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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL RAE WILSON, Appellant.

Nos. 1 CA-CR 22-0077

 1 CA-CR 22-0078

 (Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2018-121688-001, CR2018-118176-001

The Honorable Jacki Ireland, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Gracynthia Claw

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Damon A. Rossi

Counsel for Appellant

FILED 3-30-2023
STATE v. WILSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which 

Presiding Judge Jennifer M. Perkins and Judge D. Steven Williams joined.

P A T O N, Judge:

¶1 Daniel Rae Wilson appeals his convictions and sentences on

one count of aggravated identity theft, ten counts of forgery, and three 

counts of criminal possession of a forgery device. He argues the superior 

court violated Arizona Rule of Evidence (“Rule”) 404(b) by admitting

alleged propensity evidence. He further asserts the State engaged in

prosecutorial misconduct by introducing that evidence and referencing it 

in closing argument. He also challenges the admission of alleged profile 

evidence. Finally, he contends the superior court improperly commented 

on a detective’s testimony. For reasons that follow, we affirm his 

convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the 

verdicts, resolving all inferences against Wilson. See State v. Reaves, 252 

Ariz. 553, 558, ¶ 2 (App. 2022). A police officer arrived at a parking lot early 

one April morning to investigate a report of a suspicious vehicle. There, he

found Wilson asleep and alone in the driver’s seat of a parked car, which 

was registered to a female. After the officer asked for his name and 

identification, Wilson abruptly sped away. He soon crashed the car in front 

of a house, then ran through the neighborhood. Officers located him hiding 

inside a shed where they also found numerous credit, debit, and gift cards

(collectively, “credit cards”) stacked on a shelf. The shed’s owner, M.A.,

had never met Wilson, and she had not stored any credit cards in the shed.

¶3 When officers searched the crashed car, they found Wilson’s 

wallet, a backpack, two laptops, two keyboards, methamphetamine, and 

marijuana. The backpack contained a credit-card embosser, a credit-card 

encoder, and a chip scanner (collectively, “forgery devices”). 

¶4 Detective Kim, who specializes in fraud and identity-theft 

investigations, analyzed the evidence seized from the shed and the car.

Wilson was not the legal accountholder for any of the credit cards, but his
STATE v. WILSON

Decision of the Court

3

name had been embossed on several of them. According to Detective Kim,

a person could use the forgery devices to read and remove account numbers

from a card’s magnetic strip. The person could then encode the numbers

and other names onto the magnetic strips of different cards. At that point, 

the person could make purchases with the card or sell it.

¶5 The State obtained two indictments against Wilson. The first

indictment charged him with one count of aggravated identity theft, a class 

three felony; ten counts of forgery, class four felonies; and five counts of 

possessing a forgery device, class six felonies. The second indictment 

charged him with one count each of possessing methamphetamine, a class 

four felony; possessing marijuana, a class six felony; and criminal trespass 

in the first degree, a class one misdemeanor. The superior court later 

granted the State’s motions to consolidate the criminal-trespass charge with

the first indictment and dismiss the drug-possession counts, which the 

court refused to consolidate with the other charges.

¶6 At trial, Wilson’s counsel conceded in opening statement that

Wilson had been trespassing in the shed, that the prosecution could prove 

the credit cards had been “altered,” and that the associated credit card 

accounts had been “compromised.” Although his counsel acknowledged 

that Wilson had made “mistakes” and “lapses in judgment” that day, he 

argued the police had likewise made errors and “cut corners” in their

investigation, leading to “mental leaps” and “quick conclusions.” Based on

those asserted deficiencies, he argued that the State would not be able to

prove Wilson “knowingly possessed forged cards” and had “the intent to 

defraud[.]”

¶7 The State presented the testimony of several victims whose 

account numbers had been encoded on the seized credit cards. The victims 

verified that they did not recognize the cards or the named financial 

institutions. Four victims further explained that they had unauthorized 

transactions on their accounts.

