State v. Wilson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL RAE WILSON, Appellant.

Nos. 1 CA-CR 22-0077
1 CA-CR 22-0078
(Consolidated)
FILED 3-30-2023

Appeal from the Superior Court in Maricopa County
No. CR2018-121688-001, CR2018-118176-001
The Honorable Jacki Ireland, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Damon A. Rossi
Counsel for Appellant
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MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge D. Steven Williams joined.

P A T O N, Judge:

¶1 Daniel Rae Wilson appeals his convictions and sentences on
one count of aggravated identity theft, ten counts of forgery, and three
counts of criminal possession of a forgery device. He argues the superior
court violated Arizona Rule of Evidence (“Rule”) 404(b) by admitting
alleged propensity evidence. He further asserts the State engaged in
prosecutorial misconduct by introducing that evidence and referencing it
in closing argument. He also challenges the admission of alleged profile
evidence. Finally, he contends the superior court improperly commented
on a detective’s testimony. For reasons that follow, we affirm his
convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
verdicts, resolving all inferences against Wilson. See State v. Reaves, 252
Ariz. 553, 558, ¶ 2 (App. 2022). A police officer arrived at a parking lot early
one April morning to investigate a report of a suspicious vehicle. There, he
found Wilson asleep and alone in the driver’s seat of a parked car, which
was registered to a female. After the officer asked for his name and
identification, Wilson abruptly sped away. He soon crashed the car in front
of a house, then ran through the neighborhood. Officers located him hiding
inside a shed where they also found numerous credit, debit, and gift cards
(collectively, “credit cards”) stacked on a shelf. The shed’s owner, M.A.,
had never met Wilson, and she had not stored any credit cards in the shed.

¶3 When officers searched the crashed car, they found Wilson’s
wallet, a backpack, two laptops, two keyboards, methamphetamine, and
marijuana. The backpack contained a credit-card embosser, a credit-card
encoder, and a chip scanner (collectively, “forgery devices”).

¶4 Detective Kim, who specializes in fraud and identity-theft
investigations, analyzed the evidence seized from the shed and the car.
Wilson was not the legal accountholder for any of the credit cards, but his

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name had been embossed on several of them. According to Detective Kim,
a person could use the forgery devices to read and remove account numbers
from a card’s magnetic strip. The person could then encode the numbers
and other names onto the magnetic strips of different cards. At that point,
the person could make purchases with the card or sell it.

¶5 The State obtained two indictments against Wilson. The first
indictment charged him with one count of aggravated identity theft, a class
three felony; ten counts of forgery, class four felonies; and five counts of
possessing a forgery device, class six felonies. The second indictment
charged him with one count each of possessing methamphetamine, a class
four felony; possessing marijuana, a class six felony; and criminal trespass
in the first degree, a class one misdemeanor. The superior court later
granted the State’s motions to consolidate the criminal-trespass charge with
the first indictment and dismiss the drug-possession counts, which the
court refused to consolidate with the other charges.

¶6 At trial, Wilson’s counsel conceded in opening statement that
Wilson had been trespassing in the shed, that the prosecution could prove
the credit cards had been “altered,” and that the associated credit card
accounts had been “compromised.” Although his counsel acknowledged
that Wilson had made “mistakes” and “lapses in judgment” that day, he
argued the police had likewise made errors and “cut corners” in their
investigation, leading to “mental leaps” and “quick conclusions.” Based on
those asserted deficiencies, he argued that the State would not be able to
prove Wilson “knowingly possessed forged cards” and had “the intent to
defraud[.]”

¶7 The State presented the testimony of several victims whose
account numbers had been encoded on the seized credit cards. The victims
verified that they did not recognize the cards or the named financial
institutions. Four victims further explained that they had unauthorized
transactions on their accounts.

¶8 The State called Detective Kim, who described his
investigation. He obtained the information encoded on the credit cards’
magnetic strips using a card reader. The financial institutions named on
the cards differed from the encoded information. Detective Kim also
noticed suspicious features on several of the cards, including “really tight”
embossing, “conspicuous” numbers that were “slightly raised,” and
account numbers embossed on the front that did not match the encoded
information.

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¶9 On cross-examination, Detective Kim acknowledged that he
had not done any “quality control” on the forgery devices and thus did not
know whether they worked properly. He had not “brushed them for
fingerprints,” nor had the police conducted any forensic analysis of the
laptops. Further, he never determined who had manufactured the cards,
he did not “follow up with the stores or locations where any alleged
fraudulent use occurred,” and he did not know whether the “cards
themselves [were] responsible for those [unauthorized] charges.”

