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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 NATHANIEL BRYAN BEGAY, Appellant.

                             No. 1 CA-CR 15-0743
                               FILED 1-26-2017


          Appeal from the Superior Court in Maricopa County
                     No. CR2014-100673-001 SE
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul Prato
Counsel for Appellant
                            STATE v. BEGAY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco1 delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Chief Judge Michael J. Brown
joined.


O R O Z C O, Judge:

¶1             Nathaniel Bryan Begay appeals his convictions and sentences
for two counts of aggravated driving under the influence of alcohol, Class
4 felonies. Because he has shown no reversible error, we affirm.

                                 BACKGROUND

¶2            The evidence at trial, viewed in the light most favorable to
sustaining the conviction,2 demonstrated that a state trooper stopped Begay
for speeding in excess of 80 miles per hour on the Red Mountain Freeway
near the Dobson Road exit at about 3:00 a.m. on February 24, 2013.

¶3            When Begay handed his driver’s license to the trooper, he told
the trooper that his driver’s license was revoked, and asked if he was going
to jail. After confirming that Begay’s license was revoked, the trooper
administered sobriety tests and Begay exhibited numerous signs of
impairment. The officer arrested Begay, and another officer drew his blood
shortly before 5:00 a.m. Tests revealed a blood alcohol concentration of
.202.

¶4            At trial, a Motor Vehicle Division (“MVD”) official testified
that, on the date of the offense, Begay did not have a valid Arizona driver’s
license. He testified that the MVD had mailed several notices of revocation
and suspension to Begay beginning in November 2011, and Begay had not
undertaken the necessary steps to reinstate his license.

¶5         Begay testified that he had not received any of the notices
from the MVD; he believed his driver’s license was valid; and it was only

1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2     State v. Boozer, 221 Ariz. 601, 601, ¶ 2 (App. 2009).


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                            STATE v. BEGAY
                           Decision of the Court

after the trooper had told him his license was revoked that he repeated what
the trooper had said and asked if he was going to jail. He further testified
that, from 2010 through 2013, he spent a lot of time outside of Arizona
working as a welder. He testified that his employers performed
background checks, and he was required to provide up-to-date certification
on heavy equipment vehicles “as well as provide [] information with our
license.” He testified he never learned of any problems regarding his
license during any of the background checks.

¶6            The jury convicted Begay as charged, and found that he was
on probation for a felony conviction at the time of the offenses. The court
found the existence of four prior felony convictions, two of which were
historical prior felony convictions, and sentenced Begay to concurrent,
presumptive ten-year prison terms with 183 days of presentence
incarceration credit. This court has jurisdiction over Begay’s timely appeal
pursuant to Article VI, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031 and
-4033.A.1 (2016).3

                                  DISCUSSION

       A.     Juror Questions

¶7            Begay argues that the superior court abused its discretion in
refusing to ask Begay the following questions submitted by a juror: “Did
the employers[] doing background checks require him to travel while doing
the jobs assigned?” and “Was a valid driver[‘]s license required for
employment on any jobs from 2011-2013?”

¶8            Over defense counsel’s objections, the court found that
neither question was relevant to whether Begay knew or should have
known his license was revoked, in part because the time period mostly
predated the date of the offense, February 24, 2013. The court found the
question as to whether his employers required a valid driver’s license
would call for hearsay, stating

       it would call for him to talk about documents, information
       that he had gotten from his employers, which would be
       hearsay, and he would be using them to prove the truth of the
       matter asserted, whether or not suggesting that there had
       been whatever type of background checks, which he

3      Absent material revisions after the relevant dates, statutes and rules
cited refer to the current version unless otherwise indicated.


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                             STATE v. BEGAY
                            Decision of the Court

       personally, even if he provided information, he cannot
       himself verify whether they were conducted, whether they
       were completed, if there was ever any MVD check to see if a
       license was in fact valid. . . .

The court also said it would be “looking at it again . . . he’s already testified
regarding background checks.”

