¶ 1 After a jury trial, Shawn Edmisten was convicted of several felony offenses including burglary, aggravated assault, kidnapping, armed robbery, and drive-by shooting. On appeal, Edmisten contends the trial court erred by giving erroneous jury instructions and the prosecutor engaged in misconduct during closing argument. For the following reasons, we affirm.
Facts
¶ 2 “We view the facts in the light most favorable to sustaining the convictions.”
State v. Robles,
¶ 3 Edmisten approached a house carrying an AK-47 rifle. The residents of the house, a family with two children, were sitting on the back porch. Edmisten demanded car keys and then ordered everyone into the house. He told the family that the police were after him and he did not want to get caught. After learning one of the residents had called 911, Edmisten himself called 911 and told the operator he was the owner of the house and “everything was fine, that the person moved on.” He then ripped the telephone from the wall and removed the battery from another, portable telephone. Edmisten also took control of a cellular telephone, which he used to call someone to ask for a ride. He then watched the six o’clock television news to see coverage of the events, and he asked the residents about different transportation possibilities including whether he could ride a horse they owned and whether they owned an all-terrain vehicle. After one of the residents asked him to put the rifle down so as not to make everyone nervous, Edmisten removed the clip, hid the weapon behind a couch, and put the clip under a cushion. He also asked for and received a change of clothes.
¶ 4 Edmisten then discovered there was a portable telephone on the back porch and ordered one of the residents to retrieve it. The resident saw sheriff’s deputies outside and informed them that Edmisten was in the house. The deputies entered and arrested Edmisten. After he was in custody, Edmis-ten told a sergeant that he had taken LSD and that the emergency lights on the sergeant’s car were “wigging him out.” The deputy who had initially tried to stop the perpetrators’ car drove to where Edmisten was being held and identified Edmisten as the person who had aimed a gun at him.
¶ 5 At trial, Edmisten’s primary defense was that he had been involuntarily intoxicated at the time of the crimes. Edmisten’s former girlfriend, Yolanda V., testified that, earlier on the day of the offenses, she had secretly slipped two Ecstasy pills into his drink. Yolanda testified that Ecstasy made Edmisten disoriented, uncomfortable because it prevented him from urinating, and incapable of driving a car. The state challenged Yolanda’s credibility by eliciting testimony that she had not come forward with this evidence until approximately five months after the date of the offenses and by pointing out inconsistencies in her story with respect to the precise date she had allegedly given Edmisten the drug. The state also suggested Yolanda’s motive for testifying was that she wanted Edmisten to pay child support for the child they had together.
Jury Instructions
¶ 6 Edmisten first argues the trial court’s instructions on involuntary intoxication were “incomplete, confusing, and misled the jury as to the State’s and defendant’s respective burdens of proof.” Division One of this court has described the involuntary intoxication defense as permitting a defendant “to negate the requisite state of mind for a criminal act.”
State v. McKeon,
¶ 7 The state, however, impliedly argues involuntary intoxication is an affirmative defense and relies on
State v. Figueroa,
¶ 8 We conclude, consistent with
McKeon,
that involuntary intoxication is a defense that “denies an element of the offense charged or denies responsibility” as provided in § 18-103(B).
See McKeon,
¶ 9 At Edmisten’s request, the trial court provided the following instruction on involuntary intoxication:
Intoxication resulting from the involuntary use of alcohol or drugs may be considered by you with respect to the culpable mental state required to prove an offense. The requisite mental states are “intentionally” or “with intent toL,”] “knowinglyf,”] “recklessly” and “with premeditation]!”]
If you find that the defendant became intoxicated solely as a result of drugs or alcohol administered to him against his will or against his knowledge, you should then consider whether the degree of intoxication precluded the defendant from acting with a particular mental state or states required to establish an offense.
