State v. Wade

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WILLIAM EARL WADE, JR., Appellant.

No. 1 CA-CR 20-0096
FILED 2-23-2021

Appeal from the Superior Court in Maricopa County
No. CR2018-121601-001
The Honorable Ronee Korbin Steiner, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Gurion Legal, Phoenix
By Omer Gurion
Counsel for Appellant
 STATE v. WADE
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 William Earl Wade, Jr. appeals his conviction and sentence for
one count of possession or use of dangerous drugs. For the following
reasons, we affirm Wade’s conviction and modify his sentence.

FACTUAL AND PROCEDURAL HISTORY

¶2 Police were dispatched to a scene after an individual called
9-1-1 claiming a man threatened him with a knife. Police contacted a man
who matched the description of the suspect, and he identified himself as
Wade. Wade admitted to having a knife, although he denied threatening
anyone. Wade told officers that the knife was in his front right pants pocket.
As an officer lifted Wade’s shirt to grab the knife, he noticed a small plastic
baggie sticking out of Wade’s pants pocket. Based on experience, the officer
recognized the plastic baggie as a common container for drugs. The officer
removed the baggie from Wade’s pocket, and saw it contained a white
crystal-like substance. The substance later field tested positive for
methamphetamine. Wade was arrested, and during a search incident to his
arrest, officers also found a glass pipe in Wade’s back pants pocket. Wade
was charged for possession of dangerous drugs.

¶3 A two-day jury trial was held, and one of the arresting officers
testified. The officer testified that after he found the drugs in Wade’s
pocket, Wade told him the pants he was wearing were not his. Wade
claimed the pants had been given to him by someone at a laundromat at
Seventh and Roosevelt, but the officer testified there was not a laundromat
at those crossroads. Wade told the officer he had no idea there was
methamphetamine in the pants pocket. Wade did, however, admit to the
officer that he knew about the glass pipe. He claimed to have found the
pipe and had the intention of getting rid of it later. The officer also found
lip balm, a bike light, a lighter, and the knife in Wade’s pants pockets, all of
which Wade admitted belonged to him. The only item in the pants pockets
of which Wade claimed to be unaware was the methamphetamine.

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¶4 Wade also testified. Wade alleged that on the day of his
arrest, he told the officer that he borrowed the pants from a friend in the
downtown central station area, and not from an unknown man at a
laundromat. Wade admitted that there was not a laundromat at Seventh
and Roosevelt. Wade denied that he knew the drugs were in the pants, and
he also denied that the officer found the drugs in the same pocket as the
knife. Wade claimed the drugs were instead inside the small coin pocket in
the front of the pants, while the knife was in the back pocket. Wade also
stated the baggie of drugs was never sticking out of the pocket or visible to
the officer. Finally, Wade testified that a few minutes before he came into
contact with police officers, he came across the glass pipe lying in the street.
He claimed to have picked up the pipe so that he could dispose of it and
make sure no children found it.

¶5 The jury found Wade guilty of possession or use of dangerous
drugs. The superior court sentenced him to four-and-a-half years’
imprisonment with a presentence incarceration credit of 200 days. Wade
timely appealed, and we have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, -4033(A)(1).

DISCUSSION

I. Presentence Incarceration Credit

¶6 Wade argues he was entitled to 202 days of presentence
incarceration credit for count one, although the superior court credited him
with only 200 days. The State agrees Wade is entitled to 202 days of credit.

¶7 A defendant sentenced to prison is entitled to have all time
spent in custody for the offense credited towards their imprisonment.
A.R.S. § 13-712(B). “[F]or purposes of presentence incarceration credit,
‘custody’ begins when a defendant is booked into a detention facility.” State
v. Carnegie, 174 Ariz. 452, 453-54 (App. 1993). A defendant is entitled to a
full day of credit for any partial day of incarceration but is not entitled to
credit for the day the sentence is imposed. Id. at 454; State v. Hamilton, 153
Ariz. 244, 246 (App. 1987). A court’s failure to grant a defendant full credit
for presentence incarceration constitutes fundamental error. State v. Ritch,
160 Ariz. 495, 498 (App. 1989).

