Opinion
2 CA-CR 2023-0120
07-29-2024
The State of Arizona, Appellee, v. Mustafa Shayan, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Rebecca Jones, Assistant Attorney General, Phoenix Counsel for Appellee Tucson Defenders: Attorneys at Law, Tucson By Arianna D. Price and Nicholas M. Loncar Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20153451002 The Honorable Catherine Woods, Judge The Honorable Richard E. Gordon, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Rebecca Jones, Assistant Attorney General, Phoenix Counsel for Appellee
Tucson Defenders: Attorneys at Law, Tucson By Arianna D. Price and Nicholas M. Loncar Counsel for Appellant
Judge Kelly authored the decision of the Court, in which Vice Chief Judge Eppich and Judge Vasquez concurred.
MEMORANDUM DECISION
KELLY, JUDGE
¶1 Mustafa Shayan appeals his convictions and sentences for kidnapping and sexual assault. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Shayan. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In March 2012, sixteen-year-old T.S. snuck out of her aunt's home to meet "Andy," a person she had been communicating with online, later identified as Shayan's brother, Murtaza Shayan. Murtaza drove T.S. to his home, after telling her they were going to play video games. When they arrived, they were met by Mustafa Shayan, whom T.S. did not know. A short time later, Murtaza grabbed T.S.'s arm and pulled her into his bedroom. He pushed her onto his bed, forcefully undressed her, and despite her refusals, "[p]ut his penis in [her] vagina" for a "couple of minutes."
¶3 Murtaza eventually stopped because Mustafa entered the room. The brothers spoke to each other in a language T.S. did not understand. Murtaza then left the room and Mustafa attempted to engage T.S. in oral sex. T.S. refused and moved away from him, at which time Mustafa began to forcefully penetrate her vagina with his penis. He then pulled T.S. into the bathroom where he tried to get her into the shower, but she refused. Mustafa sexually assaulted her in the bathroom and then moved her again to the kitchen, where he sexually assaulted her on the kitchen floor and ejaculated partially on her arm.
¶4 In an effort to get Mustafa to stop and to create an opportunity to escape, T.S. told him that she was hungry, causing him to leave the house to pick up food. While Mustafa was gone, T.S. retrieved her cell phone, texted her cousin and her aunt that she had been raped, and sent Murtaza's cell phone number to her aunt. Her aunt called Murtaza and demanded that he bring T.S. home.
¶5 Murtaza left T.S. near her aunt's home, and Tucson Police Department officers arrived after she returned to the house. An officer then drove T.S. to identify the residence where the assault had taken place, she was interviewed by a detective, and she was taken to the hospital where she underwent a sexual assault examination. Police obtained and served a search warrant for the home T.S. had previously identified, where they located Murtaza and Mustafa Shayan.
¶6 Detectives took them both to the police station where they were interviewed, DNA swabs were collected, and they were released pending further investigation. Detective Gabriel Rivera ultimately failed to complete the investigation, and another detective took over the case in 2015. Murtaza and Mustafa were then charged with multiple counts of kidnapping and sexual assault, but charges against Murtaza were dismissed without prejudice in 2017.
