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     UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                            v.

                           JUAN CARLOS BRAVO,
                     JOHN CARMEN BRAVO-MARTINEZ,
                        JAIME BRAVO MARTINEZ, and
                    NESTOR MANUEL PONCIANO, Appellees.

  Nos. 1 CA-CR 14-0253, 1 CA-CR 14-0257, 1 CA-CR 14-0262, 1 CA-CR 14-0263
                              (Consolidated)
                              FILED 10-15-15

               Appeal from the Superior Court in Maricopa County
                 Nos. CR2013-002656-001, -003, -004, and -005
                     The Honorable Bruce R. Cohen, Judge

                                      AFFIRMED


                                       COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Karen Kemper
Counsel for Appellant

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellee Juan Carlos Bravo

Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellee John Carmen Bravo-Martinez
Michael J. Dew, Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellee Jaime Bravo Martinez

Droban & Company, P.C., Anthem
By Kerrie M. Droban
Counsel for Appellee Nestor Manuel Ponciano



                          MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which Presiding
Judge Patricia K. Norris and Judge Patricia A. Orozco joined.


P O R T L E Y, Judge:

¶1            The State challenges the new trial the superior court granted to Juan
Carlos Bravo, John Carmen Bravo-Martinez, Jaime Bravo Martinez, and Nestor
Manuel Ponciano (collectively, “the Defendants”) after the jury’s verdict. For the
reasons that follow, we affirm.

                FACTS AND PROCEDURAL BACKGROUND1

¶2             A complaint about music being played too loudly at a late-night
backyard party in west Phoenix escalated into a citywide police call for help
resulting in the deployment of seventy officers, and the arrest of five people, all
relatives,2 on charges of riot; aggravated assault for touching with intent to injure,
insult or provoke; and resisting arrest.

¶3             Officer M.L. testified that he went to the house and the homeowner
refused to turn off the music and end the party. He stated that a crowd of
partygoers massed at the front door, and quickly became hostile, using profanity
and telling him to leave. One person at the front door, later identified as Ponciano,
told the officer “he had a right to bear arms and he has guns,” which the officer
took as a threat. An unidentified partygoer then threw a cup of beer at the officer,
and the group shut the door when the officer used pepper spray.


1 We view the trial evidence in the light most favorable to sustaining the jury’s
verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769 (App. 2007).
2 The jury acquitted Maria Bravo Ponciano, the fifth relative, of rioting, but was

unable to reach a verdict on aggravated assault and resisting arrest charges.


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                              STATE v. BRAVO, et al.
                               Decision of the Court

¶4             Officer M.L. and several others, who had responded to his call for
backup, subsequently entered the backyard, where several of the thirty to forty
attendees yelled and cursed at the officers, told them they had no right to be there,
and refused to comply with commands to sit down or disperse. In the resulting
chaos, the four Defendants pushed various officers or threw items at them,
resulting in their arrest and being charged.

¶5           The case went to trial. Jaime Bravo Martinez, Nestor Manuel
Ponciano, and Juan Carlos Bravo testified on their own behalf and denied the
allegations.

¶6             Following a forty-three day trial, the jury convicted: (a) Juan Carlos
Bravo of aggravated assault for punching an officer; (b) Nestor Manuel Ponciano
of aggravated assault for pushing an officer, and of resisting arrest; (c) Jaime Bravo
Martinez of reasonable apprehension aggravated assault; and (d) John Carmen
Bravo-Martinez of four counts of aggravated assault for throwing a jar at one
officer and pushing others, one count of resisting arrest, and one count of rioting.
All were for class 5 felonies, except for the resisting arrest convictions, which were
class 6 felonies.

¶7             The Defendants asked for a new trial and, after briefing, the superior
court granted their motion. The State timely filed notices of appeal from the
court’s order.

¶8            The State subsequently moved to dismiss each of the cases without
prejudice for purposes of appeal. The superior court dismissed the case against
each Defendant without prejudice.

