                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                         CLAY STEVENS, Appellant.

                             No. 1 CA-CR 12-0759
                              FILED 07-31-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-006283-001
                  The Honorable Cynthia Bailey, Judge

               VACATED IN PART, AFFIRMED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Appellant
                           STATE v. STEVENS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
joined.


J O N E S, Judge:

¶1            Clay Stevens (Stevens) was convicted of thirty criminal
offenses, including participation in a criminal syndicate, trafficking in
stolen property, conspiracy to commit fraud, sale of dangerous drugs,
possession of drug paraphernalia, possession of marijuana, possession of
narcotics, possession of dangerous drugs, and eighteen counts of use of a
wire or communication in drug-related transactions. He appeals only his
convictions and sentences for possession of drug paraphernalia (Count 6),
use of a wire or electronic communication in drug related transactions
(Counts 12-16, 20), and sale or transportation of dangerous drugs (Count
29) on the grounds of insufficiency of the evidence and an improper jury
instruction. For the reasons that follow, we affirm his convictions and
sentences except for Count 12 and Counts 14 through 16, for which we
conclude the evidence was insufficient to convict Stevens.

                 FACTS AND PROCEDURAL HISTORY

¶2            “We view the facts in the light most favorable to upholding
[Stevens’] convictions.” State v. Yonkman, 233 Ariz. 369, 371, ¶ 2, 312 P.3d
1135, 1137 (App. 2013). As Stevens’ appeal concerns only certain
convictions for drug-related offenses, we limit our recitation of the facts to
those pertinent to the issues he has raised on appeal.

¶3            In early 2011, the Phoenix Police Department began a bank
fraud investigation into a group for which it had coined the name “Bever
Dam.” The investigation revealed the Bever Dam group was also
involved in drug activities and trafficking in stolen property. Stevens was
the apparent leader of the Bever Dam outfit.

¶4           In February 2011, the Phoenix Police Department arranged
to purchase a stolen laptop from Stevens. Once the transaction was
completed, the police arrested Stevens; at this time, the police also seized
Stevens’ cell phone. The police then executed a search warrant on



                                      2
                           STATE v. STEVENS
                           Decision of the Court
Stevens’ home, during which marijuana, prescription pills, and various
items of drug paraphernalia were found.

¶5           Stevens posted a bond and was released from custody. In
June 2011, as part of his bail conditions, a bondsman visited Stevens’
home to conduct a random drug test. The bondsman accompanied
Stevens to the bathroom, where he ultimately noticed a bag containing a
white, crystalline substance on the bathroom counter; later testing
confirmed the substance to be methamphetamine. The bondsman placed
Stevens in handcuffs and called the police. Upon arrival, the police
performed a protective sweep of the home, during which multiple baggies
of methamphetamine, containers of needles, and several spoons
containing white residue consistent with methamphetamine and black
residue consistent with heroin were found.

¶6           Stevens was indicted on thirty-one criminal offenses.
Thereafter, a nine-day trial commenced on July 17, 2012. Stevens was
convicted on thirty of the thirty-one criminal offenses for which he was
indicted. Supra ¶ 1. The court imposed concurrent sentences totaling 9.25
years’ incarceration. Stevens timely appealed. We have jurisdiction
pursuant to Arizona Revised Statutes sections 12-120.21(A)(2), 13-4031,
and 13-4033(A)(1).1

                               DISCUSSION

¶7           Stevens raises two issues on appeal: (1) whether insufficient
evidence supported his convictions for possession of drug paraphernalia
(Count 6), use of a wire to facilitate possession of drugs or drug
paraphernalia (Counts 12-16, 20), and the sale of dangerous drugs (Count
29); and (2) whether the trial court erroneously instructed the jury on
Count 29.

I.     Sufficiency of Evidence

¶8            We review de novo the sufficiency of the evidence to support
a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191
(2011). In doing so, we view the facts and draw all reasonable inferences
in the light most favorable to sustaining the jury’s verdict. State v. French,
104 Ariz. 359, 362, 453 P.2d 505, 508 (1969). We will not disturb a
defendant’s conviction unless no substantial evidence supports it. State v.


1 Absent material revision from the date of the offense we cite to the
current version of the statutes.



                                      3
                            STATE v. STEVENS
                            Decision of the Court
Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 2009).
“Substantial evidence is ‘evidence that reasonable persons could accept as
sufficient to support a guilty verdict beyond a reasonable doubt.’” Id.
(quoting State v. Stroud, 209 Ariz. 410, 411-12, ¶ 6, 103 P.3d 912, 913-14
(2005)). We do not distinguish between direct and circumstantial
evidence. State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993).

