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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 BRITTANY ELAINE KRAUCH, Appellant.

                             No. 1 CA-CR 14-0016
                               FILED 6-2-2015


          Appeal from the Superior Court in Maricopa County
                     No. CR2013-106009-001 DT
          The Honorable Phemonia L. Miller, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Richard D. Coffinger, Attorney at Law, Glendale
By Richard D. Coffinger
Counsel for Appellant
                           STATE v. KRAUCH
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.


B R O W N, Judge:

¶1            Brittany Elaine Krauch appeals her convictions and resulting
probation grants for two counts of possession of dangerous drugs. For
reasons that follow, we affirm.

                             BACKGROUND

¶2            Police Officer Anthony Volpe conducted a traffic stop on a
pickup truck in which Krauch was a passenger. Officer Volpe obtained
Krauch’s consent to have his partner search her purse after she revealed
there was a knife in it. After Volpe conducted a search of the vehicle, he
observed several items on the hood of his police car next to Krauch’s purse,
including a digital scale, a small peach-colored pill inside a small plastic
baggie, and a packaged black, tar-like substance. Krauch told Volpe that
she used the scale to weigh marijuana, the pill was Ritalin that belonged to
her, and the tar-like substance was “fake heroin” given to her by a friend.

¶3            Asked if she had anything else on her that the officers needed
to know about, Krauch made a gesture that led Volpe to warn her that if
she had something in her bra she should produce it or she would be
searched. Krauch produced a small tin container containing a plastic
baggie with eight round peach-colored pills that Krauch identified as
Ritalin and a plastic baggie with two yellow rectangular pills she identified
as Xanax.

¶4             After she was arrested and waived her rights under Miranda
v. Arizona, 384 U.S. 436 (1966), Krauch told Volpe she had a prescription for
the Ritalin, and that she had traded some Ritalin for the Xanax. Krauch,
however, never produced a prescription for the Ritalin.

¶5            A chemical analysis confirmed that the peach-colored pills
contained methylphenidate, known as Ritalin, and the yellow rectangular
pills contained alprazolam, known as Xanax, both dangerous drugs under
Arizona law.




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                            STATE v. KRAUCH
                            Decision of the Court
¶6           The jury convicted Krauch of two charges of possession of
dangerous drugs, but acquitted her of a charge of possession of drug
paraphernalia. The trial court suspended sentence and imposed 18 months’
supervised probation. Krauch timely appealed.

                               DISCUSSION

              A. Admission of Contraband from Purse

¶7              Krauch raises three issues related to the admission at trial of
the suspected contraband removed from her purse during the consensual
search by an officer who did not appear as a witness at trial. She argues
first that Volpe’s indirect reference at trial to his partner’s nonverbal
conduct—the placement of the suspected contraband on the hood of the
police car next to Krauch’s purse—requires reversal because the conduct
was intended as an assertion that the suspected contraband had been
recovered from the purse. Because the declarant, Volpe’s partner, did not
testify at trial, Krauch argues the reference was inadmissible hearsay and
violated her confrontation rights.

¶8             Volpe testified at the pretrial suppression hearing that his
partner had told him that he had recovered a peach-colored pill and a
digital scale from Krauch’s purse. At trial, defense counsel asked Volpe
during voir dire examination if his partner had told him anything about the
items on the hood of the police car, and Volpe simply responded, “Yes.”
What Volpe’s partner said about the items, however, was not elicited at trial
by either counsel or testified to by Volpe.

¶9             Volpe testified at trial that his partner had searched Krauch’s
purse, but that he was not present when his partner retrieved the suspected
contraband from the purse. Volpe explained, however, that he saw the
items of suspected contraband placed on the hood of his car next to
Krauch’s purse, asked Krauch about them and Krauch told him that the
Ritalin pill belonged to her, and that she used the scale to weigh marijuana.
It is Volpe’s testimony—that after his partner searched Krauch’s purse,
Volpe observed the items placed next to the purse on the hood of his police
car—which Krauch argues contained inadmissible hearsay and violated her
confrontation rights.

¶10           Under the Arizona Rules of Evidence, nonverbal conduct is a
statement subject to the rule against hearsay “if the person intended it as an
assertion,” and it is offered in evidence to prove the truth of the matter
asserted. Ariz. R. Evid. 801(a), (c). The Confrontation Clause prohibits the
admission of testimonial hearsay at a criminal trial unless the declarant is


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                            STATE v. KRAUCH
                            Decision of the Court
available at trial for cross-examination. Crawford v. Washington, 541 U.S. 36,
59, 68 (2004). Although we ordinarily review evidentiary rulings for abuse
of discretion, we review evidentiary rulings that implicate a defendant’s
constitutional rights de novo. State v. Ellison, 213 Ariz. 116, 130, ¶ 42, 140
P.3d 899, 913 (2006).

