IN THE COURT OF APPEAL S STATE O

F ARIZONA DIVISION TWO
THE STATE OF ARIZONA, Appellee,

v. MARCOS ANTONIO HERRE RA, Appellant. )

) ) ) ) ) ) ) ) ) 2 CA-CR 2001-0371

DEPARTMENT A O P I N I O

N

APPEAL FROM THE S UPERIOR CO

URT OF PIMA COUNTY Cause No. CR-20003466 Hon orab le Paul S. B ana les, Jud ge P ro Te mpo re AFFIRMED Janet Napolitano, Arizona Attorney General By Randal

l M. H owe and Cynthia A. Ryan
Su san A. Ke tt lew ell , Pima Cou nty Pub li c Defen der By B rian X. Metcalf Tucson Attorneys for Appellee

Tucson Attorneys for Appellant H O W A R D, Judge. ¶1 A jury found defendant/appellant M arcos Her rera guilty o f driving under the influence of int oxicating liquor (DUI) and dr iving with a blood alcohol concentration (BAC) of .10 or above. T he jury also acquitted Herrera of three counts of child abuse. T h e tr ial cou rt1 The pres enc e of Herre ra’ s t hree mi nor c hil dren in t he c ar f orm ed t he basis of the child abuse charges. 2 suspended

the imposition

of sentence and pla

ced Herrer a on concurren t two-year terms of probation. He raises several issues on appeal, none of which merits rever sal. BACKGROUND ¶2 We view the facts and reasonable inferencestherefrom in the light most favorable to sustaining the verdicts. State v. Nihiser , 191 Ar iz. 199, 201, 953 P .2d 1252, 1254 (App. 1997). O ffic er Bender observed H errer a driving his car seventy-two miles per hour in a fiftymile-per-hour speed zone. 1 After initiating a traffic stop, Bender observed that Herre ra ha d “ve ry wat ery eyes” and that a strong odor of air freshenerwas emanating from the ca r. Bender asked Herre rato exit the car to separate him fro m t he a ir f res hen er. On ce H erre ra was o uts ide the car, Bender not ice d a “m ode rat e od or of int oxi can ts ” com ing fro m He rr era’s mouth. Bender then conducted

a horizont al gaze ny stagmus (HGN) test on Herr era and saw six out of six possible signs of impairment. Bender also had Herr era perfor m two field sobriety tests, the wal k-a nd- tur n test and the one -l eg- st and tes t, in whi ch H erre raexhibited additional signs of impairment. Bender placed Herrer a under arrest, transported him to a police subs tation, and conducted

two breath tests to determin

e his B AC. Each of those tests p roduced a BAC result of .126. H errer a admitted that he had consumed two

beers or, alternatively, “ one big one.”

MOTIONS FOR MISTRIAL ¶3 Intestifying about the walk-and-turn and one-le g-stand tests, Bender stated: “[T]hey have done studies that show a correla ting perce ntage of people, if you see two cues in each test, you see a cor relating percentage as to ho w ma ny p eop le a re ov er .10.” Herre

ra2 Incontrast, the parties may use HGN test results to “ challenge or corroborate” a chemical

analysis of a def

endant ’s B

AC. State ex rel. Hamilton v. Mesa Cit y Court , 165 Ar iz. 514, 517 3 objected to this testimony and

moved for a mistrial. The trial court found the testimony im prop er, but den ied Herre ra’ s m oti on a nd o ff ered to g ive the jur y a c ura tive in st ruct ion , whi ch H

erre ra declined. Later, when asked by the prosecutor about his “view of [Herr era’s] perfor mance” on the field sobriety tests, Bender testified, “I felt he was impaired to the slightest degree. ” Herre

ra objected to this testim

ony and again requested

a mistrial. After some dis cussi on, th

e tr ial cou rt denied Herr era’s second motion for a mistrial, struck the objectionable testimony, and gave the jur ya curative instruction. Herr era c ont end s t he t ria l co urt erre d by den yin g hi s m oti ons for a mistrial. We review a trial cour t’s denial of a motion for a mistrial for a clear abuse of discretion. State v. Stuard , 176 Ar iz. 589, 601, 863 P .2d 881, 893 (1993). ¶4 “Adeclaration of a mistrial is the most dramatic remedy for trial er ror and should be granted only when it app ears tha t j usti ce w

