State v. Crespin

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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. ) ) MATTHEW ALEXANDER CRESPIN, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 02-21-2012 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-CR 10-0797 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-105000-002SE The Honorable Paul J. McMurdie, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Michael T. O Toole, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Karen M. Noble, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Matthew Alexander Crespin appeals his conviction and sentence for transportation of marijuana for sale. For the following reasons, we affirm. BACKGROUND ¶2 In conducted January 2010, surveillance on suspected drug activity. undercover an apartment to five surveillance nights in detectives Mesa based on Crespin s girlfriend, M.R., lived at the apartment with her father. four police a Crespin stayed at the apartment week. information, On the January detectives 26th, based observed a on vehicle Crespin had been driving enter a grocery store parking lot where Crespin and M.R. exited the vehicle, [ran] around a little bit without going into the store, and then got back into the vehicle and continued driving. The vehicle made another stop at Crespin s residence, then drove to a strip mall where Crespin spoke briefly with another male, and then stopped at a grocery store where Crespin bought some items. As the detectives continued to follow, they observed that the vehicle was speeding and its registration tag was not current. After receiving this information from the detectives, Officer Callender stopped the vehicle and observed Crespin where he was seated. noticed vehicle. an odor of Relying reach under the passenger seat While speaking with Crespin, the officer fresh on his marijuana coming narcotics-trained 2 from dog, inside the Callender located a backpack under Crespin s seat containing approximately one pound of marijuana. ¶3 Crespin and M.R. were transported to the police station where Detective Franklin read Crespin his Miranda 1 rights and questioned him. Crespin told Franklin that he was aware there was approximately a pound of marijuana in the vehicle and that a friend had fronted it to him to sell for $600, but that Crespin would not make any profit from it. The officers subsequently searched the apartment pursuant to a warrant and found evidence of a grow operation, including approximately three pounds of marijuana and drug paraphernalia. ¶4 In February 2010, Crespin was indicted on Count One, possession of marijuana for sale, a class 3 felony, 2 pursuant to Arizona Revised Statutes ( A.R.S. ) section 13-3405(A)(2) (Supp. 2011) 3 under a theory of accomplice liability for the marijuana found at the apartment, and Count Two, sale or transportation of marijuana, a class 3 felony, pursuant to A.R.S. 3405(A)(4) for the marijuana found in the vehicle. § 13- Following a trial, a jury found Crespin not guilty on Count One and guilty 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Count One was initially listed as a class 2 felony, but was amended to conform to the evidence during trial. 3 Absent any material change since the date of the offense, we cite the current version of a statute. 3 on Count Two. The court sentenced Crespin to a mitigated term of 3.5 years in prison. This timely appeal followed. DISCUSSION ¶5 Crespin because it asserts charged transportation for that multiple Count and sale. An Two separate was duplicitous crimes[:] indictment is sale or impermissibly duplicitous if it charges two or more distinct and separate offenses in a single count. State v. Klokic, 219 Ariz. 241, 243, ¶ 10, 196 P.3d 844, 846 (App. 2008) (citation and internal quotation omitted). A duplicitous indictment is forbidden because it does not provide adequate notice of the charge to be defended, . . . present[s] a hazard of a non-unanimous jury verdict, and . . . make[s] a precise pleading of prior jeopardy impossible Davis, in 206 the Ariz. event 377, of 389, a later ¶ 54, prosecution. 79 P.3d (citations and internal quotations omitted). 64, State 76 v. (2003) However, an error potentially resulting from such an indictment may be cured when the basis for the jury s verdict is clear, when the state elects for the jury which act constitutes the crime, or when the trial court instructs the jury that it must agree unanimously on the specific act constituting the crime. State v. Paredes-Solano, 223 Ariz. 284, 290, ¶ 17, 222 P.3d 900, 906 (App. 2009). ¶6 Crespin argues the court erred in failing to sua sponte direct the prosecutor to make an election as to whether 4 it was seeking to prove a charge of sale or transportation for sale as to the marijuana found in the vehicle. failed to raise a pretrial objection to the But Crespin indictment on grounds of duplicity, so this issue is subject to review for fundamental error only. Id. at 288, ¶ 8, 222 P.3d at 904. To prevail under this standard, Crespin must establish both that fundamental prejudice. error exists and that the error caused him State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). ¶7 Assuming without deciding that the indictment was duplicitous on its face, we conclude any potential error of a non-unanimous verdict was cured because