Opinion
No. 1 CA-CR13-0887
04-02-2015
STATE OF ARIZONA, Appellee, v. ARMAND EMERY BRUN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Adele G. Ponce Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Charles R. Krull 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2013-107068-001
The Honorable Christine E. Mulleneaux, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Adele G. Ponce
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Charles R. Krull
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Michael J. Brown joined. THUMMA, Judge:
¶1 Armand Emery Brun appeals his conviction of possession of marijuana for sale, a Class 4 felony, and resulting probation grant. Because Brun has not shown reversible error, the conviction and probation grant are affirmed.
FACTS AND PROCEDURAL HISTORY
On appeal, this court views the evidence in the light most favorable to sustaining the conviction and resolves all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).
¶2 In January 2012, Brun became a cardholder under the Arizona Medical Marijuana Act (AMMA), codified at Arizona Revised Statutes (A.R.S.) sections 36-2801 to -2819 (2015). Thereafter, Brun cultivated marijuana plants and, in July 2012, harvested about 11 ounces of marijuana, far more than the 2.5 ounces he was allowed to possess as an AMMA cardholder. See A.R.S. § 36-2801(1)(a). Having seen similar advertisements before, Brun posted an ad on the "For Sale" section of the online marketplace Craigslist.com to "get rid of" at least some of the marijuana he possessed over the 2.5 ounce limit.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
¶3 At about that same time, the Phoenix Police Department was conducting an investigation targeting ads for the sale of medical marijuana on Craigslist.com. After inputting certain search terms, one officer found Brun's ad. The top of the post stated "Patient-to-Patient MMJ Delivery. Legendary 'Orange Bud'" and, after a description of the marijuana's quality, the ad listed "Suggested donations" for various quantities of marijuana, with $180 being the suggested donation for half an ounce. The officer called the phone number listed and Brun answered and identified himself. The officer described the conversation as follows:
I inquired about a half ounce of marijuana, and he [Brun] indicated that he did have that. He referred to it by the name of the Orange Bud. And I made conversation, basically small talk about the quality of the marijuana, and I was assured that it was very good quality. And I inquired about the price, that it was $180. And he indicated that that -- that was the amount that needed to be paid for the marijuana because of its quality.The officer and Brun agreed to meet later that day at a specified location.
And I -- at some point during each of these contacts, when we do these investigations, we try to either get a greater amount of marijuana than advertised for the listed price or a lesser price than advertised for the same amount of marijuana. In doing that, Mr. Brun was committed to the $180 for the half ounce.
¶4 At the designated time and place, the officer approached Brun's vehicle on foot, dressed in plain clothes. The officer asked Brun if he was Armand Brun, and Brun said yes. The officer also smelled unburnt marijuana coming from Brun's vehicle. The officer then identified himself as a Phoenix Police Officer and told Brun that he was going to be arrested for selling marijuana. The officer and Brun did not complete the actual exchange of money for drugs. When the officer asked Brun "for the marijuana that he was there to sell to me," Brun "was able to retrieve a bag - a plastic bag with marijuana in it, and he indicated that was it." After being read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Brun participated in a recorded interview, which was played for the jury. Another officer present at the scene testified and corroborated the first officer's account of the meeting with Brun.
¶5 At trial, Brun elected to testify in his own defense. Brun testified that he had Crohn's disease and rheumatoid arthritis, and that these conditions led him to apply for and obtain an AMMA card. Brun testified that he grew and harvested his own marijuana because there were no Arizona dispensaries at that time. After harvesting his plants in July 2012, Brun became concerned that he might exceed the 2.5 ounces of marijuana he was allowed to possess as an AMMA cardholder. He testified that he wanted to get rid of his excess marijuana and learned that he could give his excess marijuana to other cardholders. He then posted the ad on Craigslist.com, using language he claimed to have copied from other postings.
¶6 Contrary to the officer's testimony about their telephone call, Brun testified he told the officer "the suggested donation was $180" for the half ounce of marijuana and denied negotiating about price. Brun also testified that he asked whether the officer was an AMMA cardholder, and in response, the officer claimed to have such a card. Brun testified that the suggested donation "wasn't a necessary thing" and that he would have provided the marijuana even if the individual had refused to give him any money.
¶7 Although his notice of defenses listed the AMMA, Brun did not file any pretrial motions regarding the AMMA. Brun did, however, timely submit six proposed jury instructions, including instructions that pertained to the AMMA. After the close of the evidence, the court addressed final jury instructions, with Brun unsuccessfully objecting to some of the State's instructions and the State successfully objecting to some of Brun's instructions.
