                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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.

                          RODNEY SMITH, Appellant.

                              No. 1 CA-CR 13-0248
                               FILED 5-8-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-132942-001
               The Honorable William L. Brotherton, Jr.

                AFFIRMED IN PART; VACATED IN PART


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
                            STATE v. SMITH
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Maurice Portley joined.


K E S S L E R, Presiding Judge:

¶1            Appellant Rodney Eugene Smith (“Smith”) was tried and
convicted of two counts of sale or transportation of narcotic drugs, a class
two felony; one count of possession of narcotic drugs for sale, a class two
felony; and one count of use of wire communication or electronic
communication in drug-related transactions, a class four felony. Counsel
for Smith filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no
arguable issues to raise, counsel requested that this Court search the
record for fundamental error. Smith was given the opportunity to, but
initially did not file, a pro per supplemental brief. Upon review of the
record, we ordered and the parties filed supplemental briefs addressing
whether Smith’s conviction for possession of narcotic drugs for sale had to
be vacated under double jeopardy principles. Smith also responded with
a pro per supplemental brief addressing the double jeopardy issue. For the
following reasons, we affirm Smith’s convictions and sentences on all but
the count for possession of narcotic drugs for sale, which we vacate. We
also vacate that portion of Smith’s sentence that requires him to pay the
cost of his DNA testing.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Police officers JT and CH discovered an online
advertisement for the sale of liquid morphine. Officer JT used an
undercover phone and contacted the number featured in the
advertisement. On June 18, 2012, Officer JT received a text message
regarding the advertisement from a person at that phone number.1
Officer JT informed the person that he was out of town but discussed
acquiring the morphine and giving the person marijuana when he
returned. On June 20, Officer JT contacted the person to inform him that

1The record does not indicate how the person using the phone identified
himself during the text communications. For the purposes of this
decision, we refer to him as “the person.”


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                            STATE v. SMITH
                           Decision of the Court

he would be in the Phoenix area and asked how much of the morphine
remained. The person responded that the entire 30-milliliter bottle was
left and confirmed the purchase price of $120. The person and Officer JT
arranged to meet at a specified location in northwest Phoenix later that
day. The person stated that he would be in a black Pontiac.

¶3             Officers JT and CH drove to the meeting location and parked
across the street to keep watch for the black Pontiac. The officers saw the
car arrive at the agreed upon location. Officer JT sent a text message to
the person expressing concerns that police might be in the area and
suggesting that they relocate. The officers then observed the suspect
vehicle leave the original meeting area, at which time the officers followed
the vehicle. While following the Pontiac, Officer CH observed three
passengers in the vehicle and testified at trial that he noticed “the glow of
a cell phone on the sides of the rear passenger compartment.” Officer CH
also testified that he did not observe either of the front seat passengers
reaching behind in such a way to suggest they might be placing an item in
the backseat. The officers then stopped the vehicle for a traffic violation.

¶4             Smith was seated in the backseat, behind the driver. Officer
JT asked Smith to exit the Pontiac, detained him, and placed him in the
police vehicle. After the driver and other passenger had exited the
vehicle, Officer CH seized a cell phone from the map pocket located at the
rear of the driver’s seat. Officer CH also seized a bottle of liquid
morphine found wedged between the backseat cushions. Officer CH
testified that he did not recall finding any other cell phones in the vehicle.

¶5            Smith was taken to a police substation and questioned by
Officer JT. Officer JT presented the cell phone seized from the backseat to
Smith. At trial, Officer JT testified that Smith admitted the phone
belonged to him. Following Smith’s admission, Officer JT used his
undercover cell phone to call the phone number he had been calling in
relation to this drug sale. The seized cell phone rang and the name
“morph head,” with Officer JT’s phone number listed below, appeared on
the screen. Officer JT also asked Smith about the morphine seized from
the back seat of the vehicle. Smith denied using or possessing the
morphine, and explained that it likely belonged to his grandmother and
had probably fallen from her purse.

¶6            The State tried Smith on two counts of sale or transportation
of narcotic drugs, one count of possession of narcotic drugs for sale, and
one count of use of wire communication or electronic communication in
drug-related transactions. The jury found Smith guilty on all counts.


                                      3
                            STATE v. SMITH
                           Decision of the Court

During an aggravation hearing, Smith admitted to two prior convictions
for aggravated assault, class three felonies. Smith also admitted to being
on probation at the time of his arrest. As to counts one, two, and three,
the court sentenced Smith to the enhanced presumptive sentence of 9.25
years for each count, to run concurrently. As to count four, the court
sentenced Smith to the enhanced presumptive sentence of 4.5 years to run
concurrent with counts one, two, and three. The court revoked Smith’s
probation as to his prior convictions and sentenced him to the
presumptive sentence of 3.5 years on each count to run concurrently with
each other, but consecutive to the sentences on the drug charges. Smith
was credited for 751 days of presentence incarceration to be applied to the
3.5 years sentence.

¶7             Smith timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-
4031 (2010), -4033(A)(1) (2010).

                        STANDARD OF REVIEW

¶8            In an Anders appeal, we review the entire record for
fundamental error. Error is fundamental when it affects the foundation of
the case, deprives the defendant of a right essential to his defense or is an
error of such magnitude that the defendant could not possibly have
received a fair trial, and is reversible if it prejudiced the defendant. State
v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005).