¶7 In 2023, after a seven-day trial, a jury found Mustafa Shayan guilty of three counts of sexual assault and one count of kidnapping. The jury found as aggravating factors that the victim was a minor and, as to the sexual assault counts, that the victim had suffered physical harm. The trial court determined that Shayan had two historical prior felony convictions and sentenced him to 47.25 years in prison. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
The transcript of the seventh day of trial on January 25, 2023, shows that the court clerk read the verdicts on Counts 5 and 6 into the record as "guilty." The verdict forms, however, reflect a "not guilty" verdict on each of those counts. Likewise, the trial court's minute entry of that date indicates that the verdicts on these counts were "not guilty." The record contains three different sentence notification forms, two of which reflect three sexual assault convictions and one of which reflects five. During the aggravation phase of trial, the jury was presented with verdict forms as to only three sexual assault convictions. The defendant's motion for new trial stated that the jury had acquitted him on two counts, and the state agreed in its response. Although we have commonly stated that in the sentencing context, when there is a discrepancy between them, the "[o]ral pronouncement in open court controls over the minute entry." State v. Ovante, 231 Ariz. 180, ¶ 38 (2013) (quoting State v. Whitney, 159 Ariz. 476, 487 (1989)). But the circumstances here differ. See State v. Wheeler, 108 Ariz. 338, 342 (1972) (conflicts between minute entry and transcript resolved based upon specific circumstances of case). A jury's verdict is binding when "the court accepts it and the jury is discharged." State v. Martinez, 198 Ariz. 5, ¶ 11 (App. 2000) (quoting State v. Peters, 855 S.W.2d 345, 349-50 (Mo. 1993)). Under Rule 22.5, Ariz. R. Crim. P., a court may discharge the jury "when its verdict has been recorded under Rule 23." That rule requires that the verdict be in writing, signed by the foreperson, and returned to the judge. Ariz. R. Crim. P. 23.1(a). Thus, the jury's verdict forms here, in writing and signed by the foreperson, became binding upon discharge of the jury. In this context, and in view of the record before us, we determine that the court's written documents, rather than the transcript, correctly state the jury's verdict. See Wheeler, 108 Ariz. at 342.
Discussion
¶8 Shayan raises four claims of error on appeal. He argues that the trial court erred by not sua sponte ordering a competency evaluation, by admitting into evidence statements T.S. had made to the sexual assault nurse examiner, and by granting the state's motion in limine precluding evidence related to Detective Rivera. He also asserts that the state committed prosecutorial misconduct in closing argument.
Competency Evaluation
¶9 Shayan argues that the trial court violated his due process rights by failing to order an evaluation "to determine his competency to stand trial." Shayan asserts broadly that the sheer number of attorneys who withdrew from his representation, along with their statements to the court that he was generally uncooperative, as well as references to potential mental health issues made before trial and at sentencing, required the court to order a competency examination sua sponte.
¶10 "The trial court has broad discretion in determining whether reasonable grounds exist to order a competency hearing and its decision will not be reversed absent a manifest abuse of discretion." State v. Amaya-Ruiz, 166 Ariz. 152, 162 (1990). We likewise review the trial court's decision not to order a competency evaluation sua sponte for an abuse of discretion. See State v. Kemp, 185 Ariz. 52, 67 (1996). Because Shayan did not raise this issue below, we review only for fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). This standard requires Shayan to demonstrate that "(1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. ¶ 21. Under the first two prongs, Shayan must also make a showing of prejudice. See id. However, if Shayan "establishes the third prong, he has shown both fundamental error and prejudice, and a new trial must be granted." Id.
¶11 In 2021, Shayan's first court appointed attorney stipulated that Shayan's case was "being reassigned to a different attorney in the Legal Defender's Office." Two weeks later, the new attorney filed a motion to withdraw, claiming irreconcilable differences. Shayan's third attorney was then appointed. During an August 2021 hearing, Shayan orally requested to represent himself and to replace his court-appointed attorney. In making this request, he cited several rules of Arizona Criminal Procedure. The trial court denied the motion, finding that he was not competent to represent himself.
¶12 In September 2021, Shayan made another oral request for new counsel, which the trial court again denied. At the next status conference, Shayan refused transport, and his attorney informed the court that Shayan was unwilling to meet and cooperate with him. In October 2021, Shayan again moved to have a new lawyer appointed, and the court granted his motion and appointed his fourth counsel.
¶13 In December 2021, Shayan's counsel moved to withdraw, again citing irreconcilable differences. During this hearing, Shayan made an oral motion to dismiss the case. The trial court denied the motion. Shayan then filed a motion requesting final disposition and, at a subsequent hearing, again moved to represent himself. The court granted the motion, finding that Shayan had knowingly, intelligently and voluntarily waived his right to court-appointed counsel and had satisfied the standard of competency to represent himself. Shayan filed a notice of defense and an "Entry of Not Guilty Pleas and Advisements."