¶8 Wade was booked and released on May 2, 2018, which
amounts to one day of presentence incarceration credit. Following his
conviction, Wade was held in custody from July 24, 2019, until his
sentencing on February 10, 2020, which amounts to an additional 201 days
of presentence incarceration. Wade should have received 202 days of

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presentence credit, and the superior court erred by awarding Wade only
200 days of presentence incarceration credit.

II. Admission of the Glass Pipe

¶9 Wade argues the court erred in admitting evidence of the
glass pipe because it was irrelevant under Arizona Rule of Evidence
(“Rule”) 401, unduly prejudicial under Rule 403, and “other acts” evidence
in violation of Rule 404(b). We review the admission of evidence for an
abuse of discretion. State v. Lehr, 227 Ariz. 140, 147, ¶ 19 (2011).

¶10 Wade failed to object to the admission of the glass pipe on
Rule 403 or 404(b) grounds, and so he has forfeited the right to obtain
appellate relief on these bases unless he shows fundamental, prejudicial
error occurred. See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
Fundamental error is an error that goes to the foundation of the case, error
that takes from the defendant a right essential to his defense, or error so
egregious the defendant could not possibly have received a fair trial. Id. To
prevail, Wade must establish both that fundamental error exists and that
the error caused him prejudice. Id.

¶11 All relevant evidence is admissible unless otherwise
prohibited by law. Ariz. R. Evid. 402. “Evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.”
Ariz. R. Evid. 401. Here, Wade’s knowing possession of methamphetamine
was a necessary element of the crime for which he was charged. Wade
denied that he knowingly possessed methamphetamine. Therefore, his
possession of a glass pipe, which the officer testified was paraphernalia
commonly used to smoke methamphetamine, makes it more probable that
Wade also knowingly possessed the drugs. We find no abuse of discretion
in the superior court finding the pipe to be relevant evidence.

¶12 Although relevant evidence is generally admissible, it may be
excluded by the court if its probative value is substantially outweighed by
a danger of unfair prejudice. Ariz. R. Evid. 403. Wade contends for the first
time on appeal that the admission of the pipe was prejudicial, and the court
failed to weigh whether its probative value substantially outweighed the
prejudicial effect.

¶13 Because Wade never argued below that admission of the pipe
into evidence was unfairly prejudicial, the court did not expressly weigh
the prejudice of admitting this evidence against its probative value before
deciding to admit it. However, we presume the court knows and follows

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the law, and that it properly considered any potentially prejudicial effect
before admitting it. See State v. Johnson, 212 Ariz. 425, 432, ¶ 21 (2006).
Moreover, “not all harmful evidence is unfairly prejudicial,” and “evidence
which is relevant and material will generally be adverse to the opponent.”
State v. Schurz, 176 Ariz. 46, 52 (1993). Wade fails to explain how the
evidence was unfairly prejudicial. See id. (“[u]nfair prejudice” under Rule
403 “means an undue tendency to suggest decision on an improper basis,
such as emotion, sympathy or horror”) (quotation and citation omitted).
Here, the evidence was not unfairly prejudicial, but was adversely
probative as it tended to show that Wade had knowledge he was in
possession of methamphetamine. Once Wade put at issue his knowledge
of possessing the methamphetamine, the evidence had sufficient probative
value to withstand a Rule 403 weighing.

¶14 Relevant evidence can also be excluded under Rule 404(b),
which precludes evidence of other crimes, wrongs, or acts that is offered
solely to show the character of a defendant to prove disposition to
criminality. Ariz. R. Evid. 404(b)(1). Wade contends the admission of the
evidence violates Rule 404(b) because the State offered the evidence “to
make it less believable that [Wade] was unaware that the
methamphetamine was in his pants.” However, it was not improper for the
State to introduce the evidence for this purpose. Rule 404(b)(2) makes it
clear that evidence of other crimes or acts can be admissible for any purpose
other than showing criminal propensities, including “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Ariz. R. Evid. 404(b)(2) (emphasis added). Here, the
State offered the evidence to prove Wade’s knowledge in possessing the
methamphetamine.

