Opinion
2 CA-CR 2020-0098
06-15-2021
The State of Arizona, Appellee, v. Eric William Lopez, Appellant.
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Brian R. Coffman, Assistant Attorney General, Phoenix Counsel for Appellee. Law Office of Elizabeth M. Hale, Lakeside By Elizabeth M. Hale Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Graham County No. CR201800139 The Honorable Travis W. Ragland, Judge Pro Tempore.
COUNSEL
Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Brian R. Coffman, Assistant Attorney General, Phoenix Counsel for Appellee.
Law Office of Elizabeth M. Hale, Lakeside By Elizabeth M. Hale Counsel for Appellant.
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, Presiding Judge:
¶1 Eric William Lopez appeals from his convictions and sentences for possession of a dangerous drug for sale, possession of a dangerous drug, and possession of drug paraphernalia. Lopez argues the trial court erred in denying his pretrial motion to suppress and allowing evidence to be admitted at trial despite chain-of-custody issues. He also argues his conviction and sentence for possession of a dangerous drug violated his right to be free from double jeopardy. For the following reasons, we vacate Lopez's possession of a dangerous drug conviction and sentence, but otherwise affirm his convictions and sentences.
Factual and Procedural Background
¶2 We view the evidence and draw all reasonable inferences therefrom in the light most favorable to affirming Lopez's convictions. See State v. Miles, 211 Ariz. 475, ¶ 2 (App. 2005). On Saint Patrick's Day in 2018, near midnight, Sergeant Cluff of the Safford Police Department saw a car driving slowly near a high-crime area. He checked the license plate of the car and discovered its registration had been suspended due to a lack of proof of insurance. As a result, Cluff activated the emergency lights in his patrol car to initiate a traffic stop, but the car he was following continued traveling for at least 400 feet before stopping.
¶3 As Cluff walked toward the driver-side window, he saw Lopez turn towards him with a panicked look and reach down between the seats near the center-console area in a manner that blocked Cluff's view. He ordered Lopez to put his hands up, but Lopez did not immediately comply, and Cluff drew his weapon. After Lopez put his hands up, Cluff holstered his weapon and told Lopez why he had been stopped. Lopez told Cluff the car belonged to his daughter and claimed he was coming from his "kid's house" and was going home. Cluff then asked Lopez for his license, registration, and insurance. When Cluff again asked Lopez where he was going, Lopez claimed he was going to get his car and then going home.
¶4 During his interaction with Lopez, Cluff detected a slight odor of alcohol from the car, learned Lopez had taken a shot of alcohol prior to driving, and observed that Lopez had bloodshot, watery eyes and was acting nervous, sweating profusely, and speaking with a shaky voice. Cluff subsequently asked Lopez to step out of the car, and after conducting an investigation into whether he was driving under the influence (DUI), he determined Lopez was not impaired. Cluff then returned to his car to check Lopez's driver license.
¶5 Cluff did not find any issues with Lopez's license. He questioned Lopez about the presence of any weapons or drugs in the car, and after about ninety seconds of questioning, Lopez consented to a search of his car. Inside the car, Cluff saw a scale on the front passenger seat and found a baggie with methamphetamine in between the center console and front passenger seat.
¶6 Lopez was subsequently charged with possession of a dangerous drug for sale, possession of a dangerous drug, and possession of drug paraphernalia. After a two-day trial, Lopez was convicted as charged. The trial court sentenced him to concurrent prison terms of fourteen years for possession of a dangerous drug for sale, ten years for possession of a dangerous drug, and 3.75 years for possession of drug paraphernalia. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Although it appears Lopez absconded and delayed sentencing for more than ninety days after trial, see § 13-4033(C), the court made no finding that he had knowingly, intelligently, and voluntarily waived his right to appeal, see State v. Raffaele, 249 Ariz. 474, ¶ 15 (App. 2020). We therefore have jurisdiction pursuant to § 13-4033(A)(1).
Motion to Suppress
¶7 Before trial, Lopez filed a motion to suppress, arguing Cluff unconstitutionally detained him after the DUI investigation had concluded and obtained involuntary consent to search his car. The state responded that Cluff's detention of Lopez was lawful because Cluff had reasonable and articulable suspicion that criminal activity was afoot and that Lopez's consent was voluntary. The trial court held a suppression hearing and subsequently denied the motion to suppress, making the following findings:
That [Lopez] was initially stopped for a mandatory insurance suspension.
