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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RANDOLPH JACKSON, JR., Appellant.

No. 1 CA-CR 18-0237

1 CA-CR 18-0583

 1 CA-CR 19-0095

(Consolidated)

Appeal from the Superior Court in Yavapai County

No. P1300CR201400227

The Honorable Michael R. Bluff, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michelle L. Hogan

Counsel for Appellee

Law Offices of David W. Dow, Phoenix

By David W. Dow

Counsel for Appellant

FILED 6-6-2019
STATE v. JACKSON

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 Maria Elena Cruz joined.

J O N E S, Judge:

¶1 Randolph Jackson, Jr., appeals his convictions and sentences 

for one count each of sale or transportation of a narcotic drug, possession 

or use of drug paraphernalia, and misdemeanor resisting arrest. He also 

appeals two orders denying motions to modify his sentence. For the 

following reasons, we modify the sentencing minute entry to reflect that the 

sentence imposed for possession of drug paraphernalia is a slightly 

mitigated term. In all other respects, Jackson’s convictions and sentences 

are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 In March 2014, two Yavapai County Sheriff’s Office (YCSO)

deputies parked in separate patrol vehicles monitored the roadway for 

traffic violations.1 One deputy used a radar gun to determine the vehicle in 

which Jackson was a passenger was traveling eighty miles per hour in a 

seventy-five-mile-per-hour zone. He also saw the vehicle cross over the fog 

line and watched as the driver seemed to hide from his view. When the

deputy pulled onto the roadway, the vehicle slowed to seventy miles per 

hour.

¶3 When the deputy stopped the vehicle, he smelled an odor of 

marijuana and asked the driver and Jackson to exit. Jackson stated they 

were returning from Nevada and California to Oklahoma, where he had 

rented the vehicle. When asked about the smell of marijuana, Jackson 

claimed he legally smoked marijuana in California. Around this time, the 

deputy learned from dispatch that the rental car company in Oklahoma had 

reported the vehicle stolen.

 

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

convictions with all reasonable inferences resolved against the defendant.” 

State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (quoting State v. 

Valencia, 186 Ariz. 493, 495 (App. 1996)).
STATE v. JACKSON

Decision of the Court

3

¶4 After being arrested and informed of his rights pursuant to 

Miranda v. Arizona, 384 U.S. 436 (1966), Jackson became belligerent and 

combative, forcefully pushing and pulling away from the deputies. Once 

Jackson was subdued, a search incident to arrest revealed approximately 

ten ounces of heroin in the insoles of Jackson’s shoes. After obtaining a 

search warrant for Jackson’s phone, the deputies found photos and text 

messages indicative of drug trafficking.

¶5 The State charged Jackson with sale or transportation of a 

narcotic drug, possession or use of drug paraphernalia, theft of means of 

transportation, and resisting arrest. Later, the trial court granted the State’s 

motion to dismiss the theft of means of transportation count without 

prejudice. Three months after his arrest, Jackson contacted a lieutenant 

with YCSO to report that the deputies had acted improperly. In that 

conversation, Jackson admitted he possessed heroin at the time.

¶6 A jury convicted Jackson of all remaining counts, and the trial 

court sentenced him as a repetitive offender to an aggregate term of fifteen 

years’ imprisonment. Jackson timely appealed his convictions and 

sentences. While that appeal was pending, Jackson filed two unsuccessful 

motions to amend his sentence, alleging he was improperly sentenced as a 

repetitive offender, and timely appealed the orders disposing of those 

motions. The cases were consolidated on appeal and we have jurisdiction 

pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 13-4031, 

and -4033(A)(1), (3). See State v. Pill, 5 Ariz. App. 277, 278-79 (1967) 

(concluding an order denying a motion to modify or vacate a judgment in 

a criminal case made within a reasonable time after judgment is appealable

as an order made after judgment affecting the substantial rights of the 

party).

