State v. Piper

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CLINT RAY PIPER, Appellant.

No. 1 CA-CR 23-0034
FILED 11-14-2023

Appeal from the Superior Court in Yavapai County
No. V1300CR202180786
The Honorable John David Napper, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

C. Kenneth Ray II, P.L.L.C., Prescott
By C. Kenneth Ray, II
Counsel for Appellant
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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Michael S. Catlett joined.

C R U Z, Judge:

¶1 Clint Ray Piper appeals his convictions and sentences for two
counts of aggravated assault, four counts of disorderly conduct, and one
count of threatening or intimidating, a domestic violence offense. For the
following reasons, we vacate Piper’s convictions and sentences for two of
the disorderly conduct counts and affirm his convictions and sentences for
the remaining counts.

FACTUAL AND PROCEDURAL HISTORY

¶2 One evening in December 2021, Piper, his girlfriend, C.W.,
and his roommate, B.G., were socializing at Piper’s home in Cottonwood
after an afternoon of drinking. Piper saw C.W. and B.G. having sex outside
while he was in the house. Piper took a swing at B.G. and yelled at him.
C.W. went inside, and Piper pushed her down, causing her to hit her head
on a dresser in a bedroom. He threw her onto a bed and started choking
her. When B.G. entered the bedroom, Piper released C.W.’s throat and left
the room after stating he was getting a gun. Piper returned with a handgun.

¶3 C.W. left the bedroom, and Piper threw her on the ground and
stomped on her knee. He had a gun in his hand. Piper told C.W. he had
“[taken] care of B.G,” called her a whore, and pointed the gun at her face.
C.W. fled the house.

¶4 Cottonwood police were dispatched to the area near Piper’s
home after receiving reports of shots fired. While parked in a parking lot,
officers were approached by C.W., who was frantic, frightened, and
disheveled. After interviewing C.W. at the police station, officers became
concerned about B.G.’s safety.

¶5 Five officers responded to Piper’s home. They knocked on the
front door, announced themselves, and told Piper to come outside. Piper
eventually opened the front door and shouted expletives at the officers
before slamming the door shut. Shortly thereafter, officers heard a shotgun
rack and saw the front door open. Piper was holding a shotgun. He pointed

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it to where Officers Leedham and Laube had been standing, and then swept
the gun in Officer Olofson’s direction. When officers ordered Piper to drop
the weapon, he cursed at them and went back inside. About forty-five
minutes after the police arrived at Piper’s home, he finally came out
unarmed but ignored their commands that he stop walking. An officer shot
Piper with beanbag rounds and arrested him.

¶6 A grand jury indicted Piper for five counts of aggravated
assault (counts 1-3 Officers Leedham, Laube, and Olofson, respectively,
count 5—C.W., count 6—B.G.), one count of discharge of a firearm at a
structure (count 4), five counts of disorderly conduct (count 7—C.W., count
8—B.G., count 9—Officer Leedham, count 10—Officer Laube, count 11—
Officer Olofson), one count of threatening or intimidating (count 12—
C.W.), and one count of assault (count 13—C.W.).

¶7 During trial, the State moved to dismiss both counts
pertaining to B.G. (counts 6 and 8), and the superior court dismissed those
counts. At the close of the State’s evidence, Piper moved to dismiss the
remaining counts pursuant to Arizona Rule of Criminal Procedure (“Rule”)
20. After argument, the superior court dismissed count 3.

¶8 The jury found Piper not guilty of counts 4, 5, and 13 but
found him guilty of the remaining counts. The superior court sentenced
Piper to 10.5 years in prison for counts 1 and 2, to run concurrently. It
sentenced him to 2.25 years in prison for count 11, to run concurrently with
counts 1 and 2. The court sentenced Piper to 2.25 years in prison for count
7, to run consecutively to counts 1, 2, and 11. It sentenced him to 2.25 years
in prison for counts 9 and 10, to run concurrently with count 7. Finally, the
court sentenced Piper to 64 days in jail with credit for 64 days served for
count 12.

