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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    TONY PEREZ MARQUEZ, Appellant.

                             No. 1 CA-CR 17-0619
                              FILED 10-09-2018


          Appeal from the Superior Court in Maricopa County
                       No. CR2016-154614-001
         The Honorable Richard L. Nothwehr, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
                           STATE v. MARQUEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            Tony Marquez appeals his convictions and sentences for
misconduct involving weapons, threatening or intimidating, and assault.
For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            We view these facts in a light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). While parking her
car at her apartment complex, A.F. heard a woman scream and quickly
exited her vehicle. Turning in the direction of the commotion, A.F. then
saw Marquez gripping M.G.’s neck and heard M.G. begging him to “stop”
and “leave [her] alone.”

¶3            Concerned, A.F. approached Marquez and yelled, “knock it
off.” In response, Marquez immediately released M.G., turned toward A.F.,
and said, “[t]his is between me and my wife[,] [m]ind your business.”

¶4           At that point, A.F.’s friend and fellow resident, S.B.,
approached Marquez and attempted to intervene. Moments later, A.F.’s
boyfriend, C.D., also joined the group. Confronted by S.B. and C.D.,
Marquez redirected his aggression and threatened to physically attack both
men.

¶5              Meanwhile, with Marquez’ focus shifted away from her, M.G.
reached inside his jacket, withdrew an object that resembled a gun, and
stated, “this is mine” and “I’m taking this before you can use it.” M.G. then
fled, with Marquez chasing after her, and A.F. called the police.

¶6            When responding officers arrived at the scene a few minutes
later, they repeatedly knocked on M.G.’s apartment door to no avail.
Unable to make contact at the door, the officers then called her phone
number. After numerous attempts, M.G. eventually answered her phone
and spoke with an officer for approximately twenty minutes before
emerging from her apartment with her children. Once she exited the


                                     2
                           STATE v. MARQUEZ
                           Decision of the Court

apartment, M.G. told officers that no one else was inside. Nonetheless,
officers swept the apartment but failed to locate Marquez. When they
returned a short time later, however, the officers heard movement overhead
and, with some difficulty, coaxed Marquez down from the attic. After
taking Marquez into custody, officers searched M.G.’s apartment and
found a handgun hidden inside a pink, child-sized backpack.

¶7             The State charged Marquez with one count of misconduct
involving weapons (Count 1), one count of disorderly conduct (Count 2),
two counts of threatening or intimidating (Counts 3 and 4), and one count
of assault (Count 5). The State also alleged aggravating circumstances and
that Marquez had historical prior felony convictions and was on supervised
release at the time he committed the underlying offenses.

¶8            The parties agreed to a jury trial as to Count 1. The remaining
charges were simultaneously tried to the bench.                At trial, M.G.
acknowledged her ongoing romantic relationship with Marquez. She also
admitted that on the evening in question they had an argument outside her
apartment. M.G. denied that Marquez had hit or choked her. She also
explained that during their heated exchange she struck Marquez’ face with
her cell phone, causing him to grab it and place it inside his jacket.
According to M.G., when A.F., S.B., and C.D. approached them, she
retrieved her cell phone from Marquez’ jacket because she feared that she
may need to call for help. Acknowledging she had lied to police officers
when she denied that Marquez was in her apartment, M.G. nonetheless
maintained that she was truthful when she told them that she, alone, owned
and hid the handgun. Indeed, M.G. testified that Marquez never knew she
had a gun in her apartment.

¶9           During closing argument, defense counsel acknowledged
that Marquez was on community supervision at the relevant time, thereby
conceding that he was prohibited from possessing a gun. Relying on M.G.’s
testimony, defense counsel contested, however, the State’s assertion that
Marquez had possessed a handgun on the day in question.

