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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ELIAS DEWAYNE JOHNSON, Appellant.

                             No. 1 CA-CR 15-0347
                              FILED 6-2-2016


           Appeal from the Superior Court in Maricopa County
                      No. CR2013-460997-001 DT
            The Honorable Jerry Bernstein, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                            STATE v. JOHNSON
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.


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

¶1            Elias Dewayne Johnson appeals his convictions and
sentences, arguing the trial court erred in denying his motion for mistrial
based on alleged prosecutorial misconduct. For the following reasons, we
affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In 2013, Colorado law enforcement officers Crigler and Ruiz
boarded a commercial flight at Phoenix Sky Harbor International Airport
before other passengers, escorting prisoners Johnson and Felix Crews from
Phoenix to Denver, Colorado. Each row of the plane had three seats on
either side of the aisle. At the back of the plane, in the last row, Crews was
seated by the window, Johnson was seated in the middle, and Ruiz sat by
the aisle. Officer Crigler was seated across the aisle, in the aisle seat. Both
Johnson and Crews sat with their hands cuffed to their waists.

¶3            As soon as he was seated, Johnson became agitated with
Crews, insulting him with derogatory remarks. In an effort to diffuse the
tension, Officer Ruiz changed seats with Johnson. Despite this move,
Johnson became more agitated and started to yell at Crews. Officer Crigler
warned Johnson, “[L]isten, you got to calm down or we [are] probably
going to have to get off this plane.” The warning apparently infuriated
Johnson; he began screaming insults at Officer Crigler “at the top of his
lungs.”

¶4            At that point, other passengers started to board. Concerned
with the safety of the other passengers, Officer Crigler took Johnson to the
rear galley of the plane approximately four feet from their seats, and tried
to pin Johnson against the wall while Johnson continued screaming insults
and attempted to get away. In the meantime, Officer Ruiz had gotten up
and moved into the aisle, but was unable to assist as he also had to watch
Crews, who had remained in his seat. Johnson threatened Officer Crigler,
stating “[I’m] going to have [my] Black Panther buddies come to kill [you],



                                      2
                           STATE v. JOHNSON
                           Decision of the Court

[and] going to find [you] in Colorado and f--k [you] up.” Johnson further
threatened, “I’m going to spit in your face, mother f--ker.” Officer Crigler
advised Johnson not to because otherwise he would be charged. Not
heeding the advice, Johnson spit at Officer Crigler’s left eye. Concerned
about the potential health hazards from Johnson’s saliva, Officer Crigler
immediately wiped the saliva from his face. The Phoenix Police
Department was called for assistance.

¶5           Approximately half an hour later, Phoenix Police Officers
Monigan and Heeps arrived, and were briefed by the Colorado officers.
Officer Monigan observed Officer Crigler’s left eye was red, and Crigler
was rubbing it and having difficulty in keeping it open. Johnson eventually
calmed down and was taken to the police station. At the police station,
Johnson told Officer Monigan he “had something to do with spitting on
someone.”

¶6             Johnson was indicted on one count of aggravated assault, one
count of threatening or intimidating, and one count of disorderly conduct.
The first trial ended in mistrial because the State’s witness mentioned at
trial that Johnson was on parole when he boarded the plane. In the second
trial, before the parties delivered their closing arguments, Johnson filed a
motion in limine to preclude the prosecutor from comparing defense
counsel’s efforts to the magic acts or feats of deception performed by
magician David Copperfield, as apparently had occurred during some of
this prosecutor’s previous trials. The court denied the motion, observing
that such an argument was obviously not intended to impugn defense
counsel's ethics, but instead was intended to encourage the jury to not be
distracted and to focus on the facts. During the State’s closing argument,
the prosecutor told the jury David Copperfield had created an illusion in an
outdoor magic show near New York Harbor through which he had caused
the Statue of Liberty to “disappear.” The prosecutor explained that the
“disappearance” was merely an illusion, and urged the jury to stay focused
and not be distracted. Johnson’s counsel repeatedly but unsuccessfully
objected to the recitation of this story and, at the end of the closing
arguments, moved for a mistrial on the basis that the prosecutor had
impugned defense counsel’s character. The court denied the motion based
on the same reasoning for denying Johnson’s motion in limine.

¶7            The jury found Johnson guilty on all counts and that he had
committed the offenses while on parole. The court sentenced Johnson to
five years’ imprisonment with 493 days of presentence incarceration credit.




