State of Arizona v. Timothy Edward Egan

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

TIMOTHY EDWARD EGAN,
Appellant.

No. 2 CA-CR 2024-0174
Filed December 30, 2025

Appeal from the Superior Court in Pinal County
No. S1100CR202400040
The Honorable Danielle Harris, Judge

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee

Kate Milewski, Pinal County Public Defender
By Kevin D. Heade, Defender Attorney, Florence
Counsel for Appellant
 STATE v. EGAN
Opinion of the Court

OPINION

Presiding Judge Brearcliffe authored the opinion of the Court, in which
Chief Judge Staring and Judge Eckerstrom concurred.

B R E A R C L I F F E, Presiding Judge:

¶1 Timothy Egan appeals from his conviction and sentence for
aggravated assault. He argues he suffered prejudice from a duplicitous
charge and an improper jury instruction, and that prosecutorial error
denied him a fair trial.1 We affirm.

Factual and Procedural Background

¶2 We view the facts and any inferences drawn therefrom in the
light most favorable to upholding the jury’s verdict. State v. Bible, 175 Ariz.
549, 595 (1993). On January 4, 2024, E.L., a guard at the Pinal County jail,
arrived at cell twenty-five to announce court appearance times to Egan and
the other inmates inside. Upon hearing his name, Egan, stood up and said,
“I have been here since 2 o’clock yesterday, I am out of here.” As Egan
walked toward the door, E.L. extended his hand and told him “No have a
seat, stop.” Egan “swiped” E.L.’s hand away, and E.L. pushed Egan back
into the cell. Egan then “gathered himself [up],” and E.L. ordered him to
turn around to be handcuffed. Egan rushed at E.L. “in an aggressive
manner” with closed fists. In quick succession, E.L. struck Egan, and Egan
hit, grabbed, and scratched at E.L. Egan struck E.L.’s head, face, and body

1Egan also originally argued the number of jurors at his trial was

constitutionally insufficient. In his reply brief, however, Egan
acknowledges that the United States Supreme Court case Williams v. Florida
controls “the current state of the law concerning this issue.” 399 U.S. 78,
100 (1970) (12-person jury not “an indispensable component of the Sixth
Amendment”). Although Egan broadly asserts that Williams “was wrongly
decided,” he has provided no basis—nor do we have the authority—to
disturb precedent set by the Supreme Court. See Pool v. Superior Ct., 139
Ariz. 98, 108 (1984) (Arizona courts obligated to follow Supreme Court
precedent “with regard to the interpretation of the federal constitution”).
This argument therefore fails on the merits.

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breaking E.L.’s glasses, bruising his head and face, and scratching the top
of E.L’s forehead.

¶3 From outside the cell, Officer Jones saw Egan “walking
aggressively” toward E.L. and “trying to exit.” Officer Jones told Officer
Hernandez that E.L. needed help. Jones herself entered the cell to help E.L.
restrain Egan, who was “swinging his arms[ and] kicking,” and saw Egan
strike E.L. Hernandez then went into the cell and saw Egan “throwing
punches” at E.L. while E.L. was trying to hold Egan down. E.L. tased Egan
once, and then again, after Egan continued to struggle. Hernandez
ultimately restrained Egan, and Jones handcuffed him.

¶4 Egan was charged with one count of aggravated assault.
Following a two-day trial, the jury found him guilty, and the trial court
sentenced him to four years in prison. Egan appealed, and we have
jurisdiction under article VI, § 9 of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

I. Duplicitous Charge

¶5 Egan claims that his right to a unanimous jury verdict was
violated because the state only charged him with one count of aggravated
assault but “presented evidence of two assaults,” resulting in a duplicitous
charge. Because Egan failed to object below, we review for fundamental
error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). Egan thus bears the
burden of establishing that error occurred, that the error was fundamental,
and that the error caused him prejudice. See id. ¶ 21.

¶6 Egan first made contact with E.L. when, as Egan was trying
to leave the cell, Egan had “used his right arm to swipe up and hit [E.L.’s]
arm out of [the] way.” After E.L. pushed Egan back into the cell and
ordered him to turn around to be handcuffed, Egan charged at E.L.,
thrashing and making contact with E.L.’s head, face, and body.

¶7 During Egan’s testimony, when he was asked why he had
commanded Egan to prepare to be handcuffed after pushing him back into
the cell, E.L. answered that “[Egan had] already assaulted me and I d[id]n’t
know exactly what his next intentions [we]re going to be . . . My job after
being assaulted is . . . I have to get that guy under control.” While the
security footage played for the jury, E.L. described what was happening in
the video: “I am forbidding him from leaving the cell so he assaulted me

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Opinion of the Court

and at that moment, I shoved him back into the cell.” In his testimony, Egan
denied having touched E.L. as he walked toward the cell door and claimed
that self-defense justified his actions after E.L. pushed him back.

