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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 EDWARD SHAWN MULLINS, Appellant.

                             No. 1 CA-CR 15-0139
                               FILED 7-14-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201201202
                The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By William Scott Simon
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                            STATE v. MULLINS
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Donn Kessler joined.


J O H N S E N, Judge:

¶1           Edward Shawn Mullins appeals his convictions and sentences
for three counts of sale of dangerous drugs (methamphetamine) and one
count of possession of dangerous drugs for sale (methamphetamine). For
the following reasons, we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            An informant participated with law enforcement in three
controlled purchases of methamphetamine from Mullins. Before each
purchase, detectives, aware they were investigating someone named
"Shawn" at a particular home address, searched the informant to ensure he
was carrying no money or contraband before they outfitted him with an
audio transmitting and recording device and gave him $40 to purchase the
drugs. While under visual and audio police surveillance, the informant
then walked to the home Mullins shared with his girlfriend, and while
doing so, he stated his name and the date and then said he intended to buy
methamphetamine from Mullins at Mullins's home address. These
statements ("Prefatory Statements") were recorded on the device provided
by law enforcement.

¶3           On each occasion, the informant bought $40 worth of
methamphetamine, and on each occasion, police monitored and recorded
the informant's conversations inside Mullins's home ("Purchase
Conversations"). On each occasion, immediately after the informant left
Mullins's home, he met with detectives, who checked to make sure he no
longer had the money they had given him and collected the drugs he had
bought. After the third purchase, officers searched Mullins's home
pursuant to a warrant, detained him and his girlfriend, and discovered


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 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).


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                             STATE v. MULLINS
                             Decision of the Court

various items indicating methamphetamine was used and sold there,
including ten grams of methamphetamine hidden in a "toolroom."

¶4           The State charged Mullins with three counts of sale of
dangerous drugs (methamphetamine) and one count of possession of
dangerous drugs for sale (methamphetamine), all Class 2 felonies.
Although the informant agreed to testify at trial, he absconded, and the
State, without objection, introduced in evidence three compact discs, each
containing one of the three recorded Prefatory Comments and the related
Purchase Conversation.

¶5            The jury found Mullins guilty as charged. The court imposed
aggravated concurrent prison terms of 10.5 years. Mullins timely appealed;
we have jurisdiction pursuant to Arizona Revised Statutes sections 12-
120.21(A)(1) (2016), 13-4031 (2016), and -4033(A)(1) (2016).2

                                DISCUSSION

A.     Hearsay and Confrontation Rights.

¶6           Mullins first contends the superior court fundamentally erred
by allowing the jury to hear references by the informant to Mullins in the
recorded Prefatory Statements and references to "Shawn" in the first and
third recorded Purchase Conversations. Mullins argues this identification
evidence was inadmissible hearsay and violated his right to confront the
informant. Because he failed to object to the evidence, Mullins has the
burden to show that error occurred, the error was fundamental and that he
was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-
22 (2005).

¶7             "'Hearsay' [is] a statement[] . . . offer[ed] in evidence to prove
the truth of the matter asserted[,]" and generally is not admissible as
evidence. Ariz. R. Evid. 801(c), 802. A "statement" for this purpose is "a
person's oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion." Ariz. R. Evid. 801(a). Thus, "words or
conduct not intended as assertions are not hearsay even when offered as
evidence of the declarant's implicit belief of a fact." State v. Chavez, 225 Ariz.
442, 444, ¶ 8 (App. 2010); see also Fed. R. Evid. 801 advisory committee note
to subdivision (a) ("The effect of the definition of 'statement' is to exclude
from operation of the hearsay rule all evidence of conduct, verbal or


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


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                           STATE v. MULLINS
                           Decision of the Court

nonverbal, not intended as an assertion. The key to the definition is that
nothing is an assertion unless intended to be one.").

