                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 ELIAS DEWAYNE JOHNSON, Appellant.

                             No. 1 CA-CR 15-0351
                              FILED 8-25-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-004934-001
            The Honorable Jerry Bernstein, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

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



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.


P O R T L E Y, Judge:

¶1            Elias Dewayne Johnson appeals his conviction and sentence
for burglary in the third degree. For the following reasons, we affirm.

              FACTS1 AND PROCEDURAL HISTORY

¶2             In an effort to combat bicycle thefts, police left a “bait bike”
(bike) in the back of an unattended city-owned pickup truck in downtown
Phoenix. While observing the truck from across the street, Officer
Colebeck observed a black male wearing a black jacket with white striped
sleeves take the bike out of the truck and ride away. The officer radioed
Officer Kimble, who was nearby in a patrol vehicle, and provided a
description of the suspect.

¶3           Officer Kimble observed the suspect, who was later
identified to be Johnson, riding the bike. The officer, with Officer
Colebeck observing, stopped and arrested Johnson. When asked where he
had found the bike, Johnson said he found it abandoned on the ground,
and demanded that it be returned to him upon his release.

¶4            Johnson was charged with burglary in the third degree, a
class 4 felony. At trial, he testified he “was just walking” when he was
approached by police officers and arrested for stealing a bike. He denied
taking “any bicycle that evening.”

¶5          The jury found Johnson guilty as charged.2 The State later
proved Johnson had six prior felony convictions from Colorado. Johnson

1 We view the facts in the light most favorable to upholding the verdicts
and resolve all reasonable inferences against the defendant. State v.
Valencia, 186 Ariz. 493, 495, 924 P.2d 497, 499 (App. 1996).
2 The jury rejected the State’s aggravating factor that Johnson committed

the offense as consideration for the receipt of or in the expectation of
receiving pecuniary value.



                                      2
                           STATE v. JOHNSON
                           Decision of the Court

was sentenced to an eight-year prison term as a category 3 repetitive
offender. Johnson timely appealed and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).3

                            DISCUSSION

¶6            Johnson raises three issues on appeal, two of which we
address in this decision.4 Specifically, he first argues it was fundamental
error for the State to elicit testimony from a police officer that he did not
believe Johnson’s statements at the scene. Second, he contends there was
prosecutorial misconduct warranting reversing his conviction and
sentence.

I.     Opinion Testimony Regarding Johnson’s Truthfulness

¶7             On redirect examination, Officer Kimble testified, in relevant
part, as follows:

       Q. Now, [defense counsel] mentioned that the defendant
       never admitted to you that he stole the bike; do you
       remember that?

       A. Yes.

       ...

       Q. Even though the defendant didn’t tell you that he
       committed the crime, did you find the defendant’s
       statements to you credible?

       ...

       A. No, I did not.

       Q. And why didn’t you find the defendant’s statements to
       you credible?



3We cite the current version of the statute unless otherwise noted.
4 In a separate opinion filed contemporaneously with this memorandum
decision, we address Johnson’s third issue of whether it was fundamental
error to sentence him as a repeat offender.



                                     3
                            STATE v. JOHNSON
                            Decision of the Court

       A. Based upon the fact that Officer Colebeck observed him
       remove the bike from the vehicle, and the fact that he was in
       possession of the vehicle. Of all things that occurred within
       moments of me taking him into custody, I felt that was not
       credible.

¶8           Johnson argues it was fundamental error to allow Officer
Kimble to testify on redirect examination that Johnson’s explanation at the
time he was arrested was not credible. Johnson contends the testimony
amounted to an improper opinion and comment on his truthfulness. The
State concedes error, but argues the error does not rise to the level of
fundamental reversible error.

¶9              To obtain relief under fundamental error review, Johnson
has the burden to show that error occurred, the error was fundamental,
and that he was prejudiced thereby. See State v. Henderson, 210 Ariz. 561,
567, ¶ 20, 115 P.3d 601, 607 (2005). Fundamental error is error that “goes
to the foundation of his case, takes away a right that is essential to his
defense, and is of such magnitude that he could not have received a fair
trial.” Id. at 568, ¶ 24, 115 P.3d at 608. The showing required to establish
prejudice “differs from case to case,” id. at ¶ 26. But a defendant “must
show that a reasonable jury, applying the appropriate standard of proof,
could have reached a different result,” Id. at 569, ¶ 27, 115 P.3d at 609. We
will not presume prejudice where none appears affirmatively in the
record. State v. Trostle, 191 Ariz. 4, 13, 951 P.2d 869, 878 (1997); see State v.
Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d 701, 705 (App. 2006).

