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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ADAN G. VILLARREAL, Appellant.

No. 1 CA-CR 16-0725

Appeal from the Superior Court in Maricopa County

No. CR2015-117120-001

The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jana Zinman

Counsel for Appellee

Nicole Farnum, Phoenix

Counsel for Appellant

FILED 2-15-2018
STATE v. VILLARREAL

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge James P. Beene and Judge Randall M. Howe joined.

C A T T A N I, Judge:

¶1 Adan Villarreal appeals from his convictions and sentences 

for possession of narcotic drugs for sale, possession of marijuana for sale, 

and possession of drug paraphernalia. Villarreal challenges in particular 

the superior court’s denial of his motion to suppress evidence obtained 

when law enforcement entered his apartment. For reasons that follow, we 

affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The Glendale Fire Department and Glendale Police Officer 

Stepp responded to a fire at Villarreal’s apartment. After the blaze was 

extinguished, the fire captain told Officer Stepp that there was something 

in the apartment that he should see. The captain led Officer Stepp inside to

the kitchen where the officer saw a small plastic bag of cocaine sitting next 

to a digital scale. In the front room, Officer Stepp saw a bowl containing a

white powdery substance inside an open plastic bin. He then did a safety 

sweep of the apartment, during which he saw a small vacuum-sealed bag 

of marijuana and Villarreal’s identification card and open passport.

¶3 Officer Stepp recognized Villarreal from his identification and 

approached him outside the apartment. Villarreal voluntarily talked with 

officers and consented to a full search of the apartment. During the search, 

officers found a large vacuum-sealed bag of marijuana, $3,500 in cash, a 

vacuum sealing machine, and packaging material. Villarreal was arrested

and charged with possession of narcotic drugs for sale, possession of 

marijuana for sale, and possession of drug paraphernalia.

¶4 A jury found Villarreal guilty as charged, and he was 

sentenced to a mitigated sentence of 4 years’ imprisonment for possession 

of narcotic drugs for sale and concurrent 3-year terms of probation for the 

other convictions. Villarreal timely appealed, and we have jurisdiction

under Arizona Revised Statutes (“A.R.S.”) § 13-4033.
STATE v. VILLARREAL

Decision of the Court

3

DISCUSSION

¶5 Villarreal argues that the superior court erred by denying his 

motion to suppress the evidence found in his apartment. During the 

pretrial suppression hearing, Officer Stepp testified—over Villarreal’s 

objection—that he followed the fire captain into Villarreal’s apartment after 

“the captain . . . came outside and advised me that they had located 

something in the apartment that they needed to alert me to.” Villarreal

asserts that this statement was inadmissible hearsay and should have been 

precluded. He urges that, without this evidence of the fire captain’s 

statement, Officer Stepp had no basis to enter the apartment in the first 

instance, so all resulting evidence should have been suppressed.

¶6 We review the superior court’s ruling on a motion to suppress 

for an abuse of discretion, but review de novo constitutional and legal 

issues. State v. Moody, 208 Ariz. 424, 445, ¶ 62 (2004). We consider only 

evidence presented at the suppression hearing and view that evidence in 

the light most favorable to upholding the superior court’s decision. State v. 

Mitchell, 234 Ariz. 410, 413, ¶ 11 (App. 2014).

¶7 Hearsay is “a statement that: (1) the declarant does not make 

while testifying at the current trial or hearing; and (2) a party offers in 

evidence to prove the truth of the matter asserted in the statement.” Ariz. 

R. Evid. 801(c). An out-of-court assertion offered to prove its effect on the 

listener (rather than the truth of the matter asserted) is not hearsay. See State 

v. Romanosky, 162 Ariz. 217, 222 (1989); State v. Rivers, 190 Ariz. 56, 60 (App. 

1997).

¶8 Here, the officer’s testimony was offered to explain its effect 

on the listener—that is, why Officer Stepp followed the fire captain into the 

apartment—and not to prove the truth of the fire captain’s assertion that 

there was something of significance in the apartment. Thus, the statement 

was not hearsay, and the superior court did not err by declining to preclude 

it on that basis. For the same reason, Villarreal’s Confrontation Clause 

argument also fails. See State v. Tucker, 215 Ariz. 298, 315, ¶ 61 (2007)

(“[T]estimony that is not admitted to prove its truth is not hearsay and does 

not violate the Confrontation Clause.”) (citing Crawford v. Washington, 541 

U.S. 36, 59 n.9 (2004)).

¶9 Moreover, based on the Arizona Supreme Court’s decision in 

Mazen v. Seidel, 189 Ariz. 195 (1997), Officer Stepp was authorized to enter 

the apartment even without the fire captain’s statement. In Mazen, the court 

held that when firefighters lawfully enter a structure under exigent 
STATE v. VILLARREAL

Decision of the Court

4

circumstances, law enforcement may also lawfully enter that structure

subject to the “spatial and temporal boundaries of the firefighters’ entry, 

presence, and plain-view discovery.” Id. at 202. The court noted that “[t]he 

police could lawfully step into the shoes of the firefighters to seize what the 

firefighters could move,” and that the defendant “no longer had a 

reasonable expectation of privacy for that area . . . where one officer was 

already legally present.” Id. at 199 (quotation omitted and alteration in 

original).

¶10 Villarreal does not challenge the lawfulness of the firefighters’ 

entry, and Officer Stepp’s contemporaneous entry with the fire captain into 

Villarreal’s kitchen and living room did not exceed the spatial and temporal 

boundaries of the firefighters’ entry or otherwise violate Villarreal’s rights. 

Accordingly, the superior court did not err by denying Villarreal’s motion 

to suppress.

CONCLUSION

¶11 We affirm Villarreal’s convictions and sentences.