IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DUSTIN GILL, Appellant.

No. 1 CA-CR 15-0509

Appeal from the Superior Court in Maricopa County

No. CR2013-449134-001

The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz and Christian Lueders, Rule 38(d) certified student

Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix

By Cynthia Dawn Beck

Counsel for Appellant

OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in 

which Judge Maurice Portley and Judge John C. Gemmill joined.
STATE v. GILL

Opinion of the Court

2

T H U M M A, Judge:

¶1 Dustin Gill appeals his conviction for possession or use of 

marijuana, a Class 1 misdemeanor, arguing the superior court erred by 

admitting Gill’s statements to a representative of the Treatment Assessment 

Screening Center (TASC) program during a deferred prosecution. Because 

Gill has shown no error, his conviction is affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 In 2013, a security guard found Gill in a restroom holding 

several grams of marijuana. The State charged Gill with one count of 

possession or use of marijuana, a Class 6 felony. After the State reduced the 

charge to a misdemeanor, and Gill rejected plea offers, the parties agreed 

that the prosecution would be deferred while Gill participated in a TASC 

program. See Ariz. Rev. Stat. (A.R.S.) § 11-361 (2016). 2

¶3 When entering the TASC program, a TASC representative

interviewed Gill and Gill filled out a “statement of facts” form. On that 

form, which Gill and his attorney signed, Gill indicated he understood his

rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and avowed that

“I fully understand that what I have written here may be used against me 

in a court of law should I fail to satisfactorily complete the TASC program.” 

When asked about “the facts of the offense,” Gill wrote on the form: “The 

marijuana was found in the bathroom on the ground in my possession.”

¶4 Although Gill participated in the TASC program for a period 

of time, he failed to complete the requirements and the State resumed 

prosecution. After Gill then rejected another plea offer, he moved to 

suppress the “statement of facts” form and any testimony from TASC 

representatives regarding his admissions, claiming (as relevant here) they 

were inadmissible because they were made in the course of plea 

discussions.

3 After full briefing, the superior court denied Gill’s motion. 

 

1 On appeal, this court views the evidence in the light most favorable to 

sustaining the conviction and resolves all reasonable inferences against the 

defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).

2 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.

3 Gill also argued to the superior court the statements were involuntary, an 

argument he does not press on appeal and is not addressed here.
STATE v. GILL

Opinion of the Court

3

After a bench trial, the court found Gill guilty, suspended his sentence and 

placed him on one year of unsupervised probation. Gill timely appealed his 

conviction. This court has jurisdiction pursuant to the Arizona 

Constitution, Article 6, Section 9, and A.R.S. §§ 12–120.21(A)(1), 13–4031, 

and –4033(A).

DISCUSSION

¶5 Gill argues information he provided to TASC was not 

admissible at trial because they constitute “a statement made during plea 

discussions with an attorney for the prosecuting authority if the discussions 

did not result in a guilty plea or they resulted in a later-withdrawn guilty 

plea.” Ariz. R. Evid. 410(a)(4); see also Ariz. R. Crim. P. 17.4(f) (noting 

admissibility “of a plea, a plea discussion, and any related statement is 

governed by” Ariz. R. Evid. 410). This court reviews the superior court’s 

ruling on such an issue for an abuse of discretion. Lohmeier v. Hammer, 214 

Ariz. 57, 60 ¶ 6 (App. 2006).

¶6 Gill’s argument fails for three reasons.

¶7 First, Gill did not provide information to TASC “during plea 

discussions.” Ariz. R. Evid. 410(a)(4). Although Ariz. R. Crim. P. 17.4 

governs plea negotiations and agreements and refers to Ariz. R. Evid. 410, 

see Ariz. R. Crim. P. 17.4(f), the TASC program is part of a deferred 

prosecution governed by Ariz. R. Crim. P. 38, which does not reference 

Ariz. R. Evid. 410. Participating in a deferred prosecution program such as 

TASC, then, is not a plea negotiation or agreement subject to Ariz. R. Crim. 

P. 17.4 or Ariz. R. Evid. 410. In fact, Gill agreed to participate in the TASC 

program, and provided the statements challenged here, after he rejected a 

plea offer. Given that Gill rejected the plea offer before agreeing to 

participate in the TASC program, there were no plea discussions ongoing 

when he later provided TASC the statements he challenges here.

¶8 Second, there is no suggestion that Gill’s statements were 

made “during plea discussions with an attorney for the prosecuting 

authority.” Ariz. R. Evid. 410(a)(4). Gill has not shown that the TASC 

representative he spoke with, and provided the written “statement of facts” 

form to, was an attorney, let alone an attorney for the State as required by 

Ariz. R. Evid. 410(a)(4).

¶9 Third, even if Gill’s statements met the requirements of Ariz. 

R. Evid. 410(a)(4), Gill waived those protections. A defendant can 

voluntarily waive the protections of Ariz. R. Evid. 410(a)(4). State v. Campoy, 

220 Ariz. 539, 549-50 ¶¶ 30-34 (App. 2009) (citing United States v. Mezzanatto, 
STATE v. GILL

Opinion of the Court

4

513 U.S. 196, 210-11 (1995), which interpreted Fed. R. Evid. 410).

4 Gill did 

just that when he indicated he understood Miranda warnings listed on the 

TASC form and wrote “yes” and initialed next to the following: “I have 

made this statement without coercion and of my own free will. I fully 

understand that what I have written here may be used against me in a court 

of law should I fail to satisfactorily complete the TASC program.” Only 

after that waiver did Gill provide the statements he challenges on appeal. 

CONCLUSION

¶10 Because Gill has shown no error, his conviction is affirmed.

 

4 As applicable here, Fed. R. Evid. 410 (1995), cited in Mezzanatto, is 

substantially similar to the Ariz. R. Evid. 410 (2009), cited in Campoy, and 

substantially similar to the current version Ariz. R. Evid. 410.