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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ERIC MUNOZ AGUILAR, Appellant.

                             No. 1 CA-CR 15-0020
                               FILED 12-22-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR 2013-450021-001
        The Honorable Carolyn K. Passamonte, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Counsel for Appellant
                            STATE v. AGUILAR
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T R O P, Judge:

¶1            Eric Munoz Aguilar (“Aguilar”) appeals his convictions and
sentences for knowingly possessing or using a dangerous controlled
substance, arguing the trial court erred in denying his motion in limine to
exclude his statements made to a police officer following his arrest. For the
following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            Officers Ennis and Mendoza with the Phoenix Police
Department met with Aguilar at his residence, where he lived with his
mother, to investigate a report of a stolen bicycle. Aguilar was arrested after
he admitted he took the bicycle from the owner’s residence without the
owner’s permission. In a search incident to the arrest, the officers found a
package of what appeared to be methamphetamine in the coin pocket of his
jeans. After placing Aguilar in the patrol car and giving him Miranda
warnings, Officer Ennis asked Aguilar several times whether he knew the
content of the package; each time, Aguilar replied that he did not know but
“hoped it was methamphetamine.” He further told Officer Ennis that he
found the package in his room while cleaning and figured it was his because
his mother “did not use methamphetamine.” Aguilar also told Officer
Ennis that he had used methamphetamine three days ago, used it when
things got bad, and preferred smoking methamphetamine to injecting or
snorting the drug. Aguilar was charged with one count of knowing
possession or use of a dangerous controlled substance (a class 4 felony) and
one count of theft (a class 6 felony).

¶3           Before trial, Aguilar moved to exclude all of the statements he
made to Officer Ennis about his past drug use. The trial court denied the


1      We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Appellant. See State
v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).



                                      2
                            STATE v. AGUILAR
                            Decision of the Court

motion in part, and allowed the State to introduce the statements that he
had used methamphetamine three days ago, used it when things got bad,
and preferred smoking to injecting or snorting it.

¶4            The jury found Aguilar guilty of count 1 but not guilty of
count 2, and the court sentenced Aguilar to seven years’ imprisonment.
Appellant timely appealed, and we have jurisdiction pursuant to the
Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes
(“A.R.S.”) sections 12–120.21(A)(1), 13–4031, and 13–4033(A).2

                                 ANALYSIS

¶5            Appellant argues the trial court erred in admitting his
statements about his past drug use. We review the trial court’s ruling on
the admissibility of evidence for abuse of discretion. State v. Salamanca, 233
Ariz. 292, 294–95, ¶ 8, 311 P.3d 1105, 1107–08 (App. 2013).

¶6            The trial court treated the statements in question as
admissions and omitted any analysis under Rule 404(b)—the rule
concerning admission of evidence of prior acts. Rule 404(b) generally
prohibits the admission of evidence of “other crimes, wrongs, or acts . . . to
prove the character of a person in order to show action in conformity
therewith; [but the evidence may be admitted] for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Ariz. R. Evid. 404(b). For
evidence of prior acts to be admitted, four requirements must be met:
1) the evidence is relevant, 2) it is admitted for a proper purpose, 3) the
probative value of the evidence is not substantially outweighed by the
danger of unfair prejudice, and 4) the court must provide an appropriate
limiting instruction upon request. Ariz. R. Evid. 105, 402, 403 & 404(b); State
v. Nordstrom, 200 Ariz. 229, 248, ¶ 54, 25 P.3d 717, 736 (2001), abrogated on
other grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012). Also, the
party offering the evidence must prove by clear and convincing evidence
that the defendant committed the prior acts. Nordstrom, 200 Ariz. at 248,
¶ 54, 25 P.3d at 736; State v. Terrazas, 189 Ariz. 580, 581–82, 944 P.2d 1194,
1195–96 (1997).

¶7           Although the trial court did not analyze the admission of this
evidence under Rule 404(b), we may independently review whether the
evidence before the court supports its admission; if it does, we will affirm


2     We cite the current version of the applicable statutes unless changes
material to our decision have occurred since the date of the offense.

