State v. Anderson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 20-0021
1 CA-CR 20-0028
(Consolidated)
FILED 2-23-2021

Appeal from the Superior Court in Maricopa County
No. CR2019-100769-001
CR2011-138114-003
The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
 STATE v. ANDERSON
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 Michael Leroy Anderson appeals his convictions and
sentences for misconduct involving weapons and resisting arrest. For the
following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Anderson, his brother, and a group of his friends were
socializing at a bar one night when a security guard encountered them in
the men’s room. As the security guard addressed the group, he saw
Anderson drop a semiautomatic pistol on the floor. The guard reached for
the gun, but Anderson picked it up first. Anderson inadvertently released
the magazine when he retrieved the gun, and in reaching for the magazine,
he dropped the gun a second time. Anderson again grabbed the gun from
the floor, then tucked it in his waistband and walked away.

¶3 Security then called 9-1-1 to report that a patron had a gun.
Officers arrived a few minutes later, and the security guard directed them
to Anderson. Glendale Police Officer Millanes approached Anderson, but
Anderson’s friend D.C. stepped in front of Anderson, blocking the officer’s
path. As D.C. did so, he warned Anderson that police officers had arrived
at the bar.

¶4 After Officer Millanes moved D.C. out of his way, Anderson
looked directly at the officer. Officer Millanes was wearing a full police
uniform with police insignia on the back, front, and arms along with a
body-worn camera and a belt holding his gun, pepper spray, handcuffs,
and flashlight. Seconds later, Officer Millanes saw Anderson reach for his
waistband. Concerned Anderson was drawing his gun, Officer Millanes
grabbed Anderson’s left arm. Meanwhile, Officer Bullock had approached
Anderson from behind, and he grabbed Anderson’s right arm after he too
saw Anderson reach for his waistband.

¶5 Anderson pulled his arms away from the officers and
struggled to get free. Officer Hinte immediately joined the other officers in

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attempting to subdue Anderson, repeatedly commanding him to stop
resisting. As Anderson continued to struggle, the group traveled across the
bar’s dance floor, eventually striking a wall. Anderson struggled with the
officers for about thirty seconds before they could handcuff him.

¶6 An officer recovered Anderson’s gun from the dance floor,
where he had dropped it during the struggle. The incident was recorded
on the officers’ body-worn cameras. After Anderson was arrested, he told
an officer that “at first he didn’t know who it was, but then he realized who
it was who was behind him.”

¶7 The State charged Anderson with misconduct involving
weapons as a prohibited possessor, a class 4 felony (count 1), and resisting
arrest, a class 6 felony (count 2). The superior court granted Anderson’s
motion to sever the counts, and the two charges were tried separately.

¶8 The weapons-misconduct trial proceeded first. Anderson
testified and denied possessing the gun, explaining it belonged to one of his
friends at the bar. He admitted he was a prohibited possessor because he
was on felony probation at the time of his arrest. He acknowledged that
Officer Millanes’ body-worn camera video, and a still photograph
produced from it, showed he was looking at Officer Millanes when the
officer first approached him, but he said he did not remember seeing the
police uniform. After a five-day trial, a jury found Anderson guilty as
charged on count 1. A few months later, a jury at a second trial convicted
Anderson on count 2. Anderson did not take the stand in his resisting-
arrest trial.

¶9 The superior court sentenced Anderson as a category 3
repetitive offender to a presumptive term of 10 years’ imprisonment on
count 1 and a concurrent presumptive term of 3.75 years’ imprisonment on
count 2. Because Anderson was on probation when he committed the
offenses, the superior court found the convictions constituted violations of
Anderson’s probation and imposed a consecutive presumptive sentence of
3.5 years’ imprisonment in that matter. Anderson timely appealed, and this
court has jurisdiction pursuant to Arizona Constitution article VI, § 9, and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

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DISCUSSION

I. Sufficiency of the Evidence

¶10 Anderson first challenges the sufficiency of the evidence to
sustain his resisting-arrest conviction. Specifically, Anderson argues the
State failed to present substantial evidence at his second trial proving (1) he
was reasonably aware Officers Millanes, Bullock, and Hinte were police
officers, (2) he intended to prevent his arrest, and (3) he attempted to
prevent his arrest by using “violent” force. We review sufficiency of the
evidence de novo, viewing the facts in the light most favorable to sustaining
the verdict and resolving all inferences against the defendant. State v.
Burns, 237 Ariz. 1, 20, ¶ 72 (2015).

