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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LUIS FERNANDO VAZQUEZ

, Appellant

.

No. 1 CA

- CR 21

- 0154

Appeal from the Superior Court in Maricopa County

No. CR2011

- 161993

- 001

The Honorable Warren J. Granville

, Judge Retired

AFFIRMED

COUNSEL

Arizona Attorney General ’ s Office , Phoenix By Jillian Francis Counsel for Appellee

Maricopa County Public Defender ’ s Office

, Phoenix By Jesse Finn Turner

C ounsel for Appellant FILED 6-2-2022STATE v. VAZQUEZ

Decision of the Court

2 MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the c ourt, in which Presiding Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

S W A N N

, Judge:

¶1 Luis Fernando Vazquez appeals from his conviction and resulting sentence for theft of means of transportation. V azquez argues the superior court committed reversible error by denying his motion for a

mistrial based on prosecutor ial error 1 in closing argument

. For the

follow ing reasons , we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 T he relevant facts are uncontested

. John worked as a customer service representative for Penske Truck Leasing in September

2011

. One night that month, h e was monitoring the truck yard when he saw Vazquez attempting to get into one of the trucks

. J ohn immediately recogniz ed Vazquez because Vazque z worked as a commercial driver for
SP Richards, a company that regular ly lease d trucks from Penske , and the two had interacted frequently over the past year

. Vazquez told John that he was there to pick up a truck for SP Richards but the key he had been given did not work. J ohn helped Vazquez open the door and start the truck

, then Vazquez drove away.

¶3 Wh ile reviewing rental contracts a few minutes later

, John

noticed that the t ruck Vazquez had taken was scheduled for a different company that night

. Believ ing the truck had mistakenly been leased to two companies at the same time, John immediately told his manager about the problem

. T he manager soon discovered that SP Richards had not reserved any trucks for that night

. After further lear ning Vazquez had stopped working for SP Richards several w eeks earlier

, the manager call ed the

1 Because there is no allegation that the prosecutor committed intentional misconduct in this case, we refer to the prosecutor’s conduct as “prosecutorial error

. ” See State v. Murray , 250 Ariz. 543, 548, ¶ 12 (2021) ( characterizing a prosecutor’s incorrect reasonable

- doubt statement as

“error” ra ther than “misconduct” in the absence of evidence that the prosecutor’s actions were intentional).STATE v. VAZQUEZ

Decision of the Court

3 police and report ed the truck stolen

. The next day, p olice officers found the

truck abandoned several miles away from Penske

.

¶4 A grand jury indicted Vazquez on one count of theft of means

of transportation, a class three felony. A t trial, defense counsel explained

in their opening statement that the s tate would not be able to prove the charged offense because, inter alia

, Vazquez ha d “ been charged with the

wrong statute

, ” a theory he later repeated in closing argument. Vazquez

testified and acknowledged that when he took the truck, he no longer

w orked for SP Richards

. According to Vazquez, John had allowed him to

borrow the truck for a few hours that night so he could co mplete a few side jobs

. Vazquez also explained that John called him shortly after he had left

and asked him to return the truck right away

. When Vazquez said he could not do so because he had already started a job , John told him to leave the

truck somewhere close to Penske when he was done

.

¶5 In pertinent part, t he final jury instructions included an
instruction on the lesser

- included offense of unlawful use of means of transportation

, which direct ed the jurors to consider the lesser offense only

i f t hey either found Vazquez not guilty of theft of means of transportation

or , “after full and careful consideration of the facts,” could not agree on a

verdict for that charge. T he p rosecutor addressed the lesser

- included

offense instruction in closing argument :

The defense included a lesser included. And that’s on Page 5. It’s fair game for you all. The State did not charge this. It’s up to the jury to consider

. . . . If you find that the defendant [

, ] without the intent to permanently dep rive, knowingly took unauthorized control over another person’s transportation,
the tractor, that’s a violation of that lesser included statute

. The State did not charge that [

. ]

¶6 F ollowing the s tate’s closing argument, the superior court excused the jurors

, and Vazquez moved for a mistrial based on the

prosecutor ’s statement that the defense had requested the lesser

- included

offense instruction

. Declining to rule on the motion that instant , t he court

ordered the parties to provide case law supporting their position s , then recessed for the day

.

