Opinion
No. 1 CA-CR 13-0657
10-21-2014
STATE OF ARIZONA, Appellee, v. MANUEL BUSTAMANTE, JR., Appellant.
COUNSEL Office of the Attorney General, Phoenix By Robert A. Walsh Counsel for Appellee Elizabeth M. Brown, Yuma Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Yuma County
No. S1400CR201200497
The Honorable M. Scott McCoy, Judge
VACATED IN PART; AFFIRMED IN PART
COUNSEL Office of the Attorney General, Phoenix
By Robert A. Walsh
Counsel for Appellee
Elizabeth M. Brown, Yuma
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Donn Kessler and Judge Kent E. Cattani joined. THOMPSON, Judge:
¶1 Manuel Bustamante, Jr. appeals his convictions for first degree felony murder, conspiracy to commit possession of narcotic drugs for sale, conspiracy to commit armed robbery, transfer of narcotic drugs, misconduct involving weapons and possession of dangerous drugs. Bustamante argues the trial court failed to properly instruct the jury regarding felony murder; the evidence was insufficient to support his convictions for felony murder or either count of conspiracy; the two counts of conspiracy should be merged into a single count; the trial court erred when it admitted character evidence and this court should abandon the intrinsic evidence doctrine. For the reasons that follow, we vacate the conviction and sentence for conspiracy to commit possession of narcotic drugs for sale, merge the two counts of conspiracy and affirm the remainder Bustamante's convictions and sentences. I. Background
¶2 "We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998) (citation omitted). In our review of the record, we resolve any conflict in the evidence in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We do not weigh the evidence, however. That is the function of the jury. See id. at 293, 778 P.2d at 1189.
¶3 "EV" stole a car that contained thirty to forty pounds of methamphetamine and approximately fifty-six grams of heroin. To sell the drugs, EV sought the help of Bustamante, a drug dealer who later became EV's boyfriend. Bustamante agreed to help EV sell her drugs for an even split of the profits. Bustamante and EV eventually sold and/or otherwise exhausted the supply of methamphetamine. Bustamante began to sell heroin. As the supply of drugs began to run out, Bustamante grew increasingly concerned about the lack of drugs to sell and the resulting lack of income. As a result, Bustamante wanted to obtain and sell more heroin. EV's stolen heroin was the only heroin available at that time.
¶4 Approximately two weeks before the murder, EV became angry with Bustamante and gave her cousin ("Cousin") the remaining fifty grams of heroin EV had stolen. EV and Cousin agreed that Cousin would sell the heroin, give EV $600 from the sale(s) and keep the rest of the profits for herself. They also agreed they would not tell Bustamante.
¶5 Before Cousin could sell the remainder of EV's stolen heroin, Bustamante found his own buyer for the heroin. EV eventually admitted to Bustamante that Cousin had the heroin. Bustamante and EV began efforts to get the heroin back from Cousin. Cousin, however, had avoided contact with EV ever since she got EV's heroin. Cousin refused to take calls from EV and had refused to come to the door when EV came to her home.
¶6 On the day of the attack on the murder victim, Bustamante, EV and another person went to the apartment of Cousin's boyfriend (Boyfriend), believing that the heroin and/or Cousin might be there. Once they obtained the heroin, Bustamante and the others intended to transport the heroin in their vehicle. The murder victim and another of Boyfriend's neighbors saw Bustamante and EV try to enter Boyfriend's apartment. The neighbor knew Boyfriend was not at home. The neighbor confronted them, told them neither Boyfriend nor Cousin was there and told them not to enter the apartment. The neighbor then called Boyfriend and informed Bustamante and the others that he was doing so. After arguing with the neighbor, Bustamante, EV and the other person left the immediate vicinity of Boyfriend's apartment. The neighbor observed the group get into a car, drive a short distance away and park. The group then watched the neighbor and the victim from a distance for approximately one half hour as the neighbor and the victim stood outside their and Boyfriend's apartments. The group eventually drove away, after which the neighbor and the victim went to a liquor store.
¶7 Bustamante, EV and the other person then went to another residence where they believed they might find Cousin and/or the heroin. When they arrived, Bustamante told the occupant they were looking for Cousin and that they needed to come in and retrieve something that belonged to them. Bustamante was agitated. The occupant told Bustamante Cousin was not there and they could not come in. The occupant did not know that Cousin had hidden the heroin in the occupant's residence. Bustamante left a number for Cousin to call and said they would return to Boyfriend's apartment to look for Cousin there.