                                   DISCUSSION

I.     Effect of Dismissal of Underlying Cases

¶9            Juan Carlos Bravo argues the dismissal of the underlying case
deprives this court of jurisdiction and renders this appeal moot. We disagree.

¶10            The right to appeal can only be given or denied by constitution or
statute. State v. Birmingham, 96 Ariz. 109, 111, 392 P.2d 775, 776 (1964). Here, the
State has a statutory right to appeal from the superior court’s grant of the motions
for new trial. Ariz. Rev. Stat. (“A.R.S.”) § 13-4032(2); Birmingham, 96 Ariz. at 111,
392 P.2d at 776. Although the State did not need to dismiss the action before filing
its appeal, an action we hope is not replicated, the constitution does not prohibit
the procedure followed by the State. See State v. Million, 120 Ariz. 10, 14-16, 583
P.2d 897, 901-903 (1978). As a result, we conclude we have jurisdiction over the



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                               STATE v. BRAVO, et al.
                                Decision of the Court

State’s appeal regardless of whether the case has been stayed or dismissed
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4032(2).

¶11            The Defendants argue the case is over because the State successfully
asked that the charges be dismissed without prejudice. We disagree. Although
the State dismissed the case without prejudice, if we were to find that the court
erred, the effect would be to “return the case to the posture it was in . . . before the
trial court ruled on defendant’s motion for new trial.” State v. Moya, 129 Ariz. 64,
65, 628 P.2d 947, 948 (1981). Similarly, the United States Supreme Court stated that
if the State was successful on appeal, it would result “in the reinstatement of the
general finding[s] of guilty, rather than in further factual proceedings relating to
guilt or innocence.” United States v. Morrison, 429 U.S. 1, 3-4 (1976); see State v. West,
226 Ariz. 559, 562, ¶ 13, 250 P.3d 1188, 1191 (2011) (stating that if the ruling is
reversed on appeal, “the verdict of guilt can simply be reinstated”).

¶12           On the other hand, if we find the court did not abuse its discretion in
granting the motion for new trial, we would simply affirm and remand the case
back for the new trial. The State does not need to reindict the Defendants and start
anew because we are leaving the parties in the same position they were when the
State erroneously thought it had to dismiss the charges to challenge the court’s
ruling. Consequently, the appeal is not moot and we will consider the merits. See
Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 5, 277 P.3d 811, 814 (App. 2012) (“[W]e will
dismiss an appeal as moot when our action as a reviewing court will have no effect
on the parties.”).

II.    Grant of New Trial

¶13           The superior court granted the Defendants’ motions for new trial.
The court found that admission of evidence of the gun found on Juan Carlos Bravo
was prejudicial and the cumulative impact of misstatements of evidence by the
prosecutor throughout trial and during rebuttal argument, against a backdrop of
“due process rights violations under the rationale of victims’ rights protections,”
persuaded the court that the trial was neither fair nor constitutionally valid,
requiring a new trial. Because of the length of the trial, however, the court
“focused far more on a global consideration of the trial,” noting that, “[f]rom that,
there remains the lingering question as to whether the trial, as conducted, was fair
and consistent with the due process rights of each defendant . . . [t]his Court cannot
envision a circumstance wherein a reviewing court could find that the trial in this
matter was fair and constitutionally valid.” The court then announced it would
set oral argument prior to the new trial “on the Rule 403 issues relating [to] the
confiscated and previously admitted guns.”




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                               STATE v. BRAVO, et al.
                                Decision of the Court

¶14          The State argues the superior court abused its discretion by granting
the Defendants a new trial because the refusal of the police-officer victims to be
interviewed by the Defendants did not infringe upon the Defendants’ due process
rights. The State also argues the misstatements identified by the superior court
during the prosecutor’s rebuttal argument were not misstatements at all, and, in
any case, were unintentional.

