State v. Sample

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRIAN SAMPLE, Appellant.

No. 1 CA-CR 20-0408
FILED 5-20-2021

Appeal from the Superior Court in Navajo County
No. S0900CR201900244
The Honorable Dale P. Nielson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Law Office of Christian C. Ackerley PLLC, Phoenix
By Christian C. Ackerley
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 Brian Sample appeals his convictions and sentences for
possession of dangerous drugs, possession of drug paraphernalia, and
disorderly conduct. For the following reasons, we affirm.

BACKGROUND

¶2 One morning in February 2019, around 6:15 a.m., Holbrook
police received a report of a disturbance at S.T.’s house. S.T. worked at the
police department, and she called Sgt. Ray Patterson as he was responding
to the scene. From his end of the call, Patterson could hear what he believed
to be banging on a door and windows, and the sound of a doorbell. S.T.
explained the situation and gave updates, identifying the person causing
the noise outside as Sample when he walked past a window.

¶3 Patterson arrived at S.T.’s home and arrested Sample for
disorderly conduct. He conducted a search incident to arrest, finding that
Sample had on his person a bag of methamphetamine and a smoking device
with “burnt marijuana residue.” Sample offered an explanation for his
conduct, and S.T.’s stepsister, Marisel, arrived on the scene and
corroborated Sample’s “story.”

¶4 The State charged Sample with possession of dangerous
drugs (Count 1), possession of drug paraphernalia (Count 2), and
disorderly conduct (Count 3). The day before trial, Sample moved to
suppress the drug and paraphernalia evidence, asserting the police lacked
probable cause to arrest him. At an evidentiary hearing the next morning,
Patterson testified he had probable cause to arrest Sample both for
disorderly conduct and an unrelated credit card fraud case. The court
summarily denied Sample’s motion.

¶5 At trial, Patterson was the State’s primary witness. Sample
did not testify, nor did the defense call any witnesses to testify. The jury
found Sample guilty on all three counts and the superior court imposed
concurrent eight-year and three-year prison sentences for Counts 1 and 2,

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and six months in jail for Count 3, with credit for 314 days of presentence
incarceration on each count.

DISCUSSION

A. Motion to Suppress

¶6 Sample argues the superior court abused its discretion in
denying his motion to suppress. He contends Patterson lacked probable
cause to arrest him, so the search incident to arrest was unlawful. We
review a ruling on a motion to suppress for an abuse of discretion, State v.
Snyder, 240 Ariz. 551, 554, ¶ 8 (App. 2016), viewing the evidence from the
suppression hearing in the light most favorable to affirming the court’s
ruling, State v. Rojers, 216 Ariz. 555, 559, ¶ 17 (App. 2007).

¶7 The Fourth Amendment provides a person with the right to
be free from unreasonable searches and seizures. U.S. Const. amend. IV. A
police officer may make a warrantless arrest if there is probable cause to
believe that a crime, including a misdemeanor, has been committed and the
person to be arrested committed the offense. A.R.S. § 13-3883(A)(4). If the
arrest is lawful, the officer may search the arrestee’s “person and area
within his immediate control.” Snyder, 240 Ariz. at 556, ¶ 17 (quotation
omitted). Probable cause is defined as “when reasonably trustworthy
information and circumstance would lead a person of reasonable caution to
believe that a suspect has committed an offense.” State v. Hoskins, 199 Ariz.
127, 137–38, ¶ 30 (2000).

¶8 The superior court record is silent on whether the court
denied the motion to suppress because it found probable cause based on
disorderly conduct, the unrelated fraud case, or both. We will affirm the
court’s ruling if it was correct for any reason. State v. Perez, 141 Ariz. 459,
464 (1984). On appeal, the State urges us to affirm only on the ground that
probable cause existed to arrest Sample for disorderly conduct. Because we
agree with the State’s position, we do not address probable cause relating
to the fraud case.

¶9 As pertinent here, a person commits disorderly conduct “if,
with intent to disturb the peace or quiet of a . . . person, or with knowledge
of doing so, such person engages in . . . seriously disruptive behavior.”
A.R.S. § 13-2904(A). The evidence from the suppression hearing shows
Patterson had probable cause to believe that Sample had engaged in
“seriously disruptive behavior” that constitutes disorderly conduct.
Dispatch provided information to police officers that someone was banging
on the doors and windows of S.T.’s home. While en route to the scene,

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Patterson received a call from S.T., and as she recounted what was
happening, he could hear the banging on a door and windows along with
a doorbell ringing in the background. When Sample walked past a
window, S.T. identified him. Before he was arrested Sample told Patterson
he was trying to alert S.T. due to a possible emergency, at Marisel’s request.
The superior court was aware of the claimed justification when it denied
Sample’s motion. On this record, the court did not abuse its discretion in
denying the motion to suppress.

