State v. Gibson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRYAN KEITH GIBSON, Appellant.

No. 1 CA-CR 25-0162
FILED 09-02-2026

Appeal from the Superior Court in Mohave County
No. CR-2023-00659
The Honorable Douglas Camacho, Judge

AFFIRMED

COUNSEL

Jill L. Evans, Attorney at Law, Flagstaff
By Jill L. Evans
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellee

STATE v. GIBSON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Veronika Fabian and Chief Judge Randall M. Howe joined.

B R O W N, Judge:

¶1 Bryan Gibson appeals from his convictions and sentences for
possession of dangerous drugs for sale, A.R.S. § 13-3407(A)(2), and
possession of narcotic drugs for sale, A.R.S. § 13-3408(A)(2). For the
following reasons, we affirm.

DISCUSSION

¶2 In the early morning hours of June 14, 2023, Gibson was riding
in a car along with Amy Crawford and Bonnie Beard. Crawford was the
driver and co-owner of the car with her ex-boyfriend; Gibson and Beard
were sitting in the front and rear passenger seats, respectively. An officer
with the Mohave County Sheriff’s Office stopped the car for a traffic
violation. During the stop, the officer learned Crawford’s insurance policy
for the car was not current and the car’s registration was suspended. The
officer determined the car needed to be towed, and with the aid of other
officers, began an inventory search and found a methamphetamine
(“meth”) pipe in the center console.

¶3 The officers detained Gibson, Crawford, and Beard and
continued to search the car, finding another meth pipe in the front
passenger doorjamb, a single blue pill in the driver’s side doorjamb, small
amounts of meth and more pills in a tan purse that also contained
Crawford’s identification, and a small amount of meth in Beard’s purse and
in her pocket. Under the front passenger seat where Gibson sat, officers
found a black box containing 88 blue pills (later confirmed to be fentanyl),
almost four ounces of meth, and several small plastic baggies. Though a
latent fingerprint was later found on the box and was compared to
fingerprints from the occupants of the car, there was no conclusive match.

¶4 After the search, Gibson declined to speak to police, but
Crawford and Beard each made statements about the drugs and
paraphernalia found in the car. Crawford told police she received her
fentanyl from her ex-boyfriend, and that the pill in driver’s side doorjamb

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belonged to him. She denied knowing anything about a large quantity of
drugs in the car or having any knowledge of the black box. She also denied
ever having seen Gibson with the box.

¶5 Beard admitted to possessing meth. Though she first told
officers she received her meth from Gibson, she later identified Crawford
as her supplier. Like Crawford, Beard denied knowing about any large
quantities of drugs in the car. She reaffirmed that she did not obtain drugs
from Gibson and would not be willing to testify that she did. Beard also
stated she did not know about the black box and had not seen Gibson with
the box. After Crawford was arrested and then interviewed by a detective,
she again denied any knowledge of the box.

¶6 Police found two cell phones in the car, one of which belonged
to Gibson. The same detective who interviewed Crawford sought a search
warrant and drafted an affidavit requesting to search the phones; a judge
later granted the warrant. Gibson’s cell phone contained several text
messages discussing drug transactions with various individuals. Some
messages referenced “pills” and “speed,” as well as various references to a
“quarter” or “1/4” and “4”; the detective who wrote the affidavit testified
at trial these were references to drugs. He explained that “quarter” and
“four” means four ounces or a quarter of a pound, similar to the quantity
of meth found in the box during the stop.

¶7 In the same indictment, Crawford was charged with one
count each of possession of dangerous drugs, possession of narcotic drugs,
and possession of drug paraphernalia, and Gibson was charged with one
count each of possession of dangerous drugs for sale (meth) and possession
of narcotic drugs for sale (fentanyl). Crawford’s charges were resolved
through a plea agreement and Gibson proceeded to trial.

¶8 After a three-day trial, which included testimony from the
officer who performed the stop and search, the detective who sought the
warrant, and Beard, the jury found Gibson guilty as charged. The trial court
sentenced Gibson as a category three repetitive offender, see A.R.S.
§ 13-703(C), and imposed consecutive 20-year aggravated sentences for
each conviction. Gibson timely appealed. We have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A)(1).

DISCUSSION

¶9 Gibson asserts that several errors require reversal of his
convictions and sentences. He argues the trial court made several
erroneous evidentiary rulings, including: (1) denying his motion to

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suppress the text messages; (2) improperly admitting the messages under
Arizona Rule of Evidence (“Rule”) 404(b); (3) refusing to compel Crawford
to testify or to admit her statements after her arrest under Rule 804(b)(3);
and (4) precluding third party defense evidence under Rules 401 and 403.
He also contends the prosecutor elicited testimony that misrepresented
evidence, and the State did not present sufficient evidence to support his
convictions. Finally, he challenges the court’s determination that he was a
category three repetitive offender and its decision to impose consecutive
sentences.

