State v. Torres

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOAQUIN RAMIREZ TORRES, Appellant.

No. 1 CA-CR 25-0093

FILED 05-11-2026

Appeal from the Superior Court in Maricopa County
No. CR2023-000550-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Christine Davis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joshua Messick
Counsel for Appellant
STATE v. TORRES
Decision of the Court

MEMORANDUM DECISION

Judge Veronika Fabian delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Chief Judge Randall M. Howe joined.

F A B I A N, Judge:

¶1 Joaquin Ramirez Torres appeals his convictions for two
counts of possession of narcotic drugs for sale, arguing that (1) the superior
court’s admission out-of-court statements of a coconspirator violated the
Confrontation Clause of the United States Constitution and (2) his
convictions violated the Double Jeopardy Clause of both the Arizona and
United States Constitutions. Because statements made in furtherance of a
conspiracy are not testimonial by their nature, their admission did not
violate the Confrontation Clause. Furthermore, Torres’s two convictions
did not violate either Double Jeopardy Clause because they were based on
separate and distinct violations of the applicable statute.1 The convictions
are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 This Court views the facts in the light most favorable to
upholding the jury’s verdicts. State v. Duncan, 257 Ariz. 360, 366 ¶ 2 (App.
2024). In February 2023, an undercover law enforcement officer
communicated through Facebook with “Abraham” and negotiated a drug
transaction for 5,000 fentanyl pills. Abraham requested a phone number so
“ma boi can tell where to meet up” and explained “Yo la boi don’t know
that much English.” The officer provided Abraham the phone number of a
Spanish-speaking officer.

¶3 An unknown Spanish-speaking male then called the Spanish-
speaking officer from a Mexican phone number. The Mexican phone
number also texted a screenshot of a location in Phoenix for the drug
transaction (“Apartment 3”). During one of the calls, the Spanish-speaking

1 Because the Double Jeopardy Clause in the Arizona Constitution is
coextensive with the Double Jeopardy Clause of the United States
Constitution, this Court analyzes Double Jeopardy claims under both
constitutions identically. State v. Rios, 252 Ariz. 316, 320 ¶ 14 n.3 (App.
2021).

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male instructed the officer to meet someone wearing a sombrero and a
green shirt. None of the communications from the Mexican phone number
were retained or recorded. There was no investigation to trace the Mexican
phone number or the original Facebook account through which Abraham
communicated.

¶4 Based on that information, law enforcement investigated the
location. One officer saw Torres, wearing a green shirt and sombrero, exit
Apartment 3 and get into a black Chevrolet Tahoe. Another officer observed
Torres sitting in the Tahoe parked just south of Apartment 3. Later, after
backup arrived, the police approached the Tahoe and found it empty. The
car alarm went off and Torres reached out of Apartment 3 with a key fob to
turn it off. Police then approached Apartment 3 and urged Torres to come
out.

¶5 Torres came out and officers searched him. In his pockets,
officers found a key to the Tahoe and $7,768. In the Tahoe, there were bags
of fentanyl ready for distribution and matching the amount negotiated for
in the Abraham transaction. In Apartment 3, there was methamphetamine,
money, firearms, more fentanyl, and a sombrero.

¶6 The grand jury indicted Torres on two counts of possession of
narcotic drugs for sale, possession of dangerous drugs for sale, money
laundering in the second degree, and two counts of misconduct involving
weapons. The first count of possession of narcotic drugs for sale was for
fentanyl found in the vehicle. The second was for fentanyl found in the
residence.

¶7 Before trial, the State sought to introduce the communications
from Abraham and the unknown Spanish-speaking male as coconspirator
statements under Rule 801(d)(2)(E) of the Arizona Rules of Evidence. The
court granted the motion, finding:

[U]nder Rule 801(d)(2)(E) the statements contained in State’s
Notice of Intent are admissible and are not hearsay because
the statement is offered against an opposing party and was
made by the parties’ co-conspirator during and [in]
furtherance of the conspiracy.

¶8 The statements were entered during trial with no objection.
The jury found Torres guilty of two counts of possession of narcotic drugs
for sale.

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¶9 Before sentencing, the court ordered the parties to submit a
memorandum on their positions on whether charging Counts 1 and 2
together violated the Double Jeopardy Clause. Torres did not take a
position. The court found:

[B]ecause [the drugs] were found in the vehicle and in the
house, the mobile nature of the vehicle, the fact that the deal
that was set up by the undercover officers involved the drugs
that were found in the vehicle, or at least a portion of those
drugs were involved in that deal, that the Court believes there
is enough separation between Counts 1 and 2 for it to
continue as separate counts.

