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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   STEPHEN LESLIE BROWN, Appellant.

                             No. 1 CA-CR 15-0041
                               FILED 7-19-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2014-109882-001
            The Honorable Roland J. Steinle III, Retired Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David A. Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                             STATE v. BROWN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Patricia K. Norris joined.


J O N E S, Judge:

¶1           Stephen Brown appeals his conviction and sentence for one
count of attempt to commit child prostitution, a class 3 felony. For the
following reasons, we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2              In March 2014, a grand jury indicted Brown on two counts of
attempted child prostitution for knowingly attempting to cause two
undercover officers, posing as minors, to engage in prostitution. After the
start of trial and shortly before the opening statement, the State moved to
preclude “any argument, testimony or insinuation that another person
committed any of the offenses charged,” asserting it had just learned Brown
anticipated asserting a third-party culpability defense. The State also
asserted it had just learned that Brown’s sister, who the State had
subpoenaed to appear as a witness at trial, was expected to testify for the
defense that a “homie,” whom she knew only as “Reggie,” had left his
phone at her home the day of the offense. Brown’s sister also indicated
Brown had used the phone at a later point and that Brown told her, “We’re
going to go pick up homie’s girl.” The State argued this testimony was
improper because it would be used to establish a third-party culpability
defense that had not been disclosed by the defense as required by Arizona
Rule of Criminal Procedure 15.2(b). Defense counsel responded that he had
not “decided on a particular defense” but thought “the facts should play
out as they are.”

¶3            After reviewing Brown’s notice of defenses, the trial court
granted the State’s motion precluding all evidence regarding a third-party
culpability defense. However, the court stated, “[A]t this point in time, if I
get a motion to extend the time, I’ll be happy to consider it. But if I don’t

1     We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v. Harm,
236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493,
495 (App. 1996)).


                                       2
                             STATE v. BROWN
                            Decision of the Court
get a motion to extend the time, the third-party defense is precluded.” No
motion was made.

¶4             The trial court later clarified that Brown could testify that the
phone was not his and that it was someone else’s phone, because he had
listed mistaken identification as a defense. But, the court stated Brown
would be “crossing the line” into the precluded third-party culpability
defense if he “start[ed] suggesting whose phone it was . . . it was some third
party’s phone and some third party doing it.”

¶5             The evidence presented at trial demonstrated that Brown sent
text messages and made phone calls offering to act as a pimp for the two
officers. Police recorded video of a meeting in a hotel room wherein Brown
accepted purported earnings from one of the officers, who went by the
name of Alma.

¶6             The texts and phone calls all came from the cell phone Brown
had in his possession at the time of his arrest. The undercover officers
testified it was Brown’s voice on the phone calls. The text messages were
sent between about 2:30 p.m. and 8:30 p.m. and were signed
“$Stack$A$Dolla$.” After his arrest, Brown acknowledged this was a
nickname he sometimes used. One of the officers testified that Brown had
also referred to himself as “Texas P.” and answered to that name when he
showed up at the hotel to collect money from Alma.

¶7          A Phoenix police detective testified that, after Brown’s arrest,
Brown acknowledged he had met Alma on Backpage.com. The officer who
posed as Alma testified that Brown had texted her and called her on the
number she had listed in her advertisement on Backpage.com.

¶8           At trial, the trial court allowed Brown to testify he was given
the phone and was at the hotel room because “Reggie asked me to pick his
girlfriend up for him.” Based on the prior ruling, however, the court
sustained objections to Brown’s testimony that while he was asleep, “a
buddy of mine came over,” and also precluded jury questions on whose
phone it was and why he had gone to the hotel to pick up Reggie’s
girlfriend.

¶9           Brown denied sending the text messages and making the
phone calls. He testified that he was sleeping from about 12:30 p.m. to 7:30
p.m., and someone else gave him the phone at about 8:00 p.m. He
acknowledged it was him on the video but testified he was in the hotel room
because “Reggie asked me to pick up his girlfriend for him.” He asserted
he made the incriminating statements heard on the video recording only


                                       3
                             STATE v. BROWN
                            Decision of the Court
because he was nervous and scared after it became apparent Alma was
lying to him about being sixteen years old. Ultimately, Brown’s sister did
not testify.

