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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appellee
,

v.

STEVE ANDREW SUAZO
, Appellant

.
No. 1 CA

- CR 17

- 0192

Appeal from the Superior Court in Maricopa County

No. CR 2014

- 002227

- 009 The Honorable Justin Beresky
, Judge Pro Tempore

AFFIRMED AS MODIFIED

COUNSEL
Arizona Attorney General’s Office , Phoenix By Linley Wilson Counsel for Appellee

Stephen M. Johnson PC
, Phoenix By Stephen M. Johnson C ounsel for Appellant FILED 4-3-2018STATE v. SUAZO Decision of the Court

2 MEMORANDUM DECISION
Judge Patricia A. Orozco 1 delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.

OROZCO , Judge:

¶1 Steve Suazo appeals his convictions and sentences for conspiracy to commit sale or transportation of dangerous drugs, assisting a criminal syndicate, possession of dangerous drugs, possession of narcotic drugs, use of a wire or electronic communication in drug

- related transactions, and resisting arrest. For the following reasons, we af firm the convictions and affirm the sentences as modified

.

FACTS AND PROCEDURAL HISTORY 2

¶2 On January 28, 2014, detectives surveilled suspected drug

dealer Irene Castro from an unmarked police vehicle parked outside her apartment building

. At approximately 3 p.m., the detectives observed a Chrysler sedan enter the apartment complex and park near Castro’s residence

. T he driver, Suazo, then exited the vehicle and enter ed Castro’s apartment

. When he emerged from the apartment a few hours late r, Suazo appeared to place something in the Chrysl er’s trunk before driving away.

¶3 D etectives followed the Chrysler from the apartment complex
, and after observing traffic violations, they activated their unmarked vehicle’ s lights and siren, attem pting to i nitiate a traffic stop. Rather than stop, however, the Chrysler accelerated, drove on the wrong side of the road for a brief period, and eventually halted in the front yard of a private residence.

1 The Honorable Patricia A. Orozco, retired Judge of the Arizona Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.

2 We view the facts in the light most favorable to sustaining the verdicts. State v. Payne , 233 Ariz. 484, 509, ¶ 93 (2013).STATE v. SUAZO Decision of the Court

3 ¶4 Once the vehicle stop ped , Suazo jumped out , l eaving the engine running and the driver

- side door open

. Seeing Suazo flee , the detectives yelled, “Police. Stop.” In response, Suazo momentarily look ed at the uniformed officers, but then turned and ran toward the residence’s open garage. While the detectives co ntinued issuing commands, they followed Suazo into the garage and “clearly” saw him turn away and reach into his pockets.

¶5 Fearing Suazo may draw a weapon, the detectives attempted to physically restrain him. A lthough Suazo struggled, the detectives, working together, eventually gained control and placed him under arrest.

¶6 Once Suazo was in custody, the detectives noticed a small baggie
, containing a substance later identified as heroin
, on the garage floor where Suazo had s tood. Within a couple of feet of the heroin baggie, the detectives also observed a salmon

- colored baggie
, containing a s ubstance later identified as meth amphetamine, on a garage table.

¶7 Later, the detectives searched the Chrysler and seized a cell phone propped against the center console. They also seized a toiletry bag from the trunk that contained an unmarked pill bottle. After a forensic analyst examined the contents of the cell phone, detectives learned that
numerous text messag es referred to Suazo explicitly, using either his legal name or a nickname, and many texts solicited or otherwise referred to drugs, including at least one text from Castro

. ¶8 On March 12, 2014, a detective conducted a traffic stop of Castro’s vehicle as she left her apartment complex. After determining Castro’s license was suspended and impounding her vehicle
, the detective conducted an inventory search of the car and discovered a candle with a false bottom that concealed two salmon

- colored baggies of metha mphetamine. On the same day, detectives executed a search warrant

on Castro’s apartment and found a digital scale, numerous firearms, ample ammunition, a “launcher” for expelling small explosives, drug ledgers, body armor, miscellaneous forms of identific ation bearing a variety of names, marijuana, and several prescription pill bottles.

¶9 The State then charged Suazo with one count of conspiracy to commit sale or transportation of dangerous drugs (Count 1), assisting a criminal syndicate (Count 2), possessio n of dangerous drugs for sale ( renumbered Count 3 ), sale or transportation of dangerous drugs ( renumbered Count 4 ), possession of narcotic drugs for sale ( renumbered Count 5 ), sale or transportation of narcotic drugs ( renumbered Count 6 ),STATE v. SUAZO Decision of the Court

4 use of wire communication or electronic communication in drug

- related transactions ( renumbered Count 7 )
, and resisting arrest ( renumbered Count 8 ). The State also alleged aggravating circumstances and that Suazo had four histo rical prior felony convictions.

