No. 2 CA-CR 2018-0041 (Ariz. Ct. App. Jun. 10, 2019)

No. 2 CA-CR 2018-0041



COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant

Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20134960001
The Honorable Danelle Liwski, Judge


COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alexander M. Taber, Assistant Attorney General, Tucson
Counsel for Appellee
James Fullin, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant


Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Chief Judge:

¶1 Floyd Foster appeals from his convictions and sentences for unlawful possession of narcotic drugs, drug paraphernalia, burglary tools, and a firearm. Foster argues (1) the trial court erred in denying his motion for a mistrial based on the prosecutor's closing argument; (2) the court committed reversible error in not declaring a mistrial after the state introduced other-act evidence; and (3) resentencing is required because the court improperly instructed the jury on an aggravating factor. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Factual & Procedural History

¶2 "We view the evidence in the light most favorable to sustaining the convictions." State v. Gay, 214 Ariz. 214, ¶ 2 (App. 2007). In November 2013, after Foster was stopped by police for a license-plate violation, he was arrested for driving with a suspended license. Upon searching a backpack Foster was wearing, police discovered a handgun, a vehicle lock pick set, a glass methamphetamine pipe with residue, over forty grams of methamphetamine, and over ten grams of heroin. A search of a cell phone found in Foster's pocket revealed numerous text messages regarding the sale of drugs and vehicle theft, some of them addressed to "Floyd."

The trial court precluded the jury from hearing the initial charge leading to Foster's arrest.

¶3 The state charged Foster with possession of a dangerous drug for sale, possession of a narcotic drug for sale, possession of drug paraphernalia, possession of burglary tools, and possession of a deadly weapon by a prohibited possessor. After a five-day trial, a jury convicted Foster on all five counts. The jury also found the state had proven beyond a reasonable doubt two aggravating factors, namely that Foster "committed the offense(s) in consideration for receipt of or in expectation of receipt of anything of pecuniary gain" and "possessed a deadly weapon during the commission of the offense(s)." The trial court sentenced Foster to concurrent prison terms totaling 15.75 years.

Propriety of Prosecutor's Closing Argument

¶4 Foster first contends the trial court erred in denying his motion for mistrial on the grounds that, during closing argument, the prosecutor improperly implied defense counsel helped B.F., Foster's minor son, to fabricate Foster's defense. "[W]e will not disturb a trial court's denial of a mistrial for prosecutorial misconduct in the absence of a clear abuse of discretion." State v. Newell, 212 Ariz. 389, ¶ 61 (2006). "We 'will reverse a conviction for prosecutorial misconduct if (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial.'" State v. Gallardo, 225 Ariz. 560, ¶ 34 (2010) (alteration in Velazquez) (quoting State v. Velazquez, 216 Ariz. 300, ¶ 45 (2007)).

Because a defendant need not show that a prosecutor intended to present an improper argument to be entitled to relief, we have held that Arizona courts' traditional reference to such claims as "prosecutorial misconduct" can be semanticalry misleading. Where possible, we therefore discuss whether the prosecutor's remarks were "improper" rather than discussing "misconduct." In so doing, we suggest no departure from the applicable law. See State v. Dansdill, No. 2 CA-CR 2017-0185, n.7, 2019 WL 2274956 (Ariz. Ct. App. May 28, 2019).

The parties disagree as to whether Foster timely objected to the state's closing argument. Because we find no error, we need not address whether Foster's objection was untimely, which would limit our review to fundamental error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018).

¶5 Foster's primary defense theory was that "he possessed the backpack that his son found solely for the purpose of disposing of it and its contents." Foster's son, B.F., testified at trial to the following: A couple of days before Foster's arrest, B.F. found a backpack in a yard adjacent to the property of T.F., Foster's former wife. Upon glancing inside, B.F. noticed a white powder and grew concerned the backpack contained drugs, so he hid it inside a toolbox in a shed on T.F.'s property. One or two days later, Foster discovered the backpack and confronted B.F., who told Foster the bag should not be around the house. Foster appeared angry and left the house. Foster was arrested carrying the backpack shortly after.

¶6 During cross-examination, B.F. testified he had not discussed the case with his father and no one had directed him to testify. After B.F.'s testimony, the state presented a recording of a phone call between B.F. and Foster from October 2014, nearly a year after Foster's arrest and approximately a month before trial. In that call from the jail, Foster asked B.F. if he "remember[ed] what color that thing was," and clarified "that thing" was "yours." Foster then told B.F. to have his grandfather "take [B.F.] down to talk to [Foster's] attorney as soon as possible, okay?"

¶7 Foster contends the prosecutor "insinuat[ed] without evidence that defense counsel provided Foster's defense to" B.F. Foster specifically objects to the following portion of the state's closing argument:

Well, remember, the very first time the State heard from the defendant's son was Wednesday before we started this trial, last week. The very first time the government heard this story was just before we started this trial. Not only should that settle any question that you have about what investigation could have also been done, it should tell you exactly how you should evaluate the credibility of everything that [B.F.] said on the stand, just like the fact that he was less than truthful about having spoken to his father about the case.