¶8 The State called Detective Kim, who described his

investigation. He obtained the information encoded on the credit cards’ 

magnetic strips using a card reader. The financial institutions named on 

the cards differed from the encoded information. Detective Kim also 

noticed suspicious features on several of the cards, including “really tight” 

embossing, “conspicuous” numbers that were “slightly raised,” and 

account numbers embossed on the front that did not match the encoded 

information.
STATE v. WILSON

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¶9 On cross-examination, Detective Kim acknowledged that he 

had not done any “quality control” on the forgery devices and thus did not 

know whether they worked properly. He had not “brushed them for 

fingerprints,” nor had the police conducted any forensic analysis of the 

laptops. Further, he never determined who had manufactured the cards, 

he did not “follow up with the stores or locations where any alleged 

fraudulent use occurred,” and he did not know whether the “cards

themselves [were] responsible for those [unauthorized] charges.”

¶10 On redirect examination, Detective Kim explained he did not 

examine the forgery devices for fingerprints because based on his 

experience, devices that have been touched by multiple subjects, as was the 

case here, are not typically fingerprinted. And he did not believe 

fingerprinting was necessary based on the circumstances of the case. He 

also addressed why he did not conduct any forensic analysis: 

We have a three-year wait for DNA analysis because this is 

considered a property offense. Again, based on my 

assessment of what the officers told me and the evidence 

recovered, I was highly confident in this case and the 

recovered evidence absent DNA evidence or fingerprints. . . . 

Our present wait for a forensic search [of the laptops] . . . [is] 

upwards to 12 months . . . because it’s a property offense. I 

used the judgment based on the evidence at hand. Why 

would I delay my case[?] Why would I delay justice for the 

known victims[?] I fully acknowledge that there is a 

possibility of 100 [victims] . . . as [defense counsel] said. That’s 

true. We don’t know because I did not get the forensic tests 

done. But based on what we had, potentially eight to ten 

victims—the statute asked for three. Based on my normal 

practice, we shoot for a goal of five. Under no circumstances 

would we ever present a case with 100 victims, 50 victims, 

even two dozen victims. It’s cost prohibitive. It’s time 

prohibitive. Again, it was my responsibility and judgment, 

my assessment. That’s what I chose to do. 

¶11 The State concluded its redirect examination following that 

exchange. Once Detective Kim left the stand, the trial judge sua sponte

instructed the jury: 

There w[ere] questions and answers regarding the value 

judgment and decisions of Detective Kim. None of that 

should be considered . . . to determine beyond a reasonable 
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doubt whether the State has proven [the] elements of the 

offenses. . . . [T]he opinions of police officers or even the 

opinion of the lawyers or my opinion doesn’t mean anything. 

It’s your job.

¶12 After the State rested, the superior court granted Wilson’s 

motion for judgments of acquittal on two forgery-device charges but denied 

it on the remaining counts. Wilson did not testify or call any witnesses in 

his defense.

¶13 In closing argument, Wilson’s counsel again acknowledged

that Wilson trespassed in the shed, the credit cards were altered, Wilson’s 

name was on the cards, “[t]here was fraudulent activity on the victims’ 

accounts,” and “[t]he items in the backpack, if operable, could theoretically 

alter cards.” He also argued that Wilson fled and hid from the officers

because he had an outstanding arrest warrant. Despite those facts, his 

counsel maintained that the State failed to prove Wilson “knew that these 

cards were altered or forged, that [he] had intent to use them unlawfully

[or] defraud others, [and that he] was ever in possession of the items found 

in the backpack.” And he assailed Detective Kim’s performance in 

advancing the defense’s deficient-investigation theory, arguing that not 

only could Detective Kim not prove the seized cards were ever used, but he 

did not reach out to the businesses for potential eyewitness testimony, 

leaving the “real possibility that the person responsible for the charges” was 

someone other than Wilson. For the forgery-device charges, Wilson’s 

counsel argued that doubt existed as to Wilson’s ownership of the backpack 

because it was found in a car with a different registered owner.

