State v. Vanheemskerck

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BETTY MARIE VANHEEMSKERCK, Appellant.

No. 1 CA-CR 24-0518
FILED 12-03-2025

Appeal from the Superior Court in Mohave County
No. S8015CR202300376
The Honorable Billy K. Sipe, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Madeline Shupe
Counsel for Appellee

Jill L. Evans, Flagstaff
Counsel for Appellant
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MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Vice Chief Judge David D. Weinzweig and Judge Cynthia J. Bailey
joined.

P E R K I N S, Judge:

¶1 Betty Marie Vanheemskerck appeals from her conviction for
one count of conspiracy to possess dangerous drugs for sale. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 A joint state and federal law enforcement task force
investigated drug trafficking in Mohave County in 2021 and 2022. In the fall
of 2022, the task force began tracking the phone location data of some
targets and used a court-authorized wiretap to monitor the
communications of multiple phone lines. All wiretaps concluded by the end
of November 2022.

¶3 Law enforcement monitored the wiretaps from a secure
location, observing strict security protocols to protect the information. And
law enforcement controlled access to the location, computer systems used
for monitoring, and the special software that recorded the conversations.
Professional linguists monitored the calls in real time and created summary
translations for Spanish-language conversations. Those linguists were
subject to ongoing side-by-side training with more experienced linguists
and work-product quality control in the form of spot-checks and inspection
by supervisors. The recordings could not be modified. At the end of a
wiretap, the recordings were sealed and copies provided to the court and
the prosecution.

¶4 The wiretaps generated thousands of records of calls and text
messages. Among them were communications between Sean McCarthy,
whose phone was tapped, and someone he called “Miss Betty” or “Betty.”
The intercepted calls and messages contained coded language that law
enforcement associated with the procurement of drugs for sale. They also
captured arrangements for subsequent meetings between the two.

¶5 Based on the information obtained from the wiretap, the
investigators visited Vanheemskerck at her house in January 2023. She was

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given Miranda warnings and told that the task force had built a case against
her. During the meeting, Vanheemskerck both denied and admitted that
she “middled” drug deals for McCarthy—buying drugs from him and
selling them to others. The State indicted Vanheemskerck and 12 others on
a variety of drug trafficking charges. The other defendants entered plea
agreements, and Vanheemskerck stood trial alone.

¶6 At trial, multiple law enforcement officers testified to the
common meaning of the code words used by Vanheemskerck and the
co-conspirators. After the prosecution rested, Vanheemskerck moved for
directed verdict on all four counts charged. The superior court granted the
motion in large part and dismissed all counts except conspiracy to possess
dangerous drugs for sale. See Ariz. R. Crim. P. 20. The jury found
Vanheemskerck guilty and found two aggravators. The court then imposed
a 15-year aggravated sentence.

¶7 Vanheemskerck timely appealed, and we have jurisdiction.
A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A)(1).

DISCUSSION

¶8 Vanheemskerck challenges the sufficiency of the evidence,
the court’s jury instructions, the constitutionality of the trial proceedings,
and her sentence.

I. Sufficiency of the Evidence

¶9 Vanheemskerck claims the evidence was insufficient for the
jury to find her guilty of conspiracy to possess dangerous drugs for sale.
We review the sufficiency of evidence de novo. State v. West, 226 Ariz. 559,
562, ¶ 15 (2011). We will not reweigh the evidence but view it in the light
most favorable to sustaining the conviction and draw all reasonable
inferences against the defendant. State v. Lee, 189 Ariz. 608, 615 (1997). The
record must contain substantial evidence, which is proof that a reasonable
person could accept as enough to establish guilt beyond a reasonable doubt.
West, 226 Ariz. at 562, ¶ 16. The court may consider both direct and
circumstantial evidence. Id.

¶10 Conspiracy to possess dangerous drugs for sale requires that
the defendant (1) with intent to promote or aid the possession of dangerous
drugs for sale, (2) agrees with one or more persons that at least one of them
or another person would possess dangerous drugs for sale, and (3) one of
the parties commits an overt act in furtherance of the offense. See A.R.S.
§§ 13-1003(A), -3407(A)(7). Methamphetamine is a dangerous drug. A.R.S.

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§ 13-3401(6)(c)(xxxviii). The statutory threshold amount for sale is nine
grams. A.R.S. § 13-3401(36)(d).