¶11            Krauch offered no evidence to support her claim that the non-
testifying officer intended his act of placing the suspected contraband on
the hood of the police car next to Krauch’s purse to be an assertion that the
items were removed from her purse. Krauch accordingly failed to meet her
burden to demonstrate that Volpe’s testimony referring to this nonverbal
conduct was hearsay. See Ellison, 213 Ariz. at 132, ¶ 56, 140 P.3d at 915
(holding that mere speculation as to the declarant’s intent is not enough).
For similar reasons, Krauch has not shown that this nonverbal conduct was
“testimonial” as would be required to implicate the Confrontation Clause.
See Crawford, 541 U.S. at 68. Accordingly, Krauch has not shown that the
admission of evidence of this nonverbal conduct violated the rule against
hearsay or her confrontation rights.

¶12            Moreover, any error in admitting the challenged testimony
was harmless. As applicable here, an error is harmless when the State
proves beyond a reasonable doubt that the error in admitting the evidence
“did not contribute to or affect the verdict or sentence.” State v. Henderson,
210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005) (citing State v. Bible, 175
Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)). In light of Krauch’s admissions
that the suspected contraband belonged to her, even if the non-testifying
officer had intended his conduct as an assertion that he had found the items
in Krauch’s purse, the admission of Volpe’s observations was harmless
error. See State v. Bocharski, 218 Ariz. 476, 486, ¶¶ 38-41, 189 P.3d 403, 413
(2008) (holding Confrontation Clause and hearsay rule violations are
subject to harmless error analysis, and any such error was harmless because
the objected-to testimony was “superfluous” to other witnesses’ testimony
to the same effect); State v. Williams, 133 Ariz. 220, 226, 650 P.2d 1202, 1208
(1982) (“[E]rroneous admission of evidence which was entirely cumulative
constitute[s] harmless error.”).

¶13          Krauch also argues the absent officer’s testimony was
necessary to establish a chain of custody to admit the contraband and the
photographs of same. We review a trial court’s decision that sufficient
foundation has been laid to admit evidence for abuse of discretion. State v.
George, 206 Ariz. 436, 446, ¶ 28, 79 P.3d 1050, 1060 (App. 2003).

¶14          Foundation may be laid either through identification
testimony or by establishing a chain of custody. State v. Macumber, 119 Ariz.


                                      4
                            STATE v. KRAUCH
                            Decision of the Court
516, 521, 582 P.2d 162, 167 (1978). To establish a chain of custody, the State
must demonstrate “continuity of possession,” and must reasonably show
“that the evidence is intact and unaltered.” State v. Jackson, 170 Ariz. 89, 93,
821 P.2d 1374, 1378 (App. 1991). Not every person in the chain of custody
need testify, however, and flaws in the chain of custody generally go to
weight and not admissibility. State v. Morales, 170 Ariz. 360, 365, 824 P.2d
756, 761 (App. 1991). Moreover, “unless a defendant can offer proof of
actual change in the evidence, or show that the evidence has, indeed, been
tampered with, such evidence will be admissible.” Macumber, 119 Ariz. at
522, 582 P.2d at 168 (citation omitted).

¶15            Volpe testified that he observed the contraband on the hood
of his car after Krauch’s purse was searched, and Krauch admitted that the
Ritalin pill and the scale for weighing marijuana belonged to her. Volpe
photographed the pill and other items of suspected contraband, and logged
the Ritalin pill into evidence. Krauch has not offered any suggestion that
the suspected contraband was altered or tampered with before trial. On
this record, the trial court did not abuse its discretion in admitting the
contraband and the photograph depicting it.

              B. Admission of the Tin Container Contents

¶16             Krauch argues the trial court abused its discretion in denying
her motion to suppress the tin container containing two Xanax and eight
Ritalin pills that she removed from her bra, arguing that Volpe coerced her
into producing the tin by intimidation and deception, and that the State
failed to demonstrate that the tin would have been inevitably discovered.
The court denied the motion to suppress the contents of the container,
reasoning that although Volpe lied when he told Krauch that an officer was
on her way to search her and that if she had anything hidden in her bra, she
should give it up, the tin “would have been inevitably discovered because
Officer Volpe knew [Krauch] had something in her bra and he would have
had her searched if she had not turned the item over to him voluntarily.”