¶8 In closing, Egan argued that the initial part of the incident—
when he had attempted to leave the cell—was “not where the aggravated
assault happened. It is alleged to have happened afterwards.” In rebuttal,
the state noted that two assaults had occurred: “[defense] counsel wants
you to believe that somehow the only assault that took place was when the
defendant swatted his hand. Yes. That is an assault, you are no[t] allowed
to put your hand on an officer, but again, another assault occurred in the
cell.”

¶9 A duplicitous charge exists “[w]hen the text of an indictment
refers only to one criminal act, but multiple alleged criminal acts are
introduced to prove the charge.” State v. Klokic, 219 Ariz. 241, ¶ 12 (App.
2008). The potential dangers of a duplicitous charge include a lack of notice
for the charges to be defended, complicating a double jeopardy argument
in a later prosecution, and the possibility of a non-unanimous jury verdict.2
Id. But whether these risks actually arise depends on the context. Id.

¶10 Even so, a continuing course of conduct involving multiple
criminal acts may be alleged properly in a single count. State v. Sanders, 245
Ariz. 113, ¶ 71 (2018) (evidence of multiple beatings over span of three
months properly charged in one count). The state characterized the two
assaults as a continuous act:

If you are the primary aggressor, which [Egan]
was, by approaching [E.L.], swatting his hand
and trying to leave a jail cell . . . You don’t get to
claim self-defense. . . . He was not obeying
orders after he assaulted that officer. . . . [H]e
kept going and going.

Egan acknowledges that “the video given to the jury shows both assaults
occurring under a span of 5 seconds.” Nonetheless, he argues that, because
he presented two separate defenses—complete denial as to the first assault

2Here, because Egan only argues that he was prejudiced by a non-

unanimous jury verdict that is the only potential prejudice we will address.
See Ariz. R. Crim. P. 31.10(a)(7)(A).

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and self-defense as to the second—the acts cannot be considered part of the
same transaction.

¶11 In Klokic we held that “even when both events occur as part
of a larger criminal episode, acts may not be considered part of the same
criminal transaction if the defendant offers different defenses to each act.”
219 Ariz. 241, ¶ 32. The state argues that Egan’s “two defenses are
essentially a single defense to the entire course of action” because “the
justification argument relies on whether the jury believed the first defense.”
But the justification argument did not rely on the jury believing the first
defense. The jury could have believed that Egan did indeed make physical
contact with E.L. when he tried to exit the cell, but also that E.L.
subsequently exceeded his allowable force to maintain order and therefore
that Egan was justified in his later actions. Consequently, each contact must
be treated separately for the purposes of addressing Egan’s separate
defenses, and they cannot be considered as one continuous act. See id.

¶12 Nonetheless, even though each contact is treated separately
in evaluating Egan’s asserted defenses, this does not mean the state
presented a duplicitous charge. Egan was charged with committing an
aggravated assault that “cause[d] physical injury” to E.L. “Physical injury”
was defined for the jury as “the impairment of physical condition.” If the
incident is separated into two distinct assaults, it is clear only the second
one would have amounted to the charge described in the indictment. No
one claimed that E.L. suffered an injury to his arm—the only place Egan
made contact when he “swiped” at E.L. in his attempt to leave the cell. The
state only presented evidence of physical impairment to E.L.’s face and
head from the second assault. And the state specified in closing argument
that “as a result of [Egan]’s actions, [E.L.] sustained injuries to his face and
head.” Even Egan, in his closing, rhetorically asked the jury whether E.L.
had ever said he was “actually” injured after Egan had “allegedly swatted
his hand to try to get to the door,” answering, “No. He never did. So, there
is no aggravated assault at that point. It would have only been after the
pushing.”

¶13 Because only one of the identified interactions between Egan
and E.L.—the second one—met each element of the crime charged, there
was no risk of a non-unanimous jury verdict. The jury was instructed to
only find Egan guilty if the state had proved each element beyond a
reasonable doubt. We presume jurors follow their instructions. State v.
Martinez, 230 Ariz. 208 ¶ 40 (2012). Therefore, although both the state and
Egan may have characterized each encounter as an “assault,” there was no

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error because it is clear, given the charges, evidence and argument, which
offense served as the predicate for Egan’s conviction. See Klokic, 219 Ariz.
241, ¶ 38; State v. Davis, 206 Ariz. 377, ¶¶ 59, 61 (2003).

