Opinion
No. 1 CA-CR 13-0208
03-04-2014
STATE OF ARIZONA, Appellee, v. KORY KING FRANCE, Appellant.
Arizona Attorney General's Office, Phoenix By Andrew Reilly Counsel for Appellee David Goldberg, Fort Collins, Colorado 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NOTICE: NOT FOR PUBLICATION.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 Yavapai County
No. V1300CR850090099
The Honorable Jennifer B. Campbell, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Andrew Reilly
Counsel for Appellee
David Goldberg, Fort Collins, Colorado
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 Defendant, Kory King France, timely appeals from his convictions on two counts of knowingly transporting a dangerous drug (methamphetamine) for sale and two counts of using a wire or electronic communication in a drug transaction. He claims that we must reverse his convictions because (1) the indictment was duplicitous and (2) the convictions are not supported by substantial evidence. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1)(1992), 13-4031 and 134033 (2010). For the reasons set forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against defendant. State v. Vendever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).
¶2 In 2008-2009, four detectives with the Special Crimes Unit of the Yavapai County Sheriff's Office were investigating S.E., a suspected drug dealer. On December 3, 2008, Detectives Dartt and Long watched as S.E. drove to a gas station near Cliff Castle Casino and parked next to defendant's white Ford pickup truck. Detectives Morgan and Rumpf then saw defendant get out of his pickup truck, walk over to S.E., and make hand-to-hand contact with S.E. in what "appeared to be an exchange of something." When S.E. drove off from the gas station, Morgan and Rumpf followed S.E.'s vehicle and made a traffic stop. Following a K-9 alert, detectives searched the interior of the vehicle and located a baggie containing 4.31 grams of methamphetamine concealed inside a carton of chocolate milk. S.E. and J.A., a passenger, were both arrested.
Detectives Dartt and Long occupied one vehicle during the surveillance operations; Detectives Morgan and Rumpf operated out of a second vehicle.
The unit is in charge of all narcotics investigations for Yavapai County.
¶3 On January 6, 2009, the same four detectives again conducted surveillance on S.E. Dartt and Long followed S.E. to A.J.'s house in Camp Verde where S.E. got into A.J.'s car. All four detectives then followed A.J.'s vehicle as it drove to a gas station off I-17 at Anthem, where A.J. stopped his car alongside defendant's white pickup truck. Morgan and Rumpf situated themselves so as to maintain surveillance on S.E. Rumpf saw S.E. and defendant exit the convenience store at the gas station, walk to their respective vehicles, and enter them. A.J.'s vehicle immediately went back to the freeway and travelled northbound toward the Verde Valley. The four detectives followed S.E. and A.J. and initiated a traffic stop with the assistance of a K-9. Prior to the stop, S.E., the passenger in the vehicle, "threw a small package" out the passenger-side window, which "landed somewhere between 8 and 10 feet [sic] from where the vehicle ultimately stopped." The package was recovered and found to be a baggie containing 4.82 grams of methamphetamine. S.E. and A.J. were both arrested.
¶4 Upon the completion of the S.E. investigation, Dartt was given permission by the County Attorney's Office to also arrest defendant, which Dartt did on February 19, 2009. During booking, defendant spontaneously told Dartt that he wanted to talk to police, that he "wasn't the big dealer that [they] were making him out to be," and that he "only dealt eight balls and quarters when he was still dealing in the Verde." He informed Dartt that he had "quit dealing up here" because "[i]t was too hot" and he was running out of customers. He also offered to help Dartt by indentifying "a guy out of Phoenix that was dealing elbows," which signified "a pound of methamphetamine" or "lb."
¶5 The state charged that on December 3, 2008, defendant: Count 1, knowingly transported for sale, imported into this state, offered to transport for sale or import into this state or sold, transferred or offered to sell or transfer a dangerous drug (methamphetamine), a Class 2 felony; and Count 2, used a wire or electronic communication to conspire to commit a felony drug crime, transportation of dangerous drugs, a Class 4 felony. It filed the identical charges in Counts 3 and 4 respectively with regard to the transaction on January 6, 2009. Defendant absconded before trial and was tried in absentia. In addition to the detectives, S.E., J.A. and A.J. testified in the state's case in chief.
¶6 On October 15, 2009, the jury found defendant guilty of the offenses as charged. The trial court found that defendant had three prior felony convictions, two for the manufacture of dangerous drugs and one for possession of chemicals or equipment for the manufacture of dangerous drugs. Defendant remained an absconder until December 7, 2012, when he was arrested. On March 12, 2013, the trial court sentenced defendant to concurrent presumptive prison terms of 10 years and 2.5 years respectively in Counts 1 and 2, and to identical concurrent presumptive terms in Counts 3 and 4 respectively. The court also ordered that the sentences imposed on Counts 3 and 4 be served consecutively to the sentences in Counts 1 and 2, resulting in a total of 20 years in prison.
