State v. Grimes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLES T. GRIMES, Appellant.

No. 1 CA-CR 19-0322
FILED 5-14-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-002784-001
The Honorable Kathleen H. Mead, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Thomas Baird
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Defendant Charles Grimes appeals his convictions and
sentences for one count of burglary in the third degree, a class 4 felony; and
two counts of threatening and intimidating, class 6 felonies. Grimes argues
the prosecutor engaged in misconduct by referring to inadmissible
evidence during the trial. For the following reasons, we affirm.

BACKGROUND

¶2 One evening a security guard working at the Mill Cue Club
in Tempe observed a seemingly intoxicated customer (Grimes) walking out
of the employee-only storage closet carrying a case of Red Bull. Because the
bar did not sell bulk items to customers, the security guard confronted
Grimes, who explained that he purchased the case of Red Bull for $500. The
guard directed Grimes to set the case down and called for additional
security to have him removed from the premises.

¶3 When Grimes heard he was being kicked out, he began
making threats to return to the Club with a gun and “his boys,” to shoot the
guard. A scuffle ensued between Grimes and several security guards
outside the club. The guards subdued and restrained Grimes. Police officers
arrived and took Grimes into police custody.

¶4 While Grimes was being booked into jail, Tempe Police
Officer Neff filled out a GMIC [Gang Member Identification Card], based
on his observation of (1) Grimes’ clothing and colors, and (2) his gang-
related tattoos, and identified him as an affiliate of the street gang, the Folk
Nation. Based on his training and experience, Officer Neff noted that
Grimes’ black Oakland Raiders baseball cap was indicia of membership
with the gang because “black is one of the predominate colors” the gang
wears, and because the Raiders are “one of the teams that . . . a lot of
criminal street gangs identify with.” Grimes’ red shirt and red shoes were
indicia of affiliation with a subset of the Folk Nation called the Black
Disciples. Besides the clothing, Officer Neff identified Grimes’ tattoo of the

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number “360,” which represents “360 degrees of knowledge” within the
gang.

¶5 The defense sought to preclude evidence that, in 2008, Grimes
made threats to Phoenix Police Officer Zollars and identified himself as a
gang member. The superior court ruled that evidence of the threats from
2008 would not be admissible because they would be unduly prejudicial;
but the fact that Grimes identified himself as a gang member would be
admissible because it was more probative than prejudicial on the issue of
gang affiliation. See Ariz. R. Evid. 403. When the prosecutor questioned
Officer Zollars about the 2008 incident, he asked:

[The Prosecutor]: And during your contact with the
defendant on January 31, 2008, did the defendant make
statements towards you?

[Zollars]: Yes, he did.

[The Prosecutor]: Okay. Without getting into the substance of
those statements, were his statements very memorable to
you?

[Zollars]: Yes.

[The Prosecutor]: During that contact, did the defendant
make statements in which he invoked the name Gangster
Disciples?

[Zollars]: Yes, he did.

¶6 Shortly thereafter, a juror submitted two questions to the
court: (1) “What was this call about involving the [d]efendant?” and (2)
“Why was this ‘gang’ information given from the [d]efendant to the
officer?”

¶7 After conferring with counsel, the court responded, “We have
a question. The first one I can’t ask for legal reasons. The second one I’m just
going to answer why was the information given to defendant from the
officer? And he has already answered it and said it was a spontaneous
statement.” (Emphasis added.)

¶8 During closing arguments, defense counsel stated:

The only person that came in here and said, yeah, he claimed
to be a gang member was someone that saw him 11 years ago

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and didn’t even write the name of the gang in his report. But
now comes in and says: Oh, yeah, it was Gangster Disciple. I
remember, I remember it was Gangster Disciple and he said
he was going back to Chicago. I didn’t put that in the report,
but I remember.

¶9 Then, in rebuttal closing arguments, the prosecutor
responded:

Defense counsel also mentioned the defendant’s statements
to Officer Zollars. Now for legal reasons, we couldn’t get into
the substance of that but what you were told by the judge and
what Officer Zollars testified to, is it was a memorable
statement. He remembers the defendant invoking Gangster
Disciples and that he was going to return to Chicago.
(Emphasis added.)

Grimes did not object to the prosecutor’s argument.

¶10 The jury convicted Grimes of one count of burglary in the
third degree, a class 4 felony; and two counts of threatening and
intimidating, class 6 felonies; and found that he committed the offenses
while on community supervision release. Grimes timely appealed.

DISCUSSION

¶11 Grimes asserts the prosecutor engaged in misconduct by
referring to excluded evidence in his rebuttal closing argument. Because
Grimes did not object on this basis at trial, we review only for fundamental,
prejudicial error. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19–20 (2005).
Grimes contends it was improper for the prosecutor to tell the jury about
excluded evidence “to make its case more persuasive in closing
arguments.” Grimes argues this statement warrants the reversal of his
conviction.

¶12 Under fundamental-error review, a defendant must first
prove that misconduct occurred. State v. Edmisten, 220 Ariz. 517, 524, ¶ 23,
(App. 2009). Prosecutorial misconduct is not “merely the result of legal
error, negligence, mistake or insignificant impropriety.” Pool v. Super. Crt., 139 Ariz. 98, 108 (1984). Rather, viewed in its entirety, it is “intentional
conduct” that the prosecutor “knows to be improper and prejudicial and
which he pursues for any improper purpose.” Id. at 108–09. Prosecutors
have “wide latitude” in closing argument. State v. Jones, 197 Ariz. 290, 305,
¶ 37 (2000).

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¶13 Grimes has failed to prove that the statement made by the
prosecutor amounted to misconduct. Here, the prosecutor’s statement―
that “for legal reasons, [h]e couldn’t get into the substance” of Grimes’
statements to Officer Zollars―parroted the exact language the superior
court used when answering the relevant juror question. (Emphasis added.)
The statement was made in rebuttal to defense counsel’s remarks in closing
regarding the officer’s testimony that he recalled Grimes self-identifying as
a gang member 11 years prior. The prosecutor’s comment was tethered to
the court’s response to the juror question and did not express or imply
meaning to the precluded statement beyond the scope of what had already
been admitted.

¶14 Accordingly, Grimes has not shown misconduct. See
Edmisten, 220 Ariz. at 524, ¶ 23. To the contrary, the prosecutor omitted
reference to any threat, which the court deemed inadmissible as prejudicial.
Instead, the prosecutor focused on the admissible purpose of that statement
to Officer Zollars―that Grimes previously identified himself as a gang
member.

CONCLUSION

¶15 For the foregoing reasons, we affirm.

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

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