¶14 In rebuttal, the prosecutor noted that the backpack was in 

Wilson’s “immediate reach,” and even though Wilson was not the car’s 

registered owner, he “had some authority to drive the car” and thus had

“authority to possess the things that were in the car.” He also urged that 

Detective Kim’s decision not to identify the credit cards’ user was 

“immaterial” because none of the charges contained an “element which 

require[d] [the jury] to determine . . . whether [Wilson had] used those cards 

sometime in the past.”

¶15 The jury found Wilson guilty as described above. The 

superior court sentenced him to an aggregate term of 15 years’

imprisonment. We have jurisdiction to hear his timely appeal under Article 

6, Section 9, of the Arizona Constitution and Arizona Revised Statutes 

(“A.R.S.”) Sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
STATE v. WILSON

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DISCUSSION

I. Asserted Rule 404(b) Violation and Prosecutorial Error

¶16 Wilson argues the admission of the victims’ testimony 

recounting the unauthorized transactions on their accounts violated Rule 

404(b)’s prohibition on propensity evidence. He further alleges the State

committed prosecutorial error by introducing that testimony and using it

in closing argument. Wilson characterizes the prosecutor’s actions as 

“misconduct” based on his allegation that the prosecutor intentionally 

misused the challenged evidence. Because we conclude Wilson has not 

shown error, we use the term “prosecutorial error,” consistent with our 

supreme court’s directive in Matter of Martinez, 248 Ariz. 458, 470, ¶ 47 

(2020). Wilson’s failure to raise his challenges in the superior court limits 

our review to fundamental, prejudicial error. See State v. Hulsey, 243 Ariz. 

367, 381, ¶ 38 (2018).

¶17 Under fundamental-error review, Wilson carries the burden 

to show trial error exists, the error is fundamental, and the error caused him 

prejudice. See State v. Riley, 248 Ariz. 154, 170, ¶ 24 (2020). Trial errors are

fundamental when they (1) go to the “foundation of the case,” (2) deprive 

the defendant of “a right essential to his defense,” or (3) are “so egregious 

that [the defendant] could not possibly have received a fair trial.” State v. 

Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

¶18 Defendants must make a separate showing of prejudice under 

the first two fundamental-error categories; errors in the third category are 

inherently prejudicial. Id. To make such a showing, defendants must 

establish that “a reasonable jury could have plausibly and intelligently 

returned a different verdict” absent the error. Id. at 144, ¶ 31. “A reasonable 

jury is composed of persons of average intelligence and judgment who use 

common sense” in evaluating the evidence and applying the given 

instructions. Id. (citation omitted). The “could have” inquiry is objective 

and demands an examination of the entire record, “including the parties’ 

theories and arguments as well as the trial evidence.” Id.

¶19 Rule 404(b)(1)–(2) bars the admission of evidence of “other

crimes, wrongs, or acts . . . to prove the character of a [defendant] in order 

to show action in conformity therewith” but authorizes its admission for 

non-propensity purposes, “such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident.” 

Before admitting other-act evidence, courts “must first find that there is 

clear and convincing proof both as to the commission of the other bad act 
STATE v. WILSON

Decision of the Court

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and that the defendant committed the act.” State v. Allen, 253 Ariz. 306, 333, 

¶ 57 (2022) (citation omitted). 

¶20 Here, it is undisputed that the record contains no evidence

indicating Wilson made the unauthorized transactions; indeed, Wilson’s 

claim is predicated on this point. None of the victims accused Wilson of the 

fraudulent purchases, and Detective Kim repeatedly acknowledged that he 

neither knew nor attempted to discover the perpetrator’s identity. As a 

result, this testimony did not implicate other act evidence. See Rule 404(b).

¶21 Nonetheless, Wilson asserts the prosecutor improperly 

insinuated in closing argument that Wilson had, in fact, committed the

uncharged acts, citing the following italicized comment in support: “Was 

[Wilson] knowledgeable about the devices’ characters, and did he intend to 

commit fraud? He clearly knew of the devices’ characters. There’s evidence 

of past fraudulent use by [him], meaning his creation of the cards themselves.”

