STATE v. DAVIS

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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. ) ) JOHNNY HAROLD DAVIS, SR., ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0785 DIVISION ONE FILED: 09/11/2012 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT A (AUGUST) MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P1300CR20090186 The Honorable Jennifer B. Campbell, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Matthew H. Binford, Assistant Attorney General Attorneys for Appellee White Law Offices, PLLC By Wendy F. White Attorney for Appellant Flagstaff S W A N N, Judge ¶1 Johnny Harold Davis, Sr., appeals the superior court s revocation of his probation and imposition of a prison sentence. Davis argues that the state presented insufficient admissible evidence to support the court s finding that he violated the conditions of his probation. We disagree, and therefore affirm. FACTS AND PROCEDURAL HISTORY ¶2 In April 2010, Davis pled guilty to two counts of misconduct involving weapons, two counts of possession of drug paraphernalia, one count of aggravated robbery, and one count of aggravated assault. misconduct involving offenses, sentence years. laws Davis was sentenced to time served for the the and weapons superior placed offenses. court Davis For the suspended on supervised the imposition probation remaining for The conditions of Davis s probation included: ( Condition 1 ); and Not possess or use of three Obey all any illegal drugs, toxic vapors, or controlled substances, or use or possess any prescription drugs without a valid prescription ( Condition 7 ). ¶3 In July 2010, Davis s probation officer petitioned the court to revoke Conditions 1 presented the and Davis s 7. At testimony of Prescott Police Department. he had alleged no firsthand violations probation the violation Detective on violations hearing, John the McClain of state of the Detective McClain acknowledged that knowledge but based of explained the that events he had underlying the reviewed the relevant police reports and spoken to one of the detectives with 2 firsthand knowledge. Davis made no objection to the admissibility of Detective McClain s testimony. ¶4 Detective McClain testified to the following facts. On July 21, 2010, police stopped a car in which Davis was a passenger because they were trying to arrest him for a different violation. In the backseat of the car, where Davis was sitting, police found two cell phones, a box-cutter-type knife, and two plastic tear-offs -- bindle-like pieces of plastic commonly used to store and sell drugs -- that later tested negative for methamphetamine residue. ¶5 Shortly after the items were recovered from the car s backseat, one of the cell phones received a text message asking to meet at a local store. Police used the cell phone to respond to the message and arrange the meeting. they encountered John Eric Tone. At the meeting spot, Tone told police that he had received approximately one gram of methamphetamine from Davis earlier that day. Tone had asked to meet Davis again after Davis called to say that Tone received too much methamphetamine in the transfer and needed to return some of it. methamphetamine in Tone s car. Police found Davis, after being advised of his Miranda1 rights, admitted that he had given methamphetamine to Tone and was seeking to recover it. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 3 ¶6 The court found that the state carried its burden to prove by a preponderance of the evidence that Davis violated Condition 1 of his probation by transferring methamphetamine to Tone and violated Condition 7 of his probation by possessing the methamphetamine during the transfer. At the disposition hearing, the court revoked Davis s probation and imposed prison sentences for the offenses for which he had been placed on probation. ¶7 Davis timely appeals. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033. DISCUSSION ¶8 Davis contends that the state failed to present sufficient reliable evidence to support the court s finding that he violated Conditions 1 and 7 of his probation. Specifically, he argues that Detective McClain s testimony was unreliable and therefore inadmissible hearsay and argues that any finding of a violation would deliciti rule. therefore necessary conflict with the corpus We reject both of Davis s arguments and conclude that the state presented sufficient reliable evidence to support the court s finding. 