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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLES T. GRIMES, Appellant.

No. 1 CA-CR 19-0322 

Appeal from the Superior Court in Maricopa County

No. CR2017-002784-001

The Honorable Kathleen H. Mead, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Thomas Baird

Counsel for Appellant

FILED 5-14-2020
STATE v. GRIMES

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Defendant Charles Grimes appeals his convictions and 

sentences for one count of burglary in the third degree, a class 4 felony; and 

two counts of threatening and intimidating, class 6 felonies. Grimes argues 

the prosecutor engaged in misconduct by referring to inadmissible 

evidence during the trial. For the following reasons, we affirm.

BACKGROUND

¶2 One evening a security guard working at the Mill Cue Club 

in Tempe observed a seemingly intoxicated customer (Grimes) walking out 

of the employee-only storage closet carrying a case of Red Bull. Because the 

bar did not sell bulk items to customers, the security guard confronted

Grimes, who explained that he purchased the case of Red Bull for $500. The 

guard directed Grimes to set the case down and called for additional

security to have him removed from the premises.

¶3 When Grimes heard he was being kicked out, he began 

making threats to return to the Club with a gun and “his boys,” to shoot the 

guard. A scuffle ensued between Grimes and several security guards 

outside the club. The guards subdued and restrained Grimes. Police officers

arrived and took Grimes into police custody.

¶4 While Grimes was being booked into jail, Tempe Police 

Officer Neff filled out a GMIC [Gang Member Identification Card], based 

on his observation of (1) Grimes’ clothing and colors, and (2) his gangrelated tattoos, and identified him as an affiliate of the street gang, the Folk 

Nation. Based on his training and experience, Officer Neff noted that 

Grimes’ black Oakland Raiders baseball cap was indicia of membership 

with the gang because “black is one of the predominate colors” the gang 

wears, and because the Raiders are “one of the teams that . . . a lot of 

criminal street gangs identify with.” Grimes’ red shirt and red shoes were 

indicia of affiliation with a subset of the Folk Nation called the Black 

Disciples. Besides the clothing, Officer Neff identified Grimes’ tattoo of the 
STATE v. GRIMES

Decision of the Court

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number “360,” which represents “360 degrees of knowledge” within the 

gang. 

¶5 The defense sought to preclude evidence that, in 2008, Grimes 

made threats to Phoenix Police Officer Zollars and identified himself as a 

gang member. The superior court ruled that evidence of the threats from 

2008 would not be admissible because they would be unduly prejudicial; 

but the fact that Grimes identified himself as a gang member would be 

admissible because it was more probative than prejudicial on the issue of 

gang affiliation. See Ariz. R. Evid. 403. When the prosecutor questioned 

Officer Zollars about the 2008 incident, he asked:

[The Prosecutor]: And during your contact with the 

defendant on January 31, 2008, did the defendant make 

statements towards you?

[Zollars]: Yes, he did.

[The Prosecutor]: Okay. Without getting into the substance of 

those statements, were his statements very memorable to 

you?

[Zollars]: Yes.

[The Prosecutor]: During that contact, did the defendant 

make statements in which he invoked the name Gangster 

Disciples?

[Zollars]: Yes, he did.

¶6 Shortly thereafter, a juror submitted two questions to the 

court: (1) “What was this call about involving the [d]efendant?” and (2) 

“Why was this ‘gang’ information given from the [d]efendant to the 

officer?” 

¶7 After conferring with counsel, the court responded, “We have 

a question. The first one I can’t ask for legal reasons. The second one I’m just 

going to answer why was the information given to defendant from the 

officer? And he has already answered it and said it was a spontaneous 

statement.” (Emphasis added.)

¶8 During closing arguments, defense counsel stated:

The only person that came in here and said, yeah, he claimed 

to be a gang member was someone that saw him 11 years ago 
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and didn’t even write the name of the gang in his report. But 

now comes in and says: Oh, yeah, it was Gangster Disciple. I 

remember, I remember it was Gangster Disciple and he said 

he was going back to Chicago. I didn’t put that in the report, 

but I remember. 

¶9 Then, in rebuttal closing arguments, the prosecutor

responded:

Defense counsel also mentioned the defendant’s statements 

to Officer Zollars. Now for legal reasons, we couldn’t get into 

the substance of that but what you were told by the judge and 

what Officer Zollars testified to, is it was a memorable 

statement. He remembers the defendant invoking Gangster 

Disciples and that he was going to return to Chicago. 

(Emphasis added.) 

Grimes did not object to the prosecutor’s argument.

¶10 The jury convicted Grimes of one count of burglary in the 

third degree, a class 4 felony; and two counts of threatening and 

intimidating, class 6 felonies; and found that he committed the offenses 

while on community supervision release. Grimes timely appealed.

DISCUSSION

¶11 Grimes asserts the prosecutor engaged in misconduct by 

referring to excluded evidence in his rebuttal closing argument. Because 

Grimes did not object on this basis at trial, we review only for fundamental, 

prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19–20 (2005). 

Grimes contends it was improper for the prosecutor to tell the jury about 

excluded evidence “to make its case more persuasive in closing 

arguments.” Grimes argues this statement warrants the reversal of his 

conviction.

¶12 Under fundamental-error review, a defendant must first 

prove that misconduct occurred. State v. Edmisten, 220 Ariz. 517, 524, ¶ 23, 

(App. 2009). Prosecutorial misconduct is not “merely the result of legal 

error, negligence, mistake or insignificant impropriety.” Pool v. Super. Crt., 

139 Ariz. 98, 108 (1984). Rather, viewed in its entirety, it is “intentional 

conduct” that the prosecutor “knows to be improper and prejudicial and 

which he pursues for any improper purpose.” Id. at 108–09. Prosecutors 

have “wide latitude” in closing argument. State v. Jones, 197 Ariz. 290, 305, 

¶ 37 (2000).
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¶13 Grimes has failed to prove that the statement made by the 

prosecutor amounted to misconduct. Here, the prosecutor’s statement―

that “for legal reasons, [h]e couldn’t get into the substance” of Grimes’ 

statements to Officer Zollars―parroted the exact language the superior 

court used when answering the relevant juror question. (Emphasis added.)

The statement was made in rebuttal to defense counsel’s remarks in closing 

regarding the officer’s testimony that he recalled Grimes self-identifying as 

a gang member 11 years prior. The prosecutor’s comment was tethered to 

the court’s response to the juror question and did not express or imply 

meaning to the precluded statement beyond the scope of what had already 

been admitted. 

¶14 Accordingly, Grimes has not shown misconduct. See

Edmisten, 220 Ariz. at 524, ¶ 23. To the contrary, the prosecutor omitted 

reference to any threat, which the court deemed inadmissible as prejudicial.

Instead, the prosecutor focused on the admissible purpose of that statement 

to Officer Zollars―that Grimes previously identified himself as a gang 

member.

CONCLUSION

¶15 For the foregoing reasons, we affirm.