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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   DESMAN ISAIAH MAYES, Appellant.

                             No. 1 CA-CR 18-0449
                               FILED 3-28-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-137183-001
               The Honorable Peter A. Thompson, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Michael J. Dew Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
                            STATE v. MAYES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge James B. Morse, Jr. and Judge Peter B. Swann joined.


T H O M P S O N, Judge:

¶1            This appeal was timely filed in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following Desman Isaiah Mayes’s (defendant’s) conviction for one count of
tampering with physical evidence, a class 6 felony. Defendant’s counsel
searched the entire record on appeal and found no arguable question of law
and filed a brief requesting this court conduct an Anders review of the
record for fundamental error. Defendant had the opportunity to file a
supplemental brief in propria persona, but did not do so.

¶2            On August 13, 2017, defendant was lawfully arrested for an
unrelated offense. Officers Daniel Reynolds and Jessica Foth searched
defendant at the scene but did not search his shoes and socks. Officer Foth
testified that during the trip to the jail, defendant seemed extremely
nervous and repeatedly asked to be let go and “take care of his charges in
another way.” At the jail, Detention Officer Jeffrey Troy searched defendant
as part of booking and two small baggies containing what appeared to be
methamphetamine fell out of defendant’s socks and onto the floor.
Suddenly, defendant lunged down and put the baggies in his mouth.
Detention Officer Troy attempted to subdue defendant, and Officer Foth
and other jail employees rushed over to assist as defendant chewed on the
baggies. Detention Sergeant Michelle Hatcher attempted to remove the
baggies from defendant’s mouth with her thumb, but defendant bit her and
was able to swallow the baggies.

¶3           The state charged defendant with one count of aggravated
assault while in custody, and one count of tampering with physical
evidence. During his closing statement, defense counsel pointed out that
the state had not presented evidence to prove that the baggies contained
methamphetamine.1 In his rebuttal, prosecutor stated that if defendant had

1Whether the evidence was methamphetamine or not is irrelevant to the
charge of tampering with evidence and misstates the law. However,



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                            STATE v. MAYES
                           Decision of the Court

been “completely clean when he went to the hospital he would be waving
[his medical records] at [the jury].” Defense counsel objected on the
grounds that prosecutor was shifting the burden and moved to strike. The
judge allowed prosecutor to continue, and prosecutor went on to clarify
that the state does indeed have the burden of proof and a defendant’s
failure to present certain evidence should not be considered by the jury.
After rebuttal, the judge struck the statement “about the defendant could
have produced his medical records.” He also gave a curative instruction in
which he instructed the jury that the state must prove guilt beyond a
reasonable doubt, defendant is not required to produce any sort of
evidence, and the decision to not do so is not evidence of guilt. After the
jury was excused to begin deliberations, defense counsel moved for a
mistrial. The judge denied the motion for a mistrial, noting that a curative
instruction had already been given and prosecutor had clarified the burden
in his rebuttal.

¶4            The jury found defendant not guilty of aggravated assault,
but convicted defendant of tampering with evidence, finding that
defendant had been on felony probation for less than two months at the
time of the offense. The trial court found that the state proved that
defendant had two prior felony convictions. Based on the aggravating
factors and prior felonies, the trial court sentenced defendant to a term of
4.5 years’ imprisonment with credit for 306 days of presentence
incarceration.

¶5            We have read and considered defendant’s Anders brief, and
have searched the entire record for reversible error. See Leon, 104 Ariz. at
300. We find none. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure, and the sentence imposed
was within the statutory limits. Pursuant to State v. Shattuck, 140 Ariz. 582,
584-85 (1984), defendant’s counsel’s obligations in this appeal are at an end.
Defendant has thirty days from the date of this decision in which to
proceed, if he so desires, with an in propria persona motion for
reconsideration or petition for review.




prosecutor did not object to defense counsel’s statements and the jury was
properly instructed that comments by lawyers are not evidence.


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                         STATE v. MAYES
                        Decision of the Court

                           CONCLUSION

¶6          For the foregoing reasons, we affirm the conviction and the
sentence.




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




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