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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          BRIAN STRAIT, Appellant.

                             No. 1 CA-CR 15-0507
                               FILED 8-4-2016


           Appeal from the Superior Court in Maricopa County
                       No. CR2012-153895-001 DT
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
                             STATE v. STRAIT
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


W I N T H R O P, Judge:

¶1           Brian Strait appeals his convictions and sentences for one
count of possession or use of a dangerous drug and one count of possession
of drug paraphernalia. For the reasons that follow, we affirm.

                             BACKGROUND1

¶2             At approximately 9:00 p.m. on October 14, 2012, Phoenix
police officers Ennis and Mendoza were on routine patrol duty when they
noticed an isolated pickup truck, with its hood up, parked in an unlit corner
of a parking lot known for a high level of drug activity. Officer Ennis
parked directly behind the seemingly disabled truck, and the officers exited
their patrol car, with Officer Ennis approaching the truck on the driver’s
side and Officer Mendoza approaching on the passenger’s side. As he
approached, Officer Ennis noticed the truck’s windows were down, but the
window shades inside the vehicle were “propped up.” Officer Ennis also
heard voices and observed a “glow” emanating from inside the vehicle.

¶3            Officer Ennis tapped on the shade and said, “[H]ello.” The
shade fell, revealing Strait in the driver’s seat. Officer Ennis also saw in
plain view on the dashboard a glass pipe that he immediately recognized
as a “meth pipe”–in other words, a pipe commonly used for smoking
methamphetamine.

¶4            Officer Ennis asked Strait to exit the truck, and Strait
complied. Next, Officer Ennis instructed Strait to place his hands on the
vehicle and inquired whether “he had anything on him that he shouldn’t
have.” Strait responded, “Like what?” Officer Ennis replied, “Like drugs
or guns, something like that.” Strait then admitted, “Yeah. I have speed in
my pocket.” Officer Ennis understood the term “speed” as “a common
street word used for methamphetamine.” Officer Ennis placed Strait in


1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93, 314 P.3d 1239, 1264 (2013).


                                      2
                             STATE v. STRAIT
                            Decision of the Court

handcuffs, searched him, and removed two plastic baggies from his front
pockets containing “a clear crystal-like substance.”

¶5             After taking Strait to the police station, Officer Ennis advised
Strait of his rights pursuant to Miranda,2 and Strait agreed to cooperate.
When asked how he acquired the methamphetamine, Strait answered that
he received it in exchange for a favor. He also disclosed he had been using
methamphetamine since 1984.

¶6            The State charged Strait by indictment with one count of
possession or use of a dangerous drug and one count of possession of drug
paraphernalia. The State also alleged the existence of numerous historical
prior felonies and aggravating circumstances.

¶7             Strait was released on bond, but failed to appear at his next
court date. After a bench warrant issued, Strait was tried in absentia. At
trial, a forensic scientist testified that the plastic baggies seized from Strait
contained 570 milligrams of methamphetamine, a useable amount. The
jury found Strait guilty as charged.

¶8            Approximately nineteen months later, after Strait was taken
into custody, the court held a trial on his prior felony convictions and found
that he had six. The court sentenced Strait to a mitigated term of seven
years’ imprisonment on the count of possession or use of a dangerous drug
and a concurrent, minimum term of three years’ imprisonment on the count
of possession of drug paraphernalia.

¶9            Strait timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2016), 13-4031
(2010), and 13-4033(A)(1) and (4) (2010).

                                  ANALYSIS

       I.     Admission of Incriminating Statements

¶10            Strait contends the trial court erred by admitting evidence of
incriminating statements he made both before and after his arrest.
Specifically, he argues that Officer Ennis failed to provide Miranda
warnings and, therefore, obtained the incriminating statements in violation
of his constitutional rights.



