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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRISTOPHER LEE DEVORCE, Appellant.

No. 1 CA-CR 15-0751

Appeal from the Superior Court in Maricopa County

No. CR2014-121101-001

The Honorable Annielaurie Van Wie, Commissioner

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix

By Cynthia D. Beck

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee
STATE v. DEVORCE

Decision of the Court

2

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Kenton D. Jones and Judge Randall M. Howe joined.

K E S S L E R, Judge:

¶1 Christopher Lee Devorce (“Devorce”) appeals his convictions

and sentences for aggravated driving of a vehicle while under the influence 

of intoxicating liquor or drugs, a class 4 non-dangerous, non-repetitive 

felony, in violation of Arizona Revised Statutes (“A.R.S.”) sections 28-1381 

and 28-1383 (2016).1 Devorce argues that the trial court erred by allowing 

the State to impeach his testimony in violation of his Fifth Amendment right 

not to have his silence used as evidence of guilt. For the reasons set forth 

below, we affirm Devorce’s convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 Devorce was indicted for two counts of aggravated driving or 

actual physical control of a vehicle while under the influence of intoxicating 

liquor or drugs. A jury found him guilty of both counts. 

¶3 Sergeant P of the Phoenix Police Department was on patrol 

when he noticed a black Honda with a loose bumper. Sergeant P testified 

that he saw Devorce driving this vehicle and identified him as a person who 

had “very close shaved hair, a couple days (sic) growth beard, wearing a 

black T-shirt, dark complexion, [and] heavier set.” Sergeant P observed the 

vehicle make abrupt movements and followed it into the El Pollo Loco 

parking lot. Sergeant P momentarily lost sight of the vehicle but, upon 

parking in the El Pollo Loco parking lot, he saw the same black Honda with 

the driver side door open and no occupants in the vehicle. 

¶4 Sergeant P then noticed Devorce sitting outside El Pollo Loco 

and recognized him as the Honda’s driver. Before confronting Devorce,

Sergeant P heard the Honda’s electric doors lock. Sergeant P approached 

Devorce and asked him for his license. While speaking with Devorce, 

 

1 We cite to the current versions of statutes when no changes material 

to this decision have since occurred. 
STATE v. DEVORCE

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3

Sergeant P noticed that Devorce had slurred speech, had a moderate sway 

when he stood up, and that Devorce had removed the vehicle’s key from 

his pocket when searching for his identification. The record does not reflect 

whether Devorce was given his Miranda2 warnings, however, when 

confronted by Sergeant P, Devorce invoked his Fifth Amendment rights by 

requesting counsel. Sergeant P then arrested Devorce for driving under the 

influence and placed him in the backseat of his patrol vehicle. Upon 

entering the patrol vehicle, Devorce fell asleep and began to snore. Devorce 

was arrested at approximately 8:49 am however, his blood was not drawn 

until 11:11 am. At the time Devorce’s blood was drawn, approximately two 

hours after his arrest, he had a BAC of .191, more than twice the legal limit.3

¶5 At trial, Devorce testified that his friend, Jay, had been driving 

the vehicle and had driven the vehicle into the El Pollo Loco parking lot. 

However, on cross examination, Devorce testified that he did not remember 

whether he had told Sergeant P that he was not driving, and that Jay was 

driving the vehicle at the time of his arrest. The State then re-called 

Sergeant P for rebuttal to testify that Devorce “never told [him] that anyone 

else was driving or that Jay had existed at this point.” Sergeant P testified 

that Devorce never told him that he was not the driver of the vehicle and 

never informed Sergeant P that someone named Jay had been driving. 

¶6 The jury found Devorce guilty on both counts. Devorce now 

timely appeals. We have jurisdiction pursuant to Article 6, Section 9 of the 

Arizona Constitution and A.R.S §§ 12-120.21(A)(1) (2003), 13-4031 (2010), 

and 13-4033(A)(1) (2010).

