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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   BENJAMIN BLANCHARD, Appellant.

                             No. 1 CA-CR 15-0787
                               FILED 2-14-2017


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201300691
               The Honorable Donna J. Grimsley, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Criss Candelaria Law Office PC, Concho
By Criss E. Candelaria
Counsel for Appellant
                         STATE v. BLANCHARD
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.


D O W N I E, Judge:

¶1            Benjamin Blanchard appeals his convictions and sentences for
sale of marijuana and sale of a narcotic drug. For the reasons that follow,
we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            Blanchard was the focus of a multi-agency drug trafficking
investigation, and Detective Kevin Powell acted as a “handler” for a paid
confidential informant (“CI”) who conducted a series of “controlled buys”
from Blanchard. Equipped with both audio and video recording devices,
the CI met Blanchard in the same parking lot on August 26, 27, and 29, 2013.
Officers stationed nearby received a continuous live feed from the
recording equipment, which allowed them to monitor the transactions in
real time. On August 26 and 27, the CI purchased methamphetamine and
marijuana from Blanchard, and on August 29, he purchased
methamphetamine and narcotic pills (hydrocodone) from Blanchard.

¶3            Blanchard was charged with three counts of sale of a
dangerous drug — methamphetamine (counts 1, 3, and 5) — two counts of
sale of marijuana (counts 2 and 4), and one count of sale of a narcotic drug
— hydrocodone (count 6).            The State also alleged aggravating
circumstances, the existence of prior felony convictions, and that Blanchard
was on felony release at the time of the current offenses.

¶4            At trial, the State introduced recordings from the three
controlled buys, as well as still photographs taken from the videos.
Detective Powell acknowledged that, unlike the August 27 and 29 videos,
Blanchard’s face was not visible in the August 26 recording. Nonetheless,
he identified Blanchard as the dealer in the August 26 video based on
“identifying features” of his voice. Additionally, Detective Mike Butora


1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


                                     2
                          STATE v. BLANCHARD
                           Decision of the Court

testified that he identified Blanchard from the August 26 drug buy because
Blanchard passed very close to him as he was driving away that day. The
CI was unavailable and did not testify at trial.

¶5            The jury was unable to reach unanimous verdicts as to counts
1, 3, and 5, but found Blanchard guilty of counts 2, 4, and 6. The court
sentenced him to concurrent, presumptive terms of 11.25 years’
imprisonment on counts 2 and 4, and a concurrent, presumptive term of
15.75 years’ imprisonment on count 6. Blanchard timely appealed. We
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
13-4033(A)(1).

                               DISCUSSION

I.     Confrontation Clause

¶6            Blanchard raised a Confrontation Clause objection to the
State’s use of the controlled buy recordings, arguing the CI’s recorded
statements were testimonial hearsay in violation of Crawford v. Washington,
541 U.S. 36 (2004). After an evidentiary hearing, the trial court ruled that
the CI’s recorded statements were admissible to offer context for
Blanchard’s corresponding statements — a ruling Blanchard does not
challenge on appeal. Blanchard contests only the admission of statements
the CI made to police officers, arguing the admission of such statements
violated his confrontation rights.

¶7            We generally review a trial court’s evidentiary rulings for an
abuse of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). However,
we review de novo evidentiary rulings implicating the Confrontation
Clause. Id.

¶8            Out-of-court statements offered to prove the truth of the
matter asserted are generally inadmissible absent a hearsay exception.
Ariz. R. Evid. 801(c), 802. Testimonial hearsay, which includes statements
given in response to formal police questioning, is also barred by the
Confrontation Clause when the declarant does not appear at trial, unless
the declarant is unavailable and the defendant has had a prior opportunity
to cross-examine the declarant. Crawford, 541 U.S. at 53 n.4, 59.

