State v. Whiteside

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DINARR ANTWAIN WHITESIDE, Appellant.

Nos. 1 CA-CR 24-0683, 1 CA-CR 24-0684, 1 CA-CR 24-0685,
1 CA-CR 24-0688 (Consolidated)
FILED 03-24-2026

Appeal from the Superior Court in Maricopa County
Nos. CR2023-001018-001, CR2023-115706-001,
CR2024-111017-002, CR2023-115704-001

The Honorable Kristin Culbertson, Judge
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Law Office of Randal B. McDonald, Phoenix
By Randal McDonald
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee
 STATE v. WHITESIDE
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MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Daniel J. Kiley and Judge Cynthia J. Bailey joined.

W I L L I A M S, Judge:

¶1 Dinarr Antwain Whiteside appeals his convictions and
sentences for shoplifting, drug possession, and burglary. For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In separate indictments, the State charged Whiteside with one
count of shoplifting—CR2023-001018-001 (“Walmart”)—and three counts of
burglary in the third degree—CR2023-115706-001 (“Circle K I”); CR2024-
111017-002 (“Walgreens”); and CR2023-115704-001 (“Circle K II”)—alleging
he committed a series of retail thefts. In the Walmart indictment, the State
also charged Whiteside with one count of possession or use of narcotic
drugs, alleging he had fentanyl on his person at the time of his arrest for
shoplifting. In all cases, the State alleged aggravating circumstances and
that Whiteside had numerous prior felony convictions.

¶3 The superior court consolidated the Circle K I and Circle K II
charges for trial (consolidated, “Circle K”), and Walgreens and Walmart were
tried separately. Three separate juries found Whiteside guilty as charged.
The juries also found the State proved the alleged aggravating
circumstances.

¶4 The superior court consolidated all the cases for sentencing.
After a trial on prior convictions, the court found Whiteside had seven prior
felony convictions and sentenced him to a presumptive term of 2.5 years’
imprisonment on the count of drug possession, a consecutive maximum
term of 3 years’ imprisonment on the Circle K I count of burglary, a
consecutive presumptive term of 2.5 years’ imprisonment on the Walgreens
count of burglary, a consecutive presumptive term of 2.5 years’
imprisonment on the Circle K II count of burglary, and a jail term of six
months (time served) on the count of shoplifting.

¶5 Whiteside timely appealed from each case. On the State’s
motion, we consolidated the four appeals for appellate disposition. We

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have jurisdiction 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. Joinder of Charges for Trial

¶6 Whiteside challenges the superior court’s consolidation of
Circle K I and Circle K II for trial. First, he contends the two burglary offenses
lacked sufficient similarity to justify joinder of the separate charges. Second,
he contests the court’s finding that evidence of the discrete offenses was
cross-admissible, arguing the general prohibition on other-act evidence
barred the cross-admission of evidence in these “run-of-the mill
shoplifting” cases.

¶7 Before trial, the State moved to join the Circle K I and Circle K
II charges, characterizing the facts underlying each offense as “very
similar.” In its proffer, the State pointed to the temporal proximity of the
offenses (June 2022 and July 2022), the common victim (the same Circle K
location), the same investigating detective, the same method of
identification (the retailer’s surveillance video), and the similar commission
of the burglary offense (the perpetrator accessed the area behind the
“employees-only” counter to retrieve restricted merchandise). See State v.
Burns, 237 Ariz. 1, 14, ¶ 32 (2015) (“Joinder is permitted if separate crimes
arise from a series of connected acts and are provable by overlapping
evidence.”).

¶8 Whiteside objected, contending he would be prejudiced if a
single jury viewed both surveillance videos. Whiteside also discounted the
State’s claim of overlapping evidence, noting different store clerks were
present when the alleged offenses occurred. After hearing from counsel, the
superior court overruled Whiteside’s objection and granted the State’s
motion, finding the evidence of the separate offenses cross-admissible “to
demonstrate identity, et cetera, et cetera.”

