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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SERGIO ACOSTA, Appellant.

No. 1 CA-CR 15-0523

Appeal from the Superior Court in Maricopa County

No. CR 2014-005944-001 

The Honorable Richard L. Nothwehr, Commissioner 

AFFIRMED AS CORRECTED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Kathryn L. Petroff

Counsel for Appellant

Sergio Acosta, Buckeye

Appellant
STATE v. ACOSTA

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2

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which 

Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.

N O R R I S, Judge:

¶1 Sergio Acosta timely appeals from his convictions and 

sentences for promoting prison contraband, a class 5 felony under Arizona 

Revised Statutes (“A.R.S.”) section 13-2505 (Supp. 2015) (“contraband 

charge”), and attempting to commit tampering with evidence, a class 1 

misdemeanor under A.R.S. §§ 13-1001 (2010), -2809 (2010) (“tampering 

charge”). After searching the record on appeal and finding no arguable 

question of law that was not frivolous, Acosta’s counsel filed a brief in 

accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 

2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking 

this court to search the record for fundamental error. This court granted

counsel’s motion to allow Acosta to file a supplemental brief in propria 

persona, and Acosta did so. We reject the arguments raised in Acosta’s 

supplemental brief and, after reviewing the entire record, find no 

fundamental error. Therefore, we affirm Acosta’s convictions and sentences

as corrected.

FACTS AND PROCEDURAL BACKGROUND1

¶2 On May 17, 2014, Acosta was serving a sentence of 

imprisonment at the Arizona State Prison Complex Lewis. Two corrections 

officers, Officers C.S. and N.M., entered the dormitory setting of the 

detention areas, called the “pod,” containing Acosta’s bed to perform a 

search. 

¶3 Officer C.S. entered Acosta’s “bedding location” and told 

Acosta that he was going to strip search him in the bathroom. As Officer 

C.S. and Acosta began to walk to the bathroom, Officer C.S. saw Acosta take

a cellphone out of his pocket, put it in his right hand, and start to run 

towards the bathroom. Officer C.S. ran after him and saw Acosta throw the 

cellphone in the toilet and flush it. Officer C.S. told Acosta to “get against 

 

1We view the facts in the light most favorable to sustaining 

the jury’s verdict and resolve all reasonable inferences against Acosta. State 

v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 
STATE v. ACOSTA

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3

the wall.” While Acosta was against the wall, “another inmate came from 

behind” and pushed Officer C.S. Officer C.S. radioed Officer N.M for help.

Officer N.M., who had been standing by Acosta’s bed, came to his 

assistance. The Officers retrieved the cellphone from the toilet.

¶4 At trial, Acosta admitted to possessing the cellphone, but 

asserted it did not belong to him. He testified he was watching T.V. at 

another inmate’s bedding area, called a “house,” when some of the inmates

yelled “two time” to alert the other inmates to the Officers’ probable search. 

Acosta then looked towards the doors at the entrance of the pod and noticed

another inmate, J.V., “stepping out” of his “house.” Acosta had not given 

J.V. permission to be in his “house.” When Acosta walked over to his 

“house,” he saw a cellphone on his table, inside a cup. 

¶5 Because he believed other inmates might stab him if he 

“snitched” on J.V., he placed his “hand over the cup so the phone wasn’t 

showing” as Officers C.S. and N.M. approached him. When Officer C.S.

ordered him to go to the bathroom for the strip search, he “picked up the 

cup by the top, still covering it, and [] stood up.” When he was unable to

discreetly hand the cellphone to another inmate, Acosta ran and threw the

cellphone in the toilet. Acosta testified he believed he had no other choice

than to do what he did because if he snitched on J.V., he would face 

consequences from the other inmates. 

¶6 An eight-person jury found Acosta guilty on the contraband 

and tampering charges. At sentencing, the superior court found Acosta had 

one historical prior felony conviction. See A.R.S. § 13-105(22)(a)(i) (Supp. 

2015).2 The superior court sentenced Acosta to 2.25 years’ imprisonment in 

the Arizona Department of Corrections on the contraband charge, see A.R.S. 

§ 13-703(I) (Supp. 2015), to be served consecutive to his sentence of 

imprisonment in the Maricopa County Superior Court, cause no. CR#2007-

030016-001 (the “2007 imprisonment offense”), and six months’

imprisonment in Maricopa County Jail for the tampering charge, to be 

 

2Although the Arizona Legislature amended some of the 

statutes cited in this decision after the date of Acosta’s offenses in 2014, the 

revisions are immaterial to our resolution of this appeal. Thus, we cite to 

the current version of the statutes. 
STATE v. ACOSTA

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served concurrent with the sentence imposed by the court on the 

contraband charges.

