Opinion
No. 2 CA-CR 2017-0033
06-28-2018
THE STATE OF ARIZONA, Appellee, v. LEON DEXTER MOODY, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Sarah L. Mayhew, 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NOT FOR PUBLICATION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. CR20153383001
The Honorable Casey F. McGinley, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Sarah L. Mayhew, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring concurred and Judge Brearcliffe specially concurred. ECKERSTROM, Chief Judge:
¶1 Leon Moody appeals from his convictions and sentences for possession of marijuana for sale, transportation of marijuana for sale, and possession of drug paraphernalia, claiming the trial court admitted other-act evidence under Ariz. R. Evid. 404(b) without a proper purpose. For the reasons that follow, we affirm.
In counts not before this court, the jury acquitted Moody of possession of a deadly weapon during the commission of a drug offense. Accordingly, the trial court dismissed with prejudice count four, possession of a deadly weapon by a prohibited possessor.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to sustaining the convictions." State v. Gay, 214 Ariz. 214, ¶ 2 (App. 2007). In April 2015, Tucson police received a tip about a drug-related shipment involving C.N. and a house on Eastland Street in Tucson. While watching the house in August 2015, officers saw D.F. drive up, walk to the front door, and make contact with Moody. D.F. then returned to the car and removed a large black trash bag that appeared to contain a solid, rectangular object consistent with the size and shape of a twenty- to thirty-pound bale of marijuana. The two men went inside the house and, approximately ten minutes later, D.F. departed.
¶3 Another officer participating in the investigation stopped D.F. and encountered the strong odor of fresh marijuana coming from the car. During the stop, officers learned that Moody had rented the car. They then obtained a search warrant for the house and, upon executing it that afternoon, directed all occupants outside. Moody and M.M. emerged from the house. In one of the bedrooms, officers discovered two cardboard boxes containing a total of twenty-five pounds of marijuana that appeared "ready to be shipped." Officers also found packing popcorn, flattened boxes, shipping labels, a utility knife, plastic wrap, and a digital scale in various closets and drawers.
¶4 At trial, Moody asserted he had merely been present and did not participate in the illegal activities. To rebut this claim, the state elicited testimony about a 2013 incident in which an officer had found Moody driving a rental car with eight to nine pounds of marijuana packed in a cardboard box in the trunk. The jury convicted Moody as described above. Consequently, the trial court determined Moody had violated the terms and conditions of his probation for a prior conviction, revoked his probation, and sentenced him to four concurrent prison terms, the longest of which were 9.25 years. Moody appealed; we have jurisdiction. See A.R.S. §§ 13-4031, 13-4033(A)(1).
Other-Act Evidence
¶5 Moody argues the trial court impermissibly admitted evidence of the 2013 incident in which a law enforcement officer had found several pounds of packaged marijuana in the trunk of his rental car because it was not relevant for a proper purpose and was unduly prejudicial. See Ariz. R. Evid. 403, 404(b). In admitting the evidence over Moody's objection, the court did not explain how evidence of the 2013 incident established his intent, knowledge, or plan. "We review a trial court's Rule 404(b) ruling for an abuse of discretion." State v. Hardy, 230 Ariz. 281, ¶ 35 (2012).
¶6 Our courts have long recognized the highly prejudicial effect of other-acts evidence, which risks the jury will "improperly conclude that the defendant is a bad person and therefore more likely to have engaged in the charged offense." State v. Aguilar, 209 Ariz. 40, ¶ 9 (2004), citing State v. McFarlin, 110 Ariz. 225, 228 (1973). Evidence of other bad acts risks that jurors will find a defendant guilty not on the strength of the evidence presented at trial, but because they have become convinced of his bad character. See State v. Ramirez Enriquez, 153 Ariz. 431, 432 (App. 1987); Joseph M. Livermore et al., Arizona Law of Evidence § 404:2, at 148 (rev. 4th ed. 2008) ("proof [of other crimes] is susceptible of being used to prove character even when it is ostensibly offered for another purpose").
