State v. Lewis

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL DELVIN LEWIS, Appellant.

No. 1 CA-CR 20-0010
FILED 12-15-2020

Appeal from the Superior Court in Yavapai County
No. V1300CR201780595
The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

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

Law Office of Gonzales & Poirier, P.L.L.C., Flagstaff
By Tony Gonzales
Counsel for Appellant
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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.

C R U Z, Judge:

¶1 Michael Delvin Lewis appeals his convictions and sentences
for one count of aggravated driving while under the influence (license
suspended), a Class 4 felony; one count of unlawful flight from law
enforcement, a Class 5 felony; and four counts of endangerment, Class 6
dangerous felonies. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Around 9:00 p.m. one evening, Lewis merged into a
roundabout without yielding and nearly collided with a police officer’s
vehicle. Lewis then drove over the roundabout’s curb and through the
roundabout center, prompting the officer to activate his emergency lights.
Lewis did not pull over and drove toward I-17. As Lewis attempted to turn
onto I-17, he almost hit a vehicle traveling in the opposite direction, and the
vehicle had to stop to avoid being hit head-on by Lewis.

¶3 As Lewis merged onto I-17, the officer estimated Lewis’ speed
to be up to 90 miles per hour. Lewis approached another vehicle, forcing it
to move to the right shoulder to avoid being rear-ended by Lewis. The
officer then activated his siren, continued to pursue Lewis, and observed
Lewis’ tires hitting the center lane line. Cars driving to Lewis’ right were
forced to move out of the way to avoid being hit. The officer estimated that
Lewis was driving about 120 miles per hour.

¶4 Lewis suddenly swerved across two lanes of traffic to exit the
highway. To pass slower vehicles, Lewis drove around the cars in the
opposing traffic lane. Lewis drove through a stop sign and turned left
toward another vehicle making a turn. The driver of the turning vehicle
was forced to stop and allow Lewis to drive around him to avoid a collision.
After the turn, Lewis abruptly stopped and exited his vehicle. The officer
commanded Lewis to get on the ground, and Lewis complied. The officer
handcuffed Lewis, and as he escorted Lewis to his patrol car, the officer

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detected an odor of alcohol on Lewis. The officer also noted that Lewis
stumbled as he walked to the police car.

¶5 The officer placed Lewis in the back of the car and completed
an inventory search of Lewis’ car. Two other officers arrived as back up.
The officers saw an open can of beer in the center console of Lewis’ car, as
well as an opened thirty-pack case of beer in the passenger seat. An officer
returned to the police vehicle to speak with Lewis and found Lewis sleeping
or unconscious. The officer removed Lewis from the back of the vehicle
and requested a medical team. While waiting for the medics to arrive, the
officer woke Lewis by performing a “sternum rub” on Lewis. The officer
noted that Lewis seemed confused, stating he did not know why the police
were there and why they were talking to him. All three officers detected
the odor of alcohol, and they noticed Lewis’ eyes were bloodshot and
watery, that he swayed while seated, and slurred his speech as he spoke.

¶6 Police learned that Lewis’ driver’s license was revoked in
2004. Lewis declined to perform standard field sobriety tests and refused
to consent to a breath or blood sample.1 Lewis was transported to the police
station and charged with aggravated driving under the influence with a
suspended license, unlawful flight from a law enforcement vehicle, and
four endangerment counts.

¶7 Following three days of trial, the jury found Lewis guilty on
all counts as charged. The superior court sentenced Lewis as a repetitive
offender to concurrent and consecutive prison terms totaling fifteen-and-a-
quarter years. Lewis timely appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 13-
4033(A)(1).

1 Officers obtained a telephonic search warrant to perform a blood
draw and determine Lewis’ blood alcohol content. However, before the
trial, Lewis successfully challenged the warrant because the officers failed
to record the telephone conversation with the judge and one page of the
warrant was missing the judge’s signature. As a result, the court found it
was unable to determine the basis on which the magistrate had issued the
warrant.