¶11 The jury heard ample evidence to support its verdict. The
wiretap of McCarthy’s phone calls and text messages revealed his
discussions about drug purchases with “Betty.” Vanheemskerck confirmed
that McCarthy called her Betty and that her phone number matched the one
used by McCarthy’s Betty. During these communications, Vanheemskerck
used coded language to ask McCarthy whether he had drugs for sale before
negotiating the sale price and quantity. Law enforcement officers testified,
based on their experience and training, that the coded language was
consistent with negotiations for the sale of drugs in amounts greater than
the threshold amount for sale and inconsistent with purchases for personal
use. McCarthy’s phone location data, his communications with
Vanheemskerck, and Vanheemskerck’s own statements to law enforcement
confirmed that both traveled to an apartment complex on October 14, 2022,
to meet and complete their agreed-upon transaction. This evidence showed
Vanheemskerck undertook overt actions in furtherance of the conspiracy.

¶12 Substantial evidence supports the conspiracy conviction.

II. Challenges Based on the Nature of the Conspiracy

¶13 Vanheemskerck raises additional arguments based on her
claim that the evidence pointed to the existence of multiple conspiracies—
one main conspiracy that encompassed the drug-trafficking activities of all
other co-conspirators, and a separate one between only Vanheemskerck
and McCarthy.

¶14 Even if Vanheemskerck had correctly identified a separate
conspiracy, it would not have changed the outcome. A person guilty of
conspiracy that “knows or has reason to know” that the person she
conspires with has conspired with others to commit the same offense “is
guilty of [conspiracy] with such other person or persons, whether or not
[she] knows their identity.” A.R.S. § 13-1003(B). The record has substantial
evidence of Vanheemskerck and McCarthy discussing drug sales on more
than one occasion, and she knew he had access to drugs. Whether
Vanheemskerck directly communicated with or knew the names of
McCarthy’s suppliers is irrelevant.

A. Wharton’s Rule

¶15 Vanheemskerck claims that Wharton’s Rule bars her
conviction because even if the evidence supports a conspiracy with

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McCarthy, it does not support that she conspired with anyone else to assist
in the offense. She argues the court erred by failing to offer a Wharton’s
instruction. Because Vanheemskerck did not raise this issue at trial, we
review for fundamental error. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12
(2018).

¶16 Wharton’s Rule prohibits a defendant from being convicted
of a conspiracy to commit a crime if the conspiracy merges with the
substantive crime, meaning it can only be committed by the concerted
efforts of the same two people who entered into the initial agreement. State
v. Barragan-Sierra, 219 Ariz. 276, 284, ¶ 23 (App. 2008). But the rule does not
apply when the agreement extends beyond the initial two parties. State v.
Chitwood, 73 Ariz. 161, 166 (1951).

¶17 Wharton’s Rule does not apply here because the evidence
showed more than two people were involved in the conspiracy. The State
charged Vanheemskerck with the overall conspiracy and offered
substantial evidence of her role as one of many participants in the drug
trafficking scheme.

B. Multiple Conspiracies Instruction

¶18 Vanheemskerck claims the superior court should have
offered a multiple-conspiracies jury instruction because the trial evidence
supported only a “minor conspiracy” with McCarthy that was separate
from the overall conspiracy charged. Vanheemskerck did not request the
instruction at trial, so we review for fundamental error. See Escalante, 245
Ariz. at 140, ¶ 12.

¶19 A multiple-conspiracies jury instruction aims to avoid
prejudice when the indictment charges one overall conspiracy, but the trial
evidence shows multiple independent conspiracies. See State v. Neese, 126 Ariz. 499, 504 (1980) (explaining the prejudicial effect of such
"variance"). Differences between the charging document and trial evidence
are grounds for reversal only when they affect the defendant’s substantial
rights. Id.

¶20 Separate agreements to sell drugs can establish the factual
bases for multiple conspiracies. See State v. Gaydas, 159 Ariz. 277, 278–279
(App. 1988). But “[a] person who conspires to commit a number of offenses
is guilty of only one conspiracy if the multiple offenses are the object of the
same agreement or relationship.” A.R.S. § 13-1003(C). To determine
whether the evidence established one overall conspiracy or multiple
conspiracies, we consider (1) “the existence of a common goal,” (2) “the

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nature of the scheme,” and (3) “an overlapping of participants in the
various dealings.” Neese, 126 Ariz. at 504.

