                                 IN THE COURT OF APPEALS
                                     STATE OF ARIZONA
                                       DIVISION TWO


THE STATE OF ARIZONA,                           )           2 CA-CR 2001-0371
                                                )           DEPARTMENT A
                                    Appellee,   )
                                                )           O P I N I ON
                     v.                         )
                                                )
MARCOS ANTONIO HERRERA,                         )
                                                )
                                   Appellant.   )
                                                )


              APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                    Cause No. CR-20003466

                          Honorable Paul S. Banales, Judge Pro Tempore

                                          AFFIRMED


Janet Napolitano, Arizona Attorney General
 By Randall M. Howe and Cynthia A. Ryan                                                 Tucson
                                                                         Attorneys for Appellee

Susan A. Kettlewell, Pima County Public Defender
 By Brian X. Metcalf                                                                     Tucson
                                                                         Attorneys for Appellant


H O W A R D, Judge.


¶1            A jury found defendant/appellant Marcos Herrera guilty of driving under the

influence of intoxicating liquor (DUI) and driving with a blood alcohol concentration (BAC) of

.10 or above. The jury also acquitted Herrera of three counts of child abuse. The trial court
suspended the imposition of sentence and placed Herrera on concurrent two-year terms of

probation. He raises several issues on appeal, none of which merits reversal.

                                        BACKGROUND

¶2             We view the facts and reasonable inferences therefrom in the light most favorable

to sustaining the verdicts. State v. Nihiser, 191 Ar iz. 199, 201, 953 P.2d 1252, 1254 (App.

1997). Officer Bender observed Herrer a driving his car seventy-two miles per hour in a fifty-

mile-per-hour speed zone. 1 After initiating a traffic stop, Bender observed that Herrera had “very

watery eyes” and that a strong odor of air freshener was emanating from the car. Bender asked

Herrera to exit the car to separate him from the air freshener. Once Herrera was outside the car,

Bender noticed a “moderate odor of intoxicants” coming from Herrera’s mouth. Bender then

conducted a horizontal gaze nystagmus (HGN) test on Herrera and saw six out of six possible

signs of impairment. Bender also had Herrera perfor m two field sobriety tests, the walk-and-turn

test and the one-leg-stand test, in which Herrera exhibited additional signs of impairment. Bender

placed Herrer a under arrest, transported him to a police substation, and conducted two breath tests

to determine his BAC. Each of those tests produced a BAC result of .126. Herrera admitted that

he had consumed two beers or, alternatively, “ one big one.”

                                 MOTIONS FOR MISTRIAL

¶3             In testifying about the walk-and-turn and one-leg-stand tests, Bender stated:

“[T]hey have done studies that show a correlating percentage of people, if you see two cues in

each test, you see a cor relating percentage as to how many people are over .10.” Herrera


       1
        The presence of Herrera’s three minor children in the car formed the basis of the child
abuse charges.

                                                 2
objected to this testimony and moved for a mistrial. The trial court found the testimony improper,

but denied Herrera’s motion and offered to give the jury a curative instruction, which Herrera

declined. Later, when asked by the prosecutor about his “view of [Herrera’s] perfor mance” on

the field sobriety tests, Bender testified, “I felt he was impaired to the slightest degree.” Herrera

objected to this testimony and again requested a mistrial. After some discussion, the trial court

denied Herrera’s second motion for a mistrial, struck the objectionable testimony, and gave the

jury a curative instruction. Herr era contends the trial court erred by denying his motions for a

mistrial. We review a trial court’s denial of a motion for a mistrial for a clear abuse of discretion.

State v. Stuard, 176 Ar iz. 589, 601, 863 P.2d 881, 893 (1993).

¶4             “A declaration of a mistrial is the most dramatic remedy for trial er ror and should

be granted only when it appears that justice will be thwarted unless the jury is discharged and a

new trial granted. ” State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). If a

witness makes an inadmissible statement, a trial court “must evaluate the situation and decide if

some remedy short of mistrial will cure the error.” Id. We addr ess Herrera’s motions for mistrial

separately.