2      See Miranda v. Arizona, 384 U.S. 436 (1966).



                                       3
                             STATE v. STRAIT
                            Decision of the Court

¶11             Strait did not move to suppress his statements on this basis3
or object at trial. Therefore, he has not preserved the issue and has forfeited
the right to seek relief for all but fundamental, prejudicial error. See State v.
Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005); see
also State v. Cañez, 202 Ariz. 133, 155, ¶ 70, 42 P.3d 564, 586 (2002) (“[W]e
will review for fundamental error even absent a pretrial motion to
suppress.”), supplemented by 205 Ariz. 620, 74 P.3d 932 (2003), and abrogated
on other grounds by State v. Valenzuela, 239 Ariz. 299, 302-03 n.1, ¶ 11, 371
P.3d 627, 630-31 n.1 (2016); State v. Jones, 185 Ariz. 471, 482, 917 P.2d 200,
211 (1996) (reviewing the admission of evidence for fundamental error
despite the failure to raise arguments in a motion to suppress), abrogation
on other grounds recognized by McKinney v. Ryan, 813 F.3d 798, 816-17 (9th
Cir. 2015).

¶12            Although police officers are free to ask questions of a person
who is not in custody without providing Miranda warnings, once a person
is in custody, the police must advise the individual of certain constitutional
rights; otherwise, statements made in response to questioning will be
inadmissible at trial. See Miranda, 384 U.S. at 444; State v. Zamora, 220 Ariz.
63, 67, ¶ 9, 202 P.3d 528, 532 (App. 2009). Specifically, before conducting a
custodial interrogation, police must advise a person “that he has a right to
remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either
retained or appointed.” Miranda, 384 U.S. at 444.

¶13           In evaluating whether a person was subjected to custodial
interrogation, we consider four primary factors: (1) the site of the
questioning, (2) whether objective indicia of arrest were present, (3) the
length and form of the interrogation, and (4) the method used to summon
the individual. State v. Cruz-Mata, 138 Ariz. 370, 373, 674 P.2d 1368, 1371
(1983).

¶14            As applied to the facts of this case, Strait was not in custody
at the time he made the incriminating statement before his arrest. First, the
site of the questioning was a parking lot adjacent to a public park. Nothing
in the record suggests this was a coercive environment or one that would
otherwise contribute to a restraint on Strait’s freedom of movement to the

3       Strait moved to suppress the evidence obtained from the search–
namely, the glass pipe and methamphetamine–arguing that he had a
reasonable expectation of privacy in his vehicle based on his use of a
sunshade. The motion to suppress did not address Strait’s statements to
police.


                                       4
                            STATE v. STRAIT
                           Decision of the Court

degree associated with formal arrest. See id. Second, objective indicia of
arrest were not present. Strait was not placed in any type of physical
restraint, neither police officer drew his weapon, and the record is devoid
of any other evidence of physical intimidation. Third, the length of the
“questioning” was a mere moment and consisted of a single question
frequently employed to protect officers’ safety before a pat-down search;
namely, whether Strait had any contraband on his person. See State v.
Morse, 127 Ariz. 25, 28, 617 P.2d 1141, 1144 (1980) (excluding general, on-
the-scene questioning during a criminal investigation from the definition of
custodial interrogation). Fourth, Officers Ennis and Mendoza did not
summon Strait, but came across him as they conducted a welfare check on
a seemingly isolated, disabled vehicle and potentially stranded occupants.
Under these circumstances, Strait was not subjected to custodial
interrogation when Officer Ennis inquired about possible contraband; thus,
Strait’s response was admissible at trial.4

¶15            Next, Strait contends that the incriminating statements he
made at the police station were inadmissible because Officer Ennis failed to
properly advise him of his constitutional rights before questioning him.
This claim, however, is not substantiated by the record. At trial, Officer
Ennis testified he could not recite from memory the Miranda warnings, and
when asked by the prosecutor to summarize for the jury the protections
outlined in those warnings, Officer Ennis failed to include the warning that
anything a suspect says may be used against him. He also testified,
however, that he read the Miranda warnings to Strait before questioning him
at the police station and further explained that he reads the Miranda
warnings “from a Miranda rights card every time.” Strait did not present

