Opinion
No. 1 CA-CR 18-0860
04-20-2021
STATE OF ARIZONA, Appellee, v. NIGEL MARLON RODERICK, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michelle L. Hogan Counsel for Appellee The Nolan Law Firm PLLC, Mesa By Thomas D. Taylor Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2015-132849-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee The Nolan Law Firm PLLC, Mesa
By Thomas D. Taylor
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Cynthia J. Bailey joined. CATTANI, Judge:
¶1 Nigel Marlon Roderick appeals his conviction and sentence for sale or transportation of marijuana. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 On July 15, 2015, State Highway Patrol Officer Fuentes was parked along Highway 60 near Wickenburg when he saw Roderick driving in his direction. The officer noticed Roderick abruptly decelerate and attempt to hide from view by slouching behind the center pillar separating the front and rear car doors. The officer pulled out and followed Roderick, eventually stopping him for driving too closely to a car in front of him and exceeding the speed limit.
¶3 Roderick handed the officer a New York driver's license and the car's rental agreement. Roderick stated that he did not know who had rented the car and needed to make a phone call to find out the renter's name. Once he made the call, he said the car had been rented by "Jackie." The rental agreement showed that "Jacquolynn Bolton" had rented the car the day before in Las Vegas. Officer Fuentes told Roderick he was going to give him a warning instead of a citation, but the officer noticed that Roderick remained "very nervous" and exhibited facial twitches, irregular breathing, and shaky hands.
¶4 Officer Fuentes then asked Roderick for permission to search the car, and Roderick consented. Inside the trunk, the officer noticed a strong scent of acetone, which is often used as a masking agent to hide the smell of drugs, and he found a large plastic bag that contained two tightly wrapped packages. The officer detained Roderick and searched the wrapped packages, which were ultimately determined to contain over 25 pounds of marijuana.
¶5 After being advised of his Miranda rights, Roderick told Officer Fuentes he had traveled to Phoenix with a person named "Tony" in a "silver Accord." He did not know Tony's last name and was unsure if Tony was the person's real name. In a later interview with a detective, Roderick said he had traveled to Phoenix in a "white Infiniti" with "Novo Wilson."
Miranda v. Arizona, 384 U.S. 436 (1966).
¶6 Officer Fuentes also searched Roderick's wallet and found several shipping receipts for packages recently shipped from Las Vegas. Further investigation revealed that none of the recipient names on the receipts matched those associated with the listed addresses.
¶7 The State charged Roderick with sale or transportation of marijuana, a class 2 felony. Before trial, Roderick filed a motion to suppress evidence seized from the car, asserting that Officer Fuentes lacked a basis to stop the car. After conducting a hearing, the superior court denied the motion.
¶8 The State filed a notice of its intent to (1) introduce evidence of the shipping receipts Officer Fuentes found in Roderick's wallet (arguing it was intrinsic evidence or, alternatively, other-act evidence) and (2) call a drug detective to testify as an expert in describing the modus operandi of drug-trafficking organizations. Over Roderick's objection, the court found the shipping-receipt evidence was admissible, and that the State could introduce modus operandi testimony.
¶9 At trial, the State called Detective Shay to testify that Phoenix is a "source city" for commercial marijuana where drug-trafficking organizations obtain marijuana and ship it through the mail to destination cities. He further testified that many drug traffickers do not ship out of Phoenix because it is a high-risk area, and instead, use couriers and rental cars to drive to Las Vegas and ship from there. He also reviewed Roderick's shipping receipts and noted that the weights of the packages shipped were "among the popular or common quantities" of marijuana delivered through the mail, and that the shipper paid in cash—consistent with a drug-trafficking scheme.
¶10 At the close of the State's case, Roderick moved for a judgment of acquittal under Arizona Rule of Criminal Procedure 20, arguing that the State failed to present sufficient evidence that he knew the marijuana was in the car. The court denied the motion. Roderick then testified in his defense, stating that he did not know the drugs were in the car and that a friend had asked him to drive the car to Las Vegas.
¶11 The jury convicted Roderick as charged, and the superior court sentenced him to a mitigated term of three years' imprisonment. Roderick timely appealed, and we have jurisdiction under A.R.S. § 13-4033(A)(1).
