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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

Counsel for Appellant
STATE 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. For the 

following reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 In the early morning hours of February 12, 2013, a Scottsdale 

police officer initiated a traffic stop of a vehicle with a nonoperational 

headlight, which she had observed leave a Wal-Mart parking lot “making 

jerking movements as it was driving” 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 acted “fidgety” and,

when asked for identification, provided a credit card instead. Based upon 

her observations, the officer believed Cross to be under the influence of 

methamphetamine. 

¶3 Cross’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 Neither Shauna nor Kelly 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 admitted the pipe was his, he had last used it six or 

seven hours prior to the interview, and the pipe probably contained 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, Phillip 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. When 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 the 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 right. 

See State v. Mills, 196 Ariz. 269, 276, ¶ 31 (App. 1999) (“If 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 State’s counsel 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 movement. 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

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And again, like I said, while the State welcomes the burden, 

the defendant chose to put on evidence. And so now the 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 smoking 

methamphetamine like he told the 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 watching 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 you 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 gentlemen, 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 and 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 have 
STATE v. CROSS

Decision of the Court

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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 trial, Cross objected only on the basis of burden 

shifting. That objection was insufficient to preserve a claim of prosecutorial 

misconduct. See State v. Rutledge, 205 Ariz. 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 fundamental 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 bears 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,” and (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 Absent 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. RosasHernandez, 202 Ariz. 212, 216, ¶ 10 (App. 2002) (citing United States v. 

Turkish, 623 F.2d 769, 773-74 (2d Cir. 1980)). Cross does not contend 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 indicated 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 counsel knows that the 

witness cannot 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 

that 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 extends “to situations where the witness 

can be physically produced but cannot be compelled to testify.” Corrales, 

138 Ariz. at 587 n.2. Although wide 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 privilege against self-incrimination, Corrales, 138 Ariz. at 

591 (citations omitted).

¶12 Here, the prosecutor directed the jury’s attention to Shauna’s 

absence on multiple 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: Shauna 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 fundamental and cause prejudice.

Henderson, 210 Ariz. at 567, ¶ 20. Even assuming the nature of the violation 

is fundamental, see State v. Hughes, 193 Ariz. 72, 86, ¶ 63 (1998) (noting an

improper comment regarding the invocation of the privilege against selfincrimination, 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 contribute to or affect the verdict.” 

Hughes, 193 Ariz. at 80, ¶ 32 (citing State v. Towery, 186 Ariz. 168, 185 (1996), 

and State v. Bible, 175 Ariz. 549, 588 (1993)). Here, we 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 constructive, and sole 

and joint possession. Even 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 knowledge of 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 fingerprints 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; he 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 State’s trial counsel’s error was ultimately harmless excuses 

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 direct 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

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CONCLUSION

¶17 Cross’s convictions and sentences are affirmed.