                                IN THE
              ARIZONA COURT OF APPEALS
                              DIVISION TWO


                       THE STATE OF ARIZONA,
                              Appellee,

                                   v.

                     ARTHUR CORNELL WRIGHT,
                            Appellant.

                       No. 2 CA-CR 2015-0222
                        Filed March 23, 2016


          Appeal from the Superior Court in Pima County
                       No. CR20132689002
            The Honorable Richard D. Nichols, Judge

                              AFFIRMED


                               COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee

Harriette P. Levitt, Tucson
Counsel for Appellant
                         STATE v. WRIGHT
                         Opinion of the Court


                              OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.


M I L L E R, Judge:

¶1            After a jury trial, appellant Arthur Wright was
convicted of two counts of possession of a narcotic drug for sale and
one count of possession of drug paraphernalia, and sentenced to
concurrent prison terms of 10.5 years for the first two charges and
2.25 years for the paraphernalia offense. Wright argues the trial
court erred by admitting into evidence a redacted audio recording
made by police officers during the undercover operation leading to
his arrest. Finding no abuse of discretion, we affirm.

                Factual and Procedural Background

¶2           We view the facts in the light most favorable to
sustaining the jury’s verdicts. State v. Nelson, 214 Ariz. 196, ¶ 2, 150
P.3d 769, 769 (App. 2007). In June 2013, Tucson Police Officer J.D.
was working undercover as part of a drug interdiction team that
focused on street sales of narcotics. He approached a man near a
convenience store who was later identified as Wright’s co-
defendant, Richard Davis. J.D. asked if Davis could help him buy
methamphetamine and Davis said he could. Davis climbed into
J.D.’s unmarked truck. The truck had a one-way radio transmitter
and digital audio recorder hidden inside it. Other police officers
were listening to everything that was happening in the truck
through the one-way radio and were prepared to move in if they
believed J.D. was in danger.

¶3           J.D. gave Davis two $20 bills—one as his payment and
the other to use to buy the methamphetamine. He testified they also
talked about “possibly partying that night,” and stated he had
offered Davis a hotel room for the evening. Davis made a telephone
call using J.D.’s cell phone and then directed J.D. to an apartment,



                                   2
                        STATE v. WRIGHT
                        Opinion of the Court

but when they         arrived   Davis    was    unable    to   obtain
methamphetamine.

¶4           Davis then directed J.D. to drive to a particular gas
station. Davis got out of the truck and went into the gas station’s
convenience store. Shortly thereafter, a car pulled into the parking
space immediately adjacent to J.D.’s truck. A man later identified as
Wright was in the passenger seat of that car. The driver of the car
called J.D. on his cell phone. J.D. explained to the driver of the car
that Davis was inside the store and would be out shortly. Davis
came out of the store and got into the driver’s-side rear seat of the
car. J.D. saw Wright reach down under his seat, and then “do[]
something back and forth” with Davis.

¶5           Davis got back in J.D.’s truck, showed him a baggie that
contained what appeared to be methamphetamine, and said, “See, I
got it.” When J.D. realized Davis planned to hold onto the baggie
until J.D. had booked the hotel room they had talked about, he made
a prearranged arrest signal so other officers would stop the car.
They did so and arrested Davis.1

¶6          Another Tucson Police officer stopped the car in which
Wright was riding as a passenger. As the officer approached the car,
he saw Wright trying to conceal something between the center
console and the seat. It turned out to be a digital scale. As the
officer removed Wright from the car, the officer saw six small
baggies on the passenger seat where Wright had been sitting. Two
of the baggies contained crack cocaine; the other four contained
heroin.

¶7           At trial, a redacted version of the audio recording from
J.D.’s truck was admitted into evidence over Wright’s objection as
Exhibit 49. Wright was convicted and sentenced as described above
and now appeals. We have jurisdiction under A.R.S. §§ 13-4031 and
13-4033(A)(1).



      Davis pled guilty to solicitation to offer to transfer a
      1

dangerous drug (methamphetamine) and testified at Wright’s trial.


