State v. Olivas

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ASHLEIGH NOELLE OLIVAS, Appellant.

No. 1 CA-CR 23-0011
FILED 1-30-2024

Appeal from the Superior Court in Yavapai County
Nos. P1300CR202000228
P1300CR202000800
The Honorable Debra R. Phelan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.

B A I L E Y, Judge:

¶1 Ashleigh Noelle Olivas appeals her convictions and sentences
for possession of narcotic drugs, possession of dangerous drugs, and
possession of drug paraphernalia. For the following reasons, we affirm her
convictions and sentences in Yavapai County case no. P1300CR202000800.1

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
defendant’s convictions. State v. Thompson, 252 Ariz. 279, 287 n.3 (2022).

¶3 In May 2020, police obtained a search warrant for Olivas’
apartment. The search warrant affidavit said that between November 2019
and April 2020, information from three arrested persons, one overdose
victim, and two traffic stops led police to believe Olivas and her boyfriend,
J.W., were selling drugs out of their apartment.

¶4 The first arrested person said J.W. “was selling powder
Fentanyl, Heroin, and mimic M-30 pills out of his residence” and that J.W.
traveled to Phoenix to purchase drugs. The second arrested person said
that he or she bought fentanyl from J.W., J.W. was selling it out of his
“house,” identified the apartment’s address, and said J.W. drove a tan truck
with a sticker displaying J.W.’s last name on the back. The third arrested
person said he or she bought fentanyl from J.W. and Olivas, that J.W. sold
drugs out of his “home,” identified the apartment’s approximate location,
and said that Olivas assisted J.W. “in the sales of drugs such as Heroin,
Methamphetamine, Fentanyl, and Xanax from her BMW vehicle.”

1 Olivas also pled guilty to three charges in Yavapai County case no.
P1300CR202000228. The superior court sentenced Olivas for the -228
counts at the same time as the -800 counts and her notice of appeal lists both
cases. But defendants who plead guilty waive the right to a direct appeal
and must seek post-conviction relief, so this decision resolves only issues
relating to the -800 case. See Ariz. R. Crim. P. 17.1(e), 33.1.

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Similarly, the overdose victim said that he bought “[f]entanyl from a white
male subject” with J.W.’s first name.

¶5 During the first traffic stop, police identified J.W. and Olivas
and found drug paraphernalia inside the vehicle and Olivas’ purse. Olivas
“admitted her involvement in all paraphernalia located.” During the
second traffic stop, police identified J.W. as the vehicle’s passenger and
found foil with residue consistent with heroin inside the vehicle.

¶6 Olivas was at the apartment when the police served the search
warrant. Police found methamphetamine, heroin, fentanyl, drug
paraphernalia, and firearms inside the apartment. Police also found
documents listing the apartment as Olivas’ address and a debit card with
her name on it. When police interviewed Olivas, she admitted that she used
illicit drugs but denied selling them. Olivas also said that she knew J.W.
was selling drugs, people who could not reach J.W. sometimes contacted
her to discuss “quantity,” and she implied J.W. was supplying her with
drugs.

¶7 In July 2020, the State charged Olivas with possession of
narcotic drugs for sale (counts 1, 2, and 4), manufacture of narcotic drugs
(count 3), possession of dangerous drugs for sale (count 5), possession or
use of dangerous drugs (count 6), possession or use of marijuana (count 7),
possession of drug paraphernalia (counts 8–13), misconduct involving
weapons (counts 14–15 and 18–20), using a building for the sale or
manufacture of narcotic drugs (count 16), and theft (count 17). Upon
motion, the superior court dismissed counts 2, 6–10, 12–13, and 17–20.

¶8 Before trial, Olivas moved to suppress the evidence obtained
from the search warrant. The superior court held an evidentiary hearing
and denied the motion.

¶9 In September 2021, the jury acquitted Olivas of counts 3 and
14–16. The jury also acquitted Olivas of possession of narcotic drugs for
sale and possession of dangerous drugs for sale but found Olivas guilty of
the lesser-included offenses of possession of narcotic drugs (counts 1 and 4)
and possession of dangerous drugs (count 5). The jury also found Olivas
guilty of possession of drug paraphernalia (methamphetamine related)
(count 11). The superior court sentenced Olivas as a category three
repetitive offender to concurrent, mitigated prison terms of 6 years each for
counts 1, 4, and 5, and 2.25 years for count 11.