¶10           The jury convicted Brown of the second count of attempted
child prostitution involving the officer posing as Alma but was unable to
reach a verdict on the first count involving another undercover officer
posing as a minor. On the State’s motion, the court dismissed the first count
without prejudice. Brown waived a jury trial on the issue of whether he
was on probation at the time of the offense, and the court found he was on
probation at the time of the offense. The court sentenced Brown to 11.25
years’ imprisonment. Brown filed a timely notice of appeal. We have
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1),2 13-4031, and -4033(A).

                               DISCUSSION

I.     Preclusion of Brown’s Third-Party Culpability Defense

¶11            Brown argues the trial court erred when it precluded his
third-party culpability defense because of his failure to timely disclose it.
We review rulings on discovery issues for an abuse of discretion. State v.
Connor, 215 Ariz. 553, 557, ¶ 6 (App. 2007) (citing State v. Fields, 196 Ariz.
580, 582, ¶ 4 (App. 1999)).

¶12              Under Arizona Rule of Criminal Procedure 15.2(b), a
defendant is required to disclose “all defenses as to which the defendant
intends to introduce evidence at trial” and all witnesses whom he intends
to call at trial in support thereof within forty days after the arraignment or
within ten days after the State files its disclosure, whichever occurs first.
Here, Brown never disclosed to the State that he would assert a third-party
culpability defense, nor that Brown’s sister might be called as a witness. See
supra ¶ 2. At trial, defense counsel asserted he was not Brown’s attorney
when the disclosure was filed. However, pursuant to Rule 15.6(a), defense
counsel had a continuing duty to “make additional disclosure, seasonably,
whenever new or different information subject to disclosure is discovered.”

¶13           Rule 15.6(d) states:

       A party seeking to use material and information not disclosed
       at least seven days prior to trial shall obtain leave of court by


2     Absent material changes from the relevant date, we cite a statute’s
current version.


                                      4
                             STATE v. BROWN
                            Decision of the Court
       motion, supported by affidavit, to extend the time for
       disclosure and use the material or information. If the court
       finds that the material or information could not have been
       discovered or disclosed earlier even with due diligence and
       the material or information was disclosed immediately upon
       its discovery, the court shall grant a reasonable extension to
       complete the disclosure and grant leave to use the material or
       information.

Here, the trial court gave Brown an opportunity to file a motion for
extension so that the third-party culpability defense could be properly
disclosed, but no motion was made. See supra ¶ 3.

¶14           Rule 15.7 provides several sanctions that the trial court may
impose for noncompliance with the rules of discovery. In determining an
appropriate sanction, the trial court “‘should seek to apply sanctions that
affect the evidence at trial and the merits of the case as little as possible.’”
State v. Roque, 213 Ariz. 193, 210, ¶ 50 (2006) (quoting State v. Fisher, 141
Ariz. 227, 246 (1984)). One sanction available under Rule 15.7 is
“[p]recluding or limiting the calling of a witness, use of evidence or
argument in support of or in opposition to a charge or defense.” Rule
15.6(d) limits the sanction of precluding undisclosed information only
where a motion to extend has been granted: “if granted the court may
impose any sanction other than preclusion or dismissal listed in Rule 15.7.”
In Roque, our supreme court expounded upon the limited circumstances
under which preclusion of evidence should be used as a sanction, stating:

       Prohibiting the calling of a witness should be invoked only in
       those cases where other less stringent sanctions are not
       applicable to effect the ends of justice. The court should also
       consider how vital the precluded witness is to the proponent’s
       case, whether the opposing party will be surprised and
       prejudiced by the witness’ testimony, whether the discovery
       violation was motivated by bad faith or willfulness, and any
       other relevant circumstances.

