STATE v. KIRTLEY

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) RICHARD JAMES KIRTLEY, ) ) Appellant. ) ) DIVISION ONE FILED: 4/23/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 11-0357 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-180683-001 The Honorable Cari A. Harrison, Judge The Honorable Samuel A. Thumma, Judge The Honorable Sally S. Duncan, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix Richard James Kirtley Appellant W I N T H R O P, Chief Judge Yuma ¶1 Richard convictions (crack James sentences and Kirtley for cocaine) for (methamphetamine), paraphernalia. use ( Appellant ) possession sale, of use marijuana, Appellant s counsel of of appeals narcotic drugs dangerous and possession has filed a his drugs of drug brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant s counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). This court supplemental raising granted brief numerous in Appellant the propria issues. He opportunity persona, has also and he raised to has file done several a so, issues through counsel that we address. ¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (West 2013), 1 13-4031, and 13-4033(A). Finding no reversible error, we affirm. 1 We cite the current Westlaw version of the applicable statutes because no revisions material to this decision have occurred since the relevant date. 2 I. ¶3 FACTS AND PROCEDURAL HISTORY 2 On January 6, 2009, a grand jury issued an indictment, charging Appellant with Count I, possession of a narcotic drug (cocaine) for sale, a class two felony, in violation of A.R.S. § 13-3408(A)(2); Count II, possession or use of a dangerous drug (methamphetamine), a class four felony, in violation of A.R.S. § 13-3407(A)(1); Count III, possession or use of marijuana, a class six felony, in violation of A.R.S. § 13-3405(A)(1); and Count IV, possession of drug paraphernalia, a class six felony, in violation of A.R.S. § 13-3415(A). The trial court (the Honorable Sally S. Duncan) later granted the State s motion to amend Count I of the indictment to clarify that the alleged cocaine was actually cocaine base or hydrolyzed (crack) cocaine. 3 ¶4 Before trial, the State alleged that Appellant had six historical prior felony convictions. The State further alleged 2 We review the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 3 The court (Judge Duncan) also granted Appellant s Motion to Strike Duplicitous Language from the Indictment, after concluding that Counts II and III were duplicitous because each alleged both possession and use in the same count, and the court concluded that possession and use were two different offenses rather than means of committing the same offense. The court therefore ordered the State to pick a theory of prosecution for each count, and the State chose to prosecute both counts under the use theory. Because the issue has not been raised, we do not comment on the propriety of the court s ruling. See generally State v. Paredes-Solano, 223 Ariz. 284, 287-92, ¶¶ 422, 222 P.3d 900, 903-08 (App. 2009). 3 that Appellant was not eligible for probation pursuant to A.R.S. § 13-901.01 because he had more than two prior drug convictions. ¶5 The record indicates that Appellant rejected multiple plea offers before trial. The State extended a plea offer with the terms that Appellant plead guilty to Count II, possession of dangerous drugs, with one prior felony conviction, and stipulate to a term of imprisonment not to exceed five years incarceration in the Arizona Department of Corrections ( ADOC ), with a $1,000 drug fine. In exchange, the State agreed in part to dismiss Counts I, III, and IV, and not allege any remaining prior felony convictions. Appellant initially declined the State s offer and indicated he was unwilling to discuss further settlement. and he, Later, however, he accepted the State s plea offer, defense counsel, and the prosecutor signed the plea agreement. Before the trial court had accepted and entered the agreement, however, Appellant moved to withdraw agreement, and the court granted his motion. from the Appellant later rejected a revised plea offer that would have guaranteed his placement on supervised probation. ¶6 At trial, the State presented the following evidence: At approximately 1:00 a.m. on December 28, 2008, a concerned citizen called emergency dispatch (911) after driving past a silver Mercury Sable parked partially in the diagonal angle with its turn signal flashing. 