Opinion
No. 1 CA-CR 13-0043
01-23-2014
STATE OF ARIZONA, Appellee, v. THOMAS ANTHONY KIRCHNER, Appellant.
Arizona Attorney General's Office, Phoenix By Terry M. Crist, III Counsel for Appellee Mohave County Legal Advocate's Office, Kingman By Jill L. Evans Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Mohave County
No. S8015CR201200547
The Honorable Rick A. Williams, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee
Mohave County Legal Advocate's Office, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined. GEMMILL, Judge:
¶1 Thomas Anthony Kirchner appeals his convictions and sentences for possession of dangerous drugs for sale and transportation of dangerous drugs. He contends that the convictions are supported by insufficient evidence and violate the prohibition against double jeopardy. Because we find no reversible error, we affirm.
According to the notice of appeal filed by Kirchner, he is also appealing his conviction and sentence for possession of drug paraphernalia. It is clear from his opening brief, however, that he is not challenging this conviction and sentence on appeal.
BACKGROUND
¶2 The evidence, viewed in light most favorable to supporting the convictions, is as follows. See State v. Moody, 208 Ariz. 424, 435, n.1, 94 P.3d 1119, 1130 n.1 (2004). Kirchner was driving to Bullhead City, Arizona from Las Vegas, Nevada to allegedly attend a local event called the River Run. Around 10:30 a.m. on April 20, 2012, Kirchner was driving northbound on Rancho Colorado Boulevard in Bullhead City when Officer Nave, a narcotics bureau supervisor for the Bullhead City Police, first noticed him. Officer Nave signaled to Kirchner to pull his vehicle over into the parking lot of a Home Depot along Highway 95. While Officer Nave was pulling his vehicle to position it behind Kirchner, two plain-clothes members of the narcotics task force converged on Kirchner's white Dodge Avenger. Detective Holdway, a task force member and case manager, approached the front passenger while Detective Harris contacted the driver. Officer Nave simultaneously approached the rear passenger.
¶3 Detective Holdway ordered the two passengers and the driver to step out of the car and detained all three individuals. Detective Holdway read Kirchner his Miranda rights and asked if there was anything illegal in the vehicle, to which Kirchner responded, "Yeah, I have a little meth." After conducting a pat down search of one of the passengers, Detective Holdway searched the car and found a single baggie of white powder in the driver's side door. Detective Harris examined the baggie of white powder, which he suspected to be methamphetamine, and conducted a field test that confirmed the powder was methamphetamine. Detective Holdway also found $568 in U.S. currency during his search. No additional drug paraphernalia or illegal substances were found.
¶4 The contents of the seized baggie were transported to the Arizona Department of Public Safety crime lab where they were again tested and weighed. It was determined that the baggie held 13.9 grams of methamphetamine, which is essentially a half an ounce. Testimony at trial shows that a commonly sold amount on the streets of Mohave County is a quarter gram.
¶5 Kirchner was indicted on April 26, 2012 and charged with possession of dangerous drugs for sale, a class 2 felony, transportation of dangerous drugs for sale, a class 2 felony, and possession of drug paraphernalia, a class 6 felony. At the jury trial in November 2012, Detectives Harris, Holdway, and Nave all testified about the circumstances surrounding the seizure of the 13.9 grams of methamphetamine from Kirchner. Kirchner also testified, acknowledging his possession of the methamphetamine and asserting that he bought it within Arizona strictly for his personal use.
¶6 The jury convicted Kirchner of all three offenses charged. The court found two mitigating factors: Kirchner's poor health and his honorable discharge from the U.S. Army. Kirchner was sentenced to 5 years in prison for both possession for sale and transportation for sale, minus 264 days of presentence incarceration credit, with each sentence to run concurrently. He was also sentenced to a concurrent term of 6 months for possession of drug paraphernalia, with credit for 6 months of presentence incarceration.
¶7 Kirchner timely appeals. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
ANALYSIS
¶8 Kirchner raises two issues on appeal. First, Kirchner argues that insufficient evidence supports his convictions under A.R.S. § 13-3407(A)(7), transportation of dangerous drugs for sale or importation of dangerous drugs into the state, and A.R.S. § 13-3407(A)(2), possession of dangerous drugs for sale. Second, Kirchner claims that his convictions for these offenses violate his protection against double jeopardy.
I. Sufficiency of the Evidence
¶9 Sufficiency of the evidence is a question of law subject to de novo review. State v. West, 226 Ariz. 559, 562, ¶15, 250 P.3d 1188, 1191 (2011). An appellate court will not reweigh the evidence to determine if it would reach the same conclusion as the jury. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). Instead, the relevant question on appeal is whether, after viewing evidence in a light most favorable to upholding the jury's verdict, there is sufficient evidence from which "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." West, 226 Ariz. at 562, ¶16, 250 P.3d at 1191 (citation omitted).
