NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS 

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JESSICA ANNE CRAFT, Appellant.

No. 1 CA-CR 12-0789

Appeal from the Superior Court in Maricopa County

No. CR2012-130521-001 SE

The Honorable Joseph C. Welty, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Craig W. Soland

Counsel for Appellee

Maricopa County Legal Advocate’s Office, Phoenix

By Frances J. Gray

Counsel for Appellant
STATE v. CRAFT

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in 

which Judge Peter B. Swann and Judge Jon W. Thompson joined.

G O U L D, Judge:

¶1 Jessica Anne Craft appeals her convictions for arson of a 

structure or property, attempted fraudulent schemes and artifices and 

possession of drug paraphernalia. Craft argues the evidence was 

insufficient to support her convictions for arson and possession of drug 

paraphernalia as well as the jury’s determination that the arson was a 

dangerous offense; the trial court failed to properly instruct the jury 

regarding arson and possession of drug paraphernalia; the trial court 

erred when it admitted various evidence; and that the prosecutor engaged 

in numerous instances of misconduct. For the reasons below, we affirm 

Craft’s convictions.

I. Background

¶2 The State charged Craft with arson of a structure or property

and attempted fraudulent schemes and artifices after Craft and/or an 

accomplice burned Craft’s car and Craft filed a claim for the loss with her 

insurance company. The State further charged Craft with possession of 

drug paraphernalia after a search incident to her arrest revealed a pipe of 

a type commonly used to smoke methamphetamine. We discuss 

additional details of the offenses below. A jury found Craft guilty as 

charged and the trial court sentenced her to an aggregate term of four 

years’ imprisonment. Craft now appeals. We have jurisdiction pursuant 

to Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes 

(“A.R.S.”) sections 12-120.21(A) (2003), 13-4031 (2010) and 13-4033 (2010).

II. Sufficiency of the Evidence to Support the Conviction for Arson

¶3 Craft argues the evidence was insufficient to support her 

conviction for arson of a structure or property. As charged in this case, a 

person commits arson of a structure or property if the person knowingly 

and unlawfully damages a structure or property by knowingly causing a 

fire or explosion. A.R.S. § 13-1703(A) (2012). The statutory definition of

“structure” includes vehicles. A.R.S. § 13-1701(4) (2012). Craft does not 
STATE v. CRAFT

Decision of the Court

3

contest the sufficiency of the evidence that she and/or an accomplice

knowingly damaged her car by knowingly causing a fire or explosion. 

¶4 Craft argues, however, that evidence was insufficient to 

prove she did so “unlawfully.” Craft contends that burning one’s own car 

is not always “unlawful,” and that “to be unlawful, the circumstance of 

the fire must violate a criminal statute.” Craft argues that because she 

burned her own car in the middle of the night in the middle of a large, 

empty paved lot in an isolated area away from all structures, people and

flammable material, she did not violate any criminal statute and the fire 

was, therefore, not “unlawful.” She further argues her subsequent 

attempt to commit fraud did not retroactively convert the fire into 

“unlawful” arson.

¶5 “Reversible error based on insufficiency of the evidence 

occurs only where there is a complete absence of probative facts to 

support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 

610, 624 (1996) (citation omitted). “To set aside a jury verdict for 

insufficient evidence, it must clearly appear that under no hypothesis 

whatever is there sufficient evidence to support the conclusion reached by 

the jury.” State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987)

(citation omitted).

¶6 “We construe the evidence in the light most favorable to 

sustaining the verdict, and resolve all reasonable inferences against the 

defendant.” State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 

(1998) (citation omitted). In our review of the record, we resolve any 

conflict in the evidence in favor of sustaining the verdict. State v. Guerra, 

161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We do not weigh the 

evidence, however. That is the function of the jury. See id.

¶7 The evidence shows Craft and/or an accomplice destroyed 

Craft’s car by burning it in the middle of an empty parking lot at Saguaro 

Lake shortly before 1:30 a.m. on the date of the incident. Craft contacted 

the sheriff’s department and reported the vehicle was stolen while she 

was fishing at a nearby river with friends. She subsequently made a claim 

for the loss with her insurance company, again claiming the vehicle was

stolen. Before the incident, however, Craft told a friend more than once it 

would be “a shame” if something happened to her car. She also discussed 

“torching” her car for insurance with another friend. After the incident, 

Craft admitted to friends she and her boyfriend burned her car and that

she did so to get money from her insurance company. 
STATE v. CRAFT

Decision of the Court

4

¶8 This evidence was more than sufficient to permit the jury to 

find beyond a reasonable doubt that Craft and/or an accomplice burned 

her car “unlawfully.” Craft burned her car “pursuant to a scheme or 

artifice to defraud” her insurance company. See A.R.S. § 13-2310(A) (2012)

(defining felony offense of fraudulent schemes and artifices). “A ‘scheme 

or artifice to defraud’ consists of forming a plan or devising some trick to 

perpetrate a fraud upon another. A scheme to defraud thus implies a 

plan, and numerous acts may be committed in furtherance of that plan.” 

