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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RASHAWN MARK BERHANE, Appellant.

No. 1 CA-CR 18-0572

No. 1 CA-CR 18-0585

(consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2016-135368-001

No. CR2015-108505-002

The Honorable Douglas Gerlach, Judge

The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist III

Counsel for Appellee

Law Office of Katia Méhu, Phoenix

By Katia Méhu

Counsel for Appellant

FILED 6-4-2020
STATE v. BERHANE

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in 

which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani

joined.

M c M U R D I E, Judge:

¶1 Rashawn Mark Berhane appeals from his convictions and 

sentences for two counts of selling narcotic drugs in Maricopa County 

Cause No. CR2016-135368-001 and from the revocation of probation and 

sentence in Maricopa County Cause No. CR2015-108505-002. For the 

following reasons, we affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In 2015, Berhane pled guilty to possessing drug 

paraphernalia. The court placed him on two years’ probation. At around 

the same time, the State charged Berhane with committing two felony 

offenses in Pinal County. Berhane was released on bond in that matter.

¶3 In the summer of 2016, while the Pinal County charges were 

pending, the State charged Berhane with three counts of selling narcotic 

drugs to an undercover Phoenix police detective (Cause No. CR2016-

135368-001). At Berhane’s trial on those charges, the detective testified 

Berhane sold him increasingly larger amounts of crack cocaine on three 

different occasions over approximately two weeks in June and July of 2016.

¶4 The jury acquitted Berhane of the earliest alleged sale but

convicted him of the latter two. The jury further found three aggravating 

circumstances applicable to the convictions: (1) Berhane committed the 

offenses for pecuniary gain; (2) he committed the crimes while on probation 

for another felony conviction; and (3) he committed the offenses while 

released on bond for a separate felony charge.

1 We view the facts in the light most favorable to upholding the 

verdicts and resolve all reasonable inferences against the defendant. State v. 

Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
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3

¶5 The superior court sentenced Berhane as a repetitive offender 

to concurrent terms of 18.75 years’ imprisonment for each of the two drug 

sales. Those convictions automatically revoked Berhane’s probation, and 

the court imposed a consecutive one-year prison term.

¶6 We have jurisdiction to consider Berhane’s appeals in both 

causes, which were consolidated, under Arizona Revised Statutes 

(“A.R.S.”) sections §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

A. On Appeal, Berhane May Not Challenge the Reexamination of His 

Bail Eligibility.

¶7 When Berhane was arrested for the 2016 drug charges, the

Maricopa County Superior Court found him bailable as a matter of right. 

See Ariz. Const. art. 2, § 22; Ariz. R. Crim. P. 7.4(a). After Berhane posted a 

bond, the State moved the court to find him non-bailable, arguing he 

committed the Maricopa County offenses while released on the Pinal 

County charges. The court held an evidentiary hearing to reexamine 

Berhane’s bail eligibility, found the State had met its burden under the 

Arizona Constitution, and ordered Berhane held without bond. See Ariz. 

Const. art. 2, § 22(A)(2) (defendant not bailable “[f]or felony offenses 

committed when the person charged is already admitted to bail on a 

separate felony charge and where the proof is evident or the presumption 

great as to the present charge”); Ariz. R. Crim. P. 7.4(c)(1).

¶8 We find no merit in Berhane’s claim the superior court 

erroneously revoked his bailable status. Moreover, he had to raise the 

alleged error in a petition for special action before trial. See Costa v. Mackey, 

227 Ariz. 565, 569, ¶ 6 (App. 2011) (“Issues involving pretrial incarceration 

and release conditions become moot once a trial is conducted and any 

appeal can be filed.”). Having been convicted and sentenced, there is no 

longer a remedy for the alleged error. Id.

B. The Superior Court Acted Within Its Discretion by Denying 

Berhane’s Motion to Compel Disclosure of the State’s Confidential 

Informant Without an Evidentiary Hearing.

¶9 The undercover detective who bought the drugs from 

Berhane targeted him based on a tip from a confidential informant. 

According to the detective’s police report, the informant told him a man 

known as “G” was selling crack cocaine from his house, and then pointed 

the house out to the detective. The informant also told the detective that 
STATE v. BERHANE

Decision of the Court

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“G” had people selling crack cocaine for him out of rooms “G” rented at a 

motel the informant also identified. The police report revealed no further 

involvement by the informant. When the detective met Berhane for the first 

time, Berhane identified himself as “G.”