We disagree, given that the prosecutor immediately clarified that he was

alleging Wilson had manufactured the cards. Further, the comment occurred

within the context of discussing the forgery devices, not the unauthorized 

transactions. See State v. Rutledge, 205 Ariz. 7, 13, ¶ 33 (2003) (explaining 

that the propriety of a prosecutor’s comment depends on the comment’s 

context). Nowhere in the cited comment—or anywhere else—did the 

prosecutor blame Wilson for using the cards to make the fraudulent 

purchases found on the victims’ accounts. Thus, we find no merit to 

Wilson’s complaint.

¶22 Wilson also cites State v. Holsinger, 124 Ariz. 18 (1979), to 

support his argument that the prosecutor’s conduct entitles him to a new 

trial. But that case is inapposite here. There, the prosecutor asked a witness 

whether he knew that the defendant had a “long criminal record” even 

though the defendant had no such record. Id. at 20. Our supreme court 

found that the question was improper under evidentiary and ethical rules,

constituting reversible error. Id. at 20–22. Here, no evidence connected 

Wilson to the fraudulent acts, and the prosecutor never accused him of

committing them, let alone hinted at false facts about his criminal history.

¶23 Wilson’s reliance on State v. McGann, 132 Ariz. 296 (1982), is 

also misplaced. In that case, our supreme court found the admission of 

other act evidence, namely evidence of other uncharged forgeries involving 

different victims, was prejudicial, fundamental error because the evidence 

was critical to the prosecutor’s case and founded in hearsay testimony. Id.

at 298–99. Here, the evidence of the credit card transactions was not critical 
STATE v. WILSON

Decision of the Court

8

to the State’s case because none of the charges required proving fraudulent 

use nor was it introduced as evidence of Wilson’s other acts.

¶24 Moreover, Wilson has not shown prejudice. He contends the 

admission of the victims’ testimony “relieved the State of its burden to 

prove that [he] knew the nature of the items in the car and intended to use 

them to defraud.” But he does not explain how the challenged evidence

did so, nor does he cite any record evidence to support his claim. Wilson’s

sole defense to the forgery-device charges was that he had no knowledge 

or ownership of them, not that he possessed them for lawful purposes. And

as noted above, the jury was well aware the State could not tie Wilson to 

the unauthorized transactions. Accordingly, he has not demonstrated that 

“a reasonable jury could have plausibly and intelligently” acquitted him 

had the court excluded the victims’ testimony. Escalante, 245 Ariz. at 144, ¶ 

31; see State v. Fierro, 254 Ariz. 35, 41, ¶ 21 (2022) (“The ‘could have’ standard 

requires a showing far greater than a metaphysical possibility and 

necessarily excludes imaginative guesswork.” (citation omitted)).

¶25 Finally, because the challenged testimony did not trigger a 

Rule 404(b) analysis, Rules 401 through 403 governed its admissibility. See 

State v. Togar, 248 Ariz. 567, 573-74, ¶¶ 19, 22 (App. 2020) (noting

admissibility is generally assessed under Rules 401 through 403). Wilson, 

however, does not argue in his opening brief that the evidence’s admission

violated the applicable Rules. Thus, he has waived any such claim of error.

See Ariz. R. Crim. P. 31.10(a)(7)(A) (Opening briefs must contain

“contentions with supporting reasons for each contention, and with 

citations of legal authorities and appropriate references to the portions of 

the record on which the appellant relies.”); State v. Bolton, 182 Ariz. 290, 298 

(1995) (“Failure to argue a claim on appeal constitutes waiver of that 

claim.”).

¶26 In Wilson’s reply brief, he disputes the State’s argument on 

appeal that the evidence was relevant and admissible under Rules 401 

through 403. We need not consider issues an appellant raises for the first 

time in a reply brief. See State v. Watson, 198 Ariz. 48, 51, ¶ 4 (App. 2000). 

