State v. Simmons

• Decision Date: 23 November 2015
• Docket Number: No. 2 CA–CR 2014–0193.,2 CA–CR 2014–0193.
• Citation: 363 P.3d 120
• Parties: The STATE of Arizona, Appellee, v. Usef Latrice SIMMONS II, Appellant.
• Court: Arizona Court of Appeals

363 P.3d 120

The STATE of Arizona, Appellee,

v.Usef Latrice SIMMONS II, Appellant.

No. 2 CA–CR 2014–0193.

Court of Appeals of Arizona, Division 2.

Nov. 23, 2015.

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee.

Joel A. Larson, Cochise County Legal Defender, Bisbee, Counsel for Appellant.

Presiding Judge VÁSQUEZ authored the opinion of the Court, in which Judge HOWARD and Judge KELLY¹ concurred.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 Following a jury trial, Usef Simmons was convicted of eleven drug-related offenses. The trial court sentenced him to a combination of consecutive and concurrent, presumptive prison terms. On appeal, Simmons challenges two of his convictions for violating A.R.S. § 13–3417(A), which prohibits using any wire or electronic communication to facilitate or to conspire to commit certain offenses. The primary issue we must decide is whether Simmons, as the principal/seller in a buy-sell drug transaction, could be convicted of violating § 13–3417(A), where there is no evidence of a wire or electronic communication by Simmons with any person except the other principal/buyer. Because we conclude the answer is no, we vacate Simmons's five convictions and sentences for violating § 13–3417(A). For the reasons expressed in a separate memorandum decision, we remand for clarification of Simmons's remaining sentences.² We otherwise affirm.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to sustaining Simmons's convictions. See State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App.2008). In January 2013, narcotics agents with the Arizona Department of Public Safety received information that Simmons was selling drugs. On January 28, an undercover agent began communicating with Simmons via a cellular telephone number associated with him. The following day, the agent arranged via that phone number to meet Simmons to purchase methamphetamine from him, and the transaction occurred as scheduled.

¶ 3 On January 30 and 31, the undercover agent contacted Simmons at the same cell phone number and arranged another purchase for the evening of January 31. But the woman who was to deliver the drugs did not show up, and the transaction did not occur. On February 5, the agent set up another drug purchase with Simmons at the same phone number. One of Simmons's codefendants, Cristy Mast, sold the agent methamphetamine at the arranged location.

¶ 4 The undercover agent next communicated with Simmons on February 11 via the same cell phone number. He and Simmons arranged a methamphetamine transaction for the same day. The sale, however, did not take place because the agent was the only person who showed up. The next day, February 12, the agent again initiated contact with Simmons via Simmons's cell phone and arranged to buy methamphetamine later that day. Simmons's other codefendant, Shannon Curry, met the agent at the arranged time and place but sold him rock salt instead of methamphetamine.

¶ 5 Officers with the Sierra Vista Police Department arrested Simmons about two weeks later. When they searched him, they found a small plastic baggie containing marijuana in his front left pants pocket. He also had in his possession a cell phone associated with the number that the agent had been using to contact him.

¶ 6 A grand jury indicted Simmons, Mast, and Curry. The indictment alleged the following charges against Simmons, listed by offense date:

January 29

Count one: Knowingly transporting methamphetamine

Count two: Knowingly selling methamphetamine

Count three: Using a wire or electronic communication to facilitate a felony or to conspire to commit a drug felony

January 31

Count four: Using a wire or electronic communication to facilitate a felony or to conspire to commit a drug felony

February 5

Count six: Knowingly selling methamphetamine

Count eight: Using a wire or electronic communication to facilitate a felony or to conspire to commit a drug felony

February 11

Count nine: Using a wire or electronic communication to facilitate a felony or to conspire to commit a drug felony

February 12

Count ten: Possessing an imitation drug with the intent to distribute

Count twelve: Using a wire or electronic communication to facilitate a felony or to conspire to commit a drug felony

February 27

Count thirteen: Possessing marijuana

January 28 through February 12

Count fourteen: Conspiring to sell methamphetamine³

¶ 7 The jury found Simmons guilty of all eleven charges, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A).

Discussion

¶ 8 Simmons argues that his convictions for counts nine and twelve, which are based on § 13–3417(A), "must be vacated because they involve non-existent offenses." That section provides, "It is unlawful for a person to use any wire communication⁴ or electronic communication⁵ as defined in [A.R.S.] § 13–3001 to facilitate the violation of any felony provision or to conspire to commit any felony provision of [chapter 34] or chapter 23 of [title 13]." Chapter 34 of title 13 deals with "Drug Offenses," while chapter 23 addresses "Organized Crime, Fraud and Terrorism."

