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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     ARTHUR RAY MEEDS, Appellant.

                             No. 1 CA-CR 18-0426
                               FILED 6-27-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR 2017-001601-001
                The Honorable Michael W. Kemp, Judge

                                  AFFIRMED


                                   COUNSEL

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

Ballecer & Segal PC, Phoenix
By Natalee Segal
Counsel for Appellant
                             STATE v. MEEDS
                            Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.


T H U M M A, Chief Judge:

¶1            Defendant Arthur Meeds appeals from his convictions and
sentences for various offenses arising out of a home invasion. Meeds argues
the prosecutor erred by repeatedly commenting, during closing arguments,
on Meeds’ failure to testify. Because the record does not show as a factual
matter that the jury naturally and necessarily would have construed the
closing argument as commenting on Meeds’ invocation of his right not to
testify, and because Meeds has not shown fundamental error resulting in
prejudice, his convictions and resulting sentences are affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2             Early one morning in May 2014, Meeds and three others
invaded a home in Phoenix. Five individuals were in the home at the time:
D.D., L.S., their young child, L.S.’s sister C.S., and C.S.’s child.

¶3            After entering the home through a back door, Meeds struck
D.D. in the head and, after D.D. woke up, demanded money. Meeds held
D.D. at gunpoint, forcing D.D. to try to open a safe in the garage. At one
point, an accomplice held D.D.’s young son, crying, nearby. Meanwhile,
Meeds’ accomplices bound C.S. and L.S. with zip-ties and held them at
gunpoint. Although unsuccessful in their efforts to open the safe in the
garage and another in the home, Meeds and his accomplices took L.S.’s
passport and at least two of D.D.’s watches and, as police officers arrived,
they fled. Officers, who had responded to an alarm triggered inside the
home, chased, caught and detained Meeds.

¶4             The State charged Meeds with one count of conspiracy to
commit burglary in the first degree, a class 2 felony; one count of burglary
in the first degree, a class 2 felony; one count of aggravated assault of D.D.,
a class 3 felony; one count of kidnapping as to each adult victim (D.D., L.S.
and C.S.), each a class 2 felony; one count of kidnapping as to each child,
each a class 2 felony; and one count of armed robbery of each adult victim
(D.D., L.S. and C.S.), each a class 2 felony.



                                      2
                             STATE v. MEEDS
                            Decision of the Court

¶5             Meeds and one accomplice, Arlandis Wesley, were tried
together. At a twelve-day trial, the State called 22 witnesses, including D.D.,
C.S. and L.S., and defendants called seven witnesses. The court admitted
into evidence text messages where Meeds and an accomplice discussed
where the men should enter the home, just minutes before they did so. The
court also admitted video surveillance recordings, taken from various
locations outside the home and in the garage, capturing the invasion in
detail. Among other things, the videos showed Meeds and his accomplices
entering the home with at least one gun and then leaving the home from
various exits. A video in the garage shows Meeds holding D.D. at gunpoint
while D.D. attempted to open the safe, as well as an accomplice bringing
D.D.’s son into the garage and holding him there while D.D. continued to
attempt to open the safe with a gun to his head. Videos from the front of
the home showed police officers arriving, D.D. walking out to meet them,
C.S. running from the home while zip tied, and Wesley fleeing from the
home in a car, police in pursuit. The videos were played for the jury over
the course of multiple days and witnesses. Meeds challenges neither the
foundation nor the accuracy of the texts and videos on appeal.

¶6            Defendants, as is their right, did not testify. After considering
the evidence and closing arguments, the jury found Meeds guilty of
conspiracy; burglary in the first degree; aggravated assault of D.D.;
kidnapping as to all adult victims; kidnapping as to one child; armed
robbery of D.D. and L.S.; and attempted armed robbery of C.S., the lesser
included offense of the armed robbery charge. In a bifurcated proceeding
not challenged on appeal, the jury also found Meeds guilty of misconduct
involving weapons and, in an aggravation phase, several aggravating
factors. After the court found Meeds had several historical prior felony
convictions, it sentenced Meeds to concurrent sentences of 22-, 20- and 12-
years’ imprisonment on all but one of the convictions, and a consecutive
sentence of 20-years’ imprisonment on the final conviction. This court has
jurisdiction over Meeds’ timely appeal pursuant to Article 6, Section 9, of
the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1), 13-4031 and 13-4022(A)(2019).1




1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                      3
                             STATE v. MEEDS
                            Decision of the Court

                               DISCUSSION

I.     Meeds Did Not Preserve His Objection To The Prosecutor’s
       Statements, Meaning This Court Reviews For Fundamental Error
       Resulting In Prejudice.