ill be thw art ed u nle ss the jur yis discharged and a
new trial granted. ” State v. Adamson , 13 6 Ariz. 250, 262, 665 P. 2d 972, 984 (1983). If a witness makes an inadmissible statement, a tri al c ourt “must evaluate the situation and decide if
some rem edy sh ort of m is tri al w ill cu re t he e rror.” Id . We addr ess Herr era’s motions for mistrial separately. ¶5 The state’s use of a defendant’s performance on field sobriety tests, s uchas the wal k-a nd- tur nand one-leg-stand tests, is “ limited to showing a symptom or clue of impairment. ” State ex rel. Hamilton v. Mesa City Court , 165 Ar iz. 514, 517, 799 P .2d 855, 858 (1990). The state cannot use a defendant’s performance on field sobr iety tests as e vid ence of a BAC above .10. 2 See id . at 517, 518 n.3, 519; 799 P. 2d at 858, 859 n. 3, 860. Consequently, Bender gaven.2, 799 P. 2d 855, 858 n. 2 (1990). 4

impermissible testimony that studies have shown a “corr elating percentage” of people who exhibit two signs of impairment on field sobriety tests and have a BAC above .10. But, for thr ee reasons, we cannot conclude the trial court er red in denying Her rera’s motion for a mistrial. ¶6 First, Bender did not reveal the correlating percentage that the s tudies had

shown. For all the jury knew, the correlating percentage could have been extremely low. T hus, Bender’s impermissible testimony was too indefinite to thwart justice. See Adamson , 136 Ariz. at 262, 665 P. 2d at 984. Second, the state introduced two breath test r esults showing tha t He rrera had a BAC of .126. And Herrer a

had exhibited six out of six signs on the HGN test, which can be used to
cor roborate a breath test result. Hamilton , 165 Ar iz. at 517 n. 2, 799 P .2d at 8 58 n.2
. Accordingly, to the extent that Bender’s testi

mony had any tendency to prove a BAC above .10, it was mer ely cum ula ti ve. Th ird , the t ri al court offered to give the jury a cur ative instruction, which Herr era rejected. A trial court is in the best position to determine an appropriate remedy for trial err or that will preser ve a defendant’s right to a fair trial. SeeAdamson , 136 Ar iz. at 262, 665 P. 2d a t 98 4. Ba sed on th e record her e, we cannot conclude the tr ial court abused its discretion in denying Herr era’s first motion for a mistr ial. ¶7 Bender’s testimony that he believed Herrer a had been “impair ed to the slig ht est degree” was also inappropriate. “[O]pini on evi den ce i s usu all y no t pe rmi tt ed o n ho w t he jury should decide the case.” Fuenning v. Superior Court , 139 Ar iz. 590, 605, 680 P .2d 121, 136 (1983); see also Comment, Ariz. R. E vid. 704, 17A A.R. S. When a law enforcement officer in
a D UI case parr ots the language of A.R. S. § 28-1381(A)(1), he or she is essentially gi ving a n3 Section 28-1381(A)(1), A.R. S., states in pertinent part: “It is unlawful for a pe rson to drive
. . . [w]hile under the influence of intox ic ating liquor .
. . if the person is impaired to the slightest degr

ee .” (Emphasis added.) 5 opinion that the defendant is guilty. 3 See Fuenning , 139 Ar iz. at 605, 680 P. 2d at 136. Because such an opi n ion “embr aces all issues” on that par ticular charge, it is beyond the scope of permissible opinion testimony. Id . It does not follow, however, that such testimony must always result in a mistrial. ¶8 Here, the trial court immediately struck Bender’s inappr opriate opinion and gave the jury a detailed curative instr uction. T he trial court r epeated that curative instructi on at th e close of evidence and also instructed the jury that it w as to disregar d any stricken testimony. Additionally, indenying Herr era’s second motion for a mi st ria l, th e tr ial cou rt e xpre ss ed i ts fi rm belief that Herr era could still receive a f air trial. Thus, the trial court engaged in the analysis required by Adamson , 136 A riz. at 262, 665 P .2d at 984. Based on the trial court’s multiple remedial efforts and its express conclu sion that Herrera would not be deprived of a fair trial, we cannot con clu de t he c ourt abused its discretion by denying Herr era’s second motion for a mistrial. MARITAL PRIVILEGE ¶9 Herre

