                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
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                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   REUBEN JOSEPH JUAREZ, Appellant.

                             No. 1 CA-CR 16-0127
                               FILED 12-20-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-450279-001
              The Honorable George H. Foster, Jr., Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
                           STATE v. JUAREZ
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Acting Presiding Judge Samuel A. Thumma and Judge Jennifer Campbell1
joined.


D O W N I E, Judge:

¶1           Reuben Joseph Juarez appeals his conviction and sentence
for unlawful flight from law enforcement vehicle. For the following
reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Goodyear Police Officer Seymore followed a vehicle that
committed traffic infractions. He ran the license plate of the vehicle and
learned that it was registered to Juarez. Officer Seymore activated the
patrol car’s lights and sirens but discontinued his pursuit “for policy
reasons” when the vehicle failed to stop. The officer positioned himself in
an area he believed the car might pass, and when it did so, he again
followed until the driver ran a red light and it became “too dangerous” to
continue the pursuit. Although Officer Seymore did not make personal
contact with the driver, he identified him as Juarez based on an Arizona
Motor Vehicle Department (“MVD”) photograph.

¶3            Juarez was charged with one count of unlawful flight from
law enforcement vehicle, a class 5 felony. A jury found him guilty of the
charged offense. After the superior court suspended his sentence, placed
him on three years of standard probation, including 30 days in jail, Juarez
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) sections 13-4031 and -4033.




1      The Honorable Jennifer Campbell, Judge of the Arizona Superior
Court, has been authorized to sit in this matter pursuant to Article VI,
Section 3 of the Arizona Constitution.



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                            STATE v. JUAREZ
                           Decision of the Court

                              DISCUSSION

¶4            Juarez first contends he is entitled to a new trial because
Officer Seymore testified at trial that he reviewed a database that included
MVD photos and booking photos. The following exchange occurred
during the officer’s direct examination:

      Q. . . . You said you were able to ID the driver. And by
      doing that were you able to pull up an MVD photo of the
      defendant to do that?

      A. Yes.

      Q. And what did that – what person did that come back to?

      A. So like I said earlier, I ran the plate, came back the
      registered owner to a Rueben Juarez. The gentleman I saw,
      which I described in my report and over the radio I believe,
      was Hispanic male, short or no hair wearing a white T-shirt.

      After we ended everything, I pulled up LE Web, which is
      our access to MVD photos and booking photos as well.
      Booking photos are photos for people that have been
      charged with a crime and booked into the Maricopa County
      jail. On there I was able to see a photo of Mr. Juarez which
      matched the driver of the vehicle.

¶5             Because Juarez did not object to Officer Seymore’s
testimony, we review for fundamental error only. See State v. Henderson,
210 Ariz. 561, 567, ¶ 19 (2005). “To prevail under this standard of review,
a defendant must establish both that fundamental error exists and that the
error in his case caused him prejudice.” Id. at ¶ 20. Fundamental error is
“error going to the foundation of the case, error that takes from the
defendant a right essential to his defense, and error of such magnitude
that the defendant could not possibly have received a fair trial.” Id. at
¶ 19.

¶6           Officer Seymore testified unequivocally that he identified
Juarez from an MVD photo. Although he explained that the database he
used includes both MVD photos and booking photos, he did not state that
Juarez has a booking photo and did not state or imply that Juarez has a
criminal history. Similarly, in his opening statement and closing
argument, the prosecutor told jurors that Juarez had been identified from
an MVD photo, stating:


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                             STATE v. JUAREZ
                            Decision of the Court

            Officer Seymore pulls up the registration for that car,
             pulls up a photograph of the defendant and he
             identifies . . . the registered owner of the car as the
             defendant, as the person he saw driving the car on
             that day. . . . The car was registered to the defendant,
             pulled up the defendant’s photo with MVD and saw
             that the defendant was the one that had chosen to
             flee from him.

            You heard Officer Seymore talk about how he pulled
             up the photos -- driver’s license photo for that person
             that it was connected to. The person’s name, the
             registered owner was a Reuben Juarez and he
             identified Reuben Juarez as the driver of the car.

