Opinion
No. 2 CA-CR 2016-0374
02-01-2018
THE STATE OF ARIZONA, Appellee, v. HECTOR ARTURO VASQUEZ-ACEDO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20041565
The Honorable Richard S. Fields, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Hector Vasquez-Acedo appeals his conviction and sentence for possession of marijuana for sale in an amount greater than four pounds. He argues the trial court erred by denying his motion to suppress evidence and by refusing his request for a "mere presence" jury instruction. For the reasons that follow, we affirm Vasquez-Acedo's conviction and sentence.
Factual and Procedural Background
¶2 In April 2004, Tucson police officer Danny Peralta briefly questioned D., an eleven-year-old student who had brought marijuana to school. According to Peralta, D. first claimed she obtained the marijuana from Vasquez-Acedo, but later said it came from a bag belonging to her sister, L.M. Peralta went to the address where L.M. and Vasquez-Acedo resided, and spoke with L.M. in broken Spanish outside the apartment. L.M. denied having marijuana, and became "irritated" before finally refusing to speak further with Peralta.
¶3 Peralta then spoke to Vasquez-Acedo at length. Aided by gestures, Peralta managed to communicate in broken Spanish that he wanted to enter the apartment to look for marijuana. Vasquez-Acedo's responses indicated he understood. Vasquez-Acedo expressed concern that Peralta would ransack the home, and Peralta suggested that he observe while Vasquez-Acedo opened doors and drawers. Finally, Vasquez-Acedo said to L.M., "He wants to look inside. There's nothing inside. It's okay." Vasquez-Acedo and L.M. then entered the apartment, and Peralta followed them. Vasquez-Acedo later testified that he had not stopped Peralta from coming inside because, "He's an officer. He has his gun. He has his stick. I'm by myself. He's in uniform."
¶4 Peralta directed Vasquez-Acedo to move a couch and open drawers in the kitchen and bedroom. At one point, Peralta indicated he wanted to look inside several unopened drawers, and Vasquez-Acedo responded: "Well, yes, open them." Peralta did so, and felt around inside. In English, Peralta then asked to enter the bedroom closet, and Vasquez-Acedo responded in Spanish: "Well, yes—yeah." Inside, Peralta noticed a strong smell of fresh marijuana and told Vasquez-Acedo, who responded that he had just smoked some marijuana and the smell was on his clothes. Peralta then lifted a black bag from the floor, discovering that it was heavier than he expected. Peralta asked what was inside, and Vasquez-Acedo said he did not know and stepped back. Peralta opened the bag and discovered the wrapped bundle of marijuana that was the basis of Vasquez-Acedo's charge and conviction.
¶5 Although Peralta testified he spoke Spanish at home starting at age six or seven and considered himself "fluent in conversational Spanish," he testified that he at times relied on grade school students to translate communications for him in connection with his assignment to the school resource unit. He also explained that he tried to get someone else to translate for "extremely important" matters. The court interpreter testified that Peralta's Spanish was "very broken," and that he frequently mispronounced words, failed to properly conjugate verbs, and "lack[ed] terminology in Spanish." On several occasions, Peralta used terms that the interpreter found "unintelligible." During his testimony at the suppression hearing, Peralta never once used the Spanish word for "search," although he was able to say "I want to know if you have marijuana or mota inside your house," and similar phrases such as "wanna go and see 'mota' inside the house."
Mota" is a Spanish word for marijuana.
¶6 Vasquez-Acedo moved to suppress the evidence, arguing he had not consented to Peralta entering and searching the apartment, and that Peralta's poor Spanish did not convey that he was seeking permission to search as opposed to announcing that he was doing so. The trial court denied the motion, concluding there was sufficient communication between Peralta and Vasquez-Acedo to convey "what [Peralta] was looking for and . . . that he wanted to go in and search," and that Vasquez-Acedo's language, gestures, and behavior indicated that Vasquez-Acedo "understood what [Peralta] was looking for and . . . what he was doing and allowed him to go in." The court relied in part on an adverse credibility determination against Vasquez-Acedo, concluding he was "diminishing or minimizing" his ability to speak English, noting he had answered several questions in English before the interpreter repeated them in Spanish. The court thus rejected Vasquez-Acedo's testimony that he had told Peralta he needed a court order to enter the home.
¶7 Vasquez-Acedo failed to appear for trial and was tried in absentia in November 2004. The jury found him guilty as charged. In 2016, the trial court sentenced him to a "substantially mitigated," three-year term of imprisonment. This appeal followed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1).
Motion to Suppress
¶8 Vasquez-Acedo first argues the state failed to prove he had consented to the warrantless search of his home, and the trial court therefore erred in denying his motion to suppress. He also argues that even if he initially consented or appeared to consent to a search, Peralta exceeded the scope of consent when he opened the bag. "We review a trial court's ruling on a motion to suppress for abuse of discretion, considering only the evidence presented at the suppression hearing and viewing the facts in a light most favorable to sustaining the trial court's ruling." State v. Adair, 241 Ariz. 58, ¶ 9 (2016). We defer to the trial court's factual findings, but review its ultimate legal conclusions de novo. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118 (1996). Further, because Vasquez-Acedo did not argue below that Peralta exceeded the scope of any consent when he opened the bag, we review that argument for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005).
