State v. Garcia El

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

MIBHAR ELIASHIB GARCIA EL, Appellant.

No. 1 CA-CR 22-0161
FILED 4-18-2023

Appeal from the Superior Court in Maricopa County
No. CR2020-142476-001
The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Damon A. Rossi
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.

F O S T E R, Judge:

¶1 Defendant Mibhar Garcia El appeals his convictions and
sentences for possession or use of narcotic drugs and misconduct involving
weapons. Because he has shown no reversible error, the convictions and
sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 On the evening of November 9, 2020, Mesa Police received a
9-1-1 call for a possible abandoned vehicle parked near a gated driveway
near the intersection of South Country Club Drive and West Hampton
Avenue. A responding officer positioned his unmarked car behind the
alleged abandoned vehicle so he could run the license plate in his system.
Shortly after, the vehicle started moving westbound towards Country Club.
Officers later learned Garcia El was driving the vehicle, which he also
owned. Garcia El then “proceeded to turn southbound onto Country Club
and then cut across all lanes of traffic for southbound.” After witnessing
Garcia El’s left turn, the officer activated his car’s sirens and lights, and
Garcia El pulled over.

¶3 Other officers then arrived at the scene. While talking to
Garcia El, the officer could smell unburned marijuana.1 Another officer
present at the scene, who was talking to the passenger, indicated that he,
too, could smell marijuana and that he could see marijuana inside the
passenger side of the vehicle. The officers then searched Garcia El and his
vehicle. They found a gun in Garcia El’s pocket. Inside the vehicle, they
found a backpack, which contained Garcia El’s personal mail, marijuana,

1 At the time of the traffic stop, marijuana was not yet legal for
recreational use in Arizona. See A.R.S. § 36–285 (effective: November 30,
2020). The record does not show that Garcia El possessed a medical
marijuana card that qualified him to possess marijuana. See A.R.S. § 36–
2801(15).

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cocaine, a digital scale, and other packaging material. They then arrested
Garcia El.

¶4 The State charged Garcia El with possession or use of narcotic
drugs and misconduct involving weapons.2 Before trial, Garcia El moved to
suppress all evidence obtained from the search. Garcia El argued that the
stop was pretextual, and thus all evidence obtained as a result of the stop
must be excluded under the fruit-of-the-poisonous-tree doctrine. The State
responded that the officers had a reasonable suspicion to conduct a stop
under Terry v. Ohio, 392 U.S. 1 (1968), because of the 9-1-1 call describing
Garcia El’s vehicle as abandoned. It also argued that Garcia El’s wide left
turn, which constituted a traffic violation, gave the officers additional cause
to stop the vehicle.

¶5 At the hearing on the motion to suppress, defense counsel
asked the trial court, “[W]ho would you like to hear from first? Mr. Garcia?”
The trial court responded, “Right. It’s his motion.” Garcia El testified that
he was parked in the driveway for about 20 minutes. He never left the
vehicle during that period and started driving away because he felt that he
was being followed. As he drove away, he turned on his blinker to make a
left-hand turn from the driveway onto Country Club. He then crossed the
oncoming traffic lanes and entered the center lane. Finally, he switched on
his blinker, merged into the immediate lane to his right, and then moved
over to the far-right lane.

¶6 The first responding officer testified that Garcia El “merged
across all lanes of traffic and he did not pull into the lane that he should
have pulled into, which would have been the immediate open lane.” He
also testified that Garcia El was parked in the private driveway and that the
area was a “high drug and high violent crime area.” He described the
driveway as about 75 to 100 yards long with a median divider in the middle.
He testified that even if Garcia El had not committed the traffic violation,
he would have still pulled over the vehicle “[b]ased on the suspicious
activity of [him] being parked again in a high crime area.”

¶7 The trial court denied the motion to suppress. It found that
“based on the totality of circumstances from the initial contact with the
defendant’s car, to the turn onto Country Club, the police officers did

2 The State also charged Garcia El with (1) possession of marijuana for
sale, (2) felony misconduct involving weapons, and (3) use or possession of
drug paraphernalia. These counts were dismissed before trial on the State’s
motion.

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develop a reasonable suspicion that the defendant violated the law by
making the wide turn onto Country Club.” It also found that Garcia El “was
not entirely credible in his testimony.”

¶8 Garcia El also moved to preclude all evidence related to the
dismissed counts. The trial court granted the motion as to “the marijuana
found in the car and backpack, [] the paraphernalia other than the digital
scale and packing materials,” and “any testimony about the sm[e]ll of
marijuana or the sale of marijuana.” It admitted the digital scale and the
packaging material “solely for the purpose of showing knowledge.”

¶9 At trial, the State elicited testimony from officers about the
scales and their common use in drug transactions. The first responding
officer testified that in his almost 22 years of experience as a police officer,
“[i]t’s very common for drug users and on both sides of the spectrum to
utilize a scale.” Another officer testified that in his experience, “most people
in fact in the drug world [] will bring scales with them regardless of what
side of a transaction they’re on to make sure that they are getting what they
-- in a user’s case what they paid for, what they’re paying for.” During its
closing argument, the prosecutor relied on testimony about the scales to
argue that Garcia El knowingly possessed cocaine.

