State v. Trottier

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NOTICE: 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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) VICTOR LEO TROTTIER, ) ) Appellant. ) ) __________________________________) 1 CA-CR 09-0205 DIVISION ONE FILED: 01/26/2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-130160-001 DT The Honorable Janet E. Barton, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals Section/Capital Litigation Section And Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Victor Leo Trottier (Defendant) appeals his conviction and sentence for one count of possession or use of dangerous drugs, a class 4 felony. Defendant argues he is entitled to a new trial because the trial judge allowed the State to ask him if he knew what methamphetamine looked like, in violation of Arizona Rule of Evidence 404(b).1 For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On March 3, 2008, Phoenix Police Officer B. was on patrol when he noticed After obtaining Defendant Defendant s digging driver s through license, a dumpster. Officer discovered Defendant had an outstanding arrest warrant. B. Officer B. placed Defendant under arrest and performed a search of his person. In Defendant s fifth pocket, the right front pants pocket, Officer B. found a small plastic baggie with a white solid substance in it. Defendant reacted by stating, [t]hat s not mine, and I don t know where that came from. ¶3 Subsequent testing revealed the eighty-eight milligrams of methamphetamine. criminal complaint possession or use against of Defendant, dangerous white was The State filed a alleging drugs. substance one Prior count to of trial, Defendant s counsel filed a motion in limine to preclude any reference to Defendant s admission of prior methamphetamine use. On the first day of trial, the court granted the motion, stating that any relevancy it may have is substantially outweighed by 1 Unless otherwise specified, hereafter, an Arizona Rule of Evidence is referred to as Rule ___. 2 the danger of undue prejudice. However, the court stated it would allow the evidence should Defendant take the stand and open the door to its use for credibility purposes. ¶4 Defendant cross-examination testified of at Defendant, trial. the During State the requested State s a bench conference to inform the court it intended to ask Defendant if he [knew] what Defendant s methamphetamine counsel objected generally on the [looked] ground that like. [g]eneral knowledge of what methamphetamine is is not relevant and that it would open the door for more inadmissible evidence. Initially, the the court sustained the objection. However, court immediately reconsidered and noted that the element of the crime they have to establish [is] that he knowingly possessed [the baggie] and that he knew it was methamphetamine. ¶5 The State then asked Defendant, methamphetamine looks like, don t you. [y]ou know what Defendant responded by stating, [y]es, I know what methamphetamine looks like. The trial court offered to give the jurors a limiting instruction regarding Defendant s testimony methamphetamine looks like. that he knows what However, Defendant declined the offer. ¶6 The jury convicted Defendant of one count of possession or use of dangerous drugs. Pursuant to Arizona Revised Statutes (A.R.S.) section 13-702.02 (2001) the trial court found Defendant 3 had one prior felony conviction and sentenced Defendant to prison for a mitigated term of two years. Defendant filed a timely notice of appeal and we have jurisdiction pursuant to A.R.S. §§ 12-120.21.A.1 (2003), 13-4031 (2001), and -4033.A.1 (Supp. 2009).2 DISCUSSION ¶7 Defendant raises one issue on appeal: whether the trial court erroneously allowed the admission of other act evidence in violation of Rule 404(b). We review a trial court s ruling on the admissibility of evidence for an abuse of discretion. v. Tankersley, (1998). 191 Ariz. 359, 369, ¶ 37, 956 P.2d State 486, 496 Absent a clear abuse of discretion, we will not question a trial court s determination on the admissibility or relevance of evidence. State v. Spreitz, 190 Ariz. 129, 146, 945 P.2d 1260, 1277 (1997). Rule 404(b) Prior Act Evidence ¶8 Defendant argues that his knowledge of what methamphetamine looked like was evidence of another crime, wrong or act and must exceptions apply. be precluded unless any of the Rule 404(b) However, as the State points out, Defendant s testimony regarding his knowledge of what methamphetamine looks like does not fall within Rule 404(b). 2 We cite to the current version of the applicable statutes because no revisions material to this decision have since occurred. 4 ¶9 We review the interpretation of court rules de novo. Cranmer v. State, 204 Ariz. 299, 301, ¶ 8, 63 P.3d 1036, 1038 (App. 2003). Additionally, we interpret court rules in accordance with the intent of the drafters, and we look to the plain language of the . . . rule as the best indicator of that intent. 