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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                MILTON CHARLES EATON, JR., Appellant.

                             No. 1 CA-CR 16-0799
                               FILED 10-3-2017


          Appeal from the Superior Court in Maricopa County
                      No. CR2016-103083-001 DT
        The Honorable Carolyn K. Passamonte, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele G. Ponce
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
                            STATE v. EATON
                           Decision of the Court

W I N T H R O P, Presiding Judge:

¶1            Milton Charles Eaton, Jr. (“Appellant”) appeals his conviction
and sentence for aggravated assault. Appellant argues (1) the prosecutor
committed misconduct by commenting on plea negotiations during closing
argument, resulting in fundamental, reversible error, and (2) the trial court
relied on insufficient evidence to find Appellant had four prior felony
convictions for sentencing purposes. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2             In the early morning of January 21, 2016, Appellant entered a
fast food restaurant, sat down at a booth with two or three other persons,
and “started blasting [music from a radio] real loud.” Another customer
(“the victim”) asked the group to turn down the volume, but Appellant
expressly refused to do so. The victim approached the restaurant counter
and asked the manager to “go over and ask them to please turn the radio
down.” The manager stated he would “be over there in a second,” and the
victim returned to his booth. Appellant, who appeared “angry,” stood up,
walked to within a few feet of the victim, pulled out a “big, long hunting
knife,” and pointed it at the victim, causing the victim to fear for his life.
The manager called the police and told Appellant to leave. As Appellant
left the restaurant, he threatened to “hurt” the victim and manager the next
time he saw them.

¶3            Responding to “a call of a subject threatening another subject
with a knife,” Glendale police officers Solomon and Haney arrived a few
minutes later. After obtaining a description of the perpetrator, Officer
Solomon drove to a nearby liquor store “where a lot of people in the area
go hang out,” and found Appellant, who matched the description provided
by the manager. As Officer Solomon placed Appellant in handcuffs and
advised him that he was being detained, Appellant stated that “[t]his was
about something that happened at [the restaurant].”

¶4           In separate one-on-one show-ups, both the victim and the
manager positively identified Appellant as the perpetrator. Officer
Solomon then searched Appellant and found a “speaker wallet” on a chain
and a long knife in Appellant’s left boot. After being advised of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Appellant told Officer


1     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64 (App. 1994).


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                             STATE v. EATON
                            Decision of the Court

Haney that the victim “had disrespected him in the [restaurant] about his
music, and he wasn’t going to have somebody speak to him that way.”

¶5           At trial, the jury found Appellant guilty of one count of
aggravated assault, a class three felony.2 The trial court found that
Appellant had four historical prior felony convictions for sentencing
purposes, sentenced Appellant to the presumptive term of 11.25 years’
imprisonment in the Arizona Department of Corrections, and credited
Appellant for 289 days of presentence incarceration.

¶6            We have jurisdiction over Appellant’s timely appeal. See
Ariz. Const. art. 6, § 9; Ariz. Rev. Stat. (“A.R.S.”) §§ 12-120.21(A)(1) (2016),
13-4031 (2010), 13-4033(A) (2010).

                                 ANALYSIS

       I.     Alleged Prosecutorial Misconduct

¶7         Appellant argues the prosecutor committed misconduct by
commenting on plea bargaining at the beginning of closing argument.

¶8            In his opening statement to the jury, defense counsel stated,
“I agree with the prosecutor that an appropriate verdict would be guilt, but
guilt to disorderly conduct and not to aggravated assault.” At the
conclusion of the trial, without objection, the prosecutor began his closing
argument as follows:

              In his opening remarks to you, defense counsel told
       you that he agreed that the defendant was guilty of something
       arising out of this incident, but that he believed it was a
       disorderly conduct rather than an aggravated assault.

              You might find yourself wondering on some level,
       Well, I have the defendant admitting to being in the
       [restaurant], admitting to approaching the victim, admitting
       pulling a knife, admitting why he did it. I have a surveillance
       video that captures at least the lead up to the incident from a
       different angle, an independent witness that indicates that the
       defendant extended the arm and pointed the knife at the



2      The trial court had also instructed the jury on disorderly conduct as
a lesser-included offense.



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                             STATE v. EATON
                            Decision of the Court

       victim. With all of that, why am I here? Why do we need a
       jury? Why do we have a trial?

              You might think, Well, don’t cases like that usually
       resolve by plea agreement if everybody’s basically on the
       same page? And there are two answers to that question in
       this case.

             The first is that you’ll be asked on some level to decide
       whether what has happened is, as defense counsel suggested
       to you, a lesser offense, a disorderly conduct that the
       defendant did, or whether it’s as the State has charged him,
       that he committed an aggravated assault. That’s the first
       answer.

              The second is that the decision of whether to take a plea
       or whether to do a trial is always up to the defendant. The
       reasons are his alone and they’re irrelevant. The fact that
       there is a trial is no comment on the strength of the evidence,
       the straightforwardness of the case. Strong cases and weak
       ones go to trial.