¶8 After closing arguments and deliberation, the jury found Brun guilty as charged of possessing marijuana for sale, a Class 4 felony. At sentencing, the superior court suspended imposition of sentence and placed Brun on supervised probation for two years. This court has jurisdiction over Brun's timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21, 13-4031 and -4033.
DISCUSSION
¶9 Brun does not claim that the evidence received by the jury was insufficient to support the guilty verdict. Rather, Brun claims error in the application of the AMMA in two respects. First, Brun argues the superior court erred in failing to make a judicial finding as to whether he lost the protections of the AMMA by violating the act before allowing the jury to determine guilt on the charged offense. Second, Brun claims the trial evidence was insufficient to support a finding that he violated the AMMA. Brun claims these errors were structural and fundamental.
¶10 In first addressing the appropriate standard of review, Brun has not shown that the claimed errors qualify as structural error. Structural error "'affect[s] the entire conduct of the trial from beginning to end, and thus taint[s] the framework within which the trial proceeds.'" State v. Tucker, 215 Ariz. 298, 316 ¶ 66, 160 P.3d 177, 195 (2007) (citations omitted). The Arizona Supreme Court has noted structural error may exist in extremely limited circumstances, such as when a trial judge is biased; a defendant is denied counsel, access to counsel, self-representation or a public trial; the reasonable doubt instruction is defective; or jurors were excluded because of race or views on the death penalty. Id.; accord State v. Lizardi, 234 Ariz. 501, 505 ¶ 14, 323 P.3d 1152, 1156 (App. 2014). Brun has not shown that the errors he claims are comparable to these circumstances. Nor has he cited authority suggesting that the errors he claims are properly analyzed under a structural error inquiry. Accordingly, the court rejects Brun's structural error argument and, instead, applies a fundamental error analysis.
¶11 To show fundamental error, Brun "'bears the burden to establish that "(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice."'" State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App. 2013) (citations omitted). Error is fundamental if a defendant shows "that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." State v. Henderson, 210 Ariz. 561, 568 ¶ 24, 115 P.3d 601, 608 (2005) (citation omitted). Prejudice under fundamental error review is a fact-intensive inquiry and varies "depending upon the type of error that occurred and the facts of a particular case." Id. at 568-69 ¶ 26, 115 P.3d at 608-09 (citations omitted). This court therefore uses this analytical framework in analyzing Brun's arguments on appeal. I. The AMMA.
¶12 Passed by Arizona voters in November 2010, the AMMA allows a cardholder to possess up to "[t]wo-and-one-half ounces of usable marijuana." A.R.S. § 36-2801(1)(a). Under the AMMA, a cardholder has certain "protections" for "the medical use of marijuana" if done "as authorized" by the AMMA. See A.R.S. § 36-2802; A.R.S. § 36-2811. "'Medical use' [of marijuana] means the acquisition, possession, . . . delivery, transfer or transportation of marijuana . . . to treat or alleviate" the cardholder's "debilitating medical condition" or associated symptoms. A.R.S. § 36-2801(9). This case turns on the application of two of the protections provided by the AMMA.
¶13 First, there is a rebuttable presumption that Brun, as a cardholder, was engaged in the medical use of marijuana under the AMMA if he did not possess more than the allowable amount of marijuana (up to 2.5 ounces). See A.R.S. 36-2811(A); State v. Fields ex rel. Cnty. of Pima, 232 Ariz. 265, 269 ¶ 13, 304 P.3d 1088, 1092 (App. 2013). "Once rebutted, the presumption disappears and the cardholder may be charged with marijuana-related offenses." Fields, 232 Ariz. at 269 ¶ 13, 304 P.3d at 1092 (citation omitted).
¶14 Second, a cardholder "is not subject to arrest, prosecution or penalty in any manner,"
[f]or offering or providing marijuana to a registered qualifying patient . . . 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.A.R.S. § 36-2811(B)(3). With this overview, the court turns to Brun's specific arguments on appeal. II. The Superior Court Was Not Required, Sua Sponte, To Make A Finding That Brun Was Not Entitled To The AMMA's Protections Before Submitting The Issue Of Guilt To The Jury.
