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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS LEROY CROM, IV, Appellant. 

No. 1 CA-CR 14-0751 

Appeal from the Superior Court in Maricopa County 

No. CR2013-441624-001 

The Honorable Hugh E. Hegyi, Judge 

REVERSED AND REMANDED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Robert A. Walsh 

Counsel for Appellee

The Hopkins Law Office PC, Tucson 

By Cedric Martin Hopkins 

Counsel for Appellant
STATE v. CROM 

Decision of the Court 

2

MEMORANDUM DECISION

Judge Pro Tempore Dawn M. Bergin1 delivered the decision of the Court, in 

which Presiding Judge Donn Kessler and Judge Andrew W. Gould joined. 

B E R G I N, Judge: 

¶1 Thomas Crom appeals his conviction and sentence for 

controlling another’s means of transportation while knowing or having 

reason to know it was stolen, in violation of Arizona Revised Statutes 

(“A.R.S.”) section 13-1814(A)(5) (2010). On appeal, Crom argues that the 

superior court erred by: (1) denying his motion for judgment of acquittal 

under Rule 20 of the Arizona Rules of Criminal Procedure; (2) permitting 

the prosecutor to question him on cross-examination about his failure to 

produce potentially exculpatory witnesses, which, he contends, both 

improperly shifted the burden of proof and created an improper 

inference that he was able but failed to produce these witnesses; and (3) 

improperly instructing the jury on the statutory inference under A.R.S. § 

13-2305(1) (2010). While we reject Crom’s arguments that the prosecutor’s 

questioning improperly shifted the burden to him, we do find that the 

questioning about Crom’s failure to call one witness, Hans Barkowski, 

created an improper adverse inference.2 And, because we cannot say 

beyond a reasonable doubt that this inference did not contribute to or 

affect the jury’s verdict, we reverse and remand for a new trial. 

¶2 To avoid any issues on remand regarding the propriety of 

the jury instruction on the statutory inference of A.R.S. § 13-2305(1), we 

 

1The Honorable Dawn M. Bergin, Judge, Maricopa County 

Superior Court, was authorized by the Chief Justice of the Arizona 

Supreme Court to participate in the disposition of this appeal pursuant to 

the Arizona Constitution, Article 6, Section 3, and Revised Statutes 

(“A.R.S.”) sections 12-145 to -147 (2003).

2Because we reverse and remand based on the improper 

inference created as to Hans, we need not reach Crom’s arguments 

regarding the questioning of four other witnesses. 
STATE v. CROM 

Decision of the Court 

3

address that issue below and find that the superior court properly 

instructed the jury.3 

FACTS AND PROCEDURAL BACKGROUND 

¶3 Police arrested Crom and Hans Barkowski in the summer of 

2013 after finding Crom driving a stolen car with Hans in the passenger 

seat. Crom first told police that “he did not own the vehicle,” but “had 

borrowed it from a friend whose name he didn’t know and it was actually 

that friend’s brother’s whose name he didn’t know.” He later changed his 

story, stating that “he got the keys to the car from a guy that he met at a 

bar in Old Town Scottsdale,” but “[h]e didn’t remember his name” or 

“which bar it was.” 

¶4 At trial, Crom testified that the day of his arrest began at his 

friend Matt’s house where Hans arrived in the stolen car, claiming he had 

located Crom’s recently stolen truck. Before leaving to find the truck, 

Crom retrieved a jiggle key that he intended to use to try to start the truck 

because he no longer had keys to it. Crom said he saw the stolen car for 

the first time when he and Hans left in it to find his truck, and although 

Hans drove the stolen car to Matt’s house, Crom asked for and received 

the car keys from Hans because he knew Hans lacked a valid driver’s 

license. When the prosecutor noted that Crom’s testimony as to how he 

obtained the keys was inconsistent with his prior statements to police, 

Crom admitted that he previously told police “a bunch of lies” because he 

did not want to “snitch” on Hans. 

