Opinion
No. 1 CA-CR 16-0073
05-16-2017
STATE OF ARIZONA, Appellee, v. KEVIN LEON HASAN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Robert A. Walsh Counsel for Appellee Mays Law Office PLLC, Phoenix By Wendy L. Mays Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2015-002103-001
The Honorable Mark H. Brain, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Counsel for Appellee Mays Law Office PLLC, Phoenix
By Wendy L. Mays
Counsel for Appellant
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined. McMURDIE, Judge:
¶1 Kevin Leon Hasan appeals his convictions and sentences for three counts of disorderly conduct and three counts of aggravated assault. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On an evening in either late November or December 2014, J.C. was standing near a bus stop when he noticed Hasan approaching him. J.C. immediately recognized Hasan and recalled that he lived at an apartment complex located across the street from J.C.'s apartment.
¶3 When Hasan reached the bus stop, he asked J.C. "about cigarettes" and inquired whether J.C. knew where to buy marijuana. At that moment, J.C. was looking at a "bottle of marijuana" he had recently purchased from a local medical marijuana dispensary and became concerned that Hasan was going to rob him. To avoid any possible conflict, J.C. decided to walk back to his apartment. As J.C. turned to walk away, another man, unknown to J.C., joined Hasan, and the two men then followed J.C. toward his apartment. Aware that the men were behind him, and contemplating whether to confront them, J.C. turned around and saw the unfamiliar man pull out a gun. The gunman ordered J.C. to "give [him] everything," and J.C. handed him the marijuana bottle and then "took off." As J.C. hurried away, he heard Hasan shout "shoot him," but no shots fired. When J.C. reached his apartment, he did not contact the police, though he believed his life had been threatened.
¶4 On December 29, 2014, J.C. was standing on his apartment balcony with his two brothers and a family friend when he saw Hasan emerge from an apartment across the street with his brother, Ali. Pointing to Hasan, J.C. told the others that Hasan was one of the men who had previously robbed him. J.C.'s brother, F.C., became upset and "hopped the wall" to confront Hasan. J.C.'s stepbrother, E.R., followed, and shortly thereafter, E.F. and J.C. also left the apartment to join the other men.
¶5 By the time F.C. caught up with him, Hasan had entered a neighborhood liquor store. F.C. followed Hasan inside and confronted him about the robbery, but the men quickly moved outside to the parking lot. As J.C., E.R., and E.F. arrived, F.C. and Hasan engaged in a heated conversation for several minutes, but there was no physical contact between them.
¶6 At some point, however, Hasan made a call on his cell phone and told the other men to wait because he had some friends coming. Not wanting to stay for Hasan's reinforcements to arrive, J.C., E.R., and E.F. decided to leave and encouraged F.C. to join them. As the men walked away, Hasan informed J.C. and F.C. that they were "marked." J.C., E.R., and E.F. continued walking away, and Hasan pulled a gun from his waistband and pointed it at their backs.
¶7 Fearing that Hasan might shoot J.C., F.C. attempted to "slap" the gun away, and Hasan responded by shoving F.C. As F.C. "flew" backward, he hit his head on the pavement and became quite dazed. He tried to stand, but Hasan "rushed" him and began striking him. From his position on the ground, F.C. was unable to effectively block the blows, and Hasan repeatedly struck F.C.'s face. After several punches, Hasan then kicked and "stomp[ed]" F.C.'s head.
¶8 To stave off further blows, J.C. ran behind Hasan and struck him on the side of the head. J.C.'s attempt to intervene on F.C.'s behalf was thwarted, however, because Ali began hitting J.C. As Ali and J.C. exchanged punches, E.R. successfully pushed Hasan away from F.C., and E.R. and E.F. picked up F.C. and helped him limp across the street.
¶9 Meanwhile, a liquor store patron called 9-1-1 to report that she saw a fist-fight and a man holding a gun in the store parking lot. At the same time, a bus driver, who likewise witnessed a man brandishing a gun, called for emergency assistance using her two-way radio.
¶10 When E.R., E.F., J.C., and F.C. crossed the street, they were rejoined by Hasan, Ali, and a third man, Johnny Grant, each displaying a gun at his waist. As the men reengaged in a physical altercation, a green Ford F-150 truck crossed traffic and pulled up on the sidewalk. In response, Hasan, Ali, and Grant fled, and E.F. helped F.C. back to J.C.'s apartment.
