State v. France

• Court: Arizona Court of Appeals
• Writing for the Court: THOMPSON
• Decision Date: 04 March 2014
• Docket Number: No. 1 CA-CR 13-0208,1 CA-CR 13-0208
• Citation: State v. France, No. 1 CA-CR 13-0208 (Ariz. App. Mar 04, 2014)
• Parties: STATE OF ARIZONA, Appellee, v. KORY KING FRANCE, Appellant.

STATE OF ARIZONA, Appellee, v. KORY KING FRANCE, Appellant.

No. 1 CA-CR 13-0208

ARIZONA COURT OF APPEALS DIVISION ONE

FILED: March 4, 2014

NOTICE: NOT FOR PUBLICATION.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.

FACTS¹ AND PROCEDURAL HISTORY

¶2 In 2008-2009, four detectives² with the Special Crimes Unit³ 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.

¶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 orderedthat 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, ¶...