                               IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

              GILBERTO GARCIA-QUINTANA, Appellant.

                         No. 1 CA-CR 12-0565
                           FILED 3-25-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-103830-003
              The Honorable Susanna C. Pineda, Judge

          AFFIRMED AS MODIFIED; VACATED IN PART


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin
Counsel for Appellant



                              OPINION

Presiding Judge Andrew W. Gould delivered the opinion of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.


G O U L D, Judge:
                     STATE v. GARCIA-QUINTANA
                         Opinion of the Court

¶1           Gilberto Garcia-Quintana (“Defendant”) appeals from his
conviction and sentence for sale or transportation of marijuana, a class
two felony. Defendant argues the court improperly admitted drug courier
profile evidence. Because we conclude the evidence was properly
admitted as modus operandi evidence, we affirm as modified, vacating
the order Defendant pay for the cost of DNA testing.

                      Facts and Procedural History1

¶2            Shortly before midnight, Border Patrol agents using infrared
equipment spotted 11 men walking in the desert near Gila Bend, Arizona.
A short time later, agents started tracking the group’s foot sign, 2 which
eventually led to ten makeshift backpacks abandoned in the desert. The
backpacks each contained approximately 50 pounds of marijuana, for a
total of 477 pounds. The agents continued to track the group, and about a
mile from the backpacks they discovered Defendant and three other men
hiding under a blanket.

¶3           Defendant was arrested and charged with one count of sale
or transportation of marijuana. Defendant was tried and convicted, and
sentenced to a presumptive term of imprisonment of 3.5 years. Defendant
timely appeals.

                           Standard of Review

¶4            Prior to trial, Defendant filed a motion in limine requesting
the court to preclude evidence of the usual practices of drug dealers and
whether Defendant fit a drug courier profile. The motion did not identify
any specific evidence or testimony to be precluded. At oral argument, the
prosecutor explained that he planned to elicit testimony about the general
modus operandi of drug trafficking organizations.        Remarking on the
distinction between inadmissible drug courier profile evidence and
admissible modus operandi evidence, the court stated, “Until I hear the


1      “We construe the evidence in the light most favorable to sustaining
the verdict, and resolve all reasonable inferences against the defendant.”
State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998) (citation
omitted).

2      Agent Curiel testified that “foot sign” is a tracking term that refers
to any disturbances on the ground or the physical environment, such as
footprints or broken branches, that do not occur naturally.



                                     2
                     STATE v. GARCIA-QUINTANA
                         Opinion of the Court

question, however, I won’t know whether or not a question actually fits
into asking for drug courier profiling, which is not admissible, and
[modus operandi], which is.” Accordingly, the court reserved any ruling
until trial, and stated that it would rule on “a question-by-question basis.”
However, during trial Defendant did not object to any of the testimony he
now claims was inadmissible drug courier evidence.

¶5             “[W]here a motion in limine is made and ruled upon, the
objection raised in that motion is preserved for appeal, despite the absence
of a specific objection at trial.” State v. Anthony, 218 Ariz. 439, 446, ¶ 38,
189 P.3d 366, 373 (2008) (quoting State v. Burton, 144 Ariz. 248, 250, 697
P.2d 331, 333 (1985)). However, when the court does not rule on a motion
in limine, the motion does not preserve a defendant’s objection(s) if he
fails to subsequently object at trial. State v. Lujan, 136 Ariz. 326, 328, 666
P.2d 71, 73 (1983) (holding that failing to make a record as to the
disposition of the motion in limine and failing to object at trial waived any
error).

¶6              Because the court never ruled on Defendant’s motion in
limine and Defendant did not object at trial, Defendant has “not properly
preserved these issues for appeal absent fundamental, prejudicial error.”
State v. Perez, 233 Ariz. 38, 43-44, ¶ 21, 308 P.3d 1189, 1194-95 (App. 2013).
We therefore review for fundamental error only. State v. Henderson, 210
Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). Under a
fundamental error standard, the defendant must demonstrate not only
that fundamental error occurred, but also that the error prejudiced the
defendant. Henderson, 210 Ariz. at 567-68, ¶ 20, 115 P.3d at 607-08.

                                 Discussion

¶7            At trial, Defendant asserted he had never carried any of the
marijuana backpacks and was not part of the drug smuggling group.
Rather, his defense was that the agents apprehended him while he was
crossing the desert to find work in the United States.

