State v. Gilbert

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DOUGLAS JAMES GILBERT, Appellant.

No. 1 CA-CR 22-0038
FILED 12-29-2022

Appeal from the Superior Court in Yavapai County
No. V1300CR201880062
The Honorable Debra R. Phelan, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee

Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant
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MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Peter B. Swann1 joined.

P A T O N, Judge:

¶1 Douglas James Gilbert appeals from his convictions and
sentences for involving or using minors in drug offenses and for sexual
conduct with a minor. He argues the superior court erroneously denied his
motions for mistrial based on prosecutorial error. He also raises evidentiary
challenges to the admission of a witness’s testimony. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to upholding the
verdicts, resolving reasonable inferences against Gilbert. State v. Felix, 237
Ariz. 280, 283, ¶ 2 (App. 2015).

¶3 The victim’s mother, Linda, received “emotional release”
therapy and chiropractic treatment from Gilbert in 2016. Early that
summer, the victim—born in December 1998—told Linda that she had been
studying whether psilocybin mushrooms could help treat the victim’s
ongoing depression. One July evening at a social event, Linda broached the
topic with Gilbert because he had “an extensive background and history in
plant medicine.” He said that he “knew all about that” practice and “would
be happy to help [her] daughter.”

1 Judge Peter B. Swann was a sitting member of this court when the matter
was assigned to this panel of the court. He retired effective November 28,
2022. In accordance with the authority granted by Article 6, Section 3, of
the Arizona Constitution and pursuant to A.R.S. § 12-145, the Chief Justice
of the Arizona Supreme Court has designated Judge Swann as a judge pro
tempore in the Court of Appeals for the purpose of participating in the
resolution of cases assigned to this panel during his term in office and for
the duration of Administrative Order 2022-162.

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¶4 The next month, Gilbert unexpectedly showed up at the
victim’s workplace and introduced himself to her. They discussed
consuming psilocybin mushrooms to treat her depression. After a few
meetings, Gilbert showed the victim psilocybin mushrooms he had been
growing and gave her ”detailed instructions” on how to grow them herself.
He helped her set up mushroom-growing equipment at her house and
began frequently visiting her there.

¶5 Over the next few months, Gilbert provided the victim with
various treatments, including “muscle testing” exercises that involved
ingesting psilocybin mushrooms and discussing her past sexual abuse and
other traumatic experiences. Gilbert’s wife, Kimberly Korba, assisted in the
sessions. The victim bonded with the couple and visited them at least once
a week at their home. Gilbert and Korba soon became the victim’s “main
point of friendship and contact.”

¶6 As the group’s relationship progressed, Gilbert introduced
“uncomfortable” sexual topics into his conversations with the victim. He
asked her if she was sexually attracted to him or Korba. He also offered to
give her a chiropractic back adjustment that involved nudity, which she
declined.

¶7 That November, Gilbert and Korba took the victim on a
camping trip to celebrate her upcoming eighteenth birthday. When they
arrived at the camping site, Gilbert and Korba propositioned her for sex.
Although she resisted their initial advances, the three ultimately engaged
in sexual intercourse one night after consuming psilocybin mushrooms.

¶8 The victim experienced a “severe downward spiral”
following her birthday and eventually told her parents what had happened
on the camping trip. Upon hearing her disclosure, the victim’s father,
Marco, “raced” to Gilbert’s office, confronted Gilbert and Korba about the
accusations, and assaulted Gilbert. Korba called 9-1-1. While investigating
the incident, a deputy asked Gilbert if he or Korba had ever engaged in sex
with the victim, and Gilbert replied that the “only sex was consensual.” The
victim subsequently reported the camping trip events to the police.

¶9 A grand jury indicted Gilbert and Korba for involving or
using minors in drug offenses, a class two felony (count one), and sexual
conduct with a minor, a class six felony (count two). Korba pled guilty to
child abuse with sexual motivation in October 2018 and was sentenced a
few months later. In the factual basis for her guilty plea, she admitted that

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she and the victim “shared psilocybin,” and she “solicited sex and [had]
sex” with the victim.