B. Objection on Cross-Examination

¶10 At trial, the following exchange occurred between defense
counsel and Patterson:

[Defense counsel:] Did Mr. Sample . . . ever explain why he
was attempting to contact [S.T.]?

[Prosecutor]: Objection, hearsay, Your Honor.

[Defense counsel]: It goes to our defense that he was not
committing disorderly conduct, Judge.

The Court: I believe that would be self-serving hearsay, so
that would be sustained.

[Defense counsel:] Now, don’t tell me what, but did Mr.
Sample ever offer an explanation as to why he knocked on
[S.T.]’s door?

[Patterson:] Yes.

[Defense counsel:] And don’t tell me what, but do you recall
what that explanation was?

[Patterson:] Yes.

[Defense counsel:] Did this third party [Marisel] the other
party you indicated on scene you encountered, did she
corroborate Mr. Sample’s story? Don’t tell me what she said,
but did she corroborate what Mr. Sample said?

[Patterson:] Yes.

¶11 Sample argues the superior court erred by sustaining the
State’s objection. He contends Patterson’s testimony about Sample’s

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explanation for the incident at S.T.’s home should have been admitted
under an exception to the hearsay rule, and the court precluded evidence
that was necessary to presenting his defense in violation of the Sixth
Amendment’s Confrontation Clause. We review an evidentiary ruling for
an abuse of discretion. State v. Blakely, 204 Ariz. 429, 437, ¶ 34 (2003).
Because Sample failed to raise a violation of the Confrontation Clause
below, we review only for fundamental error. State v. Henderson, 210 Ariz.
561, 567, ¶ 19 (2005).

¶12 Hearsay is generally inadmissible, absent an exception,
Arizona Rule of Evidence (“Rule”) 802, and Sample does not dispute that
Patterson’s testimony about Sample’s justification for his conduct would
have been hearsay and therefore presumptively inadmissible. Instead, he
argues the testimony should have been allowed under Rule 807(a), the
residual hearsay exception. Under that rule, a statement is not excluded if:

(1) [T]he statement is supported by sufficient guarantees of
trustworthiness—after considering the totality of the
circumstances under which it was made and evidence, if
any, corroborating the statement; and

(2) [I]t is more probative on the point for which it is offered
than any other evidence that the proponent can obtain
through reasonable efforts.

Ariz. R. Evid. 807(a).

¶13 We find no abuse of discretion with the superior court’s
decision to sustain the State’s hearsay objection because Sample did not
satisfy the standards required by Rule 807. First, his statement lacks
sufficient guarantees of trustworthiness. In considering whether the
statement has “sufficient guarantees of trustworthiness,” we consider the
“spontaneity, consistency, knowledge, and motives of the declarant . . . to
speak truthfully, among other things.” State v. Burns, 237 Ariz. 1, 20, ¶ 69
(2015) (quotation omitted). Statements in response to police questioning,
like here, are generally less trustworthy. Id. at 20, ¶ 70. Second, Sample
could have obtained and introduced as or more probative evidence through
Marisel, but she was not offered as a witness and Sample never explains
why.

¶14 We recognize that a vital part of the right to confront
witnesses is the right of cross-examination. State v. Fleming, 117 Ariz. 122,
125 (1977). But “[t]he right to cross-examination must be kept within
‘reasonable’ bounds” and the trial judge “has discretion to curtail its scope.”

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Id.. Deciding whether a judge has reasonably limited the scope of cross-
examination involves a case-by-case determination of “whether the
defendant has been denied the opportunity [to present] information which
bears either on the issues in the case or on the credibility of the witnesses.”
Id.

¶15 Here, the superior court’s refusal to admit inadmissible
hearsay was a reasonable limit on cross-examination, not a violation of
Sample’s right to confront witnesses. Though defense counsel could not
ask Patterson to repeat Sample’s statements at the scene, Patterson did
confirm upon further questioning that Sample had given him a reason for
his conduct and that his story was corroborated by Marisel. Sample was
not precluded from presenting his defense. At a minimum, he still had a
chance to call Marisel as a witness, and nothing in the record shows
hardship in doing so. Thus, no violation of the Confrontation Clause
occurred.

CONCLUSION

¶16 We affirm Sample’s convictions and sentences.

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

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