DISCUSSION
Duplicitous Indictment
¶7 In Counts 1 and 3 of the indictment the state charged that, on the two dates involved, defendant "knowingly transported for sale, imported into this state, offered to transport for sale or import into this state or sold, transferred or offered to sell or transfer" methamphetamine. Defendant claims that he was subjected to unlawful prosecution based on the duplicitous indictment because the allegations in Counts 1 and 3 contain separate and distinct offenses, i.e., "offering to sell, an actual sale or transfer, and alternatively transportation or importation of the drugs, which are not simply alternative manners of committing the same offense." The state concedes that the charges were duplicitous but maintains that defendant is precluded from raising this claim because defendant did not timely challenge the indictment. It also argues that, in any case, defendant is not entitled to relief because he can show no prejudice.
¶8 Because defendant did not raise this issue before the trial court, we would ordinarily review his claim for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). However, we agree with the state that we need not engage in fundamental error review because defendant is precluded from raising his untimely claim on appeal.
¶9 "Separate offenses must be charged in separate counts [,] [and] [a]n indictment that charges separate or multiple crimes in the same count is duplicitous." State v. Ramsey, 211 Ariz. 529, 532, ¶ 6, 124 P.3d 756, 759 (App. 2005); see also, State v. Butler, 230 Ariz. 465, 470, ¶ 13, 286 P.3d 1074, 1079 (App. 2012) ("a duplicitous indictment is one that on its face, alleges multiple crimes within one count"). "Duplicitous indictments are prohibited because they fail to give adequate notice of the charge to be defended, because they present the hazard of a non-unanimous jury verdict, and because they make a precise pleading of prior jeopardy impossible in the event of a later prosecution." Ramsey, 211 Ariz. at 532, ¶ 6, 124 P.3d at 759.
¶10 Unlike a duplicitous charge, whose duplicity may only become apparent upon the presentation of evidence, "[t]he defect marking a duplicitous indictment is, by definition, apparent from its text[.]" Butler, 230 Ariz. at 470, ¶ 14 , n. 4, 286 P.3d at 1079. Accordingly, the Arizona Rules of Criminal Procedure provide that an issue involving a defect in a charging document must be raised in a motion filed "at least twenty days before trial" and that any such motion not timely filed is "precluded." Ariz. R. Crim. P. 13.5, (e), 16.1 (b), (c); State v. Anderson, 210 Ariz. 327, 335-36, ¶ 16, 111 P.3d 369, 377-78 (2005); see also State v. Urquidez, 213 Ariz. 50, 51, ¶ 4, 138 P.3d 1177, 1178 (App. 2006) (citing Anderson, 210 Ariz. at 335-37, ¶¶ 13-20, 111 P.3d 377-79 and finding the supreme court's language therein referring to defendants' withholding arguments until appeal as "precluding" and "waiving" claims and not necessarily entitled to fundamental error review). Preclusion is the proper remedy when a defendant fails to challenge an obvious defect in an indictment because, "by failing to object before trial and later seeking dismissal of allegedly duplicitous counts, a defendant seeks to have his cake and eat it too" by depriving the State of the opportunity of remedying the defects and "attempting to avoid any punishment at all." Anderson, 210 Ariz. at 336, ¶ 17, 111P.3d at 378.
¶11 The indictment in this case was filed on February 27, 2009, and the trial commenced more than six months later on September 30, 2009. The defect in the indictment of which defendant now complains is obvious in the plain language of the indictment. Although defendant had ample time before trial to file a motion challenging the language of the indictment, defendant chose not to do so but chose instead to proceed to trial with the charges in the two counts as written. Moreover, at trial defendant failed to request a unanimity instruction, a specific instruction concerning the offenses based on the evidence at trial, or special verdict forms to counter the possibility of non-unanimous jury verdicts on Counts 1 and 3 of which he now complains. "Defendant cannot take his chances on a favorable verdict, reserving the 'hole card' of a later appeal on an evidentiary matter that was curable at trial." State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313, 317-18 (1989) (overruled on other grounds by, Krone v. Hotham, 181 Ariz. 364, 890 P.2d 1149 (1995) ; see also Butler, 230 Ariz. at 471, ¶ 16, 286 P.3d at 1080, (citations and quotations omitted) (by failing to object to forms of verdict or jury instructions defendant demonstrates "complicity in charge as alleged"); State v. Rushton, 172 Ariz. 454, 456, 837 P.2d 1189, 1191 (App. 1992). Having chosen to forego all the remedies that were available to him to cure a patently obvious defect in the indictment, either prior to trial or at trial, defendant is not now entitled to relief on appeal.
