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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DESMAN ISAIAH MAYES, Appellant.

No. 1 CA-CR 18-0449

Appeal from the Superior Court in Maricopa County

No. CR2017-137183-001

The Honorable Peter A. Thompson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Michael J. Dew Attorney at Law, Phoenix

By Michael J. Dew

Counsel for Appellant

FILED 3-28-2019
STATE v. MAYES

Decision of the Court

2

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge James B. Morse, Jr. and Judge Peter B. Swann joined.

T H O M P S O N, Judge:

¶1 This appeal was timely filed in accordance with Anders v. 

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

following Desman Isaiah Mayes’s (defendant’s) conviction for one count of 

tampering with physical evidence, a class 6 felony. Defendant’s counsel 

searched the entire record on appeal and found no arguable question of law

and filed a brief requesting this court conduct an Anders review of the 

record for fundamental error. Defendant had the opportunity to file a 

supplemental brief in propria persona, but did not do so.

¶2 On August 13, 2017, defendant was lawfully arrested for an 

unrelated offense. Officers Daniel Reynolds and Jessica Foth searched 

defendant at the scene but did not search his shoes and socks. Officer Foth 

testified that during the trip to the jail, defendant seemed extremely 

nervous and repeatedly asked to be let go and “take care of his charges in 

another way.” At the jail, Detention Officer Jeffrey Troy searched defendant

as part of booking and two small baggies containing what appeared to be 

methamphetamine fell out of defendant’s socks and onto the floor. 

Suddenly, defendant lunged down and put the baggies in his mouth.

Detention Officer Troy attempted to subdue defendant, and Officer Foth 

and other jail employees rushed over to assist as defendant chewed on the 

baggies. Detention Sergeant Michelle Hatcher attempted to remove the 

baggies from defendant’s mouth with her thumb, but defendant bit her and 

was able to swallow the baggies. 

¶3 The state charged defendant with one count of aggravated 

assault while in custody, and one count of tampering with physical 

evidence. During his closing statement, defense counsel pointed out that 

the state had not presented evidence to prove that the baggies contained 

methamphetamine.1 In his rebuttal, prosecutor stated that if defendant had 

 

1 Whether the evidence was methamphetamine or not is irrelevant to the 

charge of tampering with evidence and misstates the law. However, 
STATE v. MAYES

Decision of the Court

3

been “completely clean when he went to the hospital he would be waving 

[his medical records] at [the jury].” Defense counsel objected on the 

grounds that prosecutor was shifting the burden and moved to strike. The 

judge allowed prosecutor to continue, and prosecutor went on to clarify 

that the state does indeed have the burden of proof and a defendant’s 

failure to present certain evidence should not be considered by the jury. 

After rebuttal, the judge struck the statement “about the defendant could 

have produced his medical records.” He also gave a curative instruction in 

which he instructed the jury that the state must prove guilt beyond a 

reasonable doubt, defendant is not required to produce any sort of 

evidence, and the decision to not do so is not evidence of guilt. After the 

jury was excused to begin deliberations, defense counsel moved for a 

mistrial. The judge denied the motion for a mistrial, noting that a curative 

instruction had already been given and prosecutor had clarified the burden 

in his rebuttal. 

¶4 The jury found defendant not guilty of aggravated assault, 

but convicted defendant of tampering with evidence, finding that 

defendant had been on felony probation for less than two months at the 

time of the offense. The trial court found that the state proved that 

defendant had two prior felony convictions. Based on the aggravating 

factors and prior felonies, the trial court sentenced defendant to a term of 

4.5 years’ imprisonment with credit for 306 days of presentence 

incarceration.

¶5 We have read and considered defendant’s Anders brief, and 

have searched the entire record for reversible error. See Leon, 104 Ariz. at

300. We find none. All of the proceedings were conducted in compliance 

with the Arizona Rules of Criminal Procedure, and the sentence imposed 

was within the statutory limits. Pursuant to State v. Shattuck, 140 Ariz. 582, 

584-85 (1984), defendant’s counsel’s obligations in this appeal are at an end.

Defendant has thirty days from the date of this decision in which to 

proceed, if he so desires, with an in propria persona motion for 

reconsideration or petition for review. 

 

prosecutor did not object to defense counsel’s statements and the jury was 

properly instructed that comments by lawyers are not evidence. 
STATE v. MAYES

Decision of the Court

4

CONCLUSION

¶6 For the foregoing reasons, we affirm the conviction and the 

sentence.