That during the stop the officer observed [Lopez] acting in a manner that led the officer to believe that [Lopez] was trying to stuff something between the console and seat.
That during the stop the officer also observed things that led him to believe that [Lopez] might be driving under the influence.
That the officer's observations of [Lopez], including among other things, [Lopez] trying to stuff something between the console and seat, [Lopez]'s rapid carotid pulse, nervous demeanor, time of night, and explanation regarding where he was going and coming from, considered collectively, provided a reasonable and articulable suspicion that [Lopez] was engaged in illegal activity.
That considering the totality of the circumstances, the length of the stop was reasonable. That [Lopez] consented to the search of the vehicle.
That there was no evidence of explicit or implicit coercion, or implied threat or covert force.
¶8 On appeal, Lopez argues the trial court erred by denying his motion to suppress. He reasserts his constitutional rights were violated when Cluff continued to detain him after completing his investigation into the traffic violation, contending Cluff only had an inchoate hunch that he was engaged in criminal activity. He also argues Cluff did not have valid consent to search his car and even if he did, Cluff's actions exceeded the scope of his consent.
¶9 "We review the denial of a motion to suppress for an abuse of discretion, but we review legal and constitutional issues de novo." State v. Sallard, 247 Ariz. 464, ¶ 7 (App. 2019) (citations omitted). "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court's ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2 (App. 2014); State v. Rosengren, 199 Ariz. 112, ¶ 9 (App. 2000) (defer to factual findings supported by the record and not clearly erroneous). And in cases where the trial court did not articulate any factual findings, we will infer those findings that are reasonably supported by the record and necessary to support the ruling. State v. Organ, 225 Ariz. 43, ¶ 10 (App. 2010).
Reasonable Suspicion
¶10 On appeal, Lopez concedes that the initial traffic stop, DUI investigation, and records check were reasonable under the circumstances. However, he contends that once Cluff found no signs of impairment or issues with his driver license, Cluff should have released him because he lacked reasonable suspicion to detain him any longer.
¶11 The Fourth Amendment forbids unreasonable searches and seizures. U.S. Const. amend. IV. A traffic stop is considered a seizure, but a police officer only needs reasonable suspicion that a driver has committed an offense to conduct a stop. State v. Kjolsrud, 239 Ariz. 319, ¶ 9 (App. 2016). "[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'-to address the traffic violation that warranted the stop and attend to related safety concerns." Id. ¶ 10 (quoting Rodriguez v. United States, 575 U.S. 348, 354 (2015)). Authority for the seizure ends when the tasks pertaining to the traffic infraction were, or reasonably should have been, completed. Id. After this time, the officer must allow the driver to leave unless "during the encounter, the officer develops a reasonable and articulable suspicion that criminal activity is afoot." Id. (quoting State v. Sweeney, 224 Ariz. 107, ¶ 17 (App. 2010)).
¶12 "Reasonable suspicion is a justifiable suspicion that the particular individual to be detained is, or has been, involved in criminal activity." Devlin v. Browning, 249 Ariz. 143, ¶ 10 (App. 2020). An officer does not need solid proof, but does need "an objective basis to believe that criminal activity might be occurring sufficient to justify further investigation." Id. (quoting State v. Turner, 243 Ariz. 608, ¶ 7 (App. 2018)); see also State v. Teagle, 217 Ariz. 17, ¶ 25 (App. 2007) ("[T]he Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory detention."). We must look at the totality of the circumstances to determine whether reasonable suspicion exists, State v. Evans, 237 Ariz. 231, ¶ 8 (2015), and "we accord deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious actions," Teagle, 217 Ariz. 17, ¶ 26.
¶13 Here, Cluff lawfully detained Lopez after checking his driver license based on the totality of the circumstances. At the suppression hearing, Cluff gave the following objective reasons for why he believed Lopez was engaged in criminal activity. First, Cluff testified Lopez had driven at least 400 feet after Cluff activated his emergency lights, despite having "ample opportunity to stop." Second, Cluff testified Lopez's panicked look, positioning of his body to obstruct his view, and "digging in" the center-console area suggested he had concealed something. Third, Lopez denied ownership of the car even though it was registered to him, suggesting he might be trying to distance himself from something illegal in the car.