¶11 Within minutes of the requests for emergency assistance, a patrol officer arrived at the liquor store. A store patron standing in the parking lot told the officer that three males had fled to a nearby apartment complex in a brown Chevy Impala. The officer drove to the complex, located the Impala, and positioned her patrol vehicle's spotlight on the car. Once the spotlight lit the interior of the Impala, Hasan, Ali, and Grant got out of the vehicle. The officer held the men at gunpoint until backup units arrived, and then helped place them under arrest.
¶12 When E.R., E.F., F.C., and J.C. noticed the police vehicles across the street, they walked to Hasan's apartment complex. After police officers took Hasan, Ali, and Grant into custody, paramedics attended to F.C. While speaking with the paramedics, F.C. spit out a tooth that had become dislodged during the fight.
¶13 Later that evening, officers obtained a search warrant for the Chevy Impala. While executing the warrant, officers seized two handguns from the floorboard as well as discarded clothes that matched the reported clothing of the man brandishing a firearm in the liquor store parking lot.
¶14 The State charged Hasan with seven counts of aggravated assault alleged to have occurred on December 29, 2014 (Count 1 - placed J.C. in reasonable apprehension of imminent physical injury; Count 2 - placed F.C. in reasonable apprehension of imminent physical injury; Count 3 - placed E.F. in reasonable apprehension of imminent physical injury; Count 4 - placed E.R. in reasonable apprehension of imminent physical injury; Count 5 - intentionally, knowingly or recklessly caused temporary but substantial loss or impairment of any body organ or part to F.C.; Count 6 - intentionally, knowingly or recklessly caused injury to F.C. by fracturing any body part; Count 7 - intentionally, knowingly or recklessly caused physical injury to F.C. while his capacity to resist was substantially impaired), one count of aggravated assault alleged to have occurred on or between December 14, 2014 and December 28, 2014 (Count 10 - placed J.C. in reasonable apprehension of imminent physical injury), and one count of armed robbery alleged to have occurred on or between December 14, 2014 and December 28, 2014 (Count 11 - took property from J.C.'s person and against his will while armed with a deadly weapon). The State also alleged aggravating circumstances and that Hasan had prior felony convictions.
Because Counts 8 and 9 were charged against Hasan's codefendants only, Counts 10 and 11 were renumbered as 8 and 9, respectively, at trial. During trial, the renumbered Counts 8 and 9 were also amended to allege periods of commission between November 28, 2014 and December 28, 2014.
¶15 After a 17-day trial, the jury convicted Hasan of aggravated assault on Counts 2, 5, 6, and 7 and the lesser-included offense of disorderly conduct on Counts 1, 3, and 4. The jury was unable to reach a unanimous verdict on Counts 8 and 9. The jury also found multiple aggravating factors. After finding Hasan had one prior felony conviction and merging Counts 5 and 6, the trial court sentenced Hasan to concurrent, presumptive terms of two and one-quarter years' imprisonment on Counts 1, 3, and 4, a concurrent, mitigated term of five years' imprisonment on Count 2, a concurrent, presumptive term of two and one-half years' imprisonment on Count 5, and a concurrent, presumptive term of one year' imprisonment on Count 7. Hasan timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
Absent material revision after the date of an alleged offense, we cite a statute's or rule's current version.
DISCUSSION
A. Denial of Motions for Judgment of Acquittal and New Trial.
¶16 Hasan contends the trial court improperly denied his Motion for Judgment of Acquittal following the State's presentation of its case-in-chief, his renewed Motion for Judgment of Acquittal after the jury rendered its verdicts, and his Motion for New Trial. Specifically, he argues that the jury's verdicts on Counts 2, 5, and 6 were contrary to the weight of the evidence.
The trial court denied Hasan's Motion for New Trial "with one exception," namely, merging Counts 5 and 6 as a single assault.
¶17 We review de novo a trial court's ruling on a motion pursuant to Arizona Rule of Criminal Procedure ("Rule") 20, whether at trial or post-verdict. State v. West, 226 Ariz. 559, 562-63, ¶¶ 15, 19 (2011). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 562-63, ¶¶ 16, 19 (internal quotation omitted). Sufficient evidence upon which a reasonable jury can convict may be direct or circumstantial. Id. A judgment of acquittal is appropriate only when "there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a).