¶8             Because Defendant was not found in actual, physical
possession of the marijuana, the State’s case against him was largely
circumstantial. The agent observing the suspected smuggling group
radioed the group’s GPS coordinates to nearby agents. Within 20 minutes,
the agents arrived at the GPS location. Using a tracking dog, they started
tracking a group of 11 men. After following the trail for approximately
five miles, the agents discovered the ten abandoned bundles of marijuana.
They also observed a trail leading away from the marijuana.



                                      3
                     STATE v. GARCIA-QUINTANA
                         Opinion of the Court

¶9            The agents and the tracking dog continued to follow the trail
for about a mile, when the dog led them to Defendant, who was hiding
under a blanket with three men. Two of the four men – the agents could
not recall which of the four – were wearing shoes that matched the foot
sign on the trail. The agents did not compare the foot sign with the shoes
Defendant was wearing. The group had no food, water, or personal items.
The agents later took pictures of Defendant showing that he had marks on
his shoulders and lower back that were consistent with him carrying
something very heavy, e.g., one of the makeshift backpacks.3

¶10           During its case-in-chief, the State also presented expert
testimony from several agents and law enforcement officers about the
methods used by drug trafficking organizations to smuggle drugs across
the desert. Defendant argues this expert testimony was inadmissible drug
courier profile evidence.

I.   Modus Operandi and Drug Courier Profile Evidence

¶11            “A drug courier profile is a loose assortment of general,
often contradictory, characteristics and behaviors used by police officers
to explain their reasons for stopping and questioning persons about
possible illegal drug activity.” State v. Lee, 191 Ariz. 542, 544, ¶ 10, 959
P.2d 799, 801 (1998). The profiles consist of an “’informal compilation of
characteristics’ or an ‘abstract of characteristics’ typically displayed by
persons trafficking in illegal drugs.” Id. at 544-45, ¶ 10, 959 P.2d at 801-02
(internal citations omitted). The profiles are based on the experience of
officers who have investigated illegal drug activity, and consist of a wide
variety of factors, such as an individual’s age, clothing, jewelry, luggage,
use of cash to make purchases, nervous or unusually calm behavior, and
plane travel from “drug source” cities. See Jay M. Zitter, Annotation,
Admissibility of Drug Courier Profile Testimony in Criminal Prosecution, 69
A.L.R. 5th 425 (1999 & Cum. Supp.) (compiling cases discussing drug
courier profiles); Kimberly J. Winbush, Annotation, Propriety of Stop and
Search by Law Enforcement Officers based Solely on Drug Courier Profile, 37
A.L.R. 5th 1 (1996 & Cum. Supp.) (same).




3      During his trial testimony, Defendant admitted the marks were
from carrying a very heavy backpack containing food and water across
the desert from Mexico. However, Defendant denied carrying a backpack
containing marijuana.



                                      4
                       STATE v. GARCIA-QUINTANA
                           Opinion of the Court

¶12            While drug courier profile evidence may be admissible “in
the context of suppression and probable cause hearings, where law
enforcement’s justification for a stop, arrest, or confiscation is at issue,” it
is not admissible as substantive proof of guilt at trial. Lee, 191 Ariz. at 545,
¶ 11, 959 P.2d at 802. Courts have generally precluded police officers from
testifying at trial that, based on their training and experience, a particular
defendant “fits” the profile of a drug dealer or drug trafficker. Such
testimony is inherently prejudicial because it suggests to the jury that
“because someone shares characteristics—many of them innocent and
commonplace—with a certain type of offender, that individual must also”
be guilty. Id. at 545, ¶¶ 12, 14, 959 P.2d at 802; see also State v. Cifuentes, 171
Ariz. 257, 257, 830 P.2d 469, 469 (App. 1991) (stating that the “use of
profile evidence to indicate guilt . . . creates too high a risk that a
defendant will be convicted not for what he did but for what others are
doing”).