¶11 Our review of the sufficiency of evidence is limited to whether
substantial evidence exists to support the verdict. State v. Stroud, 209 Ariz.
410, 411, ¶ 6 (2005). “Substantial evidence is proof that reasonable persons
could accept as sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.” State v. Spears, 184 Ariz. 277, 290 (1996).
“Reversible error based on insufficiency of the evidence occurs only where
there is a complete absence of probative facts to support the conviction.”
State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (citation omitted). Sufficient
evidence upon which a reasonable jury can convict may be direct or
circumstantial, and “[w]e do not reweigh the evidence to decide if [we]
would reach the same conclusions as the trier of fact.” State v. Borquez, 232
Ariz. 484, 487, ¶¶ 9, 11 (App. 2013) (internal quotation marks and citation
omitted).

A. Elements of Resisting Arrest under § 13-2508(A)(1)

¶12 As charged in this case, the State needed to prove Anderson
(1) intentionally prevented or attempted to prevent, (2) a person reasonably
known to him to be a peace officer, (3) acting under color of official
authority, (4) from effecting an arrest, (5) by using or threatening to use
physical force against the officer. A.R.S. § 13-2508(A)(1). As recounted
supra ¶¶ 3-6, the officers were in full uniform, and Officer Millanes testified
that Anderson looked directly at him immediately after D.C. had alerted
Anderson that police officers were present. Body-worn camera video
depicted Anderson looking directly at Officer Millanes, which Anderson
acknowledged on cross-examination.

¶13 Furthermore, Anderson struggled with the officers for more
than thirty seconds, ignoring their demands to comply with their
instructions and stop resisting. See State v. Mitchell, 204 Ariz. 216, 219-20,

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¶ 19 (App. 2003) (explaining the act of “effecting arrest” is on-going,
beginning with the officer’s first physical contact and continuing even after
the arrest may be complete under the law). And in a post-arrest interview,
Anderson admitted that he eventually realized police officers were
attempting to arrest him. Therefore, even if a reasonable juror believed
Anderson was not initially aware that Officer Millanes and the others were
police officers, the juror could nonetheless conclude from Anderson’s
statement alone that he resisted arrest by continuing to struggle with the
officers after he recognized they were police.

¶14 On appeal, Anderson challenges the significance of three
items of evidence that he asserts the State solely relied on to prove he knew
police officers were arresting him. First, Anderson asserts the video
established that he looked in Officer Millanes’ direction for just “less than
one second,” arguing the time was too brief for him to recognize that Officer
Millanes was a police officer. Second, Anderson contends that although he
acknowledged that he looked at Officer Millanes’ uniform, his statement
did not amount to an admission that he was instantly aware Officer
Millanes was an officer. Third, he argues a juror could not determine from
his post-arrest statement when it was that he realized that police officers
were attempting to arrest him.

¶15 Notwithstanding these challenges, however, Anderson does
not argue the State failed to present evidence that he was aware Officers
Millanes, Bullock, and Hinte were police officers trying to arrest him. See
Soto-Fong, 187 Ariz. at 200. Rather, he argues the jurors should have
reached different conclusions from the State’s evidence. But evidence is not
rendered insufficient simply because reasonable jurors may draw different
conclusions from it. State v. Toney, 113 Ariz. 404, 408 (1976) (“Evidence is
not insubstantial simply because testimony is conflicting or reasonable
persons may draw different conclusions from the evidence.”). To the
contrary, because we resolve conflicts in the evidence against Anderson, his
evidentiary challenges are unavailing in our review.

¶16 In sum, a reasonable juror could conclude (1) Anderson was
aware that Officers Millanes, Bullock, and Hinte were police officers; (2) he
knew the officers were arresting him; and (3) he used physical force in
attempting to prevent his arrest. Therefore, sufficient evidence supports
Anderson’s resisting-arrest conviction.

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B. Purported Element of “Violent” Force under § 13-2508(A)(1)

¶17 Anderson further contends, for the first time on appeal, § 13-
2508(A)(1) required proof that he used “violent” physical force, asserting
the addition of “passive resistance” to the resisting-arrest statute implicitly
amended subsection (A)(1). See A.R.S. § 13-2508(A)(3), (C); 2012 Ariz. Sess.
Laws ch. 265, § 1 (50th Leg., 2d Reg. Sess.). Because § 13-2508(C) defines
“passive resistance” as “a nonviolent physical act or failure to act that is
intended to impede, hinder or delay the effecting of an arrest,” Anderson
argues the legislature intended that subsection (A)(1) would thereafter
require proof, conversely, of “violent” force.