¶18 However, we review a trial court's ruling on a Motion for New Trial based on the weight of the evidence for an abuse of discretion. State v. Parker, 231 Ariz. 391, 408, ¶ 74 (2013). "A motion for new trial should be granted only if the evidence was insufficient to support a finding beyond a reasonable doubt that the defendant committed the crime." Id.
1. Count 2.
¶19 Hasan argues the State failed to present sufficient evidence to sustain the conviction on Count 2 because F.C. admitted he was "the aggressor in the incident" and testified he "was not afraid he would be shot." As charged in Count 2 and set forth in A.R.S. §§ 13-1203(A)(2) and -1204(A)(2), a person commits aggravated assault by "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury" by using "a deadly weapon or dangerous instrument."
¶20 At trial, F.C. testified that he walked to the liquor store with the intent to confront Hasan regarding the robbery. He admitted he was visibly upset and yelling and acknowledged that he was joined by his brothers and a friend. F.C. further testified, however, that he did not touch Hasan until he saw Hasan draw a firearm from his waistband, at which point F.C. attempted to "slap" the gun away. This account was corroborated by E.F. and E.R., and there was no evidence that F.C., J.C., E.F. or E.R. had a weapon of any kind.
One witness, a liquor store patron seated in her vehicle during the incident, testified that she saw F.C. make "physical contact" with Hasan before Hasan pulled out a gun. She stated F.C. shoved Hasan, but described it as neither "a big shove" nor a "hard shove." Contrary to the other witnesses, this witness testified that Hasan did not brandish a gun until he subsequently chased fleeing victims past the front of her vehicle.
¶21 Because the threat or use of physical force against another is not justified "[i]n response to verbal provocation alone," Hasan's display of a gun in response to being accosted by F.C. was not justified. A.R.S. § 13-404(B). By contrast, F.C. slapping Hasan's hand to swat away the gun and prevent the shooting of his brothers and friend was justified. See A.R.S. § 13-404(A) (authorizing the threat or use of physical force "against another when and to the extent a reasonable person would believe that physical force is immediately necessary" to protect against the other's use of unlawful physical force). Importantly, the trial court instructed the jury on all of Hasan's justification claims: self-defense, defense of a third person, defensive display of a firearm, and use of force in crime prevention. By rendering guilty verdicts, the jurors necessarily found that Hasan's conduct was not justified.
¶22 Hasan also contends the State failed to present sufficient evidence that F.C. was placed in reasonable apprehension of imminent physical injury. At trial, F.C. repeatedly denied that Hasan ever pointed the gun in his direction, notwithstanding his contrary statements to police officers only a few hours after the incident. F.C. also testified that he did not "fear that [Hasan] was going to shoot [him]" and was not "concern[ed] about being hurt" when he attempted to smack the gun away. On redirect examination, however, the prosecutor asked F.C. whether he had "any concern" at any time that Hasan may use the gun on him, and F.C. responded that he had an immediate but fleeting thought when he first saw the gun that Hasan would turn the gun on him "if he had the chance." Given these facts, in which F.C. initially denied any fear of being harmed, but subsequently clarified that he was immediately afraid when he first saw Hasan brandish the gun, sufficient evidence exists from which a reasonable jury could find that Hasan intentionally placed F.C. in reasonable apprehension of imminent physical injury.
2. Counts 5 and 6.
¶23 Hasan argues the State failed to present sufficient evidence that he committed aggravated assault as charged in Counts 5 and 6. In particular, Hasan contends that the State did not prove that the victim suffered a temporary injury or a fracture, as required under A.R.S. § 13-1204(A)(3) because the victim suffered permanent injuries.
¶24 The State charged Hasan with two counts of aggravated assault against F.C. In Count 5, the State alleged Hasan intentionally, knowingly or recklessly caused injury to F.C. by any means of force, which caused a temporary but substantial loss or impairment of any body organ or part. In Count 6, the State alleged Hasan intentionally, knowingly or recklessly caused physical injury to F.C. by any means of force, which caused a fracture to any body part. After the jury returned convictions on both counts, the trial court combined Counts 5 and 6, concluding they constituted a single assault.
¶25 Pursuant to § 13-1204(A)(3), and as relevant here, a person commits aggravated assault "by any means of force that causes . . . temporary but substantial loss or impairment of any body organ or part or a fracture of any body part." At trial, F.C. testified that one of his teeth became dislodged from Hasan's blows to his face, and he ultimately spit the tooth out while being evaluated by paramedics. F.C. also testified that the loss of the tooth affected his speech for a substantial period until he "adapted." In addition, an officer who interviewed F.C. shortly after the altercation testified that F.C. was "in obvious agony" at the time and "bleeding a lot" from his mouth.
