Opinion
No. 2 CA-CR 2019-0117
04-24-2020
THE STATE OF ARIZONA, Appellee, v. BARBARA ANN PRUETT, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20103761002
The Honorable Howard Hantman, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. EPPICH, Presiding Judge:
¶1 Barbara Ann Pruett appeals from her convictions for two counts of sale of a dangerous drug. She contends that insufficient evidence supports one of her convictions for sale of methamphetamine because the state did not prove she knowingly sold it, and the prosecutor engaged in misconduct by making improper arguments in her opening and closing remarks to the jury. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Pruett's convictions and sentences. See State v. Murray, 247 Ariz. 447, ¶ 2 (App. 2019). In May 2010, an undercover police officer received information that a female named Gloria wanted to sell an ounce of methamphetamine for about $1,100. The officer contacted Gloria and they agreed to a deal. The officer met Gloria outside a trailer and then waited with her while the methamphetamine was being delivered. Pruett arrived in a truck and spoke to Gloria. Gloria then asked the officer to see the money for the purchase. He showed Gloria $1,100 and she told him to go inside the trailer because they wanted to do the deal in there. Inside the trailer, Pruett handed the officer a bag of methamphetamine and then counted the money the officer brought.
¶3 A few weeks later, in July 2010, the officer arranged to buy two more ounces of methamphetamine from Gloria. At her direction, they met at Pruett's house. After some phone conversations, Pruett determined they should leave to pick up the methamphetamine. According to a prearranged plan, Pruett drove her truck to a gas station and the officer met her there. At the gas station, the officer gave Gloria $2,600. Pruett then drove Gloria to the supplier, with the officer following.
¶4 When they arrived, the officer parked near the supplier's location—a mobile home—while Pruett and Gloria entered. After leaving the mobile home, the two women met the officer at the gas station and Gloria gave him the methamphetamine. The officer asked Gloria if she wanted $50 for her work in this drug transaction and she indicated they wanted some methamphetamine instead. The officer gave Gloria a gram of methamphetamine and Gloria said she was going to split it with Pruett. Gloria then left in Pruett's truck.
¶5 Pruett was charged with the two counts noted above, and after a two-day trial, a jury found her guilty of both. The trial court sentenced her to a concurrent prison term of five years on each count. Pruett appealed and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Sufficiency of the Evidence
¶6 Pruett contends the trial court erred by denying her Rule 20, Ariz. R. Crim. P., motion for a judgment of acquittal on the July sale, arguing that there was insufficient evidence to prove she knowingly sold methamphetamine. A trial court must grant a motion for acquittal under Rule 20 "if there is no substantial evidence to warrant a conviction." State v. Goudeau, 239 Ariz. 421, ¶ 169 (2016). "Substantial evidence 'is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" Id. (quoting State v. West, 226 Ariz. 559, ¶ 16 (2011)). If, "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," a motion for acquittal must be denied. West, 226 Ariz. 559, ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))).
Count Two is the only charge that pertains to the events that occurred in July 2010. --------
¶7 We review de novo both the sufficiency of the evidence and the trial court's denial of a motion for acquittal. See West, 226 Ariz. 559, ¶ 15. "In determining whether substantial evidence supports a conviction, we consider both direct and circumstantial evidence and resolve all inferences against the defendant." Goudeau, 239 Ariz. 421, ¶ 169 (citation omitted). "[T]he probative value of the evidence is not reduced simply because it is circumstantial," State v. Anaya, 165 Ariz. 535, 543 (App. 1990), and a conviction may be proven by circumstantial evidence alone, State v. Burton, 144 Ariz. 248, 252 (1985).
¶8 "The sufficiency of the evidence must be tested against the statutorily required elements of the offense." State v. Pena, 209 Ariz. 503, ¶ 8 (App. 2005). To support a conviction for sale of dangerous drugs, the state had to prove, beyond a reasonable doubt, a person knowingly "[t]ransport[ed] for sale, import[ed] into this state or offer[ed] to transport for sale or import into this state, sell, transfer or offer to sell or transfer a dangerous drug." A.R.S. § 13-3407(A)(7). "'Knowingly' means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists." A.R.S. § 13-105(10)(b). "'Sale' or 'sell' means an exchange for anything of value or advantage, present or prospective." A.R.S. § 13-3401(32). Methamphetamine is a dangerous drug. § 13-3401(6)(b)(xxxviii). "A person is criminally accountable for the conduct of another if . . . [t]he person is an accomplice of such other person in the commission of an offense . . . ." A.R.S. § 13-303. A person is an "accomplice" if she (1) "[s]olicits or commands another person to commit the offense"; (2) "[a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense"; or (3) "[p]rovides means or opportunity to another person to commit the offense." A.R.S. § 13-301.
¶9 Here, sufficient evidence supported the sale of a dangerous drug conviction on Count Two under the theory that Pruett was an accomplice to Gloria. There is ample circumstantial evidence showing that Pruett, at minimum, knowingly aided Gloria in completing the drug transaction. The officer testified that he had met Gloria and Pruett at Pruett's house and Pruett was the one who determined when they should leave to pick up the methamphetamine. According to the officer, Pruett drove her truck to the supplier and at one point even offered the title of her truck as collateral to assure the officer of her completing the transaction. Although Pruett argues that the evidence only established her mere presence, a rational trier of fact could have found beyond a reasonable doubt that Pruett knowingly helped Gloria sell methamphetamine to the officer.
Prosecutorial Misconduct
¶10 Pruett suggests the prosecutor engaged in misconduct in two respects: (1) improperly stating she was guilty in the state's opening statement and (2) improperly vouching for the state's witness.