¶8 Back at Boyfriend's apartment complex, the neighbor and the murder victim returned from the liquor store and began drinking outside the victim's apartment. The neighbor eventually saw a group of people in the distance who appeared to be watching the neighbor and the murder victim. Eventually, those people approached the neighbor and the victim. The neighbor and the victim initially walked towards the group. As they did so, a second group of people approached the neighbor and the victim from another direction. The neighbor realized one of the people approaching them had a gun and that others had baseball bats. The neighbor ran to an apartment and told the victim to run. Once inside, the neighbor called 911 when he thought he heard a gunshot. When the neighbor came out of the apartment minutes later, he found the victim injured and leaning against a barbecue grill. The victim died several days later from blunt force injuries to his head.
¶9 After the attack on the victim, Bustamante told a drug dealer who worked for him that people at an apartment complex attacked him and others that night when Bustamante and the others went to an apartment to get heroin. Bustamante told the drug dealer that he gathered a group of people, returned to the apartment complex and attacked one of the people involved. Bustamante said "we" attacked the person with baseball bats.
¶10 Cousin and Boyfriend retrieved the heroin the night of the attack. When they learned about the attack later that night, they threw the heroin out a car window as they drove back to Boyfriend's apartment.
¶11 Investigators quickly identified Bustamante as a person of interest. The morning after the attack, Bustamante fled when sheriff's deputies attempted to conduct a traffic stop. Bustamante abandoned his vehicle during the pursuit and successfully evaded the deputies. Bustamante eventually fled to Mexico, where authorities apprehended him and returned him to Arizona several weeks later.
¶12 There was no evidence other than the neighbor's testimony to suggest that anyone fired a gun during the attack on the victim. Investigators never found a weapon with the victim's blood on it nor any weapon with Bustamante's fingerprints on it. Nobody testified they saw Bustamante at the scene of the attack during the attack. Investigators did find a complete, unfired .45 caliber round on the ground at the scene of the attack. They also found a baseball bat a short distance from the scene. During the search of an apartment where Bustamante lived with another girlfriend, investigators found a pair of shoes whose soles were consistent with impressions of shoe prints found at the scene of the attack as well as shoe prints found at the second residence where Bustamante sought the heroin. Investigators also found a .45 caliber pistol and ammunition, methamphetamine and a glass pipe and scales. The .45 caliber ammunition was the same type of hollow-point round with the same colorations and manufacturer's markings as the round found at the scene of the attack.
¶13 A jury convicted Bustamante as charged. The trial court sentenced Bustamante to concurrent terms of life imprisonment without a possibility of parole for twenty-five years for first degree felony murder; three terms of 15.75 years' imprisonment for conspiracy to commit possession of narcotic drugs for sale, conspiracy to commit armed robbery and transfer of narcotic drugs; and two terms of ten years' imprisonment for misconduct involving weapons and possession of dangerous drugs. Bustamante now appeals. We have jurisdiction pursuant to Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(2003), 13-4031 (2010) and 13-4033 (2010). II. The Jury Instructions for Felony Murder
The jury found Bustamante guilty of two counts of first degree murder based on both premeditation and felony murder. The trial court later vacated the conviction and sentence for premeditated first degree murder.
¶14 Bustamante argues the trial court did not adequately instruct the jury regarding first degree felony murder. A person commits first degree felony murder if, acting alone or with another person, the person commits or attempts to commit one of a number of designated felony offenses and in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person. A.R.S. § 13-1105(A)(2) (2012). The underlying offense for the count of felony murder in this case was the commission or attempted commission of transportation of narcotic drugs for sale. A person may not knowingly transport a narcotic drug for sale. A.R.S. § 13-3408(A)(7) (2012). Heroin is a narcotic drug. A.R.S. § 13-3401(20)(iii), (21)(m) (2012). "'Sale' [] means an exchange for anything of value or advantage, present or prospective." A.R.S. § 13-3401(32) (2012). "Transport" is not statutorily defined. The jury instructions identified the statutory elements of felony murder, transportation of narcotic drugs for sale and attempt. See A.R.S. §§ 13-1105(A)(2) (felony murder); 13-3408(A)(7) (transportation of narcotic drugs for sale); 13-1001(A) (2012) (attempt).
Bustamante does not argue the trial court erred when it failed to define "sale" for the jury.