¶8             The Confrontation Clause of the Sixth Amendment protects a
defendant's opportunity to prove a witness's motive or bias. U.S. Const.
amend. VI; Davis v. Alaska, 415 U.S. 308, 316-17 (1974). "[T]he Confrontation
Clause prohibits the admission of testimonial evidence from a declarant
who does not appear at trial unless the declarant is unavailable and the
defendant had a prior opportunity to cross-examine the declarant." State v.
King, 213 Ariz. 632, 637, ¶ 17 (App. 2006) (citing Crawford v. Washington, 541
U.S. 36, 68 (2004)). "The [Confrontation] Clause . . . does not bar the use of
testimonial statements for purposes other than establishing the truth of the
matter asserted." Crawford, 541 U.S. at 59, n.9. Thus, the Confrontation
Clause does not apply to non-hearsay statements. State v. Tucker, 215 Ariz.
298, 315, ¶ 61 (2007).

¶9            We need not determine whether the mentions of "Shawn" in
the Prefatory Statements constitute inadmissible hearsay because nothing
in the record indicates the jury heard the Prefatory Statements. Although
the Prefatory Statements were not redacted from the compact discs that
were admitted in evidence, the portions of the recordings that contained
the Prefatory Statements were not played during the trial. Instead, the
prosecutor specified the time frames of the recordings to be played in court,
and those time frames reflected only what transpired while the informant
was in Mullins's home.

¶10            Mullins argues the superior court was obligated sua sponte to
instruct the jury pursuant to Arizona Rule of Evidence 105 on the "proper
scope" of the complete recordings. See Ariz. R. Evid. 105 ("If the court
admits evidence that is admissible against a party or for a purpose - but not
against another party or for another purpose - the court, on timely request,
must restrict the evidence to its proper scope and instruct the jury
accordingly."). But we cannot fault the superior court for failing sua sponte
to inquire into the admissibility of evidence that it was not aware existed.
To be sure, the jury had access during deliberations to the complete
recordings, including the Prefatory Statements. However, nothing in the
record establishes that the jurors actually listened to the recordings as they
deliberated, let alone that they listened to the Prefatory Statements.3



3      We note that the superior court twice instructed the jury to consider
only the evidence that was "produced in court."



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                            STATE v. MULLINS
                            Decision of the Court

¶11           As for the references to "Shawn" during the Purchase
Conversations, they are not hearsay. In the recording documenting the first
controlled purchase, the informant says "Shawn" three times while other
voices are heard in the background engaged in nondescript discussions.
The informant is, therefore, not "asserting a matter" the veracity of which
could be challenged through cross-examination. In the third recording, the
informant appears to knock on a door and said, "Hey Shawn! I have some
money for you brother!" This statement was not offered to prove the truth
of the matter asserted; instead, it is circumstantial evidence that Mullins
had drugs for sale. See Chavez, 225 Ariz. at 444, ¶ 9 (agreeing with other
courts that have held out-of-court statements requesting to buy drugs from
a defendant are not hearsay).

¶12            Finally, evidence other than the Prefatory Statements and the
"Shawn" statements overwhelmingly supports the guilty verdicts. For
example, on three occasions, officers observed the informant enter Mullins's
home carrying $40 and no contraband, and return with bags of
methamphetamine and no money. One detective testified that the male
voice he heard during the transmissions of the Purchase Conversations was
consistent with Mullins's voice, which he personally heard while executing
the search warrant. In two of the recorded Purchase Conversations, Mullins
made statements to the informant regarding drug quality, quantities and
prices. And when officers searched Mullins's home, in addition to the bag
containing ten grams of methamphetamine, they discovered a drug ledger,
Mullins's cell phone containing text requests to purchase drugs from him,
and small clear plastic bags containing a powder residue.4 See State v.
Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App. 2013) ("Possession may be actual or
constructive."); State v. Cox, 214 Ariz. 518, 520, ¶ 10 (App. 2007)
(constructive possession may be proven by circumstantial evidence alone);
State v. Curtis, 114 Ariz. 527, 528 (App. 1977) ("[I]t is not necessary to show
that a defendant exercised exclusive possession or control over the
substance itself or the place in which the illegal substance was found;
control or right to control is sufficient.")

¶13           In sum, absent admission of hearsay, Mullins's confrontation
rights were not violated. Moreover, evidence other than the challenged
statements overwhelmingly supports the guilty verdicts. See State v. Diaz,
223 Ariz. 358, 361, ¶ 13 (2010) ("We will not reverse a conviction based on
speculation or unsupported inference."); State v. Trostle, 191 Ariz. 4, 13-14
(1997) (reviewing court will not presume prejudice where none appears

4    A detective testified that ten grams of methamphetamine is an
amount "consistent with sales" rather than for personal use.