¶14 In February 2022, Shayan filed a request in English that a Spanish language interpreter be appointed to aid him. He reasoned that he wanted a Spanish interpreter because he did not believe that the Farsi interpreter who had been assisting him throughout the proceedings was accurately translating what he said. In March 2022, with a Spanish language interpreter present, Shayan informed the trial court that he wanted to proceed in English, retaining the interpreter on standby. Later that month, Shayan retained a new attorney to represent him.
¶15 In August 2022, his attorney moved to withdraw, explaining that he had a non-waivable legal conflict that forced him to withdraw. The trial court granted the motion and appointed another attorney to represent Shayan in September 2022. This attorney represented Shayan throughout his trial.
¶16 Shayan was not assisted by an interpreter during trial. However, Shayan addressed the trial court during trial, informing the court that the Farsi-to-English translation of the transcript from his recorded interview with Detective Rivera was incorrect. He argued that the transcript did not accurately reflect what he had said.
¶17 Additionally, before trial, the state moved to preclude evidence related to Shayan's mental health, refugee status, and childhood trauma. In this motion, the state noted that Shayan had indicated that he likely suffered from Post-Traumatic Stress Disorder. During trial, Shayan told the trial court that he received SSI payments due to a mental illness. However, Shayan did not raise a mental health defense. Pursuant to the court's ruling granting the state's motion, the court instructed Shayan that he was permitted to testify as to his general background, but he was not permitted to testify about having been a war refugee, a prisoner of the Taliban, or about any mental illnesses he claimed were related to those experiences. Shayan then testified in English and properly followed the court's instructions. After trial, his attorney filed a motion to withdraw. The court granted her motion, and a new attorney was appointed to represent Shayan at sentencing.
¶18 Neither Shayan nor any of the attorneys who represented him throughout these proceedings asked the trial court to order a competency evaluation. However, a court has a continuing obligation "to inquire into a defendant's competency, and to order a [R]ule 11 examination sua sponte if reasonable grounds exist." Amaya-Ruiz, 166 Ariz. at 162; Ariz. R. Crim. P. 11.3(a)(2) (defendant entitled to mental health examination where reasonable grounds exist); Ariz. R. Crim. P. 11.2(a)(1) ("the court may, on motion or on its own, order a defendant's examination to determine whether the defendant is competent to stand trial" at any time after indictment); see also Drope v. Missouri, 420 U.S. 162, 181-82 (1975). "Reasonable grounds exist when 'there is sufficient evidence to indicate that the defendant is not able to understand the nature of the proceeding against him and to assist in his defense.'" Amaya-Ruiz, 166 Ariz. at 162 (quoting State v. Borbon, 146 Ariz. 392, 395 (1985)). The question is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as a factual understanding of the proceedings against him." Id. at 161-62 (quoting Dusky v. United States, 362 U.S. 402, 403 (1960)).
¶19 Shayan asserts for the first time on appeal that he "was incapable of assisting in his defense as evidenced by the number of attorneys who withdrew as counsel citing irreconcilable differences, and stating on the record that [Shayan] was refusing to cooperate or meet with them." However, he provides no legal authority to support his claim that multiple substitutions of counsel and a tendency to be uncooperative with counsel translate to an inability to understand the nature of the proceedings against him or assist in his defense. See id. at 162 (holding "trial court did not abuse its discretion in refusing defendant's requests for an additional [R]ule 11 examination based on his failure to cooperate with counsel"). Moreover, Shayan points us to nothing in the record that would indicate a lack of understanding. Indeed, in contradiction to his claim of error, the record before us contains numerous examples of Shayan assisting capably in his own defense.
