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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEPHEN RAY WILKINSON, Appellant. 

No. 1 CA-CR 18-0546 

Appeal from the Superior Court in Mohave County

No. S8015CR201601054 

The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Gracynthia Claw 

Counsel for Appellee 

Mohave County Legal Advocate, Kingman

By Jill L. Evans

Counsel for Appellant

FILED 10-10-2019
STATE v. WILKINSON

Decision of the Court

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MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which 

Presiding Judge James B. Morse Jr. and Judge Samuel A. Thumma joined.

W E I N Z W E I G, Judge:

¶1 Stephen Ray Wilkinson appeals his convictions and sentences 

for two counts of aggravated assault and one count of child abuse. We 

affirm.

FACTS AND PROCEDURAL BACKGROUND1

¶2 In the summer of 2016, Wilkinson and his wife lived with their 

son and daughter, then eleven and sixteen years old, respectively.

¶3 Wilkinson came home drunk one night and began arguing 

with his wife. She eventually locked him out of the home, but he regained 

entry and tried grabbing her purse. A struggle followed. Wilkinson shoved 

his wife over a couch and she fell to the ground. He pinned her down and 

kicked her head; she punched him back and bit him. When their son tried 

to intervene and protect his mother, Wilkinson pushed him to the ground, 

injuring his wrist.

¶4 Their daughter ran outside and called 911, explaining she 

feared for her mother’s life. Wife, son and daughter eventually fled to a 

neighbor’s house and waited for law enforcement to arrive. Officers

observed the injuries to the wife and son. Wilkinson, who blamed his wife 

for hitting herself, was arrested.

¶5 The State charged Wilkinson with two counts of aggravated 

assault involving his wife and their son, and two counts of child abuse 

involving their son and daughter, all domestic violence offenses. After the 

victims refused to cooperate with the prosecution, the superior court issued

subpoenas and then arrest warrants for the wife and daughter, but neither 

appeared for trial.

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

verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
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¶6 At trial, the State introduced a certified recording of 

daughter’s 911 call, and photographs of the injuries to wife and son. The 

responding officers testified, as did the son. After the State rested, the court

granted Wilkinson’s motion for judgment of acquittal on one count of child 

abuse (involving the daughter). The jury deliberated and returned guilty 

verdicts on all remaining counts and found two aggravating factors. The 

court suspended Wilkinson’s sentence on each count and placed him on 

concurrent three-year terms of supervised probation. Wilkinson timely 

appealed. We have jurisdiction under Article 6, Section 9 of the Arizona 

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

-4033(A)(1).

DISCUSSION

I. Comment on Post-Arrest Silence or Request for Counsel.

¶7 Wilkinson argues the State impermissibly commented on his 

post-arrest silence or request for counsel, violating his due process rights.

We review for fundamental error because Wilkinson did not raise the issue 

at trial. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). Wilkinson must 

show the alleged error is both fundamental and prejudicial. Id. at 142, ¶ 21.

¶8 A prosecutor may not comment on a defendant’s post-arrest 

silence for substantive or impeachment purposes. Doyle v. Ohio, 426 U.S. 

610, 618-19 (1976); State v. VanWinkle, 229 Ariz. 233, 237, ¶ 15 (2012). But 

“to be impermissible, the prosecutor’s comments must be calculated to 

direct the jurors’ attention to the defendant’s exercise of his fifth 

amendment privilege.” State v. McCutcheon, 159 Ariz. 44, 45 (1988).

¶9 We find no fundamental error. Wilkinson’s argument is 

premised on two questions by the prosecutor to an investigating officer 

about the officer’s conversation with Wilkinson. The officer answered that 

Wilkinson “wanted it on the record that he gave [his wife] $800 when he 

got paid” and “asked for his lawyer after that.” The prosecutor never 

sought to elicit evidence that Wilkinson exercised his right to remain silent 

or request counsel. Nor does the record show that the State ever sought to 

direct the jury’s attention to the issue, whether as evidence of guilt or for 

impeachment. State v. Mauro, 159 Ariz. 186, 197-98 (1988) (finding questions 

permissible where “evidence of defendant’s silence was not used to 

establish either defendant’s guilt or sanity,” and “[t]he subject of the 

prosecutor’s inquiry was defendant’s demeanor, not his silence”).

¶10 Moreover, the record does not show the officer’s passing 

reference had any impact on the jury’s decision. The prosecutor never
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commented on Wilkinson’s request for counsel, including in her closing 

arguments, and never implied that his request for counsel was reason to 

find him guilty. Cf. State v. Sorrell, 132 Ariz. 328, 329–30 (1982) (finding 

fundamental prejudicial error where prosecutor deliberately and 

repeatedly elicited testimony on invocation of right to counsel and focused 

on testimony in argument).

