State v. Guinard

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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.

JIMMY WAYNE GUINARD, Appellant.

No. 1 CA-CR 13-0490
FILED 06-03-2014

Appeal from the Superior Court in Yavapai County
No. P1300CR201101146
The Honorable Tina R. Ainley, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

White Law Offices, PLLC, Flagstaff
By Wendy F. white
Counsel for Appellant
 STATE v. GUINARD
Decision of the Court

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.

P O R T L E Y, Judge:

¶1 Jimmy Wayne Guinard appeals his convictions and
sentences for two counts of transportation of dangerous drugs for sale and
two counts of possession of drug paraphernalia. Guinard contends that
the State vouched for one of its witnesses; that the trial court erred by
denying his motion for mistrial; and that the court erred by imposing
consecutive sentences because it allegedly believed the law required
consecutive sentences. For the reasons that follow, we affirm Guinard's
convictions and sentences.

BACKGROUND

¶2 An informant working with sheriff's deputies purchased
methamphetamine from Guinard on two separate dates. A jury convicted
Guinard as charged, finding he committed one count of transportation for
sale and one count of possession of paraphernalia on each of those dates.
The trial court sentenced Guinard to an aggregate term of twenty years'
imprisonment and Guinard now appeals. We have jurisdiction pursuant
to Article 6, section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A), 13-4031 and -4033. 1

ANALYSIS

I. Did the State Vouch for the Informant?

¶3 The informant who purchased the methamphetamine from
Guinard testified at trial. Guinard argues the State vouched for the
informant when a deputy testified the informant was reliable and when
the prosecutor addressed the informant's reliability and credibility in
closing argument. Because Guinard did not object to any of the alleged
vouching, we review for fundamental error. See State v. Gendron, 168 Ariz.

1We cite the current version of all applicable statutes unless revisions
material to this decision have since occurred.

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153, 154, 812 P.2d 626, 627 (1991) (finding that the failure to raise an issue
at trial waives all but fundamental error). "To establish fundamental
error, [a defendant] must show that the error complained of goes to the
foundation of his case, takes away a right that is essential to his defense,
and is of such magnitude that he could not have received a fair trial."
State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). Even
if a defendant establishes fundamental error, the defendant must still
demonstrate the error was prejudicial. Id. at ¶ 26.

A. The Deputy's Testimony

¶4 Guinard attacked the reliability and credibility of the
informant during cross examination of a deputy who worked with the
informant. The informant's credibility was affected by several factors,
including that he had used methamphetamine for years, and faced
imprisonment if he did not cooperate with law enforcement. On redirect
examination, the prosecutor asked the deputy, "Okay. Is there any
indication that [the informant] wasn't reliable?" The deputy responded,
"No, none. He was completely honest from the day of the arrest about his
involvement with drugs, including the selling of the meth to the informant
that he sold the drugs to, and not ever did he give us a reason to think he
was lying about anything." Guinard argues the State vouched for the
credibility of the informant through this testimony.

¶5 In discussing impermissible vouching, our supreme court
has stated that:

Two forms of impermissible prosecutorial
vouching exist: (1) when 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. In addition,
a lawyer is prohibited from asserting personal
knowledge of facts in issue before the tribunal
unless he testifies as a witness.

State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993) (citation
omitted). This was not prosecutorial vouching. A law enforcement
officer's testimony regarding the credibility of another witness is not the
same as prosecutorial vouching. See State v. Martinez, 230 Ariz. 382, 385
n.4, ¶ 10, 284 P.3d 893, 896 n.4 (App. 2012). We address, however,

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whether the deputy's statement was an impermissible comment on the
informant's credibility.

