NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GERALD LONNY SWOPE, Appellant.

No. 1 CA-CR 13-0831

Appeal from the Superior Court in Mohave County

No. S8015CR201201605

The Honorable Steven F. Conn, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Colby Mills

Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman

By Jill L. Evans

Counsel for Appellant
STATE v. SWOPE

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.

W I N T H R O P, Judge:

¶1 Gerald Lonny Swope appeals his convictions and resulting 

sentences on two counts of sale of dangerous drugs (methamphetamine). 

This court ordered supplemental briefing to address whether a limiting 

instruction should have been given regarding the admission of the 

recordings of the alleged drug sales. Because the trial court erred in 

refusing to give a necessary limiting instruction, we reverse the convictions 

and sentences and remand for a new trial. We further address four

additional issues likely to reoccur on remand.

FACTS AND PROCEDURAL HISTORY

¶2 A narcotics detective received information that caused Swope 

to become the subject of a drug investigation. The detective arranged for 

an informant to go to the residence where Swope was believed to reside

and make controlled buys of methamphetamine on three separate 

occasions. On each occasion, the informant wore an audio recorder and a 

transmitter to permit the detective to monitor him from outside the 

residence while he made the buy. Before each buy, there were prefatory 

recorded comments made by the informant, and then each transaction was 

recorded. The informant purchased .59 grams of methamphetamine on the 

first occasion, .26 grams on the second occasion, and .51 grams on the third

occasion. 

¶3 Swope was indicted on three counts of sale of dangerous 

drugs (methamphetamine), each a class 2 felony. The State lost contact with 

the informant subsequent to the indictment, resulting in the informant 

being unavailable to testify at trial. In the absence of the informant, the 

State’s case against Swope rested entirely on the recordings of the three 

drug sales and the testimony of the narcotics detective, who identified the 

voice of the person he heard on two of the three recordings selling the 

methamphetamine as Swope’s voice based on his prior contacts with 

Swope. The jury convicted Swope on two of the counts and acquitted him 
STATE v. SWOPE

Decision of the Court

3

on the third.1 The trial court sentenced Swope to concurrent, mitigated fiveyears and one-month prison terms on the two convictions and further 

imposed fines and fees totaling $3,746. Swope timely appealed.

ANALYSIS

I. Admission of Recordings

¶4 After learning the informant would not be testifying at trial, 

Swope moved to preclude admission of the recordings of the drug sales, 

arguing the informant’s statements on the recordings were hearsay and 

their admission would violate his confrontation rights. The trial court 

denied the motion, and the State introduced and played the recordings at 

trial.

¶5 During trial, following the State’s playing of two of the three 

recordings, Swope requested an instruction regarding the proper limited 

use of the recordings by the jury. The request was made because at several 

points on the recordings (both in approaching the residence on each 

occasion and then during the transactions) the informant referred to the 

person from whom he was purchasing drugs as “Gerald.” Swope argued 

that the jury should be instructed that the informant’s use of that name 

should not be considered for purposes of identifying the person selling the 

drugs because that would constitute an improper hearsay use of the 

recording. While acknowledging that “I’m sure the [S]tate is going to argue 

that that is an identification of the defendant,” the trial court denied the 

request, stating “I don’t know that calling someone by name is generally 

intended as an assertion.”

¶6 On appeal, Swope argues that the trial court erred in 

admitting the recordings of the drug transactions. Specifically, Swope

alleges the portions of the recordings that contained statements from the 

informant before the drug sale were inadmissible hearsay and violated his 

right to confront witnesses. The Confrontation Clause of the Sixth 

Amendment prohibits the admission of testimonial hearsay from a nontestifying witness unless that person is unavailable and the defendant had 

a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 

36, 68 (2004). The precise parameters of testimonial hearsay are still being 

developed by the courts, but “a statement may be testimonial under 

 