¶20 In determining whether reasonable grounds exist to question a defendant's competency, a trial court may rely on its "observations of the defendant's demeanor and ability to answer questions." State v. Moody, 208 Ariz. 424, ¶ 48 (2004). Here, the court observed and interacted first-hand with Shayan consistently throughout the proceedings. Shayan made and filed numerous pro se motions, and at one point the court deemed him competent to represent himself. During trial, Shayan advocated for himself by requesting that a translator testify as to what he had said in his interview because he argued the transcript was inaccurate. This not only demonstrated Shayan's ability to assist in his own defense, it also reflected his understanding of the evidentiary value of his prior statements, which the state sought to use against him. Furthermore, Shayan responded appropriately to questions on direct and cross examination, and followed the court's instructions as to the parameters of his testimony in light of the court's rulings in limine. Nothing in the record before us suggests Shayan lacked the ability to consult with his lawyer or to understand the proceedings. See Dusky, 362 U.S. at 402.
¶21 Finally, Shayan argues that evidence of his mental illnesses were reasonable grounds for the trial court to order a competency evaluation. The limited evidence in the record indicating that Shayan may have suffered from mental illness does not constitute reasonable grounds, standing alone, to doubt his competency to stand trial. See A.R.S. § 13-4501(3) ("presence of a mental illness, defect or disability alone is not grounds for finding a defendant incompetent to stand trial"); see also Ariz. R. Crim. P. 11.1(b) ("defendant is not incompetent to stand trial merely because the defendant has a mental illness, defect, or disability"). Shayan's behavior during trial did not indicate an inability to understand and assist with the trial proceedings. See Amaya-Ruiz, 166 Ariz. at 162-63. Therefore, any history of mental illness does not compel a contrary conclusion. See § 13-4501(3); Ariz. R. Crim. P. 11.1(b). On the record before us, the court did not abuse its discretion in failing to sua sponte order a competency evaluation. See Kemp, 185 Ariz. at 67. As such, we find no error.
Statements Made for Medical Diagnosis or Treatment
¶22 Next, Shayan argues that the trial court erred by admitting into evidence statements that T.S. made to Nurse Welch during her sexual assault examination. We review a court's evidentiary ruling for a clear abuse of discretion. Amaya-Ruiz, 166 Ariz. at 167. At trial, Shayan objected to Welch testifying as to the narrative statements T.S. made to her during the course of Welch's examination. He argued that these statements were inadmissible hearsay. The court denied Shayan's motion, concluding that the statements were made for the purpose of medical diagnosis or treatment.
¶23 Under Rule 801(c), Ariz. R. Evid., hearsay is any out-of-court statement offered into evidence "to prove the truth of the matter asserted." Subject to certain exceptions, hearsay "is not admissible." Ariz. R. Evid. 802. Excepted statements include those made for the purpose of medical diagnosis or treatment, which is any statement that "is made for-and is reasonably pertinent to-medical diagnosis or treatment" and "describes medical history; past or present symptoms or sensations; their inception; or their general cause." Ariz. R. Evid. 803(4). The rationale behind this exception is "that doctors will seek and patients will give reliable information to further necessary medical treatment." State v. Robinson, 153 Ariz. 191, 199 (1987). We apply a two-part test to evaluate admissibility under Rule 803(4): "(1) was the declarant's apparent 'motive . . . consistent with receiving medical care;' and (2) was it 'reasonable for the physician to rely on the information in diagnosis or treatment.'" Id. (quoting State v. Jeffers, 135 Ariz. 404, 420-21 (1983)).