¶6 Generally, a witness may not comment about the
truthfulness of statements by another witness. Id. at 385, ¶ 11, 284 P.3d at
896 (citing State v. Reimer, 189 Ariz. 239, 241, 941 P.2d 912, 914 (App.
1997)). A trial court may, however, admit evidence of a witness's
character for truthfulness once a party has attacked the witness's character
for truthfulness. Ariz. R. Evid. 608(a). Permissible evidence of a witness's
character for truthfulness includes opinions regarding the truthfulness of
the witness in general. Id.; see State v. Fulminante, 161 Ariz. 237, 252-53, 778
P.2d 602, 617-18 (1988). Guinard attacked the credibility of the informant
during his cross examination of the deputy. The State could in turn admit
evidence of the informant's character for truthfulness. We find no error,
fundamental or otherwise.

¶7 Guinard's reliance on State v. Schroeder, 167 Ariz. 47, 804 P.2d
776 (App. 1990) is unavailing. In Schroeder, an investigating officer
testified she believed the victim was telling the truth when she
interviewed the victim and, although we found the question and answer
improper, we ultimately found no error. 167 Ariz. at 50-51, 804 P.2d at
779-80. Here, we find no error because the deputy did not comment on
the truthfulness of specific statements of another witness but that the
informant had been honest about his involvement in the
methamphetamine drug trade. See Reimer, 189 Ariz. at 241, 941 P.2d at 914
(noting that opinion evidence of a witness’s character for truthfulness in
general was permitted by Arizona Rule of Evidence 608(a), but an opinion
regarding the truthfulness of specific statements by another witness was
not permitted).

B. The Prosecutor's Closing Argument

¶8 Guinard also argues the prosecutor vouched for the
informant during the rebuttal portion of his closing argument when he
placed the prestige of the government behind the informant's testimony.
As noted above, this type of conduct is prototypical prosecutorial
vouching and is, in fact, prosecutorial misconduct. See Bible, 175 Ariz. at
601, 858 P.2d at 1204 ("[I]mpermissible prosecutorial vouching exist[s] []
when the prosecutor places the prestige of the government behind its
witness."). Because Guinard did not object, we review for fundamental
error. Henderson, 210 Ariz. at 567, ¶ 19, 456 P.3d at 607. In our
determination of whether a prosecutor’s conduct amounts to fundamental
error, we focus our inquiry on the probability the conduct influenced the

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jury and whether the conduct denied Guinard a fair trial. State v. Wood,
180 Ariz. 53, 66, 881 P.2d 1158, 1171 (1994). "The focus is on the fairness of
the trial, not the culpability of the prosecutor." Bible, 175 Ariz. at 601, 858
P.2d at 1204.

¶9 Because the alleged misconduct occurred during rebuttal,
we view the prosecutor’s argument in the context of Guinard's closing
argument. See State v. Kerekes, 138 Ariz. 235, 239, 673 P.2d 979, 983 (App.
1983). In his closing argument, Guinard argued the informant was a
thirty-year user of methamphetamine who was on disability because of
mental problems, who not only bought and sold methamphetamine and
marijuana but used his Social Security benefits to buy drugs. He argued
the informant was a liar who had no credibility, who was not believable
and who the jury could not trust. Guinard argued the informant had an
incentive to lie because he hoped to obtain a reduction of his own pending
charges and avoid prison. He further argued drug users like the
informant steal from and lie to their own family and friends, and that all
of the suspects the informant had "set up and busted" were former friends
to whom he had lied. Guinard also argued the deputies who worked with
the informant knew about his "credibility issues" yet continued to work
with him. Finally, Guinard argued the informant shook so badly when he
testified he looked like someone who was on drugs. 2

¶10 The prosecutor addressed these arguments in rebuttal.
Guinard identifies three portions of the prosecutor's rebuttal argument
that allegedly vouched for the informant. In the first instance, the
prosecutor argued:

[The deputy] decided to use [the informant]
because he believed that he was a good guy
who was credible. He made the decision based
upon his training, his experience, and in
dealing with people of this nature for several
years. He made the analysis that, no, this is
somebody who’s trustworthy; this is
somebody I can work [with] who will be
honest, who will follow up. And he testified
that he was, he was reliable. [The informant]

2 The informant shook so severely the jury submitted a question to him
inquiring why he could be so calm on the audio recordings of the drug
buys yet be "shaking and visibly affected" during his trial testimony.

