State v. Fordson

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DEVIN FORDSON, Appellant.

No. 1 CA-CR 23-0491
FILED 08-01-2024

Appeal from the Superior Court in Navajo County
No. S0900CR202000911
The Honorable Joseph S. Clark, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Celeste Kinney
Counsel for Appellee

The Rigg Law Firm, P.L.L.C., Pinetop
By Brett R. Rigg
Counsel for Appellant
 STATE v. FORDSON
Opinion of the Court

OPINION

Judge Paul J. McMurdie delivered the Court’s opinion, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Defendant Devin Fordson appeals his conviction and
sentence for transportation of a dangerous drug for sale. We hold that a
defendant must assert his or her Confrontation Clause rights to preserve
the issue for anything but fundamental error review on appeal. Here, we
only review for fundamental error because Fordson waived his
Confrontation Clause rights at the trial by failing to object to the substitute
expert. We affirm the conviction because there was no fundamental error.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In December 2020, a state trooper saw a traffic violation on
Interstate 40 near Winslow and performed a traffic stop. Amanda Stallings
drove the car while Fordson slept in the front passenger’s seat.

¶3 The trooper spoke with Stallings and saw that she exhibited
unusual symptoms consistent with anxiety. The trooper reviewed the car’s
rental agreement paperwork and found that the rental timeline
contradicted Stallings’s travel plans. The trooper testified that in his
experience, he had “seen a very large amount of smugglers utilize rental
cars,” and he would become suspicious if he saw “inconsistencies along
with the rental timelines that do not match the rental agreement.” Based on
the inconsistencies, the trooper grew suspicious and asked Stallings if he
could search the car. Stallings consented to the search.

¶4 The trooper asked Stallings about Fordson, and Stallings
stated that they had been dating for two weeks. Stallings called Fordson by
a nickname and claimed she did not know his last name. This caused the

1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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Opinion of the Court

trooper more suspicion because he thought Stallings was lying about their
relationship. The trooper woke up Fordson and told him to exit the car.

¶5 During the car search, the trooper found a deflated spare tire
and felt “anomalies within the tire.” The trooper detained Fordson in his
patrol car. In the trooper’s car, Fordson was recorded saying:

I knew it. I fucking knew it. I should, boy should’ve,
would’ve, could’ve ain’t good enough . . . boy I’m fucked up
now . . . fucking this girl got us pulled the fuck over. I
should’ve been woke and keeping this girl on point but it’s
too late now boy I’m fucking going to jail for a long ass time.
Boy I am fucked.

¶6 Once the trooper placed Stallings in the car, Fordson and
Stallings spoke:

Fordson: We’ve been ratted out, man.
Stallings: And like he was sitting there, he was sitting there
when I passed him. And then he like waited before he pulled
out.
Fordson: But did you look at him when he was passing?
Stallings: No, I didn’t look at him at all. Should I have?
Fordson: Don’t ever look at them.
* * *
Fordson: I’m telling y’all, I already know. That’s why I always
tell y’all when you coming through here you’ve got to be on
your shit.
Stallings: We’ve been dating for a couple weeks.
Fordson: Yeah.

The trooper believed Stallings and Fordson’s conversation showed they
tried to get their stories straight.

¶7 The trooper and another officer opened the spare tire and
found packages of a white crystalline substance inside it. The trooper
arrested Stallings and Fordson and seized and secured the packages.

¶8 The trooper obtained a sample from one of the packages for
testing and sent the sample and the packages to the crime lab. The testing
revealed that the sample was methamphetamine. Together, the packages
weighed 1.56 pounds. The crime lab identified thirteen fingerprints as
Fordson’s on a package’s plastic wrap. The State charged Fordson with

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Opinion of the Court

transportation of a dangerous drug for sale, a Class 2 felony. See A.R.S.
§ 13-3407(A)(7), (B)(7).

¶9 Joseph Blakesley, who tested the sample to determine its
chemical makeup, no longer worked for the Department of Public Safety.
So the State called another lab employee, Jason O’Donnell, to testify at
Fordson’s trial. When alerted that Blakesley would not testify, Fordson had
“some concern” under Arizona Rule of Evidence (“Rule”) 703 because
O’Donnell did not personally observe the drug testing and questioned
whether O’Donnell had sufficient training to review the analysis. See Ariz.
R. Evid. 702, 703. The court allowed Fordson to question O’Donnell on voir
dire outside the jurors’ presence to verify his qualifications. The court was
satisfied that O’Donnell had the requisite qualifications, and Fordson did
not object to O’Donnell’s qualifications or testimony after the voir dire.