                                      5
                             STATE v. MULLINS
                             Decision of the Court

affirmatively in the record). Thus, even if we were to conclude that the
superior court erred in failing sua sponte to order the Prefatory Statements
and the "Shawn" statements redacted, we would not find fundamental error
resulting in prejudice. See Harrington v. California, 395 U.S. 250, 256 (1969)
("constitutional error in the trial of a criminal offense may be held harmless
if there is 'overwhelming' untainted evidence to support the conviction.");
State v. Calhoun, 115 Ariz. 115, 118 (1977) (evidentiary error deemed
harmless in light of other overwhelming evidence of guilt).

B.     Impeachment Evidence.

¶14           Mullins argues the court erred in refusing his request to admit
evidence that the informant incorrectly described Mullins to law
enforcement. He contends this evidence should have been admitted
pursuant to Arizona Rule of Evidence 806 to impeach the informant's
recorded references to him. We review a superior court's evidentiary
rulings for abuse of discretion. State v. Davolt, 207 Ariz. 191, 208, ¶ 60 (2004).

¶15             Rule 806 provides, in relevant part: "When a hearsay
statement . . . has been admitted in evidence, the declarant's credibility may
be attacked, and then supported, by any evidence that would be admissible
for those purposes if the declarant had testified as a witness." Ariz. R. Evid.
806.

¶16           The superior court did not abuse its discretion. As noted, the
Prefatory Statements were not played at trial, and nothing in the record
indicates the jury otherwise heard them. Also, as we have concluded, the
"Shawn" references in the Purchase Conversations are not hearsay. Under
these circumstances, Rule 806 did not mandate admission of the
impeachment evidence.

C.     Vouching.

¶17          Mullins argues the State engaged in improper vouching by
presenting testimony of the officers with whom the informant worked
regarding the informant's reliability and credibility. Specifically, Mullins
challenges testimony regarding the informant's reliable participation in
previous controlled drug buys from other suspects, arguing such testimony
was "another way of saying that the [informant's] actions always resulted
in successful 'buys' that led to convictions."5 As Mullins concedes, we

5      Mullins also mentions comments made by the prosecutor during
closing arguments. However, because Mullins does not argue the



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                           STATE v. MULLINS
                           Decision of the Court

review for fundamental error because he did not object to the testimony at
trial.

¶18           The record does not support Mullins's argument. None of the
challenged testimony states that the informant's work on other
investigations led to convictions. Cf. Fairrow v. Com., 175 S.W.3d 601, 606
(Ky. 2005) (admission of testimony that confidential informant's successful
"buys" always led to convictions "[o]bviously . . . constituted error").
Moreover, the officers' testimony was relevant to rebut Mullins's opening
statements challenging the informant's trustworthiness. On this record, the
superior court committed no error, let alone fundamental error that
resulted in prejudice.

D.     Testimony Regarding "Snitches."

¶19           A detective testified that he helped "get [the informant] out of
the local community" for safety reasons. Over Mullins's objection, the
detective observed that "snitches" can suffer physical violence as retaliation
for "suppl[y]ing information to the police[.]"

¶20             Mullins contends that this and other similar testimony by law
enforcement witnesses was irrelevant and inadmissible. During opening
statements, defense counsel noted that the informant was not present to
testify, and remarked that therefore, "[y]ou will not hear anyone during this
trial testify that they saw my client or, for that matter, anyone else deliver
methamphetamine or, for that matter, anything else to [the informant]."
The "snitches" testimony was thus relevant to explain the informant's
absence. Accordingly, the superior court did not abuse its discretion by
allowing the testimony.




prosecutor engaged in vouching, we do not address the propriety of her
comments. See State v. Lindner, 227 Ariz. 69, 70, n.1, ¶ 3 (App. 2010)
(appellate court will not address undeveloped arguments).


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                   STATE v. MULLINS
                   Decision of the Court

                     CONCLUSION

¶21   Mullins's convictions and sentences are affirmed.




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