¶12 However, even absent preclusion, we need not determine whether defendant would be entitled to relief based on fundamental error because defendant cannot prove prejudice in this case. Henderson, 210 Ariz. at 567, ¶ 20 (to prevail on fundamental error standard onus is on defendant to prove fundamental error exists and the error cause him prejudice in his case).
¶13 According to defendant, Counts 1 and 3 are duplicitous because they alleged "transportation or importation" and "sale or transfer" of methamphetamine. As we note above, the purpose of the prohibition against duplicitous indictments is to safeguard a defendant from the dangers of: (1) inadequate notice of the charges against him; (2) exposure to double jeopardy; and (3) conviction by a non-unanimous jury verdict. Ramsey, 211 Ariz. at 532, ¶ 6, 124 P.3d at 759; State v. Schroeder, 167 Ariz. 47, 51, 804 P.2d 776, 780 (App. 1990). Thus, prejudice exists if defendant can prove that the duplicitous indictment caused one of these dangers to be realized in his case.
¶14 Defendant does not argue that he did not know the specific criminal acts being alleged against him in Counts 1 and 3, despite the duplicitous language; and the plain language of the indictment lays out those allegations clearly. Also the state argued from the outset that defendant was guilty of the "transportation of meth for sale and transfer" and never altered that argument. Therefore defendant makes no showing of any inadequate notice of the allegations against him.
¶15 Defendant also does not argue that Counts 1 and 3 exposed him to double jeopardy, and we see no evidence of that. Double jeopardy prohibits a second prosecution if "the evidence necessary to support a second conviction was admissible and would have supported a conviction in the first prosecution." Id. All of the multiple criminal acts committed by the defendant here were alleged to have been committed on December 3, 2008, and January 6, 2009, were specified in the indictment, and were also introduced as evidence of the two offenses at trial. Furthermore, insofar as double jeopardy is concerned, the defense is not limited to the four corners of the indictment, [but] the entire record is available to bar any subsequent action. State v. Phelps, 125 Ariz. 114, 119, 608 P.2d 51, 56 (App. 1979). Thus defendant cannot prove prejudice on double jeopardy grounds.
¶16 Defendant's claim of prejudice is based on his argument that, due to the duplicitous indictment, "it cannot be concluded that [his] convictions [on Counts 1 and 3] resulted from a unanimous verdict." However, defendant here cannot prove that the duplicitous language resulted in non-unanimous verdicts on those charges. Mere speculation that the verdicts were not unanimous is insufficient proof of prejudice in a fundamental error review; defendant must show that absent the error a jury could have reached a different conclusion. State v. Martin, 225 Ariz. 162, 166, ¶¶ 14-15, 235 P.3d 1045, 1050 (App. 2010).
¶17 The state's theory of the case was that defendant was guilty of transportation of meth for sale and the verdict forms asked the jury to determine if he was guilty of transportation of a dangerous drug or sale on each of the two dates specified. As we address more fully below, the evidence at trial sufficiently supports the convictions on that basis. At trial, defendant's sole defense was that S.E., J.A., and A.J., were all drug users or drug dealers that falsely identified him to cover their own guilt. Thus whether or not the jury accepted defendant's defense came down to a question of credibility and whether it found the witnesses' testimony credible or accepted defendant's defense. The jury's unanimous rejection of defendant's sole defense clearly indicates that its guilty verdicts were unanimous. See Schroeder, 167 Ariz. at 53, 804 P.2d at 782 (where defendant's sole defense to multiple acts of sexual abuse was credibility of witnesses guilty verdict indicated unanimity). Under these circumstances, we cannot find that defendant was prejudiced by any duplicity in the indictment's language. Id.
¶18 Because defendant failed to seek available curative measures for the duplicitous indictment either prior to or at trial and because on appeal he fails to show that the defects in the indictment caused him prejudice his case, he is not entitled to a new trial on Counts 1 and 3.
Defendant's reliance on State v. Petrak, 198 Ariz. 260, 8 P.3d 1174 (App. 2000); State v. Klokic, 219 Ariz. 241, 196 P.3d 844 (App. 2008); State v. Thompson, 138 Ariz. 341, 674 P.2d 895 (App. 1984); and State v. Paredes-Solano, 223 Ariz. 284, 222 P.2d 900 (App. 2009); is misplaced as those cases are distinguishable. In Petrak, this court found that the defendant raised the issue of duplicity "promptly upon learning of it." 198 Ariz. at 268, 8 P.3d at 1182. Furthermore, we found that the defect in the indictment in that case "inadequately defined the charge" and therefore "failed to notify Petrak of what evidence would be presented against him" and "handicapped his defense." Id. at ¶ 29, 8 P.3d at 1182. Neither of those situations is presented in this case, and defendant does not claim inadequate notice. Lack of notice was also at issue in Thompson. 138 Ariz. at 346, 674 P.2d at 900. In Klokic and Paredes-Solano, the court found the defendants were prejudiced by the duplicitous indictments because, in each case, the defendants presented alternative defenses to the acts alleged, which raised the possibility that the jury verdicts were not unanimous. 219 Ariz. 247-49, ¶¶ 27-31, 196 P.3d at 850-51; 223 Ariz. at 291-92, ¶¶ 20-22, 222 P.3d at 907-08. The specter of non-unanimous verdicts does not apply here where defendant presented one sole defense on all the charges.
