Court of Appeals of Arizona, Second Division, Department A
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY Cause No. CR201100618 Honorable Wallace R. Hoggatt, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Kathryn A. Damstra Tucson Attorneys for Appellee
Joel A. Larson, Cochise County Legal Defender Bisbee Attorney for Appellant
GARYE L. VÁSQUEZ, Presiding Judge
¶1 Following a jury trial, James Flores was convicted of possession of methamphetamine and possession of drug paraphernalia. The trial court suspended the imposition of sentence and placed him on concurrent terms of probation, the longest of which was four years. On appeal, Flores argues the court erred by allowing the state to elicit improper drug-profile testimony and expert opinion on the issue of guilt or innocence, and by failing sua sponte to declare a mistrial or provide curative jury instructions based on that evidence. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Flores's convictions. See State v. Abdi, 226 Ariz. 361, ¶ 2, 248 P.3d 209, 211 (App. 2011). On February 18, 2011, Corporal Michael Mitchell of the Sierra Vista Police Department stopped a vehicle being driven by Flores at a "very high rate of speed in [a] residential area" where the posted speed limit was twenty-five miles per hour. During the encounter, Flores appeared "extremely nervous, " his hands shook "tremendously, " and his chest "heav[ed] up and down." Upon verifying the vehicle was not registered to Flores, Mitchell asked for the name of the vehicle's owner. Flores gave the name of a friend, "Manny, " which differed from the name on the vehicle's registration. When Mitchell repeated the question, Flores responded that the vehicle belonged to a friend, but "he didn't know his name." Mitchell noticed that Flores "kept looking over at [his] passenger . . . for maybe a little help from him to figure out who the owner was."
¶3 After observing Flores's "hands go toward his stomach, up underneath his shirt, " Mitchell asked him to "step out of the vehicle for [officer] safety and to investigate further." Flores complied and also consented to a search of his person. Mitchell found a "small plastic baggie" containing a "crystal substance" he believed to be methamphetamine in Flores's front pants' pocket. Mitchell placed Flores under arrest.
¶4 Flores was charged by indictment with one count each of possession of methamphetamine and possession of drug paraphernalia. The jury found him guilty as charged. He was placed on probation as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion Improper Testimony
¶5 Flores contends the trial court erred by admitting "impermissible [drug] profile testimony" and "expert opinion evidence on the issue of [his] guilt or innocence." He acknowledges that because he did not contemporaneously object to this testimony at trial, we review solely for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). Fundamental error goes to the foundation of the case, takes away a right essential to the defense, and is of such magnitude that the defendant could not possibly have received a fair trial. Id. ¶ 19. Flores has the burden to show both that the error was fundamental and that it caused him prejudice. See id ¶¶ 19-20.
A. Profile Evidence
¶6 During direct examination, Mitchell gave a detailed description of his law enforcement experience, which included extensive training and experience as a narcotics agent and drug interdiction officer. He then testified about his encounter with Flores, describing Flores as "extremely nervous" to the extent that "[h]is hands were shaking very tremendously, and his chest was heaving up and down as [Mitchell] was speaking to him." He stated that when he asked Flores who owned the vehicle, Flores was unable to give a name that matched the registered owner and kept looking at ...