¶7           On appeal, Meeds argues the State, in closing arguments,
improperly referred to his decision to invoke his right not to testify by
repeatedly stating evidence was undisputed. Meeds objected to the
references once, in the following exchange:

              STATE: So when we talk about the conspiracy
              to commit these crimes, the evidence is
              undisputed. Undisputed because not one
              person got up on that stand to say, hey, you
              know what, the victims got it wrong. The
              surveillance footage is wrong.

              MEEDS’ COUNSEL: Judge, I’m going to object
              to that.

              THE COURT: The objection is overruled.

The issue is whether this objection properly preserved the argument Meeds
presses on appeal.

¶8            To preserve an evidentiary issue for appeal, a party must
timely object, stating “the specific ground, unless it was apparent from the
context.” Ariz. R. Evid. 103(a)(1). General objections do not suffice, State v.
Lopez, 217 Ariz. 433, 434 ¶ 4 (App. 2008), and result in review for
fundamental error, State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018); State v.
Rutledge, 205 Ariz. 7, 13 ¶ 30 (2003).

¶9             Although claiming the prosecutor, during closing arguments,
referred to evidence being “uncontested” twenty times, Meeds objected
only once. Thus, as to the other references, the review is for fundamental
error. Escalante, 245 Ariz. at 140 ¶ 12. Moreover, he did not provide any
basis for his one objection, he did not attempt to offer any specific basis and
the basis for the objection is not apparent from the context. See State v.
Foshay, 239 Ariz. 271, 276 ¶¶ 17-18 (App. 2016) (finding appellant had
forfeited an argument that evidence was inadmissible under Rule 702 and
as hearsay when his stated grounds for objection at trial were relevance and
cumulative evidence). Because Meeds failed to object with the required



                                      4
                              STATE v. MEEDS
                             Decision of the Court

specificity, he failed to preserve the issue, meaning the review on appeal is
for fundamental error.

II.    Meeds Has Not Shown The Prosecutor’s Comments Were
       Fundamental Error.

¶10            Meeds argues the State, by repeatedly stating evidence was
undisputed, improperly commented on Meeds’ “exercise of his 5th
Amendment right” not to testify, which requires reversal of his convictions.
Given that fundamental error applies, Meeds “bears the burden to establish
that (1) error exists, (2) the error is fundamental, and (3) the error caused
him prejudice.” State v. Bearup, 221 Ariz. 163, 168 ¶ 21 (2009) (citations
omitted); see also Escalante, 245 Ariz. at 142 ¶ 21.

¶11            It is well-settled law that the State is prohibited from
commenting on a defendant’s failure to testify at trial, either directly or
indirectly. See U.S. Const. amend. V; Ariz. Const. art. 2, § 10; A.R.S. § 13-
117(B); see also Griffin v. California, 380 U.S. 609, 613-14 (1965); Rutledge, 205
Ariz. at 12 ¶ 26. Given Meeds’ arguments on appeal, the question is whether
the State’s characterization of the evidence as “undisputed” in closing
arguments violated this prohibition. “Whether a prosecutor’s comment is
improper depends upon the context in which it was made and whether the
jury would naturally and necessarily perceive it to be a comment on the
defendant’s failure to testify.” Rutledge, 205 Ariz. at 13 ¶ 33.

¶12           Meeds’ main focus is on two statements during closing
argument. First, in the introductory portion of her closing argument, the
prosecutor used the word “undisputed” eight times and acknowledged the
“common theme” she would be putting forth was that “the evidence is
undisputed.” She explained: “[W]henever I say that the evidence is
undisputed, that means that you can only consider what came out of that
chair and the evidence that has been entered into court.” Second, when
discussing the conspiracy charge, the prosecutor made the statements
quoted above that resulted in Meeds’ objection. Meeds argues these
statements require that his convictions be reversed, because he and his co-
defendant were the only people capable of explaining or contradicting the
State’s evidence.




