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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 ANTHONY SCOTT, Appellant.
No. 1 CA-CR 22-0552
FILED 11-21-2023
Appeal from the Superior Court in Maricopa County
No. CR2021-123176-001
The Honorable David W. Garbarino, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Andrew Stuart Reilly
Counsel for Appellee
Maricopa County Office of the Legal Defender, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant
STATE v. SCOTT
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge D. Steven Williams and Judge Samuel A. Thumma joined.
M c M U R D I E, Judge:
¶1 Defendant Michael Anthony Scott appeals his conviction and
sentence for aggravated assault, a class 3 dangerous felony. He argues the
prosecutor committed error by diluting the burden of proof and appealing
directly to the jurors. He also argues that the superior court fundamentally
erred by imposing more than a presumptive sentence based on aggravating
factors that Scott alleges are improper. We affirm.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 In June 2021, Scott was in a restaurant parking lot and thought
he heard an employee insult him. In response, Scott entered the restaurant
and shouted at the employee. The restaurant manager tried to prevent Scott
from approaching the employee in the staff area and repeatedly told Scott
to leave the restaurant, but Scott ignored the manager’s demands. The
manager pushed Scott towards the door to defuse the situation. Scott
retaliated and stabbed the manager in the abdomen with a knife. Scott then
left the restaurant and waited on a curb for the police to arrive. The manager
was hospitalized and underwent surgery for a lacerated liver and
punctured stomach. The State charged Scott with aggravated assault.
¶3 During the State’s closing argument, the prosecutor
highlighted the court’s reasonable doubt jury instruction and explained it
further. The prosecutor stated that the law does not require “proof that
overcomes every doubt” or “proof beyond all doubt,” otherwise “[the State]
wouldn’t get a . . . conviction in any criminal case.” The prosecutor also
commented that proof beyond a reasonable doubt is “not the Hollywood
standard, proof beyond a shadow of a doubt,” and the jury “[does not] have
to be a hundred percent convinced that [Scott] did this.”
1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
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STATE v. SCOTT
Decision of the Court
¶4 Also, in response to Scott’s self-defense claim, the prosecutor
argued that Scott was not justified in stabbing the manager. The prosecutor
commented, “It matters what a reasonable person in [Scott’s] shoes would
have thought about whether deadly force was immediately necessary to
protect himself.” She added, “We picked each of you for this jury because
we believe you’re all reasonable people.”
¶5 After deliberations, the jury found Scott guilty of aggravated
assault. At the trial’s aggravation stage, the State alleged one statutory
aggravator under A.R.S. § 13-701(D)(9) (“The victim . . . suffered physical,
emotional or financial harm”), and five aggravators under the “catch-all”
aggravator statute, A.R.S. § 13-701(D)(27). The jury found the aggravators
alleged were proven beyond a reasonable doubt. Relying on all six
aggravating factors and weighing them against three mitigating factors, the
superior court sentenced Scott to ten years’ imprisonment—two and a half
years more than the presumptive sentence. See A.R.S. § 13-704(A).
¶6 Scott appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
DISCUSSION
¶7 We review for fundamental error because Scott did not object
to the alleged errors at the trial. See State v. Escalante, 245 Ariz. 135, 138, ¶ 1
(2018); State v. Murray, 250 Ariz. 543, 548, ¶ 14 (2021). Thus, Scott must show
error that “goes to the foundation of [his] case, takes away a right essential
to the defense, or is of such magnitude that it denied [him] a fair trial.”
Escalante, 245 Ariz. at 138, ¶ 1. He also must show resulting prejudice. Id.
But “if the trial is found to have been unfair, prejudice is automatically
established, and no further showing is required.” Id.
A. The State Did Not Commit Prosecutorial Error.
¶8 To prevail on a prosecutorial error claim, the defendant must
show the prosecutor made an error that “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
Murray, 250 Ariz. at 548, ¶ 13 (quoting State v. Morris, 215 Ariz. 324, 335,
¶ 46 (2007)). More specifically, the defendant must show that an error
occurred and there is a “reasonable likelihood” the error “could have
affected the jury’s verdict, thereby denying defendant a fair trial.” Id.