"Where terms used in an instruction have no technical meaning peculiar to the law in the case but are used in their ordinary sense and commonly understood by those familiar with the English language, the court need not define these terms." State v. Barnett, 142 Ariz. 592, 594, 691 P.2d 683, 685 (1984). Arizona courts have previously recognized that "transport" as used in the context of drug offenses is used in its ordinary sense and as commonly understood; "to transfer or convey from one[] place to another," State v. Scotia, 146 Ariz. 159, 160, 704 P.2d 289, 290 (App. 1985), and "to carry, move, or convey from one place to another." State v. Cheramie, 218 Ariz. 447, 449, ¶ 11, 189 P.3d 374, 376 (2008). We have also made it clear "It does not matter whether you are conveying [the drugs] by means of a bicycle, an airplane or by foot, or whether you are going 10 miles or 10 feet." Scotia, 146 Ariz. at 160, 704 P.2d at 290.
¶15 Bustamante does not contend the jury instructions that identified the statutory elements of the offenses misstated the law. Bustamante argues, however, that the instructions were inadequate because they did not inform the jury that to convict a person of transportation or attempted transportation of narcotic drugs for sale, the sale of the narcotics must take place contemporaneously with the transportation of the narcotics and cannot happen at some time in the future after the transportation is complete. In other words, Bustamante claims the instructions failed to inform the jury that one element of transportation of narcotic drugs for sale is the presence of a buyer at the final destination who is willing and able to make an exchange for the narcotics upon their arrival at the final destination.
¶16 Bustamante concedes that he raised no objection below. "The failure to object to an instruction either before or at the time it is given waives any error, absent fundamental error." State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986). "To establish fundamental error, [a defendant] must show 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). Even if a defendant establishes fundamental error, the defendant must still demonstrate the error was prejudicial to be entitled to relief. Id. at ¶ 26.
¶17 The purpose of jury instructions is to inform the jury of the applicable law. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). A set of instructions need not be faultless. The instructions, however, must give the jury an understanding of the issues and must not mislead the jury. See id. It is only when the instructions, taken as a whole, are such that it is reasonable to suppose the jury would be misled that a case should be reversed for error in the instructions. Schrock, 149 Ariz. at 440, 719 P.2d at 1056 . "Where the law is adequately covered by the instructions as a whole, no reversible error has occurred." State v. Doerr, 193 Ariz. 56, 65, ¶35, 969 P.2d 1168, 1177 (1998).
¶18 Whether jury instructions properly state the law is an issue we review de novo. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). Interpretation of statutes is a matter we also review de novo. See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). When interpreting a statute, we attempt to fulfill the intent of the drafters and we look to the plain language of the statute as the best indicator of that intent. Id. We give the words and phrases of the statute their commonly accepted meaning unless the drafters provide special definitions or a special meaning is apparent from the text. State v. Barr, 183 Ariz. 434, 438, 904 P.2d 1258, 1262 (App. 1995). If the language is clear and unambiguous, we give effect to that language and do not employ other methods of statutory construction. State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997). Further, "[i]n construing a legislative enactment, we apply a practical and commonsensical construction." State v. Alawy, 198 Ariz. 363, 365, ¶ 8, 9 P.3d 1102, 1104 (App. 2000).
¶19 We find no error, fundamental or otherwise. There is nothing in the language of A.R.S. § 13-3408(A)(7) defining the offense of transportation of narcotic drugs for sale, the statutory definition of "sale," any definition of "transportation," nor any combination of any number of these factors that requires a contemporaneous sale to a buyer waiting for the arrival of the drugs at the final destination. All that is required for the completed offense is that a person knowingly transport narcotics for sale. The State need not prove the circumstances of any eventual sale or even the existence of any eventual sale. A used car sitting on lot waiting for a buyer that may never come is a car for sale. A person transporting narcotics in the hopes that somehow, somewhere he or she will find someone to sell the narcotics to is transporting narcotics for sale. We will not interpret the language of a statute defining an offense to require an element the legislature never intended.
¶20 Bustamante also argues we should apply the rule of lenity because the applicable statutes are ambiguous, unclear and/or otherwise susceptible to different interpretations. "The rule of lenity is a rule of statutory construction that applies only where a statute is susceptible to more than one interpretation. It is not a general rule of fairness or leniency." State v. Dean, 226 Ariz. 47, 54, ¶ 21, n. 6, 243 P.3d 1029, 1036 (App. 2010) (internal citation omitted). The applicable statutes are not reasonably susceptible to more than one interpretation. The rule of lenity has no application. III. The Sufficiency of the Evidence of Felony Murder
¶21 Bustamante argues the evidence was insufficient to support his conviction for felony murder because there was insufficient evidence to find he committed the underlying offenses of transportation or attempted transportation of narcotics for sale. "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). "To set aside a jury verdict for insufficient evidence, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) (citation omitted).