A. Franks v. Delaware and Probable Cause for Cell Phone
Search

¶10 Following the search of the car, a detective with the sheriff’s
office prepared an affidavit requesting a warrant to search the two cell
phones found during the search. The affidavit recounted the paraphernalia
and drugs found, including the black box containing meth, fentanyl pills,
and baggies consistent with drug sales. The detective explained, based on
his training and experience, that cell phones “are commonly used in the
acquisition, transportation and distribution of illegal drugs,” and often
contain evidence of drug transactions. Based on these facts and the
detective’s experience, he concluded the two cell phones would likely
contain evidence of drug trafficking. But the detective did not include in
his affidavit the statements Crawford and Beard made addressing the
sources of their drugs, nor the statements they made denying knowledge
of the box/drugs and denying Gibson’s possession of the same. A judge
authorized the warrant, after which the text messages referring to prior
drug transactions were found on Gibson’s phone.

¶11 Gibson moved to suppress all evidence obtained from the
search of the car. As relevant here, Gibson argued the officer omitted from
the affidavit the statements Crawford made during the traffic stop, in
violation of Franks v. Delaware, 438 U.S. 154 (1978). After an evidentiary
hearing, the trial court denied Gibson’s motion, finding Crawford’s
statements did not clearly exculpate Gibson and she had a “motive to lie”
about the origins of the box and drugs. Thus, the court concluded that
omission of Crawford’s statements did not “tend to mislead” the judge who
authorized the search. See Frimmel v. Sanders, 236 Ariz. 232, 239, ¶ 27 (App.
2014) (“A Franks challenge is also authorized when it has been shown ‘a
warrant affidavit valid on its face . . . contains deliberate or reckless
omissions of facts that tend to mislead.’”). The court also found that if the
affidavit included the omitted statements, the facts presented would still
establish probable cause.

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¶12 The Fourth Amendment to the U.S. Constitution requires that
a search warrant be issued only upon probable cause. U.S. Const. amend.
IV. Under Franks v. Delaware, a defendant may attack a search warrant, and
exclude evidence obtained during a search, if the finding of probable cause
was “based on intentional or reckless falsehood.” State v. Poland, 132 Ariz.
269, 279 (1982); see State v. Carter, 145 Ariz. 101, 108 (1985). Such a challenge
may also succeed if the defendant shows the warrant affidavit “contains
deliberate or reckless omissions of facts that tend to mislead,” as an affiant
“is not permitted to tell less than the total story.” Frimmel, 236 Ariz. at 239,
¶ 27 (quotations omitted).

¶13 In assessing a claim that a warrant fails under Franks, courts
employ a two-prong test. First, the court examines whether the affiant
knowingly, or with reckless disregard for the truth, included a false
statement or omitted material information from the affidavit. State v.
Buccini, 167 Ariz. 550, 554 (1991). This is a factual determination that we
uphold unless it is clearly erroneous. Id. Next, if the court finds such
omissions or false statements, the court must remove any false statements
or add any materially omitted information to the affidavit and assess
whether the newly-drafted affidavit establishes probable cause. Frimmel,
236 Ariz. at 241, ¶ 38. In this stage of the analysis, whether the redrafted
affidavit establishes probable cause is reviewed de novo. Buccini, 167 Ariz.
at 555.

¶14 Gibson contends the warrant affidavit failed to establish
probable cause that evidence of criminal activity would be found on his cell
phone. Alternatively, he argues that if Beard and Crawfords’ statements
during the stop had been included in the affidavit, they would have
precluded any finding of probable cause.

¶15 Probable cause exists to conduct a search when “a reasonably
prudent person, based upon the facts known by the officer, would be
justified in concluding that the items sought are connected with criminal
activity and that they would be found at the place to be searched.” Carter,
145 Ariz. at 110. But as the Supreme Court has explained, “probable cause
is a fluid concept—turning on the assessment of probabilities in particular
factual contexts—not readily, or even usefully, reduced to a neat set of legal
rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). Probable cause is a
“practical and common-sense” standard that depends on the totality of the
circumstances. State v. Sisco, 239 Ariz. 532, 535, ¶ 8 (2016).

¶16 Even if omission of Crawford’s and Beard’s statements was
material and tended to mislead, a redrafted affidavit including those

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statements would have sufficient facts to support a search of Gibson’s cell
phone. Meth pipes were found in the center console and front passenger
door jamb, within reach of Gibson. In the black box underneath his seat,
officers found almost a quarter pound of meth, fentanyl pills, and baggies
consistent with drug trafficking. Those facts, together with the detective’s
knowledge regarding the prevalence of cell phone usage in drug trafficking
organizations, gave him a sufficient basis to reasonably believe evidence of
narcotics trafficking would be found on at least one of the cell phones.

¶17 Likewise, Crawford and Beard’s statements do little, if
anything, to affect probable cause. As to the black box and its contents,
Crawford and Beard said only that they knew nothing about it and denied
seeing Gibson with the box. The statements neither identify another person
as the owner of the box nor explain how the drugs came to be under
Gibson’s seat. Probable cause did not require the detective to be certain that
evidence of drug trafficking would be on the phones; it required “only a
probability or substantial chance of criminal activity.” Sisco, 239 Ariz. at
536, ¶ 15 (quoting Gates, 462 U.S. at 243 n.13). On these facts, considering
the totality of the circumstances, the detective’s conclusions were not
unreasonable. Adding these statements to the warrant affidavit would not
negate the existence of probable cause. Because we conclude a redrafted
affidavit including these statements would still establish probable cause,
we reject Gibson’s argument that the original affidavit failed to establish
probable cause.