                                  3
                            STATE v. WRIGHT
                            Opinion of the Court

                                  Analysis

¶8           Wright argues the trial court prejudicially erred by
admitting Exhibit 49 over his objection. We review the trial court’s
evidentiary rulings for an abuse of discretion. State v. Johnson, 212
Ariz. 425, ¶ 25, 133 P.3d 735, 743 (2006).

¶9            The portion of Exhibit 49 to which Wright objected
covered the moment Davis got out of J.D.’s truck and went into the
convenience store, until the moment he got back into the truck. It
consists of the following statements:

                Two-Five,[2] he’s getting out and he’s, uh,
                looks like going in the store. He’s got the
                twenty in his right hand. And again, he’s
                got whatever it is. He hasn’t moved it. It’s
                still in his left shoe.[ 3 ] Inside the store I
                think he’s buying a beer or something. Got
                a, no, that’s probably just some U of A
                people. Next to us. Just in case you guys
                can’t see, I’m parked, uh, just in front of the
                store, facing south, kind of over towards
                the car wash and in front. He’s still at the
                counter right now. And there’s a car
                pulling up. Looks like it’s a Ford or
                something. This might be our delivery
                right here. It’s a Ford Taurus, it looks like,
                uh, gray. There’s a number three and a




      2J.D.’s   radio call sign that night was “Bravo 25.”
      3J.D. had seen Davis return from the apartment with a baggie,
which he had placed in his shoe or sock. Davis admitted at Wright’s
trial that he had purchased a small baggie of crack cocaine for
himself at the apartment. A possession of crack cocaine charge
against Davis was dropped as part of his plea agreement.


                                      4
                         STATE v. WRIGHT
                         Opinion of the Court

              number five in the car.[4] A number three
              male passenger, and a number five female
              driver. [phone rings] She’s calling me
              right now. It’s the car next to us. Hello?
              Hey, uh, he’s, uh, he’s in the store right
              now, uh, just getting a drink. He should be
              coming out here in a sec. Oh, is that you?
              Hey, hey, I’ll wait ‘til he comes out and you
              guys can talk to him or whatever. Cool.
              Later. Bye. Yeah, she was on the phone.
              Looks like he’s coming out now. Looks like
              he just bought a beer or something. And
              he’s walking over to her. He’s getting in
              the left rear. Looks like the number three
              male front right, he’s got a gray cap and
              like a black cut-off jersey kind of thing on.
              He’s reaching up kind of under the seat.
              Looks like he’s messing with something.
              Maybe he’s got product with him. The
              driver’s on the phone again. Our guy’s
              getting out, it looks like. He’s gonna get
              back in with me.

¶10          Wright argues Exhibit 49 essentially was a police report
and inadmissible under the general rule precluding the admission of
hearsay. See Ariz. R. Evid. 801(c) (defining hearsay); State v. Smith,
215 Ariz. 221, ¶ 28, 159 P.3d 531, 539 (2007) (police report
inadmissible unless hearsay exception applies). Hearsay generally is
inadmissible if no exception applies. Ariz. R. Evid. 802. The state
argues here, as it did below, that the recording was admissible as a
present sense impression—“[a] statement describing or explaining
an event or condition, made while or immediately after the declarant
perceived it,” Ariz. R. Evid. 803(1).



      4J.D.  testified his team used numbers as shorthand for racial
identification. “[N]umber three” means African-American and
“number five” means Caucasian or white.


                                   5
                         STATE v. WRIGHT
                         Opinion of the Court

¶11          The present-sense-impression exception to the hearsay
rule “is based on the notion that ‘substantial contemporaneity of
event and statement’ negates the likelihood of fabrication or
misrepresentation.” State v. Damper, 223 Ariz. 572, ¶ 16, 225 P.3d
1148, 1152 (App. 2010), quoting State v. Tucker, 205 Ariz. 157, ¶ 42, 68
P.3d 110, 118 (2003). “We assume, as a general matter, that when the
declarant has had little time to reflect on the event she has perceived,
her statement will be spontaneous and therefore reliable.” Tucker,
205 Ariz. 157, ¶ 42, 68 P.3d at 119. Accordingly, to qualify as an
admissible present sense impression, a statement “require[s] . . .
immediacy.” State v. Thompson, 146 Ariz. 552, 557, 707 P.2d 956, 961
(App. 1985). For example, a witness’s statement, “There goes your
Fast and Furious movie,” comparing her observation about two cars
racing past her to scenes in a movie about street racing, was
admissible as a present sense impression. State v. Sucharew, 205
Ariz. 16, ¶¶ 24-26, 66 P.3d 59, 67 (App. 2003). In the same vein, a
recording of a 9-1-1 call in which the caller described the appearance
of two burglars and their actions as she watched them load her
neighbor’s property into their truck, was a proper present sense
impression. State v. Rendon, 148 Ariz. 524, 526, 528, 715 P.2d 777,
779, 781 (App. 1986).