3 See A.R.S. § 13-707 (2010).

DISCUSSION

I. Supplemental Brief

A. Arguments Pertaining to J.V.’s Privilege against SelfIncrimination and J.V.’s Alleged Letter

1. Background

¶7 Before trial, Acosta notified the State he intended to call J.V. 

as a witness. The State moved to have the court appoint counsel for J.V., 

noting Acosta had also provided it “with a copy of a letter allegedly written 

by [J.V.], in which he admits to possessing a cell phone while incarcerated 

in DoC-Lewis.” The prosecutor explained, however, that before he had 

received the letter, he had conducted a telephonic interview with J.V., and 

during the interview, “[J.V.] denied knowing [Acosta] and denied knowing 

anything about this case.” The prosecutor further explained that should J.V. 

be called as a witness, he “will necessarily open himself up to criminal 

liability.” Specifically, Acosta could be charged with possession of prison 

contraband, “by admitting to possessing a phone while in prison,” see 

A.R.S. § 13-2505, or, in the alternative, “if he testifies consistently with what 

he told the State, possibly perjury or other charges relating either to his 

testimony or the statements he allegedly made in the letter,” which, 

assuming he wrote it, he signed under penalty of perjury. See A.R.S. § 13-

2702(a)(2) (2010).

¶8 The superior court appointed counsel for J.V. Acosta moved

in limine to prevent J.V. from invoking his Fifth Amendment privilege 

against self-incrimination, or to require J.V. to invoke his Fifth Amendment 

privilege in the presence of the jury. At a hearing before trial, Acosta 

questioned J.V. about his possession of the cellphone, the telephonic 

interview, and the letter. J.V. invoked the Fifth Amendment in response to 

each question. The superior court found J.V. was entitled to invoke his Fifth 

Amendment privilege on all questions relating to his conversation with the 

 

3Because the superior court imposed concurrent sentences on 

the contraband and the tampering charges, we assume the Maricopa 

County Jail will grant Acosta six months’ credit on the tampering charge 

for the time Acosta serves on the contraband charge in the Arizona 

Department of Corrections. 
STATE v. ACOSTA

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prosecutor and the letter, based on the specific danger of prosecution J.V. 

faced if compelled to testify, and excused him as a witness. 

2. The Privilege Against Self-Incrimination

¶9 Acosta argues the superior court should have granted his

motion to prevent J.V. from asserting his Fifth Amendment privilege 

against self-incrimination, or required J.V. to assert the privilege in the

presence of the jury. We disagree with both arguments.

¶10 First, as an initial matter, to assert the Fifth Amendment 

privilege against self-incrimination, “a witness must demonstrate a 

reasonable ground to apprehend danger from being compelled to testify.”

State v. Rosas-Hernandez, 202 Ariz. 212, 216, ¶ 11, 42 P.3d 1177, 1181 (App. 

2002) (citation omitted). Although a defendant has a Sixth Amendment 

right to compel the testimony of a witness whose testimony is “material and 

favorable to the defense,” “[t]here is no Sixth Amendment right to compel 

a witness to testify if the facts support that the witness has properly claimed 

the Fifth Amendment privilege.” Id. at ¶ 10 (citations omitted). As discussed 

above, see supra ¶ 7, J.V. faced a real danger of being prosecuted for either 

promoting prison contraband under A.R.S. § 13-2505 or perjury. See A.R.S. 

13-2702(a)(2) (a person commits perjury by making a false unsworn 

statement regarding a material issue subscribed to “as true under penalty 

of perjury, believing it to be false.”). Under these circumstances, the 

superior court did not abuse its discretion when it allowed J.V. to assert the 

privilege. See Rosas-Hernandez, 202 Ariz. at 216, ¶ 10, 42 P.3d at 1181.

¶11 Second, the superior court may completely excuse a witness 

from testifying when it “possesses extensive knowledge about the case”

and “determines that a witness could legitimately refuse to answer 

essentially all relevant questions.” State v. Harrod, 218 Ariz. 268, 276, ¶¶ 20-

21, 183 P.3d 519, 527 (2008) (quotations and citation omitted). Extensive 

knowledge can be demonstrated when the superior court has heard “the 

state's entire case and a portion of defendant's.” Id. at 276, ¶ 21, 183 P.3d at 

527 (quotations and citation omitted). Moreover, “[a] trial court does not 

necessarily have to personally question the witness, conduct a hearing, or 

allow counsel to call the witness to the stand if the court possesses extensive 

knowledge of [a] case.” Id. (quotations and citation omitted).

