State v. Berhane

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

RASHAWN MARK BERHANE, Appellant.

No. 1 CA-CR 18-0572
No. 1 CA-CR 18-0585
(consolidated)
FILED 6-4-2020

Appeal from the Superior Court in Maricopa County
No. CR2016-135368-001
No. CR2015-108505-002
The Honorable Douglas Gerlach, Judge
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist III
Counsel for Appellee

Law Office of Katia Méhu, Phoenix
By Katia Méhu
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani
joined.

M c M U R D I E, Judge:

¶1 Rashawn Mark Berhane appeals from his convictions and
sentences for two counts of selling narcotic drugs in Maricopa County
Cause No. CR2016-135368-001 and from the revocation of probation and
sentence in Maricopa County Cause No. CR2015-108505-002. For the
following reasons, we affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In 2015, Berhane pled guilty to possessing drug
paraphernalia. The court placed him on two years’ probation. At around
the same time, the State charged Berhane with committing two felony
offenses in Pinal County. Berhane was released on bond in that matter.

¶3 In the summer of 2016, while the Pinal County charges were
pending, the State charged Berhane with three counts of selling narcotic
drugs to an undercover Phoenix police detective (Cause No. CR2016-
135368-001). At Berhane’s trial on those charges, the detective testified
Berhane sold him increasingly larger amounts of crack cocaine on three
different occasions over approximately two weeks in June and July of 2016.

¶4 The jury acquitted Berhane of the earliest alleged sale but
convicted him of the latter two. The jury further found three aggravating
circumstances applicable to the convictions: (1) Berhane committed the
offenses for pecuniary gain; (2) he committed the crimes while on probation
for another felony conviction; and (3) he committed the offenses while
released on bond for a separate felony charge.

1 We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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¶5 The superior court sentenced Berhane as a repetitive offender
to concurrent terms of 18.75 years’ imprisonment for each of the two drug
sales. Those convictions automatically revoked Berhane’s probation, and
the court imposed a consecutive one-year prison term.

¶6 We have jurisdiction to consider Berhane’s appeals in both
causes, which were consolidated, under Arizona Revised Statutes
(“A.R.S.”) sections §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

A. On Appeal, Berhane May Not Challenge the Reexamination of His
Bail Eligibility.

¶7 When Berhane was arrested for the 2016 drug charges, the
Maricopa County Superior Court found him bailable as a matter of right.
See Ariz. Const. art. 2, § 22; Ariz. R. Crim. P. 7.4(a). After Berhane posted a
bond, the State moved the court to find him non-bailable, arguing he
committed the Maricopa County offenses while released on the Pinal
County charges. The court held an evidentiary hearing to reexamine
Berhane’s bail eligibility, found the State had met its burden under the
Arizona Constitution, and ordered Berhane held without bond. See Ariz.
Const. art. 2, § 22(A)(2) (defendant not bailable “[f]or felony offenses
committed when the person charged is already admitted to bail on a
separate felony charge and where the proof is evident or the presumption
great as to the present charge”); Ariz. R. Crim. P. 7.4(c)(1).

¶8 We find no merit in Berhane’s claim the superior court
erroneously revoked his bailable status. Moreover, he had to raise the
alleged error in a petition for special action before trial. See Costa v. Mackey, 227 Ariz. 565, 569, ¶ 6 (App. 2011) (“Issues involving pretrial incarceration
and release conditions become moot once a trial is conducted and any
appeal can be filed.”). Having been convicted and sentenced, there is no
longer a remedy for the alleged error. Id.

B. The Superior Court Acted Within Its Discretion by Denying
Berhane’s Motion to Compel Disclosure of the State’s Confidential
Informant Without an Evidentiary Hearing.

¶9 The undercover detective who bought the drugs from
Berhane targeted him based on a tip from a confidential informant.
According to the detective’s police report, the informant told him a man
known as “G” was selling crack cocaine from his house, and then pointed
the house out to the detective. The informant also told the detective that

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“G” had people selling crack cocaine for him out of rooms “G” rented at a
motel the informant also identified. The police report revealed no further
involvement by the informant. When the detective met Berhane for the first
time, Berhane identified himself as “G.”

