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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    STEVE ANDREW SUAZO, Appellant.

                             No. 1 CA-CR 17-0184
                               FILED 7-31-2018


           Appeal from the Superior Court in Maricopa County
                      No. CR2014-138723-001 DT
                  The Honorable Justin Beresky, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant

Steve Andrew Suazo, Tucson
Appellant
                              STATE v. SUAZO
                             Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


W I N T H R O P, Presiding Judge:

¶1             Steve Andrew Suazo (“Appellant”) appeals his conviction
and sentence for one count of possession of dangerous drugs for sale.
Appellant’s counsel filed a brief in accordance with Smith v. Robbins, 528
U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon,
104 Ariz. 297 (1969), stating that he searched the record on appeal and
found no arguable question of law that was not frivolous. Appellant’s
counsel therefore requested that we review the record for fundamental
error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999) (stating that this
court reviews the entire record for reversible error). This court granted
counsel’s motion to allow Appellant to file a supplemental brief in propria
persona, and Appellant did so, raising several issues that we address and
prompting us to issue an order for supplemental briefing on the part of
counsel pursuant to Penson v. Ohio, 488 U.S. 75 (1988).

¶2            We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and 13-4033(A).1 After reviewing the
entire record and considering the supplemental briefing, we conclude that
trial error occurred, but the error in this case does not require reversal;
accordingly, we affirm Appellant’s conviction and sentence.

                 FACTS AND PROCEDURAL HISTORY2

¶3        On September 5, 2012, undercover Phoenix police detectives
S.A. and R.A. drove to a restaurant parking lot to purchase


1      We cite the current version of all applicable statutes because no
revisions material to this decision have occurred since the date of the
offense.

2     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64 (App. 1994).


                                        2
                            STATE v. SUAZO
                           Decision of the Court

methamphetamine from a person named “Steve.” A confidential informant
had arranged the meeting. Several minutes later, a person subsequently
identified as Appellant drove into the parking lot, parked near the
detectives, and exited his vehicle. Detective S.A. greeted Appellant, who
identified himself as “Steve,” and the men discussed the quantity and price
of the methamphetamine to be purchased. Detective S.A. introduced
Appellant to Detective R.A., and Appellant handed the detectives a plastic
baggie containing approximately a quarter-ounce of methamphetamine.3
In exchange, the detectives paid Appellant two hundred and eighty dollars.

¶4            A jury convicted Appellant as charged of one count of
possession of dangerous drugs for sale, a class two felony. See A.R.S. § 13-
3407. After finding Appellant had at least two historical prior felony
convictions for sentencing purposes, the trial court sentenced Appellant to
a presumptive term of 15.75 years’ imprisonment in the Arizona
Department of Corrections, ordered the sentence be concurrent with
sentences imposed in another case,4 and credited Appellant for 959 days of
presentence incarceration. Appellant filed a timely notice of appeal.

                                ANALYSIS

¶5            Appellant raises several arguments in his supplemental brief.
As previously noted, see supra note 4, we do not address arguments
unrelated to this case.5 Additionally, we do not address Appellant’s claims

3     At trial, a forensic scientist employed at the Phoenix Police
Department’s crime laboratory testified the baggie contained 6.6 grams of
methamphetamine in a “usable condition.”

4       See Maricopa County Superior Court Case No. CR2014-002227-009
DT. Appellant appealed his convictions and sentences in that case, and this
court affirmed as modified to reflect corrections in the trial court’s
sentencing minute entry. See State v. Suazo, 1 CA-CR 17-0192, 2018 WL
1614507, at *2 n.3, ¶ 10 (Ariz. App. Apr. 3, 2018) (mem. decision) (mandate
issued May 18, 2018). Several of the issues Appellant raises in his pro per
brief stem from alleged facts apparently present in his other case, not this
case. We do not address issues related to Appellant’s other case and appeal
because we will not consider a collateral attack on his other convictions. See
generally State ex rel. Collins v. Superior Court, 157 Ariz. 71, 75 (1988).