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¶10 We have jurisdiction over Olivas’ timely appeal under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. The superior court did not err in denying Olivas’ motion to suppress.

¶11 Olivas argues the superior court erred in denying her motion
to suppress because the search warrant affidavit did not establish probable
cause. We review the denial of a motion to suppress for an abuse of
discretion but review issues of law de novo. State v. Nissley, 241 Ariz. 327,
330, ¶ 9 (2017). “[W]e consider only the evidence presented at the
suppression hearing and view that evidence in a light most favorable to
upholding the court’s ruling.” State v. Lietzau, 248 Ariz. 576, 579, ¶ 8 (2020)
(citation omitted).

¶12 The Fourth Amendment to the United States Constitution
protects individuals from unreasonable searches and seizures, and
evidence seized in violation of its protection is generally excluded from
criminal trials.2 State v. Peoples, 240 Ariz. 244, 247, ¶¶ 8–9 (2016). Search
warrants must be supported by probable cause. State v. Sisco, 239 Ariz. 532,
535, ¶ 7 (2016). “The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances set
forth in the affidavit . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 238 (1983).

¶13 Olivas argues the search warrant affidavit was deficient
because it contained uncorroborated information and police “failed to
conduct any additional surveillance before applying for [the] warrant.” A
tip from one unreliable informant may be insufficient, but the corroboration
of details supports finding probable cause. See State v. Williams, 184 Ariz.
405, 406–07 (App. 1995); Gates, 462 U.S. at 241–43. See also United States v.
Yarbrough, 852 F.2d 1522, 1533 (9th Cir. 1988) (“Interlocking tips from
different confidential informants enhance the credibility of each.” (citation
omitted)).

¶14 Multiple sources corroborated the evidence here. Four
informants said J.W. and/or Olivas were connected to drug sales. Police

2 Olivas also cites Article 2, Section 8, of the Arizona Constitution, but she

does not develop it as a separate argument and has therefore waived it. See
State v. Sanchez, 200 Ariz. 163, 166, ¶ 8 (App. 2001).

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also conducted traffic stops that connected J.W. and Olivas to drug
paraphernalia. Finally, Olivas admitted her involvement in drug
paraphernalia, and, as the superior court acknowledged, one of the crimes
alleged in the affidavit was possession of drug paraphernalia.

¶15 Olivas also argues that the affidavit was insufficient because
it did not include the informants’ names, “whether they were reliable,
whether they were known to officers, whether promises were made in
return for the information or what charges they faced.” An informant’s
veracity, reliability, and basis of knowledge are “closely intertwined issues
that may usefully illuminate the commonsense, practical question whether
there is ‘probable cause.’” Gates, 462 U.S. at 230.

¶16 The affidavit was sufficient under the totality of
circumstances. Although the affiant detective testified the informants were
unreliable, he also testified that the police did not request the warrant until
“numerous” people provided corroborating information. Further, the
informants were not named, but they were not anonymous. The affiant
detective testified that the informants were different persons, showing the
police knew their identities. Also, the police arrested three of the
informants, and police presumably know the identities of the persons they
arrested. See Florida v. J.L., 529 U.S. 266, 270 (2000) (showing known
informants are considered more reliable than anonymous informants). The
information in the affidavit also connected the informants to drug sales,
which gave the issuing judge a basis to assess their reliability because the
court could infer that the informants may be facing drug-related charges,
yet still conclude that the information was reliable. See State v. McCall, 139
Ariz. 147, 156–57 (1983) (allowing a magistrate to draw reasonable
conclusions from the facts provided).

¶17 Here, three of the informants said they bought drugs from
J.W. and/or Olivas, so the basis for their knowledge was their personal
involvement in criminal activity. See United States v. Rowland, 464 F.3d 899,
908 (9th Cir. 2006) (stating tips are more reliable when informants reveal
the basis of their knowledge); State v. Coats, 165 Ariz. 154, 159 (App. 1990)
(stating a speaker’s personal observations of criminal conduct are
presumed to be reliable). Identifying who sold the drugs connected the
informants to drug sales. See State v. Edwards, 154 Ariz. 8, 12–13 (App. 1986)
(finding an informant was sufficiently trustworthy because providing the
information would not deflect all the blame and the informant would not
profit from lying); State v. Rodgers, 134 Ariz. 296, 301 (App. 1982) (indicating
statements made against a speaker’s interests lend credibility to her
assertions). And, even if the informants were promised lenity, that would

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not make their statements per se unreliable. See United States v. Soriano, 361
F.3d 494, 505 (9th Cir. 2004) (stating a promise of lenity does not make
information per se unreliable because the informant could not achieve his
goal by providing false information).

