State v. Brown

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DUSTIN KEITH BROWN, Appellant.

No. 1 CA-CR 25-0157
FILED 04-30-2026

Appeal from the Superior Court in Yavapai County
No. S1300CR202300164
The Honorable Debra R. Phelan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph E. Begun
Counsel for Appellee

The Law Office of Michael Alarid III, PLLC, Phoenix
By Michael Alarid, III
Co-Counsel for Appellant

The Law Office of Elizabeth Mullins, PLLC, Phoenix
By Elizabeth Mullins
Co-Counsel for Appellant
STATE v. BROWN
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Judge Angela K. Paton joined.

P E R K I N S, Judge:

¶1 Dustin Keith Brown appeals his conviction and sentence on
one count of stalking, a Class-3 felony. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Brown engaged in the conduct giving rise to this stalking
conviction over the course of about ten days in early 2023. Brown, 48 at the
time, made romantic overtures to Rebecca (a pseudonym), a 17-year-old
convenience store clerk at a gas station he had been patronizing for a while.
Rebecca rebuffed his advances, but feeling deeply disturbed, reached out to
local police for advice.

¶3 A few days later, Rebecca found a hand-written letter on her
windshield that called her degrading names, wished her death by cancer,
and, after some sexual commentary, suggested Rebecca take her own life
and offered means to assist her in doing so. Rebecca immediately turned
the letter over to the police, and Brown later admitted to authoring it. The
next day, Rebecca arrived at work to find Brown parked at one of the gas
pumps. Soon thereafter, when returning home from a family dinner,
Rebecca found Brown parked in the dark in front of her house and
immediately called 911. When questioned by law enforcement, Brown
claimed he had gotten lost on the way back from the gym. When asked why
he parked in front of Rebecca’s house, he retorted he had parked down the
block. Taking this as an admission, officers arrested Brown.

¶4 Law enforcement executed a limited-in-scope search warrant
for parts of Brown’s home and seized, among other things, boxes of GPS
trackers, some empty. This prompted officers to check Rebecca’s vehicle
and find two GPS trackers affixed to the undercarriage. Further
investigation into Brown’s phone data showed he had been tracking
Rebecca’s location and was near her home at the time Rebecca so claimed.
The State indicted Brown on a Class-3 stalking charge under Arizona
Revised Statutes Section 13-2923(A)(2)(a).

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STATE v. BROWN
Decision of the Court

¶5 Before trial, the State moved to introduce Brown’s prior
stalking conviction as other acts evidence to show he acted with “intent,
knowledge, had the opportunity, and took steps to plan his crime.” The
court held an evidentiary hearing and concluded that the evidence was
admissible. Brown moved to suppress the admission of the GPS devices
and boxes seized during the search of his home and any data found on any
of his electronic devices. The court held another evidentiary hearing and
denied the motion.

¶6 At trial, Brown requested jury instructions on harassment and
Class-5 stalking as lesser-included charges of Class-3 stalking. The court
included Class-5 stalking but declined to provide the harassment
instruction. After a four-day trial, the jury found Brown guilty of the Class-3
stalking as charged and found three aggravators. After balancing the
mitigating factors, the court imposed an aggravated 15.5 year sentence and
a lifetime injunction against contact with Rebecca.

¶7 At sentencing, Brown’s trial counsel orally moved to
withdraw, which the court granted on the condition that counsel file a
notice of appeal first. Trial counsel failed to do so. Newly retained appellate
counsel discovered the omission and moved the court for leave to file a late
appeal. The court granted the motion, and we have jurisdiction. A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶8 On appeal, Brown challenges the superior court’s
(1) admission of Rule 404(b) other acts evidence, (2) denial of his motion to
suppress, and (3) refusal to instruct the jury on harassment as a
lesser-included offense of Class-3 stalking.

I. Admission of Rule 404(b) Other Acts Evidence

¶9 Brown claims the superior court erred in admitting his prior
stalking conviction because it was irrelevant and unfairly prejudicial
propensity evidence under Rule 404(b). In that case, Brown stalked a former
girlfriend by attaching a GPS tracker to her vehicle and then claimed to be
lost when police confronted him for being near her home.

¶10 We review the court’s admission of Rule 404(b) evidence for
an abuse of discretion. State v. Van Adams, 194 Ariz. 408, 415, ¶ 20 (1999).
Rule 404 bars admission of “other crimes, wrongs, or acts” to prove a
defendant’s propensity to commit the crime charged, Ariz. R. Evid.
404(b)(1), but allows admission for a proper purpose like proving “motive,

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opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident,” Ariz. R. Evid. 404(b)(2). Before admission, the court
must find that the proponent of the evidence (1) proved by clear and
convincing evidence the actor committed the alleged prior act, (2) offered
the evidence for a proper purpose, and (3) the evidence’s probative value is
not substantially outweighed by the potential for unfair prejudice under
Rule 403. State v. Vigil, 195 Ariz. 189, 191, ¶ 14 (App. 1999). The more
probative the evidence, the less likely it is to be unfairly prejudicial by
having “an undue tendency to suggest decision on an improper basis, such
as emotion, sympathy, or horror.” State v. Strong, 258 Ariz. 184, 210, ¶ 112
(2024) (cleaned up). And the evidence must be relevant, i.e., tending to
make a material fact more or less probable than it would be otherwise. Ariz.
R. Evid. 401. If the relevance is based on “similarity of the crimes . . . the
other crime must be similar to the offense charged and the similarities must
exist when normally differences would be expected to be found.” Van
Adams, 194 Ariz. at 415, ¶ 20 (cleaned up).

