Opinion
No. 1 CA-CR 13-0095
01-14-2014
STATE OF ARIZONA, Appellee, v. RAIJI NIGUEL HOLT, Appellant.
Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Mohave County Legal Advocate's Office, Kingman By Jill L. Evans Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Mohave County
No. S8015CR 2012-00663
The Honorable Steven F. Conn, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee
Mohave County Legal Advocate's Office, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined. JOHNSEN, Judge:
¶1 Raiji Niguel Holt appeals his conviction and sentence for promotion of prison contraband, a Class 5 felony, arising from the discovery of a metal shank in a bag of popcorn in Holt's legal box. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 After a cell phone and a metal shank were found hidden in his prison "area," Holt was indicted in October 2011 on two charges of promotion of prison contraband: Possession of a dangerous instrument (the shank), a Class 2 felony; and possession of the cell phone, a Class 5 felony. In May 2012, the State indicted Holt on four counts of promotion of the same prison contraband. The new indictment charged Holt with Class 2 and Class 5 felonies for possessing the shank and two Class 5 felonies for possessing the cell phone. At arraignment on the charges in the 2012 indictment, at the State's request, the superior court dismissed the 2011 charges with prejudice.
¶3 Holt later moved to dismiss the 2012 charges, arguing the dismissal with prejudice of the 2011 charges required dismissal of the 2012 charges because they were based on the same conduct. The same superior court judge who had dismissed the 2011 charges with prejudice granted the motion as to the Class 2 felony charge relating to the shank and both Class 5 felony charges relating to the cell phone, but declined to dismiss the Class 5 felony charge based on the shank. The jury convicted Holt on the Class 5 felony charge and the court sentenced him to three years' imprisonment.
¶4 Holt filed a timely notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2014), 13-4031 (2014) and 13-4033(A) (2014).
Absent material revision after the relevant date, we cite a statute's current version.
DISCUSSION
¶5 Holt argues the superior court erred in declining to dismiss the remaining charge because it was a lesser-included offense of one of the charges in the 2011 indictment that the court had dismissed with prejudice. Holt argues that because indictment on an offense constitutes "a charge of that offense and of all offenses necessarily included therein," Ariz. R. Crim. P. 13.2(c), the dismissal with prejudice of the greater offense relating to the shank (the Class 2 felony in the 2011 indictment) barred prosecution of the lesser offense (the Class 5 felony in the 2012 indictment). This court reviews a superior court's ruling on a motion to dismiss for abuse of discretion. State v. Boggs, 218 Ariz. 325, 336, ¶ 50, 185 P.3d 111, 122 (2008). We may affirm a superior court's ruling on any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199, 735 P.2d 801, 809 (1987).
¶6 We recently held that possession of prison contraband charged as a Class 5 felony under the theory that the article is one "whose use or possession would endanger the safety, security or preservation of order in a correctional facility," as in this case, is a lesser-included offense of possession of prison contraband charged as a Class 2 felony under the theory that the article is a deadly weapon or dangerous instrument. State v. Hines, 232 Ariz. 607, 611, ¶ 14, 307 P.3d 1034, 1038 (App. 2013). Nevertheless, the superior court did not err in this case in allowing the prosecution of the Class 5 felony to proceed after it had dismissed the greater offense with prejudice.
¶7 As Holt concedes, double jeopardy did not bar prosecution on the lesser charge. See Ohio v. Johnson, 467 U.S. 493, 501-02 (1984) (acceptance of a guilty plea to lesser-included offenses while charges on the greater offenses remain pending does not implicate double jeopardy); Serfass v. United States, 420 U.S. 377, 388 (1975) ("jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is put to trial before the trier of facts, whether the trier be a jury or a judge").