DISCUSSSION

I. Suppression of the Evidence

¶7 Before trial, Jackson moved to suppress all evidence obtained 

from the traffic stop. Of his many pleadings, most centered on whether the 

traffic stop was illegal and whether the deputies had given inconsistent or 

false statements in prior hearings; none addressed whether the search was 

conducted incident to a lawful arrest or in violation of Miranda.

 

2 Absent material changes from the relevant date, we cite the current 

version of rules and statutes. 
STATE v. JACKSON

Decision of the Court

4

A. Traffic Stop

¶8 Jackson argues the trial court abused its discretion by refusing 

to suppress evidence obtained after an illegal traffic stop. We review the 

denial of a motion to suppress for an abuse of discretion, State v. Butler, 232 

Ariz. 84, 87 ¶ 8 (2013), but review the court’s legal conclusions de novo, State 

v. Booker, 212 Ariz. 502, 504, ¶ 10 (App. 2006). In doing so, we consider only 

the evidence presented at the suppression hearing,

3 viewing the facts in the 

light most favorable to upholding the court’s ruling. Butler, 232 Ariz. at 87, 

¶ 8.

¶9 To conduct a lawful traffic stop, an officer must have 

articulable, reasonable suspicion that the person committed a traffic 

violation. State v. Salcido, 238 Ariz. 461, 464, ¶ 7 (App. 2015) (citing State v. 

Starr, 222 Ariz. 64, 69, ¶ 11 (App. 2009)). The subjective intentions of the 

officer do not impact the validity of a traffic stop, so long as he reasonably 

suspects that a driver committed a traffic violation. Whren v. United States, 

517 U.S. 806, 813 (1996). One officer’s testimony, without corroboration, is 

sufficient to support a determination of reasonable suspicion. State v. 

Montano, 121 Ariz. 147, 149 (App. 1978) (noting that the “strength or 

weakness of testimony is not measured by the number of witnesses”).

¶10 In Arizona, a driver must not travel “on a highway at a speed 

greater than is reasonable and prudent under the circumstances.” A.R.S. 

§ 28-701(A). Driving at speeds above the posted limit creates the 

presumption of a violation of A.R.S. § 28-701(A). State v. Rich, 115 Ariz. 119, 

121 (App. 1977) (citations omitted). Additionally, a driver travelling on a 

roadway “divided into two or more clearly marked lanes” must drive “as 

nearly as practicable entirely within a single lane.” A.R.S. § 28-729(1); see 

also State v. Acosta, 166 Ariz. 254, 257 (App. 1990) (finding that crossing the 

dividing line constituted unsafe lane usage).

¶11 The first YCSO deputy testified at the suppression hearing 

that he observed at least two traffic violations, providing him with 

reasonable suspicion to initiate the traffic stop. The second deputy 

confirmed that he had seen the first using the radar gun to measure the car’s 

speed, the car appeared to be speeding, and the car’s tires crossed the fog 

line. Though the driver testified to the contrary, we defer to the trial court’s 

 

3 The trial judge who presided over the initial suppression hearing 

later recused herself from the case and asked that a second hearing be 

conducted. Accordingly, we only consider the evidence presented at the

second hearing to resolve Jackson’s claims.
STATE v. JACKSON

Decision of the Court

5

assessment of witness credibility and resolution of conflicts in the evidence. 

State v. Olquin, 216 Ariz. 250, 252, ¶ 10 (App. 2007). Based upon this record, 

the traffic stop was supported by an articulable, reasonable suspicion and

the court did not abuse its discretion in denying Jackson’s motion to 

suppress.

B. Search Incident to Arrest

¶12 Jackson claims the trial court erred in failing to suppress 

evidence obtained as a result of an illegal Terry stop. See Terry v. Ohio, 392 

U.S. 1 (1968). Because Jackson failed to directly advance this argument 

below, we limit our review to fundamental, prejudicial error. See State v. 

Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) (citing State v. Henderson, 210 Ariz. 

