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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TONY BROWN, Appellant

No. 1 CA-CR 16-0501

Appeal from the Superior Court in Maricopa County

No. CR2015-149259-002

The Honorable Gregory Como, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix

By Cynthia D. Beck

Counsel for Appellant
STATE v. BROWN

Decision of the Court

2

MEMORANDUM DECISION

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

Judge Margaret H. Downie and Judge Kenton D. Jones joined.

K E S S L E R, Judge:

¶1 Tony Brown (“Brown”) appeals his convictions and sentences

following a jury trial. For the following reasons, we affirm his convictions, 

but modify his sentences to give him the correct amount of presentence 

incarceration credit.

FACTUAL AND PROCEDURAL HISTORY1

¶2 NA was standing in line at a Circle K. Brown came into the 

building and walked directly to the counter to purchase a bus pass. NA 

commented to Brown that he needed to wait in line, and a verbal altercation 

ensued between the two men. After Brown purchased his bus pass he 

waited outside for NA. When NA left the building the two re-engaged in a 

verbal altercation. 

¶3 The altercation then turned physical, and both men threw 

punches at each other. During this altercation Brown pulled out a gun, 

pointed it at NA, and pulled the trigger. The gun jammed and a bullet was 

not discharged from the weapon. After the gun jammed it was then either 

handed off to, or taken by, Brown’s acquaintance, JT.

¶4 NA ran to get help at a nearby construction site where an offduty police officer was monitoring traffic. JT ran from the scene with the 

gun and Brown walked away and then sat down at a bus stop. Both JT and 

Brown were apprehended by police immediately after the incident. JT was 

found with a jammed gun.

¶5 Brown was charged with aggravated assault, a class three 

felony; misconduct involving weapons, a class four felony; and tampering 

with physical evidence, a class six felony. Prior to trial, the misconduct 

involving weapons charge was dismissed. Following a four-day jury trial,

Brown was found guilty on both remaining charges and sentenced to an 

 

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

verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013) (citation omitted).
STATE v. BROWN

Decision of the Court

3

aggravated concurrent term of 15 years’ imprisonment for aggravated

assault and 3.75 years for tampering with evidence. He was given credit for 

252 days of presentence incarceration credit. 

¶6 Brown timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 

Statutes (A.R.S.”) sections 13-4031 (2017) and 13-4033(A)(1) (2008).2

DISCUSSION

I. Prosecutorial Misconduct

¶7 Brown argues that he was denied a fair trial due to 

prosecutorial misconduct. Specifically, Brown asserts that the prosecutor 

impugned defense counsel during closing arguments by likening the 

defense to a magic trick.

¶8 The comments Brown takes issue with are as follows. 

“Everything that the defense wants to point to that wasn’t done, well, that’s 

not evidence.” “That’s just a distraction argument that’s just saying, well, 

you know the police didn’t do their job. The police didn’t do a good enough 

job, therefore, that State hasn’t met their burden.” And later in the 

argument, “the point is, did the State meet the burden of proving to you 

that a gun was pulled and point[ed]—the trigger pulled on [NA]. 

Everything else is a distraction.” The prosecutor then made an analogy to

illusionist David Copperfield, stating:

That’s what’s going on here. All these little things about DNA 

and surveillance video and [JT] this and that and victim chest 

versus neck, these are all just distractions. The real focus issue 

is gun or no gun, because the defendant says no gun, but the 

evidence says gun. So keep that in mind when you go back in 

the deliberations room. Don’t be fooled. Don’t fall for any 

distractions and find the defendant guilty.

¶9 Because defense counsel did not object to the comments at 

trial we review for fundamental error. State v. Martinez, 230 Ariz. 208, 214, 

¶ 25 (2012) (citation omitted). To prove prosecutorial misconduct, the 

appellant must first prove misconduct occurred. State v. Edmisten, 220 Ariz. 

517, 524, ¶ 23 (App. 2009) (citations omitted). If the appellant can show 

misconduct occurred, he then must prove that the error was both 

 

2 We cite to the current version of statutes unless changes material to 

the decision have since occurred.
STATE v. BROWN

Decision of the Court

4

fundamental and prejudicial. State v. Henderson, 210 Ariz. 561, 567-68, ¶ 20 

(2005) (citations omitted).

¶10 Prosecutors are given wide latitude during closing arguments 

to the jury because “excessive and emotional language is the bread and 

butter weapon of counsel’s forensic arsenal, limited by the principle that 

attorneys are not permitted to introduce or comment upon evidence which 

has not previously been offered and placed for the jury.” State v. Jones, 197 

Ariz. 290, 305, ¶ 37 (2000) (citation and quotation omitted). A prosecutor 

may not attack the integrity or honesty of opposing counsel; however, she 

may attack the defense theory. State v. Ramos, 235 Ariz. 230, 238, ¶ 25 (App. 

2014) (citations omitted). We find the prosecutor’s comments did not 

amount to prosecutorial misconduct.

¶11 Here, the prosecutor’s comments were not directed at defense 

counsel, but rather the defense theory and tactic. The prosecutor never 

mentioned defense counsel nor made comments about counsel specifically. 

Instead prosecutor likened the defense to an illusion or magic trick; we do 

not find this to be improper. See, e.g., State v. Lynch, 238 Ariz. 84, 96, ¶ 29 

(2015) (citations omitted) (finding prosecutor’s repeated suggestions that 

defense theories were not credible was not misconduct), rev’d on other 

grounds, Lynch v. Arizona, 136 S. Ct. 1818 (2016); State v. Amaya-Ruiz, 166 

Ariz. 152, 171 (1990) (finding the characterization of defense as 

“outrageous” and a “smoke screen” permissible); Ramos, 235 Ariz. at 237-

38, ¶¶ 24-25 (holding there was no misconduct where prosecutor suggested 

defense counsel was attempting to divert jurors by raising distractions or 

“red herrings”). 

II. Presentence Incarceration Credit

¶12 Brown argues, and the State agrees, the trial court incorrectly 

credited Brown with 252 days of presentence incarceration credit when he 

was entitled to 260 days. Therefore, pursuant to A.R.S. § 13-4037 (2017), this 

Court modifies Brown’s sentences to reflect a total of 260 days of

presentence incarceration credit. See State v. Stevens, 173 Ariz. 494, 496 (App. 

1992).
STATE v. BROWN

Decision of the Court

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CONCLUSION

¶13 For the foregoing reasons, we affirm Brown’s convictions, but

modify his sentences to reflect 260 days of presentence incarceration credit.