¶5 Crom further testified that after leaving Matt’s apartment, he 

and Hans drove to the location of the stolen truck and spoke with an 

unnamed woman about the truck. After failing to locate the person with 

the keys to his truck, Crom broke into it and tried to start the engine with 

the jiggle key, damaging the ignition, which, he said, his aunt later paid to 

repair. After failing to start the truck, Crom and Hans left to find a friend 

to help hotwire it. The police arrested them shortly thereafter. 

¶6 Prior to trial, Crom notified the prosecutor and the superior 

court of his intent to call Hans as a trial witness. The superior court 

appointed counsel for Hans, who was incarcerated at the time, and had 

 

3Because we reverse and remand for a new trial based on the 

admission of testimony creating an improper adverse inference, we need 

not reach Crom’s argument that the superior court erred in denying his 

motion under Arizona Rule of Criminal Procedure 20. 
STATE v. CROM 

Decision of the Court 

4

him transported to court on the first day of trial. Counsel for Hans 

informed the superior court that Hans intended to invoke his Fifth 

Amendment right to remain silent as to all questions. Crom argued that 

Hans should be forced to invoke his right to remain silent in front of the 

jury because he might change his mind on the stand. Relying on Arizona 

Rule of Evidence 403, the superior court found that calling Hans as a 

witness simply to have him invoke his right to remain silent would “be a 

needless use of the jury’s time,” and excused Hans from testifying. 

¶7 During cross-examination of Crom, and over the objection of 

defense counsel, the superior court allowed the prosecutor to ask Crom 

about Hans’ absence from court, suggesting that Crom failed to call Hans 

because he would not corroborate Crom’s story. The superior court 

denied defense counsel’s request on redirect that Crom be permitted to 

tell the jury that Hans was unavailable because he had invoked his right to 

remain silent. 

¶8 The jury found Crom guilty of theft of means of 

transportation. 

DISCUSSION 

¶9 Crom proffers two bases for his argument that the superior 

court erred in allowing the prosecutor to question him about his failure to 

call potentially exculpatory witnesses at trial: (1) it resulted in an 

impermissible shifting of the burden of proof to him; and (2) it created an 

impermissible adverse inference that the witnesses would not have 

corroborated his story. Crom also challenges the constitutionality of the 

superior court’s jury instructions on the statutory inference under A.R.S. § 

13-2305(1). 

I. Burden-Shifting 

¶10 Under Arizona law, “[w]hen a prosecutor comments on a 

defendant’s failure to present evidence to support his or her theory of the 

case, it 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); State ex rel. McDougall v. Corcoran, 153 Ariz. 

157, 160, 735 P.2d 767, 770 (1987) (“Even where the defendant does not 

take the stand, the prosecutor may properly comment on the defendant’s 

failure to present exculpatory evidence which would substantiate 

defendant’s story.”). 
STATE v. CROM 

Decision of the Court 

5

¶11 Here, the prosecutor’s questions during cross-examination 

and his comments during closing argument regarding the absent 

witnesses did not direct the jury’s attention to Crom’s failure to testify 

because Crom did testify. Thus, we reject Crom’s argument that the 

questioning resulted in improper burden shifting. See State v. Pandeli, 215 

Ariz. 514, 525, ¶ 30, 161 P.3d 557, 568 (2007). 

II. Improper Inference 

¶12 Because Hans invoked his Fifth Amendment right to remain 

silent and was therefore unavailable to both parties, we find that the 

prosecutor’s questioning about Hans’ absence created an improper 

inference, and the superior court erred in admitting the testimony without 

any curative instructions. 

¶13 When a defendant attacks the accuracy of the State’s 

evidence, “elemental fairness” allows the State to comment on the 

defense’s failure to present potentially exculpatory witnesses to which he 

has access. McDougall, 153 Ariz. at 160, 735 P.2d at 770. The defendant’s 

“access” to these witnesses is the foundation of this “elemental fairness,” 

and if a witness is equally available to both sides or not available to either 

side, no party is permitted to create an inference from any other party’s

failure to call that witness. Id.; State v. Condry, 114 Ariz. 499, 500, 562 P.2d 

379, 380 (1977) (citation omitted). 

