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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

EFREN ORTIZ GARCIA, Appellant.

No. 1 CA-CR 17-0305

No. 1 CA-CR 17-0315

(Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2013-103418-001 SE

No. CR2016-134204-001 DT

The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Adele G. Ponce

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Kevin D. Heade

Counsel for Appellant

FILED 5-15-2018
STATE v. GARCIA

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge James B. Morse Jr. and Judge Kent E. Cattani joined.

W I N T H R O P, Judge:

¶1 Efren Ortiz Garcia (“Garcia”) appeals his convictions and 

sentences for misconduct involving weapons and misconduct involving 

body armor. For the following reasons, we affirm his convictions, 

probation revocation, and sentences.

FACTS AND PROCEDURAL HISTORY1

¶2 On July 18, 2016, Mesa police stopped Garcia in his car. 

Garcia was wearing army fatigues, body armor, and an empty holster on

his thigh. Garcia initially did not comply with the officers’ commands, 

putting the officers on high alert. The officers eventually detained Garcia. 

While confirming the car did not have any other occupants, the officers saw 

in open view a handgun that would fit in Garcia’s empty holster. Garcia 

was on felony probation at the time of the incident.

¶3 The State charged Garcia with misconduct involving 

weapons and misconduct involving body armor. At trial, Garcia called a 

witness, Lasley, to testify that he found the gun two days before the offense 

in an empty field next to his neighborhood. Lasley saw Garcia driving, and 

caught a ride with Garcia to a nearby Circle K. During the ride, the gun 

slipped out of a pocket of Lasley’s basketball shorts into Garcia’s car. Lasley 

forgot to retrieve the weapon before he left the car.

¶4 The jury found Garcia guilty of both charges. The court 

sentenced Garcia to concurrent, presumptive terms of ten years in prison 

for each count. The court also revoked Garcia’s probation, and sentenced

him to six months in prison consecutive to the ten-year sentences.

¶5 Garcia timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9 of the Arizona Constitution, and Arizona Revised 

 

1 We view the facts in the light most favorable to sustaining the 

verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
STATE v. GARCIA

Decision of the Court

3

Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2016), 13-4031 (2010), and 13-

4033(A)(1) (2010).2

ANALYSIS

¶6 Garcia presents two claims on appeal. First, he argues the 

trial court erred by failing to require that the jury, after a separate 

aggravation hearing, determine Garcia was on felony probation at the time 

of the offenses. Second, Garcia argues that the State committed 

prosecutorial misconduct by vouching during its closing argument. Garcia 

failed to object to either of these alleged errors at trial, so we review for 

fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).

I. Separate Aggravation Hearing

¶7 Garcia first argues the trial court erred by not requiring the 

jury to explicitly determine, after a separate aggravation hearing, that he 

was on felony probation at the time of the offenses. After the evidence was 

presented, the trial court instructed the jury that a prohibited possessor is 

“a person who is at the time of possession serving a term of probation 

pursuant to a conviction for a felony offense.” The court released the jury

from service after the jury reached its verdicts without conducting a 

separate hearing. In light of the jury’s verdict, inherently determining that 

Garcia was on probation at the time of the offense, the court increased the 

minimum sentence Garcia could receive to ten years in prison.

¶8 Facts that increase a defendant’s mandatory minimum 

sentence must be submitted to a jury and proved beyond a reasonable 

doubt. Alleyne v. United States, 570 U.S. 99, 103 (2013). Arizona trial courts 

are required to sentence a defendant who commits a felony offense while 

on felony probation to no less than the presumptive term of imprisonment. 

See A.R.S. § 13-708(C) (Supp. 2017). Therefore, Garcia’s felony probation 

status is a fact that increased his minimum sentence and the court was 

required to submit that issue to the jury or find that it was inherent in the 

jury’s verdicts. State v. Flores, 236 Ariz. 33, 35, ¶ 5 (App. 2014). If the jury’s 

verdicts necessarily or implicitly included a finding that Garcia was on 

probation at the time of the offenses, there was no need to conduct a 

separate hearing to address that issue. See State v. Gatliff, 209 Ariz. 362, 364, 

¶ 12 (App. 2004) (finding no separate dangerousness determination 

necessary because it was inherent in the jury’s verdict).

