THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

Not for Publication Rule 111, Rules of the Supreme Court

MEMORANDUM DECISION

KELLY, Judge.

¶1 Zachary White appeals from his conviction and sentence for manslaughter following our reversal of his previous conviction for second-degree murder. White argues the trial court erred in allowing the state to retry him in violation of the prohibition against double jeopardy, denying his motion for mistrial, admitting the testimony of a witness from his first trial, enhancing his sentence, and treating his manslaughter conviction as a dangerous nature offense. For the reasons that follow, we affirm.

Background

¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). One evening in November 2007, White was playing "drinking games" with friends and acquaintances at his apartment. After the group had been drinking for some time, White produced a handgun, aimed it at a streetlight and stated he wanted to shoot the light out. After others persuaded him to put the gun away, he did so, and the group continued to drink. At some point White took the gun out again, placed it against C.A.'s head and fired it, killing him. White later admitted to a detective he had shot C.A. but claimed he had thought the gun was unloaded.

¶3 After his first jury trial, White was convicted of second-degree murder and weapons misconduct. We vacated the second-degree murder conviction, affirmed the weapons misconduct conviction, and remanded for further proceedings. State v. White, No. 2 CA-CR 2009-0173, 2, 12 (memorandum decision filed Apr. 19, 2010). Following his second trial, a jury found him guilty of the lesser-included offense of manslaughter. The court imposed a maximum twenty-one-year prison sentence to be served concurrently with the sentence for weapons misconduct imposed following his first trial. This appeal followed.

Discussion

Double Jeopardy

¶4 White argues the trial court violated "his constitutional right not to be placed twice in jeopardy" by denying his motion to preclude the state from trying him a second time for second-degree murder. "We review de novo whether double jeopardy applies." State v. Siddle, 202 Ariz. 512, ¶ 7, 47 P.3d 1150, 1153 (App. 2002).

¶5 The double jeopardy clauses of the Fifth Amendment and article II, § 10 of the Arizona Constitution protect a criminal defendant from multiple prosecutions for the same offense. State v. Minnitt, 203 Ariz. 431, ¶ 27, 55 P.3d 774, 780 (2002). The guarantee against double jeopardy, however, is not absolute. Id. ¶ 28. As a general rule, retrial is not barred by double jeopardy principles when a defendant obtains reversal of a conviction on appeal for reasons other than insufficient evidence. State v. Porras, 133 Ariz. 417, 419, 652 P.2d 156, 158 (App. 1982); see also State v. Moody, 208 Ariz. 424, ¶ 26, 94 P.3d 1119, 1134 (2004) (original conviction nullified when case reversed for reason other than insufficient evidence).

¶6 Our reversal of White's conviction was not based upon insufficient evidence, and White does not contend otherwise. Instead, he claims, without citation to authority, that the error in his first trial was structural and, pursuant to our decision in State v. Aguilar, 217 Ariz. 235, 172 P.3d 423 (App. 2007), the double jeopardy clause bars retrial. But Aguilar did not address structural error, much less hold that it prohibits retrial. See 217 Ariz. 235, ¶ 26, 172 P.3d at 430 (concluding double jeopardy barred retrial because manifest necessity did not exist for grant of mistrial). To the contrary, although structural error mandates reversal, see State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 235-36 (2009), it does not bar retrial following remand, see, e.g., State v. Baker, 217 Ariz. 118, ¶¶ 20, 24, 170 P.3d 727, 731, 732 (App. 2007) (concluding court committed structural error; reversing convictions and remanding for new trial). The trial court therefore properly denied the motion to preclude a second trial.1

Prosecutorial Misconduct

¶7 White next argues the trial court abused its discretion in denying his motion for mistrial based upon alleged prosecutorial misconduct. "Because the trial court is in the best position to determine the effect of a prosecutor's comments on a jury," we review a court's refusal to grant a mistrial based on alleged prosecutorial misconduct for an abuse of discretion. State v. Newell, 212 Ariz. 389, ¶ 61, 132 P.3d 833, 846 (2006).

¶8 "Prosecutorial misconduct `is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial . . . .'" Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d at 426-27, quoting Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984). "To prove prosecutorial misconduct, the appellant must show: (1) the state's actions were improper; and (2) `a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial.'" State v. Montano, 204 Ariz. 413, ¶ 70, 65 P.3d 61, 75 (2003), quoting State v. Atwood, 171 Ariz. 576, 606, 832 P.2d 593, 623 (1992).

