Opinion
No. 2 CA-CR 2017-0215
03-14-2018
THE STATE OF ARIZONA, Appellee, v. CARLOS ALFREDO RAMIREZ JR., Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Michelle Hogan, Assistant Attorney General, Phoenix Counsel for Appellee Dean Brault, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20143788001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Michelle Hogan, Assistant Attorney General, Phoenix
Counsel for Appellee Dean Brault, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, Carlos Ramirez Jr. was convicted of possession of a dangerous drug for sale and possession of drug paraphernalia and sentenced to enhanced, concurrent prison terms, the longer of which is 10.5 years. On appeal, he maintains the state presented evidence of two separate incidents of possession, subjecting him to duplicitous charges and causing fundamental error. For the reasons stated below, we affirm.
Pursuant to Rule 32.1(f), Ariz. R. Crim. P., the trial court granted Ramirez's request to file this delayed appeal.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Ramirez's conviction. See State v. Musgrove, 223 Ariz. 164, ¶ 2 (App. 2009). On August 28, 2014, an undercover officer working with the Counter Narcotics Alliance called Ramirez's cell phone, based on his belief that Ramirez was selling methamphetamine. According to the officer, he talked to Ramirez about "setting up a deal that day," and "[t]he general agreement was that [they] would meet up and basically discuss the situation, talk about prices, and see if [they] could come to a conclusion on whether or not" the officer, acting as a broker for another buyer, would purchase drugs from Ramirez. Ramirez met the officer at a grocery store parking lot and handed him "a plastic baggy with a shard of a crystal-like substance" before entering the officer's vehicle and "discussing prices for the larger quantities." The officer expressed interest in purchasing two kilos of methamphetamine, and, about an hour later, he called Ramirez back and the two arranged to meet at a local nightclub to complete the sale.
¶3 While Ramirez and others were on their way to deliver the drugs, Tucson Police Department officers attempted to stop their truck. However, the truck sped away, ignoring traffic signals, and was eventually abandoned, with its occupants, including Ramirez, fleeing on foot. Ramirez surrendered to officers who were conducting a house-to-house search of the neighborhood with the help of a K9 unit. After he was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Ramirez told a detective that he went with B. to "deliver a sample" at the grocery store parking lot and later to "drop something off" at the nightclub. He also said B. threw a "bag of meth" out of the car window while they were fleeing from the police.
¶4 Another police officer was directed to search a portion of the chase route and recovered a bag holding a plastic container that, by stipulation of the parties, contained approximately one pound of methamphetamine. Ramirez was charged with possession of a dangerous drug for sale and possession of drug paraphernalia. Relevant to the issue on appeal, count one of the indictment stated that "[o]n or about the 28th day of August, 2014, [Ramirez] unlawfully possessed a dangerous drug for sale, to wit: methamphetamine, in violation of A.R.S. § 13-3407(A)(2)."
An additional count alleging "conspiracy of transportation of a dangerous drug for sale" was dismissed before the jury was empaneled.
¶5 Ramirez filed a pretrial motion to preclude evidence of his meeting with the officer at the grocery store parking lot on the ground that it had not been presented to the grand jury and therefore changed the nature of the charged offense. He also asserted it was evidence of other acts in conformity with the offense that was more prejudicial than probative and was therefore inadmissible. See Ariz. R. Evid. 403, 404. The trial court denied the motion, in part because it agreed with the state that the preliminary meeting was part of a course of conduct related to commission of the offense.
¶6 At trial, Ramirez testified that he had been at a party when armed men accosted him and held him at gunpoint. They stated that his cousin had come up short in a drug transaction and that Ramirez "was going to help him" by selling some methamphetamine for them and, if he refused, they "knew who [his] family was." He said he was unable to call the police but instead contacted someone he knew as a confidential informant in order to arrange a purchase of the drugs. According to Ramirez, all of his actions related to the possession of methamphetamine for sale—from his contact with the undercover officer in the grocery store parking lot through the trip toward the nightclub for the contemplated purchase of the methamphetamine—were under duress. The jury found Ramirez guilty of possession of a dangerous drug for sale and possession of drug paraphernalia, and the court sentenced him as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21, 13-4031, and 13-4033.