¶10           A jury found Marquez guilty of misconduct involving
weapons and one aggravating circumstance (committing the offense while
on community supervision). After granting the State’s motion to dismiss
the count of disorderly conduct, the court found Marquez guilty of assault
and both counts of threatening or intimidating. In addition, the court found
Marquez had five prior felony convictions, and sentenced him to a slightly
aggravated term of eleven years’ imprisonment on Count 1, and to time
served on the remaining counts. Marquez timely appealed, and we have


                                     3
                           STATE v. MARQUEZ
                           Decision of the Court

jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).

                                ANALYSIS

       I.     Alleged Prosecutorial Misconduct

¶11           Marquez contends the superior court improperly denied both
of his motions to dismiss predicated on claims of prosecutorial misconduct.
We review the denial of a motion to dismiss on grounds of prosecutorial
misconduct for an abuse of discretion. See State v. Trani, 200 Ariz. 383, 384,
¶ 5 (App. 2001).

¶12           Prosecutorial misconduct is “not merely the result of legal
error, negligence, mistake or insignificant impropriety.” Pool v. Superior
Court, 139 Ariz. 98, 108 (1984). Rather, viewed in its entirety, it is
“intentional conduct” that the prosecutor “knows to be improper and
prejudicial, and which he pursues for any improper purpose.” Id. at 108-
09.

¶13           To prevail on a claim of prosecutorial misconduct, the
“defendant must show that the offending statements [or conduct], in the
context of the entire proceeding, so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” State v. Newell, 212
Ariz. 389, 402, ¶ 60 (2006) (internal quotation omitted). Under this
standard, improper comments by a prosecutor will not warrant reversal of
a defendant’s convictions unless there is a “reasonable likelihood” that the
“misconduct could have affected the jury’s verdict” and deprived the
defendant of the right to a fair trial. Id. at 403, ¶ 67 (internal quotation
omitted).

¶14           Nonetheless, even when individual acts of prosecutorial
misconduct are harmless, the cumulative effect of the incidents may
demonstrate “that the prosecutor intentionally engaged in improper
conduct and did so with indifference, if not a specific intent, to prejudice
the defendant.” State v. Roque, 213 Ariz. 193, 228, ¶ 155 (2006) (internal
quotation omitted), overruled on other grounds by State v. Escalante-Orozco,
241 Ariz. 254, 267, ¶¶ 11-15 (2017). Therefore, after reviewing each incident
for error, “we must evaluate their cumulative effect on the trial.” Id.

              A.     Denial of First Motion to Dismiss

¶15          At the final trial management conference held approximately
six weeks before trial, defense counsel challenged, among other things, the


                                      4
                            STATE v. MARQUEZ
                            Decision of the Court

prosecutor’s failure to respond to her interview requests for victims S.B.
and A.F. In response, the prosecutor avowed that he had been unable to
locate the victims. Notwithstanding this avowal, the court ordered the
prosecutor to respond to the interview requests within five days indicating
whether the victims would or would not consent to an interview by defense
counsel.

¶16           The prosecutor failed to comply with the court’s five-day
deadline. Twelve days after the trial management conference, the
prosecutor disclosed that S.B. had consented to an interview with defense
counsel. Because of transportation issues, however, S.B. subsequently
cancelled two in-person interviews. During a telephonic interview held in
lieu of the second cancelled in-person interview, defense counsel asked
whether S.B. knew that defense counsel was willing to interview him at his
residence.    Acknowledging that the prosecutor had informed him
accordingly, S.B. stated that he preferred a telephonic interview.
Nonetheless, when defense counsel pressed the issue and explained that
she wanted to question him regarding certain pictures and videos, S.B.
consented and submitted to an in-person interview. With respect to A.F.,
approximately two weeks past the court’s deadline, the prosecutor
informed defense counsel that he had finally reached her by telephone, but
A.F. had declined to submit to an interview.

¶17            Approximately a month before trial, Marquez moved to
dismiss the charges, alleging the prosecutor had engaged in misconduct by:
(1) failing to timely respond to defense counsel’s requests for interviews
with victims S.B. and A.F.; (2) lying to defense counsel when he claimed
that victim S.B. would only submit to a telephonic rather than an in-person
interview; (3) thwarting defense counsel’s access to victim A.F.; (4) failing
to provide a list of jail calls he anticipated to use at trial; and (5) impugning
defense counsel’s integrity.

