IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

MAVERICK KEMP GRAY,

Appellant.

No. 2 CA-CR 2014-0436

Filed August 13, 2015

Appeal from the Superior Court in Pima County

No. CR20132758001

The Honorable Scott Rash, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Chris DeRose, Assistant Solicitor General, Phoenix

Counsel for Appellee

Steven R. Sonenberg, Interim Pima County Public Defender

By David J. Euchner, Assistant Public Defender, Tucson

Counsel for Appellant
STATE v. GRAY

Opinion of the Court

2

OPINION

Presiding Judge Miller authored the opinion of the Court, in which 

Chief Judge Eckerstrom and Judge Espinosa concurred.

M I L L E R, Presiding Judge:

¶1 Maverick Gray was convicted after a jury trial of one 

count of sale of narcotics, cocaine base, and sentenced to a 9.25-year 

prison term. On appeal, he argues the trial court abused its 

discretion by refusing his request for a jury instruction on 

entrapment. For the reasons that follow, Gray’s conviction and 

sentence are affirmed.

Factual and Procedural Background

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

party requesting the jury instruction. See State v. King, 225 Ariz. 87, 

¶ 13, 235 P.3d 240, 243 (2010). In June 2013, Tucson Police

Department Officer J.D. was working undercover, posing as a 

narcotics buyer. Around 11:30 p.m., he saw Gray seated at a bus 

stop although, the officer believed, bus service had ended for the 

evening. He pulled his car to the curb, ten to fifteen feet in front of 

the bus stop, and exchanged looks with Gray. J.D. then asked Gray, 

“Hey, can you help me out?” Gray approached the car and 

responded, “What kind of help do you need?” J.D. replied that he 

was trying to get some “hard,” a slang term used for crack cocaine. 

Gray asked what was in it for him. Gray then negotiated a tendollar fee in exchange for acquiring twenty dollars of crack cocaine.

¶3 Gray got in J.D.’s vehicle and directed him four miles 

through the city to an apartment complex. When they arrived J.D. 

gave Gray a twenty-dollar bill. Gray left the vehicle and headed to 

an unknown location. He returned about ten minutes later with a 

crack rock. J.D. gave Gray ten dollars and communicated to other 

officers that the deal had been completed. Gray was arrested shortly 

thereafter.
STATE v. GRAY

Opinion of the Court

3

¶4 Over Gray’s objection, the trial court admitted a

recording of his conversation with J.D. Based on the statements he 

made to the officer, Gray requested an instruction on entrapment 

arguing he admitted the elements of the crime in the recording. The 

court denied the request, concluding Gray had not admitted to the 

substantive elements of the underlying offense; therefore, the 

admission requirement for an entrapment defense had not been met. 

Gray was convicted and sentenced as described above. This appeal 

followed.

Discussion

¶5 Gray argues the jury instruction for entrapment was 

warranted because he had fulfilled the admission requirement under 

Arizona’s statutory entrapment defense either by simply not 

challenging the state’s evidence or through Gray’s statements to J.D. 

during the sale. We review a trial court’s denial of a requested 

instruction for an abuse of discretion. State v. Musgrove, 223 Ariz. 

164, ¶ 5, 221 P.3d 43, 46 (App. 2009). We will not reverse the court’s 

ruling absent a clear abuse of that discretion and prejudice to the 

defendant. State v. Garfield, 208 Ariz. 275, ¶ 11, 92 P.3d 905, 908 

(App. 2004). “An abuse of discretion includes an error of law.” State 

v. Rubiano, 214 Ariz. 184, ¶ 5, 150 P.3d 271, 272 (App. 2007). Such 

error includes statutory interpretation, which we review de novo.

State v. Villegas, 227 Ariz. 344, ¶ 2, 258 P.3d 162, 163 (App. 2011).

¶6 The elements of an entrapment defense are codified in

A.R.S. § 13-206, which provides in relevant part that a defendant 

must “admit by [his] testimony or other evidence the substantial 

elements of the offense charged.” “Entrapment is a question for the 

jury unless there is no evidence to support the defense . . . .” State v. 

Gessler, 142 Ariz. 379, 382, 690 P.2d 98, 101 (App. 1984).

¶7 We first address Gray’s argument that his decision to 

not “challenge” the state’s evidence during trial was sufficient to 

justify an entrapment instruction. Gray’s silence at trial is not an 

admission to all elements of the offense. Our supreme court has 

held that an admission “must be made in some affirmative manner 

and cannot be assumed from a defendant’s silence.” State v. Nilsen, 

134 Ariz. 431, 432, 657 P.2d 419, 420 (1983). Nilsen’s holding was 
STATE v. GRAY

Opinion of the Court

4

recently addressed, albeit in dicta, in State v. Williamson, 236 Ariz. 

