State v. Lincourt ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CAROL ANN LINCOURT, Appellant.
No. 1 CA-CR 18-0290
FILED 7-25-2019
Appeal from the Superior Court in Navajo County
No. S0900CR201501023
The Honorable Dale P. Nielson, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee
DM Cantor, Phoenix
By David M. Cantor, Christine Whalin, Sabra M. Barnett, Jason Karpel
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.
STATE v. LINCOURT
Decision of the Court
W I N T H R O P, Judge:
¶1 Carol Ann Lincourt appeals her convictions and sentences for
transportation of a dangerous drug for sale (methamphetamine),
possession of a dangerous drug for sale, and misconduct involving
weapons. Lincourt argues the trial court (1) erred in denying her motions
to suppress; (2) allowed prosecutorial and juror misconduct, resulting in an
unfair trial; (3) erred in admitting evidence; and (4) improperly considered
an aggravating factor at sentencing. Lincourt also argues that pervasive
law enforcement “impropriety” requires reversal. For the following
reasons, we vacate her conviction for possession of a dangerous drug for
sale, but otherwise affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 In the early morning of October 16, 2015, Navajo County
Sheriff’s Office Deputy Watson stopped the vehicle Lincourt was driving
near Heber. After asking Lincourt for her license and registration, Deputy
Watson ordered Lincourt to exit her vehicle and stated he was issuing her
a warning for speeding. Once out of the vehicle, Lincourt appeared
nervous, was sweating profusely, and repeatedly looked back at her
vehicle. When asked whether she had weapons or illicit drugs in her
vehicle, Lincourt stated she did not, and the deputy proceeded to run
Russell, his drug-detection dog, around the perimeter of Lincourt’s vehicle
“[t]o conduct a free air sniff.” Trained to identify marijuana, cocaine,
heroin, and methamphetamine, the dog alerted twice near the vehicle’s
driver’s side. Deputy Watson searched the interior of the vehicle, and
behind a panel near the left rear wheel, he found approximately 120 grams
of methamphetamine wrapped in a plastic bag. He also found a handgun
and more than $1,000 in a briefcase in the passenger area.
¶3 The State charged Lincourt with one count each of
transportation of a dangerous drug for sale, a class two felony; possession
of a dangerous drug for sale, also a class two felony; and misconduct
involving weapons, a class four felony. Challenging the lawfulness of the
traffic stop and Deputy Watson’s search of her vehicle, Lincourt moved
before trial to suppress the evidence the deputy had obtained. Following
an evidentiary hearing, the court denied Lincourt’s motions.
1 We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Lincourt. See State v.
Kiper, 181 Ariz. 62, 64 (App. 1994).
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¶4 The jury found Lincourt guilty as charged. The jury also
determined the State proved Lincourt committed the drug offenses with the
expectation of pecuniary gain. The court imposed concurrent, presumptive
terms of imprisonment, the longest of which was ten years. Lincourt timely
appealed, and we have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
ANALYSIS
I. Motions to Suppress
¶5 Lincourt makes several arguments challenging the trial
court’s denial of her motions to suppress. She argues Deputy Watson
lacked reasonable suspicion to stop her for speeding, the deputy unlawfully
extended the stop after she refused his request to search her vehicle, and
the dog sniff and alert were not sufficiently reliable to create probable cause
to support the warrantless search.
¶6 In reviewing the denial of a motion to suppress, we review
only the evidence submitted at the suppression hearing, State v. Blackmore,
186 Ariz. 630, 631 (1996), and view the facts in the light most favorable to
affirming, State v. Driscoll, 238 Ariz. 432, 433, ¶ 2 (App. 2015) (citation
omitted). We defer to the trial court’s determinations of the witnesses’
credibility and the reasonableness of the inferences the court drew, but we
review the court’s legal decisions de novo. State v. Gonzalez–Gutierrez, 187
Ariz. 116, 118 (1996). We will not reverse a ruling on a motion to suppress
absent clear and manifest error, a standard that has been equated with
abuse of discretion. State v. Newell, 212 Ariz. 389, 396 n.6, ¶ 22 (2006).