This analysis addresses only those portions of the AMMA briefed by the parties, recognizing that other decisions have analyzed the AMMA in other contexts. See State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014); State v. Gear, 236 Ariz. 289, 339 P.3d 1034 (App. 2014); Dobson v. McClennen, 236 Ariz. 203, 337 P.3d 568 (App. 2014); Darrah v. McClennen, 236 Ariz. 185, 337 P.3d 550 (App. 2014); State v. Fields ex rel. Cnty. of Pima, 232 Ariz. 265, 304 P.3d 1088 (App. 2013).
¶15 Although Brun argues on appeal that the superior court was required to make a finding that he violated the AMMA before allowing the jury to determine guilt, Brun never requested a judicial finding that he was entitled to the protections afforded by the AMMA. Brun's notice of defenses referenced the AMMA, but that notice was not sufficient to establish a statutory immunity before trial nor did it serve as a pretrial motion on the point or a request to hold a pre-trial hearing. Contrary to Brun's argument on appeal, the record indicates that, from the start, Brun took the position that the issue would be presented to and resolved by the jury and submitted jury instructions addressing the issue. Moreover, under the AMMA, "it is a defendant's burden to 'plead and prove,' by a preponderance of the evidence, that his or her actions fall within the range of immune action." Fields, 232 Ariz. at 269 ¶ 15, 304 P.3d at 1092 (citations omitted). On this record, Brun has not shown the superior court erred in not holding a hearing, sua sponte, to make a finding of whether Brun was entitled to the AMMA's protections before submitting the issue of guilt to the jury. III. Evidence At Trial Was Sufficient To Show Brun Violated The AMMA.
Brun also argues a denial of due process because the lack of a hearing to determine whether he violated the AMMA "has deprived [him] of an adequate record upon which to seek appellate review of this issue." Brun, however, testified at trial and has not suggested that any additional or different evidence would have been presented to the court had such a hearing been held. Moreover, Brun has not supported this due process claim with any authority or otherwise shown fundamental error.
¶16 Brun argues the State's evidence was insufficient to show that Brun violated the AMMA. Although making a motion for judgment of acquittal pursuant to Arizona Rule of Criminal Procedure 20, Brun did not object to the sufficiency of the State's evidence to show he violated the AMMA. Accordingly, this issue is reviewed for fundamental error. See Ariz. R. Crim. P. 21.3(c); Henderson, 210 Ariz. at 567 ¶¶ 19-20, 115 P.3d at 607; James, 231 Ariz. at 493 ¶ 11, 297 P.3d at 185. On this record, even assuming fundamental error, Brun has not shown resulting prejudice.
¶17 First, when testifying at trial, Brun admitted that when posting the Craigslist.com ad, he possessed 11 ounces of marijuana, significantly more than the 2.5 ounces allowed by the AMMA. See A.R.S. § 36-2801(1)(a). Accordingly, under Fields, this admission caused the presumption that Brun was engaged in the medical use of marijuana to "disappear[]," meaning he could "be charged with marijuana-related offenses." See 232 Ariz. at 269 ¶ 13, 304 P.3d at 1092 (citations omitted). Similarly, this admission (coupled with Brun's failure to raise the issue pretrial) negates any suggestion that Brun properly discharged his obligation to plead and prove immunity. See id. at 269 ¶ 15, 304 P.3d at 1092.
¶18 Second, as a factual matter, the record does not compel a finding that the primary officer who had contact with Brun (or any other police officer involved) was a registered qualifying patient (i.e., an AMMA cardholder) as required by A.R.S. § 36-2811(B)(3) for Brun to claim immunity. Although Brun testified that he asked the officer if he was an AMMA cardholder, the officer's testimony did not corroborate Brun's recollection of the conversation. Additionally, albeit without a record citation, the State notes that "[t]he fact that the undercover officer was not a registered patient purchasing the marijuana for his medical use also undermines [Brun's] AMMA defense." There was no definitive evidence that any officer involved actually was an AMMA cardholder and, on this record, the jury properly could have found that the undercover officer was not a cardholder. Accordingly, even assuming fundamental error, Brun has not shown resulting prejudice. See James, 231 Ariz. at 493 ¶ 11, 297 P.3d at 185; see also Fields, 232 Ariz. at 269 ¶ 15, 304 P.3d at 1092.
Similarly, on appeal, Brun does not challenge the jury instructions given and, accordingly, has not shown fundamental error resulting in prejudice arising out of the instructions. Moreover, given the fact-intensive analysis, on this comparatively unique record, the court need not, and expressly does not, address whether the AMMA could provide immunity for a charge of possession of marijuana for sale.
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CONCLUSION
¶19 Brun's conviction and probation grant are affirmed.