Opinion
No. 2 CA-CR 2016-0315
09-29-2017
THE STATE OF ARIZONA, Appellee, v. TONYA SUE DEARMAN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Dean Brault, Pima County Legal Defender By Alex Heveri, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the superior Court in Pima County
No. CR20151936001
The Honorable Scott Rash, Judge AFFIRMED IN PART, VACATED IN PART COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee Dean Brault, Pima County Legal Defender
By Alex Heveri, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ECKERSTROM, Chief Judge:
¶1 Following a jury trial in absentia in April 2016, appellant Tonya Dearman was convicted of transportation of a dangerous drug for sale, possession of drug paraphernalia, possession of a dangerous drug for sale, and possession of a deadly weapon during the commission of a felony drug offense. Dearman also pled guilty to weapons misconduct. In August 2016, the trial court sentenced her to concurrent, minimum and presumptive prison terms, the longest of which are six years, to be followed by concurrent, three-year terms of probation.
The jury found beyond a reasonable doubt that Dearman had possessed more than nine grams of methamphetamine with respect to the counts of transportation and possession of a dangerous drug for sale, and that those offenses were committed in the presence of an accomplice and with the expectation of pecuniary gain.
Section 13-4033(C), A.R.S., precludes a nonpleading defendant from filing a direct appeal when "the defendant's absence prevents sentencing from occurring within ninety days after conviction and the defendant fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary." As the state correctly points out, because the record before us does not appear to contain evidence that Dearman was informed that her voluntary delay of sentencing for more than ninety days would result in a waiver of her appeal rights, see State v. Bolding, 227 Ariz. 82, ¶ 20, 253 P.3d 279, 285 (App. 2011), we find no waiver. Trial courts should routinely warn defendants of this risk.
¶2 On appeal, Dearman argues the trial court erred in denying her motions to suppress evidence seized from her car and statements obtained "without Miranda warnings." She also maintains her convictions for transportation and possession of a dangerous drug for sale violate the prohibition against double jeopardy. For the following reasons, we vacate Dearman's conviction and sentence for possession of a dangerous drug for sale, but otherwise affirm.
Miranda v. Arizona, 384 U.S. 436 (1966).
Motions to Suppress
¶3 In reviewing a trial court's ruling on a motion to suppress, "we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the . . . ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). In reviewing a ruling on a motion to suppress, we defer to the court's factual determinations, but we review its legal conclusions de novo. See State v. Olm, 223 Ariz. 429, ¶ 7, 224 P.3d 245, 248 (App. 2010); see also In re Ilono H., 210 Ariz. 473, ¶ 3, 113 P.3d 696, 697 (App. 2005) (whether police have reasonable suspicion to conduct investigatory stop is mixed question of law and fact we review de novo).
¶4 During the morning on July 16, 2014, Drug Enforcement Administration Agent Michael Garbo was part of a group surveillance of a stash house located in a Tucson neighborhood known for "drug trafficking" when officers observed two vehicles with New Mexico license plates involved in "suspicious" activity at a nearby convenience store. Individuals with New Mexico license plates did not frequent the area; "[t]here was a lot of transit back and forth" between the subject vehicles, activity consistent with drug sales which often occur in public places like convenience store parking lots; and, the vehicles departed "in tandem," conduct "very common[ly]" found with illegal drug activity.
¶5 At approximately 6:30 p.m. on the same day, an agent reported seeing one of the New Mexico vehicles parked in a stall at a nearby car wash. Garbo, who was dressed in "plain clothes," drove around the front of the car wash and made eye contact with Dearman, who was in the driver's seat of the vehicle. Garbo approached Dearman, who "hurriedly" got out of the car and started putting tokens into the car wash machine. Garbo introduced himself as a law enforcement officer and asked if he could speak with Dearman, whom he described as looking "nervous." Garbo was wearing a digital recording device; his conversation with Dearman was played and admitted into evidence at the suppression hearing.
In her reply brief, Dearman incorrectly asserts this occurred the following day.