He is here in court testifying, after having spoken to the defense attorney about the case. Do you really think that even a teenager would forget how he came to be here? It is not an experience that anyone would forget the details of, even someone who is 14.

You heard an argument about, what kind of father wouldn't protect his son? I would ask you, who would put his son up to that story? What kind of father would that be?

Although prosecutors have a "duty to refrain from improper methods calculated to produce a wrongful conviction," Berger v. United States, 295 U.S. 78, 88 (1935), so long as they employ legitimate methods they "have wide latitude in presenting their closing arguments to the jury," State v. Jones, 197 Ariz. 290, ¶ 37 (2000). "[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). Prosecutors may also criticize "defense theories and tactics." State v. Ramos, 235 Ariz. 230, ¶ 25 (App. 2014) (quoting United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997)). On the other hand, closing remarks are improper if they "call to the attention of the jurors matters that they would not be justified in considering in determining their verdict." State v. Hansen, 156 Ariz. 291, 296-97 (1988). A closing argument that "impugns the integrity or honesty of opposing counsel is also improper." State v. Hughes, 193 Ariz. 72, ¶ 59 (1998).

¶9 Here, the trial court did not abuse its discretion by refusing to find impropriety in the prosecutor's single reference to B.F. speaking with Foster's defense attorney. Rather, the statement permissibly undermined the defense theory by impeaching B.F.'s credibility. By reminding the jurors that B.F. spoke first to Foster, then to Foster's attorney, the prosecutor undermined B.F.'s claims that he had not spoken with anyone about the case and that nobody had told him he should testify. This was just one of several prosecutorial statements intended to impeach the credibility of B.F.'s story about the backpack. And although the state permissibly suggested that Foster "put his son up to that story," read in the totality of the state's closing argument, it did not imply that Foster's defense counsel took part in that fabrication. Thus, the trial court did not abuse its discretion in denying Foster's motion for mistrial.

Evidence of Syringe in Foster's Holding Cell

¶10 Foster next contends the trial court erred by allowing the prosecution to present evidence of a syringe found in Foster's holding cell after his arrest and in denying Foster's related motion for a mistrial. "We review the admission of evidence and the denial of a mistrial for an abuse of discretion." State v. Burns, 237 Ariz. 1, ¶ 56 (2015). We find no such abuse of discretion here.

Foster did not move to preclude this evidence before trial.

¶11 After Foster's arrest, officers placed him in a holding cell in a police substation. An officer searched the cell for contraband before Foster was placed inside and again after he was removed. That officer testified he found no syringe in the cell before he placed Foster inside but discovered a syringe in the corner of the cell after Foster was removed. Due to a clerical error, the syringe was destroyed before either party could test it for DNA evidence or drug residue.

¶12 Foster did not contemporaneously object to the officer's testimony about the syringe, but he moved for a mistrial shortly afterward, arguing that testimony constituted other-act evidence, was irrelevant, and was unduly prejudicial. The trial court denied a mistrial but offered to strike the syringe testimony from evidence. Foster requested instead that the court provide an instruction pursuant to State v. Willits, 96 Ariz. 184 (1964). The court agreed to provide a Willits instruction and granted both parties' requests to continue questioning the officer regarding the syringe.

¶13 Foster argues the trial court should have granted his motion for mistrial because the evidence concerning the syringe was inadmissible other-act evidence and its probative value was outweighed by the danger of unfair prejudice. Although his opening brief challenges the admissibility of the syringe evidence, Foster did not move to preclude the evidence before trial, and he declined the court's offer to strike it, opting instead to cross-examine on the topic and receive a Willits instruction after the court declined to grant a mistrial. Thus, the trial court never ruled the evidence was admissible. Because Foster himself requested that the court not strike the testimony, we limit our analysis to whether the court abused its discretion by denying Foster's motion for mistrial. We conclude that it did not.

¶14 A declaration of mistrial is "the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Dann, 205 Ariz. 557, ¶¶ 43, 46 (2003) (quoting State v. Adamson, 136 Ariz. 250, 262 (1983) (affirming trial court's determination that improper, potentially prejudicial testimony did not warrant mistrial when "limiting instruction would cure the error"). Even when evidence has been improperly presented to the jury, a mistrial is not warranted unless there exists "a 'reasonable probability' that the verdict would have been different" had the evidence not been presented to the jury. State v. Hoskins, 199 Ariz. 127, ¶ 57 (2000) (quoting State v. Atwood, 171 Ariz. 576, 639 (1992)).