State v. Suarez, 137 Ariz. 368, 373, 670 P.2d 1192, 1197 (App. 1983) (internal 

citations omitted). “[A]n ‘artifice’ is an ‘evil or artful strategy.’” State v. 

Haas, 138 Ariz. 413, 423, 675 P.2d 673, 683 (1983). Thus, Craft formed a 

plan to obtain money by defrauding her insurance company. As part of 

that plan, she attempted to convince the insurance company that her car 

was a total loss due solely to the actions of other persons and that the loss 

was covered by her policy. Burning her car was among the first acts in a 

series of acts Craft committed as part of that plan. Therefore, a reasonable 

jury could find beyond a reasonable doubt that Craft burned her own car 

“unlawfully.”

III. The Failure to Define “Unlawfully”

¶9 In a related issue, Craft also argues the trial court erred 

when it failed to define “unlawfully” within the jury instructions 

regarding arson. Craft, however, raised no objection to the omission of 

the instruction. The failure to object to the omission of a jury instruction 

waives the right to raise the issue on appeal absent fundamental error. See 

State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). “To establish 

fundamental error, [a defendant] must show that the error complained of 

goes to the foundation of his case, takes away a right that is essential to his 

defense, and is of such magnitude that he could not have received a fair 

trial.” State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d 601, 608 (2005). 

Even once a defendant has established fundamental error, the defendant 

must still demonstrate the error was prejudicial. Id. at ¶ 26. 

¶10 The purpose of jury instructions is to inform the jury of the 

applicable law. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 

1996). A set of instructions need not be faultless. The instructions, 

however, must give the jury an understanding of the issues and must not 

mislead the jury. See id. It is only when the instructions, taken as a whole, 

are such that it is reasonable to suppose the instructions would mislead 

the jury that a case should be reversed for error in the instructions. State v. 

Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986). “Where the law is 
STATE v. CRAFT

Decision of the Court

5

adequately covered by the instructions as a whole, no reversible error has 

occurred.” State v. Doerr, 193 Ariz. 56, 65, ¶ 35, 969 P.2d 1168, 1177 (1998). 

¶11 We find no error, fundamental or otherwise. The Arizona 

Criminal Code defines “unlawful” as “contrary to law or, where the 

context so requires, not permitted by law.” A.R.S. § 13-105(40) (2012). 

Despite the statutory definition, this is “unlawful” in its ordinary sense 

and as commonly understood, not a legal term of art. See Webster’s Third 

New International Dictionary 2502 (1969) (defining unlawful. 1. “not 

lawful: contrary to or prohibited by law: not authorized or justified by 

law: not permitted or warranted”; 2. “acting contrary to or in defiance of 

the law: disobeying or disregarding the law”); Black’s Law Dictionary 

1377 (Fifth ed. 1979) (“Unlawful. That which is contrary to, prohibited, or 

unauthorized by law. That which is not lawful. The acting contrary to, or 

in defiance of the law; disobeying or disregarding the law.”).1 “Where 

terms used in an instruction have no technical meaning peculiar to the law 

in the case but are used in their ordinary sense and commonly understood 

by those familiar with the English language, the court need not define 

these terms.” State v. Barnett, 142 Ariz. 592, 594, 691 P.2d 683, 685 (1984); 

See also State v. Valles, 162 Ariz. 1, 6, 780 P.2d 1049, 1054 (1989). 

¶12 In State v. Eastlack, our supreme court held it is not necessary 

to define “unlawfully” in an arson case where the term is used and 

understood in its ordinary sense and as commonly understood. State v. 

Eastlack, 180 Ariz. 243, 259-60, 883 P.2d 999, 1015-16 (1994). While Craft

relies on State v. Newfield, 161 Ariz. 470, 473, 778 P.2d 1366, 1369 (App. 

1989), for the proposition that it is fundamental error to fail to define 

“unlawfully” in an arson case, the supreme court in Eastlack distinguished 

Newfield, noting there was evidence in Newfield that would support a 

finding that the defendant was doing nothing more than burning his own 

car. Eastlack, 180 Ariz. at 259, 883 P.2d at 1015. We also note that the only 

offense charged in Newfield was arson, while in both Eastlack and the 

instant case there were additional charges that placed the counts of arson 

in context as “unlawful” acts. In Eastlack, the defendant set fire to a house 

he hid in and stole property from after he escaped from prison. Id. at 248, 

883 P.2d at 1004. As explained above, in the instant case Craft burned her 

car as part of a plan to defraud her insurance company. 

