STATE v. MERRICK

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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. ANTHONY MERRICK, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0549 DEPARTMENT D DIVISION ONE FILED: 10/18/2012 RUTH A. WILLINGHAM, CLERK BY: sls MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-005367-001 The Honorable Janet E. Barton, Judge AFFIRMED IN PART; VACATED IN PART Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Myles Braccio, Assistant Attorney General Attorneys for Appellee Phoenix Natalee Segal Attorney for Appellant Phoenix P O R T L E Y, Judge ¶1 Anthony Merrick appeals his convictions on fraudulent schemes and artifices, a class 2 felony (Count 1); theft, a class 3 felony (Count 2); and nine counts of theft of a credit card or obtaining a credit card by fraudulent means, class 5 felonies (Counts 6, 8-11, 14-15, 23-24). He argues that his convictions for theft of a credit card should be vacated because the charges are multiplicitous. He also contends that the indictment was defective because several victims were listed for each count, which created the likelihood of non-unanimous verdicts, and requires that his convictions be vacated. For reasons set forth below, we affirm all of his convictions except four counts of theft of a credit card (Counts 9, 10, 11, and 15), which we vacate. FACTS 1 AND PROCEDURAL HISTORY ¶2 Merrick s roommate parlor, Dominick Hurley, manager at Brown Henry and was Buick co-owner also Pontiac the of sales GMC. their tattoo manager/fleet Hurley used the dealership s computer to fraudulently claim that he sold cars to businesses, and had General Motors, as part of a promotion, send gift cards from Lowe s and Best Buy to him, as well as family and friends, including Merrick. Merrick used most of the cards he received to buy supplies and/or furnishings for their tattoo business. 1 We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005). 2 ¶3 After the dealership discovered Hurley s defalcation, the police Merrick. were The called, police and their ultimately investigation determined led that them Merrick to had received 29 gift cards totaling $14,500; either in his name, a variant thereof, 2 or a business or post office box traceable to him. Merrick was subsequently charged for his role in the fraudulent scheme. ¶4 Hurley entered into a plea agreement with the State, and testified at Merrick s trial. Merrick was found guilty as charged, and the jury also found two aggravating factors beyond a reasonable doubt the offenses involved an accomplice, and the offenses were committed for pecuniary gain. Subsequently, after Merrick admitted that he had four prior felony convictions and was offenses, on he federal was release at sentenced to the time he committed super-aggravated terms the of imprisonment of 35 years for fraudulent schemes and artifices (Count 1), 25 years for theft (Count 2), and 7.5 years on each of the theft of a credit card counts (Counts 6, 8, 9, 10, 11, 14, 15, 23, concurrently. 24). We All of have the sentences jurisdiction over were to be served Merrick s appeal pursuant to the Arizona Constitution, Article 6, Section 9, and 2 Defendant, who was born changed his name in 1994. Paul 3 Dominick Luckette, legally Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031 and -4033 (West 2012). DISCUSSION Multiplicitous Charges ¶5 Merrick argues that the nine convictions for theft of a credit card are multiplicitous and, therefore, violate the double jeopardy clauses of the federal and state constitutions. Merrick did not raise the issue to the trial court, and has waived appellate relief unless he can show that fundamental error occurred and that the error caused him prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005). A double jeopardy violation constitutes fundamental, prejudicial error. State v. Ortega, 220 Ariz. 320, 323, ¶ 7, 206 P.3d 769, 772 (App. 2008). The State, however, concedes that fundamental error occurred where the use of the same gift card formed the basis for multiple convictions for theft of the same credit card. ¶6 We agree. The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense. ¶ 9, 206 P.3d at 772. Id. at 323, Multiplicity occurs when an indictment charges a single offense in multiple counts . . . [and] raises the potential for multiple punishments for the same offense, thereby implicating double jeopardy. 