Summary
concluding that Arizona’s possession of a dangerous drug statute, A.R.S. § 13-3407, is not divisible as to drug type
Summary of this case from Romero-Millan v. BarrOpinion
No. 1 CA-CR 15-0188
02-16-2016
STATE OF ARIZONA, Appellee, v. DELTON PRESCOTT, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Spencer D. Heffel 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2014-111126-001
The Honorable Rosa Mroz, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge John C. Gemmill and Judge Margaret H. Downie joined. GOULD, Judge:
¶1 Delton Prescott, Jr. appeals from his convictions and sentences on two counts of sale of a dangerous drug and one count of possession of a dangerous drug for sale. For the following reasons, we affirm Defendant's convictions and sentences.
BACKGROUND
¶2 On two separate occasions Defendant sold pills that he represented contained molly, or MDMA, to an undercover detective. Subsequent testing of the pills showed they contained methamphetamine, not MDMA. After Defendant was arrested, police also found a large amount of methamphetamine in his home. Defendant was subsequently indicted, tried and convicted on seven felony counts; he only appeals his convictions and sentences for sale of a dangerous drug (counts 1 and 3) and possession of a dangerous drug for sale (count 5).
Throughout this case "molly" and MDMA were used interchangeably to describe the compound 3, 4-methylendioxymethamphetamine, a substance classified as a "dangerous drug" under Arizona law. See Arizona Revised Statute ("A.R.S.") § 13-3401(6)(a)(xxiii). --------
DISCUSSION
I. Amendment of the Indictment
¶3 Defendant argues the trial court improperly amended the indictment. Specifically, Defendant contends the court amended the allegations in the indictment by substituting the term, "dangerous drug," for the term "methamphetamine" in the final jury instructions. We disagree.
¶4 The indictment alleged Defendant sold or possessed "[m]ethamphetamine, a dangerous drug." Based on these charges, Defendant argued the State was required to prove he knew the substance he possessed and sold was methamphetamine. Defendant further contended that he could not be found guilty of the subject charges because he mistakenly believed the substance he sold/possessed was MDMA.
¶5 The State countered this defense by arguing that, under A.R.S. §§ 13-3407(A)(2, 6), both MDMA and methamphetamine are dangerous drugs. Thus, it was not required to prove Defendant knew the substance was methamphetamine; rather, it only needed to prove Defendant knowingly sold and possessed any dangerous drug.
¶6 The trial court agreed with the State, and instructed the jury the State was required to prove (1) Defendant knowingly possessed or sold a dangerous drug, and (2) the substance was a dangerous drug. The jury instructions also explained that methamphetamine and MDMA are dangerous drugs.
¶7 "The [S]tate's burden in a criminal trial is to prove the essential elements of the crime charged." State v. Bloomer, 156 Ariz. 276, 279 (App. 1987). A.R.S. § 13-3407(A)(2, 7) provides that a person shall not knowingly "[p]ossess a dangerous drug for sale" or "sell . . . a dangerous drug." Thus, under the language of the statute, the State is only required to prove a defendant knowingly sold and possessed a dangerous drug. See Bloomer, 156 Ariz. at 279. In addition, the statute defines "dangerous drug" as including both methamphetamine and MDMA. A.R.S. § 13-3401(6)(a)(xxiii, xxxviii).
¶8 Accordingly, we conclude the trial court's substitution of the term, "dangerous drug," for the term "methamphetamine" in the jury instructions did not change the nature of the originally charged offenses. II. Duplicitous Charges
¶9 Defendant argues that counts 1, 3 and 5 are duplicitous charges because they permitted the jury to convict him on two different theories. Defendant asserts that on the one hand, the jury could have found him guilty of knowingly selling MDMA, a dangerous drug. Under this theory, his mistake of fact about the true nature of the substance he sold and possessed did not prevent him from being held criminally liable for selling/possessing what turned out to be methamphetamine. Under the second theory, Defendant contends the jury could have convicted him on the grounds he knew the substance was methamphetamine. Defendant argues the existence of these two alternative theories creates the potential for unconstitutional non-unanimous jury verdicts.