¶10 Kirchner contends his convictions for possession of dangerous drugs for sale and transportation of dangerous drugs for sale or importation of dangerous drugs into the state were not supported by sufficient evidence because the State failed to present adequate evidence on the elements of these crimes, and, specifically, that the State's primary witness did not present sufficient evidence to establish that Kirchner intended to sell the methamphetamine. We conclude otherwise.
¶11 To sustain his conviction under A.R.S. § 13-3407 (A)(2), the State must show that Kirchner "possess[ed] a dangerous drug for sale." To sustain his conviction under A.R.S. § 13-3407(A)(7), the State must show either that Kirchner transported a dangerous drug for sale or that Kirchner imported a dangerous drug into the state.
¶12 Detective Holdway, the narcotics task force supervisor for the Bullhead City Police Department, testified regarding common indicia of drug sales. He explained that he has investigated more than a hundred cases involving the sale of drugs and has experience in methamphetamine recognition, drug weights, measurements, and street sales. Detective Holdway described his duties that allowed him to survey the general practices of drug users and dealers in Mohave County. Based on his experience as an undercover officer, he testified that the amount of methamphetamine a person buys varies depending on whether the amount is for personal use or sale. According to Detective Holdway, the "standard usable quantity" to buy for personal use is between .1 gram and .25 gram. He also testified that their office generally considers anything more than 3.5 grams to be a saleable quantity.
¶13 Based on this experience, Detective Holdway explained that he has met many people who have used for 5 to 10 years or longer, and he has yet to meet anyone who sustains a gram-a-day methamphetamine habit -- the amount Kirchner claimed at trial he was using. Even addicts who use larger quantities for long periods of time will typically "only use .1 gram at a time." In fact, Detective Holdway stated that he had "never spoke[n] to a single person - whether it be an informant, a user, or a seller - who's told [him] that they had a quarter of an ounce or more" for personal use.
¶14 Detective Holdway next testified about indicators of sale. Possession of large amounts of money and drugs are often significant indicators of intent to sell drugs, and Kirchner was found with 13.9 grams of methamphetamine and $568 in cash. Additional indicators include baggies to divide up the product, scales, and "having a particular amount already divided into a common saleable amount." Detective Holdway commented that in this case, "the fact that there were - there was almost exactly 14 grams of methamphetamine packaged in that baggie" and that the bag was sealed up tight in an exact amount—"and in the car," is indication of possession for sale. Detective Holdway also explained that Kirchner was not found with any means to use the methamphetamine, such as pipes or needles, despite Kirchner's claim that he smokes the drugs 8-10 times a day. Detective Holdway added that, in many arrests of drug dealers, the drugs themselves are the only indicators of the possessor's intent to sell the drugs.
¶15 We conclude, therefore, that sufficient evidence supports the jury's finding of the "for sale" element of possession of dangerous drugs for sale and transportation of dangerous drugs for sale. Because transportation of dangerous drugs for sale may be proven by establishing either intent to sell or importation, we must also determine if sufficient evidence supports a finding of importation of the methamphetamine.
¶16 The State presented evidence that Kirchner was from Las Vegas, Nevada, and was on his way to Bullhead City, Arizona. Although Kirchner claimed he planned to stay for more than a week, no luggage or other personal belongings were found in his vehicle. Additionally, Detective Holdway testified that 13.9 grams of methamphetamine is a rare amount to find in Mohave County, where Kirchner claims he purchased the drugs. These facts are sufficient to support a conviction for transportation on the basis that Kirchner imported the drugs into the State of Arizona.
¶17 At trial, Kirchner also testified about his arrest. He admitted to possessing the 13.9 grams of methamphetamine found in his car at the scene. He testified that he purchased this amount for $350 from a friend in Bullhead City — an amount that usually is sold for around $600. Kirchner also testified at trial that his addiction to pain medication and methamphetamine requires him use a gram or two a day to sustain a high. He claimed that he often smoked methamphetamine 8-10 times a day.
¶18 Although there was conflicting testimony at trial regarding the intended use of the methamphetamine, both sides presented probative evidence. And when reasonable minds differ on the inferences to be drawn from the facts, the decision rests with the trier of fact alone. See West, 226 Ariz. at 563, ¶18, 250 P.3d at 1192. We conclude, on this record, that the physical evidence and Officer Holdway's testimony constituted sufficient evidence to support the jury's verdict that Kirchner possessed the drugs for sale in violation of A.R.S. § 13-3407(A)(2) and transported the drugs in violation of A.R.S. § 13-3407(A)(7).