¶9 We generally review a superior court’s rulings on joinder and
severance for an abuse of discretion. State v. Hausner, 230 Ariz. 60, 74, ¶ 43
(2012). Because Whiteside neither renewed his objection nor moved for
severance at trial, however, we review only for fundamental error. See Ariz.
R. Crim. P. 13.4(c) (“The right to severance is waived if the defendant fails
to timely file and renew a proper motion for severance.”) (emphasis added);
see also State v. Flythe, 219 Ariz. 117, 119-20, ¶¶ 5, 10 (App. 2008) (explaining
the renewal requirement, which allows the superior court “to reassess the
need for separate trials as the evidence is developed,” is “strictly applied”).

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Under that standard, Whiteside must show that joinder was error, the error
was fundamental, and the error caused him prejudice. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). An error is fundamental if it: (1) goes to the
foundation of the case, (2) deprives the defendant of a right essential to his
defense, or (3) is so egregious that the defendant could not have received a
fair trial. Id. at 142, ¶ 21.

¶10 “The rules for joinder and severance,” Arizona Rules of
Criminal Procedure (“Rule”) 13.3 and 13.4, “must be read together.” See
State v. Lee, 147 Ariz. 11, 17 (App. 1985). As relevant here, the superior court
may join separately charged offenses for trial “if they . . . are of the same or
similar character.” Ariz. R. Crim. P. 13.3(a)(1), (c). But if similarity is the sole
basis for joinder, the defendant is entitled to severance as a matter of right
“unless evidence of the other offense or offenses would be admissible
[under the applicable rules of evidence] if the offenses were tried
separately.” Ariz. R. Crim. P. 13.4(b); see also State v. Johnson, 212 Ariz. 425,
429, ¶ 9 (2006). In other words, when a superior court joins separate
indictments based on the similarity of the alleged offenses, the defendant
“only has a remedy if the [other] act evidence would not have been
admissible” under Arizona Rule of Evidence (“Evidence Rule”) 404(b). State
v. Ives, 187 Ariz. 102, 106 (1996).

¶11 Evidence of other crimes, wrongs, or acts is inadmissible to
prove a defendant’s character or propensity to act in a certain way. Ariz. R.
Evid. 404(b). It is admissible, however, for non-propensity purposes, such
as showing “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Id. To admit other-act evidence,
a superior court must first find: (1) there is clear and convincing evidence
the defendant committed the other act, (2) the evidence is relevant under
Evidence Rule 402, (3) the evidence is offered for a proper purpose under
Evidence Rule 404(b), and (4) the probative value of the evidence is not
substantially outweighed by the potential for unfair prejudice under
Evidence Rule 403. State v. Terrazas, 189 Ariz. 580, 584 (1997); State v. Mott, 187 Ariz. 536, 545 (1997). In reviewing a superior “court’s finding that the
other-act evidence would have been cross-admissible, . . . we consider only
the evidence before the court when it ruled on the motion.” State v. Goudeau, 239 Ariz. 421, 444–45, ¶ 60 (2016); see also State v. Van Winkle, 186 Ariz. 336,
339 (1996) (“In considering whether the trial court erred in denying a
motion to sever, we are mindful that the trial court exercises considerable
discretion in determining whether, in light of the evidence then before the
court, the defendant has made the requisite showing of prejudice.”).

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¶12 Based on the information available when it granted the
motion to consolidate, the superior court did not err, much less commit
fundamental error, by joining the Circle K charges for trial. The State
asserted, and defense counsel did not dispute, that video surveillance
captured Whiteside inside the Circle K, accessing merchandise located
behind a restricted employees-only counter, when both burglaries were
committed. This uncontroverted representation of the evidence satisfied
both the clear and convincing admissibility threshold—that Whiteside
committed both acts—and the relevance threshold—that the commission of
each offense had a “tendency” to make a “fact of consequence” in
determining culpability on the other charge “more or less probable than it
would be without the evidence.” Ariz. R. Evid. 401. Additionally, as found
by the superior court, evidence material to each count was admissible for a
proper purpose under Evidence Rule 404(b)—to establish knowledge,
identity, or absence of mistake for the other charged crime. Finally, the
probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. Although the evidence may have undermined a
potential defense of misidentification or mistake, it did not suggest the
jurors should render a verdict on an improper basis. See Mott, 187 Ariz. at
545–46 (explaining “[n]ot all harmful evidence . . . is unfairly prejudicial”
and only “evidence [that] has an undue tendency to suggest decision on an
improper basis, such as emotion, sympathy, or horror” is inadmissible).

