Appeal from the Superior Court in Pima County No. CR20132689002 The Honorable Richard D. Nichols, Judge
Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee.
Harriette P. Levitt, Tucson Counsel for Appellant.
Judge Miller authored the opinion of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.
¶1 After a jury trial, appellant Arthur Wright was convicted of two counts of possession of a narcotic drug for sale and one count of possession of drug paraphernalia, and sentenced to concurrent prison terms of 10.5 years for the first two charges and 2.25 years for the paraphernalia offense. Wright argues the trial court erred by admitting into evidence a redacted audio recording made by police officers during the undercover operation leading to his arrest. Finding no abuse of discretion, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Nelson, 214 Ariz. 196, ¶ 2, 150 P.3d 769, 769 (App. 2007). In June 2013, Tucson Police Officer J.D. was working undercover as part of a drug interdiction team that focused on street sales of narcotics. He approached a man near a convenience store who was later identified as Wright's co-defendant, Richard Davis. J.D. asked if Davis could help him buy methamphetamine and Davis said he could. Davis climbed into J.D.'s unmarked truck. The truck had a one-way radio transmitter and digital audio recorder hidden inside it. Other police officers were listening to everything that was happening in the truck through the one-way radio and were prepared to move in if they believed J.D. was in danger.
¶3 J.D. gave Davis two $20 bills-one as his payment and the other to use to buy the methamphetamine. He testified they also talked about "possibly partying that night, " and stated he had offered Davis a hotel room for the evening. Davis made a telephone call using J.D.'s cell phone and then directed J.D. to an apartment, but when they arrived Davis was unable to obtain methamphetamine.
¶4 Davis then directed J.D. to drive to a particular gas station. Davis got out of the truck and went into the gas station's convenience store. Shortly thereafter, a car pulled into the parking space immediately adjacent to J.D.'s truck. A man later identified as Wright was in the passenger seat of that car. The driver of the car called J.D. on his cell phone. J.D. explained to the driver of the car that Davis was inside the store and would be out shortly. Davis came out of the store and got into the driver's-side rear seat of the car. J.D. saw Wright reach down under his seat, and then "do something back and forth" with Davis.
¶5 Davis got back in J.D.'s truck, showed him a baggie that contained what appeared to be methamphetamine, and said, "See, I got it." When J.D. realized Davis planned to hold onto the baggie until J.D. had booked the hotel room they had talked about, he made a prearranged arrest signal so other officers would stop the car. They did so and arrested Davis.
¶6 Another Tucson Police officer stopped the car in which Wright was riding as a passenger. As the officer approached the car, he saw Wright trying to conceal something between the center console and the seat. It turned out to be a digital scale. As the officer removed Wright from the car, the officer saw six small baggies on the passenger seat where Wright had been sitting. Two of the baggies contained crack cocaine; the other four contained heroin.
¶7 At trial, a redacted version of the audio recording from J.D.'s truck was admitted into evidence over Wright's objection as Exhibit 49. Wright was convicted and sentenced as described above and now appeals. We have jurisdiction ...