¶12          Wright admits that “[a]t first glance,” Exhibit 49 “seems
to fall within” the present-sense-impression exception. See Ariz. R.
Evid. 803(1). We agree that Exhibit 49 falls within the plain
language of Rule 803(1). The exhibit consists of descriptions of
events (such as the suspects’ activities and movements) and
conditions (such as descriptions of people and vehicles and their
relative locations) made as the declarant was observing those events
and conditions or immediately thereafter. Id.; accord Sucharew, 205
Ariz. 16, ¶¶ 24-26, 66 P.3d at 67; Rendon, 148 Ariz. at 528, 715 P.2d at
781. Wright nevertheless contends the hearsay exception must be
disregarded here because J.D. “was making the recording for the
specific purpose of creating evidence to be used at trial,” and had a
motive and an opportunity to reflect or fabricate. As a result, he
argues, the statements in Exhibit 49 lack the assurances of reliability
that justify admission of the typical present sense impressions of
disinterested bystanders like the declarants in Sucharew and Rendon.



                                   6
                         STATE v. WRIGHT
                         Opinion of the Court

In his reply brief, Wright suggests Fischer v. State, 252 S.W.3d 375
(Tex. Crim. App. 2008) is “a case much more on point.”

¶13          In Fischer, a state trooper turned on his dashboard-
mounted video camera and body microphone, and then announced
his intention to pull a vehicle over because the driver was not
wearing a seatbelt. Id. at 376-77. After stopping Fischer’s truck, the
officer asked him whether he had any alcohol in the truck, adding,
“I smell alcohol.” Id. at 377. The officer proceeded with an
investigation for driving while under the influence of alcohol. See id.
At four different points during the course of the investigation, he
returned to his patrol car to record his findings on camera. Id. at
377, 385. He dictated to the camera that the “‘subject [had given]
several clues’” during a heel-to-toe test, such as starting the test too
soon, losing his balance, “‘stepp[ing] off the line two times,’”
making an “‘improper turn,’” and using his hands to balance. Id. at
377. He added that Fischer had “‘indicated the same clues’” during
a one-leg stand test, even though the officer noted he had given the
defendant “‘a second chance to do it.’” Id. He dictated the following
observations after conducting a horizontal gaze nystagmus test:
“‘Subject has equal pupil size, equal tracking, has a lack of smooth
pursuit in both eyes, and has distinct nystagmus at maximum
deviation in both eyes. Subject also has onset of nystagmus prior to
forty-five degrees in both eyes.’” Id. He also noted for the recording
that Fischer’s eyes were glassy and bloodshot, his speech was
slurred, his breath smelled strongly of alcohol, and he had a wine
opener in his vehicle. Id. Ultimately, the officer dictated to the
camera, “‘Subject is going to be placed under arrest for DWI,’” and
then he arrested Fischer, telling him “‘I believe you are drunk.’” Id.

¶14           Fischer filed a motion to suppress the videotape of the
traffic stop, but the trial court denied the motion, reasoning the tape
constituted a present sense impression. Id. at 377-78; see also Tex. R.
Evid. 803(1) (textually identical to Ariz. R. Evid. 803(1)). The Texas
Court of Criminal Appeals affirmed the court of appeals, reversing
the trial court. Fischer, 252 S.W.3d at 387. The court reasoned that
“reflective narratives, calculated statements, deliberate opinions,
conclusions, or conscious ‘thinking-it-through’ statements” are not
proper present sense impressions, because “‘[t]hinking about it’


                                   7
                         STATE v. WRIGHT
                         Opinion of the Court

destroys the unreflective nature required of a present sense
impression.” Id. at 381; accord Thompson, 146 Ariz. at 557, 707 P.2d at
961 (present sense impression requires immediacy). The court
concluded the officer’s statements to the camera amounted to “a
speaking offense report.” Fischer, 252 S.W.3d at 385.