1 The jury found Swope guilty of the two counts where a detective 

identified Swope’s voice as that of the seller on the recorded drug 

transactions.
STATE v. SWOPE

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Crawford if the declarant would reasonably expect it to be used 

prosecutorially or if it was made under circumstances that would lead an 

objective witness reasonably to believe the statement would be available for 

use at a later trial.” State v. Parks, 211 Ariz. 19, 27, ¶ 36, 116 P.3d 631, 639 

(App. 2005), aff’d on remand, 213 Ariz. 412, 142 P.3d 720 (App. 2006). Though 

we generally review rulings on the admissibility of evidence for abuse of 

discretion, we review rulings that implicate the Confrontation Clause de 

novo. State v. Tucker, 215 Ariz. 298, 315, ¶ 61, 160 P.3d 177, 194 (2007).

¶7 There was no error by the trial court in ruling that the State 

could introduce the recordings of the drug transactions themselves for the 

non-hearsay purpose of proving the operative facts of the offenses charged. 

See State v. Silva, 137 Ariz. 339, 341, 670 P.2d 737, 739 (App. 1983). Hearsay 

is defined as an out-of-court statement offered to prove the truth of the 

matter asserted. Ariz. R. Evid. 801(c); State v. Bass, 198 Ariz. 571, 577, ¶ 20, 

12 P.3d 796, 802 (2000). Crawford notes that testimonial statements do not 

violate the Confrontation Clause when they are used for purposes other 

than the truth of the matter asserted. 541 U.S. at 59 n.9. Thus, to the extent 

use of the recordings was limited to whether the conversations actually 

occurred and what was said by each participant, there was no deprivation 

of any right of confrontation. See Silva, 137 Ariz. at 341, 670 P.2d at 739; see 

also Dutton v. Evans, 400 U.S. 74, 88 (1970) (holding neither hearsay rule nor 

confrontation clause prevents admission of evidence of what is said; rather, 

they merely restrict “proof of fact through extrajudicial statements”). Here, 

there were two declarants: the informant and Swope. Swope’s statements 

were party admissions and thus did not constitute hearsay under Ariz. R. 

Evid. 801(d)(2)(A). The informant’s statements, however, may have 

constituted hearsay if not used for a non-hearsay purpose. See Crawford at 

59 n.9.

¶8 The problem with admission of certain portions of the

recordings was that the jury may have improperly considered the evidence 

or applied it in an improper manner. In particular, unless appropriately 

instructed, it was possible for the jury to consider the fact that the informant 

referred to “Gerald” during the transactions not only as evidence that the 

seller’s name is Gerald, but also to support a conclusion that the seller was, 

in fact, Gerald Swope. Such use would violate the rule against hearsay as 

that would constitute an assertion that the seller was in fact named Gerald. 

In addition, given the unavailability of the informant for cross-examination 

at trial, this use of the informant’s recorded statements would violate the 

Confrontation Clause as the recordings were deliberately made as part of a 

police investigation for the express purpose of use at trial in a criminal case 

against the seller and are therefore “testimonial” under Crawford.
STATE v. SWOPE

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¶9 Where evidence is admissible for one purpose, but not for 

another, the Rules of Evidence do not preclude its admission. Readenour v. 

Marion Power Shovel, 149 Ariz. 442, 449, 719 P.2d 1058, 1065 (1986). “To 

exclude the evidence of mixed admissibility entirely in jury cases would 

hardly be appropriate since its exclusion might well deny the jury access to 

facts which are essential for reaching a reasonably accurate decision.” Id.

(quoting J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 105[2] at 105-11 

(1985)). The portions of the recordings that contain statements made by the 

informant before the drug-sale were hearsay and inadmissible. The portions 

of the recordings that document the alleged drug sales, however, were 

admissible for a proper non-hearsay use, and there was no error by the trial 

court in admitting these portions of the recordings.