DISCUSSION
¶12 Roderick argues that the superior erred by: (1) denying his motion to suppress evidence obtained from the rental car, (2) allowing the receipts found in the car to be admitted at trial, (3) allowing the State's expert to testify regarding drug-currier profile evidence, (4) denying his request for a judgment of acquittal, and (5) failing to give a mere-presence instruction.
I. Motion to Suppress.
¶13 We review the superior court's denial of a motion to suppress for an abuse of discretion. See State v. Guillory, 199 Ariz. 462, 465, ¶ 9 (App. 2001). We consider only the evidence presented at the suppression hearing viewed in the light most favorable to upholding the ruling; we defer to the superior court's factual determinations but review de novo its legal conclusions—here, the court's determination that Officer Fuentes had reasonable suspicion to stop Roderick for a traffic violation. See State v. Evans, 235 Ariz. 314, 315, ¶ 2 (App. 2014); State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118 (1996).
¶14 An officer may make an investigatory stop of a vehicle when the officer has an "articulable, reasonable suspicion" of criminal activity, including a traffic violation. See State v. Salcido, 238 Ariz. 461, 464, ¶ 7 (App. 2015). An officer's subjective intent is not a factor in determining whether reasonable suspicion supported the stop. Whren v. United States, 517 U.S. 806, 812-13 (1996).
¶15 Officer Fuentes testified that he observed Roderick follow the car in front of him too closely and exceed the speed limit. Specifically, he testified that Roderick (1) failed to maintain a safe distance behind another car while traveling through a busy commercial area and (2) drove 50 miles per hour over a quarter-mile where the posted speed limit was 45 miles per hour. These violations were sufficient objective reasons to stop Roderick. See A.R.S. § 28-730(A) (prohibiting a driver from following a motor vehicle "more closely than is reasonable and prudent"); A.R.S. § 28-701(A) (prohibiting a driver from driving at a speed "greater than is reasonable and prudent under the circumstances"). Although Roderick denied committing the infractions, the court found the officer credible, and we defer to that credibility determination. See Gonzalez-Gutierrez, 187 Ariz. at 118.
¶16 Roderick's additional arguments are similarly unavailing. First, he argues that the proffered reasons for the stop were a pretext, but a traffic stop does not violate the Fourth Amendment simply because an officer may have ulterior motives. See Whren, 517 U.S. at 813. Likewise, we reject Roderick's challenge to the "foundation" of the officer's testimony because the superior court accepted Officer Fuentes's assertions regarding what he observed, and we defer to the superior court's factual findings. See Gonzalez-Gutierrez, 187 Ariz. at 118. And finally, Roderick argues that his motion to suppress should have been granted because the officer's testimony failed to specify the subsections of Title 28 Roderick was accused of violating. But there is no such requirement; instead, we assess whether, based on the totality of the circumstances—including "the agent's training and experience"—the officer reasonably believed that a traffic violation occurred. Id. at 119. And as recounted above, Officer Fuentes testified that he observed Roderick commit two traffic violations that warranted the stop. See also A.R.S. § 28-1594. Accordingly, the court did not err by denying Roderick's motion to suppress.
II. Shipping-Receipt Evidence.
¶17 Roderick next contends that the superior court erred by admitting in evidence the shipping receipts found in his wallet. He asserts that the receipts were irrelevant propensity evidence and were unduly prejudicial. He also asserts that the court impermissibly shifted the burden of proof when assessing the evidence. We review the court's evidentiary rulings for an abuse of discretion. State v. Garza, 216 Ariz. 56, 66, ¶ 37 (2007).
¶18 Other-act evidence is admissible under Rule 404(b) of the Arizona Rules of Evidence if (1) the State presents clear and convincing evidence that the defendant committed the other act, (2) the evidence is relevant, see Ariz. R. Evid. 402, (3) the evidence is offered for a proper purpose, see Ariz. R. Evid. 404(b)(2), and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, see Ariz. R. Evid. 403. State v. Terrazas, 189 Ariz. 580, 583-84 (1997). Upon request by an objecting party, the court must provide an appropriate limiting instruction under Rule 105. Id. at 583.