¶9 Piper timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A), 13-4031, and
-4033(A).

DISCUSSION

I. Double Jeopardy

¶10 The State concedes, and we agree, that counts 9 and 10 should
be vacated because they are lesser included offenses of counts 1 and 2.
Piper did not raise this issue below. Accordingly, we review for
fundamental error. State v. Robinson, 253 Ariz. 121, 142, ¶ 64 (2022).

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¶11 For count 1, Piper was convicted of aggravated assault for
intentionally placing Officer Leedham in reasonable apprehension of
imminent physical injury with a deadly weapon. For count 9, he was
convicted of disorderly conduct for knowingly or intentionally disturbing
Officer Leedham’s peace by recklessly handling, displaying, or discharging
a deadly weapon. For count 2, Piper was convicted of aggravated assault
for intentionally placing Officer Laube in reasonable apprehension of
imminent physical injury with a deadly weapon. For count 10, he was
convicted of disorderly conduct for knowingly or intentionally disturbing
Officer Laube’s peace by recklessly handling, displaying, or discharging a
deadly weapon.

¶12 Disorderly conduct by recklessly displaying or handling a
firearm is a lesser included offense of aggravated assault by intentionally
placing the victim in reasonable apprehension of imminent physical injury
using a deadly weapon. State v. Erivez, 236 Ariz. 472, 474-75, ¶¶ 6, 15 (App.
2015). Convictions for both a greater and lesser offense violate double
jeopardy principles and constitute fundamental error. State v. McGill, 213
Ariz. 147, 153, ¶ 21 (2006). We therefore vacate Piper’s convictions and
sentences for counts 9 and 10. See State v. Chabolla-Hinojosa, 192 Ariz. 360,
365, ¶¶ 21-22 (App. 1998).

II. Rule 20 Motion

¶13 Piper argues his convictions for counts 9, 10, and 11 should be
vacated because the superior court erroneously denied his Rule 20 motion.
See Rule 20(a)(1) (“After the close of evidence on either side, and on motion
or on its own, the court must enter a judgment of acquittal on any offense
charged in an indictment, information, or complaint if there is no
substantial evidence to support a conviction.”). As noted above, we agree
that counts 9 and 10 should be vacated, thus, his argument is moot as to
those convictions.

¶14 For count 11, Piper was convicted of disorderly conduct for
knowingly or intentionally disturbing Officer Olofson’s peace by recklessly
handling, displaying, or discharging a deadly weapon. See A.R.S. § 13-
2904(A)(6). According to Piper, there was insufficient evidence to show that
he knowingly or intentionally disturbed the peace or quiet of Officer
Olofson because “dealing with unruly and misbehaving individuals in the
community” was part of his job as a law enforcement officer.

¶15 We review the denial of a Rule 20 motion de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). Substantial evidence is “proof that

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reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” Id. at ¶ 16
(citation and internal quotation marks omitted). “When reasonable minds
may differ on inferences drawn from the facts, the case must be submitted
to the jury, and the trial judge has no discretion to enter a judgment of
acquittal.” State v. Lee, 189 Ariz. 590, 603 (1997). We view the facts in the
light most favorable to sustaining the verdicts and resolve all conflicts in
the evidence against the defendant. State v. Payne, 233 Ariz. 484, 509, ¶ 93
(2013); State v. Bustamante, 229 Ariz. 256, 258, ¶ 5 (App. 2012). “[I]n
reviewing the sufficiency of the evidence, we do not distinguish
circumstantial from direct evidence.” State v. Borquez, 232 Ariz. 484, 487,
¶ 11 (App. 2013).

¶16 Substantial evidence supports the jury’s verdict. The
evidence showed that when the officers instructed Piper to come outside,
he refused to do so. Instead, Piper, who was “angry and upset,” swore at
the officers, racked a shotgun and pointed it out the front door, sweeping it
in Officer Olofson’s direction. Officer Olofson testified that he was
“worried” Piper would try to kill him or Officers Leedham and Laube.
Piper cites no relevant authority for his argument that a law enforcement
officer cannot be the victim of disorderly conduct, and we are not aware of
any such authority. Viewing the evidence in the light most favorable to the
State, a rational juror could have found the essential elements of disorderly
conduct beyond a reasonable doubt. See West, 226 Ariz. at 562, ¶ 15.

