                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                        EMILIO JEAN, Appellant.

                         No. 1 CA-CR 14-0444
                           FILED 6-21-2016


          Appeal from the Superior Court in Coconino County
                       No. S0300CR201200246
            The Honorable Cathleen Brown Nichols, Judge

                              AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant



                               OPINION

Judge Patricia A. Orozco delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.
                              STATE v. JEAN
                            Opinion of the Court

O R O Z C O, Judge:

¶1            Emilio Jean appeals his convictions and sentences for money
laundering, conspiracy to commit money laundering and transportation of
marijuana, transportation of marijuana for sale in an amount over two
pounds and illegally conducting an enterprise. Jean argues the trial court
erred when it: admitted evidence of other acts, denied his motion to
suppress evidence based on lack of standing to challenge a warrantless
global positioning system (GPS) device and denied his motion for mistrial.
For the reasons that follow, we affirm Jean’s convictions and sentences.

                    FACTS1 AND PROCEDURAL HISTORY

¶2             Arizona Department of Public Safety (DPS) officers placed a
GPS tracking device on a commercial truck in 2010 because they suspected
the truck and its attached trailer were involved in criminal activity. The
officers did not, however, obtain a warrant before they placed the device on
the truck. Two days later, at the request of investigators who were tracking
the truck, a DPS officer stopped the truck as it traveled eastbound on
Interstate 40. When the officer stopped the truck, the truck’s owner was in
the driver’s seat and Jean was in the sleeper berth. Jean claimed he was
simply a driver-in-training. A search of the trailer revealed ninety-five
bales of marijuana weighing a total of 2140 pounds.

¶3             A jury found Jean guilty. The trial court sentenced him to
concurrent terms of ten years’ imprisonment for conspiracy and
transportation of marijuana for sale and placed him on five years’ probation
for illegally conducting an enterprise and money laundering. Jean timely
appealed. We have jurisdiction pursuant to the Arizona Constitution,
Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections
12-120.21.A, 13-4031 and -4033.A (West 2016).2




1      We review the facts in the light most favorable to sustaining the trial
court’s ruling. State v. Hyde, 186 Ariz. 252, 265 (1996). We give deference to
the trial court’s factual findings. State v. Adams, 197 Ariz. 569, 572, ¶ 16
(App. 2000).

2     Absent a change material to our opinion, we cite to a statute’s most
current version.


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                              STATE v. JEAN
                            Opinion of the Court

                               DISCUSSION

I.     Admission of Evidence of Other Acts

¶4            Jean argues the trial court erred when it granted the State’s
motion to admit evidence pursuant to Arizona Rule of Evidence 404(b).
Jean argues the State failed to prove by clear and convincing evidence that
he committed the prior act, the prior act was too remote to the charged
offenses to be relevant, and any probative value was substantially
outweighed by the danger of unfair prejudice. We review admission of
evidence pursuant to Rule 404(b) for abuse of discretion. State v. Van Adams,
194 Ariz. 408, 415, ¶ 20 (1999).

¶5             The State filed a notice of its intent to offer evidence of other
acts, to which Jean objected. At a pretrial hearing, the State introduced the
testimony of a Missouri State Highway Patrol Officer who arrested Jean in
Missouri in 1999. The officer testified that in 1999, he performed safety
inspections of commercial trucks at a weigh station as part of his “criminal
interdiction” assignment. During a routine inspection of a truck and the
associated paperwork, the officer noted various factors that suggested drug
smuggling, including irregularities with the drivers’ log books, air
fresheners and multiple cell phones.3 The officer found three people in the
truck with Jean in the sleeper berth. Another passenger claimed to be a
driver-in-training, yet the log books showed he had done very little driving.
The driver consented to a search after a drug detection dog alerted to the
trailer. The search revealed 1774 pounds of bundled marijuana. The
primary driver claimed Jean was the person who monitored the loading of
the trailer. The officer arrested all three individuals, including Jean, but no
one was prosecuted.

¶6             The trial court held it would admit the Missouri incident as
evidence of other acts, stating the evidence was relevant to show Jean’s
knowledge. The court also stated that the State proved by clear and
convincing evidence both that the prior incident occurred and Jean was
involved as a participant in the activity, not merely present. The trial court
found the similarities between the two events “quite striking” and stated
that “the Missouri incident really mirrors in almost every respect the
incident in this case.” Jean was in the sleeper berth during both stops. Both
involved similarly large quantities of marijuana in the trailer of a large
commercial truck. There were similar concerns with the drivers’ log books.