561, 567, ¶ 20 (2005)). Moreover, the record does not support Jackson’s 

contention that the search of his shoes was merely a Terry stop. Rather, 

Jackson had been placed under arrest for theft of means of transportation, 

and therefore, the search was incident to arrest. Warrantless searches are 

permissible if conducted incident to a lawful arrest but must be limited to 

the arrestee’s person and the area within his immediate control. Chimel v. 

California, 395 U.S. 752, 762-63 (1969), abrogated on other grounds by Arizona 

v. Gant, 556 U.S. 332, 338 (2009).

¶13 Jackson argues that because the theft of means of 

transportation charge was later dropped, there was no basis for the search. 

Contrary to this assertion, the record does not affirmatively show a crime

did not occur, but merely that the State could not proceed upon the theft 

charge at the time of trial. In moving to dismiss the theft of means of 

transportation count, the State avowed that a material witness suffered 

from Alzheimer’s disease and the other out-of-state witnesses had not been 

cooperative. Nonetheless, at the time of the search, the deputies had 

probable cause to arrest Jackson after being advised the vehicle had been 

reported stolen. Thus, Jackson’s shoes were removed and searched incident 

to a lawful arrest, id., and the trial court did not commit error, fundamental 

or otherwise.

C. Miranda Warnings

¶14 Jackson contends the trial court erred in allowing the State to 

present evidence obtained in violation of Miranda. However, the only 

statements that Jackson identifies as improperly admitted are those he 

made regarding whether the officers could search his phone. Because the 

record shows the officers obtained a warrant before searching Jackson’s 

phone, we find no error on this basis.
STATE v. JACKSON

Decision of the Court

6

¶15 To the extent Jackson intended to challenge the admission of 

other statements he made in the course of his arrest, he has failed to 

adequately present such a claim and it is therefore waived. See State v. 

Carver, 160 Ariz. 167, 175 (1989).

II. Exculpatory Evidence and Alleged Prosecutorial Misconduct

¶16 Jackson filed multiple discovery requests and motions to 

compel the State to produce dash camera recordings and disciplinary 

records for the two deputies.

¶17 In early pretrial hearings, the YCSO deputy testified his dash 

camera equipment was broken at the time of the offenses. At a subsequent

hearing, the deputy testified his dash camera equipment was not broken,

but he could not download recordings. The State later disclosed that the 

deputy resigned from YCSO prior to an internal investigation that 

“revealed numerous discrepancies and inconsistencies in [his] statements 

and claims pertaining to the condition of his issued camera and audio 

recording devices.” Upon in camera review of the internal investigation

records, the trial court ordered multiple memoranda and transcripts

pertaining to the investigation be disclosed to Jackson, to which the State 

complied.

¶18 Jackson filed additional motions to compel the State to 

produce any possible metadata from the deputy’s “in-car system hard 

drives” and allow for inspection of the patrol vehicle. The State avowed 

that all available evidence pertaining to the dash camera equipment had 

been disclosed and, per YCSO, any possible metadata would have been 

overwritten within months of the date of the offense, which was nearly two 

years prior to the State or YCSO learning of the issue involving the deputy’s 

equipment. The trial court found that the State had complied with 

disclosure requirements, adding that any possible metadata or inspection 

of the vehicle would not uncover any new information. Jackson’s motions

for dismissal and sanctions were denied.

¶19 At trial, the YCSO deputy testified that his dash camera 

equipment was not broken but he could not download recordings to a disc. 

The deputy denied any attempts to cover up misconduct. Jackson 

extensively cross-examined the deputy as to his disciplinary records, prior 

inconsistent statements, and failure to preserve recordings of the arrest. 

Jackson then testified on his own behalf, claiming both deputies used racial 

slurs, assaulted him, stole his money, and planted the heroin in his shoes.

He further testified that the deputies destroyed or withheld recordings to 
STATE v. JACKSON

Decision of the Court

7

hide their own misconduct. Although the driver of the vehicle testified at 

the suppression hearing, she invoked her right against self-incrimination 

for the purpose of trial and did not testify.