       A.     Possession of Drug Paraphernalia (Count 6)

¶9            Count 6 of the indictment alleged Stevens, on June 2, 2011,
unlawfully used, or possessed with intent to use, drug paraphernalia (a
spoon), to ingest methamphetamine. See A.R.S. § 13–3415(A). Stevens
argues the evidence presented was insufficient to convict him for several
reasons: (1) other methamphetamine addicts were present in the house at
the time it was searched; (2) the failure to specify (a) which of several
spoons admitted into evidence supported this offense, (b) the spoon’s
location in relation to Stevens or drugs, and (c) how recently the residue
was deposited upon the spoon; and (3) the lack of scientific testing to
confirm the nature of the residue found upon the spoon. We conclude
that the evidence was sufficient to support Stevens’ conviction.

¶10            The spoon that was the subject of this count was one of
several spoons contained in Exhibit 81 that were seized along with three
baggies of methamphetamine in the search of Stevens’ home on June 2,
2011. An experienced and qualified detective testified that some of the
spoons collected in Exhibit 81 contained white residue indicative of their
use for preparation of methamphetamine for ingestion, and others
contained black residue indicative of their use for heroin ingestion. To
convict Stevens on this count, the State was not required to introduce
evidence that a scientific test confirmed the nature of the residue; the
detective’s expert opinion was sufficient. A.R.S. § 13-3415(E)(14) (“In
determining whether an object is drug paraphernalia, a court or other
authority shall consider, in addition to all other logically relevant factors . .
. [e]xpert testimony concerning [the object’s] use.”); see State v. Doty, 232
Ariz. 502, 505, ¶ 11, 307 P.3d 69, 72 (App. 2013) (holding that § 13-
3415(E)’s reference to “a court or other authority” refers to the fact-finder
— in that case, the jury).

¶11           The evidence was also sufficient to show Stevens used, or
possessed with intent to use, one of the spoons to ingest
methamphetamine. Stevens testified he was a methamphetamine addict
and he admitted to a detective during the search that all of the drugs and
drug paraphernalia found inside the house belonged to him. While
Stevens later testified that he lied to police about the drugs to protect his


                                       4
                           STATE v. STEVENS
                           Decision of the Court
wife from prosecution, he did not similarly retract his admission that the
drug paraphernalia found inside the house was his. Nor did Stevens
mount a separate defense to any of the several spoons seized from his
house. A jury could reasonably have concluded the evidence proved
beyond a reasonable doubt that Stevens used, or possessed with the intent
to use, one of the spoons found inside his house to ingest
methamphetamine.

       B.     Use of Wire to Facilitate Possession (Counts 12-16)

¶12             Counts 12-16 alleged that by sending a series of text
messages to a person named Jay Bird, Stevens used a wire or electronic
communication to facilitate the crimes of possession of dangerous drugs,
narcotic drugs, and drug paraphernalia. Specifically, the indictment
charged Stevens, as a result of “a series of text messages to a person
named Jay Bird,” with unlawful use of a wire, ”to facilitate the crime of
possession of dangerous drugs and possession of narcotic drugs” (Count
12), “to facilitate the crime of possession of narcotic drugs” (Counts 13-15),
and “to facilitate the crime of possession of drug paraphernalia” (Count
16), in violation of A.R.S. § 13–3417(A).

¶13          The text messages forming the basis of these offenses were
retrieved from the cell phone seized from Stevens at the time of his arrest
in February 2011 for trafficking in stolen property. They read:

       Count 12: “Hey I’m gonna need at least a quarter oz of black
       and a ball of g” (3:44 p.m.) (1/31/11);

       Count 13: “Hey got a guy wanting 2oz of black” (9:18 a.m.);
       “Call me when u can” (3:37 p.m.); and “Here” (7:19 p.m.)
       (2/1/11);

       Count 14: “Can we go get some black asap” (2:08 p.m.) and
       “Here” (10:35 p.m.) (2/2/11);

       Count 15: “Pulling in now” (12:56 a.m.); “Hey I’m ready.
       Quarter oz. of each”(7:31 p.m.); and “p” (7:35 p.m.) (2/4/11);

       Count 16: “Yo you got an extra scale I can use tonight? Mine
       took a shit on me” (11:00 p.m.) (2/9/11); and, following Jay
       Bird’s messages (“Call me ASAP” and “R u OK”), “Ya” and
       “I’ll call u in a min” (12:10 a.m.) (2/10/11).