¶10 The trial court did err, however, in failing to limit the use of 

the recordings to their proper non-hearsay purpose. In supplemental 

briefing, the State contends Swope waived this issue on appeal, the 

recordings were admissible in their entirety, and even if a limiting 

instruction was required, the error was harmless. We disagree. The 

Arizona Rules of Evidence provide: “If the court admits evidence that is 

admissible against a party or for a purpose -- but not against another party 

or for another purpose -- the court, on timely request, must restrict the 

evidence to its proper scope and instruct the jury accordingly.” Ariz. R. 

Evid. 105. “Rule 105 is mandatory, not discretionary; once evidence 

admissible for one purpose but inadmissible for another is admitted, the 

trial court cannot refuse a requested limiting instruction.” Readenour, 149 

Ariz. at 450, 719 P.2d at 1066 (citations and internal quotation marks 

omitted). Given the mandatory nature of Rule 105, the trial court was 

required to instruct the jury on the limited use of the recordings, and the 

failure to do so was clear error. See id. at 451, 719 P.2d at 1067.

¶11 “When an issue is raised but erroneously ruled on by the trial 

court, this court reviews for harmless error.” State v. Bible, 175 Ariz. 549, 

588, 858 P.2d 1152, 1191 (1993). Error is harmless only if we can conclude 

beyond a reasonable doubt that the error did not contribute to or affect the 

verdict. State v. Lundstrom, 161 Ariz. 141, 150 & n.11, 776 P.2d 1067, 1076 & 

n.11 (1989). “The inquiry . . . is not whether, in a trial that occurred without 

the error, a guilty verdict would surely have been rendered, but whether 

the guilty verdict actually rendered in this trial was surely unattributable to 

the error.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). In other words, 

“[w]e must be confident beyond a reasonable doubt that the error had no 

influence on the jury’s judgment.” Bible, 175 Ariz. at 588, 858 P.2d at 1191.
STATE v. SWOPE

Decision of the Court

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¶12 We are unable to find the absence of a limiting instruction to 

be harmless. The central issue at trial was whether Swope was the person 

who sold the methamphetamine to the informant. The statements by the 

informant during the transactions referring to the person he was interacting 

with as Gerald went directly to this issue. Furthermore, during her closing 

argument, the prosecutor repeatedly referenced the fact that informant 

stated the name Gerald when meeting with the seller in arguing that Swope 

was guilty of selling the methamphetamine to the informant. Finally, the 

only other evidence identifying the seller as Swope was the detective who 

testified that he recognized Swope’s voice based on contacts with him six 

years earlier. Because the jury may have improperly used the informant’s 

mention of the name Gerald in regards to the seller to bolster the detective’s 

identification of Swope’s voice, we cannot say that the guilty verdicts 

actually returned in this trial were surely not attributable to the error.

Accordingly, we reverse Swope’s convictions and sentences and remand 

for a new trial or other proceedings consistent with this decision.

¶13 Although our ruling on this issue renders Swope’s remaining 

arguments for reversal moot, we nonetheless address four additional issues 

raised by Swope on appeal that are likely to reoccur on retrial. See State v. 

Miguel, 125 Ariz. 538, 541, 611 P.2d 125, 128 (App. 1980).

II. Impeachment of Informant

¶14 Swope contends the trial court erred by refusing to allow him 

to impeach the non-testifying informant. Specifically, Swope sought to 

introduce evidence that the informant had a prior misdemeanor conviction 

for false reporting and that the informant had incorrectly told the detective 

that Swope’s wife was present during one of the drug buys. The trial court 

refused to allow the proposed evidence, ruling that because the informant 

was not a witness at trial, the evidence was not admissible to impeach him. 

We review a trial court’s ruling on the admissibility of evidence for abuse 

of discretion. State v. Rose, 231 Ariz. 500, 513, ¶ 62, 297 P.3d 906, 919 (2013) 

(internal citation omitted).