¶10 O’Donnell testified about his experience in controlled
substance testing and explained the crime lab’s chain of custody
procedures. O’Donnell then testified that he reviewed Blakesley’s notes.
Other than a later-corrected item number, O’Donnell said nothing in the
notes looked abnormal, and it was his opinion that “[b]ased on everything
[he] saw,” the tested sample was methamphetamine. Fordson did not object
on any basis to O’Donnell’s conclusions or the admission of the
methamphetamine packages.

¶11 The jury found Fordson guilty. During the aggravating
circumstances trial phase, the State urged the jury to find the presence of an
accomplice as an aggravating factor partly because Stallings told the
trooper she had been dating Fordson for two weeks, and she told Fordson
the same thing in the patrol car. The State claimed, “She clearly was an
accomplice. She was trying to help him . . . accomplish this task.”

¶12 The jury found the State proved two aggravating
circumstances: 1) the presence of an accomplice and 2) the commission of
the offense in expectation of pecuniary gain. The court found additional
aggravation and found that the aggravation outweighed the mitigation
evidence. See A.R.S. § 13-701(F). The court sentenced Fordson to 21 years, a
slightly aggravated term for a category three repetitive offender. See A.R.S.
§ 13-703(C), (J).

¶13 Fordson appealed. We have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

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Opinion of the Court

DISCUSSION

A. The Superior Court Did Not Fundamentally Err by Admitting the
Expert Testimony.

¶14 Fordson argues that allowing O’Donnell, a substitute expert,
to testify about the drug test results violated the Confrontation Clause. The
Sixth Amendment’s Confrontation Clause “prohibits the introduction of
testimonial statements by a nontestifying witness” unless the defendant
had a prior opportunity to cross-examine the now-unavailable witness.
Ohio v. Clark, 576 U.S. 237, 243 (2015); see also Pointer v. Texas, 380 U.S. 400,
403 (1965) (“[T]he Sixth Amendment’s right of an accused to confront the
witnesses against him is . . . a fundamental right and is made obligatory on
the States by the Fourteenth Amendment.”). The Confrontation Clause
“applies only to testimonial hearsay.” Davis v. Washington, 547 U.S. 813,
823-24 (2006).

¶15 “Testimony” is “[a] solemn declaration or affirmation made
for the purpose of establishing or proving some fact.” Crawford v.
Washington, 541 U.S. 36, 51 (2004). Testimonial evidence includes “ex parte
in-court testimony or its functional equivalent . . . such as affidavits,
custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially.” Id. It also includes formal
statements to government officers and “statements that were made under
circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.” Id. at 52. “A
document created solely for an ‘evidentiary purpose,’ . . . made in aid of a
police investigation, ranks as testimonial.” Bullcoming v. New Mexico, 564
U.S. 647, 664 (2011) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305,
311 (2009)).

¶16 Hearsay is an out-of-court statement “a party offers in
evidence to prove the truth of the matter asserted in the statement.” Ariz.
R. Evid. 801(c). “When an expert conveys an absent analyst’s statements in
support of his opinion, and the statements provide that support only if true,
then the statements come into evidence for their truth.” Smith v. Arizona, 144 S. Ct. 1785, 1791 (2024).

¶17 Fordson states that the issue here is “nearly identical” to the
issue in Smith, which caused the Court to remand the case to determine
whether the evidence was testimonial and thus subject to the Confrontation
Clause. See Smith, 144 S. Ct. at 1801-02. In Smith, law enforcement officers

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Opinion of the Court

found the defendant with what appeared to be drugs. Id. at 1795. The
analyst who tested the substances did not testify at the trial. Id. Instead, a
substitute expert reviewed the lab report and the analyst’s notes, referred
to the materials at trial, conveyed what the documents said, and offered his
opinion on the chemical nature of the substances. Id. at 1795-96. The
Supreme Court held that the analyst’s statements were admitted for their
truth. Id. at 1799-1800.

¶18 But as the State points out, the cases’ procedural histories
differ. In Smith, the defendant objected on Confrontation Clause grounds at
trial. But Fordson did not object to the expert testimony under the Arizona
Rules of Evidence or the Confrontation Clause. And even assuming
Fordson’s pre-voir dire concerns preserved a Rule 703 objection, such an
objection did not preserve a Confrontation Clause challenge. See
Melendez-Diaz, 557 U.S. at 313, n.3 (“The right to confrontation may, of
course, be waived, including by failure to object to the offending evidence;
and States may adopt procedural rules governing the exercise of such
objections.”); State v. Boggs, 218 Ariz. 325, 337, ¶ 55 (2008) (Although courts
review de novo Confrontation Clause challenges, the failure to object at trial
means the defendant “must show fundamental error.”); State v. Alvarez, 213
Ariz. 467, 469, ¶ 7 (App. 2006) (“A ‘hearsay’ objection does not preserve for
appellate review a claim that admission of the evidence violated the
Confrontation Clause.”). Fordson made no Confrontation Clause objection
at trial, so we will only reverse if the error is fundamental and caused
prejudice. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005).