¶18           After holding a two-day hearing on the motion, the superior
court reprimanded both the prosecutor and defense counsel for maligning
“each other’s reputations,” and concluded: (1) the State had failed to timely
disclose the victims’ availability for interviews; (2) Marquez had suffered
no prejudice as a result of these “inconsequential” delays; and (3) the
prosecutor had engaged in conduct “unbecoming of a member of the
Arizona Bar Association,” but his behavior did not rise to the level of
misconduct. Accordingly, the court found no evidence of prosecutorial
misconduct and denied the motion to dismiss.




                                       5
                            STATE v. MARQUEZ
                            Decision of the Court

¶19           Contrary to Marquez’ assertions, nothing in the record
suggests that the prosecutor impeded defense counsel’s interviews with
S.B. and A.F. It is uncontroverted that defense counsel conducted an
interview of S.B. weeks in advance of trial, and although S.B. ultimately
submitted to an in-person interview, he initially expressed his preference
for a telephonic format. Likewise, the parties do not dispute that A.F.
refused to submit to questioning before trial. At trial, defense counsel asked
A.F. about her failure to submit to a defense interview, and A.F. confirmed
that she refused defense counsel’s invitation. Therefore, as found by the
superior court, the prosecutor’s failure to timely disclose the victims’
availability was wholly inconsequential.

¶20           Furthermore, consistent with the superior court’s findings,
the record reflects that both attorneys resorted to personal attacks rather
than properly limiting their remarks to the substance of their respective
positions. While defense counsel accused the prosecutor and his staff of
dishonesty, the prosecutor characterized defense counsel’s conduct as
“dirty” “antics” and “shenanigans.” These inappropriate comments
preceded trial, however, and were not made in the presence of the jury.
Given these facts, there is no basis to conclude that the statements deprived
Marquez of a fair trial. See State v. Speer, 221 Ariz. 449, 458, ¶ 44 (2009)
(concluding the prosecutor’s “entirely unprofessional” statements uttered
“outside the presence of the jury” did not deprive the defendant of a fair
trial). Indeed, any claim that the prosecutor’s comments compromised
defense counsel’s standing with the court and thereby hindered her
representation is belied by her subsequent stipulation to try the
misdemeanor charges to the bench. Therefore, the superior court did not
abuse its discretion by denying Marquez’ first motion to dismiss.

              B.     Denial of Second Motion to Dismiss

¶21            In response to defense counsel’s questioning at trial, an officer
testified that forensic analysis revealed “no fingerprints [] of value” on the
gun. On redirect, the prosecutor likewise questioned the officer regarding
the test results, and he reiterated that “[n]othing of evidentiary value [was]
located on the gun.”

¶22            During closing argument, defense counsel asserted that the
test results proved that Marquez had never handled the gun. In rebuttal,
the prosecutor acknowledged that Marquez’ fingerprints were not on the
seized gun but countered, “they found no fingerprints, not one single
fingerprint on that handgun.” Based on this forensic analysis, the
prosecutor arguably invited the jurors to infer that fingerprints may have


                                       6
                           STATE v. MARQUEZ
                           Decision of the Court

been wiped from the gun while M.G. and Marquez were alone in the
apartment. In addition, the prosecutor asked the jurors to review a 9-1-1
call that had been played during the trial and assess for themselves “how
certain” the witnesses “were of the things that they saw immediately after
the incident happened.”

¶23           During deliberations, the jurors submitted a question to the
court inquiring whether they could consider a portion of the 9-1-1 call that
relayed S.B.’s direct communication with an emergency operator, even
though that conversation was not presented at trial. To ascertain whether
the jurors had already listened to the unadmitted section of the call, the
court questioned the jury foreman outside the presence of the other jurors.
The foreman explained that the jurors had immediately stopped the
recording as soon as they heard S.B.’s voice. Satisfied that the jurors had
not considered the unadmitted portion of the exhibit, the court then
submitted a redacted recording to the jury, which matched the recording
played during trial.