                                        5
                              STATE v. MEEDS
                             Decision of the Court

¶13           “A comment that certain facts brought out by the prosecution
are uncontradicted is not objectionable,” except where “it appears that the
defendant is the only one who could explain or contradict the evidence
offered by the state.” State v. Still, 119 Ariz. 549, 551 (1978). In Still, a state
witness testified about a story the defendant had told the witness. Id.
During closing arguments, the prosecutor stated he had “never heard an
explanation . . . For why [the defendant] told [the witness] the story,” and
gestured toward the defense table when doing so. Id. Still concluded that,
because “the only two people [privy] to these conversations were [the
witness] and appellant, . . . appellant was the only person who could
possibly contradict or explain the State’s evidence.” Id. Still held the
comment, along with the prosecutor’s gesture toward the defendant, had
“emphasized the appellant’s failure to take the witness stand” and was “an
unconstitutional comment on the accused’s right to remain silent.” Id.

¶14            Unlike in Still, this case did not turn on an event of which no
record existed and involving only two individuals. Instead, the home
invasion involved three adult victims and four accomplices and was
memorialized on video and discussed via text message. The jury properly
could rely on the surveillance system recording of Meeds to explain what
occurred inside the garage and, indirectly, inside the home. Additionally,
all three adult victims testified and could have contradicted the surveillance
footage, the physical evidence, each other’s testimony, or all the above, but
did not do so.

¶15          The prosecutor repeatedly linked the “undisputed” nature of
the evidence to the surveillance footage. During the introduction to her
argument, and directly after the first statement Meeds challenges on appeal,
the prosecutor stated

               I wish at this point I could just sit down and let
               you deliberate because that is how undisputed
               the evidence is in this case. Because you have
               the surveillance videos. Frame after frame after
               frame after frame and it just keeps going and
               going as to how these defendants and their
               accomplices committed the crimes against
               [D.D.] and his family.

Similarly, before the second statement Meeds challenges on appeal, the
prosecutor discussed in detail the evidence supporting the conspiracy
charge. In doing so, she focused primarily on the surveillance footage and
text messages, along with the victims’ testimony.


                                        6
                            STATE v. MEEDS
                           Decision of the Court

¶16         That these references were to the recording of the home
invasion was confirmed by the prosecutor toward the close of closing
argument.

              Now, with regards to the evidence in this case,
              ladies and gentlemen, both of the defendants’
              participation in these crimes, all you have to
              take a look at is the evidence. You don’t have to
              believe anything that anybody said in this court
              when you take a look at the surveillance video
              because the surveillance video, the text
              messages, the electronic information speaks for
              itself.

Context, as well as the trial evidence, including the recording of the home
invasion, show the statements were not “calculated to direct the jurors’
attention to the defendant’s exercise of his fifth amendment privilege.” State
v. Hughes, 193 Ariz. 72, 87 ¶ 64 (1998) (citation omitted). Instead, the
statements were meant to impress upon the jury the fact that Meeds’ actions
were memorialized electronically.

¶17            Meeds emphasizes the number of times the term
“undisputed” was used by the State in closing. It is true the prosecutor used
the word “undisputed” twenty times. But in context, the reference almost
exclusively was to the surveillance footage or text messages. Stated
differently, the prosecutor repeatedly emphasized the surveillance footage
and text messages when urging the evidence was “undisputed.”

¶18           Along with this context, the superior court properly
instructed the jury that Meeds had the right not to testify; that they must
not let Meeds’ decision not to testify affect their deliberations; that every
defendant is presumed innocent; and that attorneys’ statements are not
evidence. This court presumes jurors follow the instructions given. Elliott v.
Landon, 89 Ariz. 355, 357 (1961). In this context, Meeds has not shown “the
jury would naturally and necessarily perceive [the prosecutor’s statements]
to be a comment on the defendant’s failure to testify.” Rutledge, 205 Ariz. at
13 ¶ 33. Accordingly, Meeds has failed to show fundamental error.




                                      7
                           STATE v. MEEDS
                          Decision of the Court

                             CONCLUSION

¶19         Meeds has failed to show the prosecutor’s statements were
fundamental error. Accordingly, his convictions and resulting sentences are
affirmed.




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




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