State v. Felix

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRISTOPHER FELIX, Appellant.

No. 1 CA-CR 21-0058
FILED 12-21-2021

Appeal from the Superior Court in Maricopa County
No. CR 2019-134566-001
The Honorable Stephen M. Hopkins, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jacob R. Lines
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Samuel A. Thumma and Chief Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Christopher Felix appeals his conviction and sentences for
theft of means of transportation. He contends that fundamental error
occurred because the prosecutor mentioned a “reasonable person
standard” during his rebuttal closing argument. Felix has not met his
burden to show that the prosecutor’s comment was “so egregious” as to
preclude a fair trial or that, without the comment, a reasonable jury could
have reached a different verdict. See State v. Escalante, 245 Ariz. 135, 142,
144, ¶¶ 21, 29 (2018). For that reason, we affirm.

BACKGROUND1

¶2 One summer morning, around 3 a.m., the victim drove into
his employer’s fenced lot in Tempe and parked his pickup truck just behind
the box truck he used for work. As he testified at trial, he turned off his
pickup, put the keys on the armrest—just as he “always” did, and then
moved his drink cooler from his pickup into the back of his work truck. As
he was setting the cooler down, he saw someone jump into his pickup and
turn on the headlights. The two men “star[ed] at each other for a little bit,”
at which point the victim realized he did not know the man.

¶3 The victim ran back to his pickup, and now clearly seeing
Felix inside, opened the door and asked, “what’re you doing?” Apparently
startled by the confrontation, Felix “put the [pickup] in reverse, . . . swerved,
turned around, and just pushed on the gas.” The pickup hit the victim in
the arm and then careened backwards in an arc before crashing into an
asphalt roller about 25 yards away.

1 We view the record in the light most favorable to sustaining the
jury’s verdict, resolving all inferences against Felix. See State v. Stroud, 209
Ariz. 410, 412, ¶ 6 (2005).

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¶4 The victim caught up to the pickup and found Felix trying to
“change gears and throw it in drive to take off.” The shifter malfunctioned,
and because the pickup was now stuck in reverse, the victim was able to
open the door and pull the keys out of the ignition. The victim told Felix he
was going to call the police, at which point Felix started “fighting with [him]
and kicking around,” but the victim was able to pin Felix in the pickup until
police arrived.

¶5 Officers Conklin and Allen responded. Officer Conklin
interviewed the victim, while Officer Allen Mirandized and interviewed
Felix. Felix told Officer Allen that he had been drinking and walking all
day, that he was lost, and that he had “no intentions” of getting into the
pickup when he entered the lot. He said that he took the pickup because he
was “tired of walking,” that he planned to leave the city, and that he “just
didn’t want to come back.” Felix acknowledged he did not own the pickup
and admitted he had no plans about where he would leave it.

¶6 The State charged Felix with theft of means of transportation
(auto theft) (Count 1), burglary (Count 2), and driving while under the
influence (DUI) (Counts 3, 4, and 5). At trial, the State presented testimony
from the victim and the two officers and introduced the officers’ body
camera footage. The defense presented no witnesses or exhibits. During his
closing argument, defense counsel argued Felix lacked the requisite intent
because he was confused, because he lacked motor control, and because he
had only driven the pickup after he was “startled” by the victim and
“freaked out.” During his rebuttal closing argument, the prosecutor
responded as follows:

And [defense counsel] keeps talking about freaking out. Well,
the defendant voluntarily was intoxicated. So we don’t know
exactly what his frame of mind was, but he was caught
stealing a car. I freak out if my wife catches me grabbing an
extra cookie before dinner or before bed. Of course, he freaked
out. This all comes down really to common sense.

When you came through security, I know they have got a sign
down there that says leave your guns, knives, bombs in your
car. It doesn't say leave your common sense, so I'm going to
ask you to use your common sense as you are going through
all of this.