 

2 We cite the current version of all applicable statutes because no 

revisions material to this decision have occurred.
STATE v. GARCIA

Decision of the Court

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¶9 Here, to prove the misconduct involving weapons charge, the 

State had to prove Garcia was a prohibited possessor at the time of the 

offense. See A.R.S. § 13-3102(A)(4) (2018). Section 13-3101(A)(7)(d) (2018)

provides that, a person who is on felony probation while possessing a 

weapon is a prohibited possessor, and as noted above, this is the only 

definition of a prohibited possessor the court provided to the jury. The jury 

found Garcia guilty, necessarily finding all elements of the charged offenses

proved beyond a reasonable doubt. We presume jurors follow jury

instructions, thus, the court was entitled to presume that the jurors’ verdict 

included a finding that Garcia was on felony probation at the time of the 

offense. See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Accordingly, 

there was no need to submit that issue to the jury in a separate hearing.

II. Prosecutorial Misconduct

¶10 Garcia next argues that the State committed prosecutorial 

misconduct by vouching when it commented on the sufficiency of the 

evidence and the lack of credibility of Garcia’s witness. Prosecutorial 

vouching occurs when (1) “the prosecutor places the prestige of the 

government behind its witness” and when (2) “the prosecutor suggests that 

information not presented to the jury supports the witness’[] testimony.” 

State v. Blackman, 201 Ariz. 527, 542, ¶ 62 (App. 2002) (internal quotations 

and citation omitted). While counsel is prohibited from referring to matters 

not in evidence, counsel may draw reasonable inferences from evidence 

presented at trial. Id. at 544, ¶ 71. Prosecutorial misconduct does not 

require reversal unless it permeated the trial to the extent it likely affected 

the outcome and denied the defendant his right to a fair trial. Id. at 541, 

¶ 59.

a. Prosecutor’s Comments Regarding Sufficiency of Evidence

¶11 During closing argument, Garcia pointed to the State’s failure 

to test the handgun for fingerprints and DNA. The prosecutor responded, 

“[s]o when defense is trying to say [the State] had an analyst, but then he 

didn’t do [fingerprint or DNA analysis] . . . he wasn’t instructed to do it.

And that’s because Detective Figueroa was confident in her investigation.” 

This argument was sufficiently tethered to the evidence. Detective 

Figueroa testified, without objection, that she was confident in the 

thoroughness of her investigation. The State reasonably argued from that 

evidence that the detective did not deem it necessary to test the evidence 

for fingerprints or DNA. Cf. State, ex rel. McDougall v. Corcoran, 153 Ariz. 

157, 160 (1987) (finding comments on defendant’s failure to produce 
STATE v. GARCIA

Decision of the Court

5

evidence was a permissible response to defendant’s arguments about the 

sufficiency of the investigation).

b. Prosecutor’s Comments Regarding Witness’ Credibility

¶12 At trial, the prosecutor also argued that the State would 

explain why it did not “believe [Lasley’s] story at all.” And that if, “you 

[Lasley] want to tell the truth, you show up for your interviews. If you want 

to tell the truth, you don’t come to court 15 minutes before you’re supposed 

to testify and then say what happened.”

¶13 The credibility of witnesses is an issue for the jury to decide. 

State v. Harrison, 111 Ariz. 508, 509 (1975). Lasley testified to the facts in the 

State’s argument. The State was free to use these facts to argue Lasley was 

not a credible witness. See State v. Schrock, 149 Ariz. 433, 438-39 (1986) 

(characterizing the argument that a defendant’s statement was a lie as “a 

proper attack on defendant’s statement”).

¶14 The State further made the following arguments after Lasley

testified about the gun falling out of his basketball shorts: “I’m familiar 

with, basketball shorts, they have pretty deep pockets.” While this was not 

in evidence, and therefore improper, the statement did not permeate the 

trial to the extent of affecting the outcome nor deny Garcia the right to a fair 

trial.

¶15 We conclude the State’s arguments, considered individually 

and cumulatively, do not amount to prosecutorial misconduct requiring 

reversal.

CONCLUSION

¶16 We affirm Garcia’s convictions, probation revocation, and 

sentences.