¶10           We agree with the State’s concession on appeal that the
officer’s opinion about Johnson’s veracity at the time of the arrest was
inadmissible. See State v. Martinez, 230 Ariz. 382, 385, ¶ 11, 284 P.3d 893,
896 (App. 2012) (“Arizona prohibits testimony from an expert or a lay
witness that opines as to the truthfulness of a statement by another
witness.”) (citation omitted). The erroneous admission of the testimony,
however, did not go to the foundation of Johnson’s defense, take away a
right essential to his defense, or otherwise deny him a fair trial.

¶11            Although Johnson told the officer he found the bike on the
ground, his defense at trial was that he never possessed the bike. And the
officer’s testimony on redirect occurred after the officer had been cross-
examined about the allegedly deficient police investigation; the officer did
not collect DNA or fingerprints from the bike, did not produce video
documentation of the incident, and did not record Johnson’s statements at
the scene. As a result, even though the questions and answers on redirect


                                       4
                            STATE v. JOHNSON
                            Decision of the Court

were improper, given Johnson’s defense and the other evidence, we find
that testimony about Johnson’s veracity is not fundamental error.

¶12            We also find that Johnson has not shown prejudice resulting
from Officer Kimble’s answers to the questions. Johnson offered two
contradictory explanations for possessing (or not) the bike – one to the
officer and another to the jury. The officer’s opinion testimony was
unnecessary for the jury to conclude that Johnson lied either at the time of
his arrest or when testifying, see State v. Boggs, 218 Ariz. 325, 335, ¶ 42, 185
P.3d 111, 121 (2008).5

¶13           Further, absent Officer Kimble’s opinion testimony, it is
doubtful a reasonable jury would have reached a different result. The
record establishes Officer Kimble apprehended Johnson in possession of
the bike almost immediately after he was observed taking it out of the
truck. As a result, Johnson has failed to establish prejudice resulting from
the admission of Officer Kimble’s testimony. Consequently, the improper
testimony is not reversible error that requires a new trial.

II.    Prosecutorial Misconduct

¶14            Johnson also argues two acts of prosecutorial misconduct
warrant a new trial. He first contends the prosecutor engaged in
prosecutorial misconduct by eliciting Officer Kimble’s inadmissible
opinion. He also argues the prosecutor vouched for both officers’
testimony during the State’s rebuttal closing argument, and denied him a
fair trial. Because Johnson did not object at the time of the question or
during the rebuttal argument, we review his argument for fundamental
error. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. “Before we
may engage in a fundamental error analysis, however, we must first find
that the trial court committed some error.” State v. Lavers, 168 Ariz. 376,
385, 814 P.2d 333, 342 (1991).

                                           A

¶15           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.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

5 The court properly instructed the jury that it had to find the facts from all
of the evidence produced; had to determine the voluntariness of Johnson’s
statements, and had to determine the credibility of the witnesses.



                                       5
                           STATE v. JOHNSON
                           Decision of the Court

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.” State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222,
1230 (1997) (citations omitted). A defendant must demonstrate that “(1)
misconduct is indeed present; and (2) a reasonable likelihood exists that
the misconduct could have affected the jury’s verdict[.]” State v.
Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004) (citations
omitted).

¶16            The prosecutor’s question to Officer Kimble about Johnson’s
veracity, as noted, ¶ 10, supra, was clearly improper. However, asking the
question did not rise to the level of professional misconduct because
nothing in the record suggests the prosecutor asked the question to elicit
the testimony knowing it was improper. See Pool v. Superior Court, 139
Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984) (prosecutorial misconduct is
not merely “legal error, negligence, mistake, or insignificant impropriety,
but, taken as a whole, amounts to intentional conduct which the
prosecutor knows to be improper and prejudicial.”). Moreover, the State
did not refer to the officer’s answer during closing arguments.
Consequently, and given that the question and answer did not result in an
unfair trial, we find no prosecutorial misconduct warranting a new trial.

                                     B

¶17            Impermissible vouching occurs: (1) when the prosecutor
places the prestige of the government behind its witnesses, and (2) when
the prosecutor suggests that information not presented to the jury
supports the witness’s testimony. State v. Doerr, 193 Ariz. 56, 62, ¶ 24, 969
P.2d 1168, 1174 (1998) (citation omitted). The first type of vouching
consists of personal assurances of a witness’s truthfulness; the second
consists of remarks that bolster a witness’s credibility by references to
matters outside the record. State v. Dunlap, 187 Ariz. 441, 462, 930 P.2d
518, 539 (App. 1996) (citation omitted).

¶18             Johnson contends the prosecutor committed the first form of
vouching by stating during rebuttal argument: “The truth is what the
officers testified to. They were under oath. They had to tell you the truth.
They had to tell you that this is what happened; this is what I observed.”
The prosecutor’s statements do not amount to impermissible vouching
because they are not the prosecutor’s personal assurance of the officers’
veracity.




