State v. Gonzales

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA RYAN GONZALES, Appellant.

No. 1 CA-CR 19-0487
FILED 1-7-2021

Appeal from the Superior Court in Maricopa County
No. CR2018-001523-001
The Honorable William R. Wingard, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Brian Coffman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
 STATE v. GONZALES
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Cynthia J. Bailey joined.

H O W E, Judge:

¶1 Joshua Ryan Gonzales appeals his convictions and sentences
for two counts of possession of dangerous drugs for sale, one count of
possession of narcotic drugs for sale, one count of possession of narcotic
drugs, and one count of aggravated driving under the influence. Gonzales
argues that the court abused its discretion in denying his motion to dismiss
based on an alleged violation of his right to a speedy trial and in admitting
evidence of other acts under Arizona Rule of Evidence 404(b). We deny
relief and affirm the convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 “We construe the evidence in the light most favorable to
sustaining the verdict, and resolve all reasonable inferences against the
defendant.” State v. Greene, 192 Ariz. 431, 436 ¶ 12 (1998). In February 2017,
Gonzales drove a friend’s car, was pulled over, and failed multiple
impaired driving and drug tests. A search of the vehicle’s trunk produced
a backpack containing various packaged substances that were later
determined to be methamphetamine, heroin, alprazolam or Xanax, and
oxycodone. The backpack also contained a ledger with “Gonza” written at
the top, small plastic bags, syringes, Q-tips, a tourniquet, a spoon, a safe,
and a currency bill scanner. Gonzales claimed that the backpack was not
his and that he did not know what was in it.

¶3 In March of 2018, a grand jury indicted Gonzales on two
counts of possession of dangerous drugs for sale, one count of possession
of narcotic drugs for sale, one count of possession of narcotic drugs and one
count of aggravated driving under the influence. On April 3, 2018, Gonzales
demanded that he be tried for all charges against him within 90 days, as
required under Arizona Rule of Criminal Procedure 8.3(b).

¶4 Gonzales was arraigned two weeks later. The trial court set an
initial pretrial conference for June 4, 2018, a comprehensive pretrial
conference for July 3, 2018, and a Rule 8 last day of September 14, 2018, 150

2
 STATE v. GONZALES
Decision of the Court

days after arraignment pursuant to Rule 8.2(a) of the Arizona Rules of
Criminal Procedure. Gonzales did not tell the court that these dates were
beyond the Rule 8.3(b) limit of July 2, 2018. At the June 4, 2018 initial pretrial
conference, the court affirmed the comprehensive pretrial conference set for
July 3, 2018 and reaffirmed the final day of September 14, 2018. Gonzalez
again said nothing of the Rule 8.3(b) time limit. At the July 3, 2018
comprehensive pretrial conference, Gonzales’s attorney first raised the
issue of a speedy trial violation and said that research was still underway
with a motion forthcoming. On August 3, 2018, Gonzales moved to dismiss
the indictment for a violation of Rule 8.3(b), arguing that the final day for
trial was well overdue. The trial court denied the motion, finding that the
right to dismissal under Rule 8.3 had been waived, and the case went to
trial.

¶5 After a seven-day trial, a jury convicted Gonzales only of
possession of narcotic drugs; the jury could not reach a decision on the other
counts. Before the retrial on the other counts, the state moved to admit text
messages found on Gonzales’s phone after a separate incident in October
2017. The text messages dated back to March of 2017 and discussed the sale
and trading of the same type of drugs found in the seized backpack in
February of 2017. The court granted the state’s motion, finding the
messages relevant to Gonzales’s intent to sell the drugs and his identity as
the possessor of the backpack under Rule 404(b). The court also found that
the messages were not unfairly prejudicial and left open the possibility of a
limiting instruction.

¶6 At the second trial, a Gilbert police department drug expert
testified that drug dealers typically drive borrowed or rented cars to
distance themselves from the product in the cars and avoid police
surveillance. He testified that drug dealers often hide their product in the
trunk or glove box to prevent a “drug rip”, or a customer robbing the dealer.
The expert noted that the supplies and ledger found in the backpack was
more indicative of a dealer’s supply than a common user’s stash, even
though dealers often use their own supply. Finally, the expert explained
that Gonzales’s text message references to fire, pure, clear, “blk”, and bars
all related to a either a type of drug or a drug’s quality, and connected those
terms to the ledger and the seized drugs. A jury then convicted Gonzales
on the four remaining counts and after a trial on aggravating circumstances
and Gonzales’s concession to prior convictions, he was sentenced to the
presumptive terms of 15.75 years’ imprisonment for each of the two
convictions for possession of dangerous drugs for sale and for the
possession of narcotic drugs for sale and to the presumptive term of 10
years’ imprisonment for each of the convictions of possession of narcotic

3
 STATE v. GONZALES
Decision of the Court

drugs and aggravated driving under the influence with all terms to be run
concurrently with each other. Gonzales timely appeals.

DISCUSSION

I. Gonzales’s Speedy Trial Rights Under Rule 8.3(b)

¶7 Gonzales argues that the court improperly denied his motion
to dismiss for violation of his speedy trial rights under Rule 8.3(b). A trial
court’s ruling on Rule 8 time limits will be upheld unless a defendant shows
both an abuse of discretion and prejudice. State v. Spreitz, 190 Ariz. 129, 136
(1997).