¶10 At trial, in opening statement, the prosecutor previewed the
State’s evidence, then stated:

We, the [S]tate, have got to prove [Gilbert’s guilt] with
evidence we present. And in proving this case, ladies and
gentlemen, the [S]tate can’t just present evidence to say
maybe it happened, maybe it didn’t or I’m pretty sure he
committed the crime. The [S]tate has to prove beyond a
reasonable doubt and with evidence it produces that the
defendant committed the crimes. The best and easiest
definition of “reasonable doubt” is what you just heard from
[the trial judge], evidence that leaves you firmly convinced.
It’s not a burden of proof that requires evidence that the
crimes were committed beyond all doubt, beyond every
doubt or beyond a shadow of a doubt. It’s beyond a
reasonable doubt.

The [ten] of you have been selected because we believe you are
reasonable people who will look at this evidence reasonably
and rationally. And we do believe, ladies and gentlemen, that
after you hear from the witnesses about what happened in
this case, consider all the evidence relating to the conduct of
this professional medical practitioner in Sedona between
August and November of 2016, including the evidence from
the defendant’s wife – we believe the burden of proof will be
met in this case. (Emphasis added.)

¶11 Gilbert objected on the ground that the prosecutor’s “we
believe” remarks constituted improper vouching. After the superior court
sustained the objection, the prosecutor continued, stating “[w]e believe the
evidence will show that the defendant is guilty beyond a reasonable
doubt.” Gilbert renewed his objection and, outside the jury’s presence,
moved for a mistrial. The prosecutor argued that because he had made “no
reference to a witness,” he had not impermissibly vouched.

¶12 In denying the mistrial motion, the superior court concluded
that the prosecutor had not “placed the prestige of the government behind
its witness” or suggested that “information not presented … supports the
witness’s testimony.” The court also noted that before opening statements
it told the jury that attorneys’ comments are not evidence, and it would

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repeat that instruction before closing arguments. When the jurors returned,
the court informed them that it had overruled the earlier objections.

¶13 The State called Korba in its case-in-chief. She admitted that
she and the victim had shared mushrooms and engaged in sexual conduct
during the camping trip, but she claimed that Gilbert did not participate in
the crimes. She testified that the victim had brought the mushrooms on the
trip, she had not ingested mushrooms since college, Gilbert had never
consumed or grown them, and when Gilbert told the deputy that “the only
sex that was had was consensual, [h]e was referring to [her] and [the
victim].”

¶14 Korba also recounted Marco’s assault on Gilbert. When
Korba called 9-1-1, she ultimately panicked and hung up the phone. The
prosecutor asked her why she panicked, leading to the following exchange:

[Korba]: Because I felt completely ashamed that all of this was
happening, because I felt like it was my fault because I was
the one who did those things with her, so I panicked because
I knew all that was going to come up. You know, I wish I
didn’t, but at the time I was – I was in shock.

[Prosecutor]: It was all your fault?

[Korba]: Yes.

[Prosecutor]: You never told that to police, did you?

¶15 Gilbert objected and requested a bench conference. At the
conference, he argued that the prosecutor’s question infringed on Korba’s
constitutional rights to remain silent and have an attorney. The prosecutor
agreed that Korba had refused to answer questions following her arrest, but
he pointed out that Korba had pleaded guilty and that Gilbert lacked
standing to assert a violation of her rights. The court sustained Gilbert’s
objection, then directed the jury to disregard the objected-to question.
Gilbert later unsuccessfully moved for a mistrial based on the question.

¶16 After Korba testified, the State planned to call Natalie
McGovern, a hypnotherapist who had shared office space with Gilbert.
Gilbert asked the superior court to preclude her testimony on the grounds
that it constituted “cut and dry propensity evidence” under Arizona Rule
of Evidence (“Rule”) 404(b) and was otherwise unduly prejudicial under
Rule 403. The State responded that McGovern would testify to her
knowledge of Gilbert’s interest in, and use of, psilocybin mushrooms,

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which was “vitally relevant” to rebut Korba’s claims to the contrary. The
court allowed the State to elicit testimony from McGovern regarding
Gilbert’s “use of mushrooms or statements about mushrooms or use of
mushrooms,” for the purpose of impeaching Korba’s assertions and “to
show such things as motive, intent, preparation, plan, knowledge, [and
bias]” under Rule 404(b). The court further found that the evidence was
relevant and admissible under Rules 401 through 403.

¶17 At the end of trial, the prosecutor concluded his initial closing
argument by telling the jury, “But we believe—the evidence will show . . .
the defendant is guilty of these two crimes and we would ask you to so
find.” Gilbert moved for a mistrial based on the recurrence of the “we
believe” phrase. Finding the “use of the pronoun ‘we’” did not constitute
vouching or “infect the trial with unfairness,” the court denied his motion.
In reaching its decision, the court considered the isolated nature of the
remarks: “Opening [s]tatement was 45 minutes, approximately, and there
were two sentences in which defendant objected. Closing [a]rgument was
32 minutes. There was one final statement using . . . we.”