¶5             The state’s use of a defendant’s performance on field sobriety tests, such as the

walk-and-turn and one-leg-stand tests, is “ limited to showing a symptom or clue of impairment.”

State ex rel. Hamilton v. Mesa City Court, 165 Ar iz. 514, 517, 799 P.2d 855, 858 (1990). The

state cannot use a defendant’s performance on field sobriety tests as evidence of a BAC above

.10. 2 See id. at 517, 518 n.3, 519; 799 P. 2d at 858, 859 n.3, 860. Consequently, Bender gave


       2
        In contrast, the parties may use HGN test results to “challenge or corroborate” a chemical
analysis of a defendant’s BAC. State ex rel. Hamilton v. Mesa City Court, 165 Ar iz. 514, 517

                                                  3
impermissible testimony that studies have shown a “corr elating percentage” of people who exhibit

two signs of impairment on field sobriety tests and have a BAC above .10. But, for thr ee reasons,

we cannot conclude the trial court erred in denying Herrera’s motion for a mistrial.

¶6              First, Bender did not reveal the correlating percentage that the studies had shown.

For all the jury knew, the correlating percentage could have been extremely low. Thus, Bender’s

impermissible testimony was too indefinite to thwart justice. See Adamson, 136 Ariz. at 262, 665

P.2d at 984. Second, the state introduced two breath test results showing that Herrera had a BAC

of .126. And Herrera had exhibited six out of six signs on the HGN test, which can be used to

corroborate a breath test result.      Hamilton, 165 Ar iz. at 517 n. 2, 799 P.2d at 858 n.2.

Accordingly, to the extent that Bender’s testimony had any tendency to prove a BAC above .10,

it was merely cumulative. Third, the trial court offered to give the jury a curative instruction,

which Herrera rejected. A trial court is in the best position to determine an appropriate remedy

for trial err or that will preserve a defendant’s right to a fair trial. See Adamson, 136 Ar iz. at 262,

665 P. 2d at 984.    Based on the record her e, we cannot conclude the tr ial court abused its

discretion in denying Herr era’s first motion for a mistr ial.

¶7              Bender’s testimony that he believed Herrer a had been “impair ed to the slightest

degree” was also inappropriate. “[O]pinion evidence is usually not permitted on how the jury

should decide the case.” Fuenning v. Superior Court, 139 Ar iz. 590, 605, 680 P.2d 121, 136

(1983); see also Comment, Ariz. R. Evid. 704, 17A A.R. S. When a law enforcement officer in

a DUI case parrots the language of A.R. S. § 28-1381(A)(1), he or she is essentially giving an




n.2, 799 P.2d 855, 858 n. 2 (1990).

                                                   4
opinion that the defendant is guilty. 3 See Fuenning, 139 Ar iz. at 605, 680 P.2d at 136. Because

such an opinion “embr aces all issues” on that particular charge, it is beyond the scope of

permissible opinion testimony. Id. It does not follow, however, that such testimony must always

result in a mistrial.

¶8              Here, the trial court immediately struck Bender’s inappr opriate opinion and gave

the jury a detailed curative instruction. The trial court r epeated that curative instruction at the

close of evidence and also instructed the jury that it was to disregard any stricken testimony.

Additionally, in denying Herrera’s second motion for a mistrial, the trial court expressed its firm

belief that Herrera could still receive a fair trial. Thus, the trial court engaged in the analysis

required by Adamson, 136 Ariz. at 262, 665 P.2d at 984. Based on the trial court’s multiple

remedial efforts and its express conclusion that Herrera would not be deprived of a fair trial, we

cannot conclude the court abused its discretion by denying Herr era’s second motion for a mistrial.

