State v. Francis
| Decision Date | 03 January 2017 |
| Docket Number | No. 1 CA–CR 16–0051,1 CA–CR 16–0051 |
| Citation | 241 Ariz. 449,755 Ariz. Adv. Rep. 6,388 P.3d 843 |
| Parties | STATE of Arizona, Appellee, v. Darrel Scott FRANCIS, Appellant. |
| Court | Arizona Court of Appeals |
Arizona Attorney General's Office, Phoenix, By Michael F. Valenzuela, Counsel for Appellee
Criss Candelaria Law Office, PC, Concho, By Criss E. Candelaria, Counsel for Appellant
1
OPINION
¶ 1 Darrel Scott Francis was convicted of two counts of promoting prison contraband by possessing a cell phone. On appeal, he argues the superior court erred by failing to instruct the jury that the State was required to prove he knew the cell phone was contraband. Because the crime requires proof a defendant knew what he or she possesses or obtains is contraband, we reverse and remand.
¶ 2 Francis was detained at the Show Low Jail Annex on charges unrelated to this appeal. Officers took Francis's clothing, boots and cell phone, and stored them in a property bag. While in custody, Francis asked to call his attorney. After the officer on duty could not find the lawyer's phone number, Francis volunteered that the lawyer's number was stored on his cell phone. The officer then retrieved Francis's cell phone from his property bag, activated it and located the phone number. Later that day, Francis was transported to Navajo County Jail in Holbrook. There, another officer noticed Francis was holding the cell phone and confiscated it.
¶ 3 Francis was charged with two counts of promoting prison contraband—one count for allegedly possessing the cell phone inside the Navajo County Jail, and the other for possessing the cell phone while inside the annex or while being transported from the annex to the jail. Before trial, the State asked the Court to rule it did not have to prove that Francis knew his cell phone was contraband. In the alternative, the State asked for leave to introduce "other acts" evidence to prove Francis knew the phone was contraband. The court ruled the State did not have to prove Francis knew the phone was contraband, and therefore precluded the other-acts evidence as irrelevant. The court also ruled Francis could not argue to the jury that the State needed to prove he knew the cell phone was contraband.
¶ 4 At trial, the State presented evidence that inmates are not allowed to possess cell phones, that personal property (including cell phones) is kept in a secure office out of the reach of inmates, and that officers do not permit inmates to handle cell phones for any reason. The court instructed the jury:
¶ 5 The jury found Francis guilty of both charges and also found he committed the offenses while on release from another felony charge. The court sentenced him to two concurrent five-year prison terms.
¶ 6 We have jurisdiction over Francis's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12–120.21(A) (2016), 13–4031 (2016) and –4033 (2016).2
¶ 7 Francis was charged with promoting prison contraband by "knowingly ... obtaining or possessing contraband while being confined in a correctional facility or while being lawfully transported or moved incident to correctional facility confinement." A.R.S. § 13–2505(A)(3) (2016). As defined by statute, contraband means:
[A]ny dangerous drug, narcotic drug, marijuana, intoxicating liquor of any kind, deadly weapon, dangerous instrument, explosive, wireless communication device, multimedia storage device or other article whose use or possession would endanger the safety, security or preservation of order in a correctional facility or a juvenile secure care facility as defined in § 41–2801, or of any person within a correctional or juvenile secure care facility.
A.R.S. § 13–2501(1) (2016). At trial, there was no dispute that Francis knew he possessed the cell phone; the issue on appeal is whether § 13–2505(A)(3) required proof he knew the cell phone was "contraband," within the meaning of § 13–2501(1).
¶ 8 We review de novo the superior court's ruling on a matter of statutory interpretation. See State v. Falcone , 228 Ariz. 168, 170, ¶ 9, 264 P.3d 878 (App. 2011). "In construing a statute, our primary goal is to discern and give effect to the legislature's intent." State v. Fell , 203 Ariz. 186, 188, ¶ 6, 52 P.3d 218 (App. 2002). We look to the plain language of the statute and "give words their plain and ordinary meaning, unless the legislature has clearly expressed an intent to give a term special meaning." State v. Cotton , 197 Ariz. 584, 586, ¶ 6, 5 P.3d 918 (App. 2000). If the plain meaning is unclear, we consider other factors such as "the statute's context, history, subject matter, effects and consequences, spirit, and purpose." Fell , 203 Ariz. at 188, ¶ 6, 52 P.3d 218. Toward that end, we examine statutes that are in pari materia , meaning those of the same subject or general purpose. See State v. Gamez , 227 Ariz. 445, 449, ¶ 27, 258 P.3d 263 (App. 2011) ; Fell , 203 Ariz. at 188, ¶ 6, 52 P.3d 218.
