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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     LAWRENCE E. HAND, Appellant.

                             No. 1 CA-CR 18-0372
                             No. 1 CA-CR 18-0824
                               (Consolidated)
                               FILED 10-8-2019


            Appeal from the Superior Court in Apache County
                         No. S0100CR201500188
                 The Honorable Dale P. Nielson, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Criss Candelaria Law Office PC, Concho
By Criss E. Candelaria
Counsel for Appellant
                              STATE v. HAND
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.


M c M U R D I E, Judge:

¶1           Lawrence Eric Hand appeals his convictions and the resulting
sentences from four counts of aggravated assault and one count of
disorderly conduct. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2             The incident began after a confrontation escalated between
Hand’s wife, Ashley Crawford, and B.M. Crawford alleged that B.M.
threatened her with a folding knife, so she called her husband to the scene.
When Hand arrived, he was holding a gun and attacked B.M. on the
driveway of his neighbors, F.D. and D.D. F.D. and D.D heard the
commotion from inside their house and went to investigate. Before leaving
the house, F.D. put his gun in his rear pocket. F.D. and D.D. saw B.M.
struggling with Hand and tried to help B.M. During the scuffle, F.D.’s gun
fell to the ground, and Crawford picked it up. Crawford fired the gun into
the air multiple times. Hand, with his finger on the trigger of his gun, hit
D.D. in the face and fired a shot that went through D.D.’s finger, jaw, and
shoulder. Hand and Crawford left the scene, taking both guns and B.M.’s
knife. Police arrived to find B.M. bleeding from scalp wounds and bite
marks to his forearm and finger. Emergency personnel transported D.D. to
a hospital in Phoenix to treat her gunshot wounds.

¶3             The State charged Hand with seven counts of aggravated
assault for the injuries to D.D. and B.M. and for pointing his gun at D.D.,
F.D., and B.M., as well as one count of disorderly conduct. The State alleged
that all eight counts were dangerous offenses. After a six-day trial, the jury
found Hand guilty on four of the seven counts of aggravated assault and

1       We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against Hand. State v. Harm, 236 Ariz.
402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 (App.
1996)).



                                        2
                            STATE v. HAND
                           Decision of the Court

for disorderly conduct. The jury found all convictions were dangerous
offenses. Hand was sentenced to presumptive concurrent terms totaling 7.5
years in prison, with 92 days’ presentence incarceration credit. Hand timely
appealed, and this court has jurisdiction under Article 6, Section 9, of the
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

A.     The Prosecutor Did Not Coerce or Intimidate Crawford into
       Invoking Her Fifth Amendment Right and Refusing to
       Testify.

¶4            Hand first argues that the State impermissibly used its power
to interfere with Crawford’s decision to invoke her Fifth Amendment
privilege against self-incrimination. We disagree.

¶5           In September 2013, Crawford entered into a plea agreement,
pleading guilty to one count of aggravated assault for pointing a gun at
D.D. The parties stipulated that Crawford would be released from jail, her
sentence suspended, and the court would place her on five years of
probation. The State agreed to dismiss the remaining counts against her, an
unrelated marijuana offense charged after her arrest, and the allegations of
dangerousness. The parties agreed to defer acceptance of the plea and
sentencing until Hand’s case was resolved.

¶6            After the State’s case-in-chief at Hand’s trial, the parties
discussed whether the State could impeach Crawford with her plea
agreement, and the dismissed marijuana case, depending on her testimony.
Assuming her testimony was inconsistent with her plea, the Court noted
that the State could withdraw from the plea agreement. The State agreed
that if Crawford testified inconsistently with the plea agreement, either
party to the agreement could withdraw because the court had not yet
accepted it. The State also pointed out that if Hand was acquitted of all
charges, Crawford could withdraw from the plea agreement. Eventually,
because counsel still represented Crawford, the Court warned Crawford of
the possibility of losing the benefit of her plea agreement after testifying
and advised her to discuss her rights with counsel. When the State called
Crawford testify in front of the jury, she invoked her Fifth Amendment
privilege against self-incrimination upon the advice of her attorney.