¶24           A week after trial, defense counsel submitted a second motion
to dismiss predicated on prosecutorial misconduct, reasserting her original
claims and arguing that the prosecutor intentionally: (1) misstated evidence
during closing argument, and (2) submitted an exhibit for jury deliberation
that had not been presented at trial. After holding a hearing on the motion,
the superior court found: (1) the prosecutor did not intentionally or
knowingly submit the unredacted 9-1-1 call to the jury; (2) the jurors never
listened to the challenged portion of the 9-1-1 recording; (3) Marquez
sustained “absolutely no prejudice” from the errant submission of the
recording to the jurors for deliberation; and (4) testimony from trial
supported the prosecutor’s closing argument regarding the lack of
fingerprints on the handgun.

¶25            While     prosecutors     may      not   make     unsupported
“insinuations,” they have “wide latitude in presenting their arguments to
the jury,” and may argue all reasonable inferences from the evidence. State
v. Morris, 215 Ariz. 324, 336, ¶ 51 (2007) (internal quotation omitted). Here,
the prosecutor’s statement that no fingerprints were found on the gun was
reasonably supported by the officer’s testimony that nothing of evidentiary
value was found on the weapon. Moreover, contrary to Marquez’ claims,
the underlying forensic report substantiated, rather than contradicted, the
officer’s testimony. The report stated no prints were found on the gun,
though noting some prints were found on the magazine. Given the
undisputed evidence that someone placed the gun in a child’s backpack,



                                      7
                            STATE v. MARQUEZ
                            Decision of the Court

the lack of fingerprints on the gun supported the State’s arguable inference
that someone may have wiped it.

¶26           Likewise, there is nothing in the record to suggest that the
prosecutor engaged in misconduct by submitting the unredacted recording,
and we defer to the superior court’s credibility determination that the
prosecutor’s errant submission was not an intentional act. See State v.
Martinez, 230 Ariz. 208, 215, ¶¶ 30-32 (2012) (concluding the prosecutor’s
“courtroom demeanor was inappropriate,” but deferring to the superior
court’s “firsthand observations and assessments” as to whether such
conduct amounted to “pervasive misconduct”). Nonetheless, even if the
prosecutor intentionally submitted the unadmitted exhibit, the record
reflects that Marquez sustained no resulting prejudice because the jury
never heard S.B.’s conversation with the emergency operator.

¶27           Furthermore, although Marquez argues the cumulative effect
of the prosecutor’s conduct both before and at trial caused him prejudice,
having found no action by the prosecutor that constitutes misconduct,
“there can be no cumulative effect of misconduct sufficient to permeate the
entire atmosphere of the trial with unfairness.” State v. Bocharski, 218 Ariz.
476, 492, ¶ 75 (2008). Therefore, the superior court did not abuse its
discretion by denying Marquez’ second motion to dismiss.

       II.    Alleged Judicial Bias

¶28           Marquez argues the trial judge made “critical remarks”
regarding defense counsel that demonstrated “prejudicial bias.”
Accordingly, he contends the superior court improperly denied his request
for a change of judge for cause. We review a superior court’s ruling on a
claim of judicial bias for an abuse of discretion. State v. Ramsey, 211 Ariz.
529, 541, ¶ 37 (App. 2005).

¶29            “The constitutional right to a fair trial includes the right to a
fair and impartial judge.” State v. Ellison, 213 Ariz. 116, 128, ¶ 35 (2006).
Under Arizona Rules of Criminal Procedure 10.1 (“Rule 10.1”), “a
defendant is entitled to a new judge if a fair and impartial hearing or trial
cannot be had by reason of the interest or prejudice of the assigned judge.”
Id. (internal quotation omitted).