¶18 The jury found Gilbert guilty as charged. The superior court
sentenced him to ten years’ imprisonment on count one, followed by a
lifetime-probation term on count two. We have jurisdiction to hear his
timely appeal under Article 6, Section 9, of the Arizona Constitution, and
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. The superior court did not abuse its discretion by denying
Gilbert’s mistrial motions.

¶19 Gilbert argues the superior court incorrectly denied his
mistrial motions. See supra ¶¶ 12, 15, 17. He further contends the
cumulative effect of the prosecutor’s errors deprived him of his right to a
fair trial. Gilbert characterizes his claims as “prosecutorial misconduct” but
does not appear to suggest they implicate the prosecutor’s ethical
culpability; thus, we use the term “prosecutorial error.” In re Martinez, 248
Ariz. 458, 470, ¶ 47 (2020) (“When reviewing the conduct of prosecutors in
the context of ‘prosecutorial misconduct’ claims, courts should differentiate
between ‘error,’ which may not necessarily imply a concurrent ethical rules
violation, and ‘misconduct,’ which may suggest an ethical violation.”).

¶20 “Because the trial court is in the best position to determine the
effect of a prosecutor’s comments on a jury, we will not disturb a trial
court’s denial of a mistrial for prosecutorial [error] in the absence of a clear

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abuse of discretion.” State v. Newell, 212 Ariz. 389, 402, ¶ 61 (2006). To
decide whether prosecutorial error warrants a mistrial, courts examine “(1)
whether the prosecutor’s statements called to the jury’s attention matters it
should not have considered to reach its decision and (2) the probability that
the jurors were in fact influenced by the remarks.” Id. at ¶ 60. “A
declaration of a mistrial is the most dramatic remedy for trial error and
should be granted only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” State v. Leteve, 237 Ariz.
516, 526, ¶ 33 (2015) (citation omitted).

¶21 In considering whether multiple instances of prosecutorial
error cumulatively resulted in an unfair trial, we first inspect each asserted
instance individually, reviewing objected-to instances for harmless error
and applying fundamental-error review to unpreserved claims. State v.
Hulsey, 243 Ariz. 367, 388, ¶ 88 (2018). After so doing, we assess whether
the total impact of any errors we find rendered the trial unfair. Id.

A. The superior court reasonably concluded that the prosecutor’s “we
believe” statements were not improper vouching because they did
not relate to witnesses.

¶22 Gilbert contends he was entitled to a mistrial after the
prosecutor allegedly vouched for the strength of the State’s evidence by
using “we believe” during opening statement and closing argument.
Arizona courts recognize two forms of prosecutorial vouching, when the
prosecutor (1) “places the prestige of the government behind its witness”
or (2) suggests to the jury that information not contained in the record
supports its witness’s testimony. State v. Acuna Valenzuela, 245 Ariz. 197,
217, ¶ 75 (2018) (quotation omitted). The first type of vouching “involves
personal assurances of a witness’s veracity”; the second type involves
“prosecutorial remarks that bolster a witness’s credibility by reference to
matters outside the record.” Id. (citation omitted). Prosecutorial error
encompasses vouching. See State v. Salcido, 140 Ariz. 342, 344 (App. 1984)
(“In criminal cases, a prosecutor has a special obligation to avoid ‘improper
suggestions, insinuations, and[] especially[] assertions of personal
knowledge.’”) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)
(modification in original)).

¶23 Gilbert objects to the prosecutor’s specific statements during
opening that the jury was reasonable and the State’s burden of proof would
be met during the trial. Similarly, during closing argument, that the
evidence would show the defendant’s guilt. The superior court reasonably
concluded these statements neither placed the prestige of the government

