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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ELIZABETH GUZMAN-LEAL, Appellant.

                             No. 1 CA-CR 15-0606
                              FILED 7-14-2016


           Appeal from the Superior Court in Maricopa County
                      No. CR2014-154276-001 DT
                 The Honorable Pamela S. Gates, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Christopher M. DeRose
Counsel for Appellee

The Law Office of Kyle T. Green P.L.L.C., Mesa
By Kyle Green
Counsel for Appellant
                        STATE v. GUZMAN-LEAL
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Kenton D. Jones joined.


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

¶1            Elizabeth Guzman-Leal (“Defendant”) appeals her conviction
and sentence for transporting marijuana for sale. She challenges the trial
court’s instructions to the jury, and contends the State failed to properly
disclose an expert witness. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            Federal Border Patrol Agent Seager was conducting
nighttime surveillance in a remote desert area south of Gila Bend where
human and drug trafficking activities are known to occur.               At
approximately 9:15 p.m., Agent Seager observed what appeared to be two
human figures suddenly emerge along the side of Highway 85 six miles
north of a border patrol checkpoint and proceed walking along the
roadway. The individuals walked in a “hunched-over” manner, indicating
to Agent Seager that they were carrying something heavy on their backs.
Forty-five minutes later, Agent Seager noticed a vehicle approach and stop
near the individuals, who then entered the vehicle. The vehicle proceeded
northbound.

¶3           Agent Seager relayed this information to other agents in the
area. Agent Jackson, who was patrolling the highway, observed the vehicle
and stopped it. Defendant was the driver. Agent Harvick arrived at the
scene and determined the two male passengers in the vehicle were in the
country illegally. Defendant was then arrested for suspected “alien
smuggling.”




1       We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2, 340 P.3d 1110, 1112 n.2 (App. 2015)
(citing State v. Valencia, 186 Ariz. 493, 495, 924 P.2d 497, 499 (App. 1996)).



                                      2
                         STATE v. GUZMAN-LEAL
                           Decision of the Court

¶4           Agent Jackson began searching the vehicle’s trunk, and he
and Sheriff Deputy Felix, who had arrived at the scene, noticed two
makeshift backpacks comprised of what appeared to be bundles of
marijuana.   Subsequent investigation confirmed the bundles were
marijuana, and weighed 90 pounds in total.

¶5            The State charged Defendant with one count of transportation
of marijuana, a class 2 felony. At trial, Defendant argued that, although she
knew the passengers were in the country unlawfully when she picked them
up, she was not aware of the marijuana found in the trunk. Deputy Felix,
however, testified that, based on his training and experience, drug
trafficking organizations rely on traffickers who are trustworthy and
“know what they are doing.” Over Defendant’s objection, the court granted
the State’s requested jury instruction regarding deliberate ignorance, and
denied Defendant’s request for a mistake of fact jury instruction. The jury
found Defendant guilty as charged, and the court imposed a mitigated
three-year prison sentence. Defendant timely appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and -4033(A)(1).2

                                  DISCUSSION

       I.     Jury Instructions

¶6            The State was required to prove Defendant knew the
marijuana was in her car’s trunk. See A.R.S. § 13-3405(A)(4) (forbidding any
person from knowingly transporting marijuana). Although the State
presented no direct evidence of Defendant’s knowledge, “both knowledge
and possession may be shown by circumstantial evidence.” State v. Hull, 15
Ariz. App. 134, 135, 486 P.2d 814, 815 (1971). In light of her defense at trial,
the requisite knowledge could be established by showing that Defendant
was aware of the high probability that the packages in her trunk contained
marijuana “and that [s]he acted with a conscious purpose to avoid learning
the true contents of the packages.” State v. Diaz, 166 Ariz. 442, 445, 803 P.2d
435, 438 (App. 1990), vacated in part on other grounds by State v. Diaz, 168
Ariz. 363, 813 P.2d 728 (1991). Accordingly, the trial court instructed the
jury as follows:




2     Absent material changes from the relevant date, we cite a statute’s
current version.



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                        STATE v. GUZMAN-LEAL
                          Decision of the Court

                       DELIBERATE IGNORANCE

       The State is required to prove beyond a reasonable doubt that
       the Defendant knew that she was transporting marijuana for
       sale. That knowledge can be established by either direct or
       circumstantial evidence showing that the Defendant was
       aware of the high probability that the vehicle contained
       marijuana and that the Defendant acted with conscious
       purpose to avoid learning the true contents of the vehicle.
       You may not find such knowledge, however, if you find that
       the Defendant actually believed that no marijuana was in the
       vehicle driven by the Defendant, or if you find that the
       Defendant was simply careless.

¶7           Defendant argues the court erred in giving this instruction
because the evidence does not support it. Specifically, Defendant contends
no evidence demonstrates she took active steps to avoid knowledge of the
marijuana in the trunk of her car.3

¶8            A party is entitled to an instruction on any theory of the case
reasonably supported by the evidence. State v. Bolton, 182 Ariz. 290, 309,
896 P.2d 830, 849 (1995). We review a court’s decision to give a jury
instruction for abuse of discretion. Id.

¶9            The following trial evidence supports the instruction given by
the court. Defendant picked up two men at night on a stretch of highway
well known, in fact, “notorious,” for trafficking drugs from Mexico to
Phoenix, and she presumably opened her vehicle’s trunk for the men to
deposit their “backpacks.” Defendant proceeded to drive north, towards
Phoenix. The record reflects the man who sat in the front passenger seat
smelled strongly of marijuana even after he unloaded his “backpack” in
Defendant’s trunk.

