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State v. Lopez

Court of Appeals of Arizona, First Division, Department A

August 20, 2013

STATE OF ARIZONA, Appellee,
v.
MARCOS ANTONIO LOPEZ, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2011-005336-001 The Honorable Joseph C. Welty, Judge

Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Jana Zinman, Assistant Attorney General Attorney for Appellee

Bruce F. Peterson, Maricopa County Legal Advocate Phoenix By Colin F. Stearns, Assistant Legal Advocate Attorney for Appellant

MEMORANDUM DECISION

KENT E. CATTANI, Judge

¶1 Marcos Antonio Lopez appeals his convictions of second-degree murder and misconduct involving weapons and the resulting sentences. Lopez argues prosecutorial misconduct in closing arguments warrants reversal. We disagree and therefore affirm.

FACTS AND PROCEDURAL BACKGROUND [1]

¶2 Late one autumn morning in 2008, Lopez and a few other men, including the victim, were drinking beer in the victim's front yard in Phoenix. At the time, Lopez was on felony probation and accordingly was prohibited from possessing firearms.

¶3 Lopez and the victim began to argue, then Lopez pushed the victim, pulled out a handgun, and shot the victim in the back as the victim was moving away. Lopez drove away in a white S.U.V. The victim died from the gunshot wound before police arrived.

¶4 One week later, a Border Patrol agent in Indio, California pulled Lopez over in a traffic stop. Lopez was driving a blue S.U.V. with no license plates. A consent search of the vehicle revealed several cell phones, brand new clothes, and approximately $2, 000 in cash. When asked for identification, Lopez gave the agent a driver's license with a false name. Lopez's fingerprints, however, linked him to an outstanding arrest warrant related to the Arizona homicide.

¶5 The State charged Lopez with one count of second-degree murder and one count of misconduct involving weapons. After a seven-day trial, a jury found Lopez guilty on both counts and found the murder to be a dangerous offense. The court sentenced Lopez to concurrent presumptive terms of imprisonment, the longest of which is 16 years.

¶6 Lopez timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033.[2]

DISCUSSION

¶7 Lopez argues the prosecutor engaged in a variety of misconduct during closing argument, including vouching, referring to facts not in evidence, expressing a personal opinion of Lopez's guilt, and misstating both the evidence and the law. Because Lopez failed to raise these claims of error to the superior court, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Error is fundamental if it "goes to the foundation of [the defendant's] case, takes away a right that is essential to [the defendant's] defense, and is of such magnitude that [the defendant] could not have received a fair trial." Id. at 568, ¶ 24, 115 P.3d at 608. To prevail ...


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