Court of Appeals of Arizona, First Division, Department B
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2010-159617-003 The Honorable Daniel G. Martin, Judge.
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee
Margaret M. Green Phoenix Maricopa County Public Defender Attorney for Appellant
JON W. THOMPSON, Judge
¶1 Bradley Jon King (defendant) appeals his convictions and sentences for burglary, theft, and possession of burglary tools. For the reasons set forth below, we affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Victim parked his van in a Fry's Electronics parking lot while he went into the store. The van had a bicycle rack "bolted in" and "permanently affixed" to the back with two bicycles secured to the rack with a heavy duty cable and locks. Victim covered the bikes with a barbecue cover secured with bungee cords to keep the bicycles clean and dry. A loss-prevention employee of Fry's electronics saw a red pickup truck leave a parking space, drive "by a van that had two racing bikes on it, " and then park in another spot. He saw two men exit the truck, walk over to the van, take the bikes off the rack, and put them in the back of their truck and drive away.
¶3 When Police Officer Brian Sergeant arrived, a security officer pointed to the red truck and said, "That's the truck that was involved." After Officer Sergeant pulled defendant over and placed him in investigative detention, defendant stated "the passenger of the truck had nothing to do with the stealing of the bicycles." When Officer Sergeant asked him why he took the bicycles, defendant responded that he "wanted them." Officer Sergeant found a "pair of bolt cutters and some cables" inside the truck. At the back of the van police officers found "cut locks" and a cable identical to that found in defendant's truck.
¶4 The state charged defendant with one count of burglary in the third degree, a class 4 felony (count 1), one count of theft of property valued at $4000 or more, a class 3 felony (count 2), and one count of possession of burglary tools, a class 6 felony (count 3). The jury found defendant guilty on all three counts. The trial court sentenced defendant to concurrent terms of 10 years imprisonment for count 1, 11.25 years for count 2, and 3.75 years for count 3. He received 241 days of presentence-incarceration credit for each count.
¶5 Defendant 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) (2003), 13-4031 and -4033(A) (2010).
¶6 Defendant contends that fundamental error occurred when the prosecutor made improper prejudicial references in opening and closing argument that implied defendant was a "career criminal, " which he argues alluded to defendant's "criminal history" and are "facts not in evidence." Under fundamental error review, defendant must first prove that an error occurred, and second that the error was fundamental and caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). An error is considered fundamental when it is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." Id. at ¶ 19 (citation omitted).
¶7 Although wide latitude is afforded counsel in closing arguments, counsel may not describe or comment on evidence that has not previously been presented to the jury. State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). We will reverse a conviction for prosecutorial misconduct only if "(1) misconduct is indeed present[, ] and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial." State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004) (citation omitted); see State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) ("[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." (internal ...