213 Ariz. at 21, ¶ 50 (quoting Fisher, 141 Ariz. at 246).

¶15           Although the trial court did not make a record of the
considerations listed in Roque, we presume it knew the law and applied it
in making its decision. State v. Lee, 189 Ariz. 608, 616 (1997). Furthermore,
the circumstances support preclusion. The court advised defense counsel
it could file a written motion to extend the time for disclosure, but no
motion was made. Accordingly, the court could presume that the


                                       5
                             STATE v. BROWN
                            Decision of the Court
undisclosed information could “have been discovered or disclosed earlier”
and was not “disclosed immediately upon its discovery.” See Ariz. R. Crim.
P. 15.6(d). As the court reasoned, defense counsel’s strategy — to let the
facts “play out as they are” and attempt to pin culpability on a previously
undisclosed third party known only as “Reggie” — would have
undoubtedly caused unfair prejudice to the State by denying it the
opportunity to investigate and disprove “Reggie’s” culpability. Defense
counsel made no showing whatsoever that the third-party culpability
defense was “vital” to Brown’s defense, but rather told the court, “I haven’t
decided on a particular defense.”

¶16           Under these circumstances, it was well within the trial court’s
discretion to preclude the undisclosed third-party culpability defense and
evidence supporting it. Cf. State v. Goudeau, CR-11-0406-AP, 2016 WL
3369231, slip op. at *28, ¶ 167 (Ariz. June 17, 2016) (holding the trial court
did not abuse its discretion in precluding third-party culpability evidence
on the ground that it was untimely disclosed).

II.    Limitation on Cross-Examination

¶17            Brown argues the trial court erred when it improperly
restricted his right to confront and cross-examine a Phoenix police
detective. The State called the detective, who worked in the vice
enforcement unit, as a “cold” expert witness to testify about the business,
culture, and language of prostitution, and the techniques used by police to
investigate child prostitution. The court sustained objections to three
questions by defense counsel on cross-examination: (1) “So are the officers
encouraging prostitution activity as well?” (2) “With regard to pimps
talking to officers, what is the officer’s position, or where does the officer
stand?” and (3) “Is there any type of common practice with regard to
evidence seized as a result of your investigations, physical evidence, like
what you do with it?” Outside the presence of the jury, the judge explained
that he sustained the objections because it is not a defense that the minor
was actually a peace officer posing as a minor, and that entrapment had not
been listed as a defense.

¶18           We generally review evidentiary rulings for an abuse of
discretion, but we review evidentiary rulings that implicate a defendant’s
confrontation rights de novo. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006).
Because Brown failed to raise his constitutional claim at trial, we review this
claim for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567,
¶ 19 (2005).




                                       6
                             STATE v. BROWN
                            Decision of the Court
¶19            “[T]he Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’” Crane v. Kentucky,
476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485
(1984), and citing Strickland v. Washington, 466 U.S. 668, 684-85 (1984)). This
right is secured in part by the right to cross-examination provided by the
Confrontation Clause of the Sixth Amendment. Davis v. Alaska, 415 U.S.
308, 315 (1974). Trial judges, however, “retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). A defendant’s right to present evidence is
subject to restriction, moreover, by application of reasonable evidentiary
rules. See United States v. Scheffer, 523 U.S. 303, 308 (1998).

¶20            The trial court did not abuse its discretion or violate Brown’s
confrontation rights by sustaining the objections to the first and second
questions. The first question of whether the officers were “encouraging
prostitution activity” by their undercover activity was not relevant to any
issue at trial, because Brown had not raised an entrapment defense. See
Ariz. R. Evid. 402 (“Irrelevant evidence is not admissible.”). Nor was the
second question, “where does the officer stand . . . with regard to pimps
talking to officers?” relevant to any issue except entrapment.

¶21           We are not persuaded by Brown’s argument for the first time
on appeal that these questions were designed instead to show that Brown
had not knowingly attempted to “cause any minor to engage in
prostitution,” as required for the charged offense, because the “officers’
personas were already engaged in prostitution.” Under fundamental error
review, Brown bears the burden of establishing that the court erred, that the
error was fundamental in nature, and that he was prejudiced thereby. See
Henderson, 210 Ariz. at 568, ¶ 22. Our review reveals no error at all.

¶22              A person violates A.R.S. § 13-3212(A)(1) when he “knowingly
. . . [c]aus[es] any minor to engage in prostitution.” Prostitution is defined
as “engaging in or agreeing or offering to engage in sexual conduct under
a fee arrangement with any person for money or any other valuable
consideration.” A.R.S. § 13-3211(5). “Sexual conduct” is defined as “sexual
contact, sexual intercourse, oral sexual contact or sadomasochistic abuse.”
A.R.S. § 13-3211(8). The statutory scheme by its plain words prohibits a
person from causing any minor to engage in a single act of prostitution,
whether or not it is the minor’s first act. It is not a defense to the charged
crime that the officers posing as minors already engaged in prostitution.