            Officer Seymore pulled up the MVD photo of the
             registered owner of the car and based off of that
             photo, which only goes to one person . . . he
             identified Reuben Juarez as the driver of the car.

¶7             The cases Juarez relies on are distinguishable, involving trial
testimony or evidence about a defendant’s criminal history. See, e.g., State
v. Jacobs, 94 Ariz. 211, 212 (1963) (officer testified that a “mug shot” of the
defendant was shown to witnesses); State v. Kellington, 93 Ariz. 396, 397
(1963) (trial testimony that the defendant was an “ex-convict”). Here,
Officer Seymore’s fleeting reference to a database that includes both MVD
photos and booking photos, while testifying he relied on an MVD photo,
did not constitute fundamental error resulting in prejudice.

¶8            Juarez next contends he is entitled to a new trial due to
prosecutorial misconduct. “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).

¶9             Juarez first argues the prosecutor engaged in misconduct by
arguing that his brother, B.J., was a “lying felon who is biased for his
brother.” Before cross-examining B.J., the prosecutor asked for and
received the trial court’s permission to impeach B.J. because, when asked
on direct examination how long he had lived with Juarez, B.J. responded,
“five years,” despite being in prison for some of that time. Juarez did not
object to this request. During cross-examination, again without objection,


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                             STATE v. JUAREZ
                            Decision of the Court

the prosecutor unsuccessfully attempted to get B.J. to concede he had lied.
On redirect, defense counsel clarified that B.J. had lived with Juarez both
before and after B.J.’s time in prison

¶10            “The criteria for determining whether remarks by a
prosecutor require reversal are (1) whether the prosecutor’s actions called
jurors’ attention to matters the jury was not justified in considering in
determining its verdict and (2) the probability that the jurors were in fact
influenced by the remarks.” State v. Armstrong, 208 Ariz. 345, 357, ¶ 61
(2004). Here, B.J.’s felony record was elicited by defense counsel during
direct examination. And the superior court could reasonably conclude
that B.J.’s avowal he had lived with Juarez for five years opened the door
to cross-examination regarding the accuracy of that claim. Cf. Pool v.
Superior Court, 139 Ariz. 98, 103 (1984) (“[W]here one party injects
improper or irrelevant evidence or argument, the ‘door is open,’ and the
other party may have a right to retaliate by responding with comments or
evidence on the same subject.”). The extent of cross-examination to be
permitted is within the discretion of the trial judge and will not be
disturbed on appeal unless that discretion has clearly been abused. State
v. Zuck, 134 Ariz. 509, 513 (1982). No such abuse is present here.

¶11            The next alleged act of misconduct relates to the State’s
closing argument references to Buffalo Wild Wings — an establishment
near the site of the initial traffic violation. The prosecutor argued B.J. had
testified Juarez was “a big football fan” and continued: the “State submits
the defendant was at Buffalo Wild Wings watching the game.” But even
assuming this argument was neither a reasonable inference from the
evidence nor within jurors’ common knowledge, Juarez has not
established that the remarks “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Morris, 215 Ariz.
at 335, ¶ 46; see also State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (to require
reversal, prosecutorial misconduct must be so pronounced and persistent
that it permeated the entire trial). The same is true of Juarez’s challenge to
the prosecutor’s closing argument references to a “cartoon dog barking
distractions” — suggesting the defense was focusing on irrelevant
matters. See State v. West, 176 Ariz. 432, 446 (1993) (prosecutor’s closing
argument that characterized defense questions as a “ploy,” “outrageous,”
and “improper” was “well within the wide latitude afforded” during
closing argument) overruled on other grounds by State v. Rodriguez, 192 Ariz.
58, 64 n. 7, ¶ 30 (1998); State v. Amaya-Ruiz, 166 Ariz. 152, 171 (1990)
(prosecutor’s characterization of defense as a “smoke screen” not
improper).



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                         STATE v. JUAREZ
                        Decision of the Court

                           CONCLUSION

¶12         For the foregoing reasons, we affirm Juarez’s conviction and
sentence.




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




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