¶13 But even assuming error, Whiteside has failed to establish any
prejudice from the consolidation of the Circle K burglary charges. “When a
defendant challenges a denial of severance on appeal, he must demonstrate
compelling prejudice against which the trial court was unable to protect.”
See Goudeau, 239 Ariz. at 446, ¶ 67 (citation modified). Although Whiteside
makes a fleeting reference to joinder having “permitted inflammatory
speculative evidence to be considered by the jury,” he provides no
meaningful argument to support this claim and fails to point to anything in
the record suggesting the jury improperly considered evidence offered as
proof for one offense as support he committed the other offense. ARCAP
13(a)(7) (requiring argument in briefing). Nor could he, because the
superior court instructed the jury to consider each offense separately and
advised that each count must be proven beyond a reasonable doubt. State
v. Allen, 253 Ariz. 306, 334, ¶ 62 (2022) (“There is no prejudice from a denial
of severance when a jury is instructed to consider each offense separately
and advised that each must be proven beyond a reasonable doubt.”)
(citation modified). “We presume jurors follow the court’s instructions.”
Goudeau, 239 Ariz. at 446, ¶ 67. Because the superior court properly
instructed the jury to separately consider each offense and the burden of
proof for each offense, any risk the jury would fail to separate the evidence

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was mitigated. Therefore, on this record, Whiteside has failed to establish
the superior court erred, much less committed fundamental, prejudicial
error, by consolidating the Circle K charges for trial.

II. Number of Jurors

¶14 Whiteside argues the superior court improperly impaneled
eight jurors, rather than twelve, for the Walmart and Walgreens trials. In
framing this argument, Whiteside acknowledges he faced maximum
sentences of only 15.5 and 15 years’ imprisonment in the Walmart and
Walgreens cases, respectively. But he contends the potential imposition of
consecutive sentences in the Walmart, Walgreens, and Circle K cases—having
been charged with a Class 4 felony in each indictment and alleged to have
two or more historical prior felony convictions in each case—exposed him
to a potential cumulative sentence of greater than 60 years’ imprisonment,
triggering the constitutional right to a twelve-person jury. See A.R.S.
§ 13-703(J) (establishing the maximum sentence for a Class 4 felony
committed by a category three repetitive offender as 15 years’
imprisonment).

¶15 Although the United States Supreme Court has held that a
twelve-person jury “is not a necessary ingredient of ‘trial by jury’” under
the United States Constitution, Williams v. Florida, 399 U.S. 78, 86 (1970); see
also State v. Armendaris, 259 Ariz. 454, 456-67, ¶¶ 13–20 (App. 2025)
(rejecting claim that the United States Supreme Court “effectively
overruled” Williams in Ramos v. Louisiana, 590 U.S. 83 (2020), noting Ramos
“did not address jury size”), the Arizona Constitution requires a twelve-
person jury “in criminal cases in which a sentence of death or imprisonment
for thirty years or more is authorized by law.” Ariz. Const. art. 2, § 23; see
also A.R.S. § 21-102(A). In all other cases, “an eight-person jury is
acceptable.” State v. Kuck, 212 Ariz. 232, 233, ¶ 7 (App. 2006); A.R.S. § 21-
102(B).

¶16 As a preliminary matter, the parties dispute whether
Whiteside preserved this issue for appeal. In Walmart, Whiteside
acquiesced to an eight-member jury, agreeing with the superior court’s
understanding that “30 years [wa]sn’t an issue.” Likewise, in Walgreens,
Whiteside initially stipulated to an eight-member jury. But at a hearing held
twenty days before trial, the superior court questioned whether twelve
jurors were needed given the possibility of stacked sentences for the
Walmart, Circle K, and Walgreens cases. The prosecutor responded that the
court should consider only the potential maximum sentence “in each
individual case” to determine the required number of jurors. Despite

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stating, “I don’t disagree with [the prosecutor’s] analysis,” defense counsel
stated that, “given the potential risk, . . . just for the record, I would ask for
the 12 jurors.”

