State v. Speer, 2 CA-CR 2011-0077

• Decision Date: 30 November 2011
• Docket Number: 2 CA-CR 2011-0077
• Parties: THE STATE OF ARIZONA, Appellee, v. RICHARD TITUS SPEER, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. RICHARD TITUS SPEER, Appellant.

2 CA-CR 2011-0077

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Dated: November 30, 2011

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Not for Publication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. CR201000372

Honorable James L. Conlogue, Judge

AFFIRMED IN PART; MODIFIED IN PART

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani and Amy M. Thorson Tucson

Attorneys for Appellee

Joel A. Larson, Cochise County Legal Defender Bisbee

Attorney for Appellant

VASQUEZ, Presiding Judge.

¶1 Richard Speer appeals from his conviction and sentence for transportation of marijuana for sale having a weight of two pounds or more. He argues the trial court erred by (1) failing to "direct a verdict of acquittal" based on insufficient evidence of the "for sale" element of the offense; (2) refusing to instruct the jury on the lesser-included offenses of possession for sale and simple possession of marijuana; (3) sentencing him for a class two felony when there was no jury finding as to the weight of the marijuana being transported; (4) improperly considering his failure to take responsibility for his actions at sentencing; and (5) imposing a fine in excess of that permitted by law. For the reasons set forth below, we affirm Speer's conviction, but modify his sentence by reducing the fine imposed to the statutory maximum.

Background

¶2 On April 18, 2010, United States Border Patrol Agent Frank Agudio was assigned to work the primary inspection lane of a Border Patrol checkpoint near Willcox. Around 8:30 p.m. a gold Cadillac DeVille pulled up and Agudio became suspicious when the driver, later identified as Speer, "continued to look directly straight ahead" and never made eye contact, even after Agudio greeted him. Agudio's suspicion was further aroused by two cell phones on the front passenger seat. The only other occupants of the vehicle were two small children sitting in the backseat.

¶3 Agudio asked for permission to search the trunk and Speer consented. When Speer opened the trunk, Agudio noticed a strong odor of marijuana and saw two large plastic trash bags that appeared to be full sitting inside. Canine Officer James Cowper informed Agudio that his dog had alerted to an odor of narcotics coming fromthe vehicle. Agudio and Cowper searched the trash bags and found twenty-two cellophane-wrapped "bricks" and one wrapped "bundle" of marijuana. Speer and the vehicle then were transported to the Willcox Border Patrol station where it was determined that Speer was the registered owner of the car and that the marijuana found in the trunk weighed 79.5 pounds. A later inspection under the hood of the Cadillac revealed two jars containing an additional 1.1 pounds of marijuana wrapped in a pink towel.

¶4 Speer was charged with transporting marijuana for sale having a weight of two pounds or more, a class two felony. After a jury trial, he was convicted as charged and the trial court imposed a presumptive sentence of five years in prison. The court also imposed a fine in the amount of $193,440. This appeal followed.

Discussion

Sufficiency of the Evidence

¶5 Speer first maintains the trial court erred in failing to "direct a verdict of acquittal" pursuant to Rule 20, Ariz. R. Crim. P., arguing the state failed to present any evidence of the "for sale" element of the offense. Speer acknowledges that he did not move for a judgment of acquittal on this basis at trial; we therefore review only for fundamental error. State v. Windsor, 224 Ariz. 103, n.2, 227 P.3d 864, 865 n.2 (App. 2010). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." State v. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d 601, 607 (App. 2005). Fundamental erroroccurs when a conviction is not supported by substantial evidence of guilt. See State v. Fimbres, 222 Ariz. 293, ¶ 23, 213 P.3d 1020, 1027 (App. 2009).

¶6 Substantial evidence is proof that "reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 914 (2005), quoting State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 468 (1997). "When considering claims of insufficient evidence, 'we view the evidence in the light most favorable to sustaining the verdict and reverse only if no substantial evidence supports the conviction.'" Fimbres, 222 Ariz. 293, ¶ 4, 213 P.3d at 1024, quoting State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App. 2005). Evidence sufficient to support a conviction can be direct or circumstantial. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d at 875. And we will reverse a conviction "only if 'there is a complete absence of probative facts to support [the jury's] conclusion.'" State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000), quoting State v. Mauro, 159 Ariz. 186, 206, 766 P.2d 59, 79 (1988).

