Opinion
No. 2 CA-CR 2013-0534
11-18-2014
THE STATE OF ARIZONA, Appellee, v. LISA MARIE BARNETT, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Colby Mills, Assistant Attorney General, Phoenix Counsel for Appellee Joel A. Larson, Cochise County Legal Defender 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NOT FOR PUBLICATION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 Cochise County
No. CR201001012
The Honorable Wallace R. Hoggatt, Judge
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Colby Mills, Assistant Attorney General, Phoenix
Counsel for Appellee
Joel A. Larson, Cochise County Legal Defender
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Lisa Barnett was convicted of transporting more than two pounds of marijuana for sale and two counts of possessing a deadly weapon during the commission of a felony drug offense. The trial court sentenced her to an aggravated 7.5-year prison term for the drug offense, to be served consecutively to presumptive, concurrent 2.5-year prison terms for the weapons-misconduct offenses. Barnett argues the court erred by imposing consecutive sentences in violation of A.R.S. § 13-116. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining Barnett's convictions. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). On an evening in October 2010, a Bisbee police sergeant was in a patrol vehicle monitoring traffic when he noticed three trucks driving in tandem. As he began following the three trucks, the third truck slowed considerably and he focused on the middle truck, which belonged to and was being driven by Barnett. The sergeant ultimately decided to stop Barnett's vehicle based on several traffic infractions.
¶3 The sergeant approached the truck and, as he began speaking to Barnett, quickly smelled an "overwhelming" odor of marijuana. He also observed a large object covered by blankets in the back of the cab. The sergeant asked Barnett if she had any weapons. She replied that she did, motioning toward her hip and the passenger-side floorboard. The sergeant then asked Barnett to remove the blankets from the object in the back, which she did, revealing several bundles of marijuana weighing 383 pounds. After detaining Barnett, the sergeant recovered a revolver from her holster and another revolver from the floorboard.
¶4 Barnett was convicted and sentenced as described above. At sentencing, the trial court explained that it was imposing consecutive sentences because the weapons-misconduct offenses were "separate and apart from the transportation crime." This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The jury acquitted Barnett of both possessing and transporting a dangerous drug—428 grams of methamphetamine— for sale and using wire or electronic communication to facilitate the transportation for sale of marijuana or methamphetamine.
Discussion
¶5 Barnett argues the trial court erred by imposing consecutive sentences for the drug offense and the weapons-misconduct offenses under § 13-116. Because Barnett failed to raise this argument below, we review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); State v. Burdick, 211 Ariz. 583, ¶ 5, 125 P.3d 1039, 1041 (App. 2005). Barnett correctly asserts that an illegal sentence constitutes fundamental error. See State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App. 2002). However, we conclude that no such error occurred here.
¶6 Pursuant to § 13-116, "[a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." Thus, for a trial court to impose consecutive sentences under § 13-116, a defendant's conduct must constitute multiple acts. State v. Styers, 177 Ariz. 104, 113, 865 P.2d 765, 774 (1993). To determine whether conduct constitutes multiple acts, we apply the test described by our supreme court in State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1989), which consists of three factors:
First, we must decide which of the two crimes is the "ultimate charge—the one that is at the essence of the factual nexus and that will often be the most serious of the charges." Then, we "subtract[] from the factual transaction the evidence necessary to convict on the ultimate charge." If the remaining evidence satisfies the elements of the secondary crime, the crimes may constitute multiple acts and consecutive sentences would be permissible. We also consider whether "it was factually impossible to commit the ultimate crime without also committing the secondary crime." Finally, we consider whether the defendant's conduct in committing the lesser crime "caused the victim to suffer a risk of harm different from or additional to that inherent in the ultimate crime."State v. Urquidez, 213 Ariz. 50, ¶ 7, 138 P.3d 1177, 1179 (App. 2006), quoting Gordon, 161 Ariz. at 315, 778 P.2d at 1211 (alteration in Urquidez).