¶14 Fourth, Lopez's direction of travel was inconsistent with his claim that he was headed home. Fifth, the stop occurred late at night in a high-crime area where Cluff had previously been involved in multiple drug arrests. Sixth, Lopez exhibited abnormal nervous behavior during his encounter with Cluff, including a shaky voice, profuse sweating during cool weather, smoking a freshly lit cigarette, which according to Cluff could be indicative of an attempt to mask odors or calm nerves, relaxing of his demeanor the further they moved away from the car, and a "strong, rapid pulse that was visible."
Lopez contends this case is similar to United States v. McKoy, 428 F.3d 38 (1st Cir. 2005), and we should conclude Cluff had no reasonable suspicion here because, similar to the officers in McKoy, Cluff's suspicions were "almost entirely [based] on Lopez's nervousness and his actions within the car." In McKoy, the officers performed an investigatory stop for a parking and license-plate violation. Id. at 40. The court concluded the officers had no reasonable suspicion to conduct a Terry frisk in light of the inadequate reasons provided by the government-that the officers were concerned for their safety because McKoy was parked in a high-crime area, leaned and reached towards the center console of his car, and appeared nervous and avoided eye contact as the officers approached his car. Id. at 39-41; see also Terry v. Ohio, 392 U.S. 1, 19-22, 30 (1968). However, this case is distinguishable because in addition to Lopez's nervous behavior, his reaching toward the center console, and the high-crime area, Cluff articulated several other reasons for his suspicion as explained above.
¶15 Lopez provides innocent explanations for some of his behavior and argues many of the circumstances Cluff relied on "do not eliminate a large swath of the driving population as required" by Evans, 237 Ariz. 231. However, in Evans our supreme court confirmed "the police are not required to rule out the possibility of innocent explanations for a defendant's conduct" when determining whether reasonable suspicion exists. Id. ¶ 16 (quoting State v. Evans, 235 Ariz. 314, ¶ 19 (App. 2014)). Nor do they need to provide testimony supporting how their "observations reduce or eliminate the possibility that innocent travelers will be subject to seizures." Id. ¶ 17. Instead, the focus is "whether an officer's suspicion was reasonable under the totality of the circumstances." Id. ¶ 14; see also Teagle, 217 Ariz. 17, ¶ 25 (courts must examine reasonable suspicion factors collectively and not parse out each factor). Although Lopez's behaviors may have innocent explanations on their own, when taken together, Cluff had reasonable suspicion to believe there was criminal activity afoot in Lopez's car. Therefore, the trial court did not abuse its discretion by denying the motion to suppress.
Consent
¶16 On appeal, Lopez argues his consent to search was involuntary because (1) there were more than three police cars and multiple uniformed officers at the scene, (2) Cluff used coercive tactics by repeatedly telling Lopez he almost got shot and "badgering" him for consent, (3) he was seized at the time he provided consent, (4) he was not informed that he could refuse consent, and (5) he was not given Miranda warnings prior to providing consent.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶17 Consent is a long recognized exception to the warrant requirement. State v. Guillen, 223 Ariz. 314, ¶ 11 (2010). When relying on this exception, the state has the burden of proving, by a preponderance of the evidence, that the consent was voluntarily obtained. State v. Valenzuela, 239 Ariz. 299, ¶ 11 (2016). "Whether consent is voluntary or 'the product of duress or coercion, express or implied,' is a factual issue resolved by reviewing the totality of circumstances, including any 'subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.'" Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 229 (1973)).
¶18 Based on Cluffs testimony and the body-camera footage admitted into evidence at the suppression hearing, the record supports the trial court's ruling that the state met its burden of showing Lopez had voluntarily consented to a search. Lopez was an adult and he did not appear to be under the influence of alcohol or drugs when he consented, as evidenced by the DUI investigation performed by Cluff. See United States v. Dunning, 666 F.3d 1158, 1165 (8th Cir. 2012) (voluntary consent based, in part, on adult age and lack of influence of drugs). Lopez was only detained for approximately thirteen minutes, and he provided consent on a public residential street after approximately ninety seconds of questioning related to consent for a search. See United States v. Barnum, 564 F.3d 964, 971 (8th Cir. 2009) (voluntary consent based in part on limited detention of twelve to fifteen minutes and public setting when consent was obtained).
