State v. Mendez
| Decision Date | 04 August 2014 |
| Docket Number | No. 2 CA-CR 2013-0316,2 CA-CR 2013-0316 |
| Parties | THE STATE OF ARIZONA, Appellee, v. CATHERINE CECEL MENDEZ, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Howard Hantaan, Judge
AFFIRMED AS MODIFIED
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Joseph L. Parkhurst, Assistant Attorney General, Tucson Counsel for Appellee
Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Appellant
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred.
¶1 Following a jury trial, Catherine Mendez was convicted of pandering, receiving the earnings of a prostitute, and transporting another person for prostitution or other immoral purposes. The trial court suspended the imposition of sentence and placed Mendez on concurrent four-year terms of probation. On appeal, Mendez challenges two of the court's evidentiary rulings, the sufficiency of the evidence to support her convictions, and the constitutionality of A.R.S. § 13-3210. For the following reasons, we affirm her convictions, as well as the imposition of probation as modified.
¶2 We view the facts in the light most favorable to sustaining Mendez's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In July 2012, Tucson police officers investigated an online advertisement for an escort on a classified advertisements website because the female depicted in a photograph in the ad appeared to be younger than eighteen years of age. Posing as a customer, an undercover officer dialed the telephone number on the ad and spoke with a female, who asked if he was interested in half an hour or an hour, directed him to an area on the south side of Tucson, and quoted him a price of $100. The officer went to the location as instructed and was then directed to room 209 at a nearby motel.
¶3 J.G.—the same woman who appeared in the ad— answered the door wearing only a t-shirt.1 According to the officer,J.G. "was ready to . . . commit a sex act immediately." After paying J.G. $100 in bills that earlier had been photocopied, the officer made an excuse to return to his car "before [they] started." Shortly after the officer left, W.H. entered the room, paid J.G. $70 in cash, and had sex with her. Upon leaving the room, W.H. was detained by officers. Surveillance officers then observed Mendez exit room 207 and enter room 209.
¶4 At that time, uniformed officers knocked on the door of room 209 and found J.G. and Mendez inside. Mendez had $170 cash in her bra. By matching the serial numbers of the currency with the photocopies, the officers confirmed that the cash included the $100 the undercover officer had paid J.G. Officers also confiscated from Mendez a cell phone, which she stated "was broken" because she had "lost her SIM card earlier in the day."2 In room 207, officers found Mendez's husband, Jamari Carter, their two children, and C.D., another adult female. Officers later determined that Mendez's cell phone was associated with the telephone number in the online ad.
¶5 Mendez and Carter were charged with one count each of pandering and receiving the earnings of a prostitute, and Mendez also was charged with transporting another person for prostitution or other immoral purposes. They were tried together, and a jury convicted them as charged. Mendez was placed on a term of probation as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶6 Mendez contends the trial court erred by admitting evidence of her cell phone number without sufficient foundation.
We review a ruling on whether an adequate foundation exists for the admission of evidence for an abuse of discretion. State v. McCray, 218 Ariz. 252, ¶ 8, 183 P.3d 503, 507 (2008).
¶7 Because Mendez's cell phone lacked a SIM card, a detective with the Tucson Police Department contacted the service provider, AT&T. The detective gave AT&T the IMEI number,3 located on the cell phone, and an AT&T representative provided the detective with two additional numbers. Using those two numbers, a Tucson police lab technician created a forensic SIM card. With the forensic SIM card, the detective then downloaded the data stored on Mendez's phone, including the contact list, incoming and outgoing call history, and text messages.
¶8 The state planned to call an AT&T representative as a witness at trial to "tie the phone number [in the ad] to the I.M.E.I. number" of Mendez's phone. However, the trial court precluded the witness based on the state's late disclosure. The court nonetheless ruled that evidence of the phone number was admissible if the state laid the "appropriate circumstantial foundation." At trial, a detective explained the process used to produce the forensic SIM card and to download the contents of Mendez's cell phone. He also testified that Mendez's cell phone was "the phone where all of the calls from . . . [the undercover officer] were going."
¶9 Rule 901(a), Ariz. R. Evid., sets forth the requirements for authenticating and identifying evidence and "governs the sufficiency of an evidentiary foundation." State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). "An item is authenticated when there is 'evidence sufficient to support a finding that the [item] . . . is what [the] proponent claims [it is].'" McCray, 218 Ariz. 252, ¶ 9, 183 P.3d at 507, quoting Ariz. R. Evid. 901(a). "[A]uthentication can be accomplished by circumstantial evidence." State v. Best, 146 Ariz. 1, 2, 703 P.2d 548, 549 (App. 1985), citing Ariz. R. Evid. 901(b)(4).
¶10 Here, there was sufficient foundation for the admission of Mendez's cell phone number. After officers confiscated the cell phone from Mendez, she reported that she had "lost her SIM card." With assistance from AT&T, a lab technician with the Tucson Police Department created a forensic SIM card. Then, using the forensic SIM card, a detective downloaded the contents of the phone, including the call history revealing the calls placed by the undercover officer to the telephone number listed in the online ad. The trial court therefore did not abuse its discretion by admitting the evidence. See McCray, 218 Ariz. 252, ¶ 8, 183 P.3d at 507.
¶11 In a related argument, Mendez maintains her Confrontation Clause rights were violated because she could not cross-examine the AT&T representative about the two numbers provided to the detective for creation of the forensic SIM card. Because Mendez failed to raise this argument below, she has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v. Alvarez, 213 Ariz. 467, ¶ 7, 143 P.3d 668, 670 (App. 2006) (); see also State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683-84 (App. 2008) ().
¶12 The Confrontation Clause of the Sixth Amendment to the United States Constitution bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 54-55 (2004); see also State v. Bocharski, 218 Ariz. 476, ¶ 37, 189 P.3d 403, 413 (2008). A testimonial statement "is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 U.S. at 51 (internal citation omitted). The Supreme Court has further explained that testimonial statements include those "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52 (internal citation omitted).
¶13 Mendez points out that "the Tucson [p]olice could not create a forensic SIM card to access the text messages and call logs from that particular phone unless and until AT&T provided them with the information after police gave AT&T the IMEI number." And, she argues that she "was not able to confront and cross-examine the AT&T personnel regarding the process used to obtain the data they provided to police." In response, the state asserts the information provided by AT&T was nontestimonial and thus Mendez cannot show a Confrontation Clause violation.
¶14 In determining whether this evidence is testimonial, we find State v. Medina, 232 Ariz. 391, 306 P.3d 48 (2013), instructive. There, the state's medical examiner was allowed to testify at trial, using facts from an autopsy report prepared by another doctor. Id. ¶ 51. The other doctor did not testify at trial, and the autopsy report was admitted into evidence. Id. ¶¶ 51-52. Our supreme court rejected Medina's challenge to the admission of the report and the medical examiner's testimony regarding the report, concluding that the report was nontestimonial and, on that basis, that the medical examiner's testimony did not violate the Confrontation Clause. Id. ¶ 64. The court explained that, under the tests advanced by the Supreme Court, the autopsy report was not testimonial "because its purpose was not primarily to accuse a specified individual," id. ¶ 61, and it "does not certify that the report was correct or that [the examiner] followed the correct procedures," id. ¶ 63. The court also stated the medical examiner's testimony did not violate the Confrontation Clause under its own prior decisions. Id. ¶ 64, citing State v. Dixon, 226 Ariz. 545, ¶ 36, 250 P.3d 1174, 1182 (2011) (...
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