¶12 Here, the superior court had extensive knowledge of the 

case—not only was it familiar with the positions taken by the parties in the 

case, but it also held a hearing in which J.V. invoked the privilege in 

response to all questions regarding his conversation with the prosecutor

and the letter. Accordingly, the superior court did not abuse its discretion 
STATE v. ACOSTA

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in permitting J.V. to invoke his Fifth Amendment privilege outside the 

presence of the jury. See id. at 275-76, ¶ 19, 183 P.3d at 526-27 (“A trial court's 

decision whether to allow a party to call a witness before the jury who will 

assert his Fifth Amendment privilege is reviewed for an abuse of 

discretion.”). 

3. The Letter

¶13 Next, Acosta argues the superior court should have admitted 

into evidence the letter purportedly written by J.V. In that letter, J.V.

confessed to “possession” of the cellphone, dropping it in a cup, and 

leaving it in “Acosta’s house” when he saw the “C.O.s walking in with 

gloves.” The superior court ruled the letter was inadmissible under Arizona 

Rule of Evidence 804(b)(3) because “there was no external evidence that 

clearly indicated the trustworthiness of the statements in the letter.” See

State v. Garza, 216 Ariz. 56, 66 n.9, ¶ 41, 163 P.3d 1006, 1016 n.9 (2007)

(“[S]tatements against interest by unavailable non-party declarants, which 

are governed by Rule 804(b)(3), are admissible only if there is some external 

evidence of reliability.”) (emphasis omitted) (citation omitted).

¶14 The superior court did not abuse its discretion in refusing to 

admit the letter into evidence. See State v. Franklin, 232 Ariz. 556, 559, ¶ 10, 

307 P.3d 983, 986 (App. 2013) (“Rulings regarding the admissibility of 

hearsay evidence are reviewed for an abuse of discretion.”) (citations

omitted). As discussed above, see supra ¶ 7, in a telephonic interview with 

the prosecutor, J.V. denied knowing anything about the case. Additionally, 

as the superior court pointed out, the only evidence Acosta introduced to 

show J.V. had written the letter focused on information contained in the 

letter (J.V.’s unit number and J.V.’s purported signature) and on the 

envelope (Lewis Prison return address). Thus, because Acosta did not 

present any external evidence of reliability as to the letter, the superior court 

did not abuse its discretion in refusing to admit the letter into evidence. 

B. Rule 20 Motion and Prejudice

¶15 Acosta argues the superior court should not have denied his 

Rule 20 motion because the State failed to prove, first, the cellphone was a 

working “communication device,” and second, the crime happened in a 

correctional facility. Exercising de novo review, we reject this argument. 

State v. Bon, 236 Ariz. 249, 251, ¶ 5, 338 P.3d 989, 991 (App. 2014) (denial of 

a Rule 20 motion reviewed de novo) (citations omitted).
STATE v. ACOSTA

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¶16 Section 13-2505 does not require the State to establish the 

cellphone was capable of making calls. Under the statute, “contraband 

means any article whose use or possession would endanger the safety, 

security or preservation of order in a correctional facility, including but not 

limited to the articles that the statute lists by name.” State v. Hines, 232 Ariz. 

607, 611, ¶ 13, 307 P.3d 1034, 1038 (App. 2013) (citation omitted). The statute 

specifically lists “wireless communication device” as an example of 

“contraband.” See A.R.S. § 13-2501(1) (Supp. 2015).

¶17 Here, the State presented substantial, uncontradicted 

evidence that the item Acosta attempted to flush down the toilet was a 

cellphone—thus, a wireless communication device. Ariz. R. Crim. P. 20

(judgment of acquittal is appropriate only “if there is no substantial 

evidence to warrant a conviction); State v. West, 226 Ariz. 559, 562, ¶ 16, 250 

P.3d 1188, 1191 (2011) (“Substantial evidence . . . is such proof that 

reasonable persons could accept as adequate and sufficient to support a 

conclusion of defendant’s guilt beyond a reasonable doubt.”) (quotations 

and citations omitted). Therefore, the cellphone was contraband within the 

meaning of the statute, regardless of whether it was a working wireless 

communication device. 