¶9            At trial, the prosecutor asked Detective Powell to identify the
goal of the investigation, and the detective responded, over a hearsay
objection, that the goal was to purchase drugs from Blanchard. This
testimony did not recount an out-of-court statement. The prosecutor then
asked whether Detective Powell followed protocols previously outlined for


                                       3
                         STATE v. BLANCHARD
                          Decision of the Court

the jury when interacting with the CI, and the detective answered, over a
hearsay objection, that he did so. This testimony likewise did not recount
an out-of-court statement. When asked about his role in the investigation,
Detective Powell explained, over a hearsay objection, that he met with the
CI after the drug buys and debriefed him about his communications with
Blanchard. Detective Powell did not testify about the content of those
discussions, stating only that they occurred. The prosecutor then asked
Detective Powell whether the recordings of the three controlled buys were
accurate, and the detective answered that he had verified their accuracy by
comparing them to his discussions with the CI. Blanchard objected and
moved to strike the detective’s answer, which the trial court denied.
Detective Powell then clarified that he confirmed the accuracy of the
recordings through his own recollection of what he saw and heard by
monitoring the live feed, in addition to his discussions with the CI.
Although Detective Powell did not directly recount an out-of-court
statement, he implied that the CI had told him that the recordings were
accurate. Because the CI was unavailable to testify, and Blanchard did not
have an earlier opportunity to cross-examine him, this testimony should
have been stricken.

¶10            The prosecutor later asked Detective Powell how he could
identify Blanchard as the dealer for the August 26 buy when his face was
not visible on the video. Detective Powell responded that his identification
was based on his viewing of the August 27 and 29 videos, as well as his
discussions with the CI. In response to Blanchard’s hearsay objection, the
court instructed Detective Powell not to testify about the CI’s statements.
At that point, Detective Powell testified that he could identify Blanchard on
the August 26 video based on “identifying features” of his voice that were
consistent with the August 27 and 29 recordings. Although Detective
Powell did not recount a direct out-of-court statement, he initially
suggested the CI had identified Blanchard as the dealer. The trial court
immediately admonished the detective not to mention the CI’s statements
but did not sustain Blanchard’s objection. Based on the CI’s unavailability
and Blanchard’s lack of opportunity to cross-examine him, the objection
should have been sustained.

¶11          The following day, the prosecutor followed up on questions
posed to Detective Powell during cross-examination, asking why the CI
may not have spent all of the money he was given for one of the drug buys.
The detective answered, over Blanchard’s objection, that the officers “could
have brought extra money,” believing they would be able to buy a certain
amount, and the CI may have sent a text message that he was unable to
purchase “that much.” Read in the context of the “multiple reasons” the


                                     4
                          STATE v. BLANCHARD
                           Decision of the Court

detective suggested might account for a discrepancy in the sum of money
given the CI for the drug buy and the amount the CI actually spent, it is
clear Detective Powell was providing a hypothetical reason, not an actual
out-of-court statement. Over another hearsay objection, the detective later
testified that he knew the CI did not bring drugs to the buy because officers
searched him immediately before the meeting and the videos demonstrated
the CI received the drugs during the transactions. This testimony did not
recount an out-of-court statement.2

¶12            Although most of Blanchard’s hearsay objections were
unfounded, Detective Powell’s testimony implying that the CI had
confirmed the accuracy of the recordings and identified Blanchard as the
dealer at all three buys was testimonial hearsay admitted in violation of
Blanchard’s Confrontation Clause rights.          A Confrontation Clause
violation, however, is subject to harmless error review. State v. Parks, 211
Ariz. 19, 31, ¶ 54 (App. 2005). Error is harmless if we can conclude beyond
a reasonable doubt that it did not contribute to or affect the verdict. State v.
Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). To assess whether a
Confrontation Clause violation is harmless, we consider several factors,
including “the importance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecution’s case.” Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986).

¶13            Applying these factors, we first note that Detective Powell
clarified his testimony in response to Blanchard’s hearsay objections by
testifying that: (1) he personally confirmed the accuracy of the recordings
after watching the events in real time, and (2) he could identify Blanchard
on the August 26 video based on the identifying features of his voice that
mirrored the August 27 and 29 videos. More importantly, the recordings
were admitted into evidence. Jurors therefore could assess first-hand
whether the videos appeared edited in a manner that called their accuracy
into question and evaluate whether the voice or any other features of the
off-camera dealer in the August 26 video demonstrated that the individual
was the same as the dealer visible in the August 27 and 29 videos. Given

2             Blanchard also raised a hearsay objection to Detective
Butora’s testimony that he debriefed the CI about the transactions. This
testimony, though, did not recount an out-of-court statement.