                                    MARITAL PRIVILEGE

¶9              Herrera contends that he was entitled to invoke the marital fact and communication

privilege in A.R. S. § 13-4062 to prevent his wife from testifying and that, ther efore, the trial

court erred in per mitting the state to invoke the child abuse exception in A.R. S. § 13-3620(G) and

call his wife as a witness against him. He asserts that A.R.S. § 13-3623(F)(1) limits the term

“abuse” to the definition contained in A.R.S. § 8-201(2), which requires an actual injury.

Because there were no injur ies in this case, Herrer a argues, the exception to the marital privilege



        3
         Section 28-1381(A)(1), A.R. S., states in pertinent part: “It is unlawful for a person to
drive . . . [w]hile under the influence of intoxicating liquor . . . if the person is impaired to the
slightest degree.” (Emphasis added.)

                                                 5
did not apply. The state responds that, for purposes of the exception to the privilege in § 13-

3620(G), the term “abuse” includes the substantive offense of child abuse. The state further

argues that, because it had charged Herrera with thr ee counts of child abuse under § 13-3623(B),

which does not require an actual injur y, it was per mitted to call Herrer a’s wife under the § 13-

3620(G) exception to the marital privilege.

¶10               Section 13-4062, which defines the marital privilege in criminal cases, states in

pertinent part:

                           A person shall not be examined as a witness in the following
                  cases:

                         1. A husband for or against his wife without her consent,
                  nor a wife for or against her husband without his consent, as to
                  events occurring dur ing the marriage, nor can either, during the
                  marriage or afterwar ds, without consent of the other, be examined
                  as to any communication made by one to the other during the
                  marriage.

Section 13-3620(G) states that the marital privilege “ shall not pertain in any civil or criminal

litigation or administrative proceeding in which a child’s . . . abuse . . . is an issue.”

¶11               Under § 13-3623(B), the offense of child abuse occurs, inter alia, when, “[u]nder

circumstances other than those likely to produce death or serious physical injury to a child, ” a

person “having the car e or custody of a child . . . per mits a child . . . to be placed in a situation

where the person or health of the child . . . is endanger ed.” Section 13-3623(F)(1) states that, for

purposes of that section, “ [a]buse” of a child means “abuse as defined in § 8-201, except for those

acts in the definition that are declared unlawful by another statute of this title.” Finally, § 8-201

limits “abuse” to physical injury or serious emotional damage.



                                                    6
¶12              The issue of the meaning of the term “abuse” in § 13-3620(G), creating an

exception to the marital privilege, is an issue of statutory interpretation that we review de novo.

State v. Wilson, 200 Ar iz. 390, ¶4, 26 P. 3d 1161, ¶4 (App. 2001). We interpret the marital

privilege narrowly because it excludes relevant evidence and impedes the search for the truth.

Blazek v. Superior Court, 177 Ar iz. 535, 537, 869 P.2d 509, 511 (App. 1994); see also State ex

rel. Udall v. Superior Court, 183 Ar iz. 462, 466, 904 P.2d 1286, 1290 (App. 1995) (abrogation

of privileges has “not been narrowly inter preted” ).

¶13              Nothing in the language of § 13-3620(G), which creates an exception to the marital

privilege in cases involving child abuse, expressly limits the meaning of “abuse,” as used in that

section, to the definition of abuse in § 8-201(2). Rather, the language of § 13-3620(G) suggests

a broad scope for the exception to the marital privilege. The statute specifically states that the

exception shall apply in any civil or criminal litigation or administrative proceeding involving

child abuse. Accor dingly, we conclude that the legislature intended the exception to apply to all

forms of child abuse that may be the subject of criminal proceedings. 4 Prosecution for child abuse

under § 13-3623(B) is one such form of child abuse. That remains true even when endangerment,

rather than the infliction of an actual injury, forms the basis for the prosecution.

¶14              That § 13-3623(F)(1) incorporates the definition of abuse in § 8-201(2) does not

change our analysis. 5 Section 13-3623(F) specifically limits the incorporation to that section.