¶18 The totality of the circumstances supports the superior court’s
finding that probable cause supported the warrant. The court did not err
in denying the motion to suppress.

II. The superior court did not fundamentally err by failing to list the
lesser-included elements in the jury instructions separately.

¶19 Olivas argues the superior court fundamentally erred because
the jury instructions did not list the elements of possession of narcotic drugs
and possession of dangerous drugs. We review jury instructions de novo
to determine whether they correctly state the law. State v. Solis, 236 Ariz.
285, 286, ¶ 6 (App. 2014).

¶20 Olivas did not object to the instructions in the superior court,
so she must show fundamental error. State v. Escalante, 245 Ariz. 135, 140,
¶ 12 (2018). To prevail under fundamental error review, a defendant must
show: (1) the superior court erred, and (2) the error was fundamental —
meaning the error went to the foundation of the case, took from the
defendant a right essential to her defense, or was so egregious that she
could not possibly have received a fair trial. Id. at 142, ¶ 21. Under the first
or second prong, the defendant must also show prejudice, but if she shows
the error was so egregious that she could not possibly have received a fair
trial, prejudice is presumed. Id.

¶21 The jury instructions listed the elements of possession of
narcotic drugs for sale and possession of dangerous drugs for sale and
defined the terms narcotic drug, dangerous drug, possession, knowingly,
and sale. But the instructions did not separately list the possession of
narcotic drugs and possession of dangerous drugs elements.

¶22 “The failure to instruct the jury on an essential element of an
offense is error.” State v. Fullem, 185 Ariz. 134, 138 (App. 1995) (citation
omitted). Olivas requested instructions on the lesser-included offenses, and
she was convicted of those offenses. The State concedes that the “oversight
was arguably erroneous” but argues that Olivas has not shown that the
error was fundamental and prejudicial. We agree.

¶23 “A trial court has a duty to instruct on the law relating to the
facts of the case when the matter is vital to a proper consideration of the

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evidence, . . . and failure to do so constitutes fundamental error.” State v.
Johnson, 205 Ariz. 413, 417, ¶ 11 (App. 2003) (citation omitted). We “will not
reverse a jury verdict based on an erroneous instruction unless the
instructions, taken as a whole, could reasonably mislead a jury.” State v.
Rix, 536 P.3d 253, 266, ¶ 43 (Ariz. App. Aug. 29, 2023) (citation omitted).

¶24 The instructions listed the greater offenses’ elements and
clearly stated that possession of narcotic drugs and possession of dangerous
drugs were lesser-included offenses. The only difference between the
greater and lesser-included offenses is the “for sale” element. See A.R.S.
§§ 13-3407(A)(1)–(2), -3408(A)(1)–(2). And given that the titles of the greater
offenses are “possession of narcotic drugs for sale” and “possession of
dangerous drugs for sale” and the titles of the lesser-included offenses are
“possession of narcotic drugs” and “possession of dangerous drugs,” the
jury could have easily determined that the only difference is the “for sale”
element. See State v. Olivier, 1 CA-CR 22-0294, 2023 WL 2378451, at *3–4,
¶¶ 14–19 (Ariz. App. Mar. 7, 2023) (mem. decision) (finding no fundamental
error when the instructions listed the greater offense’s elements, but not the
lesser-included offense’s elements).

¶25 Nor does the record show the jury was confused or misled.
Jurors submitted various questions throughout the trial. But other than a
question about the difference in legal threshold amounts, which is
irrelevant here, jurors asked for no clarification on the difference between
the greater and lesser-included offenses. Thus, when read as a whole, the
instructions were not misleading.