¶18 We ordinarily review de novo issues of statutory
interpretation. State v. Dann, 220 Ariz. 351, 369, ¶ 96 (2009). However,
because Anderson failed to raise this argument below, he has forfeited the
right to obtain appellate relief on these bases unless he shows fundamental,
prejudicial error occurred. State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
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. Id. To
prevail, Anderson must establish both that fundamental error exists and
that the error caused him prejudice. Id.

¶19 When interpreting a statute, our objective is to “give effect to
the legislature’s intent.” State v. Jurden, 239 Ariz. 526, 530, ¶ 15 (2016).
“[W]e begin with the text” because it is “the best and most reliable index of
a statute’s meaning.” State v. Christian, 205 Ariz. 64, 66, ¶ 6 (2003). “If the
statutory language is unambiguous, we apply it as written without further
analysis.” Jurden, 239 Ariz. at 530, ¶ 15.

¶20 Anderson’s argument ignores the plain text of § 13-2508(A)(1)
and the statutory definition of “physical force” in § 13-105(32). See Christian,
205 Ariz. at 66, ¶ 6. Section 13-2508(A)(1) specifies, in relevant part, that a
defendant resists arrest under that subsection “by using or threatening to
use physical force.” As the jurors in the resisting-arrest trial were correctly
instructed, “‘[p]hysical force’ means force used upon or directed toward the
body of another person and includes confinement, but does not include
deadly physical force.” A.R.S. § 13-105(32). Neither § 13-2508(A)(1) nor
§ 13-105(32) requires use of “violent” force. If the legislature intended to
add such an element to subsection (A)(1) when it amended the resisting-
arrest statute in 2012, it would have done so explicitly. See Jurden, 239 Ariz.
at 530, ¶ 15.

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¶21 Anderson’s suggested interpretation would require us to
disregard the plain text of the statute, which we will not do. Id.; see Hart v.
Hart, 220 Ariz. 183, 187, ¶ 17 (App. 2009) (“[S]tandard principles of
statutory construction require that we do not judicially impose a
requirement the legislature has intentionally chosen not to require.”).
Anderson does not argue, much less demonstrate, that the language of
subsection (A)(1) or the statutory definition of physical force is unclear.
Accordingly, because we perceive no ambiguity in the language of the
statute, we apply it as written. See Jurden, 239 Ariz. at 530, ¶ 15.

¶22 Moreover, “[w]e presume that the legislature is aware of
existing case law when it passes a statute and that, when it retains language
upon which appellate decisions are based, it approves the judicial
interpretation.” State v. Aro, 188 Ariz. 521, 524 (App. 1997). Before the
legislature amended the resisting-arrest statute, Arizona courts had clearly
established that resisting arrest under subsection (A)(1) required proof
merely of minimal physical force, not “violent” force. See, e.g., State v. Lee,
217 Ariz. 514, 516-17, ¶ 12 (App. 2008) (explaining § 13-2508(A)(1) “does not
require any particular type of physical conduct so long as that conduct
qualifies as ‘physical force against the peace officer,’” including “minor
scuffling”) (quoting A.R.S. § 13-2508(A)(1)); State v. Sorkhabi, 202 Ariz. 450,
451-52, ¶¶ 2, 10 (App. 2002) (finding defendant’s conduct in “struggl[ing]
with” officers was “squarely under” § 13-2508(A)(1)).

¶23 To that end, when the legislature added “passive resistance”
as a means of resisting arrest, it retained the “physical force” language in
§ 13-2508(A)(1), without modification. And in so doing, the legislature
endorsed the well-settled judicial construction of what conduct subsection
(A)(1) forbids. See Aro, 188 Ariz. at 524.

¶24 Finally, we are unpersuaded by Anderson’s alternative
assertion that the resisting-arrest statute is unconstitutionally vague. As a
threshold matter, Anderson lacks standing to challenge the statute as
vague, given that his conduct falls clearly within its scope. Parker v. Levy,
417 U.S. 733, 756 (1974); State v. Tocco, 156 Ariz. 116, 119 (1988).