¶17 We review de novo whether a defendant’s sentencing
exposure entitled him to a twelve-person jury. State v. Nguyen, 208 Ariz.
316, 318, ¶ 6 (App. 2004). The improper denial of a twelve-person jury
constitutes fundamental, prejudicial error. State v. Maldonado, 206 Ariz. 339,
342, ¶ 10 (App. 2003) (“Although [the defendant] stipulated to a lesser
number of jurors, the improper denial of a twelve-person jury nonetheless
is fundamental error.”).

¶18 To determine the length of a defendant’s potential sentence,
we consider “the possible cumulative sentences in each case and not just
the possible sentence for each count or charge.” State v. Henley, 141 Ariz.
465, 468 (1984) (citation modified); see also State v. Parker, 22 Ariz. App. 111,
115 (1974) (explaining the Arizona Constitution requires a twelve-person
jury when “the total possible authorized sentence in a criminal case” is 30
years or greater) (emphasis added). Stated differently, to assess whether a
defendant’s sentencing exposure triggers the constitutional right to a
twelve-person jury, courts not only “take into account allegations of
sentence enhancements,” but also “whether the sentences could be imposed
consecutively.” State v. Price, 218 Ariz. 311, 314, ¶ 11 (App. 2008).

¶19 Because the superior court consolidated the Walmart, Circle K,
and Walgreens cases for sentencing, Whiteside argues the sentencing
calculus necessarily included the potential for stacked sentences in the
combined cases. The State disagrees, but neither party cites a case directly on
point.

¶20 Nguyen is instructive. In that case, the State charged the
defendant with burglary and alleged he had two historical prior felony
convictions. 208 Ariz. at 317–18, ¶¶ 2–3, 5. Under the sentencing scheme
then in effect, the defendant faced a possible maximum sentence of twenty-
five years’ imprisonment—clearly under the constitutional threshold of a
sentence of thirty years’ imprisonment or greater. Id. at 318, ¶ 5. But “a
finding of guilt on the case also invoke[d] a mandatory consecutive
sentence in [an] unrelated case for which the defendant was on probation.”
Id. Because “the combined sentences for the two cases could exceed thirty
years,” the defendant argued the superior court erred by failing to impanel
a twelve-person jury. Id. On review, this court determined the
constitutional right to a twelve-person jury is triggered only when the
maximum possible sentence—for the charges tried to that jury—is thirty

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years’ imprisonment or greater. Id. at ¶ 9. Reasoning that a potential
sentence for the probation violation did not factor into the sentencing
calculus because the probation violation “originate[d] from a criminal case
that [was] separate and factually unrelated” to the burglary charge, this
court affirmed the defendant’s convictions and sentences. Id. at 318, 319,
¶¶ 9, 11 (citation modified).

¶21 Applying this reasoning here, Walmart and Walgreens
constituted distinct criminal cases, and the superior court needed only to
consider the charges tried to the respective juries—and the corresponding
maximum punishments—to determine whether Whiteside was entitled to
a twelve-person jury in each case. To be clear, the potential imposition of
consecutive sentences in factually unrelated cases does not factor into a
sentencing calculus when determining whether a twelve-person jury is
required in a particular criminal case; instead, the court considers only the
potential maximum, cumulative sentence for the charges tried to the particular
jury. See Nguyen, 208 Ariz. at 317, 318, ¶¶ 1, 9 (“The potential sentence for
[a] previously adjudicated offense is not included when determining
whether a twelve-person jury is required for the trial of [a] newly charged
crime.”).

¶22 In this case, the superior court properly considered only the
potential maximum sentence Whiteside faced in Walmart and Walgreens,
separately, and correctly determined neither case exposed him to a
potential sentence greater than 30 years’ imprisonment. Therefore, the court
properly impaneled a jury consisting of eight persons for both the Walmart
and Walgreens cases.

III. Pretrial Delay

¶23 Whiteside argues the superior court violated his right to a
speedy trial by improperly granting the State a trial continuance in
Walgreens.

¶24 Police arrested Whiteside on March 6, 2024, after receiving a
report he had entered a Walgreen’s restricted employee area, taken
merchandise, and left the store without paying. Following an evidentiary
hearing, the superior court found Whiteside ineligible for release. The court
then arraigned him on March 21, 2024, calculating the last day, for speedy
trial purposes, as August 18, 2024.

