STATE v. PEREZ-CONTRERAS

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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. ) ) JUAN CARLOS PEREZ-CONTRERAS, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 6/27/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CR 12-0640 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. S8015CR201101264 The Honorable Derek C. Carlisle, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General By Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee David Goldberg, Attorney at Law By David Goldberg Attorney for Appellant Phoenix Fort Collins, CO B R O W N, Judge ¶1 and Juan sentences Carlos for Perez-Contreras possession of appeals dangerous his drugs convictions for sale, possession of drug paraphernalia, and resisting arrest. For the reasons set forth below, we affirm. BACKGROUND 1 ¶2 In November 2011, a Bullhead City Police officer (Holdway) received a phone call from a narcotics detective in Nevada indicating Holdway. Upon that an arriving inmate at the there wanted police station to speak in with Laughlin, Holdway learned that the inmate was Bob Garcia, who Holdway knew from previous investigations. Garcia told Holdway he could help [him] out and offered to call a friend of his named Carlos to order methamphetamine ( meth ). if he had ever purchased narcotics Holdway asked Garcia from Carlos, and Garcia stated that he had and that he usually purchased four ounces of meth at a time. Holdway then asked Garcia to call Carlos and order the meth, but Garcia said he usually only communicated with Carlos by text message. message asking, Can you Garcia then sent Carlos a text bring me 4 to my place? Carlos replied by asking what time he should bring the narcotics and Garcia replied Bring me 4 at 5 at my place. ¶3 After Garcia received the text message from Carlos, Holdway and Garcia discussed how Carlos would usually deliver 1 We view the facts in the light most favorable to sustaining the jury s verdict and resolve all reasonable inferences against Defendant. State v. Vendever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 2 the meth. While phone rang. Holdway and Garcia were speaking, Garcia s Garcia answered and Holdway overheard the brief conversation between Hispanic accent. Garcia and an unidentified male with a Holdway heard the unidentified male ask Garcia what time he needed to be at Garcia s house. After the call, Garcia gave Holdway a physical description of Carlos, indicating that he was going to be short and skinny, that Hispanic male, and that he had a dark complexion. he was a Garcia also told Holdway that when Carlos arrived at his house to deliver the narcotics, minivan. he would be driving an older, junky, white At that point, Holdway ended his conversation with Garcia and returned to Bullhead City to begin the investigation. ¶4 Holdway Garcia s home. and another officer (Harris) proceeded At approximately 5:00 p.m., Holdway observed a white minivan park across the street from Garcia s house. hispanic male to exited the vehicle, and Holdway A immediately recognized Carlos ( Defendant ) based on previous police contact Holdway had with him. Holdway saw Defendant approach Garcia s house and noticed that he had a tennis ball or racquetball size white object in his right hand. Holdway then exited his vehicle and attempted to apprehend Defendant but Defendant fled on foot. Holdway maintained visual contact with Defendant except for a brief period when Holdway encountered a pit bull dog in one of the yards. After crossing through several yards 3 and climbing over fences, Holdway eventually caught Defendant. An initial search revealed that Defendant was no longer carrying the object that Holdway had observed prior to the chase. searching the area that evening, no drugs were After discovered. However, the following morning a different officer discovered two packages methamphetamine containing on the approximately roof of a house four near ounces the area of where Holdway said he momentarily lost sight of Defendant during the chase. ¶5 A grand jury indicted Defendant on (Count 1) possession of dangerous drugs for sale, (Count 2) possession of drug paraphernalia, (Count 3) burglary in the third degree, (Count 4) resisting arrest, and (Count 5) aggravated assault. A jury found Defendant guilty on Counts 1, 2, and 4, but the court granted his motion for acquittal on Count 3 and the jury found him not guilty on Count 5. The trial court sentenced Defendant to a term of 8 years imprisonment for Count 1, and a concurrent term of 6 months imprisonment for Count 2. The court also sentenced Defendant to a term of 6 months imprisonment on Count 4 to be served consecutively to the sentence for Count 1. Defendant timely appealed and we have jurisdiction pursuant to 4 Arizona Revised Statutes ( A.R.S. ) section 12-2101(A)(1) (2013). 2 DISCUSSION ¶6 at Defendant argues that because Garcia did not testify trial, dangerous evidence his conviction and sentence for sale must be supporting that conviction drug for vacated was possession because the inadmissible of a only hearsay that violated his rights under the Confrontation Clause. He concedes, however, that he did not object 3 to the admission of Garcia s statements through Holdway issue for fundamental error only. 4 and thus we review this See State v. Henderson, 210 2 Absent material revisions after the relevant date, we cite the current statute. 3 During Holdway s testimony, Defendant s trial counsel made a single objection on hearsay grounds. After that objection was sustained, however, counsel failed to object to any more of Holdway s testimony related to his conversation with Garcia. 