550, ¶¶ 50-51, 343 P.3d 1, 15 (App. 2015) (trial court did not abuse 

discretion in requiring defendant to admit elements of offenses by 

stipulation in order to assert entrapment defense). Without 

reference to Williamson, Gray argues Nilsen is no longer controlling

because it predates changes directed by the legislature when it 

codified the common law entrapment defense. Although Williamson

arguably controls resolution of Gray’s contention against him, we 

examine the merits of his argument, which were not presented in

Williamson.

¶8 Gray’s argument impliedly contends the statute’s

authorization of admission by “other evidence” vitiates Nilsen

because the defense is no longer limited to a formal admission. But 

the common law rule was not as narrow as Gray implies. It required 

that a defendant “must admit the substantial elements of the crime 

and one who denies knowledge of the crime may not raise the 

defense of entrapment.” State v. McKinney, 108 Ariz. 436, 439, 501 

P.2d 378, 381 (1972). Nilsen outlined several methods by which a 

defendant could satisfy the admission requirement, including 

testifying, stipulating, or having an admission read into evidence. 

134 Ariz. at 432, 657 P.2d at 420. Stipulating or having the admission 

read into evidence, as suggested by Nilsen, would constitute “other 

evidence” under the statute. Williamson, 236 Ariz. 550, ¶¶ 50-51, 343 

P.3d at 15. Moreover, nothing in § 13-206(A) suggests that a 

defendant’s silence against the state’s evidence constitutes “other 

evidence.” Therefore, given the recent holding in Williamson and the 

similarity of the codified statute to the prior common law rule, we 

conclude Nilsen is still controlling law, and a defendant is required 

to affirmatively admit the elements of the offense.

¶9 We also note the facts of Nilsen are analogous to this

case. Unlike Gray, Nilsen did attempt to stipulate his admission, but

the state refused the proffered stipulation. 134 Ariz. at 432, 657 P.2d 

at 420. However, like Gray, once Nilsen’s attempt at admission had 

failed, he “sat mute and made no active admission of the elements of 

the offense.” Id. Here, after defense counsel had failed to convince 

the trial court that statements from the audio recording constituted 
STATE v. GRAY

Opinion of the Court

5

an admission under the statute, Gray did not avail himself of 

Nilsen’s alternatives to testimony.

¶10 Gray also argues the statements from the audio 

recording and its transcript constitute “other evidence” as required 

by the entrapment defense statute. Gray asserts § 13-206(A) “allows 

for admission-by-implication,” relying again on the argument that 

the statute confers some new benefit upon the defendant. On the 

contrary, Williamson and Nilsen suggest the admission must be more 

than implied from the existing evidence; rather, it must be 

affirmatively admitted.

¶11 But even if the statements from the audio recording 

could constitute “other evidence,” Gray’s actual statements there do

not amount to an admission of the substantive elements of the 

offense. § 13-206(A). Gray highlights statements in the recording

where he said to J.D., “I’m a good person,” and “I don’t usually do 

this.” No facts support the contention that when Gray said “I don’t 

usually do this,” while riding in the undercover officer’s vehicle on 

way to the buy and directly after the buy, he meant “this” to 

constitute the elements of the crime for which he had been 

charged—unlawful sale of narcotics under A.R.S. § 13-3408(A)(7).

1 

Moreover, an admission must be complete because “[r]equiring a 

trial court to entertain an entrapment defense when the defendant 

has not admitted all elements of the crime does not serve the cause 

of criminal justice.” State v. Soule, 168 Ariz. 134, 137, 811 P.2d 1071, 

1074 (1991). None of Gray’s statements suggests a complete 

admission.

¶12 Finally, the purpose behind the Arizona rule requiring 

an explicit admission is to avoid jury confusion through inconsistent 

defenses. Soule, 168 Ariz. at 137, 811 P.2d at 1074. Here, a number of 

factors could contribute to jury confusion about the defense’s 

 

1Nor did Gray know he was speaking to an officer or being 

recorded at the time. Arguably, if a defendant were to admit as 

evidence a prior confession of the crime to an officer during a formal 

interrogation, such a confession might meet the requirements of the 

statute, but that is not the case before us.
STATE v. GRAY

Opinion of the Court

6

posture. First, Gray, to the extent his statement that he does not 

“usually do this” could be interpreted as an admission, refused to 

admit the charged offense at trial. Next, defense counsel crossexamined officer J.D. on Gray’s intoxication, which could only create 

doubts about the validity of an admission because intoxication is not 

a defense to a criminal offense. A.R.S § 13-503. The tentative nature 

of the admission and the testimony elicited during crossexamination could likely produce the inconsistent defense our 

supreme court sought to avoid in requiring an affirmative admission 

to the underlying offense for an entrapment defense. We conclude 

the trial court did not abuse its discretion by denying a jury 

instruction on the entrapment defense.

Disposition

¶13 For the reasons stated above, Gray’s conviction and 

sentence are affirmed.