¶13             “Unlike drug courier profile evidence, modus operandi
evidence is . . . properly admitted to assist the jury in understanding the
modus operandi of a drug trafficking organization.” State v. Gonzalez, 229
Ariz. 550, 554, ¶ 13, 278 P.3d 328, 332 (App. 2012). Modus operandi
evidence focuses on the usual patterns or methods used by a criminal
gang or organization to commit a crime. See, e.g., United States v.
Sepulveda-Barraza, 645 F.3d 1066, 1069 (9th Cir. 2011) (testimony that drug
traffickers do not typically use unknowing drivers to transport drugs was
admissible to show the methods and techniques employed by drug
trafficking organizations); United States v. Murillo, 255 F.3d 1169, 1178 (9th
Cir. 2001) (testimony that drug trafficking organizations do not entrust
thousands of dollars in drugs to unknowing couriers was admissible as
evidence concerning the structure and operation of such organizations),
overruled on other grounds as recognized in United States v. Mendez, 476 F.3d
1077, 1080 (9th Cir. 2007).         Because crimes involving a criminal
organization may be complex and involve multiple individuals, the role
each person plays in committing the crime is most likely beyond the
knowledge of the average juror. United States v. Montes-Salas, 669 F.3d
240, 250 (5th Cir. 2012) (stating that testimony about how a trafficking
operation works, the roles of guides, drivers, etc. is “legitimate
background testimony”). Thus, a qualified law enforcement officer may
provide expert opinion testimony regarding the modus operandi of a
criminal organization to explain how a person’s actions may indicate their
active participation in a crime. United States v. Cordoba, 104 F.3d 225, 229
(9th Cir. 1997) (A qualified expert witness may provide opinion testimony
regarding the operation of drug trafficking organizations if it “will assist
the trier of fact in understanding the evidence or determining an issue.”).


                                        5
                     STATE v. GARCIA-QUINTANA
                         Opinion of the Court

¶14           While expert testimony concerning the structure and
methods used by drug trafficking organizations is admissible, the expert
may not provide an opinion comparing the modus operandi of such an
organization with the conduct of a defendant in a particular case. See
United States v. Doe, 149 F.3d 634, 637 (7th Cir. 1998) (approving expert
explanation of common practices of drug traffickers when the jury is “left
to compare that information to the facts of th[e] case and [defendant’s]
own behavior”). Rather, it is the province of the jury to determine
whether a defendant’s conduct fits within the modus operandi of a drug
trafficking organization. United States v. Morin, 627 F.3d 985, 995 (5th Cir.
2010) (stating that an expert may analyze the facts but may not offer an
opinion on the ultimate legal issue in the case “by offering a direct opinion
as to the defendant’s mental state or by giving the ‘functional equivalent’
of such a statement”); cf. State v. Moran, 151 Ariz. 378, 381-82, 386, 728
P.2d 248, 251-52, 256 (1986) (stating that expert testimony regarding the
general behavioral characteristics of child abuse victims is admissible, but
testimony that a victim’s behavior is consistent with such characteristics is
inadmissible).

¶15           The admissibility of modus operandi testimony is a fact-
intensive inquiry, and the trial judge must carefully consider the facts of
each case. We stress that modus operandi testimony is, at its core,
generalized expert testimony about the patterns of a criminal
organization, rather than testimony about the conduct of a defendant in a
particular case. Thus, by way of example, a qualified officer may testify
that a gang of professional pickpockets typically assigns one member of
the gang to distract the victim by staging an argument or bumping into
the victim. This might help a jury understand why a defendant, who
created the distraction but did not actually pick the victim’s pocket, was a
participant in the crime. In contrast, if the officer opined that the
defendant’s young age, clothes, demeanor and gestures at the scene of the
crime showed that he fit the profile of a pickpocket, such testimony would
be inadmissible profile evidence.

II.   Analysis of Expert Testimony

¶16           The State elicited testimony from several law enforcement
witnesses concerning the methods used by drug trafficking organizations
to transport marijuana across the desert. Agents Dawson and Curiel
testified about the routes used by drug traffickers to cross the desert.
Agent Curiel testified that his unit regularly watches the area where




                                     6
                     STATE v. GARCIA-QUINTANA
                         Opinion of the Court

Defendant was found, because he and his fellow officers have observed a
significant amount of foot sign in the area.4 Agent Dawson testified that
drug traffickers often use the area to avoid Border Patrol. Agent Dawson
testified that drug traffickers are aware that the area is used as a military
bombing range, and that Border Patrol agents will not enter this range
during live bombing, which occurs approximately five days a week. In
addition, Agent Dawson testified that the path through the subject area
allows drug traffickers to avoid a nearby Border Patrol checkpoint.