¶10 After a f ive

- day trial, a jury found Suazo guilty as charged on Counts 1, 2, 7, and 8, guilty of the lesser

- included offenses of possession of dangerous and narcotic drugs on Counts 3 and 5
, and not guilty on Counts 4 and 6

. At the sentencing hearing, the court fo und Suazo had two prior felony convictions and sentenced him to pr esumptive, concurrent terms totaling fifteen and three

- quarters’ years imprisonment. 3 Suazo timely appealed, and we have jurisdiction pursuan t to Arizona Revised Statutes ( A.R.S. ) sections 12

- 120.21(A)(1)
, 13

- 4031, and

- 4033(A)(1)

. 4

DISCUSSION

I. Denial of Motion for Judgment of Acquittal

¶11 Suazo contends the trial court improperly denied his motion for judgment of acquittal on Counts 1, 2, and 7. For analytic clarity and brevity, we first addre ss Count 7, and then the remaining counts in turn

. ¶12 We review de novo a trial court’s ruling on a Rule 20 motion. State v. West , 226 Ariz. 559, 562, ¶ 15 (2011). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 562, ¶ 16 (internal quotation omitted). Sufficient evidence upon which a reasonable jury can convict ma y be direct or circumstantial. Id . A judgment of acquittal is

3 As noted by the State, the conviction for possession of narcotic drugs

w as Count 7 rather than Count 5 , as reflected in the sentencing minute entry

. In addition, Counts 3 and 5 are Class 4 felonies , not Class 2 felonies as designated in the minute entry
, see A.R.S. §§ 13

- 3407(A)(1), (B)(1),

- 3408(A)(1), (B)(1)
, though the sentences impo sed on both counts correspond to the applicable presumptive sentence for a category

- three repetitive offender convicted o f Class 4 felonies
, see A.R.S. § 13

- 703(J)

. We modify the judgment accordingly

. See Ariz. R. Crim. P. 31.1 9 (d) (authorizing court to modify a judgment).

4 Absent material change since the date of relevant events, we cite to the current version of statu tes.STATE v. SUAZO Decision of the Court

5 appropriate only when “there is no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a) (1)

.

A. Count 7

- Use of Wire or Electronic Communication in Drug

- Related Transactions

¶13 Pur suant to A.R.S. § 13

- 3417 , “[i]t is unlawful for a person” to use any wire or electronic communication to facilitate a conspiracy to sell
or t ransport illegal drugs. Suazo argues the State failed to present any evidence that the seized cell phone “ actually belonged” to him, and further contends that even if he was the intended recipient of the drug

- related texts, no evidence demonstrates that h e “respond[ed]” to those messages, or otherwise conspired to sell or transport drugs

. ¶14 The record reflects
, however, that the State presented substantial circumstantial evidence that Suazo controlled the cell ph one found in the Chrysler. First, detectives found the phone next to the driver’s seat console, where Suazo had been seated. Second, although Suazo correctly notes that two text messages contained on the phone were not addressed to him ( one was directed to his girlfriend and another to a
woman appar ently unrelated to the case )
, he does not dispute that many “of the thousands of text messages” recovered from the phone referred to him by name

. Because numerous text messages solicited drugs
, or otherwise related to drugs, including a text from Castro s tating she would not provide Suazo with drugs (though using street terminology) if he did not contact her immediately , sufficient evidence exist s from which a reasonable jury could find that Suazo used the cell phone to facilitate the sale or transportation of illegal drugs

.

B. Count 1

– Conspiracy to Commit Sale or Transportation of Dangerous Drugs

¶15 A person conspires to sell or trans port dangerous drugs if, with the intent to promote or aid the commission of the offense, the person agrees with one or more persons that one of them
, or another person
, will engage in conduct that constitute s sale or transportation of dangerous drugs, and one of the parties commits an overt act in furtherance of such an offense . A.R.S. §§ 13

- 1003(A) (2010),

- 3407

. ¶16 In this case , the State presented evidence that Suazo received
numerous text messages soliciting drugs and at least one message offering drugs

. On the day of his arrest, detectives found two baggies of illegal drugs in the immediate vicinity of where Sua zo had stood, turned, and reached into his pockets, and the unusual salmon

- colored baggieSTATE v. SUAZO Decision of the Court

6 containing methamphetamine matched the methamphetamine baggies later seized from Castro’s car. Likewise, detectives found a prescription pill bottle in the Chrysler’ s trunk that matched the prescription pill bottles later seized from Castro’s apartment . Although the State failed to present any text messages in which Suazo explicitly agreed to provide or receive drugs, on this record , sufficient circumstantial evidenc e exist s from which a reasonable jury could find that he agreed to sell or transport dangerous drugs
, and intended to assist the commission of such an offense when he transport ed heroin and methamphetamine from Castro’s apartment. 5 See State v. Hall , 129 Ariz. 589, 595 (1981) (holding an “unlawful agreement can be inferred from the parties’ over t conduct ” ), overruled on other grounds by State v

. Bass , 198 Ariz. 571, 576, ¶ 12 (2000).