¶9 During opening statement, the prosecutor asserted that a witness had heard the gunshot "at 1:30 in the morning, or thereabouts." The prosecutor then stated "[t]he police were not called until a little after 2:00, 2:01 a.m." At the end of the prosecutor's opening statement, White moved for a mistrial urging that the prosecutor had "mischaracteriz[ed] . . . the proposed testimony of" the witness. White asserted the evidence would show the shot had occurred closer to 2:00 a.m. and that no more than ten minutes had elapsed between the gunshot and the 9-1-1 call. He contended the prosecutor's statement warranted a mistrial because it suggested he had "tried to come up with a story for 30 minutes."

¶10 The prosecutor responded that, in the witness's written statement, she indicated she had heard the gunshot at 1:30 a.m. He conceded the witness had "back[ed] off that" time during her testimony at the previous trial, but, based on the written report, he believed there was a reasonable basis to argue the shot occurred at 1:30 a.m. The court denied the motion for mistrial concluding that "despite what might have been said at the prior trial," the record provided "at least some grounds" for the prosecutor's statement and White would have an opportunity to challenge the evidence.

¶11 On appeal, White argues the trial court abused its discretion because the evidence presented at trial did not support the prosecutor's statement. But, as the state points out, consistent with her written statement, the witness testified at the second trial that she had heard the gunshot at approximately 1:30 a.m. Thus, the prosecutor's statement was a permissible comment on the evidence. See State v. King, 180 Ariz. 268, 278, 883 P.2d 1024, 1034 (1994) ("Opening statements are intended to inform the jury of what the party expects to prove. . . ."); State v. Burruell, 98 Ariz. 37, 40, 401 P.2d 733, 736 (1965) (during opening statement counsel allowed "considerable latitude" to make "fair statement of the evidence"). White has not established the statement was improper, much less that it constituted intentional misconduct the prosecutor knew to be improper and prejudicial. See Aguilar, 217 Ariz. 235, ¶ 11, 172 P.3d at 426-27. Accordingly, the court did not abuse its discretion in denying the motion for mistrial. Newell, 212 Ariz. 389, ¶ 61, 132 P.3d at 846.

Confrontation Clause

¶12 White argues the trial court erred in finding a witness was unavailable to testify and allowing the state to read that witness's testimony from the first trial at his second trial. We review a trial court's finding of a witness's unavailability for an abuse of discretion. Montano, 204 Ariz. 413, ¶ 25, 65 P.3d at 68.

¶13 The Sixth Amendment bars admission of testimonial statements made by a witness who does not appear at trial unless the witness is "unavailable" and there was a prior opportunity for cross-examination.2 Crawford v. Washington, 541 U.S. 36, 68 (2004); see also Ariz. R. Crim. P. 19.3 (former testimony made under oath in prior judicial proceeding admissible if declarant unavailable and party against whom statement offered had opportunity to cross-examine). A witness is unavailable if the witness is not present at the hearing and the proponent of the statement could not procure the witness's attendance "by process or other reasonable means." Ariz. R. Evid. 804(a)(5). To determine whether the state used reasonable means, we inquire whether any leads were not followed that would have been investigated if the state had not possessed a transcript of the prior testimony. Montano, 204 Ariz. 413, ¶ 26, 65 P.3d at 68-69. The focus of the inquiry is "whether the State made a good-faith effort to locate the witness so that he or she could be put under subpoena." State v. Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983) (emphasis in original).

¶14 Witness A.B. testified in White's first trial. Following the trial, A.B. relocated from Arizona to another state. After A.B. failed to appear at the second trial, the state asked that he be declared unavailable. Over White's objection, the trial court concluded that A.B. was unavailable and permitted the state to read his prior testimony to the jury.