¶7 To support a conviction under A.R.S § 13-3405(A)(4), the state needed to prove that Speer knowingly transported marijuana for sale. See State v. Fierro, 220 Ariz. 337, ¶ 14, 206 P.3d 786, 789 (App. 2008); State v. Cheramie, 218 Ariz. 447, ¶ 10, 189 P.3d 374, 376 (2008) (reciting the elements of transportation for sale generally). The trial court instructed the jury that the term "sale" is defined by statute as "an exchange for anything of value." See A.R.S. § 13-3401(32).

¶8 Speer contends that although "[n]umerous law enforcement officers and agents testified . . . not one offered any testimony that the marijuana . . . was 'for sale.'"He argues that, in the absence of such testimony, the "for sale" element of the offense could not be inferred from the quantity and packaging of the marijuana alone. The state counters that in State v. Olson, 134 Ariz. 114, 118, 654 P.2d 48, 52 (App. 1982), this court concluded the intent to sell could be inferred where the quantity of drugs—as in that case—was as little as 13.7 pounds. The state further contends that in State v. Harrison, 111 Ariz. 508, 510, 533 P.2d 1143, 1145 (1975), our supreme court held that the intent to sell can be inferred from the "large quantity of marijuana found" and "the nature of its packaging."

¶9 Contrary to the state's argument, in Olson the court expressly stated it was not deciding whether the quantity of marijuana was, "standing alone, legally sufficient to support a conviction of possession for sale." 134 Ariz. at 118, 654 P.2d at 52. Speer maintains the state's reliance on Harrison also is misplaced. He argues Harrison relied on State v. Arce, 107 Ariz. 156, 160-61, 483 P.2d 1395, 1399-1400 (1971), which involved testimony from law enforcement officers that the quantity of drugs and the nature of its packaging suggested it was for sale. And he contends Arce and, by extension, Harrison thus require such testimony to support the state's theory that drugs are for sale. We disagree.

¶10 Nothing in Harrison suggests such testimony was elicited in that case. And in Arce, our supreme court explained that the "for sale" element can be shown by circumstantial evidence. It cited two California cases for the proposition that the amount, packaging, and location of narcotics are sufficient to support an inference that the narcotics were possessed for sale. Id. at 160, 483 P.2d at 1399; see also People v.Campuzano, 61 Cal. Rptr. 695, 697 (App. 1967); People v. Robbins, 37 Cal. Rptr. 244, 248 (App. 1964). The court further noted "[i]t was the function of the jury to decide what reasonable inferences could be drawn from the evidence." Arce, 107 Ariz. at 161, 483 P.2d at 1400.

¶11 Here the jury reasonably could have inferred Speer had transported the marijuana found in his vehicle and that it was for sale. The 79.5 pounds of marijuana found in the trunk had been packaged in twenty-two cellophane-wrapped "bricks" and one wrapped "bundle." We conclude the evidence of the marijuana's quantity and packaging was sufficient to support a finding of guilt beyond a reasonable doubt. See Harrison, 111 Ariz. at 510, 533 P.2d at 1145; Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d at 913-14 (defining substantial evidence); see also State v. Aguilar, 169 Ariz. 180, 182, 818 P.2d 165, 167 (1991) (jurors entitled to rely on common sense in deciding case). The trial court therefore did not err, fundamentally or otherwise, in failing to enter a judgment of acquittal.

Jury Instructions - Lesser-Included Offenses

¶12 Speer next contends the trial court abused its discretion when it refused to instruct the jury on the lesser-included offenses of possession of marijuana for sale and simple possession as both he and the state had requested. He argues the court should have given the instructions because marijuana was found in two separate locations in his vehicle—in the trunk and under the hood—and the jury could have found that the state failed to prove the elements of knowledge and "for sale" as to the marijuana in the trunk, while also finding he had knowledge of the smaller quantity of marijuana in the enginecompartment and that it was not for sale. We review a trial court's decision to refuse a jury instruction on a lesser-included offense for an abuse of discretion. State v. Price, 218 Ariz. 311, ¶ 21, 183 P.3d 1279, 1284 (App. 2008).

¶13 A trial court must instruct the jury on a lesser-included offense if the evidence supports it. State v. Vickers, 159 Ariz. 532, 542, 768 P.2d 1177, 1187 (1989); see also Ariz. R. Crim. P. 23.3 (trial court must furnish forms of verdicts on all offenses "necessarily included in the offense charged"). The evidence is sufficient to require a lesser-included offense instruction if the jury could find "(1) the state failed to prove an element of the...