5    We also do not address Appellant’s arguments regarding an alleged
computer-aided dispatch (“CAD”) report. The alleged CAD report is not



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                             STATE v. SUAZO
                            Decision of the Court

of ineffective assistance of counsel because such claims must be raised in a
petition for post-conviction relief, not on direct appeal. See State v. Spreitz,
202 Ariz. 1, 3, ¶ 9 (2002).

       I.     Sufficiency of the Evidence

¶6            Appellant argues “there is no proof of a drug sale,” ostensibly
because the only evidence of the transaction between him and the
detectives was the detectives’ (and forensic scientist’s) testimony, and the
State put forth no additional corroborating evidence, including but not
limited to surveillance audio or video, additional independent witnesses to
the transaction, or Appellant’s fingerprint or DNA evidence. However,
testimony alone may provide proof sufficient to support a conviction. See
State v. Dutton, 106 Ariz. 463, 465 (1970); State v. Munoz, 114 Ariz. 466, 469
(App. 1976); see also State v. Hall, 204 Ariz. 442, 454, ¶ 49 (2003) (“[P]hysical
evidence is not required to sustain a conviction if the totality of the
circumstances demonstrates guilt beyond a reasonable doubt.” (citation
omitted)); State v. Montano, 121 Ariz. 147, 149 (App. 1978) (“[O]ne witness,
if relevant and credible, is sufficient to support a conviction.” (citation
omitted)).

¶7             Here, both detectives testified that they paid Appellant two
hundred and eighty dollars to purchase approximately a quarter-ounce of
methamphetamine, and a forensic scientist confirmed the substance
obtained from Appellant was 6.6 grams of methamphetamine in a useable
condition. This testimony constituted substantial evidence to permit a
reasonable jury to conclude Appellant possessed and sold a useable amount
of methamphetamine to the undercover detectives. See State v. Windsor, 224
Ariz. 103, 104, ¶ 4 (App. 2010) (“We will not reverse a conviction unless the
state has failed to present substantial evidence of guilt.”).

       II.    Alleged Hearsay

¶8           Appellant also contends that because the detectives’
testimony regarding the drug transaction was not supported by
corroborating evidence, it constituted inadmissible hearsay. See Ariz. R.
Evid. 802. Appellant misapprehends the definition of hearsay, however.
The detectives’ statements do not constitute hearsay merely because they
were not corroborated by additional evidence. See Ariz. R. Evid. 801(c)(1)
(defining hearsay in part as a statement that “the declarant does not make


part of the record, and we decline to consider an issue that was neither
raised at trial nor substantiated by evidence in the record.


                                       4
                            STATE v. SUAZO
                           Decision of the Court

while testifying at the current trial or hearing”). Further, Detective S.A.’s
testimony that Appellant identified himself as “Steve” when he met the
detectives was not hearsay, see Ariz. R. Evid. 801(d)(2)(A), and the
detectives’ testimony describing details of the drug transaction, which the
State presented to establish facts of consequence, did not otherwise consist
of extrajudicial statements made to prove the truth of the matter asserted,
see Ariz. R. Evid. 801(c)(1)-(2). Consequently, the detectives’ testimony
describing the drug transaction was not hearsay.

      III.   Preclusion of Evidence Attacking the Detectives’ Credibility

¶9             Appellant argues that because the detectives had committed
past disciplinary violations and were therefore on the “Brady List” of police
officers implicated in professional misconduct,6 the trial court erred by
denying his request to admit evidence of their inclusion on the list for
impeachment purposes. During trial, however, Appellant’s counsel sought
to impeach both detectives’ testimony by cross-examining the detectives
about their past disciplinary violations. Counsel elicited testimony from
Detective S.A. that he had previously been disciplined by the Phoenix
Police Department when he received a written reprimand for failing to
honestly report facts pertaining to an investigation in 1983. Similarly,
counsel elicited testimony from Detective R.A. that he had been disciplined
in 2003 for leaving a training seminar early and not logging out when he
did so. Thus, Appellant presented the jury with the relevant information
regarding the detectives’ past conduct, and the jury could weigh that
information in assessing the detectives’ credibility. Presentation of the
Brady List or any additional documentary evidence supporting it would
have been cumulative, see Ariz. R. Evid. 403, and preclusion of that list did
not prejudice Appellant. Thus, to the extent the trial court did preclude its
admission, the court did not abuse its discretion, see State v. Williams, 133
Ariz. 220, 230 (1982), much less commit fundamental, prejudicial error.