¶10 The superior court sentenced Torres to concurrent terms for
all six counts. This Court has jurisdiction over Torres’s timely appeal under
Article VI, Section 9 of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

I. The Court Properly Admitted Statements Made in Furtherance of
the Conspiracy.

¶11 Torres argues the superior court’s admission of out-of-court
statements of Abraham and the Spanish-speaking male violated the rule
against hearsay and his constitutional right to confrontation. This Court
reviews the admission of out-of-court statements for an abuse of discretion
and whether such admissions violate the United States Constitution and the
rules of evidence de novo. See State v. Payne, 233 Ariz. 484, 502 ¶ 49 (2013).
“Without proper objection at the trial an error in the admission of evidence
is not subject to review unless it constitutes fundamental error.” State v.
Viertel, 130 Ariz. 364, 366 (App. 1981).

A. Admission of Statements Made in Furtherance of the
Conspiracy Did Not Violate the Rule Against Hearsay.

¶12 Generally, out-of-court statements offered to prove the truth
of the matter asserted within them are inadmissible hearsay. Ariz. R. Evid.
801(c). However, under Arizona Rule of Evidence 801(d)(2)(E) a
coconspirator’s statement is considered an “opposing party’s statement,”
which is not hearsay when: (1) a conspiracy involving declarant and
defendant exists and (2) the declarant made the statement during the course
of and in furtherance of the conspiracy. See State v. Baumann, 125 Ariz. 404,
411 (1980); State v. Dunlap, 187 Ariz. 441, 458 (App. 1996). Proof of

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STATE v. TORRES
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conspiracy requires evidence “independent of the statements of the co-
conspirators.” State v. Lycett, 133 Ariz. 185, 193 (App. 1982). Although
coconspirator statements cannot alone support a prima facie showing of
conspiracy, they can be considered together with independent evidence.
Ariz. R. Evid. 801(d)(2)(E).

¶13 Here, sufficient evidence showed that Abraham, the
unidentified Spanish-speaking male, and Torres were involved in a
conspiracy to sell fentanyl. An officer testified about a negotiation for the
sale of a specific quantity of fentanyl with Abraham. Another officer
testified that a contact Abraham provided sent a location for the transaction
to take place. Torres was at that location and had the keys to the Tahoe,
which contained an amount of fentanyl matching the amount that Abraham
negotiated to sell. The evidence, together with all reasonable inferences,
constitutes sufficient foundational proof of a conspiracy.

¶14 Torres argues the statements do not fall under Rule
801(d)(2)(E) because the statements were made by an unidentified declarant
to a law enforcement officer. However, the Rule does not require that the
coconspirator be identified. See Ariz. R. Evid. 801(d)(2)(E); accord Fed. R.
Evid. 801(d)(2)(E); see also United States v. Lyons, 740 F.3d 702, 719 (1st Cir.
2014) (“Records that can be shown by a preponderance of the evidence to
have been made by a member of a conspiracy may be admitted under Rule
801(d)(2)(E) even if their precise author cannot be identified.”). And “there
is no requirement that the person to whom the statement is made also be a
member” of the conspiracy. United States v. Beech-Nut Nutrition Corp., 871
F.2d 1181, 1199 (2d Cir. 1989); State v. Savant, 146 Ariz. 306, 307-08 (App.
1985) (statements made to undercover agents admissible as coconspirator
statements).

B. Admission of Statements Made in Furtherance of the
Conspiracy Did Not Violate the Confrontation Clause.

¶15 Torres also argues the admission of the statements violated
the Confrontation Clause because the State did not make an adequate
showing of witness unavailability or reliability. “The Sixth Amendment’s
Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with witnesses against
him.’” Crawford v. Washington, 541 U.S. 36, 42 (2004) (quoting U.S. Const.
amend. VI.); accord Ariz. Const. art. II, § 24.

¶16 However, a statement made in furtherance of conspiracy is by
its nature nontestimonial. See Crawford, 541 U.S. at 55. And nontestimonial

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statements are not subject to the Confrontation Clause. See id. at 68-69. Thus,
“there can be no separate Confrontation Clause challenge to the admission
of a co-conspirator’s out-of-court-statement.” Bourjaily v. United States, 483
U.S. 171, 183 (1987); see also State v. Tucker, 231 Ariz. 135, 144 ¶ 49 (App.
2012) (“[T]here is no requirement that a coconspirator’s statement satisfy
the Confrontation Clause to be admissible.”). Because the State showed the
statements were admissible under Rule 801, it was not required to make a
showing of unavailability. See Crawford, 541 U.S. at 68 (“Where
nontestimonial hearsay is at issue, it is wholly consistent with the Framers’
design to afford the States flexibility in their development of hearsay law.”);
Ariz. R. Evid. 801 (does not require unavailability showing for admission
of statements that are not hearsay). Nor does a court need to “embark on an
independent inquiry into the reliability of such statements.” Bourjaily, 483
U.S. at 183-84.

¶17 Torres’s reliance on State v. Stanley, 156 Ariz. 492 (App. 1988),
which in turn was based on Ohio v. Roberts, 448 U.S. 56 (1980), is misplaced.
The holding in Ohio v. Roberts—that the Confrontation Clause is violated by
out-of-court statements unless the declarant is unavailable and the
statement bears “adequate indicia of reliability”—is no longer good law
following Bourjaily and Crawford. 448 U.S. at 66.