¶17           Agent Curiel testified about the methods drug traffickers use
to avoid being tracked by Border Patrol. Agent Curiel testified that drug
traffickers will often wear “carpet booties” to disguise their foot sign in
the desert. These booties consist of pieces of carpet slipped over a shoe,
and have the effect of leaving little or no foot sign. Agent Solosabal
testified that the tracks leading both to the marijuana bundles and
Defendant included tracks made by carpet booties.

¶18            Agent Curiel explained that in his experience drug
traffickers carrying marijuana in backpacks most often travel in groups of
2-20 people. This experience was one of the factors he relied upon in
determining that the group of 11 people he observed walking across the
desert may have been drug traffickers.

¶19            Agents Solosabal and Curiel testified about the typical
backpacks used by drug traffickers and the usual contents of these
backpacks. When Agent Curiel first spotted the group, he observed that
in contrast to the infrared heat signatures emitting from their bodies, there
were large rectangular “cold spots” on their backs. The “cold spots”
indicated the men were carrying large backpacks. Agent Curiel explained
that the size and shape of the backpacks he observed indicated the men
were carrying drugs because people who are carrying food and water will
typically use smaller “school-style backpacks.” He testified that the packs
the agents found, which were made of blankets and ropes tied around
bundles of marijuana, are typical of those used by drug traffickers.



4      On cross-examination, defense counsel asked Agent Curiel if he
had “ever apprehended anyone who was walking into the United States”
or “this area” that didn't have drugs on them, to which Agent Curiel
answered, “I don’t recall” and “I don’t know.” Agent Curiel also testified,
however, that the area is also a high traffic area for non-drug traffic,
including persons who have illegally crossed the border.



                                     7
                     STATE v. GARCIA-QUINTANA
                         Opinion of the Court

¶20          Agent Solosabal also testified that in his experience, people
who are not trafficking drugs will be found with small backpacks
containing food, water, and personal belongings, but drug traffickers will
be found without anything, having abandoned their backpacks to distance
themselves from the illegal contraband. Agent Solosabal explained that
drug backpacks typically weigh 50 pounds, and one member of the group
is usually designated to carry a backpack containing food and water for
the group.

¶21           Maricopa County Sheriff’s Office detectives also testified
that the types of bundles recovered in this case are typical of the types of
bundles found in drug trafficking cases. Detective DeSimone testified that
he did not fingerprint the bundles because, in his experience, “people
generally backpacking the marijuana bales coming across the border are
not the same individuals who packaged the marijuana.”

¶22         Finally, Agent Dawson explained that he photographed
Defendant and the three men found with him because subjects who are
apprehended trafficking narcotics into the United States will frequently
have marks on their bodies from carrying marijuana laden
backpacks/bundles.

¶23           The evidence in this case was properly admitted as modus
operandi evidence because the agents’ testimony served to educate the
jury about the methods and operations of drug trafficking organizations.
The agents’ testimony about how drug trafficking organizations package
and transport drugs in backpacks across the desert assisted the jury in
understanding the methods used by drug trafficking organizations to
smuggle drugs into the United States. Similarly, explaining the routes
trafficking groups use to avoid being caught and that drug traffickers
oftentimes wear carpet booties to disguise their foot sign in the desert
explained the techniques used by drug smuggling organizations to avoid
detection by Border Patrol. Cordoba, 104 F.3d at 229 (“If specialized
knowledge will assist the trier of fact in understanding the evidence or
determining an issue, a qualified expert witness may provide opinion
testimony on the issue in question.”) (quoting Fed. R. Evid. 702).

¶24           Additionally, the testimony in this case does not present the
risk warned of in Lee: “the assumption that because someone shares
characteristics – many of them innocent and commonplace – with a certain
type of offender, that individual must also possess the same criminal
culpability.” Lee, 191 Ariz. at 545, ¶ 14, 959 P.2d at 802 (faulty reasoning
that a defendant’s knowledge can be shown by the consistency of his


                                     8
                     STATE v. GARCIA-QUINTANA
                         Opinion of the Court

actions with a drug courier profile). Here, the agents did not compare the
actions and circumstances of Defendant to the “profile” of a drug courier.
Rather, it was left to the jury to decide whether the circumstances
surrounding Defendant’s apprehension and the modus operandi of drug
trafficking organizations supported an inference that Defendant was
transporting drugs for such an organization.