What we’re dealing with here is a reasonable person
standard. We know that the defendant got into [the victim’s

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pickup]. We know that he put it in reverse, and we know that
he drove, and we know that he said he wanted to get out of
this city. It all ties together. And just because the defendant
got startled doesn’t mean it’s okay for him to steal someone’s
[pickup]. He put it in reverse, he drove it until he crashed it.
And if he hadn’t crashed it, maybe the [pin] wouldn’t have
fallen out of the gear shifter, and he would have gotten it into
drive and he would have got away. But he didn’t. He got
caught. And I ask you to consider everything and return
guilty verdicts on each count. Thank you.

(Emphasis added). Felix did not object to the prosecutor’s rebuttal
argument.

¶7 The jury found Felix guilty on the auto theft charge and two
of the DUI charges. It found him not guilty of burglary but guilty of the
lesser offense of criminal trespass. Felix appeals his conviction and
sentences for the auto theft charge.

DISCUSSION

¶8 Felix raises a single argument on appeal, contending that the
prosecutor misstated the law by referring to “a reasonable person
standard” during his rebuttal-closing argument. We review a single,
unobjected-to prosecutorial statement for fundamental error.2 State v.
Murray, 250 Ariz. 543, 549, ¶ 16 (2021) (citing Escalante, 245 Ariz. at 144,
¶ 31). Under this framework, a defendant bears the burden to show, first,
that a statement constitutes trial error, second, that the error was
fundamental, and third, that the error was prejudicial. Escalante, 245 Ariz.
at 142, ¶ 21.

I. Prosecutorial Error

¶9 Counsel have “wide latitude” in presenting closing
arguments. State v. Comer, 165 Ariz. 413, 426 (1990). “[C]ounsel may
summarize the evidence, make submittals to the jury, urge the jury to draw
reasonable inferences from the evidence, and suggest ultimate

2 The record discloses no sign the prosecutor acted in bad faith or
unethically in making the “reasonable person” comment. We will therefore
frame our discussion in terms of prosecutorial error rather than
prosecutorial misconduct. See In re Martinez, 248 Ariz. 458, 469–70, ¶¶ 46-47
(2020).

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conclusions.” State v. Bible, 175 Ariz. 549, 602 (1993). Among other things,
however, closing arguments may not misstate the law. Murray, 250 Ariz. at
549, ¶ 18.

¶10 In determining whether a prosecutor’s closing argument was
error, we consider “(1) whether the prosecutor’s statements called to the
jury’s attention matters it should not have considered in reaching its
decision and (2) the probability that the jurors were in fact influenced by
the remarks.” State v. Newell, 212 Ariz. 389, 402, ¶ 60 (2006). We examine the
statements in context, considering the entire record and the totality of the
circumstances. State v. Goudeau, 239 Ariz. 421, 466, ¶ 196 (2016).

¶11 Felix argues the prosecutor diluted the State’s burden to
prove his subjective intent by urging the jury to consider what a reasonable
person would have intended under the circumstances.3 The State counters
that the prosecutor was merely urging the jury “to use their common sense
and to judge the evidence as a reasonable person would.”

¶12 In context, considering the entire record, there is support for
both interpretations. Felix’s interpretation is more consistent with the
prosecutor’s use of the word “standard,” his subsequent marshalling of
facts from which the jury could infer intent, and his conclusion that “it all
ties together.” The State’s interpretation is more consistent with the
prosecutor’s preceding argument asking the jury to use common sense.
And it is more consistent with the final instructions the trial court gave
immediately before closing arguments; one of which directed the jury to
“[c]onsider all of the evidence in the light of reason, common sense, and
experience.”

¶13 We need not decide which interpretation the jury members
more likely favored, however. As explained below, even assuming the
prosecutor’s comment was error, Felix has not shown it was sufficiently
prejudicial as required under a fundamental error analysis.

3 Although asking whether a reasonable person would have possessed
criminal intent is somewhat illogical, it is at least conceivable that a jury
member might have understood the inquiry as what an average criminal
would have intended under the circumstances. See State v. Rhoads, 13
Wash.App.2d 1103, 1107 (2020), review denied, 476 P.3d 577 (2020)
(improper for prosecutor to argue, “would a reasonable person know this,”
where proof of actual knowledge was required).