¶19 The State offered the shipping-receipt evidence to counter Roderick's sole defense that he did not know the marijuana was in the car. Although the receipts were from months before Roderick's arrest, they showed that: (1) Roderick sent packages from Las Vegas within a few months preceding his arrest, (2) the weights of the packages were similar to those of the marijuana packages found in his car, and (3) Roderick paid cash to ship the packages. The State's expert testified that the weights of the packages were similar to what drug traffickers commonly ship through the mail, and that the unidentified recipients were in "destination cities." The evidence was thus probative in showing that Roderick's possession of the marijuana in the car was neither a mistake nor an accident, and to establish Roderick's plan, intent, and knowing participation in obtaining, transporting, and ultimately delivering the packages. See Ariz. R. Evid. 404(b)(2).
¶20 Roderick also asserts that the superior court impermissibly shifted the burden of proof in its Rule 403 balancing by suggesting the recipients could explain the shipments' innocent nature. Roderick did not raise this objection in the superior court, thus we review only for fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). And here, there was no error, fundamental or otherwise. The complained-of statement was the court's assessment of the lack of potential prejudice in admitting the receipts as other-act evidence—it did not put the burden on Roderick to show that the receipts were prejudicial. In contrast, the court assessed whether the State had met its burden and whether the receipts were unduly prejudicial, which it was required to do. See Terrazas, 189 Ariz. at 583-84. Therefore, the court did not err by admitting the receipts in evidence.
III. Expert Testimony.
¶21 Roderick argues that the superior court erred by permitting the State to call a modus operandi expert to testify that the receipts in Roderick's wallet reflected activity consistent with drug-shipping practices. We review the court's admission of drug-courier profile evidence for an abuse of discretion. See State v. Haskie, 242 Ariz. 582, 585, ¶ 11 (2017).
¶22 While the State may not offer drug-courier profile evidence as substantive proof of the defendant's guilt, it may offer it to help the "jury in understanding the modus operandi of a drug-trafficking organization." Escalante, 245 Ariz. at 142, ¶ 22. To that end, the evidence must help show "usual patterns or methods used by a criminal gang or organization to commit a crime." State v. Garcia-Quintana, 234 Ariz. 267, 270-71, ¶ 13 (App. 2014). Because those organizations commit crimes that "may be complex and involve multiple individuals, the role each person plays in committing the crime is most likely beyond the knowledge of the average juror." Id. at 271, ¶ 13. "Thus, a qualified law enforcement officer may provide expert opinion testimony regarding the modus operandi of a criminal organization to explain how a person's actions may indicate their active participation in a crime." Id. Nonetheless, an expert may not "provide an opinion comparing the modus operandi of [a drug-trafficking] organization with the conduct of a defendant in a particular case." See id. at ¶ 14.
¶23 Roderick challenges the connection the expert made between his shipping receipts and common drug-shipping practices. But here, the State did not elicit the testimony about the past shipping receipts as proof that Roderick was guilty of the charged offense. Instead, as explained above, the State used the receipts to show prior conduct to refute Roderick's contention that he was unaware of the packages in the car. The State elicited the modus operandi testimony (1) to show that the large quantity of marijuana pointed to the involvement of a drug-trafficking organization and (2) to undercut Roderick's professed ignorance of the marijuana's presence in the rented car he was driving. Both of these applications are permissible modus operandi uses of the evidence. See id. at ¶ 13; State v. Gonzalez, 229 Ariz. 550, 553-54, ¶¶ 13, 15 (App. 2012). The expert never connected the receipts with any of Roderick's other behaviors to show he acted in a manner consistent with that of a drug courier. See Escalante, 245 Ariz. at 143, ¶ 25. Nor did he compare Roderick's conduct on the day of his arrest with any modus operandi evidence. See Garcia-Quintana, 234 Ariz. at 271, ¶ 14. Therefore, the superior court did not abuse its discretion by admitting the expert testimony.