                                       5
                          STATE v. BLANCHARD
                           Decision of the Court

the overall strength of the State’s case, including two recorded drug buys
in which Blanchard’s face was visible, we conclude any error in admitting
hearsay during Detective Powell’s testimony was harmless beyond a
reasonable doubt.

II.    Motion to Sever

¶14             Blanchard contends the court erred by denying his severance
motion. He requested severance of “counts 1, 2 and 3,” but also referenced
the three counts “of sale of a dangerous drug,” which were designated
counts 1, 3, and 5 in the indictment. When renewing the motion on the first
day of trial, though, Blanchard moved to sever counts 1 and 2 from the other
charges, claiming the August 27 and 29 recordings, on which he was visible,
would be unduly prejudicial with respect to the charges arising out of
events on August 26. The trial court denied both motions.

¶15            Joinder of two or more offenses is permissible when they: (1)
are of the same or similar character; or (2) are based on the same conduct or
are otherwise connected together in their commission; or (3) are alleged to
have been a part of a common scheme or plan. Ariz. R. Crim. P. (“Rule”)
13.3(a). We review the denial of a motion to sever for an abuse of discretion.
State v. Prince, 204 Ariz. 156, 159, ¶ 13 (2003).

¶16          The counts were properly joined under Rule 13.3(a)(1)
because the charges are all similar in nature. The charges were also
“otherwise connected” for purposes of joinder under subsection (a)(2)
because they involved the same seller, buyer, location and exchange
protocols and transpired over a period of only four days.

¶17           Because the offenses were properly joined under Rule
13.3(a)(2), or could have been joined under this subsection and were
therefore properly consolidated, severance was required only if “necessary
to promote a fair determination of the guilt or innocence . . . of any offense.”
Ariz. R. Crim. P. 13.4(a). To successfully challenge the denial of severance,
a defendant “must demonstrate compelling prejudice against which the
trial court was unable to protect.” Prince, 204 Ariz. at 159, ¶ 13. Blanchard
noticed defenses of lack of intent, lack of knowledge, and mistaken identity,
as well as insufficient evidence. Because the charges were all connected,
joinder of the counts properly placed before the jury relevant evidence
regarding intent, knowledge, and identity. Thus joinder, not severance,
promoted a fair determination of the offenses.

¶18          Blanchard argued in the trial court that admitting the August
27 and 29 videos showing his face would be unduly prejudicial with respect


                                       6
                          STATE v. BLANCHARD
                           Decision of the Court

to the August 26 charges. Although the evidence may have been harmful
to his defense, it was not unfairly prejudicial. See State v. Lee, 189 Ariz. 590,
599–600 (1997) (Unfair prejudice results only when “the evidence has an
undue tendency to suggest decision on an improper basis.”). And even if
counts 1 and 2 had been severed, the August 27 and 29 videos would have
been admissible in a trial of those charges to refute Blanchard’s defenses of
lack of intent, lack of knowledge, and mistaken identity. See Ariz. R. Evid.
404(b) (Permitting evidence of other acts to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.”).

¶19            Blanchard also argues he was prejudiced by the failure to
sever because Detective Powell incorrectly testified that the license plate of
the dealer’s vehicle was recorded in each video, reflecting that the same
vehicle was used for each transaction, when the license plate was only
visible on the August 26 recording. In determining whether a defendant
has shown the requisite prejudice, we consider only the evidence that was
before the trial court when it ruled on the motion to sever. State v. Goudeau,
239 Ariz. 421, 444–45, ¶ 60 (2016). Because Blanchard’s argument relies on
evidence admitted after the trial court ruled, we do not consider it. Id. at
445, ¶ 60. In any event, Blanchard had an opportunity to cross-examine
Detective Powell about his license plate testimony, and the jury was able to
independently view the recordings and evaluate the accuracy of the
detective’s testimony.

