Opinion
No. 2 CA-CR 2012-0495
01-15-2014
THE STATE OF ARIZONA, Appellee, v. AARON BRICE ARNOLDI, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix and Terry M. Crist III, Assistant Attorney General, Phoenix Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By David J. Euchner and Sarah A. Bullard, Assistant Public Defenders, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20103044001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Terry M. Crist III, Assistant Attorney General, Phoenix
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By David J. Euchner and Sarah A. Bullard, Assistant Public Defenders, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which
Judge Espinosa and Judge Vásquez concurred.
ECKERSTROM, Judge:
¶1 After a jury trial, appellant Aaron Arnoldi was convicted of eleven drug offenses. He was sentenced to concurrent, presumptive prison terms, the longest of which were 15.75 years, and the trial court imposed a criminal restitution order (CRO). On appeal, he claims the trial court erred in instructing the jury on accomplice liability and in finding he had two historical prior felony convictions. For the following reasons, we affirm Arnoldi's convictions and sentences but vacate the CRO.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the verdict[s], resolving all reasonable inferences against the defendant." State v. Almaguer, 232 Ariz. 190, ¶ 2, 303 P.3d 84, 86 (App. 2013). In August 2010, police conducted surveillance on a house in Tucson on Roger Road. Officers noted that two men would periodically walk outside and look around before returning to the house.
¶3 Officers observed a van pull up to the house. A woman exited the van, entered the house for about twenty minutes, then returned to the van and drove away. When an officer stopped the van and conducted a search, he found a green plastic baggie decorated with "Playboy Bunnies" that contained methamphetamine.
¶4 Police then obtained a warrant to search the house. Inside, they found drugs and drug paraphernalia in almost every room, including plastic baggies with the Playboy bunny logo matching the one found in the van. In the bedroom, which was the only room in the house containing a bed, police found marijuana, dextroamphetamine, glass pipes, syringes, and surveillance equipment. In the bathroom, officers found methamphetamine, marijuana, Oxycontin, clonazepam, scales, syringes, cash, and an identification card belonging to the defendant, which provided his address as the address of the house. And in the living room, officers found a telephone bill addressed to Aaron Arnoldi at the address of the house.
¶5 Arnoldi subsequently was convicted of eleven drug charges: possession of marijuana, possession of drug paraphernalia, two counts of possession of a dangerous drug for sale, five counts of possession of a dangerous drug, and two counts of possession of a narcotic drug. He now appeals, claiming the court erred in giving an instruction on accomplice liability and in sentencing him as a category three repetitive offender. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21 and 13-4033.
Accomplice Liability Instruction
¶6 At trial, the court instructed the jury on accomplice liability at the state's request. Arnoldi did not object to the instruction at trial but now claims the court erred in providing it. Specifically, he maintains that no evidence supported the instruction. Because Arnoldi failed to object, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). A jury instruction is appropriate if it is supported by any reasonable interpretation of the evidence. State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009 (1998); State v. Lopez, 209 Ariz. 58, ¶ 10, 97 P.3d 883, 885 (App. 2004).
¶7 A person is liable as an accomplice who, with the requisite intent:
1. Solicits or commands another person to commit the offense; orA.R.S. § 13-301; accord State v. King, 226 Ariz. 253, ¶ 16, 245 P.3d 938, 943 (App. 2011). Although a defendant's presence at a crime scene is, in isolation, not sufficient grounds for accomplice liability, State v. Tison, 129 Ariz. 546, 554, 633 P.2d 355, 363 (1981), the evidence here reasonably supports an inference that Arnoldi was more than "merely present."
2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense[; or]
3. Provides means or opportunity to another person to commit the offense.
¶8 Arnoldi asserts there was no direct evidence of his intent to possess or sell the drugs found in his house. But "[i]t is axiomatic that intent or knowledge may be inferred from the circumstances surrounding a person's behavior or action." State v. Martinez, 15 Ariz. App. 10, 12, 485 P.2d 600, 602 (1971); see also State v. Green, 111 Ariz. 444, 446, 532 P.2d 506, 508 (1975) ("There is no distinction in the probative value of direct and circumstantial evidence. A conviction may be sustained on circumstantial evidence alone."). Here, Arnoldi's identification card and the telephone bill bearing his name supported the conclusion that he lived at the house. The presence of scales, cash, and the Playboy bunny bags, in addition to the use of security cameras and human lookouts, all support an inference that the house was used to sell drugs. Additionally, an officer with experience and training concerning drug sales testified that drug dealers do not typically permit people to live in houses where drugs are sold if they are not part of the drug selling operation. This evidence supports an inference that Arnoldi was not "merely present," but provided the house as a place to keep the drugs and to conduct drug transactions, which is sufficient to support a finding of accomplice liability. See King, 226 Ariz. 253, ¶ 16, 245 P.3d at 943.
¶9 Furthermore, the trial court also instructed jurors that Arnoldi must be acquitted if they concluded he was merely present where criminal activity had occurred. This clarified that accomplice liability could not be based solely on Arnoldi's presence at the scene. See State v. Noriega, 187 Ariz. 282, 286, 928 P.2d 706, 710 (App. 1996). We therefore find the trial court did not err by instructing the jury on accomplice liability.
