THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

OROZCO, Judge.

¶1 Cliff St. Brice appeals his convictions for conspiracy to commit sale or transportation of marijuana, a class 2 felony; six counts of sale or transportation of marijuana, each a class 2 felony; possession of marijuana for sale, a class 2 felony; misconduct involving weapons, a class 4 felony; and possession of drug paraphernalia, a class 6 felony. The convictions stem from his involvement in a marijuana trafficking operation that shipped marijuana to the U.S. Virgin Islands using the United States Postal Service. St. Brice claims the trial court erred by: (1) permitting the State to introduce an exhibit that had not been disclosed; (2) failing to give a proper curative instruction after the State shifted the burden of proof in closing argument; and (3) admitting irrelevant evidence. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010) and 13-4033.A.1 (2010).1 For reasons that follow, we affirm.

DISCUSSION

Disclosure

¶2 St. Brice contends the trial court erred by admitting into evidence an exhibit he claims was not properly disclosed by the State prior to trial. The exhibit in question is a faxed copy of a fingerprint card with a set of St. Brice's fingerprints. We review a trial court's ruling on disclosure disputes for abuse of discretion. State v. Towery, 186 Ariz. 168, 186, 920 P.2d 290, 308 (1996).

¶3 A postal inspector obtained search warrants to open six suspicious parcels mailed at various post offices in the Phoenix area for delivery to the U.S. Virgin Islands. The parcels were found to contain multiple wrapped packages of marijuana. The State's fingerprint expert matched latent fingerprints (the Latent Prints) on the inside surfaces of the parcels to a set of prints (the Booking Prints) taken from St. Brice when he was booked on drug charges after he was found inside a residence that contained bundles of marijuana similar to those discovered in the six parcels.

¶4 Because the case agent was not present when the Booking Prints were taken, to prove the Booking Prints were from St. Brice, the case agent personally obtained another set of fingerprints (the Comparison Prints) from St. Brice and faxed a copy of the Comparison Prints to the State's expert in Washington, D.C. The expert compared the faxed copy of the Comparison Prints to the Booking Prints he used in matching the Latent Prints to St. Brice and determined both the Booking Prints and the Comparison Prints came from the same person.

¶5 At trial, St. Brice objected to admission of the set of Booking Prints for lack of foundation and later to the set of Comparison Prints taken by the case agent on the grounds that they had not been disclosed in compliance with Arizona Rules of Criminal Procedure, Rule 15.1. Rule 15.1 requires the State to timely disclose all exhibits it intends to use at trial. Ariz. R. Crim. P. 15.1.b(5). The trial court and defense counsel ultimately determined that the set of Comparison Prints obtained by the case agent from St. Brice had been properly disclosed by the State prior to trial. Defense counsel argued, however, that the State never disclosed the faxed copy of Comparison Prints that the fingerprint expert reviewed in comparing the first and second set of St. Brice's prints. Finding no material differences to exist between the original Comparison Prints and the faxed copy, the trial court ruled that the disclosure issue raised by defense counsel had been "rectified" and subsequently admitted both the original Comparison Prints and the faxed copy.

¶6 We hold the trial court did not abuse its discretion by overruling St. Brice's objection and admitting the faxed copy of the Comparison Prints. The trial court found there to be no material differences between the original of the Comparison Prints that had been disclosed and the faxed copy, a finding that is confirmed by our own review of the exhibits. The only differences consist of identification markings added to the exhibits after the Comparison Prints were faxed to the expert. St. Brice also fails to establish any prejudice from not seeing the faxed copy prior to trial given the lack of differences between the faxed copy and the original.2 Absent any showing of prejudice, no basis exists for finding the trial court abused its discretion in not precluding the faxed copy of the Comparison Prints. State v. Ramirez, 116 Ariz. 259, 268, 569 P.2d 201, 210 (1977); see also Towery, 186 Ariz. at 186, 920 P.2d at 308 ("Denial of a sanction is generally not an abuse of discretion if the trial court believes the defendant will not be prejudiced." (citation omitted)).

¶7 Our holding that the trial court did not abuse its discretion in not precluding the faxed copy of the Comparison Prints finds further support from the fact St. Brice did not seek a continuance to remedy any possible prejudice. See State v. Floyd, 120 Ariz. 358, 361, 586 P.2d 203, 206 (App. 1978) (holding no abuse of discretion in not excluding non-disclosed evidence where defendant made no motion for continuance to remedy any possible prejudice).