      IV.    Conflicts, Inconsistencies, and Omissions in Testimony

¶10          Appellant also argues the detectives’ testimony conflicted or
contained inconsistencies—such as the proximity to which Appellant
parked his vehicle to the detectives’ vehicle before the drug transaction—
and contained omissions—such as a lack of detail regarding the make,


6     Upon proper request, prosecutors must disclose to criminal
defendants the names of police officers accused of professional misconduct,
and a list of such officers is called a “Brady List.” See generally Brady v.
Maryland, 373 U.S. 83, 87-88 (1963).


                                      5
                               STATE v. SUAZO
                              Decision of the Court

model, and license plate number of Appellant’s vehicle. Any discrepancies
or omissions in these immaterial details go to the detectives’ credibility and
do not constitute perjury, as asserted by Appellant, or reversible error. It
was the jury’s province to assess and weigh the detectives’ credibility and
to find the facts, while considering those inconsistencies or omissions. See
State v. Boggs, 218 Ariz. 325, 335, ¶ 39 (2008) (“Determining veracity and
credibility lies within the province of the jury . . . .” (citation omitted)); Estate
of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12 (2000) (“The
credibility of a witness’ testimony and the weight it should be given are
issues particularly within the province of the jury.” (citation omitted)). We
defer to the jury’s findings if they are supported by the record and not
clearly erroneous. See State v. Grell, 212 Ariz. 516, 528, ¶ 58 (2006) (citation
omitted).

       V.      Willits Instruction

¶11          Appellant next argues the trial court should have instructed
the jury pursuant to State v. Willits, 96 Ariz. 184 (1964). The trial court
declined to provide such an instruction after discussing the matter with
counsel, both of whom agreed the instruction was not necessary because it
was not relevant.

¶12            In general, we review a trial court’s denial of a Willits
instruction for an abuse of discretion. State v. Glissendorf, 235 Ariz. 147, 150,
¶ 7 (2014). A Willits instruction tells jurors they may draw an inference from
the State’s loss or destruction of material evidence that the evidence would
have been unfavorable to the State. See State v. Fulminante, 193 Ariz. 485,
503, ¶ 62 (1999). Nevertheless, “[d]estruction or nonretention of evidence
does not automatically entitle a defendant to a Willits instruction.” State v.
Murray, 184 Ariz. 9, 33 (1995). “To be entitled to a Willits instruction, a
defendant must prove that (1) the state failed to preserve material and
reasonably accessible evidence that could have had a tendency to exonerate
the accused, and (2) there was resulting prejudice.” State v. Smith, 158 Ariz.
222, 227 (1988) (citation omitted). To show evidence had a “tendency to
exonerate,” a defendant cannot simply speculate about how the evidence
may have been helpful. Glissendorf, 235 Ariz. at 150, ¶ 9 (citations omitted).
Instead, “there must be a real likelihood that the evidence would have had
evidentiary value.” Id. (citations omitted). Further, Willits only provides
for a duty to preserve evidence, not create it, and such an instruction is not
called for merely because a more exhaustive investigation might have been
made. See generally State v. Walters, 155 Ariz. 548, 550-51 (App. 1987).




                                         6
                             STATE v. SUAZO
                            Decision of the Court

¶13            On this record, there is no indication the State lost, destroyed,
or failed to preserve evidence, and it was not required to create evidence by
videotaping or audiotaping the transaction between Appellant and the
detectives. Although Appellant argues the detectives should have been
required to retain any notes used to create the underlying police report and
that failure to do so should have triggered a Willits instruction, any notes
taken by the detectives in this case were irrelevant once their substance was
incorporated into the police report, and the court therefore properly
declined to give a Willits instruction. See State v. Travis, 26 Ariz. App. 24, 27
(1976).