¶14 In assessing the propriety of a comment regarding an 

uncalled witness, the superior court may consider “whether the witness 

was under the control of the party who failed to call him or her;” 

“whether the party failed to call a seemingly available witness whose 

testimony it would naturally be expected to produce if it were favorable;” 

and “whether the existence or nonexistence of a certain fact is uniquely 

within the knowledge of the witness.” Gordon v. Liguori, 182 Ariz. 232, 

236, 895 P.2d 523, 527 (App. 1995) (citations omitted). 

¶15 Despite the superior court having excused Hans as a witness 

because he invoked his Fifth Amendment right to remain silent, the 

prosecutor repeatedly questioned Crom about Hans’ absence, and, in 

doing so, created a prejudicial inference that Crom had not called Hans 

because his testimony would not support Crom’s story. This prejudice 

was compounded by the superior court’s limitation on the scope of 

information that would be provided to the jury on Hans’ unavailability. 

The relevant testimony follows: 

Prosecutor: Where is Hans right now? 
STATE v. CROM 

Decision of the Court 

6

Crom: In jail. 

Prosecutor: And how long has he been in 

custody, do you know? 

Crom: Nine months, ten months. 

Prosecutor: But you do know exactly where he 

is? 

Crom: Yes, I do. 

Prosecutor: But yet he’s not here to tell the jury 

and verify what you want the jury to believe; 

correct? 

¶16 After the superior court overruled defense counsel’s burdenshifting objection, the questioning continued: 

Prosecutor: You were transported today by the 

Sheriff’s Office to court; correct?

Crom: Yes. 

Prosecutor: And Hans . . . is housed in the 

Sherriff’s custody; correct?

Crom: Yes, he is. 

Prosecutor: So Hans could have been brought 

to this court in the same manner you were to 

tell this jury exactly what you want them to 

believe after you told the police two different 

stories and a third story for the jury here in 

trial; correct? 

Crom: Correct. 

Prosecutor: And yet he’s not here to do that, to 

back up your story? That’s a yes or no 

question. 

Crom: No, he’s not. 

¶17 On redirect, the prosecutor objected to the following 

question posed by defense counsel: “You don’t have any control over how 
STATE v. CROM 

Decision of the Court 

7

deputies . . . transport[] people; correct?” During a bench conference, the 

superior court explained that it could not “have the jury believe that 

[Crom] didn’t have the ability to get [Hans to court] if [Crom] wanted him 

[t]here.” Defense counsel responded that the prosecutor told the jury, 

falsely, that Crom could bring Hans to court when in fact he could not

because he had invoked his Fifth Amendment rights. 

Defense counsel: He invoked. He invoked. Can 

I talk about that? 

The Court: No, we’re not going into whether 

[Hans] invoked. 

Defense counsel: Judge, Mr. Crom did bring 

[Hans] here in front of all of us. He did bring 

him here so that’s absolutely—he did bring 

him here. 

. . . 

Prosecutor: Well, again, Judge, State’s concern, 

the Court picked up on, is the false impression 

that’s being given to the jury that somehow the 

defendant could not procure the witness. 

Defense counsel: We’ll talk about that because 

he did procure the witness. He did procure 

him and we all saw him. 

. . . 

The Court: We will not get into invocations. 

Defense counsel: Your Honor, the Court just 

allowed [the prosecutor] to say to Mr. Crom: 

You have the power to bring Hans [to court] . . 

. and you didn’t. My client did bring Hans . . . 

here in front of all of us, Judge, and he should 

be able to tell the jurors that. 