the basis for the jury s verdict is clear and the State consistently informed the jury that it sought to convict Crespin on transportation of marijuana for sale. Ariz. at 290, ¶ 17, 222 P.3d at 906. Count Two for See Paredes-Solano, 223 The State did not present evidence or allege that Crespin actually sold marijuana, nor did it make any such request to the jury. Instead, the prosecutor characterized opening transportation evidence Count of supporting Two in marijuana this for charge his sale and revolves statement stated around that the as the traffic stop of the car, [and] the one pound [of marijuana] in it. He added that at the end of the case the State would ask for two verdicts: Guilty for the possession of marijuana of over four 5 pounds, and also guilty for transporting the one pound in the vehicle. The State emphasized this point during its questioning of Detective Franklin: Q. And no sales took place; correct? A. No, no sales took place. Q. But did the defendant ever indicate that he planned on making a sale? A. Yes, he did. Q. Did he ever indicate that, specifically, the marijuana in the car, he planned on selling that? A. Yes, he did. ¶8 During closing arguments, the prosecutor provided additional direction to the jury: For [Count Two], we do ask you to hold the defendant responsible, to find him guilty of transportation of marijuana for sale, what s underneath his seat, what s in that car, what he is exercising control over, what he knows to be under his seat . . . . (Emphasis added.) Defense focused counsel s argument marijuana in the vehicle. was similarly on the Essentially his only defense to Count Two was based on the State s failure to prove who had actually placed the backpack containing the marijuana into the vehicle. ¶9 We therefore reject Crespin s contention that the basis for the jury s verdict under Count Two is unclear or that the State pursuing failed a to make conviction transportation of an based the election on a marijuana as to whether sale of marijuana for sale. See it was or State a v. Hamilton, 177 Ariz. 403, 410, 868 P.2d 986, 993 (App. 1993) 6 (finding there delineated was during no duplicity closing when arguments the what state clearly specific conduct constituted the offense charged in each specific count ); State v. Schroeder, 167 Ariz. 47, 53, 804 P.2d 776, 782 (App. 1990) (finding error cured where clear from verdict that jury accepted victim s version of events over defendant s). Moreover, although Crespin vaguely asserts that the allegedly duplicitous indictment failed to notify [him] of what evidence would be presented against him, and handicapped his defense, he does not specifically prejudice. establish how the error he alleges caused him See Paredes-Solano, 223 Ariz. at 290, ¶ 17, 222 P.3d at 906 ( That an indictment is duplicitous does not, by itself, require reversal; a defendant must prove actual prejudice. ). ¶10 Alternatively, Crespin asserts that the charge under Count Two was duplicitous. 4 When the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge, our supreme court has sometimes referred to this problem in shorthand as a duplicitous charge rather than a duplicitous indictment. 4 Klokic, 219 Ariz. This argument is also subject only to fundamental error review because Crespin failed to argue in the trial court that the evidence the State presented made the charge in Count Two duplicitous. See Klokic, 219 Ariz. at 244, ¶ 13, 196 P.3d at 847 (finding that defendant preserved issue of duplicitous charge for appeal by raising it after the evidence had been presented); see also Paredes-Solano, 223 Ariz. at 287, ¶ 6, 222 P.3d at 903. 7 at 244, ¶ 12, 196 P.3d at 847. Thus, Crespin argues [t]he evidence at trial . . . presented multiple instances when the [S]tate asserted that [he] sold . . . the marijuana stowed under the passenger marijuana. these seat Crespin multiple through the of the car and transported the same asserts that the State to prove criminal acts of testimony that discrete detectives sought selling Crespin marijuana made several stops with the marijuana in the car before being pulled over by police. We disagree. ¶11 As discussed supra ¶¶ 7-8, the State did not present evidence that Crespin sold the marijuana found in the car. As to Count Two, the State sought only to prove Crespin transported marijuana in the vehicle with the intent to sell it at some later time. The State s theory of the case as to Count Two was supported by the marijuana found in the backpack, the location of the backpack under Crespin s seat, his actions in attempting to reach under his seat while talking to Officer Callender, and Crespin s statements to the officers admitting he had been fronted the marijuana for the purpose of selling it for $600. No reasonable juror could have concluded that the State had presented evidence that Crespin sold the marijuana found under his seat. Moreover, Crespin fails to assert how this alleged error caused him prejudice. Accordingly, we find no reversible error. 8 CONCLUSION ¶12 For the foregoing reasons, we affirm Crespin s conviction and sentence. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ___________________________________ PETER B. SWANN, Presiding Judge /s/ ___________________________________ JON W. THOMPSON, Judge 9

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