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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DENNIS JONES, Appellant.

No. 1 CA-CR 15-0579

Appeal from the Superior Court in Maricopa County

No. CR2013-003592-002

The Honorable Jose S. Padilla, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

The Heath Law Firm, PLLC, Mesa

By Mark Heath

Counsel for Appellant
STATE v. JONES

Decision of the Court

2

MEMORANDUM DECISION

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

Presiding Judge Andrew W. Gould and Judge Kenton D. Jones joined.

B R O W N, Chief Judge:

¶1 Dennis Jones appeals from his convictions and sentences for 

two counts each of armed robbery and aggravated assault and one count of 

misconduct involving weapons. Jones asserts the prosecutor committed 

fundamental error by improperly commenting on his right not to testify. 

For the following reasons, we affirm. 

BACKGROUND

¶2 The victims, husband and wife (R.M. and A.A.), pulled into a 

parking lot to get directions to a party. After parking, another car, driven 

by Jones, parked adjacent to the victims. R.M. noticed a black man was 

driving the other car, and thought he may be attending the same party, so 

he walked to Jones’s window to ask for directions. As Jones began giving 

R.M. directions, Jones’s passengers, Carl Barnett and Everette Mills, got out 

of the car and approached R.M. Barnett pointed a gun and ordered R.M. to 

“kneel on the ground,” and hand over all of his property, including his 

wallet, money, cell phone, jewelry, and shoes. R.M. complied, handing 

everything to Mills.

¶3 While Barnett held the gun on R.M., Mills approached A.A., 

still seated in her car with the window closed. Mills ordered A.A. out of 

the car and told her to hand over all of her property, including her jewelry, 

purse, money, cell phone, and shoes. A.A. also complied. Mills gave all of 

the property to Jones, who remained in the driver’s seat with window open 

and the engine running. The victims were ordered to look away while Mills 

and Barnett got back in the car with Jones. Jones told the victims, “You’re 

in the wrong place at the wrong time. You are alive because you are black.” 

A.A. asked Jones for her cell phone, but he refused. Jones gave A.A. her 

purse, with only her identification and makeup inside; all cash and credit 

cards were gone. Jones drove away.
STATE v. JONES

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3

¶4 Shortly thereafter, Jones, Barnett, and Mills were 

apprehended by police. Some of the victims’ property was found in the 

back seat of Jones’s car, along with the gun. 

¶5 Jones testified at his first trial in June 2014; it ended in a 

mistrial after the jury was unable to reach a verdict. Jones’s retrial 

commenced in September 2014, but he did not testify. The pertinent 

testimony at the retrial follows. Through an interpreter1, R.M. testified that 

as Barnett pointed the gun at him, Mills took his property, and handed it to 

Jones through the open window. R.M. stated that when Mills handed the 

property to Jones, Jones “receive[d]” it and “kep[t]” it. Similarly, A.A.

testified that after handing her property to Mills, he gave it to Jones through 

the driver’s open window and Jones “grabbed them from [Mills’] hand.” 

Both victims denied telling anyone that night, including police officers, that 

Jones refused to take the property handed to him by Mills.

¶6 In contrast, Officer Soliz testified that during her interview

with R.M. the night of the robberies, R.M. told her that when Mills 

attempted to hand the property to Jones, Jones said no, that he could not 

take it. Officer Soliz acknowledged that R.M. had a thick accent, was talking 

very fast, and was hard to understand. Officer Pimentel stated that the

victims were “scared, frightened,” and there was a “language barrier 

initially.” 

¶7 The jury found Jones guilty as charged and the trial court 

imposed concurrent sentences of 18 years’ imprisonment for the armed 

robbery counts and 12 years’ imprisonment for the aggravated assault and 

weapons misconduct counts. This timely appeal followed.

DISCUSSION

¶8 Jones argues the prosecutor improperly commented on his 

right not to testify by stating in closing argument, “he did not deny taking 

that property.” Because Jones failed to object to the prosecutor’s statement 

at trial, we apply fundamental error review. State v. Henderson, 210 Ariz. 

561, 567, ¶ 19 (2005). Jones thus carries the burden of showing not only 

fundamental error, but also that he was prejudiced by it. Id. at ¶ 20. 