racontends that he was entitled to invoke the marital fact and communication privil ege in A.R. S. § 13-4062 to pr event his wife from testifying and that, ther efore, the tria l
cou rt erred in per mitting the state to invoke the child abuse exception in A.R. S. § 13-3620(G) and call his wi fe a s a w

it ness ag ain st him . He as ser

ts tha t A .R.S. § 13 -36

23( F)( 1) l im its t he t erm “abuse” to the definition contained in A. R.S . § 8-201(2), which requires an actual injur y. Because there were no injur ies in this case, H errer a argues, the exception to the marital privilege6

did not apply . T he state responds that, for purposes of the exception to the pr ivilege in § 13
- 3620(G), the term “abuse” includes the substantive offens e of child abuse. The state further argues that, because it had charged Her rera with thr ee counts of child abuse under § 13-3623(B), which does not require an actual injur y, it was per mitted to call Herrer a’s wife under the § 13
- 3620(G) exceptio

n to the marital privilege. ¶10 Section

13-4062, which defines the mar ital privile ge in criminal cases, states in pertinent part: Aperson shall not be examined as a witness in the following

cases: 1. A husband for or against his wife without her consent, nor a wife for or against her husband without his c onsen t, as to events occurring dur ing the marriage, nor can either, during the marriage or afterwar ds, without consent of the other, be examined as to any communicat

ion made by one to t

he o the r during the marriage. Section 13-3 620(G) states that the marital privilege “ shall not pertain in any civil or cr imina l litigation or adminis

trative proceeding in which a chil d’s . . . abuse .
. . is an issue.” ¶11 Under § 13-3623(B ), the offense of child abuse occurs, inter alia, when, “[u]nder circumstancesother than those likely to produce death or serious physical injury to a child, ” a person “having the car e or custody of a child . . . per mits a child . . . to be placed in a situation whe re the person or health of the child . . . is endanger ed.” Section 13-3623(F)(1) states that, for purposes of that section, “ [a]buse” of a child means “abuse as defined in § 8-201, except for those acts in the definition that are declared unlawful by another statute of this title.” Finally, § 8-201 limits “abuse” to physical injury or serious emotional damage.4 We need not decide the applicability of the exception in any other context.
5 The application of § 13-3623(F)(1) is somewhat uncertain. Section 13-1323(C) uses the ter m“abuse” to refer to a situation involving only exposure to dr ug manufacturing, not physical injury. 7 ¶12 The is su

e of the mea nin g of the ter m“ab use” in § 13-3620(G), creating an exceptionto the marital privilege, is an issue of statu tory interpretation that

we review de novo. State v . Wilson , 200 Ar iz. 390, ¶4, 26 P. 3d 1161, ¶ 4 (App. 2001). We interpret the marital privilege narrowly because it excludes r elevant evidence and impedes the search for the trut h. Blazek v. Superior Court , 177 Ar iz. 535, 537, 869 P .2d 509, 511 (App. 1994); see also State ex rel. Udall v. Superior Court , 183 Ar iz. 462, 466, 904 P .2d 1286, 1290 (App. 1995) (abrogation of privileges has “ not been narrowly inter preted” ). ¶13 Nothing in the language of § 13-3620(G), which cr eates an exception to the marital privilege in cases involving child abuse, expr essly limits the meaning of “abuse,” as used in that section, to the definition of abuse in § 8-201(2). Rather, the language of § 13-3620(G) suggests
abroad scope for the exception to th e marital privilege. The statute specifically states that the
exce ption shall apply in any civil or criminal litigation or administr ative proceeding involvin g child abuse. Accor dingly, we conclude that the legislatur e intended the exception to apply to all forms of child abuse tha

t may be the subject of criminal proceedings. 4 Prosecution for child abuse under § 13-3623(B

) is one such form of chil

d abuse. That remains true even when endangerment, rather than the infliction of an actual injury, forms the basis for the pr osecution. ¶14 That

§ 13-3623(F)(1) incorporat es the definition of abuse in § 8-201(2) does not change our analysis. 5 Section 13-3623(F) specifically limits the incorporation to that section
.8

