Opinion
No. 1 CA-CR 14-0866
12-15-2015
STATE OF ARIZONA, Appellee, v. KENNETH HARRISON BAUER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee Marc J. Victor, PC, Chandler By Marc J. Victor Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-124106-003
The Honorable Jo Lynn Gentry, Judge
AFFIRMED AS CORRECTED
COUNSEL Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee Marc J. Victor, PC, Chandler
By Marc J. Victor
Counsel for Appellant
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined. GOULD, Judge:
¶1 Kenneth Harrison Bauer appeals his convictions and prison sentences for sale of narcotic drugs and four counts of sale or transportation of marijuana. On appeal, Bauer argues: (1) the definition of "cannabis" in Arizona Revised Statutes ("A.R.S.") section 13-3401(4) is unconstitutionally vague; (2) the trial court erred when it failed to enforce an order that limited the testimony of the State's witnesses, (3) the court erred when it imposed presumptive prison sentences for three of the five counts and (4) the immunity provisions of A.R.S. § 36-2811(B)(3) are ambiguous. For the following reasons, we affirm. I. Factual Background
¶2 Bauer had valid "qualifying patient" and "designated caregiver" cards he obtained from the Arizona Department of Health Services pursuant to the Arizona Medical Marijuana Act. See A.R.S. §§ 36-2801(5) and (13) (2012) ("designated caregiver" and "qualifying patient" defined); 36-2804.03 (2012) (identification cards). For purposes of this appeal, it will suffice to note that the immunity provisions of the Medical Marijuana Act provide that a person with a patient card may possess no more than 2.5 ounces of marijuana for personal medical use. A.R.S. § 36-2811(B)(1) (2012). A person with a caregiver card and a cultivation authorization, which Bauer also had, may possess twelve marijuana plants. A.R.S. § 36-2801(1)(b). Finally, the act provides that a person with either card may provide marijuana to a registered patient for the patient's personal medical use if "nothing of value is transferred in return[.]" A.R.S. § 36-2811(B)(3).
Other restrictions applicable to the transfer of marijuana between patients and/or caregivers are not relevant to this appeal. See A.R.S. §§ 36-2801(5); 36-2809(B)(3) (2012).
¶3 An undercover police officer with a valid patient card contacted Bauer in response to an online advertisement for medical marijuana. The officer ultimately met with Bauer on four occasions spanning nearly a month. Each time they met, the officer gave Bauer money in exchange for marijuana. During one of the exchanges, Bauer also provided the officer cannabis he extracted from marijuana.
¶4 At trial, Bauer testified that because the officer had a valid patient card, the subject transactions were not "sales" but were legal patient-to-patient transfers of marijuana in which the officer provided money only as a donation or gift. Bauer further testified he would have given the marijuana to the officer for free if the officer had asked. At the conclusion of the trial, the jury convicted Bauer as indicated above and the trial court sentenced him to presumptive, concurrent terms of 3.5 years' imprisonment for three counts of sale or transportation of marijuana and placed him on three years' probation for the two remaining counts. II. The Definition of "Cannabis"
The sentencing minute entry identifies the offenses by their generic names - "sale or transportation of narcotics" and "sale or transportation of marijuana." The final jury instructions, however, establish that the jury actually found Bauer sold narcotic drugs in count 2 and sold or transported marijuana for sale in the remaining counts.
¶5 The jury convicted Bauer of sale of narcotic drugs based on the cannabis he provided to the undercover officer during their second meeting. See A.R.S. § 13-3408(A)(7) (2012) (sale of narcotic drugs); A.R.S. § 13-3401(20)(w) (2012) (identifying cannabis as a narcotic drug). The criminal code provides:
"Cannabis" means the following substances under whatever names they may be designated:
(a) The resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin. Cannabis does not include oil or cake made from the seeds of such plant, any fiber, compound, manufacture, salt, derivative, mixture or preparation of the mature stalks of such plant except the resin extracted from the stalks or any fiber,
oil or cake or the sterilized seed of such plant which is incapable of germination.A.R.S. § 13-3401(4).
