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State v. Jean

Court of Appeals of Arizona, First Division

June 21, 2016

STATE OF ARIZONA, Appellee,
v.
EMILIO JEAN, Appellant.

         Appeal from the Superior Court in Coconino County No. S0300CR201200246 The Honorable Cathleen Brown Nichols, Judge

          Arizona Attorney General's Office, Phoenix By Terry M. Crist, III Counsel for Appellee

          Coconino County Public Defender's Office, Flagstaff By Brad Bransky Counsel for Appellant

          Judge Patricia A. Orozco delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.

          OPINION

          OROZCO, Judge:

         ¶1 Emilio Jean appeals his convictions and sentences for money laundering, conspiracy to commit money laundering and transportation of marijuana, transportation of marijuana for sale in an amount over two pounds and illegally conducting an enterprise. Jean argues the trial court erred when it: admitted evidence of other acts, denied his motion to suppress evidence based on lack of standing to challenge a warrantless global positioning system (GPS) device and denied his motion for mistrial. For the reasons that follow, we affirm Jean's convictions and sentences.

         FACTS[1] AND PROCEDURAL HISTORY

         ¶2 Arizona Department of Public Safety (DPS) officers placed a GPS tracking device on a commercial truck in 2010 because they suspected the truck and its attached trailer were involved in criminal activity. The officers did not, however, obtain a warrant before they placed the device on the truck. Two days later, at the request of investigators who were tracking the truck, a DPS officer stopped the truck as it traveled eastbound on Interstate 40. When the officer stopped the truck, the truck's owner was in the driver's seat and Jean was in the sleeper berth. Jean claimed he was simply a driver-in-training. A search of the trailer revealed ninety-five bales of marijuana weighing a total of 2140 pounds.

         ¶3 A jury found Jean guilty. The trial court sentenced him to concurrent terms of ten years' imprisonment for conspiracy and transportation of marijuana for sale and placed him on five years' probation for illegally conducting an enterprise and money laundering. Jean timely appealed. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A, 13-4031 and -4033.A (West 2016).[2]

         DISCUSSION

         I. Admission of Evidence of Other Acts

         ¶4 Jean argues the trial court erred when it granted the State's motion to admit evidence pursuant to Arizona Rule of Evidence 404(b). Jean argues the State failed to prove by clear and convincing evidence that he committed the prior act, the prior act was too remote to the charged offenses to be relevant, and any probative value was substantially outweighed by the danger of unfair prejudice. We review admission of evidence pursuant to Rule 404(b) for abuse of discretion. State v. Van Adams, 194 Ariz. 408, 415, ¶ 20 (1999).

         ¶5 The State filed a notice of its intent to offer evidence of other acts, to which Jean objected. At a pretrial hearing, the State introduced the testimony of a Missouri State Highway Patrol Officer who arrested Jean in Missouri in 1999. The officer testified that in 1999, he performed safety inspections of commercial trucks at a weigh station as part of his "criminal interdiction" assignment. During a routine inspection of a truck and the associated paperwork, the officer noted various factors that suggested drug smuggling, including irregularities with the drivers' log books, air fresheners and multiple cell phones.[3] The officer found three people in the truck with Jean in the sleeper berth. Another passenger claimed to be a driver-in-training, yet the log books showed he had done very little driving. The driver consented to a search after a drug detection dog alerted to the trailer. The search revealed 1774 pounds of bundled marijuana. The primary driver claimed Jean was the person who monitored the loading of the trailer. The officer arrested all three individuals, including Jean, but no one was prosecuted.

         ¶6 The trial court held it would admit the Missouri incident as evidence of other acts, stating the evidence was relevant to show Jean's knowledge. The court also stated that the State proved by clear and convincing evidence both that the prior incident occurred and Jean was involved as a participant in the activity, not merely present. The trial court found the similarities between the two events "quite striking" and stated that "the Missouri incident really mirrors in almost every respect the incident in this case." Jean was in the sleeper berth during both stops. Both involved similarly large quantities of marijuana in the trailer of a large commercial truck. There were similar concerns with the drivers' log books. Both stops involved trucks seemingly owned by small trucking companies that were having empty trucks drive long distances to pick up cargo, which made no economic sense. Additionally, the court found it "compelling" that there was evidence Jean supervised the loading of the trailer in the Missouri incident. The court acknowledged eleven years had passed since the Missouri incident, but held that went to the weight of the ...


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