State v. Sutherland

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSEPH THOMAS SUTHERLAND, Appellant.

No. 1 CA-CR 19-0029
FILED 3-31-2020

Appeal from the Superior Court in Mohave County
No. S8015CR201700819
The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
 STATE v. SUTHERLAND
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Kenton D. Jones joined.

W I L L I A M S, Judge:

¶1 Joseph Thomas Sutherland appeals his convictions and
sentences for possession of dangerous drugs for sale and possession of drug
paraphernalia. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 On June 8, 2017, Lake Havasu City police responded to a
shoplifting incident at Kmart. An officer stopped Sutherland, who was
walking in a nearby parking lot, and who matched the shoplifting suspect’s
description. Sutherland asked the officer if “this [is] regarding the Kmart
incident.” The officer responded that it was, and Sutherland was
subsequently arrested. A search of Sutherland’s bag incident to arrest
revealed a plastic tube and five baggies containing a white crystal
substance, several empty baggies, a pipe, cell phones, and various personal
items.

¶3 Sutherland was charged with possession of dangerous drugs
for sale (methamphetamine) (“Count One”), a class two felony, and
possession of drug paraphernalia (methamphetamine) (“Count Two”), a
class six felony. Sutherland was tried in absentia at a two-day jury trial. At
trial, the State introduced evidence of over nine grams of
methamphetamine individually packaged in varying amounts, several
empty baggies, and a photograph showing the contents of Sutherland’s bag
at the time of arrest. At the close of the State’s case, Sutherland made a Rule
20 motion to dismiss, which the court denied. The jury found Sutherland
guilty on both counts, and he was sentenced to the presumptive sentences
of ten years for Count One and one year for Count Two, running
concurrently. Sutherland timely appealed. We have jurisdiction pursuant
to A.R.S. § 12-2101(A)(1).

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Decision of the Court

DISCUSSION

I. Evidence of Drug Possession

¶4 Sutherland argues the court erred in admitting the drugs into
evidence due to lack of foundation. Specifically, Sutherland contends the
State failed to establish chain of custody, thus failing to prove the drugs
admitted at trial were the same drugs seized from Sutherland and tested at
the lab.

¶5 Generally, we review evidentiary foundation for abuse of
discretion. State v. McCray, 218 Ariz. 252, 256, ¶ 8 (2008). When, however, a
defendant fails to timely object to the admission of evidence at trial, we
review for fundamental error. See Ariz. R. Evid. 103(a)(1); see also State v.
Moody, 208 Ariz. 424, 441, ¶ 40 (2004). Here, Sutherland did not object to the
admission of the drugs at the time they were offered into evidence, but
instead objected a day later. Sutherland’s objection was not timely; we
therefore review for fundamental error only. See Moody, 208 Ariz. at 441, ¶
40.

¶6 A proponent of evidence must establish foundation by
“produc[ing] evidence sufficient to support a finding that the item is what
the proponent claims it is.” Ariz. R. Evid. 901(a). This standard may—but is
not required to be—established by chain of custody evidence. See State v.
Steinle ex rel. Maricopa, 239 Ariz. 415, 420, ¶ 25 (2016) (“Rule 901 does not
invariably require chain of custody testimony . . . .”). The trial court does
not determine the evidence’s authenticity, “but only whether evidence
exists from which the jury could reasonably conclude that it is authentic.”
State v. Lavers, 168 Ariz. 376, 386 (1991). Provided this standard is met, any
chain of custody defects go to the evidence’s weight, not its admissibility.
State v. Fell, 242 Ariz. 134, 136, ¶ 6 (App. 2017).

¶7 Here, although the State did not present the entirety of the
drugs’ chain of custody, the record contains sufficient evidence to establish
foundation. The drugs presented at trial were identified by Officer Plunkett
as the same drugs Sutherland possessed at the time of his arrest, and by the
forensic scientist as the same drugs she tested in the lab. This testimony is
sufficient to support a finding that the drugs Sutherland possessed, those
tested, and those offered at trial were the same. See State v. Emery, 141 Ariz.
549, 551 (1984) (explaining a party can lay sufficient evidentiary foundation
by having a “witness . . . testify that the item is what it is claimed to be”).
We therefore find no error, much less fundamental error, in admitting the
drugs.

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Decision of the Court

¶8 Sutherland further argues the court erred in denying his Rule
20 motion to dismiss based upon insufficient chain of custody evidence. We
review a trial court’s decision on a Rule 20 motion de novo, “viewing the
evidence in a light most favorable to sustaining the verdict.” State v. Bible, 175 Ariz. 549, 595 (1993).

¶9 The controlling question in considering a Rule 20 motion “is
solely whether the record contains ‘substantial evidence to warrant a
conviction.’” State v. West, 226 Ariz. 559, 562, ¶ 14 (2011) (quoting Ariz. R.
Crim. P. 20(a)). A Rule 20 motion will be denied when the court, viewing
the evidence in the light most favorable to the prosecution, finds that “’any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Id. at ¶ 16 (quoting State v. Mathers, 165 Ariz.
64, 66 (1990)).