¶26 Hasan does not dispute that a tooth is a body part for purposes of A.R.S. § 13-1204(A)(3). Instead, he argues F.C.'s loss was permanent and therefore the injury he sustained falls outside the temporal parameters of the statute. Although F.C. testified that he was unable to afford medical care and therefore did not have a prosthetic tooth implanted to replace his lost tooth, he explained that he adapted to the loss over time and no longer suffers a speech impediment from the injury. On these facts, sufficient evidence exists from which a reasonable jury could find that Hasan caused a temporary but substantial loss or impairment to F.C.'s mouth and teeth. See State v. Martinez, 220 Ariz. 56, 58, ¶ 9 (App. 2008) (the loss of an artificial tooth qualified as a temporary but substantial loss or impairment of any body organ or part under A.R.S. § 13-1204(A)(3)).
¶27 Likewise, the State presented sufficient evidence from which a reasonable jury could find that Hasan caused a "fracture" of F.C.'s body part. During its deliberations, the jury requested a definition for the term "fracture." Without objection, the trial court responded with a common dictionary definition: "a break, rupture or crack." Because Title 13 does not provide a statutory definition for "fracture," the trial court's reference to an established and widely used dictionary was proper. See State v. Lychwick, 222 Ariz. 604, 606, ¶ 9 (App. 2009); see also State v. Takacs, 169 Ariz. 392, 397 (App. 1991) ("Words and phrases in a statute are to be given their ordinary meaning unless it appears from the context of the statute . . . that a different meaning is intended."). Applying this common meaning to these facts, the undisputed evidence reflects that F.C.'s tooth broke because of Hasan's punches and kicks. Contrary to Hasan's claim on appeal, expert opinion testimony was therefore unnecessary to establish the fracture. For these reasons, the trial court did not err by denying Hasan's Rule 20 motions or abuse its discretion by denying his Motion for New Trial.
B. Alleged Juror Misconduct.
¶28 Hasan also contends the trial court improperly denied his Motion for New Trial because the jurors engaged in misconduct. Specifically, Hasan asserts the jurors considered "extrinsic evidence" in violation of Rule 24.1(c)(3)(i).
¶29 In his Motion for New Trial, Hasan explained that after the jury rendered its verdicts, counsel met with the jurors and Juror No. 10 stated that the jurors regarded Hasan's foot as a dangerous instrument for purposes of Count 2. Because neither party argued that a foot qualifies as a dangerous instrument, Hasan moved for a new trial on the basis that the jury necessarily received "evidence not properly admitted during the trial."
¶30 We generally review the denial of a Motion for New Trial for an abuse of discretion. State v. West, 238 Ariz. 482, 488, ¶ 12 (App. 2015). It is well-settled that a jury verdict cannot be impeached by jurors who agreed in open court to the verdict. State v. Kiper, 181 Ariz. 62, 68 (App. 1994). A narrow exception to this general rule permits a court to consider a juror's testimony or affidavit when the verdict is challenged based on certain juror misconduct. See Ariz. R. Crim. P. 24.1(d). As enumerated in Rule 24.1(c)(3), the nature of qualifying juror misconduct under the exception is limited to: (1) receiving evidence not properly admitted during trial; (2) deciding the verdict by lot; (3) perjuring oneself or willfully failing to respond fully to a direct question posed during the voir dire examination; (4) receiving a bribe or pledging one's vote in any other way; (5) becoming intoxicated during the course of the deliberations; or (6) conversing before the verdict with any interested party about the outcome of the case.
¶31 Although Hasan does not dispute that each of the jurors affirmed the accuracy of the verdicts in open court, he contends that juror misconduct provided a basis for the court to consider Juror No. 10's statements to defense counsel for impeachment purposes. The record includes neither juror testimony nor an affidavit challenging the verdicts. Instead, Hasan relies solely on the representations set forth in his Motion for New Trial as evidence of the jurors' mental processes for reaching their verdict. However, counsel's representation of "unsworn statements of jurors" is not "competent evidence of juror misconduct." State v. McMurtrey, 136 Ariz. 93, 98 (1983).
