Opinion
No. 1 CA-CR 15-0613
12-06-2016
STATE OF ARIZONA, Appellee, v. ROLAN G. HERNANDEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Eric Knobloch Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Terry J. Reid Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2014-141888-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Eric Knobloch
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Terry J. Reid
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Andrew W. Gould and Judge Patricia A. Orozco joined. SWANN, Judge:
¶1 Rolan G. Hernandez was convicted of one count of possession or use of dangerous drugs. He appeals, arguing that the trial court improperly admitted character evidence in violation of the Arizona Rules of Evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On April 11, 2014, Officer Andrew Butters was patrolling in a marked police car in Tempe. At about 2:30 a.m., he observed Hernandez carrying two tireless bicycle frames that were tethered together. Ofc. Butters was aware of a rise in nighttime bicycle thefts in the area.
The parties dispute which version of the trial transcript to use on appeal. However, we need not resolve the issue as the uncontested portions of the record support the trial court's actions.
¶3 Ofc. Butters exited his vehicle and talked to Hernandez. He asked Hernandez if he had an ID. As Hernandez removed and opened a wallet from his pocket, Ofc. Butters saw the top of an Arizona driver's license. Hernandez put the wallet back in his pocket and said he did not have an ID.
¶4 Ofc. Butters then asked Hernandez for his name and date of birth, which he voluntarily provided. Ofc. Butters ultimately arrested Hernandez based on an outstanding warrant. He then searched Hernandez and found in his coin pocket a green gum wrapper containing a rocky crystalline substance, which based on his training and experience he believed was methamphetamine. Ofc. Butters also found in the wallet a driver's license that did not belong to Hernandez and a Mesa Police Department business card.
¶5 Ofc. Butters read Hernandez Miranda warnings, and Hernandez voluntarily waived his rights. A recording of the ensuing conversation was played at trial. In the recording, Hernandez stated that he had just found the wallet not far from where he encountered Ofc. Butters, taken the gum wrapper out of the wallet and placed it in his pocket, knowing it contained methamphetamine, and planned to trade or sell it.
¶6 A criminalist testified that the substance in the gum wrapper was 0.26 grams, a useable amount, of methamphetamine.
¶7 The jury found Hernandez guilty of knowingly possessing or using a dangerous drug. See A.R.S. §§ 13-3407(A)(1), -3401(6)(c)(xxxviii). The court entered judgment on the verdict and placed Hernandez on probation. Hernandez timely appeals.
DISCUSSION
¶8 Hernandez argues that the trial court improperly admitted character evidence under Arizona Rule of Evidence 404(b) when it admitted the driver's license, the Mesa Police Department business card, certain portions of the interrogation, and the warrant. He also argues that the limiting instructions were insufficient to cure the resulting prejudice. Character evidence is inadmissible to prove a defendant acted in conformity with that character trait, but it may be admitted for other purposes. Ariz. R. Evid. 404(b). We review admission of character evidence for an abuse of discretion. State v. Jean, 239 Ariz. 495, 497, ¶ 4 (App. 2016). I. THE DRIVER'S LICENSE
To admit character evidence, the court must (1) find that it is admitted for a proper purpose; (2) find that it is relevant; (3) find that its probative value substantially outweighs the potential for unfair prejudice; and (4) provide an appropriate limiting instruction if requested. State v. Terrazas, 189 Ariz. 580, 583 (1997). --------
¶9 Hernandez first objects to the admission of the driver's license from the wallet because ownership of the wallet was never contested, rendering the license needlessly cumulative and implying prior bad acts. When the ID was admitted, Ofc. Butters had already testified that Hernandez claimed to have found the wallet. In the recorded interrogation, Hernandez stated that the wallet did not belong to him and that he planned to return it to its rightful owner. The ID was properly admitted to show that the wallet was not Hernandez's, an issue that Hernandez's own statement to Ofc. Butters made relevant. Moreover, the trial court instructed the jury that the contents of the wallet could be used only to determine if Hernandez knowingly possessed methamphetamine. II. THE MESA POLICE DEPARTMENT BUSINESS CARD
¶10 Hernandez next argues that the trial court improperly admitted a Mesa Police Department business card because the case number written on its face implied a connection to another criminal act. Hernandez told Ofc. Butters that he placed the business card in the wallet earlier that evening because he was trying to retrieve some stolen property. The card was relevant as it tended to show that Hernandez had greater knowledge and control of the wallet's contents, including the methamphetamine he allegedly found in the wallet, than if he had simply found it on the ground. The state did not offer any evidence about the referenced case. The case number alone was not evidence of a prior bad act. Indeed, nothing in the record contradicts Hernandez's claim that the case number related to his efforts to retrieve stolen property. III. EXTRANEOUS INFORMATION IN THE RECORDED INTERROGATION
¶11 Hernandez next contends that portion of his interrogation discussing a foreign passport in a red bag attached to one of the bikes was improperly admitted.
¶12 We agree that the discussion of the passport was not relevant. See Ariz. R. Evid. 402. But the discussion was harmless because we cannot say on this record that it affected the verdict. See State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). All evidence showed that the passport came from a yard sale a month or two before Hernandez's arrest, and the passport itself was not offered as evidence. Moreover, Hernandez admitted in the recording that he knew about the methamphetamine and planned to trade or sell it. Though superfluous, the discussion of the passport was not unduly prejudicial, and the court instructed the jury that the document could only be used to determine if Hernandez knowingly possessed methamphetamine. IV. THE WARRANT
¶13 Hernandez contests the admission of the evidence of a warrant for his arrest as improper 404(b) evidence. He suggests that Ofc. Butters should have only testified that Hernandez was arrested "on an unrelated minor matter." We disagree. The testimony was offered for the proper purpose of explaining how and where Ofc. Butters found the methamphetamine. No information about the other matter was presented at trial, and the trial court gave an appropriate limiting instruction. Whether the testimony had indicated an outstanding warrant or simply an arrest on another matter, the effect would have been the same — there would have been a suggestion of law enforcement interest in Hernandez for another reason. We find no error. V. THE JURY INSTRUCTIONS
¶14 Finally, Hernandez argues that the jury used evidence for an improper purpose. During trial, a juror asked whether the person on the license was ever questioned. The court ruled the question was not relevant, and later gave a limiting instruction on the wallet's contents. We presume jurors follow the court's instructions even if an instruction is given at the end of the trial. State v. Newell, 212 Ariz. 389, 403, ¶¶ 68-69 (2006). The jury did not ask any improper questions after receiving the instructions.
CONCLUSION
¶15 For the foregoing reasons, we affirm the conviction.