II. Justification Defense Jury Instruction

¶14 Egan argues the trial court erred in giving a justification
instruction that incorporated a prison officer’s allowable use of force during
a detention. “We review a trial court’s decision to give a jury instruction
for an abuse of discretion.” State v. Aragon, 252 Ariz. 525, ¶ 6 (2022). But
we review de novo whether a trial court properly instructed the jury, State
v. Champagne, 247 Ariz. 116, ¶ 22 (2019), and whether the jury instructions
properly stated the law, State v. Payne, 233 Ariz. 484, ¶ 68 (2013). We
“consider the jury instructions as a whole to determine whether the jury
received the information necessary to arrive at a legally correct decision.”
State v. Dann, 220 Ariz. 351, ¶ 51 (2009).

¶15 Because Egan objected below, if we find that the trial court
abused its discretion, we must consider whether the error was harmless.
See State v. Foster, 258 Ariz. 472, ¶ 25 (2024). A fact-specific inquiry is
necessary to determine whether an error is harmless, State v. Poyson, 198
Ariz. 70, ¶ 21 (2000), and it must be evaluated within the context of properly
admitted evidence, State v. Fulminante, 193 Ariz. 485, ¶ 50 (1999). An error
is harmless if “the guilty verdict actually rendered in this trial was surely
unattributable to the error.” Bible, 175 Ariz. at 588 (quoting Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993)).

¶16 The trial court instructed the jury that a defendant is justified
in using physical force in self-defense if: “A reasonable person in the
situation would have believed that physical force was immediately
necessary to protect against another’s use . . . of unlawful physical force and
the defendant used . . . no more physical force than what appeared
necessary to a reasonable person in the situation.” At the state’s request
and over Egan’s objection, the court, relying on State v. Bojorquez, 138 Ariz.
495 (1984), gave instructions as to forceful resistance to law enforcement
personnel:

The threat or use of physical force is not justified
. . . to resist arrest that the defendant knew or
should have known was made by a peace officer
. . . where the arrest was lawful or unlawful
unless the physical force used by the peace
officer exceeded that allowed by law.

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....

[An] interested official of a jail, prison or
correctional institution may use physical force
for the preservation of peace, to maintain order
or discipline[,] or to prevent . . . the commission
of any felony or misdemeanor. If the amount of
physical force used exceeds that allowed by
law, the defendant [is justified in] using
physical force to defend himself.

¶17 Egan objected to the latter instructions on the grounds that the
justification “instruction is for the defendant being justified,” not the victim.
Here, Egan expands on the same argument, contending first that the trial
court improperly relied on “obiter dictum” in Bojorquez, and then claiming
that to the extent Bojorquez’s language is not dictum, State v. Ewer, 254 Ariz.
326 (2023) overturned it.

¶18 In Bojorquez, an inmate was denied a justification defense
instruction and convicted of assaulting a prison guard. 138 Ariz. at 497.
There, relying on A.R.S. § 13-403(2), our supreme court concluded “the jury
was properly instructed that prison officials have the statutory right to use
that amount of physical force necessary to maintain order within the
prison.” Id. at 498. That conclusion was not dictum. See Canas v. Bay Ent.,
LLC, 252 Ariz. 117, ¶ 15 (App. 2021) (Dictum is a “judicial comment made
during the course of delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential.”
(quoting Phelps Dodge Corp. v. Ariz. Dep’t of Water Res., 211 Ariz. 146, n.9
(App. 2005))). Although Bojorquez was not addressing the same question
Egan poses here, our supreme court’s approval of the instruction was
nonetheless necessary to its opinion.

¶19 As to Egan’s argument that Ewer abrogated Bojorquez, we
disagree. In Ewer, the assault occurred during a confrontation between the
defendant and victim in the aftermath of a failed drug transaction. Id. ¶¶ 2-
4. The trial court granted the state’s request to alter the language of the self-
defense instruction, making it applicable not just to the “defendant,” but to
any “person.” Id. ¶ 6. As a consequence, the instruction as phrased at trial
became applicable to the victim’s conduct. Id.

¶20 Our supreme court held that, “[b]ecause the proper focus of a
justification defense is on an objectively reasonable person in the
defendant’s position, the trial court erred in modifying the standard

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[Arizona] self-defense justification instruction to incorporate the victim’s
use of force.” Id. ¶ 19 (internal citations omitted). The court noted that,
while a victim’s actions are often relevant in a self-defense case, ultimately,
“[i]t is of no import that a victim may have justifiably used or threatened
force because the legality of the victim’s conduct is immaterial to a
justification analysis.” Id.

¶21 Ewer did not contemplate a justification instruction as it
pertains to a self-defense claim against a victim with a statutory right to use
force. See generally Ewer, 254 Ariz. 326; see also Bojorquez, 138 Ariz. at 498.
Ewer does not bear at all on Bojorquez, much less overturn it. Even so, Ewer
did not foreclose the use of other instructions when needed “to instruct the
jury on applicable law based on the state’s or defendant’s positions at trial
in order to assist the jury in analyzing a justification claim.” 254 Ariz. 326,
¶ 22; see also State v. Fish, 222 Ariz. 109, ¶¶ 63-64 (App. 2009) (jury
instructions on relevant law can be appropriate to assist jury in determining
validity of self-defense claim). The trial court’s instructions here offered
relevant legal information to address each element of Egan’s charged crime,
based on the specific facts of Egan’s case.