¶19 Although Cluff drew his weapon during the initial moments of the stop, Cluff testified that he had "dialed it back down" shortly thereafter once Lopez complied with his requests; the body-camera footage confirms Cluff s weapon was not drawn during his subsequent interactions with Lopez. See State v. Watson, 114 Ariz. 1, 4, 7 (1976), modified on other grounds by State v. Spreitz, 202 Ariz. 1, ¶¶ 7, 11 (2002) (voluntary consent despite officers having weapons drawn on initial contact). At the time when consent was provided, no weapon was drawn, and it appeared Cluffs weapon had been holstered for approximately nine minutes. See United States v. Drayton, 536 U.S. 194, 195 (2002) ("[Presence of a holstered firearm is unlikely to be coercive absent active brandishing of the weapon."). There also only appeared to be two officers present at the time of consent. See United States v. Morales, 893 F.3d 1360, 1368 (11th Cir. 2018) (voluntary consent when, among other circumstances, there were "only two officers present"); Barnum, 564 F.3d at 969-70 (examining number of officers present when consent given).
At the suppression hearing, Lopez testified he was "pretty sure" there were four other officers present during the traffic stop. On appeal, Lopez argues that after Cluff called for backup, "at least three other police cars arrive[d], with two additional police vehicles driving by." The body-camera footage confirms the presence of at least four police cars during the interaction with Lopez, but it also shows some of these cars leaving as the investigation continued. Viewed in the light most favorable to upholding the trial court's ruling, there appeared to be only two officers present at the time of consent. See Gonzalez, 235 Ariz. 212, ¶ 2; Organ, 225 Ariz. 43, ¶ 10. Even if we assume, for the sake of argument, that there were five officers present, as Lopez appears to suggest, it would not change the result based on the record before us. See Watson, 114 Ariz. at 4, 7 (voluntary consent even when "immediately confronted by five police officers with drawn guns").
¶20 Furthermore, there is no evidence that Lopez relied on promises or misrepresentations made by an officer or that an officer claimed lawful authority to search. See State v. Smith, 123 Ariz. 231, 241-42 (1979) (no promises or subtle forms of coercion by officers weighs in favor of voluntary consent). In fact, Cluff suggested to Lopez that he did not have authority to search when he stated, "I can't see in there right now. That's why I am asking. I want to check to make sure you didn't shove something down there on me man." Contrary to Lopez's suggestion, there is also no evidence that he was threatened, physically intimidated, or punished by any officer. See State v. Flores, 195 Ariz. 199, ¶¶ 18-19 (App. 1999) (voluntary consent when, among other things, no evidence defendant was threatened or coerced). Lopez claims he only consented because of Cluffs coercive techniques, including repeatedly telling Lopez he almost got shot and his "persistent pressing for consent to search." However, before receiving his consent, Cluff only informed Lopez that he almost got shot after Lopez asked why other officers were present. Based on the context of their conversation, Cluff was not threatening Lopez; he was merely explaining to him that he called for backup because was concerned for his safety in light of Lopez digging in between the seats and failing to comply with his orders when he first approached him.
¶21 Lopez also contends Cluff coerced him into consenting because Cluff "continually badger[ed] [him] about what he was reaching for" even though he "told him four or five times that he was only reaching for his phone." Notably, Lopez never told Cluff he could not search the car when Cluff asked him for consent. Based on the short period of time and the moderate degree of questioning, we do not agree that Cluffs questioning amounts to coercion based on these facts.
At the suppression hearing, Lopez testified that Cluff had told him "this was [his] last chance to tell him what was in [the car]." On appeal, Lopez apparently concedes that Cluff did not say "last chance" because he argues that he perceived Cluff's statements to mean it was his last chance. While Lopez's perceptions are relevant, see Bustamonte, 412 U.S. at 229, our review of the evidence confirms the trial court's finding that Cluff made no implied threats. Even if we assume, for the sake of argument, that this was an implied threat, it would not change our conclusion considering the totality of the circumstances.