       A. Standard of Review

¶15             Arizona Rules of Criminal Procedure (“Rule”) 24.1(c)(5) provides
that a trial court may grant a new trial if “[f]or any other reason not due to the
defendant’s own fault the defendant has not received a fair and impartial trial . . . .”
In fact, our supreme court has stated that “[m]isconduct alone will not cause a
reversal, as a new trial should not be granted to punish counsel for his misdeeds,
but [only] where the defendant has been denied a fair trial as a result of the actions
of counsel . . . .” State v. Moore, 108 Ariz. 215, 222, 495 P.2d 445, 452 (1972). For
example, a new trial will be warranted where a prosecutor’s improper remark calls
to the jury’s attention a matter “that they would not be justified in considering in
determining their verdict” and it must be probable that the remark influenced the
jury’s verdict. State v. Hansen, 156 Ariz. 291, 296-97, 751 P.2d 951, 956-57 (1988).
As a result, because the trial court is in the best position to determine whether an
attorney’s remarks require a mistrial, or a new trial, we will not disturb the ruling
absent an abuse of discretion. See id. at 297, 751 P.2d at 957. And we are mindful
that the trial court has broad discretion to grant a new trial, and the appellant, in
this case, the State, bears the burden of establishing that the record shows the court
acted arbitrarily. State v. Villalobos, 114 Ariz. 392, 394, 561 P.2d 313, 315 (1977).

¶16            Moreover, if a motion for “new trial was granted on one or both of
the grounds . . . the fact that it was incorrect on [one or] the other ground is
immaterial.” State v. Turner, 92 Ariz. 214, 217, 375 P.2d 567, 568 (1962) (citing State
v. White, 56 Ariz. 189, 191, 106 P.2d 508, 509 (1940)). Consequently, we will affirm
the grant of new trial unless the State demonstrates the court acted arbitrarily.
Villalobos, 114 Ariz. at 394, 561 P.2d at 315; cf. State v. Harrington, 27 Ariz. App. 663,
664, 558 P.2d 28, 29 (App. 1976) (stating that when trial court does not specify on
which ground or combination of grounds it relied on in granting the motion, State
has burden to demonstrate that none of the grounds urged in the motion for new
trial are valid).

       B. Police Officers as Victims

¶17          The superior court found that the Defendants’ due process rights
were violated by the “surprise nature of certain testimony” from the police-officer
victims. Specifically, Defendants claimed the police-officer victims authored



                                            5
                              STATE v. BRAVO, et al.
                               Decision of the Court

reports that only discussed what they did and saw, but not the actions of the other
officers. Moreover, the police-officer victims refused to participate in defense
interviews. In its ruling, the court noted that “there was a significant amount of
relevant information testified to by various officers that was not included in police
reports, despite being central to the [S]tate’s theory of the case.” And the court
expressed concern that “the exercise of victims’ rights in this matter served to deny
each defendant a fair trial.”

¶18            Police officers can be victims under the Victims’ Bill of Rights. See
Ariz. Const. art. 2, § 2.1. A victim is defined as “a person against whom the
criminal offense has been committed . . . .” Ariz. Const. art. 2, § 2.1(C). And like
other victims, the officer-victims had the right to the protections of the Victims’
Bill of Rights, including the right to refuse defense interviews or discovery
requests. Ariz. Const. art. 2, § 2.1(5); A.R.S. § 13-4433(A); Douglass v. State, 219
Ariz. 152, 154, ¶ 9, 195 P.3d 189, 191 (App. 2008). Although they have certain rights
as victims, those rights may, under certain circumstances, be required to yield to a
defendant’s due process rights. See, e.g., State ex rel. Romley v. Superior Court
(Roper), 172 Ariz. 232, 238-40, 836 P.2d 445, 451-53 (App. 1992) (holding that if
medical records are found to be exculpatory and essential to present defense case
or impeach the victim, due process requires their production).