       VI.    Confidential Informant

¶14           Finally, Appellant alleges a violation of his Confrontation
Clause rights, see U.S. Const. amend. VI; Ariz. Const. art. 2, § 24, with
respect to testimonial evidence regarding possible hearsay statements
allegedly made by the confidential informant and introduced through
Detective R.A.7 The Confrontation Clause prohibits the admission of an
out-of-court statement of a witness who does not appear at trial if the
statement is testimonial, unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness. See
Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

¶15          In this case, Detective R.A. testified in response to the
prosecutor’s questioning on direct examination that the drug deal at issue
had been set up by a confidential informant, and that the confidential
informant had named Appellant as the person selling methamphetamine:

       Q And did you engage in an investigation of a potential drug
       buy?
       A Yes.
       Q How did that get set up?
       A That was set up through a confidential informant.
       Q And what information did you have going into that
       potential drug buy?
       A The informant provided the first and last name of the
       individual I was dealing with. And then also provided,
       basically stated that this individual was selling
       methamphetamine.
       Q And what was the first and last name you had?


7      The confidential informant did not testify at trial, and Appellant had
no prior opportunity to cross-examine him.


                                       7
                             STATE v. SUAZO
                            Decision of the Court

       A Steve Suazo.

Appellant did not object to this testimony at trial.

¶16          Pursuant to Penson, 488 U.S. at 75-89, we ordered counsel for
both sides to file simultaneous briefs addressing whether, through this
testimony, a Confrontation Clause violation occurred; if so, whether it
constituted fundamental, prejudicial error; and if so, the appropriate
remedy.

¶17            After receiving and considering the parties’ briefs, we agree
with Appellant that the quoted testimony, elicited by the prosecutor,
constituted inadmissible hearsay offered to prove the truth of the matter
asserted—that Appellant was a methamphetamine dealer, consistent with
the detectives’ testimony that Appellant sold methamphetamine to them—
and violated Appellant’s rights under the Confrontation Clause. However,
because Appellant did not object to the detective’s testimony, our standard
of review is fundamental error, which requires Appellant to “show that the
error complained of goes to the foundation of his case, takes away a right
that is essential to his defense, and is of such magnitude that he could not
have received a fair trial.” State v. Henderson, 210 Ariz. 561, 568, ¶ 24 (2005)
(citation omitted). For Appellant to prevail under this standard of review,
he must establish both that fundamental error exists and that the error
caused him prejudice. Id. at 567, ¶ 20. To prove prejudice, Appellant may
not rely upon mere speculation. See State v. Munninger, 213 Ariz. 393, 397,
¶ 14 (App. 2006); State v. Lowery, 230 Ariz. 536, 540, ¶ 9 (App. 2012) (stating
that, when a defendant fails to object to an alleged error at trial, he must
affirmatively show prejudice, and not merely that the error may reasonably
have contributed to the verdict).

¶18            In this case, even if the error may properly be categorized as
fundamental, Appellant fails to affirmatively demonstrate prejudice.
Appellant argues he “was improperly labeled a drug dealer,” and he
speculates this testimony “may have impacted the jury’s view of the
evidence.” However, each of the detectives positively identified Appellant
at trial as the person who sold them methamphetamine, the forensic
scientist identified the substance tested as methamphetamine, and although
defense counsel partially impeached the detectives through their past
conduct, their identification of Appellant as the seller was certain.
Accordingly, we conclude Appellant would unquestionably have been
convicted even if the improper testimony had not been elicited. Appellant
fails to show prejudice, and on this record, no reversible error occurred.



                                       8
                               STATE v. SUAZO
                              Decision of the Court

       VII.   Other Issues

¶19          We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537, ¶ 30. Appellant
was represented by counsel at all stages of the proceedings and was given
the opportunity to speak at sentencing. The proceedings were conducted
in compliance with his constitutional and statutory rights and the Arizona
Rules of Criminal Procedure.

¶20            After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See State
v. Shattuck, 140 Ariz. 582, 584-85 (1984). Appellant has thirty days from the
date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

                                 CONCLUSION

¶21           Appellant’s conviction and sentence are affirmed.




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




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