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DISCUSSION

¶8 Lewis argues the State committed prosecutorial misconduct
by making several improper statements during closing arguments that
deprived him of a fair trial and due process of law.2

¶9 Prosecutors are given wide latitude in their closing
arguments to the jury. State v. Boag, 104 Ariz. 362, 366 (1969). “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) (quoting State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998))
(internal quotation marks omitted). Prosecutorial misconduct constitutes
reversible error only if “a reasonable likelihood exists that the misconduct
could have affected the jury’s verdict, thereby denying defendant a fair
trial.” Id. (quoting State v. Anderson, 210 Ariz. 327, 340, ¶ 45 (2005)).

¶10 We first assess each claim of misconduct individually. The
applicable standard of review depends upon whether there was an
objection to the alleged misconduct. State v. Arias, 248 Ariz. 546, 555, ¶ 31
(App. 2020). When a defendant objects to a comment in closing argument,
we review for harmless error. Id. “Harmless error review places the burden
on the state to prove beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” State v. Henderson, 210 Ariz.
561, 567, ¶ 18 (2005). However, if the defendant fails to object, we review
only for fundamental error. Arias, 248 Ariz. at 555, ¶ 31. Fundamental error
is an error that goes to the foundation of the case, error that takes from the
defendant a right essential to his defense, or error so egregious the
defendant could not possibly have received a fair trial. State v. Escalante,
245 Ariz. 135, 142, ¶ 21 (2018). To prevail, a defendant must establish both
that fundamental error exists and that the error caused him prejudice.
Henderson, 210 Ariz. at 567, ¶ 20.

¶11 After determining which claims constitute error, we review
the cumulative misconduct to determine whether the total effect rendered
the defendant’s trial unfair. State v. Hulsey, 243 Ariz. 367, 388, ¶ 88 (2018).
Where a defendant claims multiple incidents of prosecutorial misconduct,

2 Lewis does not argue, and we do not separately find, that any
prosecutorial misconduct committed here also equated to professional or
ethical misconduct by the prosecutor. See In re Martinez, 248 Ariz. 458, 469-
70, ¶¶ 42-47 (2020).

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for which he failed to object, cumulatively deprived him of a fair trial, the
defendant must:

1) assert cumulative error exists; 2) cite to the record where
the alleged instances of misconduct occurred; 3) cite to legal
authority establishing that the alleged instances constitute
prosecutorial misconduct; and 4) set forth the reasons why the
cumulative misconduct denied the defendant a fair trial with
citation to applicable legal authority.

State v. Vargas, 249 Ariz. 186, 190, ¶ 14 (2020).

I. Comments About Lewis Going on a “Beer Run”

¶12 Lewis argues that the State improperly testified to facts not in
evidence by stating that Lewis had gone on a “beer run.” Specifically, the
prosecutor began his closing arguments by saying:

The State’s theory of the case is as follows: In the evening of
October 27th, 2017, the defendant was drinking some time
before 9:00 p.m. He ran out of alcohol and he needed to do a
beer run. The defendant made a decision to get into his
vehicle --.

At this point, defense counsel objected to the remarks, stating the
prosecutor was arguing facts not in evidence by claiming the defendant had
been consuming alcohol before he ran out and needed to go on a “beer run.”
The court called the parties to the bench for a conference out of the jury
panel’s hearing. The court agreed that there was no evidence of any kind
of a “beer run” but ultimately decided to overrule the objection after the
prosecutor stated he would move on.

¶13 While prosecutors are permitted to argue “all reasonable
inferences from the evidence,” they cannot “make insinuations that are not
supported by the evidence.” Hughes, 193 Ariz. at 85, ¶ 59. The State argues
that the prosecutor made a reasonable inference based upon the evidence,
which included a police officer observing Lewis driving erratically, leading
the officer to suspect Lewis was intoxicated and to conduct a traffic stop.
And upon conducting that traffic stop, the officer found a case of beer in the
passenger seat of Lewis’ car. Even assuming the “beer run” argument was
not a reasonable inference based upon the admitted evidence, the comment
was brief and inconsequential, and we cannot say it affected the jury’s
verdict. See Hulsey, 243 Ariz. at 392, ¶ 114.