A detective testified that “black” referred to heroin, and “g” referred to
methamphetamine. Another member of the Bever Dam group testified


                                      5
                            STATE v. STEVENS
                            Decision of the Court
that Jay Bird had acted as a “middle man” for Stevens, providing him
with methamphetamine and heroin.

¶14           Stevens argues these text messages showed, at most, that he
was guilty of solicitation of drugs and a scale from Jay Bird,2 an offense for
which he was not charged, but failed to show he facilitated anyone other
than himself to possess the drugs or the scale.

              1.     Counts 12 & 14 Through 16

¶15             As to Counts 12, 14, 15, and 16, we agree that the evidence
presented was insufficient to support Stevens’ convictions. The crime of
use of a wire or electronic communication to facilitate a drug-related
transaction is defined in A.R.S. § 13–3417(A), which provides in pertinent
part: “It is unlawful for a person to use any wire communication or
electronic communication . . . to facilitate the violation of any felony
provision . . . of this chapter [A.R.S. §§ 13–3401 et seq.].” The possession of
dangerous drugs, the possession of narcotic drugs, and the possession of
drug paraphernalia are included among those crimes provided within
chapter 34 (Drug Offenses). A.R.S. §§ 13-3407(A)(1), 13-3408(A)(1), 13-
3415(A).

¶16            In this case, the jury instructions defined the term
“facilitate,” as present within § 13-3417(A), to mean the separate criminal
offense of facilitation, as defined by A.R.S. § 13-1004(A). Specifically, the
jury was instructed:

       The crime of facilitation to commit Possession of Narcotic
       Drugs, Dangerous Drugs, or Drug Paraphernalia as charged
       in the use of wire communication requires proof that the
       defendant, acting with knowledge that another person was
       committing or intended to commit the possession of
       whatever item is charged in that count, knowingly provided
       such other person with the means or opportunity for the
       commission of that offense.


2See A.R.S. § 13-1002(A) (A person commits solicitation “if, with the intent
to promote or facilitate the commission of a felony . . . [he] commands,
encourages, requests or solicits another person to engage in specific
conduct which would constitute the felony . . . or would establish the
other’s complicity in its commission.”).




                                      6
                            STATE v. STEVENS
                            Decision of the Court
See A.R.S. § 13-1004(A). This instruction followed the Revised Arizona
Jury Instructions (RAJI) Statutory Criminal 34.17 (Use of Wire
Communication or Electronic Communication in [Drug Related]
[Organized Crime Related] Transaction), which links the definition of
“facilitate” with the offense of facilitation provided in § 13-1004(A).3 The
jury was further instructed that it was required to “decide this case by
applying these jury instructions to the facts as you determine them,” and
that it “must follow these jury instructions.” We presume on review that
the jury followed these instructions. State v. Prince, 204 Ariz. 156, 158, ¶ 9,
61 P.3d 450, 452 (2003).



3 We note the RAJI’s are not authoritative law or approved by the Arizona
Supreme Court, see State v. Logan, 200 Ariz. 564, 566, ¶ 12, 30 P.3d 631, 633
(2001), and that nothing within the plain language of § 13-3417
incorporates the definition of facilitation provided in § 13-1004. When
interpreting a statute, we first look to its language, as it is the best and
most reliable indicator of its meaning. State v. Mahaney, 193 Ariz. 566, 568,
¶ 12, 975 P.2d 156, 158 (App. 1999). In so doing, we supply words with
their ordinary meaning “[u]nless the legislature clearly expresses an intent
to give a term a special meaning.” Id.; see A.R.S. § 1-213. The plain
meaning of the word “facilitate” is “to make easy or easier.” Webster’s
Encyclopedic Dictionary 338 (Deluxe Ed. 1990); cf. In re 1986 Chevrolet
Corvette, 183 Ariz. 637, 640, 905 P.2d 1372, 1375 (1994) (noting that under
its most liberal construction, facilitate means to make the commission of a
crime less difficult). The RAJI Stat. Crim. 34.17 seems to conflate the
criminal conduct of using a cell phone to make one’s own drug crime
easier to complete with the act of facilitating (knowingly providing the
means or opportunity) another person’s commission of a drug crime
through the use of a cell phone. However, neither party objected to the
jury instruction or raised it as an issue on appeal. Moreover, any error
arguably inured to Stevens’ benefit as it required the State to prove
Stevens used the cell phone to provide the means or opportunity for
another person to possess drugs or drug paraphernalia rather than more
simply prove Stevens used the cell phone to make easier his own
possession of drugs and drug paraphernalia. Therefore, we do not
address the instruction further. See State v. Sierra-Cervantes, 201 Ariz. 459,
464, ¶ 29, 37 P.3d 432, 437 (App. 2001) (concluding that reversal is
unwarranted when an erroneous jury instruction benefits the defendant);
cf. State v. Lindner, 227 Ariz. 69, 70 n.1, ¶ 3, 252 P.3d 1033, 1034 n.1 (App.
2010) (appellate court will not address arguments that are not developed
in a defendant’s opening brief).