¶22 Relying on the same arguments we address above in the context of the jury instructions, Bustamante first argues the evidence was insufficient because there was no evidence there would be an "immediate sale" to a waiting buyer at the completion of the transportation or otherwise any evidence of when any sale would take place. For the reasons stated above, a contemporaneous sale to a buyer waiting for the arrival of the drugs at the final destination is not an element of transportation of narcotic drugs for sale. The State need not prove the circumstances of any eventual sale or even the existence of an eventual sale.
¶23 Bustamante also argues the evidence was insufficient because there was no evidence he went to the scene of the attack as part of an attempt to transport narcotic drugs for sale. The evidence cited above was sufficient to prove beyond a reasonable doubt that Bustamante and his accomplices, (1) actively searched for the heroin that EV stole so they could sell it; (2) they planned to transport that heroin in the vehicle in which they were traveling; (3) and that during their search, while at an apartment complex where they believed they could find the heroin and/or the possessor of the heroin, and in an effort to gain access to the location of the heroin and/or the possessor, Bustamante and/or an accomplice(s) attacked the victim and caused his death. This was sufficient to permit the jury to find beyond a reasonable doubt that Bustamante and/or an accomplice(s) caused the death of another person in the course of and in furtherance of the offense of attempted transportation of narcotic drugs for sale. While much of the evidence is circumstantial, "Arizona law makes no distinction between circumstantial and direct evidence." State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993). The State may obtain a conviction through circumstantial evidence alone. State v. Burton, 144 Ariz. 248, 252, 697 P.2d 331, 335 (1985). Finally, while Bustamante again claims we should apply the rule of lenity, the rule of lenity has no application here for the reasons stated above. IV. Conviction for Two Separate Conspiracies
A person commits attempt if, while acting with the culpability required for the commission of an offense, the person, (1) intentionally engages in conduct that would constitute the offense if the circumstances were as the person believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances the person believes them to be, is any step in a course of conduct planned to culminate in the commission of the offense; or (3) engages in conduct intended to aid another to commit an offense even though the offense is not committed or attempted by the other person, provided the person's conduct would establish complicity as a principal or an accomplice if the other person committed or attempted to commit the offense. A.R.S. § 13-1001(A). The trial court instructed the jury on all three theories of attempt.
¶24 Bustamante argues it was improper to convict him of both conspiracy to commit possession of narcotic drugs for sale and conspiracy to commit armed robbery. Bustamante argues the evidence showed there was a single conspiracy to commit two offenses. The State agrees and concedes error. "A person who conspires to commit a number of offenses is guilty of only one conspiracy if the multiple offenses are the object of the same agreement or relationship and the degree of the conspiracy shall be determined by the most serious offense conspired to." A.R.S. § 13-1003(C) (2012). Conspiracy to commit armed robbery and conspiracy to commit possession of dangerous drugs for sale are both class 2 felonies. A.R.S. §§ 13-3408(B)(2) (possession of a narcotic drug for sale); 13-1904(A)(B) (2012) (armed robbery); 13-1003(D) (classification of conspiracy). Even so, we vacate Bustamante's conviction and sentence for conspiracy to commit possession of narcotic drugs for sale as the less serious of the two offenses, merge the two conspiracy offenses and modify his conviction for count 3 to reflect a conviction for conspiracy to commit armed robbery and possession of narcotic drugs for sale. V. Sufficiency of the Evidence to Support the Count of Conspiracy
¶25 Bustamante asserts the evidence was insufficient to support either of his convictions for conspiracy. Even though we have merged the two counts of conspiracy into a single count, we address the sufficiency of the evidence to support his conviction of a single conspiracy to commit both possession of narcotic drugs for sale and armed robbery.
¶26 Conspiracy is a preparatory offense.
A person commits conspiracy if, with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and one of the parties commits an overt act in furtherance of the offense, except that an overt act shall not be required if the object of the conspiracy was to commit any felony upon the person of another, or to commit [first degree burglary or arson of an occupied structure].A.R.S. § 13-1003(A) (2012). A jury may find a person guilty of conspiracy even if the offense that is the object of the conspiracy remains inchoate or otherwise incomplete. State v. Saez, 173 Ariz. 624, 628, 845 P.2d 1119, 1123 (App. 1992).
