State v. MacIas

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PETER MACIAS, Appellant.

No. 1 CA-CR 20-0162
FILED 1-7-2021

Appeal from the Superior Court in Yavapai County
No. V1300CR201980181
The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Law Office of Stephen L. Duncan, Scottsdale
By Stephen L. Duncan
Counsel for Appellant

STATE v. MACIAS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 Peter Macias appeals his convictions and sentences for two
counts of aggravated domestic violence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Macias and L.F. engaged in an “on-and-off” romantic
relationship. One night in March 2019, while having drinks at L.F.’s home,
L.F. told Macias she wished to end their relationship. Macias left the home
upset but returned a few minutes later. When L.F. observed Macias pulling
into the driveway, she fled from her home and called her friend, R.S., to
explain the situation. R.S. then called 911.

¶3 Four deputies responded to L.F.’s home. After conducting a
perimeter sweep, two deputies entered the home. The deputies found
Macias in bed in the master bedroom and arrested him.

¶4 In April 2019, a Yavapai County Grand Jury indicted Macias
on two counts of aggravated domestic violence. At trial, defense counsel
explained in his opening statement that the two counts against Macias were
aggravated because Macias committed prior crimes in 2014. According to
defense counsel, “[i]t’s a very simple case. Keep your eye on the ball. Don’t
let [the State] fool you into jumping from one thing to another.”

¶5 At trial, the State introduced into evidence an audio recording
of R.S.’s 911 call. During the call, R.S. informed the 911 operator that a man
smashed L.F.’s car windows and that she was “scared to death.” R.S. also
told the operator that, “last week [the man] destroyed a hotel room and
smashed [L.F.’s] eye and all kinds of crap,” and “this guy’s a wack job.”
Defense counsel objected on the grounds that the 911 recording was
inadmissible hearsay. The State claimed it offered the recording not for the
truth of the statements, but rather to explain why the deputies responded
to L.F.’s home. The superior court overruled defense counsel’s objection.

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STATE v. MACIAS
Decision of the Court

¶6 At the conclusion of trial, the superior court noted that some
of the comments made by R.S. were “gratuitous and disparaging” of
Macias’s behavior and unrelated to the reason for playing the 911
recording. The court thus issued a limiting instruction that the jury should
consider the 911 recording for the limited purpose of explaining why
deputies arrived at L.F.’s home.

¶7 After the jury received final instructions, the prosecutor
began his closing argument during which he argued:

In opening statements, defense counsel said and
I quote, "Don't let them fool you." "Them" being
the State. The State seeks the truth. And the
State will endure whatever the consequences of
the truth are. This is what a jury trial is. It's a
truth-seeking process. The State doesn't lie to
you.

¶8 The jury found Macias guilty as charged. The superior court
sentenced Macias to presumptive concurrent terms of five years
imprisonment for both counts. Macias 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, and -4033(A)(1).

DISCUSSION

¶9 Macias raises two issues on appeal. He argues: (1) the trial
court erred by allowing the 911 recording into evidence, and (2) the
prosecutor engaged in impermissible vouching during his closing
argument.

I. 911 Recording

¶10 Macias argues the superior court erred by allowing the 911
recording into evidence as inadmissible hearsay. We review a ruling on the
admissibility of hearsay evidence for an abuse of discretion. State v.
Giannotta, 248 Ariz. 82, 83, ¶ 8 (App. 2019).

¶11 Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted and is generally inadmissible unless it falls
within a recognized exception to the rule against hearsay. Ariz. R. Evid.
801(c), 802-804. Here, the 911 recording was not hearsay because the State
did not offer it to prove the truth of the matter asserted—that Macias
smashed L.F.’s windows the night of the incident. Rather, the State offered

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STATE v. MACIAS
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the recording to explain why deputies responded to L.F.’s home. The
superior court reiterated the State’s position by instructing the jury to
consider the 911 recording for the limited purpose of explaining why
deputies arrived at L.F.’s home and to otherwise disregard R.S.’s
comments. We presume the jurors followed the limiting instruction. See
State v. Nelson, 229 Ariz. 180, 190, ¶ 45 (2012). As such, the court did not
abuse its discretion by admitting the statements for that limited purpose.

¶12 Macias further contends that the 911 recording amounted to
prohibited character evidence under Ariz. R. Evid. 404(b) and that its
admission violated the Confrontation Clause. We reject these contentions.
At trial, Macias raised only one objection to the 911 recording: hearsay. By
failing to object on 404(b) or Sixth Amendment grounds, Macias forfeited
the right to obtain appellate relief on these bases unless he shows
fundamental, prejudicial error occurred. See State v. Henderson, 210 Ariz.
561, 564-65, ¶ 8 (2005).

¶13 To prove fundamental error, Macias must establish: (1) the
trial court erred; (2) the error goes to the foundation of the case, deprived
him of a right essential to his defense, and is of such significance that he
could not have received a fair trial; and (3) the error was prejudicial. Id. at
608, ¶¶ 23-26. Even more fundamentally, an appellant's opening brief must
provide “significant arguments[] supported by authority,” because failure
to argue a claim typically constitutes waiver. State v. Carver, 160 Ariz. 167,
175 (1989). Conclusory statements that fail to clearly articulate an
“appellant’s contentions with supporting reasons for each contention, and
with citations of legal authorities and appropriate references to the portions
of the record on which the appellant relies” are insufficient. See Ariz. R.
Crim. P. 31.10(a)(7). Here, Macias failed to clearly articulate his character
evidence and Confrontation Clause arguments, thereby waiving them.
Even absent such waiver, and assuming error under either theory, Macias
made no attempt to establish prejudice.

II. Vouching

¶14 Macias argues the prosecutor engaged in impermissible
vouching by arguing in his closing argument that, “[t]he State seeks the
truth,” and “[t]he State doesn’t lie to you.” Macias objected at trial to the
alleged vouching, so we review his contention for harmless error.
Henderson, 210 Ariz. at 567, ¶ 18.

¶15 Impermissible vouching occurs: “(1) When the prosecutor
places the prestige of the government behind its witnesses, and (2) Where

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STATE v. MACIAS
Decision of the Court

the prosecutor suggests that information not presented to the jury supports
the witness’s testimony.” State v. Haverstick, 234 Ariz. 161, 164, ¶ 6 (App.
2014) (quoting State v. Dumaine, 162 Ariz. 392, 401 (1989), disapproved on other
grounds by State v. King, 225 Ariz. 87 (2010)).

¶16 According to Macias, the two challenged comments imply
that any statement in opposition to the State’s case is false. But viewing the
prosecutor’s comments in context, they simply responded to defense
counsel’s opening comment to the jury, “[d]on’t let [the State] fool you.” See
id. at 166, ¶ 7 (comments must be viewed in the context of the prosecutor’s
entire argument). The prosecutor tied his arguments to the evidence
presented at trial and expressly referenced defense counsel’s opening
statement.

¶17 Even if we were to read the prosecutor’s statement as
impermissible vouching, the superior court’s limiting instruction—
arguments made during closing arguments are not evidence—cured any
error. See State v. Payne, 233 Ariz. 484, 512, ¶ 109 (2013) (“When improper
vouching occurs, the trial court can cure the error by instructing the jury
not to consider attorneys’ arguments as evidence.”).

CONCLUSION

¶18 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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