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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

BRIAN STRAIT
, Appellant

.
No. 1 CA

- CR 15

- 0507

Appeal from the Superior Court in Maricopa County

No. CR 2012

- 153895

- 001 DT The Honorable Dean M. Fink
, Judge

AFFIRMED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Robert A. Walsh Counsel for Appellee

Maricopa County Public Defender’s Office
, Phoenix By Kathryn L. Petroff C ounsel for AppellantSTATE v. STRAIT Decision of the Court

2 MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.

W I N T H R O P , Judge:

¶1 Brian Strait appeals his convictions and sentences for one count of possession or us e of a d angerous drug and one count of possession of drug paraphernalia. For the reasons that follow, we affirm

.
BACKGROUND 1

¶2 At approximately 9:00 p.m. on October 14, 2012, Phoenix police o fficers Ennis and Mendoza were on routine patrol duty when they

no ticed an isolated pickup truck, with its hood up, parked in an unlit corner of a parking lot known for a high level of drug activity. Officer Ennis parked directly behind the seemingly disabled truck
, and the officers exited the ir patrol car , with Officer Ennis approaching the truck on the driver’s side and Officer Mendoza approaching on the passenger’s side. As he approached, Officer Ennis noticed the truck’s windows were down, but the window shades inside the vehicle were “propped up.” Officer Ennis also heard voices and observed a “glow” emanating from inside the vehicle

. ¶3 Officer Enn is tapped on the shade and said, “[H]ello. ” T he shade fell, reveal ing Strait in the driver’s seat. Officer Ennis also saw in plain view on the dashboard a glass p ipe that he immediatel y recognized as a “meth pipe ”

– in other words, a pipe commonly used for smoking methamphetamine.

¶4 Officer Ennis asked Strait to exit the truck , and Strait complied. Next, Officer Ennis i nstructed Strait to place his hands on the vehicl e and inquired whether “ he had anything on him that he shouldn’t have.” Strait responded, “Like what?” Officer Ennis replied, “Like drugs or guns, something like that.” Strait then admitted
, “Yeah

. I have speed in my pocket

. ” Officer Ennis understood the term “speed” as “a common street word used for methamphetamine.” Officer Ennis placed Strait in

1 We view the f acts in the light most favorable to sustaining the verdicts. State v. Payne , 233 Ariz. 484, 509, ¶ 93 , 314 P.3d 1239, 1264 (2013).STATE v. STRAIT Decision of the Court

3 handcuffs
, search ed him, an d removed two plastic baggies from his front pockets containi ng “ a clear crystal

- like substance. ”

¶5 After taki ng Strait to the pol ice station, Officer Ennis advised Strait of his rights pursuant to Miranda
, 2 and Strait agreed to cooperate

. When asked how he acquired the methamphetamine, Strait answered that he received it in exchange for a favor. He also disclosed he had been usi ng methamphetamine since 1984.

¶6 The State charged Strait by indictment with one count of possession or use of a dangerous drug and one count of possession of drug paraphernalia. The State also alleged the existence of numerous historical prior felonies and a ggravating circumstances.

¶7 Strait was released on bond
, but failed to appear at his next court date. After a bench warrant issued, Strait was tried in absentia

. At trial, a forensic scientist testified that the plastic baggies seized from Strait contained 570 milligrams of meth amphetamine, a useable amount. The jury found Str ait guilty as charged.

¶8 Approximately ninet een months later, after Strait was taken into custody, the court held a trial on his prior felony convictions and found that he had six. The court sentenced Strait to a mitigated term of seven years’ imprisonment on the count of possession or use of a d angerous drug and a concurrent , minimum term of three years’ imprisonment on the count of po ssession of drug paraphernalia.

¶9 St rait timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12

- 12 0.21(A)(1) (2016 ), 13

- 4031 (2010) , and 13

- 4033(A)(1) and (4) (2010).

ANALYSIS

I. Admission of Incriminating Statements

¶10 Strait contends the trial court erred by admitting evidence of i ncriminating statements he made both before and after his arrest

. Specifically, he argues that Officer Ennis failed to provide Miranda warnings and
, therefore
, obtained the incriminating statements in violation of his constitutional rights.