¶22 Lastly, Lopez asserts he was seized when he provided consent, not told he could refuse consent, and not given his Miranda warnings prior to giving consent. While these are relevant factors that weigh in Lopez's favor, see State v. Laughter, 128 Ariz. 264, 266-67 (App. 1980), Lopez overlooks the factors that weigh against him, as articulated above, and ignores that no single factor is dispositive in this totality of the circumstances analysis, see Watson, 114 Ariz. at 7 (no single factor dispositive in totality of circumstances analysis of voluntariness of consent). It appears Lopez was seized at the time of consent because a reasonable person would not feel free to leave without their license and documents. See State v. Childress, 222 Ariz. 334, ¶ 11 (App. 2009) (seized if under the totality of the circumstances a reasonable person "would [not] have felt free to leave"). But this factor is not dispositive and he was not handcuffed or under arrest when he gave consent. See State v. King, 140 Ariz. 602, 604 (App. 1984) ("The fact that appellee was in custody does not, alone, demonstrate a coerced consent to search."); United States v. Spivey, 861 F.3d 1207, 1215-16 (11th Cir. 2017) (voluntary consent when, among other things, defendant not handcuffed or under arrest when she consented). Even though Cluff did not inform Lopez that he had the right to refuse consent nor read him the Miranda warnings prior to receiving his consent, he was not required to do so for the consent to be voluntary. See Bustamonte, 412 U.S. at 248-49 (knowledge of right to refuse consent can be considered but not required to establish voluntary consent); Dunning, 666 F.3d at 1165 (voluntary consent based on totality of circumstances even though defendant not free to leave and not read Miranda warnings prior to consenting). Based on the totality of the circumstances, the record supports the trial court's ruling that Lopez voluntarily consented to a search. Therefore, we cannot say the trial court abused its discretion.
Scope of Consent
¶23 For the first time on appeal, Lopez argues that Cluff exceeded the scope of his consent because he limited the scope of the search to his "phone and its location on the floor." We review this issue for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶ 19 (2005).
¶24 "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?" State v. Becerra, 239 Ariz. 90, ¶ 9 (App. 2016) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). "The scope of a search is generally defined by its expressed object." Jimeno, 500 U.S. at 251.
¶25 Here, Cluff did not exceed the scope of consent because a reasonable person would have understood Lopez's consent to be broad enough to permit a search to see if he was really reaching for his phone or concealing contraband. Cluff asked Lopez whether he had guns or drugs in the car, and Lopez denied having either. Cluff subsequently asked, "So you good if I just make sure there is no guns or nothing like that in there?" Lopez replied, "There is no guns in there." Cluff told Lopez that he thought he had concealed something "down there" based on what he observed, and Lopez claimed he was just reaching for his cell phone. Cluff said, "I want to check to make sure you didn't shove something down there on me man." Lopez replied, "It's my phone . . . you can go check." Cluff then said, "There is something else in there man." Lopez responded, "You can go check it. I'm giving you consent . . . You can go check." Cluff replied, "Okay. I know . . . there is something here."
¶26 Based on the context of the conversation and Lopez's failure to place an explicit limitation on the scope of the search, a reasonable person would believe that Lopez authorized a search, at minimum, of the center-console area-the area of the car where he appeared to hide something. See United States v. Gutierrez-Mederos, 965 F.2d 800, 803-04 (9th Cir. 1992) (officer could search any container within the car that could reasonably contain contraband when defendant said "go ahead" and placed no explicit limit on scope of search). Thus, there was no error, much less fundamental error.
Revoked Consent
¶27 For the first time on appeal, Lopez argues he revoked his consent while Cluff was searching his car. Once again, we review this issue for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶ 19.
¶28 A person can "withdraw or narrow the scope of [his] consent at any time." Becerra, 239 Ariz. 90, ¶ 9. "Withdrawal of consent need not be effectuated through particular 'magic words,' but an intent to withdraw consent must be made by unequivocal act or statement." United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005) (quoting United States v. Gray, 369 F.3d 1024, 1026 (8th Cir. 2004)). "If equivocal, a defendant's attempt to withdraw consent is ineffective and police may reasonably continue their search pursuant to the initial grant of authority." Id.
¶29 Here, Lopez did not revoke his consent with an unequivocal act or statement. Lopez approached his car while the officer was searching it and used phrases such as "my phone," "I'm telling you," "he's just looking," "you already looked," "I was getting my phone," and "you guys are saying I'm all nervous." None of these statements, alone or together, amount to an unequivocal withdrawal of consent. Thus, there was no error, much less fundamental error.
