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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     JOHN HENRY TOMLIN, Appellant.

                             No. 1 CA-CR 13-0506
                                FILED 1-13-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-100410-001
               The Honorable Karen L. O’Connor, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adriana M. Zick
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Reid
Counsel for Appellant
                            STATE V. TOMLIN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.


G E M M I L L, Judge:

¶1             John Tomlin appeals his conviction and sentence for
possession or use of narcotic drugs, a class four felony. He argues that in
closing argument the prosecution commented on his right to remain silent
in violation of his rights under the Fifth Amendment. He also asserts that
the trial court committed fundamental error by ordering him to pay a fee
for DNA testing. For the following reasons, we disagree that his Fifth
Amendment rights were violated and affirm his conviction and sentence.
We agree that the trial court committed fundamental error ordering him to
pay for DNA testing and modify his sentence to delete the order that he pay
for DNA testing.

                              BACKGROUND

¶2             In January 2012, Mesa Police Detective G. was on duty in the
evening. Detective G. is part of an enforcement patrol that monitors bicycle,
traffic, and pedestrian stops in the area. As part of his duties, the detective
looks for criminal activity including illegal drug use.

¶3           Detective G. observed Tomlin that night from about 100 feet
away. Through his binoculars, the detective was able to see Tomlin on a
bicycle without any activated lights. Mesa City code and state law
provisions require activated lights while riding a bicycle at night.

¶4            Detective G. drove over near Tomlin and approached him.
After making initial contact, the detective asked Tomlin if “he had any guns
or knives on his person.” Tomlin stated that he had a knife and
immediately reached into his pocket, at which time Detective G., fearing
that Tomlin was reaching for a knife, grabbed Tomlin’s hand or wrist. As
the detective wrestled Tomlin to the ground, he observed a small, shiny
white or silver object, about the size of a nickel, fall out of Tomlin’s pocket.
A Mesa Police Sergeant arrived at the scene and helped place Tomlin into
handcuffs.



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                            STATE V. TOMLIN
                            Decision of the Court

¶5             Within approximately five to ten seconds of Tomlin’s cuffing,
Detective G. recovered the object from the ground. Detective G. recognized
it as the object that he saw fall out of Tomlin’s pocket and, from his training
and experience, recognized the black-rock substance as a usable quantity of
heroin. The detective testified that Tomlin spoke only to identify himself
as “Virgil.”

¶6           A forensic investigator conducted appropriate color tests on
the substance, and found that the substance was 505 milligrams of heroin,
a narcotic drug in a usable quantity. The jury found Tomlin guilty of
possession or use of narcotic drugs. The court thereafter found nine prior
felony convictions and sentenced Tomlin to 10 years in prison.

¶7            Tomlin timely appeals, and we have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S”) §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

                               DISCUSSION

¶8            Tomlin’s main argument on appeal is that the prosecutor
violated his constitutional right to remain silent under the Fifth
Amendment by commenting on his right to remain silent during closing
argument. This court reviews issues of constitutional law de novo. State v.
Parker, 231 Ariz. 391, 398, ¶ 8, 296 P.3d 54, 61 (2013).

¶9             Tomlin challenges three statements by the prosecutor as
violating his right to remain silent. Tomlin objected to the first two
comments and we therefore review those comments under a harmless error
standard. State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607
(2005). Tomlin did not to object to the prosecutor’s third comment, and
acknowledges that we must therefore conduct a fundamental error review
regarding this comment. Id. at 567, ¶ 19, 115 P.3d at 607. “To prevail under
this standard of review, a defendant must establish both that fundamental
error exists and that the error in his case caused him prejudice.” Id. at 567,
¶ 20, 115 P.3d at 607.

¶10            Both federal and state law prohibit the use against a
defendant of his right to remain silent. Ariz. Const. art. 2, § 10; A.R.S. § 13-
117; see Griffin v. California, 380 U.S. 609, 615 (1965) (stating that the Fifth
Amendment “forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such silence is evidence of guilt”);
State v. Rutledge, 205 Ariz. 7, ¶ 26, 66 P.3d 50, 55 (2003).



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                            STATE V. TOMLIN
                            Decision of the Court


¶11           The prosecutor’s first challenged statement was made during
her closing argument:

[First comment at issue]

       PROSECUTOR: That brings us back then to the first element,
       whether the defendant knowingly possessed it. In regards to
       knowingly and the defendant’s knowledge, it’s hard to get in
       someone’s mind. We don’t hear from the defendant that he knew
       it was heroin, how can you tell?

       The good news is that you don’t have to check your common
       sense at the door. Your jury instructions basically tell you
       that. You can consider direct and circumstantial evidence.
       You can consider the totality of the circumstances, and you
       can make inferences about the evidence that was presented.

(Emphasis added.)