1027, Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7, 111 P.3d 1030 (App. 2005). If the language is clear and unambiguous, we give effect to that language and do not employ other methods of . . . construction. ¶10 Rule 404(b) provides: Id. evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to (Emphasis added.) show action in conformity therewith. From the plain language of the rule, evidence of mere knowledge does not fall within the rule s prohibition. Ariz. R. Evid. 404(b). Rule 404(b) is limited only to evidence of other crimes, wrongs, or acts. In this case, Defendant s knowledge of what methamphetamine looks like is not evidence of another crime, wrong, or act, and therefore does not trigger Rule 404(b) application. ¶11 Nevertheless, Defendant contends our decision in State v. Torres controls. Torres, we reasoned 162 Ariz. 70, 781 P.2d 47 (App. 1989). that evidence of prior drug use In was inadmissible where the only relevance the evidence of prior drug use had . . . was the forbidden 5 inference that because the defendant had used [a drug] in the past, he was using it now. Id. at 73, 781 P.2d at 50. However, in Torres, the evidence in question was the defendant s statement that he had used heroin at one time but was not presently doing so. Id. at 73, 781 P.2d at 50. ¶12 In this case, the challenged testimony was not evidence of prior use. what It was simply an admission that Defendant knew methamphetamine looks like. A defendant s admission of prior drug use is very different than an admission that he knows what a drug looks like. Defendant s own counsel drew this distinction during her closing argument: many of us know what [drugs] look[] like. using them. However, [t]hat doesn t mean that we re That doesn t mean that we have them. Accordingly, we conclude that both Torres and Rule 404(b) do not apply. Rule 403 Relevancy ¶13 be Alternatively, Defendant argues that there must still a showing substantially Defendant allows that outweighs misstates the exclusion substantially the probative the Arizona of outweighed of of unfair danger Rule evidence by value the of Evidence if danger its of the prejudice. 403. Rule probative unfair evidence 403 value is prejudice. Defendant contends his ability to recognize methamphetamine does not significantly aid the [State s] case except it signals the jury that he likely used methamphetamine in the past so he must 6 have known the small amount of the drug was in his watch pocket. Although the jury could infer prior use from this evidence, we find the danger of unfair prejudice was minimal at best. As we previously noted, Defendant s counsel aptly pointed out, many of us know what [drugs] look[] like. that we re using them. ¶14 However, [t]hat doesn t mean That doesn t mean that we have them. Moreover, Defendant s knowledge of what methamphetamine looks like was directly related to an essential element of the alleged crime. The trial court s instructions to the jury included the following: The crime of possession of a dangerous drug requires proof of the following: (1) The Defendant knowingly possessed a dangerous drug and (2) the substance was, in fact, a dangerous drug. Knowingly means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission. Methamphetamine under Arizona law. Therefore, to knowingly possess baggie commit contained the constitutes the alleged baggie and methamphetamine. a dangerous crime, know or drug Defendant Defendant s acknowledged this element in her closing argument. to that believe had the counsel She stated that [f]irst of all, [Defendant] must have knowingly had an item 7 in his pocket. . . . Secondly, he must know that [the] item in his pocket is methamphetamine. ¶15 In this methamphetamine case, looks Defendant s like was knowledge highly as probative, to what especially because the drug was found inside a clear plastic baggie. As a result, Defendant s knowledge of what the drug looks like became a central piece of evidence in establishing the elements of the crime. ¶16 We hold that any prejudice created by evidence of Defendant s knowledge of what methamphetamine looks like did not substantially outweigh the highly probative value the evidence had in establishing the elements of the alleged crime. Accordingly, the trial court did not abuse its discretion in allowing Defendant s testimony regarding his knowledge of what methamphetamine looks like. CONCLUSION ¶17 For the reasons stated above, we affirm Defendant s conviction and sentence. ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: ____________________________________ DIANE M. JOHNSEN, Judge ____________________________________ JON W. THOMPSON, Judge 8

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