¶18 Next, the State presented substantial evidence that the 

incident occurred in a “correctional facility.” The superior court granted the

State’s motion to reopen its case and present additional evidence that Lewis 

was a correctional facility. Officer C.S. then testified the incident occurred 

in the Arizona prison complex where he works (Lewis)—a place of 

confinement for individuals convicted of an offense. See A.R.S. § 13-2501(2)

(“’Correctional Facility’ means any place used for the confinement or 

control of a person . . . Charged with or convicted of an offense”).

¶19 Acosta additionally argues the superior court “showed unfair 

prejudice to the defense” by permitting the State to present the additional 

evidence through C.S.’s testimony because C.S. had been in the courtroom 

“listening to what he needs to say/do in order to get a conviction.” We 

reject this argument. First, “[t]rial courts have broad discretion in deciding 

whether to reopen a case and admit additional evidence.” State v. Patterson, 

203 Ariz. 513, 514, ¶ 5, 56 P.3d 1097, 1098 (App. 2002) (citation omitted). 

Second, before the State rested, N.M. and C.S. had already testified they 

were correction officers who worked in a state prison complex and they 

were directed to perform the strip search of Acosta, an inmate, while at 

work. Third, C.S. was serving as the State’s “representative” and was 

entitled to be in the courtroom throughout the trial. See Ariz. R. Evid. 615(b)

(rule requiring court to exclude trial witnesses at a party’s request “does 

not authorize” exclusion of “an officer or employee of a party that is not a 
STATE v. ACOSTA

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natural person, after being designated as the party's representative by its 

attorney”). 

C. Prosecutorial Misconduct

1. State’s Closing Argument

¶20 Acosta argues, as he did in the superior court, that 

prosecutorial misconduct occurred “when the prosecutor used excerpts 

from a Pixar movie, (‘Up’) to attack the defense in their closing arguments.” 

We disagree.

¶21 “Prosecutors have wide latitude in their closing arguments to 

the jury.” State v. Edmisten, 220 Ariz. 517, 524, ¶ 23, 207 P.3d 770, 777 (App. 

2009) (quotations and citation omitted). Reversal of a conviction is 

warranted when: “(1) misconduct is indeed present; and (2) a reasonable 

likelihood exists that the misconduct could have affected the jury's verdict, 

thereby denying defendant a fair trial.” State v. Anderson, 210 Ariz. 327, 340, 

¶ 45, 111 P.3d 369, 382 (2005) (quotations and citations omitted).

¶22 At closing, the State compared “a dog [] focusing on things

he’s not supposed to be focusing on,” with defense counsel’s closing 

argument that focused on ownership of the cellphone, or indicia of 

ownership—factors that are irrelevant for a conviction under the 

contraband statute, which penalizes possession of contraband, regardless 

of ownership. Although the State may not comment on the integrity of 

opposing counsel in closing arguments, “[c]riticism of defense theories and 

tactics is a proper subject of closing argument.” State v. Ramos, 235 Ariz. 230, 

238, ¶ 25, 330 P.3d 987, 995 (App. 2014) (quotations and citation omitted). 

The State’s reference to the film offered a critique of Acosta’s defense 

arguments and was not improper. See id. at 237-38, ¶¶ 24-25, 330 P.3d at 

994-95 (comments, such as opposing counsel had “rais[ed] distractions or 

red herrings,” did no “more than criticize defense tactics”).

2. Alleged Threats to J.V.

¶23 Acosta argues “[p]rosecutorial misconduct occurred when 

the prosecutor threatened [J.V.]” by telling him that if he testified—and 

denied he wrote the letter—the State would prosecute him for perjury, but 

alternatively, if J.V. testified—and admitted he wrote the letter—the State

would charge J.V. with promoting prison contraband. None of these 

statements constituted prosecutorial misconduct.

¶24 As discussed above, see supra ¶¶ 7-8, Acosta challenged J.V.’s 

right to invoke his privilege against self-incrimination, and the State
STATE v. ACOSTA

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explained the prosecution dangers J.V. faced if he testified. Thus, the State 

properly informed J.V. of the possible consequences of his testimony. See 

State v. Jones, 197 Ariz. 290, 301-02, ¶ 21, 4 P.3d 345, 356-57 (2000). (“There 

is no per se prosecutorial misconduct when the prosecutor merely informs 

the witness of the possible effects of his testimony.”) (citation omitted). 

3. State’s Reference to Target Search

¶25 Finally, Acosta argues the superior court should have 

granted a mistrial because the State engaged in prosecutorial misconduct 

when it disobeyed the superior court’s pre-trial ruling not to “label[]” the 

search a “target search” and not “to present it to the jury as such.” The court 

did not abuse its discretion in refusing to grant a mistrial. See State v. 