DISCUSSION

¶7 Devorce contends that the trial court violated his Fifth 

Amendment rights by impeaching him with his post-arrest invocation of

silence, and thus his convictions and sentences should be overturned. We 

review for fundamental error because Devorce failed to raise this objection

at trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (citation omitted). 

Devorce therefore has the burden of persuasion and must establish both 

that a “fundamental error exists and that the error in his case caused him 

prejudice.” Id. at ¶ 20 (citations omitted). Determining whether an error is 

 

2 Miranda v. Arizona, 384 U.S. 436 (1966).

3 Both parties admit Devorce’s BAC at the time of arrest was likely 

between .181 and .212. 
STATE v. DEVORCE

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fundamental is a fact specific inquiry. State v. James, 231 Ariz. 490, 493, ¶ 13 

(App. 2013) (citation omitted).

I. Fifth Amendment Violation

¶8 In VanWinkle, our supreme court held that a person has the 

right to remain silent once in custody regardless of whether Miranda

warnings had been given. State v. VanWinkle, 229 Ariz. 233, 236, ¶ 14 (2012)

(citations omitted). Further, a defendant’s invocation of his Miranda rights 

and his post-arrest silence may not “be used to impeach an explanation 

subsequently offered at trial.” Doyle v. Ohio, 426 U.S. 610, 618 (1976). 

Consistent with these Fifth Amendment rights, “a defendant’s silence at the 

time of arrest cannot be used against him as inconsistent with testimony 

given at trial.” State v. Routhier, 137 Ariz. 90, 95 (1983) (citations omitted). 

Despite this prohibition, a defendant’s silence can be used to attack his 

credibility as a witness, id. at 98, when a “defendant makes a statement at 

trial which is inconsistent with an earlier statement [so that] his credibility 

is clearly in question,” State v. Calhoun, 115 Ariz. 115, 118 (App. 1977)

(citation and quotations omitted). In contrast to contradictory statements 

at trial, a defendant’s “silence at the time of arrest is not an inconsistent or

contradictory statement.” State v. Anderson, 110 Ariz. 238, 241 (1973) 

(emphasis added) (citation and quotations omitted). Rather, this silence “is 

simply the exercise of a constitutional right that all persons must enjoy 

without qualification.” Id. (citation and quotations omitted).

¶9 The parties agree that Devorce invoked his right to an 

attorney, and thus to silence. Therefore, Devorce was not subject to 

questioning by Sergeant P during his arrest. It is also uncontested that the 

State heard about Jay for the first time at trial. However, the State argues 

that it is permitted to introduce that silence for rebuttal to contradict 

Devorce’s contention at trial that he was not silent to police.

¶10 We disagree with the State. Post-arrest silence can be used 

“to contradict a defendant who testifies to an exculpatory version of events 

and claims to have told the police the same version upon arrest.” Doyle, 426 

U.S. at 619 n.11. This exception to impeachment with post-arrest silence is 

limited to when the defendant testifies that he told the officers an 

exculpatory story following his arrest and again tells an exculpatory story 

at trial. See also Van Winkle, 229 Ariz. at 236, ¶ 14 (“The Fifth Amendment 

gives a person the right to remain silent once in custody, even if Miranda

warnings have not yet been given”); State v. Stuck, 154 Ariz. 16, 21 (App. 

1987) (“If a defendant, after receiving Miranda rights, voluntarily gives a 
STATE v. DEVORCE

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5

statement, that statement may be used to impeach his credibility if he 

testifies at trial to a directly exculpatory version of the facts.”).

¶11 Devorce never testified that he told the police an exculpatory 

version of events. Rather, Devorce testified to the following on cross 

examination:

Q: Do you recall telling the officer I wasn’t driving?

A: I’m not sure.

Q: Did you tell the officer Jay was driving?

A: I’m not sure of that either. I don’t remember too much. . . .

Q: And you were in handcuffs and under arrest for driving 

under the influence, but you never told the officer that you 

weren’t driving?

A: I was intoxicated. We didn’t really talk too much.