3      The trial court observed that cell phones were not as prevalent in
1999 as they are today.


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                              STATE v. JEAN
                            Opinion of the Court

Both stops involved trucks seemingly owned by small trucking companies
that were having empty trucks drive long distances to pick up cargo, which
made no economic sense. Additionally, the court found it “compelling”
that there was evidence Jean supervised the loading of the trailer in the
Missouri incident. The court acknowledged eleven years had passed since
the Missouri incident, but held that went to the weight of the evidence and
not its admissibility. The court also considered the evidence in the context
of Rule 403, finding the danger of unfair prejudice did not substantially
outweigh the probative value of the evidence. The Missouri officer
subsequently recounted the prior incident at trial.

¶7             Evidence of other crimes, wrongs or acts is admissible if
relevant and admitted for a proper purpose, such as to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Ariz. R. Evid. 404(b). The trial court did not abuse its
discretion when it held the State proved by clear and convincing evidence
the Missouri incident occurred and Jean was involved, not merely present,
and that the incident was relevant to prove Jean’s knowledge in the current
case. See State v. Prion, 203 Ariz. 157, 163, ¶ 37 (2002) (“For other act
evidence to be admissible, it must be shown by the clear and convincing
standard that the act was committed and that the defendant committed
it.”). Clear and convincing evidence is evidence that makes the proposition
“highly probable.” State v. Renforth, 155 Ariz. 385, 388 (App. 1987) (citation
omitted). Clear and convincing evidence need not, however, “establish that
it is certainly or unambiguously true.” State v. Vega, 228 Ariz. 24, 29 n.4,
¶ 19 (App. 2011).

¶8            The testimony of the Missouri officer, combined with other
documentary evidence regarding the Missouri incident, was sufficient to
permit the trial court to find it “highly probable” the Missouri incident
occurred and that Jean was involved. The trial court did not abuse its
discretion when it also determined the Missouri incident was not too
remote in time. “Although remoteness between the two incidents affects
the weight to be given the testimony by the jury, it generally does not
determine its admissibility.” Van Adams, 194 Ariz. at 416, ¶ 24. We have
held that acts which occurred much more than eleven years prior to the
charged offenses were not too remote. See State v. Weatherbee, 158 Ariz. 303,
304-05 (App. 1988) (holding prior acts that occurred twenty-two years
before trial were not too remote to be admitted at trial); State v. Salazar, 181
Ariz. 87, 92 n.5 (App. 1995) (finding a prior act that occurred twenty years
before the charged offense was relevant). The trial court did not abuse its
discretion in finding that the eleven years that elapsed between the



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                              STATE v. JEAN
                            Opinion of the Court

Missouri incident and the charged offenses did not render the Missouri
incident too remote.

¶9          Regarding the danger of unfair prejudice, there is no question
but that evidence of the Missouri incident was prejudicial to Jean.
However,

       not all harmful evidence is unfairly prejudicial. After all,
       evidence which is relevant and material will generally be
       adverse to the opponent. The use of the word “prejudicial”
       for this class of evidence, while common, is inexact.
       “Prejudice,” as used in this way, is not the basis for exclusion
       under Rule 403.

State v. Schurz, 176 Ariz. 46, 52 (1993) (citations omitted). “[A]ll good
relevant evidence” is “adversely probative.” Id. “Unfair prejudice” is
prejudice that could cause a jury to render a decision on an improper basis,
“such as emotion, sympathy or horror.” Id.

¶10            The trial court did not abuse its discretion when it determined
the probative value of the evidence of the Missouri incident was not
substantially outweighed by the danger of unfair prejudice. Moreover, the
trial court gave an instruction that directed the jury to consider the Missouri
incident only as it might show Jean’s motive, intent, preparation, plan,
knowledge, absence of mistake or accident. We presume juries follow their
instructions. State v. Dunlap, 187 Ariz. 441, 461 (App. 1996).

II.    Motion to Suppress

¶11            Jean next argues the trial court erred when it denied his
motion to suppress. We review de novo the ultimate legal question of
whether the search violated Jean’s constitutional rights. See Adams, 197
Ariz. at 572, ¶ 16.

¶12           Jean does not directly challenge the constitutionality of the
stop of the truck or the resulting search; instead, he argues the use of the
GPS to monitor the truck constituted an illegal search. Jean argues that
absent the information authorities obtained by monitoring the truck
through the GPS, there would have been no stop, so that the evidence
obtained therefrom was fruit of the poisonous tree. Jean also argues that
GPS tracking of the truck over several days violated his reasonable
expectation of privacy.