¶7 Although “[a]n investigatory stop of a motor vehicle
constitutes a seizure under the Fourth Amendment,” Gonzalez-Gutierrez,
187 Ariz. at 118 (citation omitted), an officer needs only reasonable
suspicion that the driver has committed an offense to stop a vehicle. See
Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Reasonable suspicion exists
when the “totality of the circumstances” provides “a particularized and
objective basis for suspecting the particular person” has violated the law.
See Gonzalez-Gutierrez, 187 Ariz. at 118 (quoting United States v. Cortez, 449
U.S. 411, 417-18 (1981)); accord State v. O’Meara, 198 Ariz. 294, 295, ¶ 7 (2000)
(quoting Cortez, 449 U.S. at 417-18). An officer is not required to determine
a violation has occurred before stopping a vehicle for further investigation.
See State v. Vera, 196 Ariz. 342, 343-44, ¶ 6 (App. 1999); A.R.S. § 28-1594 (“A
peace officer . . . may stop and detain a person as is reasonably necessary to
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investigate an actual or suspected violation of [the traffic laws].” (emphasis
added)).
¶8 First, Lincourt argues Deputy Watson lacked reasonable
suspicion to stop her for speeding. Deputy Watson testified at the
suppression hearing that, before stopping Lincourt, his radar indicated she
was driving fifty miles per hour in a forty-five mile-per-hour posted speed
zone. Deputy Watson also explained that he calibrated the radar before his
shift that day, as he typically does before every shift. The trial court noted
that Lincourt presented expert testimony that her speed at the time was
approximately forty-five miles per hour. Nonetheless, the court found
Deputy Watson had reasonable suspicion to stop Lincourt, and even
assuming arguendo the deputy’s radar device may not have been entirely
accurate, on this record the deputy could rely on a good faith belief in the
device’s accuracy. Because Deputy Watson had a “particularized and
objective basis” for suspecting Lincourt was speeding, the trial court did
not err in finding he had reasonable suspicion to justify the traffic stop. See
generally State v. Ossana, 199 Ariz. 459, 460-61, ¶¶ 3, 8 (App. 2001), declined
to follow in part by Raney v. Lindberg, 206 Ariz. 193, 195, 199-200, ¶¶ 1, 18-22
(App. 2003).
¶9 Second, Lincourt argues Deputy Watson impermissibly
prolonged the traffic stop by ordering her to exit her vehicle as he issued
her a warning, asked her questions including a request to search her
vehicle, and conducted the dog sniff. In general, an officer’s questions
during a traffic stop do not violate the Fourth Amendment if the
questioning does not unreasonably prolong the stop. See State v. Teagle, 217
Ariz. 17, 23, ¶ 24 (App. 2007); but see Rodriguez v. United States, 135 S. Ct.
1609, 1614-16 (2015) (holding that a stop is unlawfully prolonged when a
law enforcement officer, without reasonable suspicion, extends an
otherwise-completed traffic stop beyond its mission to conduct a dog sniff).
Thus, as happened in this case, an officer may ask questions directly related
to the stop, such as requesting the driver’s license, registration, and proof
of insurance, and determining whether there are any outstanding warrants
against the driver. See State v. Paredes, 167 Ariz. 609, 611 (App. 1991);
Rodriguez, 135 S. Ct. at 1615. Further, any time an officer has lawfully
detained a motorist, the officer may ask questions related to officer safety
and order the driver (and any passengers) to get out of the car for officer
safety reasons. See Newell v. Town of Oro Valley, 163 Ariz. 527, 529 (App.
1990); Rodriguez, 135 S. Ct. at 1614, 1616. And certainly, we believe an officer
may take the time to answer questions asked of the officer by the driver (or
any passengers), as happened in this case. Cf. State v. Sweeney, 224 Ariz.