¶22 Actions taken in self-defense “transform conduct that would
otherwise be criminal into legally permissible conduct.” State v. Carson, 243
Ariz. 463, ¶ 11 (2018); see A.R.S. § 13-205(A). The question for the jury was
therefore twofold: (1) whether E.L.’s use of force was unlawful, and, if so,
(2) whether a reasonable prisoner in Egan’s position would have believed
his use of force was necessary to protect himself from that unlawful force.
See A.R.S. § 13-404(A), (B)(2). That is, in order to deem Egan’s conduct
justified, the jury was required to find that E.L. had first used excessive
force, see § 13-404(B)(2) (“use of physical force against another is not
justified . . . to resist arrest . . . unless the physical force used by the peace
officer exceeds that allowed by law”), and that a reasonable person in
Egan’s circumstances would have believed physical force was necessary to
protect himself, see § 13-404(A) (“person is justified in . . . using physical
force against another when and to the extent a reasonable person would
believe that physical force is immediately necessary to protect himself
against the other’s use or attempted use of unlawful physical force”); see
also § 13-403(2) (prison official allowed to use physical force under certain
circumstances).

¶23 The instructions given here, in describing E.L.’s statutory
right to use reasonable force, did exactly what Ewer authorizes—provided
necessary information about applicable law to assist the jury in analyzing

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Egan’s justification claim. See 254 Ariz. 326, ¶ 22. The trial court therefore
did not abuse its discretion. See Fish, 222 Ariz. 109, ¶ 63. Because there was
no error, we need not evaluate for harmlessness. See id. ¶¶ 66, 68 (first step
in harmless error review is establishing that error occurred).

¶24 Egan emphasized at oral argument that a better instruction
would have been based on A.R.S. § 13-3881(B), which states that a person
being arrested “shall not be subjected to any greater restraint than necessary
for his detention.” Section 13-3881 bears on the permissible use of force by
an arresting law enforcement officer, versus the instruction given here,
which was derived from § 13-404(A) and (B)(2), and which bears on the
justification defense relative to the use of force by a law enforcement officer.
This case falls into the latter category. Even so, we see no appreciable
distinction between the two instructions. Moreover, Egan did not ask for
an instruction based on § 13-3881 below. He therefore failed to preserve the
issue, and has forfeited review for all but fundamental error. See Escalante,
245 Ariz. 135, ¶ 1. Given the similarity of the two instructions, we find no
error, fundamental or otherwise. See id.

III. Prosecutorial Error

¶25 Finally, Egan argues both individual and cumulative
prosecutorial error deprived him of a fair trial.3 In considering claims of
individual and cumulative prosecutorial error, we review “each alleged
incident individually for error, after which we decide whether the
cumulative effect of any errors we find ‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’” State v.
Robinson, 253 Ariz. 121, ¶ 64 (2022) (quoting Payne, 233 Ariz. 484, ¶ 106).

3Our supreme court has clarified the difference between
prosecutorial “misconduct” and prosecutorial “error.” See In re Martinez,
248 Ariz. 458, ¶ 47 (2020) (“When reviewing the conduct of prosecutors in
the context of ‘prosecutorial misconduct’ claims, courts should differentiate
between ‘error,’ which may not necessarily imply a concurrent ethical rules
violation, and ‘misconduct,’ which may suggest an ethical violation.”).
Here, although Egan characterizes some of the alleged instances as
“intentional,” we find the prosecutor’s actions are “better characterized as
inadvertent error rather than intentional misconduct.” State v. Murray, 250
Ariz. 543, ¶ 12 (2021). Therefore, we use the term “prosecutorial error” to
address Egan’s claims.

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¶26 For a defendant to successfully establish prosecutorial error,
he must first demonstrate that error exists, and then show that there is a
reasonable likelihood the error could have affected the jury’s verdict. State
v. Montoya, 258 Ariz. 128, ¶ 10 (2024). A prosecutor’s statement or conduct
“must be viewed in context” to determine whether it affected the fairness
of the trial. State v. Hernandez, 170 Ariz. 301, 308 (App. 1991) (quoting United
States v. Young, 470 U.S. 1, 11 (1985)). When a defendant challenges on
appeal an instance of alleged prosecutorial error or cumulative
prosecutorial error to which he failed to object at trial, we review for
fundamental error. State v. Vargas, 249 Ariz. 186, ¶¶ 12-14, 17 (2020). If the
alleged error was objected to below, we review for harmlessness. Payne,
233 Ariz. 484, ¶ 108. Egan asserts that two alleged errors were
independently sufficient to warrant reversal, and others that, when
evaluated cumulatively, deprived him of a fair trial.

