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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
GERERD KENNETH BOTCH, Appellant.
No. 1 CA-CR 19-0383
FILED 10-1-2020
Appeal from the Superior Court in Maricopa County
No. CR2017-118642-001
The Honorable Jacki Ireland, Judge Pro Tempore
The Honorable George Foster, Jr., Judge, Retired
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Peg Green
Counsel for Appellant
STATE v. BOTCH
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.
W I L L I A M S, Judge:
¶1 Gererd Kenneth Botch appeals his conviction for possession
or use of dangerous drugs. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In April 2017, Officer Baynes was on patrol in the west side of
Phoenix. Around 1 a.m. he noticed a roadway, ending in a cul-de-sac,
blocked by three or four shopping carts, a bicycle with a cart attached to it,
and a fifty-five-gallon drum. Baynes also observed a “transient camp” on
the side of the roadway. Botch and Randell Havier were in the middle of
the road, and Baynes approached both men. Baynes first questioned
Havier, who was later arrested for marijuana possession. Baynes asked
Botch whether he possessed any drugs or drug paraphernalia. Botch said
he did not, but he could not vouch for what was inside a nearby backpack.
¶3 Baynes asked to search Botch’s pockets. The parties disagree
whether consent was given. Regardless, a search occurred and Baynes
found cash, a bag of methamphetamine and a tightly-rolled dollar bill in
Botch’s pockets. Baynes activated his recording device, Mirandized Botch,
and interviewed him. 1 About sixteen minutes into the recorded interview,
Botch said he never consented to be searched.
¶4 Botch was arrested, charged, and convicted of possession or
use of dangerous drugs, a Class 4 felony. Botch filed a pretrial motion to
suppress evidence of drugs, drug paraphernalia, and statements he made
to Baynes, claiming the encounter was illegal and that he did not consent to
Baynes searching him. At the suppression hearing, Baynes testified that
Botch consented to the search, but Havier testified that Botch “told [Baynes]
not to” search his pockets.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. BOTCH
Decision of the Court
¶5 The court denied Botch’s motion to suppress. Because of a
factual error in the court’s order, the State requested and obtained an order
nunc pro tunc correcting the error; the court also sua sponte clarified its
previous ruling and expressly found Botch consented to the search.
¶6 Following his conviction, Botch was sentenced to a mitigated
term of six years in prison. Botch timely appealed challenging the denial of
his motion to suppress, alleging prosecutorial misconduct, and claiming
Baynes’ trial testimony was improper. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-2101(A)(1),
13-4031 and 13-4033(A)(1).
DISCUSSION
I. Motion to Suppress
¶7 When reviewing the denial of a motion to suppress, we “defer
to the [superior] court’s factual findings absent an abuse of discretion,” but
“review de novo [] the [superior] court’s ultimate legal determination that
the search complied with the dictates of the Fourth Amendment.” State v.
Valle, 196 Ariz. 324, 326, ¶ 6 (App. 2000). We “restrict our review to
consideration of the facts the [] court heard at the suppression hearing,”
State v. Blackmore, 186 Ariz. 630, 631 (1996), and will affirm [the] court’s
ruling if it was legally correct for any reason, State v. Huez, 240 Ariz. 406,
412, ¶ 19 (App. 2016) (citation omitted).
A. Reasonable Suspicion
¶8 Botch argues Baynes lacked reasonable suspicion for an
investigatory stop. “[T]he Fourth Amendment is satisfied,” for purposes of
an investigatory stop, “if the officer’s action is supported by reasonable
suspicion to believe that criminal activity ‘may be afoot.’” United States v.
Arvizu, 534 U.S. 266 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7
(1989)). “In making reasonable-suspicion determinations, reviewing courts
must look at the ‘totality of the circumstances’ of each case to see whether
the detaining officer has a ‘particularized and objective basis’ for suspecting
legal wrongdoing.” Id.; see also State v. Primous, 242 Ariz. 221, 223, ¶ 11
(2017). Evidence obtained as a result of an illegal investigatory stop is
barred from trial under the exclusionary rule. Wong Sun v. United States, 371
U.S. 471, 485 (1963); see also State v. Richcreek, 187 Ariz. 501, 506 (1997).
¶9 Here, Baynes conducted an investigatory stop of Botch in the
roadway and Botch was not free to leave. Baynes maintains he decided to
investigate Botch after observing “[s]everal potential [criminal] violations,”
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STATE v. BOTCH
Decision of the Court
which could have included obstructing a roadway, unlawful possession of
a shopping cart, trespassing, and unlawful urban camping, all
misdemeanors under either Arizona Revised Statutes or the local municipal
code. The observed possible violations gave Baynes a particularized and
objective basis for detaining and investigating Botch.