 

1 Despite Craft’s assertions to the contrary, there is nothing in the 

statutory definition of “unlawful” that requires an “unlawful” act to also 

be a “criminal” act. 
STATE v. CRAFT

Decision of the Court

6

IV. Sufficiency of the Evidence the Arson Was a Dangerous Offense

¶13 The jury found the arson was a dangerous offense. This 

rendered Craft ineligible for probation. See A.R.S. § 13-704(G) (2012). As 

charged in this case, a “dangerous offense” is “an offense involving the 

discharge, use or threatening exhibition of a deadly weapon or dangerous 

instrument.” A.R.S. § 13-105(13) (2012). A “deadly weapon” is “anything 

designed for lethal use, including a firearm.” A.R.S. § 13-105(15). A 

“dangerous instrument” is “anything that under the circumstances in 

which it is used, attempted to be used or threatened to be used is readily 

capable of causing death or serious physical injury.” A.R.S. § 13-105(12). 

Fire can be a “dangerous instrument.” See State v. Gatliff, 209 Ariz. 362, 

365, ¶¶ 14-15, 102 P.3d 981, 984 (App. 2004). 

¶14 Craft argues the evidence was insufficient to support the 

jury’s determination that the arson was a dangerous offense. Craft argues 

that while the circumstances of the fire show it “could” have been 

dangerous and was “capable” of causing death or serious physical injury, 

the evidence failed to show it was “readily capable” of causing death or 

serious physical injury. Again, “[r]eversible error based on insufficiency 

of the evidence occurs only where there is a complete absence of probative 

facts to support the conviction.” Soto-Fong, 187 Ariz. at 200, 928 P.2d at 

624. “To set aside a jury verdict for insufficient evidence, it must clearly 

appear that under no hypothesis whatever is there sufficient evidence to 

support the conclusion reached by the jury.” Arredondo, 155 Ariz. at 316, 

746 P.2d at 486. 

¶15 Viewed in the light most favorable to sustaining the verdict 

and resolving all reasonable inferences against Craft, the evidence was 

sufficient to permit the jury to find the arson was a dangerous offense. 

We have recognized, “[a] fire poses unique hazards. As a means of 

destruction, it is difficult to control and may quickly spread to nearby 

buildings or fields. Firemen and policemen are endangered. Neighbors 

and passersby, fearing that a structure is occupied, may attempt 

hazardous rescue efforts.” Newfield, 161 Ariz. at 473, 778 P.2d at 1369

(quoting State v. Durant, 674 P.2d 638, 641 (Utah 1983)). Further, in this 

case two passersby found Craft’s car fully engulfed in flames. They

approached the burning car to determine if anyone was inside the car or 

otherwise injured. The car burned until the local fire department arrived 

nearly an hour later and extinguished the fire. The passersby testified it 

was “very windy” while they waited for the fire department to arrive and 

they were concerned the fire would spread to the area surrounding the 

parking lot. 
STATE v. CRAFT

Decision of the Court

7

¶16 Further, a fire investigator testified not only that fire is 

readily capable of causing death or serious physical injury, but that there 

is “never” an arson situation where fire is not readily capable of causing 

death or serious physical injury to the person starting the fire, firefighters 

and other first responders and/or bystanders. The investigator testified 

this is especially true in a situation such as this where the arsonist used 

accelerants to start the fire and because of the unique dangers a vehicle 

fire presents due to the risk of an exploding fuel tank. 

¶17 Whether a fire is a “dangerous instrument” as defined in 

A.R.S. § 13-105(12) is a question for the jury. State v. Wilson, 135 Ariz. 395, 

661 P.2d 659 (App. 1983). The above evidence was more than sufficient to 

permit the jury to find the arson was a dangerous offense pursuant to 

A.R.S. § 13-105(13).

V. The Use of Impeachment Evidence as Substantive Evidence

¶18 Craft argues the trial court erred when it allowed the State to 

use prior inconsistent statements of a friend of Craft’s not only to impeach 

the friend, but as substantive evidence of Craft’s possession of drug 

paraphernalia. While Craft objected to the admission of this evidence 

below, Craft never objected to the evidence on this ground. Therefore, we 

review for fundamental error.

A. Background

¶19 The State charged Craft with possession of drug 

paraphernalia based on her possession of “a pipe, drug paraphernalia, to 

inject, ingest, inhale or otherwise introduce into the human body 

Methamphetamine, a dangerous drug,” in violation of A.R.S. § 13-3415(A) 

(2012) (possession of drug paraphernalia). When asked what evidence the 

State had to support the paraphernalia charge, the State informed the 

court that officers found a pipe in Craft’s purse at the time of her arrest

and that it intended to introduce other evidence that Craft used drugs. 