¶15 Relying on Arizona Evidence Rule 806, Swope contends the 

trial court erred in not allowing his proposed impeachment evidence. This 

rule only applies when hearsay statements (or certain other statements 

admitted under Rule 801(d)(2) exclusions) by the declarant sought to be 

impeached have been admitted. State v. Dunlap, 187 Ariz. 441, 457, 930 P.2d

518, 534 (App. 1996). In this case, assuming arguendo that the trial court 

would have given a limiting instruction regarding the use of the recordings, 

there would be no hearsay statements by the informant admitted at trial 
STATE v. SWOPE

Decision of the Court

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that would render him subject to impeachment. The portions of the 

recordings that included statements by the informant were introduced 

solely for the purpose of proving the operative facts of the charged crimes, 

not to prove the truth of any matter asserted by the informant. As discussed 

above, reversal is required in this case because the trial court failed to give 

an instruction informing the jury of the limited non-hearsay use of the 

evidence. On remand, and assuming the informant is still unavailable and 

a proper limiting instruction is given, the trial court need not admit the 

requested impeachment evidence as the informant’s statements will not be 

admitted for hearsay purposes, and this will not violate Rule 806.

III. Interpretation of Conversations

¶16 Swope also argues that the trial court erred in allowing two

narcotics detectives to interpret certain words and phrases used by the 

informant and the seller during the recorded drug purchases. We review 

the admission of expert testimony for abuse of discretion. State v. Hyde, 186 

Ariz. 252, 276, 921 P.2d 655, 679 (1996) (internal citation omitted).

¶17 The admissibility of expert testimony is governed by Arizona

Evidence Rule 702. This rule states, in pertinent part:

A witness who is qualified as an expert by 

knowledge, skill, expertise, training, or 

education may testify in the form of an opinion 

or otherwise if the expert’s scientific, technical, 

or other specialized knowledge will help the 

trier of fact to understand the evidence or to 

determine a fact in issue.

Ariz. R. Evid. 702(a).

¶18 The narcotics detectives were found by the trial court to be 

qualified as experts on the illegal drug trade, and Swope does not contest 

their qualifications on appeal. This court has repeatedly held that police 

officers may testify as expert witnesses regarding the meaning of drug code 

and language, noting that “[c]ourts frequently permit expert testimony on 

such matters and even allow experts to interpret writings or conversations.” 

State v. Walker, 181 Ariz. 475, 480, 891 P.2d 942, 947 (App. 1995) (and cases 

cited therein); see also State v. Nightwine, 137 Ariz. 499, 503, 671 P.2d 1289, 

1293 (App. 1983) (holding expert testimony interpreting drug language in 

recorded calls was properly admitted because it assisted the jury in 

understanding the evidence). There was no error in the admission of the 

detectives’ expert testimony.
STATE v. SWOPE

Decision of the Court

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IV. Improper Vouching of a Witness

¶19 Swope contends the State improperly vouched for the 

credibility of the informant. Swope identifies specific statements made 

during trial by Detectives Sturgill and Stock that allegedly vouch for the 

informant’s credibility. First, on redirect, the State asked Detective Sturgill 

whether the informant had ever given him “suspect” information, to which 

Detective Sturgill answered, “No, he did not.” The State followed this 

answer by asking Detective Sturgill if his work with the informant led to 

his trust of the informant, to which the Detective answered, “That is 

correct.” Next, during Detective Stock’s testimony, the State asked him if 

there was “any time where you had to pull [the informant’s] reliability, or 

cut [the informant] off from being an informant,” to which Detective Stock 

responded “No, ma’am.” Swope did not object to these statements during 

trial.

¶20 “It is black letter law that it is improper for a prosecutor to 

vouch for a witness.” State v. Bible, 175 Ariz. 549, 601, 858 P.2d 1152, 1204 

(1993). “Two forms of impermissible prosecutorial vouching exist: (1) 

when the prosecutor places the prestige of the government behind its 

witness, and (2) where the prosecutor suggests that information not 

presented to the jury supports the witness’s testimony.” Id. (internal 

citation omitted). “The first type of vouching consists of personal 

assurances of a witness’ truthfulness. The second type involves 

prosecutorial remarks that bolster a witness’ credibility by reference to 

material outside the record.” State v. Dunlap, 187 Ariz. 441, 462, 930 P.2d 

518, 539 (App. 1996).