2 See M iranda v. Arizona , 384 U.S. 436 (1966).STATE v. STRAIT Decision of the Court

4 ¶11 Strait did not move to suppress his statements on this basis 3 or object at trial. Therefore, he has not preserved the issue and has forfeited the right to seek relief for all but fundamental , prejudicial error. See State v. Henderson , 210 Ariz. 561, 567

- 68 , ¶¶ 19

- 20 , 115 P.3d 601, 607

- 08 (2005); see also State v. Ca ñ ez , 202 Ariz. 133
, 155, ¶ 70, 42 P.3d 564, 586 (2002) (“[W]e will review for fundamental error even absent a pretrial motion to suppress.”), supplemented by 205 Ariz. 620, 74 P.3d 932 (2003), and abrogated on other grounds by State v. Valenzuela
, 239 Ariz. 299 , 302

- 03 n.1, ¶ 11, 371 P.3d 627, 630

- 31 n.1 (2016); State v. Jones , 185 Ariz. 471, 482 , 917 P.2d 200, 211 (1996) (reviewing the admission of evidence for fu ndamental error despite the failure to raise arguments in a motion to suppress)
, abrogation on other grounds recognized by McKinney v. Ryan , 813 F.3d 798, 816

- 17 (9th Cir. 2015).

¶12 Although p olice officers are free to ask questions of a person who is not in custody without providing Miranda warnings , once a person is in custody, the police must advise the individual of certain constitutional rights ; otherwise, statements made in response to questioning will be in admissible at trial

. See M iranda , 384 U.S. at 444; State v. Zamora , 2 20 Ariz. 63, 67, ¶ 9 , 202 P.3d 528, 532 (App. 2009 ). Specifically, before conducting a custodial int errogation, police must advise a person “ that he has a right to remain silent, that any statement he does make may be used as evide nce against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda , 384 U.S. at 444.

¶13 In evaluating whether a person was subject ed to custodi al interrogation, we consider four primary factors: (1) the site of t he questioning, (2) whether objectiv e indicia of arrest were present, (3) the lengt h and form of the interrogation, and (4) the method used to summon the individual. State v. Cruz

- Mata , 138 Ariz. 370, 373 , 674 P.2d 1368, 1371 (1983).

¶14 As applied to the fac ts of this case , Strait was not in custody at the time he made the incriminating statement before his arrest. F irst, the site of the questioning was a parking lot adjacent to a public park. Nothing in the record suggests this was a coercive environment o r one that would otherwise contribute to a restraint on Strait’s freedom of movement to the

3 Strait mo ved to suppress the evidence obtained from the search

– namely, the glass pipe and methamphetamine

– arguing that he had a reasonable expectation of privacy in his vehicle b ased on his use of a sunshade. The motion to suppress did not address Strait’s statements to police.STATE v. STRAIT Decision of the Court

5 degree associated with formal arrest. See id

. Second, objective indicia of
arrest w ere not present. Strait was not placed in any type of physical restraint, neither police officer drew his weapon , and t he record is devoid of any other evidence of physical intimidation. Third, the length of the “questioning” was a mere moment and consisted of a single question frequently employed to protect officers’ safety be fore a pat

- down search ; namely, whether Strait had any contraband on his person. See State v. Morse , 127 Ariz. 25, 28 , 617 P.2d 1141, 1144 (1980) (excluding general, on

the

- scene questioning during a criminal investigation from the definition of custodial interrogation). Fourth, Officers Ennis and Mendoza did not summon Strait, but came across him as they conducted a welfare check on a seemingly isolated, disable d vehicle and potentially stranded occupants. Under these circumstances, Strait was not subje cted to custodial interrogation when Officer Ennis inquired about possible contraband ; thus
, Strait ’ s response was admissible at trial

. 4

¶15 Next, Strait contends that the incriminating statements he made at the police station were inadmissible because Officer Ennis failed to properly advise him of his constitutional rights before questioning him

. This claim, however, is not substantiated by the record. At trial, Officer Ennis testified he could not recite from memory the Miranda warnings , and when asked by the prosecutor to summarize for the jury the protections outlined in those warnings , Officer Ennis failed to include the warning that anything a suspect says may be used against him