¶10 On redirect examination, Detective Kim explained he did not
examine the forgery devices for fingerprints because based on his
experience, devices that have been touched by multiple subjects, as was the
case here, are not typically fingerprinted. And he did not believe
fingerprinting was necessary based on the circumstances of the case. He
also addressed why he did not conduct any forensic analysis:

We have a three-year wait for DNA analysis because this is
considered a property offense. Again, based on my
assessment of what the officers told me and the evidence
recovered, I was highly confident in this case and the
recovered evidence absent DNA evidence or fingerprints. . . .
Our present wait for a forensic search [of the laptops] . . . [is]
upwards to 12 months . . . because it’s a property offense. I
used the judgment based on the evidence at hand. Why
would I delay my case[?] Why would I delay justice for the
known victims[?] I fully acknowledge that there is a
possibility of 100 [victims] . . . as [defense counsel] said. That’s
true. We don’t know because I did not get the forensic tests
done. But based on what we had, potentially eight to ten
victims—the statute asked for three. Based on my normal
practice, we shoot for a goal of five. Under no circumstances
would we ever present a case with 100 victims, 50 victims,
even two dozen victims. It’s cost prohibitive. It’s time
prohibitive. Again, it was my responsibility and judgment,
my assessment. That’s what I chose to do.

¶11 The State concluded its redirect examination following that
exchange. Once Detective Kim left the stand, the trial judge sua sponte
instructed the jury:

There w[ere] questions and answers regarding the value
judgment and decisions of Detective Kim. None of that
should be considered . . . to determine beyond a reasonable

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doubt whether the State has proven [the] elements of the
offenses. . . . [T]he opinions of police officers or even the
opinion of the lawyers or my opinion doesn’t mean anything.
It’s your job.

¶12 After the State rested, the superior court granted Wilson’s
motion for judgments of acquittal on two forgery-device charges but denied
it on the remaining counts. Wilson did not testify or call any witnesses in
his defense.

¶13 In closing argument, Wilson’s counsel again acknowledged
that Wilson trespassed in the shed, the credit cards were altered, Wilson’s
name was on the cards, “[t]here was fraudulent activity on the victims’
accounts,” and “[t]he items in the backpack, if operable, could theoretically
alter cards.” He also argued that Wilson fled and hid from the officers
because he had an outstanding arrest warrant. Despite those facts, his
counsel maintained that the State failed to prove Wilson “knew that these
cards were altered or forged, that [he] had intent to use them unlawfully
[or] defraud others, [and that he] was ever in possession of the items found
in the backpack.” And he assailed Detective Kim’s performance in
advancing the defense’s deficient-investigation theory, arguing that not
only could Detective Kim not prove the seized cards were ever used, but he
did not reach out to the businesses for potential eyewitness testimony,
leaving the “real possibility that the person responsible for the charges” was
someone other than Wilson. For the forgery-device charges, Wilson’s
counsel argued that doubt existed as to Wilson’s ownership of the backpack
because it was found in a car with a different registered owner.

¶14 In rebuttal, the prosecutor noted that the backpack was in
Wilson’s “immediate reach,” and even though Wilson was not the car’s
registered owner, he “had some authority to drive the car” and thus had
“authority to possess the things that were in the car.” He also urged that
Detective Kim’s decision not to identify the credit cards’ user was
“immaterial” because none of the charges contained an “element which
require[d] [the jury] to determine . . . whether [Wilson had] used those cards
sometime in the past.”

¶15 The jury found Wilson guilty as described above. The
superior court sentenced him to an aggregate term of 15 years’
imprisonment. We have jurisdiction to hear his timely appeal under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) Sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

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DISCUSSION

I. Asserted Rule 404(b) Violation and Prosecutorial Error

¶16 Wilson argues the admission of the victims’ testimony
recounting the unauthorized transactions on their accounts violated Rule
404(b)’s prohibition on propensity evidence. He further alleges the State
committed prosecutorial error by introducing that testimony and using it
in closing argument. Wilson characterizes the prosecutor’s actions as
“misconduct” based on his allegation that the prosecutor intentionally
misused the challenged evidence. Because we conclude Wilson has not
shown error, we use the term “prosecutorial error,” consistent with our
supreme court’s directive in Matter of Martinez, 248 Ariz. 458, 470, ¶ 47
(2020). Wilson’s failure to raise his challenges in the superior court limits
our review to fundamental, prejudicial error. See State v. Hulsey, 243 Ariz.
367, 381, ¶ 38 (2018).

