NOTICE: NOT FOR PUBLICATION.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.

RUSSELL EUGENE SHIELDS, II, Appellant.

No. 1 CA-CR 13-0133

Appeal from the Superior Court in Mohave County

No. S8015CR201100954

The Honorable Derek C. Carlisle, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman

By Jill L. Evans

Counsel for Appellant
STATE v. SHIELDS

Decision of the Court

2

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which 

Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.

P O R T LE Y, Judge:

¶1 Defendant Russell Eugene Shields, II, appeals his conviction 

and sentence for possession of dangerous drugs, a class 4 felony. He 

argues that: (1) there was insufficient evidence to support his conviction; 

(2) the trial court committed reversible error by failing to instruct the jury 

on his right not to testify at trial; and (3) the court abused its discretion in 

imposing the sentence in this case. Because we find no legal error, we 

affirm. 

FACTS1 AND PROCEDURAL HISTORY

¶2 A multi-law enforcement agency narcotics task force called 

the Mohave Area General Narcotics Enforcement Team executed a search 

warrant on Shields’ Kingman home and discovered a .15 gram “shard of 

methamphetamine” on the inside molding above the door to the master 

bedroom. They also discovered a digital scale on a kitchen counter and a 

number of “smaller plastic baggies” inside a kitchen drawer. 

¶3 Shields was subsequently indicted for possession of 

dangerous drugs (methamphetamine) and possession of drug 

paraphernalia. The State also filed allegations that Shields had prior 

felony convictions and was on felony release. 

¶4 The case proceeded to trial. After the State rested its case, 

the court granted Shields’ motion pursuant to Arizona Rule of Criminal 

Procedure (“Rule”) 20 in part and dismissed the possession of drug 

paraphernalia charge. The jury subsequently found Shields guilty of 

 

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

jury’s verdict and resolve all reasonable inferences against defendant. 

State v. Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).
STATE v. SHIELDS

Decision of the Court

3

possession of dangerous drugs, and that he committed the offense while 

on release. 

¶5 At the sentencing hearing, the trial court found that Shields 

had one historical prior felony. He was then sentenced to prison for five 

years. 

DISCUSSION

I. Sufficiency of the Evidence

¶6 Shields argues that the trial court erred by denying his Rule 

20 motion to dismiss the possession of dangerous drug charge. He 

contends that there was insufficient evidence that he possessed the 

methamphetamine found on top of the molding in his bedroom. We 

review the question of whether the evidence was sufficient to withstand 

the Rule 20 motion de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 

P.3d 1188, 1191 (2011). 

¶7 In reviewing the record, the key question is “whether the 

record contains substantial evidence to warrant a conviction.” Id. at ¶ 14

(internal quotation marks omitted). 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.” Id. at ¶ 16 

(quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990)) 

(internal quotation marks omitted). “Both direct and circumstantial 

evidence should be considered in determining whether substantial 

evidence supports a conviction.” Id. If reasonable minds may differ on 

the inferences to be drawn from the facts, the case must be submitted to 

the jury and the trial judge has no discretion to enter a judgment of 

acquittal. Id. at 563, ¶ 18, 250 P.3d at 1192.

¶8 Here, the trial court was faced with the question of whether 

Shields was in actual or constructive possession of the drugs found on top 

of the bedroom molding.2 The court concluded that the jury had to decide 

 2 To “possess” is defined as “knowingly to have physical possession 

or otherwise to exercise dominion or control over property.” Ariz. Rev. 

Stat. (“A.R.S.”) § 13-105(34) (West 2014). Constructive possession exists 

when an item of property is found in a place under a defendant’s 

dominion or control “and under circumstances from which it can be 

reasonably inferred that the defendant had actual knowledge of the 

existence of the [property].” State v. Cox, 214 Ariz. 518, 520, ¶ 10, 155 P.3d 
STATE v. SHIELDS

Decision of the Court

4

the issue because the jury must determine whether Shields had actual or 

constructive possession of the “shard” discovered on the molding; a 

decision it would have to make in determining whether the State met its 

burden of proof beyond a reasonable doubt.

¶9 The trial court did not err. The undisputed trial evidence 

established that the only drugs found in the house were in the master 

bedroom and that only Shields and his girlfriend used the master 

bedroom. Neither the court nor the jury heard any evidence that 

suggested that Shields’ friend, Joshua, was in the master bedroom at any 

time. 