¶20 The trial court denied Jackson’s request to provide the jury 

with a Willits instruction, see State v. Willits, 96 Ariz. 184 (1964), finding that 

the recordings and possible metadata, if available, would not tend to 

exonerate Jackson of the crimes.

A. Brady Violations

¶21 Jackson argues the trial court erred in denying his motions to 

compel, strike, and dismiss related to the State’s purported failure to 

preserve and disclose exculpatory evidence as required by Brady v. 

Maryland, 373 U.S. 83 (1963). We review the court’s ruling on an alleged 

Brady violation for an abuse of discretion. See State v. Arvallo, 232 Ariz. 200, 

206, ¶ 36 (App. 2013).

¶22 Under Brady, the State must disclose all exculpatory evidence 

in its possession that is material to the issues of guilt or punishment.

Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (citing United States v. Agurs, 

427 U.S. 97, 107 (1976), and Brady, 373 U.S. at 87); see also Ariz. R. Crim. P. 

15.1(b)(8), (f)(2)-(3) (disclosure requirements). To establish a Brady

violation, a defendant must show: (1) the undisclosed evidence is favorable

to the defense; (2) the State suppressed the evidence; and (3) nondisclosure 

caused prejudice. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). If the State 

fails to timely disclose exculpatory evidence, the trial court may impose 

sanctions based upon the degree of prejudice caused and the availability of 

less stringent remedies. State v. Ramos, 239 Ariz. 501, 504, ¶ 9 (App. 2016)

(citing what is now Ariz. R. Crim. P. 15.7(b)).

¶23 Although the YCSO deputy provided inconsistent statements 

regarding his dash camera equipment, it is unclear from the record whether 

any recordings or related metadata were ever created or, if created, what 

they would have captured. The “mere possibility” that the items would 

have aided Jackson’s defense is not enough to establish a Brady violation. 

Agurs, 427 U.S. at 109-10. Additionally, the prosecutor timely disclosed the 

deputy’s disciplinary records and the jury heard that the deputy had 

resigned just prior to a finding that he was inconsistent and, at the very 

least, lacked competency related to the use of his dash camera equipment. 

Nothing from the record indicates undisclosed exculpatory evidence was 

withheld from the jury. See State v. Jessen, 130 Ariz. 1, 4 (1981) (“When 
STATE v. JACKSON

Decision of the Court

8

previously undisclosed exculpatory information is revealed at the trial and 

is presented to the jury, there is no Brady violation.”).

B. Prosecutorial Misconduct

¶24 Jackson alleges the prosecutor: (1) elicited perjured testimony; 

(2) intimidated a defense witness; and (3) improperly vouched for a deputy. 

We review the trial court’s ruling on a motion to dismiss for prosecutorial 

misconduct for an abuse of discretion. State v. Trani, 200 Ariz. 383, 384, ¶ 5 

(App. 2001). To establish a claim of prosecutorial misconduct, a defendant 

must show “the prosecutor’s misconduct so infected the trial with 

unfairness as to make the resulting conviction a denial of due process.” 

State v. Goudeau, 239 Ariz. 421, 465, ¶ 193 (2016) (quoting State v. Hughes, 

193 Ariz. 72, 79, ¶ 26 (1998)). As arms of the State, prosecutors must not 

only disclose exculpatory evidence, they may not knowingly elicit false 

testimony, State v. Rivera, 210 Ariz. 188, 190, ¶ 11 (2005), or use the prestige 

of the government to improperly vouch for the credibility of the State’s 

witnesses, State v. Doerr, 193 Ariz. 56, 62, ¶ 24 (1998) (quoting State v. 

Dumaine, 162 Ariz. 392, 401 (1989)).

¶25 To the extent Jackson argues the prosecutor purposefully 

elicited perjury associated with the dash camera equipment, this contention 

is not supported by the record. At trial, the YCSO deputy admitted having

provided inconsistent statements about his equipment but claimed he 

believed it was malfunctioning in some way. Eliciting such testimony did

not amount to prosecutorial misconduct. Rivera, 210 Ariz. at 190, ¶ 11.