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¶14 Although Lewis contends this statement “purposely injected
evidence ‘of a beer run’ into the case” to “support the State’s theory that he
was heavily impaired or drunk,” the State only needed to prove Lewis was
impaired to the slightest degree. Further, the prosecutor properly
characterized his argument that Lewis went on a “beer run” as the State’s
theory of the case. The court instructed the jurors that anything said in
closing arguments was not evidence and “[w]e presume that the jurors
followed the court’s instructions.” See State v. Newell, 212 Ariz. 389, 403,
¶ 68 (2006). We find no error.

II. Comments About Lewis’ Driving Speeds and the Risk of an Accident

¶15 Lewis also argues that the prosecutor improperly referenced
specialized knowledge and scientific opinions during closing arguments
when discussing Lewis’ driving speed. The prosecutor stated:

Of course as the speeds get up, the likelihood of death
substantially increases. And we all know from, once again,
life experience, when things happen at 70, 75 miles per hour
on a highway, 90 miles per hour on a highway, they don’t end
good. Vehicles just aren’t equipped to -- to handle crashes
that bad. And we know from our experience that had there
been an accident, had the defendant hit one of those cars, the
possibilities that could have happened are unlimited and that
a substantial and imminent risk was imposed to all those who
the defendant nearly struck being killed due to high speed,
highway speeds.

Lewis contends the prosecutor “attempted to mask” the statements as
common sense, when in reality this “sort of testimony comes from accident
reconstruction experts or scientific evidence or physics, and is not within
the general knowledge or common sense of a lay person or juror.” Lewis
did not object to these statements at trial. Therefore, Lewis has waived
review of this claim on appeal unless this court finds fundamental error.
Arias, 248 Ariz. at 555, ¶ 31.

¶16 The prosecutor committed no error by making these
statements, let alone fundamental error. It is common knowledge that
increased driving speeds increase the likelihood of death in the event of an
accident. See Hernandez-Diaz v. State, 577 S.W.3d 757, 759-60 (Ark. Ct. App.
2019) (stating that “common sense” supported conclusion that driver
“endangered others and manifested extreme indifference to human life”
through excessive speed (approaching 115 mph) and aggressive driving);

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Can. Life Assurance Co. v. Pendleton Mem’l Methodist Hosp., Civ. A. 98-3469,
1999 WL 243653, at *4 (E.D. La. 1999) (“The dangers of driving while
intoxicated and driving at excessive rates of speed while eluding arrest are
common knowledge . . . .”). The prosecutor was not required to hire an
accident reconstructionist to testify as to Lewis’ risk when speeding, as
Lewis contends on appeal. These statements were not improper and did
not result in error.

III. Refusal Evidence

¶17 Lewis also argues that the prosecutor improperly commented
on Lewis’ refusal to submit to breath or blood tests. Section 28-1388(D)
provides that:

If a person under arrest refuses to submit to a test or tests
under section 28-1321, whether or not a sample was collected
pursuant to subsection E of this section or a search warrant,
evidence of refusal is admissible in any civil or criminal action
or other proceeding. The issue of refusal is an issue of fact to
be determined by the trier of fact in all cases.

A.R.S. § 28-1388(D). Lewis contends that although his refusal to submit to
testing was admissible, the prosecutor committed misconduct by stating
Lewis’ refusal was indicia of his guilt.

¶18 Following the State’s presentation of evidence and out of the
presence of the jury, defense counsel brought up his concern to the superior
court regarding the admission of Lewis’ refusal to submit to sobriety
testing:

The whole idea that the State can argue that his refusal is
indicia of his guilt is a violation of the Fifth Amendment. If
counsel gets up and argues that, I’m going to object during
his closing. I’d rather not do that. I don’t like to do that, but
I don’t think you can argue that. You certainly can bring it
up, but the case law says you can bring it up and say he
refused, but you can’t argue saying because he refused
obviously he was guilty.

