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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

OBI LOUIS BROWN, Appellant.

No. 1 CA-CR 17-0366

Appeal from the Superior Court in Maricopa County

No. CR2016-000860-001

The Honorable Bradley H. Astrowsky, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

The Law Office of Kyle T. Green P.L.L.C., Tempe

By Kyle Green

Counsel for Appellant

FILED 2-5-2019
STATE v. BROWN

Decision of the Court

2

MEMORANDUM DECISION

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

Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 This appeal is filed in accordance with Anders v. California,

386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for 

Appellant Obi Brown (“Brown”) has advised this Court that counsel 

found no arguable questions of law and asks us to search the record for 

fundamental error. Brown was convicted of misconduct involving 

weapons. He has filed a supplemental brief in propria persona, which the 

court has considered. After reviewing the record, we affirm Brown’s 

conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining 

the judgment and resolve all reasonable inferences against Brown. See 

State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998) (citation omitted).

¶3 According to Brown, Isaias Gallardo (“Gallardo”), attempted 

to steal Brown’s rental car, which led to a physical altercation between the 

two men. During the altercation Brown brandished a firearm and fired

ten rounds into the ground. Officers near the incident heard the shots 

fired and responded to the scene. Brown had disappeared; however, he 

eventually returned to the scene while officers were still investigating.

¶4 Upon Brown’s return, he was questioned by officers as part 

of a traffic stop. Officers asked Shawn Gray (“Gray”), the driver of the 

vehicle, for his license and registration; Brown, sitting in the passenger’s 

seat, opened the glove box whereupon a .45 caliber weapon was visibly 

stored. Officers detained Brown. Brown’s DNA was found on the .45 

caliber firearm.

¶5 During trial, Brown stipulated to having prior felony 

convictions. His right to bear arms has not been restored. Brown testified 

that Gallardo used a weapon against him during the attempted car theft, 

and Brown was left no choice other than to defend himself. He further 

alleged a friend, Gray, was driving the vehicle prior to the police stop. 
STATE v. BROWN

Decision of the Court

3

Brown also argued the need to defend against Gallardo granted him the

right to possess a firearm.

¶6 During the trial, the State put on twelve witnesses. Brown 

was the sole witness for the defense. Each of the law enforcement officers 

called at trial gave testimony which corroborated the State’s theory of the 

events. The State’s DNA expert testified the DNA sample found on the 

weapon matched Brown’s profile.

¶7 Brown’s then girlfriend, Erica Miller, testified to the 

circumstances surrounding the purchase of the brandished firearm. She 

testified that Brown was not the registered owner of the firearm, but he 

kept it in a locked safe to which only he had access. Brown admitted to 

police during questioning that he had possession of the firearm prior to

the physical altercation between Gallardo and himself. However, during

testimony on the stand, Brown said his prior statement to the police was 

untruthful, and then testified to a contrary line of events in which he only 

received possession of the firearm during the physical altercation.

¶8 At the close of testimony, prior to deliberations, the jury was 

instructed on the law. The court explained the presumption of innocence, 

the weight to give testimony, the meaning of Brown’s stipulation to prior 

felonies, the elements of the charge, the requirement of a unanimous 

verdict, the State’s burden of proof, and the elements of a proper necessity 

defense. Brown moved for a judgment of acquittal under Arizona Rule of 

Criminal Procedure 20 and the court denied the motion.

¶9 The jury convicted him. After polling, all jurors asserted the 

verdict was correct.

¶10 The superior court conducted the sentencing hearing in 

compliance with Brown’s constitutional rights and Arizona Rule of 

Criminal Procedure 26. The superior court considered the presentence 

report and the testimony of Brown during the sentencing hearing. The 

superior court found aggravating factors of significant criminal history, 

previous prison time, and causing potential harm to others. The superior 

court found the mitigating factors of a difficult history and childhood.

