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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIC RUSSELL, Appellant.

No. 1 CA-CR 16-0063

Appeal from the Superior Court in Apache County

No. S0100CR201500044

The Honorable Michael Latham, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eric Knobloch

Counsel for Appellee

Williams Law Group, PLLC, Show Low

By Elizabeth M. Hale

The Brewer Law Office, Show Low

By Benjamin M. Brewer

Counsel for Appellant
STATE v. RUSSELL

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MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.

T H O M P S O N, Judge:

¶1 Eric Russell (defendant) appeals from his convictions and 

sentences for aggravated assault with a deadly weapon and aggravated 

assault causing serious physical injury. For the following reasons, we 

affirm.

FACTUAL AND PROCEDURAL HISTORY1

¶2 On the evening of February 12, 2015, defendant got into a 

physical altercation with D.T. after defendant accused D.T. of stealing a 

bike. During the fight, defendant stabbed D.T. at least five times in the back, 

torso, and belly with a knife. D.T.’s friend B.C. intervened and beat up and 

disarmed defendant. He took D.T., who was unconscious, to the hospital. 

B.C. told police that he intervened in the fight because he thought D.T. was 

going to die. Defendant also went to the hospital with a broken jaw. 

¶3 The state charged defendant with one count of attempted first 

degree murder, a class 2 felony (count 1), one count of aggravated assault

with a deadly weapon, a violent class 3 felony (count 2), one count of 

aggravated assault causing serious physical injury, a violent class 3 felony 

(count 3), and one count of aggravated assault, a violent class 3 felony 

(count 4). Subsequently, the state moved to dismiss count 4 and the trial 

court dismissed the count.

¶4 At trial, defendant testified that he stabbed D.T. in selfdefense. The jury acquitted defendant of attempted first degree murder but 

convicted him on the two remaining aggravated assault counts. The trial 

court sentenced defendant to aggravated terms of eighteen years in prison 

on both counts, to be served concurrently. The court gave defendant credit 

 

1 We view the evidence at trial in the light most favorable to sustaining 

the convictions. State v. Boozer, 221 Ariz. 601, 601, ¶ 2, 212 P.3d 939 (App. 

2009). 
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for 323 days of presentence incarceration. Defendant timely appealed. We 

have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-

120.21(A)(1) (2016), 13-4031 (2010) and -4033 (A) (Supp. 2016).2 

DISCUSSION

¶5 On appeal, defendant argues that the state committed 

prosecutorial misconduct so pervasive that he was denied due process. 

Defendant argues that the prosecutor improperly vouched for B.C., who 

was called as a witness by the state, by giving B.C. immunity during the 

trial and by telling the jury he had immunity. He also argues that the 

prosecutor vouched for B.C. and misstated the evidence during closing 

argument. 

¶6 To determine whether a prosecutor’s remarks are improper, 

we consider whether the remarks called the jurors’ attention to matters they 

would not be justified in considering, and the probability that the remarks 

influenced the jurors. State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 360 

(2000) (citation omitted). There are “two forms of impermissible 

prosecutorial vouching: (1) where the prosecutor places the prestige of the 

government behind its witness; [and] (2) where the prosecutor suggest that 

information not presented to the jury supports the witness’s testimony.” 

State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989) (citations 

omitted). “To prevail on a claim of prosecutorial misconduct, a defendant 

must demonstrate that the prosecutor’s misconduct ‘so infected the trial 

with unfairness as to make the resulting conviction a denial of due 

process.’” State v. Morris, 215 Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214 (2007) 

(quoting State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998)). 

“Prosecutorial misconduct constitutes reversible error only if (1) 

misconduct exists and (2) ‘a reasonable likelihood exists that the 

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

defendant a fair trial.’” Id. (quoting State v. Anderson, 210 Ariz. 327, 340, ¶ 

45, 111 P.3d 369, 382 (2005)) (citation omitted).

A. B.C.’s Immunity

¶7 During direct examination, the prosecutor asked B.C. 

whether he would deny having told police that he expected there would be 

a fight when he and D.T. met up with defendant. B.C. responded that he 

was “not going to say anything that would incriminate [himself].” The 

 

2 Absent material revision after the relevant date, we cite a statute’s 

current version.
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court excused the jury, and during the break the state offered B.C. judicial 

immunity regarding his testimony about the night in question. The court 

brought the jury back into the courtroom and the prosecutor resumed his 

direct examination. The prosecutor asked B.C. whether he understood he 

had immunity and would not be prosecuted for any of his testimony, and 

B.C. answered in the affirmative. The prosecutor further asked B.C. 

whether he was willing to testify truthfully and B.C. said that he was. 