¶18 Gibson’s reliance on State v. Miramon, 27 Ariz. App. 451
(1976), to argue these facts could not create probable cause, is not
persuasive. In Miramon, this court reversed the defendant’s conviction for
possession of marijuana for sale. Id. at 453. The only evidence supporting
the defendant’s conviction was the presence of marijuana beneath the
passenger seat he had been sitting in, and this court held that the
defendant’s presence near the drugs, alone, could not establish conviction.
Id. at 452–53. But Miramon examined whether evidence was sufficient to
sustain a conviction, requiring evidence beyond a reasonable doubt, State
v. Portillo, 182 Ariz. 592, 594 (1995), rather than evidence sufficient to
establish probable cause, see Gates, 462 U.S. at 235 (acknowledging “[f]inely-
tuned standards such as proof beyond a reasonable doubt” do not apply in
probable cause determinations). Gibson has not shown the court erred in
denying his motion to suppress.

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B. Admissibility of Text Messages under Rule 404(b)

¶19 Gibson argues the trial court erroneously admitted text
messages found on his cell phone detailing several prior drug transactions.
Before trial the State moved to admit evidence of the text messages under
Rule 404(b). The court granted the State’s motion, finding the text messages
were relevant to proving the identity of the owner of the drugs that were
found inside the box, as well as showing knowledge and plan or
preparation. We review a court’s admission of other acts evidence for an
abuse of discretion. State v. Rix, 256 Ariz. 125, 131, ¶ 17 (App. 2023).

¶20 Generally, evidence of a person’s “other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” Ariz. R. Evid. 404(b)(1). A purpose of this
rule is “to prevent introduction of evidence solely to prove a defendant’s
propensity for crime or to show [the] defendant is a bad person.” State v.
Castaneda, 150 Ariz. 382, 391 (1986). Though such evidence is not admissible
if offered only to show propensity, other acts evidence may be admissible
for other purposes, including “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid.
404(b)(2). Before admitting evidence under Rule 404(b)(2), a court must
determine there is clear and convincing evidence that the acts occurred.
State v. Terrazas, 189 Ariz. 580, 582–83 (1997). Then the court must find: (1)
the evidence of the other acts is offered for a proper, non-propensity
purpose under Rule 404(b); (2) the proffered evidence is relevant to prove
that purpose; and (3) the probative value of such evidence is not
substantially outweighed by the danger of unfair prejudice. State v. Allen, 253 Ariz. 306, 333, ¶ 58 (2022).

¶21 Gibson acknowledges the other acts evidence may have been
relevant to whether he possessed the drugs with an intent to sell but
contends such evidence was not relevant to questions of “intent or
knowledge” because he denied the act ever occurred. Gibson’s briefing,
however, does not address the court’s findings that the messages (1) were
admissible for establishing his identity as a possessor of the box, and (2)
probative for showing plan and preparation to possess the drugs. Thus, he
has abandoned any argument that the text messages were inadmissible on
these grounds. See State v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to
argue a claim usually constitutes abandonment and waiver of that claim.”).
Because Gibson has not challenged all relevant grounds for the court’s
decision, he has not shown the court erred.

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C. Crawford’s Statements

¶22 Before Gibson’s trial, Crawford and Beard were separately
charged with crimes related to the drugs and paraphernalia found in the
car; both cases were resolved through plea agreements. As relevant here,
Crawford’s plea agreement provided that she would not be further
prosecuted for the charges against her in the indictment, including
possession of dangerous drugs (meth), possession of narcotic drugs
(fentanyl), or possession of drug paraphernalia. The agreement also
provided that she would not be prosecuted for possession of dangerous
drugs for sale, even though she was never charged with possession for sale
in the indictment. Even so, the agreement did not provide immunity for
possession of narcotic drugs for sale. 1

¶23 The State moved before trial to preclude statements Crawford
made during the stop and search of the car, asserting such statements were
hearsay. Gibson argued that Crawford could not invoke her Fifth
Amendment right to remain silent and that he expected her to testify at trial.
But if she were allowed to invoke her Fifth Amendment privilege,
according to Gibson, her statements were admissible as statements against
interest under Rule 804(b)(3). At a pretrial hearing, the trial court found
that Crawford’s statements denying knowledge of the box or seeing Gibson
with the box were inadmissible hearsay. The court further found that such
statements were not contrary to her interests and thus did not fall under the
Rule 804(b)(3) exception. See infra ¶¶ 34–37.

¶24 As to Crawford’s invocation of the Fifth Amendment, the
State maintained she could still be prosecuted for possession of narcotic
drugs for sale. Crawford’s counsel affirmed Crawford’s intent to exercise
her right to remain silent. The court determined Crawford could
legitimately raise her Fifth Amendment right to remain silent. Noting “a
strong argument” that Crawford could not be charged with possession of
dangerous drugs for sale for the meth found in the black box, the same was
not true for the fentanyl pills. Because the two drugs were found together
in the same box, the court determined any questions about the box, her co-
ownership of the car, or similar questions exposed her to potential criminal
liability for the possession of the fentanyl, and thus Crawford could invoke

1 The record on appeal does not include a copy of Crawford’s plea
agreement, but Gibson does not dispute that the plea agreement gave
Crawford immunity for charges of possession of dangerous and/or
narcotic drugs, possession of paraphernalia, and possession of dangerous
drugs for sale.