4 street at a A man, later identified as Appellant, was slumped to the side of the driver s seat and appeared to be passed out or in need of assistance. At the request of the emergency dispatch operator, the citizen turned around and returned to the vehicle to relay its make, model, and license plate number. noticed the headlights vehicle s had been When the citizen returned, he turn signal turned on, had and stopped blinking, Appellant had the changed positions inside the vehicle. ¶7 Officers Murphy and Sund of the Phoenix Police Department soon arrived to conduct a welfare check, and they made contact with Appellant. Despite it being cold outside, Appellant was sweating profusely, his eyes were bloodshot and watery, he had unresponsive. officers trouble concentrating, and he was generally Given the symptoms Appellant was exhibiting, the concluded Appellant was impaired, and they arrested him. ¶8 The officers also decided to tow the Mercury Sable; consequently, they sought to conduct an inventory search of the vehicle s contents. A drug-detection dog was summoned and initially conducted a cursory search of the vehicle, but the dog did not alert for drugs. Zienlinski) testified At trial, the dog s handler (Officer that in order to give positive reinforcement to a dog even when it does not find drugs, a drugscented cotton ball is often placed in the vehicle for the dog 5 to find so the dog can be rewarded. When Officer Zienlinski placed such a cotton ball in the center console of Appellant s vehicle, the dog alerted to its presence. As she went to retrieve the cotton ball and continue her own search, Officer Zienlinski noticed plastic baggies in the center console containing substances later determined to be 860 milligrams of methamphetamine and twenty-five grams of cocaine base. Officers also found a silver and blue pipe under the baggies in the center console. officers marijuana found In a controlled inside the pill a substance back seat bottle canvas the containing bag. officer, of took vehicle, 300 Officer custody milligrams Sund, of police the who is drugs of a and later placed them in an impound locker at the police station. A urine sample collected from Appellant later that morning tested positive for cocaine, methamphetamine, and marijuana. ¶9 found Appellant chose not to testify at trial. Appellant guilty as charged on all counts The jury and, with respect to Count I, found that Appellant possessed at least 750 milligrams of cocaine base or crack cocaine. ¶10 Before sentencing, Appellant stipulated existence of five prior felony convictions. 4 4 to the The trial court The trial court found that Appellant had five historical prior felony convictions. At sentencing, however, the court stated that it was only considering four prior felony convictions for sentencing purposes. 6 sentenced Appellant to concurrent, partially mitigated terms of 12 years imprisonment in ADOC for Count I, 7 years imprisonment for Count II, and 2.5 years imprisonment each for Counts III and IV. The court also credited Appellant for 121 days of presentence incarceration. Appellant filed a notice of appeal. 5 II. A. ¶11 ANALYSIS Grand Jury Testimony Appellant seeks to challenge the grand jury s finding of probable cause. Specifically, he maintains the State failed to present evidence to the grand jury in a fair and impartial manner because the State s witness, Officer Murphy (who subsequently died before trial), gave misleading testimony. ¶12 are Challenges to a grand jury s finding of probable cause not followed reviewable by on special material testimony. appeal action, and must except in be brought cases of by motion perjured, See State v. Moody, 208 Ariz. 424, 439 40, 5 The trial court entered judgment and sentenced Appellant on April 20, 2011, and Appellant filed his notice of appeal twentysix days later, on May 16, 2011. To be timely, a notice of appeal must be filed within twenty days after the entry of judgment and sentence. Ariz. R. Crim. P. 31.3. Because Appellant s notice of appeal was not timely filed, this court stayed the appeal and revested jurisdiction in the trial court to permit Appellant to petition that court for permission to file a delayed appeal pursuant to Rule 32.1(f), Ariz. R. Crim. P. The trial court granted Appellant s request for a delayed appeal, and Appellant s appeal was automatically reinstated in this court pursuant to this court s prior order. 7 ¶ 31, 94 P.3d 1119, 1134 35 (2004). As relevant here, a witness commits perjury by making [a] false sworn statement in regard to a material issue, believing it to be false. A.R.S. § 13- 2702(A)(1). ¶13 Appellant does not claim that perjury occurred during the grand jury testimony, and after reviewing the entire record, including the January 6, 2009 grand jury transcript, we find no material inconsistencies between Officer Murphy s grand jury testimony and the police reports or subsequent trial testimony, much less inconsistencies coupled with any indication Officer Murphy believed his statements were false. that Accordingly, we find no error, and Appellant s challenge to the grand jury proceedings is not further reviewable. B. Amended Indictment ¶14 Appellant also argues it was improper for the trial court to grant the State s pretrial motion to amend Count I of the indictment. The amendment clarified that the cocaine Appellant allegedly possessed for sale was actually cocaine base or hydrolyzed (crack) cocaine. ¶15 We motion to review amend for the trial court s an abuse of decision discretion. to grant See State the v. Johnson, 198 Ariz. 245, 247, ¶ 4, 8 P.3d 1159, 1161 (App. 2000). In general, an indictment may be amended only to mistakes of fact or remedy formal or technical defects. 