¶15 On appeal, White claims the trial court erred in concluding A.B. was unavailable because "there is no record to establish that the state made any good faith efforts to secure [his] presence." We disagree. The state located A.B. and, contrary to White's claim, served him with a subpoena. See id. (state must make diligent effort to locate and subpoena witness). Moreover, in a series of electronic-mail communications with the state, A.B. explained he had a history of lung disease, had been hospitalized recently, and was unable to attend the trial because flying aggravated the condition. The state presented copies of the electronic-mail communications to the court along with a letter from A.B.'s physician.3 The physician asked that A.B. be excused because he had been "hospitalized at least [four] times this year [due to] chronic lung disease" and the disease was "exacerbated by plane travel." Accordingly, the court did not abuse its discretion in concluding A.B. was unavailable. See Ariz. R. Evid. 804(a)(4) (witness unavailable if cannot be present due to infirmity or physical illness); Montano, 204 Ariz. 413, ¶ 26, 65 P.3d at 68-69.4

Sentence Enhancement

¶16 White claims "the court improperly applied A.R.S. § 13-708" to enhance his manslaughter sentence because that statute was not in effect at the time he committed the offenses. As White concedes, he did not object on this ground at sentencing and we therefore review solely for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). "However, the imposition of an illegal sentence constitutes fundamental error." State v. Lewandowski, 220 Ariz. 531, ¶ 4, 207 P.3d 784, 786 (App. 2009).

¶17 A defendant must be sentenced under the laws in place at the time he or she committed the offense. State v. Beltran, 170 Ariz. 406, 408, 825 P.2d 27, 29 (App. 1992); see also A.R.S. § 1-246 (laws in effect at time of offense govern). Section 13-708(A) provides that a defendant who is convicted of a felony involving a dangerous offense while on probation for a felony conviction must receive not less than the presumptive sentence and must serve the sentence day for day.

¶18 As White argues, § 13-708 was enacted after he committed the offenses. 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 32 (effective 2009). But as the state points out, at the time White committed the offenses, the provisions of § 13-708 existed as former A.R.S. § 13-604.02. See 1999 Ariz. Sess. Laws, ch. 261, § 7. The legislature later amended and renumbered § 13-604.02 as § 13-708; however, the statute was not changed substantively. See 2008 Ariz. Sess. Laws, ch. 301, §§ 17, 32; A.R.S. § 13-105(13) (defining "dangerous offense"). Because White committed a dangerous offense involving a deadly weapon while he was on probation, former § 13-604.02(A) also required the court to impose no less than the presumptive sentence and to order it be served day for day. Compare former § 13-604.02(A), with § 13-708(A). Therefore, even if the trial court erred by applying § 13-708, rather than § 13-604.02, White has not established that he suffered prejudice and relief is not merited. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.

¶19 White also contends the trial court erred in enhancing his sentence because the state had failed to allege he was on probation for a felony offense at the time he committed the instant offenses. But the state was not required to allege he had committed the offenses while on probation. See State v. Martinez, 172 Ariz. 437, 440-41, 837 P.2d 1172, 1175-76 (App. 1992) (for purposes of sentence enhancement "issue whether defendant was on probation for a felony offense need not be alleged at trial").5 Further, the record belies White's contention that he did not have notice of the potential enhancement. Before the first trial, the state filed a sentence enhancement allegation that cited former § 13-604.02(A) and alleged White had "committed the offenses charged in the [i]ndictment while on probation" for a previous conviction.

Dangerous Nature Allegation

¶20 Finally, White argues the trial court erred in imposing an enhanced sentence because the state had failed to allege the dangerous nature of the offense in the indictment. White concedes he did not present this argument to the trial court and, accordingly, our review is limited to fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.

¶21 We find no error, fundamental or otherwise. At the time White committed the offenses, former A.R.S. § 13-604(P) provided for enhancement of a sentence based upon the dangerous nature of the offense.6 See 2007 Ariz. Sess. Laws, ch. 248, § 1. Contrary to White's claim, the state cited § 13-604 in the indictment and alleged the second-degree murder charge was a "class 1 dangerous felony." And, a "`reference in the indictment to the number of the statute providing for enhanced punishment . . . is adequate notice of the state's intent to enhance [the defendant's] sentence under that statute.'" State v. Hollenback, 212 Ariz. 12, ¶ 11, 126 P.3d 159, 163 (App. 2005), quoting State v. Waggoner, 144 Ariz. 237, 239, 697 P.2d 320, 322 (1985) (alterations in Hollenback); see also State v. Burge, 167 Ariz. 25, 27 n.4, 804 P.2d 754, 756 n.4 (1990). Because the state provided sufficient notice of its intent to seek an enhanced sentence based upon the dangerous nature of the offense, the trial court did not err.7

Disposition

¶22 White's conviction and sentence are affirmed.

GARYE L. VÁSQUEZ, Presiding Judge, PHILIP G. ESPINOSA, Judge, concurring.