¶15           Fischer is distinguishable from the present case. Unlike
the officer’s “reflective narratives” memorialized for the camera in
Fischer, 252 S.W.3d at 381, J.D.’s real-time descriptions of the
suspects’ appearance, vehicle, and movements were not primarily
designed to chronicle earlier investigative findings. Rather, the
statements described the events of a crime as it unfolded, and
provided law enforcement officers with information they could use
to disrupt that crime and successfully apprehend the perpetrators.
In that respect, Exhibit 49 closely parallels the recording of the 9-1-1
call the court found admissible as a present sense impression in
Rendon, in which the caller provided descriptions of burglary
suspects, their vehicle, and their activities in real time as she
watched the crime unfold. 148 Ariz. at 526, 528, 715 P.2d at 779, 781.
As in Rendon, the statements were virtually contemporaneous with
the ongoing crime they described. Id.

¶16          The fact that the declarant in the present case was a law
enforcement officer, unlike the caller in Rendon, does not change the
analysis. See Ariz. R. Evid. 803(1); Tucker, 205 Ariz. 157, ¶ 42, 68 P.3d
at 119 (contemporaneity of statement and event ensures reliability of
present sense impression). The problem with the statements the trial
court erroneously admitted in Fischer was not that they were made
by a law enforcement officer, but that they were made reflectively,
“with an eye toward future litigation.” See 252 S.W.3d at 383-85. In
contrast, the totality of the circumstances reveals that J.D.’s primary
reason for making the statements was to ensure his own safety
during a potentially dangerous undercover operation. See Tucker,
205 Ariz. 157, ¶ 45, 68 P.3d at 119 (admissibility of statement as
present sense impression determined in view of totality of
circumstances). J.D. testified other officers were listening to him
over the one-way radio “[d]uring this entire time . . . so that if I . . .
give signals that I’m in danger, they can move in.” “I’m constantly
watching for people, you know, pulling knives on me, pulling guns


                                    8
                         STATE v. WRIGHT
                         Opinion of the Court

on me,” he continued. By providing details about the situation as it
unfolded, such as the positions of relevant vehicles, physical
descriptions of suspects and their car, and a description of Wright
reaching under the seat where a weapon could have been stored,5
J.D. sought to ensure the other officers listening to him would be
prepared to intervene quickly and effectively if the situation
deteriorated. Accord United States v. Campbell, 782 F. Supp. 1258,
1261-62 (N.D. Ill. 1991) (recording of officer’s statements over radio
to dispatcher describing suspect’s movements and actions as officer
chased him on foot admissible as present sense impression under
Fed. R. Evid. 803(1)); Flythe v. District of Columbia, 4 F. Supp. 3d 222,
233-34 (D.D.C. 2014) (officer’s statements over radio to dispatcher (1)
identifying his location, (2) immediately thereafter saying “‘[d]rop
the knife,’” and (3) immediately thereafter saying defendant “‘[t]ried
to stab me, ma’am. My gun jammed. Get official on this location,’”
admissible as present sense impressions under Fed. R. Evid. 803(1));
see also Fed. R. Evid. 803(1) (textually identical to Ariz. R. Evid.
803(1)). With his own safety at risk, J.D. had a strong incentive to
report his real-time observations accurately.

¶17          In sum, the trial court did not abuse its discretion in
determining Exhibit 49 was admissible as a present sense
impression. Ariz. R. Evid. 803(1); see, e.g., Rendon, 148 Ariz. at 526,
528, 715 P.2d at 779, 781; Campbell, 782 F. Supp. at 1261-62.
Accordingly, we need not address the state’s alternative argument
that it was also admissible under the residual hearsay exception of
Rule 807(a), Ariz. R. Evid.

                              Disposition

¶18          For the foregoing         reasons,   we   affirm   Wright’s
convictions and sentences.




      5Indeed,
             police officers subsequently found a handgun in the
glove compartment.


                                   9