¶17 Because substantial evidence reasonably supported the
conclusion that Piper committed disorderly conduct, the superior court
properly denied his Rule 20 motion.

III. Jury Question and Instruction

¶18 Piper next argues the superior court violated his right to a fair
trial when it instructed the jury in response to a jury question inquiring
whether Officer Olofson had a prior contact with Piper. He contends the
court, the prosecutor, and defense counsel all “agreed to mislead and
deceive the [j]ury,” and the court erred by failing to sua sponte declare a
mistrial.

¶19 Because Piper did not object to the superior court’s proposed
instruction in response to the jury question, we review for fundamental
error. See Robinson, 253 Ariz. at 142, ¶ 64. “To prevail under this standard
of review, a defendant must establish both that fundamental error exists
and that the error . . . caused him prejudice.” State v. Robles, 213 Ariz. 268,

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272, ¶ 12 (App. 2006) (citation omitted). “A defendant establishes
fundamental error by showing that (1) the error went to the foundation of
the case, (2) the error took from the defendant a right essential to his
defense, or (3) the error was so egregious that he could not possibly have
received a fair trial.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).
“Prejudice is a fact-intensive inquiry, the outcome of which will depend . . .
upon the type of error that occurred and the facts of a particular case.” State
v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (citation and internal
quotation marks omitted). A defendant “must affirmatively prove
prejudice and may not rely upon speculation to carry his burden.” Id.
(citation and internal quotation marks omitted).

¶20 During his testimony, Officer Olofson testified that he was
concerned about his own safety as well as that of his partners when they
contacted Piper at his home, in part because the officers “already had, you
know, prior knowledge that there may have been an incident before.”

¶21 After Officer Olofson finished testifying, a juror submitted a
question asking, “What did he mean by ‘previous incident’ when
discussing when defendant came out door with gun [sic]? Did he have
prior contact with defendant prior to 12-19-21[?].”

¶22 The court discussed the question with counsel, and explained
the court was “unclear . . . whether there was a previous incident with
[Piper] and the officers or whether or not they were talking about [C.W.].”
The court suggested it would not ask Officer Olofson the juror’s question
and instead would instruct the jury that the “previous incident” was the
incident involving C.W. Both sides agreed with this approach, and the
court excused Officer Olofson without asking the question. The court then
instructed the jury:

Ladies and gentlemen, the reason why there’s a stipulation on
the answer to this question we have had two officers talk
about a previous incident. I had the same confusion that . . .
the jury had. The testimony about a previous incident this
officer testified to on one and another officer testified to it they
were both talking about the incident with [C.W.] though that
was earlier that night. That is the previous incident they were
referring to.

¶23 The State agrees that the court’s instruction was inaccurate
with regard to Officer Francis’ testimony because “[t]hat testimony
indicates officers had responded to Piper’s home ‘on a different call’ which

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would indicate a different date.” Officer Francis, who testified before
Officer Olofson, testified that he was familiar with Piper’s residence
because he “had actually previously dealt with Mr. Piper on a different call.
So we used a similar approach that we had on that call to approaching this
one.” Piper did not object to Officer Francis’ testimony and the jury did not
ask Officer Francis any questions.