4 State v. Brown, 217 Ariz. 617, 620, ¶ 7, 177 P.3d 878, 881 (App. 2008) (citations omitted). Multiplicitous charges alone do not violate double jeopardy; only [the] resulting punishments are prohibited. multiple convictions or Ortega, 220 Ariz. at 323, ¶ 9, 206 P.3d at 772 (citation omitted). ¶7 The State charged Merrick with nine counts of theft of a credit card pursuant to A.R.S. § 13-2102, which provides in relevant part that a person commits theft of a credit card or obtaining a credit card by fraudulent means if the person controls a credit card without the cardholder s or issuer s consent . . . sells, transfers or conveys a credit card with the intent to defraud . . . or, with the intent to defraud, obtains possession, care, custody security for debt. or control over a credit card as Counts 6, 9, and 10 3 charged the use of Best Buy card number 1798 on three separate dates; Counts 8 and 11 charged the use of Best Buy card number 1814 on two separate dates; and Counts 14 and 15 charged the use of Best Buy card number 6274 for two separate purchases on the same date. Count 23 charged the use of five Lowe s gift cards: numbers 6612, 6604, 7711, 1514, and 6596, used on July 9, 2008; and Count 24 charged the use of Lowe s gift card number 6596 in a separate transaction on July 25, 2008. 3 Count 10 actually involved the use of two credit cards: Best Buy card numbers 1798 and 1814. 5 ¶8 To prove theft of a credit card under the statute, the State was not required to prove that Merrick actually used the fraudulent gift card to purchase items. needed to prove that Merrick was in The State only possession of the fraudulent gift card to the exclusion of the true owner, so that it was capable of use by [him]. State v. Jernigan, 221 Ariz. 17, 19, ¶ 11, 209 P.3d 153, 155 (App. 2009). Although the State could have chosen to charge him with fraudulent use of a credit card pursuant to A.R.S. § 13-2105, it did not. 4 Thus, the fact that Merrick possessed the fraudulent gift cards is the only basis for his convictions under A.R.S. § 13-2102, and any convictions separate based occasions on his or in use of separate the same gift transactions cards renders additional convictions a violation of double jeopardy. on the Ortega, 220 Ariz. at 323, ¶ 9, 206 P.3d at 772. ¶9 vacate -4037. We the agree that the multiplicitous Accordingly, we: appropriate convictions. (1) affirm remedy A.R.S. Merrick s is §§ to simply 13-4036, conviction on Count 6, but vacate his convictions and sentences on Counts 9 4 A person commits fraudulent use of a credit card if the person: (1) With the intent to defraud, uses, for purposes of obtaining or attempting to obtain money, goods, services or any other thing of value, a credit card or credit card number . . . which the person knows is forged, expired, cancelled or revoked or (2) Obtains or attempts to obtain money, goods, services or any other thing of value by representing, without the consent of the cardholder, that the person is the holder to a specified [credit] card. . . . A.R.S. § 13-2105(A)(1)-(2) (West 2012). 6 and 10 based on the same Best Buy gift card number 1792; (2) affirm Merrick s conviction on Count 8, but vacate his conviction and sentence on Count 11 based on the same Best Buy gift card number 1814; and (3) affirm Merrick s conviction on Count 14, but vacate his conviction and sentence on Count 15 based on the same Best Buy gift card number 6274. ¶10 We also affirm Merrick s convictions and sentences on Counts 23 and 24. five Lowe s gift Count 23 is based on Merrick s possession of cards: numbers 6612, 6604, 7711, 1514, and 6596, only one of which, card number 6596, forms the basis for his conviction separate and conviction on in Count distinct Count 24. Merrick s fraudulent 23. We see possession gift no cards reason of supports to vacate four his the conviction in Count 24, since Merrick fails to argue that the jury s determination that he also possessed Lowe s gift card number 6569 was an error, let alone fundamental error. