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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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.

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. CR 2013

- 103418

- 001 SE No. C R2016

- 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 C ounsel for Appellant FILED 5-15-2018STATE 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.

FACT S AND PROCEDURAL HISTORY 1

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

. Garcia was wearing a rmy fatigues, bod y armor, and an empty holster on his thigh. Garcia initially did not comply with the officers’ commands, putting the officers on high alert. The offic ers eventually de tained 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 probati on at the time of the incident.

¶3 The State charged Garcia with miscondu ct involving weapons and m isconduct 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 neighborhoo d. Lasley saw Garcia driving , and caught a ride wit h Garcia to a nearby Circle K. During the ride, the gun slipped out of a pocket of Las ley’s basketball shorts into Garcia’s car. Lasley forgot to retrieve the weapon before he left the car.

¶4 T he 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 sentenc ed him to six months in prison consecu tive 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 , 2 33 Ariz. 484, 509, ¶ 93 (2013).STATE v. GARCIA Decision of the Court

3 Statutes (“A.R.S.”) secti ons 12

- 120.21(A)(1) (201 6 ), 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 probati on at the time of the offenses. Second, Garcia argues that the State committed prosecutorial misconduct by vouch i ng during its closing argument. Garcia failed to object to either of these alleged errors at trial , so w e 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 offense s

. After the evidence was presented , t he trial court instructed th e jury that a prohibited possessor is “a person who is at the time of possession serving a term of probation pursuant to a co nviction for a felony offense.” The court released the jur y from service after the jury reached its verdict s 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 increase d the minimum sentence Garcia could receive to ten years in prison.

¶8 F acts that increase a defendant’s manda tory minimum sentence must be submitted to a jury and prove d beyond a reasonable doubt. Alleyne v. U nited 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 verdi ct).

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

4 ¶9 Here, to prove the misconduct involving weapons charge, the State had to prove Garcia was a prohibited posses s or 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 a s noted above, t his 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
pr oved 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 probat ion at the time of the offense. See State v. Newell , 2 12 Ariz. 389, 403, ¶ 68 (2006). Accordingly, there was no need to submit that issue to the jury in a separate heari ng.

II. P rosecutorial M isconduct

¶10 Garcia next argues that the State committed prosecutorial misconduct by vouching when it commented on the suffi ciency of the evidence and the lack of credibility of Ga rcia’s witness. Prosecutorial vouching o ccurs when (1) “ the prosecutor places the prestige of the government behind its witness ” and when (2) “ the prosecutor suggests that information not presented t o 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 inf erenc es 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 t rial. Id

. at 541, ¶ 59.

a. Prosecutor’s C omments R egarding S ufficiency of E vidence

¶11 During closing argument, Garcia pointed to the State’s failure to test the ha ndgun for fingerprints and DNA. The prosecutor responded
, “[s] o when defense is trying to say [the State] had an analy st, but then he didn’t do [fingerprint or DNA analysis ] . . . he wasn’t instructed to do it. And that’s because Detective Figueroa was c onfident in her investigation.” This argument was sufficiently tethered to the evidence

. Detective Figueroa testified , without objection, that she was confident in the tho roughness of her investigation. The State reasonably argued from that evidence that the d etective did not deem it necessary to test the ev idence for fingerprints or DNA. Cf. State, ex rel. McDougall v. Corcoran , 153 Ariz. 157, 160 (1987) ( finding comments on defendant’ s failure to produceSTATE v. GARCIA Decision of the Court

5 ev idence was a permissible response to defendant’ s arguments about the sufficiency of the investigation).

b. Prosecutor’s C omments R egarding Witness’ C redibility

¶12 At trial, t he 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 f ree to use the se facts to argue Las ley 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 a s “a proper attack on defendant’ s statement”).

¶14 The State further mad e the following arguments after Lasl ey testified about the gun falli ng out of his basketball shorts: “ I’m familiar with, basketball sho r ts, they have pretty deep pockets. ” While this was not in evidence, and therefore improper, the statement did not perme ate the trial to the extent of affecting the outcome nor deny Ga rcia the right to a fair trial.

¶15 We conclude the State’s arguments, considered in dividually and cumulatively, do not amount to prosecutorial misconduct requiring reversal.

CONCLUSION

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