¶15 Wade also contends the State was required to hold a hearing
before admitting the evidence under Rule 404(b) and to provide curative
instructions. Although the State gave notice that the glass pipe would be
mentioned at trial, Wade failed to raise Rule 404(b) concerns before or
during trial, and he did not request that such a hearing be held. We do not
find that a hearing was required. When acts are admitted into evidence
pursuant to Rule 404(b), the proponent must prove by clear and convincing
evidence the acts were committed by the defendant. State v. Terrazas, 189
Ariz. 580, 582 (1997). Wade himself admitted to knowingly possessing the
pipe. And the superior court did not provide a limiting instruction because
Wade never requested one. Ariz. R. Evid. 105 (if evidence is admitted for
one purpose but not for another, court must give limiting instruction upon
timely request); see also State v. Miles, 211 Ariz. 475, 483, ¶ 31 (App. 2005).
The court did not err in admitting evidence that Wade possessed a pipe.

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III. Prosecutorial Error

¶16 Wade argues the State engaged in a pattern of error at trial,
which deprived him of a fair trial and due process of law.1

¶17 “To prevail on a claim of prosecutorial [error], a defendant
must demonstrate that the prosecutor’s [error] so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (quoting State v. Hughes, 193
Ariz. 72, 79, ¶ 26 (1998)) (internal quotation marks omitted). Prosecutorial
error constitutes reversible error only if “a reasonable likelihood exists that
the [error] could have affected the jury’s verdict, thereby denying
defendant a fair trial.” Id. (quoting State v. Anderson, 210 Ariz. 327, 340,
¶ 45 (2005)). We first assess each claim of alleged error individually, and
the applicable standard of review depends upon whether the defendant
objected to the alleged error. State v. Arias, 248 Ariz. 546, 555, ¶ 31 (App.
2020). When a defendant objects to alleged error, we review for harmless
error. Id. However, if the defendant fails to object, we review only for
fundamental error. Id. After determining which claims constitute error, we
review the cumulative error to determine whether the total effect rendered
the defendant’s trial unfair. State v. Hulsey, 243 Ariz. 367, 388, ¶ 88 (2018).
Here, Wade failed to object to any of the alleged instances of error. As such,
we review for fundamental error only.

¶18 First, Wade contends the prosecutor committed error by
admitting into evidence the glass pipe that was found in Wade’s possession
when he was arrested. Wade argues the pipe was introduced solely for the
purpose of prejudicing him. As explained above, it was not erroneous for
the State to offer, and for the superior court to admit, into evidence that
Wade possessed a glass pipe. Thus, the State did not commit prosecutorial
error by introducing this evidence.

¶19 Next, Wade contends the State committed error by asking
inappropriate questions during cross-examination. Wade’s testimony was
inconsistent with an officer’s testimony, and so the prosecutor asked Wade
several times whether the officer was lying. During closing argument, the
prosecutor stated, “You heard the testimony of the defendant. He kept
saying the officer is lying, the officer is lying. The officer is not lying. He’s

1 Wade does not argue, and we do not separately determine in this
proceeding, whether any ethical violation has occurred. See In re Martinez,
248 Ariz. 458, 469-70, ¶¶ 42-47 (2020). Therefore, we refer to the
prosecutorial misconduct claims as prosecutorial error. See id.

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just doing his job. The defendant here has everything to lose, and that is
why he’s claiming that the officer is lying.”

¶20 Arizona courts have not adopted a bright-line rule as to
whether “were they lying” questions are improper, and such questions may
be appropriate when the only possible explanation for the inconsistent
testimony is lying. State v. Morales, 198 Ariz. 372, 375, ¶¶ 12-13 (App. 2000).
Here, the only possible explanation for the inconsistent testimony would be
that either Wade or the officer was lying. Nonetheless, even assuming the
questions were improper, they did not result in fundamental error. See id.
at 376, ¶ 15 (“Were they lying questions alone will rarely amount to
fundamental error.”). The State presented evidence that Wade was found
in possession of both methamphetamine and a glass pipe. Although Wade
denied knowingly possessing the methamphetamine, it was found in the
same pocket as a knife that he admitted did belong to him. Wade did not
deny that he knowingly possessed the glass pipe, and an officer testified
that the pipe is one commonly used to smoke methamphetamine. We
cannot say that the prosecutor’s questions deprived Wade of a fair trial or
due process, and Wade has not met his burden of showing that “without
the error, a reasonable jury could have plausibly and intelligently returned
a different verdict.” See Arias, 248 Ariz. at 564, 565, ¶¶ 73, 76 (quoting
Escalante, 245 Ariz. at 144, ¶ 31).

