NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA

, Appellee

,

v.

AVION TESEAN EDDY

, Appellant

.

No. 1 CA

- CR 20

- 0140

1 CA

- CR 20

- 0219 (Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2018

- 159722

- 001

The Honorable Monica S. Garfinkel

, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General ' s Office , Phoenix By Michael O ' Toole Counsel for Appellee

Maricopa County Public Defender ' s Office

, Phoenix By Jesse Finn Turner

C ounsel for Appellant FILED 6-29-2021STATE v. EDDY

Decision of the Court

2 MEMORANDUM DECISION

Judge James B

. Morse Jr. delivered the decision of the Court, in which Presiding Judge D. Steven Williams and Judge Jennifer B

. Campbell joined.

M O R S E

, Judge:

¶1 Avion Tesean Eddy appeals his convictions and sentences for aggravated assault and disorderly conduct

. For the following reasons, we

affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 On December 9, 2018, Eddy pointed a handgun at D.Z. and made threatening statements. 1 When officers arrived, Eddy entered the backyard of a residence and discard ed the handgun and a backpack

. After

Edd y ' s arrest , officers located the handgun and backpack. The backpack contained marijuana and items consistent with drug sales.

¶3 The State c harged Eddy with one count each of aggravated

assault , a class 3 dangerous felony (Count 1)

, possession of marijuana for

sale , a class 4 felony (Count 2), misconduct involving weapons, a class 4 felony (Count 3), criminal trespass in the first degree, a class 1 misdemeanor (Count 4 ) , and disorderly conduct, a class 6 dangerous felony (Count 5 )

. The State dismissed Count 3 short of trial.

¶4 In the first trial, the jury convicted Eddy o f possession of marijuana for sale, Count 2

, and criminal trespass, Count 4

. The jury found Eddy committed Count 2 for pecuniary gain and both counts while on felony release

. The jury, however, could not reach a verdict as to Counts 1

and 5

. The State elected to retry th ose counts in a second trial.

¶5 In the second trial

, D.Z. testified that he saw Eddy smoking marijuana on the steps outside of his apartment. D.Z. testified that Eddy was wearing a " puffy " jacket, carrying a backpack, and sitting near a bicycle

. D.Z. saw that Eddy had baggies and paper packaging next to him

. D.Z. asked Eddy to leave

, but he refused and stated he did not " abide by the

1 We use initials to protect the victim ' s privacy. See Ariz. R. Sup. Ct. 111(i); State v. Maldonado , 206 Ariz. 339, 341, ¶ 2 n.1 (App. 2003).STATE v. EDDY

Decision of the Court

3 laws

. " Eddy pulled out a hand gun, pointed it at D.Z. , and called himself a

" gangster. " When D.Z. did not back down

, Eddy grabbed his belongings

and left the apartment complex

.

¶6 D.Z. ' s wife

, J.B.

, testified that she looked out the apartment

window and saw Eddy poin ting a hand gun at D.Z

. J.B. testified that Eddy

had a " puffy " jacket

- like vest, gray hat

, dark clothing

, backpack

, headphones , and blonde

- tipped dreadlocks

. J.B. testified that Eddy ' s handgun was small and dar k , and he was standing near a bicycle and what

looked like cigar packaging

. J.B. testified that she contacted 911 and provided a description of Eddy. Though J.B. could not recall a specific time
frame, she testified that officers responded within minutes of her 911 call and she was speaking with disp atch when Eddy left on his bicycle

. Shortly
after, J.B. performed an on

- scene identification of Eddy

. J.B. added that she recognized his vest, hat, and dreadlocks.

¶7 The first responding officer testified that dispatch informed

her of a " subject with a gun. " She testified the 911 caller, J.B. , reported that the perpetrator was a black male with a " puffy " vest, dark clothing, gray hat, backpack, headphones, and blonde

- tipped dreadlocks. J.B. reported the perpetrator was smoking marijuana and riding a bl ack bicycle. Though

the 911 call was not admitted into evidence , the officer used a dispatch report to refresh her recollection as to the details of J.B. ' s description. When the officer responded to the scene, she saw a person later identified as Eddy

" m atching that exact same description. " She drove beside Eddy and asked him to stop. Eddy refused, yelling he " didn ' t do anything wrong

. " Eddy eventually dropped his bicycle and entered the backyard of a residence

. After Eddy entered a second backyard, o fficers arrested him and located the backpack and handgun. The officer obtained video surveillance of Eddy entering the first backyard and confirmed that he matched the description provided by J.B. in the 911 call.