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behind the State’s witnesses nor suggested that information not presented
to the jury supported any witness’s testimony and, consequently, that no
improper vouching occurred. Instead, the challenged comments in
opening statement were tethered to the prosecutor’s preceding forecast of
the trial evidence and the State’s burden of proof. The same goes for the
prosecutor’s fleeting—and instantly self-corrected—comment in closing
argument, which was directly linked to his assertion that the trial evidence
proved Gilbert’s guilt. Akin to our supreme court’s reasoning in Acuna
Valenzuela, the absence of “I” or “me” in the complained-of remarks
supports a conclusion that the prosecutor was not injecting personal
opinions into the trial. See Acuna Valenzuela, 245 Ariz. at 218, ¶ 84.
Furthermore, his comments stand in marked contrast to cases where our
supreme court has found improper vouching. See, e.g., State v. Vincent, 159
Ariz. 418, 423 (1989) (finding the prosecutor vouched in arguing “the State
wouldn’t have put [the witness] on the witness stand if [it] didn’t believe
every word out of his mouth”); State v. King, 110 Ariz. 36, 42–43 (1973)
(finding the prosecutor vouched in arguing “I don’t think [the witness] ever
lied to you . . . . The State believes she was telling the truth”). Even
assuming the prosecutor should have refrained from saying “we believe,”
the superior court’s instructions that attorneys’ comments are not evidence
would have alleviated any potential vouching error. See State v. Payne, 233
Ariz. 484, 512, ¶ 109 (2013) (“When improper vouching occurs, the trial
court can cure the error by instructing the jury not to consider attorneys’
arguments as evidence.”). Accordingly, because the superior court was in
the best position to determine what effect the State’s remarks might have
had on the jury, we find no abuse of discretion in its refusal to grant a
mistrial.

B. The superior court did not err by denying Gilbert’s mistrial motion
over an alleged violation of witness Korba’s right to remain silent.

¶24 Gilbert also argues the superior court should have granted his
mistrial motion based on the prosecutor’s allegedly impermissible
comment on Korba’s exercising her right to remain silent. Prosecutors are
constitutionally barred from commenting, directly or indirectly, on a
defendant’s choice not to testify. State v. Rutledge, 205 Ariz. 7, 12, ¶ 26
(2003). “Whether a prosecutor’s comment is improper depends upon the
context in which it was made and whether the jury would naturally and
necessarily perceive it to be a comment on the defendant’s failure to testify.”
Id. at 13, ¶ 33. “We must look to the entire record and to the totality of the
circumstances.” Id.

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¶25 Gilbert’s argument is meritless for several reasons. First, he
makes no attempt to explain how any comment on Korba’s alleged exercise
of the right to pretrial silence would “naturally and necessarily” call the
jury’s attention to his decision not to testify. Id.; see State v. Moody, 208 Ariz.
424, 452, ¶ 101 n.9 (2004) (“Merely mentioning an argument is not
enough.”). Nor does he cite any legal authority supporting the proposition
that due process forbids comments on a witness’s silence. See Moody, 208
Ariz. at 452, ¶ 101 n.9 (“Failure to argue a claim usually constitutes
abandonment and waiver of that claim.”) (citation omitted).

¶26 Second, when Korba pleaded guilty in the case years earlier,
she expressly waived constitutional rights, including her privilege against
self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 243 (1969); State v.
Allen, 223 Ariz. 125, 127, ¶ 13 (2009). But even if the prosecutor’s question
implicated a constitutional right that survived Korba’s guilty plea, it
belonged to her alone; Gilbert cannot vicariously assert it. See Rakas v.
Illinois, 439 U.S. 128, 140 n.8 (1978); State v. McElyea, 130 Ariz. 185, 187–88
(1981).

¶27 Third, read in context, the challenged question continued a
line of inquiry into Marco’s assault, which occurred more than a year before
Korba’s arrest on the instant charges. The relevant protections of the Fifth
Amendment do not apply in such a setting. See State v. VanWinkle, 229 Ariz.
233, 236–37, ¶¶ 11–15 (2012) (explaining the right to pretrial silence does
not attach in a pre-custody encounter, even where police questioning is
involved). Nor did she remain silent during the assault incident. Thus, the
question was not improper, and the superior court would have been
justified in overruling the initial objection to it.

¶28 Finally, the superior court’s curative instruction sufficiently
cured any possible prejudice. See State v. Almaguer, 232 Ariz. 190, 199, ¶ 29
(App. 2013). Accordingly, we find no error, prosecutorial or otherwise, in
the cited instance.

C. Because there was no error, there was no cumulative prosecutorial
error.

¶29 Gilbert asserts the alleged prosecutorial errors cumulatively
deprived him of a fair trial. Having concluded that no error exists in any of
the cited instances, his cumulative-effect argument necessarily fails. See
State v. Bocharski, 218 Ariz. 476, 492, ¶ 75 (2008) (“Absent any finding of
[prosecutorial error], there can be no cumulative effect of [error] sufficient
to permeate the entire atmosphere of the trial with unfairness.”).