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the Fifth Amendment. On the last day of trial, out of the jury’s presence,
Crawford invoked her Fifth Amendment right to remain silent.

¶25 During cross-examination of the officer who conducted the
stop, Gibson tried to ask about statements Crawford had made to the officer
relating to drugs in the car. After an objection from the State, the trial court
allowed the officer to testify about statements Crawford made, in which she
admitted possessing or using drugs, as statements against interest. At the
same time, the court determined it would not allow any statements in
which Crawford inculpated another (i.e., that she received the drugs from
her ex-boyfriend).

¶26 Gibson contends the court erred in determining Crawford
could legitimately refuse to testify through her Fifth Amendment privilege
against self-incrimination, and that the court erred in excluding certain
statements as hearsay. Because distinct considerations govern these issues,
we address them separately.

1. Fifth Amendment

¶27 By allowing Crawford to assert her Fifth Amendment right to
remain silent and not testify at trial, Gibson contends the court denied him
his Sixth Amendment right to compulsory process and the ability to present
a defense. We review a court’s decision to preclude testimony from a
witness intending to assert their Fifth Amendment privilege for abuse of
discretion. State v. Champagne, 247 Ariz. 116, 140, ¶ 78 (2019).

¶28 Under the Sixth Amendment, defendants “have a ‘right to
offer the testimony of witnesses, and to compel their attendance, if
necessary,’ in order to present a defense.” State v. Harrod, 218 Ariz. 268, 276,
¶ 20 (2008) (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)). But that
right is not absolute; a defendant’s right to compel a witness’s testimony
does not include a right to force a witness to waive their Fifth Amendment
privilege against self-incrimination. State v. Mills, 196 Ariz. 269, 276, ¶ 31
(App. 1999). A witness, however, must establish a reasonable basis for
invoking their Fifth Amendment right. State v. Rosas-Hernandez, 202 Ariz.
212, 216, ¶ 11 (App. 2002). It is “only in the narrow circumstance where the
trial judge rules that the Fifth Amendment would be properly invoked in
response to all relevant questions that the party calling the witness plans on
asking should the court allow the witness’s Fifth Amendment Privilege to
defeat the defendant’s Sixth Amendment Right.” Mills, 196 Ariz. at 276,
¶ 31 (citation modified).

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¶29 Gibson argues that because Crawford‘s plea agreement
prevented her from being prosecuted for possession of dangerous drugs for
sale connected to the black box, she no longer had a Fifth Amendment
privilege about matters related to the box and its contents. But nothing in
the record before us suggests her plea agreement contemplated she would
be immune from prosecution for possession of narcotic drugs for sale. And
given that the meth and fentanyl were found together in the same box,
having Crawford testify about the box or meth, without also implicating
her for potential possession of the fentanyl for sale, was not feasible. Gibson
has not shown the court abused its discretion by finding Crawford could
assert her Fifth Amendment privilege.

¶30 Nevertheless, Gibson maintains the State was collaterally
estopped from prosecuting Crawford for possession of narcotic drugs for
sale because she was given immunity for possession of dangerous drugs for
sale. But “collateral estoppel is not favored and is therefore applied
sparingly” in criminal cases. State v. Whelan, 208 Ariz. 168, 172, ¶ 12 (App.
2004). Regardless, Gibson fails to explain why this doctrine would prevent
the State from pursuing future charges against Crawford; collateral
estoppel requires, among other elements, that the issue sought to be
relitigated is precisely the same as the issue resolved in the previous litigation.
Id. at ¶ 13. Crawford’s possession of the fentanyl in the box under Gibson’s
seat was never litigated in any previous criminal proceeding. Thus, the
State would not have been collaterally estopped from charging Crawford
with possession of narcotic drugs for sale.

¶31 Gibson likewise suggests the State denied him his right to due
process by not extending immunity to Crawford for prosecution of narcotic
drugs for sale. But the State is generally not required to extend immunity
to witnesses; such decisions lie within the discretion of the prosecutor. State
v. Fisher, 141 Ariz. 227, 243 (1984), abrogated on other grounds by State v.
Wilson, 237 Ariz. 296 (2015); see also State v. Buchanan, 110 Ariz. 285, 289
(1974); A.R.S. § 13-4064. Even so, the refusal to grant immunity may
deprive a defendant of due process if (1) the prosecutor has committed
misconduct, or (2) the witness would present clearly exculpatory evidence
and the State has no interest in withholding immunity. State v. Doody, 187
Ariz. 363, 376 (App. 1996).

¶32 Neither exception applies here. As to prosecutorial
misconduct, Gibson claims the failure to include possession of narcotic
drugs for sale in Crawford’s plea agreement was an oversight, and the
prosecutor arbitrarily argued to the court that the State could pursue such
charges against her in the future. But if anything, the record reflects it was

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an oversight to grant Crawford immunity for possession of dangerous
drugs for sale, a crime for which she was never charged. Nothing shows
that governmental error or an intentional act caused Crawford’s
unavailability as a witness. State v. Axley, 132 Ariz. 383, 388 (1982) (“There
is no violation of the right to compulsory process when the unavailability
of the witness has not resulted from the suggestion, procurement, or
negligence of the government.”(quotation modified)).

