IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

RODOLFO MARQUEZ RAMOS, Appellant.

No. 1 CA-CR 13-0076

Appeal from the Superior Court in Maricopa County

No. CR2012-126450-002

The Honorable Harriett E. Chavez, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

Maricopa County Office of the Legal Defender, Phoenix

By Cynthia Dawn Beck

Counsel for Appellant
STATE v. RAMOS

Opinion of the Court

2

OPINION

Judge Michael J. Brown delivered the Opinion of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Donn Kessler joined.

B R O W N, Judge:

¶1 Rodolfo Marquez Ramos appeals from his convictions and 

sentences for conducting a chop shop and theft of a means of 

transportation, and raises several claims of prosecutorial misconduct. 

Although the prosecutor improperly commented on Ramos’s failure to 

testify, we conclude the error, while fundamental, was not prejudicial.

We therefore affirm. 

BACKGROUND

¶2 R.H. left her home one evening to stay overnight elsewhere. 

As she was leaving, R.H. saw her mother’s car parked next to the curb in 

front of their home. When R.H. returned home the following afternoon, 

she noticed the car was missing and contacted the police. 

¶3 Officer Glenn Doerr was able to track the car to a Glendale 

residence. He arrived at the residence shortly thereafter and walked 

toward an “open-back” trailer located on the property. Officer Doerr saw

Ramos and co-defendant James Wilson standing inside the trailer next to a 

car. The officer noticed both men were dirty and Ramos’s hands and 

clothing were covered in grease. 

¶4 At that point additional patrol units arrived and Ramos and 

Wilson were taken into custody. Officer Doerr entered the trailer and 

found a car stripped of its motor, tires, and “other suspension 

components.” Other officers found tools in the trailer, including bolt 

cutters, tire irons, and a tool used “to cut the parts off a vehicle.” In 

Ramos’s pocket, officers also found a key that had been “ground down” 

such that it could “manipulate the tumblers” in multiple ignitions. When 

officers checked the vehicle identification number, they confirmed it was 

the car R.H. reported as missing. 

¶5 The State charged Ramos and Wilson each with one count of 

conducting a chop shop and one count of theft of a means of 

transportation. The State also charged Ramos with one count of 
STATE v. RAMOS

Opinion of the Court

3

possession of burglary tools and alleged he had one historical prior felony 

conviction. 

¶6 The charges against Ramos and Wilson were consolidated 

for trial.1 R.H. and her mother testified they did not know either Ramos 

or Wilson and did not give either of them permission to take the car from 

their home. Neither Ramos nor Wilson testified. The jury convicted each 

of them of conducting a chop shop and theft of a means of transportation, 

but hung on the charge of possession of burglary tools against Ramos. 

The trial court imposed concurrent three-year terms of standard probation 

on Ramos for each count and this timely appeal followed. 

DISCUSSION

¶7 Ramos argues the prosecutor engaged in several forms of 

misconduct that warrant setting aside his convictions and sentences. 

Specifically, Ramos contends the prosecutor improperly (1) commented 

on Ramos’s failure to testify at trial; (2) bolstered the prosecutor’s 

credentials and impugned the integrity of defense counsel; (3) provided 

personal opinion as to Ramos’s guilt; and (4) vouched for the State’s 

witnesses. We address each issue in turn.

¶8 Ramos objected at trial to the alleged prosecutorial 

vouching; we therefore review that contention for harmless error. State v. 

Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005). Because 

Ramos failed, however, to object at trial to any of the other acts or 

comments he contends on appeal constituted prosecutorial misconduct, he 

has waived those arguments absent a showing of fundamental error. Id. 

at ¶ 19. 

A. Comments on Ramos’s Failure to Testify

¶9 Ramos argues the prosecutor improperly commented on his 

failure to testify. We agree, but conclude the error was not prejudicial.