¶17            In reviewing the denial of a motion to suppress, we restrict
our review to consideration of the facts the trial court heard at the
suppression hearing, State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347,
1348 (1996), viewed in the light most favorable to sustaining the trial court’s
ruling. State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (App. 1996). We
give deference to the court’s factual findings, but review de novo whether
the Fourth Amendment was violated. State v. Gonzalez–Gutierrez, 187 Ariz.
116, 118, 927 P.2d 776, 778 (1996). We will uphold the court’s ruling if legally
correct for any reason supported by the record. State v. Canez, 202 Ariz. 133,
151, ¶ 51, 42 P.3d 564, 582 (2002).


                                       5
                            STATE v. KRAUCH
                            Decision of the Court
¶18            The Fourth Amendment guarantees the right of individuals
to be free from unreasonable governmental searches, and evidence derived
from a warrantless search or seizure is subject to the exclusionary rule
requiring suppression, Wong Sun v. United States, 371 U.S. 471, 487-88
(1963), unless the search comes within one of the few “established and well-
delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). A
search incident to a lawful arrest is one such exception, whereby a police
officer may conduct a search of a suspect’s person and the area within his
or her immediate control to check for weapons or destructible evidence.
Chimel v. California, 395 U.S. 752, 763 (1969). An officer’s command for a
suspect to empty his or her pockets or expose an area otherwise concealed
to the public constitutes a Fourth Amendment “search” if the suspect
complies with the command. U.S. v. Pope, 686 F.3d 1078, 1081 (9th Cir.
2012); see also Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 379
(2009) (school officials conducted an illegal search of a student when they
instructed her to remove her outer clothing and “shake out” her bra and
underwear because the search was not supported by reasonable suspicion).

¶19            Volpe testified at the suppression hearing his partner had
located one peach-colored pill, a package containing a tar-like substance,
and a scale inside Krauch’s purse. Krauch admitted that the items belonged
to her, that the tar-like substance was “fake heroin,” and that she used the
scale to weigh marijuana. Volpe also testified that he and his partner
observed Krauch gesturing as if she had something concealed in her bra.
At that point, Volpe had probable cause to arrest Krauch for either
possession of drug paraphernalia or possession of an imitation controlled
substance based on the items found in her purse, see Arizona Revised
Statutes sections 13-3415, -3456, and could lawfully perform a command
search of Krauch’s person to check for the additional contraband he
suspected she was concealing. See Pope, 686 F.3d at 1084.

¶20          Furthermore, the exclusionary rule does not apply to
evidence that the State can show by a preponderance of the evidence
“would inevitably have been discovered without reference to the police
error or misconduct.” Nix v. Williams, 467 U.S. 431, 448 (1984); see State v.
Castaneda, 150 Ariz. 382, 387 (1986) (recognizing the inevitable discovery
doctrine in Arizona). Volpe testified that once his partner saw Krauch
adjusting her bra and they concluded she was hiding something, had she
not produced whatever was hidden, “I would have called – even if it meant
another agency to come over, a female would have conducted a full search
on her.” Volpe’s testimony was sufficient to prove by a preponderance of
the evidence that police would have inevitably discovered the contents of




                                       6
                            STATE v. KRAUCH
                            Decision of the Court
the tin container by lawful means. The trial court did not err in denying the
motion to suppress the contents of the tin container.

              C. Denial of Rule 35.1(a) Motion

¶21           Finally, Krauch argues the trial court committed reversible
error by denying her motion to deem the pending motions to suppress
“submitted on the record” because the State did not file responses
according to the presumptive schedule for motion practice. See Ariz. R.
Crim. P. 35.1(a)

¶22           The trial court denied Krauch’s motion, reset the evidentiary
hearing, and extended the State’s deadline for response to the motion, later
explaining that email exchanged between counsel and the court indicated
that the suppression motions had been filed before the prosecutor was
assigned to the case, and the prosecutor had not learned of them until long
after the responses were due.

¶23            The trial court has broad discretion in determining briefing
schedules and hearing motions, and addressing the preclusive effect of Rule
35.1. See State v. Colvin, 231 Ariz. 269, 271, ¶ 7, 293 P.3d 545, 547 (App. 2013)
(“Trial courts have discretion to extend the time for filing motions and,
implicitly, to hear untimely motions.”); Ariz. R. Crim. P. 35.4. Under the
circumstances, the court did not abuse its discretion in denying Krauch’s
motion to deem the suppression motions submitted on the record and
instead extending the deadline for response.1

                               CONCLUSION

¶24           Krauch’s convictions and probation grants are affirmed.




                                       :ama

1     In her opening brief, Krauch also argued that the trial court erred in
denying her motion to suppress her post-detention responses to Officer
Volpe’s questions because the officer “conducted an improper two-step
custodial interrogation.” However, at oral argument before this court
Krauch withdrew this argument and thus we do not address it.


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