. He also testified
, however, that he read the Miranda warnings to Stra it before questioning him at the police station and further explained that he reads the Miranda warnings “from a Miranda rights card every time.” Strait did not present

4 Citing Officer Ennis’s testimony at the suppressi on hearing, in which he testified he asked Strait “ if he had anything else he shouldn’t have,” rather than Officer Ennis’s trial testimony that he asked Strait “ if he had anything on him that he shouldn’t have,” Strait argues the officer’s question

was so ac cusatory in nature that he was deprived of his freedom and a Miranda warning was therefore required. S ee S tate v. Starr , 119 Ariz. 472, 475 , 581 P.2d 706, 709 (App. 1978) ( recognizing “it is only when the on

- the

scene questioning becomes accusatory in n ature and when a reasonable man would feel he was deprived of his freedom of action in a significant way, that the Miranda warnings must be given” (italics added) ). Even assuming Officer Ennis’s question to Strait was phrased in the manner testified to at the suppression hearing, in light of the limited nature of the “questioning” and the other Cruz

- Mata factors, the record does not support Strait’s claim that the exchange was sufficiently accusatory as to deprive him of his freedom and mandate a Miranda w arning.STATE v. STRAIT Decision of the Court

6 any contravening evidence. Therefore, the record reflects Strait was properly advised of his Miranda rights before he made incriminating statements during the police interrogation.

¶16 Alternatively, Strait contends that Officer Ennis engaged in an improper two

- step interrogation process, rendering the post

- warning statements inadmissible. Wh en a defendant makes inculpatory statements in response to custodial interrogation before being read his rights
, and then repeat s the incriminating information in response to questions after being read his rights, the latter statements may also be inadmissible. See M issouri v. Seibert , 542 U.S. 600, 616

- 17 (2004); Zamora , 220 Ariz. at 69, ¶ 15 , 202 P.3d at 534

. If “there is evidence the pre

- Miranda warning statements were coerced or involuntary, then the post

- Miranda statements are admissible

o nly if ‘ the taint dissipated through the passing of time or a change in circumstances. ’ ” Zamora , 220 Ariz. at 69, ¶ 15 , 202 P.3d at 534 ( citations omitted). Absent coercion, however, an incriminating statement made before the issuance of Miranda warnings “does not disable a person from later waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id

. (citing Oregon v. Elstad , 470 U.S. 298, 318 (1985) )

. In evaluating the admissibility of post

- warning statements, the pri mary concern is whether the suspect who has made “involuntary inculpatory statements” may , post

- Miranda warnings, feel compelled to waive his right to remain silent “ because he ha [ s ] already spoken to the police.” Id

. ¶17 Applying these principles here, we conclude no initial Miranda violation occurred because Strait was not in custody when Officer Ennis asked him the single question about contraband outside his vehicle, and therefore no second Miranda violation at the police station occurred that would i mplicate the prohibited two

- step interrogation process. F urther
, imm ediately upon being advised of his Miranda rights, Strait informed Officer Ennis that he wanted to “ talk.” Indeed, Strait volunteered to provide information regarding other crimes in exc hange for being released without charges , which demonstrates he was assertive and attempting to negotiate a deal rather than confessing in response to police intimidation

. T herefore , Strait’s post

- Miranda statements were admissible at trial

. See Elstad
, 470 U.S. at 305 (“Absent some officially coerced self

- accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.” (citation omitted) ). 5

5 Even assuming the incriminating statements were elicited in violation of Miranda and therefore inadmissible at trial, Strait has failed toSTATE v. STRAIT Decision of the Court

7 II. Prosecutor’s Comment on “Silence”

¶18 Strait contends the prosecutor imp ermissibly commented on his silence and the trial court’s curative instruction faile d to ameliorate the prejudice.