¶10 It is well-established that both federal and state laws

prohibit a prosecutor from making any comment, direct or indirect, about 

a defendant’s failure to testify. See U.S. Const. amend. V (“No person . . . 

shall be compelled in any criminal case to be a witness against himself[.]”); 

Ariz. Const. art., 2, § 10 (“No person shall be compelled in any criminal 

 1 Wilson was sentenced separately and is not a party to this appeal.
STATE v. RAMOS

Opinion of the Court

4

case to give evidence against himself[.]”); Ariz. Rev. Stat. (“A.R.S.”) § 13-

117(B) (”The defendant’s neglect or refusal to be a witness in his own 

behalf shall not in any manner prejudice him, or be used against him on 

the trial or proceedings.”); see also Griffin v. California, 380 U.S. 609, 613-14 

(1965); State v. Rutledge, 205 Ariz. 7, 12, ¶ 26, 66 P.3d 250, 255 (2003); State 

v. Smith, 101 Ariz. 407, 410, 420 P.2d 278, 281 (1966).

¶11 In Griffin, the United States Supreme Court explained the

purpose of the prohibition:

[A] comment on the refusal to testify is a remnant of the 

inquisitorial system of criminal justice, which the Fifth 

Amendment outlaws. It is a penalty imposed by courts for 

exercising a constitutional privilege. It cuts down on the 

privilege by making its assertion costly. It is said, however, 

that the inference of guilt for failure to testify as to facts 

peculiarly within the accused’s knowledge is in any event 

natural and irresistible, and that comment on the failure 

does not magnify that inference into a penalty for asserting a 

constitutional privilege. What the jury may infer, given no 

help from the court, is one thing. What it may infer when 

the court solemnizes the silence of the accused into evidence 

against him is quite another.

380 U.S. at 614 (internal quotations and citations omitted). Given those 

concerns, the Supreme Court held that “the Fifth Amendment, in its direct 

application to the Federal Government and in its bearing on the States by 

reason of the Fourteenth Amendment, forbids either comment by the 

prosecution on the accused’s silence or instructions by the court that such 

silence is evidence of guilt.” Id. at 615. 

¶12 In this case, the prosecutor’s initial closing argument was 

brief and did not discuss the elements of the crimes or any specific 

evidence. Counsel for Ramos asserted several times in his closing 

argument that the State failed to present any “direct evidence” 

demonstrating Ramos participated in the crimes and that the State’s 

reliance on circumstantial evidence was insufficient to prove guilt beyond 

a reasonable doubt. During his detailed rebuttal, the prosecutor 

referenced the definitions of direct and circumstantial evidence included

in the final jury instructions. He explained that the State was required to 

prove all of the elements of the crimes alleged and argued it had done so. 

The prosecutor also stated:
STATE v. RAMOS

Opinion of the Court

5

You don’t strip a car that doesn’t belong to you without at 

least alluding to the fact that it might be stolen. It’s that 

simple. The defendants are never gonna get on the stand and say 

“I did it. You got me.” So they’re going to try to poke holes in 

whatever evidence the State has. 

(Emphasis added.) Shortly thereafter, the prosecutor added: “So, red

herring is a distraction. That’s what the whole defense counsel raised is 

red herrings, because, again, the defendant's [sic] never gonna say, ‘I did 

it.’” A few minutes later, the prosecutor made a similar point: “Whatever 

evidence the State presents, the defense will always attack something that 

wasn’t done because in any criminal case there’s going to be something 

that’s missed. Again, the defendants are never gonna say, ‘I did it. You 

got me.’” 

¶13 “Whether a prosecutor’s comment is improper depends 

upon the context in which it was made and whether the jury would 

naturally and necessarily perceive it to be a comment on the defendant’s 

failure to testify.” Rutledge, 205 Ariz. at 13, ¶ 33, 66 P.3d at 56. “To be 

constitutionally proscribed, a comment must be adverse; that is, it must 

support an unfavorable inference against the defendant and, therefore, 

operate as a penalty imposed for exercising a constitutional privilege.” 

