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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  PEDRO FABIAN MONTOYA, Appellant.

                             No. 1 CA-CR 18-0638
                               FILED 7-2-2019


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201700361
                 The Honorable David M. Haws, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Eugene Marquez
Counsel for Appellant
                          STATE v. MONTOYA
                          Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.


P E R K I N S, Judge:


¶1           Pedro Fabian Montoya appeals his convictions and resulting
sentences for possession of a dangerous drug for sale and possession of
drug paraphernalia. For the following reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001). Montoya was driving a pickup truck in
Yuma one night when a police officer saw him pass a stop sign and enter
an intersection before stopping the truck. The officer followed Montoya to
the next intersection, which Montoya again entered before stopping. The
officer turned on his emergency lights, but Montoya did not pull over until
the officer turned on his siren. After talking to Montoya and seeing that he
“was very agitated,” the officer called for backup, including a drug-sniffing
dog. The officer then began running Montoya’s license and checking the
names given to him by the passengers.

¶3            The dog arrived during the traffic stop and soon alerted to the
presence of contraband. Officers searched the truck and found a “crystal-
like substance,” a digital scale, and two pills in a crumpled piece of paper.
They then arrested Montoya.

¶4            The State indicted Montoya for: possession of a dangerous
drug for sale, methamphetamine, a class 2 felony; possession of a
dangerous drug, alprazolam, a class 4 felony; and possession of drug
paraphernalia, methamphetamine, a class 6 felony. The State later amended
the indictment to allege three prior felony convictions. Finally, the State
alleged as aggravators that Montoya committed the offense with the
expectation of pecuniary gain and that Montoya had been convicted of two
prior felonies within the preceding 10 years.




                                     2
                           STATE v. MONTOYA
                           Decision of the Court

¶5             The court held a jury trial on May 29, May 31, and June 1, 2018.
Raina Ramirez, a forensic scientist with the Department of Public Safety’s
crime laboratory in Tucson, testified that she did not test the substance
herself, but did review the results of the tests performed at her lab. She
further testified in detail about the tests run on the substance and her
training, experience, and qualifications. She stated that all samples tested at
her lab go through two levels of checks, a “technical review,” and an
“administrative review.” Ramirez admitted that she had not checked the
substance at issue but reviewed the notes and paperwork of the scientist
who did. In her professional opinion, the substance was 5.94 grams of
methamphetamine. Montoya’s trial attorney objected to Ramirez’s
testimony because she was not the scientist who tested the substance; the
trial court admitted her testimony over the objection.

¶6            The court then heard from Yuma police officer Jonathan
Castlegrante, who testified about pulling the truck over, searching it, and
arresting Montoya. He also testified that digital scales and quantities larger
than one gram indicate the methamphetamine is “not for personal use.” He
stated that when he arrested Montoya, the methamphetamine was in
“larger shards, glass-like shards,” which also indicated the drug was for
sale, not personal use. Officer Stephanie Malone of the Yuma Police
Department testified about the search she conducted with her drug-sniffing
dog Raico.

¶7             After the State rested its case, Montoya moved to dismiss the
count for alprazolam possession, which the court granted because the State
failed to offer substantial evidence that the pills were, in fact, alprazolam.
See Ariz. R. Crim. P. 20.

¶8            A passenger in the truck testified on Montoya’s behalf. She
was a recovering methamphetamine addict and claimed the six grams
found in the truck would not have lasted one day for three people. Montoya
rested after her testimony.

¶9             The jury found Montoya guilty of possessing
methamphetamine for sale and possessing methamphetamine
paraphernalia. The court then held a mitigation hearing at which it heard
from Montoya, his mother, two of his brothers, and two of his pastors. The
court sentenced Montoya to concurrent terms, the longest of which is 7.5
years’ flat time. See Ariz. Rev. Stat. (“A.R.S.”) § 13-3407(E). Montoya timely
appeals.