¶24 Even if the superior court erred by giving the instruction,
Piper cannot establish that the error was fundamental, prejudicial error. We
will presume the jury followed the court’s instructions. State v. Prince, 226
Ariz. 516, 537, ¶ 80 (2011). Nothing in the record indicates the jurors failed
to follow the court’s instruction or improperly considered evidence that
Piper had some sort of unspecified contact with law enforcement in an
unrelated matter. And, although the instruction was not entirely accurate,
it benefited Piper, who later testified he had no previous issues with law
enforcement “[p]rior to that day.” Piper has therefore failed to establish
that fundamental, prejudicial error occurred.1

IV. Prosecutorial Error2

¶25 Piper next argues the prosecutor engaged in repeated
instances of misconduct that deprived him of a fair trial. “[W]e review
objected-to claims for harmless error and unobjected-to claims for
fundamental error.” Robinson, 253 Ariz. at 142, ¶ 64 (citation and internal
quotation marks omitted). We will reverse a conviction due to
prosecutorial error only if (1) error exists; and (2) there is a reasonable
likelihood that the error could have affected the jury’s verdict, thereby
denying the defendant a fair trial. Id. (citation omitted). “[W]e review each
alleged incident individually for error, after which we decide whether the
cumulative effect of any errors we find so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Id. at 143, ¶ 64
(citation and internal quotation marks omitted).

1 Without providing any additional argument, Piper claims the
prosecutor committed prosecutorial error by stipulating to the court’s
approach to the juror’s question. We find no fundamental error.

2 Piper does not argue, and we do not separately determine in this
appeal, whether any ethical violation has occurred. See In re Martinez, 248
Ariz. 458, 469-70, ¶¶ 42-47 (2020). We therefore refer to Piper’s alleged
claims of prosecutorial misconduct as prosecutorial error. See id.

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¶26 Piper first claims the prosecutor erred by misstating the law
regarding the presumption of innocence during the prosecutor’s opening
statement. During his opening statement, the prosecutor stated:

And the second thing you need to presume is that the
defendant is innocent. Somebody said at the outset, well, hey,
we’re all here sitting around; he must have done something.
What you’re supposed to do is presume that the defendant is
innocent; that no evidence has been presented against him.
You maintain that presumption of innocence throughout the
trial so that you can maintain objectivity in evaluating the
evidence you hear.

Once the evidence is presented though, ladies and
gentlemen, and we’re done talking up here, the presumption
of innocence disappears and it’s your duty to go back into the
room where you deliberate and . . .

Defense counsel objected, and after a sidebar discussion, the court
sustained the objection and told the prosecutor to rephrase his statement.
The prosecutor then stated:

The point being made, at the conclusion, ladies and
gentlemen, when you evaluate the evidence collectively,
consider the credibility of the witnesses, the body cams and
all the other evidence, we believe the evidence will show and
firmly convince you that the defendant is guilty of the charges
in this case. Thank you.

Defense counsel then began his opening statement and told the jury:

Ladies and gentlemen . . . I want to make sure it is absolutely
clear to you what the presumption of innocence means. That
means up until the moment when you’re in the jury room and
you’re deliberating and you are deciding the facts, up until
you believe the state has proven each and every element of
each and every charge beyond a reasonable doubt, Mr. Piper
is presumed innocent. It is their burden to overcome that
presumption and overcome it beyond a reasonable doubt.

¶27 Any error in the prosecutor’s initial statement did not deny
Piper a fair trial. After Piper’s objection was sustained, the prosecutor
clarified that he believed the totality of the evidence would establish Piper’s
guilt. Both the preliminary and final jury instructions emphasized that

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Piper was presumed innocent and the State had the burden of proving the
charges against him beyond a reasonable doubt. And, during closing
argument, the prosecutor unequivocally stated that Piper was presumed
innocent, and it was the State’s burden to prove the charges beyond a
reasonable doubt, consistent with the jury instructions.

¶28 Piper next argues the prosecutor erred by asking C.W. a
question about whether she and Piper had an open relationship without
having a good-faith basis for the question. During C.W.’s testimony, the
prosecutor asked, “When you were in a relationship with Mr. Piper, did the
two of you ever discuss what is commonly referred to as a quote/unquote,
open relationship?” Defense counsel objected on relevance grounds, and
the court overruled the objection. The prosecutor repeated the question,
and C.W. testified that she and Piper had not discussed an open
relationship.