8 correct Ariz. R. Crim. P. 13.5(b). The original charge in Count I - that Appellant possessed cocaine for sale, when the substance was in fact cocaine base or crack cocaine - was simply a mistake of fact. Further, even assuming arguendo that the court abused its discretion in granting the motion, Appellant does not show that he was prejudiced by the amendment, and we conclude that any error would be harmless beyond a reasonable doubt. See State v. Freeney, 223 Ariz. 110, 116, ¶ 31, 219 P.3d 1039, 1045 (2009) (rejecting the argument that Rule 13.5(b) violations are prejudicial per se, and concluding such violations are subject to harmless error review). discretion, much less Accordingly, we find no abuse of fundamental, prejudicial error, in the trial court s decision to grant the State s motion to amend the indictment. C. Probable Cause ¶16 Samuel Appellant also argues the trial court (the Honorable A. Thumma) erred in denying his pretrial motions to suppress all evidence seized as a result of his arrest and the subsequent search of the Mercury Sable. Appellant maintains that, at the time of his arrest, the police lacked probable cause to arrest him, and probable cause only developed after his arrest and an illegal search of a vehicle which did not belong to [him]. 9 ¶17 In general, we will not disturb the trial court s ruling on a motion to suppress absent an abuse of discretion. State v. Carter, 145 Ariz. 101, 110, 700 P.2d 488, 497 (1985). ¶18 Appellant s argument is based on the following facts: Before trial, Appellant moved to suppress all evidence seized as a result of his arrest and the subsequent vehicle search. Appellant argued he was arrested without probable cause, and the court should therefore suppress all evidence result of the warrantless inventory search. gathered as a He further argued that because the first officer on the scene, Officer Murphy, had died, the State could not establish probable cause. use that officer s testimony to The State responded in part that, even without Officer Murphy s testimony, the State could present sufficient evidence (including information provided in the 911 call and testimony from Officer Sund, the second officer to arrive on the scene) to establish that probable cause existed to arrest Appellant for DUI, and the search of the vehicle was therefore a valid inventory search. The State also responded that Appellant lacked standing to challenge the search of the Mercury Sable because he was not the vehicle s registered owner and had no reasonable expectation of privacy with regard to its contents. After holding evidentiary hearings on Appellant s motions, the trial court denied Appellant s motions to suppress. 10 ¶19 In this case, the trial court determined probable cause existed to arrest Appellant for DUI based on testimony from one of the officers present at the scene (Officer Sund) and the circumstances presented in the 911 call. The court determined that, under the totality of the circumstances, police officers had probable cause to believe Appellant was in physical control of the vehicle in which he was found, and based on officer testimony regarding Appellant s appearance, actions, and responsiveness, probable cause existed to believe Appellant was impaired. After reviewing Appellant s motions, the State s responses, and the transcripts of the suppression hearings, we conclude that substantial evidence supported the trial court s finding of discretion, probable much cause, less and commit the court did fundamental not error, abuse in its denying Appellant s motions to suppress. D. ¶20 Sixth Amendment Rights Appellant maintains his Sixth Amendment rights under the United States Constitution were violated because he did not have a chance to confront all of the State s witnesses against him at trial. Appellant does not specify which witness or witnesses he was unable to confront, however, and the record indicates he was afforded the opportunity to cross-examine all of the witnesses the State called at trial. 11 Consequently, it appears that his argument is directed at the fact that Officer Murphy was unable to testify due to his death. ¶21 The Confrontation Clause prohibits the admission of testimonial evidence from a declarant who does not appear at trial unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine him. See Crawford v. Washington, 541 U.S. 36, 68 (2004); accord Coy v. Iowa, 487 U.S. 1012, 1016 (1988) ( [T]he Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. ). ¶22 The problem with Appellant s argument is State never used Officer Murphy s statements at trial. that the Instead, the State presented evidence solely from witnesses at trial who were subjected to cross-examination by Appellant s counsel. Consequently, we find no Confrontation Clause violation, much less fundamental, prejudicial error. E. ¶23 Inconsistencies with Officer Sund s Testimony Appellant contends that Officer Sund committed perjury because his trial testimony differed from his police report. Appellant maintains he should be granted a new trial because the State failed to disclose Officer Sund s testimony would differ from his police report. ¶24 Appellant s argument stems from the following facts: At trial, Officer Sund testified that when he arrived, Officer 12 Murphy was already at the scene speaking with Appellant, and both of Sable. them were standing outside the door of the Mercury During cross-examination, Appellant