II. Double Jeopardy
¶19 Double jeopardy bars multiple punishments for the same offense, and our review is de novo. State v. Williams, 232 Ariz. 158, 161, ¶14, 302 P.3d 683, 686 (App. 2013). Because Kirchner failed to raise this issue at trial, he has forfeited review on appeal except for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). To succeed on a fundamental error claim, the defendant has the burden of proving "both that fundamental error exists and that the error in his case caused him prejudice." Id. at 567, ¶ 20, 115 P.3d at 607. A violation of double jeopardy constitutes fundamental error. State v. Ortega, 220 Ariz. 320, 323, ¶ 7, 206 P.3d 769, 772 (App. 2008).
¶20 Kirchner argues his convictions for possession for sale and transportation for sale violate his protection against double jeopardy. Specifically, he claims that possession for sale is a lesser included offense of transportation for sale, submitting him to multiple punishments for the same offense. The State agrees that possession for sale is a lesser included offense of transportation for sale but points out that the offense of transportation for sale may also be proven by evidence of importation of the drug into Arizona without the need to prove actual intent to sell. And this court has previously held, in the context of the analogous offenses of possession of marijuana for sale and transportation of marijuana for sale based on importation, that because the importation charge has no "for sale" element and a possession for sale charge has no "importation" element, possession of marijuana for sale is not a lesser-included offense of transportation of marijuana for sale proven by importation. See State v. Chabolla-Hinojosa, 192 Ariz. 360, 364, ¶ 16, 965 P.2d 94, 98 (App. 1998); State v. McInelly, 146 Ariz. 161, 163-64, 704 P.2d 291, 293-94 (App. 1985).
¶21 To determine if two statutes constitute the "same offense" for double jeopardy purposes, we apply the Blockburger test. State v. Eagle, 196 Ariz. 188, 190, ¶6, 994 P.2d 395, 397 (2000) (quoting Blockburger v. United States, 284 U.S. 299 (1932)). "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). There is no double jeopardy violation unless the lesser included offense is "always a necessary element of the greater offense." Austin v. Cain, 660 F.3d 880, 892 (5th Cir. 2011); Illinois v. Vitale, 447 U.S. 410, 419-20 (1980); see generally State v. Siddle, 202 Ariz. 512, 47 P.3d 1150, 1154 (App. 2002). A lesser-included offense is one "composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the [greater] crime charged without having committed the lesser one." State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912, 913 (App. 1991) (citation omitted).
¶22 We begin the analysis by looking at the relevant statutory elements set forth in A.R.S. § 13-3407. At trial, the jury was instructed on the elements of each crime, including the alternative theories under transportation for sale:
The crime of possession of a dangerous drug for sale requires proof of the following: 1. The defendant knowingly(emphasis added). Reviewing the statutory elements, it is apparent that Kirchner could be convicted of transportation for sale (proven by importation) without necessarily being convicted of possession for sale. This is true because possession for sale is not always a necessary element of the transportation for sale proven by importation because you can import a drug without also possessing the drug with intent to sell. See Siddle, 202 Ariz. at 516,¶ 10, 47 P.3d at 1154; Cain, 660 F.3d at 892. Thus, under Blockburger, there is no double jeopardy violation because each provision requires proof of a fact that the other does not. But our analysis does not end here.
possessed a dangerous drug. And 2. The substance was in fact a dangerous drug. And 3. The possession must be for the purposes of sale.
The crime of transporting dangerous drugs for sale requires proof of the following: 1. The defendant knowingly transported a dangerous drug for sale or imported a dangerous drug into this state. And 2. The substance was in fact a dangerous drug.
¶23 When an offense may be proven by alternative facts, as is the case with transportation for sale, we need not speculate on the specific grounds chosen by the jury to convict, see Cain, 660 F.3d at 892, but we will review to determine if sufficient evidence was presented to support a conviction under each alternative (for sale and importation). In Cain, the court examined whether the State presented sufficient evidence on three alternative bases to sustain a conviction of first degree murder. Id. at 892-93. The court ultimately concluded that the state presented sufficient evidence under each of the alternatives: (1) intending to kill a police officer, (2) intending to kill more than one person, and (3) intending to kill while distributing cocaine. Id. Thus, it was permissible for a jury to convict under all three alternatives without violating double jeopardy. Here, we have already concluded that the State presented sufficient evidence under both alternative elements of transportation for sale. Because the jury was instructed on the "for sale" and importation alternatives, and we are not required to speculate under which theory the jury convicted Kirchner, we conclude that no violation of double jeopardy has occurred.
CONCLUSION
¶24 For these reasons, we affirm Kirchner's convictions and sentences.