¶12          Tomlin objected to the comment during a bench conference.
The prosecutor responded that she did not intend to make a statement on
Tomlin’s right not to testify, and she could clarify. Tomlin’s advisory
counsel asked if the prosecutor would like to clarify during her rebuttal.
The prosecutor responded that she would clarify her point during rebuttal
argument. The court made no ruling at that time.

¶13          During her rebuttal argument, the prosecutor made the
second and third comments at issue:

[Second comment at issue]

       PROSECUTOR: Regarding knowledge, to make it clear, the
       defendant has an absolute right to remain silent. You didn’t
       hear from him, and that’s absolutely fine. The burden is on the
       State. It’s my burden to prove to you - -

       MR. TOMLIN: Objection, Your Honor.

       THE COURT: Sustained.

[Third comment at issue]



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                            STATE V. TOMLIN
                            Decision of the Court


       PROSECUTOR: It’s my burden to prove to you that the
       defendant is guilty, and one of the things that I have to show
       is that he had knowledge.

       You heard from the officers that after the — directly after the
       incident happened, they tried to have a conversation with the
       defendant. His only response was to say that his name was Virgil,
       that they jumped him for no reason. He refused to provide his
       truthful name.

       That doesn’t mean that he had lacked the knowledge of
       knowing that what he had in his hand was an illegal
       substance.

(Emphasis added.)

¶14          After the jury commenced deliberations, Tomlin reiterated his
objections and moved for a mistrial. The court denied the motion, finding
that there was no prosecutorial misconduct nor intent to unnecessarily
comment on Tomlin’s right to remain silent. The court stated that the
prosecutor was only attempting to speak about comments that Tomlin had
made to the officers at the time of his arrest.

¶15            To be considered improper, “the prosecutor’s comments
must be calculated to direct the jurors’ attention to the defendant’s exercise
of his Fifth Amendment privilege.” State v. McCutcheon, 159 Ariz. 44, 45,
764 P.2d 1103, 1104 (1988); see also Rutledge, 205 Ariz. at 13, ¶ 33, 66 P.3d at
56 (“Whether a prosecutor’s comment is improper depends upon the
context in which it was made and whether the jury would naturally and
necessarily perceive it to be a comment on the defendant’s failure to
testify.”). Specifically, “to be constitutionally improper the comment must
(1) be adverse, in that it supports an unfavorable inference against the
defendant, and (2) operate as a penalty for defendant’s exercise of his
constitutional right.” State v. Schrock, 149 Ariz. 433, 438, 719 P.2d 1049, 1054
(1986) (citing State v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53 (1980)).

¶16           The first and second statements made by the prosecutor were
inappropriate because they drew attention to the fact that Tomlin did not
testify. The prosecutor should not have said the jury did not “hear from”
Tomlin. Nevertheless, when viewed in context, the first two statements do
not constitute reversible error. The first statement was an attempt to



                                       5
                            STATE V. TOMLIN
                            Decision of the Court

explain the State’s burden of proof by circumstantial evidence given that
Tomlin did not testify. The second statement was essentially a restatement
of the jury instructions. The court had instructed the jury that “[a]
defendant in a criminal case has a constitutional right to not testify at trial,
and the exercise of that right cannot be considered by the jury in
determining whether a defendant is guilty or not guilty.” Although these
comments by the prosecutor were inappropriate, they were related to the
evidence and did not amount to unconstitutional commentary on Tomlin’s
exercise of his Fifth Amendment rights. Regarding the first two of the three
challenged statements, therefore, we find no reversible error.

¶17          The third challenged statement, however, is more troubling.
The prosecutor’s third statement likely caused an unfavorable inference
that Tomlin lied about his name and declined to talk with the officers
because he was aware of the possession of narcotics. Therefore, the
prosecutor’s statements operated as a penalty on Tomlin’s constitutional
right to remain silent. We conclude that fundamental error occurred. See
State v. Cannon, 118 Ariz. 273, 274, 576 P.2d 132, 133 (1978) (finding
prosecutor’s comment on defendant’s refusal to answer questions about
whereabouts on night in question was fundamental error).

¶18           Because Tomlin did not specifically object to the last
comment, we must determine whether the third statement caused
prejudice, under the fundamental error standard of review. Henderson, 210
Ariz. at 567, ¶ 19, 115 P.3d at 607. To establish prejudice, Tomlin has the
burden of showing that absent the improper comments, a reasonable jury
could have reached a different result. Id. at 569, ¶ 27, 115 P.3d at 609. If we
find that there is overwhelming evidence of guilt, we may conclude that
Tomlin has failed to meet this burden of proof. See State v. Ramos, 235 Ariz.
230, 236–35, ¶¶ 18-20, 330 P.3d 987, 993–94 (App. 2014) (concluding that
although prosecutor’s comment was fundamental error, defendant failed to
establish prejudice).