s counsel attempted to impeach Officer Sund s credibility by drawing out that the officer s police report stated Officer Murphy had [Appellant] sit on the rear bumper of the Mercury Sable while Officer Murphy was in his patrol vehicle conducting an identification check. On re-direct examination, however, Officer Sund addressed the apparent inconsistency in the two statements by explaining that when he first arrived, he observed Appellant standing outside the door of the vehicle talking to Officer Murphy, but shortly thereafter Appellant was asked to sit on the rear of the vehicle. ¶25 We find no basis for Appellant s claim of perjury. Appellant does not explain how any difference between the officer s testimony and the police report was material, nor is there any indication that Officer Sund believed his testimony to be false. See A.R.S. § 13-2702(A)(1). discrepancy existed, the jury was able Moreover, even if a to hear the officer testify, consider defense counsel s impeachment of the officer, and make a credibility determination. The jury, as the finder of fact, weighs the evidence and determines the credibility of witnesses. State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 2009). In general, we defer to the jury s 13 assessment of a witness s credibility and the weight to be given evidence. See id. at 300, ¶ 21, 213 P.3d at 1027. We find no error, much less fundamental, prejudicial error in the testimony of Officer Sund. F. ¶26 Drug-Detection Dog Issues Appellant argues the police should have created and disclosed an incident report regarding the performance of the drug-detection dog brought to the scene. request such a report before trial. Appellant did not Further, he does not show how such a report would be relevant, and irrelevant evidence is not admissible. Ariz. R. Evid. 402. The presence of the dog in this case bears no relevance on the ultimate discovery of the drugs found in the console of the vehicle because it was the officer handling the dog, Officer Zienlinski, who discovered the drugs while in the process of conducting the inventory search, not the dog. Consequently, any evidence related to the dog was irrelevant. ¶27 Appellant also intimates that, because of the circumstances surrounding the dog s search, the drug evidence must have been planted in his car. Appellant, however, points to nothing other than his own speculation as support, and he was free to argue this theory to the jury. record, we find no error, much 14 less After reviewing the fundamental error, with respect to the issues Appellant raises concerning the drug- detection dog. G. Chain of Custody ¶28 Appellant establish a next sufficient argues chain of that the custody State with failed respect to to the drugs seized from the Mercury Sable because Officer Zienlinski could not recall whether she, Officer Murphy, or Officer Sund actually removed the drugs from the vehicle. A party seeking to authenticate evidence based on a chain of custody must show continuity of possession, but it need not disprove every remote possibility of tampering. State v. McCray, 218 Ariz. 252, 256, ¶ 9, 183 P.3d 503, 507 (2008) (quoting State v. Spears, 184 Ariz. 277, 287, 908 P.2d 1062, 1072 (1996)). ¶29 In this case, Appellant points to no evidence breaking the chain of custody established by the State, and we find none. The testimony discovered the at trial drugs in indicates the that vehicle, Officer and Zienlinski the controlled substance officer (Officer Sund) immediately took possession of all of the items removed from the vehicle at the scene, and then bagged, marked, and impounded the seized items as evidence. Moreover, Officer Sund retained custody of the drugs and pipe the entire time after he gained possession of them until he placed them in the impound locker; 15 accordingly, we find no error, much less fundamental error, based on the chain of custody established by the State. H. Urine Sample Lack of Willits Instruction/Suppression ¶30 Appellant also argues on appeal that the trial court abused a Willits instruction because some of his urine sample spilled. If the State its has discretion lost, in denying destroyed, or his request failed to for preserve evidence important to a case, the trial court may instruct the jury that it may infer the evidence would have supported the defendant. See State v. Willits, 96 Ariz. 184, 187, 191, 393 P.2d 274, 276, 279 (1964). ¶31 Appellant s argument arises from the following facts: At trial, the State presented testimony from a drug recognition expert, Officer Bohatir, who testified in part that Appellant had provided testified a urine that, sample immediately for testing. after Officer providing the Bohatir sample, Appellant dropped the sample and a portion of it spilled. The remainder of the sample was packaged and sent to the lab for analysis. ¶32 At trial the next day, Appellant requested a Willits instruction with regard to his urine sample, arguing there is some question properly as collected to whether and or preserved not for that urine purposes of sample testing. After a brief discussion, the trial court denied his request. 