¶10 Botch argues that because Baynes did not question or arrest
him for any of the potential violations, Baynes must have initiated the stop
with the intention to search Botch for drugs. However, an officer’s
subjective intentions are not relevant to determining whether reasonable
suspicion existed for the stop. See Whren v. United States, 517 U.S. 806 (1996);
see also State v. Livingston, 206 Ariz. 145, 148, ¶ 13 (App. 2003). Because the
evidence showed Baynes had a reasonable suspicion that criminal activity
was afoot, the superior court did not err in concluding the investigatory
stop was legal.
B. Consent
¶11 Botch contends “the record does not support the [superior]
court’s finding of consent,” and refers to the court’s initial order denying
his motion to suppress as “confusing.” Noting the court’s statement that it
was “challenged to find the testimony of each side to be credible as to what
actually happened,” the State seemingly concedes the issue and suggests
we remand for further findings:
The record is unclear, but the [superior] court’s ruling could
reasonably be read to suggest that the court found [] Baynes
to be the more credible witness. On the other hand, given the
[] court did not simply find consent as the basis for denying
Botch’s suppression motion, it is equally reasonable that the
court found Havier to be the more credible witness . . . In light
of the[se] ambiguities . . . [t]he State asks the Court [of
Appeals] remand this matter so the [superior] court may
make the necessary consent finding and credibility
determination.
¶12 Botch counters in his reply brief that the superior court’s nunc
pro tunc order “makes it very clear the court found that Botch consented to
[Baynes’] request to search his pockets,” and that “the [superior] court’s
order provides this [c]ourt with enough information” to review the appeal
without remanding. We agree with Botch’s position in his reply brief that
the record is sufficient for our review on appeal.
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STATE v. BOTCH
Decision of the Court
¶13 The superior court’s initial order hinted at, but ultimately
stopped short of, expressly finding consent. The subsequent nunc pro tunc
order, however, addressed it directly:
IT IS FURTHER ORDERED correcting the Court’s January 8,
2019 Minute Entry to reflect that the Defendant gave consent
to a search of his pockets where illegal drugs were found.
The court on its own may correct omissions or oversights in the record nunc
pro tunc. See Ariz. R. Crim. P. 24.4. “The purpose of a nunc pro tunc order is
to make the record reflect the intention of [] the court at the time the record
was made.” State v. Johnson, 113 Ariz. 506, 509 (1976) (emphasis added). The
court was within its discretion to sua sponte correct its previous ruling to
accurately reflect its intention.
¶14 Although a warrant is generally required for a search to be
valid under the Fourth Amendment, the requirement is excused if the
search is conducted with valid consent. State v. Valenzuela, 239 Ariz. 299,
302, ¶¶ 10-11 (2016). Whether consent is voluntary is a factual issue
resolved by reviewing the totality of circumstances. Id. at 302, ¶ 11.
¶15 Here, the superior court made a credibility determination
between the opposing testimony of Baynes, who testified Botch consented
to the search, and Havier, who testified Botch did not. And, while the court
noted the difficulty it had in deciding which testimony to believe, in the end
the court concluded Baynes was the more credible of the two. Because we
defer to the superior court’s credibility determinations, State v. Mendoza-
Ruiz, 225 Ariz. 473, 475, ¶6 (App. 2010), and because the record supports
the court’s conclusion that Botch consented to the search of his pockets, the
court did not err in its ruling. 2
II. Prosecutorial Misconduct
¶16 Botch also argues prosecutorial misconduct occurred during
closing argument. We review “each instance of alleged misconduct, and the
standard of review depends upon whether [the defendant] objected.” State
v. Morris, 215 Ariz. 324, 335, ¶47 (2007). Where the defendant objected at
trial, we review for harmless error; if he did not, we review for fundamental
error. State v. Gallardo, 225 Ariz. 560, 568, ¶35 (2010). We will reverse a
conviction when “(1) the prosecutor committed misconduct and (2) a
reasonable likelihood exists that the prosecutor’s misconduct could have
2Because the court did not err in finding consent to the search, we need not
address Botch’s inevitable discovery argument.
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STATE v. BOTCH
Decision of the Court
affected the verdict.” State v. Escalante-Orozco, 241 Ariz. 254, 280, ¶ 91 (2017)
(quoting State v. Benson, 232 Ariz. 452, 463, ¶ 40 (2013)), abrogated on other
grounds by State v. Escalante, 245 Ariz. 135 (2018). Where multiple claims of
misconduct occurred, we consider their “cumulative effect.” State v.
Martinez, 230 Ariz. 208, 217, ¶ 42 (2012).
¶17 Botch objected during the prosecutor’s rebuttal closing
argument when the prosecutor argued:
The Defense attorney brought up the concept that a
reasonable person would not consent to a search of their
pockets if they knew they had methamphetamine in it.
Believe it or not, this happens every day throughout the –- the
courts. People consent to searches even when they have
something they are not supposed to have. Who knows what
reason. Maybe it’s because they think that they are going to
bluff their way out.
...