(b) Every compound, manufacture, salt, derivative, mixture or preparation of such resin or tetrahydrocannabinol.
"Marijuana" is defined in A.R.S. § 13-3401(19). "Basically, marijuana is the plant and cannabis is certain things derived from the plant." State v. Medina, 172 Ariz. 287, 289 (App. 1992).
¶6 Bauer argues this definition of "cannabis" is unconstitutionally vague because only "a scientist" can understand it and no ordinary person can determine which substances the statute prohibits and which it permits. He further contends the mere fact that cannabis is a "narcotic drug" pursuant to A.R.S. § 13-3401(20) but marijuana is not is "confusing enough to the reasonable, ordinary person" to render the statute unconstitutionally vague.
¶7 Interpretation of a statute is a question of law we review de novo. See Zamora v. Reinstein, 185 Ariz. 272, 275 (1996). This includes determining whether the statute is constitutional. State v. McMahon, 201 Ariz. 548, 550, ¶ 5 (App. 2002). "A statute is unconstitutionally vague if it does not give persons of ordinary intelligence a reasonable opportunity to learn what it prohibits and does not provide explicit instructions for those who will apply it." Id. at 551, ¶ 7 (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)). In short, "a statute is too vague when it fails to give fair notice of what it prohibits." Bird v. State, 184 Ariz. 198, 203 (App. 1995). Absolutely precise language, however, is not required to render a statute constitutionally valid. State v. Baldwin, 184 Ariz. 267, 270 (App. 1995).
¶8 We conclude the definition of "cannabis" is not unconstitutionally vague. "[A] penal statute is not unconstitutionally vague simply because it uses terms with which the average person is unfamiliar." State v. Varela, 120 Ariz. 596, 599 (1978). The meaning of technical terminology in a statue need not be within the common knowledge of the average person where, as here, the use of technical terminology is unavoidable. Id. Additionally, a statute is not vague simply because a person may have "difficulty in deciding whether certain marginal conduct falls within the scope of the statute," State v. Coulter, 236 Ariz. 270, 274-75, ¶ 9 (App. 2014), or because the person may have difficulty determining how far one can go before one violates the statute. State v. Kaiser, 204 Ariz. 514, 518 (App. 2003). Accordingly, we find no error. III. The Failure to Enforce Bauer's Motion in Limine
¶9 As ultimately submitted to the jury, each count required that the jury find Bauer sold drugs and/or transported drugs for sale. Bauer filed a pretrial motion in limine in which he sought to prevent the State's witnesses from using the term "sale" during their testimony. Bauer argued that to allow the State's witnesses to use the term "sale" would invade the province of the jury and a law enforcement officer's use of the term would have undue influence. At the hearing on the motion, the State agreed to advise the undercover officer not to use the term "sale" in his testimony, but to use other descriptive terms and phrases to describe the exchange of drugs and money.
¶10 Bauer argues the trial court erred when it did not enforce the motion in limine sua sponte whenever the undercover officer used the term "sale" or a similar term that communicated the concept of a "sale" during his testimony. Bauer contends the trial court should have enforced the order sua sponte at seven specific points during the officer's testimony. In the first instance, the officer testified, "this is the marijuana I pur -- I got from the defendant." The portion of the record Bauer identifies as the second point at which the court should have intervened reveals nothing relevant to this issue. In the third and fourth instances, the officer testified he "exchanged" money for marijuana and explained he had never "bought" "hash" as an undercover officer. In the fifth instance, the officer identified the cannabis that Bauer "sold to me for - that he gave me for $10." In the sixth instance, the officer testified that the ad he responded to indicated a specific weight of marijuana "cost" fifty dollars. Finally, the officer testified that he wrote down the serial numbers of the money he used to make the "drug purchase."