¶19            Defendants have no constitutional right to pretrial discovery in a
criminal case, except when the evidence is both exculpatory and material. See
Roper, 172 Ariz. at 238, 836 P.2d at 451 (citations omitted); see also State v. Connor,
215 Ariz. 553, 560-61, ¶ 21, 161 P.3d 596, 603-04 (App. 2007) (citations omitted).
Rule 15.1 governs disclosure by the State and requires the prosecutor to disclose
the police reports in his or her possession or control. Ariz. R. Crim. P. 15.1.
However, Rule 15.1 does not regulate what the police officers write or include in
the reports. In fact, police officers are not required to prepare reports, much less
reports that cover every aspect of their anticipated testimony. The purpose of the
police report is to outline what happened in order to help the prosecutors
determine what charges to file. Once the charges are filed, the report is provided
to the defense to understand how the police perceived the events. See State v.
Seymour, 21 Ariz. App. 144, 146, 517 P.2d 102, 104 (App. 1973). The defense can
also use the report to attempt to impeach the officers during trial if their testimony
is inconsistent with any police report. See State v. Ashton, 95 Ariz. 37, 39, 386 P.2d
83, 84-85 (1963); State v. Preciado, 15 Ariz. App. 114, 116-17, 486 P.2d 226, 228-29
(App. 1971). And, if need be, the report can also be used by the officer at trial to
refresh his or her memory given that the report is written soon after the events and
any trial takes place months or years later. Ariz. R. Evid. 803(5); State v. Smith, 215
Ariz. 221, 229, ¶ 29, 159 P.3d 531, 539 (2007).




                                          6
                              STATE v. BRAVO, et al.
                               Decision of the Court

¶20            Under the circumstances presented here, the Defendants’ due
process rights were not violated because they could not interview the police-
officer victims. And the record fails to demonstrate that any of the undisclosed
evidence in this case was material or exculpatory. During trial, and to address the
fact that the police-officer victims did not provide defense interviews, the court
gave the Defendants “expansive cross examination” of the officer-victims to
address discrepancies between what they had included and had not included in
their incident reports. As a result, the Defendants, during cross-examination, were
able to use many omissions or misstatements in the reports of the officer-victims
to question their credibility, and to present a complete defense. Consequently,
having reviewed the record, the Defendants’ due process rights were not violated
nor were they denied a fair trial because the police reports did not cover all aspects
of the police-officer victims’ anticipated testimony or because the officer-victims
did not agree to defense interviews.

       C. Argument that Cross-Examination was Harassment

¶21            In reviewing the record, we find another issue concerning victims’
rights that the court did not address: the prosecutor’s use of the victims’ rights as
a sword during re-direct examination. During re-direct examination of Officer
A.O., the prosecutor implied that defense counsel, by the extensive cross-
examination, had violated the officers’ rights, as victims, to be free from
intimidation and harassment. The Defendants objected moved for a mistrial.
After finding that the prosecutor’s conduct had been improper, the court
concluded that a mistrial was not warranted because the objection was
immediately raised and the jury removed from the courtroom, preventing any
unfair prejudice.

¶22           Victims are to be “treated with fairness, respect, and dignity, and to
be free from intimidation, harassment, or abuse, throughout the criminal justice
process.” Ariz. Const. art. 2, § 2.1(A)(1). The officer-victims, however, are not
typical crime victims. Although police officers may become crime victims in the
course of carrying out their duty, they also have an obligation, as part of their duty,
to observe and collect evidence and then to testify about it, if required. And as a
witness to the events, they can be cross-examined, even vigorously, about what
they saw, what they heard, and what they did, as well as other relevant inquiry in
an attempt to get all the relevant information to the jury for its consideration.