¶26 Jackson’s additional claims that the prosecutor committed 

witness intimidation and vouching are similarly without merit. The 

prosecutor’s request that the trial court appoint counsel for the driver of the 

vehicle, who was previously listed as Jackson’s codefendant, in no way 

amounted to witness intimidation. Regarding vouching, Jackson cites the 

following comments made by the prosecutor to the second YCSO deputy

regarding Jackson’s allegations that during the arrest the deputies used a 

racial slur and beat him: “Did either — look, you’re among friends. We’ll 

keep it our secret. Did either of those things happen?” Though ill-advised, 

the prosecutor’s comment that the deputy was “among friends,” did not 

rise to the level of vouching; it neither placed the prestige of the government 

behind its witness, nor suggested that other information not presented to 

the jury supported his testimony. See Doerr, 193 Ariz. at 62, ¶ 24.
STATE v. JACKSON

Decision of the Court

9

C. Willits Instruction

¶27 Jackson further contends the trial court’s failure to provide

the jury with a Willits instruction requires reversal. We review a court’s 

refusal to provide a Willits instruction for an abuse of discretion. State v. 

Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014) (citing State v. Bolton, 182 Ariz. 290, 

309 (1995)).

¶28 A defendant is entitled to a Willits instruction, if he proves 

that “(1) the state failed to preserve material and reasonably accessible 

evidence that could have had a tendency to exonerate the accused, and 

(2) there was resulting prejudice.” State v. Smith, 158 Ariz. 222, 227 (1988)

(citing State v. Perez, 141 Ariz. 459, 464 (1984)). It is not enough for the 

defendant to merely speculate that lost or destroyed evidence may have 

been helpful to the defense. Glissendorf, 235 Ariz. at 150, ¶ 9.

¶29 Though the record shows the YCSO deputy failed either to 

record or preserve dash camera recordings, we are not persuaded that a 

recording of the traffic stop would have tended to exonerate Jackson. The 

State produced other witnesses who corroborated the deputy’s version of 

events. Additionally, the State elicited testimony that the dash camera 

would have only recorded the traffic stop but not the search of Jackson’s 

person, which occurred in the back seat of the patrol vehicle. Jackson 

presented his version of events, and the jury was tasked with determining 

the credibility of the witnesses. On this record, the trial court did not abuse 

its discretion in refusing to provide a Willits instruction.

III. In Propria Persona Motions

¶30 Jackson filed a litany of pleadings in propria persona, both as a 

self-represented litigant and while represented by an attorney. Through 

the course of this case, Jackson went through six different attorneys before

eventually choosing to represent himself at trial; the trial court informed 

Jackson of the possible repercussions of such a decision. At Jackson’s 

request, the court granted numerous continuances and deadline extensions.

A. Untimely Motions

¶31 Jackson argues the trial court erred in setting a substantive 

motion deadline and denying various motions as untimely. Though the 

court has the discretion to extend filing deadlines, parties must file motions

no later than twenty days before trial, unless the court directs otherwise,

and any untimely motions may be precluded. Ariz. R. Crim. P. 16.1(b)-(c).

“The preclusion sanction in Rule 16.1(c) exists in order to insure orderly 
STATE v. JACKSON

Decision of the Court

10

pretrial procedure in the interests of expeditious judicial administration.”

State v. Vincent, 147 Ariz. 6, 8 (App. 1985).

¶32 Here, the record shows the trial court extended the filing 

deadline on multiple occasions, regularly ruled upon the merits of untimely 

motions, and acted within its discretion in setting a filing deadline in the 

interest of judicial economy.

B. Removal from Docket

¶33 Jackson argues the trial court’s removal of motions filed in 

propria persona from the docket constituted prejudicial error. “When a 

defendant concurrently has self-representation and representation by 

counsel, hybrid representation results.” State v. Roscoe, 184 Ariz. 484, 498 

(1996) (citing State v. Murray, 184 Ariz. 9, 27 (1995)). A criminal defendant 

has no constitutional right to hybrid representation, and it is disfavored as 

a matter of law. State v. Cornell, 179 Ariz. 314, 325 (1994); State v. Rickman, 

148 Ariz. 499, 504 (1986). “Whether to allow such hybrid representation 

remains within the sound discretion of the trial judge.” Cornell, 179 Ariz. at 

325 (citation omitted).