¶21 Under the unique circumstances of this case – particularly 

where the informant is not available to be cross-examined – we agree that 

it was error for the prosecutor to seek to bolster the credibility of the missing 

informant by way of other government witnesses commenting on his 

credibility. Although the questions and answers at issue were elicited on 

redirect examination after cross-examination, and therefore were arguably 

permissible to rebut the insinuation on cross-examination that the 

informant was unreliable, the critical difference here is that the informant 

did not testify. The jury did not have any opportunity to evaluate his 

credibility, only the statements of Detectives Sturgill and Stock vouching 

for the informant’s credibility. Moreover, the informant’s absence 

precluded Swope from impeaching the informant’s credibility. We 

conclude this was improper under the present circumstances. In absence 

of the informant, allowing such testimony constituted error.
STATE v. SWOPE

Decision of the Court

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V. Instruction on Testimony by Law Enforcement Officers

¶22 Finally, Swope argues the trial court erred in refusing to give 

an instruction concerning the credibility of testimony by law enforcement 

officers. We review a trial court’s denial of a requested jury instruction for 

abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006) 

(internal citation omitted).

¶23 During settlement of jury instructions, Swope requested the 

following instruction: 

The testimony of a law enforcement officer is 

not entitled to any greater or lesser importance 

or believability merely because of the fact that 

the witness is a law enforcement officer. You 

are to consider the testimony of a police officer 

just as you would the testimony of any other 

witness.

RAJI Standard Instruction 34. In declining to give this instruction, the trial 

court stated that it did not believe there was any need to single out any 

particular profession for an instruction on credibility in light of the general 

credibility instruction given with respect to all witnesses. In addition, the 

trial court noted that because only law enforcement witnesses testified at 

trial, it was unnecessary to contrast the testimony of law enforcement 

witnesses with other non-witnesses. 

¶24 “A defendant is entitled to a jury instruction on any theory 

reasonably supported by the evidence.” State v. Moody, 208 Ariz. 424, 468, 

¶ 197, 94 P.3d 1119, 1162 (2004). A trial court, however, is not required to 

give a requested jury instruction when “its substance is adequately covered 

by other instructions.” State v. Mott, 187 Ariz. 536, 546, 931 P.2d 1046, 1056 

(1997).

¶25 Here, the trial court gave a general instruction applicable to 

the credibility of all witnesses. The instruction directed the jurors to decide 

the accuracy of each witness’ testimony taking into account their ability and 

opportunity to observe, their memory, their manner while testifying, any 

motive or prejudices they might have, and any inconsistent statements they 

might have made, in light of all of the evidence in the case. This instruction 

adequately set forth the law in regards to the determination of witness 

credibility. It is the responsibility of the jury to determine the credibility of 
STATE v. SWOPE

Decision of the Court

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the police officers’ testimony.

2 Moreover, because the only testifying 

witnesses were law enforcement officers, no specific additional instruction 

regarding the fact that testimony of a law enforcement officer is entitled to 

no greater or lesser weight than that of any other witness was necessary. 

See State v. Walters, 155 Ariz. 548, 552-53, 748 P.2d 777, 781-82 (App. 1987) 

(holding no error in refusing to give instruction regarding weight of law 

enforcement testimony where all witnesses were law enforcement officers). 

The trial court did not abuse its discretion in refusing to give the requested 

instruction.

CONCLUSION

¶26 For the foregoing reasons, we reverse Swope’s convictions 

and sentences and remand for a new trial or other proceedings consistent 

with this decision.

 

2 In addition, the trial court questioned the potential jurors during the 

jury selection process regarding whether they would give more or less 

consideration to law enforcement testimony. Only one potential juror 

answered affirmatively and he was subsequently excused.