That said, Wilson makes no attempt to explain how any asserted error was 

fundamental and prejudicial. His failure to do so is fatal to his protest. See 

Escalante, 245 Ariz. at 142, ¶ 21; see also State v. Vargas, 249 Ariz. 186, 190, 

¶ 13 (2020) (“[I]f a defendant simply asserts a general claim of error on 

appeal and fails to develop it, a court is not obligated to consider it.”). In 

any event, his counterargument is effectively identical to his argument that 

the victims’ testimony breached Rule 404(b), which we have addressed and

rejected. Wilson is therefore not entitled to relief.
STATE v. WILSON

Decision of the Court

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II. Alleged Profile Evidence

¶27 Citing Escalante, Wilson asserts the superior court improperly

allowed the State to elicit testimony from Detective Kim that “create[d] a 

profile of [him] as a person who ran a ‘forgery mill.’” We review his 

unpreserved claim for fundamental, prejudicial error. See Escalante, 245

Ariz. at 140, ¶ 12.

¶28 “Describing evidence as ‘profile’ evidence is a shorthand way 

of saying that the evidence is offered to implicitly or explicitly suggest that 

because the defendant” possesses “one or more of an informal compilation 

of characteristics or an abstract of characteristics typically displayed by 

persons engaged in a particular kind of activity,” the jury “should conclude 

that the defendant must have committed the crime charged.” State v. Haskie, 

242 Ariz. 582, 585-86, ¶ 14 (2017) (citation omitted). The prosecution is 

prohibited from offering profile evidence as substantive proof of guilt 

because it creates a “risk that a defendant will be convicted not for what he 

did but for what others are doing.” Id. at 586, ¶ 15 (citation omitted). 

Nonetheless, “[e]xpert testimony about general behaviors is permitted if 

helpful to a jury’s understanding of the evidence.” Escalante, 245 Ariz. at 

143, ¶ 25.

¶29 Detective Kim’s testimony explaining the nature and 

potential uses of the forgery devices did not invite the jury to draw the 

impermissible inference that Wilson was guilty of the charged crimes 

because he shared traits with forgery-mill operators. Instead, the testimony

provided context for the jurors and established facts about physical 

evidence relevant to the forgery-device charges. See A.R.S. § 13-2003(A)(1)

(criminal possession of a forgery device requires inter alia proof that a 

person made or possessed a device “specifically designed or adapted for 

use in forging written instruments”); cf. Escalante, 245 Ariz. at 143, ¶ 25 

(noting qualified officers could permissibly testify that “dryer sheets and 

coffee beans, like the ones found in [the defendant’s] truck, can be used to 

mask the smell of illegal drugs from police dogs”). At no point did the 

detective list traits common to forgery-mill operators or link his testimony 

to Wilson’s conduct. Therefore, Detective Kim’s testimony did not 

constitute improper profile evidence.

¶30 Although Wilson contends otherwise, Escalante does not 

support a contrary conclusion. That case largely turned on whether the 

defendant possessed a baggie of methamphetamine the police found “in the 

middle of the road” hours after the defendant’s arrest, which “cast[ed]

doubt on whether he had discarded the drug.” Escalante, 245 Ariz. at 143, 
STATE v. WILSON

Decision of the Court

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¶ 26. No fingerprint analysis was conducted, and DNA testing “revealed

nothing” indicating Escalante had possessed the baggie. Id. To prove the 

case, the State introduced drug-courier profile evidence as substantive 

evidence of guilt that “permeated the trial”: “[e]ight officers over three 

days” explained the “typical behaviors of drug-traffickers,” Id. at 143, ¶ 27, 

and their “testimony was only relevant to demonstrate that Escalante’s 

behaviors were consistent with drug trafficking.” Id. at 142, ¶ 24. Further,

in opening statement and closing argument, the prosecutor invited the jury 

to compare Escalante’s behavior to the general behaviors of drug traffickers

in reaching its verdicts. See id. at 142–43, ¶¶ 24, 27.

¶31 Our supreme court concluded that admitting the drugcourier profile evidence constituted fundamental error under prong one 

because it impacted a “pivotal” factual dispute. Id. at 143, ¶ 26. The court 

further found that Escalante had established prejudice, reasoning “the 

admissible evidence supporting the prosecution’s case on these counts was 

circumstantial and prompted several questions from the jury about the 

baggie’s ownership.” Id. at 145–46, ¶ 40.