Defendant failed to object to the prosecutor’s questions. Accordingly, we 

review for fundamental error only. See State v. Medina, 232 Ariz. 391, 409, 

¶ 76, 306 P.3d 48, 66 (2013). We find no error, fundamental or otherwise. 

The prosecutor did not place the prestige of the government behind B.C. by 

giving him immunity for his testimony and asking him whether he 

understood it in front of the jury. 

B. Alleged Vouching During Closing Argument

¶8 Next, defendant argues that the prosecutor improperly 

vouched for B.C. during closing argument 1) by telling the jury that B.C. 

was acting in self-defense and in defense of D.T. when he beat up and 

injured defendant, 2) by arguing that B.C. was more credible than 

defendant because he was afraid to testify until he was given immunity, 3) 

by telling the jury that the entire prosecutor’s office agreed with him that 

B.C. was credible because the office could have charged B.C. for a crime but 

did not, 4) by mischaracterizing B.C.’s testimony about a statement B.C. 

allegedly made to police about what defendant said following the stabbing 

and before B.C.’s beating of defendant,

3 and 5) by referring to medical 

records that were not in evidence in order to bolster B.C.’s credibility and 

undermine defendant’s. 

¶9 Courts allow counsel “wide latitude” in making closing 

arguments and any reasonable inferences that can be drawn from the 

evidence. State v. Amaya-Ruiz, 166 Ariz. 152, 171, 800 P.2d 1260, 1279 (1990)

(citation omitted). “Prosecutorial comments which are a fair rebuttal to 

areas opened by the defense are proper.” State v. Alvarez, 145 Ariz. 370, 373, 

701 P.2d 1178, 1181 (1985) (citation omitted). Telling the jury that B.C. was 

 

3 At trial, the prosecutor asked B.C. whether he remembered telling 

police that defendant stood over D.T. after the stabbing and stated “[Y]eah, 

I fucking stabbed you; bleed, mother fucker, bleed.” B.C. said that he may 

have said that but did not recall. When asked what he did recall about that 

moment, B.C. stated that defendant seemed “real satisfied with himself.” 

The prosecutor argued in closing several times that defendant told the 

unconscious victim “that’s right, mother F-er, bleed out.” 
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acting in self-defense and in defense of D.T. did not amount to improper 

vouching, because this argument was linked to the evidence at trial. See 

State v. Corona, 188 Ariz. 85, 91, 932 P.2d 1356, 1362 (App. 1997). Nor did 

telling the jury that B.C. was credible because he was afraid to testify 

constitute vouching. 

¶10 Although there is a proper inference that could be made, the 

prosecutor’s statement that the entire prosecutor’s office agreed that B.C. 

acted in self-defense because B.C. was not charged was improper. The 

statement did not amount to reversible error, however. Further, the 

prosecutor’s argument that defendant told the victim to “bleed out” was 

improper because it misstated the evidence – B.C. testified that he recalled 

defendant making a statement and looking satisfied, but that he could not 

recall the statement. Defense counsel chose not to object during the 

prosecutor’s closing argument and to instead address the 

mischaracterization of the evidence in his own closing argument:

[Defense counsel]: The State mentioned over 

and over in its closing that [defendant] stood 

over the alleged victim and said bleed out. Who 

did you hear that from? Nobody. That’s not in 

evidence. He wants it to be in evidence. 

In his rebuttal closing the prosecutor stated:

Now, you heard [defense counsel] characterize 

how I spoke to you. I realize I get passionate 

about what I’m saying. But if there is anything 

that I said that does not match up with your 

recollection of what was said during the 

testimony, or does not match up with what is in 

your notes, then disregard what I said, because 

what I’m saying right now is not evidence.

Additionally, the trial court instructed the jury that the lawyer’s arguments 

were not evidence and that it was the jury’s role to “[d]etermine the facts 

only from the evidence that was produced in court.” The court’s 

instructions, together with counsels’ statements, were sufficient to render 

any vouching harmless error. See State v. Payne, 233 Ariz. 484, 512, ¶ 113, 

314 P.3d 1239, 1267 (2013).

¶11 Finally, the prosecutor should not have argued that the 

hospital records showed that defendant used drugs on the day of the fight, 
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contrary to his testimony at trial, because the records were not in evidence. 

However, the jury instructions were sufficient to render this error harmless.

CONCLUSION

¶12 For the foregoing reasons, we affirm the convictions and 

sentences.