                                       3
                             STATE v. AGUILAR
                             Decision of the Court

unless the court clearly abused its discretion. See State v. Mott, 187 Ariz.
536, 545–46, 931 P.2d 1046, 1055–56 (1997) (reviewing independently
whether the probative value of prior acts is substantially outweighed by the
danger of unfair prejudice after the trial court failed to perform the required
balancing test); State v. Connor, 215 Ariz. 553, 563, ¶ 32, 161 P.3d 596, 606
(App. 2007) (stating the trial court’s decision to admit other-act evidence
will be affirmed as long as it is supported by the facts before the court,
unless a clear abuse of discretion appears).

¶8            First, the admissions made by Aguilar are clearly relevant.
Contrary to Aguilar’s speculation that the statements were intended solely
to characterize Aguilar as a drug user, the State offered the statements to
prove Aguilar’s prior knowledge of the drug and its potential packaging,
and that he likely knew that the package found in his pocket contained
methamphetamine, a critical element of the crime charged in count 1.
Additionally, these statements were not only relevant to evaluating
Aguilar’s credibility, but also to allow the jury to consider the context of
Aguilar’s other contemporaneous statements to the police that he “didn’t
know but hoped” the package contained methamphetamine.

¶9            Second, evidence of Aguilar’s knowledge is a well-recognized
exception explicitly authorized under Rule 404(b). Aguilar contends this
purpose is not proper because there are other ways to package
methamphetamine, and one would not necessarily know a package
contains methamphetamine simply by examining the packaging. This
argument, however, only challenges the weight of the evidence and not its
admissibility, and does not negate the legitimate purpose of proving
knowledge as a proper basis for admission.

¶10            Third, Aguilar contends the danger of unfair prejudice
outweighs the probative value of the evidence, but provides scant
evidentiary support and little analysis in support of this argument. Such
conclusory argument is deemed waived. See Childress Buick Co. v. O’Connell,
198 Ariz. 454, 459, ¶ 29, 11 P.3d 413, 418 (App. 2000) (stating issues not
clearly presented in appellate briefs are deemed waived); MT Builders,
L.L.C. v. Fisher Roofing Inc., 219 Ariz. 297, 304 n.7, ¶ 19, 197 P.3d 758, 765 n.7
(App. 2008) (finding argument raised below but presented on appeal in a
one-sentence footnote without any analysis is deemed waived). Moreover,
on this record, we find the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice. The statements
are potentially harmful to Aguilar, given their probative value in
demonstrating Aguilar’s likely knowledge of the contents of the package;
however, not all evidence harmful to the defendant is unfairly prejudicial.


                                        4
                            STATE v. AGUILAR
                            Decision of the Court

Mott, 187 Ariz. at 545–46, 931 P.2d at 1055–56. Unfair prejudice results
when “the evidence has an undue tendency to suggest [a] decision on an
improper basis, such as emotion, sympathy, or horror.” Id. at 545, 931 P.2d
at 1055. Here, Aguilar has failed to demonstrate any such unfair prejudice,
let alone the prejudice necessary to support exclusion of his admissions.

¶11           As for limiting instructions, Aguilar did not request one even
after the court had advised him he could.

¶12          Finally, Aguilar does not dispute that he made these
statements, and does not contend that the State could not have proven by
clear and convincing evidence that the prior acts he admitted in his own
statements did, in fact, occur.

¶13            Accordingly, the trial court properly admitted the statements
in question, and its error in failing to analyze admissibility under Rule
404(b) was harmless. On this record, we can easily say that such error did
not contribute to or affect the jury’s verdict. See A.R.S. § 13-3987
(disallowing reversal for error that did not actually, or did not tend to,
prejudice the defendant in respect to a substantial right); State v. Anthony,
218 Ariz. 439, 446, ¶ 39, 189 P.3d 366, 373 (2008) (stating error is harmless if
we can say beyond a reasonable doubt that the error did not contribute to
or affect the verdict).

                               CONCLUSION

¶14           Appellant’s convictions and sentences are affirmed.




                                  :ama




                                         5