¶25 Even assuming Anderson has standing, the plain language of
subsection (A)(1) provides reasonable notice of the conduct it prohibits,
particularly in conjunction with the statutory definition of physical force.
State v. Burbey, 243 Ariz. 145, 149, ¶ 15 (2017) (“A statute is void for
vagueness if it fails to give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he [or she] may act
accordingly.”) (internal quotation marks and citations omitted). And the

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statute also requires proof of mens rea, further alleviating any purported
vagueness concerns. See Gonzalez v. Carhart, 550 U.S. 124, 149 (2007)
(“[S]cienter requirements alleviate vagueness concerns.”). Thus, we discern
no vagueness in the statute.

¶26 Anderson has failed to prove error occurred in the superior
court’s interpretation of the statute, let alone fundamental error.

II. Denial of Motion to Continue Sentencing Hearing

¶27 Anderson next argues the superior court erred by refusing his
request to continue his sentencing hearing. We review the superior court’s
denial of a continuance for abuse of discretion. State v. Barreras, 181 Ariz.
516, 520 (1995). We will not disturb the court’s ruling “unless the court’s
actions substantially prejudiced the defendant.” Id. (internal quotation
marks and citation omitted). The court does not abuse its discretion in
denying a continuance if the defendant failed to act diligently in securing
the attendance of a witness. State v. Richie, 110 Ariz. 590, 592 (1974).

¶28 Following the verdict at the resisting-arrest trial, the superior
court granted defense counsel’s request to set the sentencing hearing on a
date at least 45 days later, so that the defense had sufficient time to prepare
mitigation evidence. At the sentencing hearing, defense counsel orally
moved for a one-week continuance because Anderson’s family members
were not present to speak on his behalf. Defense counsel said she had tried
to contact the anticipated witnesses but had no explanation for their
absence. The prosecutor objected, noting the court had “set out sentencing
further than the 30 days to make sure everyone that could be here.” After
defense counsel acknowledged that the hearing had been set in accordance
with the parties’ schedules, the court denied the request.

¶29 First, the record refutes Anderson’s contention that the
superior court denied him a mitigation hearing; the court set a hearing at
which Anderson could call witnesses to testify in mitigation, but those
witnesses inexplicably failed to appear. Second, Anderson has not shown
how, with diligence, he was unable to secure his family members’
attendance at the hearing. Id. Anderson further fails to explain why the
witnesses could not have provided letters of support if they were not able
to attend.

¶30 Nor has Anderson demonstrated how denying the requested
continuance “substantially prejudiced” him. The defense asked the
superior court to consider Anderson’s family support both in defense
counsel’s written sentencing memorandum and in defense counsel’s oral

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presentation at the hearing. At the hearing, defense counsel also reminded
the court that Anderson’s family members had supported him by regularly
attending his trial. The record thus shows the court received, and therefore
considered, evidence that Anderson had family support for purposes of
mitigation. See State v. Cid, 181 Ariz. 496, 501 (App. 1995) (“[A]n appellate
court presumes that the trial court considered all relevant mitigating factors
in rendering its sentencing decision.”).

¶31 Anderson asserts he was prejudiced because the superior
court imposed a “greater-than-necessary sentence” on the probation-
violation matter, but he fails to explain why the presumptive term he
received was excessive. Anderson also complains he suffered prejudice
because he was unable to “make a record of his mitigation evidence that
might carry weight in a future proceeding.” Anderson’s speculative
arguments do not constitute substantial prejudice. See Barreras, 181 Ariz. at
520. Therefore, the superior court did not err in denying the continuance.

III. Alleged Prosecutorial Error1

¶32 Anderson argues the State engaged in prosecutorial error that
denied him a fair trial on the weapons-misconduct charge. Specifically, he
asserts the prosecutor (1) made personal attacks that improperly impugned
defense counsel’s integrity and (2) argued facts not in evidence. Anderson
also contends the cumulative effect of the purported errors violated due
process, requiring reversal.

¶33 “We evaluate each instance of alleged prosecutorial [error] to
determine if error occurred and, if so, its effect[,]” and we then address the
cumulative effect of any prosecutorial error. State v. Goudeau, 239 Ariz. 421,
465, ¶ 192 (2016). “When a defendant objects to an alleged act of
prosecutorial [error], we review the issue for harmless error; when a
defendant fails to object, we engage in fundamental error review.” Dann,
220 Ariz. at 373, ¶ 125.

