 108–09 (1984))).

       D.     Cumulative Error

¶14           Muldrow also requests that we apply the cumulative error
doctrine to find she is eligible for a new trial. However, that doctrine
                                       6
                            STATE v. MULDROW
                             Decision of the Court

applies only to cases involving allegations of prosecutorial misconduct. See
State v. Hughes, 193 Ariz. 72, 78–79, ¶ 25 (1988) (stating the general rule of
not recognizing cumulative error, with the exception of claims involving
prosecutorial misconduct). Muldrow raised two isolated claims of
prosecutorial misconduct, which we have rejected. We also conclude that
their cumulative effect did not so permeate the trial with unfairness as to
deny Muldrow due process. See id. at 79, ¶ 26.

                                CONCLUSION

¶15           Muldrow’s convictions and sentences are affirmed.




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




                                          7