¶11 Prosecutorial misconduct involves intentional conduct which the prosecutor knows to be improper and prejudicial, rather than conduct resulting from "legal error, negligence, mistake, or insignificant impropriety." State v. Martinez, 221 Ariz. 383, ¶ 36 (App. 2009) (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)). "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Morris, 215 Ariz. 324, ¶ 46 (2007) (quoting State v. Hughes, 193 Ariz. 72, ¶ 26 (1998)). "The misconduct must be 'so pronounced and persistent that it permeates the entire atmosphere of the trial.'" Id. (quoting Hughes, 193 Ariz. 72, ¶ 26). Prosecutorial misconduct will only amount to reversible error in situations where "(1) misconduct exists and (2) 'a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial.'" Id. (quoting State v. Anderson, 210 Ariz. 327, ¶ 45 (2005)). We review claims of prosecutorial misconduct by examining each claim of misconduct and reviewing objected-to claims for harmless error. State v. Acuna Valenzuela, 245 Ariz. 197, ¶ 66 (2018).
Opening Statement
¶12 Pruett suggests the prosecutor committed misconduct when she began her opening statement by saying "Barbara Pruett is guilty of two counts of sale of a dangerous drug, methamphetamine, and the evidence will show that on May 26th, 2010, and July 1st, 2010, she sold a total of about nine grams of methamphetamine to [the officer]." At trial, Pruett objected after the end of the opening statement and argued that it was improper for the prosecutor to say she was "guilty" in an opening statement because it was argumentative and possibly a personal opinion about guilt. The prosecutor argued that the statement was proper because it was qualified by the phrase "the evidence will show." The trial court reserved ruling on this matter until it could confirm what was said. After checking the record and discussing it with the parties, the court acknowledged some concerns with the prosecutor's choice of words but reasoned this was "a non-issue" because the jury would later be instructed again that what the lawyers say is not evidence. Pruett agreed with this resolution of the issue.
¶13 "Opening statement is counsel's opportunity to tell the jury what evidence they intend to introduce . . . . [It] is not a time to argue the inferences and conclusions that may be drawn from evidence not yet admitted." Goudeau, 239 Ariz. 421, ¶ 195 (alteration in original) (quoting State v. Bible, 175 Ariz. 549, 602 (1993)). However, statements made by counsel generally carry less weight with a jury than instructions from the court because the former "are usually billed in advance to the jury as matters of argument, not evidence," whereas the latter are often "viewed as definitive and binding statements of the law." State v. Murray, 247 Ariz. 583, ¶ 14 (App. 2019) (quoting Boyde v. California, 494 U.S. 370, 384 (1990)).
¶14 Here, even if the prosecutor's statement was improper, the brief remark, incorporating a reference to the evidence the state intended to introduce, was harmless in light of the trial court's preliminary and final instructions noting that counsel's arguments in opening statements are not evidence. See Acuna Valenzuela, 245 Ariz. 197, ¶¶ 68-69 (improper inferences in opening statement would have been harmless given instructions that counsel's argument not evidence).
Closing Statement
¶15 Next, Pruett argues the prosecutor improperly vouched for a witness's testimony in her closing argument by expressing her "personal opinion" and placing the "prestige of the Pima County Attorney's Office behind its only witness." During the argument, the following exchange occurred:
[Prosecutor]: [The witness] is an undercover officer in a situation that is potentially dangerous. He is doing his job. And ultimately he testifies, no, you know, it's truthful. I don't know where the drugs—
[Pruett]: Objection. Vouching.
[The Court]: Yeah, you can't vouch. Sustained. Next . . . go on, counsel.
¶16 There are two general forms of prosecutorial vouching: (1) "when 'the prosecutor places the prestige of the government behind its witness'"; or (2) "when 'the prosecutor suggests that information not presented to the jury supports the witness's testimony.'" Acuna Valenzuela, 245 Ariz. 197, ¶ 75 (quoting State v. Vincent, 159 Ariz. 418, 423 (1989)). "When improper [prosecutorial] vouching occurs, the trial court can cure the error by instructing the jury not to consider attorneys' arguments as evidence." State v. Payne, 233 Ariz. 484, ¶ 109 (2013).
¶17 Here, the state concedes the prosecutor made a comment that impermissibly vouched for the witness. See State v. Lamar, 205 Ariz. 431, ¶ 54 (2003) ("A prosecutor must not convey his personal belief about the credibility of a witness."). However, we conclude that Pruett was not convicted based on that comment and she was not denied a fair trial. First, the court instructed the jury at the end of trial that anything said by counsel in closing arguments was not evidence, that the members of the jury were "the sole judges of the facts" who decide the "credibility of each witness's testimony," and the testimony "of a law enforcement officer is not entitled to any greater or lesser credibility merely because the witness is a law enforcement officer." We presume the jurors followed the court's instructions. See State v. Newell, 212 Ariz. 389, ¶¶ 68-69 (2006); see also Boyde, 494 U.S. at 384 (court instructions generally more influential than lawyer's arguments).
¶18 Second, Pruett received the only remedy she sought; her objection to the vouching was sustained and the jury was instructed at the end of trial that any sustained objection meant that the jury should disregard the question. Again, we presume the jurors followed the court's instruction. See Newell, 212 Ariz. 389, ¶¶ 68-69. Moreover, Pruett has not argued or shown how this isolated comment was so pronounced and persistent that it infected the atmosphere of the proceedings as to deny her a fair trial. See Morris, 215 Ariz. 324, ¶ 46. Therefore, we find any vouching error in this case harmless.
Disposition
¶19 We affirm Pruett's convictions and sentences.