¶7 Because of this risk of prejudice, such evidence must meet several requirements before a trial court may admit it. First, the court must find the defendant committed the act by clear and convincing evidence. State v. Escalante-Orozco, 241 Ariz. 254, ¶ 77 (2017). Second, the evidence must be offered for a proper purpose under Rule 404(b) "to show something other than conformity with the prior acts." Id.; State v. Hyde, 186 Ariz. 252, 276 (1996). Third, the evidence must be offered to address an issue in evidentiary dispute. See State v. Ives, 187 Ariz. 102, 110 (1996). Lastly, the danger of unfair prejudice must not substantially outweigh its probative value. Escalante-Orozco, 241 Ariz. 254, ¶ 77.
Offered for a Purpose in Dispute
¶8 At trial, the state maintained that the evidence of Moody's prior criminal acts of drug possession and transportation were relevant to a matter in dispute. Specifically, it maintains that these acts demonstrate he had intended to participate in the packaging of the marijuana that D.F. had delivered to the house. And, it contends on appeal that Moody had affirmatively placed his intent and knowledge at issue by urging a "mere presence" defense at trial.
¶9 Other acts may be admissible to establish a defendant's mental state, State v. Villalobos, 225 Ariz. 74, ¶ 19 (2010), or to rebut a defense aimed at negating it. State v. Connor, 215 Ariz. 553, ¶¶ 3, 29-39 (App. 2007). However, in Arizona, a defendant's mental state must be in dispute before the state can introduce other-act evidence to prove it. Ives, 187 Ariz. at 110; compare State v. Torres, 162 Ariz. 70, 72-73 (App. 1989) (mental state not at issue when defendant insisted officers planted heroin), with State v. Tisnado, 105 Ariz. 23, 24, 25 (1969) (mental state at issue when defendant said he was merely disposing of narcotics in his pocket that informant had brought to his apartment without his knowledge and against his will).
The state urges us to follow those courts that consider a defendant's mental state automatically at issue when it is an element of the charged offense. See, e.g., United States v. Long, 328 F.3d 655, 663 (D.C. Cir. 2003). But our supreme court has expressly rejected this position. Ives, 187 Ariz. at 110 ("[T]he state may not introduce evidence of prior bad acts as part of some generalized need to prove intent in every case."). Rather, the court in Ives determined that a defendant may remove his mental state as an issue in the case. Id. Here, the parties vigorously disputed whether Moody did just that. However, because we independently determine Moody's mental state remained in dispute, we need not thoroughly address the particular theories and arguments advanced by the parties.
¶10 We agree with the state that the other act-evidence—to the extent directed at Moody's intent to commit the crime—was directed at an issue that was in dispute. The strength and limitations of the evidence the state presented here necessarily made Moody's intent and knowledge central issues in the case. The state presented evidence that Moody occupied the packaging house, lent D.K. the rental car used to transport the marijuana, and answered the door as D.K. delivered a package to the house. But the state lacked any eyewitness testimony that Moody himself packaged or transported the marijuana and it presented no other evidence, such as fingerprints or wiretaps, to demonstrate Moody's role in the operation. For this reason, whether Moody intended to assist in the packaging and transportation of marijuana was the central issue in the case. Thus, the evidence of Moody's prior act of possessing marijuana, to the extent relevant to show intent or knowledge, addressed a matter in dispute.
Legally Correct Basis for Admission
¶11 On the briefs before us and at argument, the parties have presented fundamentally different positions concerning the scope of Rule 404(b) in limiting the admission of prior-act evidence. The state implicitly suggests that other-act evidence is always admissible when directed to an evidentiary purpose itemized under the second sentence of that provision—even if that relevance depends wholly on a propensity inference. See Ariz. R. Evid. 404(b) (other acts "may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"). The defense counters that the state's reading would render prior-act evidence admissible in every case and render the threshold prohibition on propensity evidence in Rule 404(b)'s first sentence, without effect.
The concurrence overlooks that this scenario can readily occur given the comprehensive and non-exhaustive listing of evidentiary purposes under 404(b) and the obvious strategic benefits to the state in alerting a jury of a defendant's prior record. And, when the relevance of evidence to a 404(b) purpose depends at core on a propensity inference ("He intended to transport marijuana before therefore he must have intended to do so again here"), the trial court cannot avoid the legal dispute acknowledged in this paragraph. Because this court can resolve the admissibility of the prior act here on narrower grounds, we not need reach that analytically complex question.
