Opinion
No. 2 CA-CR 2013-0376
08-14-2014
THE STATE OF ARIZONA, Appellee, v. FRANCISCO VILLA GENE GOFF, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Barton & Storts, P.C., Tucson By Brick P. Storts, III 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20112965003
The Honorable Teresa Godoy, Judge Pro Tempore
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Following a jury trial, Francisco Goff was convicted of sale of a narcotic drug. On appeal, Goff argues that the trial court erred in certain evidentiary rulings and that insufficient evidence supported the jury's verdict. Because we find no error, we affirm.
Factual and Procedural Background
¶2 In August 2011, an undercover Tucson Police Department officer posed as someone looking to purchase drugs. He approached two men and asked to buy cocaine. One of those men telephoned Goff. After driving to meet Goff at another location, one of the men, using money provided by the officer, obtained cocaine base from Goff, and gave it to the officer.
¶3 Goff was charged and convicted as described above. He was sentenced to an enhanced, partially mitigated prison term of eleven years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Officer's Testimony
¶4 Goff first argues that the trial court abused its discretion by allowing the undercover officer to testify as an expert on drug transactions and to interpret text messages found on Goff's cellphone. "We review a trial court's rulings on the admission of expert testimony for an abuse of discretion." State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 26, 312 P.3d 123, 130 (App. 2013).
¶5 Goff first appears to reason that the trial court abused its discretion by allowing the officer to, in effect, testify as a "for sale" expert despite having already precluded such testimony. Before trial, the state had disclosed that it would call a detective as a "For Sale Expert." Goff subsequently filed a motion to preclude such testimony on the grounds that the specific detective was unqualified as an expert under Rule 702, Ariz. R. Evid. The state responded by informing Goff and the court that it no longer intended to call a "For Sale expert." At the hearing on the motion, the court concluded "the defendant's Motion to Preclude a For Sale Expert is moot," without any discussion of what the scope of the expert's testimony would have been.
In his motion below, Goff did not cite Rule 702, but rather cited Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Rule 702, however, reflects the shift in Arizona to adopting the federal standard of admissibility set forth in Daubert. See State v. Perez, 233 Ariz. 38, ¶ 16, 308 P.3d 1189, 1193 (App. 2013).
¶6 The evening before trial began, Goff moved to preclude text messages found on his cellphone, arguing, as pertinent here, that "[t]he text messages contain language that requires precluded expert testimony." When the parties discussed this motion during trial, the state noted it intended to elicit testimony from the undercover officer interpreting the meaning of those text messages. The trial court ultimately concluded that the officer would not be testifying as a "for-sale expert" discussing a complex narcotic transaction, but rather as someone with "experience in the lingo" of "a street level narcotics transaction."
¶7 First, because the issue became moot, the trial court never had the opportunity before trial to rule directly on the admissibility of a "for sale" expert. Thus, the court did not change or violate its prior decision. Second, even had the court precluded any "for sale" expert from testifying, we cannot say the undercover officer was testifying in that capacity. The court concluded that the expert testimony the officer was to provide was different from what would have been expected from a "for sale" expert. And nothing in the record establishes that the officer's testimony was identical to that of the proposed "for sale" expert. Therefore, the court did not abuse its discretion in allowing the officer to testify despite any purported prior ruling. See Buccheri-Bianca, 233 Ariz. 324, ¶ 26, 312 P.3d at 130.
¶8 Goff also contends that "[a]t the very least, the State failed to properly disclose this information to the defense in violation of Rule 15.1(b)(1) and (b)(4)[, Ariz. R. Crim. P.]." Goff, however, did not object on this basis below. We therefore review only for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). But Goff has failed to allege the error was fundamental, failed to cite any authority supporting his contention, and failed to develop his argument in any meaningful way which would allow appellate review, such as what sanction would have been appropriate and what the result of the sanction would have been. See Ariz. R. Crim. P. 15.7(a) (if party fails to make required disclosures, opposing party may move to compel and seek sanctions). He has therefore waived this argument. See State v. Moreno-Medrano, 218 Ariz. 349, ¶¶ 16-17, 185 P.3d 135, 140 (App. 2008); see also Ariz. R. Crim. P. 31.13(c)(1)(vi) (argument shall contain "citations to the authorities, statutes and parts of the record relied on"); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (issue waived when argument insufficient to permit appellate review).
