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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     LEONARDO CHAVEZ, Appellant.

                             No. 1 CA-CR 15-0696
                               FILED 1-24-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-121853-002
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B.N. Garcia
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
                            STATE v. CHAVEZ
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.


N O R R I S, Judge:

¶1            Leonardo Chavez appeals his convictions and sentences for
several possession of drugs for sale and drug paraphernalia offenses and
misconduct involving a weapon. On appeal he argues the State introduced
improper and prejudicial character evidence that would have led the jury
to infer he was a gang member. In making this argument, Chavez points to
the testimony of, first, Tempe Police Detectives T.M. and M.M. that they
were working in the gang unit at the time they assisted, in a narcotics
investigation targeting Chavez, with executing a search warrant on a
Phoenix apartment Chavez was staying at1; second, Detective J.C.’s
“graphic” testimony regarding how a SWAT team executes an entry; third,
Detective R.E.’s response to a juror question asking why the Tempe Police
were “investigating drug sales in Phoenix”; and, fourth, Detective R.E.’s
response to a question posed by defense counsel regarding the totality of
the evidence.

¶2            Reviewing for fundamental error because the defense did not
object to any of the foregoing testimony, we reject Chavez’s argument. State
v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). The testimony
identified by Chavez neither individually, nor collectively, constituted
character evidence.2


              1Detective R.E. testified that Chavez initially told him he was
living in the apartment, but later told him that he was only staying at the
apartment temporarily. Although the difference is immaterial to this
appeal, the State, however, presented additional evidence of Chavez’s
presence in the apartment. For example, officers found the majority of the
evidence in the master bedroom, men’s clothing in the master bedroom,
and Chavez’s wallet hidden under the mattress in the master bedroom.

              2We  view all facts and reasonable inferences in the light most
favorable to sustaining the verdicts. State v. Bon, 236 Ariz. 249, 251, ¶ 2, 338
P.3d 989, 991 (App. 2014) (quotations and citation omitted).


                                       2
                           STATE v. CHAVEZ
                           Decision of the Court

¶3             Evidence of a defendant’s gang affiliation is improper “bad
character” evidence under Arizona Rule of Evidence 404(a)(1) when a
defendant has not put his or her character at issue. See State v. Ballantyne,
128 Ariz. 68, 71, 623 P.2d 857, 860 (App. 1981) (prosecutor’s questions
regarding defendant’s alleged membership in Hell’s Angels along with
having defendant show the jury his skull and “Harley Davidson” tattoo
was improper and prejudicial character evidence under Rule 404(a)(1);
defendant had not put his character at issue). Here, Chavez did not put his
character at issue.

¶4             The testimony that Chavez identifies, however, see supra ¶ 1,
cannot reasonably be construed as evidence of “bad character” under Rule
404(a)(1). First, the only reference to gangs by Detective T.M. and Detective
M.M. was their testimony, when summarizing their training and work
experience, that they worked in the gang unit at the time they assisted with
the warrant. Further, the testimony of Detective T.M. demonstrated the
search warrant involved “a narcotic-related” investigation—without any
discussion of gangs. Thus, a reasonable jury would not have inferred from
Detective T.M.’s and Detective M.M.’s testimony concerning their work
history that Chavez was affiliated with a gang.

¶5           Second, Detective J.C., who was part of the SWAT team that
entered Chavez’s apartment, made no reference to gangs. And, his
testimony regarding the procedures followed by a SWAT team provided
context to the entry that occurred when the SWAT team executed the
warrant on Chavez’s apartment.

¶6            Third, Detective R.E.’s response to the juror’s question, see
supra ¶ 1, did not reference gangs. Instead his response focused on how
police typically handle drug investigations:

             Drug investigations, they do not stay confined
             within one city. When drug trafficking
             organizations are in business, they will deal
             with anyone all over in any city. It may have
             been—we have cases that start in our city and
             move into all different cities around the entire
             Valley, but, again, with the drug business, it’s
             not contained in one city. We will go outside of
             our boundaries to investigate drug crimes,
             which led us to this apartment.




                                     3
                            STATE v. CHAVEZ
                            Decision of the Court

¶7            Here, officers searched the apartment and found a large
amount of heroin, cocaine, marijuana, methamphetamine, as well as drug
paraphernalia and guns. As a grand jury indicted Chavez on several counts
of possession of drugs with the intent to sell, a reasonable jury would not
have concluded Detective R.E.’s testimony, even his reference to “drug
trafficking organizations,” was meant to convey that Chavez was in a gang.

¶8             Finally, Detective R.E. made no reference to gangs in
responding to defense counsel’s questions regarding the totality of the
evidence—questions which actually focused on the reasons why Detective
R.E., as the case agent, had not had any of the seized evidence, such as the
guns and a glass jar containing marijuana, tested for fingerprints. The
exchange was as follows:

              Defense counsel:     Now,      knowing      that
              numerous people are in that apartment,
              knowing that A.V has just left the apartment,
              knowing that you’re the case agent, given that
              scenario and the totality of what we have listed
              here now, why don’t you take prints?

              Detective R.E.:      What’s listed there is not
              the totality.

              Defense counsel:     It’s the evidence that has
              come into this case, correct?

              Detective R.E.:      There’s more—

              Defense counsel:    It’s a yes or a no. It’s the
              evidence that has come into this case, correct?

              Detective R.E.:      That is part of the evidence
              that has come into this case, what’s listed on the
              white board there.

¶9           First, at best, the jury might have inferred from this exchange
the police did not test for fingerprints because they possessed other
evidence the State did not introduce at trial. Second, R.E.’s discussion of the
case evidence related to his prior testimony, in the State’s case-in-chief, in
which he had explained that he had not tested the guns or drug
paraphernalia for fingerprints because a positive fingerprint match would
not have established ownership, and, he believed police had already


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                           STATE v. CHAVEZ
                           Decision of the Court

obtained sufficient evidence of Chavez’s ownership of the seized items
because they had found him in the apartment and had uncovered other
evidence that he was staying in the apartment. See supra ¶ 1 n.1. In light of
R.E.’s testimony in this case, this exchange cannot reasonably be construed
as suggesting or even intimating Chavez was a gang member.3

                               CONCLUSION

¶10          For the foregoing reasons, we affirm Chavez’s convictions
and sentences.




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




             3Because,   applying fundamental error review, we conclude
there was no error, we do not need to address the State’s argument that
Chavez invited any error in questioning Detective R.E. See State v. Moody,
208 Ariz. 424, 453, ¶ 111, 94 P.3d 1119, 1148 (2004) (defendant invites error
by asking a leading question and may not assign the error on appeal)
(citation omitted).


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