4       Citing Officer Ennis’s testimony at the suppression hearing, in which
he testified he asked Strait “if he had anything else he shouldn’t have,”
rather than Officer Ennis’s trial testimony that he asked Strait “if he had
anything on him that he shouldn’t have,” Strait argues the officer’s question
was so accusatory in nature that he was deprived of his freedom and a
Miranda warning was therefore required. See State v. Starr, 119 Ariz. 472,
475, 581 P.2d 706, 709 (App. 1978) (recognizing “it is only when the on-the-
scene questioning becomes accusatory in nature and when a reasonable
man would feel he was deprived of his freedom of action in a significant
way, that the Miranda warnings must be given” (italics added)). Even
assuming Officer Ennis’s question to Strait was phrased in the manner
testified to at the suppression hearing, in light of the limited nature of the
“questioning” and the other Cruz-Mata factors, the record does not support
Strait’s claim that the exchange was sufficiently accusatory as to deprive
him of his freedom and mandate a Miranda warning.


                                      5
                             STATE v. STRAIT
                            Decision of the Court

any contravening evidence. Therefore, the record reflects Strait was
properly advised of his Miranda rights before he made incriminating
statements during the police interrogation.

¶16             Alternatively, Strait contends that Officer Ennis engaged in an
improper two-step interrogation process, rendering the post-warning
statements inadmissible. When a defendant makes inculpatory statements
in response to custodial interrogation before being read his rights, and then
repeats the incriminating information in response to questions after being
read his rights, the latter statements may also be inadmissible. See Missouri
v. Seibert, 542 U.S. 600, 616-17 (2004); Zamora, 220 Ariz. at 69, ¶ 15, 202 P.3d
at 534. If “there is evidence the pre-Miranda warning statements were
coerced or involuntary, then the post-Miranda statements are admissible
only if ‘the taint dissipated through the passing of time or a change in
circumstances.’” Zamora, 220 Ariz. at 69, ¶ 15, 202 P.3d at 534 (citations
omitted). Absent coercion, however, an incriminating statement made
before the issuance of Miranda warnings “does not disable a person from
later waiving his rights and confessing after he has been given the requisite
Miranda warnings.” Id. (citing Oregon v. Elstad, 470 U.S. 298, 318 (1985)). In
evaluating the admissibility of post-warning statements, the primary
concern is whether the suspect who has made “involuntary inculpatory
statements” may, post-Miranda warnings, feel compelled to waive his right
to remain silent “because he ha[s] already spoken to the police.” Id.

¶17           Applying these principles here, we conclude no initial
Miranda violation occurred because Strait was not in custody when Officer
Ennis asked him the single question about contraband outside his vehicle,
and therefore no second Miranda violation at the police station occurred that
would implicate the prohibited two-step interrogation process. Further,
immediately upon being advised of his Miranda rights, Strait informed
Officer Ennis that he wanted to “talk.” Indeed, Strait volunteered to
provide information regarding other crimes in exchange for being released
without charges, which demonstrates he was assertive and attempting to
negotiate a deal rather than confessing in response to police intimidation.
Therefore, Strait’s post-Miranda statements were admissible at trial. See
Elstad, 470 U.S. at 305 (“Absent some officially coerced self-accusation, the
Fifth Amendment privilege is not violated by even the most damning
admissions.” (citation omitted)).5


5      Even assuming the incriminating statements were elicited in
violation of Miranda and therefore inadmissible at trial, Strait has failed to



                                       6
                             STATE v. STRAIT
                            Decision of the Court

       II.    Prosecutor’s Comment on “Silence”

¶18           Strait contends the prosecutor impermissibly commented on
his silence and the trial court’s curative instruction failed to ameliorate the
prejudice.

¶19            During direct examination, Officer Ennis testified that he
asked Strait “where he had purchased the meth that he had in his pocket,”
and Strait responded “that he did a favor for somebody” who “gave him
the meth.” Officer Ennis also asked Strait how long he had been using
“meth,” and Strait answered that he had “been using meth since 1984.” On
cross-examination, defense counsel elicited Officer Ennis’s agreement that,
in the parking lot, Strait referred to “speed” and did not “use the word
methamphetamine.” Officer Ennis also conceded that the meaning of the
word “speed” is not limited to methamphetamine and “could include”
various “uppers.” On redirect, the prosecutor asked the officer whether he
used the word “speed” or “meth” when questioning Strait at the police
station, and the officer reaffirmed that he used the term “meth.” As a
follow-up, the prosecutor then asked whether Strait said “anything at any
point” to indicate he “didn’t know it was meth,” and the officer responded
that Strait had not. Referring to this testimony in her closing argument, the
prosecutor asserted Strait “knew that it was methamphetamine in his
pocket,” as evidenced by his failure to correct Officer Ennis when he
consistently used the term “meth” during interrogation.