¶26 Olivas also argues fundamental error occurred because “[t]he
jurors were not instructed that [Olivas] must have knowingly possessed the
drugs.” It is fundamental error not to instruct the jury on the applicable
mens rea. See State v. Kemper, 229 Ariz. 105, 106–07, ¶¶ 5–6 (App. 2011). But
that did not happen here.

¶27 A conviction for possession of narcotic drugs and possession
of dangerous drugs requires the offender to knowingly possess drugs.
A.R.S. §§ 13-3407(A)(1), -3408(A)(1). This is the same mens rea required for
the greater offenses. A.R.S. §§ 13-3407(A)(2), -3408(A)(2). As noted, the jury
was instructed on the greater offenses’ elements, and it could have easily
determined that to find Olivas guilty of possession, it must apply the
greater offenses’ elements, minus the “for sale” element. Further, the
instructions defined “possession” as “knowingly exercis[ing] dominion or
control over property” and correctly defined knowingly. See A.R.S. § 13-
105(10)(b). Thus, by looking at the greater offenses’ elements and the

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definition of possession, the jury could have concluded that to find Olivas
guilty of possession, it needed to find Olivas knowingly possessed the
drugs.

¶28 An error is also fundamental if it takes from the defendant an
“essential right” by depriving “the defendant of a constitutional or
statutory right necessary to establish a viable defense or rebut the
prosecution’s case.” Escalante, 245 Ariz. at 141, ¶ 19 (citations omitted). At
trial, Olivas argued that she never sold drugs and was merely present at the
apartment. Nothing in the record suggests the erroneous instructions
impacted Olivas’ ability to present this defense. The jury was also
instructed that “[g]uilt cannot be established by the defendant’s mere
presence at a crime scene, mere association with another person at a crime
scene or mere knowledge that a crime is being committed,” and this
instruction was not limited to the greater offenses. We presume the jury
followed the court’s instructions and did not convict Olivas based on her
mere presence at the crime scene. See State v. Gallardo, 225 Ariz. 560, 569,
¶ 40 (2010).

¶29 Even if Olivas could show fundamental error, she must also
show prejudice. Olivas argues she was prejudiced because “the jurors were
not properly instructed on the law.”

¶30 “To prove prejudice, [the defendant] must show that a
reasonable, properly instructed jury ‘could have reached a different
result.’” State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (citation
omitted). A defendant must “affirmatively ‘prove prejudice’ and may not
rely upon ‘speculation’ to carry [her] burden.” Id. (citation omitted).
“Given the defendant’s heavy burden to prove prejudice, it ‘is the rare case
in which an improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial court.’” State v.
Fierro, 254 Ariz. 35, 42, ¶ 24 (2022) (citations omitted).

¶31 Olivas’ convictions for drug possession required finding: (1)
Olivas knowingly possessed the substances, and (2) the substances were
heroin, methamphetamine, and fentanyl. See A.R.S. §§ 13-3407(A)(1),
-3408(A)(1). Olivas did not argue that the substances found at her
apartment were not methamphetamine, heroin, and fentanyl. Instead, she
argued that the State could not prove she knowingly possessed the drugs.

¶32 Olivas was at the apartment when the police served the
warrant, and the police found documents listing the apartment as her
address. Olivas admitted she used illicit drugs, and she knew J.W. was

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selling drugs. Olivas also implied that J.W. supplied her with drugs, which
supports finding Olivas knowingly possessed the drugs found in the
apartment. And, nothing in the record suggests the jury could have reached
a different result had the lesser-included instruction been given.

¶33 Finally, Olivas argues she was prejudiced because “the jurors
were . . . only told they could consider the charge of possession of a drug if
they were unable to reach a verdict on the original charge or unable to reach
a unanimous verdict.” Olivas appears to be arguing the jury convicted her
of the lesser-included possession charges simply because it acquitted her of
the greater offenses. But count 3 also had a lesser-included offense, and the
lesser-included offense’s elements were not listed in the instructions, and
the jury acquitted Olivas of count 3’s greater and lesser-included offenses.
This refutes Olivas’ argument that the jury convicted her of the other lesser-
included offenses only because it acquitted her of the greater offenses.

¶34 Thus, the superior court did not fundamentally err by failing
to list the lesser-included elements in the jury instructions separately.

CONCLUSION

¶35 We affirm Olivas’ convictions and sentences in Yavapai
County case no. P1300CR202000800.

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

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