¶21 Wade attempts to draw parallels from United States v. Richter,
826 F.2d 206 (2d Cir. 1987) to his case. We find Richter to be both
distinguishable and not controlling. In Richter, during the cross-
examination of the defendant, the prosecutor asked several questions
aimed at making the defendant testify that an officer was either mistaken
or lying, and the prosecutor repeatedly referenced this cross-examination
in closing argument. Id. at 208-09. The prosecutor in Richter also introduced
a rebuttal witness to emphasize the cross-examination of the defendant and
the inconsistencies between the defendant’s and the officer’s testimony. Id.
at 208. The court indicated that if the basis for claiming reversible error was
only the questions asked of the defendant on cross-examination, the court
“might be inclined to overlook the impropriety.” Id. But because the
prosecutor went further, the cumulative effect of the prosecutor’s conduct
was found to constitute plain error warranting a new trial. Id. at 208-10.

¶22 Morales notes:

Apparently Richter “has not been embraced by any other
federal courts outside the Second Circuit.” See United States v.
Williamson, 53 F.3d 1500, 1523 n. 14 (10th Cir. 1995). And, even

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the Second Circuit has remarked that “defendants invoking
Richter have not succeeded in obtaining reversal of their
convictions when the starkly offensive prosecutorial
delinquencies in Richter were not replicated.” United States v.
Gaind, 31 F.3d 73, 77 (2d Cir. 1994).

Morales, 198 Ariz. at 376, ¶ 15, n.4. Further, the prosecutor’s conduct in this
case did not rise to the level of “egregious” conduct found to occur in
Richter. Aside from repeatedly referencing the cross-examination and
introducing a rebuttal witness to drive home its argument the defendant
was lying, the prosecutor in Richter repeatedly stated that to acquit the
defendant, the jury must find the officers had lied. Richter, 826 F.2d at 209;
see also Morales, 198 Ariz. at 376, ¶ 15. We do not believe the prosecutor’s
questions in this case were so egregious as to warrant reversal.

¶23 Finally, Wade argues the prosecutor committed error by
objecting to Wade’s testimony as “self-serving hearsay” five times. The
court sustained two objections and overruled three. After the fifth
objection, a sidebar conference was held out of the presence of the jury, and
the parties had a discussion as to whether Wade’s testimony constituted
self-serving hearsay. The court stated, “Because now that the defendant is
on the stand, it’s no longer self-serving hearsay.” The prosecutor did not
object on hearsay grounds after this point.

¶24 Prosecutorial misconduct is not merely the result of legal
error or mistake, but instead amounts to intentional error that the
prosecutor knows is improper and prejudicial. State v. Aguilar, 217 Ariz.
235, 238-39, ¶ 11 (App. 2007). The fact the superior court found three of the
prosecutor’s objections to be legally incorrect does not equate to intentional,
prejudicial conduct on the prosecutor’s part. The superior court sustained
two of the prosecutor’s objections, which gave the prosecutor assurance his
objections were legally sound. And once the court stated it did not believe
Wade’s testimony to be self-serving hearsay, the prosecutor did not make
any additional hearsay objections. We do not find the prosecutor
committed prosecutorial error by making several objections during Wade’s
testimony.

¶25 Because we do not find any of these instances amounted to
prosecutorial error, “there can be no cumulative effect of [error] sufficient
to permeate the entire atmosphere of the trial with unfairness.” See State v.
Bocharski, 218 Ariz. 476, 492, ¶ 75 (2008).

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CONCLUSION

¶26 For the foregoing reasons, we affirm Wade’s conviction and
modify his sentence on count one to reflect that he is entitled to 202 days of
presentence incarceration credit.

AMY M. WOOD • Clerk of the Court
FILED: AA

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