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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      DAVID ALAN CROSS, Appellant.

                             No. 1 CA-CR 15-0112
                               FILED 5-31-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-456885-001
              The Honorable Erin Otis, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
                             STATE v. CROSS
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Patricia K. Norris joined.


J O N E S, Judge:

¶1           David Cross appeals his convictions and sentences for one
count each of possession of a dangerous drug and possession of drug
paraphernalia, arguing reversible error based upon the prosecutor’s
remarks during her closing and rebuttal arguments at trial. For the
following reasons, we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            In the early morning hours of February 12, 2013, a Scottsdale
police officer initiated a traffic stop of a vehicle with a nonoperational
headlight, which she had observed leave a Wal-Mart parking lot “making
jerking movements as it was driving” and an illegal turn. The officer made
contact with the driver, later identified as Cross, and two passengers,
Shauna D. and Kelly A. According to the officer, Cross acted “fidgety” and,
when asked for identification, provided a credit card instead. Based upon
her observations, the officer believed Cross to be under the influence of
methamphetamine.

¶3             Cross’s erratic behavior, “jitteriness and inability to stand
still” prevented him from completing field sobriety tests, but he consented
to a search of the vehicle. The search revealed a “makeshift pipe or bong of
some kind [and] plastic tubing” in a grocery bag sitting on a black backpack,
in the trunk, next to a laundry basket belonging to Shauna. The pipe
appeared to have been used recently and contained methamphetamine
residue.

¶4           Neither Shauna nor Kelly claimed ownership of the pipe.
After being advised of his rights pursuant to Miranda v. Arizona, 384 U.S.


1     We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v. Harm,
236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493,
495 (App. 1996)).


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                             STATE v. CROSS
                            Decision of the Court

436, 444 (1966), Cross admitted the pipe was his, he had last used it six or
seven hours prior to the interview, and the pipe probably contained his
fingerprints. He was arrested and charged with one count each of
possession of a dangerous drug and possession of drug paraphernalia.

¶5             At trial, Cross testified in his own defense, explaining Shauna
had placed her personal items in the trunk after retrieving them from her
ex-husband’s home. Cross and Shauna then visited friends, Phillip E. and
Kelly, and then left with Kelly to do some shopping at Wal-Mart. Cross
testified he gave the officer permission to search his vehicle because he was
confident it did not contain any illegal items. When the officer first
confronted Cross about the pipe, Cross stated it belonged to a friend, but
when the officers threatened to take Shauna into custody, he claimed
ownership of the pipe to “protect” her. At trial, Cross testified the pipe
actually belonged to Shauna.

¶6          During his testimony, Cross admitted he had smoked
methamphetamine in the past but preferred to use a different sort of pipe
than was found in his trunk. He also testified the pipe found in his trunk
was decorated in a feminine manner and looked like something Shauna,
who enjoyed glass blowing as a hobby, would make.

¶7             Cross did not call Shauna as a witness because, prior to trial,
the trial court excused her from testifying after she invoked her Fifth
Amendment privilege against self-incrimination and the court determined
she could not provide any relevant information without violating that right.
See State v. Mills, 196 Ariz. 269, 276, ¶ 31 (App. 1999) (“If the witness validly
asserts his Fifth Amendment privilege by showing ‘a reasonable ground to
apprehend danger to the witness from his being compelled to answer,’ . . .
the defendant’s right to compulsory process must yield to the witness’s
privilege not to incriminate himself.”) (quoting United States v. Melchor
Moreno, 536 F.2d 1042, 1046 (5th Cir. 1976)) (citations omitted). During her
closing, the prosecutor, who is not the State’s counsel on appeal, made the
following argument, with which Cross now takes issue, calling attention to
Shauna’s absence:

       All three of the officers that testified, their testimony
       corroborated one another. They all viewed the defendant’s
       jittery, erratic movement. They all confirmed that the bong
       was found in the trunk. And all their statements fit together
       to corroborate what happened that night.




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                           STATE v. CROSS
                          Decision of the Court

      And again, like I said, while the State welcomes the burden,
      the defendant chose to put on evidence. And so now the State
      asks you, where are these other people that he was involved
      with that night?

      ...

      Where are the other people that the defendant was involved
      with that night? Where is Kelly A[.]? Where is . . . his sick
      friend, that he was with, rather than smoking
      methamphetamine like he told the officer? Where is Shauna
      . . .? The defendant has the same subpoena power as the State.
      They can bring anyone into court that they want and have
      them testify on their behalf.