                                      7
                           STATE v. STEVENS
                           Decision of the Court
¶17          Accordingly, the State was required to prove that Stevens
used a wire to knowingly provide the means or opportunity for another
person to possess dangerous drugs and narcotic drugs (Count 12),
narcotic drugs (Counts 14-15), and drug paraphernalia (Count 16). We
conclude the State failed to prove these text messages provided the means
or opportunity for anyone to do anything.

¶18           The State argues Stevens’ offer to buy drugs from Jay Bird
provided the means or opportunity for Jay Bird to obtain, and therefore
possess, the drugs and drug scale, or alternatively, the means or
opportunity for Stevens’ existing customers to possess the drugs. This
argument relies, not upon evidence, but upon speculation. The text
messages corresponding to these counts demonstrated only that Stevens
offered to buy drugs and sought to borrow a drug scale from Jay Bird. See
Abuelhawa v. United States, 556 U.S. 816, 820 (2009) (analyzing 21 U.S.C.
§ 843(b), an analogous statute to A.R.S. § 13-3417, and noting that
“[w]here a transaction like a sale necessarily presupposes two parties with
specific roles, it would be odd to speak of one party as facilitating the
conduct of the other”).

¶19           Although the text messages arguably provided Jay Bird with
a motive to obtain drugs (the profit from selling the drugs to Stevens),
these specific text messages did not provide him with the means or
opportunity to procure the drugs.           While the evidence at trial
demonstrated generally that Jay Bird supplied Stevens with drugs and
Stevens sold drugs or traded drugs for services, the State failed to offer
any evidence that Stevens’ text messages, as presented to the jury,
provided the means or opportunity for Jay Bird to obtain the drugs or
drug scale referenced therein, or, for that matter, that these text messages
provided the means or opportunity for Stevens’ customers to possess the
referenced drugs.

¶20            The evidence, in short, failed to show that Stevens’ offer to
buy drugs or borrow a scale from Jay Bird provided Jay Bird or any other
person the means or opportunity to possess dangerous drugs, narcotic
drugs, or drug paraphernalia. See In re Christopher R., 191 Ariz. 461, 463,
957 P.2d 1004, 1006 (App. 1997) (holding the State’s argument that a
juvenile facilitated the offense of criminal damage was flawed because it
relied upon speculation regarding facts on which the State had the burden
of proof). Therefore, we conclude the evidence was insufficient to support
Stevens’ convictions for Count 12 and Counts 14 through 16.




                                     8
                           STATE v. STEVENS
                           Decision of the Court
             2.     Count 13

¶21             Unlike Count 12 and Counts 14 through 16, we find
sufficient evidence was presented at trial to support Stevens’ conviction
on Count 13. As referenced above, see supra ¶ 13, this count was
supported by several text messages Stevens sent to Jay Bird: “Hey got a
guy wanting 2oz of black” (9:18 a.m.); “Call me when u can” (3:37 p.m.);
and “Here” (7:19 p.m.) (2/1/11). Distinguishing this count from Counts
12 and 14-16 is that Stevens was not attempting to secure the drugs for
himself, but in fact communicated to Jay Bird that he was seeking drugs
specifically for another person. These text messages demonstrate Stevens
knew a person who wished to possess drugs, which prompted Stevens to
inform Jay Bird, a drug supplier, of that person’s desire. By notifying Jay
Bird, a person with the ability to provide drugs, that a person wished to
procure drugs, Stevens knowingly provided that person with the means
or opportunity to possess those drugs. See A.R.S. § 13-1004(A). Therefore,
pursuant to the jury instructions provided in this case, sufficient evidence
existed for the jury to convict Stevens on this count of using a wire or
electronic communication to facilitate the possession of narcotic drugs.