¶19 For our fundamental error analysis, we assume without
deciding that the substitute expert’s testimony violated the Confrontation
Clause. To prevail on fundamental error review, the defendant must prove
the trial error: (1) “went to the foundation of the case,” (2) “took from the
defendant a right essential to his defense,” or (3) “was so egregious that he
could not possibly have received a fair trial.” State v. Escalante, 245 Ariz. 135,
142, ¶ 21 (2018). The first two prongs require the defendant to prove
prejudice. Id. To establish prejudice, a defendant must show “that without
the error, a reasonable jury could have plausibly and intelligently returned
a different verdict.” Id. at 144, ¶ 31. Establishing prejudice depends on the
nature of the error and the case facts. Id. at ¶ 29.

¶20 Fordson bears the burden of establishing fundamental error.
See Escalante, 245 Ariz. at 142, ¶ 21. Fordson argues the Confrontation
Clause violation was fundamental error because whether he transported a
dangerous drug for sale is dependent on the testimony of whether the
tested items were dangerous drugs. He continues, “This is a key element of

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Opinion of the Court

the alleged crime. Everything else is contingent on the proper
authentication of the drugs.” Essentially, Fordson argues the trial error
“went to the foundation of the case.” See id. An error goes to the foundation
of the case “if it relieves the prosecution of its burden to prove a crime’s
elements, directly impacts a key factual dispute, or deprives the defendant
of constitutionally guaranteed procedures.” Id. at 141, ¶ 18.

¶21 The Confrontation Clause allows jurors to assess the
evidence’s reliability through cross-examination. Crawford, 541 U.S. at 61.
And Fordson had no opportunity to cross-examine Blakesley, the
individual who tested the substance to determine whether it was
methamphetamine. The error arguably “went to the foundation of the case”
because it deprived Fordson of a constitutionally guaranteed procedure. See
Escalante, 245 Ariz. at 141, ¶ 18.

¶22 Still, Fordson must show prejudice. See State v. Foshay, 239
Ariz. 271, 276-77, ¶ 23 (App. 2016) (To establish prejudice for fundamental
error review, “a defendant must show that, but for the error, a reasonable
factfinder could have reached a different result.”). Fordson fails to establish
how the jury could have reached a different verdict had he cross-examined
Blakesley about the drug test. See Escalante, 245 Ariz. at 142, ¶ 21; see also
State v. Butler, 230 Ariz. 465, 472, ¶ 25 (App. 2012). Had Fordson
cross-examined Blakesley, Fordson could have tried to cast doubt on the
Department of Public Safety’s testing methods and the test result’s
reliability. But he focused the juror’s attention on the evidence’s reliability
when cross-examining O’Donnell and during closing arguments. The jury
heard that O’Donnell did not test the drugs, did not know where the sample
came from, and did not have personal knowledge about the actual testing
of the substance. During closing arguments, Fordson emphasized that
O’Donnell did not test the substance; he merely read someone else’s notes
and “never went back and ran a second test to make sure it was correct.”
Fordson also highlighted that the sample tested was never presented to the
jury. Fordson stated:

For all we know, that’s a box full of sugar or flour or anything
else because, again, nobody has testified to the fact that they
took a core sample out of a particular bag that had a particular
fingerprint that came back to a particular result and that
result, a core sample itself, is not here in evidence.

¶23 But along with O’Donnell’s opinion that the substance tested
was methamphetamine, the State presented other circumstantial evidence
supporting that the substance was methamphetamine, a dangerous drug.

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Opinion of the Court

See Melendez-Diaz, 557 U.S. at 329, n.14 (The Court rejected the notion that
only an analyst’s testimony can prove that a substance is as alleged.); State
v. Jonas, 162 Ariz. 32, 34 (1988) (“That a substance is an illicit drug can be
proved by circumstantial evidence.”); see also A.R.S. § 13-3401(6)(c)(xxxviii).
The jury saw pictures of packages of a white, crystalline substance hidden
inside a tire. The trooper testified that the white, crystalline substance found
in the tire was “consistent with methamphetamine.” Fordson has not
shown that if the person who tested the substance had been
cross-examined, the jury could have reasonably reached a different verdict.
See Escalante, 245 Ariz. at 144, ¶ 31. Thus, we discern no fundamental error
resulting in prejudice.