¶11 We conclude that any error was harmless. The jury was well aware that whether or not Bauer "sold" drugs or transported drugs for "sale" was an issue it must decide. The sale element was identified in the indictment read to the jury. Both the State and Bauer addressed whether Bauer sold drugs or transported drugs for sale during their opening statements. Bauer addressed the issue at length in his testimony. Both the State and Bauer addressed the sale element at length in their closing arguments. The final instructions identified the sale element. The final instructions further informed the jurors that the testimony of the undercover officer was entitled to no more or less credibility or importance simply because he was a law enforcement officer, and that they must consider the officer's testimony the same as they would any other witness. We presume jurors follow their instructions. State v. Dunlap, 187 Ariz. 441, 461 (App. 1996). Accordingly, under these circumstances, we conclude the officer's minor, isolated references to sales were harmless. IV. The Imposition of Presumptive Prison Sentences
¶12 Bauer argues the trial court erred when it imposed presumptive terms of 3.5 years' imprisonment for three of the counts of sale or transportation of marijuana. See A.R.S. § 13-3405(B)(10) (2012) (a conviction for sale or transportation of marijuana for sale involving less than two pounds of marijuana is a class 3 felony); A.R.S. § 13-3419(A)(2) (2012) (sentences for three or more drug offenses not committed on the same occasion but which are consolidated for trial). Although we agree the court first made a mistake in sentencing him, it quickly corrected its mistake and, as we discuss, was entitled under the governing law to impose presumptive prison sentences.
The trial court sentenced Bauer as a non-dangerous, non-repetitive offender. While not noted by the parties, the sentencing minute entry identifies A.R.S. § 13-3418 rather than A.R.S. § 13-3419. This appears to be a typographical error carried over from the indictment. A.R.S. § 13-3418 merely addresses a sentencing court's ability to order that a person convicted of a drug offense is ineligible for "public benefits." A.R.S. § 13-3418 (2012). There is nothing in the record to indicate A.R.S. § 13-3418 ever had any application to this case and the trial court did not order Bauer ineligible for any public benefits. Further, the parties have always addressed sentencing in this case both below and on appeal in the context of sentencing provisions found only in A.R.S. § 13-3419. Thus, we correct the sentencing minute entry to replace the citation to "A.R.S. § 13-3418" with "A.R.S. § 13-3419." See State v. Stevens, 173 Ariz. 494, 496 (App. 1992) (correcting clerical sentencing error on appeal without a remand to the trial court). --------
A. Background
¶13 We first note the court split the sentencing into two separate hearings at Bauer's request. It appears the first hearing addressed mitigating and aggravating circumstances and that several people spoke on Bauer's behalf. The record on appeal does not contain a transcript of the first hearing, however. We presume the missing portion of the record supports the decision of the trial court. State v. Mendoza, 181 Ariz. 472, 474 (App. 1995).
¶14 When sentencing continued approximately two weeks later, the court and parties did not discuss mitigating and aggravating factors, but the record makes it clear they discussed those factors at the first hearing. Regardless, the court imposed a mitigated term of four years' imprisonment for sale of narcotic drugs and placed Bauer on probation for the remaining counts. The parties immediately informed the court that probation was not available for the counts of sale or transportation for sale of marijuana as charged in counts 3, 4 and 5. See A.R.S. § 13-3419(A) (probation is not available for a conviction for a second or subsequent offense a defendant did not commit on the same occasion as the other drug offense(s) consolidated for trial). The court and counsel, however, did not discuss on the record why probation was not available.
¶15 Regardless, the court stated it would "retract" the sentences it had just imposed. The court then imposed presumptive, concurrent terms of 3.5 years' imprisonment for counts 3, 4 and 5 - six months less than it imposed in its first attempt at sentencing. Before the court could continue with counts 1 and 2, however, Bauer objected and argued that the court could not impose presumptive terms of imprisonment for counts 3, 4 and 5. Bauer acknowledged the court had simply made a mistake when it first attempted to sentence Bauer. Bauer, however, argued the court had already determined the "mitigated" term of four years' imprisonment was appropriate for sale of narcotics. Bauer contended the court had to be "consistent" and could not reweigh the factors and in turn impose presumptive terms on the other counts. Bauer argued the court had to impose the minimum term of 2.5 years' imprisonment for counts 3, 4 and 5.