107, 112, ¶ 17 (App. 2010) (recognizing that an officer may prolong a traffic
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search if the encounter becomes consensual). Further, even absent
reasonable suspicion, an officer may ask for consent to search the vehicle or
ask questions unrelated to the traffic stop if the officer’s questions do not
extend the time reasonably required to complete the traffic stop’s mission.
See Rodriguez, 135 S. Ct. at 1616; see also Wilkes v. State, 774 A.2d 420, 437-38
(Md. 2001) (finding no constitutional violation when an officer with a drug-
sniffing dog arrived at the scene of a traffic stop made by another officer
and conducted a dog sniff before the traffic stop was completed). However,
once an officer has completed the mission of the traffic stop prior to
conducting a dog sniff, any additional detention for the purpose of
conducting an unconsented-to dog sniff, absent reasonable suspicion, is
unconstitutional. See Rodriguez, 135 S. Ct. at 1616; Driscoll, 238 Ariz. at 434,
¶ 10.
¶10 In this case, evidence from the suppression hearing supports
the trial court’s conclusion that Deputy Watson had reasonable suspicion
to detain Lincourt for the limited purpose of permitting Russell to sniff the
outside of Lincourt’s vehicle. The evidence established that Deputy
Watson, at the time of the stop, knew a drug task force was tracking
Lincourt’s travels in her vehicle via a GPS device. Thus, after Deputy
Watson saw Lincourt’s suspected traffic violation and stopped her, the
deputy’s subsequent confirmation of her identity, combined with his
knowledge that she was the target of a drug investigation, see State v.
Lawson, 144 Ariz. 547, 553 (1985) (applying the collective knowledge
doctrine), and his observation of her numerous nervous behaviors, which
suggested that criminal activity might be afoot, established the necessary
reasonable suspicion to conduct the dog sniff. The trial court therefore did
not err in denying Lincourt’s motion to suppress on this basis. See
Rodriguez, 135 S. Ct. at 1616-17 (remanding to address whether reasonable
suspicion of criminal activity justified detaining Rodriguez beyond
completion of the traffic infraction investigation). And once Russell alerted
to the presence of drugs, Deputy Watson had probable cause to search
Lincourt’s vehicle, see State v. Weinstein, 190 Ariz. 306, 310-11 (App. 1997),
where he discovered the contraband leading to her arrest.
¶11 Third, Lincourt argues the canine sniff of her vehicle “was not
sufficiently reliable for probable cause” to support Deputy Watson’s
subsequent warrantless search because the deputy did not maintain records
memorializing the results of Russell’s field deployments.2 We reject
2 Lincourt, for the first time on appeal, also summarily asserts the sniff
was unreliable because Russell “did not alert consistently and did not alert
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Lincourt’s argument. As the United States Supreme Court has held, a log
indicating a dog’s field performance results is not necessary to establish an
alert’s reliability; instead, “evidence of a dog’s satisfactory performance in
a certification or training program can itself provide sufficient reason to
trust his alert.” Florida v. Harris, 568 U.S. 237, 246 (2013). Here, the State
disclosed Deputy Watson’s and Russell’s certification and training history,
which apparently included successful training sessions three days before
the stop in this case and one month thereafter. Based on Harris and the
evidence of Russell’s certification and training history, the trial court did
not err in denying Lincourt’s motion to suppress based on Russell’s
purported unreliability.
II. Asserted Prosecutorial Misconduct
¶12 Before voir dire commenced, Lincourt invoked the rule of
exclusion of witnesses. See Ariz. R. Crim. P. 9.3(a)(1); see also Ariz. R. Evid.
615 (excluding witnesses “so that they cannot hear other witnesses’
testimony”). Immediately after voir dire was completed, and the jury left
the courtroom for the lunch recess, the following transpired:
THE COURT: Is that one of your witnesses?
[THE PROSECUTOR]: It is.