¶30         Because judges are presumed to be impartial, “the party
moving for change of judge must prove a judge’s bias or prejudice by a
preponderance of the evidence.” Id. at ¶ 37 (internal quotation omitted).
To meet this burden, the moving party must set forth “concrete facts”
demonstrating the judge’s partiality, and may not rely “on mere


                                       8
                            STATE v. MARQUEZ
                            Decision of the Court

speculation, suspicion, apprehension, or imagination.”             Id. (internal
quotation omitted).

¶31            Moreover, opinions that a judge forms “on the basis of facts
introduced or events occurring in the course of the current proceedings, or
of prior proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Id. at 129, ¶ 38 (internal quotation
omitted). Indeed, “judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.” Id. at ¶ 40 (internal quotation omitted).

¶32            Approximately a month after trial, defense counsel filed a
motion for change of judge pursuant to Rule 10.1, detailing her belief that
the appointed judge, Commissioner Richard Nothwehr, held personal
disdain and ill-will toward her, and requesting a new judge for Marquez’
trial on priors and sentencing. To substantiate her request, defense counsel
noted that Commissioner Nothwehr had: (1) denied several of Marquez’
pretrial motions; (2) granted the State’s motion to strike from Marquez’
motions any language that characterized the prosecutor as lying,
misrepresenting, or obstructing; (3) reserved for a future date any
determination as to whether defense counsel’s conduct warranted
sanctions; and (4) scolded defense counsel for repeatedly interrupting the
State’s closing argument.

¶33            A hearing on the motion was held before an impartial judge,
the Honorable Samuel Myers. After reviewing the record and hearing from
the parties, Judge Myers denied the request for a change of judge, finding:
(1) Commissioner Nothwehr did not threaten defense counsel with possible
sanctions, but simply stated, in granting the State’s motion to strike, that he
had not “made any findings in support of or against a bar complaint”; (2)
Commissioner Nothwehr was, at times, frustrated with defense counsel;
and (3) the record did not reveal whether Commissioner Nothwehr
“dislike[d] counsel.”

¶34           As found by Judge Myers, Marquez failed to set forth any
facts demonstrating bias or prejudice that required Commissioner
Nothwehr’s disqualification under Rule 10.1. Although defense counsel
asserts Commissioner Nothwehr’s rulings on various motions demonstrate
prejudice, the challenged rulings do not reveal any extra-judicial source of
bias or deep-seated favoritism. Mere dissatisfaction with a judge’s rulings
does not warrant a change of judge. See Ellison, 213 Ariz. at 129, ¶ 40.
Likewise, Commissioner Nothwehr’s admonitions to defense counsel
regarding her frequent objections during the State’s closing argument do


                                       9
                            STATE v. MARQUEZ
                            Decision of the Court

not demonstrate bias because “a judge does not display bias or cause
prejudice when acting sua sponte to control the courtroom and trial.” State
v. Goudeau, 239 Ariz. 421, 450, ¶ 93 (2016) (internal quotation omitted); see
also Liteky v. United States, 510 U.S. 540, 556 (1994) (“A judge’s ordinary
efforts at courtroom administration—even a stern and short-tempered
judge’s ordinary efforts at courtroom administration—remain immune” to
a partiality challenge.). Moreover, consistent with Judge Myers’ findings,
manifest frustration and annoyance do not render a judicial officer unfit to
preside over a legal proceeding. See Liteky, 510 U.S. at 555-56 (holding
“expressions of impatience, dissatisfaction, annoyance, and even anger,
that are within the bounds of what imperfect men and women . . .
sometimes display” do not establish bias or partiality). Therefore, the
motion for change of judge for cause was properly denied.