State v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53 (1980). 

¶14 While the prosecutor in this case may have intended to aim 

his statements at rebutting defense counsel’s argument about lack of 

direct proof, the statements directly pointed to Ramos’s failure to take the 

stand, which “support[ed] an unfavorable inference” that Ramos chose 

not to testify because he could not do so without incriminating himself. 

Cf. Mata, 125 Ariz. at 238, 609 P.2d at 53 (holding that a prosecutor’s 

remarks did not “support an unfavorable inference” when “the remarks 

were inadvertent and immediately corrected”). The prosecutor’s 

comments thus operated as a penalty on Ramos’s exercise of his 

constitutional right to remain silent. See State v. Still, 119 Ariz. 549, 551, 

582 P.2d 639, 641 (1978) (finding a constitutional violation when the jury 

would necessarily conclude that the defendant “was the only person who 

could possibly contradict or explain the State’s evidence” and the
STATE v. RAMOS

Opinion of the Court

6

prosecutor’s pointing toward the defendant emphasized his failure to take 

the witness stand and tell his side of the story).2 

¶15 In light of the constitutional violation, fundamental error 

occurred because Ramos was deprived of a right essential to his defense. 

See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607; State v. Cannon, 118 

Ariz. 273, 274, 576 P.2d 132, 133 (1978) (finding fundamental error based 

on prosecutor’s comment to the jury that the defendant “never answered” 

where he was on the night in question because it was “a direct comment 

on defendant’s failure to take the witness stand”); State v. Decello, 113 Ariz. 

255, 258, 550 P.2d 633, 636 (1975) (concluding that the prosecutor’s 

statement “No one, no one, no one got up on this stand and testified to 

you contrary to what was testified to you by the witness” constituted 

fundamental error); State v. Rhodes, 110 Ariz. 237, 238, 517 P.2d 507, 508 

(1973) (reversing defendant’s conviction based on prosecutor’s comment 

that defendant “did not explain away off [the] witness stand” and 

explaining that in a case in which the “rights against self-incrimination are 

violated[,] it is fundamental error”). 

¶16 Notwithstanding the fundamental nature of the error, we 

must determine whether the error requires reversal. With no citation to

authority, Ramos argues that the error is prejudicial per se. Our supreme 

 2 Citing State v. Alvarez, 145 Ariz. 370, 373, 701 P.2d 1178, 1181 (1985),

State v. Gillies, 135 Ariz. 500, 510, 662 P.2d 1007, 1017 (1983), and State v. 

Hernandez, 170 Ariz. 301, 307-08, 823 P.2d 1309, 1315-16 (App. 1991), the 

State argues that the prosecutor’s comments referencing Ramos’s failure 

to take “the stand” and testify were “fair rebuttal” to Ramos’s claim of 

insufficient evidence. Alvarez and Hernandez did not involve violations of 

the Fifth Amendment, and are therefore inapposite. In Gillies, defense 

counsel argued in closing “that the state had accumulated and presented 

to the jury physical evidence which had no real connection to the 

defendant.” 135 Ariz. at 510, 662 P.2d at 1017. In rebuttal, the prosecutor 

stated: “All other evidence points to the defendant. His cigarette on the 

rock on top of her body, as in the car, all the physical evidence that had 

been taken from the vehicle, all her property, all other evidence points to 

the defendant, . . . [and] he didn’t try to explain that because he couldn’t.” 