¶24 Shayan urges on appeal as he did below that the facts of this case are analogous to our unpublished decision in State v. Smith, No. 2 CA-CR 2016-0206, 2018 WL 313081 (Ariz. App. Jan. 5, 2018). Shayan contends that Nurse Welch's testimony as to what T.S. told her about the assault was inadmissible hearsay under the rationale employed in Smith. The Smith court expressed skepticism that the victim's statements to a nurse examiner satisfied the Rule 803(4) exception when the exam's purpose was for the collection of evidence, as opposed to medical diagnosis or treatment. Id. ¶ 18. In Smith, however, the victim had already been treated by hospital staff at a hospital before she was transported by police officers to an advocacy center where she underwent a sexual assault examination and made statements to an examiner whose only responsibility was "conducting forensic examinations on crime victims." Id. ¶¶ 16-18. We assumed without deciding that because the victim had already been treated and discharged from the hospital, her subsequent examination at the advocacy center was provided by a law enforcement agency at the direction of an officer, and her statements made there were likely inadmissible hearsay not subject to the Rule 803(4) exception. Id. ¶ 18.
¶25 However, the facts here are unlike those in Smith, and mirror instead the facts of State v. Lopez, 217 Ariz. 433 (App. 2008). In Lopez, this court concluded that the victim's statements to a nurse during a sexual assault examination were admissible under Rule 803(4). Id. ¶¶ 2, 19. There, the victim had been taken to a hospital and examined by a registered nurse. Id. ¶ 2. The nurse testified that the main purpose of the exam was to look for injury, and its secondary purpose was collection of evidence. Id. The nurse also explained that it had been necessary to ask the victim what happened to assist her in looking for injury. Id. The court reasoned both that "it was reasonable for a physician to rely on the information in diagnosis and treatment," and that the trial court "could reasonably have concluded that the primary objective of the examination was to check for injury." Id. ¶¶ 13-14.
¶26 Here, Nurse Welch was employed as an emergency room nurse and, as in Lopez, testified that the "primary focus" of sexual assault examinations is "for the purposes of medical diagnosis and treatment," and ensuring that the "patient is taken care of medically." See id. ¶ 2. She expressed that the secondary purpose of the exam was forensic, which included collecting DNA swabs, clothes, and blood. Welch described her examination of T.S. in March 2012 at Tucson Medical Center, which included a narrative statement T.S. had made during the examination regarding the details of the assault. We conclude these statements were made in the course of treatment. See Robinson, 153 Ariz. at 199.
¶27 Nurse Welch testified that the purpose of eliciting a narrative from T.S. was to look for injury. Specifically, she stated that asking "the patient what happened," had guided her exam, as she needed "to know what happened so that [she] can follow through, where [the patient] might have been exposed or where [she] might find injuries." She later testified that T.S. had told her that she was penetrated in the "vulva and the anus." Because the information T.S. provided was of a type typically relied upon for medical treatment, her testimony satisfies the requirements of Rule 803(4)'s exception. See Lopez, 217 Ariz. 433, ¶ 13. And, because it related to the discovery of T.S.'s injuries and their treatment, it was otherwise relevant. See Ariz. R. Evid. 401. The trial court did not err in admitting T.S.'s statements to Welch.
Motion in Limine Regarding Detective Rivera
¶28 Shayan next contends that the trial court erred by precluding certain information regarding Detective Rivera under Rule 403, Ariz. R. Evid. Specifically, he contends for the first time on appeal that the court erred by granting the state's motion in limine insofar as it prevented the jury from hearing that Rivera had been "investigated for improper conduct and letting cases languish," which he contends was "materially relevant evidence."
¶29 Relevant evidence is evidence that has "any tendency to make a fact more or less probable than it would be without the evidence," and "the fact is of consequence in determining the action." Ariz. R. Evid. 401. Relevant evidence can be excluded if "its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Ariz. R. Evid. 403. The trial court is in the best position to weigh the probative value of the challenged evidence against its potential for unfair prejudice; therefore, it is awarded wide discretion when making determinations under Rule 403. State v. Damper, 223 Ariz. 572, ¶ 20 (App. 2010).
¶30 We review evidentiary rulings for an abuse of discretion. State v. Copeland, 253 Ariz. 104, ¶ 21 (App. 2022). However, because Shayan failed to object to preclusion of this evidence below, his claim of error is limited to review for fundamental, prejudicial error. See Escalante, 245 Ariz. 135, ¶ 12.