       III.   Denial of Requested Jury Instruction

¶35            Marquez contends the superior court erroneously denied his
requested jury instruction regarding constructive possession. We review a
superior court’s denial of a requested jury instruction for an abuse of
discretion, deferring to the court’s evaluation of the evidence. State v. Wall,
212 Ariz. 1, 3, 5, ¶¶ 12, 23 (2006). We will not reverse a court’s “refusal
unless the defendant suffered prejudice as a result.” State v. Garfield, 208
Ariz. 275, 278, ¶ 11 (App. 2004). We affirm a court’s ruling “if legally correct
for any reason and, in doing so, we may address the state’s arguments to
uphold the court’s ruling even if those arguments otherwise could be
deemed waived by the state’s failure to argue them below.” State v. Huez,
240 Ariz. 406, 412, ¶ 19 (App. 2016).

¶36            A party is entitled to a jury instruction on any theory
reasonably supported by the evidence. State v. Moody, 208 Ariz. 424, 467,
¶ 197 (2004). Nevertheless, a court does not err by refusing to give a jury
instruction that “does not fit the facts of the particular case, or is adequately
covered by the other instructions.” State v. Hussain, 189 Ariz. 336, 337 (App.
1997); see also State v. Mott, 187 Ariz. 536, 546 (1997) (“A trial court is not
required to give a proposed instruction when its substance is adequately
covered by other instructions.”).

¶37          Citing State v. Kerr, 142 Ariz. 426 (App. 1984), Marquez
requested the following instruction on constructive possession:
“Constructive possession does not apply to an individual who merely lives
with another person who can lawfully possess a firearm, and this other
individual possesses a firearm in the home.”




                                       10
                            STATE v. MARQUEZ
                            Decision of the Court

¶38           During the settling of final jury instructions, defense counsel
explained that without her proposed instruction the jury could convict
Marquez of misconduct involving weapons based on his presence in M.G.’s
apartment while she lawfully possessed a handgun. After hearing from the
parties, the court denied the requested instruction, explaining that the
approved instructions already required the State to prove that Marquez
knowingly exercised dominion or control over the gun, and therefore he
could not be convicted of misconduct involving weapons based on his mere
presence near a handgun.

¶39          In its final instructions to the jury, the superior court provided
the following definition of “possession”:

              The law recognizes different types of possession.
       “Actual possession” means the defendant knowingly had
       direct physical control over an object.          “Constructive
       possession” means the defendant, although not actually
       possessing an object, knowingly exercised dominion or
       control over it, either acting alone or through another person.
       “Dominion or control” means either actual ownership of the
       object or power over it. Constructive possession may be
       proven by direct or circumstantial evidence.

              Both actual and constructive possession may be sole or
       joint. “Sole possession” means the defendant, acting alone,
       had actual or constructive possession of an object. “Joint
       possession” means the defendant and one or more persons
       shared actual or constructive possession of an object.

             You may find that the element of possession, as the
       term is used in these instructions, is present if you find
       beyond a reasonable doubt that the defendant had actual or
       constructive possession, either acting alone or with another
       person.

¶40          As noted by the State, Kerr does not support Marquez’
requested instruction because, unlike this case, the defendant in Kerr was
charged with possession of prohibited weapons and the court expressly
rejected any argument regarding the defendant’s status as a prohibited
possessor. Kerr, 142 Ariz. at 147-48, 151 n.1; see also State v. Coley, 158 Ariz.
471, 471 (App. 1988) (explaining Kerr applies to cases dealing with
“possession of prohibited weapons, not the possession of deadly weapons
by prohibited possessors”). More importantly, as found by the superior



                                       11
                         STATE v. MARQUEZ
                         Decision of the Court

court, the given instructions adequately stated the law and required the
State to prove that Marquez either actually possessed or knowingly
exercised dominion and control over the gun. In other words, the jury was
properly instructed that Marquez’ mere proximity to a gun did not
constitute misconduct involving weapons. Therefore, the superior court
did not abuse its discretion by denying Marquez’ requested constructive
possession instruction.

                             CONCLUSION

¶41          For the foregoing reasons, we affirm the convictions and
sentences.




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

                                      12
