                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   JAMES ANDREW WILSON, Appellant.

                             No. 1 CA-CR 13-0075
                              FILED 4-17-2014


           Appeal from the Superior Court in Maricopa County
                      No. CR2012-126450-001 DT
                 The Honorable Harriett Chavez, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Willam Scott Simon
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Peg Green
Counsel for Appellant
                            STATE v. WILSON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.


H O W E, Judge:

¶1           Wilson appeals his convictions and sentences for conducting
a chop shop, a class 2 felony, and theft of means of transportation, a class
3 felony. For the following reasons, we affirm.

¶2           Police responding to a signal emitted from a 2008 Chrysler
PT Cruiser stolen a day earlier discovered Wilson and his codefendant
standing over a shell of the vehicle inside a trailer parked on a residential
driveway. A police officer saw Wilson attempt to remove a panel from
the vehicle. An engine and other vehicle parts sat in pools of oil and
grease on the floor of the garage at the head of the driveway. Wilson had
grease on his hands, under his fingernails, and on his clothes. The jury
convicted Wilson of the charged offenses, and the court sentenced him to
mitigated concurrent prison terms, the longest of which was four years.

¶3            Wilson argues that the prosecutor engaged in repeated
misconduct in closing arguments by commenting on Wilson’s failure to
testify and to call witnesses in his defense, by referring to matters not in
evidence, and by vouching. “Prosecutorial misconduct ‘is not merely the
result of 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 and which he pursues
for any improper purpose with indifference to a significant resulting
danger of mistrial.’” State v. Aguilar, 217 Ariz. 235, 238-39 ¶ 11, 172 P.3d
423, 426-27 (App. 2007) (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09,
677 P.2d 261, 271-72 (1984)). To determine whether a prosecutor’s
remarks are improper, we consider whether the remarks called the jurors’
attention to matters they would not be justified in considering, and the
probability, under the circumstances, that the jurors were influenced by
the remarks. State v. Jones, 197 Ariz. 290, 305 ¶ 37, 4 P.3d 345, 360 (2000).
“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, 160 P.3d 203, 214 (2007) (internal


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                            STATE v. WILSON
                           Decision of the Court

citation omitted). “The misconduct must be so pronounced and persistent
that it permeates the entire atmosphere of the trial.” Id. (internal citation
omitted).

¶4            Wilson objected at trial to only two instances of alleged
prosecutorial misconduct. In the first instance, the court overruled his
objection on grounds of lack of evidentiary support to the prosecutor’s
comment that “Mr. Wilson was living in the house when this was done.”
Although the evidence did not support the prosecutor’s remark, the
prosecutor emphasized both before and after this isolated comment that
defense counsel’s focus on the absence of proof of who owned or rented
the house was a red herring. Taken in its entirety, the prosecutor’s
argument did not make the objectionable remark intentionally for an
improper purpose, but inadvertently misspoke, and thus did not engage
in misconduct. Aguilar, 217 Ariz. at 238-39 ¶ 11, 172 P.3d at 426-27.
Moreover, in context and given the superior court’s instruction that the
lawyers’ arguments were not evidence, the remark was unlikely to have
influenced the jurors, necessary to show the prejudice required for
reversal. See Jones, 197 Ariz. at 305 ¶ 37, 4 P.3d at 360.

¶5           In the second instance, the court sustained Wilson’s
objection on grounds of vouching to the prosecutor’s rhetorical question
about whether the police officers who testified would have risked their
jobs by lying on the stand. Along with sustaining the objection, the court
previously had instructed the jury to disregard testimony (and by
implication, argument) to which it sustained an objection. In addition, the
court admonished counsel in front of the jury “to be careful in your
comments.” Under these circumstances, we presume the jury disregarded
this comment. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443
(1996).

¶6            Wilson did not object at trial to the other claimed instances
of prosecutorial misconduct, limiting appellate review to fundamental
error resulting in prejudice. See State v. Henderson, 210 Ariz. 561, 568 ¶ 22,
115 P.3d 601, 608 (2005). Wilson accordingly bears the burden of
establishing that the prosecutor engaged in misconduct, that the
misconduct deprived him of a fair trial, and that the misconduct caused
him prejudice. Id. at 568 ¶¶ 23, 26, 115 P.3d at 608. Wilson has not met his
burden.

¶7            This Court is not persuaded by Wilson’s argument that the
prosecutor engaged in misconduct by commenting on Wilson’s failure to
testify or to call witnesses in his defense. A “prosecutor may properly


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                             STATE v. WILSON
                            Decision of the Court

comment upon the defendant’s failure to present exculpatory evidence,
so long as the comment is not phrased to call attention to the defendant’s
own failure to testify.” State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185,
1189 (1985). This Court is not persuaded that the prosecutor improperly
called attention to Wilson’s failure to testify by arguing that the
“defendants are never gonna get on the stand and say, ‘I did it. You got
me.’ They’re going to poke holes in whatever evidence the State has.” In
context, the prosecutor’s comment on its face was not phrased to call
attention to Wilson’s failure to testify, but was a rhetorical flourish. See id.
Nor is this Court persuaded that the prosecutor engaged in misconduct
by arguing that “if the defense feels somehow the State is hiding or
obscuring evidence, the defense is free to subpoena and bring in to testify
anyone they choose.” The prosecutor’s comment responded to Wilson’s
argument and addressed Wilson’s failure to present a witness who might
have supported his argument that he and his codefendant had no reason
to know the vehicle had been stolen. The comment accordingly was not
improper. See id.

¶8            Finally, this Court is not persuaded that, in arguing that
Wilson should have known the vehicle was stolen, the prosecutor
deliberately misstated the evidence by his brief reference to the failure of
police to find the vehicle’s title. The absence of a title could reasonably
have been inferred from the extensive testimony on the other items found
at the scene or on the defendants, which did not include the vehicle’s title.
The reference to the missing title accordingly did not rise to the level of
misconduct. See Aguilar, 217 Ariz. at 238-39 ¶ 11, 172 P.3d at 426-27.

¶9            In short, on this record, we conclude that the prosecutor did
not engage in misconduct, much less misconduct that permeated the
entire atmosphere of the trial or “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” See Morris, 215
Ariz. at 335 ¶ 46, 160 P.3d at 214.

¶10           Wilson’s convictions and sentences are affirmed.




                                    :MJT




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