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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WILLIAM EARL WADE, JR., Appellant.

No. 1 CA-CR 20-0095

Appeal from the Superior Court in Maricopa County

No. CR2018-158411-001

The Honorable Ronee Korbin Steiner, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Casey Ball

Counsel for Appellee

Gurion Legal, Phoenix

By Omer Gurion

Counsel for Appellant

FILED 2-23-2021
STATE v. WADE

Decision of the Court

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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 William Earl Wade Jr. appeals his convictions and sentences 

for possession of methamphetamine and possession of drug paraphernalia. 

For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In December 2018, Phoenix police officers encountered Wade 

at a transient camp. Wade consented to a search of his person, and an 

officer found a baggie containing 1.1005 grams of methamphetamine and a 

glass pipe in Wade’s front left pants pocket. Officers searched Wade’s 

backpack and found empty baggies.

¶3 The State charged Wade with one count of possession of 

dangerous drug (methamphetamine), a class 4 felony (count 1), and one 

count of possession of drug paraphernalia (pipe), a class 6 felony (count 2). 

A jury convicted Wade as charged, and the superior court sentenced him to 

twelve years in prison for count 1 and to a concurrent term of 5.75 years in 

prison for count 2. Wade timely appealed, and we have jurisdiction 

pursuant to Arizona Constitution article VI, § 9, and Arizona Revised 

Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, -4033(A)(1).

DISCUSSION

I. Alternate Juror

¶4 Wade first argues the superior court erred by allowing an 

alternate juror to deliberate after not being present for supplemental closing 

arguments made to the originally constituted jury. He concedes he did not 

object to the alternate juror deliberating without being privy to 

supplemental arguments made by counsel when the original jury was at an 

impasse, but argues the alleged error was structural or fundamental.

¶5 After closing arguments were presented, jurors 4 and 6 were 

randomly selected as alternate jurors. The next day, the jury informed the 
STATE v. WADE

Decision of the Court

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court that the jurors could not reach an agreement. The court read them the

impasse instruction and allowed both sides to present additional argument. 

As the bailiff brought the jury back to the jury room for more deliberations, 

juror 1 had an emotional breakdown. The court spoke to juror 1, and she 

told the court she could not continue deliberating. Without objection, the 

court excused juror 1 and replaced her with juror 6 pursuant to Arizona 

Rule of Criminal Procedure 18.5(h)(3). The court instructed the jury not to 

deliberate again until juror 6 arrived to deliberate.

¶6 After juror 6 arrived at court, and before the court further 

instructed the jury, the State raised the issue of the “five-minute . . . 

argument we made after there was an impasse with the jury, and I don’t 

know . . . whether or not [juror 6] needs to watch the FTR clip or be made 

aware of that, I know it is not evidence because it is argument, but I just 

wanted to raise that.” The court responded that the supplemental 

arguments “wouldn’t matter,” because the court would be instructing the 

jurors to disregard all of their previous deliberations. Defense counsel 

agreed that juror 6 did not need to hear the supplemental arguments. The 

court then gave the jury the instruction for reconstituted juries, which 

directed jurors to start deliberations anew and not to “consider any part of 

your prior deliberations and/or discussions.”

¶7 “[T]he relatively few instances in which we . . . regard error 

as structural all involve errors that deprive defendants of basic protections 

and infect the entire trial process from beginning to end, and include errors 

such as a biased trial judge [and the] complete denial of criminal defense 

counsel.” State v. Bush, 244 Ariz. 575, 591, ¶ 66 (2018) (internal quotations 

omitted). And “[a] defendant establishes fundamental error by showing 

that (1) the error went to the foundation of the case, (2) the error took from 

the defendant a right essential to his defense, or (3) the error was so 

egregious that he could not possibly have received a fair trial.” State v. 

Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). The first step in fundamental error 

or structural error review is determining whether trial error exists. See id.