¶34 Here, as shown infra ¶ 38, Anderson objected only to a single
comment by the prosecutor; we review that instance for harmless error.

1 As an initial matter, we note that Anderson does not argue, nor do
we determine in this proceeding, whether any ethical violation has
occurred. See In re Martinez, 248 Ariz. 458, 469-70, ¶¶ 42-47 (2020).
Therefore, we refer to the prosecutorial misconduct claims as prosecutorial
error. See id.

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Dann, 220 Ariz. at 373, ¶ 125. Because Anderson failed to object to any other
instance he cites, we review those challenges for fundamental error
resulting in prejudice. Id.

¶35 We will reverse a defendant’s conviction because of
prosecutorial error only if (1) error is present and (2) a reasonable likelihood
exists that the error could have affected the jury’s verdict. State v. Moody,
208 Ariz. 424, 459, ¶ 145 (2004). “The defendant must show that the
offending statements were so pronounced and persistent that they
permeate[d] the entire atmosphere of the trial and so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
State v. Gallardo, 225 Ariz. 560, 568, ¶ 34 (2010) (internal quotation marks
and citations omitted).

¶36 “Prosecutors have wide latitude in presenting their
arguments to the jury” but may not “make insinuations that are not
supported by the evidence.” State v. Morris, 215 Ariz. 324, 336, ¶ 51 (2007)
(internal quotation marks and citation omitted). “[D]uring 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.” State v. Bible, 175 Ariz. 549, 602 (1993). A
prosecutor may present “fair rebuttal to an area opened by the defense.”
State v. Gillies, 135 Ariz. 500, 510-11 (1983). “While commentary about the
defense’s theory is common, [a]n argument that impugns the integrity or
honesty of opposing counsel is . . . improper.” State v. Hulsey, 243 Ariz. 367,
390, ¶ 99 (2018) (internal quotation marks and citation omitted).

A. Asserted Personal Attacks

¶37 Anderson’s assertion that the prosecutor impugned defense
counsel’s integrity is based on the prosecutor’s repeated comments in
rebuttal closing argument, see infra ¶ 38, that the defense misled the jurors
in attempting to manufacture reasonable doubt. Relevant to that issue,
defense counsel began her opening statement at the weapons-misconduct
trial by telling the jurors, “[Anderson] is innocent. This is a case about a
mistaken identity. [Anderson] never had a gun.” Defense counsel then told
the jurors that the evidence would show that the misidentification resulted
from an insufficient police investigation:

Police made many assumptions based on one person’s
identification of [Anderson] as the person who had the gun.
One single person. They didn’t do any follow-up. They
didn’t interview the friends of—that [Anderson] was with.

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They didn’t interview his family members. They didn’t
interview the other people who were at the bar. They heard
from one security guard that [Anderson] had a gun, and that
was enough for them. No follow-up was needed.
[Anderson] was guilty.

¶38 Contrary to defense counsel’s assertions, the State presented
evidence that the police had in fact interviewed additional witnesses who
had been present at the bar. In rebuttal closing argument, the prosecutor
emphasized that defense counsel’s assertions in opening statement were
not borne out by the evidence2:

So what they’re trying to do is, they’re trying to throw out
anything that they can at you to try and create a reasonable
doubt. And I submit to you that that should not be persuasive
to you. Don’t forget, they’re the ones that misled you in
opening statement. They’re the ones that said the police
didn’t do any follow up. They’re the ones that said the police
didn’t interview the defendant’s friends. So from day one of
this trial they’ve been trying to mislead you.

....

They’ve been misleading you from day one.

Defense Counsel: Objection, personal attack.

Superior Court: The objection is overruled.

They’ve been misleading you from day one. So consider that
when you evaluate whether or not there’s reasonable doubt in
this case.

¶39 Furthermore, in closing argument, defense counsel asserted
that the security guard misidentified Anderson because the guard was
“probably tired.” Defense counsel also asked the jurors to consider the
absence of DNA testing, urging that “[i]f you want to know what the DNA
test on the gun would have been, what the results of that test would have
been, that’s reasonable doubt and you must find him not guilty.” Defense
counsel further pointed out that the State had failed to present surveillance

2 We highlight the comments that Anderson challenges on appeal.

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video from the bar: “If you wish there was surveillance video in the bar to
show exactly what happens, that means you have to vote not guilty.”