¶20           Finally, even assuming the charges should have been severed,
Blanchard cannot show compelling prejudice because the court instructed
jurors to consider each count separately and explained that the State bore
the burden of proving each element of each charged offense beyond a
reasonable doubt. See State v. Miller, 234 Ariz. 31, 38, ¶ 18 (2013); Goudeau,
239 Ariz. at 446, ¶ 67 (defendant could not demonstrate prejudice because
court instructed jurors to consider each charged offense separately, and we
“presume jurors follow the court’s instructions”); State v. Johnson, 212 Ariz.
425, 430, ¶ 13 (2006) (any possible prejudice from joinder was ameliorated
by jury instruction to consider each offense separately). But see State v.
Burns, 237 Ariz. 1, 14, ¶¶ 36–39 (2015) (denial of motion to sever
misconduct-involving-weapons charge from murder and sexual assault
charges was an abuse of discretion, notwithstanding proper jury
instructions, because defendant’s possession of gun was relevant to other
charges but the illegality of that possession (and underlying criminal
conviction) was not). Not only are jurors presumed to follow their
instructions, State v. Dann, 205 Ariz. 557, 571, ¶ 48 (2003), but jurors here



                                       7
                          STATE v. BLANCHARD
                           Decision of the Court

clearly considered the charges independently, as demonstrated by their
inability to reach verdicts on three of the counts.

¶21          The trial court did not abuse its discretion by denying
Blanchard’s motion to sever.

III.   Disclosure Issue

¶22          Blanchard contends the court improperly admitted still
photographs taken from the video recordings because they were not timely
disclosed and were unduly prejudicial. He also argues the court should
have sanctioned the State for the untimely disclosure.

¶23            The purpose of the disclosure rules is “to give full notification
of each side’s case-in-chief so as to avoid unnecessary delay and surprise at
trial.” State v. Roque, 213 Ariz. 193, 207, ¶ 32 (2006) disagreed with on other
grounds by State v. Escalante-Orozco, 386 P.3d 798 (Ariz. 2017). We review a
trial court’s “assessment of the adequacy of disclosure for an abuse of
discretion.” Roque, 213 Ariz. at 205, ¶ 21. We likewise review a trial court’s
ruling on sanctions for untimely disclosure for an abuse of discretion. Id.

¶24            The State must disclose a “list of all papers, documents,
photographs or tangible objects that the prosecutor intends to use at trial.”
Ariz. R. Crim. P. 15.1(b)(5). After making its initial disclosure, the State has
a continuing duty to disclose “whenever new or different information
subject to disclosure is discovered.” Ariz. R. Crim. P. 15.6(a).

¶25           Approximately a week before trial, the State disclosed the still
photographs it intended to use at trial. When the prosecutor moved to
admit the photos on the second day of trial, Blanchard objected, claiming
untimely disclosure and undue prejudice. In response, the State argued
that the content of the pictures had been timely disclosed when the video
recordings were disclosed. The trial court agreed and admitted the still
photographs.

¶26           Blanchard does not dispute that the State timely disclosed the
videos or that each still photograph was obtained from those recordings.
Because the content of the photographs was timely disclosed, Blanchard
had notice of the evidence that would be presented against him, and the
court did not abuse its discretion by finding that the State did not violate
the disclosure rules. Cf. State v. Guerrero, 119 Ariz. 273, 276 (App. 1978)
(“The criminal discovery rules do not require the state to provide a word-
by-word preview to defense counsel of the testimony of the state’s
witnesses.”).


                                       8
                         STATE v. BLANCHARD
                          Decision of the Court

¶27            Moreover, even if the State should have supplemented its
disclosure, the court acted within its discretion by not imposing sanctions.
Pursuant to Rule 15.7, the court “shall impose any sanction it finds
appropriate” when a party fails to comply with the disclosure rules, “unless
the court finds that the failure to comply was harmless.” Blanchard
objected to the photographs but did not seek a continuance that may have
allowed him time to call a witness or present other evidence to rebut the
pictures. Additionally, the trial court could have reasonably concluded that
any untimely disclosure was harmless. The videos had already been played
at trial, and jurors had thus seen the images of Blanchard’s face in the
vehicle, albeit in quick succession, in comparison to the still images. Given
the overwhelming other evidence that Blanchard was present for the drug
buys, any untimely disclosure was harmless, and the trial court did not
abuse its discretion by failing to sua sponte impose sanctions.

                              CONCLUSION

¶28          Blanchard’s convictions and sentences are affirmed.




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




                                        9