[DEFENSE COUNSEL]: This is a friend.
THE COURT: No, the officer.
[THE PROSECUTOR]: Yes, Deputy Watson.
THE COURT: The exclusion actually includes [law
enforcement witnesses] being excluded during the jury
selection process, but apparently you didn’t know that. I
don’t see that being a problem now but obviously he will need
to be excused.
to the correct area of [the] vehicle.” Lincourt fails to develop any argument
to support this assertion. We therefore do not address it. See State v.
Lindner, 227 Ariz. 69, 70 n.1, ¶ 3 (App. 2010) (recognizing that an appellate
court will not address arguments that are not developed in a defendant’s
opening brief).
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[THE PROSECUTOR]: I assumed it was just for testimony,
Your Honor.
THE COURT: No, it’s for the whole process.
[THE PROSECUTOR]: Okay.
¶13 Lincourt argues the prosecutor engaged in misconduct by
allowing Deputy Watson to remain in the courtroom during voir dire
despite Lincourt’s invocation of the rule excluding witnesses.3 Because
Lincourt failed to object at trial, we review this issue for fundamental error.
See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).
A defendant establishes fundamental error by showing that
(1) the error went to the foundation of the case, (2) the error
took from the defendant a right essential to his defense, or (3)
the error was so egregious that he could not possibly have
received a fair trial. If the defendant establishes fundamental
error under prongs one or two, he must make a separate
showing of prejudice, which also “involves a fact-intensive
inquiry.” If the defendant establishes the third prong, he has
shown both fundamental error and prejudice, and a new trial
must be granted. The defendant bears the burden of
persuasion at each step.
State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018) (internal citations omitted).
¶14 In reviewing a claim of prosecutorial misconduct, our “focus
is on the fairness of the trial, not the culpability of the prosecutor.” State v.
Bible, 175 Ariz. 549, 601 (1993) (citations omitted), possible abrogation in part
recognized by McKinney v. Ryan, 813 F.3d 798, 815-18 (9th Cir. 2015).
“Prosecutorial misconduct ‘is not merely the result of legal error,
negligence, mistake, or insignificant impropriety, but, taken as a whole,
amounts to intentional conduct which the prosecutor knows to be improper
and prejudicial . . . .’“ State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11 (App. 2007)
(quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)). “To prevail on
a claim of prosecutorial misconduct, a defendant must demonstrate that the
prosecutor’s misconduct ‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.’“ State v. Hughes, 193 Ariz.
72, 79, ¶ 26 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)).
3 Deputy Watson was not the State’s case agent in this matter.
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¶15 A violation of Arizona Rule of Criminal Procedure 9.3(a) does
not automatically require reversal. State v. Hadd, 127 Ariz. 270, 277 (App.
1980). Generally, “[t]he admission of testimony after a rule violation is a
matter of discretion with the trial judge, and absent an abuse of that
discretion and subsequent prejudice to [the] appellant, we will not
interfere.” Id. (citing State v. Sowards, 99 Ariz. 22, 26 (1965)); accord State v.
Jones, 185 Ariz. 471, 483 (1996), possible abrogation in part recognized by
McKinney, 813 F.3d at 815-18.
¶16 Lincourt maintains Deputy Watson’s presence during voir
dire prejudiced her because “the potential jurors may have recognized or
known Deputy Watson, [and he] may have helped in jury selection.”
Lincourt’s argument in this regard is based on pure speculation and is
directly refuted in part by the record, which shows no prospective jurors
indicated during voir dire that they knew Deputy Watson. When
reviewing for fundamental error, “[w]e will not reverse a conviction based
on speculation or unsupported inference.” State v. Diaz, 223 Ariz. 358, 361,
¶ 13 (2010) (citations omitted); see also State v. Doerr, 193 Ariz. 56, 61, ¶ 18
(1998) (declining to “indulge in [] guesswork” based on the defendant’s
speculation that the remarks of two prospective jurors during voir dire
tainted the entire panel); State v. Munninger, 213 Ariz. 393, 397, ¶ 14 (App.