¶6 After Garbo explained to Dearman that there had been "heavy criminal activity" in the area, she proceeded to talk with him. Garbo did not physically block Dearman's vehicle with his body or car during the conversation. He testified Dearman continued to talk with him as she washed her car, and that his contact with her at that point was "[a]bsolutely" consensual. While Garbo was speaking with Dearman outside the car, Border Patrol Agent Hector Lopez, who was dressed in "street clothes," approached the passenger side of Dearman's car and tapped on the front-passenger window, which was heavily tinted. Although Lopez did not verbally ask the front-seat passenger to roll down the window, she did so, revealing codefendant Ian Goodyear in the back seat. Lopez then asked Goodyear to roll down his window, and saw that he was shirtless and was holding "a lockback pocket knife with the blade exposed." Lopez asked Goodyear if he had any weapons or guns in the vehicle, and he responded that he had a gun.
¶7 Lopez informed Garbo "[t]here's a gun in the car," after which Goodyear was taken out of the vehicle and "came toward[]" Garbo, who handcuffed him for "safety reasons." At that point, Garbo "did not know where the knife or any type of gun was located." Garbo conducted a pat-down search on Goodyear, which yielded a knife and a bag with 12.45 grams of crystal methamphetamine, an amount consistent with the "distribution" of drugs.
¶8 Garbo testified, "[a]t that point there [were] several things kind of going on at once." The officers asked the front seat passenger to get out of the car; she did so, leaving the door open and revealing in plain view under the center console a ceramic pipe "commonly used for smoking methamphetamine." Garbo testified that, "due to the fact that the door was open," the pipe was "the first observation [he] made" before he looked anywhere else in the vehicle. He then opened the rear passenger door and found lying on the floor a set of digital scales consistent with narcotics paraphernalia, a ceramic pipe commonly used for smoking crystal methamphetamine, and a handgun in the driver's side seatback. Garbo then opened the driver's door, and sticking out of the side of a large purse on the driver's side floorboard he found a ceramic pipe commonly used for smoking crystal methamphetamine, and inside the purse he found debit and credit cards bearing Dearman's name and "two large, clear [Z]iplocked bags" containing crystal methamphetamine.
Contrary to his testimony at the suppression hearing, Garbo stated in his report that after the front seat passenger got out of the car, he opened the rear driver's door, revealing a scale, a ceramic pipe, and two guns. He reported "[a]t that point," he walked to the front passenger door and saw the pipe in plain view. Because neither party challenged this apparent discrepancy at the suppression hearing or on appeal, we deem it abandoned and waived. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ("Failure to argue a claim usually constitutes abandonment and waiver of that claim.").
¶9 Garbo testified that once he knew a gun was involved, his encounter with Dearman was no longer consensual, and he ordered her to "move over to the other side of the wall"; "Mr. Goodyear had [come] out of the vehicle, was walking in my direction. So, again, due to safety concerns, I wanted Ms. Dearman out of my way so I could, again, conduct the pat down and secure Mr. Goodyear." At that point, Garbo and Lopez were the only two officers dealing with three individuals, Dearman, Goodyear and the front-seat passenger. Dearman was "nervous, anxious [and] distracted," and appeared to be "extremely high," under the influence of crystal methamphetamine, and several times she "did not listen or follow [Garbo's] direction[s]."
¶10 "At some point" Garbo gave Dearman the Miranda warning, which she indicated she understood before she continued to talk to him and admitted the pipe and methamphetamine in the purse belonged to her. Garbo responded negatively when the prosecutor asked him: "Was there ever a point at which [Dearman] said, 'I don't want to answer your questions?'"; "Was there ever a point in which [Dearman] said, 'I'm done, I don't want to talk?'"; "Is there ever a point in which [Dearman] asked for an attorney?" Two other agents subsequently conducted a post-arrest interview of Dearman, during which they reminded her that Garbo had previously given her the Miranda warning, informed her of her rights, and asked her if she wanted them to "reread" her rights before she continued talking to them. Dearman responded, "I know them [the rights specified by the Miranda warning] by heart. I used to date a cop," and then proceeded to speak with the officers.
A. Motion to Suppress Evidence in Dearman's Car
¶11 Dearman challenges the trial court's denial of her motion to suppress the evidence found in her car, arguing any evidence seized from her vehicle or any occupant therein is the "'fruit' of the illegal detention and an unlawful de facto arrest." Wong Sun v. United States, 371 U.S. 471 (1963). She reasons the evidence was illegally seized "during the warrantless search of her car when she and [Goodyear] were handcuffed far away from the car," thereby "dissipat[ing]" any officer safety issues, and contends the court improperly relied on the good-faith exception to the warrant requirement and State v. Garcia Garcia, 169 Ariz. 530, 532, 821 P.2d 191, 193 (App. 1991) (any reasonable fear for officer safety enough to permit search under Terry v. Ohio, 392 U.S. 1 (1968)). Instead, she asserts the court should have relied on State v. Serna, 235 Ariz. 270, ¶ 28, 331 P.3d 405, 411 (2014) (during consensual encounter, absent consent, officer may frisk individual only when officer possesses reasonable suspicion person has engaged or is about to engage in criminal activity and person is armed and dangerous).