That evidence would consist of testimony from a friend of Craft’s who 

allowed Craft to live with her. The State explained that the friend kicked 

Craft out of her home three days before the fire because of Craft’s drug 

use. The State argued this would show the paraphernalia was “actually”

paraphernalia and not something else. 

¶20 During her trial testimony, the friend admitted she kicked 

Craft and Craft’s boyfriend out of her home the day before Mother’s Day, 

but she denied it was because they used methamphetamine. She claimed 

she kicked them out because she suspected they were using 
STATE v. CRAFT

Decision of the Court

8

methamphetamine, among other unidentified reasons. The friend then 

denied she ever told any law enforcement officer she kicked Craft out of 

her home for using methamphetamine. The next day, a detective who 

interviewed the friend testified she told him she kicked Craft and her 

boyfriend out of her home because they used methamphetamine. Craft’s 

sole objection was hearsay, which the court overruled. 

B. Discussion

¶21 Pursuant to State v. Allred, 134 Ariz. 274, 655 P.2d 1326 

(1982), Craft argues the trial court erred when it allowed the State to use 

the friend’s prior inconsistent statements to not only impeach the friend, 

but as substantive evidence Craft possessed the pipe with the intent to 

ingest methamphetamine. Our supreme court continues to recognize that 

it is permissible to admit prior inconsistent statements to both impeach 

and as substantive evidence of guilt. State v. Skinner, 110 Ariz. 135, 142, 

515 P.2d 880, 887 (1973); State v. Hernandez, 232 Ariz. 313, 323, ¶ 47, 305 

P.3d 378, 388 (2013). In Allred, however, the court acknowledged there can 

be a danger of unfair prejudice when impeachment evidence is used for 

substantive purposes. Allred, 134 Ariz. at 277, 655 P.2d at 1329. Before 

allowing the use of impeachment evidence for substantive purposes, a 

trial court should consider, among other factors, whether:

1. the witness being impeached denies making the 

impeaching statement, and

2. the witness presenting the impeaching statement has an 

interest in the proceeding and there is no other corroboration 

that the statement was made, or

3. there are other factors affecting the reliability of the 

impeaching witness, such as age or mental capacity, . . . 

4. the true purpose of the offer is substantive use of the 

statement rather than impeachment of the witness,

5. the impeachment testimony is the only evidence of guilt.

Id. at 277, 655 P.2d at 1329 (alteration in original). The supreme court in 

Allred was primarily concerned “the truth-finding objectives of trial would 

be ‘compromised when the key issue of guilt or innocence is likely to turn 

upon resolution of an issue of credibility in a ‘swearing contest’ between 

interested witnesses.’“ State v. Salazar-Mercado, 232 Ariz. 256, 263, ¶ 25, 
STATE v. CRAFT

Decision of the Court

9

304 P.3d 543, 550 (App. 2013) (quoting Allred, 134 Ariz. at 277, 655 P.2d at 

1329). 

¶22 The Allred factors are, however, “instructive,” not 

exhaustive. Hernandez, 232 Ariz. at 323, ¶ 48, 305 P.3d at 388. Further, 

they “are not to be applied mechanistically.” State v. Miller, 187 Ariz. 254, 

259, 928 P.2d 678, 683 (App. 1996). “[A]ssessing the danger of unfair 

prejudice requires a fact-specific examination into the nature of the prior 

inconsistent statement and the reason for its substantive use.” Hernandez, 

232 Ariz. at 323, ¶ 48, 305 P.3d at 388. Even where a majority of the Allred

factors are present, a trial court may still find there is no danger of unfair 

prejudice and admit impeachment evidence for substantive purposes. 

Miller, 187 Ariz. at 259, 928 P.2d at 683.

¶23 Applying the Allred factors in this case, we find no error, 

fundamental or otherwise. While Craft’s friend denied making the 

impeaching statement, the detective who presented the impeaching 

statement was not an interested witnesses. “A police officer is not per se 

‘interested’ merely by virtue of his or her involvement in a criminal 

investigation, absent evidence of some personal connection with the 

participants or personal stake in the case’s outcome.” Miller, 187 Ariz. at

258, 928 P.2d at 682. Further, there were no other factors affecting the 

detective’s reliability. While it appears the true purpose of the 

impeachment testimony was for its substantive use, the impeachment 

testimony was not the only evidence of guilt for possession of drug 

paraphernalia. As addressed in more detail below, law enforcement 

officers found the pipe in Craft’s purse. The pipe was of a type commonly 

used to ingest methamphetamine. There was scorching on the pipe of a 

type that commonly occurs when the exterior of the pipe is heated with a 

flame to heat methamphetamine within the pipe. The pipe had a reside 

that, while not tested conclusively, appeared to an expert to be residue 

from methamphetamine. Further, Craft’s purse also contained a scale of a 

type commonly used by drug users to weigh their drugs and there was a 

substance on the scale that appeared to an expert to be methamphetamine. 