¶24 Moreover, even assuming error, the admission of evidence was harmless beyond a reasonable doubt. See State v. Bible, 175 Ariz. 549, 588 (1993). The jury heard other evidence establishing Roderick's guilt, including that Roderick was the sole driver of the car and that the trunk of the car had over 25 pounds of concealed, tightly packaged marijuana presumably intended for sale, with a value of at least $12,500. See State v. Arce, 107 Ariz. 156, 161-62 (1971) (holding that a jury can infer intent to sell based on the quantity found, its unusual packaging, and if it is hidden to others). And even without modus operandi testimony linking the receipts in Roderick's wallet to drug trafficking, the receipts were relevant to show that he had previously shipped similar-sized packages, which undercut Roderick's assertion that he was unaware of the packages in the car. Moreover, Roderick's explanation of the circumstances—that he had been traveling with someone whose name he was unsure of, and that a "friend" had asked him to drive a car to Las Vegas—was implausible. Thus, even assuming the court erred by permitting modus operandi expert testimony, the error was harmless.
IV. Rule 20 Motion.
¶25 Roderick next challenges the superior court's denial of his Rule 20 motion. We review the denial of a Rule 20 motion de novo, viewing the evidence in the light most favorable to sustaining the verdict. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).
¶26 The superior court must enter a judgment of acquittal "if there is no substantial evidence to support a conviction." Ariz. R. Crim. P. 20(a)(1). Substantial evidence, which includes direct and circumstantial evidence, is evidence that "reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Hughes, 189 Ariz. 62, 73 (1997); State v. Borquez, 232 Ariz. 484, 487, ¶¶ 9, 11 (App. 2013). Generally, proof of a defendant's mental state must be inferred by the jury from the "behaviors and other circumstances surrounding the event." State v. Noriega, 187 Ariz. 282, 286 (App. 1996).
¶27 Roderick challenges only the sufficiency of the evidence to support the jury's finding that he "knowingly" committed the crime. In pertinent part, a person violates A.R.S. § 13-3405(A)(4) by knowingly transporting marijuana for sale. Knowingly means that the "person is aware or believes that [his or her] conduct is of that nature or that the circumstance exists." A.R.S. § 13-105(10)(b). And as recounted above, the jury heard substantial evidence of Roderick's guilt and could infer his knowledge from the circumstances of the offense. See Beijer v. Adams, 196 Ariz. 79, 84, ¶ 25 (App. 1999) (relying in part on presence of drugs in the trunk of the car the defendant was driving to establish the knowledge element of the crime). Roderick nonetheless argues the evidence was insufficient because he was "driving a car for a friend" and "had no reason to suspect anything illegal was in the car." But Roderick merely reasserts the defense that the jurors rejected, and we will not revisit credibility determinations made by the trier of fact. See State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 39 (App. 2013); see also State v. Haas, 138 Ariz. 413, 421 (1983) ("The essence of the determination of the issue of whether defendant acted knowingly and intentionally was a judgment of his credibility."). The superior court did not err by denying Roderick's Rule 20 motion.
V. Mere-Presence Instruction.
¶28 Roderick also argues that the superior court erred by failing to instruct the jurors on mere presence. Although a party is "entitled to an instruction on any theory reasonably supported by the evidence," State v. Johnson, 205 Ariz. 413, 417, ¶ 10 (App. 2003), here, Roderick declined the superior court's offer to instruct the jurors on mere presence. Therefore, his argument fails.
¶29 Moreover, Roderick's argument that, because the State requested an accomplice liability instruction, a mere-presence instruction was required (in essence, that the superior court should have provided the instruction sua sponte) is unavailing. Because Roderick did not request the instruction, we review for fundamental error only. See State v. Whittle, 156 Ariz. 405, 407 (1988). No reversible error occurs when the instructions as a whole adequately cover the law and do not mislead the jurors. State v. Doerr, 193 Ariz. 56, 65, ¶ 35 (1998). And here, the jurors were instructed that they had to decide whether Roderick knowingly transported marijuana for sale, which required an implicit rejection of an assertion that Roderick was merely present in the car and unwittingly transported marijuana for others. Thus, the instructions given adequately covered the law. See id. Accordingly, Roderick has not established error.
CONCLUSION
¶30 We affirm Roderick's conviction and sentence.