¶33 Also, the evidence Crawford was to provide was not “clearly
exculpatory.” To meet that threshold, Crawford’s statements must have
done more than raise the mere possibility of some doubt for Gibson’s case.
See Fisher, 141 Ariz. at 244 (noting a defendant would need to show the
witness’s testimony “would offer evidence that was clearly exculpatory and
essential to the defense’s case”); see also United States v. Quinn, 728 F.3d 243,
262 (3rd Cir. 2013) (explaining that evidence is clearly exculpatory when it
“would exonerate or free [the defendant] of guilt or blame,” and does not
include evidence that is speculative or insufficient to exonerate the
defendant). Crawford’s statements about her co-ownership of the car, not
seeing Gibson with the box, or receiving drugs from her ex-boyfriend, are
insufficient on their own to exonerate Gibson. Gibson has not established
the State deprived him of due process by failing to extend witness
immunity to Crawford.

2. Statements against Interest

¶34 Gibson also challenges the court’s ruling that Crawford’s
statements were not statements against her interest. We review a court’s
determination on whether a hearsay exception applies to a statement for an
abuse of discretion. State v. Parker, 231 Ariz. 391, 401, ¶ 28 (2013).

¶35 “Hearsay” refers to an out of court statement offered in
evidence for the truth of the matter asserted; hearsay is generally
inadmissible absent an applicable exception. Ariz. R. Evid. 801(c), 802. One
of these exceptions is Rule 804(b)(3), which permits introduction of hearsay
statements against interest when the declarant is unavailable as a witness.
This exception applies to statements that “a reasonable person in the
declarant’s position would have made only if the person believed it to be
true because, when made, it . . . had so great a tendency . . . to expose the
declarant to civil or criminal liability.” Ariz. R. Evid. 804(b)(3)(A). For
statements offered in a criminal case that expose the declarant to criminal
liability, the statements must be “supported by corroborating
circumstances that clearly indicate [the statements] trustworthiness—after
considering the totality of circumstances under which [the statements were]

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made and any evidence that supports or undermines it.” Ariz. R. Evid.
804(b)(3)(B); see also State v. LaGrand, 153 Ariz. 21, 27–28 (1987) (listing the
relevant factors for determining whether a statement is trustworthy). This
exception does not require the statement to be a direct confession of guilt,
LaGrand, 153 Ariz. at 27, but the statement must still individually be self-
inculpatory, State v. Dominguez, 236 Ariz. 226, 230, ¶ 10 (App. 2014).

¶36 The statements Gibson relies on did not directly inculpate
Crawford. Relevant to this issue, Crawford made statements about her ex-
boyfriend (and co-owner of the car), who had given her drugs and placed
them in the car, and that she had not seen Gibson with the box. To the
extent Crawford’s admission that someone provided her with drugs
inculpates her for possession of drugs, she made such statements after
police had found the drugs in her car. To be admissible under Rule
804(b)(3), the statement must expose the declarant to criminal liability when
the declarant made the statement. Because officers had already found the
drugs in her car, Crawford’s statements about the source of her drugs
would not expose her to additional criminal liability. Cf United States v.
Seyfried, 435 F.2d 696, 697–98 (7th Cir. 1970) (concluding a third party’s
statement that no other person, including defendant, aided in a bank
robbery was not a statement against penal interest because the statements
“exonerating any possible accomplices did not subject [that third party] to
any additional charges or more severe punishment”).

¶37 As to Crawford’s denial that she ever saw Gibson with the
box, he claims the statement implied the box more likely belonged to
Crawford. But Rule 804(b)(3) requires the statement to have “so great a
tendency” to expose the declarant to liability; the implication that the box
might more likely be linked to Crawford because she had not seen it with
Gibson does not meet that bar. Gibson has not shown the court abused its
discretion by finding these statements were not admissible under Rule
804(b)(3).

D. Third-Party Defense Evidence

¶38 Gibson argues the court erroneously precluded testimony
about third-party defense evidence based on relevancy grounds. We
review a trial court’s ruling on the relevance and admissibility of evidence
for abuse of discretion. State v. Kiper, 181 Ariz. 62, 65 (App. 1994).

¶39 Though a defendant may present evidence that a third party
committed the crime for which the defendant is charged, State v. Blakley, 204
Ariz. 429, 441, ¶ 63 (2003), such evidence must still pass the relevancy

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requirements of Rules 401 and 403, State v. Goudeau, 239 Ariz. 421, 460,
¶ 163 (2016). Thus, third-party defense evidence must have a tendency to
make a fact of consequence more or less probable, Rule 401, and the court
may exclude such evidence if “its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues [or]
misleading the jury,” among other concerns, Rule 403. Third-party
culpability evidence is relevant “only when it tends to create a reasonable
doubt as to the defendant’s guilt.” State v. Machado, 226 Ariz. 281, 284, ¶ 16
n.2 (2011) (citation modified).