¶19          Tomlin argues the error in this case was prejudicial. He
contends the only evidence connecting him to the heroin is Detective G.’s
testimony that he saw Tomlin drop the package containing the drug.
Tomlin asserts there are several discrepancies with Detective G.’s testimony
and without the improper statements by the prosecutor, the jury could have
found Detective G.’s testimony was not credible.

¶20        First, there was a discrepancy in the dates that were
documented and the actual date of the incident. The date on the paperwork



                                       6
                           STATE V. TOMLIN
                           Decision of the Court

is different from the actual date of the incident because Detective G. was
called out to an unrelated homicide before he could finish his booking
paperwork for Tomlin. Therefore, the State argues that the paperwork was
not completed and the heroin was not impounded until the early hours of
the next day, thereby explaining the discrepancy.

¶21           There is also a discrepancy of Detective G. using several
different terms to describe the heroin. Detective G. used the descriptions
“black-rock substance” and “brown-tar substance” interchangeably
throughout the trial and in various documents. The State responds that the
two descriptions are commonly used descriptions of heroin that Detective
G. had learned through training and experience.

¶22           Another discrepancy pertains to the location of the incident,
which was 200 South Pomeroy. However, Detective G. had radioed the
location to the dispatcher as 200 North Pomeroy. Detective G. testified that
he had misstated the address due to the stress of the moment. The State
notes that because the locations were only about a half mile apart and the
incident did not really occur at a specific address, it was understandable
that Detective G. could radio in the wrong address while trying to wrestle
Tomlin to the ground.

¶23           Tomlin also argues that Detective G.’s testimony should be
discredited because the officers never found a knife on Tomlin. But the
detective never testified to seeing a knife, only that Tomlin had said to him
that he had a knife on his person as he began to reach into a pocket.

¶24           We conclude that the discrepancies Tomlin raises to attack
Detective G.’s testimony are satisfactorily explained by the evidence.

¶25           To prove that Tomlin was guilty of a class 4 felony in violation
of A.R.S. § 13-3408(A)(1), the State was required to establish that Tomlin
had knowingly possessed or used a narcotic drug. “The crime of possession
of narcotics requires a physical or constructive possession with actual
knowledge of the presence of the narcotic substance.” State v. Lopez, 27
Ariz. App. 408, 409, 555 P.2d 667, 668 (App. 1976). Possession may be
supported by direct or circumstantial evidence as long as evidence links the
defendant “to the narcotics in such a manner and to such an extent that a
reasonable inference may arise that the defendant knew of the narcotics’
existence and of its whereabouts.’” Id. (quoting State v. Carr, 8 Ariz. App.
300, 302, 445 P.2d 857, 859 (App. 1968)).




                                      7
                            STATE V. TOMLIN
                            Decision of the Court

¶26            Tomlin argues that because the State did not present any
DNA or fingerprint evidence, it failed to prove that he had possessed the
heroin. The State contends there was overwhelming evidence presented at
trial to find Tomlin knowingly possessed heroin. Detective G. testified to
seeing Tomlin reach into his pocket and a silver, nickel sized object fall out.
After detaining Tomlin, the detective recovered the object, which was only
a foot away, within five to ten seconds.

¶27           Tomlin argues the evidence is not overwhelming because the
area in which Detective G. retrieved the heroin was full of trash, dark, and
within a high crime area. However, during the trial, Detective G. testified
that the area was clean of any visible trash. Detective G. also stated that
there were street lights in the area and he was equipped with a flashlight.

¶28            Detective G. stated that he did not see any other items in the
immediate area that appeared to be drugs or drug paraphernalia. Detective
G.’s description of the area was supported by the testimony of another
officer who was present that night. Based on his training and experience,
the detective also testified that drugs are valuable to drug users and he did
not know drug users “to typically just discard their unused drugs out on
the street.”

¶29           On this record, we conclude that the evidence against Tomlin
was overwhelming and Tomlin has not borne his burden of demonstrating
that the prosecutor’s unconstitutional comment on Tomlin’s refusal to talk
with the officers upon his arrest caused him prejudice. We therefore affirm
his conviction.

¶30            The second issue that Tomlin raises is that the trial court
committed fundamental error by ordering him to pay a fee for DNA testing.
The State agrees with Tomlin and agrees this court should vacate that
portion of Tomlin’s sentence. This court has held that A.R.S. § 13-610 does
not empower trial courts to require a convicted person to pay a fee for DNA
testing. State v. Pelaez, 235 Ariz. 264, 266, 330 P.3d 1021, 1023 (App. 2014)
(citing State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013)).
Therefore, we modify Tomlin’s sentence by vacating the requirement that
he pay for his DNA testing.

                              CONCLUSION

¶31            Although the prosecutor improperly commented on Tomlin’s
right to testify, we conclude the error was not prejudicial. We therefore



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                        STATE V. TOMLIN
                        Decision of the Court

affirm Tomlin’s conviction and sentence, except that we modify his
sentence by vacating the portion requiring him to pay for DNA testing.




                               :ama




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