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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  THOMAS LEROY CROM, IV, Appellant.

                             No. 1 CA-CR 14-0751
                               FILED 11-10-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-441624-001
                 The Honorable Hugh E. Hegyi, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

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

The Hopkins Law Office PC, Tucson
By Cedric Martin Hopkins
Counsel for Appellant
                           STATE v. CROM
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Pro Tempore Dawn M. Bergin1 delivered the decision of the Court, in
which Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.


B E R G I N, Judge:

¶1             Thomas Crom appeals his conviction and sentence for
controlling another’s means of transportation while knowing or having
reason to know it was stolen, in violation of Arizona Revised Statutes
(“A.R.S.”) section 13-1814(A)(5) (2010). On appeal, Crom argues that the
superior court erred by: (1) denying his motion for judgment of acquittal
under Rule 20 of the Arizona Rules of Criminal Procedure; (2) permitting
the prosecutor to question him on cross-examination about his failure to
produce potentially exculpatory witnesses, which, he contends, both
improperly shifted the burden of proof and created an improper
inference that he was able but failed to produce these witnesses; and (3)
improperly instructing the jury on the statutory inference under A.R.S. §
13-2305(1) (2010). While we reject Crom’s arguments that the prosecutor’s
questioning improperly shifted the burden to him, we do find that the
questioning about Crom’s failure to call one witness, Hans Barkowski,
created an improper adverse inference.2 And, because we cannot say
beyond a reasonable doubt that this inference did not contribute to or
affect the jury’s verdict, we reverse and remand for a new trial.

¶2            To avoid any issues on remand regarding the propriety of
the jury instruction on the statutory inference of A.R.S. § 13-2305(1), we




             1The   Honorable Dawn M. Bergin, Judge, Maricopa County
Superior Court, was authorized by the Chief Justice of the Arizona
Supreme Court to participate in the disposition of this appeal pursuant to
the Arizona Constitution, Article 6, Section 3, and Revised Statutes
(“A.R.S.”) sections 12-145 to -147 (2003).

             2Because  we reverse and remand based on the improper
inference created as to Hans, we need not reach Crom’s arguments
regarding the questioning of four other witnesses.



                                    2
                             STATE v. CROM
                            Decision of the Court
address that issue below and find that the superior court properly
instructed the jury.3

             FACTS AND PROCEDURAL BACKGROUND

¶3             Police arrested Crom and Hans Barkowski in the summer of
2013 after finding Crom driving a stolen car with Hans in the passenger
seat. Crom first told police that “he did not own the vehicle,” but “had
borrowed it from a friend whose name he didn’t know and it was actually
that friend’s brother’s whose name he didn’t know.” He later changed his
story, stating that “he got the keys to the car from a guy that he met at a
bar in Old Town Scottsdale,” but “[h]e didn’t remember his name” or
“which bar it was.”

¶4             At trial, Crom testified that the day of his arrest began at his
friend Matt’s house where Hans arrived in the stolen car, claiming he had
located Crom’s recently stolen truck. Before leaving to find the truck,
Crom retrieved a jiggle key that he intended to use to try to start the truck
because he no longer had keys to it. Crom said he saw the stolen car for
the first time when he and Hans left in it to find his truck, and although
Hans drove the stolen car to Matt’s house, Crom asked for and received
the car keys from Hans because he knew Hans lacked a valid driver’s
license. When the prosecutor noted that Crom’s testimony as to how he
obtained the keys was inconsistent with his prior statements to police,
Crom admitted that he previously told police “a bunch of lies” because he
did not want to “snitch” on Hans.

¶5            Crom further testified that after leaving Matt’s apartment, he
and Hans drove to the location of the stolen truck and spoke with an
unnamed woman about the truck. After failing to locate the person with
the keys to his truck, Crom broke into it and tried to start the engine with
the jiggle key, damaging the ignition, which, he said, his aunt later paid to
repair. After failing to start the truck, Crom and Hans left to find a friend
to help hotwire it. The police arrested them shortly thereafter.

¶6           Prior to trial, Crom notified the prosecutor and the superior
court of his intent to call Hans as a trial witness. The superior court
appointed counsel for Hans, who was incarcerated at the time, and had

              3Because
                     we reverse and remand for a new trial based on the
admission of testimony creating an improper adverse inference, we need
not reach Crom’s argument that the superior court erred in denying his
motion under Arizona Rule of Criminal Procedure 20.



                                      3
                             STATE v. CROM
                            Decision of the Court
him transported to court on the first day of trial. Counsel for Hans
informed the superior court that Hans intended to invoke his Fifth
Amendment right to remain silent as to all questions. Crom argued that
Hans should be forced to invoke his right to remain silent in front of the
jury because he might change his mind on the stand. Relying on Arizona
Rule of Evidence 403, the superior court found that calling Hans as a
witness simply to have him invoke his right to remain silent would “be a
needless use of the jury’s time,” and excused Hans from testifying.