The superior court agreed with defense counsel, and the prosecutor
responded:

And, Judge, the State’s argument would be he refused, not the
result is that he’s guilty, but there’s a reasonable inference to

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be drawn from that refusal and that -- that reasonable
inference the State would infer is that he is under the
influence of alcohol.

The superior court responded:

I think that gets close. You know, I’m not sure exactly what
you’re going to argue to the jury, but if [defense counsel]
objects to that or you’re trying to get them to make the
inference because he refused he must be drunk, I think that’s
an improper inference for the State.

The prosecutor stated he understood defense counsel’s position, as well as
the court’s position.

¶19 However, during closing arguments, the prosecutor stated:

Defendant’s refusal to provide a blood and breath test.
There’s a reasonable inference to be drawn from that. The
reasonable inference why the defendant did not want to
provide breath or blood to a law enforcement officer in this
case is because he knew his level of impairment and he knew
that if he submitted to a test it would not show well for him,
it would not work in the benefit of -- in his benefit. It would
not exonerate him. It would convict him and so he chose not
to provide that evidence.

Defense counsel did not object to the statements. Later during closing, the
prosecutor again referenced Lewis’ refusal to submit to sobriety tests:

Defendant’s refusal to perform standard field sobriety tests.
It’s a reasonable inference that those tests are there to
determine one’s level of impairment. Defendant refused to
do those and the reasonable inference to be drawn from that
is that the defendant needed --.

¶20 Defense counsel objected before the prosecutor could finish
his sentence, and the superior court called a bench conference and excused
the jurors for a recess. Defense counsel stated that the prosecutor “was
getting ready to the say the inference is that [Lewis] was under the
influence.” Once more, the court warned the prosecutor, “I’m not going to
let you say the inference is he was under the influence so figure out
something else to say.” When the jury returned, the prosecutor once more
commented on Lewis’ refusal during closing, arguing that on the night of

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his arrest, Lewis was “not cooperating with the DUI investigation because
he knew it wouldn’t work in his favor.” Defense counsel did not object to
this statement.

¶21 “In evaluating the propriety of a prosecutor’s argument, this
court analyzes whether the remarks called to the jurors’ attention matters
that they should not consider, and whether, ‘under the circumstances of the
particular case, [the remarks] probably influenced’ the jurors.” State v.
Roque, 213 Ariz. 193, 224, ¶ 128 (2006) (quoting Sullivan v. State, 47 Ariz. 224,
238 (1936), abrogated on other grounds, State v. Escalante-Orozco, 241 Ariz. 254
(2017), abrogated on other grounds by Escalante, 245 Ariz. at 140 ¶¶ 15–16).
Here, the prosecutor’s comments were improper. Although A.R.S. § 28-
1388(D) allows for the admission of Lewis’ refusal to submit to blood or
breath tests, the prosecutor went too far in commenting on Lewis’ guilt.

