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Not for Publication Rule 111, Rules of the Supreme Court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

VÁSQUEZ, Presiding Judge.

¶1 After a jury trial, appellant Gary Nowell was convicted of the charged offenses of driving under the influence of an intoxicant (DUI) and driving with a blood alcohol concentration (BAC) of .08 or greater, both aggravated offenses based on his previously having been convicted of two or more DUI offenses. On appeal, Nowell contends his convictions must be vacated based on prosecutorial misconduct during closing argument and the trial court's failure to instruct the jury on reasonable doubt in its preliminary instructions. We affirm.

¶2 The evidence, viewed in the light most favorable to sustaining the convictions, State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408 (2003), established the following. At around 11:00 p.m., Marana police officer Jason Cann saw Nowell turn his car left, without signaling, from the lane designated for cars continuing straight or turning right, and into the wrong lane. Cann testified about his extensive training in recognizing DUI suspects, and that by turning left from the incorrect lane and into the incorrect lane, Nowell reflected "a vigilance problem and a failing to maintain lane position problem," two out of four categories of behaviors he was trained to look for as signs that a driver is intoxicated. He therefore stopped the car for the two traffic violations of turning without signaling and turning from the wrong lane.

¶3 As Cann approached the car, he noticed that Nowell appeared "slumped over," with his chin on his chest, as he looked through his documents, and that the "distinct odor [of] intoxicants" was "emanating from the car." Nowell dropped his driver license as he tried to hand it to Cann, and the officer smelled "the odor of intoxicants emanating from [Nowell's] breath." Cann further testified that as Nowell spoke, his speech was slurred.

¶4 When Cann asked Nowell to get out of the car, Nowell used the door for leverage and staggered as he walked, using the side of the car and then the trunk for balance. Administering the horizontal gaze nystagmus (HGN) test, Cann noted six out of six cues for intoxication. He also administered field sobriety tests, which Nowell performed poorly, suggesting he was intoxicated. After a breathalyzer test, Cann administered Nowell the Miranda1 warning and asked him some questions, including what he had been drinking. Nowell responded he had drunk about six beers since around 5:00 p.m. and, at some point during their conversation, estimated the current time as 9:00 p.m. when it actually was 11:25 p.m. When Cann asked him where he was coming from, he responded he did not want "to get them into trouble." Cann arrested Nowell for DUI and transported him to a Marana Police Department substation. Nowell agreed to have his blood drawn, and Cann, a qualified phlebotomist, obtained a sample of his blood at 11:48 p.m. A police criminalist testified he had tested the blood sample, which showed Nowell's BAC was .280.

¶5 During closing argument, Nowell's counsel suggested to the jury that the state's case was based on preconceived notions about driving and intoxication, that the BAC could not possibly be accurate, given the testimony of how seriously impaired a person with such a high alcohol level would be, unless Nowell was abnormally able to control the effects of alcohol. Counsel argued, Cann had simply assumed Nowell might be intoxicated before pulling him over based on meaningless criteria. And he suggested Nowell might have changed his mind about driving straight, deciding at the last minute to turn left. Counsel asserted, "There is not one thing wrong with his physical driving." In rebuttal, the prosecutor stated:

The prosecutor added that defense counsel had rewritten history because Nowell had committed three traffic violations, which reflected impaired mental ability, cues for intoxication. The prosecutor also suggested defense counsel's argument was based on facts that were either not supported by or contrary to the evidence.

¶6 On appeal, Nowell contends the prosecutor's comments, particularly calling defense counsel a liar, questioned defense counsel's integrity and constituted misconduct. Conceding he did not object to the prosecutor's argument or request a mistrial and that he has, therefore, waived the right to seek relief for all but fundamental, prejudicial error, see State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005), Nowell insists the resulting error was fundamental. He argues the prosecutor took from him the essence of his defense, which was that his driving had been fine; he simply had changed his mind about which direction to travel, turning left at the last minute. He asserts, "He was prejudiced because the jury may well have believed that the fact that Officer Cann saw no problems with his driving showed that . . . he was not impaired to the slightest degree and the BAC measurement of 0.280 . . . was wrong, as his attorney argued."

¶7 To determine whether fundamental error occurred here, we must first determine whether there was error, that is, whether the prosecutor committed misconduct. "[P]rosecutors have wide latitude in presenting their closing arguments to the jury: `excessive and emotional language is the bread and butter weapon of counsel's forensic arsenal. . . .'" State v. Jones, 197 Ariz. 290, ¶ 37, 4 P.3d 345, 360 (2000) (internal citation omitted).f020 Misconduct includes impugning the integrity of opposing counsel. State v. Newell, 212 Ariz. 389, ¶¶ 66-67, 132 P.3d 833, 847 (2006); State v. Hughes, 193 Ariz. 72, ¶ 59, 969 P.2d 1184, 1198-99 (1998). Here, however, based on Cann's testimony, there was evidence that Nowell had not, in fact, been driving flawlessly as defense counsel seemed to be suggesting to the jury, rather he turned left from the wrong lane, and without using his turn signal. These traffic violations not only justified the stop, but directly refute counsel's suggestions during closing argument. Regardless of what Nowell's explanation might have been for turning in this manner, counsel's argument was not accurate. Thus, the prosecutor's response to this argument was not misconduct insofar as the prosecutor was attempting to point the inaccuracy out to the jury. But to the extent the prosecutor's assertion was misconduct because it was tantamount to calling counsel a liar, the misconduct did not result in fundamental error.