¶8 A defendant in custody must be tried within 150 days of
arraignment. Ariz. R. Crim. P. 8.2(a)(1). A defendant in custody must be
tried within 90 days after the defendant notifies the court and the
prosecutor of his request to be tried. Ariz. R. Crim. P. 8.3(b), (c). This right
can be waived, of course. State v. Guerrero, 159 Ariz. 568, 569 (1989).
Defendants may not “wait until after the [Rule 8 time limits] ha[ve] expired
and then claim a Rule 8 violation after it is too late for the trial court to
prevent the violation.” Spreitz, 190 Ariz. at 138 (quoting State v. Swensrud, 168 Ariz. 21, 23 (1991)).

¶9 Gonzales waived his Rule 8.3(b) right. At the arraignment, the
court stated that the last day for trial under Rule 8 was September 14, 2018,
but Gonzales did not inform the court that this date was beyond the 90 days
permitted under the Rule. Nor did Gonzales object to the last day specified
at the June 4, 2018 pretrial hearing. Gonzales did not raise his Rule 8 rights
until August 3, 2018: more than a month after the time had run. He therefore
waived his rights under Rule 8.3(b). Spreitz, 190 Ariz. at 138; Swensrud, 168
Ariz. at 23; Guerrero, 159 Ariz. at 569.

¶10 Even had Gonzales not waived his rights, he has not proved
that he was prejudiced. See State v. Vasko, 193 Ariz. 142, 149 (App. 1998)
(finding no reversible error when “defendant ha[d] not established that the
technical speedy trial error in this case prejudiced his defense in any way
or deprived him of a fair trial.”); State v. Lukezic, 143 Ariz. 60, 69 (1984)
(“There was no apparent impairment of appellee’s ability to defend herself,
because there is no allegation of lost witnesses or evidence.”). Gonzales
does not argue how the trial would have been different had it occurred
within the Rule 8.3(b) time limit. He argues only that he suffered problems
that all defendants suffer because of being incarcerated, which was not
enough to demand dismissal. State v. Parker, 231 Ariz. 391, 399, ¶¶ 17–18
(2013) (finding no prejudice to Sixth Amendment speedy trial right because

4
 STATE v. GONZALES
Decision of the Court

the defendant “asserted no prejudice except that arising from his pretrial
incarceration.”). Moreover, Gonzales cannot blame his incarceration on the
charges being tried because he was simultaneously incarcerated for a
October 2017 probation violation. The trial court did not abuse its discretion
in denying Gonzales’s motion to dismiss.

II. The Trial Court did not err in allowing other acts evidence.

¶11 Gonzales also claims the trial court erred by admitting the text
messages as other acts evidence under Rule 404(b). We review evidentiary
rulings for an abuse of discretion. State v. Ellison, 213 Ariz. 116, 129 (2006).

¶12 Evidence of other acts is not admissible to prove a defendant’s
propensity to commit the crime charged, but may be used to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident. Ariz. R. Evid. 404(b). To be admissible, the evidence
must be admitted for a relevant, proper purpose and its probative value
must not be substantially outweighed by the danger of unfair prejudice
under Rule 403. State v. Gulbrandson, 184 Ariz. 46, 60 (1995). The defendant
is of course entitled to a limiting instruction on the evidence if he requests
one. Id.

¶13 The trial court did not abuse its discretion in admitting the
text messages. Gonzales was found driving a car with a backpack
containing drugs in the trunk. He denied knowledge of the backpack and
the drugs in it, even though the backpack contained a drug ledger with the
name “Gonza” written on it. The text messages revealed his subsequent
involvement in the sale of the same type of drugs found in the backpack
and were relevant to show his knowledge of the drugs inside the backpack,
his intent to possess them and his ownership of the backpack and its
contents. Any possible prejudice from admitting the messages does not
substantially outweigh their strong probative value. If Gonzales had been
concerned about the prejudice from the messages’ admission, he could have
requested a limiting instruction, but he failed to do so. The court did not
abuse its discretion in admitting the text messages under Rule 404(b).

¶14 Gonzales claims nonetheless that intent and knowledge are
insufficient justifications for admission of Rule 404(b) evidence when the
defense denies the act occurred, relying on State v. Ives, 187 Ariz. 102, 109–
110 (1996). This argument is meritless. In Ives, the defendant denied the act
for which he was accused. Contrary to his contention otherwise, Gonzales
did not deny that he drove the car or that the backpack was found in the
car’s trunk. Rather, because he proffered a mere presence defense, intent

5
 STATE v. GONZALES
Decision of the Court

and knowledge became contested issues. United States v. Harry, 930 F.3d
1000, 1006 (8th Cir. 2019); State v. Hines, 130 Ariz. 68, 73 (1981); see also Ives,
187 Ariz. at 109.

¶15 Moreover, any theoretical error in admitting the text
messages was harmless. The State has the burden to prove beyond a
reasonable doubt that any error did not contribute to or affect the verdict or
sentence. State v. Henderson, 210 Ariz. 561, 567 (2005) Gonzales tested
positive for methamphetamine and metabolites of heroin and alprazolam,
the same three drugs discovered in backpack and referred to in the drug
sales ledger. The expert testified that drug dealers often use their own
drugs, and that they distance themselves from their drugs to protect
themselves while transporting them, by putting the drugs in the trunk and
driving borrowed or rented vehicles. The drugs, here, were worth
thousands of dollars. Testimony established that a common drug user
would not likely have that many drugs on hand. Furthermore, the sales
ledger found in the backpack had “Gonza” written on it, evidence that the
backpack belonged to him. Finally, the quantity of drugs coupled with how
they were stored alongside a safe, a currency bill scanner, and small plastic
bags, in conjunction with Gonzales’s inebriation at arrest, was sufficient to
establish beyond a reasonable doubt that Gonzales knowingly possessed
the drugs for sale and use.

CONCLUSION

¶16 For the foregoing reasons, we affirm Gonzales’s convictions
and sentences.

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

6