¶27 A person commits robbery if the person takes property of another from his or her person or immediate presence and against his or her will, and in the course of doing so threatens or uses force against any person and does so with the intent to coerce surrender of the property or to prevent resistance to such person taking or retaining the property. A.R.S. § 13-1902(A) (2012). The robbery becomes an "armed robbery" if the person or an accomplice is armed with a deadly weapon or simulated deadly weapon or uses or threatens to use a deadly weapon, a dangerous instrument or a simulated deadly weapon. A.R.S. § 13-1904(A)(1) and (2) (2012). Finally, a person may not knowingly possess a narcotic drug for sale. A.R.S. § 13-3408 (A)(2.).
Despite Bustamante's argument to the contrary, a conviction for conspiracy to possess narcotic drugs for sale does not require proof the defendant ever actually or constructively possessed the narcotics at any time. The jury did not, as Bustamante contends, convict Bustamante of conspiring to steal something he already constructively possessed.
¶28 Bustamante's argument regarding this issue is not a model of clarity, particularly in regard to conspiracy to possess narcotic drugs for sale. Regardless, the evidence cited above was more than sufficient to permit the jury to find beyond a reasonable doubt that (1) Bustamante agreed with one or more persons that at least one of them or another person would engage in conduct constituting the offense of possession of narcotic drugs for sale; (2) one of the parties committed an overt act in furtherance of that offense, including but not limited to traveling to two residences to attempt to locate and obtain the narcotics and/or the person who possessed the narcotics, attempting to gain entry into the two residences and/or using force to defeat the efforts of others to prevent entry into one of those residences; and (3) Bustamante did so with the intent to promote or aid the commission of the offense of possession of narcotic drugs for sale. Nothing more was required to find Bustamante guilty of conspiracy to commit possession of narcotic drugs for sale.
¶29 The evidence cited above was also more than sufficient to permit a reasonable jury to find beyond a reasonable doubt that (1) Bustamante agreed with one or more persons that at least one of them or another person would engage in conduct constituting the offense of armed robbery; (2) at least one of the parties committed an overt act in furtherance of that offense, including but not limited to traveling to a residence while armed with a deadly weapon (a gun) or a dangerous instrument (a bat) to attempt to locate the person they believed possessed the narcotics; and (3) Bustamante did so with the intent to promote or aid the commission of the offense of armed robbery.
As to any claim that Bustamante could not be guilty of conspiracy to commit armed robbery because he had an ownership interest in the drugs, we are not persuaded. See A.R.S. §§ 13-1801(13), -1901(3) (2012) ("property of another" under robbery statutes includes property in which defendant has an ownership interest).
¶30 Within his argument, Bustamante also argues he could not be convicted of conspiracy to commit armed robbery of Cousin as charged because the evidence showed he knew Cousin was not at the apartment when Bustamante returned to the apartment with a group of people armed with a gun and/or baseball bats. There was evidence Cousin was with Boyfriend visiting a relative at a hospital at that time. The evidence regarding whether Bustamante knew or believed Cousin was or was not at the apartment is contradictory. That Bustamante never went to the hospital even though he allegedly believed Cousin was waiting there to personally give him the heroin is evidence he did not know or otherwise believe Cousin was at the hospital. "Because a jury is free to credit or discredit testimony, we cannot guess what they believed, nor can we determine what a reasonable jury should have believed." State v. Bronson, 204 Ariz. 321, 328, ¶ 34, 63 P.3d 1058, 1065 (App. 2003). VI. Admission of "Character" Evidence
¶31 Bustamante next contends the trial court erred when it admitted character evidence "masked as intrinsic evidence[.]" Bustamante argues the evidence consisted of Bustamante's use of methamphetamine and heroin and his violent and aggressive behavior as a result of that drug use. Bustamante concedes he did not object to any of this evidence. Therefore, Bustamante must show the error went to the foundation of his case, took away a right essential to his defense, was of such a magnitude it deprived him of a fair trial and that it resulted in actual prejudice. See Henderson, 210 Ariz. at 568, ¶ 24, 115 P.3d at 608.