¶23           Here, although the court sustained the objection to the prosecutor’s
statements, the implication that the cross-examination was improper and violated
victims’ rights was both unprofessional and misstated the law — if an officer-
victim refuses to be interviewed by the defense, the defense can cross-examine the
officer-victim about his or her direct testimony and anything else that is relevant,


                                          7
                             STATE v. BRAVO, et al.
                              Decision of the Court

and that touches on the person’s credibility and other factors, which may create
reasonable doubt. If a lawyer thinks a question or some part of the cross-
examination is problematic, an objection can be made, and the court will resolve
the objection. But, a prosecutor, in seeking justice, should never imply that the
cross-examination of a police officer, even as a victim, was improper because of
the impact it can have on the jury.

      D. Bravo’s Gun.

¶24           We next turn to the prosecutor’s use of Juan Carlos Bravo’s gun and
the court’s analysis in granting the motion for new trial. Bravo was not charged
with any offense relating to his gun or the use of his gun during the incident.
Moreover, no one testified that Bravo brandished the gun or told police that he
had one before he was arrested.3 It was only sometime after Bravo was arrested
and handcuffed, that an officer noticed a handgun sticking out of his waistband in
plain view and seized it.

¶25           Bravo moved to preclude the admission of his gun. In response, the
State conceded that the gun did not figure in any charges, but argued that it was
relevant to the state of mind of the officers, “the reason why most officers reacted
the way they reacted, did the things they did and took the safety precautions that
they did was, the very reason was because there was talk about guns, threats with
guns.” The court found that the gun was relevant to whether the actions of the
police were reasonable and that unfair prejudice did not substantially outweigh
its probative value and denied Bravo’s motion.

¶26           The prosecutor did not, however, just question the witnesses about
finding Bravo’s gun after his arrest. Instead, the prosecutor asked questions about
the presence of guns and children at a late-night party, which generated numerous
questions from the jury about who had guns, why and whether they usually
carried them. The questions prompted an unsuccessful motion for mistrial, and


3  The State had charged Ponciano with aggravated assault for allegedly
threatening Officer T.B. with a gun, and evidence of his gun was admitted without
objection. The officer testified that while he was standing on a wall looking into
the backyard, Ponciano told him he had a gun and he could shoot the officer for
trespassing, and reached under his shirt as if to get his gun. Officer B.M., who
helped Officer T.B. arrest Ponciano, however, testified that he learned of
Ponciano’s handgun and retrieved it from his waistband only because Ponciano
informed him of its presence as he was being led away in handcuffs. The jury
acquitted Ponciano of the aggravated assault charge based on threatening Officer
T.B. with the gun.



                                         8
                             STATE v. BRAVO, et al.
                              Decision of the Court

led to a stipulation that no evidence was introduced showing that John Carmen
Bravo-Martinez had a gun. The court also instructed the jury that it is legal to
carry a concealed firearm in Arizona, and the law does not require anyone to give
a reason justifying the decision to carry a weapon.

¶27           In resolving the motion for new trial, the superior court found that
the prosecutor’s use of Bravo’s gun, that was only discovered after he was
arrested, created undue prejudice because the prosecutor misused the gun
evidence to inflame the jurors’ passions, particularly in rebuttal closing, and
tainted all Defendants and contributed to doubts about the fairness of the trial.
Based on the record, and the absence of evidence that the court acted arbitrarily,
we cannot say that the court abused its discretion in concluding in hindsight that
the prosecutor’s use of the admission of Bravo’s gun created unfair prejudice
which warranted a new trial.

      E. Misstatements and Mischaracterizations of Evidence

¶28           The superior court also found that the numerous “misstatements
and mischaracterizations” of evidence by the prosecutor during trial and in closing
arguments deprived Defendants of a fair trial. For example, the prosecutor’s use
of the gun evidence in closing arguments was misleading. In her initial closing
argument, the prosecutor ended her summation of the evidence supporting the
charges against Juan Carlos Bravo by noting that he was found in possession of
“[t]his handgun” after he was arrested, notwithstanding the fact that he had not
been not charged with any offense involving a handgun. The superior court, in its
new trial ruling, noted that the prosecutor also improperly suggested in rebuttal
argument that Bravo’s gun was “actually part of the aggravated assault” charge.