¶7            “A criminal defendant has a Sixth Amendment right to
‘present his own witnesses to establish a defense.’” State v. Sanchez-Equihua,
235 Ariz. 54, 57, ¶ 8 (App. 2014) (quoting Washington v. Texas, 388 U.S. 14,


                                      3
                             STATE v. HAND
                            Decision of the Court

18-19 (1967)). It is undisputed that “substantial government interference
with a defense witness’s free and unhampered choice to testify amounts to
a violation of due process.” Id. (citations omitted). However, “[a]
defendant’s constitutional rights are implicated only where the prosecutor
or trial judge employs coercive or intimidating language or tactics.” United
States v. Vavages, 151 F.3d 1185, 1189 (9th Cir. 1998) (agreeing that perjury
warnings “are not improper per se”); see State v. Jones, 197 Ariz. 290, 301–02,
¶ 21 (2000) (finding that the prosecutor did not threaten a defense witness
when he did not contact the witness or his attorney directly and did not say
he would pursue perjury charges regardless of how the witness testified);
see also State v. Rivera, 210 Ariz. 188, 191, ¶ 17 (2005) (acknowledging that
“[a]ll accomplice plea agreements put some pressure on a cooperating
witness”). We review constitutional issues and purely legal questions de
novo. Sanchez-Equihua, 235 Ariz. at 56, ¶ 7.

¶8             Here, the State did not impermissibly interfere with
Crawford’s choice to testify at Hand’s trial. The prosecutor did not speak
directly to Crawford or her attorney. The prosecutor never threatened to
withdraw from the plea regardless of how Crawford testified. Instead, the
prosecutor said the State “could” withdraw from the plea agreement if
Crawford testified to facts that differed from her guilty plea. Nor did the
judge use coercive language when he advised Crawford to speak to her
attorney before testifying. After warning Crawford that the State could
withdraw from the plea agreement, the judge said, “I think the State would
act in good faith, but none of us are comfortable with you testifying until
you’ve had the chance to talk to your lawyer.” Crawford spoke with her
attorney and, acting on his advice, decided to invoke her Fifth Amendment
right not to testify.

¶9            Hand argues that the State planned to prevent Crawford from
testifying; however, the record does not support this contention. The State
subpoenaed Crawford and would have called her in its case-in-chief if
Hand had not communicated that she would be a defense witness. The
prosecutor also repeatedly brought up his intention to cross-examine and
impeach Crawford with other evidence.

¶10           Hand also likens Crawford’s unaccepted plea agreement to
the consistency provision in State v. Fisher, 176 Ariz. 69, 73 (1993), requiring
a witness to testify to a specific version of facts regardless of the truth. We
are unpersuaded by such an analogy. The plea agreement contains no
stipulations requiring Crawford to testify a certain way at Hand’s trial. An
unaccepted plea does place pressure on a defendant (here, Crawford) to tell
the truth, and a plea agreement “may, of course, properly be conditioned


                                       4
                             STATE v. HAND
                            Decision of the Court

upon truthful and complete testimony.” Id. Crawford’s plea agreement,
however, did not bind her “to a particular script or result.” Rivera, 210 Ariz.
at 191, ¶ 18. The State was only concerned that Crawford would change the
facts supporting her guilty plea—that she committed aggravated assault
against D.D. Hand fails to point to any caselaw preventing the State from
withdrawing from a plea agreement if a defendant recants the basis for the
guilty plea before acceptance.

¶11           Because the prosecutor did not coerce or intimidate
Crawford, the plea agreement did not restrain Crawford’s testimony, and
Crawford consulted and acted on the advice of her attorney to refuse to
testify, we hold that Hand’s due process rights were not violated.

