Opinion
2 CA-CR 2024-0012
08-29-2024
The State of Arizona, Appellee, v. Ernest Rivera Carcamo III, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Ashley Torkelson Levine, Assistant Attorney General, Phoenix Counsel for Appellee. Czop Law Firm PLLC, Higley By Steven Czop 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 NOT FOR PUBLICATION See Ariz.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 Pinal County No. S1100CR202000345 The Honorable Patrick K. Gard, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Ashley Torkelson Levine, Assistant Attorney General, Phoenix Counsel for Appellee.
Czop Law Firm PLLC, Higley By Steven Czop Counsel for Appellant.
Judge Vasquez authored the decision of the Court, in which Presiding Judge O'Neil and Vice Chief Judge Eppich concurred.
MEMORANDUM DECISION
VASQUEZ, Judge.
¶1 Following a jury trial, Ernest Carcamo was convicted of possession of methamphetamine for sale, possession of methamphetamine, use of wire communication or electronic communication in drug related transactions, and possession of drug paraphernalia. The trial court sentenced him to aggravated, concurrent prison terms, the longest of which is eighteen years. On appeal, Carcamo argues the state improperly elicited drug-courier profile evidence at trial. For the following reasons, we affirm.
Carcamo does not appeal his convictions or sentences for possession of methamphetamine and possession of drug paraphernalia.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In February 2020, a canine officer stopped the vehicle Carcamo was driving after he had committed a traffic violation, and the officer discovered the vehicle's registration was suspended. Once stopped, Carcamo immediately exited the vehicle and began "spe[e]d walking" towards a house. The officer instructed Carcamo to return, and after "hesitating for a little bit," he did so. During the stop, the officer learned Carcamo and the vehicle's other passenger had revoked licenses. In addition, there was a warrant for Carcamo's arrest.
¶3 While waiting to confirm the warrant, the officer's canine alerted to the presence of narcotics in the vehicle. A subsequent search revealed a "baggie with a small amount of meth[amphetamine]" in the driver's side door pocket and a "big Ziploc plastic bag with more crystal methamphetamine" in the center console. The officer also found a "wad of cash" in Carcamo's wallet in the amount of $690, a digital scale, a glass pipe with drug residue on it, and three cell phones. Carcamo and the passenger were arrested.
¶4 While waiting to be booked into jail, Carcamo stated that "everything in the car was his." Carcamo was charged with possession of methamphetamine for sale, transportation of methamphetamine for sale, possession of methamphetamine, use of wire communication or electronic communication in drug related transactions, and possession of drug paraphernalia.
During the first day of trial the court dismissed the transportation of methamphetamine for sale charge without prejudice, on the state's motion.
¶5 Carcamo was tried in absentia and was convicted and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶6 Carcamo contends the testimony of Casa Grande Police Department Detective Salinas, the state's expert, "became profile evidence" when he "compared the evidence in Carcamo's case to his training and experience related to how drug dealers act." Carcamo maintains this supported the state's conclusion that his "possession of the items recovered in the car amounted to Carcamo possessing the drugs and cell phones for the purpose of selling drugs." We review a trial court's decision to admit evidence for an abuse of discretion. State v. Haskie, 242 Ariz. 582, ¶ 11 (2017).
¶7 Preliminarily, we address the state's argument that Carcamo has forfeited review all but for fundamental, prejudicial error. Carcamo did not object to Detective Salinas's testimony at trial, and the state contends Carcamo did not specifically argue in his motion in limine to preclude the testimony that it amounted to improper drug-courier profile evidence. Motions in limine generally preserve issues for appellate review without the need for a specific objection at trial, State v. Duran, 233 Ariz. 310, ¶ 7 (2013), but an objection on one ground does not preserve an issue for appeal on other grounds, State v. Lopez, 217 Ariz. 433, ¶ 4 (App. 2008).
When a defendant raises a proper objection in the trial court, we review for harmless error, and the state must prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence. State v. Perez-Gutierrez, ___ Ariz. ___, ¶ 18, 548 P.3d 1102, 1107 (2024). But when a defendant does not object to a trial error, we review for fundamental error, and the defendant must show "that (1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." Id. (quoting State v. Escalante, 245 Ariz. 135, ¶ 21 (2018)).