              And so just as in your jury instructions, the Court is
       telling you that the existence of a charge is not evidence,
       which it is not, the existence of a trial, likewise, is no comment
       on the strength of the case.

              What we ask you to do is to have a look at what you’ve
       been presented; the testimony from each of the witnesses, the
       photographs, the recordings, the documentary evidence, the
       notes that you’ve taken. We ask you to take those things and
       then answer a few questions. Am I firmly convinced that the
       defendant committed an aggravated assault? If not, or if I
       can’t make up my mind as to that question, am I firmly
       convinced that he simply committed a disorderly conduct?

¶9            In general, prosecutors are afforded wide latitude in
presenting their closing arguments to the jury. State v. Jones, 197 Ariz. 290,
305, ¶ 37 (2000). However, evidence related to plea negotiations is generally
inadmissible against a defendant. See Ariz. R. Evid. 410; see also Ariz. R.
Crim. P. (“Rule”) 17.4(f) (“The admissibility or inadmissibility of a plea, a
plea discussion, and any related statement is governed by Arizona Rule of
Evidence 410.”). Accordingly, our supreme court has stated that, given
Rule 17.4, it does “not endorse any mention of plea bargains in final


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                              STATE v. EATON
                             Decision of the Court

arguments.” State v. Valdez, 160 Ariz. 9, 13 n.2 (1989), overruled on other
grounds by Krone v. Hotham, 181 Ariz. 364, 366-67 (1995).

¶10             “To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that ‘(1) misconduct is indeed present; and (2)
a reasonable likelihood exists that the misconduct could have affected the
jury’s verdict, thereby denying [the] defendant a fair trial.’” State v. Moody,
208 Ariz. 424, 459, ¶ 145 (2004) (citation omitted); accord State v. Anderson,
210 Ariz. 327, 340, ¶ 45 (2005). “[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. Hughes, 193 Ariz.
72, 79, ¶ 26 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)); see also State v. Lee, 189 Ariz. 608, 616 (1997) (stating that, to justify
reversal, the misconduct “must be ‘so pronounced and persistent that it
permeates the entire atmosphere of the trial’” (citations omitted)).

¶11          Because Appellant did not object to the prosecutor’s
argument, he has waived his argument absent fundamental, prejudicial
error. See State v. Henderson, 210 Ariz. 561, 567-69, ¶¶ 19-26 (2005). To
establish prejudice, Appellant must show that, absent the improper
remarks, a reasonable jury could have reached a different result. State v.
Ramos, 235 Ariz. 230, 236, ¶ 18 (App. 2014).

¶12            Appellant relies on Valdez to argue the prosecutor’s
comments in this case were improper. In Valdez, the prosecutor referred to
plea negotiations between the State and the defendant when he remarked,
“I suggest to you folks [defense counsel] wants you to find the lesser-
included offense because he wants you to plea bargain. He wants you to give
him the plea bargain the State wouldn’t, and that’s not your job.” 160 Ariz. at
13 (emphasis added in Valdez). Noting that the prosecutor’s remarks
indicated to the jury that the defendant had sought a plea bargain from the
State, a bargain the State had obviously refused, and a lay person might
think the defendant had sought plea discussions because he knew he was
guilty or at least feared he had a weak case, our supreme court found the
prosecutor’s remarks improper for three reasons: (1) they were
unsupported by the evidence, (2) they were irrelevant to any issue being
tried, and (3) they violated Rule 17.4(f). Id. However, because defense
counsel had not objected and allowed the court to cure the error,
fundamental error review applied, and the court found the error was not
fundamental “because it pertain[ed] only to an isolated evidentiary matter
raised in final argument.” Id. at 13-14.




                                        5
                            STATE v. EATON
                           Decision of the Court

¶13           In Valdez, the prosecutor specifically told the jury the State
had denied the defendant’s request for a plea agreement. In this case, the
remarks of the prosecutor were less direct; nonetheless, they were also
improper. The prosecutor broached the subject of plea bargaining when he
raised the question, “You might think, Well, don’t cases like that usually
resolve by plea agreement if everybody’s basically on the same page?” and
answered that question in part by advising the jury that “the decision of
whether to take a plea or whether to do a trial is always up to the
defendant.” However, the decision to accept a plea agreement is up to the
defendant only if the State has made an offer. Accordingly, the prosecutor’s
remarks intimated that the State had offered a plea deal, but Appellant had
ultimately turned down the offer, perhaps after further negotiations, and
chosen instead to go to trial. Any intimation that a defendant has
unsuccessfully sought a plea bargain from the State is improper. Id. at 13.