                                      7
                             STATE v. BROWN
                            Decision of the Court
The court accordingly did not fundamentally err in precluding these
questions.

¶23            It is not clear why the court sustained an objection to the third
question regarding whether there was “any type of common practice with
regard to evidence seized . . . like what you do with it.” In light of defense
counsel’s trial strategy, this question was apparently designed to elicit
whether the vice enforcement unit had a common practice of determining
ownership of phones seized from persons arrested for prostitution offenses.
Any error in sustaining an objection to this question, however, was
harmless. See Henderson, 210 Ariz. at 567, ¶ 18 (“Harmless error review
places the burden on the state to prove beyond a reasonable doubt that the
error did not contribute to or affect the verdict or sentence.”). Defense
counsel had already questioned this witness extensively on whether it was
possible for law enforcement to determine the owner and retrieve data from
seized cell phones to further its investigation into the identity of the suspect.
Moreover, the detective had testified that she personally does not rely on
information about the owner of cell phones, “because people . . . lend out
their phones.” Defense counsel also questioned other witnesses on whether
the cell phone in Brown’s possession had been confiscated and whether any
attempt had been made to retrieve data from it. Under these circumstances,
any error in precluding this testimony was harmless, because it did not
contribute to or affect the verdict. See id.

III.   Prosecutorial Misconduct

¶24           Brown argues that the prosecutor engaged in misconduct by
improperly appealing to the sympathies of the jurors and by vouching for
the State’s witnesses. Because Brown failed to object to any of the asserted
misconduct at trial, we review for fundamental error. See State v. Ramos,
235 Ariz. 230, 234, ¶ 8 (App. 2014) (citing Henderson, 210 Ariz. at 567, ¶ 19).

¶25           Prosecutorial misconduct “‘is not merely the result of legal
error, negligence, mistake, or insignificant impropriety, but, taken as a
whole, amounts to intentional conduct which the prosecutor knows to be
improper and prejudicial, and which he pursues for any improper purpose
with indifference to a significant resulting danger of mistrial.’” State v.
Aguilar, 217 Ariz. 235, 238-39, ¶ 11 (App. 2007) (quoting Pool v. Superior
Court, 139 Ariz. 98, 108-09 (1984)). To determine whether a prosecutor’s
remarks are improper, we consider whether the remarks called to the
attention of jurors matters they would not be justified in considering and
the probability, under the circumstances, that the jurors were influenced by
the remarks. State v. Jones, 197 Ariz. 290, 305, ¶ 37 (2000) (quoting State v.
Hansen, 156 Ariz. 291, 296-97 (1988)). To prevail on his claim, a defendant


                                       8
                              STATE v. BROWN
                             Decision of the Court
must demonstrate that “the prosecutor’s misconduct so infected the trial
with unfairness as to make the resulting conviction a denial of due process.”
State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (citing State v. Hughes, 193 Ariz.
72, 79, ¶ 26 (1998)) (internal quotations omitted). The misconduct must be
“‘so pronounced and persistent that it permeates the entire atmosphere of
the trial.’” Hughes, 193 Ariz. at 79, ¶ 26 (quoting State v. Atwood, 171 Ariz.
576, 611 (1992), and citing Lee, 189 Ariz. at 616).

¶26            Because Brown failed to object to any of the claimed
misconduct at trial, he bears the burden of establishing that the prosecutor
engaged in misconduct, that the misconduct constituted fundamental error,
and that the misconduct caused him prejudice. See Henderson, 210 Ariz. at
568, ¶ 22. Error is fundamental when it goes to the foundation of the
defendant’s case, takes from him a right essential to his defense, and is error
of such magnitude that he could not possibly have received a fair trial. Id.
at 567, ¶ 19 (citing State v. Gendron, 168 Ariz. 153, 155 (1991), and State v.
Hunter, 142 Ariz. 88, 90 (1984)). To prove prejudice, the defendant must
show that a reasonable jury could have reached a different result absent the
error. Id. at 569, ¶ 27.