We reject the state's contention that suppression errors raised for the first time on appeal are wholly forfeited in every case. Although our supreme court strongly discourages consideration for the first time on appeal of a legal issue that "depends upon the resolution of questions which are peculiarly factual in nature[,] . . . particularly when the record below was made with no thought in mind of the legal issue to be decided," State v. Brita, 158 Ariz. 121, 124 (1988), the record here is sufficiently developed to permit review. Accordingly, we review for fundamental error. See State v. Newell, 212 Ariz. 389, ¶ 34 (2006); State v. Kinney, 225 Ariz. 550, ¶ 11 (App. 2010).
¶9 The Fourth Amendment prohibits unreasonable searches and seizures, U.S. Const. amend. IV, and evidence seized in an unreasonable search is generally suppressed, State v. Valenzuela, 239 Ariz. 299, ¶ 10 (2016). Warrantless searches are presumptively unreasonable unless an exception to the warrant requirement, such as consent, applies. Id. ¶¶ 10-11. The state has the burden to prove a warrant exception by a preponderance of the evidence. See Ariz. R. Crim. P. 16.2(b); Valenzuela, 239 Ariz. 299, ¶ 11.
¶10 Voluntariness of consent "is a factual issue resolved by reviewing the totality of circumstances." Valenzuela, 239 Ariz. 299, ¶ 11; see also Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973). Consent requires more than "acquiescence to a claim of lawful authority." Valenzuela, 239 Ariz. 299, ¶ 13, quoting Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). And, "[i]t is unlikely, but not impossible . . . to prove that consent is voluntary if given immediately after an assertion of lawful authority to search." Id. ¶ 19. Further, a party who does not understand a law enforcement officer's request for consent cannot provide it in response thereto. See State v. Acosta, 166 Ariz. 254, 257 (App. 1990). On the other hand, "[w]hile knowledge of the right to refuse consent is one factor to be taken into account," it is not an absolute prerequisite to effective consent. Schneckloth, 412 U.S. at 227, 232-34; see also State v. Smith, 123 Ariz. 231, 241 (1979).
¶11 A party's active participation assisting an officer during a search has been recognized among the circumstances showing voluntariness of consent. State v. Ballesteros, 23 Ariz. App. 211, 214 (1975). Similarly, failure to object to the continuation of a search is relevant to determining the scope of a party's consent. See United States v. Cannon, 29 F.3d 472, 477 (9th Cir. 1994); see also State v. Paredes, 167 Ariz. 609, 612-13 (App. 1991) (search of trunk did not exceed scope of consent when defendant failed to revoke or clarify general consent to vehicle search).
¶12 Here, the evidence presented at the suppression hearing included actions and explicit statements by Vasquez-Acedo indicating consent to Peralta's search of the apartment. Vasquez-Acedo said, "It's ok" to L.M. just before Peralta followed him inside, and did nothing to stop Peralta from entering. Although Vasquez-Acedo claimed Peralta's weapons and uniform had discouraged him from objecting to Peralta's entry, the fact that he expressed concern that Peralta would make a mess in the home demonstrates he did not feel wholly powerless to object to the search, and did not merely "acquiesce[] to a claim of lawful authority." Bumper, 391 U.S. at 549. Once Peralta was inside the home, Vasquez-Acedo made no further protest, and actively assisted the search by moving furniture and opening drawers. He gave Peralta explicit permission to open several dresser drawers and to enter the bedroom closet. The totality of the evidence thus supports the trial court's determination that Peralta could communicate well enough that Vasquez-Acedo understood he wanted to search for marijuana inside the home and that Vasquez-Acedo consented to the search. See Valenzuela, 239 Ariz. 299, ¶ 11.
Moreover, we defer to the trial court's assessments of witness credibility and the weight of the evidence. State v. Estrada, 209 Ariz. 287, ¶ 22 (App. 2004). And, despite Peralta's "very broken" Spanish, Vasquez-Acedo failed to object based on lack of foundation or personal knowledge to Peralta's testimony concerning the intended or perceived meanings of certain statements he and Vasquez-Acedo had made in Spanish. See Ariz. R. Evid. 602 (requirement for witness to have personal knowledge), Ariz. R. Evid. 901(a) (proponent of evidence required to "produce evidence sufficient to support a finding that the item is what the proponent claims it is"). Nor does Vasquez-Acedo argue on appeal that it was error for the trial court to allow such testimony.
¶13 Moreover, even before Peralta opened the bag, the weight of the bag suggested contraband of some kind, and it was apparent from the smell that it likely contained marijuana. At that point, Peralta had probable cause to believe there was criminal activity. State v. Sisco, 239 Ariz. 532, ¶ 26 (2016) (holding odor of marijuana establishes probable cause of criminal activity, unless circumstances "would suggest to a reasonable person" possession authorized under Arizona Medical Marijuana Act), cert. denied, ___ U.S. ___, 137 S. Ct. 701 (2017). The bag could therefore be opened and seized without a warrant. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (warrantless seizure of item permissible "if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object"); Sisco, 239 Ariz. 532, ¶ 12 (probable cause to associate item with criminal activity establishes incriminating character). We conclude the trial court committed no error, fundamental or otherwise, in denying Vasquez-Acedo's motion to suppress.