IV. “Individually Reversible” Prosecutorial Errors

¶27 Egan asserts that the prosecutor committed reversible error
by soliciting improper credibility testimony from him on cross-
examination. He also claims the prosecutor committed reversible error by
improperly impugning defense counsel’s integrity in her closing argument.

¶28 As to the solicitation of credibility testimony, Egan testified
on cross examination that he had started to comply with E.L.’s commands
before he was tased. The prosecutor then asked if Egan recalled being in
the courtroom when the officers testified that he had only complied after
being tased. Egan objected to the question as “argumentative.” This
objection was overruled, and Egan agreed that he remembered hearing that
testimony. The prosecutor then asked, “And so you are saying that they’re
all wrong, and you’re right?” Without further objection, Egan answered, “I
am saying that happened how I say [it] happened, yes.” Although Egan
lodged his “argumentative” objection to the preceding question, he failed
to object to the question he now takes issue with. And, even if the
“argumentative” objection were deemed to relate to the question addressed
here, his complaint on appeal is not that it was an impermissible
argumentative question. An objection on one ground does not preserve the
issue on another ground. State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008).
Because Egan failed to object, we review this claim solely for fundamental
error. See id.; Escalante, 245 Ariz. 135, ¶ 35.

¶29 Our supreme court has held that one witness may not opine
on the credibility of another witness. State v. Doerr, 193 Ariz. 56, ¶ 26 (1998).
However, we have declined to adopt a bright-line rule prohibiting similarly

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phrased “were they lying” questions. State v. Morales, 198 Ariz. 372, ¶¶ 10,
12 (App. 2000).4 We held in Morales that such questions “may be
appropriate” if the defendant opens the door on direct or “when the only
possible explanation for the inconsistent testimony is deceit or lying.” Id.
¶ 13.

¶30 At trial, three prison officers testified consistently about
Egan’s failure to comply with orders, his assaultive behavior toward E.L.,
and the fact that it took several prison officials and multiple taser
deployments to get Egan to submit. The jury viewed the video of the
incident and photographs of E.L.’s injuries. Viewed in its entirety, this
evidence was sufficient for the jury to conclude beyond a reasonable doubt
that Egan was guilty, unaffected by Egan’s opinion on the officers’
credibility—which was also unlikely to have surprised the jury. See State v.
Canion, 199 Ariz. 227, ¶ 43 (App. 2000) (“The jury could not have been
surprised to hear that [the defendant] believed the officer was mistaken in
his recollection of the events, . . . nor do we think that [the defendant]’s
acknowledgment of the discrepancies was likely to affect the jury’s overall
assessment of either witness’s credibility.”).

¶31 Ultimately, the jury was instructed that it alone determines
the facts of the case and, in deciding those facts, it was to decide what
testimony to accept and what evidence to reject. The jury was also
instructed that a police officer’s testimony should not be given greater
weight merely because he is an officer. We presume the jury followed those
instructions. See Martinez, 230 Ariz. 208, ¶ 40. And we view the
prosecutor’s question in context, see Hernandez, 170 Ariz. at 308, and in light
of the other properly admitted evidence at trial, see Fulminante, 193 Ariz.
485, ¶ 50.5 Egan bears the “formidable burden of showing that the error
was fundamental and warrants the ‘rare case’ remedy of reversal and a new
trial.” Escalante, 245 Ariz. 135, ¶ 35. Even assuming that error occurred,
Egan has not shown that it went to the foundation of his case, took from

4Morales does not “contravene” Doerr as Egan contends. See
Martinez, 230 Ariz. 382, ¶ 13 (citing to both Morales and Doerr to support
premise “that ‘were they lying’ questions and testimony are not always
improper and, without more, will rarely amount to fundamental error”).
5The objectionable question was singular and isolated. When
discussing the timing of Egan’s compliance in closing argument, the
prosecutor merely noted that there was conflicting testimony about the
issue. And, Egan made that same observation in his own closing.

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him a right essential to his defense, or was “so egregious that he could not
possibly have received a fair trial.” See id. ¶ 21.

¶32 Egan next contends that the prosecutor committed reversible
error by “impugn[ing] the integrity of defense counsel” during rebuttal
closing argument. Specifically, Egan argues that the prosecutor
“disparaged defense counsel by claiming that ‘counsel [wa]s throwing
everything at the wall,’” and that the prosecutor “suggest[ed] that defense
counsel was disingenuous by imploring the jury not to let counsel ‘lead
[them] down that road.’” Egan raised this issue below when he asked the
court to prevent the state from “personally attacking” defense counsel or
describing defense counsel as “disingenuous” in front of the jury. After
confirming with the prosecutor that she “didn’t intend on doing that,” the
court nevertheless granted Egan’s motion, prohibiting any remarks that
referred to defense counsel as being “disingenuous in any way.” The state
concedes this claim was preserved, and we thus review for harmless error.
See State v. Anthony, 218 Ariz. 439, ¶ 38 (2008).