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called in regularly, did what was asked of him;
he did everything that was asked of him.
Nothing to indicate that he lied to [the deputy]
at any time. [The deputy] testified that he was
aware of that, never lied to him at all. He was
a good informant.

¶11 We find no error. "[P]rosecutorial comments which are fair
rebuttal to comments made initially by the defense are acceptable." State
v. Duzan, 176 Ariz. 463, 468, 862 P.2d 223, 228 (App. 1993). Further,
"during closing arguments counsel may summarize the evidence, make
submittals to the jury, urge the jury to draw reasonable inferences from
the evidence, and suggest ultimate conclusions." Bible, 175 Ariz. at 602,
858 P.2d at 1205. Guinard attacked the informant's credibility and the
deputy's use of the informant. The prosecutor's argument was a fair
rebuttal to those arguments and was based on the evidence admitted at
trial and the reasonable inferences one could draw from that evidence. To
the extent, if any, the argument commented on the informant's
truthfulness, a prosecutor may characterize a witness as truthful when the
argument is sufficiently linked to the evidence. See State v. Corona, 188
Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 1997). The only limitations are that
the prosecutor may not place the prestige of the government behind the
witness or suggest that information not before the jury supports the
testimony. Id. This portion of the prosecutor's argument did not
improperly vouch for the informant.

¶12 The second instance of alleged vouching occurred when the
prosecutor addressed how the informant shook during his testimony:

State's belief is that the reason he's shaking like
a leaf yesterday is he's outed. He wasn't outed
then; nobody knew who he was or what he
was doing. But in court yesterday, he was
outed. Mr. Guinard, the defendant, knows,
"That's the guy who set me up. That's the guy
why I'm sitting in here today."

¶13 We find no fundamental error. Guinard addressed how the
informant shook during his testimony and went so far as to suggest it
showed the informant testified while under the influence of drugs. The
prosecutor's rebuttal was a reasonable response to Guinard's argument
and was sufficiently linked to the evidence admitted at trial and the
reasonable inferences one could draw from that evidence. As noted

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above, even the jury questioned the informant about his shaking. The
informant testified he was nervous because he feared what people may do
to him in the future because of his work as an informant. He further
testified informants can end up injured or dead. The informant testified
he knew he would have to deal with this for the rest of his life and
referred to himself as "the lowest form of life[.]"

¶14 The prosecutor, however, should not have prefaced the
argument with the statement that it was the "State's belief[.]" Even so, this
comment did not rise to fundamental error. Despite prefacing his
argument with this statement, the prosecutor presented his argument in
the context of the evidence admitted at trial and the reasonable inferences
supported by that evidence; the informant was shaking because of his
fear, not because of his drug use as argued by Guinard. The argument
was sufficiently linked to the evidence and was not simply a statement of
the prosecutor's personal belief and nothing else. See Corona, 188 Ariz. at
91, 932 P.2d at 1362. Further, the trial court instructed the jury that what
the lawyers say is not evidence. A trial court can cure error that arises
from improper vouching by instructing the jury that what the attorneys
say is not evidence. State v. Payne, 233 Ariz. 484, 512, ¶ 109, 314 P.3d 1239,
1267 (2013). Finally, the court instructed the jury that it was the jury's
function to decide the credibility of witnesses and the prosecutor himself
argued it was up to the jury to decide what the truth was. Under these
circumstances, to preface the argument with "State's belief," while
improper, did not deny Guinard a fair trial and did not rise to
fundamental error.

¶15 The final instance of alleged vouching occurred when the
prosecutor argued:

[The informant] was - He testified as to exactly
what happened, and he was being truthful, honest,
honest about himself, about things that people
aren't very proud of, about his drug use and
testifying against someone who he once
considered a friend, didn't feel all that
confident about himself.