¶32 Moreover, even if the record contained Juror No. 10's testimony or affidavit, it would be precluded under Rule 24.1(d), which bars any inquiry into the "subjective motives or mental processes which led a juror to assent or dissent from the verdict." Ariz. R. Crim. P. 24.1(d). Preclusion is required because the "misconduct" alleged is not among the enumerated exceptions to the general rule prohibiting the use of juror affidavits to impeach verdicts read and affirmed in open court. Notwithstanding his framing of the issue, Hasan does not allege that the jurors received evidence not properly admitted during trial, but instead claims that they considered properly admitted evidence in a manner not contemplated by counsel. See State v. Olague, 240 Ariz. 475, 481, ¶ 21 (App. 2016) (extrinsic evidence, for purposes of Rule 24.1, "refers to outside information a juror collects after being empaneled"). Therefore, the trial court did not abuse its discretion by denying Hasan's Motion for New Trial predicated on alleged juror misconduct.
To the extent Hasan cites defense counsel's informal, post-verdict meeting with the jurors as support for his subsequent arguments, we do not consider it.
C. Alleged Prosecutorial Misconduct.
¶33 Hasan asserts the prosecutor engaged in misconduct by making several improper comments and incorrectly stating the applicable law. Because Hasan did not object on this basis in the trial court, we review only for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005). Under this standard of review, a defendant must first prove that misconduct actually occurred. State v. Edmisten, 220 Ariz. 517, 524, ¶ 23 (App. 2009). After establishing error, the defendant must then demonstrate "that the prosecutor's misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. (quoting State v. Harrod, 218 Ariz. 268, 278, ¶ 35 (2008)). "Reversal on the basis of prosecutorial misconduct requires that the conduct be so pronounced and persistent that it permeates the entire atmosphere of the trial." Id. (quoting Harrod, 218 Ariz. at 278, ¶ 35). Indeed, "[w]e will not reverse a conviction based on improper comments by the prosecutor . . . unless it is shown that there is a reasonable likelihood that the misconduct could have affected the jury's verdict." State v. Chappell, 225 Ariz. 229, 236, ¶ 19 (2010) (internal quotations omitted).
¶34 Prosecutorial misconduct is not "merely the result of legal error, negligence, mistake or insignificant impropriety." Pool v. Superior Court In & For Pima County, 139 Ariz. 98, 108 (1984). Rather, viewed in its entirety, it is "intentional conduct" that the prosecutor "knows to be improper and prejudicial and which he pursues for any improper purpose." Id. at 108-09.
¶35 During closing argument, defense counsel noted that the State's forensic testing on the guns seized from the Impala was inconclusive as to Hasan with respect to both DNA and fingerprints. Addressing this portion of defense counsel's argument on rebuttal, the prosecutor argued that the DNA testing was inconclusive because multiple people had touched each gun and the resulting "DNA soup" was too "messy" to allow for a positive identification of the contributors. The prosecutor then attempted to illustrate the shortcomings of DNA testing by presenting the jury with the following hypothetical situation:
Let's say Judge Brain over here is one of those Texas judges, the crazy ones who carry the guns under their robes, all right, and he carries it every day.
Is that look because you have one now? I'm sorry, Judge. I'm terribly sorry.
And every single day he gets up and he takes his gun and he puts it in his holster and he puts on his robe at home and he goes to work, which, no, they put them on in the back. And one day we're here in court and I ask Judge Brain, Judge, can I take a look at your firearm. And he says sure, and he hands it to me and then I shoot him right here in the courtroom in front of everyone, and I drop the gun and I walk away.
Am I going to be the major contributor on that firearm? No. This guy's been leaving DNA on it for years. I had it for 30 seconds. Am I going to be the major contributor? No. Does that mean I'm not guilty? No. It means we don't have any useful DNA evidence, and we do things like ask the jury of people who are in the courtroom, what did you see? Why don't we ask the people in the galley [sic], what did you see? When DNA is not helpful, we look at what else there is.
¶36 Argument suggesting that the trial judge may be armed, describing a scenario in which counsel shoots the trial judge, and characterizing judges from other jurisdictions as "crazy" is inappropriate. Nonetheless, because the statements at issue neither maligned defense counsel nor Hasan, the remarks were not prejudicial.
¶37 After responding to defense counsel's DNA argument, the prosecutor noted that defense counsel had presented alternative defenses, namely, either Hasan did not brandish a gun as alleged or he did so in self-defense. Referencing these alternative defenses, the prosecutor stated that such a tactic is "one of the reasons people hate attorneys."