In his reply brief, Goff argues the trial court's ruling lowered the state's burden of proof and violated his due process rights pursuant to the "Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution." He further argues the undercover officer gave his opinion that Goff was guilty by testifying that an exhibit admitted into evidence was the cocaine "purchased" that day. We do not review arguments raised for the first time in a reply brief. State v. Brown, 233 Ariz. 153, ¶ 28, 310 P.3d 29, 39 (App. 2013).
¶9 Goff next contends that the undercover officer and another officer who testified at trial were not qualified as experts and that the state did not lay the proper foundation for their testimony. Goff did not raise a foundation objection below, and we therefore review only for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. Again, Goff has failed to argue any alleged error was fundamental and has therefore waived the issue on appeal. See Moreno-Medrano, 218 Ariz. 349, ¶¶ 16-17, 185 P.3d at 140.
Other-Acts Evidence
¶10 Goff next argues the trial court erred in allowing the state to introduce evidence of the text messages recovered from his cellphone, contending it was evidence of other acts that was not offered for a proper purpose under Rule 404(b), Ariz. R. Evid. We review a trial court's ruling on the admission of evidence for an abuse of discretion. State v. Payne, 233 Ariz. 484, ¶ 56, 314 P.3d 1239, 1258 (2013). We view "the evidence in the 'light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.'" State v. Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d 513, 518 (App. 1998), approved, 210 Ariz. 561, 115 P.3d 601 (1999), quoting State v. Castro, 163 Ariz. 465, 473, 788 P.2d 1216, 1224 (App. 1989). Additionally, we may affirm the ruling "on any basis supported by the record." State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).
¶11 Rule 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Here, however, the text messages at issue were not evidence of other acts pursuant to Rule 404(b).
¶12 Two of the text messages introduced at trial were sent to Goff's cellphone from other individuals. Because Goff did not send those text messages, they were not other acts committed by him within the scope of Rule 404(b). See State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1196 (1997). Rather, the text messages were admissible as relevant, circumstantial, non-hearsay evidence showing that Goff was selling drugs. See State v. Chavez, 225 Ariz. 442, ¶ 9, 239 P.3d 761, 763 (App. 2010). Consequently, Goff's reliance on Rule 404(b) to preclude the two incoming text messages fails.
¶13 The third text message introduced at trial was sent from Goff's cellphone and read: "My name is Francisco Goff. Also known as Gordo." The trial court found that particular text message was admissible "for identification purposes," which is a proper purpose under Rule 404(b). We agree this text message is not evidence of any other crime, wrong, or act; it simply identifies Goff. See id. Indeed, the state used the text message as circumstantial evidence that the cellphone belonged to Goff when the other incoming messages were received, and that the individuals in the undercover officer's car were speaking with Goff when the officer heard them reference "Gordo." Thus, because the text message was offered for a relevant and proper purpose, was not an "other . . . act[]" under Rule 404(b), and was not offered to prove, as Goff contends, that he "had some type of propensity," the court did not abuse its discretion in ruling that it was admissible. See State v. Coghill, 216 Ariz. 578, ¶ 13, 169 P.3d 942, 946 (App. 2007); see also Ariz. R. Evid. 401 (evidence relevant if it has any tendency to make fact of consequence more or less probable).
¶14 Goff argues, however, that the state did not prove by clear and convincing evidence he had sent or received the text messages. See Terrazas, 189 Ariz. at 582, 944 P.2d at 1196 (state must prove defendant committed other acts by clear and convincing evidence). We have already concluded the text messages were not other acts under Rule 404(b), and therefore the state was not required to meet this burden.
¶15 Goff also argues that any probative value of the text messages was "far outweighed by the danger of substantial prejudice." Even if relevant and otherwise admissible, evidence still must undergo an analysis under Rule 403, Ariz. R. Evid. "Unfair prejudice results if the evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997). Because "[t]he trial court is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice . . . it has broad discretion in deciding the admissibility" of the evidence. Harrison, 195 Ariz. 28, ¶ 21, 985 P.2d at 518.
¶16 In this case, the trial court concluded that "the probative value of [the text messages] is not outweighed by the danger of unfair prejudice." The two text messages from potential buyers are circumstantial evidence that Goff was selling drugs. See Chavez, 225 Ariz. 442, ¶ 9, 239 P.3d at 763. And the other text message merely identifies Goff. None of these messages would have an "undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror." Mott, 187 Ariz. at 545, 931 P.2d at 1055. Evidence that the cellphone likely had been in Goff's possession at the time he received text messages from prospective drug buyers and that Goff was known as "Gordo" was probative on the issues of identity and guilt, and did not have an undue tendency to suggest decision on an improper basis. See Mott, 187 Ariz. at 545, 931 P.2d at 1055; see also State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) ("[N]ot all harmful evidence is unfairly prejudicial. After all, evidence which is relevant and material will generally be adverse to the opponent."). We therefore reject Goff's argument.