       4
           We need not decide the applicability of the exception in any other context.
       5
        The application of § 13-3623(F)(1) is somewhat uncertain. Section 13-1323(C) uses the
term “abuse” to refer to a situation involving only exposure to dr ug manufacturing, not physical
injury.

                                                  7
Thus, that definition does not affect the meaning of abuse in § 13-3620(G), which creates the

exception to the privilege. Nor does the incorporation of that definition limit the criminal offense

of child abuse to those circumstances that fit within § 8-201(2). Section 13-3623 explicitly

includes as child abuse circumstances in which the child is endangered but not necessarily injured.

It would be incongruous for the marital privilege to apply to some cases under § 13-3623(B) but

not to other cases under the same subsection. Rather, § 13-3623 clearly extends the criminal

offense of child abuse to those situations in which a child is endangered but not actually injured.

Accordingly, the exception to the marital privilege in § 13-3620(G) also extends to situations in

which a child is endangered but not actually injured. Consequently, the trial court did not abuse

its discretion by permitting the state to call Herr era’s wife as a witness.

¶15            Herrera also contends the trial court er red by twice informing the jury that he had

attempted to invoke his marital privilege to prevent the state from calling his wife as a witness

against him. Herrer a did not object to the trial court’s statements below and, therefore, has

waived all but fundamental error. State v. Gendron, 168 Ar iz. 153, 154, 812 P.2d 626, 627

(1991). Fundamental error is error that deprives a defendant of a right essential to his or her

defense and of a fair trial or that goes to the very foundation of the defendant’s theory of the case.

State v. Valenzuela, 194 Ar iz. 404, ¶15, 984 P.2d 12, ¶ 15 (1999).

¶16            The court had listed Herr era’s wife as a prospective witness during jury voir dire.

In his opening statement, Her rera infor med the jury that his wife would testify to certain facts.

Herrera later told the court he had changed his mind, would not call his wife as a witness, and

would invoke the marital privilege. The court then explained to the jury that Herr era’s wife would

not be excluded from the courtroom with the other witnesses because Herr era had invoked the

                                                  8
marital privilege and his wife would not be a witness. Later, after the state requested that she

testify pursuant to the child abuse exception, the trial court changed its ruling and explained to the

jury that Herrera’s wife would in fact be a witness.

¶17            The jury acquitted Herrera on the child abuse charges. As a result, he cannot assert

that the trial court’s statements were fundamental er ror as they r elated to those charges. To the

extent his wife testified about issues relating to the DUI and BAC charges, her testimony was

favorable to Herrera. That favorable testimony sufficiently dispelled any improper inference the

jury might have drawn from Herrer a’s attempt to invoke the marital privilege. Accordingly, we

cannot conclude that the trial court committed fundamental error. That during closing arguments

the prosecutor commented on Her rera’s wife’s potential bias is of no moment. That subject was

a proper one for closing argument. Likewise, that the trial court refused to ask Herrer a’s wife

a juror’s question about Her rera’s dr iving record does not change our conclusion.

                              PROSECUTORIAL MISCONDUCT

¶18            During closing argument, Herrera’s attorney argued that Officer Bender’s

description of Herrera’s perfor mance on the field sobriety tests was unreliable and subjective. In

doing so, counsel specifically mentioned a videotape of Herrera’s field sobriety tests that had not

been introduced into evidence but presumably would have given the jury an objective view of the

tests. Ultimately, counsel stated, “[W]hen you consider the evidence that you have been given,

when you consider the evidence that you haven’t been given, when you apply the natur e of the

investigation that went on . . . you find that Mr. Herrera was not guilty of driving under the

influence that night.” (Emphasis added.) In r ebuttal, the pr osecutor commented, “[H]ad the video

shown anything other than what Officer Bender testified to, [Herrera] would have showed you that

                                                  9
video.”     Herrera contends the prosecutor’s remark amounted to prejudicial misconduct.

Prosecutorial misconduct is reversible error only if “the defendant has been denied a fair trial as

a result of the actions of counsel.” State v. Dumaine, 162 Ariz. 392, 400, 783 P.2d 1184, 1192

(1989).

