Opinion
No. 1 CA-CR 18-0242
03-26-2019
STATE OF ARIZONA, Appellee, v. JULIA CATHERINE HALSTEAD, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By William Scott Simon Counsel for Appellee M. Alex Harris PC, Chino Valley By M. Alex Harris 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. V1300CR201680544
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By William Scott Simon
Counsel for Appellee M. Alex Harris PC, Chino Valley
By M. Alex Harris
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined. THUMMA, Chief Judge:
¶1 Defendant Julia Catherine Halstead appeals her convictions and resulting sentences for possession of dangerous drugs for sale, possession or use of dangerous drugs and possession of drug paraphernalia. Because Halstead has shown no error, her convictions and sentences are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 One day in September 2016, a Yavapai County Sheriff's Deputy saw Halstead parked near a dumpster of a closed tractor dealership. Halstead displayed signs and symptoms of methamphetamine use. The officer ultimately searched Halstead's vehicle and found ten small baggies containing methamphetamine, pill bottles containing carisoprodol and cyclobenzaprine, a container with marijuana residue and drug paraphernalia. The baggies of methamphetamine were packaged and concealed in a method consistent with drug sales. Substances found in eight of the baggies and one glass pipe tested positive for methamphetamine, and the pills tested positive for carisoprodol and cyclobenzaprine.
¶3 The State charged Halstead with possession of dangerous drugs (methamphetamine) for sale, a Class 2 felony; possession or use of dangerous drugs (methamphetamine), a Class 4 felony; possession or use of dangerous drugs (carisoprodol), a Class 4 felony and two counts of possession of drug paraphernalia, Class 6 felonies (one relating to methamphetamine and the other to marijuana).
The State also charged Halstead with misdemeanor possession of prescription drugs, but the superior court granted her motion for directed verdict on that count, which is not at issue on appeal.
¶4 At trial, the jury found Halstead guilty on all felony counts and the court sentenced her to concurrent, minimum terms, totaling five years' imprisonment. This court has jurisdiction over Halstead's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -4033(A)(1) (2019).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Presentence Incarceration Credit.
¶5 Halstead argues she was not properly given presentence incarceration credit for time spent in custody in two unrelated cases and for the date sentence was imposed. Halstead is entitled to credit for "[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense." A.R.S. § 13-712(B). The court must award all time spent in custody after a defendant is booked into a detention facility. State v. Carnegie, 174 Ariz. 452, 453-54 (App. 1993). This does not include, however, time spent in police custody, time in custody on a separate offense or the date sentence is imposed. See State v. Reynolds, 170 Ariz. 233, 235 (1992); State v. Hamilton, 153 Ariz. 244, 245-46 (App. 1987); State v. Bridgeforth, 156 Ariz. 58, 59 (App. 1986), aff'd as modified, 156 Ariz. 60 (1988).
¶6 While released on her recognizance in this case, Halstead was charged in two separate cases (the 2017 cases) where the State alleged the offenses were committed while on release. The superior court did not, however, revoke Halstead's release in this case, and she was not taken into custody until the jury returned guilty verdicts. In this case, the court awarded Halstead 269 days of presentence incarceration credit from the date the court took her into custody to the day before sentencing. The court did not include any time she spent in custody solely for the 2017 cases. In the 2017 cases, Halstead entered guilty pleas and the court sentenced her as stipulated in the plea agreements.
Though Halstead was arrested in this case, the record does not show she was formally booked into a detention facility, and she has not shown she was owed presentence credit for the date of her arrest.
¶7 The court did not err in calculating Halstead's presentence incarceration credit. Contrary to Halstead's contention, she is not entitled to credit for the date sentence was imposed or for time spent in custody solely in the 2017 cases. II. Imposition Of Fees, Assessments And Surcharges.
To the extent Halstead argues she was not given proper presentence incarceration credit in the 2017 cases, or that the financial consequences imposed in the 2017 cases were improper, this court lacks appellate jurisdiction to address those issues, which would need to be raised in post-conviction relief proceedings. See A.R.S. § 13-4033(B); Ariz. R. Crim. P. 17.1(e), 32.1.
¶8 Halstead contends that the superior court erred in imposing excessive fees, assessments and surcharges. Given Halstead's indigent status, she argues the court should have waived or reduced the amount of fees, assessments and surcharges based on financial hardship. Halstead raises this issue for the first time on appeal, meaning review is for fundamental error. State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018).
