                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                            STATE OF ARIZONA,
                                 Appellee,

                                        v.

                      ROBERT PAUL CAMPBELL, JR.,
                               Appellant.

                             No. 1 CA-CR 18-0467
                               FILED 8-27-2019


          Appeal from the Superior Court in Maricopa County
                       No. CR2015-005657-001
         The Honorable William R. Wingard, Judge Pro Tempore

               AFFIRMED IN PART; VACATED IN PART


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

KBUnited, LLC, Phoenix
By Kerrie M. Droban
Counsel for Appellant
                            STATE v. CAMPBELL
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1            Robert Paul Campbell, Jr. timely filed this appeal in
accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), following his convictions of possession of marijuana, a
Class 6 felony, and possession of marijuana for sale, a Class 4 felony.
Campbell's counsel has searched the record on appeal and found no
arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S.
259, 284 (2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537 (App.
1999). Campbell was given the opportunity to file a supplemental brief but
did not do so. Counsel asks this court to search the record for fundamental
error.

¶2            This court's review of the record revealed a possible double
jeopardy violation, and we ordered briefing pursuant to Penson v. Ohio, 488
U.S. 75 (1988). For the reasons that follow, we vacate Campbell's conviction
of possession of marijuana and the resulting sentence but affirm his
conviction and the sentence imposed for possession of marijuana for sale.

              FACTS AND PROCEDURAL BACKGROUND

¶3             As police surveilled a home they suspected was being used to
sell drugs, they saw Campbell leave the home with a bulky orange bag and
enter a vehicle parked nearby.1 The vehicle then drove away, and police
eventually stopped it. Officers who approached the vehicle noticed a
strong smell of marijuana and saw a small plastic bag of marijuana behind
the driver's seat. A search of the vehicle revealed the orange bag, which
contained four packages of marijuana. Police also searched the home
Campbell had left and found more marijuana, a scale, bags, ledgers and
cash.



1       Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Campbell.
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                            STATE v. CAMPBELL
                            Decision of the Court

¶4            The State charged Campbell with one count of transporting
marijuana for sale (Count 1) and one count of possession of marijuana for
sale (Count 2). After a five-day trial, the jury found Campbell guilty of
Count 2 and, on Count 1, guilty of possession of marijuana, a lesser-
included offense of transporting marijuana for sale. Campbell later
admitted to four prior felonies, and the court sentenced him as a category-
three repetitive offender to concurrent, presumptive terms of 3.75 years'
and 10 years' imprisonment for Counts 1 and 2, respectively, with 133 days'
presentence incarceration credit.

¶5            Campbell timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019), 13-4031 (2019) and
-4033(A)(1) (2019).2

                                DISCUSSION

A.     Double Jeopardy Violation.

¶6             The Double Jeopardy Clauses of the United States and
Arizona Constitutions protect criminal defendants from multiple
convictions and punishments for the same offense. See Lemke v. Rayes, 213
Ariz. 232, 236, ¶ 10 (App. 2006); see also U.S. Const. amend. V; Ariz. Const.
art. 2, § 10. "[W]here the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not." Blockburger v. United
States, 284 U.S. 299, 304 (1932); see also State v. Eagle, 196 Ariz. 188, 190, ¶ 6
(2000). Thus, a defendant may not be convicted of both an offense and its
lesser-included offense because they are considered the "same offense" for
double jeopardy purposes. Lemke, 213 Ariz. at 238-39, ¶¶ 16-18. An offense
is a lesser-included of another when, "by its very nature, [it is] always a
constituent part of the greater offense." State v. Chabolla-Hinojosa, 192 Ariz.
360, 363, ¶ 12 (App. 1998). Possession of marijuana is a lesser-included
offense of possession of marijuana for sale. State v. Moroyoqui, 125 Ariz. 562,
568 (App. 1980); see also State v. Cheramie, 218 Ariz. 447, 449, ¶ 12 (2008)
(citing Moroyoqui with approval).

¶7          There is no double-jeopardy violation if the two convictions
are based on separate acts. Cf. Chabolla-Hinojosa, 192 Ariz. at 365, ¶ 21


2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                        3
                            STATE v. CAMPBELL
                            Decision of the Court

(double jeopardy when one charge is "incidental" to the other). In its Penson
brief, the State concedes that it

       tr[ied] the possession for sale charge (Count 2) as applying to
       both the marijuana found in the vehicle as well as the
       marijuana found in the house. Therefore, the possession
       conviction (Count 1) should be deemed "incidental" to and
       part of the "same act" as the possession for sale conviction.

We agree and vacate Campbell's conviction for possession of marijuana.

B.     Due Process Review.

¶8            The record reflects Campbell received a fair trial. He was
represented by counsel at all critical stages of the proceedings against him
and was present at all critical stages, except for a brief period during trial
when he waived his presence. The court held appropriate pretrial hearings.
The State presented both direct and circumstantial evidence sufficient to
allow the jury to convict.

¶9             Under Article 2, Section 23 of the Arizona Constitution, a jury
of 12 members must be seated when a criminal defendant is on trial for
charges that carry a potential sentence of 30 or more years. Although the
charges against Campbell carried potential aggravated sentences of more
than 30 years, the jury was comprised of only eight members. See A.R.S. §§
13-703(C), (J), -3405(A)(2), (A)(4), (B)(10) (2019). In State v. Soliz, 223 Ariz.
116 (2009), the supreme court held that when a court empanels only eight
jurors in such a situation, it must impose a sentence of less than 30 years.
See Soliz, 223 Ariz. at 119-20, ¶¶ 12-13, 16. Here, consistent with that
requirement, the superior court imposed a sentence of less than 30 years.

¶10            The court properly instructed the jury on the elements of the
charge, the State's burden of proof and the necessity of a unanimous verdict.
The jury returned guilty verdicts, and, although neither party requested the
court poll the jury, the record does not suggest a question about unanimity.
The court received and considered a presentence report, addressed its
contents during the sentencing hearing and imposed a legal sentence for
the crime of which Campbell properly was convicted.

                               CONCLUSION

¶11           We vacate Campbell's conviction and sentence on the charge
of possession of marijuana, but affirm his conviction and resulting sentence
on the remaining charge. See Leon, 104 Ariz. at 300. Although the court


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                           STATE v. CAMPBELL
                           Decision of the Court

granted Campbell one more day of presentence incarceration credit than
was warranted, absent a cross-appeal by the State, we will not correct the
sentence. State v. Dawson, 164 Ariz. 278, 286 (1990).

¶12           Defense counsel's obligations pertaining to Campbell's
representation in this appeal have ended. Counsel need do no more than
inform Campbell of the outcome of this appeal and his future options,
unless, upon review, counsel finds "an issue appropriate for submission" to
the Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85 (1984). On the court's own motion, Campbell has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Campbell has 30 days from the date of this decision to
proceed, if he wishes, with a pro per petition for review.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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