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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA

, Appellee

,

v.

DAVID ALAN CROSS

, Appellant

.

No. 1 CA

- CR 15

- 0112

Appeal from the Superior Court in Maricopa County

No. CR2013

- 456885

- 001
The Honorable Erin Otis

, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office , Phoenix By Jillian Francis Counsel for Appellee

Maricopa County Public Defender’s Office

, Phoenix By Christopher V. Johns
C ounsel for AppellantSTATE v. CROSS
Decision of the Court

2 MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Patricia K. Norris joined.

J O N E S

, Judge:

¶1 David Cross appeals his convictions and sentences for one count each of possession of a dangerous drug and possession of drug paraphernalia, arguing reversible error based upon the prosecutor’s remarks during her closing and rebuttal arguments at trial . F or the following reasons

, we affirm.

FACTS 1 AND PROCEDURAL HISTORY

¶2 In the early morning hours of February 12, 2013, a Scottsdale police officer initiated a traffic stop o f a vehicle with a nonoperational headlight , which she had observed leav e a Wal

- Mart parking lot “making jerking movements as it was drivi ng ” and an illegal turn

. The officer made contact with the driver, later identified as Cross, and two passengers, Shauna D. and Kelly A. According to the officer, Cross act ed “fidgety” and,

w hen asked for identification, provided a credit card instead

. Based up on her observations, the officer believed Cross to be under the influence of methamphetamine.

¶3 C ross ’s erratic behavior, “jitteriness and inability to stand still” prevented him from completing field sobriety tests , but he consented
to a search of the vehicle. The search revealed a “makeshift pipe or bong of
some kind [and] plastic tubing ” in a grocery bag sitting on a black backpack

, in the trunk, next to a laundry basket belonging to Shauna

. The pipe appeared to have been used recently and contained methamphetamine
residue

.
¶4 N either Shauna nor Kell y claimed ownership of the pipe. After being advised of his rights pursuant to Miranda v. Arizona

, 384 U.S.

1 We view the facts in the light most favorable to upholding the verdict and resolve all reasonable inferences against the defendant. State v. Harm

, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia , 186 Ariz. 493, 495 (App. 1996)).STATE v. CROSS
Decision of the Court

3 436, 444 (1966), Cross a dmitted the pipe was his , he had last used it six or seven hours prior to the interview

, and the pipe probably contain ed his fingerprints. He was arrested and charged with one count each of possession of a dangerous drug and possession of drug paraphernalia.

¶5 At trial, Cross testified in his own defense, explaining Shauna had placed her personal items in the trunk after retrieving them from her

ex

- husband’s home. Cross and Shauna then visited friends, Phil lip E. and Kelly

, and then left with Kelly to do some shopping at Wal

- Mart. Cross testified he gave the officer permission to search his vehicle because he was
confident it did not contain any illegal items. W hen the officer first
confronted Cross about the pipe, Cross stated it belonged to a friend, but
when the officers threatened to take Shauna into custody

, he claimed ownership of the pipe to “ protect ” her

. At trial, Cross testified t he pipe actually belonged to Shauna.

¶6 During his testimony , Cross admitted he had smoked methamphetamine in the past but preferred to use a different sort of pipe
than was found in his trunk . He also testified the pipe found in his trunk

was decorated in a feminine manner and looked like something Shauna, who enjoyed glass blowing as a hobby, would make

.
¶7 Cross did not call Shauna as a witness because, prior to trial, the trial court excused her from testifying after she invoked her Fifth Amendment privilege against self

- incrimination and the court determined she could not provide any relevant information without violating that righ t. See State v. Mills , 196 Ariz. 269, 276, ¶ 31 (App. 1999) ( “ I f the witness validly asserts his Fifth Amendment privilege by showing ‘a reasonable ground to apprehend danger to the witness from his being compelled to answer,’

. . . the defendant ’ s right to compulsory process must yield to the witness ’ s privilege not to incriminate himself.” ) (quoting United States v. Melchor
Moreno , 536 F.2d 1042, 1046 (5th Cir. 1976) ) ( citations omitted)

. During her closing, the prosecutor , who is not the S tate’s couns el on appeal

, made the following argument , with which Cross now takes issue, calling attention to
Shauna’s absence :

All three of the officers that testified, their testimony corroborated one another. They all viewed the defendant’s jittery, erratic moveme nt. They all confirmed that the bong was found in the trunk. And all their statements fit together to corroborate what happened that night.STATE v. CROSS
Decision of the Court

4 And a gain, like I said, while the State welcomes the burden, the defendant chose to put on evidence. And so now t he State asks you, where are these other people that he was involved with that night?