¶32 Unlike in Escalante, the alleged profile evidence here did not 

serve as the “linchpin” of the State’s case. Id. at 143, ¶ 27. Instead, the 

prosecutor argued that the credit cards embossed with Wilson’s name 

provided the most incriminating evidence against him. And unlike the 

baggie’s remote location in Escalante, the police found the forgery devices 

in the car where Wilson had been sleeping alone and from which he fled. 

Further, Wilson’s jury did not ask any questions about his possession of the 

forgery devices, and the superior court instructed the jurors that in reaching 

their verdicts, they could consider evidence that he fled and hid. Therefore, 

Wilson has not shown any hypothetical error would have gone to the 

foundation of the case.

¶33 Even assuming arguendo the existence of fundamental error, 

Wilson has not demonstrated resulting prejudice. Without identifying any 

record evidence in support, he asserts in conclusory fashion that “[a]bsent

th[e] impermissible profile evidence, the jury could have acquitted [him] of 

at least the Forgery Device counts” because “no testimony at trial revealed 

that the police found anything inside the backpack . . . that linked [him] 

directly to its[ ] contents.” Not only does Wilson fail to address the other 

charges, but he does not explain how testimony that the forgery devices

could generally be used to alter credit cards—a point he conceded—

affected the jury’s analysis of whether he possessed those items. Nor does 

he make any effort to show the challenged testimony impeded his defense

to the forgery-device charges, which was disclaiming knowledge and 
STATE v. WILSON

Decision of the Court

11

ownership of the items. Because “[s]peculative prejudice is insufficient 

under fundamental error review[,]” State v. Martin, 225 Ariz. 162, 166, ¶ 15 

(App. 2010), his claim fails. 

III. Instruction Following Detective Kim’s Testimony

¶34 Wilson contends the superior court’s instruction recounted

supra ¶ 11 violated the Arizona Constitution’s prohibition against judicial 

commentary on trial evidence. The State counters that in context, the

instruction “referred to the detective’s opinion about the case’s strength and 

its impact on his investigative decision-making, which were, respectively, 

improper and irrelevant,” and the court properly told the jury to disregard 

that testimony. As Wilson acknowledges, we apply fundamental-error 

review to his claim. See Escalante, 245 Ariz. at 140, ¶ 12. 

¶35 We agree with the State. “A judge violates Arizona’s 

constitutional prohibition against commenting on evidence by expressing 

an opinion as to what the evidence proves, in a way that interferes with the 

jury’s independent evaluation of that evidence.” Riley, 248 Ariz. at 179, ¶ 85

(citation omitted); see also Ariz. Const. art. 6, § 27. Here, the instruction 

neither referred to specific evidence nor conveyed the judge’s opinion of 

what the evidence proved. That the superior court gave the instruction

following redirect examination indicates the court’s purpose was to 

alleviate any potential prejudice from Kim’s arguably objectionable

opinions about the quality of his investigation. See State v. Trostle, 191 Ariz.

4, 22 (1997) (“Trial judges are presumed to know the law and to apply it in

making their decisions.” (quoting Walton v. Arizona, 497 U.S. 639, 653 

(1990)). Conversely, had the trial judge intended—as Wilson suggests—to 

communicate to the jury that the judge “assigned no value to [his] line of 

cross-examination,” it is reasonable to infer the judge would have given the 

instruction immediately after Wilson had finished his questioning.

¶36 Wilson also has not shown he was prejudiced by the claimed 

error. Without elaboration or record support, he asserts “[a] reasonable 

probability existed that, had the court restrained itself, the jury may have 

found [him] not guilty on some, if not all charges.” His conjecture is 

insufficient to obtain relief under fundamental-error review. See State v. 

Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (explaining defendants must 

“affirmatively prove prejudice” on fundamental-error review).
STATE v. WILSON

Decision of the Court

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CONCLUSION

¶37 We affirm Wilson’s convictions and sentences.