¶38 Prosecutors have wide latitude in closing argument, State v. Hill, 174 Ariz. 313, 322 (1993), but argument that impugns the integrity or honesty of opposing counsel is improper. State v. Hughes, 193 Ariz. 72, 86-87, ¶ 59 (1998). Criticism of defense theories and tactics, on the other hand, is a proper subject of closing argument. State v. Ramos, 235 Ariz. 230, 238, ¶ 25 (App. 2014).
¶39 Applying these principles here, the prosecutor's statement did not suggest that defense counsel was deceitful or attempting to mislead the jury. Indeed, rather than a personal attack on defense counsel's integrity, the brief comment was a critique of defense tactics in general, and therefore not improper.
¶40 As his final statement to the jury, the prosecutor urged the jurors to find that the State met its burden of proving guilt beyond a reasonable doubt, but then stated ". . . [if] you think there is a real possibility that [Hasan is] innocent, well, then you can give him back his gun and find him not guilty."
¶41 A prosecutor is not permitted to make arguments that "appeal to the fears or passions of the jury." State v. Morris, 215 Ariz. 324, 337, ¶ 58 (2007). In this case, the prosecutor's argument that Hasan possessed a firearm was tethered to and supported by the evidence, but his closing remark arguably "play[ed]" to the jury's possible fear of Hasan. Id. Nonetheless, Hasan has not demonstrated that this isolated and fleeting comment denied him a fair trial or deprived him of a right essential to his defense. Id. at 338, ¶ 60. To the contrary, the jury's inability to reach unanimous verdicts on Counts 8 and 9, and convictions for the lesser-included offenses on Counts 1, 3, and 4, demonstrates that the jurors carefully considered the evidence, and belies any claim that the jurors simply convicted Hasan out of fear.
¶42 Finally, with limited explanation, Hasan also contends that the prosecutor "misstated the law as it relate[s] to accomplice liability," both in his closing argument and again in the aggravation phase. During closing argument, the prosecutor stated: "[The] [a]ccomplice statute uses a lot of words to say this: If you help, you're in. If you help him in any way, if you give him any assistance, if you give him any support, if you help him plan it, if you help him execute it, if you help, you're just as responsible." The prosecutor then argued that Ali was culpable for the charges as Hasan's accomplice.
¶43 As defined by statute and relevant here, an "accomplice" is one who, acting with the intent to promote or facilitate the commission of an offense, "[a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense." A.R.S. § 13-301(2). Thus, the prosecutor's statement that a person who helps, assists, or supports another's commission of a crime is culpable as an accomplice is consistent with, not contrary to, the law. Likewise, the prosecutor's statements regarding accomplice liability during the aggravation phase, when viewed in their entirety, do not contravene the statute. See State v. Rutledge, 205 Ariz. 7, 13, ¶ 33 (2003) ("Whether a prosecutor's comment is improper depends upon the context in which it was made[.]"). In urging the jury to find the presence of an accomplice as an aggravating circumstance, the prosecutor argued:
When Kevin was in the parking lot and he was kicking [F.C.] in his head, it was Ali who came to his aid to get [J.C.] off of him so that [Hasan] could continue to kick and attack [F.C.]. That assault, both the kicking of [F.C.], as well as when he pulled out the gun, was done with the presence of Ali as [Hasan's] accomplice.Although the prosecutor stated that the crimes were committed in Ali's "presence," he further argued that Ali actively assisted the commission of the crimes. Therefore, viewed in context, the prosecutor's argument did not misstate the law. Furthermore, the final instruction on accomplice liability tracked the statutory language, and we presume a jury follows its instructions. See State v. Prince, 204 Ariz. 156, 158, ¶ 9 (2003).
During its aggravation-phase deliberations, the jury requested clarification "regarding the difference between mere presence versus accomplice." Without objection, the trial court responded that it could not "offer further definitions of these terms beyond what is in the written instructions[.]" The final instructions to the jury stated:
Guilt cannot be established by the defendant's mere presence at the crime scene, mere association with another person at a crime scene or a mere knowledge that a crime is being committed. . . . One who is merely present is a passive observer who lacked criminal intent and did not participate in the crime.