¶11 Here, the State alleged that Brown placed GPS trackers on
Rebecca’s car and claimed to be lost on his way back from the gym when
police detained him. The court held an evidentiary hearing that does not
appear to have been recorded or transcribed. Because the burden is on
Brown to ensure the record supporting his claims on appeal is preserved at
trial, we must presume “the missing portions of the record . . . support the
action of the trial court.” State v. Geeslin, 223 Ariz. 553, 554, ¶ 5 (2010)
(cleaned up). That said, the evidence presented at the hearing is part of the
record.

¶12 The court made a detailed ruling, finding clear and
convincing evidence Brown used GPS trackers to stalk someone and “being
lost” as a cover story. It also found the State offered the acts for the proper
purposes of showing “motive and opportunity[, and] . . . lack of mistake or
accident in both the use of tracking devices and [using the same “being lost”
cover story].” Lastly, the court found the evidence was relevant to the
proper purpose, highly probative, and that a limiting instruction would
prevent an improper propensity conviction. The court then instructed the
jury it could not consider the acts as character evidence or that Brown
committed the charged offenses in conformity with a character trait. During
closing arguments, the State emphasized the limited purpose of the other
acts and asked the jury not to infer propensity.

¶13 On this record, the court correctly admitted the other acts
under Rule 404(b). And the State did not use the evidence in an
impermissible way, so Brown has shown no error.

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II. Denial of the Motion to Suppress

¶14 Brown challenges the denial of his motion to suppress the
evidence obtained pursuant to a search warrant he insists was overbroad
and lacked the particularity and specificity required by the United States
and Arizona Constitutions. Relevant here, he challenged the introduction
of his GPS devices and related boxes, as well as any data from any of his
seized electronic devices. He argues that except for one item category the
warrant failed to clearly limit what law enforcement could search for and
seize, thus giving officers impermissible discretion. Brown also claims
police had no probable cause to seize his GPS devices because, at the time
the warrant issued, there was no indication such devices were being used
in connection with the alleged offenses. Brown did not offer any argument
based on the Arizona Constitution, so we consider the argument waived
and do not address it. See ARCAP 13(a)(7) (parties must develop
meaningful arguments on appeal with appropriate references to the record
and relevant legal authority).

¶15 We review the denial of a motion to suppress for an abuse of
discretion, considering only evidence presented at the suppression hearing
and viewing the facts in the light most favorable to sustaining the trial
court’s ruling. State v. Valenzuela, 239 Ariz. 299, 301–02, ¶¶ 3, 9 (2016)
(cleaned up). We must affirm the trial court’s ruling if legally correct for any
reason. State v. Boteo-Flores, 230 Ariz. 551, 553, ¶ 7 (App. 2012).

¶16 The Fourth Amendment of the United States Constitution
protects against “unreasonable searches and seizures,” so evidence
obtained in violation thereof is generally inadmissible at a criminal trial.
Valenzuela, 239 Ariz. at 302, ¶ 10. Thus, when the government infringes on
a person’s reasonable expectation of privacy, it must do so pursuant to a
warrant supported by probable cause. State v. Mitcham, 258 Ariz. 432, 437,
¶ 15 (2024). And the warrant must describe with particularity the things to
be seized. State v. Roark, 198 Ariz. 550, 552, ¶ 8 (App. 2000). Whether a
warrant is sufficiently particular is a legal issue we review de novo. Id. at ¶ 6.

¶17 Warrants are presumed valid, so Brown had the burden to
prove otherwise. State v. Crowley, 202 Ariz. 80, 83, ¶ 7 (App. 2002). And
“evidence seized by law enforcement officers acting in good faith, but in
reliance on a faulty warrant, should not be suppressed,” except “when a
warrant is based on an affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable; and when a
warrant is so facially deficient that the executing officers cannot reasonably

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STATE v. BROWN
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presume it to be valid.” State v. Dean, 241 Ariz. 387, 389, ¶ 6 (App. 2017)
(cleaned up) (quoting United States v. Leon, 468 U.S. 897, 922–23 (1984)).

¶18 To determine if an officer could rely in good faith on the
validity of a warrant, we apply a three-prong test:

(1) whether probable cause existed to seize all items of a
particular type described in the warrant, (2) whether the
warrant set out objective standards by which executing
officers could differentiate items subject to seizure from those
which were not, and (3) whether the government was able to
describe the items more particularly in light of the
information available to it at the time the warrant was issued.

Id. at 389–90, ¶ 7 (cleaned up) (quoting United States v. Spilotro, 800 F.2d 959,
963 (9th Cir. 1986)).