Dearman asserts she was "[a]rrested and secured before the vehicle was searched," maintaining she was handcuffed at that point. However, the page from the transcript of the suppression hearing Dearman cites for this fact establishes that Garbo placed Goodyear, not Dearman, in handcuffs when he got out of the car. To the contrary, Garbo's testimony and the audio recording show that Dearman was only directed to stand against the wall, and was in fact warned several times that she would be handcuffed if she did not cooperate.
¶12 The Fourth Amendment to the United States Constitution prohibits unreasonable searches or seizures. U.S. Const. amend IV. Warrantless "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). Fourth Amendment protections "extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002), citing Terry, 392 U.S. at 9, 30 (officer justified in frisking individual for weapons if officer can reasonably conclude criminal activity may be afoot and person may be armed and presently dangerous).
¶13 The trial court denied Dearman's motion to suppress, explaining that although Serna applies to the facts at issue, because that case was decided in August 2014, after the July 2014 incident, Garcia Garcia, which held that "any reasonable fear for [officer] safety is enough to warrant a search," was the applicable law at the relevant time. Serna, 235 Ariz. 270, ¶ 28, 331 P.3d at 411; Garcia Garcia, 169 Ariz. at 532, 821 P.2d at 193. The court further found the "officer's view of [Goodyear's] knife and Mr. Goodyear's statement, 'I have a gun,'" created a reasonable fear for officer safety, "such that the detention at that point was reasonable[, based on] suspicion of a crime occurring or having been committed, that a Terry stop was—detention was appropriate under the totality of the circumstances." The court also explained that, although there was no reasonable suspicion to stop and detain Dearman initially, once Lopez determined Goodyear had a gun, under Garcia Garcia, Garbo "could detain [Dearman] for officer safety" and Lopez could ask Goodyear to get out of the vehicle.
¶14 The trial court relied on Davis v. United States, 564 U.S. 229, 241 (2011), where the Supreme Court found that a search based on officers' objectively reasonable reliance on binding precedent is not subject to the exclusionary rule, and State v. Driscoll, 238 Ariz. 432, ¶¶ 11, 14, 17, 361 P.3d 961, 963-65 (App. 2015), where we adopted the reasoning in Davis. When the court asked defense counsel why it should not apply Davis's good-faith exception to the exclusionary rule, as adopted in Driscoll, she responded, "I don't have an answer for you."
¶15 Relying on Serna, Dearman argues possession of a firearm alone does not create reasonable suspicion criminal activity is afoot, and an officer "cannot hide behind officer safety concerns when the officer puts himself or herself in harm's way to begin with." Serna, 235 Ariz. 270, ¶¶ 17, 22-23, 331 P.3d at 274-75. She also asserts the trial court's reliance on Garcia Garcia was improper because it was decided in 1991, "over two decades before most of the cases relied on by the Serna Court," and contends Serna is not, in any event, a significant change in the law. Additionally, she argues Arizona v. Gant, 556 U.S. 332, 343 (2009), overruled Garcia Garcia "in holding that police may no longer use officer safety to justify warrantless searches of vehicles . . . once the individuals are removed and secured." Dearman further argues Garcia Garcia is distinguishable from this case, in that officers there had specific articulable facts that Garcia Garcia had committed a crime, whereas here the officers "had no valid reason to believe that [Dearman] had committed a crime," but instead "thought perfectly innocent behavior of [Dearman's] New Mexico license plates and her being in a high crime area was suspicious."
To the extent Dearman relies on an "Interview of DEA Agent Garbo" to support her arguments, that interview does not appear to have been attached to her motion to suppress or admitted as an exhibit at the suppression hearing. We therefore do not consider it.