Our supreme court concluded that the prosecutor’s comments were “fair 

rebuttal” to defense counsel’s argument. Id. Unlike Gillies, in this case the 

prosecutor did not vaguely reference Ramos’s failure to “explain” 

incriminating evidence, but directly commented on his failure to testify by 

stating that Ramos would never “get on the stand and say ‘I did it.’” 
STATE v. RAMOS

Opinion of the Court

7

court’s opinion in Smith supports Ramos’s position. 101 Ariz. at 410, 420 

P.2d at 281. That case, decided shortly after Griffin, held that the general 

rule of waiver absent a timely objection “was inapplicable” when “the 

claimed error is so fundamental that it is manifest that the defendant did 

not have a fair trial[.]” Id. The court explained that “extreme caution 

must be exercised in permitting an evasion of these fundamental rights” 

and “[w]hen one has been denied a constitutional right as essential as the 

right against self-incrimination, prejudicial effect will be presumed and 

the error will be deemed fundamental.”3 Id. at 409-10, 420 P.2d at 280-81.

¶17 Subsequent development of the law, however, persuades us 

that a prosecutor’s comment on a defendant’s failure to testify does not 

necessarily require reversal of the defendant’s conviction. See Chapman v. 

California, 386 U.S. 18, 20 (1967) (recognizing that “some constitutional 

rights [are] so basic to a fair trial that their infraction can never be treated 

as harmless error” but declining to treat a violation of the Griffin rule as

compelling an automatic reversal of the conviction); Rutledge, 205 Ariz. at 

13, nn. 5-6, ¶¶ 30-32, 66 P.3d at 56 nn. 5-6 (explaining that a comment on a 

defendant’s failure to testify may be “harmless error” or “fundamental 

error,” depending on the facts of the case); State v. Ring (Ring III), 204 Ariz. 

534, 552-53, ¶ 46, 65 P.3d 915, 933-34 (2003) (providing specific examples

of structural error, which is rarely applied). Instead, evaluating prejudice 

under the fundamental error standard of review is a fact-intensive inquiry 

and varies “depending upon the type of error that occurred and the facts 

of a particular case.” Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608; 

State v. James, 231 Ariz. 490, 494, ¶ 15, 297 P.3d 182, 186 (App. 2013).

¶18 To establish prejudice, Ramos carries the burden of showing

that absent the improper comments a reasonable jury could have reached 

a different result. See Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609; 

Rhodes, 110 Ariz. at 238, 517 P.2d at 508 (concluding prosecutorial 

misconduct is prejudicial when “evidence hangs in delicate balance [and] 

 3 Based on Smith, some commentators have included Arizona as one 

of several states that “appear to have adopted a more stringent standard 

than that of the Supreme Court, indicating that a violation of the Griffin

rule is inherently prejudicial so as to call for automatic reversal.” See Stein 

Closing Arguments § 1:59 (2013-2014 ed.); 1 Wharton’s Criminal Evidence 

§ 3:22 (15th ed.) (stating that “nothing in Chapman [v. California, 386 U.S. 18 

(1967)] would preclude a state court from holding that a violation of the 

Griffin rule is prejudicial per se and thus a ground for automatic reversal 

of a conviction, and some state courts have so held[,]” including Arizona).
STATE v. RAMOS

Opinion of the Court

8

any prejudicial comment [is] likely to tip the scales in favor of the State”). 

If overwhelming evidence of guilt exists in the record, we may conclude 

that a defendant has failed to meet his burden of establishing prejudice 

from the impermissible comment. State v. Trostle, 191 Ariz. 4, 16, 951 P.2d 

869, 881 (1997) (concluding that prosecutor’s statement was an 

impermissible comment on defendant’s failure to testify, but the error did 

not contribute to the jury’s verdict in view of the “overwhelming evidence 

of guilt and the context within which it was made”).