¶19 The warrant authorized seizure of: “Any cellular phones,
pagers, computers, digital recording/photography devices, digital or
computerized planners or address books, or other devices which may
contain information pertaining to the case . . . to include perusal of the
contents thereof.” The next paragraph authorized access to “[a]ll data or
information in the devices.”

¶20 Under Spilotro prong one, the any electronic device language
brought GPS devices within the scope of the warrant’s probable cause. The
lead detective admitted law enforcement was not looking for GPS trackers
when requesting the warrant but sought to seize electronic devices because
officers knew Brown had found Rebecca’s house and expected electronic
devices to have played a role. When the detective executed the warrant and
found the GPS trackers, he knew, based on training and experience, they
would be relevant to the investigation and within the scope of the warrant.

¶21 Under Spilotro prong two, the warrant was specific because it
limited seizure only to relevant devices and explicitly authorized access to
the data on them. Using “any” or “other” does not render a warrant fatally
general. State v. Lavers, 168 Ariz. 376, 384 (1991). The warrant described the
challenged categories in sufficient detail and was not overbroad. See Dean,
241 Ariz. at 389, ¶ 7.

¶22 Under Spilotro prong three, law enforcement likely could not
have been more particular by listing GPS trackers. While preparing the
warrant, law enforcement researched Brown and learned he had a prior
stalking charge. But it is not clear that officers were aware that the earlier

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stalking involved GPS trackers. The requirement for particularity should
not “be confused with a demand for precise ex ante knowledge of the
location and content of evidence related to the suspected violation . . . [but
rather] whether it was reasonable to provide a more specific description of
the items at that juncture of the investigation.” United States v. Meek, 366
F.3d 705, 716 (9th Cir. 2004).

¶23 Even if we were to assume, for the sake of argument, that the
warrant fell short under Spilotro, the detective’s testimony showed that law
enforcement relied on the warrant in good faith and attempted to comply
with its limitations by not searching large parts of Brown’s house.

¶24 Brown failed to establish error.

III. Denial of the Harassment Instruction

¶25 Brown claims the court erred by denying his request to
instruct the jury on Section 13-2921 harassment as a lesser-included offense
of Class-3 stalking under Section 13-2923(A)(2)(a). He argues that even if
harassment was not a lesser-included offense on the facts of this case, there
was sufficient evidence to require giving the instruction.

¶26 “Whether one offense is included within another offense is an
issue of statutory construction, which we review de novo.” State v. Agueda,
253 Ariz. 388, 389–90, ¶ 11 (2022). We review the court’s denial of a
requested lesser-included jury instruction for an abuse of discretion. State
v. Price, 218 Ariz. 311, 316, ¶ 21 (App. 2008). But even if denying the
instruction was error, we will affirm if that error was harmless beyond a
reasonable doubt. See State v. White, 144 Ariz. 245, 247 (1985).

¶27 We note that although Brown’s brief describes harassment as
a “lesser-included” offense, his argument suggests it was a “necessarily
included” one. But “necessarily included” is not always the same as “lesser
included.” State v. Dugan, 125 Ariz. 194, 195 (1980). The court must instruct
the jury on “all offenses necessarily included in the offense charged” upon
“request by any party and if supported by the evidence.” Ariz. R. Crim. P.
21.4(a)(1). To be “necessarily included,” an offense must be “lesser
included,” and sufficient evidence must support giving the instruction, i.e.,
a reasonable jury could conclude that on the facts of the case the State has
proven only the elements of the lesser offense. State v. Wall, 212 Ariz. 1, 3,
¶ 14 (2006). An offense is “lesser included” when the greater offense
requires “each element of the lesser offense plus one or more additional
elements not required by the lesser offense.” Agueda, 253 Ariz. at 390, ¶ 12

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(applying the same-element test from Blockburger v. United States, 284 U.S.
299, 304 (1932)).

¶28 Here, the court declined to give the harassment instruction,
finding that because one could commit stalking without committing
harassment, the elements of the two offenses did not necessarily align, and
harassment was not a lesser-included offense in this case. At the same time,
the court agreed to instruct on the lesser-included offense of Class-5
stalking under Section 13-2923(A)(1)(b)(i).

¶29 We need not decide whether Brown was entitled to an
instruction. By convicting Brown of the greater Class-3 stalking charge,
which required establishing Rebecca’s fear of death, A.R.S. § 13-
2923(A)(2)(a), the jury necessarily rejected the available lesser-included
Class-5 stalking charge, which required establishing merely emotional
distress or fear of injury, A.R.S. § 13-2923(A)(1)(b)(i). The jury thus
necessarily would have rejected the harassment standard that Brown’s
conduct “seriously alarmed, annoyed, humiliated, or mentally distressed”
Rebecca. A.R.S. § 13-2921(E). If failing to provide the harassment instruction
was error, it was harmless. See White, 144 Ariz. at 247 (conviction “of the
highest offense, to the exclusion of the immediately lesser-included offense
. . . necessarily reject[s] all other lesser-included offenses”).

CONCLUSION

¶30 We affirm.

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

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