Opinion
1 CA-CR 12-0181
02-07-2013
STATE OF ARIZONA, Appellee, v. ANNETTE KAY AUSTIN, Appellant.
Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Matthew Binford, Assistant Attorney General Attorneys for Appellee White Law Offices, PLLC by Wendy F. White Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Yavapai County
Cause No. P1300CR201100182
The Honorable Tina R. Ainley, Judge
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
and Matthew Binford, Assistant Attorney General
Attorneys for Appellee
Phoenix White Law Offices, PLLC
by Wendy F. White
Attorneys for Appellant
Flagstaff OROZCO, Judge ¶1 Defendant Annette Kay Austin appeals her convictions and sentences for two counts of transportation of methamphetamine for sale and two counts of possession of methamphetamine for sale on the grounds of evidentiary error, sentencing error, and double jeopardy. For the reasons that follow, we vacate the convictions and sentences on the two counts of possession for sale but affirm the transportation for sale convictions and sentences.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the verdict. State v. Miles, 211 Ariz. 475, 476, ¶ 2, 123 P.3d 669, 670 (App. 2005).
¶2 The State charged Austin with one count of transportation of methamphetamine for sale and one count of possession of methamphetamine for sale for each of two incidents: one on January 4, 2011, and the other on January 7, 2011. The evidence at trial was that Austin met Quentin Jackson at a motel where he was staying and sold him .87 grams of methamphetamine for $150 on January 4, and another .58 grams for $100 on January 7. Jackson, who had agreed to serve as a material informant as part of a deal with the State to resolve pending criminal charges, wore a wire during the transactions, and police observed the transactions and searched him before and after. Police arrested Austin about a month later. ¶ 3 Austin denied the charges and testified that she had sold two vehicles to Jackson and the recorded transactions involved the transfer of partial payment on the vehicles, not the sale of methamphetamine. The jury convicted Austin of the charged offenses, and the court sentenced Austin to five flat years on each count and ordered that the sentences on the convictions involving the transaction on January 7 be served consecutively to the convictions involving the transaction on January 4. ¶ 4 Austin filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A (2003), 13-4031 (2010), and -4033.A.1 (2010).
DISCUSSION
Limitation on Cross-Examination ¶ 5 Austin argues that the trial court violated her Sixth Amendment "right to confrontation and to present a defense" by limiting her cross-examination of Jackson. We evaluate limitations on cross-examination on a case-by-case basis to determine whether the defendant was denied the opportunity to present evidence relevant to issues in the case or the witness's credibility. State v. Ca ñez, 202 Ariz. 133, 153, ¶ 62, 42 P.3d 564, 584 (2002). ¶6 "[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citation and internal quotation marks omitted). This right is secured in part by the right to cross-examination provided by the Confrontation Clause of the Sixth Amendment. Davis v. Alaska, 415 U.S. 308, 315 (1974). Trial courts, however, "retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Ca ñ ez, 202 Ariz. at 153, ¶ 62, 42 P.3d at 584 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). A defendant's right to present evidence is also subject to restriction by application of reasonable evidentiary rules. See United States v. Scheffer, 523 U.S. 303, 308 (1998). ¶7 At trial, the court allowed evidence of Jackson's extensive criminal history, including a prior conviction and a pending charge for promotion of prison contraband. Before Jackson testified, the court ruled that it would allow evidence of the nature of his prior convictions for impeachment under Arizona Rule of Evidence 609, but it would not allow evidence outlining details of the specific circumstances giving rise to the charges. ¶8 With respect to the still pending charge, the court ruled that evidence of the nature of the charge and the contraband at issue, methamphetamine, was admissible. It further stated, however, that evidence of the circumstances giving rise to the pending charge was inadmissible propensity evidence under Arizona Rule of Evidence 404(b) and specifically precluded evidence that Jackson had stuffed methamphetamine in his sock and had hidden it in a stairwell at the county jail. The court also noted that it was not going to allow "a separate trial as to all these different priors or arrests or convictions." Based on its prior ruling, the court sustained the State's objection to Austin's questions as to where Jackson had hidden the methamphetamine giving rise to the prison contraband charges. ¶9 On appeal, Austin argues that the trial court violated her Sixth Amendment right to confrontation by precluding her from asking Jackson where he had hidden the methamphetamine. She contends the evidence was essential to show that he "knew how to conceal drugs so they would not be found." Based on the facts above, we find that the trial court did not err in limiting Austin's cross-examination of Jackson. We find, first, that the court appropriately precluded Austin under Rule 404(b) from eliciting evidence from Jackson on the circumstances giving rise to the prison contraband