¶8 A second officer testified that dispatch informed him of a perpetrator pointing a gun at the 911 caller ' s husband. He testified that the caller provided a detailed description of the perpetrator

, including an approximate age and build

. The o fficer responded to the scene and arrested

Ed dy , who matched th e description in the 911 call

. The officer searched Eddy ' s backpack and located identification cards

, cigar packaging

, and marijuana

. The o fficer also seized Eddy ' s cellular phones and articles of clothing

. Eddy agreed to speak with the officer but denied any involvement

in the offenses.STATE v. EDDY

Decision of the Court

4 ¶9 While testifying, both D.Z. and J.B. identified Eddy as the

perpetrator and confirmed seized items , including the handgun

, were consistent with items they saw on the day of the offenses

. F orensic expert s testified that an analysis of Eddy ' s cellular phones and DNA testing of the handgun further lin ked him to the offenses

.

¶10 In closing argument, the prosecutor argued J.B. testified based on her memory of Eddy ' s physical appearance

, identified him after the

offense s and at trial

, and provided a detailed and accurate description in

her 911 call

. The prosecutor argued Eddy would have addressed

inconsistencies in the 911 call , if they existed, during cross

- examination

. Eddy objected

, contending that the jury had not heard the 911 call and any testimony related to the call was admitted solely to establish the officers '

state of mind

. The State argued multiple witnesses provided details of the

911 call and the testimony fell within the " present sense impression " exception to the rule against hearsay

. The superior court overruled the objection

. At no point prior to closing argument did Eddy objec t to testimony related to the 911 call , take issue with the State ' s characterization

of the 911 call , or request the testimony be admitted for a limited purpose.

T he superior court instructed the jury not to consider remarks in closing argument as evidence.

¶11 The jury found Eddy guilty as charged in Counts 1 and 5

. The jury did not find that Eddy committed the counts while on felony release. Before sentencing, Eddy moved for a new trial and argued, in relevant part,

that the State ' s use of the 911 call in closing argument prevented him from receiving a fair trial. The prosecutor contended statements in the 911 call

fell within hearsay exceptions, the jury heard the statements

, and his

remarks cons t ituted proper argument

. The superior court denied the

motion

. 2

¶12 At sentencing, the superior court found Eddy had at least one historical prior felony conviction and sentenced him to an aggregate term of six years ' imprisonment. We have jurisdiction over Eddy ' s timely appeal
under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12

- 120.21(A)(1), 13

- 4031, and

- 4033(A)(1) , (2)

.

2 Although the superior court failed to enter a timely ruling on the

motion for new trial

, we deem the motion denied by operation of law and treat any claim arising from the motion as adequately preserved

. See State

v. Hill , 174 Ariz. 313, 323 (1993)

.STATE v. EDDY

Decision of the Court

5 DISCUSSION

¶13 Eddy argues the superior court erred in overruling his objection to the prosecutor ' s use of the 911 call in clos ing argument

. Eddy further claims the superior court erred in denying his motion for new trial

based on the same issue. We review the superior court ' s ruling on the objection for an abuse of discretion. State v. Payne , 233 Ariz. 484, 513, ¶ 118 (2013). We will not disturb the superior court ' s denial of the motion for new

trial absent an affirmative showing the court acte d arbitrarily and abused

its discretion

. State v. Durham , 111 Ariz. 19, 23 (1974).