16 was ¶33 We find no error in the trial court s ruling. Bahatir testified that holding his sample urine although and Appellant the bottom dropped of it Officer the cup touched the ground, the officer caught the cup on its way down, no part of the lip of the cup ever touched the floor, and only a minor amount splashed out of the cup and onto the officer s glove as a result of the drop. the officer testimony The cup did not tip over onto its side, and immediately supports the sealed the conclusion cup. that Officer the sample Bohatir s was not contaminated when it was dropped, and that Appellant, not the State, was responsible for the spilled portion of the sample. Further, no suggestion evidence that the was defense made was independently test the sample. through limited testimony in its or other ability to Given these facts, we conclude that the trial court did not abuse its discretion, much less commit fundamental error, in denying Appellant s request for a Willits instruction. ¶34 Appellant also argues that the trial court erred in failing to grant his motion to suppress the results of the urine sample because the sample was taken under duress. Even assuming arguendo that Appellant properly made this motion, we find no abuse of the trial court s discretion, much less fundamental error. No evidence or suggestion of coercion exists in the record, and Officer Bohatir testified 17 that Appellant was cooperative and behaved like a gentleman during testing. Consequently, we reject Appellant s claim that the trial court should have suppressed the results of his urine sample. I. Sufficiency of the Evidence ¶35 Appellant argues convictions supports his next because that no insufficient drugs were evidence found in his possession, and the trial court erred in failing to grant his motion for judgment of acquittal based on a lack of substantial evidence. Appellant maintains he did not own the Mercury Sable, no evidence directly linked the drugs to his person, and the containers holding the drugs were apparently not tested for fingerprints. ¶36 On motion of a defendant or on its own initiative, the court shall enter a judgment of acquittal . . . if there is no substantial evidence Crim. P. 20(a). to warrant a conviction. Ariz. R. We review a trial court s denial of a motion for judgment of acquittal for an abuse of discretion and will reverse only conviction. if no substantial evidence supports the State v. Guadagni, 218 Ariz. 1, 3, ¶ 8, 178 P.3d 473, 475 (App. 2008). ¶37 In Appellant s this case, convictions. substantial The testimony evidence elicited supports at trial (coupled with reasonable inferences derived therefrom) indicates that (1) Appellant had been in control of and had apparently 18 been driving the Mercury Sable immediately before his arrest, (2) Appellant appeared impaired at the time of his arrest, (3) officers found the drugs and pipe in the Mercury Sable during the immediately subsequent inventory search, (4) Appellant s urine tested positive for the same three drugs found in the Mercury Sable and for which he was charged and convicted, and (5) the amount of cocaine base or hydrolyzed cocaine Appellant possessed far indicating Appellant A.R.S. 13-3401(36)(c). § exceeded the statutory possessed the threshold substance Because for amount, sale. direct substantial See and circumstantial evidence supports the verdicts, the trial court did not abuse its discretion, much less commit fundamental error, in denying Appellant s motion for judgment of acquittal. J. Expert Opinions ¶38 Appellant also argues that the drug expert did not adequately provide his opinion as to the issue of toxicology tests of chemical compounds and all records thereof improperly provided his opinion as to the ultimate issue. and We find no fundamental error. ¶39 The Arizona Rules of Evidence guide the admission of expert opinions and testimony. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed, and [u]nless the court orders otherwise, an expert may state an opinion and give the reasons 19 for it without first testifying to the underlying facts or data. Ariz. R. Evid. 703, 705. Additionally, in general, [a]n opinion is not objectionable just because it embraces an ultimate issue. however, an Ariz. R. Evid. 704(a). expert witness must not In a criminal case, state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. Ariz. R. Evid. 704(b). 6 ¶40 In addition to testimony from the concerned citizen who placed the 911 call and Officers Sund and Zienlinski, the State presented expert testimony at trial from a forensic scientist, a drug recognition expert, a toxicologist, and a drug transaction expert. Appellant does not specify as to which drug expert he refers, or where in the record he believes error occurred. 7 6 The language of Rules 703, 704, and 705 was amended effective January 1, 2012, to conform to the federal restyling of the evidence rules to make them more easily understood and to make style and terminology consistent throughout the rules. The changes were intended to be stylistic only, and there was no intent to change any result in any ruling on evidence admissibility. 7 Appellant s reference to the masculine gender, however, leads us to conclude that he is likely challenging either the testimony of the drug recognition expert or the drug transaction expert. 