¶19 During direct examination
, Officer Ennis testified that he asked Strait “where he had purchased the meth that he had in his pocket
, ” and Stra it responded “ that he did a favor for somebody” who “ gave him the meth.” Officer Ennis also asked Strait how long he had been using

“ meth
, ” and Strait answered that he had “been using meth since 1984.” On

cross

- examination, defense counsel elicited Offic er Ennis’ s agreement that, in the parking lot , Strait referred to “speed” and did not “use the word methamphetamine

. ” Officer Ennis also conceded that the meaning of the word “speed” is not limited to methamphetamine and “co uld include” various “uppers.” On redirect, the prosecutor asked the officer whether he used the word “ speed ” or “meth” when questioning Strait at the police station , and the officer reaffirmed that he used the term “meth.” As a follow

- up, t he prosecutor then asked whether Strait said “ anything at any point” to indicate he “didn’t know it was meth
, ” and the officer responded that Str ait had not. Referring to this testimony in her closing argument , the prosecutor asserted Strait “knew that it was methamphetamine in his pocket
, ” as evid enced by his failure to correct Officer Ennis when he consistently used the term “meth” during interrogation.

¶20 Immediately following the State’s closing argument, defense counsel requested a curative instruction to address the prosecutor’s

demonstrate any prejudice. Strait’s trial defense was that he lacked knowledge the substance found on his person was methamphetamine, as ostensibly evidenced by his reference to it as “speed,” which defense counsel argued could refer to various “uppers.” Other than this reference to “speed,” there was no evidence that Strait lacked actual knowledge of the sub stance he carried or the pipe in his immediate presence. That is, the jury heard no evidence that Strait was either misinformed about the substance’s nature or that someone else had placed the drugs and pipe in his pockets and truck. Absent such evidence, Strait’s actual physical possession of the methamphetamine and pipe was sufficient to satisfy the

mens rea requirement, and no reasonable jury could have found otherwise. See State v. Teagle , 217 Ariz. 17, 27, ¶ 41 , 170 P.3d 266, 276 (App. 2007) (explaining the knowledge requirement may be proven either through “actual physical possession or constructive possession with actual knowledge of the presence of the narcotic substance” (citation omitted) ).STATE v. STRAIT Decision of the Court

8 “comment” on Stra it’s “silence” and her argument that Strait knew “that speed means meth.” The prosecutor countered that she was not commenting on Strait’s silence, but was instead referring to his voluntary
responses in a police interview. After hearing from the parties , the trial court stated it would provide a curative instruction reminding the jurors that a defendant need not testify and forbidding them from consider ing Strait’s absence from trial in reaching their verdicts. The court , however, denied defense counsel ’s request for a curative instruction that no evidence showed Strait knew “ that speed means meth,” concluding that was an inference the jury could reasonably draw from the evidence. The court then admonished the jury as follows:

Okay, ladies and gentlemen, I want to remind you that you’re not to consider the defendant’s absence from this trial for any reason whatsoever in your deliberations, and also that you’re not to consider any comments that have been made regarding defendant’s right to remain silent and not make any statements, and also argume nt of counsel is not evidence.

¶21 We review the denial of a requested jury instruction for an abuse of discretion. State v. Larin , 233 Ariz. 202, 206, ¶ 6
, 310 P.3d 990, 994 (App. 2013). Absent a clear abu se of that discretion and resulting prejudice,

w e will not reverse. Id

. ¶22 A defendant who voluntarily speaks after receiving Miranda warnings has not remained silent

. Anderson v. Charles , 447 U.S. 404, 408 (1980). Accordingly, a prosecutor may comment on statements a Mirandized defendant has made to arresting officers without “commenting on the a ccused’s right to remain silent .” State v. Raffaele , 113 Ariz. 259, 263
, 550 P.2d 1060, 1064 (1976) ; accord S tate v. Henry , 176 Ariz. 569, 580 , 863 P.2d 861, 872 (1993) (“When a defendant is not induced into silence by Miranda warnings, [] or waives his rights by answering questions after such warnings are given, due process is not implicated.”)

. As a corollary, because a n accused may not s electively invoke the privilege, a prosecutor may comment on an accused’s decision to answer some question s, but refusal to answer other questions. State v. Corrales , 161 Ariz. 171, 172 , 777 P.2d 234, 235 (App. 1989).