4 I. DETECTIVE MCCLAIN S TESTIMONY WAS RELIABLE HEARSAY, PROPERLY ADMISSIBLE UNDER ARIZ. R. CRIM. P. 27.8(b)(3). ¶9 Because Davis made no objection to Detective McClain s hearsay testimony at the violation hearing, we review admission of the testimony for fundamental error. Stotts, 144 Ariz. 72, 82, 695 P.2d 1110, the State v. 1120 (1985). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). ¶10 In probation violation proceedings, [t]he court may receive any reliable evidence not legally privileged, including hearsay. rule, Ariz. R. Crim. P. 27.8(b)(3). reliable Stotts, 144 evidence Ariz. at is 82, evidence 695 For purposes of this that is trustworthy. at 1120 (construing P.2d predecessor rule to Ariz. R. Crim. P. 27.8(b)(3)). Hearsay evidence qualifies as reliable where, in the sound discretion of the trial court, the circumstances are such as to afford a reasonable assurance of the truthfulness of the hearsay. Id. (citation the omitted). testimony is required. 224, 553 P.2d 675, An explanation of the bases for See State v. Baylis, 27 Ariz. App. 222, 677 (1976) (petition that provided no explanation for probation officer s belief of violations was not 5 reliable, but reliable). officer s Other testimony relevant factors at a later include the hearing was out-of-court speaker s identity and his position on the hearsay ladder. State v. Portis, 187 Ariz. 336, 339, 929 P.2d 687, 690 (App. 1996). Where hearsay is reliable, it may form the exclusive basis for an order revoking probation. State v. Smith, 112 Ariz. 416, 421, 542 P.2d 1115, 1120 (1975). ¶11 was Here, Detective McClain explained that his testimony based on conversation arrest. his with review one of of the the police detectives reports involved and in his Davis s We find no reason to conclude that those sources of information were inherently unreliable. Indeed, as the state points out, police records are considered sufficiently reliable for other purposes, such as showing aggravating and mitigating circumstances for sentencing. State v. Marquez, 127 Ariz. 3, 6, 617 P.2d 787, 790 (App. 1980). ¶12 Davis contends, however, that the testimony about Tone s statements to police was unreliable because the testimony was double hearsay and Tone was himself under arrest at the time for [Davis]. about possession of [the] methamphetamine that inculpated By this, we take Davis to argue that the testimony Tone s statements was unreliable because of Tone s position on the hearsay ladder and because Tone had a motive 6 to untruthfully shift blame to Davis.2 But Tone s position on the hearsay ladder is only one factor, and the superior court specifically reliable: explained he told why an it believed unusual story his that statements was were independently corroborated by Davis s admission, and the two men had not been given an opportunity to coordinate their stories because Davis was in custody. We note that an additional indication of reliability is that Tone s story did not absolve him of criminal liability -- he admitted purchasing and possessing an illegal drug. ¶13 We find no abuse of discretion, let alone fundamental error, in the superior court s admission of Detective McClain s hearsay testimony, statements to including police. his Davis testimony was describing allowed to Tone s cross-examine Detective McClain and was given the opportunity to present his own evidence but did not do so. II. SUFFICIENT EVIDENCE SUPPORTED THE COURT S FINDING OF VIOLATIONS. ¶14 Davis s doctrine does not corpus apply delicti in argument probation 2 fails violation because that proceedings. The state correctly observes that no evidence was presented to show whether Tone was (as Davis asserts) under arrest at any time. But regardless whether Tone was under arrest when he made the statements in question, under the circumstances he was certainly reasonably aware of his potential criminal liability and had the same potential motive to be untruthful. 7 State v. Lay, 26 Ariz. App. 64, 65, 546 P.2d 41, 42 (1976). But even if the doctrine were applicable, Davis s argument would still fail because corroborating his it assumes admission was that the hearsay inadmissible. As evidence explained above, that assumption is incorrect. ¶15 We evidence conclude sufficient that the to state show that presented admissible Davis transferred methamphetamine to Tone and thereby violated the conditions of his probation requiring him to obey all laws and not possess illegal drugs. The court did not err by finding the violations and revoking Davis s probation. CONCLUSION ¶16 We affirm for the reasons set forth above. /s/ ___________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ PATRICIA A. OROZCO, Judge /s/ ____________________________________ MARGARET H. DOWNIE, Judge 8

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