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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSEPH THOMAS SUTHERLAND, Appellant.

No. 1 CA-CR 19-0029

Appeal from the Superior Court in Mohave County

No. S8015CR201700819

The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jennifer L. Holder

Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman

By Jill L. Evans

Counsel for Appellant

FILED 3-31-2020
STATE v. SUTHERLAND

Decision of the Court

2

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge Kenton D. Jones joined.

W I L L I A M S, Judge:

¶1 Joseph Thomas Sutherland appeals his convictions and 

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

paraphernalia. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 On June 8, 2017, Lake Havasu City police responded to a

shoplifting incident at Kmart. An officer stopped Sutherland, who was 

walking in a nearby parking lot, and who matched the shoplifting suspect’s 

description. Sutherland asked the officer if “this [is] regarding the Kmart 

incident.” The officer responded that it was, and Sutherland was 

subsequently arrested. A search of Sutherland’s bag incident to arrest 

revealed a plastic tube and five baggies containing a white crystal 

substance, several empty baggies, a pipe, cell phones, and various personal 

items.

¶3 Sutherland was charged with possession of dangerous drugs 

for sale (methamphetamine) (“Count One”), a class two felony, and 

possession of drug paraphernalia (methamphetamine) (“Count Two”), a 

class six felony. Sutherland was tried in absentia at a two-day jury trial. At 

trial, the State introduced evidence of over nine grams of 

methamphetamine individually packaged in varying amounts, several

empty baggies, and a photograph showing the contents of Sutherland’s bag 

at the time of arrest. At the close of the State’s case, Sutherland made a Rule 

20 motion to dismiss, which the court denied. The jury found Sutherland 

guilty on both counts, and he was sentenced to the presumptive sentences 

of ten years for Count One and one year for Count Two, running 

concurrently. Sutherland timely appealed. We have jurisdiction pursuant 

to A.R.S. § 12-2101(A)(1).
STATE v. SUTHERLAND

Decision of the Court

3

DISCUSSION

I. Evidence of Drug Possession

¶4 Sutherland argues the court erred in admitting the drugs into 

evidence due to lack of foundation. Specifically, Sutherland contends the 

State failed to establish chain of custody, thus failing to prove the drugs 

admitted at trial were the same drugs seized from Sutherland and tested at 

the lab.

¶5 Generally, we review evidentiary foundation for abuse of 

discretion. State v. McCray, 218 Ariz. 252, 256, ¶ 8 (2008). When, however, a 

defendant fails to timely object to the admission of evidence at trial, we 

review for fundamental error. See Ariz. R. Evid. 103(a)(1); see also State v. 

Moody, 208 Ariz. 424, 441, ¶ 40 (2004). Here, Sutherland did not object to the 

admission of the drugs at the time they were offered into evidence, but 

instead objected a day later. Sutherland’s objection was not timely; we 

therefore review for fundamental error only. See Moody, 208 Ariz. at 441, ¶ 

40.

¶6 A proponent of evidence must establish foundation by 

“produc[ing] evidence sufficient to support a finding that the item is what 

the proponent claims it is.” Ariz. R. Evid. 901(a). This standard may—but is 

not required to be—established by chain of custody evidence. See State v. 

Steinle ex rel. Maricopa, 239 Ariz. 415, 420, ¶ 25 (2016) (“Rule 901 does not 

invariably require chain of custody testimony . . . .”). The trial court does 

not determine the evidence’s authenticity, “but only whether evidence 

exists from which the jury could reasonably conclude that it is authentic.” 

State v. Lavers, 168 Ariz. 376, 386 (1991). Provided this standard is met, any 

chain of custody defects go to the evidence’s weight, not its admissibility. 

State v. Fell, 242 Ariz. 134, 136, ¶ 6 (App. 2017).