                                      5
                               STATE v. JEAN
                             Opinion of the Court

¶13            Jean relies upon the decisions in United States v. Jones, 132 S.Ct.
945 (2012), and State v. Mitchell, 234 Ariz. 410 (App. 2014), to argue that the
warrantless placement of a GPS to monitor an individual’s movements is
an unlawful search under the Fourth Amendment. Jones held for the first
time that the installation of a GPS on a vehicle constituted a trespass and
the use of the GPS to monitor the vehicle’s movements constituted a search
under the Fourth Amendment.4 Jones, 132 S.Ct. at 949. We relied upon Jones
in Mitchell, a case very similar to Jones. Mitchell, 234 Ariz. at 418, ¶ 26.

¶14           The trial court found Jean did not own or have a possessory
interest in the truck, and on that basis, held Jean had no standing to
challenge the placement of the GPS because he had no “reasonable
expectation of privacy in a vehicle that he was just a passenger in.” Jean
argues on appeal, however, that as a co-driver, he had as much of a
possessory interest in the truck as the defendants in Jones and Mitchell,
neither of whom owned the vehicle they drove.

¶15           The defendant in Jones did not own the vehicle at issue; it
belonged to his wife, but he was “the exclusive driver.” Jones, 132 S.Ct. at
946 and n.2. The defendant, therefore, had the rights of a bailee and
standing to challenge the GPS. Id. Likewise, the defendant in Mitchell did
not own the vehicle at issue, but he had permission from the owner to use
the vehicle, sufficient to confer standing as in Jones. Mitchell, 234 Ariz. at
412, 415, ¶¶ 3, 19. Just as in Jones, the defendant in Mitchell had the rights
of a bailee. Id. at 415, ¶ 19. In neither Jones nor Mitchell was the owner
within the vehicle and in operational control of the vehicle at the time of the
stop.

¶16           In Mitchell, we held that “lawful possession” of a vehicle
when the GPS is installed “is sufficient to confer upon a defendant standing
to challenge GPS tracking” under Jones. 234 Ariz. at 416, ¶ 17. We explained
that standard “is consistent with basic principles of tort law regarding
trespasses.” Id. at ¶ 18. Under those principles, a bailor or a bailee of chattel
could maintain a trespass; we concluded the same status confers standing
to challenge a trespass and resulting search under Jones. Id.




4      Jones was decided after DPS officers placed the GPS on the truck in
this case but before trial began.




                                        6
                              STATE v. JEAN
                            Opinion of the Court

¶17            The defendants’ rights as bailees in Jones and Mitchell gave
them standing to challenge the warrantless placement of GPS devices on
the vehicles.5 Jean, however, was not a bailee:

       To constitute a bailment there must be a delivery by the bailor
       and acceptance by the bailee of the subject matter of the
       bailment. It must be placed in the bailee’s possession, actual
       or constructive. There must be such a full transfer, actual or
       constructive, of the property to the bailee as to exclude the
       possession of the owner and all other persons and [g]ive the
       bailee for the time being the sole custody and control thereof.

Blair v. Saguaro Lake Dev. Co., 17 Ariz. App. 72, 74 (1972) (internal citations
omitted) (quoting Freeman v. Myers Automobile Service, Co., 40 S.E.2d 365,
366 (N.C. 1946)).

¶18            Here, there is no evidence the owner of the truck made a “full
transfer” of the truck to Jean, nor is there any evidence of a delivery and
acceptance. There is no evidence the owner placed the truck in Jean’s actual
or constructive possession so “as to exclude the possession of the owner
and all other persons and give [Jean] for the time being the sole custody and
control thereof.” Id. There is no evidence Jean ever had exclusive use of the
truck nor evidence he ever had permission to drive the truck or actually
drove the truck without the owner present. There is no evidence Jean ever
possessed the keys to the truck. In sum, even if Jean may have occasionally
operated the truck as a co-driver while in the owner’s presence, there is no
evidence the owner did not reserve his right to possess and control the truck
at all times.6 Therefore, there is no evidence that Jean was a bailee of the
truck. State v. Orendain, 185 Ariz. 348, 352 (1996) overruled on other grounds
(holding that a defendant driving codefendant’s vehicle lacked standing to
assert Fourth Amendment challenge to the search of the vehicle when he
had neither possessory nor property interest in the vehicle).



5      Jones and Mitchell also found it significant that the defendants were
the targets of the respective investigations. Jones, 132 S.Ct. at 947; Mitchell,
234 Ariz. at 411, ¶ 2. As noted above, DPS officers here had no idea Jean
was in the truck until they stopped it.

6      While Jean unquestionably “controlled” the truck when he drove it
with the owner beside him, we do not equate that type of control with the
type of “control,” coupled with a possessory interest, necessary to establish
a bailment.