B.     Hand Has Not Shown That His Convictions Should Be
       Reversed for Prosecutorial Misconduct.

¶12            Hand next contends that the prosecutor committed
misconduct in this case. “To prevail on a claim of prosecutorial misconduct,
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. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (quoting State v.
Hughes, 193 Ariz. 72, 79, ¶ 26 (1998)). “Reversal on the basis of prosecutorial
misconduct requires that the conduct be so pronounced and persistent that
it permeates the entire atmosphere of the trial.” Hughes, 193 Ariz. at 79, ¶ 26
(quoting State v. Atwood, 171 Ariz. 576, 611 (1992), disapproved of on other
grounds by State v. Nordstrom, 200 Ariz. 229, 241, ¶ 25 (2001)). The defendant
must show that there is a “reasonable likelihood” that the “misconduct
could have affected the jury’s verdict.” State v. Newell, 212 Ariz. 389, 403,
¶ 67 (2006) (quoting Atwood, 171 Ariz. at 606). We review a properly
preserved claim of prosecutorial misconduct for an abuse of discretion.
State v. Burns, 237 Ariz. 1, 32, ¶ 147 (2015).

¶13             During closing arguments, the prosecutor twice mentioned
that Crawford invoked her Fifth Amendment privilege in front of the jury.
Hand objected to the prosecutor’s comments, and the court overruled the
objection. Commenting on Crawford’s invocation of the privilege was
error. State v. Corrales, 138 Ariz. 583, 587 n.2 (1983) (adverse inference may
not be argued from party’s failure to call a witness who “can be physically
produced but cannot be compelled to testify”); State v. McDaniel, 136 Ariz.
188, 194 (1983) (“It is well settled that in criminal cases the jury is not
entitled to draw any inferences from the decision of a witness to exercise
his Fifth Amendment privilege.”). Because Hand objected to the State’s




                                      5
                             STATE v. HAND
                            Decision of the Court

comments, we review the error to determine if it was harmless beyond a
reasonable doubt. State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005).

¶14            We hold the State has shown beyond a reasonable doubt that
the improper comments did not contribute to the verdicts. The court
instructed the jury that anything the lawyers say in closing arguments was
not evidence. Newell, 212 Ariz. at 403, ¶ 68 (prosecutor’s improper
comments were not reversible error in part because the jury was instructed
“that anything said in closing arguments was not evidence”). We presume
that the jurors followed the court’s instructions. Id. Moreover, the jury’s
decision to acquit Hand on three of the seven aggravated assault charges
demonstrates they followed the court’s instructions and carefully
considered the evidence. See State v. Stuard, 176 Ariz. 589, 600 (1993)
(acquittal of some charges showed “jury’s careful and proper consideration
of the evidence,” thus undermining argument of prejudice from improperly
introduced evidence). And the two brief mentions of Crawford’s invocation
during a lengthy closing argument do not meet the standard of
“pronounced and persistent” conduct requiring reversal. Hughes, 193 Ariz.
at 79, ¶ 26 (quoting Atwood, 171 Ariz. at 611); State v. Cota, 102 Ariz. 416, 421
(1963) (prosecutor’s comment in closing argument on key witness’s refusal
to testify, although undesirable and improper, was not reversible error).
The evidence was conclusive, and the inappropriate argument did not
deprive Hand of a fair trial.

C.     The Superior Court Did Not Err by Permitting Crawford to
       Invoke Before the Jury and Not Giving a Limiting
       Instruction on the Invocation Sua Sponte.

¶15            Hand raises two other issues on appeal: (1) was it error to
permit Crawford to invoke in front of the jury; and (2) was the court
required to give a limiting instruction on Crawford’s invocation to the jury.
Hand, however, failed to object to Crawford’s invocation and to request a
limiting instruction at trial and has therefore waived both issues.
Consequently, he is not entitled to relief absent fundamental, prejudicial
error. See State v. Escalante, 245 Ariz. 135, 141–42, ¶¶ 17–21 (2018).