¶14 Counsel must not " comment upon evidence which has not previously been offered and placed before the jury

, " State v. Gonzales , 105 Ariz. 434, 437 (1970)

, or " bolster a witness ' s credibility by reference to
matters outside the record, " State v. Acuna Valenzuela , 245 Ariz. 197, 217, ¶ 75 (2018)

. Our cou rts , however, have long afforded counsel wide latitude

in closing argu ment when comment ing on admitted evidence and argu ing

reasonable inferences therefrom

. See Gonzales , 105 Ariz. at 436

- 37

. In

criminal case s , prosecutor s are entitled to criticize defense tactics, argue their case was not contradicted, and suggest ultimate conclusions

. See State

v. Bible , 175 Ariz. 549, 602 (1993) ; State v. Byrd , 109 Ariz. 10, 11 (1972) ; State

v. Ramos , 235 Ariz. 230, 238, ¶ 25 (App. 2014)

. We will not reverse if

" remarks in the prosecutor ' s closing argument served only to call the attention of the jurors to matters which they were justified in considering in determining their verdict. " State v. Jones , 109 Ariz. 378, 380 (1973)

.

¶15 The record d oes not support Eddy ' s claim the prosecutor injected facts not in evidence, nor does it support his contention the evidence was admitted for a limited purpose. Although the State did not play the 911 call for the jury, multiple witnesses testified about t he information conveyed during that call. Officers informed the jury of the description J.B. provided to 911 dispatch, confirmed Eddy matched that description, and referred to the dispatch report when necessary. J.B.

testified that she contacted 911 and gave dispatch a description of Eddy. Aside from Eddy ' s objection in closing argument, he did not object to testimony regarding the 911 call, nor did he request the 911 call information be used for a limited purpose. See State v. McGann , 132 Ariz. 296, 29 9 (1982) (failing to raise an objection renders evidence admissible for all purposes). Absent any indication of limited admissibility, the prosecutor ' s comment on the testimony constituted proper argument. Thus, the superior court

did not abuse its discr etion in overruling the objection or denying the

motion for new trial on the same basis.STATE v. EDDY

Decision of the Court

6 ¶16 Eddy ' s claim that the prosecutor ' s argument improperly

bolstered J.B. ' s credibility similarly fails. The evidence supported an

inference that J.B. provided accurate details in her 911 call

. In arguing that

the officer ' s observations corroborated J.B. ' s de s cr i pt i on to dispatch, and vice versa, the prosecutor did not refer to facts outside the record or call the ju ry ' s attention to matters outside its consideration. See Acuna Valenzuela

, 245 Ariz. at 217, ¶ 75 ; Jones , 109 Ariz. at 380

. Moreover

, the prosecutor was entitled to argue that Eddy ' s failure to raise issues with the 911 call during

cross

- examination further demonstrated its accuracy

. See Ramos , 235 Ariz.

at 238, ¶ 25

. The prosecutor properly suggest ed that consistent

, uncontradicted testimony support ed the State ' s theory of the case

. See Byrd

, 109 Ariz. at 11

.

¶17 To the extent Eddy argues admission of the testimony constituted error, we review only for fundamental, prejudicial error. See

State v. Escalante , 245 Ariz. 135, 138, ¶ 1 (2018); State v. Marlow , 163 Ariz. 65, 69 (1989) ( " Failure to make a timely objectio n to the introduction of evidence waives all except fundamental error. " ). To prevail on a claim of
fundamental error, a defendant must first demonstrate trial error. Escalante

, 245 Ariz. at 142, ¶ 21. Here, we agree with the State ' s assertion that

state ments from the 911 call were admissible under the " P resent S ense
I mpression " exception to the rule against hearsay. See Ariz. R. Evid. 803(1).

Statements fall within the " P resent S ense I mpression " exception if they

describe " an event or condition, made w hile or immediately after the declarant perceived it. " Id

. Such statements are " deemed reliable because they are made close in time to the events they describe. " State v. Tucker , 205 Ariz. 157, 165, ¶ 42 (2003). J.B. testified that she observed Eddy ' s conduct and appearance as she was providing descriptions to 911 dispatch. The

admission of J.B. ' s contemporaneous statements to dispatch did not
constitute error, fundamental or otherwise.

¶18 Finally, the superior court mitigated any pot ential error in instructing the jury that remarks in closing argument were not evidence.

See State v. Newell , 212 Ariz. 389, 403, ¶ 68 (2006) ( presuming that jurors

follow jury instructions ).STATE v. EDDY

Decision of the Court

7 CONCLUSION

¶19 We affirm Eddy ' s convictions and resulting sentences

.