¶34 Jackson filed several pleadings in propria persona while 

represented by an attorney. The trial court acted within its broad discretion 

in removing the pleadings from the docket. 

C. Motion to Continue During Trial

¶35 Jackson contends that the trial court erred in denying his 

motion to continue, filed during trial, to allow him to obtain private 

counsel. “We review the court’s interpretation of a constitutional right de 

novo,” State v. Aragon, 221 Ariz. 88, 90, ¶ 4 (App. 2009), and its denial of a 

request for a continuance in order to substitute counsel for an abuse of 

discretion, State v. Hein, 138 Ariz. 360, 368 (1983) (citing State v. Sullivan, 130 

Ariz. 213, 215 (1981)).

¶36 A trial court is given “wide latitude in balancing the right to 

counsel of choice against the needs of fairness, and against the demands of 

its calendar.” United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) 

(citation omitted). Our supreme court has stated that “[w]hether an 

accused’s constitutional rights are violated by the denial of a request for a 

continuance depends on the circumstances present in the particular case.” 

Hein, 138 Ariz. at 369 (citing United States v. Casey, 480 F.2d 151, 152 (5th Cir. 

1973)). In making this determination, we look to the number of other 
STATE v. JACKSON

Decision of the Court

11

continuances granted, the length of the requested delay, the inconvenience 

to litigants, jurors, and witnesses, and the sincerity of the request. Id.

¶37 Here, the trial court granted multiple continuances,

appointed numerous attorneys to the case, and, prior to the start of trial,

fully briefed Jackson on the consequences of representing himself. 

Jackson’s request was made following the State’s presentation of its casein-chief with a jury already empaneled. On this record, the court did not 

abuse its discretion in denying Jackson’s requested continuance. See State 

v. Dixon, 226 Ariz. 545, 553, ¶ 39 (2011).

IV. Use of Prior Felony Conviction

¶38 Before trial, the State provided written notice that it intended 

to use four prior felony convictions for the purposes of impeachment, 

sentencing enhancement, and as an aggravating factor. The State later

disclosed copies of certified records of two prior out-of-state felony 

convictions: (1) aiding and abetting racketeering, a felony offense for which 

Jackson was sentenced to five years’ imprisonment in 2004 (the 2004 

conviction); and (2) assault with a deadly weapon, a felony offense for 

which Jackson was sentenced to six years’ imprisonment in 1981 (the 1981 

conviction).

¶39 At trial, the State advised it planned to impeach Jackson with 

the 2004 conviction. Over Jackson’s objection, the trial court found the 2004 

conviction fell within the ten-year limit, ordered that the nature of the 

offense be sanitized for the jury, and instructed the jury to consider the 2004 

conviction only for purposes of witness credibility, not evidence of guilt. 

Jackson ultimately admitted to the 2004 conviction, testifying that the “last 

time I had trouble was in 2003.” The State did not refer to the 2004 

conviction in cross-examination, nor mention it in closing argument.

¶40 At sentencing, the State presented certified records of both the 

1981 and 2004 convictions, noting Jackson had admitted to the 2004

conviction during trial. The State argued the 2004 conviction was a prior 

historical felony conviction given the term of imprisonment imposed but

failed to present any evidence as to Jackson’s release date. Jackson objected, 

arguing the convictions were not historical. Agreeing with the State, the 

trial court found the 2004 conviction to be historical for purposes of 

sentencing enhancement.

¶41 Along with aggravating factors found by the jury, the trial 

court considered the 1981 conviction as an aggravating factor. The court 

sentenced Jackson as a category two repetitive offender, imposing a slightly 
STATE v. JACKSON

Decision of the Court

12

aggravated term for sale or transportation of a narcotic drug concurrent to 

a slightly mitigated term for the possession of drug paraphernalia. See infra 

Part IV.