¶12 But we need not address that dispute because we can identify a narrower basis for the admission of the other-act evidence which depends on no propensity inference for its relevance. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 7 (2012) (we may affirm the trial court's ruling for any legally correct reason).
¶13 At trial, the state both argued that Moody personally exercised dominion or control over the marijuana, and secured an instruction on accomplice liability. This permitted the jury to find Moody guilty for agreeing or attempting to aid another by providing the means or opportunity to transport the marijuana. See A.R.S. § 13-301. In light of this instruction and the state's evidence that Moody had rented the car D.F. used to transport marijuana, Moody's knowledge when permitting D.F. to use his rental car became a crucial factual question. And, a jury might reasonably conclude that a defendant who knows that rental cars are useful to drug-trafficking operations is far less likely to have been naïve concerning D.F.'s intended use for the car. To be blunt, Moody's participation in the 2013 incident—wherein he was arrested for transporting marijuana in the trunk of a rental car—made any claim of such naiveté ring hollow. Bolstered by expert testimony establishing the typical use of rental cars in such conspiracies, evidence of the 2013 incident made it far more likely that Moody knew how D.F. would use the car.
¶14 In so concluding, we are mindful that this evidence, even used in this context, risks that a jury will draw logical but improper inferences about Moody's propensity to commit the instant trafficking offenses. If this were the sole purpose, evidence of the 2013 incident would remain inadmissible. See Ariz. R. Evid. 404(b). However, in addressing the central questions in the case: whether Moody knew a marijuana trafficking conspiracy had been afoot and whether his loan of the rental car to D.F. would advance that operation, the 2013 incident was properly relevant to show Moody's base of knowledge about the nature of drug trafficking and how his loan of the rental car might facilitate it. Importantly, this is a theory of relevance wholly independent from any suggestion that Moody committed the instant offense because he had committed a similar offense in the past.
The proper theory of admissibility we have addressed above—is not necessarily the only one that counsel could have asserted for admission of Moody's prior arrest. However, having identified one proper purpose, we need not consider other possible avenues by which the state might have sought admission of the evidence on the record before us.
¶15 The record likewise demonstrates that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. See Escalante-Orozco, 241 Ariz. 254, ¶ 77. As demonstrated above, the evidence carried substantial probative value on the core dispute in the case: whether Moody knowingly assisted the drug-trafficking operation in any fashion. Indeed, that Moody loaned a rental car to D.F., while knowing that rental cars are commonly used for drug trafficking, was the only evidence presented by the state beyond the inculpatory inferences of being present in the packaging house and answering the door when D.F. arrived. As such, it was the strongest evidence rebutting Moody's defense that he was "merely present" at the location of the criminal operation.
¶16 We acknowledge the same evidence carried a risk of unfair prejudice even when directed exclusively to the rental car question. However, the trial court mitigated the danger of unfair prejudice by giving a limiting instruction. See State v. Stuard, 176 Ariz. 589, 599 (1993). The court instructed the jury it could "only consider [evidence of the 2013 incident] to establish [Moody]'s intent, plan, and/or knowledge" and that it "must not consider this act to determine [Moody]'s character or character trait, or to determine that [he] acted in conformity with [his] character or character trait and therefore committed the charged offense." In view of this instruction, coupled with the manifest probative value of the evidence when marshalled for a proper purpose, we cannot say the danger of unfair prejudice substantially outweighed its probative value. See State v. Dann, 205 Ariz. 557, ¶ 46 (2003) ("[W]e assume the jurors followed the court's instruction.").
Improper Instruction on Plan
¶17 Finally, Moody argues that, even if the evidence was admitted properly on the question of knowledge or intent, the trial court erroneously instructed the jury that it could consider the evidence as relevant to "plan." Moody contends the state has all but conceded this purpose was improper by failing to defend its admissibility on that basis in either its brief or at oral argument. We review a trial court's decision to give a requested jury instruction for an abuse of discretion. Dann, 220 Ariz. 351, ¶ 51.