. . . Where are the other people that the defendant was involved with that night? Where is Kelly A[.]? Where is . . . his sick friend, that he was with, rather than smo king methamphetamine like he told th e officer? Where is Shauna
. . .? The defendant has the same subpoena power as the State. They can bring anyone into court that they want and have them testify on their behalf.

If he really was hanging out and watch ing movies rather than smoking methamphetamine, if he really did just go to Walmart to get dog food for this Kelly character, where are they? Where are they to corroborate his story?

The only thing that the defendant has to offer you is his own words, and we’ve already heard that the defendant, based on the law that you are provided, should not be considered a
credible witness.

The prosecutor re

- advanced the argument on rebuttal, stating:

Secondly, corroboration or lack thereof. The State submitted to y ou before that the defendant talked about Phil and this Kelly, and this Shauna. And that he was with them watching movies, helping his sick friend, certainly not smoking methamphetamine like he told the officer the night in question. Yet, ladies and gent lemen, where are those people today? What evidence, other than the defendant’s statements, corroborates his story? The State would submit to you, there

is none.

¶8 The jury found Cross guilty as charged. Cross admitted to four prior felony convictions an d was sentenced as a non

- dangerous, repetitive offender to concurrent presumptive terms of 10 years’ imprisonment for possession of a dangerous drug and 3.75 years’ imprisonment for possession of drug paraphernalia and given credit for 100 days of presentence incarceration. Cross timely appealed, and we haveSTATE v. CROSS
Decision of the Court

5 jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 12

- 120.21(A)(1), 2 13

- 4031, and

- 4033(A).

DISCUSSION

¶9 Cross argues he was deprived of a fair trial as a result of prosecutorial misconduct arising from the prosecutor’s arguments during closing and rebuttal

. At t r i al , Cross objected only on the basis of burden shifting

. Th at objection wa s insufficient to preserve a claim o f prosecutorial
misconduct. See State v. Rutledge , 205 A riz. 7, 13, ¶¶ 29

- 30 (2003) (holding “the objection ‘shifting the burden’ did not preserve the issue of prosecutorial misconduct”). Because Cross did not raise prosecutorial misconduct until a post

- trial motion to vacate the judgment, we review only
for f undamental error. Id. at 13, ¶ 30 (citations omitted) ; State v. Mendoza

, 181 Ariz. 472, 474 (App. 1995) (holding an issue raised for the first time in a post

- trial motion preserves only fundamental error review) . Under fundamental error review, Cross bea rs the burden of proving: (1) an error occurred, (2) the error was fundamental

— that is, it “goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial,” a nd (3) the error caused him prejudice. State v. Henderson , 210 Ariz. 561, 568, ¶¶ 22

- 26 (2005).

¶10 Cross argues the prosecutor improperly exploited the fact
that Cross could not call Shauna as a witness to corroborate his defense by questioning her absence during closing and rebuttal arguments

. 3 Although he acknowledges it is not per se improper to comment on a defendant’s failure to produce evidence, he contends that, because the prosecutor knew
Shauna had been declared unavailable based upon the invocation of her Fifth Amendment rights

, the argument suggesting Cross did not call

2 Absen t material changes from the relevant date, we cite a statute’s

current version.

3 Cross also argues he was deprived of his constitutional right to confront witnesses against him. But, a defendant has no Sixth Amendment right to compel the testimony of a witness who has made a valid assertion of the Fifth Amendment privilege against self

- incrimination. State v. Rosas

Hernandez , 202 Ariz. 212, 216, ¶ 10 (App. 2002) (citing United States v.
Tur kish , 623 F.2d 769, 773

- 74 (2d Cir. 1980)). Cross does not con tend the trial court erred in finding Shauna validly asserted her Fifth Amendment privilege, and therefore, Cross’s Sixth Amendment rights are not implicated here.STATE v. CROSS
Decision of the Court

6 Shauna because she had inculpatory information was intentionally misleading. We agree.

¶11 It is within the discretion of the trial court to exclude a witness
who has indicat ed she will refuse to testify through the invocation of her Fifth Amendment right against self

- incrimination. State v. Corrales , 138 Ariz. 583, 588 (1983). But, “an adverse inference from failure to call a witness may not be argued by counsel where couns el knows that the

witness can not be produced by his opponent. ” Id. at 587 n.2 (citing 1 M. Udall & J. Livermore, Arizona Practice, Law of Evidence § 125, at 257 (2d ed. 1982)) ; see also State v. McDaniel , 136 Ariz. 188, 194 (1983) (“It is well settled
tha t in criminal cases the jury is not entitled to draw any inferences from the decision of a witness to exercise his Fifth Amendment privilege.”) (citations omitted)

. The principle extend s “to situations where the witness can be physically produced but cann ot be compelled to testify.” Corrales

, 138 Ariz. at 58 7 n.2

. Although w ide latitude is given during closing arguments for counsel to comment on the evidence and argue all reasonable
inferences therefrom

, McDaniel , 136 Ariz. at 197

, it is misconduct for the prosecutor to build his case out of inferences arising from a witness’s invocation of the privil ege against self

- incrimination, Corrales , 138 Ariz. at 591 (citations omitted).