¶29           The court’s finding that the prosecutor used the gun in rebuttal
argument to demonstrate conduct that “was not supported by the evidence” and
“appeared designed to feed into the passions of the jurors” was also justified.
Insofar as the trial record shows, the prosecutor picked up the gun seized from
Bravo and the one seized from Ponciano, and referred to the “charges” involving
guns and the use of the guns to threaten officers; ostensibly, referring to the
charges against Ponciano for allegedly reaching for a gun, and against Maria
Bravo, for allegedly attempting to seize an officer’s gun. The prosecutor also
apparently gestured with one of the guns to indicate — contrary to the evidence
— that it was actually pointed at an officer. The judge sustained an objection at
the time, and cautioned the prosecutor at a bench conference that her argument
was crossing the line on an issue “that’s been very closely scrutinized to begin
with. So I’d like you to really be careful sticking with the facts about the guns,”
noting that both her argument and her demonstration were misleading.




                                        9
                               STATE v. BRAVO, et al.
                                Decision of the Court

¶30           Given the court’s role as the “thirteenth juror” when resolving a
motion for new trial, the court’s findings are supported by the record. See
Hutcherson v. City of Phoenix, 192 Ariz. 51, 55, ¶ 23, 961 P.2d 449, 453 (1998) (quotes
omitted). As a result, we cannot say that the court abused its discretion in
concluding that the prosecutor’s arguments about Bravo’s gun tainted all of the
Defendants and contributed to the necessity for a new trial.

¶31            In granting the motion for new trial, the superior court also
considered the fifteen objections to the prosecutor’s rebuttal argument that were
sustained on various grounds, including misstatement of the evidence. The chart
the State included in its opening brief identifying the evidence at trial supporting
each of the identified arguments is not persuasive. In some cases, the chart
misstates what the prosecutor said that gave rise to the objection; in others, the
chart cites inapposite evidentiary support; and in others, it takes objections out of
context and ignores the court’s explanations, when offered, of why the court found
the arguments objectionable. In all but two instances, which were insignificant,
cited by the judge, the record confirms that the prosecutor misstated or misused
the evidence. Having reviewed the entire record, including the objections to the
prosecutor’s questions and arguments, and mindful of our discretionary review,
we conclude that the court acted within its discretion in sustaining the objections.

¶32            We further conclude that the large number of misstatements and
misuse of evidence, as well as the improper questions and argument, deprived the
Defendants of a fair trial, notwithstanding the superior court’s finding that the
prosecutor did not intentionally engage in misconduct. If the court had found the
conduct was intentional prosecutorial misconduct, double jeopardy would have
prevented a retrial; but it is not necessary to apply the cumulative error doctrine
because it is the impact of the conduct on the jury, rather than the intention of the
prosecutor, that is at issue. See Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d
261, 271-72 (1984) (double jeopardy bars retrial if mistrial was caused by the
prosecutor’s intentional misconduct); cf. State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969
P.2d 1184, 1191 (1998) (cumulative error doctrine is recognized in context of
prosecutorial misconduct because “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.”).4 And although the judge twice
instructed the jury that the attorneys’ arguments were not evidence, and found
that the prosecutor did not intentionally misstate the evidence, the judge did not
abuse his discretion in concluding that the misstatements had a “cumulative
impact on the jury,” because “when objectionable questions or misstatements are

4 Moreover, “[t]he law cannot reward ignorance; there must be a point at which
lawyers are conclusively presumed to know what is proper and what is not.” Pool,
139 Ariz. at 107, 677 P.2d at 270.


                                          10
                            STATE v. BRAVO, et al.
                             Decision of the Court

repeated over and over again,” particularly in rebuttal argument, sustaining
objections and instructing the jury “has a less curative effect.”

                                CONCLUSION

¶33          Based on the foregoing, we affirm the order granting a new trial for
the four Appellees.




                                      :jt

                                       11