¶16           “A trial court’s decision whether to allow a party to call a
witness before the jury who will assert his Fifth Amendment privilege is
reviewed for an abuse of discretion.” State v. Harrod, 218 Ariz. 268, 275, ¶ 19
(2008). To determine whether it is proper to call the witness, the court must
balance “the interest of the person calling the witness . . . [against] the
possible prejudice resulting from the inferences the jury may draw from the
witness’ exercise of the privilege.” Corrales, 138 Ariz. at 588. The court may


                                       6
                              STATE v. HAND
                             Decision of the Court

allow the witness to be called if “some valid purpose . . . will be served by
so proceeding,” such as to “provide the jury an explanation of the failure to
call a witness who ordinarily would be expected to testify in order to prove
the charge or establish the defense.” Id. But pursuant to the two-prong test
established by Namet v. United States, 373 U.S. 179 (1963), the court must
refuse to allow the witness to invoke before the jury if the prosecution
intends “to build its case out of inferences arising from the use of the
privilege,” or the invocation will add “critical weight to the [S]tate’s case,
thus prejudicing [the] defendant because of his inability to cross-examine.”
Corrales, 138 Ariz. at 589 (citing Namet, 373 U.S. at 186–87).

¶17             Hand has not demonstrated how the court’s decision to allow
Crawford to exercise her Fifth Amendment privilege before the jury was
error. It is clear from the parties’ discussions with the court that the State
believed calling Crawford was necessary to present its full case. The
questions the State asked of Crawford after calling her—whether she had
spoken with the prosecutor before and whether she was a separately
charged defendant for offenses arising out of the same events—also confirm
this intent. Crawford was a central figure in the circumstances giving rise
to the crimes for which Hand was charged. Indeed, Crawford’s conduct
was extensively discussed during other witnesses’ testimony, and several
recorded and written statements made by Crawford during and after the
incident had been introduced into evidence via a stipulation between the
parties.

¶18             Given these circumstances, it was reasonable to allow
Crawford to invoke her Fifth Amendment privilege before the jury to guard
against any adverse inference the jury might have drawn from the State’s
failure to call her. See Corrales, 138 Ariz. at 588; see also Cota, 102 Ariz. at 421
(proper for State to call co-defendant to invoke before the jury when not
calling would “leave[] an obvious step out of its argument”). Whether the
jury would have drawn an adverse inference from Crawford’s absence or
whether any such inference may have been more harmful to Hand’s
defense than to the State’s case is irrelevant. And by failing to object to the
State calling Crawford, Hand waived any claim that the court abused its
discretion absent fundamental error, which we do not find here.

¶19           Moreover, the prosecutor’s examination of Crawford was
brief and utilized a set of non-prejudicial questions pre-approved by the
court and Hand’s counsel—a far cry from cases where violations of Namet
have been found in the past. See Corrales, 138 Ariz. at 591 (prosecutor
repeatedly asked witness who had invoked questions framed to “suggest
[defendant’s] involvement,” including whether witness was involved in the


                                         7
                              STATE v. HAND
                             Decision of the Court

crimes with defendant); see also Douglas v. Alabama, 380 U.S. 415, 416–17
(1965) (after witness’s refusal to testify, prosecutor read witness’s
purported confession, pausing every few sentences to elicit again the
witness’s invocation); United States v. King, 461 F.2d 53, 56, 56 n.3 (8th Cir.
1972) (after witness invoked, the prosecutor repeatedly asked whether the
witness was with defendant on the night of crime). Hand again points to
the prosecutor’s comments on Crawford’s invocation during his closing
argument as evidence that the State intended “to build its case out of
inferences arising from the use of the privilege.” Corrales, 138 Ariz. at 589.
But as we stated above, two brief mentions of Crawford’s invocation in a
lengthy closing argument during a six-day trial, although improper, are not
enough to conclude prosecutorial misconduct requiring reversal occurred.

¶20             Accordingly, we conclude the court’s decision to allow
Crawford to invoke before the jury, and the prosecutor’s subsequent
examination was not error, let alone fundamental, prejudicial error. And
because Crawford’s invocation itself did not cause fundamental error
resulting in prejudice, the court also did not commit fundamental error by
failing to give a limiting instruction sua sponte concerning that invocation.
Although a limiting instruction may have been appropriate under these
circumstances, “[a]bsent fundamental error, a defendant cannot complain
if the court fails to sua sponte give limiting instructions.” State v. Ellison, 213
Ariz. 116, 133, ¶ 61 (2006).

                                CONCLUSION

¶21            We affirm Hand’s convictions and resulting sentences.




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




                                          8