¶17 Under fundamental-error review, Wilson carries the burden
to show trial error exists, the error is fundamental, and the error caused him
prejudice. See State v. Riley, 248 Ariz. 154, 170, ¶ 24 (2020). Trial errors are
fundamental when they (1) go to the “foundation of the case,” (2) deprive
the defendant of “a right essential to his defense,” or (3) are “so egregious
that [the defendant] could not possibly have received a fair trial.” State v.
Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

¶18 Defendants must make a separate showing of prejudice under
the first two fundamental-error categories; errors in the third category are
inherently prejudicial. Id. To make such a showing, defendants must
establish that “a reasonable jury could have plausibly and intelligently
returned a different verdict” absent the error. Id. at 144, ¶ 31. “A reasonable
jury is composed of persons of average intelligence and judgment who use
common sense” in evaluating the evidence and applying the given
instructions. Id. (citation omitted). The “could have” inquiry is objective
and demands an examination of the entire record, “including the parties’
theories and arguments as well as the trial evidence.” Id.

¶19 Rule 404(b)(1)–(2) bars the admission of evidence of “other
crimes, wrongs, or acts . . . to prove the character of a [defendant] in order
to show action in conformity therewith” but authorizes its admission for
non-propensity purposes, “such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
Before admitting other-act evidence, courts “must first find that there is
clear and convincing proof both as to the commission of the other bad act

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and that the defendant committed the act.” State v. Allen, 253 Ariz. 306, 333,
¶ 57 (2022) (citation omitted).

¶20 Here, it is undisputed that the record contains no evidence
indicating Wilson made the unauthorized transactions; indeed, Wilson’s
claim is predicated on this point. None of the victims accused Wilson of the
fraudulent purchases, and Detective Kim repeatedly acknowledged that he
neither knew nor attempted to discover the perpetrator’s identity. As a
result, this testimony did not implicate other act evidence. See Rule 404(b).

¶21 Nonetheless, Wilson asserts the prosecutor improperly
insinuated in closing argument that Wilson had, in fact, committed the
uncharged acts, citing the following italicized comment in support: “Was
[Wilson] knowledgeable about the devices’ characters, and did he intend to
commit fraud? He clearly knew of the devices’ characters. There’s evidence
of past fraudulent use by [him], meaning his creation of the cards themselves.”
We disagree, given that the prosecutor immediately clarified that he was
alleging Wilson had manufactured the cards. Further, the comment occurred
within the context of discussing the forgery devices, not the unauthorized
transactions. See State v. Rutledge, 205 Ariz. 7, 13, ¶ 33 (2003) (explaining
that the propriety of a prosecutor’s comment depends on the comment’s
context). Nowhere in the cited comment—or anywhere else—did the
prosecutor blame Wilson for using the cards to make the fraudulent
purchases found on the victims’ accounts. Thus, we find no merit to
Wilson’s complaint.

¶22 Wilson also cites State v. Holsinger, 124 Ariz. 18 (1979), to
support his argument that the prosecutor’s conduct entitles him to a new
trial. But that case is inapposite here. There, the prosecutor asked a witness
whether he knew that the defendant had a “long criminal record” even
though the defendant had no such record. Id. at 20. Our supreme court
found that the question was improper under evidentiary and ethical rules,
constituting reversible error. Id. at 20–22. Here, no evidence connected
Wilson to the fraudulent acts, and the prosecutor never accused him of
committing them, let alone hinted at false facts about his criminal history.

¶23 Wilson’s reliance on State v. McGann, 132 Ariz. 296 (1982), is
also misplaced. In that case, our supreme court found the admission of
other act evidence, namely evidence of other uncharged forgeries involving
different victims, was prejudicial, fundamental error because the evidence
was critical to the prosecutor’s case and founded in hearsay testimony. Id.
at 298–99. Here, the evidence of the credit card transactions was not critical

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to the State’s case because none of the charges required proving fraudulent
use nor was it introduced as evidence of Wilson’s other acts.

¶24 Moreover, Wilson has not shown prejudice. He contends the
admission of the victims’ testimony “relieved the State of its burden to
prove that [he] knew the nature of the items in the car and intended to use
them to defraud.” But he does not explain how the challenged evidence
did so, nor does he cite any record evidence to support his claim. Wilson’s
sole defense to the forgery-device charges was that he had no knowledge
or ownership of them, not that he possessed them for lawful purposes. And
as noted above, the jury was well aware the State could not tie Wilson to
the unauthorized transactions. Accordingly, he has not demonstrated that
“a reasonable jury could have plausibly and intelligently” acquitted him
had the court excluded the victims’ testimony. Escalante, 245 Ariz. at 144, ¶
31; see State v. Fierro, 254 Ariz. 35, 41, ¶ 21 (2022) (“The ‘could have’ standard
requires a showing far greater than a metaphysical possibility and
necessarily excludes imaginative guesswork.” (citation omitted)).

