Court of Appeals of Arizona, First Division, Department A
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County Cause No. S8015CR201101264 The Honorable Derek C. Carlisle, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General By Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee
David Goldberg, Attorney at Law, By David Goldberg Attorney for Appellant
MICHAEL J. BROWN, Judge
¶1 Juan Carlos Perez-Contreras appeals his convictions and sentences for possession of dangerous drugs for sale, possession of drug paraphernalia, and resisting arrest. For the reasons set forth below, we affirm.
¶2 In November 2011, a Bullhead City Police officer (Holdway) received a phone call from a narcotics detective in Nevada indicating that an inmate there wanted to speak with Holdway. Upon arriving at the police station in Laughlin, Holdway learned that the inmate was Bob Garcia, who Holdway knew from previous investigations. Garcia told Holdway he could "help [him] out" and offered to call a friend of his named Carlos to order methamphetamine ("meth"). Holdway asked Garcia if he had ever purchased narcotics from Carlos, and Garcia stated that he had and that he usually purchased four ounces of meth at a time. Holdway then asked Garcia to call Carlos and order the meth, but Garcia said he usually only communicated with Carlos by text message. Garcia then sent Carlos a text message asking, "Can you bring me 4 to my place?" Carlos replied by asking "what time" he should bring the narcotics and Garcia replied "Bring me 4 at 5 at my place."
¶3 After Garcia received the text message from Carlos, Holdway and Garcia discussed how Carlos would usually deliver the meth. While Holdway and Garcia were speaking, Garcia's phone rang. Garcia answered and Holdway overheard the brief conversation between Garcia and an unidentified male with a Hispanic accent. Holdway heard the unidentified male ask Garcia what time he needed to be at Garcia's house. After the call, Garcia gave Holdway a physical description of Carlos, indicating that he was "going to be short and skinny, that he was a Hispanic male, and that he had a dark complexion." Garcia also told Holdway that when Carlos arrived at his house to deliver the narcotics, he would be driving "an older, junky, white minivan." At that point, Holdway ended his conversation with Garcia and returned to Bullhead City to begin the investigation.
¶4 Holdway and another officer (Harris) proceeded to Garcia's home. At approximately 5:00 p.m., Holdway observed a white minivan park across the street from Garcia's house. A hispanic male exited the vehicle, and Holdway immediately recognized Carlos ("Defendant") based on previous police contact Holdway had with him. Holdway saw Defendant approach Garcia's house and noticed that he had a "tennis ball or racquetball size white object in his right hand." Holdway then exited his vehicle and attempted to apprehend Defendant but Defendant fled on foot. Holdway maintained visual contact with Defendant except for a brief period when Holdway encountered a pit bull dog in one of the yards. After crossing through several yards and climbing over fences, Holdway eventually caught Defendant. An initial search revealed that Defendant was no longer carrying the object that Holdway had observed prior to the chase. After searching the area that evening, no drugs were discovered. However, the following morning a different officer discovered two packages containing approximately four ounces of methamphetamine on the roof of a house near the area where Holdway said he momentarily lost sight of Defendant during the chase.
¶5 A grand jury indicted Defendant on (Count 1) possession of dangerous drugs for sale, (Count 2) possession of drug paraphernalia, (Count 3) burglary in the third degree, (Count 4) resisting arrest, and (Count 5) aggravated assault. A jury found Defendant guilty on Counts 1, 2, and 4, but the court granted his motion for acquittal on Count 3 and the jury found him not guilty on Count 5. The trial court sentenced Defendant to a term of 8 years' imprisonment for Count 1, and a concurrent term of 6 months' imprisonment for Count 2. The court also sentenced Defendant to a term of 6 months' imprisonment on Count 4 to be served consecutively to the sentence for Count 1. Defendant timely appealed and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (2013).
¶6 Defendant argues that because Garcia did not testify at trial, his conviction and sentence for possession of a dangerous drug for sale must be vacated because the only evidence supporting that conviction was inadmissible hearsay that violated his rights under the Confrontation Clause. He concedes, however, that he did not object to the admission of Garcia's statements through Holdway and thus we review this issue for fundamental error only. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) ("Fundamental error review . . . applies when a defendant fails to object to alleged trial error."); State v. Boggs, 218 Ariz. 325, 333, ¶ 31, 185 P.3d 111, 119 (2008) (finding that where a defendant fails to raise a Confrontation Clause objection below, we review for fundamental error). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." Id. at ¶ 19 (internal quotations omitted).
¶7 "The Confrontation Clause prohibits the admission of testimonial hearsay unless (1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant." State v. Armstrong, 218 Ariz. 451, 460, ¶ 32, 189 P.3d 378, 387 (2008) (internal citation and quotation omitted). In this case, even assuming that the admission of Holdway's testimony regarding statements made by Garcia constitutes fundamental ...