B. The Superior Court Did Not Err by Admitting Stallings’s
Statements.

¶24 Fordson also argues that the State “improperly used the
hearsay statements of Amanda Stallings to argue she was an accomplice.”
Fordson claims the trooper’s testimony and the patrol car recording
contained inadmissible hearsay, and the statements “were then used during
opening and closing arguments to convince the jury that Amanda Stallings
was an accomplice.” Fordson also argues that admitting Stallings’s
statements violated the Confrontation Clause.

¶25 “We review the admission of testimony for an abuse of
discretion but apply a fundamental error standard to testimony admitted
without objection.” State v. Allen, 253 Ariz. 306, 325, ¶ 13 (2022).
Confrontation Clause challenges to evidentiary rulings are reviewed de
novo. State v. Tucker, 215 Ariz. 298, 315, ¶ 61 (2007). Here, Fordson objected
to the admission of the patrol car recording on hearsay and Confrontation
Clause grounds but objected to Stallings’s statements to the officer only on
hearsay grounds. We review each admitted statement in turn.

1. The Superior Court Did Not Err by Admitting Statements
from the Patrol Car Recording.

¶26 Fordson claims the court erred by admitting Stallings’s
statements in the patrol car because the State used them “for the truth of
the matter asserted and were impermissible hearsay.”2 Hearsay is a

2 Fordson does not challenge the admission of his own statements
from the recorded conversation. And his side of the conversation was
admissible as an opposing party’s statement under Rule 801(d)(2)(A).

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Opinion of the Court

statement that “the declarant does not make while testifying at the current
trial or hearing” and is offered into evidence “to prove the truth of the
matter asserted in the statement.” Ariz. R. Evid. 801(c). Generally, hearsay
is not admissible unless an exception applies. See Ariz. R. Evid. 802.

¶27 But “[s]tatements ‘offered for a purpose other than [proving]
the truth of the matter asserted’ are not hearsay.” Allen, 253 Ariz. at 328,
¶ 27 (quoting State v. Larson, 222 Ariz. 341, 345, ¶ 21 (App. 2009)). For
example, the court may admit out-of-court statements offered to prove the
effect on the listener or to provide context for a defendant’s responses. Id.
(citations omitted); see also State v. Forde, 233 Ariz. 543, 563, 564, ¶¶ 73, 78
(2014) (A text message stating, “cops on scene, lay low” was not hearsay
because the message was offered not to show the cops were on scene, but
that the declarant was communicating concerns about police activity to
someone he thought would share his concerns, suggesting the person’s
involvement.).

¶28 The State did not offer Stallings’s statements from the
recording to prove what the trooper was doing when Stallings drove past
him or whether Stallings looked at the trooper. The trooper had already
testified about the circumstances leading to the traffic stop. Rather, the State
offered Stallings’s statements to put Fordson’s responsive statements in
context and show Fordson’s involvement in transporting the drugs. See
Allen, 253 Ariz. at 328, ¶ 29; Forde, 233 Ariz. at 564, ¶ 78.

¶29 Nor did the State offer Stallings’s statements to prove that
Stallings and Fordson had been dating for two weeks. Their dating history
was irrelevant. Instead, Stallings’s statements to Fordson showed that they
were trying to get their stories straight and were working together. Cf. State
v. Webb, 164 Ariz. 348, 352 (App. 1990) (The challenged statement was
offered to establish that the declarant was concealing the crime.). The
superior court did not abuse its discretion by admitting the patrol car
recording over the hearsay objection because Stallings’s statements were
not hearsay. See Ariz. R. Evid. 801(c).

¶30 Next, Fordson argues his Confrontation Clause rights were
violated by admission of the patrol car recording because Fordson had no
“opportunity to interview, cross-examine or confront Amanda Stallings
about her statements or the content of the recording.” The State claims there
was no Confrontation Clause violation because Stallings’s statements in the
patrol car were not testimonial. Even if Stallings’s statements were
testimonial, Fordson’s Confrontation Clause challenge still fails because the
clause “does not bar the use of testimonial statements for purposes other

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Opinion of the Court

than establishing the truth of the matter asserted.” State v. Womble, 225 Ariz.
91, 97, ¶ 12 (2010) (quoting Crawford, 541 U.S. at 59, n.9). And because the
State offered Stallings’s statements from the patrol car recording for
purposes other than their truth, the superior court did not err by admitting
the patrol car recording.