¶29 Because Piper failed to object on prosecutorial error grounds,
we review for fundamental error. See State v. Rutledge, 205 Ariz. 7, 13, ¶ 30
(2003). We find no error, fundamental or otherwise. The fact that C.W.
denied having a discussion with Piper about having an open relationship
does not mean the prosecutor did not have a good-faith basis for asking the
question.3 Moreover, Piper did not ask the prosecutor to provide a good-
faith basis for the question. See State v. McKelton, 70 N.E.3d 508, 568, ¶ 258
(Ohio 2016) (when defendant failed to request prosecutor to supply a good-
faith basis for his questions appellate court would presume that a good-
faith basis for the questions existed). And, as the court instructed the jury,
attorneys’ questions are not evidence.

¶30 Piper next argues the prosecutor erred during his cross-
examination of Piper by asking him about his ownership and familiarity
with firearms. The prosecutor asked Piper whether he was a hunter, and
defense counsel objected on relevance grounds. The superior court
overruled the objection, and Piper testified:

Q. So you’re an avid hunter; is that true?

A. Yes.

3 During Piper’s police interview he told police he and C.W. had
previously discussed an open relationship to include C.W. and B.G. having
sex.

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Q. You take any gun safety, firearm safety courses incident to
owning the weapons that the officers found in the house?

A. When I was very young.

Q. And you had, what, six, seven guns there?

A. Probably.

Q. Different models, different varieties, different choices,
depending on target practice or anything else, true?

A. Yes.

Q. Are you familiar with the rules of handling and operating
firearms?

A. Yes, I am.

Piper made no further objections to the prosecutor’s line of questioning.

¶31 According to Piper, the prosecutor’s questions were intended
to “inflame the passions and prejudices of the [j]ury,” and violated a pretrial
in limine order.

¶32 We find no error. The superior court’s pretrial order
concerned photographs of numerous weapons police found in Piper’s
home that were not relevant to any of the charges in this case. The court
ordered that the State could introduce photographs of three of Piper’s
weapons into evidence: the shotgun he pointed out the front door at police,
a handgun he allegedly pointed at C.W., and a loaded rifle police found on
Piper’s kitchen counter. The State only introduced photographs of those
three weapons into evidence. And Piper’s familiarity with guns was
relevant to rebut his testimony that he accidentally discharged his gun
while in his house with C.W. The prosecutor’s questions do not evidence
an intent to inflame the jurors.

¶33 Piper next argues the prosecutor’s improper argument during
closing argument unfairly characterized him as a danger to the community
because he possessed firearms. During closing argument, the prosecutor
noted that the law protects law enforcement officers from violent crimes:

So just a reminder and request . . . ladies and gentlemen, there
are two sides of a jury trial. The rights of the accused and the
rights of the State. And really you and all of us are citizens of

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the State that requires jury members to honor and follow the
laws of the State that protect people like law enforcement
officers, literally first responders in this case, from intentional
and knowing acts of violence committed by citizens who have
done something to initiate law enforcement emergency
response.

Defense counsel did not object.

¶34 Later, the prosecutor argued:

Now, these three aggravated assault charges have two simple
elements. The first element requires the State to prove that
the defendant committed an assault. Did he intentionally
place the officers, each victim, in reasonable apprehension of
imminent physical injury. Not surprisingly, in Arizona,
which is a fairly liberal gun rights state, weapons invoke fear.
People dying from gun violence and provoke [sic] gun violence, you
need to consider that in terms of weapons, loaded weapons--

(Emphasis added.) Defense counsel objected, the court held a sidebar
discussion, and the court stated it would instruct the jurors not to consider
any gun violence not involved in the case. The court then instructed the
jury, “Ladies and gentlemen, you are not to consider any statements about
other shootings and the misuse of firearms in other cases and in other
contexts. The only thing that is relevant is what happened here.”

¶35 The prosecutor resumed his closing argument, stating:

And the State would submit the danger that firearms pose to the
community. Two law enforcement victims we are talking
about [Officers] Laube and Leedham were the ones right up
against the house, right up to the next door [sic].