¶9 Scott argues the prosecutor made statements during the
closing argument that diluted the burden of proof. Our supreme court
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STATE v. SCOTT
Decision of the Court
delineated the appropriate definition of proof beyond a reasonable doubt
in State v. Portillo, 182 Ariz. 592 (1995). That definition includes, in part,
[P]roof that leaves you firmly convinced of the defendant’s
guilt. There are very few things in this world that we know
with absolute certainty, and in criminal cases the law does not
require proof that overcomes every doubt. If, based on your
consideration of the evidence, you are firmly convinced that
the defendant is guilty of the crime charged, you must find
him/her guilty.
Id. at 596. The court directed the jury to apply this definition in its final
instructions.
¶10 Here, the prosecutor, in detailing proof beyond a reasonable
doubt to the jury, told the jurors:
As you’re all aware, to find the defendant guilty, you must
find that the State has proven each element of aggravated
assault beyond a reasonable doubt. Now, what is reasonable
doubt? It’s not a mere possible doubt. It’s sound, sensible,
logical doubt based on the evidence that came from the
witness stand.
Your jury instructions tell you that there’s very few things in
the world that we know with an absolute certainty, and in
criminal cases, the law does not require that proof—proof that
overcomes every doubt. If you’re firmly convinced that the
defendant is guilty, then—of the defendant’s guilt, then you
must find him guilty.
Proof beyond a reasonable doubt is not proof beyond all
doubt. It’s not the Hollywood standard, proof beyond a
shadow of a doubt. You don’t have to be a hundred percent
convinced that he did this. Ultimately, you’re never going to
be a hundred percent certain what happened because none of
you were present when this occurred.
The law recognizes this fact, and if it were any other way, we
wouldn’t get a criminal—or a conviction in any criminal case.
There are slight inconsistencies in nearly every criminal case,
which is why the prosecution only has the burden of proof
beyond a reasonable doubt and not proof beyond all doubt.
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STATE v. SCOTT
Decision of the Court
The prosecutor closed by stating, “The evidence presented here today
should leave you firmly convinced that the defendant intentionally used a
knife to stab [the manager].”
¶11 Scott argues that the prosecutor’s definition contradicts that
outlined in Portillo. But the prosecutor reiterated twice that a conviction is
required when the jury is “firmly convinced” of the defendant’s guilt. This
argument mimics the reasonable doubt definition in Portillo. See 182 Ariz.
at 596. Scott contends it was error for the prosecutor to comment that
beyond a reasonable doubt is not “beyond all doubt” or “beyond a shadow
of a doubt.” This language also tracks Portillo, which states that “the law
does not require proof that overcomes every doubt.” Id. Further, because
“proof that overcomes every doubt” is not required, the prosecutor’s
comment that the jury need not “be a hundred percent convinced that he
did this” was not error. See id. Finally, Scott argues the prosecutor erred by
detailing reasonable doubt as “sound, sensible, logical doubt,” but he fails
to explain how that language departs from reasonable doubt.
¶12 In support of his argument, Scott relies on Murray, in which
the court found fundamental error where the prosecutor “invited jurors to
conclude that if they thought ‘one or both defendants might be guilty,’ then
they must have been ‘persuaded by the evidence in the case beyond a
reasonable doubt.’” 250 Ariz. at 549, 554, ¶¶ 19, 40. The prosecutor’s
statements here do not reduce the State’s burden to the “might be guilty”
standard held erroneous in Murray. See 250 Ariz. at 549, ¶ 19. Rather, as
explained, the prosecutor’s arguments track the reasonable-doubt standard
mandated by Portillo. See 182 Ariz. at 596.
¶13 Scott also contends the State committed prosecutorial error by
directly appealing to the jurors. Prosecutors are given “wide latitude” in
their closing arguments but cannot make arguments that “appeal to the
passions and fears of the jury.” State v. Comer, 165 Ariz. 413, 426 (1990).