¶7 Here, although the State did not present the entirety of the 

drugs’ chain of custody, the record contains sufficient evidence to establish 

foundation. The drugs presented at trial were identified by Officer Plunkett

as the same drugs Sutherland possessed at the time of his arrest, and by the 

forensic scientist as the same drugs she tested in the lab. This testimony is 

sufficient to support a finding that the drugs Sutherland possessed, those 

tested, and those offered at trial were the same. See State v. Emery, 141 Ariz. 

549, 551 (1984) (explaining a party can lay sufficient evidentiary foundation 

by having a “witness . . . testify that the item is what it is claimed to be”).

We therefore find no error, much less fundamental error, in admitting the 

drugs.
STATE v. SUTHERLAND

Decision of the Court

4

¶8 Sutherland further argues the court erred in denying his Rule 

20 motion to dismiss based upon insufficient chain of custody evidence. We 

review a trial court’s decision on a Rule 20 motion de novo, “viewing the 

evidence in a light most favorable to sustaining the verdict.” State v. Bible, 

175 Ariz. 549, 595 (1993).

¶9 The controlling question in considering a Rule 20 motion “is 

solely whether the record contains ‘substantial evidence to warrant a 

conviction.’” State v. West, 226 Ariz. 559, 562, ¶ 14 (2011) (quoting Ariz. R. 

Crim. P. 20(a)). A Rule 20 motion will be denied when the court, viewing 

the evidence in the light most favorable to the prosecution, finds that “’any

rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” Id. at ¶ 16 (quoting State v. Mathers, 165 Ariz.

64, 66 (1990)).

¶10 Although the court did not precisely articulate the Rule 20 

standard,1 our review of the record shows the court properly denied 

Sutherland’s motion. Because we hold the drug evidence was properly 

admitted, there was substantial evidence for a rational trier of fact to find 

that the drugs tested at the lab were the same drugs Sutherland possessed 

when he was arrested. The court, therefore, did not err in denying 

Sutherland’s Rule 20 motion.

II. Evidence of Drug Possession for Sale

¶11 Sutherland contends that even if there was sufficient evidence

he possessed the drugs, there is insufficient evidence he possessed them for 

sale. We review sufficiency of evidence claims de novo. West, 226 Ariz. at

562, ¶ 15.

¶12 A conviction must be supported by “substantial evidence” of 

guilt. Id. at ¶ 14. “Substantial evidence is more than a mere scintilla and is 

such proof that ‘reasonable persons could accept as adequate and sufficient 

to support a conclusion of defendant’s guilt beyond a reasonable doubt.’” 

State v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125 Ariz. 417, 

419 (1980)). We do not reweigh evidence; rather, we view facts “in the light 

most favorable to sustaining the conviction,” resolving all inferences 

against appellant. State v. Lee, 189 Ariz. 590, 603 (1997).

¶13 Here, there is ample evidence supporting the conviction. At 

trial, the State’s expert witness, Detective Huerta, testified that total drug 

1 The trial court judge indicated there might be sufficient evidence to convict 

Sutherland.
STATE v. SUTHERLAND

Decision of the Court

5

weight in the suspect’s possession is the best evidence of intent to sell. 

Detective Huerta testified that one gram or less is typical for personal use 

and nine grams or more indicates possession for sale. The State presented 

evidence that Sutherland possessed more than nine grams of 

methamphetamine. Detective Huerta further explained that typical 

amounts for sale include 3.5 grams, 1.75 grams, and 1 gram, and indicated 

amounts are not always precise. Sutherland possessed methamphetamine 

in individual amounts weighing 3.47 grams, 1.88 grams, 1.55 grams, 1.46 

grams, and .85 grams, which a rational trier of fact could legitimately 

conclude were sufficiently close to the amounts typically possessed for sale. 

Detective Huerta also testified that other indicators of possession for sale 

include multiple baggies and multiple phones. At trial, the State presented 

evidence of empty baggies taken from Sutherland and a photograph 

showing three cell phones in Sutherland’s bag, further supporting the jury’s 

finding. Sutherland accurately points to conflicting testimony, but 

conflicting testimony does not render the cumulative evidence 

insubstantial. See State v. Toney, 113 Ariz. 404, 408 (1976) (“Evidence is not 

insubstantial simply because testimony is conflicting or reasonable persons 

may draw different conclusions from the evidence.”) The evidence and 

testimony presented at trial provide substantial evidence to support the 

jury’s conclusion. We therefore find no error.

