State v. Moore
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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: 08/09/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. EDDIE JAMES MOORE II, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 10-0439 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-121929-001 DT The Honorable Glenn M. Davis, Judge AFFIRMED IN PART, REVERSED IN PART Thomas C. Horne, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Katia Mehu, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix T I M M E R, Judge ¶1 Eddie James Moore II appeals the trial court s judgment after a jury found him guilty of multiple offenses. He argues the court erred by convicting him on two counts of possession of marijuana as these convictions are based on the same act, and the convictions and resulting dispositions therefore violate his constitutional rights to be free failed to raise review for from this double jeopardy. objection fundamental error. to the State Because trial v. Moore court, Henderson, we 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). We review the applicability of double jeopardy de novo. State v. Brown, 217 Ariz. 617, 621, ¶ 12, 177 P.3d 878, 882 (App. 2008). The State confesses error and, for the reasons that follow, we agree. ¶2 On April 4, 2007, Phoenix Police detectives stopped a car after observing the driver, later identified as Moore, commit a traffic violation. When Moore and his passenger rolled down windows to speak to the detectives, they smelled the odor of marijuana. After a detective spotted a gun and scale in an opened glove box, Moore and the passenger were removed from the car. search of the car, the detectives In a subsequent found, among other things, a digital scale with crack cocaine residue on it and a baggie containing 50 grams of marijuana. Moore revealed detectives four placed $1,000 Moore in A search of bundles a 2 of cash. After police car, he found was attempting to hide a plastic bag containing crack cocaine beneath the seat. ¶3 The State indicted Moore on nine counts, including sale or transportation of marijuana (count five) and possession of marijuana for sale (count six). later convicted Moore on two counts of A jury possession of marijuana as lesser-included offenses of counts five and six in counts. addition finding him guilty on the remaining The court subsequently imposed concurrent terms of incarceration eight, to and for the nine. convictions The court on counts suspended one, imposition two, of sentence and placed Moore on concurrent two-year terms of probation as to counts three, four, five, six, and seven. The trial court also imposed a fine for each drug-related offense. This timely appeal followed. ¶4 Both the United States and Arizona Constitutions prohibit multiple punishments for the same offense. State v. Welch, 198 Ariz. 554, 555, ¶ 6, 12 P.3d 229, 230 (App. 2000) (citations omitted). Double jeopardy is not invoked, however, if the charges stem from separate conduct by the defendant. See Blockburger v. U.S., 284 U.S. 299, 302-03 (1932). ¶5 In the present case, Moore s convictions for possession of marijuana were both based on his single act 3 of possessing the baggie containing 50 grams of marijuana. Because the convictions on count five and count six were not based on Moore s separate conduct, the trial court violated the double jeopardy clauses of the United States Constitution and the Arizona Constitution by convicting Moore and entering dispositions for both offenses. This court may remedy the violation by vacating the conviction and disposition for one count of possession of marijuana. See Welch, 198 Ariz. at 557, ¶ 13, 12 P.3d at 232. ¶6 For the foregoing reasons, we vacate Moore s conviction and resulting disposition for count six. affirm the remaining convictions, sentences, dispositions. /s/ Ann A. Scott Timmer, Judge CONCURRING: /s/ Lawrence F. Winthrop, Chief Judge /s/ Daniel A. Barker, Judge 4 We and
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