Therefore, a majority of the Allred factors favored admissibility for both 

impeachment purposes and as substantive evidence. Further, the use of 

evidence for both impeachment purposes and as substantive evidence was 
STATE v. CRAFT

Decision of the Court

10

not otherwise unduly prejudicial, nor did the danger of unfair prejudice 

outweigh the probative value of the evidence.2

VI. Admission of Evidence the Residue on the Scale was 

Methamphetamine

¶24 Craft asserts the trial court erred when it admitted evidence 

that residue on the scale found in Craft’s purse was methamphetamine. 

Craft argues that while the State disclosed the existence of the scale and its 

alleged purpose, the State did not disclose that a law enforcement witness

would testify the substance on the scale was methamphetamine. Craft 

concedes she raised no objection below. 

¶25 We find no error, fundamental or otherwise. The State 

disclosed the scale and made it available to Craft for inspection. That 

disclosure necessarily included anything on the scale. The State disclosed 

the identity of the witness and further disclosed it may call any law 

enforcement witness as an expert in any area of his or her training or 

experience, “including expert knowledge of illegal drugs, their possession 

or sale, useable amounts, or any other topic.” This was sufficient to 

comply with the State’s disclosure requirements. See Ariz. R. Crim. P. 

15.1. Regarding the failure to outline in detail the witness’s proposed 

testimony that the substance on the scale was methamphetamine, nothing 

in Rule 15.1 requires the State to provide “a detailed script of a witness’s 

testimony.” State v. Arvallo, 232 Ariz. 200, 205, ¶ 30, 303 P.3d 94, 99 (App. 

2013).

3 

 

2 Within her argument on this issue, Craft makes a cursory reference 

to the court’s failure to give a limiting instruction regarding the use of this 

evidence. The failure of a trial court to give a limiting instruction sua 

sponte in the absence of a request by the defendant is not fundamental 

error. See State v. Taylor, 127 Ariz. 527, 530-31, 622 P.2d 474, 477-78 (1980). 

3 Within her argument on this issue, Craft provides a one sentence 

argument in which she asserts the witness was not qualified to provide 

this testimony. “Merely mentioning an argument is not enough.” State v. 

Moody, 208 Ariz. 424, 452, ¶ 101, n.9, 94 P.3d 1119, 1147 (2004). Therefore, 

we do not address this argument in the context of this issue.
STATE v. CRAFT

Decision of the Court

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VII. Sufficiency of the Evidence to Support the Conviction for 

Possession of Drug Paraphernalia

¶26 Craft contends the evidence was insufficient to support her 

conviction for possession of drug paraphernalia. Specifically, Craft argues 

a detective was not competent to testify the residue on the pipe was 

methamphetamine and that the evidence was otherwise insufficient. 

Again, we will reverse for insufficient evidence only where there is a 

complete absence of probative facts. Soto-Fong, 187 Ariz. at 200, 928 P.2d 

at 624. The evidence must be insufficient to support the conviction under 

any hypothesis whatsoever. Arredondo, 155 Ariz. at 316, 746 P.2d at 486.

¶27 A sheriff’s detective testified regarding his training and 

experience in the investigation of criminal matters involving drug use. He 

had training in the identification of drugs and drug paraphernalia and 

continued with that training regularly through continuing education. 

This included identifying drugs in powdered form. Through his training 

and experience, the detective was familiar with how people obtain, store 

and use drugs, including methamphetamine. 

¶28 The detective testified the glass pipe found in Craft’s purse 

had black charring typically caused by using a lighter or other source of 

flame to heat a “rock” of methamphetamine in the pipe. A person would 

not use a flame such as this to heat ordinary tobacco, which requires much 

less heat. The detective further testified that in his experience and 

training, the use of methamphetamine leaves a smell like nothing else, and 

the charring and residue found on this pipe had that distinctive smell. 

The detective also testified that in addition to the pipe, Craft’s purse 

contained a digital scale commonly used for personal drug use. Based on 

his experience and training, the detective believed a white, rocky 

substance on the scale looked “exactly” like methamphetamine. The 

detective conceded that he could not say conclusively that any substance 

on the scale or the pipe was methamphetamine. 