¶20         Immediately following the State’s closing argument, defense
counsel requested a curative instruction to address the prosecutor’s


demonstrate any prejudice. Strait’s trial defense was that he lacked
knowledge the substance found on his person was methamphetamine, as
ostensibly evidenced by his reference to it as “speed,” which defense
counsel argued could refer to various “uppers.” Other than this reference
to “speed,” there was no evidence that Strait lacked actual knowledge of
the substance he carried or the pipe in his immediate presence. That is, the
jury heard no evidence that Strait was either misinformed about the
substance’s nature or that someone else had placed the drugs and pipe in
his pockets and truck. Absent such evidence, Strait’s actual physical
possession of the methamphetamine and pipe was sufficient to satisfy the
mens rea requirement, and no reasonable jury could have found otherwise.
See State v. Teagle, 217 Ariz. 17, 27, ¶ 41, 170 P.3d 266, 276 (App. 2007)
(explaining the knowledge requirement may be proven either through
“actual physical possession or constructive possession with actual
knowledge of the presence of the narcotic substance” (citation omitted)).


                                      7
                             STATE v. STRAIT
                            Decision of the Court

“comment” on Strait’s “silence” and her argument that Strait knew “that
speed means meth.” The prosecutor countered that she was not
commenting on Strait’s silence, but was instead referring to his voluntary
responses in a police interview. After hearing from the parties, the trial
court stated it would provide a curative instruction reminding the jurors
that a defendant need not testify and forbidding them from considering
Strait’s absence from trial in reaching their verdicts. The court, however,
denied defense counsel’s request for a curative instruction that no evidence
showed Strait knew “that speed means meth,” concluding that was an
inference the jury could reasonably draw from the evidence. The court then
admonished the jury as follows:

              Okay, ladies and gentlemen, I want to remind you that
       you’re not to consider the defendant’s absence from this trial
       for any reason whatsoever in your deliberations, and also that
       you’re not to consider any comments that have been made
       regarding defendant’s right to remain silent and not make
       any statements, and also argument of counsel is not evidence.

¶21           We review the denial of a requested jury instruction for an
abuse of discretion. State v. Larin, 233 Ariz. 202, 206, ¶ 6, 310 P.3d 990, 994
(App. 2013). Absent a clear abuse of that discretion and resulting prejudice,
we will not reverse. Id.

¶22           A defendant who voluntarily speaks after receiving Miranda
warnings has not remained silent. Anderson v. Charles, 447 U.S. 404, 408
(1980). Accordingly, a prosecutor may comment on statements a
Mirandized defendant has made to arresting officers without “commenting
on the accused’s right to remain silent.” State v. Raffaele, 113 Ariz. 259, 263,
550 P.2d 1060, 1064 (1976); accord State v. Henry, 176 Ariz. 569, 580, 863 P.2d
861, 872 (1993) (“When a defendant is not induced into silence by Miranda
warnings, [] or waives his rights by answering questions after such
warnings are given, due process is not implicated.”). As a corollary,
because an accused may not selectively invoke the privilege, a prosecutor
may comment on an accused’s decision to answer some questions, but
refusal to answer other questions. State v. Corrales, 161 Ariz. 171, 172, 777
P.2d 234, 235 (App. 1989).

¶23          In this case, Strait did not exercise his right to remain silent.
To the contrary, upon receiving Miranda warnings, he immediately stated
that he wanted to “talk,” and answered each question Officer Ennis posed
to him. According to Officer Ennis’s testimony, throughout the interview,
Officer Ennis and Strait consistently and exclusively referred to the


                                       8
                             STATE v. STRAIT
                            Decision of the Court

substance seized from Strait as “meth.” Strait also disclosed his use of
“meth” for thirty years. Given these voluntary responses, the prosecutor
permissibly argued that Strait’s failure to challenge the repeated labeling of
the seized drug as “meth” demonstrated his knowledge of the substance’s
nature.