Because we find the court did not err, we need not address Arnoldi's contention that the error was fundamental and prejudicial. See Henderson, 210 Ariz. 561, ¶ 23, 115 P.3d at 608 (finding of fundamental error first requires finding of error).
Sentencing
¶10 Arnoldi argues the trial court improperly concluded that he was a category three offender under A.R.S. § 13-703(C) based on a finding that he had two historical prior felony convictions, rather than a category two offender under § 13-703(B). Although Arnoldi did not object to this finding, and has therefore forfeited review absent fundamental error, "the imposition of an illegal sentence constitutes fundamental error." State v. Lewandowski, 220 Ariz. 531, ¶ 4, 207 P.3d 784, 786 (App. 2009). However, we find Arnoldi was properly sentenced.
Throughout this decision, we cite the version of the statute in effect on August 16, 2010, the date of Arnoldi's offenses. See 2010 Ariz. Sess. Laws, ch. 194, § 2.
¶11 Arnoldi concedes that he has prior felony convictions from 2002, 2003, and 2004. He likewise concedes the 2003 conviction qualifies as a historical prior pursuant to A.R.S. § 13-105(22)(b) because it was a class three felony committed within ten years of the present offenses. But Arnoldi disputes whether, as the trial court found, the 2003 conviction may be used both as a historical prior in its own right and to establish that the 2004 conviction was a historical prior pursuant to § 13-105(22)(d) because it was "a third or more prior felony conviction."
Here too we cite the version of the statute in effect in 2010. See Ariz. Sess. Laws, ch. 301, § 10.
¶12 In State v. Garcia, 189 Ariz. 510, 511, 943 P.2d 870, 871 (App. 1997), the defendant had prior felony convictions from April 1985, July 1985, and 1992. This court determined that the 1992 conviction, which already had been counted as a historical prior felony conviction because it was a class four felony committed within five years of the present offense, could not also be counted as a "third or more prior felony conviction." Id. at 515, 943 P.2d at 875. We likewise determined that the "third" felony had to be the third in chronological time and that the state therefore could not say that either 1985 conviction was the "third." Id.; see also State v. Decenzo, 199 Ariz. 355, ¶¶ 6-9, 18 P.3d 149, 151-52 (App. 2001) (applying Garcia's interpretation of historical prior felony definition).
Garcia refers to the former A.R.S. § 13-604, 1996 Ariz. Sess. Laws, ch. 123, § 1 and ch. 34, § 1, for the definition of "historical prior felony conviction." Garcia, 189 Ariz. 510, 512 n.1, 943 P.2d 870, 872 n.1. This definition was subsequently amended and later moved, in 2009, to § 13-105(22). 2008 Ariz. Sess. Laws, ch. 301, §§ 10, 120.
¶13 Arnoldi asserts that Garcia stands for the proposition that a felony conviction that already has been counted as a historical prior under another subsection of § 13-105(22) cannot be counted when determining whether a defendant has a third prior felony conviction. But we do not read Garcia so broadly. Rather, we determined in Garcia that a single conviction cannot be the basis for a finding of two historical priors. 189 Ariz. at 515, 943 P.2d at 875. That case did not hold that an offense already established as a historical prior conviction cannot be used at all in counting the number of prior felony convictions. Indeed, had Garcia accepted such a premise, it would not have mattered which conviction had been labeled the "third," an issue that was at the center of the Garcia opinion. Id. at 513-15, 943 P.2d at 873-75. In this case, where Arnoldi's 2003 and 2004 convictions were found to be separate historical priors, the trial court did not err in sentencing Arnoldi as a category three repetitive offender.
Criminal Restitution Order
¶14 Although Arnoldi has not raised the issue on appeal, we find fundamental error in the sentencing minute entry, which states that "the fees, fines and surcharges are reduced to a Criminal Restitution Order, with no interest, penalties or collection fees to accrue while the defendant is in the Department of Corrections." See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error if it finds it). We have held "the imposition of a CRO before the defendant's probation or sentence has expired 'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d at 789. This is so even where, as here, the trial court delayed the accrual of interest. Nothing in former A.R.S. § 13-805 "permits a court to delay or alter the accrual of interest when a CRO is 'recorded and enforced as any civil judgment' pursuant to § 13-805(C)." Lopez, 231 Ariz. 561, ¶ 5, 298 P.3d at 910.
We cite the version of the statute in effect at the time of Arnoldi's offenses. See 2005 Ariz. Sess. Laws, ch. 260, § 6; Lopez, 231 Ariz. 561, n.1, 298 P.3d at 910 n.1. The statute has since been amended and now permits the imposition of a CRO at sentencing in circumstances not present here. See State v. Torres, 675 Ariz. Adv. Rep. 6, n.2 (Ct. App. Dec. 10, 2013).
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Conclusion
¶15 For the foregoing reasons, although we vacate the CRO, Arnoldi's convictions and sentences are otherwise affirmed.