¶29 The determination of the accuracy, weight and credibility of 

the detective’s testimony as an expert on drug use and whether to accept 

or reject that testimony is a matter for the jury. Pipher v. Loo, 221 Ariz. 399, 

404, ¶ 17, 212 P.3d 91, 96 (App. 2009). Viewed in the light most favorable 

to sustaining the verdict and resolving all conflicts and reasonable 

inferences against Craft, this evidence was sufficient to support her 

conviction for possession of drug paraphernalia. 
STATE v. CRAFT

Decision of the Court

12

VIII. The Instructions Regarding Possession of Drug Paraphernalia

¶30 Craft argues the trial court erred when it failed to instruct 

the jury regarding the fourteen factors identified in A.R.S. § 13-3415(E) 

(2012) that a jury should consider when determining whether an object is 

drug paraphernalia.4 Craft concedes that she neither submitted a 

proposed instruction regarding these factors nor objected to its omission. 

Therefore, she has waived this issue absent fundamental error. See

Gendron, 168 Ariz. at 154, 812 P.2d at 627. 

¶31 We find no error of any sort. While A.R.S. § 13-3415(E)

provides a fact finder “shall” consider the fourteen factors in its 

determination of whether an object is drug paraphernalia, those factors

are not elements of the offense and Craft cites no authority that holds the 

failure to instruct the jury on those factors constitutes error, let alone 

fundamental error. Further, Craft cites no authority that provides § 13-

3415(E) is an exclusive laundry list that requires acquittal based on the 

number of factors a jury does or does not find, even if none of the factors 

apply. Section 13-3415(E) itself provides the fact finder shall consider

those factors “in addition to all other logically relevant factors.” Craft was 

free to address the fourteen factors in her cross-examination of the 

detective and/or argue in closing that those factors indicated she 

possessed the pipe for lawful purposes and not to use methamphetamine. 

The trial court’s failure to instruct the jury on those factors, however, did 

not constitute error.

IX. Prosecutorial Misconduct

¶32 Finally, Craft presents a multitude of claims of prosecutorial 

misconduct, all but two of which allegedly occurred during closing 

argument. As explained more fully below, Craft raised no objections to a 

majority of the alleged misconduct. A failure to object to alleged 

prosecutorial misconduct at the time of trial waives the issue absent 

fundamental error. State v. Wood, 180 Ariz. 53, 66, 881 P.2d 1158, 1171 

(1994). In our determination of whether a prosecutor’s conduct amounts 

to fundamental error, we focus our inquiry on the probability the conduct 

influenced the jury and whether the conduct denied the defendant a fair 

trial. Id. “The focus is on the fairness of the trial, not the culpability of the 

prosecutor.” State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 (1993). 

Further, we view a prosecutor’s argument in the context of the arguments 

 

4 We need not identity those fourteen factors here.
STATE v. CRAFT

Decision of the Court

13

of the defendant. State v. Kerekes, 138 Ariz. 235, 239, 673 P.2d 979, 983 

(App. 1983). 

A. Misleading the Court

¶33 Craft argues the prosecutor twice misled the court during 

trial. She claims the prosecutor first misled the court when he informed 

the court that the friend who kicked Craft out of her home had personal 

knowledge that Craft used methamphetamine. Craft further argues the 

prosecutor misled the court when he failed to disclose to the court that a 

detective would testify that the substance on the scale found in Craft’s 

purse looked like methamphetamine. Craft never argued below that 

either instance misled the court or otherwise constituted prosecutorial 

misconduct.

¶34 We find no prosecutorial misconduct. Regarding the 

friend’s personal knowledge of Craft’s use of methamphetamine, as 

explained above in section V regarding the use of impeachment evidence 

as substantive evidence, the prosecutor had a good faith belief to inform 

the court that he believed the friend saw Craft use methamphetamine. 

The prosecutor was not required to be sufficiently prophetic to predict 

that Craft’s friend would later change her story and deny not only what 

she told law enforcement officers during an interview, but what she told 

the prosecutor personally mid-trial. Further, we fail to see how the 

prosecutor could have misled the court when it was the prosecutor who 

later informed the court that Craft’s friend changed her story and that he 

planned to impeach her. 

¶35 Regarding the failure to disclose the detective’s proposed 

testimony to the court, Craft cites no authority for the proposition that the 

State must make the disclosures required by Rule 15.1 to the court as well 

as to the defendant. Further, as noted above, the failure to disclose this 

evidence to Craft was not error. Therefore, the failure to disclose it to the 

court was not error of any sort.

B. Comments on the Failure to Testify and Present Evidence

¶36 Craft next argues that during closing and rebuttal argument, 

the prosecutor improperly commented on Craft’s failure to testify and 

present evidence. Specifically, Craft argues the prosecutor:

1. Should not have argued in closing that no one testified 

they fished with Craft at the river the night the car burned;
STATE v. CRAFT

Decision of the Court

14

2. Should not have argued in closing that Craft did not 

challenge the evidence that she admitted to a friend that she 

burned her car;

3. Should not have argued in rebuttal that there was no 

evidence Craft fished at “Tuber’s Landing” the night of the 

fire; and

4. Should not have argued in rebuttal that no one testified he 

or she went to hookah lounges with Craft and smoked pipe 

tobacco and, therefore, the evidence showed Craft used the 

pipe to ingest methamphetamine. 