¶17 Goff also argues the state violated Rule 15.1(b)(7), Ariz. R. Crim. P., because it failed to notify him before trial that it intended to use the text message as other-act evidence against him. As stated above, the text messages did not constitute other-act evidence. And Goff has failed to cite any authority or develop his argument regarding this claim in any meaningful way to enable appellate review. Consequently, he has waived review of the argument. See Ariz. R. Crim. P. 31.13(c)(1)(vi); Bolton, 182 Ariz. at 298, 896 P.2d at 838.
Sufficiency of the Evidence
¶18 Goff lastly contends the trial court erred in denying his motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P., because insufficient evidence supported the jury's verdict. He argues "that any evidence of a[ sale] is purely speculative and comes solely from conjecture."
¶19 We review de novo whether sufficient evidence supports a conviction and view the evidence in the light most favorable to sustaining the verdict. State v. Mwandishi, 229 Ariz. 570, ¶ 6, 278 P.3d 912, 913 (App. 2012). A trial court should grant a Rule 20 motion "only when 'there is no substantial evidence to warrant a conviction.'" Mwandishi, 229 Ariz. 570, ¶ 6, 278 P.3d at 913, quoting Ariz. R. Crim. P. 20(a). "Substantial evidence, which may be either circumstantial or direct, is evidence that a reasonable jury can accept as sufficient to infer guilt beyond a reasonable doubt." State v. Henry, 205 Ariz. 229, ¶ 11, 68 P.3d 455, 458 (App. 2003). If reasonable minds could differ on the inferences drawn from the facts, the case must be submitted to the jury. State v. West, 226 Ariz. 559, ¶ 18, 250 P.3d 1188, 1191 (2011).
¶20 As relevant here, a person violates A.R.S. § 13-3408(A)(7) if he "sell[s] . . . a narcotic drug." "'[S]ell' means an exchange of anything of value or advantage, present or prospective." A.R.S. § 13-3401(32). Cocaine base is defined as a narcotic drug. § 13-3401(5), (20)(z).
We cite the current version of the statute, as the relevant provisions have not changed since Goff committed his offense.
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¶21 Goff contends that because neither the undercover officer nor another officer performing surveillance of the transaction directly saw a hand-to-hand exchange between Goff and the man who took the undercover officer's money, insufficient evidence was produced for the jury to find a sale took place. At trial, the undercover officer testified that he had picked up two men and told them he was looking to purchase cocaine. One of the men used the officer's cellphone to place a call. The men then instructed the officer to drive to a specific convenience store. During the drive, the officer heard one of the men use the name "Gordo." Using the officer's cellphone, the man called Goff's cellphone a total of four times.
¶22 Once at the convenience store, the undercover officer gave one of the men the "buy money" for the cocaine base. The man got out of the car and paced around an empty parking lot. A short time later, Goff pulled into the parking lot in another vehicle. The man with the cash leaned into the driver's side window of Goff's vehicle, and then returned to the officer's car with a bag of cocaine base.
¶23 Shortly after Goff left the parking lot, his vehicle was pulled over and searched. In the vehicle's center console police found a cellphone and the buy money the officer had provided. After downloading the cellphone's information, police discovered an outgoing text message stating "My name is Francisco Goff. Also known as Gordo," and two incoming text messages which suggested the senders believed the recipient had drugs for sale.
¶24 Based on this evidence, a jury reasonably could conclude that the men in the undercover officer's car had called Goff seeking cocaine to purchase, and proceeded to exchange the buy money for cocaine base. Although neither officer witnessed the actual hand-to-hand exchange, sufficient circumstantial evidence demonstrated that the buy money was handed to Goff in exchange for cocaine base. See Henry, 205 Ariz. 229, ¶ 11, 68 P.3d at 458. The trial court did not err in denying Goff's Rule 20 motion. See Mwandishi, 229 Ariz. 570, ¶ 6, 278 P.3d at 913.
Disposition
¶25 For the foregoing reasons, we affirm Goff's conviction and sentence.