Mere Presence Jury Instruction
¶14 Vasquez-Acedo also argues the trial court erred in denying his request for a jury instruction that "Mere presence at the scene of a crime is insufficient to establish guilt." We review the denial of a proposed instruction for an abuse of discretion. State v. Cox, 214 Ariz. 518, ¶ 16 (App. 2007). "A party is entitled to an instruction on any theory reasonably supported by evidence." State v. LaGrand, 152 Ariz. 483, 487 (1987). In determining whether an instruction is appropriate, we view the evidence in the light most favorable to the proponent of the instruction. State v. King, 225 Ariz. 87, ¶ 13 (2010); State v. Carson, 242 Ariz. 6, ¶ 2 (App. 2017), review granted (Ariz. Nov. 16, 2017). No reversible error occurs, however, when the instructions as a whole adequately cover the law and would not have misled the jury. State v. Doerr, 193 Ariz. 56, ¶ 35 (1998).
¶15 "'Mere presence' means more than a lack of criminal intent. It refers to 'passivity and nonparticipation' in the crime." Id. ¶ 36, quoting United States v. Perkins, 926 F.2d 1271, 1283-84 (1st Cir. 1991). For example, a mere presence instruction is required upon request "in a prosecution for accomplice liability based on actual presence." State v. Noriega, 187 Ariz. 282, 286 (App. 1996). In such cases, the instruction is required to prevent confusion concerning the "continuum of behaviors ranging from the more serious acts of the principal to the less objectionable acts of the accomplice" and to prevent the erroneous conclusion that accomplice liability can be based on mere presence at the scene of a crime. Id. at 285-86.
¶16 The application of "mere presence" is not, however, limited solely to cases involving alleged accomplice liability. See Doerr, 193 Ariz. 56, ¶¶ 36-38. Such a categorical limitation would contravene the general principles concerning the granting of jury instructions articulated in LaGrand, 152 Ariz. at 487, King, 225 Ariz. 87, ¶ 13, and Carson, 242 Ariz. 6, ¶ 2, as noted above. Nevertheless, a mere presence instruction is not an absolute requisite when accomplice liability is not alleged, especially when any claim of third-party liability is based largely on speculation. See Doerr, 193 Ariz. 56, ¶¶ 1-2, 34-36 (mere presence instruction properly rejected when defendant found covered in victim's blood, and no other person present at scene). Moreover, the arguments of counsel may be sufficient to allow a defendant to advance a theory of third-party culpability in a case not involving alleged accomplice liability. See id. ¶ 38 ("[T]he defense here had ample opportunity to advance its theory that a third person committed the crime, and it did so throughout the trial and at closing.").
¶17 In this case, the state never pursued a theory of accomplice liability, arguing that Vasquez-Acedo himself had possessed the marijuana. The evidence connecting Vasquez-Acedo to the marijuana was based on more than his presence at the home where it was found. At trial, D. testified she told Peralta she obtained the marijuana from Vasquez-Acedo. And, Peralta testified Vasquez-Acedo made a statement to L.M. purporting to accept full responsibility for the marijuana. According to Peralta, Vasquez-Acedo also admitted smoking marijuana, and claimed he did not smoke in the house out of respect for the family. These statements connected Vasquez-Acedo to the marijuana while tending to distance L.M. and any others who lived in the apartment. Moreover, the evidence that Vasquez-Acedo himself possessed the marijuana obviated any danger he could be convicted based on his mere presence in the home. See Noriega, 187 Ariz. at 285-86.
Although Vasquez-Acedo suggests for the first time on appeal that he claimed responsibility only to protect L.M., he offers only speculation to implicate L.M. as the sole possessor of the marijuana.
¶18 Finally, the jury instructions as a whole adequately covered the law and would not have misled the jury concerning what the state had to prove in order to find Vasquez-Acedo guilty of possession of marijuana for sale. See Doerr, 193 Ariz. 56, ¶ 35. Most notably, the jury was instructed that it could find Vasquez-Acedo guilty only if he himself possessed marijuana, "was aware or believed that he possessed" it, in "a usable amount," and "for the purpose of sale." Moreover, the refusal to give a mere presence instruction did not prevent Vasquez-Acedo from arguing that he did not know about the marijuana. See id. ¶ 38 (arguments of counsel considered in determining adequacy of instructions). The trial court did not abuse its discretion in denying Vasquez-Acedo's request for a mere presence instruction.
The jury instructions, among other things, also included definitions for "possess," "actual possession," and "constructive possession." On appeal, Vasquez-Acedo has not challenged any of the jury instructions given by the trial court. --------
Disposition
¶19 For the foregoing reasons, we affirm Vasquez-Acedo's conviction and sentence.