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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PEDRO FABIAN MONTOYA, Appellant. 

No. 1 CA-CR 18-0638 

Appeal from the Superior Court in Yuma County

No. S1400CR201700361 

The Honorable David M. Haws, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Nicholas Chapman-Hushek

Counsel for Appellee 

Yuma County Public Defender’s Office, Yuma

By Eugene Marquez

Counsel for Appellant

FILED 7-2-2019
STATE v. MONTOYA

Decision of the Court

2 

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.

P E R K I N S, Judge:

¶1 Pedro Fabian Montoya appeals his convictions and resulting 

sentences for possession of a dangerous drug for sale and possession of 

drug paraphernalia. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 “We view the facts and all reasonable inferences therefrom in 

the light most favorable to sustaining the convictions.” State v. Powers, 200 

Ariz. 123, 124, ¶ 2 (App. 2001). Montoya was driving a pickup truck in 

Yuma one night when a police officer saw him pass a stop sign and enter 

an intersection before stopping the truck. The officer followed Montoya to 

the next intersection, which Montoya again entered before stopping. The 

officer turned on his emergency lights, but Montoya did not pull over until 

the officer turned on his siren. After talking to Montoya and seeing that he 

“was very agitated,” the officer called for backup, including a drug-sniffing 

dog. The officer then began running Montoya’s license and checking the 

names given to him by the passengers. 

¶3 The dog arrived during the traffic stop and soon alerted to the 

presence of contraband. Officers searched the truck and found a “crystallike substance,” a digital scale, and two pills in a crumpled piece of paper. 

They then arrested Montoya.

¶4 The State indicted Montoya for: possession of a dangerous 

drug for sale, methamphetamine, a class 2 felony; possession of a 

dangerous drug, alprazolam, a class 4 felony; and possession of drug 

paraphernalia, methamphetamine, a class 6 felony. The State later amended 

the indictment to allege three prior felony convictions. Finally, the State 

alleged as aggravators that Montoya committed the offense with the 

expectation of pecuniary gain and that Montoya had been convicted of two 

prior felonies within the preceding 10 years. 
STATE v. MONTOYA

Decision of the Court

3 

¶5 The court held a jury trial on May 29, May 31, and June 1, 2018. 

Raina Ramirez, a forensic scientist with the Department of Public Safety’s 

crime laboratory in Tucson, testified that she did not test the substance 

herself, but did review the results of the tests performed at her lab. She 

further testified in detail about the tests run on the substance and her 

training, experience, and qualifications. She stated that all samples tested at 

her lab go through two levels of checks, a “technical review,” and an 

“administrative review.” Ramirez admitted that she had not checked the 

substance at issue but reviewed the notes and paperwork of the scientist 

who did. In her professional opinion, the substance was 5.94 grams of 

methamphetamine. Montoya’s trial attorney objected to Ramirez’s 

testimony because she was not the scientist who tested the substance; the 

trial court admitted her testimony over the objection. 

¶6 The court then heard from Yuma police officer Jonathan 

Castlegrante, who testified about pulling the truck over, searching it, and

arresting Montoya. He also testified that digital scales and quantities larger 

than one gram indicate the methamphetamine is “not for personal use.” He 

stated that when he arrested Montoya, the methamphetamine was in 

“larger shards, glass-like shards,” which also indicated the drug was for 

sale, not personal use. Officer Stephanie Malone of the Yuma Police 

Department testified about the search she conducted with her drug-sniffing 

dog Raico. 

¶7 After the State rested its case, Montoya moved to dismiss the 

count for alprazolam possession, which the court granted because the State 

failed to offer substantial evidence that the pills were, in fact, alprazolam. 

See Ariz. R. Crim. P. 20. 

¶8 A passenger in the truck testified on Montoya’s behalf. She 

was a recovering methamphetamine addict and claimed the six grams 

found in the truck would not have lasted one day for three people. Montoya 

rested after her testimony.