The plan exception "permits proof of [a defendant's] commitment to a particular plan of which the charged crime is a part." Ramirez Enriquez, 153 Ariz. at 432-33; see also State v. Roper, 140 Ariz. 459, 461-62 (App. 1984) ("the . . . crimes must be so clearly related that the proof of one tends to establish the other and should never be admitted when it tends to show that the accused has committed other crimes wholly independent of that for which he is on trial"), quoting State v. Moore, 108 Ariz. 215, 218 (1972). --------
¶18 We agree that the trial court erred by instructing the jury that it could consider evidence of the 2013 incident as establishing that Moody acted pursuant to a plan. We must determine, however, whether that error warrants a new trial or was harmless. See State v. Peraza, 239 Ariz. 140, ¶ 22 (App. 2016). Error is harmless if we can say beyond a reasonable doubt that it did not affect the verdict. Id.
¶19 Here, the trial court's instruction merely stated that the jury "may . . . consider [the 2013 incident] to establish [Moody]'s intent, plan, and/or knowledge." The court did not instruct the jury on the law concerning plan and the state did not argue plan in closing arguments. Because we do not expect the word "plan" to trigger an improper purpose in the minds of jurors apart from further instruction, we cannot say including that single word between intent and knowledge was anything more than a technical, harmless error. Cf. State v. Noriega, 187 Ariz. 282, 284 (App. 1996) (effective instructions "differentiate between the linguistic universe for lawyers . . . and the linguistic universe for lay persons"), quoting Walter W. Steele, Jr. & Elizabeth Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C.L. Rev. 77, 99 (1988). Accordingly, reversal is not warranted. See State v. Vasko, 193 Ariz. 142, ¶ 21 (App. 1998) ("No cause shall be reversed for technical error in . . . proceedings when upon the whole case it shall appear that substantial justice has been done"), quoting Ariz. Const. art. 6, § 27.
Disposition
¶20 For the above reasons, we ultimately conclude that evidence of Moody's 2013 arrest for transportation of marijuana was properly admissible and that the trial court's technical error in instructing the jury was harmless. We therefore affirm Moody's convictions and sentences. BREARCLIFFE, Judge, specially concurring:
¶21 Although I concur in the decision and its basis, albeit limited, for admitting the other-act evidence of Moody's prior crime, I write specially to address a remaining concern.
¶22 As stated in the decision, the first sentence of Rule 404(b) bars admission of evidence of "other crimes, wrongs, or acts" "to prove the character of a person in order to show action in conformity therewith." Then, in its second sentence, it gives a non-exhaustive list of purposes for which such "other crimes, wrongs, or acts" evidence may be relevant and admissible, namely as proof of such things as "motive, opportunity, intent, preparation, plan, knowledge, identity." Id. The decision refers to evidence covered by the first sentence of Rule 404(b) as "propensity evidence." That stated, the decision then makes two seemingly innocuous statements that risk being later misconstrued.
¶23 At paragraph 11, the decision asserts that the state "implicitly suggests" that other-act evidence is always admissible if relevant to such matters as intent, motive, plan, knowledge, etc., "even if that relevance depends wholly on a propensity inference." It then states, at paragraph 12, that this court need not resolve the dispute framed by paragraph 11 "because we can identify a narrower basis for the admission of the other-act evidence which depends on no propensity inference for its relevance."
¶24 The state did not, implicitly or otherwise, argue that other-act evidence is always admissible even if it is only serving as character evidence to show action in conformity therewith. Instead, the state explicitly argued otherwise—that other-act evidence is admissible if relevant to a purpose other than propensity. This is consistent with the rule. Other-act evidence, used as proof of motive, opportunity, intent, or for other purposes within the non-exhaustive scope of the second sentence of Rule 404(b), never "depends on" its effect as "propensity evidence," covered by the first sentence of Rule 404(b). Such evidence depends only on its relevance as evidence of motive, opportunity, intent, etc. To be sure, such evidence may also bear on a defendant's character and it may be improperly accepted by a jury as proof of the defendant's action in conformity therewith. But that possible misuse of such evidence as "propensity evidence" does not diminish the independent relevance of other-act evidence when offered under the second sentence of Rule 404(b) or make it dependent upon it. The state's position should not be misread as "implicitly" making an argument at odds with the rule when it expressly does not.