¶25           Defendant argues, however, that Agent Curiel’s testimony
that he was apprehended in a high drug traffic area was improperly
admitted as profile evidence. We disagree. Agent Curiel’s testimony
simply explained, by way of background, the reason why he was
watching the area when he first observed Defendant’s smuggling group.
See Lee, 191 Ariz. at 545, ¶ 11, 959 P.2d at 802 (noting that profile evidence
has been used as background for a police stop and search); United States v.
Gomez-Norena, 908 F.2d 497, 501 (9th Cir. 1990) (same).

¶26          Additionally, Defendant contends Agent Dawson’s
testimony that “marks” are frequently found on drug traffickers he has
arrested was also inadmissible profile evidence. We conclude there was
no error. Agent Dawson’s testimony provided background as to why he
took photographs of Defendant, which in turn led to his observation that
Defendant had marks on his shoulders and back that were consistent with
carrying “something very heavy.” This evidence was not profile evidence,
nor was it modus operandi evidence. It was simply circumstantial
evidence that Defendant may have been carrying one of the abandoned
marijuana backpacks.

¶27          Accordingly, we find no error in admitting the agents’
testimony, and conclude that Defendant has not met his burden of
showing the trial court committed fundamental reversible error. See
Henderson, 210 Ariz. at 567-68, ¶¶ 20, 22, 26, 115 P.3d at 607-08.

III.   Closing Argument

¶28           In his closing argument, the prosecutor emphasized that the
area where Defendant was found is a well-known drug trafficking area.
He reiterated that the types of packs initially shown on the infrared
equipment and eventually found by the agents are unique to people
trafficking drugs. He also stated that individuals found in the desert who
are not transporting drugs are typically found with personal belongings
such as food and water.

¶29           The prosecutor did not argue in his closing that a drug-
courier profile existed, nor did he make any comparison between a drug


                                      9
                     STATE v. GARCIA-QUINTANA
                         Opinion of the Court

courier profile and Defendant. However, he did describe how the actions
of Defendant fit into the modus operandi of a drug trafficking
organization. We find no error in this argument. While the agents
themselves could not, in the context of their expert testimony, make such a
comparison, there was nothing improper about the prosecutor arguing
reasonable inferences to the jury based on the expert testimony of the
officers. State v. Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993)
(holding that prosecutors “may summarize the evidence, make submittals
to the jury, urge the jury to draw reasonable inferences from the evidence,
and suggest ultimate conclusions”); see also United States. v. Sanchez-
Hernandez, 507 F.3d 826, 833 (5th Cir. 2007) (“Our cases criticize the
admission of direct testimony of this type [profile evidence], but we have
not held that the government cannot argue this inference when a
defendant is entrusted with illicit drugs or is given a role in their
distribution and claims that he did not know that the drugs were present
or was duped into playing a role in their movement.”); cf. State v. Loney,
230 Ariz. 542, 545, ¶¶ 10, 13, 287 P.3d 836, 893 (App. 2012), vacated in part
on other grounds, State v. Loney, 231 Ariz. 474, 296 P.3d 1010 (App. 2013)
(“Loney argues the prosecutor’s comments improperly asked the jury to
find him guilty because he fit the sexual predator profile testified to by
Officer Patterson. We disagree because the prosecutor’s effort to draw
comparisons between Loney and the sexual predator profile fell within
the proper scope of closing argument . . . Because the prosecutor was
permitted to argue all reasonable inferences based on the testimony of
Officer Patterson, she could properly argue that Loney fit the profile of a
sexual predator.”).

                           Cost of DNA Testing

¶30          Defendant argues he should not have been required to pay
the cost of his DNA testing. The State concedes that the court’s order
requiring Defendant to pay for his DNA testing was erroneous and must
be vacated. See State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39
(App. 2013). We agree and vacate the portion of the sentencing order
requiring Defendant to pay for his DNA testing.




                                     10
                    STATE v. GARCIA-QUINTANA
                        Opinion of the Court

                              Conclusion

¶31          For the reasons discussed above, we affirm Defendant’s
conviction and sentence as modified to vacate the portion of the court’s
sentencing order requiring Defendant to pay for his DNA testing.




                               :MJT




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