Opinion
No. 2 CA-CR 2017-0036
01-30-2018
THE STATE OF ARIZONA, Appellee, v. ARMANDO DANIEL RODRIGUEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20144822001
The Honorable Richard D. Nichols, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Following a jury trial, Armando Rodriguez was convicted of three counts of sale or transfer of a narcotic drug in violation of A.R.S. § 13-3408(A)(7). The trial court sentenced him to mitigated terms of five years for each count, all terms to run concurrently. On appeal, Rodriguez argues the court improperly excluded evidence that a law enforcement search of his home the day after his arrest produced no evidence of drug dealing. We affirm.
Factual and Procedural Background
¶2 In November 2014, Rodriguez was charged with four counts of sale or transfer of a narcotic drug stemming from a series of transactions with an undercover officer beginning in October 2014. The transactions were part of a multi-agency undercover drug operation occurring over the span of approximately one month, and all four sales were conducted in the parking lot of an apartment complex. When Rodriguez was arrested in a vehicle at the scene, he was in possession of identifiable bills the undercover officer had used to purchase cocaine through an intermediary immediately prior to the arrest. The next day, the state executed a search warrant at Rodriguez's residence that did not result in any pertinent evidence.
¶3 Prior to trial, the state filed a motion in limine to preclude any testimony relating to the search of Rodriguez's residence on the basis that it was not relevant under Rule 401, Ariz. R. Evid., "[b]ecause [the search] took place the day after [Rodriguez] was arrested, and ha[d] no bearing on whether [he] sold a narcotic drug" on the four occasions charged. At a hearing on the motion, the state acknowledged no "illegal contraband" had been located at the residence, and Rodriguez argued he "should be able to introduce the fact that a warrant was served on [his] home and nothing of evidentiary value was found." The trial court granted the motion, stating, "[T]he probative value [of the evidence] does not outweigh the danger of unfair prejudice."
¶4 After a two-day trial, the jury found Rodriguez guilty on three of the four counts charged. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Exclusion of the Evidence
¶5 Rodriguez's sole argument on appeal is that the trial court erred in excluding evidence of the fruitless search of his home at trial. "The trial court has considerable discretion in determining the relevance and admissibility of evidence, and we will not disturb its ruling absent a clear abuse of that discretion." State v. Rose, 231 Ariz. 500, ¶ 62 (2013), quoting State v. Amaya-Ruiz, 166 Ariz. 152, 167 (1990). In order to be admissible, evidence must first be relevant, which Rule 401 defines as "(a) . . . ha[ving] any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." (Emphasis added.)
¶6 At the hearing on the state's motion in limine, Rodriguez referred to the first prong of Rule 401, asserting he should be able to inform the jury that a search of his home resulted in "nothing of evidentiary value [being] found." He did not, however, explain how this information was "of consequence in determining the action," Ariz. R. Evid. 401(b), or cite any case law in support. On appeal, Rodriguez argues "[t]he fact that no evidence was found in [his] home the day after the arrest clearly has some tendency to show that he was not involved in the sale of drugs" and suggests the state's decision to search his residence indicates agreement that the results of the search would be relevant to the charges.
¶7 A trial court has significant latitude in admitting evidence, particularly the "negative" evidence Rodriguez sought to introduce involving the lack of incriminating items found during the search of his residence. See State v. Kelly, 111 Ariz. 181, 187 (1974) ("The reception of negative evidence is largely within the discretion of the trial court and is generally dependent upon the extent of its probative value."). In Kelly, the court discussed People v. Heredia, 65 Cal. Rptr. 402, 405 (Ct. App. 1968), in which the defendant had proffered evidence that his house had been searched after his arrest and "no contraband found therein." 111 Ariz. at 187. The Heredia court affirmed the exclusion of the search because "the line of inquiry was immaterial," noting, "The general rule is that 'negative evidence lacking in probative value is properly excluded as too speculative in nature.'" Heredia, 65 Cal. Rptr. at 405, quoting People v. Mehaffey, 197 P.2d 12, 24 (Cal. 1948). Our supreme court in Kelly also quoted People v. Hairston, 294 N.E.2d 748, 753 (Ill. App. 1973), for the principle that "[t]he test of admissibility of evidence is whether there is a connection between the facts proved and the crime charged." 111 Ariz. at 187.
¶8 Here, as in Heredia, the search of Rodriguez's home produced nothing having any bearing on the prosecution or the defense. Rodriguez was arrested moments after a transaction with an undercover officer in which 3.5 grams of cocaine was provided to the officer by an intermediary at the scene in exchange for $150. Previous transactions involving the same undercover officer and Rodriguez followed a similar pattern, and Rodriguez apparently did not reside at the apartments where the exchanges took place. That no evidence of drug-dealing was discovered in Rodriguez's residence simply suggested he did not use his home for such activities or keep drugs there, matters that did not make it any more or less likely he had committed the charged offenses. Rodriguez has demonstrated no error in the trial court's ruling on the motion in limine or its excluding evidence of the search.
Because we conclude the fruitless search was not relevant to the counts charged, we do not address Rodriguez's argument that the trial court improperly concluded the probative value of the evidence was substantially outweighed by the danger of unfair prejudice under Rule 403, Ariz. R. Evid. Cf. Ariz. R. Evid. 403 (providing additional grounds for excluding "relevant evidence") (emphasis added); see also State v. Boteo-Flores, 230 Ariz. 551, ¶ 7 (App. 2012) (trial court's ruling affirmed if legally correct for any reason). --------
Disposition
¶9 For the foregoing reasons, Rodriguez's convictions and sentences are affirmed.