                                     3
                            STATE v. JOHNSON
                            Decision of the Court

Johnson timely appealed; we have jurisdiction pursuant to Arizona Revised
Statutes section 12-2101(A)(1).1

                                 ANALYSIS

¶8            Johnson contends the trial court erred in finding the State’s
comparison of defense counsel with David Copperfield did not impugn
defense counsel’s integrity, and in denying his motion for mistrial. We
review the trial court’s ruling on a motion for mistrial for abuse of
discretion. State v. Ferguson, 149 Ariz. 200, 211, 717 P.2d 879, 890 (1986). The
defense objected on multiple occasions to what it perceived to be the
impugning of defense counsel through the telling of the Copperfield story;
we thus “consider alleged trial error under the harmless error standard
when a defendant objects at trial and thereby preserves an issue for appeal.”
State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005).

¶9             Our case law has consistently held “[a] prosecutor[] ha[s]
wide latitude in closing arguments and may argue all reasonable inferences
from the evidence.” State v. Lynch, 238 Ariz. 84, 96, ¶ 28, 357 P.3d 119, 131
(2015); accord State v. Amaya-Ruiz, 166 Ariz. 152, 171, 800 P.2d 1260, 1279
(1990). Moreover, “[c]riticism of defense theories and tactics is a proper
subject of closing argument.” Lynch, 238 Ariz. at 96, ¶ 28, 357 P.3d at 131
(alteration in original). “[I]t is[, however,] improper to impugn the integrity
or honesty of opposing counsel.” State v. Newell, 212 Ariz. 389, 403, ¶ 66,
132 P.3d 833, 847 (2006). “Nonetheless, such comments warrant reversal
only if a defendant can show a reasonable likelihood that the misconduct
could have tainted the jury's verdict.” Lynch, 238 Ariz. at 96, ¶ 28, 357 P.3d
at 131.

¶10             Johnson relies on Newell in arguing the State’s comments were
improper to such an extent and degree that Johnson’s due process rights
were denied. In Newell, the prosecutor stated DNA was “the most powerful
investigative tool in law enforcement at th[at] time” and that defense
counsel, who had questioned the strength and importance of the DNA
evidence in the case, knew the prosecutor’s statement was true. Newell, 212
Ariz. at 403, ¶¶ 64, 66, 132 P.3d at 847. The supreme court concluded the
latter part of the comments about defense counsel was improper because it
insinuated defense counsel was disingenuous in questioning the strength
of DNA evidence. Id. at ¶ 66. The supreme court in that same case,
however, further concluded the defendant had not been convicted or


1     Absent material changes after relevant events, we cite a statute’s
current version.


                                       4
                            STATE v. JOHNSON
                            Decision of the Court

denied a fair trial on the basis of the comments, and therefore a reversal was
not warranted. Id. at ¶ 67. The supreme court reached this conclusion on
three grounds. First, the trial court instructed the jury that closing
arguments were not evidence, and the jury presumably had followed those
instructions. Id. at ¶ 68. Second, the trial court sustained defense counsel’s
objection to the comments, and instructed the jury to disregard them. Id. at
¶ 69. Finally, the evidence of defendant’s guilt was overwhelming, and it
was that evidence that influenced the jury to convict the defendant, rather
than the offending comments. Id. at ¶ 70.

¶11           Here, the transcript of the relevant closing argument
provides:

       (Prosecutor): . . . . Apparently there is a dispute about whether
       or not the spit actually happened. Despite the fact that you
       have heard direct evidence from someone who told you that
       there was, who has no motivation to decide [sic].

               Now what the defendant is trying to do is to keep you
       away from your main focus. Your main focus is to apply the
       facts to the law. It's not to decide whether or not Officer
       Crigler, Officer Ruiz or Officer Monigan are guilty in some
       type of bad investigation. That is not what you are here to
       decide, not whatsoever. That is not this case. That is not what
       this is about. Your main focus is to decide whether or not the
       facts apply to the law.

              Don't be distracted, don't get off in a tangent, when
       you are back in jury deliberations. The State will use an
       analysis [sic] to keep, make sure you understand the impact
       the State focused on what the actual issue is, not being
       diverted or swayed in some alternative direction that doesn't
       make any sense.

             Now, a few years ago, David Copperfield, you may
       have heard of him --

       (Defense Counsel): Objection, Your Honor.              May we
       approach?

       THE COURT: No. Overruled at this point. Go ahead.

       (Prosecutor): Now you may have heard of David Copperfield.
       He's a magician. He kind of makes things disappear and stuff.


