State v. Cheramie

• Decision Date: 30 November 2007
• Docket Number: No. 2 CA-CR 2006-0319.,2 CA-CR 2006-0319.
• Citation: 171 P.3d 1253,217 Ariz. 212
• Parties: The STATE of Arizona, Appellee, v. Enis John CHERAMIE, III, Appellant.
• Court: Arizona Court of Appeals

171 P.3d 1253

217 Ariz. 212

The STATE of Arizona, Appellee, v. Enis John CHERAMIE, III, Appellant.

No. 2 CA-CR 2006-0319.

Court of Appeals of Arizona, Division 2, Department B.

November 30, 2007.

Terry Goddard, Arizona Attorney General by Randall M. Howe and Joseph L. Parkhurst, Tucson, Attorneys for Appellee.

Robert J. Hooker, Pima County Public Defender by Michael J. Miller, Tucson, Attorneys for Appellant.

OPINION

VÁSQUEZ, Judge.

¶ 1 A Pima County grand jury indicted appellant Enis John Cheramie for transportation of a dangerous drug for sale, possession of drug paraphernalia, and second-degree escape. Following a jury trial he was convicted of possession of a dangerous drug, possession of drug paraphernalia, and third-degree escape. On appeal, Cheramie argues that possession of a dangerous drug is not a lesser-included offense of transportation of a dangerous drug for sale, and therefore his conviction on this count violated his right to notice of the charges against him under the Arizona and United States Constitutions. He also argues that the trial court improperly commented on the evidence in violation of the Arizona Constitution, that he was prejudiced by the court's instruction on reasonable doubt, and that he was entitled to a jury trial on the issue of whether he had an historical prior felony conviction. For the reasons discussed below, we affirm in part and vacate in part.

Facts and Procedural Background

¶ 2 We view the evidence presented in the light most favorable to sustaining the convictions. State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408, supp. op., 206 Ariz. 153, 76 P.3d 424 (2003). A City of Tucson police officer stopped Cheramie's car and arrested him for two outstanding misdemeanors. Two officers searched the car incident to the arrest and found an aerosol can with a false bottom on the floor of the car behind the front passenger seat. The can contained two plastic bags filled with approximately forty-two grams of a substance later determined to be methamphetamine. The officers also found between $400 and $500 in the car's center console. While being transported to the police station in a patrol car, Cheramie escaped. He was eventually recaptured and charged as stated above.

¶ 3 Several police officers testified at trial for the state about the events surrounding Cheramie's arrest and the discovery of drugs in his car. The state's other witnesses included Cheramie's parole officer, who identified Cheramie, and a criminalist, who verified that the substance seized from Cheramie's car was methamphetamine. The state had also planned to call an expert on the "for sale" element of the transportation for sale charge. However, this expert failed to appear. As a result, after the state rested its case, the trial court granted Cheramie's motion for judgment of acquittal on that charge pursuant to Rule 20, Ariz. R.Crim. P. Over Cheramie's objection, the court substituted for that charge the charge of possession of a dangerous drug, believing it to be a lesser-included offense of transportation for sale.

¶ 4 The jury found Cheramie guilty of possession of a dangerous drug, possession of drug paraphernalia, and third-degree escape. At sentencing, Cheramie requested a jury trial on the state's allegation that he had an historical prior felony conviction for sentence enhancement purposes. He also challenged, as he does on appeal, the sufficiency of the evidence to support the prior conviction. The trial court found Cheramie's prior violent crime and dangerous nature offense conviction disqualified him from the mandatory probation provisions of A.R.S. § 13-901.01. It sentenced him to concurrent, presumptive prison terms of 4.5 years for the possession of a dangerous drug count, and 1.75 years each for the drug paraphernalia and escape counts. This appeal followed; we have jurisdiction under A.R.S. § 13-4033(A).

Discussion

Violation of right to notice of charge

¶ 5 Cheramie argues that possession of a dangerous drug is not a lesser-included offense of transportation for sale, thus his conviction for possession violated his right under the Arizona and United States Constitutions to be tried for an offense with which he had been charged and for which he had been given proper notice. This court reviews constitutional issues and purely legal issues de novo. State v. Moody, 208 Ariz. 424, ¶ 62, 94 P.3d 1119, 1140 (2004).