¶25 Finally, because the challenged testimony did not trigger a
Rule 404(b) analysis, Rules 401 through 403 governed its admissibility. See
State v. Togar, 248 Ariz. 567, 573-74, ¶¶ 19, 22 (App. 2020) (noting
admissibility is generally assessed under Rules 401 through 403). Wilson,
however, does not argue in his opening brief that the evidence’s admission
violated the applicable Rules. Thus, he has waived any such claim of error.
See Ariz. R. Crim. P. 31.10(a)(7)(A) (Opening briefs must contain
“contentions with supporting reasons for each contention, and with
citations of legal authorities and appropriate references to the portions of
the record on which the appellant relies.”); State v. Bolton, 182 Ariz. 290, 298
(1995) (“Failure to argue a claim on appeal constitutes waiver of that
claim.”).

¶26 In Wilson’s reply brief, he disputes the State’s argument on
appeal that the evidence was relevant and admissible under Rules 401
through 403. We need not consider issues an appellant raises for the first
time in a reply brief. See State v. Watson, 198 Ariz. 48, 51, ¶ 4 (App. 2000).
That said, Wilson makes no attempt to explain how any asserted error was
fundamental and prejudicial. His failure to do so is fatal to his protest. See
Escalante, 245 Ariz. at 142, ¶ 21; see also State v. Vargas, 249 Ariz. 186, 190,
¶ 13 (2020) (“[I]f a defendant simply asserts a general claim of error on
appeal and fails to develop it, a court is not obligated to consider it.”). In
any event, his counterargument is effectively identical to his argument that
the victims’ testimony breached Rule 404(b), which we have addressed and
rejected. Wilson is therefore not entitled to relief.

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II. Alleged Profile Evidence

¶27 Citing Escalante, Wilson asserts the superior court improperly
allowed the State to elicit testimony from Detective Kim that “create[d] a
profile of [him] as a person who ran a ‘forgery mill.’” We review his
unpreserved claim for fundamental, prejudicial error. See Escalante, 245
Ariz. at 140, ¶ 12.

¶28 “Describing evidence as ‘profile’ evidence is a shorthand way
of saying that the evidence is offered to implicitly or explicitly suggest that
because the defendant” possesses “one or more of an informal compilation
of characteristics or an abstract of characteristics typically displayed by
persons engaged in a particular kind of activity,” the jury “should conclude
that the defendant must have committed the crime charged.” State v. Haskie,
242 Ariz. 582, 585-86, ¶ 14 (2017) (citation omitted). The prosecution is
prohibited from offering profile evidence as substantive proof of guilt
because it creates a “risk that a defendant will be convicted not for what he
did but for what others are doing.” Id. at 586, ¶ 15 (citation omitted).
Nonetheless, “[e]xpert testimony about general behaviors is permitted if
helpful to a jury’s understanding of the evidence.” Escalante, 245 Ariz. at
143, ¶ 25.

¶29 Detective Kim’s testimony explaining the nature and
potential uses of the forgery devices did not invite the jury to draw the
impermissible inference that Wilson was guilty of the charged crimes
because he shared traits with forgery-mill operators. Instead, the testimony
provided context for the jurors and established facts about physical
evidence relevant to the forgery-device charges. See A.R.S. § 13-2003(A)(1)
(criminal possession of a forgery device requires inter alia proof that a
person made or possessed a device “specifically designed or adapted for
use in forging written instruments”); cf. Escalante, 245 Ariz. at 143, ¶ 25
(noting qualified officers could permissibly testify that “dryer sheets and
coffee beans, like the ones found in [the defendant’s] truck, can be used to
mask the smell of illegal drugs from police dogs”). At no point did the
detective list traits common to forgery-mill operators or link his testimony
to Wilson’s conduct. Therefore, Detective Kim’s testimony did not
constitute improper profile evidence.

¶30 Although Wilson contends otherwise, Escalante does not
support a contrary conclusion. That case largely turned on whether the
defendant possessed a baggie of methamphetamine the police found “in the
middle of the road” hours after the defendant’s arrest, which “cast[ed]
doubt on whether he had discarded the drug.” Escalante, 245 Ariz. at 143,

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¶ 26. No fingerprint analysis was conducted, and DNA testing “revealed
nothing” indicating Escalante had possessed the baggie. Id. To prove the
case, the State introduced drug-courier profile evidence as substantive
evidence of guilt that “permeated the trial”: “[e]ight officers over three
days” explained the “typical behaviors of drug-traffickers,” Id. at 143, ¶ 27,
and their “testimony was only relevant to demonstrate that Escalante’s
behaviors were consistent with drug trafficking.” Id. at 142, ¶ 24. Further,
in opening statement and closing argument, the prosecutor invited the jury
to compare Escalante’s behavior to the general behaviors of drug traffickers
in reaching its verdicts. See id. at 142–43, ¶¶ 24, 27.