C. Count 2

– Assisting a Criminal Syndicate

¶17 A person assists a criminal synd icate by selling or transferring narcotic or dangerous drugs or conspiring to sell or transfer narcotic or dangerous drugs, with the intent to promote or further the criminal objectives of a criminal syndicate. A.R.S. § 13

- 2308 (2010). A “criminal syndic ate” is any combination of persons or enterprises engaging on a continuing basis in conduct that violates a felony statute. A.R.S. § 13

- 2301(C)(7)

. ¶18 As explained above, supra ¶ 16, the State presented substantial circumstantial evidence that Suazo conspire d with Castro to sell and transfer dan gerous and narcotic drugs. Viewing these facts in light of the ledgers seized from Castro’s apartment that detailed her drug operations , sufficient evidence exists from which a reasonable jury could find that Suazo co nspired to sell and transfer dangerous and narcotic drugs

5 To the extent Suazo contends there was insufficient evidence that he intended to aid the sale or transport of drugs, as evidenced by the jury’s lesser

- included guilty verdicts on Counts 3 and 5 ( convicting him only of simple possession rather than possession for sale ) and not guilty verdicts on Counts 4 and 6 (acquitting him of sale of dangerous and narcotic drugs)
, his claim is not well

- founded. It is well

- settled that Arizona law permits inconsistent verdicts

. Gusler v. Wilkinson , 199 Ariz. 391, 396, ¶ 25 (2001). Indeed, r ather than demonstrating a lack of evidence, an inconsistent verdict may be the result of error, jury nullification, compromise, or lenity. State v. Hansen , 237 Ariz. 61, 68, ¶ 20 (App. 2015). Accordingly, cou rts do not “speculate about the reason for [an] inconsistency or inquire into the jury’s deliberations,” an d inconsistent verdict s generally are not subject to judicial review. Id . at ¶¶ 20

- 21.STATE v. SUAZO Decision of the Court

7 with the intent to further the objectives of Castro’s drug organization. Therefore, the trial court did not err when it den ied Suazo’s motion for judgment of acquittal.

II. Alleged Admission of Profile Evidence

¶19 Suazo contends the trial court improperly permitted the State to elicit profile evidence as substantive proof of his guilt. Indeed, c iting State v. Haskie , 242 Ariz. 582 (2017), State v. Ketchner , 236 Ariz. 262 (2014)
, and State v

. Lee , 191 Ariz . 542 (1998), Suazo argues the State presented testimony that “created a high risk that the jury would convict” him, not for his own conduct, but for the conduct of others.

¶20 “Profile evidence tends to show that a defendant possesses one or more . . . chara cteristics . . . typically displayed by persons engaged in a particular kind of activity.” Ketchner , 236 Ariz. at 264, ¶ 15. Because profile evidence “implicitly invit[es] the jury to infer criminal conduct based on the described characteristics
, ” it “ma y not be used as substantive proof of guilt [

. ] ” Id . at 264

- 65, ¶ ¶ 15 , 17

. ¶21 We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. Ketchner , 236 Ariz. at 264, ¶ 13 . An

error of law committed in reaching a discretion ary conclusion may constitute an abuse of discretion. State v. Wall , 212 Ariz. 1, 3, ¶ 12 (2006).

¶22 Without objection
, the prosecutor asked one of the investigating detectives whether he believed Castro was “part of a group that deals drugs.” Citing his “ training and experience, ” as well as the evidence recovered during the investigation, the detective testified that he believed Castro ran a drug operation out of her apartment. The prosecutor then asked the detective whether he believe d Suazo was part of Castro’s organization

. Over defense counsel’s objection that the question called for a legal conclusion , the detective stat ed that he believed Suazo was part of Castro’s drug organization, explaining he reached that conclusion primarily based on the conte nts of the seized cell phone an d the “unique” salmon

- colored cellophane packaging material used to hold the methamphetamine found in both Castro and Suazo’s possession

. As a follow

- up question, the prosecutor asked the detective to identify Suazo’s role w ithin this group. Defense counsel objected, and the court sustained the objection.STATE v. SUAZO Decision of the Court

8 ¶23 Contrary to Suazo’s contentions, the State did not elicit any “profile evidence” during this exchange. That is, the detective did not testify generally regarding drug d ealers’ characteristics and patterns of behavior. Instead, he testified to the specific evidence discovered during the investigation and explained how that evidence linked Suazo to Castro’s organization. Stated differently, the detective never suggested, implicitly or explicitly, that Suazo shared certain characteristics commonly held by drug dealers.