¶40 Before trial, the State moved to preclude admission of Beard’s
statements made during the car search, in which she acknowledged
receiving drugs from Crawford. The State argued such statements were
irrelevant. At trial the court granted the State’s motion, finding that
whether Crawford “is a dealer of drugs or dealt drugs to [Beard] at some
point” did not affect whether Gibson knew about the drugs or knowingly
possessed the drugs in the car. The court also noted that “if Crawford sold
drugs to Beard, that doesn’t necessarily preclude or indicate that she was
the possessor” of the drugs at issue in Gibson’s case, and that even if the
evidence showed Crawford possessed the box containing the drugs, “her
having knowledge of and possessing that box does not preclude in any way
[Gibson] from joint possession of it.” The court concluded the evidence was
not relevant under Rule 401, and therefore inadmissible. The court also
ruled that, even if such statements had minimal probative value, they
tended to confuse the issues in the case and the statements were therefore
inadmissible under Rule 403.

¶41 During Gibson’s cross-examination of the detective, Gibson
tried to introduce evidence about the detective’s prior investigations into
drug activity at Crawford’s residence. The court sustained the State’s
objection to that evidence “for the same reasons that [it precluded]
statements by Ms. Beard” regarding Crawford providing Beard with drugs.

¶42 Gibson argues the court incorrectly applied the standard for
relevance in precluding this evidence. We disagree. Even if evidence of
Crawford’s drug transactions with Beard, or other drug activity, tends to
show she has some connection to the box of drugs, that evidence does not
automatically make Gibson’s guilt more or less probable. To conclude
otherwise would imply that Crawford’s possession of drugs somehow
precludes Gibson from also possessing the box. Possession of drugs may
be sole or joint, and obtaining a conviction for possession of drugs for sale
does not require the State to demonstrate exclusive possession or control.
See State v. Curtis, 114 Ariz. 527, 528 (App. 1977). Any evidence of

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Crawford’s potential possession of the box did not diminish evidence that
Gibson likewise possessed the drugs. Similarly, the proffered evidence did
not connect Crawford to the box or drugs. A court may properly preclude
third-party defense evidence that rests on vague suspicion and
speculations. See Goudeau, 239 Ariz. at 460, ¶ 165; State v. Bigger, 227 Ariz.
196, 209, ¶ 43 (App. 2011). Gibson has not shown the court abused its
discretion in finding this evidence irrelevant.

¶43 The court also acted within its discretion when finding that
any probative value of such evidence was substantially outweighed by the
potential for confusing the issues in the case. As explained, evidence that
Crawford may have possessed the box and its contents did not preclude
Gibson from also possessing the same. And the court could reasonably
determine that litigating Crawford’s potential possession of the box would
cause “the jury to lose sight of the main issue”—here, whether Gibson had
possession of the drugs. See State v. Gibson, 202 Ariz. 321, 324 (2002). Given
the “considerable discretion” trial courts have in performing the balancing
test under Rule 403, State v. Cooperman, 232 Ariz. 347, 351, ¶ 17 (2013), we
cannot say the court abused its discretion.

E. Sufficiency of the Evidence

¶44 Gibson argues the evidence was insufficient to sustain his
convictions. Sufficiency of the evidence is a question of law reviewed de
novo, State v. West, 226 Ariz. 559, 562, ¶ 15 (2011), viewing the evidence in
a light most favorable to sustaining the jury’s verdicts, Parker, 231 Ariz. at
407, ¶ 72. “Substantial evidence is evidence that ‘reasonable persons could
accept as sufficient to support a guilty verdict beyond a reasonable doubt.”
State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007) (citation modified). A conviction
may be proven “by circumstantial evidence alone.” State v. Burton, 144
Ariz. 248, 252 (1985).

¶45 Gibson contends that no evidence showed he knowingly
possessed the drugs in the black box, comparing his case with Miramon.
Miramon stands for the uncontroversial proposition that a defendant’s mere
presence near drugs is not enough to sustain a conviction for possession of
drugs. Miramon, 27 Ariz. App. at 452. In that case, this court reversed a
defendant’s conviction for possession of marijuana for sale; the defendant
was arrested after he was found sitting in the passenger seat of a vehicle,
under which there was a brown bag containing marijuana. Id. The brown
bag protruded from beneath the seat far enough to touch the defendant’s
foot or pants. Id. After searching the defendant, officers also found two
marijuana cigarettes in his sock. Id. This court concluded the State

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produced “no evidence of any kind to connect the cigarettes with the
marijuana” found beneath the passenger’s seat, and the defendant’s
knowledge of the brown bag did not establish he had “the right to control
its disposition or use.” Id. at 453.

¶46 Unlike the defendant in Miramon, Gibson’s proximity to the
drugs was not the only evidence supporting his conviction. The detective
testified that the text messages found on Gibson’s phone included
conversations of drug transactions matching the type and quantity of the
drugs found in the black box beneath his seat. The jury could rely on these
messages as circumstantial evidence that Gibson knew of the drugs beneath
his seat, and that he exercised control over the same.

¶47 Gibson also argues the lack of fingerprint evidence tying him
to the box and Beard’s testimony that she had never seen Gibson with the
box were exculpatory and cut against his convictions. To the extent this
evidence conflicts with the contents of the text messages, it was for the jury
to decide what weight to assign to such evidence. See State v. Felix, 234 Ariz.
118, 120–21, ¶ 10 (App. 2014). Gibson has not shown there was insufficient
evidence to sustain his convictions.