¶9              Evidence is relevant if “it has any tendency to make a fact
more or less probable than it would be without the evidence,” and “the fact
is of consequence in determining the action.” Ariz. R. Evid. 401. Whether
Begay’s employers required him to travel was of no probative value on any
issue at trial, and specifically had no probative value on whether he knew
or should have known his driver’s license was not valid on the date of the
offense, as necessary for conviction of aggravated driving under the
influence. See A.R.S. § 28-1383.A.1; State v. Agee, 181 Ariz. 58, 61 (App.
1994). Whether his employers required him to have a valid driver’s license
in the years leading up to these offenses also had little, if any, probative
value on whether he knew or should have known his driver’s license was
not valid at the time of the offense. This is because Begay could have either
believed he had a valid driver’s license, or have known that it was not valid
but taken a conscious risk both to travel without one and that his employers
would not thoroughly investigate and discover its lack of validity.

¶10           Moreover, the question of whether Begay’s employers
required a valid driver’s license would have elicited inadmissible hearsay.
See Ariz. R. Evid. 801(c). And even if admissible as an exception to the rule
against hearsay, these and other issues would have been cumulative of
Begay’s testimony that his employers required him to provide information
about his license, and he did not learn of any problems after they conducted
background checks, and appropriately precluded on that basis as well. See
Ariz. R. Evid. 403. On this record, the court did not abuse its discretion in
refusing to ask this juror’s questions. See State v. Ellison, 213 Ariz. 116, 129,
¶ 42 (2006) (holding that evidentiary rulings by the trial court are generally
reviewed for an abuse of discretion.)

       B.     Prosecutorial Vouching

¶11           Begay also argues that his convictions must be reversed
because the prosecutor engaged in improper vouching by arguing in
rebuttal closing: “So let’s talk about when Officer [R.] took the stand. He
has no bias. He has no prejudice. He was doing his job. He was looking out
for people who were speeding, potentially impaired motorists. He has



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                             STATE v. BEGAY
                            Decision of the Court

nothing to gain by not stating the facts that happened that night. You get to
determine, if he seemed reliable to you when he took the stand.”

¶12           To determine whether a prosecutor’s remarks are improper,
we consider “(1) whether the remarks called to the attention of the jurors
matters that they would not be justified in considering in determining their
verdict, and (2) the probability that the jurors, under the circumstances of
the particular case, were influenced by the remarks.” State v. Jones, 197 Ariz.
290, 305, ¶ 37 (2000) (citation omitted). There are “two forms of
impermissible prosecutorial vouching: (1) where the prosecutor places the
prestige of the government behind its witness; [and] (2) where the
prosecutor suggests that information not presented to the jury supports the
witness’s testimony.” State v. King, 180 Ariz. 268, 276-77 (1994) (citation
omitted). “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 (2007) (citation and internal
punctuation omitted). Because Begay did not object to the argument at trial,
we review for fundamental error resulting in prejudice. See State v.
Henderson, 210 Ariz. 561, 568, ¶ 22 (2005).

¶13           Begay has failed to meet his burden for reversal on
fundamental error review.          In considering whether argument is
misconduct, this court “looks at the context in which the statements were
made as well as the entire record and to the totality of the circumstances.”
State v. Nelson, 229 Ariz. 180, 189, ¶ 39 (2012) (citation and internal
punctuation omitted). In this case, both before and after making the
remarks challenged on appeal, the prosecutor emphasized that the jury was
the sole determinant of credibility. The prosecutor also followed the
remarks by outlining the evidence that supported the trooper’s testimony.
In this context, the remarks arguably did not constitute impermissible
vouching. See State v. Corona, 188 Ariz. 85, 91 (App. 1997) (holding
prosecutor’s characterization of the witnesses as “truthful” did not
constitute vouching because “the prosecutor made clear that it was for the
jury to determine the credibility of the witnesses and her characterization
of the witnesses as truthful was sufficiently linked to the evidence.”)
(internal quotation omitted). Moreover, even if the remarks about the
trooper’s ostensible lack of prejudice and bias were improper, the jury was
instructed that counsel’s arguments were not evidence, and it should
consider only the evidence admitted at trial in reaching its verdicts. Absent
any indication in this record that the jury failed to heed this instruction, we
presume the jury followed it. See State v. Newell, 212 Ariz. 389, 403, ¶ 68
(2006). Finally, Begay has failed to show that these remarks “so infected the


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                           STATE v. BEGAY
                          Decision of the Court

trial with unfairness as to make the resulting conviction a denial of due
process,” as necessary for reversal. Morris, 215 Ariz. at 335, ¶ 46.

                             CONCLUSION

¶14          For the foregoing reasons, we affirm Begay’s convictions and
sentences.




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




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