State v. Clifton

• Decision Date: 29 March 2012
• Docket Number: 2 CA-CR 2010-0352
• Parties: THE STATE OF ARIZONA, Appellee, v. DARNELL LENTON CLIFTON, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. DARNELL LENTON CLIFTON, Appellant.

2 CA-CR 2010-0352

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT A

Dated: March 29, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND

MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

Cause No. CR200900498

Honorable Wallace R. Hoggatt, Judge

AFFIRMED

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani and Jeffrey L. Sparks Attorneys for Appellee

Phoenix

John William Lovell Attorney for Appellant

Tucson

HOWARD, Chief Judge.

¶ 1 After a jury trial, appellant Darnell Clifton was convicted of transportation of a narcotic drug for sale, conspiracy to transport a narcotic drug for sale, and sale of anarcotic drug as an accomplice, all with the intent to assist a criminal street gang, and was also convicted of assisting a criminal street gang. On appeal, Clifton argues two of his convictions violated the Double Jeopardy Clause. He also challenges the indictment, the admissibility of evidence presented at trial, and the sufficiency of the evidence against him. Because we find no reversible error, we affirm.

Factual and Procedural Background

¶2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). On May 29, 2009, Clifton and his brother/co-defendant, Durell, met an undercover agent from the Drug Enforcement Agency and a confidential informant in a store parking lot to sell them a "bill" ("a hundred dollars . . . worth") of crack cocaine. After Clifton and Durell arrived in a Cadillac driven by Clifton, one of the brothers called the informant and asked to change the location to a grocery store parking lot. When they arrived at that parking lot, Durell entered the agent's vehicle and gave the informant a bag of crack cocaine in exchange for $100. While the sale was taking place, Clifton drove the Cadillac in slow circles around the parking lot in a manner consistent with counter-surveillance techniques used by those who sell illegal drugs. During the sale, Durell stated the driver of the Cadillac "was his little brother, he's 22 years old, and . . . very paranoid." After the sale, Durell left the agent's vehicle and returned to the Cadillac.

¶3 After a joint trial with his brother, the jury found Clifton guilty of transportation of a narcotic drug for sale, aiding the sale of a narcotic drug, conspiracy,and assisting a criminal street gang. The jury found he had committed the transportation, aiding-the-sale, and conspiracy offenses with the intent to assist a criminal street gang. The trial court sentenced him to concurrent terms, the longest of which are nine years' imprisonment. This appeal followed.

Double Jeopardy

¶4 Clifton argues his convictions for transportation of a narcotic drug for sale and for aiding or agreeing to aid in the sale of a narcotic drug violate the Double Jeopardy Clause of the United States Constitution.¹ He first contends that he cannot be convicted as both the principal and an accomplice on the same offense, and then that the convictions are multiplicitous because "possession of the cocaine for sale is a lesser-included offense of transportation of the cocaine for sale."

¶5 Clifton concedes that he did not raise this argument on these counts in the trial court and that he therefore has forfeited the right to seek relief for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005) (failure to object to alleged error in trial court results in forfeiture of review for all but fundamental error). Fundamental error requires the defendant to establish that: 1) an error occurred; 2) the error was fundamental; and 3) the error resulted in prejudice. See id. However, a double jeopardy violation is fundamental error.State v. Siddle, 202 Ariz. 512, n.2, 47 P.3d 1150, 1153 n.2 (App. 2002). We review de novo whether convictions violate double jeopardy. See id. ¶ 7.

¶6 The Double Jeopardy Clause prohibits "multiple punishments for the same offense." State v. Powers, 200 Ariz. 123, ¶ 5, 23 P.3d 668, 670 (App. 2001), approved, 200 Ariz. 363, 26 P.3d 1134 (2001). An indictment is defective as multiplicitous when it "charges a single offense in multiple counts." Id. In determining whether an indictment is multiplicitous, we must determine whether each offense requires evidence the other offense does not. State v. Barber, 133 Ariz. 572, 576, 653 P.2d 29, 33 (App. 1982), approved, 133 Ariz. 549, 653 P.2d 6 (1982).