¶40 The prosecutor responded to defense counsel’s arguments in
the following portion of rebuttal closing argument:

They tried to make arguments about the evidence rather than
really analyzing what the evidence shows. They have to say,
well, [the security guard] is mistaken because he was
probably tired. What evidence was there presented to you
that he was probably tired? None. Absolutely none. They’re
making it up and they’re making it up to try and confuse you and
try and manufacture a reasonable doubt even though there is
no reasonable doubt in this case.

....

They also want to try and manufacture reasonable doubt with
the DNA evidence, so they say, well, because the State didn’t
do it, therefore, there’s reasonable doubt.

....

So again, what they’re doing is, they’re trying to create
reasonable doubt even though the State called the person who
tests the DNA to tell you that it would not have been helpful
in any way, shape or form.

¶41 Anderson argues the challenged remarks constituted
impermissible ad hominem personal attacks on defense counsel’s integrity,
resulting in an unfair trial. We disagree.

¶42 Anderson’s sole defense was that he had been mistakenly
identified as the person who possessed the gun at the bar. During opening
statement and closing argument, defense counsel attacked the police
investigation at length. In closing argument, defense counsel urged the
jurors to find reasonable doubt because of purported flaws in the
investigation.

¶43 Viewed in such context, although the prosecutor repeatedly
argued that Anderson’s defense was not credible, the criticism was not
impermissibly directed at defense counsel rather than defense theories.
Compare State v. Amaya-Ruiz, 166 Ariz. 152, 171-72 (1990) (finding no error
in prosecutor calling the defense a “smoke screen” and commenting that

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defense counsel “blind sided witnesses,” used “innuendo and inference,”
and made an “outrageous” argument), with Hulsey, 243 Ariz. at 390, ¶ 99
(finding a prosecutor’s comments equating defense counsel to Don Quixote
improperly impugned counsel’s integrity). We thus find no error in the
prosecutor’s argument that the defense’s attack on the investigation was an
attempt to divert the jurors’ attention from Anderson’s conduct.

B. Asserted Facts Not in Evidence

¶44 Anderson also challenges the prosecutor’s comment that “[a]
person who is not a prohibited possessor who is tapped on the shoulder by
an officer doesn’t start fighting.” He contends (1) the State presented no
evidence that Anderson had been “tapped on the shoulder” and (2) the
prosecutor’s use of the term “fighting” misstated the testimony.

¶45 We find no error. The security guard testified that an officer
“touched [Anderson] on his shoulder” when the police first approached
him, directly supporting the prosecutor’s comment. The prosecutor’s
characterization that Anderson “start[ed] fighting” with the officers was a
reasonable inference from the evidence that it took three officers more than
thirty seconds to subdue him. See State v. Jones, 197 Ariz. 290, 305, ¶ 37
(2000) (“Excessive and emotional language is the bread and butter weapon
of counsel’s forensic arsenal, limited by the principle that attorneys are not
permitted to introduce or comment upon evidence which has not
previously been offered and placed before the jury.”) (internal quotation
marks and citation omitted).

¶46 Anderson also protests the prosecutor’s remarks that “[t]here
wasn’t any evidence that there was surveillance video. And if there had
been, they could have presented surveillance video to you as well.”
Anderson contends the prosecutor’s comments improperly invited the
jurors to blame the defense for the absence of the video. But the
prosecutor’s comments were fair rebuttal to defense counsel’s argument,
see supra ¶ 39, that the State’s failure to obtain the video amounted to
reasonable doubt; they were not a comment on the defense’s failure to
present video evidence. See Gillies, 135 Ariz. at 510; see also State v. Alvarez,
145 Ariz. 370, 373 (1985) (“Prosecutorial comments which are a fair rebuttal
to areas opened by the defense are proper.”).

¶47 In sum, no prosecutorial error occurred in the challenged
instances, let alone error that would violate Anderson’s due-process rights.
Because we find no prosecutorial error in the individual allegations, no
cumulative error occurred. State v. Bocharski, 218 Ariz. 476, 492, ¶ 75 (2008)

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(“Absent any finding of [error], there can be no cumulative effect of [error]
sufficient to permeate the entire atmosphere of the trial with unfairness.”).

CONCLUSION

¶48 We affirm Anderson’s convictions and sentences.

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

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