¶7 As Barnett points out, this court has addressed this issue under similar facts in State v. Siddle, 202 Ariz. 512, 47 P.3d 1150 (App. 2002). Siddle was convicted of possession of a dangerous drug for sale, possession of equipment or chemicals for manufacturing a dangerous drug, possession of drug paraphernalia, and possession of a deadly weapon during the commission of a felony drug offense. Siddle, 202 Ariz. 512, ¶ 1, 47 P.3d at 1152. The trial court imposed concurrent prison terms for the drug offenses, to be followed by a consecutive prison term for the weapons-misconduct offense. Id.
¶8 On appeal, Siddle argued that his consecutive sentence for weapons misconduct violated § 13-116. Siddle, 202 Ariz. 512, ¶ 16, 47 P.3d at 1155. Applying the first Gordon factor, we noted that "the crimes 'at the essence of the factual nexus' are the felony drug offenses" and concluded that, "[a]fter subtracting the facts necessary to convict Siddle of those charges, there is insufficient evidence to support his [weapons-misconduct] conviction." Id. ¶ 18, quoting Gordon, 161 Ariz. at 315, 778 P.2d at 1211. We thus determined this factor suggested Siddle had committed a single act. Id. However, we ultimately concluded the second and third Gordon factors indicated he had committed multiple acts, making consecutive sentences appropriate. Id. We explained that "Siddle could have committed the drug offenses without also committing the weapons offense" and that, "by possessing a dangerous weapon during the felony drug offenses, Siddle increased the risk of harm beyond that inherent in the drug offenses." Id.
¶9 Barnett, however, tries to distinguish this case from Siddle under each of the three Gordon factors. She also urges us to "revisit the approach taken in Siddle." We conclude that Siddle guides our decision here because the two cases are similar and Barnett has not convinced us that it was wrongly decided. See State v. Hickman, 205 Ariz. 192, ¶ 37, 68 P.3d 418, 426 (2003) (departure from precedent requires special justification).
¶10 As to the first Gordon factor, Barnett argues the ultimate crime was weapons misconduct because those charges "encompass the facts common to both offenses, specifically, the marijuana and the weapons." She further reasons that, after "[s]ubtracting the marijuana and the weapons from the factual transaction, there is not sufficient evidence remaining to convict on the transportation of marijuana for sale charge."
¶11 We disagree with Barnett that weapons misconduct is the ultimate crime. Transporting nearly four hundred pounds of marijuana for sale, not possessing a weapon while doing so, was "the essence of the factual nexus," Gordon, 161 Ariz. at 315, 778 P.2d at 1211, or "the primary object of the episode," State v. Alexander, 175 Ariz. 535, 537, 858 P.2d 680, 682 (App. 1993). Moreover, contrary to Barnett's argument, the classification of the felonies involved aids in our determination of the ultimate crime. See, e.g., State v. Roseberry, 210 Ariz. 360, ¶ 59, 111 P.3d 402, 412-13 (2005); State v. Martinez, 226 Ariz. 221, ¶ 19, 245 P.3d 906, 910 (App. 2011). Transporting more than two pounds of marijuana for sale is a class two felony, A.R.S. § 13-3405(B)(11), whereas possessing a deadly weapon during the commission of a felony drug offense is a class four felony, A.R.S. § 13-3102(M). Thus, the drug offense is the ultimate crime.
¶12 However, after subtracting the facts necessary to convict Barnett of transporting more than two pounds of marijuana for sale, there is insufficient evidence to support her weapons-misconduct convictions. Simply put, without facts showing Barnett committed the drug offense, see § 13-3405(A)(4), there is no way to establish she committed the weapons-misconduct offenses, which require commission of the drug offense, see § 13-3102(A)(8). Like in Siddle, the first Gordon factor therefore suggests Barnett committed a single act.