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Sufficiency of the Evidence
¶19 Defendant next argues that insufficient evidence supports the jury's guilty verdicts on all counts and that the trial court erred by denying his Rule 20 motion at the close of the state's evidence. We do not agree.
¶20 "The question of sufficiency of the evidence is one of law, subject to de novo review on appeal." State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). We review the sufficiency of the evidence at trial only to determine whether substantial evidence supports the verdicts and view the facts in the light most favorable to sustaining the verdict. State v. Cox, 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269 (2007) (internal quotations and citations omitted). "Substantial evidence is evidence that 'reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.'" Id. (citation omitted). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
¶21 Substantial evidence may be direct or circumstantial, and it is well established that each has equal probative value. State v. Pettit, 194 Ariz. 192, 197, ¶ 23, 979 P.2d 5, 10, (App. 1998). Evidence is not less substantial simply because the testimony is conflicting or because reasonable persons may draw different conclusions therefrom. State v. Mercer, 13 Ariz. App. 1, 2, 473 P.2d 803, 804 (1970). If conflicts in the evidence exist, we must resolve them in favor of sustaining the verdict. State v. Salman, 182 Ariz. 359, 361, 897 P.2d 661, 663 (App. 1994). Furthermore, the credibility of the witnesses and the weight to be given to their testimony are questions exclusively for the trier-of-fact. Cox, 217 Ariz. at 357, ¶ 27, 174 Ariz. at 269. "The deference [that appellate] courts accord the trier of fact, whether judge or jury, to make determinations based on assessment of the credibility of witnesses is elementary." Matter of Pima County Juv. Action No. 63212-2, 129 Ariz. 371, 375, 631 P.2d 526, 530 (1981).
¶22 For this court to set aside a verdict for insufficient evidence on appeal, it must clearly appear that "upon no hypothesis whatever is there sufficient evidence to support the conclusion reached" by the trier-of-fact. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). Sufficient evidence supports defendant's conviction in this case.
¶23 The jury verdicts show that the jury found defendant guilty of "transportation of a dangerous drug for sale on December 3, 2008" (Count 1) and of the same offense "on January 6, 2009" (Count 3). Count 1: S.E. testified that he telephoned defendant about purchasing methamphetamine on December 3, 2008, that defendant offered to transport and sell him some meth during that call, and that he and J.A. subsequently met defendant, as agreed, at a gas station near Cliff Castle Casino where defendant personally sold S.E. a quarter ounce of meth for "$300 bucks." S.E. admitted to hiding the meth in a container of chocolate milk, to being pulled over by Detective Dartt and arrested, and also to "eventually" telling Dartt who was involved. Count 3: S.E. testified that he again telephoned defendant on January 6, 2009, and "pre-arranged a meeting" with defendant at a "gas station at Anthem" where he again purchased drugs from defendant. S.E. testified that he got a ride to Anthem in A.J.'s car because he did not have a vehicle at the time and that, when their car was pulled over by the detectives on their way home he threw the drugs he had purchased out the window. S.E.'s testimony alone, if believed, as it obviously was by the jury in this case, is sufficient to support the jury's finding that he committed "transportation of a dangerous drug for sale." However, his testimony was corroborated by the testimony of the detectives and of J.A. and A.J. Substantial evidence supports the convictions on Counts 1 and 3. Cox, 217 Ariz. at 357, ¶ 22, 174 P.3d at 269.
¶24 Counts 2 and 4, alleged that defendant "used a wire or electronic communication to conspire to commit a felony drug crime, to wit: Transportation of Dangerous Drugs." Again, S.E.'s testimony that he telephoned defendant and arranged with defendant to meet at a prearranged location for the methamphetamine purchases on December 3 and January 6 is sufficient evidence of the fact that defendant used a "wire or electronic communication" and conspired with S.E. to transport the drugs for sale on those dates. Furthermore, the evidence shows that defendant carried out the conspiracy when actually he met S.E. at the gas stations and sold him the methamphetamine precisely as they had planned. Based on our review of the record, we find that substantial evidence supports all the jury's verdicts in this case.
CONCLUSION
¶25 For the foregoing reasons, we affirm defendant's convictions and sentences.