¶10 The testimony also established that the shard was on top of 

the door molding some seven feet off the master bedroom floor. The court 

and jury heard that Shields was “five-seven to five-eight” and his 

girlfriend was “five-two.” The jury, as a result, had to decide whether in 

the shared space it would be easier for Shields to reach the top of the 

doorway; whether it was more likely that his girlfriend placed the drugs 

there; or whether someone else placed the shard where it was found. The 

testimony required the jury, not the judge, to determine the facts and who, 

if anyone, was responsible for the drugs on the molding.

¶11 Because the jury had to decide the facts, the trial court did 

not err by denying the Rule 20 motion. See id. And, based on our 

independent review of the trial evidence and the resulting reasonable 

inferences, as well as the jury instructions on actual possession, 

constructive possession and mere presence, we find that substantial 

evidence supports the guilty verdict. See id. at 562, ¶ 14, 250 P.3d at 1191.

II. Failure to Instruct on Defendant’s Right Not to Testify

¶12 At the close of the case, the trial court reviewed the final jury 

instructions with counsel. The trial court stated that it would not give the 

 

357, 359 (App. 2007). Furthermore, it is not necessary to show that a 

defendant exercised exclusive possession or control over the drugs or the 

place in which the drugs were found; “control or right to control is 

sufficient.” State v. Curtis, 114 Ariz. 527, 528, 562 P.2d 407, 408 (App. 

1977); see State v. Miramon, 27 Ariz. App. 451, 452, 555 P.2d 1139, 1140 

(1976) (noting that possession of narcotic drugs may be sole or joint, and 

two or more persons may have joint possession thereof).
STATE v. SHIELDS

Decision of the Court

5

standard instruction that a defendant is not required to testify on his own 

behalf. Instead, the court stated that it would tell the jury that: “The State 

must prove [guilt] beyond a reasonable doubt, based on the evidence. The 

Defendant is not required to produce evidence of any kind.” The court

noted that its proposed instruction would essentially be applicable 

whether Shields or other witnesses testified or did not testify.

¶13 Defense counsel objected to the proposed instruction

because “it [didn’t] specifically talk about the Defendant testifying.” She 

stated that she preferred to have the court give the jury instruction that 

stated, “The Defendant is not required to testify, and it would be acting on 

his attorney’s advice,” along with the instruction that specified, “If the 

defendant did not testify, they’re not to hold that against him.”

¶14 The trial court overruled the objection by reasoning:

Well, the instruction that is left says: "The 

Defendant is not required to produce evidence 

of any kind. The decision on whether to

produce any evidence is left to the Defendant, 

acting with the advice of an attorney. The 

Defendant's decision not to produce any 

evidence is not evidence of guilt." The one that 

was taken out is: "You must not conclude the 

Defendant is likely to be guilty because the 

Defendant did not testify. The Defendant [is] 

not required to testify, acting with the advice 

of an attorney. You must not let this choice 

affect your deliberations in any way."

And the only difference is one says he's not

required to produce evidence of any kind; the 

other says he's not required to testify. That's 

the primary difference. And evidence, as they 

learned on the first page, means the testimony 

of witnesses and the exhibits introduced into 

court, so not required to produce evidence of 

any kind means he's not required to produce

any testimony, and that would include his own 

testimony. So I think it is covered by the 

instruction which the Court plans to give, and 

it would be redundant to include it twice.
STATE v. SHIELDS

Decision of the Court

6

And the instruction that I am giving is more

encompassing because he's not producing any 

evidence in this case, including his own 

testimony. 

So having considered your request, Ms. Dees, I 

am not going to give the Defendant need not 

testify instruction.

Accordingly, the trial court instructed the jury:

The State must prove guilt beyond a 

reasonable doubt based on the evidence. The 

Defendant is not required to produce evidence 

of any kind. The decision whether to produce

any evidence is left to the Defendant acting 

with the advice of an attorney. The 

Defendant’s decision not to produce any 

evidence is not evidence of guilt.

¶15 Here, Shields argues that the trial court committed reversible 

error by failing to give the standard jury instruction when a defendant 

does not testify. He argues that the failure of the court to include the 

specific language that the jury was not to “draw any negative inference” 

from his failure to testify deprived him of a fair trial by possibly “tilt[ing]

the scales toward conviction.”

¶16 Generally, we review the refusal to give a jury instruction for 

an abuse of discretion. State v. Moody, 208 Ariz. 424, 467, ¶ 197, 94 P.3d 

1119, 1162 (2004). When assessing the adequacy of jury instructions on 

appeal, we view the instructions in their entirety to determine whether 

they adequately reflect the law. State v. Ovante, 231 Ariz. 180, 188, ¶ 35, 

291 P.3d 974, 982 (2013). “A court is not required to give a separate 

instruction if its substance has already been covered by other instructions, 

and a conviction will not be reversed based on the instructions unless, 

taken as a whole, they misled the jurors.” Id. (citation omitted) (quoting 

State v. Zaragoza, 221 Ariz. 49, 53, ¶ 15, 209 P.3d 629, 633 (2009)) (internal 

quotation marks omitted).