¶8 Wade argues he did not receive a fair trial because “7 of the 8 

jurors deliberating were armed with additional argument than that 

provided to the new juror.” He cites no caselaw to support his argument 

that permitting an alternate juror to deliberate as part of a reconstituted 

jury, without having heard supplemental closing arguments presented to 

the original jury while at an impasse, constitutes fundamental or structural 

error.
STATE v. WADE

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¶9 We find no error, structural, fundamental, or otherwise. First, 

when the State suggested juror 6 should watch a video recording of the 

supplement arguments, or otherwise be made aware of them, the court 

asked defense counsel whether that process needed to take place. Defense 

counsel said juror 6 did not need to see the video. Assuming arguendo that 

failure to show juror 6 a recording of the supplemental argument was error;

Wade invited any such error when he agreed it was unnecessary to do so

and he waived the argument on appeal. State v. Logan, 200 Ariz. 564, 565-

66, ¶ 9 (2001) (appellate courts “will not find reversible error when the party 

complaining of it invited the error”).

¶10 Second, we presume jurors follow the superior court’s 

instructions. State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). The 

supplemental arguments occurred during the originally constituted jury’s 

deliberations, and the court instructed the jurors to begin deliberations 

anew and not to consider its previous deliberations. We therefore will 

presume that the reconstituted jury only considered the parties’ closing 

arguments and not the supplemental arguments. Juror 6 was present for 

all of the evidence and for the parties’ closing arguments. Juror 6 did not 

“miss[] large portions of the trial,” or miss “testimony [that] was 

particularly critical.” See State v. Prince, 226 Ariz. 516, 533, ¶¶ 55-58 (2011) 

(no error, fundamental or otherwise, occurred when the court permitted a 

juror to deliberate after the juror slept through testimony that was not 

particularly critical) (internal quotation omitted). We cannot conclude that 

Wade was deprived of a fair trial because juror 6 did not hear the 

supplemental arguments.

II. Testimony About the Baggies

¶11 Wade next argues the superior court violated Arizona Rule of 

Evidence (“Rule”) 404(b) by permitting the State to introduce testimony 

about the baggies police found in his backpack. At trial, Officer Nevarez 

testified, without objection, that he found “a ton” of “small clear baggies” 

in Wade’s backpack. The baggies were then admitted into evidence 

without objection. On appeal, Wade argues the superior court erred by 

“admitting character evidence against [him] for the sole purpose of making 

him appear to be a habitual drug user,” and that he was deprived of a fair 

trial.

¶12 Normally we review a court’s admission of evidence for an 

abuse of discretion. State v. Vigil, 195 Ariz. 189, 191, ¶ 13 (App. 1999). 

However, because Wade did not object to the testimony, we review for 

fundamental error. See Escalante, 245 Ariz. at 138, ¶ 1.
STATE v. WADE

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¶13 Rule 404(b)(1) precludes evidence of “other crimes, wrongs, 

or acts” to prove the character of a defendant “in order to show action in 

conformity therewith.” Such evidence “may, however, be admissible for 

other purposes, such as proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid. 

404(b)(2). “In all these situations the bad acts shed some light on the crime 

charged and not merely on the defendant’s criminal propensity.” State v. 

Rose, 121 Ariz. 131, 136 (1978). “The list of ‘other purposes’ in rule 404(b)

. . . is not exclusive; if evidence is relevant for any purpose other than that 

of showing the defendant’s criminal propensities, it is admissible . . . .” State 

v. Jeffers, 135 Ariz. 404, 417 (1983).

¶14 Here, even if the testimony about the baggies constituted 

other acts character evidence it was nonetheless admissible under Rule 

404(b) for a non-propensity purpose because the testimony served to rebut 

Wade’s defense and testimony that he did not knowingly possess 

methamphetamine. See State v. Williams, 183 Ariz. 368, 376 (1995) 

(“Evidence which tests, sustains, or impeaches the credibility or character 

of a witness is generally admissible, even if it refers to a defendant’s prior 

bad acts.”) (internal quotation omitted).

¶15 Wade further argues the superior court erred by failing to sua 

sponte hold a hearing or make a determination about the relevance of the 

evidence versus its prejudicial effect pursuant to Rule 403. Evidence is 

relevant if “it has any tendency to make a fact more or less probable than it 

would be without the evidence.” Ariz. R. Evid. 401(A). The superior court 

did not perform the Rule 403 analysis it would have been required to 

perform had Wade objected to the testimony at trial. But the court would 

have been within its discretion to admit the evidence of additional baggies 

because the danger of unfair prejudice from admitting it did not 

substantially outweigh its probative value in establishing that Wade knew 

he was in possession of methamphetamine. No error, much less 

fundamental error, occurred.
STATE v. WADE

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CONCLUSION

¶16 For the foregoing reasons, we affirm Wade’s convictions and 

sentences.