¶7              During cross-examination of Crom, and over the objection of
defense counsel, the superior court allowed the prosecutor to ask Crom
about Hans’ absence from court, suggesting that Crom failed to call Hans
because he would not corroborate Crom’s story. The superior court
denied defense counsel’s request on redirect that Crom be permitted to
tell the jury that Hans was unavailable because he had invoked his right to
remain silent.

¶8           The jury found Crom guilty of theft of means of
transportation.

                               DISCUSSION

¶9            Crom proffers two bases for his argument that the superior
court erred in allowing the prosecutor to question him about his failure to
call potentially exculpatory witnesses at trial: (1) it resulted in an
impermissible shifting of the burden of proof to him; and (2) it created an
impermissible adverse inference that the witnesses would not have
corroborated his story. Crom also challenges the constitutionality of the
superior court’s jury instructions on the statutory inference under A.R.S. §
13-2305(1).

I.     Burden-Shifting

¶10             Under Arizona law, “[w]hen a prosecutor comments on a
defendant’s failure to present evidence to support his or her theory of the
case, it is neither improper nor shifts the burden of proof to the defendant
so long as such comments are not intended to direct the jury’s attention to
the defendant’s failure to testify.” State v. Sarullo, 219 Ariz. 431, 437, ¶ 24,
199 P.3d 686, 692 (App. 2008); State ex rel. McDougall v. Corcoran, 153 Ariz.
157, 160, 735 P.2d 767, 770 (1987) (“Even where the defendant does not
take the stand, the prosecutor may properly comment on the defendant’s
failure to present exculpatory evidence which would substantiate
defendant’s story.”).




                                       4
                             STATE v. CROM
                            Decision of the Court
¶11           Here, the prosecutor’s questions during cross-examination
and his comments during closing argument regarding the absent
witnesses did not direct the jury’s attention to Crom’s failure to testify
because Crom did testify. Thus, we reject Crom’s argument that the
questioning resulted in improper burden shifting. See State v. Pandeli, 215
Ariz. 514, 525, ¶ 30, 161 P.3d 557, 568 (2007).

II.    Improper Inference

¶12           Because Hans invoked his Fifth Amendment right to remain
silent and was therefore unavailable to both parties, we find that the
prosecutor’s questioning about Hans’ absence created an improper
inference, and the superior court erred in admitting the testimony without
any curative instructions.

¶13             When a defendant attacks the accuracy of the State’s
evidence, “elemental fairness” allows the State to comment on the
defense’s failure to present potentially exculpatory witnesses to which he
has access. McDougall, 153 Ariz. at 160, 735 P.2d at 770. The defendant’s
“access” to these witnesses is the foundation of this “elemental fairness,”
and if a witness is equally available to both sides or not available to either
side, no party is permitted to create an inference from any other party’s
failure to call that witness. Id.; State v. Condry, 114 Ariz. 499, 500, 562 P.2d
379, 380 (1977) (citation omitted).

¶14           In assessing the propriety of a comment regarding an
uncalled witness, the superior court may consider “whether the witness
was under the control of the party who failed to call him or her;”
“whether the party failed to call a seemingly available witness whose
testimony it would naturally be expected to produce if it were favorable;”
and “whether the existence or nonexistence of a certain fact is uniquely
within the knowledge of the witness.” Gordon v. Liguori, 182 Ariz. 232,
236, 895 P.2d 523, 527 (App. 1995) (citations omitted).

¶15           Despite the superior court having excused Hans as a witness
because he invoked his Fifth Amendment right to remain silent, the
prosecutor repeatedly questioned Crom about Hans’ absence, and, in
doing so, created a prejudicial inference that Crom had not called Hans
because his testimony would not support Crom’s story. This prejudice
was compounded by the superior court’s limitation on the scope of
information that would be provided to the jury on Hans’ unavailability.
The relevant testimony follows:

              Prosecutor: Where is Hans right now?


                                       5
                               STATE v. CROM
                              Decision of the Court
             Crom: In jail.

             Prosecutor: And how long has he been in
             custody, do you know?

             Crom: Nine months, ten months.

             Prosecutor: But you do know exactly where he
             is?

             Crom: Yes, I do.

             Prosecutor: But yet he’s not here to tell the jury
             and verify what you want the jury to believe;
             correct?

¶16           After the superior court overruled defense counsel’s burden-
shifting objection, the questioning continued:

             Prosecutor: You were transported today by the
             Sheriff’s Office to court; correct?

             Crom: Yes.

             Prosecutor: And Hans . . . is housed in the
             Sherriff’s custody; correct?

             Crom: Yes, he is.