Thus, that definition does not affect the meaning of abuse in § 13-3620(G), whic h create s the exceptionto the privilege. Nor does the incor poration of that definition limit the criminal offense of child abuse to those circumstances that fit within § 8-201(2). Section 13-3623 explicitly includes as child abuse circumstances in which the child is endangered but not necessarily injured. It would be incongruous for the mar ital privilege to apply to s ome cas es u nde r § 13- 362 3(B) but not to other cases under the same subsection. Rather, § 13-36 23 clearly e xtends the criminal offense of child abuse to those situations in which a child is endangered but not actually injured. Accordingly, the exception to the marital privilege in § 13-3620(G) also extends to situations in which a child is endangered

but not actually injured. Consequently, the trial court did not abuse its discretion by permitting the state to call Herr era’s wife as a witness. ¶15 Herre

raalso contends the trial court er red by twice informing the jur y that he had attempted to i nvoke his marital privilege to pr event the state from calling his wife as a witness against him. H errer a did not object to the trial court’s statements below and, therefore, ha s waived all but funda

men tal erro r. State v. Gendron , 168 Ar iz. 153, 154, 812 P .2d 626, 627 (1991). Fundam ental error is error that deprives a defendant of a right essential to his or he r defense and of a fair trial or that goes to the very foundation of the def endant’s theory of the cas e. State v. Valenzuela , 194 Ar iz. 404, ¶15, 984 P. 2d 12, ¶ 15 (1999). ¶16 The court had listed Herr era’s wife as a prospective wi tness during jury voir dire. Inhis opening statement, Her rera infor med the jury that his wife would test ify t o certain facts. Herre ralater told the cou rt he h ad changed his mind, would not call his wife as a witness, and would invoke the marital privilege. The court then explained to the jury that Herr era’s wife would not be excluded from t he courtroom with the other witnesses because Herr era had invoked the9

marital pri

vil ege and his wi fe w oul d no t be a wi tne ss . Late r, aft er the state requested that she testify pursuant to the child abuse exception, the trial court changed its r uling and explained to the jury that Her rera’s wife would in fact be a witness. ¶17 The jur

y ac qui tt ed H erre raon the child abuse charges. As a res ult , he ca nno t as ser t that the trial court’s statements were fundamental er ror as they r elated to those c harges. To the extent his wife testified about issues relating to the DUI and BAC charges, her testimony was favorable to Herr era. That favorable testimony sufficiently d ispelled any imp

roper inference the jur ymight have drawn from Herrer a’s attempt to i nvoke the marital privilege. Accordingly, we cannot con clu de t hat the tri al c ourt com mi tt ed f und ame nta l er ror. That during closing arguments the prosecutor commented on Her rera’s wife’s potential bias is of no moment. That subject was
a prop er one for closing argument. Likewise, that the trial court r efused to ask Herrer a’s wif e a juror’s question about Her rera’s dr iving record does not change our conclusion. PROSECUTORIAL MISCONDUCT ¶18 During closi ng a rgum ent , Herrera ’s

att orne y arg ued that Officer Bender’s description of

Herr era’s perfor mance on the field sobriety tests was unreliable and subjective. In doing so, counsel specifically mentioned a videotape of Herrera’s field sobriety tests that had not been introduced into evidence b ut presumably would have g iven the jury an

objective view of

the tests. Ultimately, counsel stated, “ [W]hen you consi der the evidencethat you have been given, when yo u con sider the evidenc e that you haven’t b

een given , when you apply the natur e of the investigation

tha t went on . . . you f

ind tha t Mr. He rr era wa s not guilty of driving under the influence that night.” (Emphasis added.) In r ebuttal, the pr osecutor commented, “[H]ad the video shown anything other than what Officer Bender testified to, [Herrer a] would have show ed you that10

video.” Herre

ra co nte nds the pros ecu tor ’ s re mark amounted to prejudicial misconduct. Prosecutorial misconduct is reversible error only if “the defendant has been denied afair trial as
aresult of the actions of