¶10 After a three-day trial, the jury convicted Garcia El of both
charges. The trial court suspended the sentence and placed Garcia El on
supervised probation for two years. Garcia El timely appealed. This Court
has jurisdiction pursuant to A.R.S. §§ 12–120.01(A)(1), 13–4031 and 13–
4033(A).

DISCUSSION

I. Reasonable Suspicion

a. Motion to Suppress

¶11 Garcia El argues that the trial court erred in placing the
burden of persuasion on him after he had established a prima facie case that
the evidence taken should be suppressed. A denial of a motion to suppress
is reviewed for abuse of discretion “if it involves a discretionary issue, but
review constitutional issues and purely legal issues de novo.” State v. Gay,
214 Ariz. 214, 217, ¶ 4 (App. 2007).

¶12 Under Arizona Rule of Criminal Procedure (“Rule”) 16.2(b),
a defendant who “moves to suppress evidence that the state has obtained
under defined circumstances,” bears “the burden of going forward.” State

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v. Hyde, 186 Ariz. 252, 266 (1996). The defendant must “produce sufficient
preliminary evidence before the party with the burden of persuasion must
proceed with its evidence.” Id. The trial court, however, must “exercise
reasonable control over the mode and order of examining witnesses and
presenting evidence. . .” Ariz. R. Evid. 611(a).

¶13 Here, the trial court was simply exercising reasonable control
over the mode and order of examining witnesses. See Ariz. R. Evid. 611(a).
During the hearing, defense counsel asked the trial court, “[W]ho would
you like to hear from first? Mr. Garcia?” And the trial court responded,
“Right. It’s his motion.” Thus, defense counsel offered that Defendant
testify first. The trial court did not compel Garcia El to present evidence first
in support of his motion; nor did it place the burden of persuasion on him.
The trial court followed the order of witnesses as suggested by the defense
counsel’s offer that Defendant testify first.

¶14 Even if the trial court’s order of examining witnesses was an
error, reversal is not warranted because the error was harmless. After
Defendant’s testimony, the trial court declined the State’s request to deny
Defendant’s motion because he had not met the burden of going forward
and heard from the State’s witnesses. By doing so, the trial court implicitly
found that Defendant had met his burden of moving forward and that it
was the State’s turn to proceed with its evidence to meet its burden of
persuasion. Also, in denying Defendant’s motion to suppress, the trial court
found that “based on the totality of circumstances . . . the police officers did
develop a reasonable suspicion that the defendant violated the law by
making the wide turn onto Country Club.” The record supports the trial
court’s finding. But even if the trial court erred, the error was harmless.

b. A.R.S. § 28–751(2)

¶15 Garcia El argues that the trial court erred in finding that
reasonable suspicion existed for the stop because (1) A.R.S. § 28–751(2) did
not apply to his left turn, and (2) the responding officer’s mistaken
interpretation of the statute was not objectively reasonable. Because
Defendant failed to object on these specific grounds, review is “solely for
fundamental error.” See State v. Lopez, 217 Ariz. 433, 435, ¶ 4 (App. 2008).
Interpretation and application of statutes is reviewed de novo. State v.
Patterson, 222 Ariz. 574, 575, ¶ 5 (App. 2009).

¶16 A police officer needs reasonable suspicion of a traffic
violation to justify a traffic stop under the Fourth Amendment to the United

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States Constitution. Heien v. North Carolina, 574 U.S. 54, 60 (2014). As to left
turns, the statute provides:

The driver of a vehicle intending to turn left shall approach
the turn in the extreme left-hand lane lawfully available to
traffic moving in the direction of travel of the vehicle. If
practicable the driver shall make the left turn from the left of
the center of the intersection and shall make the turn to the
left lane immediately available for the driver’s direction of
traffic.

A.R.S. § 28–751(2).

¶17 The trial court did not err in finding that reasonable suspicion
existed for the stop. Section 28–751(2) is reasonably susceptible to the
interpretation that a driver turning from a private driveway onto a public
roadway is turning at an intersection. See State v. Bouck, 225 Ariz. 527, 530,
¶ 11 (App. 2010) (holding that A.R.S. § 28–751(1), which governs right turns,
applies when “a driver is turning from a private driveway onto a public
roadway”). Also, as Garcia El points out, no Arizona court has directly
construed this provision. The responding officer’s interpretation of the
statute was objectively reasonable.

¶18 Finally, although Defendant argues on appeal that A.R.S.
§ 28–751(2) is unambiguous, during the suppression hearing, he described
it as “complicated and convoluted.” It was thus objectively reasonable for
the responding officer to think that Garcia El’s turn from the driveway onto
the public roadway was not proper under the law. See Heien, 574 U.S. at 68
(holding that police officer had reasonable suspicion when he made an
objectively reasonable mistake of law as to ambiguous statutory language
not previously construed by the courts). Here, even if an actual violation
had not occurred, the responding officer’s reading of the statute provided
reasonable suspicion of a violation of A.R.S. § 28–751(2) to justify the stop.
As a result, Garcia El has shown no error.

