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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                DEVIN DEMETRIUS RONDAN, Appellant.

                             No. 1 CA-CR 18-0670
                               FILED 10-10-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR 2018-001853-001
                     The Honorable Erin Otis, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
                           STATE v. RONDAN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1           Devin Rondan appeals his convictions and sentences for
possession of dangerous drugs and narcotics for sale.1 For the following
reasons, we affirm.

                             BACKGROUND

¶2             While Rondan received medical treatment for injuries he
sustained in “an unrelated matter,” a police officer searched his personal
belongings for weapons, and in so doing, found a “rocky” substance the
officer “believed to be drugs,” as well as a lighter and $147.2 After this
discovery, an attending hospital nurse provided police officers with a clear
plastic bag she had removed from Rondan’s rectum. Inside the bag, officers
found 17 small baggies, each containing a powdery substance, and a folded
dollar bill. Subsequent testing revealed that: (1) the rocky substance was
crack cocaine (3.83 grams); (2) 11 baggies contained cocaine (1.535 total
gram weight); and (3) 6 baggies contained methamphetamine (193.7 total
milligram weight).

¶3           The State charged Rondan with one count of possession of
dangerous drugs for sale (Count 1—methamphetamine), two counts of
possession of narcotic drugs for sale (Count 2—crack cocaine having a
weight that exceeded the statutory threshold; Count 3—cocaine), and three
counts of possession of drug paraphernalia (Counts 4–6). The State also
alleged aggravating circumstances and that Rondan had four prior felony




1     Rondan was also convicted of three counts of possession of drug
paraphernalia but does not challenge those convictions or sentences on
appeal.

2    At trial, the parties stipulated that the circumstances leading to
Rondan’s hospitalization would not be disclosed to the jury.


                                     2
                            STATE v. RONDAN
                            Decision of the Court

convictions and committed the alleged offenses while on release from
confinement.

¶4            After a four-day trial, a jury found that Rondan committed
the offenses as charged and while on release from confinement. At
sentencing, the superior court imposed concurrent, presumptive terms of
15.75 years’ imprisonment on Counts 1 through 3 and concurrent,
presumptive terms of 3.75 years’ imprisonment on Counts 4 through 6.
Rondan timely appealed.

                               DISCUSSION

¶5            Rondan contends the superior court erroneously admitted
drug-courier profile testimony as substantive evidence of guilt. Because
Rondan failed to object to this evidence at trial, we review only for
fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005). To
prevail under this standard, Rondan must establish the existence of error
and show that the error: (1) went to the foundation of the case; (2) took from
him a right essential to his defense; or (3) was so egregious that he could
not possibly have received a fair trial. See State v. Escalante, 245 Ariz. 135,
142, ¶ 21 (2018). If Rondan establishes fundamental error under prongs one
or two, he must make a separate showing of prejudice, but if he establishes
error under the third prong, he has shown both fundamental error and
prejudice. See id.

¶6             “Drug-courier profile evidence suggests that a defendant
possesses one or more behavioral characteristics typically displayed by
persons trafficking in illegal drugs.” Escalante, 245 Ariz. at 142, ¶ 22. Stated
differently, it is “a loose assortment of general, often contradictory,
characteristics and behaviors” “offered to implicitly or explicitly suggest
that because the defendant has those characteristics, a jury should conclude
that the defendant must have committed the crime charged.” State v. Lee,
192 Ariz. 542, 544, ¶ 10 (1998); State v. Haskie, 242 Ariz. 582, 585–86, ¶ 14
(2017). While such evidence has some legitimate uses, such as assisting a
jury in understanding the modus operandi of a drug-trafficking organization,
it may not be “used as substantive proof of guilt because of the risk that a
defendant will be convicted not for what he did but for what others are
doing.” Escalante, 245 Ariz. at 142, ¶ 22 (internal quotations omitted).

¶7           In this case, the prosecutor elicited testimony from Detective
Ryan Moskop regarding the sale and use of illegal drugs. Although he was
not personally involved with the investigation, Detective Moskop provided
expert opinion testimony based on his extensive experience with drug



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                           STATE v. RONDAN
                           Decision of the Court

cases, recounting common concealment techniques, typical packaging of
controlled substances, the street value of drugs, and the types of drug
paraphernalia frequently used to ingest various substances. After laying
this foundation, the detective discussed his review of the evidence in this
case.

¶8             With respect to the seized crack cocaine, Detective Moskop
testified that the quantity was greater than that typically associated with
personal use, but he acknowledged that the packaging, as a single unit, was
inconsistent with possession for distribution. According to Detective
Moskop, the inverse was true, however, for the uniform baggies of
methamphetamine and cocaine; that is, for those substances, the overall
weight was not inconsistent with personal use, but the packaging reflected
possession for distribution purposes.

¶9            When asked about the lighter and dollar bill found near the
drugs, Detective Moskop acknowledged that the paraphernalia was
consistent with personal use, but he also noted that users and sellers are not
mutually exclusive, and the presence of the paraphernalia did not foreclose
the possibility that the drugs were possessed for distribution. Likewise,
while acknowledging that no measuring device was found with the drugs,
Detective Moskop explained that the absence of a scale was not
determinative because the drugs were already weighed and packaged.
Although both drug sellers and users may possess multiple types of drugs
and “stash” drugs rectally, the detective testified that the uniform
appearance of the drugs and their packaging was consistent with
possession for sale.

¶10           At the outset of his closing argument, the prosecutor defined
the only contested issue for the jury—whether Rondan possessed the seized
drugs for sale or personal use. Relying heavily on Detective Moskop’s
testimony, the prosecutor then argued that the “totality of the
circumstances,” particularly the weight and packaging of the drugs, was
consistent with possession for sale.

¶11            An expert may testify within his expertise about a subject that
is beyond the typical juror’s knowledge and experience. Ariz. R. Evid. 702,
703. While an expert may not opine that a constellation of otherwise
innocent behaviors, when grouped together, provides substantive proof of
drug trafficking, the prohibition on drug-courier profile evidence does not
preclude an expert from explaining the different characteristics associated
with drugs possessed for sale and personal use. See Escalante, 245 Ariz. at
142, ¶ 22; Lee, 192 Ariz. at 544, ¶ 10.


                                      4
                            STATE v. RONDAN
                            Decision of the Court

¶12            In this case, there was no dispute that Rondan possessed the
drugs and, therefore, no risk that he would be convicted of criminal conduct
based on innocent behavior. See also United States v. Espinoza-Valdez, 889
F.3d 654, 658–59 (9th Cir. 2018) (“Drug courier profile testimony is
inherently prejudicial because of the potential it has for including innocent
citizens as profiled drug couriers and because simply matching a defendant
to a drug profile may unfairly suggest to the jury that otherwise innocuous
conduct or events demonstrate criminal activity.”). Rather than presenting
drug-courier profile evidence, Detective Moskop provided qualified expert
testimony and context for the jury concerning the nature of the physical
evidence found on Rondan’s person and in his hospital room. See United
States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994). Therefore, the superior court
did not err, much less commit fundamental error, by admitting Detective
Moskop’s expert opinion testimony.

                               CONCLUSION

¶13          For the foregoing reasons, we affirm Rondan’s convictions
and sentences.




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




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