A. Impeachment

¶42 Jackson argues the trial court erred in allowing the State to 

impeach him with the 2004 conviction under Arizona Rule Evidence 609. 

We review the admission of a prior conviction for impeachment purposes 

for an abuse of discretion. State v. King, 110 Ariz. 36, 39 (1973).

¶43 As relevant here, Rule 609 allows a party to impeach a witness 

with a prior conviction if it was for a crime “punishable by death or by 

imprisonment for more than one year.” Ariz. R. Evid. 609(a). Such 

evidence is not admissible if a period of more than ten years has elapsed 

since the date of the conviction or time of release from confinement, 

whichever is later. Ariz. R. Evid. 609(b). However, Rule 609 also allows 

admission of a prior felony conviction that is over ten years old if the 

proponent provides written notice of intent to use the conviction and its 

probative value “substantially outweighs its prejudicial effect.” Ariz. R. 

Evid. 609(b)(1)-(2).

¶44 Given the State’s failure to prove a release date for the 2004 

conviction and the substantial gap in time between the date of the 

conviction and its admission at trial, we are not persuaded that the prior 

felony conviction falls within the ten-year time limit. We nonetheless 

conclude the 2004 conviction was admissible under Rule 609(b). The State 

provided advanced written notice of its intent to use the 2004 conviction 

and, given the significant emphasis upon witness credibility in this case, the 

nature of the offenses, and Jackson’s combative conduct with the officers, 

the 2004 conviction was particularly probative. Though the trial court 

failed to make specific findings under Rule 609(b), the determining factors 

are clear from the record. See State v. Hunter, 137 Ariz. 234, 237 (App. 1983)

(noting the failure to make findings does not require reversal where it is 

clear from the record that the trial court balanced the relevant factors) 

(citation omitted).

¶45 Furthermore, we are convinced beyond a reasonable doubt 

that any error in the admission of the 2004 conviction was harmless. See 

Bolton, 182 Ariz. at 303 (“Improper admission of evidence of prior 

convictions is subject to harmless error analysis.”). The nature of the 

conviction was sanitized, little attention was drawn to it, and the jury was 

instructed to consider it only to assess credibility.
STATE v. JACKSON

Decision of the Court

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B. Sentencing Enhancement

¶46 Jackson argues the trial court erred in determining the 2004 

conviction was an historical felony. We review the court’s use of a prior 

historical felony conviction for purposes of sentence enhancement de novo.

State v. Rasul, 216 Ariz. 491, 496, ¶ 20 (App. 2007) (citing State v. Derello, 199 

Ariz. 435, 437, ¶ 8 (App. 2001)).

¶47 The State agrees the 2004 conviction was not a prior historical 

felony but argues the error was harmless because the trial court could have 

sentenced Jackson as a repetitive offender based on the 1981 conviction. 

Indeed, the 1981 conviction involved a deadly weapon and constitutes an

historical felony conviction under A.R.S. §§ 13-105(22)(f) and -703(M). 

Accordingly, we agree that Jackson was properly sentenced as a category 

two repetitive offender under A.R.S. § 13-703(B) and (I) regardless of which 

conviction the court found to be historical.

¶48 Jackson argues the 1981 conviction does not qualify as a prior 

historical felony. Contrary to Jackson’s claim, the legislature’s rejection of 

the “elements” analysis, by way of the 2012 and 2015 amendments to A.R.S. 

§§ 13-105(22) and -703(M), applies to his sentences. See State v. Newton, 200 

Ariz. 1, 2, ¶ 3 (2001) (“A basic principle of criminal law requires that an 

offender be sentenced under the laws in effect at the time he committed the 

offense for which he is being sentenced.”); State v. Johnson, 240 Ariz. 402, 

406, ¶ 18 (App. 2016) (noting the legislature’s rejection of a comparative 

analysis for out-of-state convictions). Thus, under A.R.S. §§ 13-105(22) and 

-703(M), an out-of-state prior felony conviction involving the discharge, 

use, or threatening exhibition of a deadly weapon or dangerous instrument 

constitutes an historical felony conviction, regardless of the time that has 

lapsed, as long as it is “punishable by that jurisdiction as a felony.” A 

“deadly weapon” is defined as anything designed for lethal use, including 

a firearm. A.R.S. § 13-105(15).