¶12 Here, the prosecutor directed the jury ’s attention to Shauna’s
absence on mu ltiple occasions to highlight that Cross’s testimony was
uncorroborated

, and in a manner suggesting Cross had chosen not to call Shauna as a witness because she would not verify his version of events. In fact, the prosecutor knew the opposite was true: Sh auna had refused to testify because she believed doing so would incriminate her. Under the circumstances, the prosecutor’s comments constitute misconduct.

¶13 A finding of error , however, does not end our inquiry; to be reversible, the error must also be fun damental and cause prejudice.
Henderson , 210 Ariz. at 56 7 , ¶ 2 0

. E ven assuming the nature of the violation is fundamental, s ee State v. Hughes , 193 Ariz. 72, 86, ¶ 63 (1998) (noting an improper comment regarding the invocation of the privilege against self

incrimination, whether direct or indirect, violates state and federal constitutional law) (citing State v. Jordan , 80 Ariz. 193, 199 (1956)); Corrales

, 138 Ariz. at 591, “ [p] rosecutorial misconduct is harmless error if we can find beyond a reasonable doubt that it did not cont ribute to or affect the verdict .” Hughes , 193 Ariz. at 80, ¶ 32 (citing State v. Towery , 186 Ariz. 1 68, 185 (1996),
and State v. Bible , 175 Ariz. 549, 588 (1993) )

. Here, w e find the error
harmless.STATE v. CROSS
Decision of the Court

7 ¶14 In a prosecution for possession of a prohibited item, the key inquiry is not ownership, but possession or use of the item

. See A.R.S. §§ 13

- 3407(A) (1) (“A person shall not knowingly . . . [p]ossess or use a dangerous drug .” ) ;

- 3415(A) ( “ It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia . . . . ” ). And

, while ownership may rest with a single person, possession can be shared. See
State v. Gonsalves , 231 Ariz. 521, 523, ¶ 9 (App. 2013) (“[U]nder a theory of constructive possession, two or more persons may jointly possess a prohibited object; possession need not be ‘exclusive, immediate and personal

. ”) (quoting State v. Carroll , 111 Ariz. 216, 218 (1974)).

¶15 The jury was instructed on actual and con structive, and sole and joint possession

. E ven if the jury believed Shauna owned the pipe and methamphetamine, there is overwhelming evidence from which the jury could conclude Cross was in constructive possession of the items

. See State
v. Villavicencio , 108 Ariz. 518, 520 (1972) (noting constructive possession applies where the prohibited item is “ found in a place under [the defendant’s] dominion and control and under circumstances from which it can be reasonably inferred that the defendant had actual k nowledge o f the existence” of the prohibited item). Cross appeared to be under the influence of methamphetamine when he was stopped, he admitted using methamphetamine earlier in the day, methamphetamine residue was found on the pipe, and he agreed his fin gerprints were probably on the pipe he was charged with possessing

. In proximity to his arrest, Cross admitted the pipe was his. Additionally, Cross never disputed the pipe and methamphetamine were found in his vehicle , within his dominion and
control ; h e only later argued he did not “ own ” them.

¶16 In light of the overwhelming evidence Cross had at least constructive possession of the pipe and methamphetamine, we are satisfied, beyond a reasonable doubt, that the prosecutor’s improper
comments on Shauna’s absence did not affect the verdict. 4 We therefore
find no reversible error.

4 That the S tate’s trial counsel’s error was ultimately harmless excuse s neither her violation of the trial court’s direction to refrain from commenting on Shauna’s absence, or her knowing exploitation of Shauna’s invocation of her Fifth Amendment privilege against self

- incrimination. Accordingly, pursuant to our ethical obligations, we d irect the clerk of the court to forward a copy of this decision to the disciplinary department of
the State Bar of Arizona.STATE v. CROSS
Decision of the Court

8 CONCLUSION

¶17 Cross’s convictions and sentences are affirmed.