¶13 Barnett also argues the second and third Gordon factors show she committed a single act because we can only consider the "specific facts of this case." With regard to the second factor, Barnett contends this court erred in Siddle by "look[ing] at what was factually [im]possible generally, and not factually impossible under the facts of the transaction at hand." And, she asserts it was factually impossible for her to commit "the drug offense without also committing the weapons offense because factually, she was in possession of the weapon[s] during the course of the entire transaction." As to the third factor, she similarly argues that we cannot consider any "theoretical" risk of harm and that by committing weapons misconduct she created no additional risk because, although she had two weapons, she openly told the sergeant about their presence and never reached for them.
¶14 Barnett is correct that Gordon requires us to "focus[] on the 'facts of the transaction' to determine if the defendant committed a single act." Siddle, 202 Ariz. 512, ¶ 17, 47 P.3d at 1155, quoting Gordon, 161 Ariz. at 313 n.5, 778 P.2d at 1209 n.5. But she has misconstrued how that principle is to be applied. In Gordon, our supreme court emphasized the importance of looking at the "facts of the transaction" in an attempt to distinguish the analysis under § 13-116 from a double-jeopardy analysis, which focuses on the elements of the offenses. 161 Ariz. at 313 n.5, 778 P.2d at 1209 n.5. The court did not suggest that we cannot consider the general possibilities, or impossibilities, under a specific set of facts for a § 13-116 analysis. And, Barnett has not cited any authority that so indicates. Indeed, our case law suggests this more general approach is appropriate when considering the particular facts of a transaction. See Roseberry, 210 Ariz. 360, ¶ 61, 111 P.3d at 413 (under acts comprising crimes, defendant "could have" committed ultimate without secondary); Martinez, 226 Ariz. 221, ¶ 25, 245 P.3d at 911 (considering possible dangers to neighbors, environment, and drug users).
¶15 Here, it was factually possible for Barnett to commit the ultimate crime of transporting more than two pounds of marijuana for sale without also committing the secondary crime of weapons misconduct. Stated differently, Barnett's possession of the weapons during the drug offense was not necessary for her to commit the drug offense. See State v. Viramontes, 163 Ariz. 334, 339, 788 P.2d 67, 72 (1990). Although Barnett argues on appeal that she had the weapons in her possession when she picked up the marijuana for transport, she could have left them behind or otherwise disposed of them. Therefore, like in Siddle, the second Gordon factor suggests Barnett committed multiple acts.
¶16 Moreover, Barnett's possession of deadly weapons during the commission of the drug offense created an additional risk of harm beyond that inherent in the drug offense alone. As Barnett admits, "there is always a theoretical, and frequently an actual[, increased] risk of harm with the presence of a weapon." Indeed, this is why our legislature has created heightened sentencing schemes for those who possess deadly weapons while committing crimes. See State v. Cornish, 192 Ariz. 553, ¶ 17, 968 P.2d 606, 610 (App. 1998); State v. Grange, 25 Ariz. App. 290, 295, 543 P.2d 128, 133 (1975). In addition, the risks arising from these offenses are distinct: the drug offense posed a risk of harm to society generally, see Roseberry, 210 Ariz. 360, ¶ 62, 111 P.3d at 413, while the weapons-misconduct offenses posed more specific injury-related risks to those who came in close contact with Barnett, cf. State v. Cotten, 228 Ariz. 105, ¶ 13, 263 P.3d 654, 658 (App. 2011) (risk of theft is to particular victim's property interest). Therefore, again like in Siddle, the third Gordon factor indicates Barnett committed multiple acts.
¶17 In conclusion, although the first Gordon factor suggests Barnett committed a single act, the second and third factors "strongly suggest" she committed multiple acts. Siddle, 202 Ariz. 512, ¶ 18, 47 P.3d at 1156. Thus, we cannot say the trial court erred by imposing consecutive sentences under § 13-116. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607; Urquidez, 213 Ariz. 50, ¶ 10, 138 P.3d at 1180 (where two of three Gordon factors suggest defendant committed multiple acts, trial court not required to impose concurrent sentences under § 13-116).
Disposition
¶18 For the reasons stated above, we affirm Barnett's convictions and sentences.