¶22 While the United States Supreme Court has not held that
Fourth Amendment protections apply to criminal defendants subjected to
alcohol breath tests, the Court has held that a compelled blood draw is
subject to Fourth Amendment constraints. See Birchfield v. North Dakota, 136
S. Ct. 2160, 2177-78 (2016) (noting breath tests do not implicate significant
privacy concerns); Missouri v. McNeely, 569 U.S. 141, 148 (2013) (describing
a blood draw as “an invasion of bodily integrity [that] implicates an
individual’s ‘most personal and deep-rooted expectations of privacy’”
(quoting Winston v. Lee, 470 U.S. 753, 760 (1985))); see also State v. Butler, 232
Ariz. 84, 87, ¶ 10 (2013). Because Lewis has a Fourth Amendment right to
refuse a blood draw, the prosecutor improperly used this refusal as direct,
substantive evidence of Lewis’ guilt when he indicated Lewis refused the
test because he was impaired. See State v. Stevens, 228 Ariz. 411, 417, ¶ 16
(App. 2012) (holding it was error to permit “the State to introduce as direct
evidence of guilt that [the defendant] invoked her Fourth Amendment
rights and then argue she did so because she knew police would find illegal
drugs and drug paraphernalia inside her house” in a case involving
defendant’s refusal to allow a warrantless search of her home); see also State
v. Palenkas, 188 Ariz. 201, 212 (App. 1996) (finding violation of due process
rights to a fair trial in a case involving defendant’s refusal to consent to a
warrantless search because the prosecutor “creat[ed] an inference that
defendant’s invocation of constitutional rights was evidence of his guilt”).

¶23 Undoubtedly, admitting evidence of a defendant’s refusal to
submit to sobriety testing is an important and judicially recognized legal
consequence to deter impaired driving. See Birchfield, 136 S. Ct. at 2169,
2185; McNeely, 569 U.S. at 161; South Dakota v. Neville, 459 U.S. 553, 560
(1983). However, the legal consequence of such a refusal is not without its

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limitations. See Birchfield, 136 S. Ct. at 2185-86 (“Motorists may not be
criminally punished for refusing to submit to a blood test based on legally
implied consent to submit to them.”). Because, at a minimum, Lewis has a
Fourth Amendment right to refuse a compelled blood draw, the prosecutor
went a step too far in telling jurors the reasonable inference to be drawn
from Lewis’ refusal is that he was impaired, instead of allowing the jurors
to draw their own inferences.

¶24 Defense counsel did not make timely objections to the
prosecutor’s comments. Defense counsel objected twice to the prosecutor
stating Lewis’ refusal to submit to testing gave rise to the inference that he
was intoxicated. However, both objections were in anticipation to the
prosecutor making such statements. Defense counsel did not object once
the prosecutor actually made these statements, e.g., that Lewis did not
cooperate with the DUI investigation because “he knew his level of
impairment,” cooperation “would not exonerate him” but “it would
convict him,” and sobriety testing “wouldn’t work in his favor.” See State
v. Moody, 208 Ariz. 424, 464, ¶ 179 (2004) (finding a failure to make a
contemporaneous objection to prosecutor’s comments limited court’s
review “to one for fundamental error only”); see also State v. Lopez, 217 Ariz.
433, 434-35, ¶ 4 (App. 2008) (explaining to preserve an issue for appeal, a
party must make a timely objection, stating the specific ground of the
objection to give the court an opportunity to correct any error). Thus, we
review for fundamental error.

¶25 The State presented evidence that Lewis drove through a stop
sign, nearly hit a police officer’s vehicle, drove up the curb of a roundabout,
refused to immediately pull over after the officer turned on his lights and
sirens, crossed over the lane lines, drove on the wrong side of the road,
nearly collided with other vehicles, and drove at very high speeds. The
State also presented evidence that once Lewis was finally detained,
multiple officers smelled alcohol on Lewis, observed he had watery and
bloodshot eyes, slurred his speech, and had difficulty walking or standing.
Officers also testified that Lewis momentarily passed out in the police car’s
backseat shortly after detaining him. Given that the prosecutor was
allowed to admit into evidence Lewis’ refusal to submit to testing, and
given the overwhelming evidence supporting Lewis’ convictions, on
balance, the prosecutor’s comments on Lewis’ guilt did not deprive him of
a fair trial or due process. See Newell, 212 Ariz. at 403-04, ¶ 70; Arias, 248
Ariz. at 564, ¶ 73.

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IV. Appeal to the Jury’s Passions and Fears

¶26 Lewis argues the prosecutor improperly argued and appealed
to the passions and fears of the jury. During closing, the prosecutor stated:

You are the voice of this community. The State asks you to
hold him accountable. Look at the facts. Make the decision.
Hold him accountable for his actions. You’re on the highway.
Your children are on the highway. We all share that highway.