F. Prosecutorial Misconduct

¶48 Gibson argues the State committed prosecutorial misconduct
by presenting testimony about facts not supported by the evidence. Gibson
did not object to the prosecutor’s line of questioning, so we review for
fundamental error only. State v. Escalante, 245 Ariz. 135, 138, ¶ 1 (2018).
This requires Gibson to show that: (1) error exists, (2) the error was
fundamental, and (3) the error caused him prejudice. Id. at 142, ¶ 21.

¶49 On the second day of trial, the State called the officer who
conducted the traffic stop and the search to testify. During his testimony,
the State played videos of the officer’s body worn camera during the stop.
In one of these clips, as the officer approaches Gibson while he is still seated
in the car, the officer opens the front passenger door and asks him to exit
the car. Gibson appears to briefly lean forward and look down, after which
the officer says to Gibson “let me see your hands.” When the prosecutor
asked the officer at trial why he had said this, the officer responded by
saying “it looked like [Gibson] was reaching towards under the seat in that
direction where I couldn’t see his hands.” As the officer acknowledged,
Gibson claimed he was reaching for his wallet. On cross-examination, the
officer admitted he had not disclosed in any report or pretrial interview his
impression that Gibson had reached toward something beneath the seat.

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¶50 Prosecutorial misconduct refers to “any conduct that
infringes a defendant’s constitutional rights,” and can range from
inadvertent error to intentional misconduct. State v. Murray, 250 Ariz. 543,
548, ¶ 12 (2021) (citation modified). We disagree that the prosecutor’s
questioning rises to the level of misconduct. Though Gibson claims the
questioning was “fabrication of non-existent evidence,” the record shows
otherwise. The prosecutor merely asked about the officer’s conduct and
perception during the traffic stop. Gibson had the opportunity to, and in
fact did, cross-examine the officer about his answer to the prosecutor’s
questioning. This is not a matter in which the prosecutor turned the jury’s
attention to evidence not before the jury’s consideration. See State v. Acuna
Valenzuela, 245 Ariz. 197, 217, ¶ 72 (2018) (identifying prosecutorial
misconduct when prosecutor referred to a tape recording that was not in
evidence, diverting the jury’s attention to improper matters); State v. Bailey, 132 Ariz. 472, 477–78 (1982) (noting a prosecutor may not refer to evidence
that is not in the record or testify to matters not in evidence). The officer’s
body worn camera footage was admitted as evidence for the jury to view
and consider. Though Gibson was free to challenge and disagree with the
officer’s perspective of what Gibson was doing when he leaned forward,
the prosecutor’s question did not deprive him of any constitutional right.
Gibson has not shown that prosecutorial misconduct occurred.

G. Sentencing as a Category Three Repetitive Offender

¶51 Gibson argues the court improperly sentenced him as a
category three repetitive offender. After his arrest for possession of
dangerous and narcotic drugs for sale, police executed a search warrant on
Gibson’s property where they found drugs and a weapon. Gibson was
later convicted of misconduct involving weapons and the trial for that
charge occurred before Gibson’s trial for the charges at issue in this appeal,
and Gibson was sentenced in 2024. At sentencing for the misconduct
involving weapons conviction, the trial court found Gibson had three prior
felony convictions from Oregon that occurred in 1989, 2001, and 2005.2 This

2 Gibson had two felony convictions committed on the same date in
2001 and several felonies committed on the same date in 2005. Based on a
lack of clarifying information about the underlying nature of the felonies,
the trial court determined the 2001 felonies all occurred on the same
occasion and found the same for the 2005 felonies. See A.R.S. § 13-703(L).

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meant Gibson had one historical prior felony conviction when he was
sentenced for misconduct involving weapons. See A.R.S. § 13-105(22)(d). 3

¶52 At sentencing, the State argued the court should consider
Gibson’s misconduct involving weapons conviction as an additional
historical prior felony conviction, making him a category three repetitive
offender. Gibson countered that whether he was a category three repetitive
offender was a question for the jury, citing State v. Porter, 258 Ariz. 590
(App. 2024), depublished in part by 259 Ariz. 467 (2025), and Erlinger v. United
States, 602 U.S. 821 (2024). According to Gibson, the misconduct involving
weapons charge was part of the “same series of events” as the charges the
court was sentencing him for, and so it could not be a prior felony
conviction. The court found the misconduct involving weapons conviction
was a historical prior felony conviction, and sentenced Gibson as a category
three repetitive offender.

¶53 Section 13-703 governs sentencing for repetitive offenders. A
category two repetitive offender is a person convicted of a felony who is at
least 18 years old (or has been tried as an adult) and has one historical prior
felony conviction. A.R.S. § 13-703(B). A category three repetitive offender
has two or more historical prior felony convictions. A.R.S. § 13-703(C). A
category three repetitive offender faces a higher range of sentences than a
category two repetitive offender for the same offenses. A.R.S. § 13-703(I),
(J). A “historical prior felony conviction,” as relevant to this appeal, is
“[a]ny felony conviction that is a third or more prior felony conviction.”
A.R.S. § 13-105(22)(d). In assessing whether a person is a category two or
category three repetitive offender, convictions for two or more offenses
“committed on the same occasion” shall be counted as only one conviction.
A.R.S. § 13-703(L).