¶21 Vanheemskerck coordinated drug purchases for profit with
McCarthy. She shared that common goal with McCarthy and the other
co-conspirators. And the organizational scheme was typical: different
people had access to different drug quantities, often operating without
communicating with or even being aware of the identity of other
participants. While McCarthy was the overlapping participant linking
Vanheemskerck to the overall conspiracy, all co-conspirators overlapped as
participants in the same sales network. And whether Vanheemskerck’s
multiple drug orders placed on different days constituted multiple offenses
that were the object of the same relationship was a question of fact for the
jury. See Gaydas, 159 Ariz. at 279; A.R.S. § 13-1003(C). We defer to the jury’s
findings that the evidence was consistent with the overall conspiracy. The
court did not err by failing to instruct the jury on multiple conspiracies.

C. Special Verdict Form to Elect Conspiracy

¶22 Vanheemskerck claims the State offered evidence of multiple
offenses under the same count, and thus the court should have provided a
verdict form asking the jury to elect which conspiracy applied. She argues
that failing to do so deprived her of the right to a unanimous jury verdict.
But she did not request a special verdict form at trial, so we review for
fundamental error. See Escalante, 245 Ariz. at 140, ¶ 12.

¶23 Vanheemskerck’s argument again hinges on finding separate
conspiracies, based on the introduction of multiple acts to prove one charge.
But the court has no obligation to provide instructions (or forms) when the
separate acts are part of a single criminal transaction. State v. Klokic, 219
Ariz. 241, 244, ¶¶ 14–15 (App. 2008). Here, we again defer to the jury’s
findings that the evidence was consistent with one overall conspiracy. The
court did not err by not providing a special verdict form sua sponte.

III. Alleged Constitutional Violations

¶24 Vanheemskerck argues that by allowing a substitute expert
witness to testify about the accuracy of the Spanish-English translation
summaries of McCarthy’s phone calls and text messages, and by admitting
those calls and summaries, the court violated her constitutional right to
confrontation. And she claims related violations of her rights to due
process, to a fair trial, and to prepare and present a complete defense.

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¶25 Vanheemskerck did not object on Confrontation Clause
grounds, although she repeatedly raised hearsay objections. But hearsay
objections do not preserve Confrontation Clause claims for appeal. State v.
Fordson, 258 Ariz. 167, 171, ¶ 34 (App. 2024). We review Vanheemskerck’s
confrontation claim for fundamental error. Escalante, 245 Ariz. at 140, ¶ 12.

¶26 The Confrontation Clause prevents the prosecution from
introducing testimonial statements by an unavailable declarant that the
defendant did not previously cross-examine. Ohio v. Clark, 576 U.S. 237, 243
(2015). But the clause only applies to statements that are both hearsay and
testimonial. Smith v. Arizona, 602 U.S. 779, 800 (2024).

¶27 The principal evidence of conspiracy offered here consisted of
recorded calls and text messages. All such calls and messages involved
statements by co-conspirators “during and in furtherance of the
conspiracy,” meaning they are, by rule, not hearsay. Ariz. R. Evid.
801(d)(2)(E). Beyond that, the statements were not offered to prove the truth
of the matters asserted in them (i.e., the accuracy of each detail of each
transaction). Rather, the State relied on them as circumstantial evidence to
prove the overall conspiracy existed. See State v. Chavez, 225 Ariz. 442, 444,
¶ 9 (App. 2010). And the statements were not testimonial because those
making the original statements were unaware of the recording and the
statements were not “procured with a primary purpose of creating an
out-of-court substitute for trial testimony.” Michigan v. Bryant, 562 U.S. 344,
358 (2011).

¶28 As non-hearsay, non-testimonial statements, the calls and
texts themselves did not implicate the Confrontation Clause.

¶29 Vanheemskerck argues the court nonetheless violated the
Confrontation Clause and other constitutional rights by allowing the
substitute expert to testify about the calls and texts, and the related
translation summaries of those communications. She notes that no verbatim
transcripts were provided, the original translators were unavailable to
testify to their summaries, and the testifying expert’s independent review
of the original calls occurred mid-trial.