Craft raised no objection to claims 1, 2 and 4. The trial court overruled 

Craft’s objection to claim 3, but Craft stated no grounds for the objection. 

Therefore, Craft failed to preserve any of these claims of prosecutorial 

misconduct absent fundamental error.

¶37 A prosecutor may not comment on a defendant’s invocation 

of the right to remain silent. State v. Wilson, 185 Ariz. 254, 258, 914 P.2d 

1346, 1350 (App. 1995). “To be improper, ‘the prosecutor’s comments 

must be calculated to direct the jurors’ attention to the defendant’s 

exercise of his [F]ifth [A]mendment privilege.’” State v. Hughes, 193 Ariz. 

72, 87, ¶ 64, 969 P.2d 1184, 1199 (1998) (citation omitted). The comment is 

improper only if “the language used was manifestly intended or was of 

such a character that the jury would naturally and necessarily take it to be 

a comment on the failure to testify.” State v. Schaaf, 169 Ariz. 323, 333, 819 

P.2d 909, 919 (1991) (quoting State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 

1185, 1189 (1985)).

¶38 A prosecutor may, however, comment on a defendant’s 

failure to introduce evidence to support his or her story. Bible, 175 Ariz. at

602, 858 P.2d at 1205 (1993). The only restriction is that the comment may 

not comment on a defendant’s silence, and it must not appear that the 

defendant is the only person who can contradict the state’s evidence. State 

v. Superior Court (Corcoran), 153 Ariz. 157, 160, 735 P.2d 767, 770 (1987); 

State v. Bracy, 145 Ariz. 520, 535, 703 P.2d 464, 479. Commenting on a 

defendant’s failure to introduce evidence “is neither improper nor shifts 

the burden of proof to the defendant so long as such comments are not 

intended to direct the jury’s attention to the defendant’s failure to testify.” 

State v. Sarullo, 219 Ariz. 431, 437, ¶ 24, 199 P.3d 686, 692 (App. 2008). 

Finally, the state may also comment on a defendant’s failure to produce a

witness when the witness would allegedly give testimony favorable to the 
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defendant. State v. Filipov, 118 Ariz. 319, 324, 576 P.2d 507, 512 (App. 

1977). 

¶39 We find no prosecutorial misconduct. The prosecutor’s 

arguments did not comment directly or indirectly on Craft’s failure to 

testify, did not direct the jurors’ attention to Craft’s failure to testify and 

were not “of such a character that the jury would naturally and 

necessarily take it to be a comment on the failure to testify.” Schaaf, 169 

Ariz. at 333, 819 P.2d at 919. The prosecutor’s argument was a fair 

comment on Craft’s failure to call witnesses or otherwise introduce 

evidence to support specific aspects of her defense. 

¶40 We also note that the argument regarding “Tuber’s

Landing” and the “hookah lounge” occurred in rebuttal and were in direct 

response to Craft’s closing argument. Regarding the comment about 

“Tuber’s Landing,” Craft displayed a slide to the jury during her closing 

argument that indicated an investigating officer never investigated the 

area near “Tuber’s Landing” where Craft purportedly told the officer she 

and her companions had parked to go fishing. The trial court agreed with 

the prosecutor there was no evidence to support that representation and 

the only evidence was that Craft never told the officer she was at Tuber’s 

Landing. The court ordered Craft’s counsel not to tell the jury Craft or 

anyone else claimed they were at Tuber’s Landing. The court permitted 

counsel only to argue that based on Craft’s description of the road she 

travelled that night, it was arguable Craft was at Tuber’s Landing. The 

prosecutor’s comment regarding Tuber’s Landing fairly addressed the 

slide and defense counsel’s subsequent argument. Regarding the 

comment about the “hookah lounge,” Craft argued that no one ever tested 

the residue on the pipe and nobody could say conclusively it was 

methamphetamine, thereby insinuating the residue was from something 

else. The prosecutor’s argument regarding how no witness testified Craft 

used the pipe to smoke tobacco was a fair response, even with the 

“hookah lounge” comment. “Prosecutorial comments which are fair 

rebuttal to comments made initially by the defense are acceptable.” State 

v. Duzan, 176 Ariz. 463, 468, 862 P.2d 223, 228 (App. 1993). 

C. Disparagement of Defense Counsel

¶41 Craft argues the prosecutor also engaged in misconduct 

when he disparaged Craft’s counsel during his rebuttal argument. 