¶10 Although the court did not precisely articulate the Rule 20
standard, our review of the record shows the court properly denied
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Sutherland’s motion. Because we hold the drug evidence was properly
admitted, there was substantial evidence for a rational trier of fact to find
that the drugs tested at the lab were the same drugs Sutherland possessed
when he was arrested. The court, therefore, did not err in denying
Sutherland’s Rule 20 motion.

II. Evidence of Drug Possession for Sale

¶11 Sutherland contends that even if there was sufficient evidence
he possessed the drugs, there is insufficient evidence he possessed them for
sale. We review sufficiency of evidence claims de novo. West, 226 Ariz. at
562, ¶ 15.

¶12 A conviction must be supported by “substantial evidence” of
guilt. Id. at ¶ 14. “Substantial evidence is more than a mere scintilla and is
such proof that ‘reasonable persons could accept as adequate and sufficient
to support a conclusion of defendant’s guilt beyond a reasonable doubt.’”
State v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125 Ariz. 417,
419 (1980)). We do not reweigh evidence; rather, we view facts “in the light
most favorable to sustaining the conviction,” resolving all inferences
against appellant. State v. Lee, 189 Ariz. 590, 603 (1997).

¶13 Here, there is ample evidence supporting the conviction. At
trial, the State’s expert witness, Detective Huerta, testified that total drug

1 The trial court judge indicated there might be sufficient evidence to convict

Sutherland.

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weight in the suspect’s possession is the best evidence of intent to sell.
Detective Huerta testified that one gram or less is typical for personal use
and nine grams or more indicates possession for sale. The State presented
evidence that Sutherland possessed more than nine grams of
methamphetamine. Detective Huerta further explained that typical
amounts for sale include 3.5 grams, 1.75 grams, and 1 gram, and indicated
amounts are not always precise. Sutherland possessed methamphetamine
in individual amounts weighing 3.47 grams, 1.88 grams, 1.55 grams, 1.46
grams, and .85 grams, which a rational trier of fact could legitimately
conclude were sufficiently close to the amounts typically possessed for sale.
Detective Huerta also testified that other indicators of possession for sale
include multiple baggies and multiple phones. At trial, the State presented
evidence of empty baggies taken from Sutherland and a photograph
showing three cell phones in Sutherland’s bag, further supporting the jury’s
finding. Sutherland accurately points to conflicting testimony, but
conflicting testimony does not render the cumulative evidence
insubstantial. See State v. Toney, 113 Ariz. 404, 408 (1976) (“Evidence is not
insubstantial simply because testimony is conflicting or reasonable persons
may draw different conclusions from the evidence.”) The evidence and
testimony presented at trial provide substantial evidence to support the
jury’s conclusion. We therefore find no error.

III. Admission of Other Evidence

A. Shoplifting References

¶14 Sutherland argues the court erred in allowing references to
his alleged shoplifting at Kmart. Specifically, Sutherland argues the
shoplifting references were irrelevant and unfairly prejudicial. We review
the admission of evidence for abuse of discretion. State v. Lehr, 227 Ariz. 140,
147, ¶ 19 (2011).

¶15 Evidence of prior bad acts is not admissible to prove action in
conformity therewith, but may be admissible “for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Ariz. R. Evid. 404(b). When acts
are admitted pursuant to Rule 404(b), the proponent must prove by clear
and convincing evidence the acts were committed by the defendant. State
v. Terrazas, 189 Ariz. 580, 582 (1997). Generally, the evidence must be (1)
admitted for a proper purpose under Rule 404(b), (2) relevant to that
purpose, (3) not outweighed by unfair prejudice, and (4) addressed in a
limiting instruction if requested. Id. at 583.

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Decision of the Court

¶16 Here, the State mentioned Sutherland’s alleged shoplifting,
but did so for a proper, non-propensity purpose. The State gave notice that
shoplifting would be mentioned at trial. The State never argued Sutherland
was convicted of or committed shoplifting—only that there was an incident
at Kmart and Sutherland was a suspect. Lieutenant Cesena testified that
Sutherland matched the shoplifting suspect’s description and that
Sutherland asked whether Cesena stopped him because of “the Kmart
incident.” Thus, the State met its burden to show by clear and convincing
evidence that Sutherland was indeed involved in an incident at Kmart. The
trial court allowed the references because “[i]t was the reason that law
enforcement got involved.” This is a proper, relevant, non-propensity
purpose. See State v. Cook, 150 Ariz. 470, 472 (1986) (“Explanation of events
which occur before and after a crime can be admitted in order that the full
story be understood.”). Further, Sutherland was not prejudiced by the
evidence’s admission: “shoplifting” was never directly mentioned at trial,
and indirect references to the incident were only made to explain how
Lieutenant Cesena became involved. Finally, the court gave a limiting
instruction at Sutherland’s request. We therefore find the trial court did not
abuse its discretion in allowing references to alleged shoplifting.