¶23 In this case, Strait did not exercise his right to remain s ilent. To the contrary, upon receiving Mirand a warnings, he immediately stated that he wanted to “ talk
, ” and answered each question Officer Ennis posed to him. According to Officer Ennis’s testimony, t hroughout the interview, Officer Ennis and Strait con sistently and exclusively referred to theSTATE v. STRAIT Decision of the Court

9 substance seized from Strait as “meth.” Strait also disclosed his use of “meth” for thirty years. Given these voluntary responses, the prosecutor permissibly argued that Strait’s failure to challenge the repeated labelin g of the seized drug as “meth ” demonstrated his knowledge of the substance ’s
nature

. ¶24 Moreover , even assuming arguendo the prosecutor’s comments were improper, any error would be harmless. T he State introduced other overwhelming evidence that Strait knew the seized substance was methamphetamine: (1) it was found on his person, (2) a methamphetamine pipe was found in Strait’s immediate presence, (3) Strait admitted he used methamphetamine since 1984, and (4) Officer E nnis testified that “speed” is a common “st reet word ” for methamphetamine. Therefore, the trial court’s denial of Strait’s requested jury instruction, if error, was harmless

.
III. Use of Priors to Enhance Sentence

¶25 Strait argues his sentence was illegal because after the trial
court found Strait had six prior felony convictions
, the court did not specify which two it was using to enhance his sentenc e. Additionally, Strait argues that the prior convictions could not be used for enhancement purposes because the State failed to prove he was represented by counsel or had waived his right to counsel at those proceedings. Strait did not raise these objections at trial. We therefore review only for fundamental, prejudicia l

error. See H enderson , 210 Ariz. at 567

- 68 , ¶¶ 19

- 20 , 115 P.3d at 607

- 08

. ¶26 At the trial on the prior felonie s, the State presented certified copies of the sentencing minute entries for each of Strait’s six prior felony offense s and a certified copy of Str ait’s prison “pen pack

. ” A forensic scientist employed in the latent print comparative section of the police crime lab testified that she comp a red Strait’s right thumbprint to the right thumbprint affixed to the pen pack and determined the two were a match. After taking the matter under advisement, the trial court found Strait had been convicted of six prior felony offense s

. At sentencing, the court again noted the six felonies it had found and sentenced Strait as a categ ory three repetitive offende r.
¶27 Strait contends the trial court committed fundamental error by failing to identify which felonies it used to enhance his sentence. Pursuant to A.R.S. § 13

- 703(C) (Supp. 2015) , a person shall be sentenced as a category three repetitive offender if the p erson “has two or more historical prior felony convictions.” A “ [ h ] istorical prior felony conviction” includesSTATE v. STRAIT Decision of the Court

10 “[a]ny felony conviction that is a third or more prior felony conviction.” A.R.S. § 13

- 105(22)(d) (Supp. 2015)

. By finding Strait had six prio r felony convictions, the trial court also implicitly found that four of those convictions qualified as historical prior felony convictions under A.R.S. § 13

- 105(22)(d) . Thus, even assuming the court erred by failing to formally designate which prior felo nies qualified as hist orical prior felony convictions for sentencing purposes, such error was neither fundamental nor prejudicial.

¶28 Next, Strait asserts the State failed to prove his prior convictions were constitutionally valid. In State v. Reagan , 103 Ar iz. 287, 289 , 440 P.2d 907, 909 (1968), our supreme court held that a prior conviction could not be used to enhance a defendant’s sentence unless the record of the prior conviction affirmatively showed the defendant either was represented by counsel or had validly waived his right to counsel. Approximately thirty

- three years later, our supreme court overruled Reagan and held “ that a rebuttable presumption of regularity attaches to prior convictions used to enhance a sentence
, ” such that the State need not prove the defendant was represented by counsel or waived counsel unless “the defendant presents some credible evidence to over come the presumption. ” State v. McCann , 200 Ariz. 27, 28, 31, ¶ ¶ 1, 15 , 21 P.3d 845, 846, 849 (2001).

¶29 In this case, Strait failed to present any evidence to rebut the presumption of regularity. The record also contains the six sentencing minute entry exhibits that reflect Strait was represented by counsel in each of his prior cases. Therefore, Strait has failed to demo nstrate any error, much less fundamental error, on this basis. For these reasons, the trial court did not err by enhancing Strait’s sentences.

CONCLUSION

¶30 Strait’s convictions and sentences are affirmed.