Curative Instruction

¶8 St. Brice next contends the trial court erred by not giving an appropriate curative instruction after defense counsel complained that the prosecutor shifted the burden of proof in her rebuttal closing argument. We review a trial court's denial of a requested instruction for abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006).

¶9 After the prosecutor completed her closing argument, defense counsel informed the trial court that she believed the prosecutor had shifted the burden of proof to the defendant by arguing that the defense had failed to prove anything, defense counsel therefore asked for a curative instruction. The trial court responded to the request by re-reading the reasonable doubt instruction to the jury. St. Brice complains that this instruction failed to address his request that the jury be told the defense does not have to prove anything.

¶10 We find no error in the trial court not providing further instruction to the jury on the burden of proof. First, there was no improper burden shifting argument made by the prosecutor. The portion of the prosecutor's argument to which St. Brice objected was directed at the inconsistencies in the defenses offered by St. Brice. The prosecutor simply reminded the jury that there was no evidence presented of the type suggested by defense counsel in opening argument that would support a finding that St. Brice was not involved in the marijuana smuggling operation. There is no impropriety in a prosecutor commenting upon the absence of evidence that would substantiate the defendant's defense, "so long as the comment is not phrased to call attention to the defendant's failure to testify." State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985). Here, no claim is made and no concern exists that the prosecutor improperly sought to have the jury infer guilt from defendant's failure to testify because St. Brice did in fact testify in this case.

¶11 Second, the reasonable doubt instruction re-read by the trial court fully informed the jury that the State has the burden of proving all the elements of the charges against St. Brice and that he is entitled to the presumption of innocence until the State meets it burden. Hence, even if the prosecutor's comments had the potential for being misinterpreted by the jury as indicating that St. Brice bore some burden of proof, the trial court's re-reading of the reasonable doubt instruction after the conclusion of closing arguments was sufficient to negate any such possible negative effect. No further instruction was necessary. See State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995) ("[W]hen a jury is properly instructed on the applicable law, the trial court is not required to provide additional instructions that do nothing more than reiterate or enlarge the instructions in defendant's language." (citation omitted)).

Relevancy of Evidence

¶12 Finally, St. Brice contends the trial court erred in allowing the State to introduce evidence that the wallpaper on his cellular telephone consisted of a picture of Al Pacino in his role as "Scarface," an iconic fictional drug dealer in a major motion picture of the same name. See Scarface (Universal Pictures 1983). St. Brice argues that this evidence should have been precluded as irrelevant. We review rulings on admissibility of evidence for abuse of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006).

¶13 Evidence is relevant if it has "any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Ariz. R. Evid. 401(a)-(b). The jury could reasonably infer from the picture of Scarface on the cell phone that St. Brice identified with Scarface as a drug dealer and therefore the picture was relevant in that it had some tendency to disprove his claim of mere presence at the drug house. See Goode v. State, 236 P.3d 671, 681-82 (Okla. Crim. App. 2010) (holding that defendant's possession of Scarface fan paraphernalia was relevant to State's theory that he "envisioned himself as a modern day Scarface").

¶14 St. Brice further argues that the Scarface evidence should have been excluded as unfairly prejudicial. Because St. Brice failed to raise this objection below, review of this claim is limited to fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). "Unfair prejudice results if the evidence has an undue tendency to suggest [a] decision on an improper basis, such as emotion, sympathy or horror." State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997) (citation omitted). Our review of the record finds no effort by the prosecutor to use the Scarface evidence for any improper purpose to arouse the passion or prejudice of the jury. Nor does the evidence have any inherent tendency to cause such a result. In view of the evidence's legitimate use and in light of the other evidence presented, we cannot say that the danger of unfair prejudice substantially outweighed the probative value of the evidence. See Ariz. R. Evid. 403. Accordingly, we hold there was no abuse of discretion by the trial court in not precluding this evidence.

CONCLUSION

¶15 For the foregoing reasons, St. Brice's convictions and sentences are affirmed.

PHILIP HALL, Judge, JOHN C. GEMMILL, Judge, concurring.