II. The Digital Scale

¶19 Garcia El challenges the trial court’s ruling admitting the
digital scale in evidence on several grounds. Each argument is addressed
below. The trial court’s ruling on the admissibility of evidence is reviewed
for an abuse of discretion. State v. Tucker, 215 Ariz. 298, 313, ¶ 46 (2007). This
court defers to the trial court’s assessment of relevance and unfair prejudice.
State v. Via, 146 Ariz. 108, 122 (1985).

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¶20 Defendant first argues that the digital scale constituted
impermissible other act and propensity evidence. The State argues that the
scale was relevant to prove cocaine possession and was admissible as
intrinsic evidence. Although Garcia El argues the State failed to preserve
the intrinsic evidence argument in superior court, the State argued that
evidence of the scale was offered “to establish the defendant’s knowledge
of the cocaine within his backpack.” Thus, the State sufficiently preserved
the argument.

¶21 “[E]vidence is intrinsic in Arizona if it (1) directly proves the
charged act, or (2) is performed contemporaneously with and directly
facilitates commission of the charged act.” State v. Ferrero, 229 Ariz. 239, 243,
¶ 20 (2012). To prove the charged act of cocaine possession, the State had to
show that Garcia El knowingly possessed cocaine. See A.R.S. § 13–3408. The
bag of cocaine and the scale were found inside Garcia El’s backpack. And
evidence of the scale was relevant to show that Garcia El knowingly
possessed the cocaine.

¶22 Next, Garcia El argues that the trial court erred in admitting
the scale because the State’s notice was untimely. “The indictment itself
need not inform the defendant of the theory by which the state intends to
prove that charge so long as the defendant receives sufficient notice to
reasonably rebut the allegation.” State v. Rivera, 207 Ariz. 69, 73, ¶ 12 (App.
2004). Garcia El argues that the charging document gave him notice that the
State intended to use the scale for the marijuana-related charges, but not the
cocaine possession charge. And the State’s Rule 15.1(b) disclosure, which
was unchanged after the State dismissed the other charges, noted that it
“may introduce into evidence” the scale. As a result, the State provided
adequate disclosure.

¶23 Garcia El also argues that the trial court erred in admitting the
scale because it was not relevant to the cocaine possession charge. Evidence
is relevant if it tends to make a fact of consequence more or less probable.
See Ariz. R. Evid. 401. The standard of relevance “is not particularly high.”
State v. Oliver, 158 Ariz. 22, 28 (1988). Here, as explained above, supra ¶ 19,
the record supports the finding that the digital scale tended to prove that
Garcia El knowingly possessed the cocaine. The scale therefore was
relevant, and the trial court did not err in admitting it.

¶24 Finally, Garcia El argues that even if the scale was relevant, it
presented “unnecessary cumulative evidence on the issue” because the
mail found in the backpack was more compelling and less inflammatory
evidence than the scale. But Rule of Evidence 403 does not mandate the

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exclusion of relevant evidence when other evidence is claimed to be more
compelling. Nor has Garcia El shown that the superior court abused its
discretion in overruling his objection that the scale should be precluded
under Arizona Rule of Evidence 403.

III. Profile Evidence

¶25 Defendant argues that the State’s reliance on the scale and the
testimony about the use of scales in drug transactions constituted
impermissible profile evidence. Because Defendant did not object to this
evidence at trial, this court will not reverse unless the error was
fundamental and prejudicial. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12
(2018); Lopez, 217 Ariz. at 435, ¶ 4.

¶26 “Profile evidence tends to show that a defendant possesses
one or more of an informal compilation of characteristics or an abstract of
characteristics typically displayed by persons engaged in a particular kind
of activity.” State v. Ketchner, 236 Ariz. 262, 264, ¶ 15 (2014) (cleaned up).
Profile evidence may not be used to show guilt because “[i]t creates too high
a risk that a defendant will be convicted not for what he did but for what
others are doing.” State v. Cifuentes, 171 Ariz. 257, 257 (App. 1991).

¶27 Here, Garcia El has not shown that the testimony about the
use of scales in drug transactions was error. “Expert testimony about
general behaviors is permitted if helpful to a jury’s understanding of the
evidence.” Escalante, 245 Ariz. at 143, ¶ 25; see also State v. Carreon, 151 Ariz.
615, 617 (App. 1986). Here, the qualified officers explained that scales, like
the one found in Garcia El’s vehicle, can be used to weigh drugs being
bought or sold. They did not, however, testify that the scale and the packing
materials, together with other behaviors, were consistent with drug
trafficking. See Escalante, 245 Ariz. at 143, ¶ 25. Similarly, the prosecutor, in
closing, argued that the presence of the scale suggested that Defendant
knew of the cocaine in his backpack. The prosecutor’s reliance on the scale
complied with the limited purpose for which the trial court admitted the
scale—to show knowledge. Thus, Garcia El has shown no error.

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CONCLUSION

¶28 For the reasons stated, Garcia El’s convictions and sentences
are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: CC

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