¶7 The next morning

, V azquez argued that he was entitled to a

mistrial under State v. Stambaugh , 121 Ariz. 226 (App. 1978 )

. T he prosecutor responded that although he had made a “mistake

, ” Stambaugh did n ot require a mistrial

. After considering the parties ’ arguments, t he superiorSTATE v. VAZQUEZ

Decision of the Court

4 court found that the prosecutor ’s statement was imprope r but denied the

mistrial motion

. Over Vazquez’s objection , t he court instead gave the following curative instruction:

[A]ny reference by counsel during closing argument as to which party requested a particular jury instruction is hereby stricken, and the jury is instructed to disregard that reference. You may not consider it in any way in reaching your verdict.

¶8 The jury found V azquez guilty of theft of means of transportation, and the superior court later sentenced him to nine years’ imprisonment. 2 Vazquez appeals.

DISCUSSION

¶9 Asserting the prosecutor’s “actions here are identical to those

in Stambaugh

, ” Vazquez argues the superior court abused its discretion by denying his mistrial motion. For its part , the s tate contends (1) the absence of a contemporaneous objection limits our review to fundamental error

, and (2) Vazquez is not entitled to relief under th at standard because Stambaugh is distinguishable

. We need not resolve the parties ’ standard

- of

- review dispute because, for reasons set forth infra ¶¶ 14

– 16 , Vazqu ez’s claim fails

under any applicable standard of review

. S ee S tate v. Diaz , 223 Ariz. 358, 360, ¶ 11 (2010) ( “Regardless of how an alleged error ultimately is
characterized,

. . . a defendant on appeal must first establish that some error

occurred.” ).

¶10 “Because the trial court is in the best position to determine the

effect o f a prosecutor’s comments on a jury, we will not disturb a trial court’s denial of a mistrial for prosecutorial [error] in the absence of a clear

abuse of discretion.” State v. Newell , 212 Ariz. 389, 402 , ¶ 61 (2006). To determine whether prosecutor ial e rror warrant s a mistrial, courts consider: “(1) whether the prosecutor’s statements called to the jury’s attention matters it should not have considered in reaching its decision and (2) the probability that the jurors were in fact influenced by the remarks .” Id. at ¶ 60. “ [ R ] eversal is warranted if a reasonable likelihood exists that the [prosecutorial error] could have affected the jury ’ s verdict, thereby denying

the defendant a fair trial.” State v. Speer

, 221 Ariz. 449, 458, ¶ 42 ( 2009 ) ( citation and internal quotation marks omitted ) ; see also State v. Nelson , 229 Ariz. 180, 189, ¶ 38 (2012) (explaining prosecutorial error is harmless when

2 Vazquez absconded on the final day of trial and was eventually

sentenced in 2019

.STATE v. VAZQUEZ

Decision of the Court

5 courts are satisfied “ beyond a reasonable doubt it did not contribute to or affect the verdict ” ( cita tion omitted) )

.

¶11 As a n initial matter, it is un dispute d that the prosecutor’s

comment constituted error

. See Stambaugh

, 121 Ariz. at 228 ( “[T] hat appellant

. . . offered an instruction on the lesser included offense

. . . was not a matter that the jurors would have been justified in considering in determining their verdict .” )

. W e next address Vazquez’s contention that Stambaugh requires reversal of his conviction

. In Stambaugh

, the superior

court instruct ed the jurors on the charged offense of second

- degree murde r and the lesser

- included offense of involuntary manslaughter. Id. at 227

– 28

. Despite the inclusion of the lesser offense

, defense counsel asserted an “ all

or

- nothing ” defense in closing argument , urging the jurors to either find the

d efendant guilty of the charged offense or not guilty at all :

(The prosecutor) has tried every which way to get a

conviction in this case. He starts out by saying: This murder

is intentional. He will show there is some deliberate act with

malice. Now, he is talking about involuntary manslaughter, talking about instructions on involuntary manslaughter. Sometimes lawyers demand the moon hoping they can get something. I submit (the prosecutor) is asking for second degree murder hoping he can get involuntar y manslaughter from you. I say to you: If [the defendant] did all the things (the prosecutor) says, convict him of second degree murder.
If he is innocent, free him. Id. at 227.