¶10          Deputy Felix testified that, at the time the marijuana was
impounded, a “very strong” particular brand of air freshener that is
commonly found in vehicles used for transporting marijuana was
discovered hanging from Defendant’s car’s rear-view mirror. Additionally,
Deputy Felix testified drug trafficking organizations do not utilize couriers
who are unaware that they are transporting illicit drugs. He explained
couriers who unknowingly traffic drugs pose a security risk to the


3      Defendant does not argue the given instruction misstates Arizona
law.


                                     4
                         STATE v. GUZMAN-LEAL
                           Decision of the Court

organization if law enforcement intercepts the drug shipment in the
courier’s possession.

¶11           The foregoing evidence reasonably supported the State’s
position that Defendant either actually knew the marijuana was in her
trunk, or that whatever lack of awareness she testified to regarding the
presence of the drugs was due to her own conscious actions to remain
ignorant. Consequently, the court did not abuse its discretion in instructing
the jury on deliberate ignorance.

¶12          Defendant next argues the court should have instructed the
jury on mistake of fact because such an instruction was required for the jury
to properly understand her defense, namely that, although she knew she
was picking up undocumented individuals, she was unaware that they put
marijuana in her trunk.

¶13           Defendant does not indicate by reference to the record or
otherwise precisely identify the language she offered in her proposed
mistake of fact instruction. And our independent review reveals the
requested instruction was not made part of the record. On this record, we
could consider this issue waived. State v. Lujan, 124 Ariz. 365, 370, 604 P.2d
629, 634 (1979) (stating that, when the requested instruction was not made
part of the record, the appellate court is not able to rule as a matter of law
whether the instruction should have been given or whether it was
substantially covered by the other instructions given by the court to the
jury).

¶14           The State, however, does not contend Defendant has waived
her argument in this regard. In her opening brief, Defendant implies the
requested instruction was based on A.R.S. § 13-204(A)(1), which indicates
“[i]gnorance or a mistaken belief as to a matter of fact does not relieve a
person of criminal liability unless: [(]1[)] It negates the culpable mental state
required for commission of the offense.”                  Here, the jury was
unambiguously instructed at least twice that the State was required to
prove beyond a reasonable doubt that Defendant “knowingly” transported
marijuana for sale; merely proving lack of knowledge or mere carelessness
in understanding what her passengers were doing would not be sufficient
to meet that burden of proof. Defense counsel used those instructions to
argue at length that the evidence did not prove beyond a reasonable doubt
that Defendant knew or had reason to know her passengers had placed
ninety pounds of marijuana in the trunk of her car; the fact that the jury
rejected Defendant’s argument means the jury determined the actions of
Defendant were not merely careless or a result of a lack of knowledge. On


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                         STATE v. GUZMAN-LEAL
                           Decision of the Court

the record, the court found the instruction Defendant proposed,
“particularly with regard to knowledge,” was adequately covered by the
instructions given to the jury. See State v. Hoskins, 199 Ariz. 127, 145, ¶ 75,
14 P.3d 997, 1015 (2000) (stating the trial court is not required to give a
proposed jury instruction if its substance is adequately covered by other
instructions). Accordingly, we find no error. See id. (concluding the trial
court did not err in omitting a proposed jury instruction because it would
have been superfluous in light of other instructions).

       II.    Expert Testimony

¶15            As she did in the trial court, Defendant argues the court
should not have allowed Deputy Felix to testify as an “expert” (apparently
regarding the modus operandi of drug trafficking organizations) because the
State failed to disclose him as an expert and only relied upon Deputy Felix’s
training and law enforcement experience to establish the reliability of his
expert opinion.

¶16             We disagree. In its disclosure statement made pursuant to
Ariz. R. Crim. P. 15.14, the State specified it may call any of the listed
officers, including Deputy Felix, to testify “as an expert witness with respect
to an area within the officer’s training and experience, including expert
knowledge of illegal drugs, their possession or sale, useable amounts, or
any other topic.” Consequently, the State provided notice to Defendant of
its intent to rely upon Deputy Felix’s expert opinions at trial.

¶17           Moreover, a law enforcement officer’s training and
experience may itself be sufficient to establish the reliability of his or her
expert opinion. See Ariz. R. Evid. 702 (allowing a witness who is qualified
as an expert by knowledge, skill, experience, training, or education to testify
in the form of an opinion); see also State v. Delgado, 232 Ariz. 182, 187, ¶ 14,
303 P.3d 76, 81 (App. 2013) (noting the 2012 amendment to Rule 702 was
not intended to preclude experience-based expert testimony). Here, the
record establishes Deputy Felix, a sheriff’s deputy for the previous twelve
years, had substantial training in “trends of drug smuggling through
vehicles” and “drug trafficking organizations.” Additionally, in the
previous two or three years during his patrol assignment in the Gila Bend
area, Deputy Felix participated in over forty drug investigations involving
traffic stops or “backpacker scenarios” that resulted in approximately
20,000 pounds of marijuana being seized. Defendant does not argue
Deputy Felix’s training and experience are insufficient to render his


4      Rule 15.1 outlines the State’s disclosure obligations.


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                        STATE v. GUZMAN-LEAL
                          Decision of the Court

opinions regarding drug trafficking organization’s operations unreliable.
The court therefore did not abuse its discretion in admitting Deputy Felix’s
expert testimony. See State v. Boyston, 231 Ariz. 539, 544, ¶ 14, 298 P.3d 887,
892 (2013) (reviewing admissibility of expert evidence for abuse of
discretion).

                              CONCLUSION

¶18           Defendant’s conviction and sentence are affirmed.




                                  :AA




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