             Prosecutor: So Hans could have been brought
             to this court in the same manner you were to
             tell this jury exactly what you want them to
             believe after you told the police two different
             stories and a third story for the jury here in
             trial; correct?

             Crom: Correct.

             Prosecutor: And yet he’s not here to do that, to
             back up your story? That’s a yes or no
             question.

             Crom: No, he’s not.

¶17          On redirect, the prosecutor objected to the following
question posed by defense counsel: “You don’t have any control over how


                                       6
                           STATE v. CROM
                          Decision of the Court
deputies . . . transport[] people; correct?” During a bench conference, the
superior court explained that it could not “have the jury believe that
[Crom] didn’t have the ability to get [Hans to court] if [Crom] wanted him
[t]here.” Defense counsel responded that the prosecutor told the jury,
falsely, that Crom could bring Hans to court when in fact he could not
because he had invoked his Fifth Amendment rights.

             Defense counsel: He invoked. He invoked. Can
             I talk about that?

             The Court: No, we’re not going into whether
             [Hans] invoked.

             Defense counsel: Judge, Mr. Crom did bring
             [Hans] here in front of all of us. He did bring
             him here so that’s absolutely—he did bring
             him here.

             ...

             Prosecutor: Well, again, Judge, State’s concern,
             the Court picked up on, is the false impression
             that’s being given to the jury that somehow the
             defendant could not procure the witness.

             Defense counsel: We’ll talk about that because
             he did procure the witness. He did procure
             him and we all saw him.

             ...

             The Court: We will not get into invocations.

             Defense counsel: Your Honor, the Court just
             allowed [the prosecutor] to say to Mr. Crom:
             You have the power to bring Hans [to court] . .
             . and you didn’t. My client did bring Hans . . .
             here in front of all of us, Judge, and he should
             be able to tell the jurors that.

             The Court: You can tell the jurors that [Hans]
             came. You can’t tell them whether or not
             [Hans] invoked or didn’t invoke. . . . You want
             him to invoke in front of the jury, you had the



                                    7
                            STATE v. CROM
                           Decision of the Court
              right to ask for that, but you chose not to [do]
              so.

¶18            In short, the superior court ruled that defense counsel could
“say that [Hans] came [to court] to talk to [Crom]” but they were “leaving
it at that” and “not getting into whether he invoked or didn’t invoke.”

¶19          During his closing, the prosecutor again mentioned the
absence of corroborating witnesses stating “the power of subpoena cuts
both ways,” and “the Defense . . . can subpoena whoever they choose to
come in and testify.”

¶20           Here, because Hans was not available to Crom or to the State
due to the invocation of his right to remain silent, the State was not
permitted to comment on his absence from trial. See McDougall, 153 Ariz.
at 160, 735 P.2d at 770. Thus, the superior court erred by admitting this
testimony without allowing clarification by defense counsel or providing
the jury with curative instructions. See State v. Payne, 233 Ariz. 484, 513, ¶
120, 314 P.3d 1239, 1268 (2013) (no reversible error for improper
questioning by prosecutor where the court sustained objections and
issued curative instructions); State v. Leon, 190 Ariz. 159, 163, 945 P.2d
1290, 1294 (1997) (“because the record does not reflect a ruling or a
curative instruction by the court, the potential harm went unmitigated”).

¶21             We now turn to whether the superior court’s error was
harmless. See State v. Ramos, 235 Ariz. 230, 234, ¶ 8, 330 P.3d 987, 991
(App. 2014) (harmless error review used when objections are raised at trial
to a prosecutor’s arguments or comments) (citing State v. Henderson, 210
Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005) (“Reviewing courts consider
alleged trial error under the harmless error standard when a defendant
objects at trial and thereby preserves an issue for appeal.”).

¶22            The State argues that any conceivable error was harmless
because the impeachment was cumulative to other legitimately admitted
evidence that undermined Crom’s credibility, including his prior felony
convictions, his admission to telling detectives “a bunch of lies,” and his
failure to call four other witnesses mentioned on direct-examination. We
disagree.

¶23         First, we note that Hans was a key player in the events
leading to Crom’s arrest, and the State does not suggest otherwise.
According to Crom, Hans drove the car to Matt’s house; initiated contact
with Crom to tell him about his stolen truck; initially possessed the car




                                      8
                            STATE v. CROM
                           Decision of the Court
keys; gave Crom the car keys; directed Crom to the unnamed woman’s
house; told Crom not to speed; and was in the car at the time of the arrest.