¶33 Prosecutors are given “wide latitude in presenting their
closing arguments to the jury.” State v. Jones, 197 Ariz. 290, ¶ 37 (2000).
While statements that unfairly slander opposing counsel’s integrity are
improper, State v. Hughes, 193 Ariz. 72, ¶ 59 (1998), critiques of defense
theories and tactics are generally permissible, see State v. Ramos, 235 Ariz.
230, ¶ 25 (App. 2014) (no impropriety where prosecutor suggested in
closing “that defense counsel was attempting to mislead the jury”). Here,
neither of the prosecutor’s cited remarks impugned defense counsel’s ethics
or integrity. They were made, instead, to criticize defense tactics and focus
the jury’s attention on the main issue of Egan’s conduct, in direct response
to the peripheral details Egan emphasized in his closing argument. We
conclude no error occurred and need not address harmlessness. See
Escalante, 245 Ariz. 135, ¶ 21.

V. Other Prosecutorial Errors

¶34 Egan next asserts that several remarks made by the
prosecutor, although not independently sufficient to warrant reversal, were
prejudicial when considered cumulatively. He contends the comments
constituted prosecutorial vouching, improper appeals to juror emotions,
presentation of facts not in evidence, or some combination thereof.

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a. E.L.’s family life

¶35 First, Egan argues it was improper for the prosecutor to
inform the jury that E.L. told his children he loved them every morning
before leaving for work, just in case “something happen[ed] to him at that
job.” Egan contends this remark (1) amounted to presentation of “facts not
in evidence,” and (2) was an improper appeal to juror empathy.

¶36 In its briefing, the state counters that the remark about E.L.’s
love for his children was a “reasonable inference” for jurors to draw.
However, the state concedes it presented no other information about E.L.’s
children or his relationship with them. While reasonable jurors might
imagine a father saying such a thing to his children, the state, in its opening,
is only “permitted to discuss evidence it anticipate[s] presenting at trial,”
and for which it has a good faith basis to believe will be admitted. State v.
Vargas, 251 Ariz. 157, ¶ 16 (App. 2021). Because the state never attempted
to admit evidence about this issue, there was no “good faith” basis for
making the comment.

¶37 Indeed, as Egan contends, the only logical reason to mention
E.L.’s children in connection with the dangerous nature of E.L.’s job was to
appeal to the juror’s “passions” and “empathy.” This type of argument is
prohibited. State v. Allen, 248 Ariz. 352, ¶ 49 (2020) (It is improper for a
prosecutor to make remarks “to inflame the minds of jurors with passion or
prejudice or influence the verdict in any degree.” (quoting State v. Herrera, 174 Ariz. 387, 396 (1993))). At oral argument on this matter, the state
conceded that the remark was improper. We accept the state’s concession
and conclude it was error.

b. “Snitches get stiches”

¶38 The prosecutor explained in her closing that no inmates had
come forward as witnesses because “snitches get stitches.” Egan argues
this statement was another improper reference to matters outside the record
given that “no evidence [was] admitted to establish whether witnesses who
cooperate with law enforcement face adverse consequences.” He also
argues the remark was improper vouching, “designed to undermine the
Willits instruction” regarding the “state’s failure to preserve a potential
witness list of inmates” who may have observed the incident.

¶39 The state concedes, and we agree, that there was no specific
evidence presented at trial regarding the potential adverse consequences a
cooperating witness may face. In its briefing, the state nevertheless justifies

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the remark by claiming “snitches get stitches” is a “commonly known
concept,” and “a reasonable inference” given “that the encounter occurred
in front of everyone in that jail cell[,] and no one admitted [to having] seen
anything.” But at oral argument, the state conceded this was indeed
prosecutorial error, and we agree.

¶40 Although in closing argument, counsel may argue the facts
presented by the evidence and any reasonable inferences therefrom, Bible,
175 Ariz. at 602, we do not agree that “snitches get stitches” is a reasonable
inference to be drawn merely from the dearth of inmate witnesses. But we
also do not construe this particular remark as an improper reliance on “facts
not in evidence.” Rather, the statement is more suited to Egan’s claim of
prosecutorial vouching, which is where we focus our analysis. Vouching
occurs when “the prosecutor places the prestige of the government behind
its witness,” or when “the prosecutor suggests that information not
presented to the jury supports the witness’s testimony.” Montoya, 258 Ariz.
128, ¶ 43.