Edmisten argued below that involuntary intoxication was similar to a justification defense and that the “jurors should [also] be instructed that the burden is on the State to affirmatively disprove the intoxication [defense].” The court rejected Edmisten’s analysis and his oral request for this separate instruction but instructed the jury on the state’s burden to prove defendant’s guilt beyond a reasonable doubt using the language mandated in
Portillo,
¶ 10 On appeal, Edmisten argues the trial court erred in failing to instruct the
*522
jury on the level of proof necessary to show involuntary intoxication, failing to instruct that the state had the burden to prove every element of the offenses beyond a reasonable doubt, and failing to instruct on the operative effect of a finding of involuntary intoxication by explaining that, if the jurors “had a reasonable doubt about the defendant’s mental state based on his involuntary intoxication, they could acquit or find him guilty of a lesser offense.”
2
But Edmisten did not raise these issues below, and his objection to the court's refusal to instruct that the state must affirmatively disprove intoxication did not preserve these new claims of error.
See
Ariz. R.Crim. P. 21.3(c) (grounds of objection to instruction must be stated distinctly);
see also State v. Schurz,
¶ 11 When a defendant fails to raise an objection below, we review for fundamental error.
State v. Henderson,
¶ 12 First, the trial court did not fail to instruct on a level of proof. As we already observed, the court properly instructed the jury that the state had the burden of proving the defendant’s guilt beyond a reasonable doubt.
See Portillo,
¶ 13 Second, although our supreme court has approved instructions using the “every element” language that Edmisten claims on appeal was erroneously omitted,
see State v. Orendain,
¶ 14 Third, the trial court did not fail to instruct the jury on the “operative effect” of a finding of involuntary intoxication. The court explained that the jury could consider the evidence of involuntary intoxication “with respect to the culpable mental state required to prove an offense.” And, again, the court told the jury that, if it had a reasonable doubt as defined in
Portillo,
¶ 15 In addition, during closing argument, Edmisten explained any ambiguity in the instructions.
See State v. Johnson,
¶ 16 The state, during closing argument, also reminded the jury that it had the burden to prove the defendant’s guilt beyond a reasonable doubt. And during rebuttal argument, the state asserted: “[Ejven if Mr. Ed-misten had taken those drugs without his knowledge, all that allows you to do is say, gee, given that fact, is there evidence that he intended to commit these crimes independent of that?” The state then summarized all the evidence it had presented to show Edmisten was “able to form the intent to make decisions” and concluded the jury should find this was overwhelming evidence of guilt.
¶ 17 Thus, both parties clarified the instructions concerning who had the burden of proof, and both emphasized the issue of whether the state had met its burden to prove Edmisten had the requisite mental state in light of the evidence of involuntary intoxication. We can safely conclude that these instructions, together with the arguments, left the jury “with the unqualified impression that each element of the crime,” including mental state, “must be proven beyond a reasonable doubt.”
Orendain,
¶ 18 Moreover, the evidence that Edmisten was actually involuntarily intoxicated was weakened considerably by the challenges to Yolanda’s credibility and the evidence of Edmisten’s behavior during the incidents. A review of that behavior does not support Edmisten’s contention that he “was sufficiently deprived of his reason that he did not intend the natural results of his actions.”
McKeon,
¶ 19 At oral argument, Edmisten challenged for the first time the portion of the involuntary intoxication instruction that read, “you should then consider whether the degree of intoxication precluded the defendant from acting with a particular mental state.” Edmisten argued this language, specifically the use of the word “precluded,” improperly suggested to the jury that Edmisten had some burden of proof to show he did not have the requisite mental state. But Edmisten himself requested this instruction below. Therefore, to the extent the language to which he now objects was an incorrect statement of law, he invited the error, and we will not consider it on appeal.
See State v. Logan,
¶ 20 Also at oral argument, Edmisten expanded on his contention that the trial court erred in not giving a separate instruction on reasonable doubt as to mental state with regard to involuntary intoxication. He contended for the first time that our supreme court’s analysis in
State v. Rodriguez,
The defendant has produced evidence of being absent at the time and place the alleged crime was committed. If you have a reasonable doubt whether the defendant was present at the time and place the alleged crime was committed, you must find the defendant not guilty.