Then finding the mitigating factors outweighed the aggravating factors,

the court imposed a mitigated sentence of eight years, with presentence 

incarceration time credit of 622 days.
STATE v. BROWN

Decision of the Court

4

DISCUSSION

¶11 We review the entire record for reversible error. State v. 

Thompson, 229 Ariz. 43, 45, ¶ 3 (App. 2012). Counsel for Brown has 

advised this Court that after a diligent search of the entire record, counsel 

has found no arguable question of law. However, in his supplemental 

brief, Brown argues the superior court committed reversible error by 

denying his motion in limine regarding the admission of hearsay evidence 

under Arizona Rule of Evidence (“Rule”) 804.

1

¶12 Brown argues the court erred in denying the motion in limine

wherein he requested admission of a statement made by Gallardo. The 

court concluded the statement was inadmissible hearsay; Brown argues

that under Rule 804(b)(3), Gallardo was unavailable, and the statement 

was against Gallardo’s interest, and as such was admissible.

¶13 For evidence to be admitted under Rule 804(b)(3), the 

proponent must show the statement is sufficiently trustworthy by 

satisfying each of the Rule’s three elements. State v. Lopez, 159 Ariz. 52, 54 

(1988). As a preliminary matter, Brown, as the proponent, was required to 

establish the unavailability of Gallardo “through competent evidence, 

sufficient to convince the court that the witness . . . ” was unavailable. 

State v. Medina, 178 Ariz. 570, 575 (1994). The proponent of the statement 

must engage in a good faith effort to obtain the witness’ presence at trial. 

State v. Rivera, 226 Ariz. 325, 329, ¶ 13 (App. 2011). Whether the 

proponent engaged in a good faith effort is determined under a 

reasonableness standard. Id. at 329-30, ¶ 13.

¶14 We review an unavailability finding by the superior court 

for abuse of discretion. Id. at 329, ¶ 12. A court abuses its discretion 

where the record fails to provide substantial support for its decision or the 

court commits an error of law in reaching the decision. Grant v. Ariz. Pub. 

Serv. Co., 133 Ariz. 434, 456 (1982); see also Torres v. N. Am. Van Lines, Inc.,

135 Ariz. 35, 40 (App. 1982) (stating discretion is abused if “manifestly 

unreasonable, or exercised on untenable grounds, or for untenable 

reasons”).

 

1 This court only considers evidence in the record, supplemental 

information outside of the record is not considered on appeal. See AshtonBlair v. Merrill, 187 Ariz. 315, 317 (App. 1996).
STATE v. BROWN

Decision of the Court

5

¶15 The record contains no evidence of Brown’s attempt to 

secure Gallardo’s testimony. Brown did not disclose Gallardo as a 

witness, nor did the defense seek the issuance of a subpoena for him to 

appear at trial. Rather than making an effort to secure Gallardo’s presence 

at trial by way of a subpoena, Brown asserted a subpoena was 

inconsequential; because, had Gallardo taken the stand to testify, he

would have been considered unavailable because of his likely invocation 

of the privilege against self-incrimination. The superior court concluded 

there was not sufficient evidence before the court to determine Gallardo’s 

unavailability, and any argument regarding his unavailability would be 

speculative. Therefore, the court denied the request to introduce 

Gallardo’s out-of-court statements. A review of the record supports the 

court’s ruling. Brown made no effort, let alone a good faith effort, to 

secure Gallardo’s availability for in-court testimony. The superior court 

did not abuse its discretion.

¶16 Next, Brown argues that the court, under Rule 807, should 

have admitted Gallardo’s hearsay statement voiced during a police 

interview in which Gallardo stated he heard Brown say, “get the gun or 

[heard Brown] tell his friend to go get the gun, and [Gallardo] just 

panicked and [left].”2 At the time the judge ruled on Brown’s motion, 

Rule 807 stated that hearsay that does not fall into any other exception 

may be admitted if “(1) the statement has equivalent guarantees of 

trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more 

probative on the point for which it is offered than any other evidence that 

the proponent can obtain through reasonable efforts; and (4) admitting it 

will best serve the purposes of the rules and the interests of justice.” Ariz. 