¶19 To prove that Ramos conducted a chop shop in violation of 

A.R.S. § 13-4702, the State was required to establish (1) he knowingly 

owned or operated a “building, lot or other premises” in which he altered, 

disassembled, dismantled, reassembled, or stored a vehicle; and (2) he 

knew the vehicle was obtained by theft “with the intent to [a]lter, 

counterfeit, deface, destroy, disguise, falsify, forge, obliterate or remove 

the identity of the motor vehicles or motor vehicle parts[.]” A.R.S. § 13-

4701(1). As relevant here, to prove Ramos committed theft of a means of 

transportation, the State was required to show that Ramos “control[led] 

another person’s means of transportation knowing or having reason to 

know that the property is stolen.” A.R.S. § 13-1814(A). As set forth in 

A.R.S. § 13-2305(1), “possession of property recently stolen, unless 

satisfactorily explained, may give rise to an inference that the person in 

possession of the property was aware of the risk that it had been stolen or 

in some way participated in its theft.” 

¶20 The overwhelming evidence presented at trial demonstrated 

that less than twenty-four hours after the car was stolen, Officer Doerr 

found Ramos covered in grease, standing in a trailer with the dismantled 

car and various tools typically used to strip vehicles. R.H.’s mother

testified unequivocally that she never gave anyone permission to take the 

car from her home. Given the strength of the State’s evidence and the 

permissible inference in A.R.S. § 13-2305(1), we hold that even without the 

prosecutor’s impermissible statements regarding Ramos’s failure to 

testify, no reasonable jury could have acquitted Ramos of either

conducting a chop shop or theft of a means of transportation. Therefore,

Ramos has not met his burden of establishing the error was prejudicial. 

¶21 Our holding, however, should not be interpreted as 

minimizing the seriousness of this error. “[F]undamental error is still 

error and is not turned into non-error by the overwhelming evidence of 

guilt. By thus approaching the precipice of fundamental error, the 

prosecution runs the risk of having an otherwise good case reversed 

when, on appeal the evidence of guilt is less than overwhelming.” State v. 
STATE v. RAMOS

Opinion of the Court

9

Anderson, 110 Ariz. 238, 241, 517 P.2d 508, 511 (1973). Therefore, as our 

supreme court recently reminded prosecutors, they should “refrain from 

venturing even close to commenting on a defendant’s exercise of the 

significant rights protected by the Fifth Amendment[.]” State v. Parker, 231 

Ariz. 391, 407, ¶ 68, 296 P.3d 54, 70 (2013).

B. Other Claims of Prosecutorial Misconduct

¶22 We likewise conclude that none of the other claims of 

prosecutorial misconduct merit reversal. Prosecutors are afforded “wide 

latitude in presenting their closing arguments to the jury[.]” State v. Jones, 

197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 (2000). “To prevail on a claim of 

prosecutorial misconduct, a defendant must demonstrate that (1) 

misconduct is indeed present; and (2) a reasonable likelihood exists that 

the misconduct could have affected the jury’s verdict, thereby denying 

defendant a fair trial.” State v. Moody, 208 Ariz. 424, 459, ¶ 145, 94 P.3d 

1119, 1154 (2004) (internal quotations omitted). Prosecutorial misconduct 

“is not merely the result of legal error, negligence, mistake, or insignificant 

impropriety, but, taken as a whole, amounts to intentional conduct which 

the prosecutor knows to be improper and prejudicial, and which he 

pursues for any improper purpose with indifference to a significant 

resulting danger of mistrial or reversal[.]” Pool v. Superior Court, 139 Ariz. 

98, 108-09, 677 P.2d 261, 271-72 (1984). 

¶23 Ramos contends the prosecutor improperly bolstered his 

own credentials by informing the jury he had been practicing law for 

twenty years. Specifically, during his rebuttal argument, the prosecutor 

relayed advice to the jury he received “almost 20 years ago” when he was 

preparing for the bar exam, namely, “not to miss the forest for the trees.” 

We perceive no misconduct in the prosecutor’s fleeting reference to how 

long ago he sat for the bar exam. It was not the focus of the statement and 

the prosecutor did not attempt to argue he had superior knowledge or 

expertise due to his years of experience. 