The Court: You can tell the jurors that [Hans] 

came. You can’t tell them whether or not 

[Hans] invoked or didn’t invoke. . . . You want 

him to invoke in front of the jury, you had the 
STATE v. CROM 

Decision of the Court 

8

right to ask for that, but you chose not to [do] 

so. 

¶18 In short, the superior court ruled that defense counsel could 

“say that [Hans] came [to court] to talk to [Crom]” but they were “leaving 

it at that” and “not getting into whether he invoked or didn’t invoke.” 

¶19 During his closing, the prosecutor again mentioned the 

absence of corroborating witnesses stating “the power of subpoena cuts 

both ways,” and “the Defense . . . can subpoena whoever they choose to 

come in and testify.” 

¶20 Here, because Hans was not available to Crom or to the State 

due to the invocation of his right to remain silent, the State was not 

permitted to comment on his absence from trial. See McDougall, 153 Ariz. 

at 160, 735 P.2d at 770. Thus, the superior court erred by admitting this 

testimony without allowing clarification by defense counsel or providing 

the jury with curative instructions. See State v. Payne, 233 Ariz. 484, 513, ¶ 

120, 314 P.3d 1239, 1268 (2013) (no reversible error for improper 

questioning by prosecutor where the court sustained objections and 

issued curative instructions); State v. Leon, 190 Ariz. 159, 163, 945 P.2d 

1290, 1294 (1997) (“because the record does not reflect a ruling or a 

curative instruction by the court, the potential harm went unmitigated”).

¶21 We now turn to whether the superior court’s error was 

harmless. See State v. Ramos, 235 Ariz. 230, 234, ¶ 8, 330 P.3d 987, 991 

(App. 2014) (harmless error review used when objections are raised at trial 

to a prosecutor’s arguments or comments) (citing State v. Henderson, 210 

Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005) (“Reviewing courts consider 

alleged trial error under the harmless error standard when a defendant 

objects at trial and thereby preserves an issue for appeal.”). 

¶22 The State argues that any conceivable error was harmless 

because the impeachment was cumulative to other legitimately admitted 

evidence that undermined Crom’s credibility, including his prior felony 

convictions, his admission to telling detectives “a bunch of lies,” and his 

failure to call four other witnesses mentioned on direct-examination. We 

disagree.

¶23 First, we note that Hans was a key player in the events 

leading to Crom’s arrest, and the State does not suggest otherwise. 

According to Crom, Hans drove the car to Matt’s house; initiated contact 

with Crom to tell him about his stolen truck; initially possessed the car 
STATE v. CROM 

Decision of the Court 

9

keys; gave Crom the car keys; directed Crom to the unnamed woman’s 

house; told Crom not to speed; and was in the car at the time of the arrest. 

¶24 The centrality of Hans’ involvement was also not lost on the 

jury, who submitted approximately seventeen questions regarding Hans. 

The superior court refused to ask several of these questions, and answers 

elicited from others greatly minimized the apparent role of Hans in the 

events. For instance, jury question 8 asked why a detective who 

interviewed Crom did not ask him about Hans during the interview. The 

detective responded that he “honestly [did not] have an answer for that,” 

except that he knew “that when detectives had arrested [Crom and Hans], 

[Crom] was driving the vehicle and [he] was interested about what 

[Crom] was doing driving the vehicle and where he got the car,” and once 

Crom “said that he got the car from someone [else], [he] didn’t have any 

reason” to ask about Hans because Crom “wasn’t giving a story about 

Hans.” The improper adverse inference therefore greatly downplayed the 

importance of Hans’ involvement in this case. 

¶25 In addition, detectives on the case provided testimony that 

was favorable to Crom. For example, one detective testified that unlike 

most stolen cars, here there were no signs of forced entry, such as a broken 

window, a jammed ignition, hanging wires, or other damage. Further, 

police found the actual car key in the ignition at the time of Crom’s arrest, 

and Crom had a reasonable explanation for having a jiggle key in his 

possession: he intended to use it to try to start his truck. 