¶24           The centrality of Hans’ involvement was also not lost on the
jury, who submitted approximately seventeen questions regarding Hans.
The superior court refused to ask several of these questions, and answers
elicited from others greatly minimized the apparent role of Hans in the
events. For instance, jury question 8 asked why a detective who
interviewed Crom did not ask him about Hans during the interview. The
detective responded that he “honestly [did not] have an answer for that,”
except that he knew “that when detectives had arrested [Crom and Hans],
[Crom] was driving the vehicle and [he] was interested about what
[Crom] was doing driving the vehicle and where he got the car,” and once
Crom “said that he got the car from someone [else], [he] didn’t have any
reason” to ask about Hans because Crom “wasn’t giving a story about
Hans.” The improper adverse inference therefore greatly downplayed the
importance of Hans’ involvement in this case.

¶25          In addition, detectives on the case provided testimony that
was favorable to Crom. For example, one detective testified that unlike
most stolen cars, here there were no signs of forced entry, such as a broken
window, a jammed ignition, hanging wires, or other damage. Further,
police found the actual car key in the ignition at the time of Crom’s arrest,
and Crom had a reasonable explanation for having a jiggle key in his
possession: he intended to use it to try to start his truck.

¶26           Given the significance of Hans’ role in the events leading to
Crom’s arrest and the existence of testimony favorable to Crom, we
cannot say that the improper adverse inference created by the prosecutor
was harmless beyond a reasonable doubt. We therefore reverse Crom’s
conviction for theft of means of transportation and remand for a new trial.

III.   Jury Instructions

¶27           Crom also challenges the constitutionality of the superior
court’s jury instructions on the statutory inference under A.R.S. § 13-
2305(1). Specifically, Crom argues the jury instruction unconstitutionally
shifted the burden of proof to him by forcing him to testify, or by forcing
him to produce other evidence. To avoid these on remand, we address
them now. We review constitutional challenges de novo and construe
statutes, when possible, to uphold their constitutionality. State v.
Hargrave, 225 Ariz. 1, 13, ¶ 42, 234 P.3d 569, 581 (2010).




                                     9
                             STATE v. CROM
                            Decision of the Court
¶28           Consistent with the statute, and as requested by the
prosecutor, the superior court instructed the jury as follows:

              Proof of possession of property recently stolen,
              unless satisfactorily explained, may give rise to
              an inference that the defendant was aware of
              the risk that such property had been stolen or
              in some way participated in its theft.

              You are free to accept or reject this inference as
              triers of fact. You must determine whether the
              facts and circumstances shown by the evidence
              in this case warrant any inference that the law
              permits you to make.

              Even with the inference, the State has the
              burden of proving each and every element of
              the offense of theft of means of transportation
              beyond a reasonable doubt before you can find
              the defendant guilty.

¶29           “There is a strong presumption supporting the
constitutionality of statutes, and the party challenging the validity of a
statute has the burden to establish its invalidity beyond a reasonable
doubt.” State v. Ramsey, 211 Ariz. 529, 536, ¶ 17, 124 P.3d 756, 763 (App.
2005) (quoting State v. Padilla, 169 Ariz. 70, 71, 817 P.2d 15, 16 (App. 1991)).
“When evaluating the constitutionality of an inference, our first task is to
determine whether the inference is mandatory or permissive.” State v.
Cole, 153 Ariz. 86, 89, 734 P.2d 1042, 1045 (App. 1987). “Mandatory
inferences violate the due process clause if they relieve the state of its
burden to prove, beyond a reasonable doubt, every essential element of an
offense.” Id. Instructions creating a permissive inference, however,
ordinarily do not shift the burden of proof because the State still must
convince the jury that the proven predicate facts suggest inferring the
conclusion. Id.

¶30           Here, the jury instruction set forth a permissive inference,
not a mandatory presumption, given the use of the phrase “may give
rise.” See State v. Mohr, 150 Ariz. 564, 567, 724 P.2d 1233, 1236 (App. 1986)
(concluding that “gives rise to the inference” constitutes a mandatory
presumption); State v. Moya, 138 Ariz. 12, 14, 672 P.2d 964, 966 (App. 1983)
(“may determine” is permissive); State v. Earby, 136 Ariz. 246, 247-48, 665
P.2d 590, 591-92 (App. 1983) (“may be inferred” is permissive). The
permissive nature of the instruction is reinforced by the sentences that


                                      10
                             STATE v. CROM
                            Decision of the Court
follow: “You are free to accept or reject this inference as triers of fact. You
must determine whether the facts and circumstances shown by the
evidence in this case warrant any inference that the law permits you to
make.” Thus, because the inference is permissive, we reject Crom’s
argument that the instruction unconstitutionally shifted the burden of
proof to him.

¶31          Finally, Crom argues that the facts of the case did not
support giving the permissive inference instruction. Because we reverse
and remand Crom’s conviction, we need not address this argument.

                              CONCLUSION

¶32          For the foregoing reasons, we reverse Crom’s conviction for
theft of means of transportation and remand for a new trial.




                                  :ama




                                      11