¶30 To the extent that Vanheemskerck argues that the testifying
expert injected a layer of hearsay by way of her testimony about the
co-conspirators’ statements, we disagree. Some jurisdictions apply the
“language conduit theory” in circumstances like these, which rejects the
argument that a translator is a separate declarant, and thus injects hearsay
by testifying about translated statements. In other words, under this theory,

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a reliable translator is merely a conduit of the statements at issue. See United
States v. Romo-Chavez, 681 F.3d 955, 960–61 (9th Cir. 2012) (applying factors
to establish translator’s reliability). But even in jurisdictions that treat a
translator as a separate declarant, there is no Confrontation Clause concern
when the testifying translator conducted an independent evaluation of the
translations and is subject to cross-examination. See, e.g., United States v.
Curbelo, 726 F.3d 1260, 1274–75 (11th Cir. 2013).

¶31 The testifying supervisor here explained at length her own
background, training, and experience. She testified extensively to the
linguists’ process of recording calls and texts and generating relevant
summaries, and confirmed that she conducted an independent review of
the recorded calls, texts, and their corresponding summaries. And she was
subject to cross-examination on that testimony by Vanheemskerck’s
counsel. We discern no confrontation clause concern.

¶32 Vanheemskerck’s remaining constitutional arguments rest on
the unavailability of the original translators who created the summaries and
the court’s ruling allowing the testifying expert to develop foundation for
her testimony mid-trial by conducting an independent review of the calls
and texts at issue. We note that the court redacted the summaries to remove
all non-translation information provided by anyone other than the
testifying expert, so neither the expert nor the evidence included potential
hearsay by incorporating commentary from unavailable translators. This
ameliorated any concerns from the unavailability of the initial translators.

¶33 We are similarly not persuaded that the court erred by
allowing the expert to conduct her independent review of the
communications during trial. Vanheemskerck claims this impaired her
ability to engage a responsive expert. But she does not contend she lacked
pre-trial access to the evidence from which the expert testified, or that the
expert’s testimony confirming the accuracy of that evidence was a surprise.
Even if the court’s ruling was error, we discern no prejudice.

IV. Mitigating Circumstances

¶34 Vanheemskerck claims that because she played only a minor
role in the conspiracy, the superior court should have considered this a
mitigating factor, and not imposed an unfair, higher sentence than that of
her co-defendants.

¶35 The trial court has broad discretion to sentence defendants
within statutory limits, so we review the sentence for abuse of discretion.
State v. Fillmore, 187 Ariz. 174, 184 (App. 1996). We may find such abuse

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when the sentencing decision was arbitrary or capricious or the court failed
to adequately investigate the relevant facts. Id. at 184–185.

¶36 The court must consider all mitigating evidence presented but
is under no obligation to agree that it warrants mitigation. State v. Long, 207
Ariz. 140, 148, ¶ 41 (App. 2004).

¶37 Here, the court explicitly considered both the aggravating
circumstances found by the jury and the mitigating circumstances offered
by Vanheemskerck. See State v. Leslie, 147 Ariz. 38, 50 (1985) (encouraging
trial courts to state factors on the record along with reasons for accepting or
rejecting them). The court then rejected Vanheemskerck’s claim of her
purported minor role, finding the evidence strongly suggested she was part
of a larger operation that trafficked drugs into Mohave County. She
solicited multiple ounces of methamphetamine—quantities far exceeding
the quarter or half gram for individual use—and admitted to later reselling
them, which supported that conclusion. The court thus properly exercised
its discretion in declining to find mitigation.

¶38 Vanheemskerck also claims the sentence was improper
relative to the other co-defendants. But a disparity in sentencing between
co-defendants is mitigating only absent a reasonable explanation. State v.
Ellison, 213 Ariz. 116, 140 (2006). Here, the court properly considered the
two aggravating factors found by the jury and Vanheemskerck’s historic
prior felony conviction for drug sales. See A.R.S. § 13-701(D)(27) (allowing
the court to consider any other factor relevant to defendant’s character,
background, or the nature or circumstances of the crime). Both subjected
Vanheemskerck to a higher sentencing range. The other co-defendants’ plea
agreements made them eligible for reduced sentencing ranges. The
disparity was reasonable.

CONCLUSION

¶39 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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