¶24 Ramos also argues the prosecutor improperly impugned 

defense counsel. During his rebuttal argument, the prosecutor claimed

that defense counsel’s focus on the State’s failure to prove Ramos owned 

the property upon which the trailer and stripped vehicle were found was 

an attempt to divert the jurors from the relevant evidence by raising 

distractions or “red herrings.” The prosecutor also told jurors that defense 

counsel asked them to speculate and “check [their] common sense at the 

door.”
STATE v. RAMOS

Opinion of the Court

10

¶25 “Jury argument that impugns the integrity or honesty of 

opposing counsel is [] improper,” State v. Hughes, 193 Ariz. 72, 86, ¶ 59,

969 P.2d 1184, 1198 (1998), but “[c]riticism of defense theories and tactics 

is a proper subject of closing argument,” U.S. v. Sayetsitty, 107 F.3d 1405, 

1409 (9th Cir. 1997). Although some of the prosecutor’s comments 

suggested that defense counsel was attempting to mislead the jury, we 

cannot say that those statements did more than criticize defense tactics.

¶26 Next, Ramos contends the prosecutor improperly offered his 

personal opinions during rebuttal closing argument by repeatedly using

the phrases “the State submits” and “the State would submit.” “There are 

two types of prosecutorial vouching: (1) when the prosecutor places the 

prestige of the government behind its witness, and (2) where the 

prosecutor suggests that information not presented to the jury supports 

the witness’s testimony.” State v. Duzan, 176 Ariz. 463, 467, 862 P.2d 223, 

227 (App. 1993) (internal quotation omitted). “A prosecutor must avoid 

assertions of personal knowledge.” Id.

¶27 The statements cited by Ramos, however, were not improper 

because the prosecutor’s use of the phrase “the State submits” was limited 

to discussing the evidence presented at trial and did not suggest he was 

aware of information not presented to the jury that would support a 

finding of guilt. See U.S. v. Necoechea, 986 F.2d 1273, 1279 (9th Cir. 1993)

(holding that “I submit” statements do not constitute vouching). 

Therefore, we do not agree that the prosecutor’s use of these phrases 

constituted prosecutorial misconduct.

¶28 Finally, Ramos asserts the prosecutor engaged in 

impermissible vouching by “placing the prestige of the government” 

behind the testimony of the police officers. When determining whether a 

prosecutor’s statements improperly vouched for a witness’s credibility, 

the statements must be considered in context. State v. Haverstick, 234 Ariz. 

161, 165, ¶ 7, 318 P.3d 877, 881 (App. 2014). 

¶29 In his closing argument, defense counsel noted that Officer 

Johnson’s testimony “seemed slightly inconsistent” with Officer Doerr’s 

testimony and he invited the jurors to “review the photographs of the 

trailer and come to [their] own conclusions” as to whether the officers’

“recollections” were accurate. During his rebuttal, the prosecutor 

responded by framing defense counsel’s statements as an argument “that 

the officers somehow would have lied or fabricated” their testimony. The 

prosecutor further argued that the “police are simply doing their job” and 
STATE v. RAMOS

Opinion of the Court

11

suggested they have no motive to lie. The trial court sustained defense 

counsel’s objection and warned counsel to be careful with his comments.

¶30 Although the prosecutor mischaracterized defense counsel’s 

statements regarding the officers’ credibility, we conclude the prosecutor's

rhetorical questions to the jury “[W]hat motive would the police have to 

lie in a case like this?” and “[W]hat motive would they have to lie or 

fabricate any evidence?” did not rise to the level of misconduct. 

Moreover, the trial court instructed the jury that the attorneys’ closing 

arguments were not evidence, and we presume the jurors followed the 

court’s instructions. See State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 

248 (1994). On this record, there is no reasonable likelihood the 

prosecutor’s statements could have affected the jury’s verdict. See State v. 

Newell, 212 Ariz. 389, 403, ¶ 67, 132 P.3d 833, 847 (2006). 

CONCLUSION

¶31 For the foregoing reasons, we affirm Ramos’s convictions 

and sentences.