¶10 Before the trial, Berhane moved for an order compelling the 

State to disclose the informant’s identity, make the informant available for 

an interview, and provide additional information about the informant’s

criminal history and relationship with law enforcement. Berhane 

acknowledged it was “unknown and unclear” whether the informant was 

present during police surveillance and communications with Berhane, or 

the charged sales, but he “anticipated” the informant would support his

mistaken-identity defense by confirming the narcotics were not purchased

from him. The State argued, in response, that disclosure was unwarranted 

because the informant merely led the police to Berhane and was not present 

during any of the charged transactions. In his reply, Berhane offered a 

factual account that both expanded upon and departed from his previous 

filing—asserting, in essence, the police used the informant to set him up, 

the informant was personally involved in each of the charged transactions,

and the informant had information that would support an entrapment 

defense. The superior court denied Berhane’s motion without holding an 

evidentiary hearing. After oral argument, the court denied Berhane’s 

motion for reconsideration and later dismissed a second motion for 

reconsideration.

¶11 Generally, the State “may withhold from disclosure the 

identity of persons who furnish information of violations of law to law 

enforcement officers in furtherance of the public interest in effective law 

enforcement.” State v. Tuell, 112 Ariz. 340, 343 (1975) (citing Roviaro v. United 

States, 353 U.S. 53 (1957)), abrogated on other grounds by State v. Duran, 233 

Ariz. 310 (2013). That privilege gives way, however, if the defendant 

demonstrates “that, in view of the evidence, the informer would be a 

material witness on the issue of guilt which might result in exoneration and 

that nondisclosure of his identity would deprive the defendant of a fair 

trial.” Id.; see also Ariz. R. Crim. P. 15.4(b)(2) (a party need not disclose the 

identity of non-testifying informant if disclosure “would result in 

substantial risk to the informant or to the informant’s operational

effectiveness” and nondisclosure “will not infringe on the defendant’s 

constitutional rights”).

¶12 We review the superior court’s denial of Berhane’s motion to 

compel disclosure of the informant’s identity for an abuse of discretion. See 

Tuell, 112 Ariz. at 342–43. The court’s decision to rule on the pleading rather 
STATE v. BERHANE

Decision of the Court

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than hold an evidentiary hearing is also reviewed for an abuse of discretion. 

See State v. Hulsey, 243 Ariz. 367, 377, ¶ 21 (2018).

¶13 The superior court acted within its discretion by denying

Berhane’s motion because Berhane did not “establish that the informant 

could testify on the merits of the case.” State v. Grounds, 128 Ariz. 14, 15 

(1981). The defendant bears the burden of demonstrating an undisclosed 

informant is likely to have relevant evidence. Id.; Tuell, 112 Ariz. at 343. To 

do so, the defendant cannot rely solely on argument but must provide proof

like “sworn affidavits, stipulated facts, depositions, [or] oral testimony.” 

Grounds, 128 Ariz. at 15. Berhane did not provide competent evidence in 

support of the disclosure.

¶14 Berhane contends he could have provided the necessary 

evidence at an evidentiary hearing. But when the court allowed Berhane to 

explain how an evidentiary hearing would yield information helpful to his 

motion, Berhane did not provide a viable explanation. Because Berhane’s 

argument for disclosure was based on unsworn assertions not supported 

by evidence, an evidentiary hearing would have been futile. The superior 

court did not err by denying his motion without a hearing. See State v. 

Wassenaar, 215 Ariz. 565, 576–77, ¶¶ 44, 48–51 (App. 2007) (court did not err 

by denying an evidentiary hearing when the defendant failed to support 

the claim with evidence); State v. Robles, 182 Ariz. 268, 271 (App. 1995) (court 

did not err by denying the motion to disclose informant based solely on 

counsel’s argument).

C. The Correctness of the Superior Court’s Ruling on Berhane’s 

Motion to Compel Is Fatal to His Claim of Sentencing Error.

¶15 Berhane challenges the aggravation of his 18.75-year 

sentence.2 He contends the superior court’s refusal to compel disclosure of 

the informant prevented him from mounting an effective defense to the 

narcotics-sale charges, and consequently, to the jury’s finding he committed 

those offenses for pecuniary gain. He further contends that because his 

convictions were obtained in error, his probation and bond-release status 

2 Based on the jury’s findings that Berhane was on probation and 

felony release when he committed the crimes, and the superior court’s 

determination he was a category-three repetitive offender, the minimum 

prison sentence the court could impose for each class-two narcotics-sale 

conviction was 17.75 years. See A.R.S. §§ 13-703(J), -708(C), (D).
STATE v. BERHANE

Decision of the Court

6

on the dates of the charged offenses cannot be treated as aggravating 

circumstances. As noted above, the superior court did not err.

CONCLUSION

¶16 We affirm Berhane’s convictions and sentences.