                                      5
                     STATE v. JOHNSON
                     Decision of the Court

So a few years ago what he did is he tried to make the Statue
of Liberty disappear. Now everybody knows you can't
actually make the Statue of Liberty disappear, can you? No.
It's impossible.

        What he did was, he got an otter [sic] and they went
out near the water, overlooking the Statue of Liberty. He put
a pillar on the left side, he put a pillar on the right side. The
audience was in the middle. When they walked out in the
middle, the water there in they saw a Statue of Liberty. He
says, I will make that disappear. What he does, he puts a
curtain up. He puts a curtain up, and for about 30, 40 minutes
he does his show, he has a routine, he does a magic trick.

(Defense Counsel): Objection, Your Honor.             Improper
argument.

THE COURT: Overruled.

(Prosecutor): He does a show. What he does after that show
is he takes the curtain down. He takes the curtain down, then
when the audience is looking out there, there is no Statue of
Liberty. It's gone. That is what he told them. So everybody
knows you can't actually do that. So how did he do it?

       Well, trick was, that the officer [sic] was really sitting
on a platform, a circular platform. Maybe you have been to a
restaurant here in Phoenix where it turns while you eat.

       You don't even realize it because it's moving so slow.
They were sitting on a turning platform, that was moving
very, very slowly throughout the whole magic show. That by
the end of the 30, 40 minutes when the curtain was lifted, they
were looking in a completely opposite direction of where the
Statue of Liberty was. It was behind them at that point. So of
course they didn't see this.

       Now what the State is asking you, is to stay focused.
Not be distracted, not turned in another direction. Stay
focused on the truth. The truth is, the defendant spit in
Officer Crigler's face. Don't fall for any magic tricks. We ask
–-




                               6
                           STATE v. JOHNSON
                           Decision of the Court

       (Defense counsel): Objection, Your Honor.            Improper
       argument.

       THE COURT: Overruled.

       (Prosecutor): Ladies and gentlemen, again, don't fall for any
       distraction. Find the defendant guilty of aggravated assault,
       threatening or intimidating and disorderly conduct. Thank
       you.

¶12            During this portion of the argument, defense counsel objected
three times: first, when David Copperfield’s name was mentioned; second,
when the State said “he [David Copperfield] does a magic trick”; third,
when the State said “don’t fall for any magic tricks.” In isolation, those
remarks might be interpreted as suggesting defense counsel was playing
“magic tricks” trying to fool the jury, and thus impugning defense counsel’s
integrity. But, when read in context, those remarks did not criticize or
impugn defense counsel’s ethics. Instead, they were directed at focusing
the jury’s attention on the main issue of defendant’s conduct, and telling
them not to be misled by the defense theory that the police investigation
was inadequate, or that Officer Crigler had overreacted to the disturbance
caused by Johnson, and then conspired with other officers to concoct a story
that he was spit on by Johnson. Commenting on defense tactics is allowed
in closing argument. See Lynch, 238 Ariz. at 96, ¶ 28, 357 P.3d at 131; State
v. Ramos, 235 Ariz. 230, 233, 237-38, ¶¶ 2-4, 24-25, 330 P.3d 987, 990, 994-95
(App. 2014) (concluding the prosecutor was merely criticizing defense
tactics, rather than impugning defense counsel’s integrity, when claiming
the defense had attempted to raise distractions by focusing on the
prosecutor’s failure to prove the defendant’s ownership of the real property
upon which a stripped stolen car was found). Therefore, the trial court did
not err in finding that this portion of the argument was fair comment, rather
than an attempt to impugn defense counsel’s integrity.

¶13           Even assuming the comments objected to were improper, the
alleged error would be harmless. First, the trial court had already
instructed the jury that the lawyers’ closing arguments were not evidence,
and there is nothing in the record to suggest the jury did not follow this
instruction. Second, the comments were not prejudicial in light of the
overwhelming evidence of Johnson’s guilt. Officers Crigler and Ruiz
testified Johnson spit on Officer Crigler. Their testimony was corroborated
by Officer Monigan’s observation that Officer Crigler’s eye looked red and
Crigler appeared to have been rubbing it and had trouble keeping it open,
and Officer Monigan’s testimony that Johnson admitted he had something


                                      7
                           STATE v. JOHNSON
                           Decision of the Court

to do with spitting on someone. Accordingly, and on this record, the jury’s
conviction was based on the overwhelming evidence of Johnson’s guilt,
rather than the prosecutor’s comments, and the trial court did not abuse its
discretion in denying Johnson’s motion for mistrial.

                             CONCLUSION

¶14          Johnson’s conviction and sentencing are affirmed.




                                  :AA




                                        8