                                     6
                            STATE v. JOHNSON
                            Decision of the Court

¶19            However, even if the challenged statements could be
deemed as a personal assurance of the officers’ credibility, the statements
were proper comments on the evidence. “Wide latitude is given in closing
arguments and counsel may comment on the evidence and argue all
reasonable inferences therefrom.” State v. Amaya–Ruiz, 166 Ariz. 152, 171,
800 P.2d 1260, 1279 (1990) (citation omitted). When a prosecutor’s
characterization of a witness as truthful is “sufficiently linked to the
evidence,” it is not deemed to be vouching, even if, out of context, it might
be interpreted as such. See State v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356,
1362 (App. 1997); see also State v. Lee, 185 Ariz. 549, 554, 917 P.2d 692, 697
(1996) (“she’s been, I think, honest” and “I think he was an honest man”
not improper vouching viewed in context of overall closing argument).

¶20          The purported vouching occurred during the following
rebuttal argument:

       Ladies and gentlemen, what we’ve heard is that the Phoenix
       Police Department somehow--because their investigation
       was--they didn’t do photographs and they didn’t do DNA,
       that somehow that means that the State hasn’t met its
       burden. Ladies and gentlemen, you need to focus on the truth.
       Focus on the evidence that you’ve had. Just because you took
       your kids last week to school and dropped them off and it
       wasn’t photographed, it wasn’t videotaped, there wasn’t
       DNA to document you opening the door of the car, if you
       come in and testify, does that mean it didn’t happen? Does
       that mean that it’s not the truth?

       The truth is what the officers testified to. They were under oath.
       They had to tell you the truth. They had to tell you that this is
       what happened; this is what I observed. Now, focusing on what
       the police didn’t do doesn’t take away from the truth. It doesn’t
       take--just because there were no photographs doesn’t mean
       the defendant did not do these things that he’s been accused
       of. It doesn’t mean that he didn’t, with the intent to commit a
       felony, enter or remain inside the truck. That’s the sole question
       before this jury.

       And if you want to talk about credibility--you want to attack
       the credibility of these officers, let’s talk about [Johnson]’s
       credibility. Making two stories up in front of you after he
       took the stand, a convicted felon nonetheless. Whose
       credibility do you want to believe? Some guy who, for the first



                                       7
                           STATE v. JOHNSON
                           Decision of the Court

      time today, made up a story about how he wasn’t even on the bike,
      even though two officers testified that what they saw matches the
      description of the person who was riding the bike but then arrested
      seconds later by police. If that were true, if [Johnson] was
      never on the bike, then these officers would have to be
      making it up. That’s what the defense wants to say. This
      was all a big misunderstanding, that the police officers got
      the wrong person. They arrested the wrong person, even
      though they watched it with their own eyes. Does that make
      any sense to you? Is that reasonable doubt?

      ...

      They even tried to say that somehow they tried--this was
      one big conspiracy, that the officers were out to get
      somebody, that they needed to get a bust because this is the
      bait bike program. Really? Really? Is that--do you think
      that’s reasonable to say that? It’s not reasonable. What
      benefit do they have arresting innocent people off the street
      when they’re not even on the bike? Why would they make
      up a story? What motivation has been presented, or
      questioned even, of the officers to suggest that? None.
      Absolutely none. But yet, the defense wants to come in here
      and say that to you, that somehow this was a conspiracy for
      the officers to get somebody because they wanted a bust.
      Does that make any sense? That’s not reasonable, ladies and
      gentlemen, not reasonable whatsoever.

      [Johnson] has no credibility. He got up on the stand there and told
      you a second story, which he told police. He’s a convicted felon.
      You can’t trust or believe what he told you. And that’s what their
      defense is resting upon, [Johnson]’s testimony.

(Emphasis added.)

¶21           The quoted rebuttal argument demonstrates that the
prosecutor was addressing Johnson’s closing arguments and the
motivations that underlie the inconsistencies between his and the officers’
testimony in an attempt to persuade the jury to believe the officers, not
Johnson. The prosecutor’s comments regarding the officers’ truthful
testimony were linked to the evidence; namely, Johnson’s conflicting
stories and his status as a convicted felon. As a result, the statements do
not rise to impermissible vouching, and no error, fundamental or
otherwise, occurred.


                                      8
                           STATE v. JOHNSON
                           Decision of the Court

¶22            Because we conclude there was no prosecutorial misconduct
as argued on appeal, there is no basis for Johnson’s contention that the
cumulative effect of the “misconduct” requires reversal. See State v.
Bocharski, 218 Ariz. 476, 492, ¶ 75, 189 P.3d 403, 419 (2008) (“Absent any
finding of misconduct, there can be no cumulative effect of misconduct
sufficient to permeate the entire atmosphere of the trial with unfairness.”).

                            CONCLUSION

¶23          Johnson’s conviction and sentence are affirmed.




                         Amy M. Wood • Clerk of the court
                         FILED: AA




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