¶31 In December 2022, the state moved in limine to preclude certain information regarding Detective Rivera. The state acknowledged that "it is inevitable and expected that testimony regarding former Detective Rivera's deficiencies in investigating this particular case will be elicited at trial." However, the state requested that specific information that Rivera had been forced to resign, the reasons for his resignation, and his inclusion on the "Brady List" be precluded from trial. "Prosecutors are required to disclose to criminal defendants police accused of professional misconduct, and a list of officers so defined is called a 'Brady List.'" Yahweh v. City of Phoenix, 243 Ariz. 21, n.1 (App. 2017); see also Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that prosecutors must disclose exculpatory evidence to defendants upon request where it "is material either to guilt or to punishment"). The state argued that this evidence was hearsay not subject to an exception, as Rivera would not testify at trial and the state did not intend to elicit character evidence about Rivera from other witnesses. Further, the state argued that this evidence was inadmissible under Rule 403 as it had "a high danger of unfair prejudice, confusing the issues," and other grounds.
¶32 Shayan responded that he had "no intention of getting very specific about such matters with the jury." However, he requested that the trial court make "in the moment" rulings as to specific questions during trial. The court granted the state's motion as to information about Detective Rivera being on the Brady List, the fact that he had resigned in lieu of termination, and the reasons for his resignation. It ruled that "[a]s it concerns other issues having to do with Detective Rivera, counsel shall address the issues outside the presence of the jury."
¶33 During trial, Detective Hanes testified that Detective Rivera had taken T.S.'s phone and created an evidence label for it, but it appeared he had not submitted the phone to evidence. Hanes looked for the phone several times after being assigned to the case, but he was unable to locate it. He further admitted that T.S.'s phone had been "[p]resumably lost by Detective Rivera" and that her phone may have contained evidence helpful to Shayan. Shayan did not attempt to introduce additional information regarding Rivera being on the Brady List, and Rivera did not testify. Additionally, pursuant to State v. Willits, 96 Ariz. 184 (1964), the trial court instructed the jury that:
If you find that the [s]tate has lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues in this case, then you should weigh the explanation, if any, given for the loss or unavailability of the evidence. If you find that any such explanation is inadequate, then you
may draw an inference unfavorable to the [s]tate, which in itself may create a reasonable doubt as to the defendant's guilt.
¶34 Furthermore, the state acknowledged and relayed to the jury evidence of Detective Rivera's flawed investigation, and it did not object to the trial court giving the Willits instruction due to his failure to preserve T.S.'s cell phone. In its closing argument, the state admitted that Rivera had mishandled the cell phone and that he had not done "his job very well in the beginning."
¶35 Shayan has not articulated how, in light of the testimony and the state's position regarding Detective Rivera's nonfeasance, as well as the Willits instruction given by the trial court, he was prejudiced by the court's preclusion of information that Rivera was on the Brady List or the details of his resignation. Evidence of Rivera's actions in other cases, the reasons behind his resignation, and his resulting inclusion on the Brady List were properly excluded from this trial, in large part because he did not testify at trial and his credibility as a witness was not in issue. See Foor v. Smith, 243 Ariz. 594, ¶ 19 (App. 2018) (noting "inclusion on the [Brady] list amounts to impeachment evidence to undermine the credibility of [an officer's] testimony"). On the record before us, we see no error, let alone fundamental, prejudicial error, in the court's rulings regarding Rivera. See Escalante, 245 Ariz. 135, ¶ 12.
Prosecutorial Misconduct in Closing Argument
¶36 Last, Shayan argues that the state committed prosecutorial misconduct during closing arguments by referring to DNA evidence that had not been presented to the jury. We review objected-to claims of prosecutorial misconduct for harmless error. State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 66 (2018). To establish such a claim, Shayan must show "that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process." State v. Murray, 250 Ariz. 543, ¶ 13 (2021) (quoting State v. Morris, 215 Ariz. 324, ¶ 46 (2007)).
