                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                 v.

                      MAVERICK KEMP GRAY,
                           Appellant.

                      No. 2 CA-CR 2014-0436
                       Filed August 13, 2015


          Appeal from the Superior Court in Pima County
                       No. CR20132758001
                 The Honorable Scott Rash, Judge

                           AFFIRMED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Chris DeRose, Assistant Solicitor General, Phoenix
Counsel for Appellee

Steven R. Sonenberg, Interim Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
                         STATE v. GRAY
                        Opinion of the Court



                                OPINION

Presiding Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom and Judge Espinosa concurred.


M I L L E R, Presiding Judge:

¶1           Maverick Gray was convicted after a jury trial of one
count of sale of narcotics, cocaine base, and sentenced to a 9.25-year
prison term. On appeal, he argues the trial court abused its
discretion by refusing his request for a jury instruction on
entrapment. For the reasons that follow, Gray’s conviction and
sentence are affirmed.

                Factual and Procedural Background

¶2            We view the facts in the light most favorable to the
party requesting the jury instruction. See State v. King, 225 Ariz. 87,
¶ 13, 235 P.3d 240, 243 (2010). In June 2013, Tucson Police
Department Officer J.D. was working undercover, posing as a
narcotics buyer. Around 11:30 p.m., he saw Gray seated at a bus
stop although, the officer believed, bus service had ended for the
evening. He pulled his car to the curb, ten to fifteen feet in front of
the bus stop, and exchanged looks with Gray. J.D. then asked Gray,
“Hey, can you help me out?” Gray approached the car and
responded, “What kind of help do you need?” J.D. replied that he
was trying to get some “hard,” a slang term used for crack cocaine.
Gray asked what was in it for him. Gray then negotiated a ten-
dollar fee in exchange for acquiring twenty dollars of crack cocaine.

¶3            Gray got in J.D.’s vehicle and directed him four miles
through the city to an apartment complex. When they arrived J.D.
gave Gray a twenty-dollar bill. Gray left the vehicle and headed to
an unknown location. He returned about ten minutes later with a
crack rock. J.D. gave Gray ten dollars and communicated to other
officers that the deal had been completed. Gray was arrested shortly
thereafter.

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                          STATE v. GRAY
                         Opinion of the Court

¶4          Over Gray’s objection, the trial court admitted a
recording of his conversation with J.D. Based on the statements he
made to the officer, Gray requested an instruction on entrapment
arguing he admitted the elements of the crime in the recording. The
court denied the request, concluding Gray had not admitted to the
substantive elements of the underlying offense; therefore, the
admission requirement for an entrapment defense had not been met.
Gray was convicted and sentenced as described above. This appeal
followed.

                              Discussion

¶5             Gray argues the jury instruction for entrapment was
warranted because he had fulfilled the admission requirement under
Arizona’s statutory entrapment defense either by simply not
challenging the state’s evidence or through Gray’s statements to J.D.
during the sale. We review a trial court’s denial of a requested
instruction for an abuse of discretion. State v. Musgrove, 223 Ariz.
164, ¶ 5, 221 P.3d 43, 46 (App. 2009). We will not reverse the court’s
ruling absent a clear abuse of that discretion and prejudice to the
defendant. State v. Garfield, 208 Ariz. 275, ¶ 11, 92 P.3d 905, 908
(App. 2004). “An abuse of discretion includes an error of law.” State
v. Rubiano, 214 Ariz. 184, ¶ 5, 150 P.3d 271, 272 (App. 2007). Such
error includes statutory interpretation, which we review de novo.
State v. Villegas, 227 Ariz. 344, ¶ 2, 258 P.3d 162, 163 (App. 2011).

¶6           The elements of an entrapment defense are codified in
A.R.S. § 13-206, which provides in relevant part that a defendant
must “admit by [his] testimony or other evidence the substantial
elements of the offense charged.” “Entrapment is a question for the
jury unless there is no evidence to support the defense . . . .” State v.
Gessler, 142 Ariz. 379, 382, 690 P.2d 98, 101 (App. 1984).

¶7           We first address Gray’s argument that his decision to
not “challenge” the state’s evidence during trial was sufficient to
justify an entrapment instruction. Gray’s silence at trial is not an
admission to all elements of the offense. Our supreme court has
held that an admission “must be made in some affirmative manner
and cannot be assumed from a defendant’s silence.” State v. Nilsen,
134 Ariz. 431, 432, 657 P.2d 419, 420 (1983). Nilsen’s holding was


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                         STATE v. GRAY
                        Opinion of the Court

recently addressed, albeit in dicta, in State v. Williamson, 236 Ariz.
550, ¶¶ 50-51, 343 P.3d 1, 15 (App. 2015) (trial court did not abuse
discretion in requiring defendant to admit elements of offenses by
stipulation in order to assert entrapment defense).           Without
reference to Williamson, Gray argues Nilsen is no longer controlling
because it predates changes directed by the legislature when it
codified the common law entrapment defense. Although Williamson
arguably controls resolution of Gray’s contention against him, we
examine the merits of his argument, which were not presented in
Williamson.