¶16 We need not directly address Dearman's arguments based on the distinction between Garcia Garcia and Serna; under well-developed case law, we find reasonable suspicion existed as a matter of law, and the search of Dearman's car was justified for the reasons set forth below. To the extent Dearman asserts a stop in a high-crime area "alone" is insufficient to support reasonable suspicion of a crime and that the officers in this case had no valid reason to believe she had committed a crime based on her "perfectly innocent behavior," she mischaracterizes the evidence presented at the suppression hearing. Reasonable suspicion requires "considerably less than proof of wrongdoing by a preponderance of the evidence" and "obviously less" than necessary for probable cause. United States v. Sokolow, 490 U.S. 1, 7 (1989). Contrary to Dearman's suggestion, the fact that the parties were in a high-crime area, alone, was not the reason she was on the officers' "radar." Cf. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (officers not required to ignore relevant characteristics of location in determining whether circumstances are sufficiently suspicious to warrant further investigation and "nervous, evasive behavior" is pertinent factor in determining reasonable suspicion).
¶17 Rather, as previously noted, the officers observed the following: the presence of out-of-state license plates in a high-crime area where such plates are not common; the subject vehicles were involved in suspicious conduct associated with illegal drug activity at a convenience store parking lot in the high-crime area; later that day, one of the cars seen at the convenience store that morning was spotted at a nearby car wash; and, when an officer approached the driver of the vehicle at the car wash, she appeared nervous and exhibited conduct associated with methamphetamine intoxication. See, e.g., State v. Primous, 242 Ariz. 221, ¶¶ 23-24, 394 P.3d 646, 651 (2017) (presence in "dangerous neighborhood" relevant for reasonable suspicion); State v. Magner, 191 Ariz. 392, ¶ 15, 956 P.2d 519, 524 (App. 1998) ("'[D]ramatic' indications of nervousness may contribute substantially to a suspicion of criminal activity."), quoting United States v. Green, 52 F.3d 194, 199 (8th Cir. 1995), disapproved of on other grounds by State v. O'Meara, 198 Ariz. 294, ¶ 9, 9 P.3d 325, 327 (2000). All of these factors, combined with Lopez's observation of Goodyear holding an open knife while seated behind a passenger in the New Mexico vehicle, while acknowledging he also had a gun, were sufficient to provide, at the very least, reasonable suspicion that criminal activity was afoot. State v. Teagle, 217 Ariz. 17, ¶ 26, 170 P.3d 266, 273 (App. 2007) (in reviewing totality of circumstances, appellate court "accord[s] deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious actions").
¶18 Moreover, based on the totality of the circumstances, a "reasonably prudent man in the circumstances" would believe not only that Goodyear was armed, which he undeniably was, but that he was dangerous, justifying the detention and ensuing frisk for weapons. Terry, 392 U.S. at 27; see also Harmelin v. Michigan, 501 U.S. 957, 1003 (1991) ("direct nexus between illegal drugs and crimes of violence"); O'Meara, 198 Ariz. 294, ¶ 10, 9 P.3d at 327 (to determine reasonable suspicion, "one must look at all of the factors . . . and examine them collectively"). And once the officers had reasonable suspicion to detain Goodyear, combined with the fluid nature of the overall situation, including the fact that two officers were dealing with three individuals, one of whom had a knife and a gun in an undetermined location, it was reasonable for them to ask the front-seat passenger to get out of the vehicle for the safety of the officers and everyone involved.
¶19 Once the front-seat passenger got out of the car, leaving the car door open and exposing in plain view a ceramic pipe commonly used to smoke methamphetamine, it was not necessary for officers to obtain a search warrant to search the vehicle, or Dearman's purse, which had a methamphetamine pipe sticking out of its "side." "The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained." California v. Acevedo, 500 U.S. 565, 580 (1991); see also United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000) (observation of "an item commonly used in the manufacture of methamphetamine . . . in plain view in the back seat" of automobile gave officers probable cause for warrantless search); State v. Reyna, 205 Ariz. 374, ¶ 5, 71 P.3d 366, 367 (App. 2003) (automobile exception to exclusionary rule permits warrantless search when probable cause exists to believe there is contraband in a stopped, but readily mobile vehicle).
¶20 Although the trial court found it would have granted relief based on Serna if that case had been decided when the underlying offenses occurred, in light of our decision, we need not address the propriety of that ruling or whether the good-faith exception applies here. We may uphold a court's ruling on a motion to suppress if legally correct for any reason. See State v. Boteo-Flores, 230 Ariz. 551, ¶ 7, 288 P.3d 111, 113 (App. 2012). We do so here.