III. Admission of Other Evidence

A. Shoplifting References

¶14 Sutherland argues the court erred in allowing references to 

his alleged shoplifting at Kmart. Specifically, Sutherland argues the 

shoplifting references were irrelevant and unfairly prejudicial. We review 

the admission of evidence for abuse of discretion. State v. Lehr, 227 Ariz. 140, 

147, ¶ 19 (2011).

¶15 Evidence of prior bad acts is not admissible to prove action in 

conformity therewith, but may be admissible “for other purposes, such as 

proof of motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.” Ariz. R. Evid. 404(b). When acts 

are admitted pursuant to Rule 404(b), the proponent must prove by clear 

and convincing evidence the acts were committed by the defendant. State 

v. Terrazas, 189 Ariz. 580, 582 (1997). Generally, the evidence must be (1) 

admitted for a proper purpose under Rule 404(b), (2) relevant to that 

purpose, (3) not outweighed by unfair prejudice, and (4) addressed in a 

limiting instruction if requested. Id. at 583.
STATE v. SUTHERLAND

Decision of the Court

6

¶16 Here, the State mentioned Sutherland’s alleged shoplifting, 

but did so for a proper, non-propensity purpose. The State gave notice that 

shoplifting would be mentioned at trial. The State never argued Sutherland 

was convicted of or committed shoplifting—only that there was an incident 

at Kmart and Sutherland was a suspect. Lieutenant Cesena testified that 

Sutherland matched the shoplifting suspect’s description and that 

Sutherland asked whether Cesena stopped him because of “the Kmart 

incident.” Thus, the State met its burden to show by clear and convincing 

evidence that Sutherland was indeed involved in an incident at Kmart. The 

trial court allowed the references because “[i]t was the reason that law 

enforcement got involved.” This is a proper, relevant, non-propensity 

purpose. See State v. Cook, 150 Ariz. 470, 472 (1986) (“Explanation of events 

which occur before and after a crime can be admitted in order that the full 

story be understood.”). Further, Sutherland was not prejudiced by the 

evidence’s admission: “shoplifting” was never directly mentioned at trial, 

and indirect references to the incident were only made to explain how 

Lieutenant Cesena became involved. Finally, the court gave a limiting 

instruction at Sutherland’s request. We therefore find the trial court did not 

abuse its discretion in allowing references to alleged shoplifting.

B. Booking Photo

¶17 Sutherland argues the court erred in admitting a “mug shot” 

to establish identity when he failed to attend trial. We review for abuse of 

discretion. State v. McCutchen, 162 Ariz. 54, 58 (1989).

¶18 The introduction of a mug shot may be error when it infers a 

prior arrest record. State v. Kelly, 111 Ariz. 181, 189 (1974). However, mug 

shots may be admitted to establish identity when a jury could conclude the 

photo was taken when defendant was arrested in the present case. 

McCutchen, 162 Ariz. at 58.

¶19 Here, the photo was relevant to establish Sutherland’s 

identity when he failed to appear for trial. The photo included the words 

“Mohave County Sheriff’s Office” above the photo, Sutherland’s name and 

booking number immediately below the photo, as well as the following 

statement: “The above photo is a true and exact copy of the booking 

photograph for SUTHERLAND, JOSEPH THOMAS DOB: 2/11/1981, as on 

file with the Mohave County Sheriff’s Office.” The booking photo was

signed by a Sheriff’s Office employee and notarized on September 20, 2018, 

one month before trial. In State v. Cumbo, 9 Ariz. App. 253, 256 (1969), we 

reasoned that the “absen[ce] [of] an explanation that the picture was taken 

at [a] defendant’s arrest on the charge involved, intimates to the jury that 
STATE v. SUTHERLAND

Decision of the Court

7

[the] defendant had a prior criminal record,” and, therefore, its admission 

into evidence may constitute error. However, our supreme court more 

recently reasoned that if a jury “could well conclude that police took [the

photograph] when defendant was arrested in this case,” and the 

photograph is otherwise relevant to the issue of identity, “its admission [is]

not unfairly prejudicial” and no error exists. McCutchen, 162 Ariz. at 58

(emphasis added). Here, the only date on the photo is well after 

Sutherland’s arrest in the present case and only one month before trial.