2006) (holding that the defendant may not rely on speculation unsupported
by the record to show prejudice).
¶17 As another instance of purported misconduct, Lincourt refers
to the prosecutor’s questioning of Deputy Deets. Deputy Deets testified
“generally about drug trafficking” in Navajo County; he was not involved
in the investigation conducted in this case. Lincourt argues the prosecutor
improperly elicited drug courier profile testimony from Deputy Deets and
again committed misconduct by referring to the testimony in closing
argument as substantive evidence of guilt.
¶18 Lincourt specifically challenges the following testimony:
In the local areas we tend to see people traveling late at night,
early [] in the morning, while it’s still dark, due to the lack of
manpower with our deputies. Our local people know exactly
what our shifts are, they tend to figure it out, and so they’ll
tend to operate when we’re not on.
Referring to this testimony, the prosecutor argued in closing as follows:
The time of day of travel is very significant. You heard
Deputy Deets testify that when drugs are going to a local area,
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often times somebody will transport the drugs at a time of day
when there’s going to be less law enforcement out. That
differs from on I-40, where someone will transport during the
day, where there’s more traffic and a better likelihood of
sneaking by law enforcement without getting caught. When
you are going to a local area you are transporting midnight,
1:00, 2:00, 3:00 in the morning because you know there’s less
law enforcement out and you have a better chance.
. . . She was doing this because she wanted to get by--
get from point A to point B without being detected, and she
wanted to make sure that her drugs safely arrived in Pinetop-
Lakeside.
¶19 The Arizona Supreme Court has condemned the use of profile
evidence as substantive evidence of guilt. See State v. Lee, 191 Ariz. 542, 545,
¶ 12 (1998). In Lee, the court described drug courier profile evidence as an
“informal,” “abstract,” and “loose assortment of general, often
contradictory, characteristics and behaviors used by police officers to
explain their reasons for stopping and questioning persons about possible
illegal drug activity.” Id. at 544, ¶ 10 (citations omitted). The court noted
that admission of profile evidence creates a high risk that a jury will convict
a defendant “not for what he did, but for what others are doing.” Id. at 545,
¶ 12 (quoting State v. Cifuentes, 171 Ariz. 257, 257 (App. 1991)).
¶20 In Lee, there was little evidence other than the profile to
connect the defendant to the crime. Id. at 546, ¶ 19. In contrast, ample
evidence connects Lincourt to the methamphetamine, and the challenged
testimony did not create an impermissible drug courier profile. See State v.
Gonzalez, 229 Ariz. 550, 554, ¶ 13 (App. 2012) (“Unlike drug courier profile
evidence, modus operandi evidence is . . . properly admitted to assist the jury
in understanding the modus operandi of a drug trafficking organization.”
(citation omitted)). The testimony was admissible not only to generally aid
the jury in its understanding of the evidence, see State v. Carreon, 151 Ariz.
615, 617 (App. 1986), but to refute Lincourt’s defense that she did not know
the drugs were in her vehicle. Furthermore, Deputy Deets’ testimony was
based on his formal training and experience. When counsel lays the proper
foundation, a law enforcement officer may testify regarding “the general
activities and methods of street-level narcotics dealers.” Id.¶21 Further, once the trial court admitted the evidence, the
prosecutor could address it in closing argument and urge the jury to draw
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reasonable inferences and reach specific conclusions based on that
evidence. See Bible, 175 Ariz. at 602. No misconduct occurred.
III. Deputy Watson’s Unsolicited Testimony
¶22 As Deputy Watson testified on direct examination about the
traffic stop and his growing suspicions that Lincourt was engaged in illegal
activity, the following colloquy with the prosecutor occurred:
Q. Hold on, let me stop you really quick. Some of those
indicators you noticed happened after she exited the vehicle;
is that fair?
A. Yes, yes.
Q. So after you noticed all of the indicators then what did you
do?