¶ 9 Simmons points out that the offenses charged in counts nine and twelve involved the sale of rock salt, which falls under chapter 34.1, "Imitation Substance or Drug Offenses," not chapter 34 or 23. He therefore reasons that the offenses "do not exist" under § 13–3417(A) and that "it was fundamental error to instruct the jury on a non-existent theory of liability." The state responds that Simmons "violated § 13–3417... by using his cell phone to communicate with the officer on February 11 and 12" regarding the sale of a dangerous drug and that whatever happened after their communications is of no consequence. The state suggests that the underlying offense facilitated or conspired to commit need not be completed for § 13–3417(A) to apply.

¶ 10 In the course of our review, we questioned whether the record contained sufficient evidence that Simmons used a wire or electronic communication to "facilitate" or "conspire to commit" these offenses. § 13–3417(A) ; see State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App.2007) ( "Although we do not search the record for fundamental error, we will not ignore it when we find it."); State v. Stroud, 209 Ariz. 410, n. 2, 103 P.3d 912, 914 n. 2 (2005) (" ‘It is ... fundamental error to convict a person for a crime when the evidence does not support a conviction.’ "), quoting State v. Roberts, 138 Ariz. 230, 232, 673 P.2d 974, 976 (App.1983). We thus ordered supplemental briefing on whether a defendant, as a principal in a buy-sell drug transaction, can be convicted of using a wire or electronic communication to facilitate or conspire with the other principal, in violation of § 13–3417(A), where there is no evidence of a wire or electronic communication by the defendant with any person except the other principal.⁶

¶ 11 We begin by noting that the language of § 13–3417(A) is not a model of clarity. Even so, no published case has interpreted the statute during its twenty-five-year existence. Accordingly, we must consider the language of § 13–3417(A) to ascertain whether evidence of a wire or electronic communication between two principals in a buy-sell drug transaction is sufficient for a violation of the statute. This necessarily requires us to determine the meaning of "facilitate" and "conspire" as used in the statute.

¶ 12 "We review issues of statutory interpretation de novo...." State v. Barnett, 209 Ariz. 352, ¶ 7, 101 P.3d 646, 648 (App.2004). " ‘Our goal in interpreting statutes is to ascertain and give effect to the intent of our legislature,’ and the plain language of the statute is the best and most reliable indicator of that intent." State v. Lockwood, 222 Ariz. 551, ¶ 4, 218 P.3d 1008, 1010 (App.2009), quoting State v. Garcia, 219 Ariz. 104, ¶ 6, 193 P.3d 798, 800 (App.2008). " ‘When a statute is clear and unambiguous, we apply its plain language and need not engage in any other means of statutory interpretation.’ " State v. Gongora, 235 Ariz. 178, ¶ 5, 330 P.3d 368, 369 (App.2014), quoting State v. Arellano, 213 Ariz. 474, ¶ 9, 143 P.3d 1015, 1018 (2006).

¶ 13 We construe penal statutes "according to the fair import of their terms, with a view to effect their object and to promote justice." A.R.S. § 1–211(C) ; see also State v. Peek, 219 Ariz. 182, ¶ 11, 195 P.3d 641, 643 (2008). Thus, "[a] statute is to be read and applied in accordance with any special statutory definitions of the terms it uses." State v. Hazlett, 205 Ariz. 523, ¶ 27, 73 P.3d 1258, 1266 (App.2003) ; see also A.R.S. § 1–213 ("Technical words and phrases and those which have acquired a peculiar and appropriate meaning in the law shall be construed according to such peculiar and appropriate meaning."). When terms are not specifically defined, "courts apply common meanings and may look to dictionaries." State v. Pena, 235 Ariz. 277, ¶ 6, 331 P.3d 412, 414 (2014) (internal citation omitted); see also § 1–213.

¶ 14 Here, the legislature has defined the crimes of "facilitation" and "conspiracy" in title 13. Section 13–1004(A), A.R.S., provides, "A person commits facilitation if, acting with knowledge that another person is committing or intends to commit an offense, the person knowingly provides the other person with means or opportunity for the commission of the offense." And A.R.S. § 13–1003(A) explains,

A person commits conspiracy if, with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and one of the parties commits an overt act in furtherance of the offense....

¶ 15 We are thus bound by these definitions when interpreting the language of § 13–3417(A),...