¶25 On April 8, 2024, appointed counsel for all Whiteside’s cases
moved “to align” the last day for the Walmart and Circle K cases with the
last day for the Walgreens case, which the superior court granted. In June

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2024, the court appointed new counsel, at Whiteside’s request. New counsel
then moved for a ninety-day continuance. Although Whiteside protested
any delay, the court found extraordinary circumstances existed and granted
a sixty-day continuance, setting a new last day of October 4, 2024. The
superior court held the Walmart trial on September 18 and 19, 2024, and the
Circle K trial on September 26 and October 1, 2024.

¶26 At a trial procedure conference held on October 2, 2024, the
day before trial was scheduled to commence in the Walgreens case—the
prosecutor notified the superior court that the State had been unable to
locate a noticed witness—the store cashier present at the time of the alleged
offense. Explaining the witness had since separated from her employment,
the prosecutor said the State intended to call a store manager or “loss
prevention person” instead. Given her alleged unavailability, defense
counsel asked the superior court to find admissible the store clerk’s
statement to a responding police officer—captured on the officer’s body
camera—that she had given Whiteside permission to place his bags beside
the Walgreens counter in the restricted employees-only area. The
prosecutor objected, arguing defense counsel could not introduce the store
clerk’s statement through the body camera video and would instead need
to subpoena the store clerk or elicit the purported out-of-court statement
from Whiteside at trial. When asked about the State’s efforts to locate and
subpoena the store clerk, the prosecutor stated that the sheriff’s office had
attempted to locate her, to no avail, and he elected to proceed to trial
without her rather than expend other “investigative resources.” After
hearing from both parties, the court took the matter under advisement.

¶27 The next morning, the trial started with jury selection. But
shortly after noon, Whiteside moved to dismiss the case, asserting the
unavailability of the only eyewitness to the alleged offense, the store clerk,
deprived him of his constitutional right to confront his accuser. In support
of his motion, Whiteside noted the State’s “minimal efforts to procure the
witness.” The superior court then viewed the body camera video with
counsel. As the court discussed the admissibility of the video, the
prosecutor moved for a two-week continuance, requesting additional time
to locate and serve a subpoena on the store clerk. Defense counsel
suggested dismissal “may be more appropriate,” but stated he did not
“necessarily have grounds to object to a continuance” and affirmed that
Whiteside wanted the store clerk to testify. In the absence of an objection,
the court stated “[t]ime would be excluded.” At that point, defense counsel
objected to the requested continuance on speedy trial grounds. Based on
both parties’ representations, the court found the store clerk was a “key
witness” and concluded that because the prosecutor did not know of the

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inability to locate her until just days before trial, her absence was
unforeseen and therefore extraordinary circumstances justified a
continuance.

¶28 Although the State requested only a two-week continuance,
the court excluded three weeks of time and set a new last day of October
25, 2024. Following the continuance, the Walgreens trial started on October
23, 2024—232 days after Whiteside’s arrest (7 months, 18 days) and 217 days
after his arraignment (7 months, 3 days).

¶29 Both the United States and Arizona Constitutions guarantee
a criminal defendant the right to a speedy trial. U.S. Const. amend. VI; Ariz.
Const. art. 2, § 24. But neither constitution “requires that a trial be held
within a specified time period.” State v. Spreitz, 190 Ariz. 129, 136 (1997); see
also State v. Parker, 231 Ariz. 391, 398, ¶ 9 (2013) (“There is no bright line rule
for how quickly a trial must occur.”). Accordingly, when evaluating a
defendant’s claim that pretrial delay violated the constitutional right to a
speedy trial, we consider four factors: “(1) the length of the delay, (2) the
reason for the delay, (3) the defendant’s assertion of the right to a speedy
trial, and (4) the prejudice to the defendant.” Parker, 231 Ariz. at 398, ¶ 9
(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). In balancing these factors,
“the length of the delay is the least important, while the prejudice to
defendant is the most significant.” Spreitz, 190 Ariz. at 139–40. We review
de novo whether a delay has violated a defendant’s constitutional right to
a speedy trial. See State v. Smith, 215 Ariz. 221, 233, ¶¶ 56–57 (2007).