¶10 Before the trial, Berhane moved for an order compelling the
State to disclose the informant’s identity, make the informant available for
an interview, and provide additional information about the informant’s
criminal history and relationship with law enforcement. Berhane
acknowledged it was “unknown and unclear” whether the informant was
present during police surveillance and communications with Berhane, or
the charged sales, but he “anticipated” the informant would support his
mistaken-identity defense by confirming the narcotics were not purchased
from him. The State argued, in response, that disclosure was unwarranted
because the informant merely led the police to Berhane and was not present
during any of the charged transactions. In his reply, Berhane offered a
factual account that both expanded upon and departed from his previous
filing—asserting, in essence, the police used the informant to set him up,
the informant was personally involved in each of the charged transactions,
and the informant had information that would support an entrapment
defense. The superior court denied Berhane’s motion without holding an
evidentiary hearing. After oral argument, the court denied Berhane’s
motion for reconsideration and later dismissed a second motion for
reconsideration.

¶11 Generally, the State “may withhold from disclosure the
identity of persons who furnish information of violations of law to law
enforcement officers in furtherance of the public interest in effective law
enforcement.” State v. Tuell, 112 Ariz. 340, 343 (1975) (citing Roviaro v. United
States, 353 U.S. 53 (1957)), abrogated on other grounds by State v. Duran, 233
Ariz. 310 (2013). That privilege gives way, however, if the defendant
demonstrates “that, in view of the evidence, the informer would be a
material witness on the issue of guilt which might result in exoneration and
that nondisclosure of his identity would deprive the defendant of a fair
trial.” Id.; see also Ariz. R. Crim. P. 15.4(b)(2) (a party need not disclose the
identity of non-testifying informant if disclosure “would result in
substantial risk to the informant or to the informant’s operational
effectiveness” and nondisclosure “will not infringe on the defendant’s
constitutional rights”).

¶12 We review the superior court’s denial of Berhane’s motion to
compel disclosure of the informant’s identity for an abuse of discretion. See
Tuell, 112 Ariz. at 342–43. The court’s decision to rule on the pleading rather

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than hold an evidentiary hearing is also reviewed for an abuse of discretion.
See State v. Hulsey, 243 Ariz. 367, 377, ¶ 21 (2018).

¶13 The superior court acted within its discretion by denying
Berhane’s motion because Berhane did not “establish that the informant
could testify on the merits of the case.” State v. Grounds, 128 Ariz. 14, 15
(1981). The defendant bears the burden of demonstrating an undisclosed
informant is likely to have relevant evidence. Id.; Tuell, 112 Ariz. at 343. To
do so, the defendant cannot rely solely on argument but must provide proof
like “sworn affidavits, stipulated facts, depositions, [or] oral testimony.”
Grounds, 128 Ariz. at 15. Berhane did not provide competent evidence in
support of the disclosure.

¶14 Berhane contends he could have provided the necessary
evidence at an evidentiary hearing. But when the court allowed Berhane to
explain how an evidentiary hearing would yield information helpful to his
motion, Berhane did not provide a viable explanation. Because Berhane’s
argument for disclosure was based on unsworn assertions not supported
by evidence, an evidentiary hearing would have been futile. The superior
court did not err by denying his motion without a hearing. See State v.
Wassenaar, 215 Ariz. 565, 576–77, ¶¶ 44, 48–51 (App. 2007) (court did not err
by denying an evidentiary hearing when the defendant failed to support
the claim with evidence); State v. Robles, 182 Ariz. 268, 271 (App. 1995) (court
did not err by denying the motion to disclose informant based solely on
counsel’s argument).

C. The Correctness of the Superior Court’s Ruling on Berhane’s
Motion to Compel Is Fatal to His Claim of Sentencing Error.

¶15 Berhane challenges the aggravation of his 18.75-year
sentence.2 He contends the superior court’s refusal to compel disclosure of
the informant prevented him from mounting an effective defense to the
narcotics-sale charges, and consequently, to the jury’s finding he committed
those offenses for pecuniary gain. He further contends that because his
convictions were obtained in error, his probation and bond-release status

2 Based on the jury’s findings that Berhane was on probation and
felony release when he committed the crimes, and the superior court’s
determination he was a category-three repetitive offender, the minimum
prison sentence the court could impose for each class-two narcotics-sale
conviction was 17.75 years. See A.R.S. §§ 13-703(J), -708(C), (D).

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on the dates of the charged offenses cannot be treated as aggravating
circumstances. As noted above, the superior court did not err.

CONCLUSION

¶16 We affirm Berhane’s convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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