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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ADAN G. VILLARREAL, Appellant.

                             No. 1 CA-CR 16-0725
                               FILED 2-15-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-117120-001
              The Honorable Christopher A. Coury, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Nicole Farnum, Phoenix
Counsel for Appellant
                         STATE v. VILLARREAL
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1           Adan Villarreal appeals from his convictions and sentences
for possession of narcotic drugs for sale, possession of marijuana for sale,
and possession of drug paraphernalia. Villarreal challenges in particular
the superior court’s denial of his motion to suppress evidence obtained
when law enforcement entered his apartment. For reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             The Glendale Fire Department and Glendale Police Officer
Stepp responded to a fire at Villarreal’s apartment. After the blaze was
extinguished, the fire captain told Officer Stepp that there was something
in the apartment that he should see. The captain led Officer Stepp inside to
the kitchen where the officer saw a small plastic bag of cocaine sitting next
to a digital scale. In the front room, Officer Stepp saw a bowl containing a
white powdery substance inside an open plastic bin. He then did a safety
sweep of the apartment, during which he saw a small vacuum-sealed bag
of marijuana and Villarreal’s identification card and open passport.

¶3            Officer Stepp recognized Villarreal from his identification and
approached him outside the apartment. Villarreal voluntarily talked with
officers and consented to a full search of the apartment. During the search,
officers found a large vacuum-sealed bag of marijuana, $3,500 in cash, a
vacuum sealing machine, and packaging material. Villarreal was arrested
and charged with possession of narcotic drugs for sale, possession of
marijuana for sale, and possession of drug paraphernalia.

¶4            A jury found Villarreal guilty as charged, and he was
sentenced to a mitigated sentence of 4 years’ imprisonment for possession
of narcotic drugs for sale and concurrent 3-year terms of probation for the
other convictions. Villarreal timely appealed, and we have jurisdiction
under Arizona Revised Statutes (“A.R.S.”) § 13-4033.




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                           STATE v. VILLARREAL
                            Decision of the Court

                                DISCUSSION

¶5             Villarreal argues that the superior court erred by denying his
motion to suppress the evidence found in his apartment. During the
pretrial suppression hearing, Officer Stepp testified—over Villarreal’s
objection—that he followed the fire captain into Villarreal’s apartment after
“the captain . . . came outside and advised me that they had located
something in the apartment that they needed to alert me to.” Villarreal
asserts that this statement was inadmissible hearsay and should have been
precluded. He urges that, without this evidence of the fire captain’s
statement, Officer Stepp had no basis to enter the apartment in the first
instance, so all resulting evidence should have been suppressed.

¶6            We review the superior court’s ruling on a motion to suppress
for an abuse of discretion, but review de novo constitutional and legal
issues. State v. Moody, 208 Ariz. 424, 445, ¶ 62 (2004). We consider only
evidence presented at the suppression hearing and view that evidence in
the light most favorable to upholding the superior court’s decision. State v.
Mitchell, 234 Ariz. 410, 413, ¶ 11 (App. 2014).

¶7             Hearsay is “a statement that: (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” Ariz.
R. Evid. 801(c). An out-of-court assertion offered to prove its effect on the
listener (rather than the truth of the matter asserted) is not hearsay. See State
v. Romanosky, 162 Ariz. 217, 222 (1989); State v. Rivers, 190 Ariz. 56, 60 (App.
1997).

¶8             Here, the officer’s testimony was offered to explain its effect
on the listener—that is, why Officer Stepp followed the fire captain into the
apartment—and not to prove the truth of the fire captain’s assertion that
there was something of significance in the apartment. Thus, the statement
was not hearsay, and the superior court did not err by declining to preclude
it on that basis. For the same reason, Villarreal’s Confrontation Clause
argument also fails. See State v. Tucker, 215 Ariz. 298, 315, ¶ 61 (2007)
(“[T]estimony that is not admitted to prove its truth is not hearsay and does
not violate the Confrontation Clause.”) (citing Crawford v. Washington, 541
U.S. 36, 59 n.9 (2004)).

¶9           Moreover, based on the Arizona Supreme Court’s decision in
Mazen v. Seidel, 189 Ariz. 195 (1997), Officer Stepp was authorized to enter
the apartment even without the fire captain’s statement. In Mazen, the court
held that when firefighters lawfully enter a structure under exigent



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                          STATE v. VILLARREAL
                           Decision of the Court

circumstances, law enforcement may also lawfully enter that structure
subject to the “spatial and temporal boundaries of the firefighters’ entry,
presence, and plain-view discovery.” Id. at 202. The court noted that “[t]he
police could lawfully step into the shoes of the firefighters to seize what the
firefighters could move,” and that the defendant “no longer had a
reasonable expectation of privacy for that area . . . where one officer was
already legally present.” Id. at 199 (quotation omitted and alteration in
original).

¶10            Villarreal does not challenge the lawfulness of the firefighters’
entry, and Officer Stepp’s contemporaneous entry with the fire captain into
Villarreal’s kitchen and living room did not exceed the spatial and temporal
boundaries of the firefighters’ entry or otherwise violate Villarreal’s rights.
Accordingly, the superior court did not err by denying Villarreal’s motion
to suppress.

                               CONCLUSION

¶11           We affirm Villarreal’s convictions and sentences.




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




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