¶14            As we have previously recognized, however, the prosecutor’s
comments in this case were not objected to and are thus subject to
fundamental error review. Further, like the prosecutor’s remarks in Valdez,
the prosecutor’s comments here were brief and pertained only to an
isolated matter raised in final argument.3 Finally, even were we to find
fundamental error, no reversible error occurred given the overwhelming
evidence supporting Appellant’s conviction. The undisputed evidence
indicated—and Appellant admitted to police officers—that he was at the
restaurant, had a knife, confronted the victim, and pulled out the knife. The
only material factual question raised by Appellant was whether he held the
knife down by his side or raised it as he confronted the victim. Both the
victim and the manager testified that Appellant pointed the knife directly
at the victim. On this record, the prosecutor’s isolated comments in closing
argument were not reversible error.

      II.    Prior Convictions

¶15          Appellant next argues the trial court erred in finding the State
proved his out-of-state prior convictions through evidence matching only
his name and date of birth.

¶16           The State is required to “submit positive identification
establishing that the accused is the same person who previously was


3     Viewed in context, it is clear the prosecutor was quite clumsily
arguing that, despite Appellant’s insistence he was guilty only of disorderly
conduct, the jury should render a verdict on the aggravated assault charge
and should not draw inferences based on the lack of a plea agreement.


                                     6
                             STATE v. EATON
                            Decision of the Court

convicted, as well as evidence of the conviction itself.” State v. Cons, 208
Ariz. 409, 415, ¶ 16 (App. 2004). “[P]rior convictions for sentence
enhancement purposes must be established by clear and convincing
evidence.” Id. at ¶ 15. The State is not required to provide a certified copy
of a prior conviction containing a photograph or a fingerprint if other
evidence sufficiently connects the defendant with the prior conviction. See
State v. Van Adams, 194 Ariz. 408, 419, ¶¶ 35-37 (1999). In the absence of
evidence casting doubt on the identification, certified prior convictions
containing both the defendant’s name and date of birth are sufficient to
prove identity and connect the defendant to the prior conviction. See State
v. Kinney, 225 Ariz. 550, 558, ¶ 26 (App. 2010). The trial court has
considerable discretion in determining the admissibility of evidence, and
we review such decisions for an abuse of that discretion. State v. Amaya-
Ruiz, 166 Ariz. 152, 167 (1990).

¶17          At the trial on Appellant’s prior convictions, the State
presented four certified documents (Exhibits 1-4) of prior felony
convictions from Contra Costa County, California, dating from 2001 to
2013, which the court admitted into evidence. Without objection, the court
found the documents were self-authenticating certified copies of abstracts
and convictions from California. The prosecutor then argued,

               Each of the four certified documents indicates that it
       refers to an individual named Milton Charles Eaton, with the
       exception of Exhibit 1, which identifies a Milton C. Eaton. But
       they all refer to an individual with a date of birth February
       14th of 1955, which matches both the full name of the
       individual who appeared for trial in this matter, Milton
       Charles Eaton, Jr., and the date of birth of the man in front of
       you, February 14th, 1955, as he’s announced to us on multiple
       occasions.

The court found the State had proved by clear and convincing evidence that
the documents were those of Appellant.

¶18          In this case, each of the documents contains Appellant’s first
name, last name, middle initial, and birthdate.4 Additionally, two of the


4      Appellant argues for the first time in his reply brief that his full name
is Milton Charles Eaton, Jr. (emphasis added) and, accordingly, his full
name does not match that on the documents, which do not include “Jr.” as
a designation. Appellant did not object on this basis in the trial court or



                                       7
                             STATE v. EATON
                            Decision of the Court

four documents (Exhibits 3 and 4, which relate to Appellant’s most recent
prior felony offenses) contain a Social Security number that matches
Appellant’s Social Security number as provided in the record on the court
information sheet.5 Moreover, nothing in the record causes us to question
that Appellant is the person referred to in Exhibits 1 through 4. Appellant
has never claimed, either in the trial court or on appeal, that he is not the
person in the documents, and he has not argued, much less demonstrated,
that fundamental, prejudicial error has occurred. In the absence of any
evidence casting doubt on the identification, we will not overturn the trial
court’s determination that the State proved the prior convictions. See
Kinney, 225 Ariz. at 558, ¶ 26. The trial court did not abuse its discretion in
concluding that sufficient evidence established Appellant’s prior
convictions.

                               CONCLUSION

¶19           Appellant’s conviction and sentence are affirmed.




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




raise this issue in his opening brief, and thus has waived this argument
absent fundamental, prejudicial error, which does not exist here.

5      Although the trial court apparently did not use the Social Security
numbers to confirm Appellant’s identity, they are a part of the record, and
we can take judicial notice of them. See State v. McGuire, 124 Ariz. 64, 66
(App. 1978). Also, under A.R.S. § 13-703(C) (Supp. 2016), only two
historical prior felony convictions are necessary for a defendant to be
sentenced as a Category 3 offender, the basis for the trial court’s imposition
of sentence on Appellant. Further, the trial court did not use prior
convictions to aggravate Appellant’s sentence, as he was sentenced to the
presumptive term.


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