II. The Double Jeopardy Clause Does Not Preclude Torres’s
Convictions.

¶18 Torres was convicted of two counts of possession of narcotic
drugs for sale in violation of A.R.S. § 13-3408(A)(2). Count 1 was for
fentanyl found inside a vehicle. Count 2 was for fentanyl found inside a
residence. Torres argues this violated the Double Jeopardy Clause because
the “only difference between the two charges is the location of the
fentanyl.”

¶19 The Double Jeopardy Clause precludes convicting a
defendant multiple times under the same statute for the same criminal
offense. U.S. Const. amend. V; Ariz. Const. art. II, § 10; State v. Jurden, 239
Ariz. 526, 529 ¶¶ 10-11 (2016). This is true even where the sentences are
concurrent. State v. Brown, 217 Ariz. 617, 621 ¶ 13 (App. 2008). “The
touchstone for whether conduct comprises a single offense is whether a
series of actions violates a criminal statute in sufficiently ‘separate and
distinct’ ways.” State v. Moninger, 258 Ariz. 18, 22 ¶ 12 (2024). Whether
conduct violates a statute in separate and distinct ways depends on the
relevant statute’s allowable unit of prosecution. Id.

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¶20 This Court reviews a statute’s allowable unit of prosecution
de novo. Id. at 21 ¶ 10. This Court first looks to the statute’s text, applying
the text as written if it is unambiguous. Id. at ¶ 13.

¶21 Because the statute here contains no express definition, this
Court must engage in the allowable unit of prosecution analysis recently
clarified by the Arizona Supreme Court in Moninger. The first step is to
identify the object of the statutorily prohibited conduct. Id. at 24 ¶ 26. A
series of actions that involve factually separate and distinct object(s) will
violate a statute multiple times, ending the analysis. Id. This is a purely legal
question. Id. at 21 ¶ 11.

¶22 If the same objects are involved, the second step involves the
application of “a totality approach to determine whether a series of actions
involving the same objects are sufficiently separate and distinct to violate
the same statute multiple times.” Id. at 24 ¶ 27. “Courts should consider
non-exhaustive factors like time, location, and intervening occurrences.” Id.
This is a mixed question of fact and law. Id. at 21 ¶ 11.

¶23 To identify the object of the statutorily prohibited conduct,
this Court must first identify the verb associated with “the conduct, act, or
omission that is the active component of the crime” and the object of that
verb. Id. at 23 ¶¶ 17-20. Here, the conduct proscribed by A.R.S.
§ 13-3408(A)(2) is to “knowingly” “[p]ossess a narcotic drug for sale.” Thus,
the proscribed action is to “possess.” And the object of possess is “a narcotic
drug for sale.” The conduct charged under Count 1 and Count 2 involved
the same object—a narcotic drug (fentanyl) for sale.

¶24 Because the same object is involved, this Court will look to the
totality of the circumstances “to determine whether a series of actions
concerned with the same object(s) may be divided into multiple courses of
conduct.” Id. at 24 ¶¶ 24-25. The totality of the circumstances includes “(1)
the lapse of time, (2) the geographic locations involved, and (3) whether an
intervening occurrence has interrupted or materially altered” the criminal
conduct. Id. at ¶ 25. Intervening occurrences include “situations that
objectively indicate a factually and materially distinguishable criminal
impulse.” Id.

¶25 Here, the conduct underlying Count 1 and Count 2 was
separate and distinct under the totality of the circumstances. The fentanyl
was found in separate locations. The fentanyl in the Tahoe was packaged in
10 bags with 5,000 pills each and matched the negotiated amount, ready to

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be transported and sold. In contrast, the fentanyl in Apartment 3 was not
measured nor ready to be distributed. There were substantially more
fentanyl pills—200,000—in Apartment 3, which supports an inference that
it was inventory for other sales to come.

¶26 Other courts have held that under similar facts, albeit under
different standards, dual charges do not violate the Double Jeopardy Clause
when the same drug is found in different locations on the same day. See
Hunter v. Ryan, No. CV-14-2018-TUC-DTF, at *10 (D. Ariz. Oct. 30, 2014)
(Double Jeopardy Clause did not preclude defendant from being convicted
separately for drugs found in different locations and different packaging);
State v. Jones, 97-2217, p. 6-9 (La. App. 4 Cir. 2/24/99), 731 So.2d 389, 393-95
(dual convictions for possession of drugs with intent to distribute did not
violate the Double Jeopardy Clause where drugs were found in separate
locations).

¶27 Under the totality of the circumstances, Torres’s convictions
did not violate the Double Jeopardy Clause.

CONCLUSION

¶28 Because the coconspirators’ statements were not hearsay
under Rule 801(d)(2)(E), they were by their nature nontestimonial and their
admission did not violate the Confrontation Clause. Nor did Torres’s
conviction for two counts under A.R.S. § 13-3408(A)(2) violate the Double
Jeopardy Clause. This Court affirms.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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