We likewise decline to address the trial court's suggestion that Serna overruled Garcia Garcia or Dearman's assertion that Gant overruled that case. We additionally note that after Garcia Garcia was decided but before Serna was decided, this court squarely held that officers may not conduct protective searches in the absence of reasonable suspicion that criminal activity is afoot, and that pat-down searches conducted during a consensual encounter are improper even if officers have grounds to believe the individual to be searched may be armed and dangerous. See Ilono H., 210 Ariz. 473, ¶¶ 11-15, 113 P.3d at 699-701.
B. Motion to Suppress based on Miranda Violation
¶21 The trial court denied Dearman's motion to suppress her statements based on a Miranda violation concluding, "[u]nder the totality of the circumstances," it found "a voluntary, knowing and intelligent waiver of [Dearman's] rights under Miranda if not by direct implication, certainly by her conduct and the opportunity to have the rights read to her again and her statement that she knew her rights by heart." On appeal, Dearman argues the statements she made to the police officers should have been suppressed because "she was made to provide incriminating statements after her freedom to move was curtailed by officers . . . without Miranda warnings or a verbal waiver of her rights given," and "the only evidence that she was given Miranda warnings came from an agent's testimony, rather than from documentation or from the audio recording of the interrogation."
¶22 The record belies Dearman's claims. At the suppression hearing, the prosecutor informed the trial court "for the record that [the Miranda] advisement is about 0735 on the recording"; the court listened to the recording, which clearly established Garbo advised Dearman of her rights and gave her the Miranda warning. And even if Garbo's testimony was the only evidence that Dearman had been given the Miranda warning, she has not presented any authority supporting her argument that such evidence would have been insufficient, nor are we aware of any. In her reply brief, Dearman notes that the state "concedes that Miranda warnings occurred approximately 7[ ]minutes and 35 seconds into her interrogation," contending "[a]ny incriminating statements made prior to that require suppression where the state failed to prove they were voluntarily made, that a valid waiver was obtained, nor [sic] that her subsequent statements were not part of her unlawfully obtained incriminating stateme[nt]s." Not only has Dearman failed to direct us to any place in the record establishing that she made incriminating statements before she was given the Miranda warning, but she has not established that the court abused its discretion by finding she had waived her rights by conduct once she was advised of them.
¶23 Our review of the audio recording likewise does not support Dearman's claims. Rather, the first four minutes of the recording confirm the encounter between Garbo and Dearman was consensual until Lopez discovered Goodyear had a gun. Garbo then directed Dearman to step over to the wall, which is when the encounter became non-consensual. Notably, Garbo did not ask Dearman any questions between the four-minute mark when the encounter became non-consensual and seven minutes and twenty-five seconds, when he informed her she was being "detained," after which Garbo gave Dearman the Miranda warning and informed her of her rights within ten seconds.
¶24 Although the record does not show that Dearman verbally and expressly waived her constitutional rights after Garbo advised her of those rights, the record supports the trial court's finding that she did so by her conduct. Dearman not only answered Garbo's questions after he advised her of her rights, but she declined to have the other officers reread the Miranda warning during her post- arrest interview, and did not request an attorney. See State v. Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988) ("Answering questions after police properly give the Miranda warnings constitutes a waiver by conduct."). Moreover, as previously noted, Dearman informed the officers she knew the warnings "by heart." Based on the record before us, including the audio recording, we conclude the court properly denied Dearman's motion to suppress her statements.
Double Jeopardy Violation
¶25 Dearman contends that because her convictions for transportation and possession of a dangerous drug for sale "arose out of the same conduct," and because possession for sale is "inherently" a lesser-included offense of transportation for sale, those convictions violate the prohibition against double jeopardy. She requests that this court vacate the conviction of possession of a dangerous drug for sale. Although Dearman concedes she did not object to these charges or convictions below, she argues this error is fundamental. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to raise argument in trial court forfeits review for all but fundamental, prejudicial error); see also State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (noting fundamental error waived if not asserted). A violation of the prohibition against double jeopardy is fundamental error and is clearly prejudicial. See State v. Price, 218 Ariz. 311, ¶ 4, 183 P.3d 1279, 1281 (App. 2008); State v. Siddle, 202 Ariz. 512, n.2, 47 P.3d 1150, 1153 n.2 (App. 2002). We review de novo an assertion that such a violation occurred, State v. Musgrove, 223 Ariz. 164, ¶ 10, 221 P.3d 43, 46 (App. 2009), and we view the facts in the light most favorable to upholding the jury's verdicts, State v. Ortega, 220 Ariz. 320, ¶ 2, 206 P.3d 769, 771 (App. 2008).