¶15 Here, it is not reasonably probable that the verdict would have been different. The evidence showed that Foster was carrying the backpack containing the illegal items at the time he was stopped. He admitted possessing the backpack. And the cell phone he carried contained numerous text messages regarding drug sales and vehicle theft. Foster's argument for acquittal turned on the credibility of his son's testimony about how Foster came to possess the backpack. That credibility was markedly undermined by the evidence of Foster's pre-trial conversation with B.F. Furthermore, the Willits instruction, which directed the jury that it must draw an unfavorable inference against the state if it found the state's explanation of the syringe's pre-testing destruction inadequate, reduced any inculpatory impact of that evidence. In short, any evidentiary weight the syringe evidence carried was cumulative to the state's affirmative evidence of guilt. Therefore, we do not find the court abused its discretion in refusing to grant a mistrial.

Jury Instruction on Aggravating Factor of Possession of a Firearm

¶16 Finally, Foster contends that, during the aggravation phase, the trial court erroneously instructed the jury that the state had alleged as an aggravating factor that Foster "possessed a deadly weapon during the commission of the offense(s)." The jury found this factor proven beyond a reasonable doubt. "We review de novo whether jury instructions adequately state the law." State v. Tucker, 215 Ariz. 298, ¶ 27 (2007). We consider jury instructions "as a whole to ensure that the jury receive[d] the information it need[ed] to arrive at a legally correct decision." State ex rel. Thomas v. Granville, 211 Ariz. 468, ¶ 8 (2005). Because Foster failed to object to the instruction at trial, we review only for fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). We find no such error.

Although the jury found both aggravating factors alleged by the state proven beyond a reasonable doubt, the court nonetheless sentenced Foster to presumptive terms for each conviction.

We disagree with the state that Foster waived this argument by failing to argue the alleged error was both fundamental and prejudicial. An "illegal sentence constitutes fundamental error." State v. Alvarez, 205 Ariz. 110, ¶ 18 (App. 2003) (quoting State v. Thues, 203 Ariz. 339, ¶ 4 (App. 2002)). Foster implies he was prejudiced, arguing that had the jury been properly instructed, it might not have found this aggravating factor proven beyond a reasonable doubt, which may in turn have influenced the trial court's "sentencing calculus."

¶17 Foster argues the challenged instruction should have required the jury to find "the weapon was used or available for use or was intended to further the drug offense," in accordance with State v. Petrak, which interpreted A.R.S. § 13-3102(A)(8), a substantive weapons misconduct statute. 198 Ariz. 260, ¶¶ 9-20 (App. 2000). Analogizing to Petrak, Foster argues the trial court should have instructed the jury that to find the aggravating factor proven beyond a reasonable doubt, it had to find a nexus between the firearm and the underlying drug offenses. But here, the relevant statute is A.R.S. § 13-701(D)(2): "Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime" constitutes an aggravating circumstance for the purposes of sentencing. Nothing in our jurisprudence suggests that the substantive offense of weapons misconduct addressed in Petrak applies to provisions of Arizona's statutory sentencing scheme.

Section 13-3102(A)(8) provides that "[a] person commits misconduct involving weapons by knowingly . . . [u]sing or possessing a deadly weapon during the commission of any felony offense included in chapter 34 of this title." Foster's convictions for drug-related offenses all arise under title 13, chapter 34.

Aggravating factors are distinct from substantive offenses, even where they share similar language or topics. See, e.g., State v. Coulter, 236 Ariz. 270, ¶ 8 (App. 2014) (treating definitions of "financial harm" in substantive criminal statutes as distinct from and irrelevant to A.R.S. § 13-701(D)(9), which identifies as an aggravating factor that a victim or a victim's family suffers financial harm). --------

¶18 Furthermore, even were we to conclude that Petrak applies to jury instructions regarding A.R.S. § 13-701(D)(2), we would not find prejudice here because Petrak's reasoning does not favor reversal on this record. As Foster emphasizes, Petrak required a court to "instruct the jury that it was required to find that the weapon was used or available for use or was intended to further the drug offense." 198 Ariz. 260, ¶ 20. The court reasoned that there must be "more than a mere temporal nexus between the weapon and the crime alleged," id. ¶ 19, to avoid the absurd result of presenting a defendant with an aggravated sentence simply for owning a firearm during the commission of a drug offense, id. ¶ 16. However, Petrak also held that "[f]actors tending to show that the weapon was or could be used in this way for a drug offense include the spatial proximity and accessibility of the weapon to the defendant and to the site of the drug offense." Id. ¶ 19. The record here reflects that the backpack Foster carried on his person constituted "the site of the drug offense," as it contained the drugs he was convicted of possessing. It also contained the firearm in close proximity to the drugs in his possession. Under these facts, Foster cannot demonstrate prejudice because he has not shown that "a reasonable jury . . . could have reached a different [verdict]" even had it been instructed in conformity with Petrak. Escalante, 245 Ariz. 135, ¶ 29 (emphasis and alteration in Escalante) (quoting State v. Henderson, 210 Ariz. 561, ¶ 27 (2005)).


¶19 For the foregoing reasons, we affirm Foster's convictions and sentences.