      If he really was hanging out and watching movies rather than
      smoking methamphetamine, if he really did just go to
      Walmart to get dog food for this Kelly character, where are
      they? Where are they to corroborate his story?

      The only thing that the defendant has to offer you is his own
      words, and we’ve already heard that the defendant, based on
      the law that you are provided, should not be considered a
      credible witness.

The prosecutor re-advanced the argument on rebuttal, stating:

      Secondly, corroboration or lack thereof. The State submitted
      to you before that the defendant talked about Phil and this
      Kelly, and this Shauna. And that he was with them watching
      movies, helping his sick friend, certainly not smoking
      methamphetamine like he told the officer the night in
      question. Yet, ladies and gentlemen, where are those people
      today? What evidence, other than the defendant’s statements,
      corroborates his story? The State would submit to you, there
      is none.

¶8           The jury found Cross guilty as charged. Cross admitted to
four prior felony convictions and was sentenced as a non-dangerous,
repetitive offender to concurrent presumptive terms of 10 years’
imprisonment for possession of a dangerous drug and 3.75 years’
imprisonment for possession of drug paraphernalia and given credit for 100
days of presentence incarceration. Cross timely appealed, and we have



                                    4
                             STATE v. CROSS
                            Decision of the Court

jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1),2 13-4031, and -4033(A).

                               DISCUSSION

¶9             Cross argues he was deprived of a fair trial as a result of
prosecutorial misconduct arising from the prosecutor’s arguments during
closing and rebuttal. At trial, Cross objected only on the basis of burden
shifting. That objection was insufficient to preserve a claim of prosecutorial
misconduct. See State v. Rutledge, 205 Ariz. 7, 13, ¶¶ 29-30 (2003) (holding
“the objection ‘shifting the burden’ did not preserve the issue of
prosecutorial misconduct”). Because Cross did not raise prosecutorial
misconduct until a post-trial motion to vacate the judgment, we review only
for fundamental error. Id. at 13, ¶ 30 (citations omitted); State v. Mendoza,
181 Ariz. 472, 474 (App. 1995) (holding an issue raised for the first time in a
post-trial motion preserves only fundamental error review). Under
fundamental error review, Cross bears the burden of proving: (1) an error
occurred, (2) the error was fundamental — that is, it “goes to the foundation
of his case, takes away a right that is essential to his defense, and is of such
magnitude that he could not have received a fair trial,” and (3) the error
caused him prejudice. State v. Henderson, 210 Ariz. 561, 568, ¶¶ 22-26 (2005).

¶10           Cross argues the prosecutor improperly exploited the fact
that Cross could not call Shauna as a witness to corroborate his defense by
questioning her absence during closing and rebuttal arguments.3 Although
he acknowledges it is not per se improper to comment on a defendant’s
failure to produce evidence, he contends that, because the prosecutor knew
Shauna had been declared unavailable based upon the invocation of her
Fifth Amendment rights, the argument suggesting Cross did not call



2     Absent material changes from the relevant date, we cite a statute’s
current version.

3      Cross also argues he was deprived of his constitutional right to
confront witnesses against him. But, a defendant has no Sixth Amendment
right to compel the testimony of a witness who has made a valid assertion
of the Fifth Amendment privilege against self-incrimination. State v. Rosas-
Hernandez, 202 Ariz. 212, 216, ¶ 10 (App. 2002) (citing United States v.
Turkish, 623 F.2d 769, 773-74 (2d Cir. 1980)). Cross does not contend the trial
court erred in finding Shauna validly asserted her Fifth Amendment
privilege, and therefore, Cross’s Sixth Amendment rights are not
implicated here.


                                       5
                              STATE v. CROSS
                             Decision of the Court

Shauna because she had inculpatory information was intentionally
misleading. We agree.

¶11             It is within the discretion of the trial court to exclude a witness
who has indicated she will refuse to testify through the invocation of her
Fifth Amendment right against self-incrimination. State v. Corrales, 138
Ariz. 583, 588 (1983). But, “an adverse inference from failure to call a
witness may not be argued by counsel where counsel knows that the
witness cannot be produced by his opponent.” Id. at 587 n.2 (citing 1 M.
Udall & J. Livermore, Arizona Practice, Law of Evidence § 125, at 257 (2d ed.
1982)); see also State v. McDaniel, 136 Ariz. 188, 194 (1983) (“It is well settled
that in criminal cases the jury is not entitled to draw any inferences from
the decision of a witness to exercise his Fifth Amendment privilege.”)
(citations omitted). The principle extends “to situations where the witness
can be physically produced but cannot be compelled to testify.” Corrales,
138 Ariz. at 587 n.2. Although wide latitude is given during closing
arguments for counsel to comment on the evidence and argue all reasonable
inferences therefrom, McDaniel, 136 Ariz. at 197, it is misconduct for the
prosecutor to build his case out of inferences arising from a witness’s
invocation of the privilege against self-incrimination, Corrales, 138 Ariz. at
591 (citations omitted).