¶9 In criminal cases, various statutes prescribe the amount and disposition of fines, fees and assessments. See A.R.S. §§ 11-584(C) (public defender assessment of $25, along with reasonable attorneys' fees); 12-114.01(A) (probation assessment of $20); 12-116(A) (time payment fee of $20); 12-116.04(A) (penalty assessment of $13); 12-116.09(A) (victims' rights enforcement assessment of $2); 13-3407(H) (dangerous drug offense fine of no less than $1,000). The court may also impose a combined 83 percent surcharge on any criminal fine. See A.R.S. §§ 12-116.01 (2018) (aggregate 60 percent surcharge); 12-116.02(A) (additional 13 percent surcharge); 16-954(A) (additional 10 percent surcharge). These amounts are payable immediately upon sentencing, unless the court allows payments to be made in installments. A.R.S. § 13-808(A).
¶10 For defendants who have expressed financial hardship, the superior court has the discretion to waive most fees, assessments and surcharges if payment "would work a hardship on the defendant or on the defendant's immediate family." A.R.S. § 13-825. Failure to waive fees, assessments and surcharges constitutes fundamental error resulting in prejudice only where the record shows "undisputed indigency." State v. Beltran, 189 Ariz. 321, 322 (App. 1997); State v. Torres-Soto, 187 Ariz. 144, 146 (App. 1996).
¶11 As part of Halstead's judgment and sentence in this case, the superior court imposed the following, to be payable immediately: (1) total fine of $2,000, with an 83 percent surcharge pursuant to A.R.S. §§ 12-116.01 (2018), 12-116.02(A), 13-3407(H), and 16-954(A); (2) probation assessment of $20 for each count pursuant to A.R.S. § 12-114.01(A); (3) time payment fee of $20 pursuant to A.R.S. § 12-116(A); (4) penalty assessment of $13 pursuant to A.R.S. § 12-116.04(A); (5) victims' rights enforcement assessment of $2 pursuant to A.R.S. § 12-116.09(A); and (6) a public defender assessment of $25 and fee of $500 pursuant to A.R.S. § 11-584(C). Halstead did not object, nor did she raise the issue of indigency at sentencing. Further, and according to presentence filings, Halstead owns a cleaning company, plans to maintain that business upon her release, and has worked as a tax preparer and medical assistant.
The court did not reduce the ordered amounts to a criminal restitution order. See generally A.R.S. § 13-805.
Although the court did not make any explicit findings concerning Halstead's ability to pay or whether the fees and assessments imposed would cause a substantial hardship, on this record, the lack of such findings is not fundamental error resulting in prejudice. State v. Moreno-Medrano, 218 Ariz. 349, 353 (App. 2008).
¶12 The court imposed each of the fines, fees, assessments and surcharges as statutorily prescribed. The record does not show that the court erred in declining to sua sponte waive these prescribed payment requirements based upon financial hardship. See Beltran, 189 Ariz. at 322. Accordingly, on this record, Halstead has shown no error, fundamental or otherwise.
III. Officer Testimony.
¶13 Halstead asserts the superior court erred in allowing an officer to identify marijuana residue and smell in a container under Arizona Rule of Evidence 702. Halstead does not challenge the relevancy or reliability of this testimony, nor does she challenge the officer's testimony regarding methamphetamine. Because Halstead did not timely object to the officer's testimony on this ground, the review on appeal is for fundamental error. Escalante, 245 Ariz. at 140 ¶ 12.
¶14 A witness may qualify as an expert based upon "knowledge, skill, experience, training, or education" and may testify as such if, among other things, "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Ariz. R. Evid. 702(a). If these requirements are met, the "level of expertise goes to credibility and weight, not admissibility." State v. Delgado, 232 Ariz. 182, 186 ¶ 12 (App. 2013).
¶15 Here, the State notified Halstead the officer would testify consistent with disclosed written and recorded statements. Based on the officer's training and experience handling "over 100 separate drug investigations," he testified to having located a "container commonly used with medical marijuana" and the substance inside having smelled and appeared to be marijuana residue. Halstead did not object to this testimony.