¶30 The first factor, the length of the delay, acts as a “gatekeeper.”
Smith, 215 Ariz. at 233, ¶ 59. “Simply to trigger a speedy trial analysis, an
accused must allege that the interval between accusation and trial has
crossed the threshold dividing ordinary from ‘presumptively prejudicial’
delay, since, by definition, he cannot complain that the government has
denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with
customary promptness.” Doggett v. United States, 505 U.S. 647, 651–52 (1992)
(citation modified). Absent a presumptively unreasonable delay, a court
need not consider the remaining Barker factors. See id. at 652 n.1.

¶31 The United States Supreme Court has found a post-
indictment delay approaching one year sufficient to trigger a full Barker
analysis under the federal constitution. Id. (noting “courts have generally
found” post-indictment delay “’presumptively prejudicial’ . . . as it
approaches one year”; “mark[ing] the point at which courts deem the delay
unreasonable enough to trigger the Barker enquiry”). The Arizona Supreme
Court has found a pretrial delay of nine months sufficient to trigger further

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examination under the state constitution, State v. Soto, 117 Ariz. 345, 348
(1977), and contemplated, without deciding, that a 7.5 months’ delay may
“require further examination,” State v. Zuck, 134 Ariz. 509, 515 (1982).
Because 7.5 months elapsed between Whiteside’s arrest on the Walgreens
charge and the start of the Walgreens trial, we consider the other Barker
factors.

¶32 The second factor, reason for the delay, examines which party
caused the delay. See Vermont v. Brillon, 556 U.S. 81, 90 (2009) (analyzing
“whether the government or the criminal defendant is more to blame for
the delay”) (citation modified). Delay by the prosecution to gain an
advantage “weighs heavily” against the prosecutor, but prosecutorial
negligence weighs against the State to a lesser degree, and any “delay
caused by the defense weighs against the defendant.” Id.

¶33 In this case, both parties contributed to the delay. Whiteside
does not dispute that his request for new counsel led to a sixty-day
continuance and his unrelated conduct necessitated four days’ trial in the
Walmart and Circle K cases. Instead, he challenges only the three-week
continuance granted to the State to secure a witness. Even assuming,
without deciding, the State failed to exercise due diligence in locating and
subpoenaing the store clerk before the October 4, 2024 last day, nothing
suggests this delay constituted a deliberate attempt to gain advantage over
the defense. On this record, the delay factor does not weigh in Whiteside’s
favor.

¶34 The third factor, the defendant’s assertion of the right to a
speedy trial, examines “the strength of his efforts” to invoke the right.
Barker, 407 U.S. at 531 (citation modified); see also State v. Schaaf, 169 Ariz.
323, 327 (1991) (holding a defendant waives a speedy violation absent a
prompt assertion of the right). Here, Whiteside timely raised his right to a
speedy trial when the State requested a two-week continuance, so the third
factor weighs in his favor.

¶35 The fourth, and most significant factor, is whether the delay
prejudiced the defendant. Soto, 117 Ariz. at 348. Under the Barker analysis,
cognizable prejudice primarily hinges on whether the delay impaired the
defendant’s ability to defend against the charges. Parker, 231 Ariz. at 399,
¶ 16. Thus, to prevail on this factor, a defendant must demonstrate that the
delay subjected him to prolonged confinement, prevented him from fully
investigating his case, resulted in the inability to secure evidence or
witnesses, or otherwise hindered his defense. See id.

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¶36 Here, Whiteside has not alleged any cognizable prejudice. He
argues only that without the continuance, the State would have been
compelled to proceed to trial with weaker evidence. The Arizona Supreme
Court has made clear that even if true, “this is not the sort of prejudice
required.” Zuck, 134 Ariz. at 515. Rather, a defendant “must show that he
was prejudiced by being prevented from presenting some defense, rather
than by the state’s being allowed to make its case.” Id. Therefore, Whiteside
has failed to establish any prejudice.