¶26 Given the significance of Hans’ role in the events leading to 

Crom’s arrest and the existence of testimony favorable to Crom, we 

cannot say that the improper adverse inference created by the prosecutor 

was harmless beyond a reasonable doubt. We therefore reverse Crom’s 

conviction for theft of means of transportation and remand for a new trial. 

III. Jury Instructions 

¶27 Crom also challenges the constitutionality of the superior 

court’s jury instructions on the statutory inference under A.R.S. § 13-

2305(1). Specifically, Crom argues the jury instruction unconstitutionally 

shifted the burden of proof to him by forcing him to testify, or by forcing 

him to produce other evidence. To avoid these on remand, we address 

them now. We review constitutional challenges de novo and construe 

statutes, when possible, to uphold their constitutionality. State v. 

Hargrave, 225 Ariz. 1, 13, ¶ 42, 234 P.3d 569, 581 (2010). 
STATE v. CROM 

Decision of the Court 

10

¶28 Consistent with the statute, and as requested by the 

prosecutor, the superior court instructed the jury as follows: 

Proof of possession of property recently stolen, 

unless satisfactorily explained, may give rise to 

an inference that the defendant was aware of 

the risk that such property had been stolen or 

in some way participated in its theft. 

You are free to accept or reject this inference as 

triers of fact. You must determine whether the 

facts and circumstances shown by the evidence 

in this case warrant any inference that the law 

permits you to make. 

Even with the inference, the State has the 

burden of proving each and every element of 

the offense of theft of means of transportation 

beyond a reasonable doubt before you can find 

the defendant guilty. 

¶29 “There is a strong presumption supporting the 

constitutionality of statutes, and the party challenging the validity of a 

statute has the burden to establish its invalidity beyond a reasonable 

doubt.” State v. Ramsey, 211 Ariz. 529, 536, ¶ 17, 124 P.3d 756, 763 (App. 

2005) (quoting State v. Padilla, 169 Ariz. 70, 71, 817 P.2d 15, 16 (App. 1991)). 

“When evaluating the constitutionality of an inference, our first task is to 

determine whether the inference is mandatory or permissive.” State v. 

Cole, 153 Ariz. 86, 89, 734 P.2d 1042, 1045 (App. 1987). “Mandatory 

inferences violate the due process clause if they relieve the state of its 

burden to prove, beyond a reasonable doubt, every essential element of an 

offense.” Id. Instructions creating a permissive inference, however, 

ordinarily do not shift the burden of proof because the State still must 

convince the jury that the proven predicate facts suggest inferring the 

conclusion. Id. 

¶30 Here, the jury instruction set forth a permissive inference, 

not a mandatory presumption, given the use of the phrase “may give 

rise.” See State v. Mohr, 150 Ariz. 564, 567, 724 P.2d 1233, 1236 (App. 1986) 

(concluding that “gives rise to the inference” constitutes a mandatory 

presumption); State v. Moya, 138 Ariz. 12, 14, 672 P.2d 964, 966 (App. 1983) 

(“may determine” is permissive); State v. Earby, 136 Ariz. 246, 247-48, 665 

P.2d 590, 591-92 (App. 1983) (“may be inferred” is permissive). The 

permissive nature of the instruction is reinforced by the sentences that 
STATE v. CROM 

Decision of the Court 

11

follow: “You are free to accept or reject this inference as triers of fact. You 

must determine whether the facts and circumstances shown by the 

evidence in this case warrant any inference that the law permits you to 

make.” Thus, because the inference is permissive, we reject Crom’s 

argument that the instruction unconstitutionally shifted the burden of 

proof to him.

¶31 Finally, Crom argues that the facts of the case did not 

support giving the permissive inference instruction. Because we reverse 

and remand Crom’s conviction, we need not address this argument.

CONCLUSION 

¶32 For the foregoing reasons, we reverse Crom’s conviction for 

theft of means of transportation and remand for a new trial.