counsel.” State v. Dumaine , 162 Ar iz. 392, 400, 783 P. 2d 1184, 1192 (1989). ¶19 “[A]dvoc ates are ordinar ily given wide latitude in closing argument.” State v. Leon , 190 Ariz. 159, 162, 945 P. 2d 1290, 1293 (1997). It is well settled that a “prosecutor may properly comment upon the d efendant’s fail

ure to present exculpatory evidence , so lon g as the comment is not phrased to call attention to the defendant’s own failure to testify. ” State v. Fuller , 143 Ariz. 571, 575, 694 P. 2d 1185, 1189 (1985); see also State ex r el. McDougall v. Corcoran , 153 Ariz. 157, 160, 735 P. 2d 767, 770 (1987). ¶20 Herre

ra clearly attacked the reliability of B ender’s observations thr ough the abs enc e of the videotape. In fact, H errer a essentially invited the jury to consider the possible contents of that videotape in his favor. Under these cir cumstances, the pr osecutor prope rly argued that Herre racould have presented

the videotape to the jury had it contained exculpatory information. ¶21 Con

tra ryto Herrer a’s suggestion , the pr osecu

tor’s rem ark did not amount t o burden shifting. The comment merely prevented Herrera from dr awing a positive i nference fr om evidence that he could have presented but did not. See Corcoran , 153 Ariz. at 160, 735 P.2d at 770 (“Such comment is permitted by the we ll recognized principle that the nonpr oduction of evidence may give rise to the inference that it would have b een adverse to the party who could have produced it. ”). JURY INSTRUCTION11

¶22 Herre

ralastly contends the trial court imper missibly shifted the burden of proof by instructing the jury: “N either side is required to call as witness es all persons who may have be en present at an event

disclosed by the evidence or who may appear to have some knowledge of these events or to produce all do cuments or evidence suggested by the evidence. ” H errer a did not object to this instruction be

low and has waived

the issue on appeal. See State v. Mann , 188 Ar iz. 220, 231, 934 P .2d 784, 795 (1997). But, before we engage in fundamental error analysis, we must fi rst fi nd e rror. Id . We w

ill no t f ind reve rsi ble erro r bas ed o n a p art icu lar jur yinstruction “‘unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors. ’” State v. Sierra-Cervantes , 201 Ar iz. 459, ¶16, 37 P. 3d 432, ¶16 (App. 2001), quoting State v. Strayhand , 184 Ar iz. 571, 587, 911 P .2d 577, 593 (App. 1995). ¶23 When

a defendant challe

nges a j ury i nstruction, we look to the instructions as a whole to determine “ whether they adequately reflect the law. ” State v. Rutledge , 197 Ar iz. 389, ¶15, 4 P. 3d 444, ¶ 15 (App. 2000). In doing so, “ [w]e look at the language of the instruction[s] inview o f how a reasonable juror could have construed [them]. ” Sierra-Cervant es , 201 Ar iz
. 459, ¶ 16, 37 P .3d 432, ¶16. ¶24 Inaddition to the challenged instruction, the trial court also instructed the jury that
a“plea of not guilty mea ns that the State

must prove every par t of the . . . char ges beyond a reasonable doubt,” and “[t]he law d oes not requ ire a defendant to prove his or her innocence.” The trial court thenreiterated that Her rera was not “ required to pr esent any evidence,” and “[t]his
means that the State must prove guilt beyond a reasonable doubt.” The trial court further stated, “T his burden rests solely on the state and never shifts throughout trial .” (Emphasis added.) The trial court then instructed the jur y on the meaning of reasonable doubt, concluding with the12

statement, “The state must then prove the defendant gui lty as charged, which means that the state must prove each and every element of the offense[s] beyond a r easona ble doubt. ” T aken as a whole, a reasonable juror likely would have understood the instructions to mean that, although the state need not produce every scrap of evidence avail able, it must produce sufficient evi dence to prove the def

endant guilty beyond a reasonable doubt. Thus, the trial court did not shift th e burden of proof to the defendant. Accordingly, we find no error in the instruction. DISPOSITION ¶25 Herr era’s convictions and placement on probation ar e affirmed.

_______________________________________ JOSEPH W. HOWARD, Judge CONCURRING:

_______________________________________ J. WILL IAM BRAMMER, JR., Presiding Judge

_______________________________________ M. JAN FLÓREZ, Judge