2. The Superior Court Did Not Commit Reversible Error by
Admitting Stallings’s Statements to the Trooper.

¶31 Fordson claims the court erred by allowing the State to
present the statements made by Stallings to the trooper. The State claims
Stallings’s statements to the trooper “were admitted to show their
unreasonableness and effect on the officer before the search of the vehicle.”
But statements admitted for non-hearsay purposes must still be relevant.
See State v. Rivera, 139 Ariz. 409, 414 (1984) (“[R]elevancy is the unifying
requisite factor for the admissibility of statements for non-hearsay
purposes.”); Ariz. R. Evid. 402 (“Irrelevant evidence is not admissible.”).
Here, the officer’s suspicion was not an issue in controversy in this
case—Stallings consented to the vehicle search. The State’s use of Stallings’s
statements for that purpose would be error.

¶32 But even assuming error, Fordson fails to establish harm from
the admission. See State v. Bocharski, 218 Ariz. 476, 486, ¶ 38 (2008) (quoting
State v. Bass, 198 Ariz. 571, 580-81, ¶ 39 (2000)) (We review hearsay
violations for harmless error, and error is harmless “when the reviewing
court is satisfied beyond a reasonable doubt that the error did not impact
the verdict.”). Fordson argues that the statements “were used to prove the
accomplice aggravator[,] which led to Mr. Fordson being incarcerated for
twenty-one years.” But other admissible evidence, such as the patrol car
recordings and fingerprint evidence, reasonably supported Fordson’s
involvement and that Stallings and Fordson were accomplices. See
Bocharski, 218 Ariz. at 486, ¶¶ 40-41; see also A.R.S. § 13-301 (An accomplice
intends to promote or facilitate the offense commission and either solicits
or commands another person to commit the offense, aids another person in
committing the offense, or provides means or opportunity for a person to
commit the offense.). Thus, Fordson has not shown that the error affected
the verdict. See Bocharski, 218 Ariz. at 486, ¶ 38.

¶33 Nor did the error affect Fordson’s sentence. Fordson’s 21-year
sentence for the Class 2 felony falls between the presumptive and the
maximum term for a category three repetitive offender. See A.R.S.
§ 13-703(J). For the court to impose the maximum sentence, the State only
needed to prove one aggravating factor. See A.R.S. § 13-701(C). In this case,

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Opinion of the Court

the jury found two aggravating factors. And Fordson makes no challenge
to the jury’s finding of the second aggravating factor that he committed the
offense in expectation of pecuniary gain. Thus, Fordson fails to show how
admitting Stallings’s statements affected his sentence. See State v. Martinez, 210 Ariz. 578, 584, ¶ 21 (2005) (“[O]nce a jury implicitly or explicitly finds
one aggravating factor, a defendant is exposed to a sentencing range that
extends to the maximum punishment.”). Any error was clearly harmless.

¶34 Finally, we address Fordson’s Confrontation Clause
challenge to the court’s admission of Stallings’s statements to the trooper.
Fordson made no Confrontation Clause objection when the trooper testified
about his conversation with Stallings. See State v. Alvarez, 213 Ariz. 467, 469,
¶ 7 (App. 2006) (“A ‘hearsay’ objection does not preserve for appellate
review a claim that admission of the evidence violated the Confrontation
Clause.”). Thus, we review the challenge for fundamental error resulting in
prejudice. See Henderson, 210 Ariz. at 567, ¶¶ 19-20.

¶35 The State argues Stallings’s statements to the trooper were not
testimonial “because they were given to the officer to avoid arrest” and
“were not created as a substitute for trial testimony.” We reject the State’s
argument. See State v. Parks, 213 Ariz. 412, 413, ¶¶ 6, 7 (App. 2006) (The
Confrontation Clause applied because “the purpose of the police officer’s
questioning . . . was to obtain information regarding a potential
crime . . . . [and] there were no exigent safety, security, or medical
concerns.”). That said, Fordson fails to meet his burden of establishing
fundamental error. See Escalante, 245 Ariz. at 142, ¶ 21 (“The defendant
bears the burden of persuasion at each step” of fundamental error review.).
Fordson claims the State improperly used the evidence to prove Fordson
had an accomplice. Because, as detailed above, the evidence did not
unfairly prejudice Fordson, the superior court did not commit reversible
error by admitting Stallings’s statements to the trooper.

CONCLUSION

¶36 We affirm.

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

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