¶8 Holt nevertheless argues the dismissal with prejudice of the 2011 charges required the dismissal of each of the 2012 charges. In its order allowing the single Class 5 felony charge to stand, the superior court cited State v. Johnson, 113 Ariz. 506, 557 P.2d 1063 (1976), for the proposition that a superior court "may vacate an order dismissing charges with prejudice and reinstate a case for trial when it is convinced that the dismissal with prejudice was incorrectly granted." The court noted that, pursuant to Arizona Rule of Criminal Procedure 16.6(d), "[d]ismissal of a prosecution shall be without prejudice to commencement of another prosecution unless the court order finds that the interests of justice require that the dismissal be with prejudice." The court observed, however, that in granting the prosecutor's request to dismiss the 2011 charges with prejudice, it "never made a determination that the interests of justice required a dismissal with prejudice" and added that it "has no idea what such a finding could have legitimately been based on." Addressing the 2012 charges, the court noted that because the Class 2 felony charge (shank) and the Class 5 felony charges (cell phone) in the 2012 indictment "correspond" with the dismissed 2011 charges, "the interests of justice require that those charges be dismissed, again, with prejudice." The court stated that there was "no such reason to dismiss" the Class 5 felony charge relating to the shank.
¶9 We infer from its order that the superior court concluded that the Class 5 felony charge in the 2012 indictment relating to the shank would not have been a lesser-included offense to the 2011 Class 2 felony charge based on the same act. Although we disagree with that conclusion, we will not reverse the superior court's decision to allow the Class 5 charge to stand because it is apparent from the court's order that it also concluded that the interests of justice did not support the earlier dismissal with prejudice of the Class 2 felony in the 2011 indictment. Holt does not argue the superior court lacked the power to reinstate a charge previously dismissed with prejudice. Instead, he contends that principles of "general fairness and speedy trial grounds" required dismissal of each of the 2012 charges. Although the superior court did not expressly vacate its prior order dismissing with prejudice the 2011 charge relating to the shank, that is the effect of its order denying the motion to dismiss the Class 5 felony charge in the 2012 indictment, and we affirm the order on that ground.
¶10 Holt next argues insufficient evidence demonstrated that he possessed the metal shank. We review de novo the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶15, 250 P.3d 1188, 1191 (2011). We view the facts in the light most favorable to upholding the jury's verdict, and resolve all conflicts in the evidence against defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). In our review, we do not distinguish between direct and circumstantial evidence. See State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993).
¶11 The evidence was sufficient to support the conviction. The offense of possession of contraband requires proof the defendant knowingly possessed contraband while confined in a correctional facility. A.R.S. § 13-2505(A)(3). Possession can be either constructive or actual. A.R.S. § 13-105(34). Constructive possession requires proof that the item is in a place under the defendant's dominion and control, and that the circumstances are such that it reasonably can be inferred that he has actual knowledge of the item's presence. State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972). The evidence demonstrated that the metal shank was found in a popcorn bag in Holt's "legal box." When questioned after the incident, Holt claimed that the shank "shouldn't" have been there, but also insisted that in light of his position as yard leader, nobody would be "stupid enough" to go into his belongings. This evidence was sufficient to support the jury's verdict.
¶12 Holt finally argues that the superior court abused its discretion in refusing to preclude evidence that he admitted he knowingly possessed the cell phone that was discovered in his soap box. Holt argues this evidence was irrelevant, unfairly prejudicial, and improper character evidence, and its admission was not harmless error, notwithstanding the court's instruction that the evidence could not be used to show propensity, but could be used "only to the extent that you find it relevant as to whether the Defendant knew that he possessed" the shank. We review the admission of evidence for abuse of discretion. State v. Robinson, 165 Ariz. 51, 56, 796 P.2d 853, 858 (1990). To demonstrate that an alleged error was harmless, the State must show beyond a reasonable doubt that the error in admitting the evidence "did not contribute to or affect the verdict or sentence." State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005) (citing State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)).
¶13 Assuming for purposes of argument that, as Holt contends, the discovery of the cell phone in his soap box and his admission he knew it was there were of little relevance to possession of the metal shank, the court's limiting instruction minimized any possibility that the evidence would be used for improper purposes. Moreover, any effect of this evidence on the verdict would have been insignificant, given the relatively innocuous nature of the cell phone (as compared to the metal shank), and the narrow relationship between his possession of the one object of contraband with his possession of the other. On this record, the evidence did not contribute to or affect the verdict.
CONCLUSION
¶14 For the foregoing reasons, we affirm Holt's conviction and sentence.