STATE v. DILES

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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 DIVISION ONE FILED: 1/17/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. KEVAN MIKAEL DILES, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 12-0059 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-116559-001 The Honorable Samuel A. Thumma, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Alice Jones, Assistant Attorney General Attorneys for Appellee Phoenix Michael J. Dew Attorney for Appellant Phoenix H A L L, Judge ¶1 Kevan Mikael Diles (defendant) appeals his convictions and sentences of one count of possession of narcotic drugs for sale, a class 2 felony, one count of misconduct involving weapons, a class 4 felony, and two counts of possession of drug paraphernalia, class 6 felonies. For the following reasons, we affirm. FACTUAL1 AND PROCEDURAL BACKGROUND ¶2 In April, 2011, defendant was indicted on four counts: Count 1, possession of narcotic drugs for sale, a class 2 felony; Count 2, misconduct involving weapons, a class 4 felony; Count 3, possession of drug paraphernalia by unlawfully us[ing] or possess[ing] with intent to use baggies and/or scales and/or razor blades, drug paraphernalia, to pack, repack, store, contain, or conceal heroin, a narcotic drug a class 6 felony; and Count 4, possession of drug paraphernalia by unlawfully us[ing] or possess[ing] with intent to use syringes and/or foil, drug paraphernalia, to inject, ingest, inhale, or otherwise introduce into the human body heroin, a narcotic drug, a class 6 felony. ¶3 The following evidence was presented at the December 2011 trial. Phoenix Police Officer Peter Best testified that after receiving an anonymous tip about potential drug activity at the Studio 6 Hotel (the hotel), 1 he and Officer Nicholas We review the evidence and inferences drawn from the evidence in a light most favorable to upholding the verdicts. See State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 Barker approached defendant outside of defendant s hotel room, and asked for his identification. Defendant led Officers Best and Barker to his hotel room to retrieve his identification card, and Officer Best stated that [i]n plain view from standing outside his motel room, we could see numerous syringes, a marijuana pipe, and a handgun sitting on a dresser next to a bed. Officers Best and Barker conducted a protective sweep of the room for their safety, and thereafter obtained a search warrant. ¶4 Officer Best testified that they also confiscated black tar heroin, $724.05, balloons, razor blades, a purple tube used to inhale heroin, a spoon with a large quantity of brown residue on top and burn marks on the bottom, consistent with heating up heroin, and scales to weigh the heroin.2 Officer Best also found a part of a needle, needle caps, aluminum foil, a lighter, syringes, and syringe caps, which he stated were consistent with heroin use. ¶5 Officer Best, who read defendant his Miranda3 rights, testified that defendant stated he was addicted to heroin, used it approximately two to four times a day, and had been selling it to five people. Officer Best also said that he concluded 2 The scales, balloons, and razor blades were found in a safe in the hotel room. 3 Miranda v. Arizona, 384 U.S. 436 (1966). 3 based on his investigation that defendant owned the drugs found in the hotel room. ¶6 Faye laboratory testified Stump, a employee that she Phoenix who Police analyzes analyzed the Department controlled substance crime substances, confiscated in defendant s case and concluded that it was fourteen grams of heroin, a usable amount. ¶7 Defendant testified that he had not used drugs in the months preceding conceded that his the arrest police and found had never heroin, sold drug drugs. He needles, drug scales, balloons, tin foil, spoons, and syringes in his hotel room, which was registered in his name. Defendant, however, stated that the drugs and paraphernalia found in the hotel room belonged to his girlfriend. ¶8 The jury found defendant guilty as charged. The court sentenced defendant to concurrent prison terms of three years and three months for Count 1, one year and three months for Count 2, and five months each for Counts 3 and 4, with 121 days of presentence-incarceration credit for each count. ¶9 of We have jurisdiction pursuant to Article 6, Section 9 the (A.R.S.) Arizona Constitution, sections and 12-120.21(A)(1) 4033(A)(1) (2010). 4 Arizona Revised (2003), 13-4031, Statutes and - DISCUSSION ¶10 Defendant raises one issue, whether Counts 3 and 4 are multiplicitous, error. To that obtain he concedes relief we under review for fundamental fundamental-error review, Defendant has the burden to show that error occurred, the error was fundamental, and that he was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22, 115 P.3d 601, 607-08 (2005). Fundamental error is error that goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial. ¶11 Id. at 568, ¶ 24, 115 P.3d at 608. Multiplicity occurs when a charging document charges a single offense in multiple counts [and] raises the potential for multiple punishments, which implicates double jeopardy. State v. Powers, 200 Ariz. 123, 125, ¶ 5, 23 P.3d 668, 670 (App. 2001); see also State v. Barber, 133 Ariz. 572, 576, 653 P.2d 29, 33 (App. 1982). In determining whether the counts are multiplicitous, we consider whether each count requires proof of a fact that the other counts do not. Barber, 133 Ariz. at 576, 653 P.2d at 33. ¶12 Defendant was charged in Count 3 with possession of drug paraphernalia, due to unlawfully us[ing] or possess[ing] with intent to use baggies, and/or scales and/or razor blades, drug paraphernalia, to pack, repack, store, contain, or conceal 5 heroin, a narcotic Defendant was drug. charged in See Count A.R.S. 4 § with 13-3415(A) possession (2010). of drug paraphernalia by unlawfully us[ing] or possess[ing] with intent to use syringes ingest, inhale, heroin, a and/or or foil, drug otherwise narcotic drug. paraphernalia, introduce See A.R.S. into § the to inject, human body, 13-3415(A). Each offense as charged required proof of additional facts that the other count did not. Count 3 required proof that defendant used baggies, and/or scales and/or razor blades, drug paraphernalia, to pack, repack, store, contain, or conceal heroin. The State presented evidence that defendant had scales and razor blades in his possession. Count 4 required proof that defendant used syringes and/or foil, drug paraphernalia, to inject, ingest, inhale, or otherwise introduce into the human body, heroin. The State syringes submitted and foil in evidence his at hotel trial room. that defendant had The indictment was therefore not multiplicitous, and the superior court did not err, let alone fundamentally err. 6 CONCLUSION ¶13 For the foregoing reasons, we affirm. _/s/____________________________ PHILIP HALL, Judge CONCURRING: _/s/__________________________________ MARGARET H. DOWNIE, Presiding Judge _/s/__________________________________ MAURICE PORTLEY, Judge 7

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