charges. Rule 404(b) precludes evidence of other acts "to prove the character of a person in order to show action in conformity therewith." Austin argued below that evidence that Jackson had stuffed methamphetamine in his sock and hid it in the jail stairwell was admissible because "those are consistent actions that [Jackson] has taken," and the evidence affected the weight of his testimony and his credibility. Her reasoning on appeal is similar: she argues that the evidence would have shown that Jackson was capable of hiding evidence from even the most seasoned investigators; therefore, he might have done so on this occasion. Accordingly, the court appropriately excluded the evidence as improper character evidence. ¶10 Moreover, even if the evidence was admissible under Rule 404(b), we further find that the court did not abuse its discretion in precluding the evidence in part to avoid holding mini-trials of the prior convictions and pending charges. Arizona Rule of Evidence 403 clearly provides that even relevant evidence may be excluded if the relevance is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or undue delay. ¶11 Finally, despite the preclusion, the jury could reasonably have inferred from the very nature of the conviction and pending charge, promotion of prison contraband, that Jackson was capable of hiding drugs under far more restrictive searches than the detectives conducted in this case. Austin has failed to persuade us that her inability to elicit the precise place that Jackson had hidden the drugs on those prior occasions deprived her of her defense that Jackson had framed her with hidden drugs in this instance. We decline to reverse on this basis. Consecutive Sentences ¶12 Austin also argues that the court abused its discretion in imposing consecutive sentences for the two different incidents based on a misunderstanding that A.R.S. § 13-711 (2010) creates a presumption that sentences should run consecutively. ¶13 It is well settled that A.R.S. § 13-711 does not create a presumption in favor of consecutive sentences. See State v. Garza, 192 Ariz. 171, 174, ¶ 10, 962 P.2d 898, 901 (1998) . Trial judges are presumed to know the law and apply it in making their decisions. State v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996). The court's pronouncement of sentence in this case fails to support Austin's argument that it mistakenly believed that a presumption existed in favor of consecutive sentences. The court explicitly stated that it was imposing the sentences consecutively on the basis that the evidence showed that the offenses took place on "two separate occasions," on "two separate dates," and it could not find "any good cause to run those concurrently." ¶14 On this record, we find no indication that the court was confused, misunderstood the governing law, or did not understand that it had discretion to impose concurrent sentences. We accordingly find no abuse of discretion in the imposition of consecutive sentences. Double Jeopardy ¶15 Finally, Austin asserts that the convictions for two counts of possession of dangerous drugs for sale violated her double jeopardy rights and must be vacated even though she did not object at sentencing. The State concedes error, and we agree. ¶16 We review claims of double jeopardy de novo. State v. Powers, 200 Ariz. 123, 125, ¶ 5, 23 P.3d 668, 670 (App. 2001). A double jeopardy violation constitutes fundamental error. State v. Price, 218 Ariz. 311, 313, ¶ 4, 183 P.3d 1279, 1281 (App. 2008). Double jeopardy bars multiple prosecutions and punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 497-98 (1984). "[A] defendant may not be convicted for both an offense and its lesser included offense, because they are considered the 'same offense' for double jeopardy purposes." State v. Ortega, 220 Ariz. 320, 324, ¶ 9, 206 P.3d 769, 773 (App. 2008). A lesser-included offense is one "composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one." State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). ¶17 Possession of a dangerous drug for sale is a lesser-included offense of transportation of a dangerous drug for sale when the same drug constitutes the evidence for both offenses. See State v. Cheramie, 218 Ariz. 447, 449, 451, ¶¶ 11, 22, 189 P.3d 374, 376, 378 (2008) (holding that possession of a dangerous drug is a lesser-included offense of transportation for sale of a dangerous drug because, in pertinent part, "we cannot conceive how a person can 'transport' drugs without having possession of or dominion or control over them"). Because the same drug constituted the evidence for both the possession and transportation offenses in this case, we vacate the convictions and sentences for the possession for sale of a dangerous drug offenses.
CONCLUSION
¶18 For the foregoing reasons, we affirm the transportation for sale of a dangerous drug convictions and sentences but vacate the convictions and sentences on the two counts of possession for sale of a dangerous drug.
_________________________
PATRICIA A. OROZCO, Presiding Judge
CONCURRING: ____________________
PETER B. SWANN, Judge
______________________________
THOMAS C. KLEINSCHMIDT, Judge Pro Tempore *
* The Honorable Thomas C. Kleinschmidt, Judge Pro Tempore of the Court of Appeals, Division One, is authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to Article 6, Section 3, of the Arizona Constitution and A.R.S. §§ 12-145 to -147 (2003).