20 ¶41 In any case, we find no error in the court s admission of any of the expert testimony. an extensive degrees, list of his certifications, or and Each expert in this case gave her qualifications, field experience, testified as to the procedures he or she followed. including and each The forensic scientist testified as to the presence of controlled substances in the containers found in the Mercury Sable and conclusion on several testing procedures she used. recognition expert testified that he examined based her The drug Appellant for nearly two hours after Appellant was arrested, and he provided details of the testing procedures he performed on Appellant and the results of that testing. 8 At the conclusion of his testing, the drug recognition expert rendered an opinion that Appellant was at the time under the influence of cannabis and a central nervous stimulant and was not fit to operate a vehicle safely. The toxicologist based her conclusions on testing procedures used on Appellant s urine sample, including an initial screening on an immunoassay instrument, which yielded positive results for several drugs that were later confirmed by running the urine sample through toxicologist a gas testified chromatography that mass Appellant s spectrometer. urine The contained amphetamine (a metabolite of methamphetamine), methamphetamine, THC (a metabolite of marijuana), cocaine, and benzoylecgonine (a 8 He also obtained the urine sample from Appellant. 21 metabolite of cocaine). The drug transaction expert, who relied primarily on his extensive experience in the field as the basis for his opinions, testified as to the buying, selling, and usage habits of individuals involved with various drugs, crack cocaine, methamphetamine, and marijuana. 9 including Given the amount of crack cocaine in Appellant s possession and the usage rate of persons addicted to that drug, the drug transaction expert opined that Appellant likely possessed the crack cocaine for sale rather than mere personal use. record, we find nothing improper After reviewing the entire about the testimony of the State s witnesses, much less anything rising to the level of fundamental error. K. ¶42 Prosecutorial Misconduct Appellant argues the prosecutor committed misconduct because he appealed to the passions of the jury. ¶43 We disagree. To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor s misconduct so infected the trial with unfairness as conviction a denial of due process. to make the resulting State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). argument excessive and emotional 9 language [I]n the closing is the bread and Appellant did not object to the drug transaction expert s qualifications. 22 butter weapon principle of that counsel s attorneys forensic are not arsenal, permitted limited to by introduce the or comment upon evidence which has not previously been offered and placed before the jury. State v. Rainey, 137 Ariz. 523, 527, 672 P.2d 188, 192 (App. 1983). ¶44 Appellant points to no specific instance in which the prosecutor allegedly committed misconduct, and after reviewing the entire record, including the prosecutor s closing and rebuttal arguments, we conclude that nothing the prosecutor said or did so infected the trial with unfairness as to make the resulting conviction a denial of due process. U.S. at 643. Donnelly, 416 We find no error, much less fundamental error, in the prosecutor s conduct. L. Juror Issues ¶45 Appellant next points to two issues involving the jury panel. Appellant notes that one of the jurors who ultimately served on the jury panel raised her hand when prospective jurors were asked before during hearing jury any voir dire evidence, and if he they would contends vote that guilty he was therefore denied his Sixth Amendment right to a fair trial by an impartial jury. When viewed in context, however, the record does not support his contention. ¶46 incident: Appellant s argument During voir jury stems dire, 23 from defense the counsel following asked the panel of prospective jurors, Do you think at this time [Appellant] is innocent, not guilty, guilty or you don t know? Defense counsel then alternately requested that prospective jurors raise a hand if they believed Appellant is not guilty at this time, if right now you would guilty, and if they were undecided. think [Appellant] is In response to counsel s second query - if right now you would think [Appellant] is guilty - several persons apparently raised a hand, including one prospective juror (juror number 31) who ultimately sat on the jury panel. prospective confusion Defense As defense counsel proceeded to ask how many jurors and were hesitation counsel then undecided, on stated the part that he the of record some would panel start indicates members. all over again, and once again began to question the potential jurors. At that point, the trial court intervened, stating as follows: I will interject here for a moment because this question is asked all the time and I just want everyone to understand that no evidence has been presented and you can t be asked to commit to a position when you haven t heard any evidence. So I think what