¶12           Here, the prosecutor directed the jury’s attention to Shauna’s
absence on multiple occasions to highlight that Cross’s testimony was
uncorroborated, and in a manner suggesting Cross had chosen not to call
Shauna as a witness because she would not verify his version of events. In
fact, the prosecutor knew the opposite was true: Shauna had refused to
testify because she believed doing so would incriminate her. Under the
circumstances, the prosecutor’s comments constitute misconduct.

¶13            A finding of error, however, does not end our inquiry; to be
reversible, the error must also be fundamental and cause prejudice.
Henderson, 210 Ariz. at 567, ¶ 20. Even assuming the nature of the violation
is fundamental, see State v. Hughes, 193 Ariz. 72, 86, ¶ 63 (1998) (noting an
improper comment regarding the invocation of the privilege against self-
incrimination, whether direct or indirect, violates state and federal
constitutional law) (citing State v. Jordan, 80 Ariz. 193, 199 (1956)); Corrales,
138 Ariz. at 591, “[p]rosecutorial misconduct is harmless error if we can find
beyond a reasonable doubt that it did not contribute to or affect the verdict.”
Hughes, 193 Ariz. at 80, ¶ 32 (citing State v. Towery, 186 Ariz. 168, 185 (1996),
and State v. Bible, 175 Ariz. 549, 588 (1993)). Here, we find the error
harmless.



                                        6
                            STATE v. CROSS
                           Decision of the Court

¶14           In a prosecution for possession of a prohibited item, the key
inquiry is not ownership, but possession or use of the item. See A.R.S.
§§ 13-3407(A)(1) (“A person shall not knowingly . . . [p]ossess or use a
dangerous drug.”); -3415(A) (“It is unlawful for any person to use, or to
possess with intent to use, drug paraphernalia . . . .”). And, while
ownership may rest with a single person, possession can be shared. See
State v. Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App. 2013) (“[U]nder a theory of
constructive possession, two or more persons may jointly possess a
prohibited object; possession need not be ‘exclusive, immediate and
personal.”) (quoting State v. Carroll, 111 Ariz. 216, 218 (1974)).

¶15            The jury was instructed on actual and constructive, and sole
and joint possession. Even if the jury believed Shauna owned the pipe and
methamphetamine, there is overwhelming evidence from which the jury
could conclude Cross was in constructive possession of the items. See State
v. Villavicencio, 108 Ariz. 518, 520 (1972) (noting constructive possession
applies where the prohibited item is “found in a place under [the
defendant’s] dominion and control and under circumstances from which it
can be reasonably inferred that the defendant had actual knowledge of the
existence” of the prohibited item). Cross appeared to be under the influence
of methamphetamine when he was stopped, he admitted using
methamphetamine earlier in the day, methamphetamine residue was found
on the pipe, and he agreed his fingerprints were probably on the pipe he
was charged with possessing. In proximity to his arrest, Cross admitted the
pipe was his.        Additionally, Cross never disputed the pipe and
methamphetamine were found in his vehicle, within his dominion and
control; he only later argued he did not “own” them.

¶16           In light of the overwhelming evidence Cross had at least
constructive possession of the pipe and methamphetamine, we are
satisfied, beyond a reasonable doubt, that the prosecutor’s improper
comments on Shauna’s absence did not affect the verdict.4 We therefore
find no reversible error.



4      That the State’s trial counsel’s error was ultimately harmless excuses
neither her violation of the trial court’s direction to refrain from
commenting on Shauna’s absence, or her knowing exploitation of Shauna’s
invocation of her Fifth Amendment privilege against self-incrimination.
Accordingly, pursuant to our ethical obligations, we direct the clerk of the
court to forward a copy of this decision to the disciplinary department of
the State Bar of Arizona.



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                    STATE v. CROSS
                   Decision of the Court

                     CONCLUSION

¶17   Cross’s convictions and sentences are affirmed.




                        :AA




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