Chain of Custody of Methamphetamine
¶30 On the first day of trial, the state presented an item that contained the methamphetamine collected from Lopez's car. Cluff testified that he recognized the item as the bag of methamphetamine recovered but indicated it had been "repackaged" because it was not in its "original packaging." Cluff said the bag had been sent to the Arizona Department of Public Safety (DPS) lab twice: the first time to confirm it was methamphetamine and the second time "to be weighed." When the state moved to introduce the item into evidence, Lopez objected on foundation grounds. The state agreed to lay more foundation and asked Cluff to open the item.
¶31 Cluff opened the envelope and confirmed that it contained the bag he had recovered from Lopez's car because it had the evidence label he had printed for it and his initials were on the bag's seal. When the state offered the methamphetamine into evidence again, Lopez objected "as to foundation as to its identity and contents." The state responded it had "established that based upon the training and experience of this officer, he believed it to be methamphetamine" and "as far as entering it as the substance that was found by this officer . . . the State has laid a proper foundation." The court overruled Lopez's objection and allowed the item to be admitted into evidence as exhibit ten.
¶32 On the next day of trial, the state called Andrew Singer, a forensic scientist who works for DPS. Singer testified that he recognized exhibit ten as the envelope containing the white crystalline substance he had analyzed for this case based on the numbers on the item, his initials, and the dates. After the state asked Singer what the substance was, Lopez objected on foundation grounds. The court overruled the objection. Singer then identified the substance as methamphetamine, and Lopez chose to not cross-examine him.
¶33 At the close of trial, Lopez moved for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., and argued "this is couched in my original objection to" exhibit ten. Lopez asserted he was "renewing [his] foundational objection" to the admission of the methamphetamine because the state failed to lay the proper foundation for that evidence. Lopez argued there was no chain of custody established because Cluff had not stated "how or if he even prepared a chain of custody that identified the specific item with the specific department number on that item, how he packaged it, how it is the same item that went to [DPS]" or "how it came back to him." He also argued Singer did not properly explain how he received the methamphetamine, what condition it was in, how he removed it, how it was tested, or how it was weighed. The state responded it had laid sufficient foundation and argued "there was no objection to any issues pertaining to chain of custody" and in any event chain-of-custody issues pertain to weight, rather than admissibility. The trial court denied Lopez's motion.
¶34 On appeal, Lopez argues the trial court erred by admitting the methamphetamine into evidence because the state did not establish a sufficient chain of custody to authenticate the evidence. Specifically, Lopez argues that it was impossible to determine whether the evidence admitted was the same evidence seized from his car because it had "changed hands several times" and was repackaged. Lopez contends the state should have provided testimony as to how the package was sent to DPS, who took custody of it, how it was delivered, when it was repackaged, how Singer received the item, what condition the item was in when Singer received it, and how the item was removed.
To the extent Lopez argues the trial court abused its discretion by denying his Rule 20 motion, he has waived that argument by failing to adequately develop it in his opening brief. See State v. James, 242 Ariz. 126, n.4 (App. 2017); see also Ariz. R. Crim. P. 31.10(a)(7)(A).
¶35 We review a trial court's conclusion that evidence has an adequate foundation for an abuse of discretion. State v. McCray, 218 Ariz. 252, ¶ 8 (2008). The trial court does not determine the authenticity of evidence; it only determines "whether evidence exists from which the jury could reasonably conclude that it is authentic." State v. Lavers, 168 Ariz. 376, 386 (1991).
¶36 Rule 901(a), Ariz. R. Evid., provides that to authenticate a piece of evidence for admission, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." "A party seeking to authenticate evidence based on a chain of custody 'must show continuity of possession, but it need not disprove every remote possibility of tampering.'" McCray, 218 Ariz. 252, ¶ 9 (quoting State v. Spears, 184 Ariz. 277, 287 (1996)). Moreover, a party "need not call every person who had an opportunity to come in contact with the evidence sought to be admitted." Id. (quoting State v. Hurles, 185 Ariz. 199, 206 (1996)). If evidence of the chain of custody is incomplete or in conflict with other evidence, those concerns go to the weight of the evidence rather than its admissibility. Id. ¶ 15.