4 In his opening brief, Defendant initially argues that admission of Garcia s statements constitutes fundamental error. In discussing prejudice, Defendant asserts that violations of the Confrontation Clause are reviewed under a harmless error standard. In his reply, however, Defendant acknowledges that the proper standard of review in this case is fundamental error. Additionally, the record is clear that Defendant did not object at trial to any of Garcia s statements based on his inability to cross-examine him. Thus, Defendant never made an objection on Confrontation Clause grounds. Cf. State v. King, 212 Ariz. 372, 375, ¶ 14, 132 P.3d 311, 314 (App. 2006) (finding Confrontation Clause objection preserved because defendant objected to testimonial hearsay on the basis that he would not be able to cross-examine, although he failed to expressly invoke the Confrontation Clause). The fact that Defendant raised the issue in his motion for new trial was also insufficient to preserve 5 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) ( Fundamental error review . . . applies when a defendant fails to object to alleged trial error. ); State v. Boggs, 218 Ariz. 325, 333, ¶ 31, 185 P.3d 111, 119 (2008) (finding that where a defendant fails to raise a Confrontation Clause objection below, we review for fundamental error). To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. 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. Id. at ¶ 19 (internal quotations omitted). ¶7 The Confrontation Clause prohibits the admission of testimonial hearsay unless (1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant. State v. Armstrong, 218 Ariz. 451, 460, ¶ 32, 189 P.3d 378, 387 (2008) (internal citation and quotation omitted). In this testimony case, even regarding assuming that statements the made admission by Garcia of Holdway s constitutes the issue for appeal. See State v. Davis, 226 Ariz. 97, 100, ¶ 12, 244 P.3d 101, 104 (App. 2010). 6 fundamental error, we conclude reversal is not warranted because Defendant has failed to demonstrate prejudice. ¶8 To establish prejudice, Defendant bears the burden of demonstrating that absent the error, a reasonable jury could have reached a different result. ¶ 27, 115 P.3d at 609. Henderson, 210 Ariz. at 569, Whether a defendant can make a sufficient showing of prejudice depends upon the facts of his particular case. ¶9 Garcia s In Id. at ¶ 28. arguing he statements, was prejudiced Defendant does by the not admission acknowledge of the remaining admissible evidence the State presented supporting his conviction. For example, to support the possession element of Defendant s conviction, the State presented evidence that when Holdway and Harris first observed Defendant walking towards Garcia s home, they saw that he was carrying what appeared to be either golf-ball or tennis-ball size white objects in his hands. And when the officers approached Defendant, he immediately fled from the area and led them on a lengthy pursuit. The jury was free to consider Defendant s flight as evidence of guilt. See State v. Cota, 229 Ariz. 136, 142, ¶ 11, 272 P.3d 1027, 1033 (2012) ( Evidence of flight is admissible to show consciousness of guilt when the defendant flees in a manner which obviously invites suspicion or announces guilt. (internal citation and quotation omitted)). And, the two packages containing meth were 7 discovered on top of a roof followed while fleeing. along the route that Defendant See State v. Butler, 230 Ariz. 465, 472, ¶ 24, 286 P.3d 1074, 1081 (App. 2012) (declining to find prejudice where there was substantial circumstantial evidence demonstrating the defendant s guilt). ¶10 To support the with intent to sell or transfer element of Defendant s conviction, the State presented evidence that the packaging that Holdway observed in Defendant s hand was consistent sale. with how methamphetamine would be packaged for Holdway testified that the amount of methamphetamine recovered, approximately four ounces, was a very large quantity that he could only assume . . . would be for resale. Holdway further stated that four ounces of methamphetamine was equivalent to approximately 1,090 individual uses. ¶11 On appeal, Defendant addresses none of the admissible evidence the State presented relating to the sale or transfer element but statements, conviction. meet the instead there was simply argues insufficient that evidence absent to Garcia s support his Vague assertions of prejudice are insufficient to threshold required under Henderson. Moreover, Defendant concedes that the State would have been permitted to present testimony related to the fact that police met with an informant who had arranged a buy at the location they went to stake out. In light of the significant admissible evidence 8 supporting Defendant s conviction, we conclude that Defendant has failed to meet his burden of showing that absent Garcia s statement, result. a reasonable jury could have reached a different See Henderson, 210 Ariz. at 569, ¶ 27, 115 P.3d at 609. CONCLUSION ¶12 For the foregoing reasons, we conclude that even if the admission of Garcia s statements violated Defendant s rights under the Confrontation Clause, Defendant demonstrate that the error was prejudicial. has failed to We therefore affirm Defendant s convictions and sentences. _____________/s/_________________ MICHAEL J. BROWN, Judge CONCURRING: _______________/s/_________________ JON W. THOMPSON, Presiding Judge ______________/s/__________________ KENT E. CATTANI, Judge 9

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