¶19            “[A]dvocates are ordinar ily given wide latitude in closing argument.” State v.

Leon, 190 Ariz. 159, 162, 945 P.2d 1290, 1293 (1997). It is well settled that a “prosecutor may

properly 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); see also State ex rel. McDougall v. Corcoran,

153 Ariz. 157, 160, 735 P.2d 767, 770 (1987).

¶20            Herrera clearly attacked the reliability of Bender’s observations through the absence

of the videotape. In fact, Herrer a essentially invited the jury to consider the possible contents of

that videotape in his favor. Under these circumstances, the pr osecutor properly argued that

Herrera could have presented the videotape to the jury had it contained exculpatory information.

¶21            Contrary to Herrera’s suggestion, the prosecutor’s remark did not amount to burden

shifting.   The comment merely prevented Herrera from drawing a positive inference from

evidence that he could have presented but did not. See Corcoran, 153 Ariz. at 160, 735 P.2d at

770 (“Such comment is permitted by the well recognized principle that the nonproduction of

evidence may give rise to the inference that it would have been adverse to the party who could

have produced it. ”).

                                     JURY INSTRUCTION



                                                 10
¶22            Herrera lastly contends the trial court impermissibly shifted the burden of proof by

instructing the jury: “Neither side is required to call as witnesses all persons who may have been

present at an event disclosed by the evidence or who may appear to have some knowledge of these

events or to produce all documents or evidence suggested by the evidence. ” Herrer a did not

object to this instruction below and has waived the issue on appeal. See State v. Mann, 188 Ariz.

220, 231, 934 P.2d 784, 795 (1997). But, before we engage in fundamental error analysis, we

must first find error. Id. We will not find reversible error based on a particular jury instruction

“‘unless we can reasonably find that the instructions, when taken as a whole, would mislead the

jurors. ’” State v. Sierra-Cervantes, 201 Ar iz. 459, ¶16, 37 P.3d 432, ¶16 (App. 2001), quoting

State v. Strayhand, 184 Ar iz. 571, 587, 911 P.2d 577, 593 (App. 1995).

¶23            When a defendant challenges a jury instruction, we look to the instructions as a

whole to determine “ whether they adequately reflect the law. ” State v. Rutledge, 197 Ar iz. 389,

¶15, 4 P.3d 444, ¶ 15 (App. 2000). In doing so, “ [w]e look at the language of the instruction[s]

in view of how a reasonable juror could have construed [them]. ” Sierra-Cervantes, 201 Ar iz.

459, ¶ 16, 37 P.3d 432, ¶16.

¶24            In addition to the challenged instruction, the trial court also instructed the jury that

a “plea of not guilty means that the State must prove every par t of the . . . char ges beyond a

reasonable doubt,” and “[t]he law does not require a defendant to prove his or her innocence.”

The trial court then reiterated that Her rera was not “ required to pr esent any evidence,” and “[t]his

means that the State must prove guilt beyond a reasonable doubt.” The trial court further stated,

“This burden rests solely on the state and never shifts throughout trial.” (Emphasis added.) The

trial court then instructed the jury on the meaning of reasonable doubt, concluding with the

                                                  11
statement, “The state must then prove the defendant guilty as charged, which means that the state

must prove each and every element of the offense[s] beyond a reasonable doubt.” Taken as a

whole, a reasonable juror likely would have understood the instructions to mean that, although the

state need not produce every scrap of evidence available, it must produce sufficient evidence to

prove the defendant guilty beyond a reasonable doubt. Thus, the trial court did not shift the

burden of proof to the defendant. Accordingly, we find no error in the instruction.

                                        DISPOSITION

¶25            Herrera’s convictions and placement on probation are affirmed.



                                                 _______________________________________
                                                 JOSEPH W. HOWARD, Judge

CONCURRING:



_______________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge



_______________________________________
M. JAN FLÓREZ, Judge




                                               12