¶37 In sum, the State arguably failed to exercise due diligence in
securing a key witness and Whiteside timely invoked his right to a speedy
trial, but the delay was moderate and Whiteside suffered no resulting
prejudice. Accordingly, on balance, the Barker factors do not weigh in
Whiteside’s favor. See Parker, 231 Ariz. at 399, ¶¶ 17–18 (holding a delay did
not deprive a defendant of his speedy trial rights when he failed to show
any prejudice). Therefore, Whiteside has failed to establish the three-week
continuance deprived him of his constitutional right to a speedy trial.

¶38 Apart from constitutional protections, criminal defendants in
Arizona have a procedural, rule-based right to a speedy trial. Under Rule
8, an in-custody defendant must be tried within 150 days of arraignment.
Ariz. R. Crim. P. 8.2(a)(1). To determine whether a continuance complies
with Rule 8’s time limits, the court may exclude any delay (1) occasioned
by or on behalf of the defendant, Ariz. R. Crim. P. 8.4(a)(1), or (2) compelled
by “extraordinary circumstances” and “indispensable to the interests of
justice,” Ariz. R. Crim. P. 8.4(a)(5), 8.5(b).

¶39 As noted, 217 days elapsed between Whiteside’s arraignment
on the Walgreens charge and the start of the Walgreens trial. Whiteside does
not contest the exclusion of either the sixty-day continuance requested by
defense counsel or the four days of trial in the Walmart and Circle K cases.
Subtracting only those 64 days, the Walgreens trial effectively started 153
days after Whiteside’s arraignment. Accordingly, Whiteside argues that if
the superior court improperly granted the State a three-week continuance,
he was entitled to a dismissal of the case under Rule 8.6. (“If the court
determines, after excluding any applicable time periods, that a time limit
established by these rules has been violated, the court must dismiss the
prosecution with or without prejudice.”).

¶40 We review a superior court’s Rule 8 trial continuance, over a
defendant’s objection, for a clear abuse of discretion and resulting
prejudice. State v. Lukezic, 143 Ariz. 60, 68–69 (1984); State v. Wassenaar, 215
Ariz. 565, 571, ¶ 16 (App. 2007) (“A defendant who fails to establish that his

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defense was prejudiced or that he was deprived of a fair trial has not
established prejudice sufficient to warrant reversal of his conviction.”). In
so doing, we recognize the superior court is in the best position to evaluate
whether “extraordinary circumstances” justify a continuance and whether
“delay is indispensable to the interests of justice.” State v. Hein, 138 Ariz.
360, 368 (1983) (citation modified). Among other things, “the unavailability
of a key witness may constitute an extraordinary circumstance.” State v.
Vasko, 193 Ariz. 142, 144, ¶ 11 (App. 1998) (citation modified).

¶41 The record reflects, and Whiteside does not dispute, that the
prosecutor learned of the State’s inability to locate the store clerk shortly
before the October 4, 2024 last day. Upon determining the store clerk was
not vital to the State’s case, the prosecutor promptly told the court and
defense counsel the State would call another victim representative to testify
at trial in the store clerk’s stead. In response, Whiteside argued the store
clerk was an essential witness such that her absence from trial would violate
his constitutionally-protected right to confront his accuser. Faced with
Whiteside’s invocation of the Confrontation Clause, the prosecutor moved
for a continuance so he could locate the store clerk and serve her with a
subpoena.

¶42 On this record, the superior court reasonably found the store
clerk was a key witness and therefore acted within its discretion to grant a
three-week continuance so the State could secure the store clerk’s testimony
for trial. Excluding the nineteen-day delay from October 4, 2024 until the
start of trial on October 23, 2024, only 134 days effectively elapsed from
Whiteside’s arraignment on the Walgreens charge to the start of the
Walgreens trial. Therefore, Whiteside has failed to establish a Rule 8
violation.

IV. Sufficiency of the Evidence

¶43 Arguing insufficient evidence supports the burglary
conviction in the Walgreens case, Whiteside contends the superior court
erroneously denied his motion for judgment of acquittal.