¶9 The jury found Montoya guilty of possessing 

methamphetamine for sale and possessing methamphetamine 

paraphernalia. The court then held a mitigation hearing at which it heard 

from Montoya, his mother, two of his brothers, and two of his pastors. The 

court sentenced Montoya to concurrent terms, the longest of which is 7.5 

years’ flat time. See Ariz. Rev. Stat. (“A.R.S.”) § 13-3407(E). Montoya timely 

appeals.
STATE v. MONTOYA

Decision of the Court

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DISCUSSION

¶10 On appeal, Montoya argues only that the trial court violated 

his right to confront his accuser because the forensic scientist who testified 

against him was not the same scientist who tested the recovered substance 

found to be methamphetamine. We review challenges to the admissibility 

of evidence based on the Confrontation Clause de novo. State v. Shivers, 230 

Ariz. 91, 92, ¶ 6 (App. 2012). 

¶11 As relevant, the Sixth Amendment states that “[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him.” U.S. Const. Amend. VI; see also Ariz. Const. Art. 2 

§ 24 (“In criminal prosecutions, the accused shall have the right . . . to meet 

the witnesses against him face to face.”). Forensic reports on substances 

alleged to be drugs, prepared in anticipation of prosecution, are testimonial 

statements. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310–11 (2009). If 

such a report is introduced into evidence, the defendant has a right to 

confront its author. Bullcoming v. New. Mexico, 564 U.S. 647, 661 (2011). 

¶12 But an expert may offer opinions based on facts or data that 

“experts in the particular field would reasonably rely on” in forming an 

opinion. Ariz. R. Evid. 703. The facts and data “need not be admissible for 

the opinion to be admitted.” Id. This Court has held that the “test for 

admissibility of an expert’s opinion based on facts not in evidence is 

whether the source relied upon by the expert is reliable.” Pipher v. Loo, 221 

Ariz. 399, 402, ¶ 8 (App. 2009) (quotation omitted). A source is reliable if it 

“meets the two critical factors of necessity and trustworthiness.” Lynn v. 

Helitec Corp., 144 Ariz. 564, 568 (App. 1984). 

¶13 Ramirez’s testimony was admissible and did not violate 

Montoya’s right to confront the witnesses against him. Ramirez testified 

that the Department’s crime laboratory subjects each of its reports to two 

levels of review, one for technical errors and one for “administrative” 

errors. This is an acceptable level of reliability. See Lynn, 144 Ariz. at 568 

(“preparation of a report by a disinterested, expert third party” indicates 

trustworthiness). Ramirez also testified that she independently reviewed 

the facts contained in the report and came to her own opinion. State ex rel. 

Montgomery v. Karp, 236 Ariz. 120, 124, ¶ 14 (App. 2014) (“[W]hen an expert 

gives an independent opinion, the expert is the witness whom the 

defendant has the right to confront.”). The court allowed Montoya to 

confront Ramirez and Montoya exercised that right.
STATE v. MONTOYA

Decision of the Court

5 

¶14 Nevertheless, Montoya contends that Ramirez’s testimony 

was barred by Bullcoming and State v. Smith, 242 Ariz. 98 (App. 2017). Each 

case is distinguishable. Bullcoming addressed the constitutionality of 

introducing a report written by an unavailable witness during the 

testimony of an available, non-author witness. 564 U.S. at 655 (“The State, 

however, proposed to introduce Caylor’s finding as a ‘business record’ 

during the testimony of Gerasimos Razatos . . . .”). Here the State did not 

introduce the report on which Ramirez relied. Smith is similar. There, the 

State sought to introduce “testimony and written reports” of a DNA 

analyst, including saliva tests conducted by “another technician at the same 

laboratory.” 242 Ariz. at 101, ¶ 7. Again, here the State did not introduce 

the report, only Ramirez’s independent expert opinion that relied on the 

objective facts contained in the report. This is acceptable. See State v. Dixon, 

226 Ariz. 545, 553, ¶¶ 35–36 (2011) (“Our cases teach that a testifying 

[expert] may, consistent with the Confrontation Clause, rely on information 

in . . . reports prepared by others as long as he forms his own conclusions.”).

¶15 Because the State sought only to introduce an expert opinion 

based on objective facts contained in a reasonably reliable report, the court 

did not err in admitting Ramirez’s testimony that the crystalline substance 

was methamphetamine.

CONCLUSION

¶16 We affirm Montoya’s convictions and resulting sentences.