¶10 Defendant makes this argument for the first time on appeal, and therefore we review for fundamental error. See State v. Herrera, 176 Ariz. 9, 15 (1993).
¶11 We find no error. It is clear from the statutes that possession or sale of a dangerous drug is one crime, regardless of whether the drug possessed or sold is methamphetamine, MDMA, or any other substance the statutes define as a dangerous drug. A.R.S. § 13-3407 (elements of sale/possession of a dangerous drug for sale); A.R.S. § 13-3401 (containing the definition of dangerous drug). "Although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed." State v. Encinas, 132 Ariz. 493, 496 (1982) (citations omitted). Thus, even if the jury convicted Defendant without agreeing on which dangerous drug was involved in the offense, Defendant was not denied his constitutional right to a unanimous jury verdict. See Herrera, 176 Ariz. at 16 (explaining that the constitution requires unanimity on the commission of the crime, but not the manner of committing it); cf. State v. Klokic, 219 Ariz. 241, 244, ¶ 14 (App. 2008) (stating that remedial measures are required to avoid a non-unanimous verdict when the State attempts to prove one charge with multiple acts). III. Sentencing Error
¶12 Finally, Defendant argues his sentences on counts 1, 3 and 5 are illegal. Defendant asserts the trial court enhanced his prison sentences on the grounds the subject offenses involved methamphetamine, when in fact the jury never determined the offenses involved methamphetamine. He asserts this was reversible error, because "any fact that increases the mandatory minimum [sentence] is an 'element' that must be submitted to the jury" and found beyond a reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013).
¶13 Defendant raised this issue at sentencing; accordingly we review for harmless error. State v. Lizardi, 234 Ariz. 501, 506, ¶ 19 (App. 2014). We review the trial court's interpretation of the sentencing statutes de novo. State v. Urquidez, 213 Ariz. 50, 53, ¶ 11 (App. 2006).
¶14 Here, it is clear Defendant faced increased mandatory minimum sentences for committing crimes involving methamphetamine. Before sentencing, the State proved Defendant had one historical prior felony. Thus, Defendant could have been sentenced as a category two repetitive offender for counts 1, 3 and 5, all class two felonies. A.R.S. § 13- 703(I). As a category two repetitive offender, Defendant faced a mandatory minimum sentence of 4.5 years. Id. However, the trial court sentenced Defendant under A.R.S. § 13-3407(E), for an offense involving methamphetamine. Under that statute, the mandatory minimum sentence is 5 years.
¶15 Based on the foregoing, we conclude the trial court erred in sentencing Defendant under section 13-3407(E) without a jury finding that the subject offenses involved methamphetamine. Alleyne, 133 S. Ct. at 2155. Such error, however, is harmless if the State can show "'beyond a reasonable doubt that the error did not contribute to or affect" Defendant's sentence. State v. Large, 234 Ariz. 274, 280, ¶ 19 (App. 2014) (quoting State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005)).
¶16 The evidence shows that no reasonable jury could conclude the subject offenses did not involve methamphetamine. The State presented uncontested testimony that the substance Defendant possessed and sold was tested and found to contain methamphetamine. Throughout trial, although Defendant claimed he thought the drugs were MDMA, he never contested the fact the drugs were actually methamphetamine. In fact, in his closing argument Defendant stated "the only drug that's been presented to you in this case is methamphetamine."
¶17 Based on the uncontroverted evidence, no reasonable jury could have concluded the offenses involved a substance other than methamphetamine. Thus, the error "did not contribute to or affect the sentence" and it is unnecessary to reverse or remand. Large, 234 Ariz. at 280, ¶ 19.
CONCLUSION
¶18 For the reasons above Defendant's convictions and sentences are affirmed.