B. Booking Photo

¶17 Sutherland argues the court erred in admitting a “mug shot”
to establish identity when he failed to attend trial. We review for abuse of
discretion. State v. McCutchen, 162 Ariz. 54, 58 (1989).

¶18 The introduction of a mug shot may be error when it infers a
prior arrest record. State v. Kelly, 111 Ariz. 181, 189 (1974). However, mug
shots may be admitted to establish identity when a jury could conclude the
photo was taken when defendant was arrested in the present case.
McCutchen, 162 Ariz. at 58.

¶19 Here, the photo was relevant to establish Sutherland’s
identity when he failed to appear for trial. The photo included the words
“Mohave County Sheriff’s Office” above the photo, Sutherland’s name and
booking number immediately below the photo, as well as the following
statement: “The above photo is a true and exact copy of the booking
photograph for SUTHERLAND, JOSEPH THOMAS DOB: 2/11/1981, as on
file with the Mohave County Sheriff’s Office.” The booking photo was
signed by a Sheriff’s Office employee and notarized on September 20, 2018,
one month before trial. In State v. Cumbo, 9 Ariz. App. 253, 256 (1969), we
reasoned that the “absen[ce] [of] an explanation that the picture was taken
at [a] defendant’s arrest on the charge involved, intimates to the jury that

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Decision of the Court

[the] defendant had a prior criminal record,” and, therefore, its admission
into evidence may constitute error. However, our supreme court more
recently reasoned that if a jury “could well conclude that police took [the
photograph] when defendant was arrested in this case,” and the
photograph is otherwise relevant to the issue of identity, “its admission [is]
not unfairly prejudicial” and no error exists. McCutchen, 162 Ariz. at 58
(emphasis added). Here, the only date on the photo is well after
Sutherland’s arrest in the present case and only one month before trial.
Thus, although the better course of action may have been to introduce either
a clean photo or one with an explanation that the photo was taken at
Sutherland’s arrest in the present matter, the photo’s admission was not
unfairly prejudicial because the jury could well conclude the photograph
admitted into evidence was taken in conjunction with Sutherland’s arrest
in this case. See id.

IV. Prosecutorial Misconduct

¶20 Sutherland alleges the prosecutor committed misconduct by
purportedly mentioning facts not in evidence during the State’s closing
argument. Specifically, Sutherland challenges the prosecutor’s references to
evidence of (1) drugs, (2) cell phones, and (3) cash.

¶21 To establish prosecutorial misconduct, a defendant must
show the misconduct “so infected the trial with unfairness as to make the
resulting conviction a denial of due process,” and prove the misconduct
was “so pronounced and persistent that it permeates the entire atmosphere
of the trial.” State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (quoting State v.
Hughes, 193 Ariz. 72, 79, ¶ 26 (1998)).

¶22 Here, during the trial, the court properly admitted evidence
of drugs and a photograph showing three cell phones. Therefore, despite
inconsistent witness testimony potentially affecting the weight of the
evidence, the prosecutor was indeed referring to facts in evidence during
his closing argument. Although there was no evidence of cash presented at
trial, the prosecutor only mentioned cash in his closing argument to correct
his opening statement and clarify that no evidence of cash was presented at
trial.2 The prosecutor, therefore, did not commit misconduct in his closing
argument.

2 Sutherland challenges this quote by the prosecutor: “I mentioned during

the [opening] statements that $140 was found in Joseph’s wallet. Now that

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V. Consideration of Aggravating Factors

¶23 Sutherland argues the trial court erred in considering two
prior felony convictions as aggravating factors in sentencing. Because
Sutherland did not object at trial, we review for fundamental error,
requiring Sutherland to establish both that fundamental error exists and the
error caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20
(2005).

¶24 Courts may not use prior convictions to enhance or aggravate
a defendant’s sentence without properly establishing the convictions’
existence. State v. Morales, 215 Ariz. 59, 61, ¶ 6 (2007). Here, however, the
court did not enhance or aggravate Sutherland’s sentence. The court
correctly indicated that because there was no aggravation hearing, “the
most [the court] could impose in this case would be a presumptive
sentence.” Thus, even if it was improper for the court to consider the prior
convictions as aggravating factors, because the court did not impose a
sentence greater than the presumptive term, there was no error. See State v.
Johnson, 210 Ariz. 438, 442, ¶ 13 (App. 2005) (finding no error when the trial
court considered an aggravating circumstance not found by the jury
because it did not rely on that circumstance to increase the defendant’s
punishment beyond the presumptive term). Finally, Sutherland has failed
to establish prejudice in the court’s consideration of the prior felonies.
Indeed, rather than objecting to considerations of the prior convictions at
sentencing, Sutherland was the first to mention them. The court therefore
did not err in considering Sutherland’s prior felony convictions at
sentencing and imposing the presumptive sentence.

CONCLUSION

¶25 For the foregoing reasons, we affirm Sutherland’s convictions
and sentences.

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

testimony never came out at trial. No one ever mentioned anything about
any money.”

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