Shayan characterizes the prosecutor's argument as "[p]rosecutorial [m]isconduct." But our supreme court has directed that in reviewing such claims, "courts should differentiate between 'error,' which may not necessarily imply a concurrent ethical rules violation, and 'misconduct,' which may suggest an ethical violation." In re Martinez, 248 Ariz. 458, ¶ 47 (2020). Shayan does not allege, nor would we conclude, that the prosecutor's conduct rises to the level of ethical impropriety.
¶37 During trial, a DNA technical leader for the Tucson Police Department Crime Laboratory, Veronica Kearney, testified that semen had been collected from T.S.'s mons pubis, upper right arm, vulva, and vagina. She testified that the DNA on the swabs taken from T.S.'s mons pubis had matched Shayan with a frequency of occurrence of one in ten billion. She also testified regarding wet and dry swabs taken from Shayan's penis. These swabs were analyzed and found to contain "a mixture of at least two contributors." She testified that a mixture of at least two contributors meant at least two people. Specifically, as to the mixture here, a "major male DNA profile was partially resolved," which excluded T.S., a female, as its source. She further testified that data "for the minor contributor" was insufficient for testing.
¶38 During closing arguments, the state discussed the results from Shayan's penis swabs as follows:
So now we have the DNA from [Shayan's] penis. And there's just a little bit there. There wasn't anything where we could identify a specific person. There wasn't anything where we could get some statistics that we had for the other location. But that doesn't mean that it's not interesting, because what's on there is at least two contributors. And you have a major male, which we learned about assuming that someone might have their own DNA from their own body on their swab, and then you have this minor profile that is insufficient. And what that means is there's something there. There's another person there. But those peaks that we saw, they are just too low. There's just not enough location to reliably do any comparisons. But that doesn't mean that there is not a second person there. And so that also fits in, corroborates, that [Shayan] was having sex with someone because there is someone else's DNA on his penis.
¶39 In rebuttal, the state argued as follows:
And then Ms. Berry said that she was hoping I wasn't insinuating that that minor insufficient on [Shayan's] penis was [T.S.]. Well, you did not hear any numbers, you didn't hear any alleles. I can't give you any information about whose that is based on the DNA results. But what we can tell you is that there's two people there. At this point, Shayan objected, and the trial court instructed the parties to move on.
¶40 Prosecutors have much latitude when making closing arguments to the jury. State v. Comer, 165 Ariz. 413, 426 (1990). In closing arguments, attorneys may summarize the evidence, ask the jury to draw reasonable inferences from the evidence, and suggest conclusions. State v. Goudeau, 239 Ariz. 421, ¶ 196 (2016). On appeal, we examine the context in which statements during closing arguments were made and the totality of the circumstances. State v. Nelson, 229 Ariz. 180, ¶ 39 (2012).
¶41 Here, Kearney testified that the swabs of Shayan's penis had showed a mixture of two people. She stated that there was a major male contributor and a minor insufficient contributor. In its closing, the state argued that it was reasonable for the jury to conclude that the presence of a minor insufficient contributor corroborated that Shayan had engaged in intercourse with another person. The trial court also properly instructed the jury that "what the lawyers [say] is not evidence but may . . . help you to understand the law and the evidence." We assume the jury followed these instructions. See State v. Gallardo, 225 Ariz. 560, ¶ 40 (2010).
¶42 Because the state is permitted to make reasonable inferences in its closing arguments based on the evidence introduced during trial, see Goudeau, 239 Ariz. 421, ¶ 196, we cannot conclude that this statement by the prosecutor was error that "so infected the trial with unfairness as to make the resulting conviction a denial of due process," Murray, 250 Ariz. 543, ¶ 13 (quoting Morris, 215 Ariz. 324, ¶ 46). As a result, the state did not commit prosecutorial error. See Goudeau, 236 Ariz. 421, ¶ 196.
Disposition
¶43 We affirm Shayan's convictions and sentences.