¶7 We first note that Clifton bases his argument on an incorrect recitation of his convictions. He contends "possession of the cocaine for sale is a lesser-included offense of transportation of the cocaine for sale" and relies on a case in which the court concluded that a defendant's conviction of both transportation of drugs for sale and possession of the same drugs for sale violated the Double Jeopardy Clause. See State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 8, 965 P.2d 94, 96 (App. 1998). But Clifton was not convicted of possession of a narcotic drug for sale but instead of transporting a narcotic drug for sale and acting as an accomplice to Durell's sale of a narcotic drug.

¶8 The offense of transportation for sale requires proof the defendant knowingly: 1) transported; 2) for sale; 3) a narcotic drug. A.R.S. § 13-3408(A)(7); see State v. Cheramie, 218 Ariz. 447, ¶ 10, 189 P.3d 374, 376 (2008). The offense of sale of a narcotic drug requires the defendant knowingly exchange anything of value for anarcotic drug. See A.R.S. §§ 13-3401(32); 13-3408(A)(7). Thus the transportation for sale charge requires the defendant have transported the narcotic, which the sale charge does not. And the sale charge requires a defendant exchange something of value for a narcotic drug, which the transportation for sale charge does not. Because each count requires proof the other does not, Clifton was not convicted as both a principal and accomplice of the same offense. Furthermore, the indictment here was not multiplicitous, and Clifton's convictions for transportation of a narcotic drug for sale and sale of a narcotic drug were not multiplicitous, see Barber, 133 Ariz. at 576, 653 P.2d at 33, and did not violate the Double Jeopardy Clause, see Powers, 200 Ariz. 123, ¶ 5, 23 P.3d at 670. No error occurred, much less fundamental error.

Admission of Photographs and Testimony Regarding Photographs

¶9 Clifton argues the trial court erred by allowing the state to admit various photographs, claiming that the state did not present sufficient foundation for the photographs and that they were inadmissible hearsay, irrelevant, and unfairly prejudicial. We review the trial court's rulings on the relevance and admissibility of evidence for an abuse of discretion. State v. Rutledge, 205 Ariz. 7, ¶ 15, 66 P.3d 50, 53 (2003).

¶10 A proponent of evidence must establish foundation for it by first authenticating or identifying the evidence. Ariz. R. Evid. 901(a).² The proponent does this by producing evidence "sufficient to support a finding that the item is what theproponent claims it is." Id. Rule 901(b)(1) states that authentication may be accomplished when a witness with knowledge testifies that "an item is what it is claimed to be." The trial court does not determine the authenticity of the evidence but instead determines "'whether evidence exists from which the jury could reasonably conclude that it is authentic.'" State v. King, 226 Ariz. 253, ¶ 9, 245 P.3d 938, 942 (App. 2011), quoting State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). A flexible approach that allows the "trial court to consider the unique facts and circumstances in each case . . . and the purpose for which the evidence is being offered" is appropriate when the court is deciding whether evidence was properly authenticated. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 14, 186 P.3d 33, 37 (App. 2008).

¶11 To be properly admissible, photographic evidence must be a reasonably faithful representation of the object depicted and the photograph must assist the jury in understanding the testimony or in evaluating the issues presented. Id. ¶ 7. "And, although 'the individual who took the photographs need not be the person who verifies them at trial, and the verifying witness is not required to have been present when the photographs were taken,' the verifying witness must 'attest that the photographs accurately portray the scene or object depicted.'" Id., quoting Lohmeier v. Hammer, 214 Ariz. 57, ¶ 8, 148 P.3d 101, 105 (App. 2006).

¶12 At trial, the court admitted eight photographs of members of "Hollywood," which the state alleged was a criminal gang, bearing the Hollywood tattoo and displaying the Hollywood hand symbol. Officer Jeremy Wolfe identified all of the individualspictured in the eight photographs and testified each fairly and accurately depicted what it portrayed.

¶13 The trial court did not err in admitting the state's photographic evidence over Clifton's objection to foundation. The state presented sufficient foundation by providing Wolfe's testimony that each of the photographs was a fair and accurate depiction of the scene or object portrayed as it related to the issues in the case, whether Hollywood was a criminal gang. Clifton argues there was insufficient foundation because "[t]here was no testimony as to when the photographs were taken, the circumstances under which they were taken, or by whom they were taken." However, these attributes are not important to the purpose for which the photographs were admitted. Additionally, the person who took the photographs need not be the witness who verifies them at trial, and the verifying witness is not required to have been present when the photographs were...