Opinion
No. 2 CA-CR 2013-0338
12-17-2014
THE STATE OF ARIZONA, Appellee, v. COURTNEY ARMONDO FRANCIS, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Frank P. Leto, Assistant Public Defender, 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NOT FOR PUBLICATION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. CR20113912003
The Honorable Christopher Browning, Judge
REVERSED IN PART; AFFIRMED IN PART
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Frank P. Leto, Assistant Public Defender, Tucson Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred.
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HOWARD, Judge: ¶1 Appellant Courtney Francis challenges his convictions for possession of marijuana for sale, transportation of marijuana for sale, conspiracy to commit possession of marijuana for sale, first-degree money laundering, illegal control of an enterprise, and illegally conducting an enterprise. For the reasons that follow, we reverse Francis's convictions for possession of marijuana for sale and transportation of marijuana for sale and affirm his remaining convictions and sentences. ¶2 In November 2011, G.T., an Arizona Department of Public Safety officer working undercover, was contacted by a man named Omar who told him he had buyers who wanted 350 to 400 pounds of marijuana. G.T. and Omar met and G.T. provided a sample of marijuana and set a price for it. Omar called G.T. and told him the buyers liked the samples and wanted to move forward. After Omar and his brother, Marquez, met G.T., Omar stayed with G.T. while Marquez took the truck the officer had loaded with marijuana. Marquez called Omar to tell him the truck would not fit in the buyer's garage and to ask G.T. for more time to move to a different location to inspect the marijuana. G.T. agreed, but Marquez later had Omar tell G.T. the buyers did not like the marijuana because it was "too brown" and he would return with the truck. Other officers moved in to arrest everyone, and Francis was arrested in the truck. Officers found "some buds of marijuana in a cup" in the truck, which Marquez and Omar had indicated were intended to show G.T. why "they didn't want it." G.T. testified he could smell the larger amount of marijuana from within the truck and it was an amount consistent with purchase for sale rather than personal use. G.T. also testified that the marijuana sample in the cup was consistent with the sample he had provided earlier when the buyers had agreed to buy.
¶3 Officers later searched the two houses where the truck had gone and found a large amount of currency, large rolls of cellophane wrapping material, and a scale. Documents relating to Francis were found in both of the houses.
¶4 The trial court sentenced Francis to mitigated, concurrent four-year prison terms on the possession and transportation counts and suspended the imposition of sentence as to the remaining counts, placing Francis on concurrent terms of probation the longest of which was seven years, to be served upon his release from imprisonment. Counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), stating he had reviewed the record, was "unable to find a meritorious issue for appeal," and asking us to search the record for reversible error.
¶5 In a supplemental pro se brief, however, Francis raised several issues which we determined were not "wholly frivolous," and we therefore ordered counsel to file supplemental briefs addressing his claims. See Anders, 386 U.S. at 744; Penson v. Ohio, 488 U.S. 75, 83-84 (1988). In those briefs, Francis argues, and the state concedes, that his conviction for transportation of marijuana must be reversed.
¶6 In State v. Cota, our supreme court determined that one cannot "be guilty of transferring marijuana to himself or herself." 191 Ariz. 380, ¶¶ 5, 13, 956 P.2d 507, 508, 510 (1998). The court therefore set aside Cota's conviction for transfer under A.R.S. § 13-3405(A)(4) and (B)(10), concluding that "[t]he receipt [of marijuana] was not in aid of the transfer, but instead was the separate crime of possession." Cota, 191 Ariz. 380, ¶¶ 6, 13, 15, 956 P.2d at 508, 510. We agree with the parties that on the facts before us, Francis's conviction for transportation should be set aside. The state's argument for his conviction on the transportation count focused on his liability as an accomplice, and the jury was instructed on that basis. And nothing in the record suggests Francis's role involved transporting the marijuana to a third party; rather the state's theory and evidence in support thereof suggested Francis was to be the buyer of the marijuana being transported to him. The reasoning of Cota therefore applies.
¶7 Francis also makes several arguments relating to his conviction for possession of marijuana for sale. The state, however, apart from Francis's arguments, urges us to reverse this conviction "on grounds of insufficient evidence." It maintains this case is controlled by our supreme court's decision in State v. Ottar, 232 Ariz. 97, 302 P.3d 622 (2013). In that case, the court determined that merely handling and inspecting drugs is insufficient to establish possession. Instead, a defendant must "exert[] some control over or manifest[] an intent to control the drugs." Id. ¶¶ 10-13. The state concedes that the record here merely shows "that Francis touched and inspected the marijuana, but he refused to buy it, and it stayed on the truck and was in transit back to [Omar and G.T.] when the arrests occurred." We agree. Because the evidence does not show that Francis had "assented to a deal," "tendered any purchase money," or otherwise agreed to complete a transaction, the conviction must be reversed. Id. ¶ 10. We therefore need not address Francis's other arguments on this point.
We also do not address Francis's argument that his conviction for conspiracy to possess marijuana for sale should be reversed based on State ex rel. Woods v. Cohen, 173 Ariz. 497, 844 P.2d 1147 (1992), because he has not developed it in a way we can understand and because it appears to be resolved or mooted by our decision relating to his other marijuana convictions.
¶8 For these reasons, we reverse Francis's convictions for possession of marijuana for sale and transportation of marijuana for sale and otherwise affirm his convictions and sentences.