                                       7
                              STATE v. JEAN
                            Opinion of the Court

¶19             “[A] necessary predicate to the application of the ‘fruits’
doctrine” is that the search violated the constitutional rights of the person
who challenges the legality of the search. State v. Super. Ct. (Treadaway), 119
Ariz. 573, 581 (1978). “A person who is aggrieved by an illegal search and
seizure only through the introduction of damaging evidence secured by a
search of a third person’s premises or property has not had any of his
Fourth Amendment rights infringed.” Rakas v. Ill., 439 U.S. 128, 134 (1978).
Because Jean did not own the truck and did not otherwise have a possessory
interest in it, he had no standing to challenge the placement of the GPS
device on the truck.

¶20            Finally, regarding Jean’s claim that use of the GPS violated
his reasonable expectation of privacy, Jean had no reasonable expectation
of privacy in his movements as a passenger or driver of the truck. It is well
settled that a person travelling in a vehicle on public roads has no
reasonable expectation of privacy in the person’s movements from one
place to another. United States v. Knotts, 460 U.S. 276, 281 (1983). This court
has held from this principle that there is no reasonable expectation of
privacy that is infringed by GPS monitoring of a device placed on a vehicle,
and that “[t]his is true particularly where the government’s monitoring is
short-term.” State v. Estrella, 230 Ariz. 401, 404 (App. 2012). Given that
authorities monitored the truck in which Jean was riding for only two days,
we conclude he established no Fourth Amendment violation.

III.   The Motion for a Mistrial

¶21            Jean argues the trial court erred when it denied his motion for
mistrial after the owner of the truck referred, during his testimony, to other
trips made to transport marijuana that were not part of the charged
offenses. Jean objected when the truck’s owner first referred to other trips
in which he and Jean transported marijuana. The trial court sustained the
objection, granted Jean’s motion to strike the testimony and instructed the
jury accordingly.

¶22            The owner later testified “we” made “so many trips” from
Atlanta and “we” usually stopped for fuel in Texas. Jean did not object, but
he asked the court and the State to admonish the owner again to not
mention unrelated trips. The State admonished the owner accordingly.
Later in the owner’s testimony, when there was confusion as to whether he
and Jean made two trips to Tucson in one day as part of the charged
offenses, the owner testified, “[w]e usually often did.” He further testified
that “[i]t was [sic] so many trips that same way that they all kind of blurred
together.”


                                      8
                               STATE v. JEAN
                             Opinion of the Court

¶23            Jean again did not object, but stated that if this kept occurring
he would move for a mistrial. The court again admonished the owner not
to talk about anything outside the scope of the question. Later, when he
explained the route he planned to take for the trip at issue, the owner
testified that “we always used to take a cutoff and make a round – around
the weigh station from Arizona and New Mexico.” Jean moved for a
mistrial based on the owner’s references to unrelated trips and the inference
that Jean participated in those trips. The court denied the motion but
instructed the jury to disregard the testimony regarding how “we always
used to take” a certain route.

¶24             The denial of a motion for mistrial is reviewed for abuse of
discretion. State v. Murray, 184 Ariz. 9, 35 (1995). We will reverse only if
the court’s decision was both improper and clearly prejudicial. Id. The
trial court is in the best position to determine whether an incident calls for
a mistrial because the court is aware of the “atmosphere of the trial, the
manner in which the objectionable statement was made, and its possible
effect it had on the jury and the trial.” State v. Koch, 138 Ariz. 99, 101 (1983);
State v. Brown, 195 Ariz. 206, 209, ¶ 12 (App. 1999). A mistrial is the most
dramatic remedy, only appropriate when justice requires. State v. Lamar,
205 Ariz. 431, 439, ¶ 40 (2003) (citation omitted).

¶25           The testimony at issue did not necessarily refer to other trips
with Jean. The owner testified he had been involved in drug trafficking for
several years and described his involvement in that trade before he met
Jean. The owner also identified several other individuals he worked with
when he transported marijuana by truck. The jury knew that over the
course of several years, the owner had made a number of trips in which he
transported marijuana by truck with individuals other than Jean. Finally,
the court struck the references Jean expressly objected to and instructed the
jury to disregard them. Again, we presume juries follow their instructions.
Dunlap, 187 Ariz. at 461. Under these circumstances, the trial court did not
abuse its discretion when it denied Jean’s motion for mistrial.




                                        9
                     STATE v. JEAN
                   Opinion of the Court


                         CONCLUSION

¶26   Finding no error, we affirm Jean’s convictions and sentences.




                        :AA




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