¶24 Although the prosecutor did not elicit profile evidence, he ask ed the detect ive if he reached an “ultimate” conclusion in the case
, namely, whether Suazo wa s a member of Castro’s drug organization. Pursuant to Arizona Rule of Evidence 70 2
, “[ a ] witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if . . . [ such testimon y ] will help the trier of fact to understand the evidence or determine a fact in issue.” Ariz. R. Evid. 702(a)

. ”In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition th at constitutes an element of the crime charged or of a defense

. Those matters are for the trier of fact alone. ” Ariz. R. Evid. 704 (b).

¶25 Assuming without deciding that the admission of the
statement was err or , we find there was sufficient evidence to support the convictions for conspiracy and assisting a criminal syndicate , as stated supra in ¶¶ 15

- 18

.

III. Denial of Motion for Mistrial

¶26 Suazo argues the trial court improperly denied his motion for mistrial. Spec ifically, he asserts the court should have declared a mistrial once it realized it had issued an erroneous jury instruction.

¶27 We review the denial of a motion for mistrial for an abuse of discretion. State v. Jones , 197 Ariz. 290, 304, ¶ 32 (2000). Becaus e “a declaration of a mistrial is the most dramatic remedy for trial error,” it should be granted “only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted.” State v. Adamson , 136 Ariz. 250, 262 (1983).

¶28 D uring the settling of the final jury instructions, the prosecutor questioned whether the State was required to prove that Suazo possessed a usable amount as an element of the offense for Counts 3 and 5. Acknowledging the law had changed with respect to tha t issue, the court inquired whether the change occurred before the underlying offenses wereSTATE v. SUAZO Decision of the Court

9 committed. Without determining the date of the change, however, the court ultimately decided to include the “ usable amount ” element in the instruction, reasoning, if in error, the error favored Suazo. Accordingly, t he court instructed the jur ors that they could not convict Suazo of the lesser

included offense of simple possession (on both Counts 3 and 5) unless they found he “possessed a usable amount [

. ] ”

¶29 During deliberations, the jur y submitted a question regarding the “usable amount” element: “What is a ‘ usable amount ’ of meth or heroin? One gram? 14 grams? [ F ] or one person for one time using it?” When the trial court asked the prosecutor how he would address the jurors’ question, the prosecutor explained that he had researched the issue since the settling of the final jury instructions and had discovered that the law changed in 2008, well before the charged offenses occurred, and a “usable amount” was no longe r a requisite element of possession of dangerous or narcotic drugs. See State v. Cheramie , 218 Ariz. 447, 451, ¶¶ 20

- 22 (2008) (holding a “usable quantity” is not an element of possession of a dangerous drug). The prosecutor then suggested that the court simply inform the jurors that a usable quantity is not an element of the offense and instruct them to “ disregard that langu age in the jury instructions.” Agreeing that a usable quantity was not a required element, defense counsel argued that submission o f the incorrect instruction necessitated a declaration of mistrial. After hearing from counsel, the court acknowledged the instruction was incorrect , but determined the “mistake” could “easily be cured” by instructing the jurors that the State was not req uired to prove a “usable amount.”

¶30 Here, there is no dispute that the given instructions were

erroneous . Therefore, the remaining question is whether the error was harmless. See State v. Moore , 222 Ariz. 1, 14, ¶ 67 (2009). “An error is harmless if it ap pears beyon d a reasonable doubt that the error . . . did not contribute to the verdict obtained.” Id . (internal quotation marks omitted).

¶31 Because the erroneous inclusion of an additional element to the lesser

- included offense s only inured to Suazo’s ben efit, he sustained no prejudice . Stated differently , the given instructions required the State to
prove all the legally required elements, and an additional element. Thus, the error could not have contributed to the guilty verdict s because it required th e State to meet a greater burden of proof. Moreover, the court remedied the error by instructing the jurors to disregard th ose portion s of the instructions

. See State v

. Govan , 154 Ariz. 611, 613 (App. 1987) (holding a trial court did not improperly deny a motion for mistrial predicated on an erroneous jury instruction because the court remedied the error bySTATE v. SUAZO Decision of the Court

10 providing supplemental instruction to the jurors during their delibera tions, before they had reached a verdict). W e presume a jury follows a court’s instructions , and Suazo has not presented any evidence to overcome that presumption

. See State v. Newell , 212 Ariz. 389, 403, ¶ 68 (2006)

. For these

reasons , the trial court did not abuse its discretion by denying Suazo’s motion for mistrial.

CONCLUSION

¶32 For the foregoing reasons, we affirm Suazo’s convictions and affirm his sentences as modified

.