D. Alleged Duplicitous Charges.
¶44 Hasan asserts the aggravated assault charge in Count 2 was duplicitous; therefore, all charges relating to victim F.C. were duplicitous. Specifically, he contends that the trial court's final jury instruction on aggravated assault pursuant to A.R.S. §§ 13-1203(A)(2) and -1204(A)(2), which stated the offense may be committed with either a deadly weapon or a dangerous instrument, operated to render Count 2 duplicitous. Hasan does not dispute that the given instruction tracked the statutory language and correctly stated the law, but he argues it was improper as applied to this case. Because Hasan's challenge to the jury instruction and his assertion that Count 2 was duplicitous are intertwined, we analyze them as a single claim, though Hasan framed them as separate issues.
¶45 With respect to Count 2, the indictment alleged that Hasan, "using a handgun, a deadly weapon or dangerous instrument, intentionally placed [F.C.] in reasonable apprehension of imminent physical injury[.]" As Hasan acknowledges, the indictment alleged a single offense for Count 2, and was therefore not duplicitous. See State v. Waller, 235 Ariz. 479, 489, ¶ 32 (App. 2014).
¶46 A duplicitous charge may nonetheless exist, "when the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." Id. at ¶ 33. (internal quotation omitted) (emphasis added). "If the evidence at trial renders the charge duplicitous, the appropriate remedy is to require the state to elect the act which it alleges constitutes the crime, or instruct the jury that they must agree unanimously on a specific act that constitutes the crime before the defendant can be found guilty." Id. (internal quotation omitted).
¶47 "Because a defendant has the right to a unanimous jury verdict in a criminal case, a violation of that right constitutes fundamental error." Waller, 235 Ariz. at 489, ¶ 34. To constitute reversible error, the defendant must demonstrate that he was prejudiced by the duplicity "when considered in conjunction with all the evidence in the case." Id. (internal quotation omitted).
¶48 At trial, the State introduced evidence that Hasan committed multiple aggravated assaults against F.C. During closing argument, the prosecutor referenced the multiple charges of aggravated assault, explained that there are "different kinds of aggravated assault," and argued, exclusively, that Hasan placed F.C. (and the other victims in Counts 1, 3, and 4) in reasonable apprehension of imminent physical injury by "us[ing] a gun." In response to the State's theory of guilt on Counts 1 through 4, defense counsel argued that Hasan did not brandish the gun to place anyone in fear, but as a defensive measure. Importantly, with respect to Counts 5 through 7, the prosecutor argued that Hasan caused all of F.C.'s physical injuries through punches and kicks, and defense counsel noted that the State had not alleged that Hasan had "pistol whipp[ed] anybody."
¶49 Therefore, because the only theory of guilt offered by the State on Counts 1 through 4 was based exclusively on Hasan's use of a firearm, Count 2 was not rendered duplicitous at trial. Stated differently, because the State did not introduce other evidence to prove Count 2 and clearly identified the conduct (brandishing a gun) that it alleged constituted the crime, there is no uncertainty as to which conduct served as the predicate for the conviction, and therefore no basis to conclude the jury's determination was not unanimous. See State v. Bruggeman, 161 Ariz. 508, 510 (App. 1989) (appellate courts consider closing arguments "when assessing the adequacy of jury instructions").
To the extent Hasan argues that the jury's verdicts on the lesser-included offense of disorderly conduct for Counts 1, 3, and 4 prove that the jury did not unanimously find that Hasan brandished a firearm for purposes of Count 2, such argument is not well-founded. The jury convicted Hasan of disorderly conduct pursuant to A.R.S. § 13-2904(A)(6). Under that subsection, a person commits disorderly conduct by "recklessly handl[ing], display[ing] or discharg[ing] a deadly weapon or dangerous instrument." Thus, the jury found the element of a "deadly weapon or dangerous instrument" for each of its verdicts on Counts 1 through 4. During the aggravation phase, the jury likewise found that each of the counts "involved the use, threatened use, or possession of a deadly weapon or dangerous instrument during the commission of the crime, specifically, a handgun." --------
E. Admission of Prior Consistent Statements.
¶50 Hasan argues the trial court improperly permitted the State "to elicit prior consistent statements of the victim, civilian witnesses and law enforcement." Based on the "volume and significant amount of consistent statements allowed in error," Hasan contends "reversal is warranted." Because Hasan has failed to identify any of the statements that he challenges, he has waived the issue and we do not address it. See Ariz. R. Crim. P. 31.13(c)(1)(vi) ("The appellant's brief shall include . . . [a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.").
CONCLUSION
¶51 We affirm Hasan's convictions and sentences.