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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  CHAD ROBERT BOUDREAU, Appellant.

                             No. 1 CA-CR 15-0120
                              FILED 9-13-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-103520-003
           The Honorable Erin O'Brien Otis, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Counsel for Appellant
                          STATE v. BOUDREAU
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Jon W. Thompson and Chief Judge Michael J. Brown joined.


J O H N S E N, Judge:

¶1           Chad Robert Boudreau appeals his conviction and sentence
for second-degree burglary. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The evidence at trial, viewed in the light most favorable to
sustaining the conviction, showed that police responding to a report of a
home burglary found Boudreau with financial documents, pepper spray
and safety-deposit keys taken from the house.1 Boudreau's female
companion was found with a black bag full of documents taken from the
house. Boudreau's companion testified she had followed Boudreau
through the back door into the house, where she picked up the black bag
and stuffed documents into it. A neighbor who called 9-1-1 testified he saw
a beam of light move through the house, then saw Boudreau and his female
companion walk away from the back porch of the house. Boudreau
admitted to the arresting officer that he had been in the backyard. At trial,
however, he testified he had never been in the backyard or inside the house,
and that the items discovered in his possession had fallen out of a truck
parked in the driveway of the house when he opened the vehicle's door.

¶3            The jury convicted Boudreau of second-degree burglary, but
acquitted him of theft of means of transportation. The superior court found
that Boudreau had been convicted of five prior felonies, and accordingly
was a category-three repetitive offender. The court sentenced Boudreau to
the presumptive term of 11.25 years in prison. Boudreau filed a timely
notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes
("A.R.S.") sections 12-120.21(A)(1) (2016), 13-4031 (2016) and -4033(A)
(2016).2


1     State v. Boozer, 221 Ariz. 601, 601, ¶ 2 (App. 2009).

2     Absent material revision after the relevant date, we cite a statute's
current version.


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                            STATE v. BOUDREAU
                             Decision of the Court
                                DISCUSSION

A.     The Jury's Question.

¶4            Boudreau argues the superior court abused its discretion by
refusing to respond "no" when the jury asked during deliberations whether
the backyard and the patio were part of a "residential structure" as defined
in the burglary instruction. The court had instructed the jury that burglary
required proof that the defendant "[e]ntered or remained unlawfully in or
on a residential structure" with the intent to commit a theft or felony
therein. The court further had defined a residential structure as "any
structure, movable or immovable, permanent or temporary, adapted for
both human residence and lodging whether occupied or not." When the
court conferred with counsel about the jury's question, defense counsel
stated that the answer to the question was so clear that the court should
simply answer "no." The prosecutor responded, however, that whether a
patio is a residential structure would depend on the circumstances.
Ultimately, the court responded to the jury, "Please refer to the closing
instructions as given."

¶5             When "the jury appears to be confused about a legal issue, and
the resolution of the question is not apparent from an earlier instruction,
the trial judge has a responsibility to give the jury the required guidance by
a lucid statement of the relevant legal criteria." State v. Ramirez, 178 Ariz.
116, 126 (1994) (quotation omitted). The superior court, however, has broad
discretion in determining whether and how to respond to jury questions.
See id.

¶6            The court did not abuse its discretion by refusing to respond
that neither the patio nor the backyard was a "residential structure" and
instead simply referring the jury to the earlier instructions. The jurors'
question was not a pure question of law. Rather, the question arose as they
attempted to match the evidence concerning the features of the patio and
backyard with the definitional requirements of a "residential structure."
Had the court responded "no" as defense counsel asked, the court would
have violated the provision of the Arizona Constitution prohibiting judges
from commenting on the evidence. See Ariz. Const. art. 6, § 27 ("Judges
shall not charge juries with respect to matters of fact, nor comment thereon,
but shall declare the law."); see State v. Roque, 213 Ariz. 193, 213, ¶ 66 (2006).

¶7            To the extent that Boudreau is arguing that the court should
have responded by defining "structure" pursuant to A.R.S. § 13-1501(12)
(2016) as "any place with sides and floor separately securable from any
other structure attached to it," he raises this argument for the first time on


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                          STATE v. BOUDREAU
                           Decision of the Court
appeal, and accordingly has waived all but fundamental error review. See
State v. Henderson, 210 Ariz. 561, 568, ¶ 22 (2005). On fundamental error
review, defendant has the burden of proving that the court erred, that the
error was fundamental in nature, and that he was prejudiced thereby. Id.
at 567, ¶ 20. Boudreau has failed to meet his burden. The prosecutor
argued that Boudreau had entered the house itself without permission and
took items from the house that did not belong to him, or acted as an
accomplice by helping his female companion commit the burglary; the
prosecutor never argued that Boudreau had committed the burglary by
entering or removing items from the patio or the backyard. Accordingly,
Boudreau has failed to show how the verdict could have been any different
if the jury had been instructed on the definition of "structure," as necessary
to show prejudice on fundamental error review.