Id.
¶ 30,
¶ 21 We recognize a conceptual similarity between the alibi and involuntary intoxication theories in that each generally originates from the defense. Again arguments raised for the first time at oral argument are generally waived.
Murdaugh,
Prosecutorial Misconduct
¶ 22 Edmisten also contends the prosecutor engaged in misconduct during closing argument. Because he did not object to the alleged instances of misconduct, we review his allegations for fundamental error.
See State v. Henderson,
¶ 23 To show fundamental error, the defendant must first prove error-that is, here, that misconduct actually occurred.
Id.
¶ 23,
“[t]o prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor’s misconduct so infected the tiial with unfairness as to make the resulting conviction a denial of due process. Reversal on the basis of prosecutorial misconduct requires that the conduct be so pronounced and persistent that it permeates the entire atmosphere of the trial.”
Harrod,
*525 ¶ 24 Edmisten first argues the prosecutor made comments that improperly “appealed to the fear of the jury, unfairly inflamed their passion, and unfairly appealed to their prejudice and sympathy.” During Edmisten’s closing argument, defense counsel discussed the differences in Edmisten’s behavior while committing the various offenses charged and in his demeanor in the courtroom. During the state’s rebuttal argument, the prosecutor said:
Now, I’m not sure what counsel is asking you to do, but, in terms of when he talks to you about you have seen Mr. Ed-misten sitting here this last week and you noticed his demeanor and, gee, does that look like the demeanor of somebody who would do all of these violent crimes, well, ladies and gentlemen, we certainly expect defendants, when they come into this courtroom, to sit here and be somewhat polite and not start shooting people. If that was the case, we would have a problem. We would expect this defendant to sit here before the jury and act polite and act just like he has been the last few days. His demeanor in court has nothing to do with whether or not he committed these crimes on December 22nd of 2005.
¶ 25 The prosecutor’s comments about Ed-misten’s in-court demeanor responded directly to a point defense counsel had raised and fell well within the latitude afforded attorneys during closing argument.
See Comer,
¶ 26 Edmisten next argues the prosecutor engaged in misconduct by addressing Edmisten’s failure to call a certain witness to testify and thus confused the jury regarding who had the burden of proof. “It is well settled that a ‘prosecutor may properly comment upon the defendant’s failure to present exculpatory evidence, so long as the comment is not phrased to call attention to the defendant’s own failure to testify.’ ”
State v. Herrera,
¶27 Here, a deputy testified that, after Edmisten was apprehended, the deputy had identified Edmisten as the person who had pointed a gun at him during the police chase. Edmisten offered evidence in an attempt to show the identification had never happened. The prosecutor merely pointed out during closing arguments that, although Edmisten had no burden to present any evidence or prove anything, he could have called another deputy who — -according to the first deputy’s testimony — had been present at the time of the identification. “Elemental fairness” allowed the state to comment on Edmisten’s failure to call this “potentially exculpatory” witness.
Corcoran,
Conclusion
¶ 28 In light of the foregoing, we conclude no fundamental error resulted from the trial court’s instructions to the jury or from the prosecutor’s remarks during closing argument. We therefore affirm Edmisten’s convictions and sentences.
Notes
. We acknowledge Judge Hall's special concurrence in
McKeon,
in which he argued that the defense of involuntary intoxication does not exist in Arizona unless it is pled as the affirmative defense of temporary insanity under A.R.S. § 13-502.
McKeon,
. In his reply brief, Edmisten repeated his contention below that involuntary intoxication is like a justification defense and for the first time argued that, under a recent amendment to A.R.S. § 13-205(A), the legislature imposed on the state the burden to prove the defendant had not acted with justification. An argument first raised on appeal in the reply brief is waived, and we will not address it.
State v. Ruggiero,
. Although an instruction using the “every element'’ language was not required, adding such language may indeed be helpful to juries.
. Edmisten cites
State v. Corona,