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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRIAN STRAIT, Appellant.

No. 1 CA-CR 15-0507

Appeal from the Superior Court in Maricopa County

No. CR2012-153895-001 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

Counsel for Appellant
STATE 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 use of a dangerous drug and one count of possession 

of drug paraphernalia. For the reasons that follow, we affirm.

BACKGROUND1

¶2 At approximately 9:00 p.m. on October 14, 2012, Phoenix 

police officers Ennis and Mendoza were on routine patrol duty when they 

noticed 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 

their 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 Ennis tapped on the shade and said, “[H]ello.” The 

shade fell, revealing Strait in the driver’s seat. Officer Ennis also saw in 

plain view on the dashboard a glass pipe that he immediately 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 instructed Strait to place his hands on the 

vehicle 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 facts 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

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3

handcuffs, searched him, and removed two plastic baggies from his front 

pockets containing “a clear crystal-like substance.”

¶5 After taking Strait to the police 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 using

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 aggravating 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 methamphetamine, a useable amount. The 

jury found Strait guilty as charged.

¶8 Approximately nineteen 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 dangerous drug

and a concurrent, minimum term of three years’ imprisonment on the count 

of possession of drug paraphernalia.

¶9 Strait timely appealed. We have jurisdiction pursuant to 

Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(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 

incriminating 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 Miranda v. Arizona, 384 U.S. 436 (1966).
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¶11 Strait did not move to suppress his statements on this basis3

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. Cañez, 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 fundamental 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 police 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

inadmissible at trial. See Miranda, 384 U.S. at 444; State v. Zamora, 220 Ariz. 

63, 67, ¶ 9, 202 P.3d 528, 532 (App. 2009). Specifically, before conducting a 

custodial interrogation, police must advise a person “that he has a right to 

remain silent, that any statement he does make may be used as evidence 

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 subjected to custodial 

interrogation, we consider four primary factors: (1) the site of the 

questioning, (2) whether objective indicia of arrest were present, (3) the 

length 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 facts of this case, Strait was not in custody 

at the time he made the incriminating statement before his arrest. First, the 

site of the questioning was a parking lot adjacent to a public park. Nothing 

in the record suggests this was a coercive environment or one that would 

otherwise contribute to a restraint on Strait’s freedom of movement to the 

 

3 Strait moved 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 based on his use of a 

sunshade. The motion to suppress did not address Strait’s statements to 

police.
STATE v. STRAIT

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degree associated with formal arrest. See id. Second, objective indicia of 

arrest were not present. Strait was not placed in any type of physical 

restraint, neither police officer drew his weapon, and the 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 before 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, onthe-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, disabled vehicle and potentially stranded occupants. 

Under these circumstances, Strait was not subjected 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 Strait 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 suppression 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 accusatory in nature that he was deprived of his freedom and a 

Miranda warning was therefore required. See State v. Starr, 119 Ariz. 472, 

475, 581 P.2d 706, 709 (App. 1978) (recognizing “it is only when the on-thescene questioning becomes accusatory in nature 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 warning.
STATE v. STRAIT

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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. When a defendant makes inculpatory statements 

in response to custodial interrogation before being read his rights, and then

repeats the incriminating information in response to questions after being 

read his rights, the latter statements may also be inadmissible. See Missouri 

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 

only 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 primary 

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 implicate the prohibited two-step interrogation process. Further,

immediately 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 exchange for being released 

without charges, which demonstrates he was assertive and attempting to 

negotiate a deal rather than confessing in response to police intimidation. 

Therefore, 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 to 
STATE v. STRAIT

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 II. Prosecutor’s Comment on “Silence”

¶18 Strait contends the prosecutor impermissibly commented on 

his silence and the trial court’s curative instruction failed 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 Strait 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 Officer 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 “could 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, the prosecutor then asked whether Strait said “anything at any 

point” to indicate he “didn’t know it was meth,” and the officer responded 

that Strait had not. Referring to this testimony in her closing argument, the 

prosecutor asserted Strait “knew that it was methamphetamine in his 

pocket,” as evidenced 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 substance 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

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“comment” on Strait’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 considering

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 argument 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 abuse of that discretion and resulting prejudice, 

we 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 accused’s right to remain silent.” State v. Raffaele, 113 Ariz. 259, 263, 

550 P.2d 1060, 1064 (1976); accord State 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 an accused may not selectively invoke the privilege, a prosecutor 

may comment on an accused’s decision to answer some questions, 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 silent. 

To the contrary, upon receiving Miranda warnings, he immediately stated 

that he wanted to “talk,” and answered each question Officer Ennis posed 

to him. According to Officer Ennis’s testimony, throughout the interview, 

Officer Ennis and Strait consistently and exclusively referred to the 
STATE v. STRAIT

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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 labeling 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. The 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 Ennis 

testified that “speed” is a common “street 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 sentence. 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, prejudicial 

error. See Henderson, 210 Ariz. at 567-68, ¶¶ 19-20, 115 P.3d at 607-08.

¶26 At the trial on the prior felonies, the State presented certified 

copies of the sentencing minute entries for each of Strait’s six prior felony 

offenses and a certified copy of Strait’s prison “pen pack.” A forensic 

scientist employed in the latent print comparative section of the police 

crime lab testified that she compared 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 offenses. At sentencing, the court again

noted the six felonies it had found and sentenced Strait as a category three 

repetitive offender.

¶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 person “has two or more historical 

prior felony convictions.” A “[h]istorical prior felony conviction” includes 
STATE v. STRAIT

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“[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 prior 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 felonies qualified as historical 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 Ariz. 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 overcome 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 demonstrate 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.