¶14 When arguing that Scott’s actions were not justified, the
prosecutor stated:
The defendant might truly believe that what he was doing
was self-defense, but that doesn’t matter. It matters what a
reasonable person in his shoes would have thought about
whether deadly force was immediately necessary to protect
himself against what [the victim] did.
We picked each of you for this jury because we believe you’re
all reasonable people. You’re allowed to use your common
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STATE v. SCOTT
Decision of the Court
sense in your deliberations to decide what a reasonable
person in the defendant’s situation would have done.
Scott fails to explain how the prosecutor’s reference to the jurors as
“reasonable people” is an “appeal to [their] passions and fears.” Cf. Comer,
165 Ariz. at 426-27 (A prosecutor’s characterization of the defendant as a
“monster,” “filth,” and the “reincarnation of the devil” was “an appeal to
the jury’s passion and prejudice.”).
¶15 Scott also argues that the prosecutor transformed the
objective “reasonable person” standard into a subjective one. See State v.
Carson, 243 Ariz. 463, 465, ¶ 9 (2018) (Justification provisions use objective
standards that depend on a “reasonable person[‘s]” belief.). Scott asserts
that by appealing to jurors as “reasonable people,” the prosecutor
instructed them to put themselves in Scott’s position. But the prosecutor
emphasized that the jurors, as reasonable people, were to “use [their]
common sense . . . to decide what a reasonable person in the defendant’s
situation would have done,” not what the jurors themselves would have
done. (Emphasis added.) Moreover, “a court should not lightly infer that a
prosecutor intends an ambiguous remark to have its most damaging
meaning or that a jury . . . will draw that meaning.” Houston v. Roe, 177 F.3d
901, 909 (9th Cir. 1999) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647
(1974)). The prosecutor’s “reasonable people” remark to the jury was not
error.
¶16 Because the prosecutor did not err, we need not conduct
further fundamental error analysis. See Murray, 250 Ariz. at 548, ¶ 14.
B. The Court Did Not Fundamentally Err When It Imposed an
Aggravated Sentence.
¶17 At trial, the jury found the following aggravating factors
beyond a reasonable doubt: (1) the offense caused physical, emotional or
financial harm to the victim; (2) the defendant’s actions required the victim
to have surgery shortly after the offense had been committed; (3) the way
the defendant assaulted or attacked the victim caused the victim severe or
extreme pain; (4) the defendant had a chance to walk away from the
confrontation; (5) the defendant’s actions had a deliberate quality in this
serious offense; and (6) the defendant failed to act responsibly during this
offense.
¶18 Scott argues that although the first statutory factor is correct,
see A.R.S. § 13-701(D)(9), the latter five “catch-all” factors under A.R.S.
§ 13-701(D)(27) are improper because they are duplicative of either the
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STATE v. SCOTT
Decision of the Court
statutory factor or the aggravated assault elements. He asserts that
aggravating factors two through six are improper, so his aggravated
sentence under A.R.S. § 13-704(A) is illegal.
¶19 The maximum term under A.R.S. § 13-704 may be imposed
when “one or more of the circumstances alleged to be in aggravation of the
crime are found to be true by the trier of fact beyond a reasonable doubt.”
A.R.S. § 13-701(C). And our supreme court reiterated in State v. Martinez,
“once a jury implicitly or explicitly finds one aggravating factor, a
defendant is exposed to a sentencing range that extends to the maximum
punishment.” See 210 Ariz. 578, 584, ¶ 21 (2005).
¶20 Scott does not challenge the court’s consideration of the
statutory aggravator. And once the jury found the statutory aggravator was
true beyond a reasonable doubt, the court could impose the maximum term
under A.R.S. § 13-704. Thus, we need not consider the propriety of the
“catch-all” aggravating factors because, regardless, the court could impose
an aggravated sentence. See A.R.S. § 13-701(C); Martinez, 210 Ariz. at 584,
¶ 21. Thus, the superior court did not err.
CONCLUSION
¶21 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
7