¶32 We find no error, fundamental or otherwise. First, the record demonstrates the court did not admit the evidence as intrinsic evidence. When the State first sought to introduce evidence of Bustamante's use of heroin, Bustamante informed the court he had no objection to the admission of the evidence, but would "dispute" that he used heroin. The trial court found the evidence was admissible as evidence of other acts pursuant to Arizona Rule of Evidence 404(b). The court gave no further explanation and Bustamante sought none. During a discussion of the final instructions, Bustamante told the court it would be "appropriate" to give an instruction limiting the jury's consideration of evidence of other acts, such as Bustamante's use of methamphetamine. While the State mistakenly argued the court had not admitted any evidence pursuant to Rule 404(b), the trial court agreed with Bustamante that a limiting instruction was appropriate, particularly in regard to Bustamante's use of heroin, and because there was "a lot" of evidence of other acts.
For unknown reasons, the final instructions did not include a limiting instruction.
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¶33 Second, the evidence was admissible pursuant to Rule 404(b) to show motive, intent, plan, identity and/or absence of mistake or accident. Bustamante's use of methamphetamine was relevant to show that he was the person who possessed the methamphetamine that was the subject of the count of possession of dangerous drugs and that the methamphetamine did not belong to someone else. Bustamante's use of both methamphetamine and heroin was relevant to support the State's theory that Bustamante was desperate to get the heroin from Cousin, transport the heroin and then sell it because Bustamante had exhausted his supply of methamphetamine and heroin through both sale and personal use.
¶34 Finally, Bustamante's claim that the State sought to admit this evidence to show he was "part of a dangerous, violent drug organization" is not supported by the record. To support this contention, Bustamante relies on a statement by the prosecutor that Bustamante takes out of context, as well as testimony of EV and Cousin that do not support his argument. Regarding the prosecutor's statement, Bustamante objected and moved for a mistrial after the State elicited evidence that Bustamante had spent time in prison. During the discussion on the motion, the prosecutor unsuccessfully argued Bustamante's prior incarceration was admissible to show his connection to the apartment where investigators found the methamphetamine, the .45 caliber pistol, the ammunition and the drug paraphernalia. During the discussion, the prosecutor told the court, "To us it's always been along the lines of, we're talking about drugs, we're talking about angry, violent people, and we're talking about people who are able to collect, most of the times when they're not using baseball bats, because other people on the street know that they're bad dudes." The prosecutor made this statement in the context of Bustamante's prior imprisonment, not his drug use, and outside of the presence of the jury. For these reasons, the exchange could not have affected the result.
¶35 Regarding the testimony of EV and Cousin, Bustamante directs us to specific portions of the record where he claims the State introduced testimony to show his "anger" and "aggression." A review of those portions of the record shows they do not support Bustamante's contention. In the identified portion of EV's testimony, EV testified Bustamante was not "upset" or "mad" during the initial encounter with the neighbor and the victim when they prevented Bustamante and others from entering Boyfriend's apartment, nor was he "mad" at Cousin for taking the heroin. In the identified portion of Cousin's testimony, while Cousin testified that some people who use methamphetamine can become "overly aggressive" and "angry," the only behavior she saw Bustamante display when he used methamphetamine was that he became "serious" and "paranoid." VII. The Intrinsic Evidence Doctrine
¶36 As the final issue on appeal, Bustamante urges us to abandon the intrinsic evidence doctrine, claiming in part that the trial court admitted the evidence of Bustamante's drug use as intrinsic evidence. As noted above, the trial court referenced only Rule 404(b) and/or evidence of other acts whenever it referenced the evidence of Bustamante's drug use. Regardless of whether or not the court admitted any evidence as intrinsic, we decline to abandon the intrinsic evidence doctrine. Our supreme court continues to recognize the validity of the doctrine, holding evidence is intrinsic "if it (1) directly proves the charged act, or (2) is performed contemporaneously with and directly facilitates commission of the charged act" and that a trial court may admit intrinsic evidence without any analysis pursuant to Arizona Rule of Evidence 404. State v. Ferrero, 229 Ariz. 239, 243-44, ¶¶ 20-21, 274 P.3d 509, 513-14 (2012). "We are bound by decisions of the Arizona Supreme Court, and have no authority to overrule, modify, or disregard them.... Whether prior decisions of the Arizona Supreme Court are to be disaffirmed is a question for that court." Myers v. Reeb, 190 Ariz. 341, 342, 947 P.2d 915, 916 (App. 1997). VIII. Conclusion
¶37 We vacate Bustamante's conviction and sentence for conspiracy to commit possession of narcotic drugs for sale as charged in count 2, merge the two counts of conspiracy and modify his conviction for count 3 to reflect a conviction for conspiracy to commit armed robbery and possession of narcotic drugs for sale. We affirm the remainder of Bustamante's convictions and sentences.