¶ 9 Francis argues State v. Bloomer , 156 Ariz. 276, 751 P.2d 592 (App. 1987), establishes that the crime of possession of contraband requires proof the defendant knew what he possessed was contraband. The defendant in Bloomer argued he could not be convicted under § 13–2505(A) because he was charged with possession of gunpowder when the evidence showed he thought he possessed marijuana, not gunpowder. 156 Ariz. at 279, 751 P.2d 592. This court stated that "the state was required to prove ... that appellant, while confined in a correctional facility, possessed a substance which was contraband, that he knowingly possessed the substance, and that he knew it was contraband." Id. It did not matter what variety of contraband the defendant possessed, because he admittedly knew both that he possessed marijuana and that marijuana is contraband within the meaning of the statute. Id.
¶ 10 The State argues the discussion of the issue in Bloomer is dictum and instead directs our attention to the definition of "knowingly" in the criminal code:
"Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
A.R.S. § 13–105(10)(b) (2016). Under this provision, the crime of knowing possession of contraband requires proof that the defendant was "aware or believe[d]" that he possessed contraband, but the statute does not answer whether the State need prove only that the defendant knew he possessed an item (that in fact was contraband), or whether it must prove he possessed something he knew was contraband.
¶ 11 The State argues that under the second sentence of § 13–105(10)(b), when a defendant is charged with "knowingly" committing an act, the State need not prove the defendant had "any knowledge of the unlawfulness of the act." See also State v. Soltero , 205 Ariz. 378, 381, ¶ 11, 71 P.3d 370 (App. 2003) (). The issue, however, is not whether Francis knew what he was doing was unlawful; it is whether the requisite culpable mental state of "knowingly" applies not only to "making, obtaining or possessing" an object while in custody; but also to the fact that the object falls within the statutory definition of "contraband." A.R.S. § 13–2505 (A)(3).
¶ 12 To resolve that question, we look instead to A.R.S. § 13–202 (2016), "Construction of statutes with respect to culpability." Section 13–202(A) addresses precisely the issue before us, which is whether a specified requisite mental state for the commission of a crime applies to each element of the crime:
If a statute defining an offense prescribes a culpable mental state that is sufficient for commission of the offense without distinguishing among the elements of such offense, the prescribed mental state shall apply to each such element unless a contrary legislative purpose plainly appears.
A.R.S. § 13–202(A). Under this rule, "[if] a statute requires a certain mental state but does not specify which elements require that mental state, it applies to every element in the absence of legislative intent to the contrary." State v. Rivera , 226 Ariz. 325, 328, ¶ 4, 247 P.3d 560 (App. 2011).
¶ 13 A host of cases teach how to apply § 13–202(A) in construing criminal statutes that, like § 13–2505(A)(3), prescribe a single culpable mental state without distinguishing among the elements. For example, in State v. Witwer , 175 Ariz. 305, 856 P.2d 1183 (App. 1993), the defendant was convicted under A.R.S. § 13–1404 (2016) of committing sexual abuse by "intentionally or knowingly engaging in sexual contact with any person who is fifteen or more years of age without consent of that person." On appeal, the defendant argued the superior court erred by failing to instruct the jury that the State needed to prove he knew the victim had not consented to the contact. Citing § 13–202(A), this court found no contrary legislative purpose and held the statute indeed required proof that the defendant knew that the sexual contact he committed was without the consent of the victim. Witwer , 175 Ariz. at 308, 856 P.2d 1183.
¶ 14 Other cases likewise have followed the dictate of § 13–202(A) to determine that a single specified culpable mental state applies to each element of the crime at issue. S...
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