¶41 The detective assigned to investigate the jailhouse assault
testified that none of the inmates had admitted to seeing anything, but he
failed to record the names of inmates who were in the cell at the time, and
the state failed to produce the list of inmate names and court times that E.L.
had been announcing. As a result, Egan was unable to challenge the
investigator’s testimony. The trial court therefore granted Egan’s request
for a Willits jury instruction, permitting the jury to draw an unfavorable
inference toward the state if it found that the state had “lost, destroyed or
failed to preserve evidence whose content or quality are important to the
issues in this case.” See State v. Willits, 96 Ariz. 184 (1964).

¶42 In closing, Egan argued, based on the Willits instruction
provided by the trial court, that the state’s failure to preserve and produce
the list of prisoners’ names could serve as basis for reasonable doubt in the
case. In its closing, as to this unpreserved evidence, the state argued:

[L]et’s talk about the inmates. [Egan] stated that
somehow the state is trying to hide something
from you without having the inmates [names,]
but [the detective] got on the stand and he told
you that when he went to jail cell 25, he opened
the door and asked any of the inmates if they
saw anything and he was met with silence. It is
jail code. Snitches get stiches. Nobody was
say[ing] anything to him.

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¶43 The implication of this argument was that any evidence
derived from the list would have been beneficial to the state’s case—in
effect, by “snitching” on Egan, the other inmates would have had to
corroborate E.L.’s testimony and version of the events. Thus, the comment
was improper prosecutorial vouching. See State v. Salcido, 140 Ariz. 342, 344
(App. 1984).

c. E.L.’s employment tenure & “motive”

¶44 Egan next argues the prosecutor “put the prestige of the
government behind [E.L.]’s testimony” when she told the jury in closing
that E.L. had “worked [at the detention center] for 17 years. He d[id]n’t
have a motive to go and beat up the defendant.” He reasons that, due to
the trial court’s “erroneously given [justification] jury instructions,” his
“self-defense theory” was “predicated upon a jury believing that [E.L. had]
used excessive force,” and thus the instructions “provide[d] a motive for
[E.L.] to exaggerate [Egan]’s infractions on the day of the incident.” He then
claims that, because “this motive was never argued by the defense,” the
prosecutor’s comment constituted “bare vouching designed to put
government credibility behind the State’s case.”

¶45 But the prosecutor’s remark did not concern an alleged
“motive” for E.L. to “exaggerate” or “lie” about the incident. Rather, the
prosecutor’s remark illustrated the lack of evidence that E.L. had any
“motive”—in other words, any credible reason—to have used excessive,
and thus illegal, physical force against Egan, absent some physically
assaultive behavior on Egan’s part. While neither party is required to prove
motive in the first instance, whether motive exists “is a circumstance that
may be considered” by the jury, State v. Hunter, 136 Ariz. 45, 50 (1983), and
here, the jury was so instructed. We see no prosecutorial error here.

d. “We know” statements

¶46 Egan next claims the prosecutor improperly placed the
prestige of the government behind the state’s case by using the phrase “we
know” several times during closing argument. Although the objectionable
statements are not explicitly identified in Egan’s briefing, we assume for
this decision that he is referring to statements like the following: “[H]ow
do we know [Egan] assaulted officer [E.L.]?”; “Now how do we know that
[Egan] intentionally, knowingly or recklessly caused physical injury to
[E.L.]?”; and “Now, how do we know that [Egan] was in the custody of the
Pinal County jail?”

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¶47 In State v. Acuna Valenzuela, our supreme court acknowledged
that “[T]here is a fine contextual line between the use of ‘we know’
inclusively, i.e., to describe evidence and outline inferences from that
evidence with the jury, and the use of ‘we know’ in an exclusive manner,
i.e., to refer to the State collectively.” 245 Ariz. 197, ¶ 85 (2018). The court
also noted that the government’s use of “we know” statements can be
“concerning,” and “caution[ed] prosecutors to refrain from using [these
types of] phrases to suggest that their argument bears the imprimatur of the
state.” Id. However, in Acuna Valenzuela, our supreme court ultimately
determined that the prosecutor’s use of “we know” statements, such as “we
know the defendant attempted to shoot and kill [the victim],” did not rise
to the level of prejudicial error because they did not “impermissibly express
[the prosecutor’s] personal opinion to the jury.” Id. ¶¶ 83-85.

