STATE v. AYALA

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. RAYMOND AYALA, JR., Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0718 DIVISION ONE FILED: 07/24/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR201000389 The Honorable Andrew W. Gould, Judge AFFIRMED Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Section Chief Counsel Criminal Appeals/Capital Litigation Section and Matthew H. Binford, Assistant Attorney General Attorneys for Appellee Paul J. Mattern Attorney for Appellant Phoenix N O R R I S, Judge ¶1 Raymond Ayala, Jr. timely appeals his conviction and sentence for transportation of marijuana for sale, a class 2 felony. He argues the superior court improperly sentenced him to the presumptive term for a class 2 felony, because the jury failed to determine transported for sale. the weight of the marijuana he had Thus, he argues the most serious crime [he] could be sentenced for was . . . a class three felony. As explained below, we disagree and affirm Ayala s conviction and sentence for a class 2 felony. ¶2 Ayala did not object to the jury instructions or forms of verdict at trial, and we therefore review for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005); State v. Smith, 228 Ariz. 126, 129, ¶ 10, 263 P.3d 675, 678 (App. 2011). ¶3 Under 3405(A)(4) and Arizona Revised (B)(10)-(11) Statutes (2010), subsections transporting 13- marijuana weighing less than two pounds for sale is a class 3 felony, while transporting marijuana weighing two or more pounds for sale is a class 2 felony. Here, the grand jury s indictment charged Ayala with knowingly transport[ing] marijuana for sale, having a weight of two pounds or more, a class two felony. Although the court read the indictment to the jury pool during voir dire, it did not instruct the jury the State was required to prove (and transported two it was pounds required or more to find) Ayala of marijuana had for knowingly sale. The verdict form used by the jury failed to specify the weight of 2 the marijuana and merely found Ayala guilty of Transportation of Marijuana for Sale. ¶4 As both parties acknowledge, although not essential to guilt or innocence, classification of the the marijuana s offense and weight the determined applicable the sentencing range, and was an essential element on which [Ayala had] the right to be tried by a jury. State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, ¶ 11, 965 P.2d 94, 97 (App. 1998) (citing State v. Virgo, 190 Ariz. 349, 352-53, 947 P.2d 923, 926 (App. 1997)). Even assuming marijuana Fullem, the jury s constituted 185 Ariz. failure to 134, 138-39, weight but see P.2d 912 the error, fundamental find 1363, of State 1367-68 the v. (App. 1995) (citations omitted) (failure to instruct on an essential element not fundamental error when there is no issue as to that element), Ayala has failed to demonstrate how this error prejudiced him. ¶5 First, the indictment put Ayala on notice he was being charged with transportation for sale of two pounds or more of marijuana, and if convicted of that offense would be sentenced for a class 2 felony. Second, the arresting officer testified the marijuana seized from the car Ayala was driving weighed 26.9 pounds and introduced Ayala any was evidence the sole suggesting occupant. the Neither marijuana party weighed any other amount and the jury observed the marijuana as one of the 3 State s exhibits. was that he vehicle. And third, the only defense Ayala presented didn t know there was any marijuana in that Unlike Virgo, 190 Ariz. at 351, 947 P.2d at 925, this is not a case in which we are unable to ascertain how much marijuana the jury determined Ayala possessed. Thus, Ayala has not shown how the jury s failure to find the marijuana s weight prejudiced him. ¶6 For the foregoing reasons, we affirm Ayala s conviction and sentence. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ SAMUEL A. THUMMA, Judge 4

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