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. Amendment of Indictment ¶11 Merrick next contends that the indictment was defective because each charge cited multiple victims and created the likelihood of nonunanimous verdicts. should vacate all of his convictions. ¶12 16.1(c) He maintains that we We disagree. First, Arizona Rules of Criminal Procedure 13.5(e) and required Merrick to raise 7 his challenge to the indictment twenty days prior to trial. Having failed to do so, he is now precluded from raising this issue on appeal. See, e.g., State v. Anderson, 210 Ariz. 327, 335-36, ¶¶ 14-18, 111 P.3d 369, 377-78 (2005) (challenge to indictment not timely filed is precluded on appeal); State v. Rushton, 172 Ariz. 454, 837 P.2d 1189 (App. 1992) (challenge to duplicitous indictment not timely concerned raised is regarding precluded possibility where of defendant, non-unanimous if truly verdict, had ample opportunity to raise issue in trial court). ¶13 Second, Merrick cannot establish that any error, let alone fundamental prejudice. error, occurred and that it caused him Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. An indictment is duplicitous if it charges more than one crime in the same count. at 377 Anderson, 210 Ariz. at 335, ¶ 13, 111 P.3d (citation prohibited because omitted). they fail Duplicitous to give indictments adequate notice of are the charge to be defended, present the potential of a non-unanimous jury verdict, and make precise pleading of prior impossible in the event of a later prosecution. omitted). ¶14 jeopardy Id. (citation The indictment here is not duplicitous. Merrick contends that the charges were duplicitous because they cited Best Buy and/or General Motors and/or Henry Brown and/or Lowe s as possible victims. victims were listed in the alternative 8 The fact that the does not render the indictment duplicitous because the indictment did not Merrick with more than one crime in the same count. charge Id. The indictment merely charged him with one distinct crime in each count, albeit against several alleged victims. Merrick provides no authority that establishes that there may only be one victim of a fraudulent scheme or theft. In fact, our supreme court recently found that [a] single count is permissible . . . if several transactions are merely parts of a larger scheme. See State v. Hargrave, 225 Ariz. 1, 11, ¶ 29, 234 P.3d 569, 579 (2010). ¶15 An indictment is sufficient if it clearly sets forth the offense in such manner as to enable a person of common understanding to know what is intended and adequately conveys the offense evidence at charged. trial Id. clearly at ¶ 31, 234 established P.3d that at the 579. The Henry Brown dealership was ultimately responsible to General Motors for any costs incurred related to the Best Buy and Lowe s gift cards obtained through fraudulent means. The verdict forms for the nine counts of theft of a credit card also specified precisely which Best Buy or Lowe s gift cards specific date Merrick possessed them. indictment adequately conveyed the were listed multiple victims 9 in and the The record shows that the offenses permitted Merrick to defend against them. charges involved the charged and The fact that the alternative did not render the indictment duplicitous or make the verdicts non- unanimous. ¶16 Moreover, Merrick cannot show prejudice. 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. flaw in the pleading of an Henderson, Even if there is a indictment, dismissal of any resulting conviction is not required unless a defendant has actually Ariz. suffered 47, 52, some 804 prejudice. P.2d 776, 781 State (App. v. Schroeder, 1990). See 167 also Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607 (defendant must prove fundamental error in his case caused him prejudice). ¶17 Merrick completely denied any knowledge of Hurley s fraudulent scheme and any knowledge that the gift cards were fraudulent. He also denied receiving some of the cards that were mailed to his post office boxes. Because he completely denied any involvement in the scheme, the identity of the victim or victims did not matter to his defense. Id.; see also State v. Herrera, 176 Ariz. 9, 15, 859 P.2d 119, 125 (1993) (even fundamental error is not reversible error when error did not, beyond reasonable doubt, contribute to the verdict). Consequently, the listing of alternative victims did not cause any prejudice. 10 CONCLUSION ¶18 Based on the foregoing, we affirm Merrick s convictions and sentences for Counts 1, 2, 6, 8, 14, 23 and 24. We, however, vacate his convictions and sentences in Counts 9, 10, 11 and 15. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ _________________________________ PATRICIA K. NORRIS, Judge /s/ _________________________________ LAWRENCE F. WINTHROP, Chief Judge 11

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