counsel is trying to have you understand at the end of this exercise is that, if you recall I told you that every person is innocent until proven guilty beyond a reasonable doubt. So essentially that is what we are trying to make you understand. So if you re sitting in a courtroom and no evidence has been presented, there is a presumption that someone is innocent. Is there anyone here that doesn t understand that? 24 And, a few of you raised your hands and said that you thought he was guilty. So, if you truly have a belie[f] because somebody is sitting in a courtroom and has charges made against them that they are guilty we do need to know that. Is there anyone here with that clarification that I just gave you who believes that? Six potential jurors answered affirmatively. juror number 31 nor any other prospective However, neither juror who was ultimately selected for the jury panel answered affirmatively. In an effort to clarify the positions of those six panel members who answered affirmatively and perhaps rehabilitate them, the court briefly questioned them, then held a bench conference with counsel outside the presence of the jury and asked if there were any others the court should follow-up on with questioning. Defense counsel answered in the negative. The court excused the entire jury panel into the hallway, struck for cause those six panel members who had answered affirmatively, and asked if any other potential jurors should be struck for cause. Defense counsel again answered in the negative, and the record indicates the remaining panel was exercised their strikes. passed for cause before counsel Juror number 31 was included in the final jury panel that found Appellant guilty. ¶47 We find no error, much less fundamental error, in the eventual inclusion of juror number 31 onto the jury and the trial court s handling of the situation. the venire panel appropriately, 25 The court instructed determined which potential jurors were exhibiting possible bias, and struck those persons for cause. Additionally, in its admonition to the jury, the trial cautioned court jury members to [k]eep an open mind during the trial, and to not form final opinions about any fact or about the outcome of the case until you have heard and considered all of the evidence. Moreover, in its preliminary and final instructions to the jury, the court instructed the jury that it must follow the law and the jury instructions, the charges were not evidence against Appellant and the jury should not think Appellant was guilty just because of a charge, the jury was required to start by presuming Appellant innocent, and the State bore the burden of proving Appellant guilty beyond a reasonable doubt. Defense counsel emphasized the import of these instructions in his closing argument to the jury. evidence to instructions. the contrary, we presume the jury Absent followed its See State v. Manuel, 229 Ariz. 1, 6, ¶ 24, 270 P.3d 828, 833 (2011). ¶48 Appellant conversation next occurred contends between that defense an improper counsel and the prosecutor because a juror was present on an elevator while the attorneys incident discussed was the brought to case the during a court s break at attention trial. The outside the presence of the jury by defense counsel, who explained that the brief conversation regarded only 26 how fast the case was proceeding. court to The court asked the prosecutor if he wished the follow up on that, but the prosecutor declined, stating that he believed the conversation was harmless. Given the summary of the conversation provided by defense counsel and the State s characterization of that court pursued the issue no further. conversation, the trial We find no error, much less fundamental error, with the court s handling of this issue. M. ¶49 Ineffective Assistance of Counsel Appellant ineffective finally assistance by argues his that counsel. he was Because provided claims for ineffective assistance of counsel must be brought through Rule 32 proceedings, appeal. we do not address this argument on direct See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). N. ¶50 Other Issues We have reviewed error and find none. the entire record for reversible See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdicts, and the sentences were within the statutory limits. Appellant was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with his constitutional 27 and statutory rights and the filing of this Arizona Rules of Criminal Procedure. ¶51 After obligations appeal have pertaining ended. to decision, Appellant s Counsel need do defense counsel s representation no more than in this inform Appellant of the status of the appeal and of his future options, unless counsel s review reveals an issue appropriate petition for review to the Arizona Supreme Court. for See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. III. ¶52 CONCLUSION Appellant s convictions and sentences are affirmed. _____________/S/_________________ LAWRENCE F. WINTHROP, Chief Judge CONCURRING: ____________/S/_____________________ MARGARET H. DOWNIE, Presiding Judge ____________/S/_____________________ MAURICE PORTLEY, Judge 28

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