The proper conclusion from Devorce’s testimony is that he was unsure 

whether he informed Sergeant P that Jay was driving the vehicle, not that 

he informed Sergeant P about Jay. This testimony does not show that 

Devorce’s trial testimony about not driving the car conflicted with his 

earlier statements. This was insufficient to impeach Devorce under Doyle.

¶12 The State also argues that it did not comment on Devorce’s 

silence at trial. The record does not support that argument. The State 

repeatedly commented on Devorce’s silence about not driving the car 

during its closing argument. 

¶13 We conclude the State violated Devorce’s Fifth Amendment 

right by implying that his silence and failure to speak during his arrest 

aided in his plan to concoct a story to prove his innocence. Furthermore, 

Devorce’s impeachment was improper because there was no evidence that 

Devorce provided inconsistent statements. Instead, Devorce chose to 

exercise his Fifth Amendment rights upon his arrest by remaining silent 

and then chose to testify at trial.

II. Fundamental Error

¶14 We affirm Devorce’s conviction and sentence, however, 

because he failed to show that the error was fundamental and that it 

prejudiced him. Fundamental error is an error that “goes to the foundation 

of the case or takes from the defendant a right essential to his defense.” State 

v. Thomas, 130 Ariz. 432, 435 (1981) (citation and quotation omitted). If an 

error occurred, “the prejudicial nature of the unobjected-to error must be 

evaluated in light of the entire record.” Id. at 436 (citations omitted). 
STATE v. DEVORCE

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Moreover, to obtain a reversal, a defendant must also show that the 

fundamental error caused him prejudice. Henderson, 210 Ariz. at 568, ¶ 26.

4

¶15 The error is harmless, even if fundamental, if the evidence of 

guilt is overwhelming, the trial record reflects the error, and the error does 

not contribute to a guilty verdict. Anderson, 110 Ariz. at 241. Therefore, even 

if the court finds an error, reversal is not required if it appears from the 

record that such error did not significantly affect the verdict of the case. 

Thomas, 130 Ariz. at 436. 

¶16 We conclude that the error was harmless given the 

overwhelming evidence of guilt. Sergeant P positively identified Devorce 

as the individual driving the vehicle. Additionally, when Sergeant P 

arrested Devorce, Devorce was by himself outside of El Pollo Loco and had 

the car keys in his pocket. Sergeant P further testified that he noticed 

Devorce had the effects of alcohol impairment such as slurred speech and 

a moderate sway when he stood up. Additionally, when Devorce’s blood 

was drawn two hours after his arrest, he had a BAC of .191. While Devorce 

claims that he was not driving the vehicle, he was unable to recall any 

identifying information relating to Jay, the alleged driver. Additionally, Jay 

was not called to testify on Devorce’s behalf. 

¶17 The record indicates that the violation of Devorce’s Fifth 

Amendment rights did not significantly affect the outcome of the case.5

Sergeant P’s positive identification of Devorce as the driver, the absence of 

other individuals at Devorce’s arrest, Devorce’s BAC level, and Devorce’s 

lack of identifying information relating to Jay, overwhelmingly lead to the

conclusion that the jury would have found Devorce guilty of the charged 

 

4 The fundamental error test for prejudice is essentially the same as 

the harmless error test. However, for fundamental error, the defendant 

bears the burden of proving prejudice. Henderson, 210 Ariz. at 610-11, ¶¶ 

37-39 (Hurwitz, J., concurring).

5 While the State inappropriately commented on Devorce’s silence, 

supra, ¶ 12, these comments are insufficient to find fundamental error or 

prosecutorial misconduct. We reject Devorce’s apparent argument about 

prosecutorial misconduct because to the extent the comments were 

inappropriate, they did not “permeate[] the entire atmosphere of the trial.” 

State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (citations and quotations 

omitted).
STATE v. DEVORCE

Decision of the Court

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crimes even without the admission of the statements that violated 

Devorce’s Fifth Amendment rights. 

CONCLUSION

¶18 For the foregoing reasons, we affirm Devorce’s convictions

and sentences.