¶ 6 "`An offense is lesser included when the greater offense cannot be committed without necessarily committing the lesser offense.'" State v. Cruz, 127 Ariz. 33, 36, 617 P.2d 1149, 1152 (1980), quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980). In other words, to be a lesser-included offense of another, an offense must not require any element not also required by the greater offense. In its interpretation of Arizona's dangerous drug statute, A.R.S. § 13-3407(A), our supreme court has held that to be convicted of possession, a defendant must possess a sufficient quantity of the drug to be useable under the known practices of addicts. State v. Moreno, 92 Ariz. 116, 120, 374 P.2d 872, 875 (1962). However, our supreme court has consistently rejected such a "useable quantity" requirement for convictions for the sale of drugs. State v. Ballinger, 110 Ariz. 422, 425, 520 P.2d 294, 297 (1974); State v. Ballesteros, 100 Ariz. 262, 265, 413 P.2d 739, 741 (1966); State v. Espinosa, 101 Ariz. 474, 476, 421 P.2d 322, 324 (1966). The same reasoning applies to the transportation of drugs for the purpose of sale. See Ballesteros, 100 Ariz. at 265, 413 P.2d at 741 ("[T]he required intent is established by the [transportation] of any amount when the accompanying circumstances indicate an intent to sell."). "It is the sale of any amount of [dangerous drugs] which is prohibited." Espinosa, 101 Ariz. at 476, 421 P.2d at 324 (emphasis added).

¶ 7 The offense of possession of a dangerous drug requires the element of possession of a useable quantity of drugs, and the offense of transportation for sale does not. Possession, therefore, cannot be a lesser-included offense of transportation for sale. While this result is in some respects counterintuitive, and the dissent cites a number of cases that suggest a contrary conclusion,¹ the distinction between the physical act of "possession" and the offense of "possession" as defined by our supreme court is critical. See Moreno, 92 Ariz. at 120, 374 P.2d at 875. Courts in California, where there is a similar useable quantity rule, have held that "simple possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell — although it could be a lesser related offense — because the former crime contains elements a sales offense does not: knowing possession of a usable quantity." People v. Peregrina-Larios, 22 Cal.App.4th 1522, 28 Cal.Rptr.2d 316, 316 (1994) (citations omitted). Although our supreme court has not ruled directly on the issue, its definition of the two offenses leaves us no option but to conclude that possession of a dangerous drug is not a lesser-included offense of transportation for sale. State v. Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App.2003) (court of appeals constrained by decisions of supreme court and not permitted to disregard them).

¶ 8 We next turn to whether the trial court's amendment of the charge in this case afforded Cheramie proper notice as required by the Sixth Amendment of the United States Constitution and article II, §§ 24 and 30 of the Arizona Constitution. "The charging of a criminal offense is regulated by the requirement found in the Sixth Amendment that `[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation.'" State v. Sanders, 205 Ariz. 208, ¶ 16, 68 P.3d 434, 439 (App.2003), quoting U.S. Const. amend. VI. This means that an indictment "must describe the offense with sufficient specificity so as to enable the accused to prepare a defense." Id. ¶ 16. The Arizona Constitution contains a similar right for an accused to "demand the nature and cause of the accusation against him, to have a copy thereof," and states that "[n]o person shall be prosecuted criminally in any court of record for felony or misdemeanor, other than by information or indictment." Ariz. Const. art. II, §§ 24, 30.

¶ 9 Amendment of a charge to a lesser-included offense of the original charge does not violate the Sixth Amendment. Sanders, 205 Ariz. 208, n. 2, 68 P.3d at 441 n. 2. However, the substitution of an offense that includes elements that differ from those of the offense actually charged violates both the fundamental Sixth Amendment right to notice, id. ¶ 20, and Arizona's "constitutional guarantees that an accused stand trial with clear notice of the crime with which he is charged." State v. Martin, 139 Ariz. 466, 471, 679 P.2d 489, 494 (1984); see State v. Rivera, 207 Ariz. 69, ¶ 8, 83 P.3d 69, 72 (App.2004) (right to notice under Arizona Constitution equivalent to Sixth Amendment right).

¶ 10 In Sanders, the state moved at the conclusion of its case-in-chief to amend an assault charge from an offense requiring a "knowing touching with intent to injure, insult, or provoke" to an offense requiring an intent to place another in reasonable apprehension of imminent physical injury. 205 Ariz. 208, ¶ 9, 68 P.3d at 438. In that case, Division One of this court stated that a proposed amendment could impermissibly change the nature of the offense "either by proposing a change in factual allegations or a change in the legal description of the offense." Id. ¶ 25. In the second category, the court in Sanders cited two cases, Gray v. Raines, 662 F.2d 569 (9th Cir.1981), and Government of the Virgin Islands v. Joseph, 765 F.2d 394 (3d Cir.1985). Id. ¶¶ 26-30. In Gray, the Ninth Circuit Court of Appeals vacated a conviction on a statutory (second-degree) rape charge that had been added...