¶54 According to Gibson, the court erred either in sentencing him
as a category three repetitive offender because (1) his misconduct involving
weapons conviction and possession of dangerous and narcotic drugs for
sale convictions occurred on the same occasion, or (2) the court failed to
submit the “same occasion” issue to a jury as Erlinger and Porter require. In
Porter, applying the Supreme Court’s holding in Erlinger, this court

3 Gibson has not challenged the trial court’s determination that he had
one historical prior felony conviction based on the three Oregon
convictions, nor has he argued that State v. Porter, 258 Ariz. 590 (App. 2024),
depublished in part by 259 Ariz. 467 (2025) or Erlinger v. United States, 602 U.S.
21 (2024) required a jury to determine whether those three convictions were
committed on the same occasion under § 13-701(L).

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determined that whether an offense was committed on the “same occasion”
is a jury determination because such an inquiry requires the court to do
more than just “identify previous convictions and the legal elements
required to sustain them.” Porter, 258 Ariz. at 593, ¶¶ 9–10 (citation
modified). See also State v. Blackwell, ___ Ariz. ___, ___, 592 P.3d 149, 153, ¶
18 (App. 2026) (“Whether certain historical prior felony convictions
committed by [the defendant] occurred on the same occasion necessarily
goes beyond determining what crimes he committed and the elements of
each crime.”).

¶55 Our supreme court’s decision in State v. Thomas, 219 Ariz. 127
(2008) is instructive. There, the defendant was convicted in 2005 for drug
crimes committed in 2002; he was also convicted in 2004 for an aggravated
assault committed in 2003. Thomas, 219 Ariz. at 128, ¶ 2. In sentencing the
defendant for the drug convictions, the trial court counted his aggravated
assault conviction as a historical prior felony conviction. Id. at ¶ 3.
Affirming the trial court’s sentences, our supreme court acknowledged the
different categories of historical prior felony convictions. Id. at 129, ¶ 7. The
subsection relevant in Thomas was for “any prior felony conviction for
which a term of imprisonment is mandated,” which included the
defendant’s aggravated assault conviction. Id. at ¶ 8 (citation modified).
Because the statute concerned itself only with the date of conviction, rather
than when the crime was committed, only the time when the defendant
committed the offense was irrelevant. Id. at 130, ¶¶ 9–10. Thus, the
defendant’s aggravated assault conviction could enhance his sentences for
his drug convictions because he was convicted of the aggravated assault
before the drug crimes, despite having committed the drug offenses first.
Id. at 131, ¶ 17.

¶56 For Gibson’s offenses, the relevant statute governing his
historical prior felony convictions is A.R.S. § 13-105(22)(d). This statute
applies to any felony conviction “that is a third or more prior felony
conviction.” A.R.S. § 13-105(22)(d) (emphasis added). The statute does not
refer to the timing of the offense, and like the statute in Thomas, turns only
on whether there is a prior conviction. Thus, when Gibson committed
misconduct involving weapons is irrelevant; all that matters is when he was
convicted of the offense. Gibson was convicted of misconduct involving
weapons before he was convicted for possession of dangerous and narcotic
drugs for sale. Because the misconduct involving weapons conviction was
a historical prior felony conviction under the statute, the court properly
sentenced Gibson as a category three repetitive offender.

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H. Consecutive Sentences

¶57 Gibson’s final argument concerns his consecutive sentences
for possession of dangerous drugs for sale and possession of narcotic drugs
for sale. He argues his convictions constitute a single act under A.R.S.
§ 13-116, which states, “[a]n act or omission which is made punishable in
different ways by different sections of the laws may be punished under
both, but in no event may sentences be other than concurrent.” We review
de novo whether consecutive sentences are permissible under § 13-116.
State v. Siddle, 202 Ariz. 512, 517, ¶ 16 (App. 2002).

¶58 To determine whether two crimes constitute a single act such
that consecutive punishments are illegal, we apply the test set forth in State
v. Gordon, 161 Ariz. 308 (1989). See State v. Price, 218 Ariz. 311, 315, ¶ 14
(App. 2008). Gordon explained that the analysis begins by:

considering the facts of each crime separately, subtracting
from the factual transaction the evidence necessary to convict
on the ultimate charge—the one that is at the essence of the
factual nexus and that will often be the most serious of the
charges. If the remaining evidence satisfies the elements of
the other crime, then consecutive sentences may be
permissible under A.R.S. § 13-116. In applying this analytical
framework, however, we will then consider whether, given
the entire “transaction,” it was factually impossible to commit
the ultimate crime without also committing the secondary
crime. If so, then the likelihood will increase that the
defendant committed a single act under A.R.S. § 13-116.

Gordon, 161 Ariz. at 315.

¶59 Applying this test, we will assume the “ultimate charge” was
possession of dangerous drugs for sale. The facts supporting Gibson’s
conviction for this offense—the meth found in the black box beneath his
seat in the car, combined with the several text messages indicating sale of
similar quantities of meth—do not his render possession of narcotic drugs
impossible. The box also contained numerous fentanyl pills, and Gibson’s
phone contained several messages discussing the sale of pills. That Gibson
possessed both in the same box simultaneously does not render his
convictions a “single act.” Gibson has not shown the court’s consecutive
sentences for his possession for sale convictions were unlawful.

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CONCLUSION

¶60 We affirm Gibson’s convictions and sentences.

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

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