¶16 Although the superior court did not make findings under Rule 702, Halstead has not shown such findings were required, and the record shows the officer properly testified based upon his "knowledge, skill, experience, training, or education." Ariz. R. Evid. 702; see also State v. Mosley, 119 Ariz. 393, 400 (1978) (holding, under common law applicable before the promulgation of the Arizona Rules of Evidence, law enforcement officers may testify as experts based upon their training and experience). Nor was the court required to hold a hearing to determine admissibility of such testimony to comply with Rule 702. See State v. Perez, 233 Ariz. 38, 43 ¶ 19 (App. 2013). Accordingly, on this record, Halstead has shown no error, much less fundamental error resulting in prejudice.
IV. Elements Of Possession Of Methamphetamine For Sale.
¶17 Halstead contends that the superior court failed to accurately instruct the jury as to the elements of possession of methamphetamine for sale, an issue this court reviews de novo. See State v. Cox, 217 Ariz. 353, 356 ¶ 15 (2007). As applicable here, the State was required to prove Halstead knowingly possessed a dangerous drug for sale. A.R.S. § 13-3407(A)(2). Methamphetamine has been defined by law as a dangerous drug, A.R.S. § 13-3401(6)(c)(xxxviii), and "sale" has been defined by law to be "an exchange for anything of value or advantage, present or prospective," A.R.S. § 13-3401(32). Proof of a threshold amount is not an element of the offense. See A.R.S. §§ 13-3401(32), -3407(A)(2). The superior court instructed the jury as to each of the elements of the offense, consistent with Arizona law. The court did not err in providing the jury instructions as to possession of methamphetamine for sale.
V. Double Jeopardy.
¶18 Halstead argues the State failed to present evidence that the quantity of methamphetamine found within her vehicle exceeded the statutory threshold in obtaining a conviction for possession of methamphetamine for sale. As a result, Halstead claims the charges for possession of methamphetamine for sale and the lesser offense of possession or use of methamphetamine were based upon the same evidence, and therefore multiplicitous, an issue this court reviews de novo. State v. Brown, 217 Ariz. 617, 620 ¶ 7 (App. 2008).
¶19 Multiplicity occurs when the State charges a defendant with multiple counts for a single offense, triggering double jeopardy implications. Ohio v. Johnson, 467 U.S. 493, 497-98 (1984); State v. Powers, 200 Ariz. 123, 125 ¶ 5 (2001). Double jeopardy also bars multiple convictions for the greater and lesser-included offense, if based upon the same conduct. See Ball v. United States, 470 U.S. 856, 861-65 (1985); Brown v. Ohio, 432 U.S. 161, 168 (1977).
¶20 Though possession of drugs for personal use is a lesser-included offense of possession of drugs for sale when based upon the same conduct, the charges here are not based upon the same conduct. See Gray v. Irwin, 195 Ariz. 273, 276 ¶ 12 (App. 1999); State v. Moroyoqui, 125 Ariz. 562, 564 (App. 1980). At trial, the State presented evidence that Halstead appeared to be under the influence of methamphetamine, thereby possessing or using the drug, and, as a separate offense, possessed multiple baggies of methamphetamine consistent with drug sales, thereby possessing the drug for sale. See A.R.S. §§ 13-3401(6)(c)(xxxviii), -3407(A)(1)-(2). Given the State presented evidence of two distinct offenses, the charges were not multiplicitous and double jeopardy does not apply.
¶21 Lastly, the law does not require a separate jury finding of the threshold amount, as Halstead contends. See A.R.S. § 13-3407(A)(1)-(2). The State's use of statutory threshold language in the indictment was relevant only to Halstead's eligibility for probation, pardon or release, serious drug offense designation and prison range. See 13-3407(D) -3410(D)(1), -3419(A). Moreover, during a colloquy regarding final jury instructions, Halstead's counsel specifically asked the superior court to not include the threshold amount in jury instructions, stating it was "superfluous language," moving "to strike it" and adding that "[i]t's not really something that the jury needs to consider." Having asked the superior court to remove the issue from the jury instructions, Halstead cannot now argue on appeal that removing it was error. State v. Logan, 200 Ariz. 564, 565-66 ¶ 9 (2001). The State's failure to present evidence as to the quantity of methamphetamine did not constitute error, fundamental or otherwise.
The superior court did not use the quantity of methamphetamine located in Halstead's vehicle for sentencing or enhancement purposes. --------
CONCLUSION
¶22 Halstead's convictions and resulting sentences are affirmed.