¶48 Here, one of the prosecutor’s “we know” statements was
made while repeating the trial court’s burden-of-proof jury instruction. The
other six occurred while the prosecutor was marshaling and summarizing
the evidence. See id. ¶ 84 (noting “it is permissible to use the words ‘we
know’ to describe the evidence where prosecutor ‘did so only to marshal
evidence’” (quoting United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir.
2013))). Like in Acuna Valenzuela, none of the statements made here
expressed the prosecutor’s “personal opinion” on the evidence, and thus
none rose to the level of prejudicial error. See id. ¶ 85.

e. Job description

¶49 Egan next contends that in both opening and closing, the
prosecutor improperly appealed to juror “passions” and “empathy,” by
saying E.L.’s job “d[id] not entail being assaulted by inmates.” But E.L.
testified about his job description and daily duties at trial, which did not,
unsurprisingly, involve being assaulted by inmates. In addition to being
largely intuitive, this was a permissible comment on the evidence, not an
appeal to juror passions. See State v. Johnson, 247 Ariz. 166, ¶ 166 (2019). We
find no error.

f. “We” are here to “hold him accountable”

¶50 Lastly, Egan argues the prosecutor improperly appealed to
the jurors’ sense of duty to “protect community values,” and “preserve civil
order” by telling them “we” are here to “hold [Egan] accountable.” The
state may not appeal to the “emotions, prejudices, or passions” of the jury
to obtain a guilty verdict. Acuna Valenzuela, 245 Ariz. 197, ¶ 109. But again,
counsel is given “wide latitude” in argument, and the use of “excessive and

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Opinion of the Court

emotional language is the bread and butter weapon of counsel’s forensic
arsenal” in arguing their case to the jury. State v. Gonzales, 105 Ariz. 434,
437 (1970). Given that the purpose of the prosecution was to hold Egan
accountable—if the jury agreed with the state’s case—we see no
prosecutorial error here. As in Acuna Valenzuela, “the prosecutor’s
statement referred to the jury’s role in the justice system and was not error.”
245 Ariz. 197, ¶ 111.

VI. Cumulative Effect

¶51 Egan contends “the cumulative impact” of the prosecutor’s
errors infected the proceeding with unfairness “from the start,” denying
him a fair trial and meriting reversal. While we do not condone improper
remarks, we will not reverse a conviction merely to punish a prosecutor’s
misdeeds or to deter future misconduct. State v. Moody, 208 Ariz. 424, ¶ 152
(2004). Instead, when assessing claims of prosecutorial error, we examine
“whether the cumulative effect of individual allegations ‘so infected the
trial with unfairness as to make the resulting conviction a denial of due
process.’” Acuna Valenzuela, 245 Ariz. 197, ¶ 119 (quoting Payne, 233 Ariz.
484, ¶ 134). “Cumulative error requires reversal only when misconduct is
‘so pronounced and persistent that it permeate[d] the entire atmosphere of
the trial.’” Id. (quoting Payne, 233 Ariz. 484, ¶ 134). And as we explained
in State v. Romero, the standard for showing reversible cumulative error is
“very demanding” because it requires the defendant to show error so
egregious that “injustice is obvious.” 258 Ariz. 237, ¶¶ 64-65, 68 (App.
2024).

¶52 Here, we only evaluate the two errors expressly found and
the conflicting-testimony question directed at Egan, assuming without
concluding that it was improper. See id. ¶ 64. We then “consider the
cumulative effect on the fairness of [Egan]’s trial.” Vargas, 251 Ariz. 157,
¶ 9. As to Egan’s claim of improper solicitation of credibility evidence, the
jurors were instructed that they alone evaluate each witness’ testimony and
“may accept everything a witness says or part of it or none of it.” And as
to Egan’s claims of vouching and improper appeal to emotion, the jurors
were instructed that they were to determine facts only from the evidence
produced in court, that what the lawyers say is not evidence, and that they
were not to be influenced by sympathy. Again, we presume jurors follow
their instructions. Id.; State v. Haverstick, 234 Ariz. 161, ¶ 8 (App. 2014)
(instruction that attorney arguments are not evidence “can be sufficient to
‘cure’ improper vouching” (quoting Payne, 233 Ariz. 484, ¶ 109)).

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Opinion of the Court

¶53 Although we find the prosecutor’s improper argument that
“snitches get stitches” especially troubling to the extent it undermined the
court’s Willits instruction, we cannot conclude that this error, even when
considered cumulatively with the improper appeal to juror emotion and the
question addressing conflicting testimony, “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
Payne, 233 Ariz. 484, ¶ 134 (quoting Hughes, 193 Ariz. 72, ¶ 26). In light of
the weight of properly admitted evidence of Egan’s guilt and the proper
jury instructions provided, the errors, taken together, did not have the
required distorting effect on the trial as a whole; therefore, “the guilty
verdict actually rendered in this trial was surely unattributable” to any
purported errors. Bible, 175 Ariz. at 588 (quoting Sullivan, 508 U.S. at 279).
Egan has failed to meet his “very demanding” burden of showing the
“obvious” injustice required for reversal. Romero, 258 Ariz. 237, ¶ 65
(quoting Escalante, 245 Ariz. 135, ¶ 20).

Disposition

¶54 For the foregoing reasons, we affirm.

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