¶17 There are, however, certain instructions that fall outside of 

the general rule of review. For example, trial courts must give the Portillo

reasonable doubt instruction. State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 

970, 974 (1995) (“Pursuant to our supervisory authority . . . we instruct 

that in every criminal case trial courts shall give the reasonable doubt 
STATE v. SHIELDS

Decision of the Court

7

instruction that we set forth below.”); State v. Sullivan, 205 Ariz. 285, 287-

88, ¶¶ 12-16, 69 P.3d 1006, 1008-09 (App. 2003) (“[T]here is no question 

that the trial court erred by removing a portion of the mandated Portillo

instruction and replacing it with language of its own choosing.”). 

¶18 A trial court must also, upon request, instruct the jury that a 

defendant is not required to testify; the decision on whether to testify is 

left to the defendant, acting with the advice of his attorney; they must not 

conclude that the defendant is likely to be guilty because he does not 

testify; and they must not discuss this fact or let it affect their deliberations 

in any way. State v. Piper, 113 Ariz. 390, 392-93, 555 P.2d 636, 638-39 (1976)

(“The trial court is required . . . to give this instruction upon request of a 

defendant.”).3 In that case, Piper was tried and convicted of robbery. Id. 

at 391, 555 P.2d at 637. He was tried with three co-defendants, who were 

 3 In Piper, the instruction was found in Recommended Arizona Jury 

Instructions Standard Criminal 8, which stated:

The state must prove all of its case against the 

defendant with evidence that the state itself 

gathers. Therefore the defendant is not 

required to testify. The decision on whether to 

testify is left to the defendant, acting with the 

advice of his attorney. You must not conclude 

that the defendant is likely to be guilty because 

he does not testify. You must not discuss this 

fact or let it affect your deliberations in any 

way.

Piper, 113 Ariz. at 392, 555 P.2d at 638. The instruction is now found at 

Revised Arizona Jury Instructions (“RAJI”) Standard Criminal 15 

(defendant need not testify), which provides that:

The State must prove guilt beyond a 

reasonable doubt based on the evidence. You 

must not conclude that the defendant is likely 

to be guilty because the defendant did not 

testify. The defendant is not required to 

testify. The decision on whether or not to 

testify is left to the defendant acting with the 

advice of an attorney. You must not let this 

choice affect your deliberations in any way.
STATE v. SHIELDS

Decision of the Court

8

later granted new trials, id., but argued that the trial court erred when the 

court gave the instruction about his right not to testify over counsel’s 

objection. Id. at 393, 555 P.2d at 639. Although our supreme court found 

that the court did not err by giving the instruction over the objection, the 

court started the discussion by stating that the instruction should be given 

when requested. Id. 

¶19 Here, although the trial court was attempting to streamline 

the instructions, Piper required the court to give the instruction once it was 

requested. Consequently, the court erred by refusing to give the 

requested instruction that Shields did not have to testify and that his 

silence could not be held against him. 

¶20 We now turn to whether the error is harmless error. 

Sullivan, 205 Ariz. at 288-89, ¶¶ 16, 19, 69 P.3d at 1009-10 (stating that 

when the error is clear “[t]he trial court’s error is subject to a harmless 

error analysis”). Specifically, we review whether the failure to give the 

requested instruction influenced the verdict, given the instructions that 

the court read to the jury. Id. at 289, ¶ 21, 69 P.3d at 1010; State v. McKeon, 

201 Ariz. 571, 573, ¶ 9, 38 P.3d 1236, 1238 (App. 2002). 

¶21 During the voir dire, which occurred on day one of the trial, 

the trial court told all the prospective jurors that: 

The defendant is presumed by law to be 

innocent. This means the defendant is not 

required to produce any evidence or to prove 

innocence.

Also, a defendant in a criminal case has a right 

to not testify at trial. The exercise of this right 

cannot be considered by the jury in 

determining guilt or innocence.

Is there anyone who does not understand the 

principles of law I have just stated? The record 

should reflect there are no hands shown.