(Emphasis added.) Defense counsel did not object.

¶36 Piper argues the italicized statements above mischaracterized
him as violent and a danger to the community. Although the prosecutor
primarily emphasized that law enforcement officers can be victims of gun
violence and the potential danger of loaded weapons, his comment that
“[p]eople [are] dying from gun violence” was improper. But after that brief
comment the superior court instructed the jury not to consider “any
statements about other shootings and the misuse of firearms in other cases
and in other contexts.” We will presume the jurors followed the superior

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court’s curative instruction. See State v. Thompson, 252 Ariz. 279, 300, ¶¶ 81-
83 (2022). There is not a reasonable likelihood that the statement could have
affected the jury’s verdict thereby denying Piper a fair trial. See id.

¶37 The prosecutor’s comment about the danger of firearms was
not objected to, and was made in the context of the prosecutor’s discussion
of the aggravated assault charges for Officers Laube and Leedham. The
prosecutor also emphasized that Arizona “is a Second Amendment
proponent of those who want the right to bear arms.” Piper has failed to
establish that fundamental, prejudicial error occurred. See Robinson, 253
Ariz. at 142, ¶ 64.

¶38 Finally, Piper argues the prosecutor erred by giving expert
opinion evidence during closing argument. During his argument, the
prosecutor discussed C.W.’s testimony that she heard a gunshot on the
night in question, which she had not mentioned in her police interview. He
argued her inconsistency was understandable because “that is how severe
stress and trauma works. It affects the brain’s ability to remember details.”
Defense counsel objected, and the court overruled the objection, stating that
the argument was reasonable. Later, the prosecutor argued:

Let’s start with alcohol. . . . This is what this case is about.
Alcohol. And your use of common sense and how people
behave and what the defendant did.

Alcohol is associated with mood swings and danger.
Alcohol leads to less emotional control. People are less likely
to hold themselves back. Alcohol for those in recovery, the
phrase “emotional sobriety” and “emotional maturity”
should ring a bell. Alcohol makes people do stupid things.
And alcohol is often an excuse and justification. Alcohol and
anger, ladies and gentlemen, is a pretty dangerous situation.
And I think your life experience would prove that alcohol and
anger and a loaded shotgun or an automatic handgun is a
recipe for a truly lethal tri-unity.

Piper did not object to the prosecutor’s arguments about alcohol.

¶39 The challenged statements were not improper. See State v.
Allen, 253 Ariz. 306, 338, ¶ 95 (2022) (“Prosecutors are given wide latitude
in presenting closing argument to the jury” and may “make submittals to
the jury, urge the jury to draw reasonable inferences from the evidence, and
suggest ultimate conclusions.”) (citation and internal quotation marks
omitted). The prosecutor’s arguments that stress affects memory, alcohol

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“makes people do stupid things,” and alcohol and anger combined can lead
to dangerous situations were topics within the common knowledge and
experience of the jurors. See State v. Randles, 235 Ariz. 547, 550-51, ¶ 17
(App. 2014). And the prosecutor did not claim to be an expert on those
topics. We find no error.

¶40 Finally, when considered cumulatively, the errors made by
the prosecutor did not result in a violation of Piper’s due process rights.
Piper’s objection to the prosecutor’s comment during the State’s opening
statement about the presumption of innocence “disappear[ing]” when
deliberations began was sustained, the comment was not repeated during
closing argument, and the jurors were properly instructed on the
presumption of innocence. The prosecutor’s comment during closing
argument about people dying from gun violence was brief, and the superior
court gave the jurors a curative instruction. Even when considered
cumulatively, the errors did not “so infect[] the trial with unfairness as to
make the resulting conviction[s] a denial of due process.” Robinson, 253
Ariz. at 143, ¶ 64 (citation and internal quotation marks omitted).

CONCLUSION

¶41 For the foregoing reasons, we vacate Piper’s convictions and
sentences for two of the disorderly conduct charges and affirm his
convictions and sentences for the remaining counts.

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

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