¶12 In rebuttal, the prosecutor responded to the defense theory :

He says I’m talking about manslaughter; that I’m asking you to convict him of murder, yet I’m giving you a discussion relating to the crime of manslaughter. As ( defense counsel )
indicated, befor e we came out here and started final arguments, we sat with the judge, spent the better part of an hour going over the instructions. The fact is ( defense counsel ) requested an instruction on manslaughter. This is not something that I

— [.] Id.

The superio r court s ustain ed d efense counsel ’s object ion at that point, the n later instructed the jurors:

As a matter of law [

, ] I decide which instructions should be given regardless of which party requests those instructions. If an instruction is requested that I d on’t think should beSTATE v. VAZQUEZ

Decision of the Court

6 given, I will not give it. If one is requested which I think must be given, I will give it. Id.

The jurors ultimately found the defendant guilty of involuntary manslaughter. Id.

¶13 On appeal, w e vacated his conviction and sentence

, concluding the superior court improperly denied the defendant’s subsequent mistrial motion. Id. at 228

– 29. W e explain ed that “ the

prosecutor ’ s reference to defense counsel ’ s request for the instruction was doubly prejudicial: it implied, first, an admission that appellant was guilty of the lesser offense and, second, duplicity on the part of defense counsel. ”

Id. at 228. We also reasoned that the superior court’s instruction emphasized rather than cure d the resulting prejudice because it “ tend ed to

further disparage defense counsel ’ s argument for acquittal as the alternative to conviction of second degree murder

. ” Id.

¶14 We find Stambaugh distinguishable. Here, u nlike in Stambaugh

, the jurors found the defendant guilty of the greater offense

. And as recounted supra ¶ 5

, the lesser

- included offense instruction prohibit ed consider ation of the lesser offense unless the j uror s first found Vazquez not guilty of the greater offense or could not reach a verdict on that charge

. Because we presume the jurors followed that instruction

, Newell

, 212 Ariz. at 403, ¶ 68

, we have no basis to conclude that the jurors

ever confronted the prosecutor’s error in deciding the case , let alone that

the error influenced the verdict

. S ee S peer , 221 Ariz. at 458, ¶ 42; see also

Nelson , 229 Ariz. at 189, ¶ 38

.

¶15 Nor is there merit to Vazquez ’s argument that the superior

court was nonetheless compelled to order a mistrial base d on the

similarities his case shares with Stambaugh , notwithstanding the ultimate

verdict. T he Stambaugh prosecutor’s error severely damaged the credibility

of the defendant’s unequivocal all

- or

- nothing defense , given that it impermissibly implied that the defen dant in fact believed the evidence supported the lesser offense

. Here

, on the other hand, the prosecutor’s

error occurred in initial closing argument when defense counsel had already introduced the notion that the s tate had charged Vazquez with the wrong crime

. Given these circumstances , the superior court could

reasonabl y determine that Vazquez suffered less prejudice than did the

Stam b augh defendant. S ee S tate v. Armstrong , 208 Ariz. 345, 354, ¶ 40 (2004) ( explaining an abuse of discretion occurs when “ no reasonable judge would

have reache d the same result under the circumstances ” ).STATE v. VAZQUEZ

Decision of the Court

7 ¶16 Furthermore

, the superior court’s curative instruction evaded

the flaw we identified in the Stambaugh instruction

. Here, the court merely

directed the jurors to disregard the improper comment whereas t he Stambaugh instruction implic i t ly endor se d the propriety of the lesser

included offense

, thereby exacerbating the harm done to the defense theory

. Within the context of Vazquez’s trial

, the court ’s curative instruction sufficiently ameli orated any resulting prejudice. See State v. Adamson , 136 Ariz. 250, 262 (1983) ( explaining a mistrial “ is the most dramatic remedy for

trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted” ) ; State v.

Herrera , 203 Ariz. 131, 135, ¶ 6 (App. 2002) (“A trial court is in the best position to determine an appropriate remedy for trial error that will preserve a defendant ’ s right to a f air trial.”). A ccordingly, the superior court did not err, fundamentally or otherwise, in denying the mistrial

motion.

CONCLUSION

¶17 We affirm.