Is there anyone who does not agree with these 

things or does not believe they should be the 

law? The record should reflect there are no 

hands shown.
STATE v. SHIELDS

Decision of the Court

9

¶22 All the venire persons were told that they were not to 

consider Shields’ exercise of his right not to testify as any evidence of his 

guilt. There is no indication in the record that the jurors who were 

ultimately empanelled did not understand that the instructions were the 

law or that they were unwilling or unable to follow the instructions.

¶23 Once selected, the jurors were preliminarily instructed by 

the court. The court stated a number of times that the State must prove 

the defendant guilty. First, after telling the jurors that Shields had pled 

not guilty, the court told them that “[t]his means that the State must prove 

the defendant guilty beyond a reasonable doubt.” After describing the 

burden of proof, the court stated that the “State must meet its burden of 

proof with its own evidence [and] [t]he defendant is not required to 

testify. The decision whether to testify is left to the defendant, acting with 

the advice of his attorney.”

¶24 At the conclusion of the trial, which was the second day of 

the trial, the court gave its instruction. Although the court erred by not 

giving the requested instruction, there is nothing in the record that

indicates that the failure to give the specific instruction caused prejudice. 

The jurors heard the correct instruction on day one of the trial during voir 

dire and later again in the preliminary instructions. On day two, they 

heard the evidence and were instructed after all the evidence had been 

presented. As a result, we are satisfied beyond a reasonable doubt in this 

short, two-day case that the court’s failure to give RAJI Criminal Standard 

15 concerning Shield’s right not to testify and that his silence could not be 

used against him did not affect the verdict. 

III. Sentencing Error

¶25 Shields was sentenced to the minimum prison term of three 

years for the possession conviction (with one historical felony) plus two 

years for having committed the offense on release. 4 He now argues that 

the court did not impose a “mitigated sentence” plus two years for a class 

4 felony with one historical prior. Shields did not raise the argument 

before the trial court and therefore has waived appellate relief unless he 

can prove that fundamental error exists and that the error caused him 

prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 

607 (2005). “[T]he imposition of an illegal sentence constitutes 

 4 Although the trial court found that Shields had a historical felony 

conviction, the State did not allege any aggravating factors. 
STATE v. SHIELDS

Decision of the Court

10

fundamental error.” State v. Martinez, 226 Ariz. 221, 224, ¶ 17, 245 P.3d 

906, 909 (App. 2011). However, a sentence within statutory limits is 

within the trial court’s discretion, and we will not modify an otherwise 

lawful sentence unless it constitutes an abuse of discretion. State v. Stotts, 

144 Ariz. 72, 87, 695 P.2d 1110, 1125 (1985) (stating that an abuse of 

discretion would be “characterized by arbitrariness, capriciousness, or 

failure to conduct an adequate investigation into the facts relevant to 

sentencing”).

¶26 The range of sentence for a class 4 felony with one prior 

historical felony conviction is 2.25 years (mitigated), 3 years (minimum), 

4.5 years (presumptive), 6 years (maximum), 7.5 years (aggravated). Ariz. 

Rev. Stat. § 13-703(B)(2), (F), (I) (West 2014). The statutory maximum 

sentence for a case with no aggravating or mitigating factors is the 

presumptive sentence. See State v. Martinez, 210 Ariz. 578, 583, ¶ 17, 115 

P.3d 618, 623 (2005). Anything less than the “presumptive” sentence is 

considered a “mitigated” sentence because the actual sentence is lessened 

or made less severe.

¶27 Shields claims that because the trial court used the word

“mitigated” to describe the term of years it intended to impose prior to 

adding the 2-year enhancement, it actually intended to impose a base 

sentence of 2.25 years and not the 3 years imposed. As a result, Shields

asks that we either reduce his total sentence to 4.5 years or remand the 

case to the trial court for further “clarification.”

¶28 A trial court is presumed to know and follow the law. State 

v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996). Here, defense 

counsel requested “a mitigating sentence” — not a super mitigated 

sentence, or the lowest sentence possible, or even a sentence of 2.25 years. 

The court specifically stated that it was going to impose a 3-year term, 

which is a mitigated sentence within the lawful statutory range of 

sentence for the offense. There is no indication in the record that the court 

was confused about either the sentencing range or the various options 

available to it within that range. There is no indication that the court’s 

sentencing decision was characterized by “arbitrariness, capriciousness, or 

failure to conduct an adequate investigation into the facts relevant to 

sentencing.” Stotts, 144 Ariz. at 87, 695 P.2d at 1125. Consequently, we 

find no error, let alone fundamental error. 
STATE v. SHIELDS

Decision of the Court

11

CONCLUSION

¶29 For the foregoing reasons, we affirm Shields’ conviction and 

sentence.