¶37 Here, Cluff testified that exhibit ten was the bag of methamphetamine he had recovered from Lopez's car. Although the exhibit "was repackaged," Cluff confirmed that the repackaged exhibit contained the bag from Lopez's car by opening it and verifying that it had the evidence label he printed and his initials on the bag's seal. Singer testified that after a request for scientific analysis has been received he retrieves the evidence from the "DPS property and evidence unit." He then tests the evidence in the laboratory, only testing one item at a time, returning the item back to its packaging when finished, and following procedures to prevent cross-contamination. Singer testified he recognized exhibit ten as the envelope containing what he had analyzed because it had the DPS number on it, the item number, his initials and the date he opened the evidence, and his initials and the date when he resealed the evidence. Singer also confirmed that he wrote a report containing "the electronic chain of custody and the scientific request and inventory form."
¶38 This evidence established continuity of possession because Cluff confirmed he had gathered the evidence and sent it to DPS and Singer confirmed he had picked up the evidence from DPS storage. See McCray, 218 Ariz. 252, ¶¶ 9-15 (inconsistent testimony on procedures and packaging of samples and inconsistent test results did not preclude admission, nor did defendant establish tampering). On appeal, Lopez did not provide any specific information showing the evidence was tampered with or substituted. To the extent Lopez raises arguments pertaining to incompleteness, flaws, or uncertainty, those arguments go to the weight of the evidence rather than its admissibility. See id. ¶ 15 (incompleteness); State v. Fell, 242 Ariz. 134, ¶ 6 (App. 2017) (uncertainty); State v. Morales, 170 Ariz. 360, 365 (App. 1991) (flaws). Therefore, we cannot say the trial court abused its discretion in finding sufficient foundation for the methamphetamine to be introduced into evidence.
Sentencing
¶39 Lopez argues his convictions for possession of a dangerous drug for sale and possession of a dangerous drug violated his double jeopardy rights. Because Lopez did not raise the issue below, we review for fundamental prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). "We review de novo whether double jeopardy applies." State v. Nunn, 250 Ariz. 366, ¶ 11 (App. 2020) (quoting State v. Brown, 217 Ariz. 617, ¶ 12 (App. 2008)). "A conviction or sentence that violates double jeopardy constitutes fundamental, reversible error." Id. The state concedes there was reversible error, and we agree.
¶40 A defendant who faces multiple punishments for a single offense is unconstitutionally subject to double jeopardy. Id. ¶ 12. Thus, a defendant's double jeopardy rights are violated if he "is convicted of both a greater and lesser-included offense." Id. (quoting State v. Becerra, 231 Ariz. 200, ¶ 20 (App. 2013)). "A crime is a lesser-included offense of another when it only consists of some, but not all, elements of the greater crime, making it so the greater crime cannot be committed without the lesser also being committed." Id. The same conduct, however, can "result in different offenses if each offense requires proof of a fact which the other does not." Id. (quoting State v. Jones, 235 Ariz. 501, ¶ 13 (2014)).
¶41 Section 13-3407(A)(1), A.R.S., provides that a "person shall not knowingly . . . [p]ossess or use a dangerous drug," and § 13-3407(A)(2) provides that a "person shall not knowingly . . . [p]ossess a dangerous drug for sale." Because all of the elements of possession are encompassed in possession for sale, and possession for sale contains the additional element of the possession being for purposes of sale, possession of a dangerous drug is a lesser-included offense of possession of a dangerous drug for sale. See Nunn, 250 Ariz. 366, ¶ 12.
¶42 Here, Lopez was convicted of possession of a dangerous drug and possession of a dangerous drug for sale. See A.R.S. § 13-3401(6)(c)(xxxviii) (methamphetamine classified as dangerous drug). During closing remarks, the state argued, "The same evidence that I use to suggest [Lopez's] guilt of possession for sale will be applicable to simply possession of a dangerous drug." Because the charges were based on the same corpus of drugs, Lopez could not have committed the crime of possession for sale without also committing the crime of possession. Therefore, the simple possession conviction was a lesser-included offense of possession for sale, and we must vacate it. See State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶¶ 8, 21-22 (App. 1998) (conviction for lesser-included offense vacated due to double jeopardy violation).
Disposition
¶43 For the reasons stated above, we vacate Lopez's conviction and sentence for possession of a dangerous drug, but we otherwise affirm.