Dearman argues for the first time in her reply brief that the indictment "for both possession and possession for sale [are] based on the same acts," resulting in a duplicitous indictment. We do not consider this argument for two reasons. First, she did not raise it in her opening brief. See State v. Garcia, 220 Ariz. 49, n.2, 202 P.3d 514, 517 n.2 (App. 2008) (arguments raised for first time in reply brief are waived). Second, her reference to "possession" is unclear. --------
¶26 A criminal defendant's double jeopardy rights are violated when the defendant is convicted both of an offense and a lesser-included offense, even if the defendant receives concurrent sentences. See State v. Brown, 217 Ariz. 617, ¶ 13, 177 P.3d 878, 882 (App. 2008); see also State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 10, 965 P.2d 94, 96-97 (App. 1998) ("[W]hen a person is convicted of an offense, the prohibition against double jeopardy protects against further prosecution for that or any lesser-included offense.").
¶27 The state acknowledges that, "under normal circumstances possession of a dangerous drug for sale is a lesser-included offense of transportation of a dangerous drug for sale if the convictions are based on a single corpus of drugs." See State v. Cheramie, 218 Ariz. 447, ¶¶ 11, 22, 189 P.3d 374, 376, 378 (2008) (possession of dangerous drug is lesser-included offense of transportation of dangerous drug for sale); see also Price, 218 Ariz. 311, ¶ 5, 183 P.3d at 1281 ("For double jeopardy purposes, a lesser included offense and the greater offense of which it is a part constitute the same offense, and multiple punishments for the same offense are not permissible."); A.R.S. § 13-3407(A)(2), (A)(7). The state contends, however, that Dearman had possessed one of the bags of methamphetamine found in her purse for sale, and the other she had intended to transport for sale. The state directs us to Dearman's recorded conversation with Garbo to support the transportation count, while asserting the "independent" evidence of the activities at the convenience store support the charge of possession of the other bag of methamphetamine for sale.
¶28 The state further asserts that because Dearman acknowledged she had obtained the methamphetamine in Three Points, she must have been selling it when agents observed the suspicious activity at the convenience store in Tucson, as she clearly was not purchasing it at that point. The state also contends the scales in her car were consistent with drug sales. Additionally, the state maintains the fact that the two baggies found in Dearman's purse "contained very different amounts of methamphetamine," to wit, 54.5 grams and 220.8 grams, overall "supports an inference that [Dearman] was selling the drug from one baggie in the Tucson area before departing for New Mexico with the remaining amount."
¶29 We agree with the state that Dearman's own statements established she had intended to both transport and sell methamphetamine. And, as the state correctly points out, Garbo found two bags of methamphetamine in Dearman's purse, each containing amounts consistent with the sale of drugs. But the state did not distinguish between the two baggies when charging Dearman, nor did the prosecutor do so at trial. Dearman was charged with a single count each of possession of a dangerous drug for sale and transportation of a dangerous drug for sale, stemming from the two bags found in her purse and identified generally in the indictment only as "METHAMPHETAMINE." Although the state's criminalist presented testimony regarding the amount of methamphetamine in each bag, the prosecutor also asked him, "So all told, those two bags together were about 275 grams?"
¶30 In her opening statement, the prosecutor referred to the methamphetamine as an aggregate corpus by calling it "that methamphetamine," and although she briefly mentioned "two substantial bags of crystal meth," she told the jury, "[a]ll told, there is over half a pound of crystal meth." Notably, when the prosecutor explained that Dearman admitted "she had come to Tucson from New Mexico for the purpose of buying methamphetamine [and] that she was going to take it back to New Mexico and sell it," she did not refer to any sale in Tucson. And during closing argument, the prosecutor simply argued that Dearman knowingly possessed and transported methamphetamine to sell "it" in New Mexico, referring only to the aggregate amount of methamphetamine from the two bags rather than the amount in each bag. Additionally, nothing in the record establishes or even suggests that the jury, in reaching its verdicts, differentiated between the two bags of methamphetamine. Thus, it appears the same corpus of drugs constituted the evidence for both the possession of a dangerous drug for sale and transportation of a dangerous drug for sale offenses. See Ortega, 220 Ariz. 320, ¶ 7, 206 P.3d at 772.
Disposition
¶31 We therefore vacate the conviction and sentence for possession of a dangerous drug for sale. We affirm Dearman's convictions and sentences in all other respects.