¶24            Moreover, even assuming arguendo the prosecutor’s
comments were improper, any error would be harmless. The State
introduced other overwhelming evidence that Strait knew the seized
substance was methamphetamine: (1) it was found on his person, (2) a
methamphetamine pipe was found in Strait’s immediate presence, (3) Strait
admitted he used methamphetamine since 1984, and (4) Officer Ennis
testified that “speed” is a common “street word” for methamphetamine.
Therefore, the trial court’s denial of Strait’s requested jury instruction, if
error, was harmless.

       III.   Use of Priors to Enhance Sentence

¶25           Strait argues his sentence was illegal because after the trial
court found Strait had six prior felony convictions, the court did not specify
which two it was using to enhance his sentence. Additionally, Strait argues
that the prior convictions could not be used for enhancement purposes
because the State failed to prove he was represented by counsel or had
waived his right to counsel at those proceedings. Strait did not raise these
objections at trial. We therefore review only for fundamental, prejudicial
error. See Henderson, 210 Ariz. at 567-68, ¶¶ 19-20, 115 P.3d at 607-08.

¶26            At the trial on the prior felonies, the State presented certified
copies of the sentencing minute entries for each of Strait’s six prior felony
offenses and a certified copy of Strait’s prison “pen pack.” A forensic
scientist employed in the latent print comparative section of the police
crime lab testified that she compared Strait’s right thumbprint to the right
thumbprint affixed to the pen pack and determined the two were a match.
After taking the matter under advisement, the trial court found Strait had
been convicted of six prior felony offenses. At sentencing, the court again
noted the six felonies it had found and sentenced Strait as a category three
repetitive offender.

¶27           Strait contends the trial court committed fundamental error
by failing to identify which felonies it used to enhance his sentence.
Pursuant to A.R.S. § 13-703(C) (Supp. 2015), a person shall be sentenced as
a category three repetitive offender if the person “has two or more historical
prior felony convictions.” A “[h]istorical prior felony conviction” includes



                                       9
                            STATE v. STRAIT
                           Decision of the Court

“[a]ny felony conviction that is a third or more prior felony conviction.”
A.R.S. § 13-105(22)(d) (Supp. 2015). By finding Strait had six prior felony
convictions, the trial court also implicitly found that four of those
convictions qualified as historical prior felony convictions under A.R.S.
§ 13-105(22)(d). Thus, even assuming the court erred by failing to formally
designate which prior felonies qualified as historical prior felony
convictions for sentencing purposes, such error was neither fundamental
nor prejudicial.

¶28           Next, Strait asserts the State failed to prove his prior
convictions were constitutionally valid. In State v. Reagan, 103 Ariz. 287,
289, 440 P.2d 907, 909 (1968), our supreme court held that a prior conviction
could not be used to enhance a defendant’s sentence unless the record of
the prior conviction affirmatively showed the defendant either was
represented by counsel or had validly waived his right to counsel.
Approximately thirty-three years later, our supreme court overruled
Reagan and held “that a rebuttable presumption of regularity attaches to
prior convictions used to enhance a sentence,” such that the State need not
prove the defendant was represented by counsel or waived counsel unless
“the defendant presents some credible evidence to overcome the
presumption.” State v. McCann, 200 Ariz. 27, 28, 31, ¶¶ 1, 15, 21 P.3d 845,
846, 849 (2001).

¶29           In this case, Strait failed to present any evidence to rebut the
presumption of regularity. The record also contains the six sentencing
minute entry exhibits that reflect Strait was represented by counsel in each
of his prior cases. Therefore, Strait has failed to demonstrate any error,
much less fundamental error, on this basis. For these reasons, the trial court
did not err by enhancing Strait’s sentences.

                              CONCLUSION

¶30           Strait’s convictions and sentences are affirmed.




                                    :AA




                                     10