Fundamental error is error that goes to the foundation of the case, deprives 

a defendant of a right essential to his defense, and is of such magnitude that 

he could not possibly have received a fair trial. Id. at ¶ 19.

 

1 R.M. and A.A. moved to the United States from other countries and 

English is not their native language.
STATE v. JONES

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¶9 The right against self-incrimination is fundamental. 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 personal shall 

be compelled in any criminal case to give evidence against himself[.]”). A

prosecutor, therefore, is prohibited from commenting on a defendant’s 

decision not to testify at his trial. Griffin v. California, 380 U.S. 609, 612-13

(1965), see also Arizona Revised Statutes (“A.R.S.”) section 13-117 (“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.”). “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.” State v. Ramos, 235 Ariz. 230, 235, ¶ 13 (App. 2014) (citing 

State v. Rutledge, 205 Ariz. 7, 13, ¶ 33 (2003)). 

¶10 As noted above, disputed evidence was presented at trial as

to what R.M. told Officer Soliz during the interview shortly after the 

robberies. R.M. testified that as Barnett pointed the gun at him, Mills took 

his property, and handed it to Jones through the driver’s open window. 

R.M. stated that when Mills handed the property to Jones, Jones 

“receive[d]” it and “kep[t]” it. R.M. denied telling anyone that night, 

including Officer Soliz, that Jones refused to take the property. A.A. also 

testified that Mills gave her property to Jones through the open driver’s

window. In contrast, Officer Soliz testified that R.M. told her that when 

Mills attempted to hand the property to Jones, he said no, that he could not 

take it. 

¶11 Addressing this discrepancy, in her closing argument the 

prosecutor explained: 

[The victims] both told you from the stand that the defendant 

is the one who took that property. There [are] conflicting 

stories because that night Officer Soliz says [R.M.] told me 

that the defendant said, no, I don’t want that property, and 

that Everette Mills is the one who turned, got in the car with 

it, and that [Jones] gave back [A.A.’s] purse, her makeup and 

her I.D. Did not give back the jewelry, the shoes, did not give 

back the glasses, did not give back cell phones because cell 

phones are going to get the cops back here immediately. 

None of that was given. But [the victims] told you, we never 

said that. He did not deny taking that property. He took the 

property and put it in the car. 
STATE v. JONES

Decision of the Court

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. . . . 

You saw [R.M.] and you saw [A.A.] as they testified. Both of 

them were very firm of, no, we did not say the defendant denied 

it. He took that property. [A.A.] never said that, never told 

Officer Pimental that the defendant refused it. Her story is 

that he took that property, he put it in the car and then the 

other two got back in.

(Emphasis added).

¶12 Considering the alleged improper comment in context, we 

have no trouble concluding that the prosecutor was comparing the victims’

testimony to Jones’s conduct at the time of the robberies—that Jones did not 

refuse to accept the property when Mills handed it to him through the open 

window (“he did not deny taking that property”). The prosecutor’s intent 

would have been crystal clear if she had said “he did not refuse the 

property;” however, her clarification a few seconds later that the victims 

“did not say that the defendant denied it” and that A.A. never told Officer 

Pimental that Jones “refused” the property resolves any uncertainty. The 

prosecutor was not referring to Jones’s failure to take the stand and the jury 

would not have naturally and necessarily perceived it to be a comment on 

such. See State v. Fuller, 143 Ariz. 571, 574-75 (1985) (finding no fundamental 

error when comments in closing rebuttal reflected prosecutor’s opinion that 

the defense failed to present any positive or exculpatory evidence, and did 

not specifically refer to defendant’s failure to take stand); cf. Griffin, 380 U.S. 

at 610-11 (1965) (finding reversible error when trial court and prosecutor 

directly commented on defendant’s failure to testify; stating “he has not 

seen fit to take the stand and deny or explain” and the “jury may take that 

failure into consideration as tending to indicate truth of [] evidence”); 

Ramos, 235 Ariz. at 235, ¶ 12 (finding fundamental error when prosecutor’s 

statements during closing rebuttal directly pointed to defendant’s failure to 

take the stand; “defendants are never gonna get on the stand and say ‘I did 

it. You got me.’”).
STATE v. JONES

Decision of the Court

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CONCLUSION

¶13 Based on the foregoing, we affirm Jones’s convictions and 

sentences.