(Emphasis added.) Guinard complains only of the italicized language.
This argument, when viewed in its entirety, did not amount to
fundamental error. It addressed Guinard's closing arguments regarding
the credibility of the informant. The argument was based on the evidence
admitted at trial and the reasonable inferences one could draw from that

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evidence. Regarding the informant's testimony about "what happened,"
the informant's version of events was supported by the audio recordings
of the controlled buys, the testimony of the deputy who participated in the
controlled buys and the expert witness who identified the drugs
purchased as methamphetamine. Regarding the informant's testimony
about himself, he admitted he was a drug dealer and long-term drug user
who worked as an informant to help set up his friends for prosecution
simply to save himself and he was not proud of himself or his actions.

¶16 Regarding the prosecutor's assertions that the informant was
"truthful" and "honest," a prosecutor may characterize a witness as
truthful when the argument is sufficiently linked to the evidence. See
Corona, 188 Ariz. at 91, 932 P.2d at 1362. The prosecutor should have,
however, phrased the argument in terms of how the evidence showed the
informant was truthful and honest. The language the prosecutor chose
arguably expressed his personal belief or opinion. Even so, given the
context of the argument and the evidence supporting it, its relationship to
Guinard's closing argument, the court's instructions regarding statements
of the attorneys and how it is the jury's function to determine the
credibility of the witnesses, this argument did not deny Guinard a fair
trial and did not otherwise constitute fundamental error even with the
"truthful" and "honest" comments.

II. Denial of the Motion for Mistrial

¶17 Guinard next argues the trial court erred when it denied his
motion for mistrial after the informant testified about material the trial
court excluded prior to trial. “A declaration of mistrial is the most
dramatic remedy for trial error and is appropriate only when justice will
be thwarted if the current jury is allowed to consider the case.” State v.
Lamar, 205 Ariz. 431, 439, ¶ 40, 72 P.3d 831, 839 (2003) (citation omitted)
(internal quotation marks omitted). The failure to grant a mistrial is error
only if it was a clear abuse of discretion. State v. Murray, 184 Ariz. 9, 35,
906 P.2d 542, 568 (1995). We will reverse a trial court’s decision to deny a
mistrial only if it is "palpably improper and clearly injurious." Id. (quoting
State v. Walton, 159 Ariz. 571, 581, 769 P.2d 1017, 1027 (1989), aff’d, 497 U.S.
639 (1990)) (internal quotation marks omitted). “This is because the trial
judge is always in the best position to determine whether a particular
incident calls for a mistrial.” State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297,
299 (1983). The trial judge is aware of the atmosphere of the trial, the
circumstances surrounding the incident, the manner in which any
objectionable statement is made, and its possible effect on the jury and the
trial. Id.

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¶18 The trial court granted Guinard's pretrial motion to exclude
evidence that Guinard and the informant used and/or possessed
methamphetamine together in the past. During its examination of the
informant, the State asked, "Why did you identify Mr. Guinard to law
enforcement officers?" The informant responded, "Because I bought meth
from him before." 3 Guinard objected and moved for a mistrial. The trial
court sustained the objection, struck the answer, instructed the jury to
disregard the answer and denied the motion for mistrial. The court later
denied Guinard's renewed motion, explaining that the incident did not
warrant a mistrial because the court sustained the objection, struck the
answer and instructed the jury to disregard it. The court further
explained the jury had already heard that these types of cases "don't come
out of the blue, that they do get names from people in the past based on
their activity and their drug involvement[.]"