Defense counsel asked to approach the bench, and the court denied his
request. The prosecutor continued:

This is a social contract that we agree to. It’s a promise that
each and everyone of us makes to each other before we get in
that vehicle because if you can imagine the carnage, the death
and destruction should we ignore the common rules of the
road. There’s already enough accidents. The defendant
violated that principle and that promise to you.

After closing arguments concluded and the jury left to deliberate, Lewis’
counsel made a mistrial motion based upon the prosecutor’s statements.
The court agreed that the statements were inappropriate, although it did
not think the comments rose to the level of requiring a mistrial. The court
denied the motion, finding the comments were brief and not repeated
multiple times.

¶27 Lewis contends the court erred in denying the motion for a
mistrial. We review the superior court’s denial of a motion for mistrial for
an abuse of discretion. State v. Blackman, 201 Ariz. 527, 538, ¶ 41 (App. 2002).
Although the comments were inappropriate, the court did not abuse its
discretion in denying the motion for mistrial.

¶28 Counsel may not make arguments that appeal to the passions
and fears of the jury, and the prosecutor did just that by describing “the
carnage, the death and destruction” that can result from violating traffic
laws, and that the jurors and their children drive on the highway. See State
v. Mincey, 115 Ariz. 472, 484 (1977), rev’d on other grounds, 437 U.S. 385 (1978).
The prosecutor’s comments went beyond the bounds of appropriate closing
argument, and we strongly disapprove of them. However, we conclude
this error was harmless beyond a reasonable doubt. Given the
overwhelming evidence of Lewis’ guilt, the prosecutor’s comments did not
contribute to the verdict. See Chapman v. California, 386 U.S. 18, 22-23 (1967);
State v. Anderson, 110 Ariz. 238, 241 (1973). Additionally, “a mistrial is a

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‘most dramatic’ remedy that ‘should be granted only when it appears that
that is the only remedy to ensure justice is done.’” Blackman, 201 Ariz. at
538, ¶ 41 (quoting State v. Maximo, 170 Ariz. 94, 98-99 (App. 1991)). We find
reversal is not necessary to ensure justice in this case.

V. Cumulative Effect

¶29 Even if individual instances of prosecutorial misconduct do
not amount to error, their cumulative effect may demonstrate “that the
prosecutor intentionally engaged in improper conduct and ‘did so with
indifference, if not a specific intent, to prejudice the defendant.’” Roque, 213
Ariz. at 228, ¶ 155 (quoting Hughes, 193 Ariz. at 80, ¶ 31). “When assessing
cumulative error, this Court ‘consider[s] whether persistent and pervasive
misconduct occurred . . . .’” Hulsey, 243 Ariz. at 394, ¶ 122 (quoting State v.
Lynch, 238 Ariz. 84, 100, ¶ 51 (2015)). “We do not, however, reverse
convictions merely to punish a prosecutor’s misdeeds nor to deter future
misconduct.” State v. Cornell, 179 Ariz. 314, 328 (1994).

¶30 We conclude Lewis “was convicted based upon the
overwhelming evidence of [his] guilt, not as a result of prosecutorial
misconduct.” See Arias, 248 Ariz. at 565, ¶ 76. Again, because of the
overwhelming evidence of Lewis’ impairment and dangerous driving,
Lewis has not met his burden of showing that “without the error, a
reasonable jury could have plausibly and intelligently returned a different
verdict.” See id. (quoting Escalante, 245 Ariz. at 144, ¶ 31). Lewis has failed
to show that the actual misconduct in this case “so permeated and infected
his trial as to render it unfair,” and “thus failed to show that cumulative
error denied him due process.” Hulsey, 243 Ariz. at 394, ¶ 123.

CONCLUSION

¶31 For the foregoing reasons, we affirm Lewis’ convictions and
sentences.

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

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