¶8 In his pretrial motion, Carcamo argued Detective Salinas's testimony was inadmissible under Rules 401, 402, 403, and 702, Ariz. R. Evid., to "establish . . . Carcamo's alleged intent to sell or distribute drugs." We acknowledge that Carcamo's motion minimally raised the issue of drug-courier profile evidence in the context of the testimony's probative value under his Rule 403 argument. However, the lack of more substantial argument appears to be a result of the state's agreement, as noted in its supplemental disclosure, that it "w[ould] not attempt to introduce prohibited drug courier profile testimony." And during the Daubert hearing, the state confirmed that Detective Salinas's testimony would not touch on drug-courier profiling evidence. Consequently, the trial court ordered that Detective Salinas "may not express an opinion comparing the modus operandi of the organizations or drug sales with the conduct of the defendant in a profiling manner."
¶9 Given the state's representation concerning the limits of Detective Salinas's testimony and the trial court's opportunity to address and rule on the issue prior to trial, we conclude the issue was sufficiently preserved and review for harmless error. See State v. Teran, 253 Ariz. 165, ¶ 25 (App. 2022); see also State v. Fulminante, 193 Ariz. 485, ¶ 64 (1999) ("An objection is sufficiently made if it provides the judge with an opportunity to provide a remedy."). However, under either harmless error or fundamental error review, we would reach the same result. Both standards require a showing of error, and we conclude that no error occurred in the admission of the expert's testimony. See State v. Diaz, 223 Ariz. 358, ¶ 11 (2010) ("Regardless of how an alleged error ultimately is characterized, however, a defendant on appeal must first establish that some error occurred.").
¶10 "Drug-courier profile evidence suggests that a defendant possesses one or more behavioral characteristics typically displayed by persons trafficking in illegal drugs." State v. Escalante, 245 Ariz. 135, ¶ 22 (2018); State v. Lee, 191 Ariz. 542, ¶ 10 (1998) (describing drug-courier profile as "informal compilation of characteristics" or "abstract of characteristics" typically exhibited by persons trafficking drugs). Profile evidence is not admissible as substantive proof of guilt because of the "risk that a defendant will be convicted not for what he did but for what others are doing." Lee, 191 Ariz. 542, ¶ 12 (quoting State v. Cifuentes, 171 Ariz. 257, 257 (App. 1991)). The prohibition of drug-courier profile evidence does not, however, preclude an expert from explaining the different characteristics between drugs possessed for sale and for personal use, and the distinct behaviors involved. See State v. Fornof, 218 Ariz. 74, ¶ 21 (App. 2008).
¶11 At trial, the state called Detective Salinas as an expert witness on the sale and use of methamphetamine. He opined that the "approximately [two] ounces of methamphetamine" found in the center console of Carcamo's vehicle were possessed for sale. His opinion, informed by his training and experience, was based on several factors he considers when determining whether methamphetamine is possessed for sale. These factors include the methamphetamine's "weight amount" and the presence of a weight scale, cash, drug-sale-related "lingo" in cell phone communications, and packaging material.
¶12 Contrary to Carcamo's argument, Detective Salinas's testimony was not drug-courier profile evidence used as substantive proof of guilt. Rather, it was used to aid the jury's understanding of the evidence by explaining what factors he considered in forming his opinion on whether the drugs possessed by Carcamo were for sale or personal use. We have consistently determined that the testimony of a "for-sale expert" is admissible. See Fornof, 218 Ariz. 74, ¶ 20 (finding no error in expert opinion that drugs possessed by defendant were for sale based on weight amount of drugs, defendant's possession of cash, and lack of personal-use drug paraphernalia); State v. Carreon, 151 Ariz. 615, 617 (App. 1986). That an expert's opinion "embraces an ultimate issue" of fact does not render it inadmissible if it aids the jury in understanding the evidence. Carreon, 151 Ariz. at 617 (quoting Ariz. R. Evid. 704 ). Carcamo's testimony was not inadmissible drug-courier profile opinion evidence, rather it was admissible for-sale expert testimony.
Disposition
¶13 We affirm Carcamo's convictions and sentences.