¶49 Here, the State proved the 1981 conviction by clear and 

convincing evidence, and the certified records show Jackson used a deadly 

weapon — a shotgun — in the commission of the offense. See State v. 

Morales, 215 Ariz. 59, 61, ¶ 6 (2007) (explaining what the State must do to 

prove a prior conviction). The record thus reflects Jackson has one prior

historical felony conviction — the 1981 conviction — for purposes of
STATE v. JACKSON

Decision of the Court

14

sentencing enhancement under A.R.S. § 13-703(B) and (I),

4 and one prior 

nonhistorical felony conviction — the 2004 conviction — for use as an

additional aggravating factor. Because the ultimate sentencing decision 

was legally correct, we need not remand for resentencing.

V. Other Errors

¶50 Jackson argues that numerous additional errors constitute 

reversible error. Of the litany of issues presented, Jackson claims the trial 

court repeatedly prevented him from presenting a defense, placed unfair 

restrictions and limitations on his presentation at trial, and generally 

favored the State.

¶51 To the extent Jackson argues that cumulative error requires

reversal, Arizona does not recognize the cumulative error doctrine in 

criminal cases, and we decline to ignore long-standing precedent here. See

State v. Hughes, 193 Ariz. at 78-79, ¶¶ 24-25 (citing State v. Dickens, 187 Ariz. 

1, 21 (1996)). We further decline to extend special treatment to defendants, 

such as Jackson, who choose to represent themselves. See Smith v. Rabb, 95 

Ariz. 49, 53 (1963) (explaining litigants proceeding in propria persona are 

held to the same familiarity of procedures, statutes, and local rules as 

qualified members of the bar) (citations omitted). Finally, we decline to 

address arguments merely incorporated by reference without any 

meaningful analysis. See Ariz. R. Crim. P. 31.10(a)(7)(A) (stating an 

argument on appeal must contain “supporting reasons for each contention, 

. . . with citations of legal authorities and appropriate references to the 

portions of the record”); State v. Barraza, 209 Ariz. 441, 447, ¶ 20 (App. 2005) 

(disapproving the practice of incorporation of arguments by reference on 

appeal). For these reasons, we reject Jackson’s remaining claims of 

reversible error.

VI. Sentencing Minute Entry

¶52 Finally, the trial court identified the sentence for possession 

of drug paraphernalia as a “slightly aggravated” term of 1.5 years’ 

imprisonment in both the oral pronouncement of sentence and the related 

 

4 Although Jackson argues that using the 1981 conviction as an 

historical felony results in double jeopardy, “[d]ouble jeopardy principles 

generally do not apply to sentencing proceedings.” State v. Ring, 204 Ariz. 

534, 548 (2003) (citing United States v. DiFrancesco, 449 U.S. 117, 132 (1980)). 

Jackson does not point to any authority suggesting the circumstances 

presented here supply an exception to that general rule.
STATE v. JACKSON

Decision of the Court

15

minute entry. The 1.5-year sentence for a category two repetitive offender

convicted of a class 6 felony is actually a slightly mitigated term. See A.R.S.

§ 13-703(I). The error appears to be inadvertent, and the court’s intent is 

apparent from the record. See State v. Bowles, 173 Ariz. 214, 216 (App. 1992).

Accordingly, we modify the sentencing minute entry to identify the 

sentence for possession of drug paraphernalia as a slightly mitigated term.

CONCLUSION

¶53 We affirm Jackson’s convictions and sentences but modify the 

sentencing minute entry to reflect that the sentence for the paraphernalia 

count represents a slightly mitigated term.