B.     Sufficiency of the Evidence.

¶8             Boudreau also argues the evidence was insufficient to show
that he entered the home. We disagree. We review de novo the sufficiency
of the evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶
15 (2011). Sufficient evidence "is such proof that reasonable persons could
accept as adequate and sufficient to support a conclusion of defendant's
guilt beyond a reasonable doubt." Id. at ¶ 16 (quoting State v. Mathers, 165
Ariz. 64, 67 (1990)). Not only did his companion testify that she had
followed Boudreau into the house through the back door, Boudreau was
found shortly thereafter with financial documents, keys and pepper spray
that the victim testified were previously in the house. Moreover, a neighbor
testified he saw Boudreau and his female companion walk away from the
area of the back door shortly after he saw a beam of light moving inside the
house. Reasonable persons could have found this evidence demonstrated
beyond a reasonable doubt that Boudreau had entered a residential
structure, as necessary for the burglary conviction.

C.     Alleged Vouching.

¶9           Boudreau argues the prosecutor improperly vouched for the
testimony of the female companion twice during closing argument by
arguing that she "was upfront" about what happened that night, and once
during rebuttal closing argument by arguing that the witness would have
gotten in more trouble at trial by not telling the truth, and she "didn't do
that."

¶10         To determine whether a prosecutor's remarks are improper,
we consider whether the remarks called to the attention of jurors matters
they would not be justified in considering, and the probability, under the


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                           STATE v. BOUDREAU
                            Decision of the Court
circumstances, that the jurors were influenced by the remarks. State v. Jones,
197 Ariz. 290, 305, ¶ 37 (2000). 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 suggests that
information not presented to the jury supports the witness's testimony."
State v. King, 180 Ariz. 268, 276-77 (1994) (quoting State v. Vincent, 159 Ariz.
418, 423 (1989)). "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 (2007) (quoting State v.
Hughes, 193 Ariz. 72, 79, ¶ 26 (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 (2005)).

¶11            Boudreau failed to object when the prosecutor asserted in
closing argument that the witness "was upfront" about what happened that
night. For that reason, we review for fundamental error only. Boudreau
has failed to meet his burden on fundamental error review. In considering
whether a prosecutor's argument is misconduct, this court "looks at the
context in which the statements were made as well as 'the entire record and
to the totality of the circumstances.'" State v. Nelson, 229 Ariz. 180, 189, ¶ 39
(2012) (quoting State v. Rutledge, 205 Ariz. 7, 13, ¶ 33 (2003)). We will not
assume the prosecutor intended the most sinister meaning of ambiguous
remarks. See State v. Dunlap, 187 Ariz. 441, 462-63 (App. 1996). In context,
the prosecutor's argument in this case did not constitute vouching. The
prosecutor did not place the prestige of the government behind the witness
nor suggest that evidence outside the record supported the witness's
testimony. Rather, the prosecutor argued the witness's testimony about
what she could remember about the incident was credible, in light of her
admission that she had committed burglary and her testimony that because
she was a drug user at the time, she had significant gaps in her memory, so
she could not testify where Boudreau went or what he did after she
followed him into the house.

¶12           Boudreau did object on grounds of vouching to the
prosecutor's argument that the witness had already pled guilty and that she
would only get "in further trouble by not telling the truth about what
happened that night . . . . The way you get in trouble going forward is you
continue to not tell the truth, but [she] didn't do that." The court implicitly
sustained the objection, asking the prosecutor to "rephrase that." The
prosecutor immediately corrected himself, explaining, "The evidence that



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                          STATE v. BOUDREAU
                           Decision of the Court
you heard and [this witness's] own testimony was that that's not what she's
doing." The prosecutor then argued that the evidence showed that the
witness did not want to be in court, did not want to be involved, was
nervous, and did not remember a lot of things that happened that night, but
stated she "has done her best to avoid getting in any other trouble or
involvements in any other way." The prosecutor concluded by arguing that
in determining "whose versions of events to believe, every independent
piece of evidence backs up exactly what [this witness] told you that night."

¶13            Because the prosecutor immediately linked his remarks to the
evidence at trial, no improper vouching occurred. See State v. Corona, 188
Ariz. 85, 91 (App. 1997) (prosecutor's characterization of the witnesses as
truthful did not constitute vouching because prosecutor made clear it was
up to the jury to determine credibility of witnesses, and sufficiently linked
argument to the evidence); cf. United States v. Ruiz, 710 F.3d 1077, 1086 (9th
Cir. 2013) (use of "we know" was proper when used "to marshal evidence
actually admitted at trial and reasonable inferences from the evidence, not
to vouch for witness veracity or suggest that evidence not produced would
support a witness's statements"). Moreover, the superior court instructed
the jury that the lawyer's arguments were not evidence and that it was the
jury's role to determine credibility of the witness. These instructions were
sufficient to dispel any taint and render any vouching harmless error. See
State v. Payne, 233 Ariz. 484, 512, ¶ 113 (2013).

                              CONCLUSION

¶14           For the foregoing reasons, we affirm Boudreau's conviction
and sentence.




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




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