                                      3
                           STATE v. MONTOYA
                           Decision of the Court

                               DISCUSSION

¶10            On appeal, Montoya argues only that the trial court violated
his right to confront his accuser because the forensic scientist who testified
against him was not the same scientist who tested the recovered substance
found to be methamphetamine. We review challenges to the admissibility
of evidence based on the Confrontation Clause de novo. State v. Shivers, 230
Ariz. 91, 92, ¶ 6 (App. 2012).

¶11           As relevant, the Sixth Amendment states that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. Amend. VI; see also Ariz. Const. Art. 2
§ 24 (“In criminal prosecutions, the accused shall have the right . . . to meet
the witnesses against him face to face.”). Forensic reports on substances
alleged to be drugs, prepared in anticipation of prosecution, are testimonial
statements. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310–11 (2009). If
such a report is introduced into evidence, the defendant has a right to
confront its author. Bullcoming v. New. Mexico, 564 U.S. 647, 661 (2011).

¶12            But an expert may offer opinions based on facts or data that
“experts in the particular field would reasonably rely on” in forming an
opinion. Ariz. R. Evid. 703. The facts and data “need not be admissible for
the opinion to be admitted.” Id. This Court has held that the “test for
admissibility of an expert’s opinion based on facts not in evidence is
whether the source relied upon by the expert is reliable.” Pipher v. Loo, 221
Ariz. 399, 402, ¶ 8 (App. 2009) (quotation omitted). A source is reliable if it
“meets the two critical factors of necessity and trustworthiness.” Lynn v.
Helitec Corp., 144 Ariz. 564, 568 (App. 1984).

¶13            Ramirez’s testimony was admissible and did not violate
Montoya’s right to confront the witnesses against him. Ramirez testified
that the Department’s crime laboratory subjects each of its reports to two
levels of review, one for technical errors and one for “administrative”
errors. This is an acceptable level of reliability. See Lynn, 144 Ariz. at 568
(“preparation of a report by a disinterested, expert third party” indicates
trustworthiness). Ramirez also testified that she independently reviewed
the facts contained in the report and came to her own opinion. State ex rel.
Montgomery v. Karp, 236 Ariz. 120, 124, ¶ 14 (App. 2014) (“[W]hen an expert
gives an independent opinion, the expert is the witness whom the
defendant has the right to confront.”). The court allowed Montoya to
confront Ramirez and Montoya exercised that right.




                                      4
                            STATE v. MONTOYA
                            Decision of the Court

¶14              Nevertheless, Montoya contends that Ramirez’s testimony
was barred by Bullcoming and State v. Smith, 242 Ariz. 98 (App. 2017). Each
case is distinguishable. Bullcoming addressed the constitutionality of
introducing a report written by an unavailable witness during the
testimony of an available, non-author witness. 564 U.S. at 655 (“The State,
however, proposed to introduce Caylor’s finding as a ‘business record’
during the testimony of Gerasimos Razatos . . . .”). Here the State did not
introduce the report on which Ramirez relied. Smith is similar. There, the
State sought to introduce “testimony and written reports” of a DNA
analyst, including saliva tests conducted by “another technician at the same
laboratory.” 242 Ariz. at 101, ¶ 7. Again, here the State did not introduce
the report, only Ramirez’s independent expert opinion that relied on the
objective facts contained in the report. This is acceptable. See State v. Dixon,
226 Ariz. 545, 553, ¶¶ 35–36 (2011) (“Our cases teach that a testifying
[expert] may, consistent with the Confrontation Clause, rely on information
in . . . reports prepared by others as long as he forms his own conclusions.”).

¶15           Because the State sought only to introduce an expert opinion
based on objective facts contained in a reasonably reliable report, the court
did not err in admitting Ramirez’s testimony that the crystalline substance
was methamphetamine.

                               CONCLUSION

¶16           We affirm Montoya’s convictions and resulting sentences.




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




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