¶16 The trial court acknowledged it had weighed the aggravating and mitigating circumstances. The court explained that in doing so, however, it also made the determination of the appropriate amount of time Bauer should spend in prison under the totality of the circumstances - a time the court determined was four to 4.5 years. The court found that because the class of felony had now dropped from a class 2 to a class 3, the sentencing considerations had changed and the court's consideration of the sentencing factors had, in turn, changed as well. The court noted that to proceed as Bauer argued would require the court to impose a sentence that was less than the court believed was appropriate. The court then completed the imposition of sentence and placed Bauer on probation for the remaining counts.
B. Discussion
¶17 Trial courts have "very wide discretion in determining an appropriate sentence." Wasman v. United States, 468 U.S. 559, 563 (1984). The court may "consider any and all information that reasonably might bear on the proper sentence for the particular defendant, given the crime committed." Id. Further, the trial court is in the best position to evaluate a defendant and determine the appropriate sentence to impose. State v. Williams, 134 Ariz. 411, 413 (App. 1982). Even so, "Courts have power to impose sentences only as authorized by statutes and within the limits set down by the legislature." State v. Rosario, 195 Ariz. 264, 268, ¶ 27 (App. 1999) (quoting State v. Harris, 133 Ariz. 30, 31 (App. 1982). "An illegal sentence is no sentence at all." State v. Pyeatt, 135 Ariz. 141, 143 (App. 1982).
¶18 We find no error. The trial court's first attempt to impose probation was illegal and, therefore, "no sentence at all." Further, a trial court has the power to correct obvious sentencing errors. State v. Wedding, 171 Ariz. 399, 408 (App. 1992). "The court may correct any unlawful sentence or one imposed in an unlawful manner within 60 days of the entry of judgment and sentence but before the defendant's appeal, if any, is perfected." Ariz. R. Crim. P. 24.3. Here, the court corrected the unlawful sentences within moments. Further, once it became necessary to correct the sentences and the circumstances changed, the court was entitled to evaluate all of the sentencing considerations in the context of those changed circumstances and exercise its discretion to determine what it believed were appropriate sentences.
¶19 We also note that the law does not require a court to impose less than the presumptive term of imprisonment just because mitigating circumstances exist. A court "may" impose less than the presumptive term if mitigating circumstances exist. See A.R.S. § 13-701(C) (2012) (identifying nine sentencing statutes in which a court "may" impose less than the presumptive if mitigating circumstances exist). Specific to this case, A.R.S. § 13-3419(A) provides a court "may" impose less than the presumptive sentence if mitigating circumstances exist. Therefore, even though the court may have found mitigating circumstances, and may have even found those circumstances outweighed any aggravating circumstances, the trial court was not required to impose less than a presumptive sentence if it believed such a sentence was not appropriate under the circumstances.
¶20 We acknowledge, as Bauer argues, that a conviction and sentence are "complete and valid as of the time of their oral pronouncement in open court." Ariz. R. Crim. P. 26.16(a). The initial sentences for counts 3, 4 and 5, however, were illegal and, therefore, not "sentences" in any sense. Further, Bauer directs us to no authority that a trial court's explanation for why a sentence is appropriate for one count under one incorrectly perceived set of circumstances permanently binds the court to that explanation for all other counts regardless of changed circumstances. V. The Immunity Provisions of A.R.S. § 36-2811(B)(3)
¶21 The immunity provisions of the Medical Marijuana Act provide in relevant part that:
A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner [ ]:A.R.S. § 36-2811(B)(3). As the final issue on appeal, Bauer argues A.R.S. § 36-2811(B)(3) is ambiguous because it is "virtually impossible to understand[.]" Bauer urges us to apply the rule of lenity, interpret the statute in his favor and find that he was immune from prosecution.
3. For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient's medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.
¶22 We find no error. Division 2 of this court recently held in State v. Matlock that A.R.S. § 36-2811(B)(3) is not ambiguous. State v. Matlock, 237 Ariz. 331, 336, ¶ 22 (App. 2015). Bauer acknowledges the Matlock decision is the current state of the law in this regard but argues Matlock is wrong. We find no compelling reason to depart from the analysis and holding in Matlock. VI. Conclusion
¶23 Because we find no error, we affirm Bauer's convictions and sentences as corrected.