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II. The superior court did not err by admitting McGovern’s
testimony.

¶30 Gilbert protests the admission of McGovern’s testimony on
two evidentiary grounds, asserting the superior court (1) improperly
admitted “other-acts evidence without making a specific finding for
admissibility under Rule 404(c)” and (2) violated State v. LaBarre, 115 Ariz.
444 (App. 1977), by allowing the State to call McGovern “for purposes of
impeaching [its] own witness.” We review evidentiary rulings for an abuse
of discretion. Acuna Valenzuela, 245 Ariz. at 207, ¶ 11.

¶31 We initially address Gilbert’s claims together because they
succumb to the same fatal flaw: he did not challenge the superior court’s
decision to admit McGovern’s testimony under Rule 404(b), see supra ¶ 16,
and has waived any claim of error on that issue. State v. Carver, 160 Ariz.
167, 175 (1989); see State v. Aleman, 210 Ariz. 232, 236, ¶¶ 8–10 (App. 2005)
(failing to address alternative grounds for a ruling may result in waiver of
the issue altogether). Given that the court’s Rule 404(b) ruling
independently supported the admission of McGovern’s testimony, his
failure to confront it disposes of his arguments on appeal. See State v.
Wassenaar, 215 Ariz. 565, 577, ¶ 50 (App. 2007) (The court may affirm “on
any basis supported by the record.”); State v. Inzunza, 234 Ariz. 78, 86, ¶ 28
(App. 2014) (“[A]n appellant always carries the burden of demonstrating
an error that entitles him to relief.”).

¶32 Moreover, Gilbert’s arguments lack specificity, which hinders
our review. He does not identify any statements that he alleges should have
been excluded, nor does he provide record citations telling us where we
may find them. See Ariz. R. Crim. P. 31.10(a)(7) (opening briefs must
contain argument with supporting citations to the record and legal
authorities); State v. Thompson, 252 Ariz. 279, 295–96, ¶ 57 (2022) (Appellant
waived a claim by failing to develop argument and sufficiently cite the
record.). He does not explain why any such statements would implicate
Rule 404(c) or constitute improper impeachment. Under these
circumstances, we have no basis to disturb the superior court’s ruling.

¶33 Waiver aside, Gilbert’s claims lack merit. Although he
correctly points out that Rule 404(c)(1)(D) directs courts to make certain
findings before admitting other-act evidence under Rule 404(c), that
screening requirement was simply not triggered here, given that the State
did not introduce, nor did the superior court admit, any of McGovern’s
testimony under that rule. See State v. Aguilar, 209 Ariz. 40, 49, ¶ 30 (2004)
(listing the “three determinations” courts must make before admitting

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evidence under Rule 404(c) “to show that the defendant had a character trait
giving rise to an aberrant sexual propensity to commit the charged sexual
offense”).

¶34 Even if Gilbert identified any testimony implicating Rule
404(c), the failure to make express findings does not require reversal. See
id. at 50, ¶ 37. And insofar as Gilbert suggests Rule 404(c) was the sole
mechanism for introducing McGovern’s testimony, he is incorrect. See State
v. Rhodes, 219 Ariz. 476, 479–80, ¶ 14 (App. 2008) (explaining Rule 404(c)
does not supersede the remainder of Rule 404 in sexual-misconduct cases
but merely supplements it); see also State v. Scott, 243 Ariz. 183, 187–88, ¶¶
13–16 (App. 2017) (upholding the admission of evidence of a prior sexual
assault under Rule 404(b) in a sexual-assault prosecution).

¶35 Nor does Labarre provide Gilbert relief. There, we explained
that traditionally, “evidence of prior out-of-court statements by a party’s
own witness” was admissible for impeachment purposes “only when (a)
the witness’s testimony had been prejudicial to the party calling him and
(b) the nature of the testimony actually given came as a surprise.” LaBarre,
115 Ariz. at 448–49. Here, the State did not attempt to impeach Korba with
her prior inconsistent statements, and Rule 607—which became effective a
few months after we issued Labarre—eliminated the prejudice and surprise
requirements for impeaching a party’s own witness. State v. Acree, 121 Ariz.
94, 96 (1978). Thus, Labarre is inapposite. Because Gilbert limits his
challenge solely to his Labarre-based argument, we do not reach whether
the superior court properly admitted any of McGovern’s statements for
impeachment purposes.

CONCLUSION

¶36 We affirm.

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

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