Specifically, Craft argues the prosecutor disparaged defense counsel 

when:
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1. In regard to Craft’s slide that identified Tuber’s Landing, 

the prosecutor argued, “And if you have to resort to 

arguments like that . . . .”; 

2. The prosecutor argued defense counsel wanted the jury to 

“cherry pick” the evidence that was favorable to Craft and 

ignore everything else, be hypercritical and hyper-technical

of the evidence and use a “death by a 1000 cuts” approach;

3. The prosecutor argued defense counsel would never be 

satisfied with any criminal investigation to a degree that she 

agreed the investigation was “perfect” and had nothing else

to say, then questioned why anyone was arguing about the 

investigation in this case; 

4. The prosecutor argued the fire investigator was more 

qualified to discuss fire than defense counsel, who asked the 

fire investigator “three questions” on cross-examination but 

then lectured the jury at length on how fire works; and 

5. The prosecutor suggested defense counsel misstated the 

law when he argued she was adding elements to the offense 

of possession of drug paraphernalia. 

Craft made a generic objection to argument 1 which the trial court 

sustained for unspecified reasons. Craft also eventually preserved her 

misconduct objection to argument 2, but the court overruled her. Craft 

raised no objection to arguments 3 or 5 and objected to argument 4 on 

grounds not raised on appeal. 

¶42 Regardless of whether Craft preserved the issues, we find no 

prosecutorial misconduct. To attack a defendant’s argument in rebuttal is 

not an attack on the defendant’s counsel. See State v. Amaya-Ruiz, 166 

Ariz. 152, 171, 800 P.2d 1260, 1279 (1990). Further, prosecutors have wide 

latitude in presenting closing arguments. “Excessive and emotional 

language is the bread and butter weapon of counsel’s forensic arsenal, 

limited by the principle that attorneys are not permitted to introduce or 

comment upon evidence which has not previously been offered and 

placed before the jury.” State v. Jones, 197 Ariz. 290, 305, ¶ 37, 4 P.3d 345, 

360 (2000). It is not improper for a prosecutor to go so far as to argue a 

defense counsel’s questions or conduct were “a defense ploy,” “improper”

and/or “outrageous.” Such comments are well within the latitude 

afforded counsel in closing argument. State v. West, 176 Ariz. 432, 446, 862 

P.2d 192, 206 (1993) (overruled on other grounds by State v. Rodriguez, 192 
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Ariz. 58, 64, ¶ 30, n.7, 961 P.2d 1006, 1012 (1998). The prosecutor’s 

comments in this case were far more tame.

¶43 Further, these arguments were permissible rebuttal. As 

noted above, defense counsel displayed the Tuber’s Landing slide before 

the jury when there was no evidence to support some of the information 

in the slide. As is to be expected, defense counsel also focused on 

evidence or the absence thereof that favored Craft’s defense and attacked 

various law enforcement witness’s investigations of the case. The 

prosecutor’s rebuttal was a fair response. Finally, defense counsel 

arguably added an element to the offense of possession of drug 

paraphernalia when she argued there was no evidence Craft used drugs 

“in close proximity to the time of her arrest.” See A.R.S. § 13-3415(A) 

(2012) (possession of drug paraphernalia). It was fair rebuttal for the 

prosecutor to respond by arguing this was an “attempt to add a 

requirement” of recent use to the paraphernalia charge. Finally, while it 

was within the trial court’s discretion to sustain Craft’s generic objection 

to the prosecutor’s gratuitous “and if you have to resort to arguments like 

that” comment about the Tuber’s Landing slide, that single comment did 

not deny Craft a fair trial.

D. Arguing Motive

¶44 Finally, Craft argues the prosecutor engaged in misconduct 

when he argued several times that Craft’s motive for the arson was she 

needed money because Craft’s friend kicked her out of her home for using 

methamphetamine. Craft relies on the fact that Craft’s friend changed her 

story at trial to claim that she never saw Craft use methamphetamine and 

only kicked Craft out of the home because she suspected she used 

methamphetamine. Craft raised no objections below.

¶45 We find no prosecutorial misconduct. “During closing 

arguments, counsel may summarize the evidence, make submittals to the 

jury, urge the jury to draw reasonable inferences from the evidence, and 

suggest ultimate conclusions.” Bible, 175 Ariz. at 602, 858 P.2d at 1205. As 

noted above, Craft’s friend testified she kicked Craft out of her home

because she suspected Craft was using methamphetamine. This 

testimony alone was sufficient to permit the prosecutor to argue the 

reasonable inference that Craft’s motive for the arson was she needed 

money because her friend kicked her out of her home for using 

methamphetamine, rendering her homeless. The argument was even 

more proper in light of the additional testimony that Craft’s friend 

actually told at least one law enforcement officer she kicked Craft out of 
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her home because she was using methamphetamine, not simply because 

she suspected Craft was using methamphetamine.

X. Conclusion

¶46 Because we find no error, we affirm Craft’s convictions and 

sentences.