¶8 Error may be characterized as fundamental if it goes to "`the foundation of the case or takes from the defendant a right essential to his defense.'" State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988) (internal citation omitted). We do not agree with Nowell that the prosecutor took from him the essence of his defense, which was that Nowell had been driving well, indeed, too well for the BAC-test result to have been accurate. We fail to see how arguing to the jury that defense counsel's argument was not supported by the evidence and then noting the evidence that contradicted defense counsel's characterization of Nowell's driving took any right from Nowell. Any error cannot be characterized as fundamental.

¶9 Moreover, even when counsel's integrity has been impugned and the trial court has sustained an objection and instructed the jury to disregard statements deemed improper, reversal of a conviction is not required unless there is a reasonably likelihood the comment affected the jury's verdict. Newell, 212 Ariz. 389, ¶ 69, 132 P.3d at 847. And to be entitled to relief based on a claim of prosecutorial misconduct generally, the defendant must establish the prosecutor's misconduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d at 1191, quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Here, there was overwhelming evidence Nowell had been driving while impaired to the slightest degree and there was little, if any, evidence refuting the reliability of the blood test. The prosecutor's remarks, even if misconduct, were intended to refute defense counsel's arguments with evidence in the record and were isolated comments that did not render the entire trial unfair. Additionally, jurors are presumed to the follow the instructions they are given. Newell, 212 Ariz. 389, ¶¶ 68-69, 132 P.3d at 847. And here, the jury was told that it was to base its decision on the evidence presented and that counsel's arguments are not evidence. Under the circumstances, Nowell neither established the requisite prejudice under a fundamental error analysis nor the prejudice necessary to justify a reversal of a conviction based on prosecutorial misconduct.

¶10 Nowell next argues the trial court erred by failing to instruct the jury on the definition of reasonable doubt when it gave the jury the preliminary instructions, arguing this violated Rule 18.6(c), Ariz. R. Crim. P., which requires trial judges to give preliminary instructions on "elementary legal principles that will govern the proceeding." Again Nowell did not raise this issue in the trial court, never asking the court to give the instruction, and he concedes his right to relief is limited to error that can be characterized as fundamental and prejudicial. He also concedes the court gave the instruction at the end of the trial.

¶11 Even assuming, without deciding, that it was error for the trial court not to have instructed the jury on the definition of reasonable doubt before the evidence was presented with the other preliminary instructions, Nowell has not persuaded us any such error could be characterized as fundamental. We find particularly unpersuasive Nowell's reliance on People v. Morris, 621 N.Y.S.2d 434 (App. Term 1994), for this proposition. Additionally, Nowell acknowledges that in State v. Kinkade, 140 Ariz. 91, 94-95, 680 P.2d 801, 804-05 (1984), our supreme court concluded the trial court's failure to give the reasonable doubt instruction at the end of trial after having given the instruction as part of the preliminary instructions was not fundamental error. Nowell contends Kinkade is distinguishable because there "the jury had the instruction during trial," whereas the jury in this case did not.

¶12 Nowell apparently argues that the jurors in Kinkade "had the instruction during trial" as they heard the evidence because the court had given the instruction verbally before trial, but we find this distinction immaterial. Finding the trial court's error in failing to repeat the instruction at the end of trial was not fundamental, the court noted in Kinkade that the instruction had been given, albeit at the beginning of trial; the jurors had the instruction while deliberating; and, the attorneys referred to the standard and the definition during their closing arguments. Id. at 94-95, 680 P.2d at 804-05.

¶13 Here, the trial court repeatedly mentioned during voir dire and pointed out when it gave the preliminary instructions that the state had the burden of proof and the burden was beyond a reasonable doubt, the highest burden. The court instructed the jury on the standard at the end of trial, and both counsel referred to the burden during closing arguments. Additionally, our supreme court has recognized that of the two, final instructions are likely to "make more of an impression" on the jurors than those given before trial. State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992). We conclude Nowell has not sustained his burden of establishing any error here was fundamental.

¶14 We affirm Nowell's convictions and seven-year concurrent prison terms.

PHILIP G. ESPINOSA, Judge, VIRGINIA C. KELLY, Judge, concurring.