A. I asked for consent to search the vehicle.
Q. Okay. At some point did you pull out your dog?
A. Yes, sir, I did.
Q. Why did you do that?
A. To conduct a free air sniff of the vehicle.
¶23 Lincourt later moved for a mistrial based on Deputy Watson’s
statement that he asked for consent to search Lincourt’s vehicle. The trial
court denied the motion, noting the jury did not hear that Lincourt refused
a search. The court offered to instruct the jury not to consider Deputy
Watson’s remark, but Lincourt asked the court “to do nothing” to avoid
emphasizing the testimony. The State also introduced into evidence a video
recording of the stop captured by Deputy Watson’s body camera. The
video was edited to delete the deputy’s request for consent to search
Lincourt’s vehicle.
¶24 Later in the day, sometime after Deputy Watson had
completed his testimony, Juror 8 informed the trial court that, during a
recess, Jurors 5 and 7 had discussed the redacted video and Deputy
Watson’s testimony regarding his request to search Lincourt’s vehicle. The
court separately questioned all the jurors about what transpired and
dismissed Juror 7. Lincourt again unsuccessfully moved for a mistrial.
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¶25 On appeal, Lincourt argues the court erred in denying her
motions for mistrial. As for Deputy Watson’s unsolicited comment
regarding his request to conduct a search, Lincourt contends that, “[p]aired
with the sloppy bodycam redaction, the statement and resulting inference
went to the heart of the ultimate issue and impermissibly undermined [her]
lack-of-knowledge defense.” We reject this argument because the jury
never learned that Lincourt refused Deputy Watson’s request. Lincourt
merely speculates that the jury concluded she had refused consent; on this
record, the jury could have just as easily concluded she acquiesced. The
trial court did not abuse its discretion in denying Lincourt’s motions for
mistrial. See State v. Walton, 159 Ariz. 571, 581 (1989) (recognizing the trial
court has broad discretion in deciding whether to grant a mistrial), overruled
on other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002).
¶26 Asserting the trial court’s removal of Juror 7 was insufficient
to remove the “taint” of the improper discussion that juror had with Juror
5 before deliberations, Lincourt argues the trial court erred in denying her
mistrial motion based on juror misconduct. “[J]uror misconduct warrants
a new trial if the defense shows actual prejudice or if prejudice may be fairly
presumed from the facts.” State v. Miller, 178 Ariz. 555, 558 (1994) (emphasis
and citation omitted). Absent an abuse of discretion, we will not reverse a
trial court’s decision to grant or deny a new trial based on alleged jury
misconduct. Jones, 185 Ariz. at 484.
¶27 We find no abuse of discretion. As Lincourt concedes, the
trial court questioned all the jurors individually about the discussion
between two of their colleagues. All but Jurors 5 and 7 explained they either
did not overhear the conversation, or if they did, they could not remember
specifically what was discussed. All but Juror 7 assured the court they
could remain impartial. Thus, although two of the jurors engaged in
misconduct, see Ariz. R. Crim. P. 24.1(c)(3)(A) (providing the court may
grant a new trial if one or more jurors committed misconduct by receiving
evidence not admitted during trial), no apparent prejudice resulted.
IV. Detective Davis’ Testimony
¶28 Over Lincourt’s objection, Detective Davis testified that
before Deputy Watson pulled Lincourt over, he, Detective Davis, began
following Lincourt in Payson, where she parked in a casino parking lot for
approximately thirty minutes before entering the casino. After a few
minutes inside the casino, Lincourt returned to her vehicle and resumed
driving toward Heber. Detective Davis followed Lincourt from the casino
until Deputy Watson initiated the traffic stop.
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¶29 Reiterating the basis for her objection at trial, Lincourt argues
Detective Davis’ testimony improperly implied Lincourt was under
surveillance, a fact the trial court initially precluded in the State’s case-in-
chief. Lincourt contends the probative value of the testimony was
substantially outweighed by unfair prejudice. See Ariz. R. Evid. 403. We
disagree.