       A.      Appeal to Jurors’ Sympathies

¶27            Brown first argues the prosecutor improperly appealed to the
jurors’ sympathies by asking them, at the start of her opening statement, to
imagine the world of a teenage girl who “hops from motel to motel, bed to
bed, stranger to stranger,” and is “required to touch men in the most
intimate of ways,” with a pimp “profiting off of her selling herself,” and
then advising them “this is not an imaginary world . . . it happens every
day here in our community.” These remarks, although supported by
evidence, were more in the nature of argument, rather than opening
statement, and thus were improper on that basis. See State v. Bible, 175 Ariz.
549, 601 (1993) (“Opening statement is not a time to argue the inferences
and conclusions that may be drawn from evidence not yet admitted.”)
(citing Charles M. Smith, Arizona Practice — Civil Trial Practice § 455, at 395
(1986)). Moreover, it was improper for the prosecutor to ask jurors to place
themselves in the role of actual victims of the child prostitution industry,
and thereby appeal to the fears or passions of the jury. See Morris, 215 Ariz.
at 337, ¶ 58 (citing State v. Comer, 165 Ariz. 413, 426 (1990)). And although
“prosecutors have wide latitude in presenting their closing arguments to
the jury,” see id., it was also improper to repeat the theme in closing
argument. The remarks were not so prejudicial, however, that they rose to
the level of fundamental error.




                                        9
                             STATE v. BROWN
                            Decision of the Court
       B.     Vouching

¶28             Brown also argues that the State’s arguments during closing
improperly vouched: (1) for the police vice enforcement unit by stating,
“This is what they deal with on a regular basis. This happens, and this
happened here;” (2) for all the evidence by stating, “It’s our job to do what
we can to help you understand the evidence and the law;” (3) “for the entire
criminal justice system’s penchant for churning out guilty verdicts” by
stating “reasonable doubt is not that difficult. It’s what we use every single
day in criminal cases. Everyday;” (4) by urging the jury to follow its
commitment during jury selection to follow the law, because “you have
more than enough information, more than enough to find the defendant
guilty of these two counts;” and (5) for Detective A.H.’s credibility by
assuring the jury that the detective’s review of the recording before
testifying was just her “doing a good job” to ensure she testified
“accurately.” Impermissible prosecutorial vouching occurs “(1) where the
prosecutor places the prestige of the government behind its witness; [or] (2)
where the prosecutor suggests that information not presented to the jury
supports the witness’s testimony.” State v. Vincent, 159 Ariz. 418, 423 (1989)
(citing State v. Salcido, 140 Ariz. 342, 344 (App. 1984)).

¶29           Brown’s first, second, fourth, and fifth suggestion of error are
without merit; these comments, when taken in context, were within the
wide latitude afforded the prosecutor in closing arguments. The third
point, commenting that “reasonable doubt is not that difficult. It’s what we
use every single day in criminal cases. Everyday,” improperly conveyed to
the jury that reasonable doubt is an easy standard to meet. But, the
prosecutor cured any improper inference by then referring the jury to the
proper standard: “It is not a standard in which we say beyond any doubt
or beyond a scintilla of a doubt, or anything of that nature. If you’re firmly
convinced after paying attention to all of the evidence in this case, then you
have to find him guilty.” Moreover, the jury was properly instructed on
the concept of reasonable doubt, that counsels’ arguments were not
evidence, and that it should consider only the evidence admitted at trial in
reaching its verdicts. There is no indication the jury failed to heed these
instructions. See State v. LeBlanc, 186 Ariz. 437, 439 (1996) (“Jurors are
presumed to follow instructions.”) (citing State v. Herrera, 174 Ariz. 387, 395
(1993)).

¶30            Finally, we are not persuaded that the prosecutor
intentionally engaged in improper conduct or acted with indifference or
specific intent to prejudice Brown, as would be necessary to reverse on the
basis of cumulative error. See State v. Gallardo, 225 Ariz. 560, 568, ¶ 35 (2010)



                                       10
                            STATE v. BROWN
                           Decision of the Court
(quoting Morris, 215 Ariz. at 335, ¶ 47). On this record, the trial court did
not fundamentally err in failing to sua sponte strike this argument.

                              CONCLUSION

¶31           Brown’s conviction and sentence are affirmed.




                                  :AA




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