Thus, although the better course of action may have been to introduce either 

a clean photo or one with an explanation that the photo was taken at 

Sutherland’s arrest in the present matter, the photo’s admission was not 

unfairly prejudicial because the jury could well conclude the photograph 

admitted into evidence was taken in conjunction with Sutherland’s arrest 

in this case. See id.

IV. Prosecutorial Misconduct

¶20 Sutherland alleges the prosecutor committed misconduct by 

purportedly mentioning facts not in evidence during the State’s closing 

argument. Specifically, Sutherland challenges the prosecutor’s references to 

evidence of (1) drugs, (2) cell phones, and (3) cash.

¶21 To establish prosecutorial misconduct, a defendant must 

show the misconduct “so infected the trial with unfairness as to make the 

resulting conviction a denial of due process,” and prove the misconduct 

was “so pronounced and persistent that it permeates the entire atmosphere 

of the trial.” State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (quoting State v. 

Hughes, 193 Ariz. 72, 79, ¶ 26 (1998)).

¶22 Here, during the trial, the court properly admitted evidence 

of drugs and a photograph showing three cell phones. Therefore, despite 

inconsistent witness testimony potentially affecting the weight of the

evidence, the prosecutor was indeed referring to facts in evidence during 

his closing argument. Although there was no evidence of cash presented at 

trial, the prosecutor only mentioned cash in his closing argument to correct 

his opening statement and clarify that no evidence of cash was presented at 

trial.2 The prosecutor, therefore, did not commit misconduct in his closing 

argument.

2 Sutherland challenges this quote by the prosecutor: “I mentioned during 

the [opening] statements that $140 was found in Joseph’s wallet. Now that
STATE v. SUTHERLAND

Decision of the Court

8

V. Consideration of Aggravating Factors

¶23 Sutherland argues the trial court erred in considering two 

prior felony convictions as aggravating factors in sentencing. Because 

Sutherland did not object at trial, we review for fundamental error, 

requiring Sutherland to establish both that fundamental error exists and the 

error caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20 

(2005).

¶24 Courts may not use prior convictions to enhance or aggravate 

a defendant’s sentence without properly establishing the convictions’ 

existence. State v. Morales, 215 Ariz. 59, 61, ¶ 6 (2007). Here, however, the 

court did not enhance or aggravate Sutherland’s sentence. The court 

correctly indicated that because there was no aggravation hearing, “the 

most [the court] could impose in this case would be a presumptive 

sentence.” Thus, even if it was improper for the court to consider the prior 

convictions as aggravating factors, because the court did not impose a 

sentence greater than the presumptive term, there was no error. See State v. 

Johnson, 210 Ariz. 438, 442, ¶ 13 (App. 2005) (finding no error when the trial 

court considered an aggravating circumstance not found by the jury

because it did not rely on that circumstance to increase the defendant’s 

punishment beyond the presumptive term). Finally, Sutherland has failed 

to establish prejudice in the court’s consideration of the prior felonies. 

Indeed, rather than objecting to considerations of the prior convictions at 

sentencing, Sutherland was the first to mention them. The court therefore 

did not err in considering Sutherland’s prior felony convictions at 

sentencing and imposing the presumptive sentence.

CONCLUSION

¶25 For the foregoing reasons, we affirm Sutherland’s convictions 

and sentences.

testimony never came out at trial. No one ever mentioned anything about 

any money.”