¶30 Detective Davis testified that when he watched Lincourt at
the casino, she was alone and the “sole occupant” of her vehicle. He also
testified that “nobody came from or went from [sic] the vehicle.” Thus, his
observations were relevant to show Lincourt was the only person to access
her vehicle shortly before Deputy Watson located the methamphetamine.
Lincourt’s argument that Detective Davis’ testimony improperly indicated
she was under surveillance is insufficient to create reversible error. The
trial court could reasonably conclude the testimony was not unfairly
prejudicial. See State v. Schurz, 176 Ariz. 46, 52 (1993) (noting that unfair
prejudice under Rule 403 “‘means an undue tendency to suggest decision
on an improper basis,’ Fed. R. Evid. 403, Advisory Committee Note, such
as emotion, sympathy or horror”). The court therefore did not abuse its
discretion. See State v. Canez, 202 Ariz. 133, 153, ¶ 61 (2002) (“Because the
trial court is best situated to conduct the Rule 403 balance, we will reverse
its ruling only for abuse of discretion.” (citing State v. Roscoe, 184 Ariz. 484,
493 (1992)), superseded on other grounds by Ariz. R. Crim. P. 16.2(b) as
recognized in State v. Valenzuela, 239 Ariz. 299, 303 n.1, ¶ 11 (2016).
Moreover, given the overwhelming evidence of Lincourt’s guilt, we agree
with the State that any possible error in the admission of this evidence was
harmless. See State v. Lizardi, 234 Ariz. 501, 506, ¶ 19 (App. 2014).
V. Aggravating Factor
¶31 Lincourt argues the trial court erred in using pecuniary gain
as an aggravating factor. This argument is meritless because the court
imposed presumptive sentences; thus, the court did not rely on the factor
at sentencing. See generally State v. Johnson, 210 Ariz. 438, 441-42, ¶¶ 10-13
(App. 2005) (finding no error when the court considered an aggravating
factor not found by the jury but sentenced the defendant to presumptive
terms); see also State v. Risco, 147 Ariz. 607, 610 (App. 1985) (concluding the
trial court did not err in imposing a presumptive sentence even assuming
it considered an impermissible factor when the decision to mitigate or
aggravate was discretionary).
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VI. Deprivation of Due Process
¶32 Lincourt contends Deputy Watson’s “misconduct” during the
traffic stop and at trial “entirely deprived” her of due process, essentially
repeating arguments she has otherwise made. Thus, we do not again
consider them. To the extent Lincourt suggests Deputy Watson’s actions
cumulatively amounted to reversible error, she is incorrect as a matter of
law. See, e.g., State v. Hughes, 193 Ariz. 72, 78-79, ¶ 25 (1998) (reiterating the
general rule of not recognizing cumulative error except for claims involving
prosecutorial misconduct).
VII. Possession of a Dangerous Drug for Sale
¶33 As the State correctly notes, Lincourt’s convictions for
transportation of a dangerous drug for sale and possession of a dangerous
drug for sale are based on the same “corpus” of methamphetamine found
in her vehicle. Under these circumstances, possession for sale is a lesser-
included offense of transportation for sale, and the convictions for both
offenses therefore violate double jeopardy principles. See State v. Eagle, 196
Ariz. 27, 31-32, ¶ 21 (App. 1998) (recognizing that double jeopardy may be
implicated when “the same act or transaction” violates two distinct criminal
statutes); State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 12 (App. 1998)
(“[W]hen the charged possession for sale is incidental to the charged
transportation for sale, it is a lesser-included offense, for a person cannot
commit the transportation offense without necessarily committing the
possession offense.”). Accordingly, we vacate the conviction for possession
of a dangerous drug for sale.
CONCLUSION
¶34 Lincourt’s conviction for possession of a dangerous drug for
sale is vacated. Her remaining convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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