Discussion
¶7 Ramirez argues evidence that he first gave the undercover officer a sample of a crystal-like substance and later attempted to deliver a pound of methamphetamine for sale "subjected [him] to duplicitous charges[,] because the state presented two incidents of possession of a dangerous drug for sale upon which the jury could have based its verdict" on a single count of the indictment. Ramirez acknowledges he failed to raise this issue at trial, and we review only for fundamental, prejudicial error. See State v. Smith, 219 Ariz. 132, ¶ 21 (2008) (to prevail under fundamental-error review, appellant "must establish that (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice").
¶8 A duplicitous charge arises when "the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." State v. Klokic, 219 Ariz. 241, ¶ 12 (App. 2008). When this occurs, "'the trial court is normally obliged to take one of two remedial measures to insure that the defendant receives a unanimous jury verdict': (1) require the state to elect which of the alleged acts constitutes the crime or (2) instruct the jury that they must unanimously agree on the act that constitutes the crime." State v. West, 238 Ariz. 482, ¶ 33 (App. 2015), quoting Klokic, 219 Ariz. 241, ¶ 14. According to Ramirez, "the jury may have reached a non-unanimous verdict" because "[t]he state presented evidence at trial that Ramirez possessed methamphetamine twice that evening—once when he provided a sample to [the undercover] officer . . . and later in the truck on the way to the sale" at the nightclub, and also because it "argued that [he] possessed methamphetamine on both occasions."
¶9 The state contends the charge was not duplicitous for several reasons. First, it cites Klokic for the proposition that curative measures are not required when the separate acts in question "are part of a single criminal transaction." 219 Ariz. 241, ¶ 15. And it maintains, "Evidence that [Ramirez] possessed a crystalline sample was merely part of the deal that was the ultimate charged act," which was his possession of "the pound of methamphetamine intended for sale" at the nightclub. Second, citing State v. Schroeder, 167 Ariz. 47, 53 (App. 1990), the state contends Ramirez cannot show he was prejudiced by a non-unanimous verdict because the two acts were close in time and because his only defense, to all evidence introduced, was that he acted under duress. See id. (finding no prejudicial error from evidence of multiple similar acts, occurring close in time, to prove single count of sexual abuse, where only defense was global denial and jury's verdict "implie[d] that it did not believe the only defense offered").
¶10 We need not address these arguments, however, because we agree with the state's third argument that it elected to prove the charge based solely on Ramirez's possession of a pound of methamphetamine while traveling to the nightclub for the contemplated sale. The state began its closing argument by telling the jury that Ramirez "sold and agreed to sell to undercover officers a pound of methamphetamine," clarifying in rebuttal that Ramirez had "never made it to" the nightclub and so he "didn't actually sell [the pound of methamphetamine]" but "possessed it with the intent to sell."
¶11 Moreover, the record establishes the state elected to proceed on a single basis for the charge by limiting the evidence it presented. Indeed, the only possession of a dangerous drug for sale the state could have proved, based on evidence introduced at trial, was Ramirez's possession of "a clear plastic tub" containing "approximately 1.05 pounds of methamphetamine." Notwithstanding testimony about a "sample" of a "crystal-like substance" Ramirez had given the undercover officer earlier that day, no evidence established that "sample" substance was methamphetamine or any other dangerous drug. Ramirez's possession of an unidentified crystal-like substance was not a criminal act that could support his possession of a dangerous drug for sale; thus, the state did not present "evidence of more than one alleged criminal act . . . to prove that crime," Klokic, 219 Ariz. 241, ¶ 11.
Although the state's opening statement at one point mistakenly referred to the sample as "a chunk of methamphetamine," like its closing argument, the state focused on Ramirez's possession of the one-pound tub of methamphetamine that was the subject of a stipulation. The reference to the sample as methamphetamine was an isolated comment in a two-day trial. Moreover, the jury was instructed that statements made by the lawyers were not evidence, and we presume the jury followed that instruction. See State v. Newell, 212 Ariz. 389, ¶ 68 (2006) (jury presumed to follow instruction that closing argument was not evidence).
Ramirez is thus incorrect when he maintains his "providing the sample . . . would have provided a sufficient factual basis to sustain the conviction on the possession for sale charge." As we have noted, there was no evidence that the sample was in fact methamphetamine or any other dangerous drug. Such a conviction, based on this record, could be successfully challenged on the ground of insufficient evidence. --------
Disposition
¶12 This record does not support Ramirez's claim of fundamental error resulting from a duplicitous charge. Accordingly, we affirm his convictions and sentences.