¶31 Our supreme court concluded that admitting the drug-
courier profile evidence constituted fundamental error under prong one
because it impacted a “pivotal” factual dispute. Id. at 143, ¶ 26. The court
further found that Escalante had established prejudice, reasoning “the
admissible evidence supporting the prosecution’s case on these counts was
circumstantial and prompted several questions from the jury about the
baggie’s ownership.” Id. at 145–46, ¶ 40.

¶32 Unlike in Escalante, the alleged profile evidence here did not
serve as the “linchpin” of the State’s case. Id. at 143, ¶ 27. Instead, the
prosecutor argued that the credit cards embossed with Wilson’s name
provided the most incriminating evidence against him. And unlike the
baggie’s remote location in Escalante, the police found the forgery devices
in the car where Wilson had been sleeping alone and from which he fled.
Further, Wilson’s jury did not ask any questions about his possession of the
forgery devices, and the superior court instructed the jurors that in reaching
their verdicts, they could consider evidence that he fled and hid. Therefore,
Wilson has not shown any hypothetical error would have gone to the
foundation of the case.

¶33 Even assuming arguendo the existence of fundamental error,
Wilson has not demonstrated resulting prejudice. Without identifying any
record evidence in support, he asserts in conclusory fashion that “[a]bsent
th[e] impermissible profile evidence, the jury could have acquitted [him] of
at least the Forgery Device counts” because “no testimony at trial revealed
that the police found anything inside the backpack . . . that linked [him]
directly to its[ ] contents.” Not only does Wilson fail to address the other
charges, but he does not explain how testimony that the forgery devices
could generally be used to alter credit cards—a point he conceded—
affected the jury’s analysis of whether he possessed those items. Nor does
he make any effort to show the challenged testimony impeded his defense
to the forgery-device charges, which was disclaiming knowledge and

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ownership of the items. Because “[s]peculative prejudice is insufficient
under fundamental error review[,]” State v. Martin, 225 Ariz. 162, 166, ¶ 15
(App. 2010), his claim fails.

III. Instruction Following Detective Kim’s Testimony

¶34 Wilson contends the superior court’s instruction recounted
supra ¶ 11 violated the Arizona Constitution’s prohibition against judicial
commentary on trial evidence. The State counters that in context, the
instruction “referred to the detective’s opinion about the case’s strength and
its impact on his investigative decision-making, which were, respectively,
improper and irrelevant,” and the court properly told the jury to disregard
that testimony. As Wilson acknowledges, we apply fundamental-error
review to his claim. See Escalante, 245 Ariz. at 140, ¶ 12.

¶35 We agree with the State. “A judge violates Arizona’s
constitutional prohibition against commenting on evidence by expressing
an opinion as to what the evidence proves, in a way that interferes with the
jury’s independent evaluation of that evidence.” Riley, 248 Ariz. at 179, ¶ 85
(citation omitted); see also Ariz. Const. art. 6, § 27. Here, the instruction
neither referred to specific evidence nor conveyed the judge’s opinion of
what the evidence proved. That the superior court gave the instruction
following redirect examination indicates the court’s purpose was to
alleviate any potential prejudice from Kim’s arguably objectionable
opinions about the quality of his investigation. See State v. Trostle, 191 Ariz.
4, 22 (1997) (“Trial judges are presumed to know the law and to apply it in
making their decisions.” (quoting Walton v. Arizona, 497 U.S. 639, 653
(1990)). Conversely, had the trial judge intended—as Wilson suggests—to
communicate to the jury that the judge “assigned no value to [his] line of
cross-examination,” it is reasonable to infer the judge would have given the
instruction immediately after Wilson had finished his questioning.

¶36 Wilson also has not shown he was prejudiced by the claimed
error. Without elaboration or record support, he asserts “[a] reasonable
probability existed that, had the court restrained itself, the jury may have
found [him] not guilty on some, if not all charges.” His conjecture is
insufficient to obtain relief under fundamental-error review. See State v.
Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (explaining defendants must
“affirmatively prove prejudice” on fundamental-error review).

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CONCLUSION

¶37 We affirm Wilson’s convictions and sentences.

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

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