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II. Fundamental Error and Prejudice

¶14 Felix argues the prosecutor’s rebuttal argument was
fundamental error because it relieved the State of its burden to prove his
subjective intent, impacted a key factual dispute, and invited the jury to
convict him on an improper theory of guilt. An error is fundamental if it (1)
“goes to the ‘foundation of a case,’” (2) “takes away an ‘essential right,’” or
(3) is “so egregious that a defendant could not possibly have received a fair
trial.” Escalante, 245 Ariz. at 141, ¶¶ 18–20. If the defendant proves
egregious error under the third prong, he has also established prejudice;
otherwise, he must show a reasonable jury “could have reached a different
verdict.” Id. at 142, 144, ¶¶ 21, 29 (emphasis in original).

¶15 To prove auto theft, the State had to prove, among other
things, that Felix “inten[ded] to permanently deprive the [victim] of the
[pickup].” See A.R.S. § 13-1814(A)(1). Felix did not testify at trial, as was his
right, and during closing, his counsel focused almost entirely on Felix’s lack
of intent. To the extent the prosecutor’s comment suggested to the jury that
it could employ an objective “reasonable person” standard, it may have
gone to the foundation of his case because it would have “directly
impact[ed] a key factual dispute” and “relieve[d] the prosecution of its
burden to prove [the auto theft] crime’s elements.” See Escalante, 245 Ariz.
at 141, ¶ 18. Assuming without deciding that the prosecutor’s comment was
fundamental error, however, Felix has not met his burden to show it was
egregious or otherwise sufficiently prejudicial.

¶16 To be egregious, prosecutorial error “must so profoundly
distort the trial that injustice is obvious without the need to further consider
prejudice.” Escalante, 245 Ariz. at 141, ¶ 20. Here, the prosecutor did not
directly or explicitly negate its burden to prove Felix’s intent beyond a
reasonable doubt. Cf. Murray, 250 Ariz. at 551, ¶ 27 (finding prejudice from
prosecutor’s dilution of reasonable doubt standard “self-evident”). Nor did
the prosecutor’s comments undermine Felix’s fundamental rights to a fair
trial. Id. (listing comments on defendant’s silence as one of “few” egregious
errors). Assuming the prosecutor’s comment was improper, on this record,
its effect was minimal.

¶17 To prove prejudice of the less obvious variety, a defendant
must show that, without the error, “a reasonable jury could have plausibly
and intelligently returned a different verdict.” Escalante, 245 Ariz. at 144,
¶ 31. This fact-intensive inquiry requires us to consider “the entire record,
including the parties’ theories and arguments as well as the trial evidence.”
Id. at 144, ¶¶ 29, 31.

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¶18 In this case, the comment Felix challenges was brief, making
up three words of a single sentence of a lengthy closing argument. In
addition, the trial court properly instructed the jury that “with intent to”
means “a defendant’s object is to cause [a certain] result or to engage in
[certain] conduct” and that the auto theft charge required proof that “the
defendant” acted with the requisite intent. (Emphasis added). And the
prosecutor walked the jury through these instructions in his closing
argument. We presume the jury followed these instructions. See Murray, 250
Ariz. at 553, ¶ 36.

¶19 Furthermore, in both of his closing arguments, the prosecutor
focused on Felix’s intent, telling the jury to think about “what did he want
to achieve” and “what his frame of mind was.” Defense counsel likewise
focused on Felix’s mental state, particularly his confusion and distress. In
this context, no reasonable jury would have interpreted the phrase
“reasonable person standard” as an invitation to disregard the jury
instructions and the subjective theories dominating both sides’ closing
arguments.