¶8            Gray’s argument impliedly contends the statute’s
authorization of admission by “other evidence” vitiates Nilsen
because the defense is no longer limited to a formal admission. But
the common law rule was not as narrow as Gray implies. It required
that a defendant “must admit the substantial elements of the crime
and one who denies knowledge of the crime may not raise the
defense of entrapment.” State v. McKinney, 108 Ariz. 436, 439, 501
P.2d 378, 381 (1972). Nilsen outlined several methods by which a
defendant could satisfy the admission requirement, including
testifying, stipulating, or having an admission read into evidence.
134 Ariz. at 432, 657 P.2d at 420. Stipulating or having the admission
read into evidence, as suggested by Nilsen, would constitute “other
evidence” under the statute. Williamson, 236 Ariz. 550, ¶¶ 50-51, 343
P.3d at 15. Moreover, nothing in § 13-206(A) suggests that a
defendant’s silence against the state’s evidence constitutes “other
evidence.” Therefore, given the recent holding in Williamson and the
similarity of the codified statute to the prior common law rule, we
conclude Nilsen is still controlling law, and a defendant is required
to affirmatively admit the elements of the offense.

¶9            We also note the facts of Nilsen are analogous to this
case. Unlike Gray, Nilsen did attempt to stipulate his admission, but
the state refused the proffered stipulation. 134 Ariz. at 432, 657 P.2d
at 420. However, like Gray, once Nilsen’s attempt at admission had
failed, he “sat mute and made no active admission of the elements of
the offense.” Id. Here, after defense counsel had failed to convince
the trial court that statements from the audio recording constituted




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                          STATE v. GRAY
                         Opinion of the Court

an admission under the statute, Gray did not avail himself of
Nilsen’s alternatives to testimony.

¶10          Gray also argues the statements from the audio
recording and its transcript constitute “other evidence” as required
by the entrapment defense statute. Gray asserts § 13-206(A) “allows
for admission-by-implication,” relying again on the argument that
the statute confers some new benefit upon the defendant. On the
contrary, Williamson and Nilsen suggest the admission must be more
than implied from the existing evidence; rather, it must be
affirmatively admitted.

¶11           But even if the statements from the audio recording
could constitute “other evidence,” Gray’s actual statements there do
not amount to an admission of the substantive elements of the
offense. § 13-206(A). Gray highlights statements in the recording
where he said to J.D., “I’m a good person,” and “I don’t usually do
this.” No facts support the contention that when Gray said “I don’t
usually do this,” while riding in the undercover officer’s vehicle on
way to the buy and directly after the buy, he meant “this” to
constitute the elements of the crime for which he had been
charged—unlawful sale of narcotics under A.R.S. § 13-3408(A)(7).1
Moreover, an admission must be complete because “[r]equiring a
trial court to entertain an entrapment defense when the defendant
has not admitted all elements of the crime does not serve the cause
of criminal justice.” State v. Soule, 168 Ariz. 134, 137, 811 P.2d 1071,
1074 (1991). None of Gray’s statements suggests a complete
admission.

¶12          Finally, the purpose behind the Arizona rule requiring
an explicit admission is to avoid jury confusion through inconsistent
defenses. Soule, 168 Ariz. at 137, 811 P.2d at 1074. Here, a number of
factors could contribute to jury confusion about the defense’s

      1Nor   did Gray know he was speaking to an officer or being
recorded at the time. Arguably, if a defendant were to admit as
evidence a prior confession of the crime to an officer during a formal
interrogation, such a confession might meet the requirements of the
statute, but that is not the case before us.


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                        STATE v. GRAY
                       Opinion of the Court

posture. First, Gray, to the extent his statement that he does not
“usually do this” could be interpreted as an admission, refused to
admit the charged offense at trial. Next, defense counsel cross-
examined officer J.D. on Gray’s intoxication, which could only create
doubts about the validity of an admission because intoxication is not
a defense to a criminal offense. A.R.S § 13-503. The tentative nature
of the admission and the testimony elicited during cross-
examination could likely produce the inconsistent defense our
supreme court sought to avoid in requiring an affirmative admission
to the underlying offense for an entrapment defense. We conclude
the trial court did not abuse its discretion by denying a jury
instruction on the entrapment defense.

                            Disposition

¶13          For the reasons stated above, Gray’s conviction and
sentence are affirmed.




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