¶44 At trial, the prosecutor first called the store clerk to testify. At
the outset, the store clerk explained that Walgreens has a policy forbidding
customers from stepping “behind the counter” to access cigarette cartons
stocked inside glass-enclosed shelving. Instead, upon request, Walgreens
employees retrieve cigarette cartons for customers who produce
identification demonstrating they are of legal age to purchase. On the day
in question, March 6, 2024, the store clerk saw Whiteside enter the

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Decision of the Court

Walgreens carrying bags and invited him to place his belongings beside the
restricted-area counter while he shopped. About ten minutes later, the store
clerk saw Whiteside step behind the counter, slide open the glass shield of
the shelf containing cigarette cartons, remove several cigarette cartons and
place them inside a bag. When the store clerk told Whiteside he needed to
pay for the merchandise, he denied taking anything and left the store. At
that point, the store clerk called the police to report the theft.

¶45 During the store clerk’s testimony, the prosecutor played a
surveillance video (admitted as a trial exhibit) that captured Whiteside’s
actions inside the Walgreens. While viewing the video, the store clerk noted
when Whiteside moved “beyond the barrier” to “where the cigarettes are.”
She denied having given him permission “to come that far behind the
counter.” On cross-examination, the store clerk testified that the store had
no signage at the counter stating the area was restricted.

¶46 Next, the prosecutor called a police sergeant who, after
receiving a dispatch report of the Walgreens suspect’s description, spotted
Whiteside at a neighboring Circle K. After placing Whiteside under arrest,
the sergeant walked to the nearby Walgreens and viewed the surveillance
video, which he testified clearly captured Whiteside as he moved around
the counter—“closed on both ends” with “a sign instructing employees
only”—and took several cartons of cigarettes.

¶47 After the State’s presentation of evidence, Whiteside moved
for judgment of acquittal pursuant to Rule 20. Pointing to the store clerk’s
testimony that she authorized Whiteside to place his bags beside the
restricted counter, defense counsel argued the State had failed to prove the
requisite element of trespass. The superior court summarily denied the
motion.

¶48 We review de novo a superior court’s ruling on a Rule 20
motion. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). “The relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (citation
modified). In reviewing the sufficiency of the evidence, we test the evidence
“against the statutorily required elements of the offense,” State v. Pena, 209
Ariz. 503, 505, ¶ 8 (App. 2005), and neither reweigh conflicting evidence nor
assess the credibility of witnesses, State v. Buccheri-Bianca, 233 Ariz. 324, 334,
¶ 38 (App. 2013). Sufficient evidence upon which a reasonable jury can
convict may be direct or circumstantial, West, 226 Ariz. at 562, ¶ 16, and a

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 STATE v. WHITESIDE
Decision of the Court

judgment of acquittal is appropriate only “if there is no substantial evidence
to support a conviction.” Ariz. R. Crim. P. 20(a).

¶49 As charged in this case, a person commits burglary in the
third degree by entering or remaining unlawfully in a nonresidential
structure “with the intent to commit any theft or felony therein.” A.R.S.
§ 13-1506(A)(1). “’Enter or remain unlawfully’ means an act of a person who
enters or remains on premises when the person’s intent for so entering or
remaining is not licensed, authorized or otherwise privileged except when
the entry is to commit theft of merchandise displayed for sale during
normal business hours, when the premises are open to the public and when
the person does not enter any unauthorized areas of the premises.” A.R.S.
§ 13-1501(2). Reading these statutes together, a person who enters or
remains in a store during normal business hours with the intent to commit
theft does not commit burglary in the third degree unless the person enters
an unauthorized area of the premises.

¶50 Viewed in its entirety, the State presented substantial
evidence from which a reasonable jury could find Whiteside committed
burglary in the third degree. Although the store clerk acknowledged
permitting Whiteside to place his bags beside the restricted counter, she
denied authorizing him to move behind the counter. Equally important, the
store clerk testified that Whiteside moved beyond a “barrier” to position
himself behind the counter and the sergeant likewise described the counter
as “closed on both ends.” While the store clerk and sergeant provided
conflicting testimony concerning the presence of signage warning
customers that the area behind the counter was restricted to employees, a
reasonable juror could have concluded that Whiteside knowingly entered a
restricted area when he not only sidestepped a “barrier” to position himself
behind the counter but also opened glass-enclosed shelving to access the
cigarette cartons. Therefore, the superior court did not err by denying
Whiteside’s motion for judgment of acquittal.

CONCLUSION

¶51 For the foregoing reasons, we affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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