¶19 The trial court did not abuse its discretion when it denied
the motion for mistrial. As noted above, the court struck the answer and
instructed the jury to disregard it. We presume juries follow their
instructions. State v. Dunlap, 187 Ariz. 441, 461, 930 P.2d 518, 538 (App.
1996). We also note the jury had already heard testimony regarding how
the informant selected potential suspects, such as Guinard, to identify to
the sheriff's department. The deputy testified informants are already
associated with people who are involved with and possibly sell drugs.
Those informants arrange to buy drugs from people "that they know are
selling drugs[.]" During his cross examination of the deputy, Guinard
introduced evidence that the informant identified suspects based on
whether he had purchased methamphetamine from them in the past or he
otherwise believed they would sell him methamphetamine. Therefore, the
jury already knew the informant told the sheriff's department about
Guinard based on his knowledge that Guinard was involved with drugs,
and the informant had either purchased methamphetamine from Guinard
in the past or had reason to believe Guinard would sell him
methamphetamine. Under these circumstances, the trial court did not
abuse its discretion when it held the informant's testimony regarding how
he had bought methamphetamine from Guinard in the past did not
require a mistrial.

3The prosecutor claimed he sought only to establish that the informant
was not randomly selecting people from whom to purchase
methamphetamine and claimed he expected a different answer. The
prosecutor never identified the answer he expected.

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III. The Imposition of Consecutive Sentences

¶20 Guinard argues we should remand for resentencing because
the trial court did not understand it could impose concurrent sentences if
it chose to do so. The court ordered the ten-year sentence it imposed for
count 1, transportation of dangerous drugs for sale, to run concurrently
with the three-year sentence it imposed for count 2, possession of drug
paraphernalia. The court further ordered the ten-year sentence it imposed
for count 3, the second count of transportation of dangerous drugs for
sale, to run concurrently with the three-year sentence it imposed for count
4, the second count of possession of drug paraphernalia. The court
ordered the sentences for counts 3 and 4 to run consecutively to the
sentences for counts 1 and 2.

¶21 When the court ordered the second pair of sentences to run
consecutively to the first pair of sentences, it stated:

[S]o as to the Transportation of
Methamphetamine for Sale, each has a
Paraphernalia charge with it. The
Paraphernalia charge will run concurrently
with each Transportation charge, but the two
Transportation charges I do not find a basis to
run those concurrently; those will run
consecutively to each other for a total of 20
years; each one of those is a flat-time sentence.

Guinard concedes the court had authority to impose consecutive
sentences. See A.R.S. § 13-711(A). Guinard argues, however, that the
language "I do not find a basis to run those concurrently" demonstrates
not only that the court did not understand it could impose concurrent
sentences if it chose to do so, but that the court believed it had to impose
consecutive sentences unless it found a "basis" or "good reason" to impose
concurrent sentences.

¶22 We need not remand for resentencing. "Trial judges 'are
presumed to know the law and apply it in making their decisions.'" State
v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (quoting Walton, 497
U.S. at 653). Except as otherwise provided by law, a trial court may
impose consecutive or concurrent sentences when it imposes multiple
sentences of imprisonment in the same proceeding. A.R.S. § 13-711(A). If
the court imposes concurrent sentences, the court must set forth its
reasons for doing so on the record. Id. The language "I do not find a basis

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to run those concurrently" does not suggest the court did not understand
the applicable law. This is especially true when viewed in the context of
the court's explanation for why it chose not to impose concurrent
sentences, which the court provided just before it made the statement
Guinard identifies. In that explanation, the court focused on the fact that
Guinard committed the pairs of offenses five days apart. The court stated:

However, in considering the time period here –
five days in between – the guy came back; you
had time to think that about that [sic]; you
made the choice to sell again and, based on that,
I can't find any basis to run that concurrent, and
so that 10-year term will begin upon conclusion
of your sentence of 10 years for the Count I
Transportation of Methamphetamine for Sale.
You'll be given no credit for that, as all the
credit applies to your first 10-year sentence.

The court's explanation, viewed in its entirety, shows the court chose to
impose consecutive sentences because of the amount of time that passed
between the pairs of offenses, not because the court believed it lacked the
authority to impose concurrent sentences unless it found a "basis" or
"good reason" to do so.

CONCLUSION

¶23 We affirm Guinard's convictions and sentences.

:gsh

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