R. Evid. 807 (2017). “The trial court has considerable discretion in 

determining the relevance and admissibility of evidence, and we will not 

disturb its ruling absent a clear abuse of that discretion.” State v. AmayaRuiz, 166 Ariz. 152, 167 (1990) (citation omitted).

3

 

2 Gallardo’s statement to police, relaying a statement he heard 

Brown say during the altercation, is hearsay within hearsay. Such a 

statement is admissible only if each hearsay statement is admissible 

independently. Ariz. R. Evid. 805.

3 In State v. Luzanilla, our Supreme Court explained the legislative 

history behind the “residual hearsay exception,” and indicated that it was 

to be used “only in rare and exceptional circumstances.” 179 Ariz. 391, 

397 (1994).
STATE v. BROWN

Decision of the Court

6

¶17 At the hearing regarding his motion in limine, Brown urged 

the court to admit Gallardo’s hearsay statement under Rule 807, the 

catchall exception, because the statement: (1) was not clearly admissible 

under Rules 803 and 804, (2) had indicia of trustworthiness because the 

parties did not know each other prior to the incident, (3) was made 

fourteen hours after the incident, (4) would corroborate Brown’s in-court 

testimony, (5) would impeach Brown’s out-of-court statement that he had 

the gun sometime prior to the incident, (6) is corroborated by other 

statements made by Gallardo, and (7) should be admitted in the interests 

of justice. Brown’s primary argument, in support of admission of 

Gallardo’s hearsay statement, was the impeachment of Brown’s own 

recorded statements to police in order to further a defense theory that 

possession of the firearm occurred in the midst of the altercation with 

Gallardo, not before. When deciding if a statement is trustworthy we 

consider, among other things, the declarant’s knowledge. State v. Allen, 

157 Ariz. 165, 174 (1988).

¶18 The hearsay statement in question does not possess the

requisite guarantee of trustworthiness for admission under Rule 807. The 

fact that Gallardo, the victim, may have only become aware of the firearm 

at the time Brown, or his companion, called for it during the altercation 

does not negate the possibility that Brown possessed the firearm prior to 

the altercation. Gallardo was not in a position to know whether Brown

actually, or constructively, possessed the gun prior to the altercation. 

Brown, on the other hand, did have that information, and he told law 

enforcement he did possess the firearm before the incident. Gallardo’s 

statement did not have circumstantial guarantees of trustworthiness. 

Accordingly, the superior court’s ruling on the inadmissibility of 

Gallardo’s hearsay statement was not an abuse of discretion.

¶19 The evidence presented at trial was substantial and supports 

the verdict. The jury was properly comprised of at least eight members,

the court properly instructed the jury on the elements of the charge, 

Brown’s presumption of innocence, the State’s burden of proof, and the 

necessity of a unanimous verdict. The superior court received and 

considered a presentence report, Brown was given an opportunity to 

speak at sentencing, and his sentence was within the range of the 

acceptable sentence for his offense.

¶20 We have read and considered counsel’s brief and fully 

reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find 

none. All of the proceedings were conducted in compliance with the 

Arizona Rules of Criminal Procedure. So far as the record reveals, counsel 
STATE v. BROWN

Decision of the Court

7

represented Brown at all stages of the proceedings. We decline to order 

briefing and affirm Brown’s conviction and sentence.

¶21 Upon the filing of this decision, defense counsel shall inform 

Brown of the status of the appeal and of his future options. Counsel has 

no further obligations unless, upon review, counsel finds an issue 

appropriate for submission to the Arizona Supreme Court by petition for 

review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Brown shall 

have thirty days from the date of this decision to proceed, if he desires, 

with a pro per motion for reconsideration or petition for review.

CONCLUSION

¶22 For the foregoing reasons, we affirm.