      C.     Use of Wire to Facilitate Possession (Count 20)

¶22          Count 20 alleged that Stevens, through a series of text
messages to a person known as “Drunk Mike,” used a wire to facilitate the
crime of possession of narcotic drugs. The evidence to support Count 20
consisted of text messages sent back and forth between Stevens and
Drunk Mike on February 6, 2011, and on February 7, 2011, in which
Stevens agreed to sell Drunk Mike a “half g,” and a third series of text
messages on February 8, 2011, in which Stevens agreed to sell Drunk Mike
“a gram” for “80.”

¶23          Distinct from Counts 12 through 16, Stevens argues the
evidence was insufficient because the State’s expert testified that the “half
g” and “gram” referred to in the texts could refer to either
methamphetamine (a dangerous drug) or heroin (a narcotic drug),
meaning it was equally likely the text messages were referring to
dangerous drugs rather than narcotic drugs. The evidence shows,
however, that Drunk Mike followed up the above referenced text
messages with a text message to Stevens on February 9, 2011, complaining
that “Kathy took all the h for herself” and asking if Stevens could “hook
[him] up” with anything else. On this record, a reasonable jury could
conclude beyond a reasonable doubt that Stevens had agreed to sell
Drunk Mike heroin, which “Kathy” had thereafter used, thereby
prompting Drunk Mike to ask Stevens if there was anything else he might


                                     9
                           STATE v. STEVENS
                           Decision of the Court
sell him. Therefore, sufficient evidence existed to convict Stevens on this
count.

      D.     Offer to Sell Dangerous Drugs (Count 29)

¶24           Count 29 alleged that on February 1, 2011, Stevens
knowingly offered to sell “methamphetamine, a dangerous drug.” To
support Count 29, the State offered into evidence a series of text messages
between Stevens and a “Ronny Sims” in which Stevens agreed to sell
“gphunk” to Sims. A detective testified that, under the circumstances,
“gphunk” referred to methamphetamine. Stevens argues the detective
was simply speculating. However, “the credibility of . . . witnesses and
the weight and value to be given to their testimony are questions
exclusively for the jury,” not this Court. State v. Cox, 217 Ariz. 353, 357,
¶ 27, 174 P.3d 265, 269 (2007) (quoting State v. Clemons, 110 Ariz. 555, 556-
57, 521 P.2d 987, 988-89 (1974)). Therefore, we find the evidence sufficient
to support Stevens’ conviction on this count.

II.   Jury Instruction on Count 29

¶25            Lastly, Stevens argues the trial court improperly instructed
the jury that the crime of sale of dangerous drugs, as charged in Count 29,
required proof Stevens “knowingly offered to sell any dangerous drugs,
including methamphetamine,” when the indictment specifically alleged
he offered to sell “methamphetamine, a dangerous drug.” Stevens argues
the instruction “improperly lowered the State’s burden of proof by
allowing the jury to convict if they thought ‘gphunk’ referred to any
dangerous drug.” As Stevens acknowledges, he failed to object to this
instruction at trial, and we therefore review only for fundamental error,
which requires Stevens prove the trial court erred, that the error was
fundamental, and that the error caused him prejudice. State v. Henderson,
210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Error is fundamental
when it goes to the foundation of a defendant’s case, takes from a
defendant a right essential to his defense, and is “’error of such magnitude
that the defendant could not possibly have received a fair trial.’” Id. at ¶
19 (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To
prove prejudice, a defendant must show that a reasonable jury could have
reached a different result if properly instructed. State v. Dickinson, 233
Ariz. 527, 531, ¶ 13, 314 P.3d 1282, 1286 (App. 2013).

¶26           Stevens has not met his burden to show fundamental,
prejudicial error. In light of the detective’s testimony that “gphunk”
meant methamphetamine, and the parties’ closing arguments, which
specifically acknowledged that Count 29 alleged Stevens offered to sell


                                     10
                          STATE v. STEVENS
                          Decision of the Court
methamphetamine, there is no realistic prospect that the jury could have
viewed Count 29 as alleging anything other than the offer to sell
methamphetamine. See State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d
823, 825 (App. 1989) (“Closing arguments of counsel may be taken into
account when assessing the adequacy of jury instructions.”). Moreover,
Count 29’s verdict form identified the substance at issue as
methamphetamine. On this record, we do not find fundamental error.

                            CONCLUSION

¶27           For the foregoing reasons, we vacate Stevens’ convictions
and resulting sentences for Count 12 and Counts 14 through 16, but affirm
the balance of his convictions and sentences.




                                :gsh




                                   11