II. Prosecutorial Misconduct.

¶11 Wilkinson next argues the prosecutor committed misconduct 

by improperly shifting the burden of proof during the closing argument.

We again review for fundamental error because Wilkinson did not raise the 

issue at trial. See Escalante, 245 Ariz. at 140, 142, ¶¶ 12, 21.

¶12 Prosecutorial misconduct is “intentional conduct which the 

prosecutor knows to be improper and prejudicial” and that “is not merely 

the result of legal error, negligence, mistake, or insignificant impropriety.”

State v. Martinez, 221 Ariz. 383, ¶ 36 (App. 2009) (quoting Pool v. Superior 

Court, 139 Ariz. 98, 108-09 (1984)). To prevail on a claim for prosecutorial 

misconduct, Wilkinson must prove that (1) misconduct is indeed present; 

and (2) a reasonable likelihood exists that the misconduct could have 

affected the jury’s verdict, denying him a fair trial. State v. Moody, 208 Ariz. 

424, ¶ 145 (2004). Reversal is warranted when prosecutorial misconduct 

“so permeated the trial that it probably affected the outcome and denied 

[the] defendant his due process right to a fair trial.” State v. Blackman, 201 

Ariz. 527, ¶ 59 (App. 2002).

¶13 During closing argument, defense counsel stressed that two 

victims of the alleged crime did not testify (the wife and daughter) and 

asked how the State could have met its burden of proof without such “key” 

witnesses. On rebuttal, the prosecutor countered that the jury heard 

eyewitness testimony, observations of law enforcement, and saw photos of 

the victims’ injuries. The prosecutor also argued the jury should not 

“speculate about anyone’s position or what they would have said or could 

have said” if they testified. Defense counsel did not object at trial, but

Wilkinson now argues the prosecutor’s statement “misled the jury[] and 

unconstitutionally shifted the burden of proof to [him].”

¶14 We find no fundamental error for at least two reasons. A

prosecutor may present “fair rebuttal to an area opened by the defense,” 

State v. Gillies, 135 Ariz. 500, 510-11 (1983), and argue the State’s case has 

not been contradicted, State v. Byrd, 109 Ariz. 10, 11 (1972). Wilkinson’s 

counsel opened the door in his closing argument on whether the State’s 
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failure to call two witnesses meant it did not meet its burden, and the 

prosecutor fairly could rebut that argument.

¶15 Beyond that, the prosecutor reiterated the court’s instructions 

that the State bears the burden of proof and the jury may not speculate 

about evidence not presented at trial. See State v. Jerdee, 154 Ariz. 414, 419 

(App. 1987). We presume the jurors followed the court’s instruction, 

including that statements of counsel are not evidence. See State v. Tucker, 

215 Ariz. 298, 319-20, ¶ 89 (2007).

III. Law Enforcement Officer’s Testimony About Victims of Domestic 

Violence.

¶16 Wilkinson argues the superior court abused its discretion by 

allowing the police investigator to testify about victims of domestic 

violence under Arizona Rule of Evidence (“Rule”) 702. We review the 

court’s decision for fundamental error because Wilkinson’s counsel did not 

object after the State offered more foundation in response to his initial 

objection. See Ariz. R. Evid. 103(a)(1).

¶17 A witness may qualify as an expert based on “knowledge, 

skill, experience, training, or education” and where the expert’s

“specialized knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue.” Ariz. R. Evid. 702(a). When the 

proper showing is made, law enforcement officers may provide expert 

testimony based on their training and experience. See State v. Delgado, 232 

Ariz. 182, 187, ¶ 14 (App. 2013). The court has broad discretion in 

determining the reliability of expert testimony. State v. Perez, 233 Ariz. 38, 

43, ¶ 19 (App. 2013). Questions about the level of expertise typically impact 

the weight and credibility of the testimony, not admissibility. Delgado, 232 

Ariz. at 186, ¶ 12 (App. 2013).

¶18 Without deciding whether the witness’ testimony was 

properly admitted, we find no fundamental error or prejudice. The officer 

only provided a brief description of his experience with domestic violence 

victims and noted their reluctance to cooperate with law enforcement after 

the initial contact. He did not offer any opinion about the victims here or 

any statements about all domestic violence victims. Wilkinson then had a 

chance to cross-examine the officer. On this record, Wilkinson has not met 

his burden to show fundamental error, including that the challenged 

testimony went to the foundation of his case, was essential to his defense, 

or was so egregious as to deny the possibility of a fair trial. See Escalante, 

245 Ariz. at 142, ¶ 21.
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CONCLUSION

¶19 We affirm the convictions and sentences.