¶20 Felix argues the prosecutor’s “reasonable person” comment
was sufficiently prejudicial because it was the last argument the jury heard
before deliberation and because the evidence of Felix’s intent was weak and
circumstantial. While a prosecutor’s misstatement of the law is “most
impactful” during his rebuttal closing argument, there was no significant
impact here because the evidence of Felix’s intent was more than sufficient.4
Id. at 552, ¶ 32. The jury watched body camera footage in which Felix said
that he planned to leave the city, that he “just didn’t want to come back,”
and that he had no plans to return the pickup. Felix tried to drive away after
being confronted by the victim and tried to shift the pickup into drive and
leave again after he crashed. And, contrary to Felix’s argument, “[t]he
probative value of [this] evidence is not reduced because it is
circumstantial.” State v. Murray, 184 Ariz. 9, 31 (1995).

¶21 Felix contends he refuted this evidence because 1) he was
drunk, 2) he had no plans to keep or sell the pickup, 3) there was
inconsistent evidence on whether the pickup was running when he got into
it, 4) the shifter malfunctioned, and 5) he crashed within 25 yards of getting
into the pickup. He argues the jury could have concluded, absent the

4 Felix appears to challenge the sufficiency of the evidence only to
prove prejudice. To the extent Felix intends a direct challenge, substantial
evidence supports the jury’s verdict. See Stroud, 209 Ariz. at 411–12, ¶ 6.

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“reasonable person” comment, that he did not intend to steal the pickup
but had merely been “startled and knocked the vehicle into reverse.”

¶22 Felix’s argument fails for several reasons. First, voluntary
intoxication was not a defense for the requisite state of mind, as the court
instructed the jury. See A.R.S. § 13-503. Second, the issue was not what Felix
intended to do with the pickup; it was whether he planned to return it. See
State v. Jackson, 101 Ariz. 399, 402 (1966) (explaining a wrongful taking of
property without apparent intent to return it or explanatory circumstances
indicates intent to permanently deprive).

¶23 Third, the record shows the jury did not believe—and no
reasonable jury would believe—that Felix accidentally drove the pickup.
The victim testified that he took the keys out of the ignition and that the
shifter could malfunction if the driver shifted the gears too quickly or “in a
crash,” none of which supports Felix’s accidental-driver theory. Because
this theory was Felix’s only excuse for driving the pickup, the jury must
have believed the victim’s version of events. See State v. Schroeder, 167 Ariz.
47, 53 (App. 1990) (concluding that guilty verdict implied jury did not
believe only defense offered); see also State v. Clemons, 110 Ariz. 555, 557
(1974) (finding it “peculiarly within [jury’s] province” to disbelieve
defendant’s story).

¶24 Finally, the length or duration of Felix’s trip does not compel
the inference that he did not intend to steal the pickup; Felix’s inebriation
necessarily impaired his ability to drive long distances without crashing. In
sum, the evidence Felix relies on was largely immaterial to his intent,
especially given his conduct before and after the crash, as well as his plan
to take the pickup out of the city.

¶25 Felix also argues the evidence was insufficient because the
jury’s guilty verdicts on the auto theft and criminal trespass charges were
inconsistent with its not guilty verdict on the burglary charge. He contends
that, if the jury had believed he intended to steal the pickup, it would have
found him guilty of burglary, because the primary difference between the
burglary and criminal trespass charges was that burglary required proof of
his intent to commit a crime while illegally on the property. Compare A.R.S.
§ 13-1506(A)(1) with A.R.S. § 13-1503(A)(1). It is well settled, however, that
inconsistent verdicts are permissible in Arizona, partially because juries
may reach them for any number of reasons. Gusler v. Wilkinson, 199 Ariz.
391, 396, ¶ 25 (2001); State v. Zakhar, 105 Ariz. 31, 32 (1969). Because we do
not know which reasons motivated the jury here, its verdicts do not
establish a deficiency in the evidence.

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¶26 In sum, even if the prosecutor’s “reasonable person”
comment was fundamental error, Felix has not met his burden to show it
was sufficiently prejudicial.

CONCLUSION

¶27 For the reasons above, we affirm Felix’s conviction and
sentences.

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

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