I want to talk a little bit about the –- the allegation the Defense
put on the State here that we should have done more, the
officer should have done more by testing the dollar bill or
testing the baggies for fingerprints or DNA evidence. You
heard from both the officer and the criminalist . . . that her lab
is very backed up. And you heard from the officer say that
those type of actions, the DNA testing, the fingerprint testing
are reserved for cases of more severity. This case is important
to Mr. Botch, and this case is important to me because I am
here representing the State in this matter. I am also here
representing the Constitution. I believe this case to be just as
important as other cases because it does involve Mr. Botch’s
. . . livelihood . . . and life . . . it involves important things to
him.
¶18 Portions of both statements were improper. As to the first, it
was improper for the prosecutor to offer up that people consent “everyday”
to searches when the record did not reflect the same, and also improper to
speculate that “[m]aybe [people] consent because they think that they are
going to bluff their way out of it.” Similarly, the prosecutor’s statement that
she was “here representing the Constitution,” could have given the jury the
impression that the prosecutor alone, unlike defense counsel, sought to
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STATE v. BOTCH
Decision of the Court
protect the supreme law of the land, and thus was, at least arguably,
inappropriate.
¶19 Because Botch objected to these statements at trial, we review
for harmless error; the State has the burden to prove beyond a reasonable
doubt that the error did not affect the verdict. Escalante, 245 Ariz. at 144,
¶ 30; see also State v. Murray, 247 Ariz. 447, 453, ¶ 14 (App. 2019). As noted
by the State, the superior court instructed the jury that the lawyer’s
comments were not evidence. And, given the brevity, nature, and context
of the comments, which were made in response to statements made in
Botch’s closing argument, the errors were harmless. See State v. Payne, 233
Ariz. 484, 512, ¶ 113 (2013) (concluding the jury instruction “that the
lawyers’ arguments were not evidence” was “sufficient to dispel any taint”
of a vouching error).
¶20 Botch did not object at trial to the two remaining statements
he challenges on appeal; consequently, we review for fundamental error:
[W]hat I am saying is, it’s not up to us to determine how the
police officers and how the crime lab utilizes their resources
. . . [b]ut you have enough here in front of you to find [Botch]
guilty.
...
You heard the audio yourself how rapid the Defendant’s
speech was, how erratic his speech was. And you heard
Officer Baynes explain that some of those speech patterns do
indicate use of a substance, an unknown substance at that
point.
Then, after defense counsel countered, “the State got up here and said
[] Baynes testified that he believed [] Botch was high,” the prosecutor
offered in rebuttal:
[Y]ou heard from Officer Baynes that some of his observations
indicated that [Botch] may have been on some sort of
substance. Whether or not there was methamphetamine, we
don’t know. But he may have been on some sort of substance
that altered his perception, altered his ability to be a
reasonable person . . . And in this case, [] Botch was not acting
as a reasonable person. He was not –- of even mind, sober
mind.
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STATE v. BOTCH
Decision of the Court
¶21 Botch claims these statements from the prosecutor constituted
error. We disagree. But even if they had, Botch has failed to demonstrate
that either statement “went to the foundation of the case . . . took from the
defendant a right essential to his defense, or . . . was so egregious that he
could not possibly have received a fair trial.” Escalante, 245 Ariz. at 142,
¶ 21. Further, the record does not support Botch’s contention that the
cumulative errors were fundamental, resulting in prejudice, a burden of
persuasion which Botch carries. See State v. Vargas, __ Ariz. __, __, ¶ 15, 468
P.3d 739, 743 (2020). Botch’s claims of prosecutorial misconduct fail.
III. Witness Testimony
¶22 Arizona Rule of Evidence 701 limits opinion testimony a lay
witness can offer. On appeal, Botch alleges four instances of Rule 701 errors
in Baynes’ testimony, which he summarizes as follows: (1) an opinion that
Botch’s defense was a “farce,” (2) a suggestion that Botch was guilty of other
crimes but, because of Baynes’ generosity, was not charged with additional
crimes, (3) a reference that Botch was booked into jail, and (4) a suggestion
that Botch also could have submitted the baggie of drugs found in his
pocket for testing. Botch did not object at trial to the first two instances,
which we review for fundamental error, See Escalante, 245 Ariz. at 140, ¶ 12,
but did object to the third and fourth instances, which we review for
harmless error. See State v. Henderson, 210 Ariz. 561, 567, ¶18 (2005).
¶23 Assuming, arguendo, Baynes’ testimony in the first two
instances were error, Botch offers nothing to establish the errors went to the
foundation of the case, took from Botch an essential right, or demonstrated
he did not receive a fair trial. See Escalante, 245 Ariz. at 142, ¶ 21. As to
instances three and four, the court either directed the prosecutor to
“refocus” Baynes or sustained the objection Botch made at trial. Any error
was harmless and appropriately resolved by the superior court. Botch’s
argument fails.
CONCLUSION
¶24 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
8