Williamson, 236 Ariz. 550, 559, ¶ 27, 343 P.3d 1, 10 (App. 2015) (appellate 

court reviews “denial of a motion for a mistrial for an abuse of discretion”)

(citation omitted).

¶26 “A mistrial is one of the most dramatic remedies and should 

be granted only when it appears that justice will be thwarted unless the jury 

is discharged and a new trial granted.” Id. at 560, ¶ 29, 343 P.3d at 11

(quotations and citation omitted). As we have previously stated, “the trial 

judge is in the best position to assess the impact of a witness's statements 

on the jury.” State v. Welch, 236 Ariz. 308, 314, ¶ 21, 340 P.3d 387, 393 (App. 

2014). We consider, “(1) whether the jury has heard something it should not 

hear, and (2) the probability that the jury was influenced by what it heard,” 

Williamson, 236 at 560, ¶ 29, 343 P.3d at 11 (citation omitted), in weighing 

whether a court should have granted a motion for a mistrial.

¶27 Before trial, Acosta moved in limine to preclude “any 

reference” to a “target search” of Acosta, including any evidence that

Officers C.S. and N.M. had been ordered by their supervisor to perform the

target search. The superior court granted the motion in part; it allowed the 

State to present evidence the “prison guards” were directed to perform the 

search, but prohibited the State from introducing evidence asking “why” 

Acosta was the target of the search: 

There are limits to the admissibility of the 

supervisor’s directions. Prison guards will be 

allowed to indicate that they were directed to 

perform the search, but are not to include other 

statements regarding allegations of ownership 

of a cell phone or why Defendant was the target 

of the search. 
STATE v. ACOSTA

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¶28 At trial, the State asked C.S. if he was “directed to perform a 

target search of someone named Sergio Acosta,” to which C.S. answered,

“Yes, I was,” after the court overruled Acosta’s objection to the question.

And, in closing, the State twice used the term “target search” when 

summarizing the facts leading up to the search. 

¶29 The State’s references to “target search” complied with the 

superior court’s ruling. The ruling permitted the State to ask Officer C.S. if 

he was directed to perform the search, which the State did. And, the ruling 

precluded the State from asking the officers “why” Acosta was the target of 

the search, which the State obeyed. Therefore, based on the record, the State 

did not engage in prosecutorial misconduct when it referenced the target 

search. 

II. Anders Review

¶30 We have reviewed the entire record for reversible error and 

find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Acosta received a fair 

trial. He was represented by counsel at all stages of the proceedings and 

was present at all critical stages.

¶31 The evidence presented at trial was substantial and supports 

the verdicts. The jury was properly comprised of eight members and the 

court properly instructed the jury on the elements of the charges, Acosta’s 

presumption of innocence, the State’s burden of proof, and the necessity of 

a unanimous verdict. The superior court received and considered a 

presentence report, Acosta was given an opportunity to speak at 

sentencing, and he did, and his sentences were within the range of 

acceptable sentences for his offenses.

¶32 We do note that although properly sentenced, the sentencing 

minute entry contains two errors. First, the minute entry mistakenly reflects 

that on the tampering charge Acosta was charged under A.R.S. § 123-2809,

when in fact he was charged under A.R.S. § 13-2809. Second, the minute 

entry does not reflect that the court sentenced Acosta on the tampering 

charge pursuant to A.R.S. § 13-707 (2010), the statute that governs the length 

of sentences for misdemeanor convictions. Thus, we correct the sentencing 

minute entry to reflect that on the tampering charge Acosta was charged

under A.R.S. § 13-2809 and sentenced under A.R.S. § 13-707.

CONCLUSION

¶33 We decline to order briefing and affirm Acosta’s convictions 

and sentences as corrected.
STATE v. ACOSTA

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¶34 After the filing of this decision, defense counsel’s obligations 

pertaining to Acosta’s representation in this appeal have ended. Defense 

counsel need do no more than inform Acosta of the outcome of this appeal 

and his future options, unless, upon review, counsel finds an issue 

appropriate for submission to the Arizona Supreme Court by petition for 

review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).

¶35 Acosta has 30 days from the date of this decision to proceed, 

if he wishes, with an in propria persona petition for review. On the court’s 

own motion, we also grant Acosta 30 days from the date of this decision to 

file an in propria persona motion for reconsideration.