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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 STEVEN THOMAS WILLIAMS, Appellant.

                             No. 1 CA-CR 16-0089
                               FILED 2-14-2017


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400410
           The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                           STATE v. WILLIAMS
                           Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Chief Judge Michael J. Brown joined.


J O H N S E N, Judge:

¶1              Steven Thomas Williams appeals his conviction and sentence
imposed after a jury found him guilty of one count of possession of drug
paraphernalia. Williams argues the superior court erred when it allowed
the State to introduce statements from Kellie Davis, a co-defendant who did
not testify in their joint trial. For the reasons that follow, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           Officers executed a search warrant on a home in Bullhead
City. On their arrival, they detained Davis near the home's entrance and
     1

found Williams in the master bedroom. Searching the master bedroom and
bathroom, officers found a digital scale, two glass pipes with
methamphetamine residue, Williams's wallet and identification, and mail
addressed to both Williams and Davis at the home.

¶3           Davis and Williams each were charged with possession of
drug paraphernalia. Four officers testified, including one who questioned
Davis about the items found in the home. The officer testified Davis
admitted she and Williams lived in the home and shared the master
bedroom. He testified that when Davis learned what officers had found in
the home, she stated that whatever the officers had found belonged to her,
that she would "take the blame" for anything found, and that she did not
want Williams to go to jail. Williams did not object to the officer's
testimony.

¶4            The jury found Williams guilty of one count of possession of
drug paraphernalia and the court sentenced him to 1.75 years'
imprisonment. This timely appeal followed. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution and Arizona Revised


1      We view the facts and all reasonable inferences therefrom in the light
most favorable to sustaining the jury's verdict. State v. Vandever, 211 Ariz.
206, 207, n.2 (App. 2005).



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                            STATE v. WILLIAMS
                            Decision of the Court

Statutes sections 12-120.21(A)(1) (2017), 13-4031 (2017), and -4033(A)(1)
(2017).2

                               DISCUSSION

¶5             Williams argues that the hearsay statements by Davis that the
officer recounted directly implicated him, in violation of his Sixth
Amendment right to confrontation. We review arguments raised for the
first time on appeal for fundamental error. State v. Goudeau, 239 Ariz. 421,
457, ¶ 144 (2016). To prevail under this standard of review, a defendant
must establish both that fundamental error occurred and that the error
caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005).

¶6            Fundamental error is error that "goes to the foundation of [a
defendant's] case, takes away a right that is essential to his defense, and is
of such magnitude that he could not have received a fair trial." Id. at 568, ¶
24. The showing required to establish prejudice "differs from case to case."
Id. at ¶ 26. A defendant "must show that a reasonable jury, applying the
appropriate standard of proof, could have reached a different result." Id. at
569, ¶ 27.

¶7               A defendant may be deprived of his Sixth Amendment right
to confrontation when a non-testifying co-defendant's confession
incriminating the defendant is admitted at their joint trial. Bruton v. United
States, 391 U.S. 123, 137 (1968) (confession inadmissible despite limiting jury
instruction). But this rule only applies when the co-defendant's confession
explicitly implicates the defendant. State v. Blackman, 201 Ariz. 527, 538, ¶¶
42, 48 (App. 2002); see also Richardson v. Marsh, 481 U.S. 200, 208 (1987)
(Bruton does not extend "to confession that was not incriminating on its
face" but which "became so only when linked with evidence introduced
later at trial.").

¶8              In Blackman, for example, a co-defendant had said that "about
30" men were present at an event at which the State alleged several boys,
including the defendant, forced a victim to engage in sex. Blackman, 201
Ariz. at 532, ¶ 4. The co-defendant denied having sex with the victim, but
conceded, in the hearsay statement recounted at trial, that things "got out
of control[;] it got out of hand." 201 Ariz. at 537, ¶ 35. The court held the
co-defendant's statement did not violate the defendant's confrontation
clause rights because it did not directly refer to him and was not "facially


2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                      3
                            STATE v. WILLIAMS
                            Decision of the Court

incriminating." 201 Ariz. at 540, ¶ 52 (quoting State v. Herrera, 174 Ariz. 387,
395 (1993)). The court explained that in order for the statement to
incriminate the defendant, the jury would have to make "at least two
inferential steps," removing the case "from the 'narrow exception' created
by the ruling in Bruton." Id. at ¶ 53.

¶9            Here, Davis's statements did not facially or expressly
implicate Williams. Her statements, in fact, expressly implicated herself,
and exculpated Williams. That is why in closing argument, Williams's
counsel cited those statements in arguing the jury should find Davis guilty,
but not Williams. In order for the hearsay statements to incriminate
Williams, the jury would have to make at least two inferential steps: (1) that
Davis was not telling the truth when she told the officer that all of the illegal
items in the house belonged only to her; and (2) that Davis was taking the
"blame" for Williams, instead of for a third person. As with the co-
defendant's statements in Blackman, these necessary inferences remove this
case from a Bruton analysis. The superior court did not err, therefore, in
admitting the hearsay statements.3

                               CONCLUSION

¶10          For the foregoing reasons, Williams's conviction and sentence
is affirmed.




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




3      Williams did not ask the superior court to give a limiting instruction
with respect to the hearsay statements, and does not argue on appeal that
even if the statements did not directly implicate him, the omission of such
an instruction was fundamental error.


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