                               DISCUSSION

¶9            Our review of the record shows that the proceedings were
held consistent with the Arizona Rules of Criminal Procedure. Smith and
his counsel were present at all proceedings, Smith was given a chance to
speak at his sentencing hearing, and the sentences were within the range
permitted by law.2      However, we address four issues separately:


2 The trial court determined that, pursuant to A.R.S. § 13-708(C) (Supp.
2013), it could not sentence Smith to anything less than the presumptive
term because he committed his crimes while on probation for a different
felony conviction. We recently explained in State v. Large, 234 Ariz. 274,
279-80, ¶ 16, 321 P.3d 439, 444-45 (App. 2014), that a defendant is entitled
to have a jury find his release status beyond a reasonable doubt when that
status exposes him to a higher mandatory minimum penalty. Large is not
implicated here, however, because Smith admitted to his probation status
after an appropriate colloquy.


                                      4
                             STATE v. SMITH
                            Decision of the Court

sufficiency of the evidence, the voluntariness of Smith’s statements to
police, double jeopardy, and DNA testing.

    I.     Sufficiency of the Evidence

¶10           In reviewing the sufficiency of evidence, “[w]e construe the
evidence in the light most favorable to sustaining the verdict, and resolve
all reasonable inferences against the defendant.” State v. Greene, 192 Ariz.
431, 436, ¶ 12, 967 P.2d 106, 111 (1998). “Reversible error based on
insufficiency of the evidence occurs only where there is a complete
absence of probative facts to support the conviction.” State v. Soto-Fong,
187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz.
423, 424-25, 555 P.2d 1117, 1118-19 (1976)).

¶11             Smith was charged and convicted pursuant to A.R.S. § 13-
3408(A)(7) (2010), which makes it unlawful to knowingly “[t]ransport for
sale, . . . offer to transport for sale . . ., sell, transfer or offer to sell or
transfer a narcotic drug.”3 The parties stipulated that the contents of the
bottle seized by Officer CH from the backseat of the vehicle contained 29
milliliters of morphine, a narcotic drug pursuant to A.R.S. § 13-
3401(20)(iii) (Supp. 2013). Therefore, the State had to prove that Smith
knowingly transported the liquid morphine for sale.

¶12            The State presented sufficient evidence to prove Smith
knowingly transported the liquid morphine for sale. The evidence
included the online advertisement to sell the morphine featuring a phone
number that was used by a person to text Officer JT to arrange the sale of
morphine.        Those communications indicated that the person
communicating with the officers would show up at the agreed-upon sale
location in a black Pontiac. Officer JT testified that while he was texting
the phone number, the officers observed the black Pontiac move from one
location to another consistent with the content of the text conversation.
Officers JT and CH also testified that they saw cell phone light coming
from the back of the car. Smith was the only passenger in the back seat,
and after stopping the vehicle the officers found in the back seat the cell
phone with which they had been communicating via text, along with a
bottle of liquid morphine. Officer CH testified that he did not witness any
movements by the front seat passengers that would indicate either of

3We address only the counts relating to transportation of drugs for sale
and use of a communication device in a drug-related transaction because
we vacate on other grounds Smith’s conviction for possession of a narcotic
drug.


                                       5
                             STATE v. SMITH
                            Decision of the Court

them placed an object behind the driver. These facts suggest that Smith
used the phone to communicate with Officer JT, knowingly transported
morphine for sale, and used the cell phone from the back seat to arrange
the sale with the officers. These facts are also sufficient to prove that
Smith used an electronic communication device in relation to a drug
transaction in violation of A.R.S. § 13-3417(A) (2010).

   II.    Smith’s Statements Introduced at Trial

¶13            Officer JT testified at trial that when asked, Smith admitted
that the cell phone seized from the black Pontiac by Officer CH belonged
to him. There is no evidence that Smith’s statements, made during
custodial interrogation, were given after the police advised Smith of his
rights under Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). But even if
Smith’s statements were inadmissible, their admission is not reversible
error.

¶14            Smith did not request and the court did not hold a
voluntariness hearing. Generally, a court need not hold a voluntariness
hearing unless the defendant requests a hearing or objects to the
admission of statements as involuntary. State v. Alvarado, 121 Ariz. 485,
487, 591 P.2d 973, 975 (1979) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)).
When the evidence raises a voluntariness issue, however, a court should
hold such a hearing sua sponte. State v. Finn, 111 Ariz. 271, 275, 528 P.2d
615, 619 (1974). Erroneous admission of such evidence does not mandate
reversal if the error is harmless. State v. Devaney, 18 Ariz. App. 98, 100, 500
P.2d 629, 631 (1972).

¶15            Assuming without deciding that admission of Smith’s
statements made while responding to custodial interrogation were
inadmissible for failure to give Miranda warnings, we find any such error
harmless. Smith’s admission that the cell phone belonged to him is not
dispositive of whether Smith was the person using the cell phone at the
times in question. Other evidence presented at trial, as summarized
above, is sufficient for us to conclude beyond a reasonable doubt that even
without the phone ownership evidence, the jury would have found Smith
guilty. Therefore, the admission of Smith’s statement is harmless error.

   III.   Double Jeopardy

¶16          With count two, Smith was charged and convicted of
transportation of a narcotic drug for sale pursuant to A.R.S. § 13-
3408(A)(7). With count three, Smith was charged and convicted pursuant
to A.R.S. § 13-3408(A)(2) (2010) for knowingly “possess[ing] a narcotic


                                      6
                            STATE v. SMITH
                           Decision of the Court

drug for sale.” When both alleged crimes are based on the same facts, to
“possess for sale” is a lesser included offense of the greater crime, to
“transport for sale.” State v. Cheramie, 218 Ariz. 447, 449, ¶ 11, 189 P.3d
374, 376 (2008) (“Given Arizona’s broad definition of ‘possess,’ we cannot
conceive how a person can ‘transport’ drugs without having possession of
or dominion or control over them.”). As the State properly states in its
supplemental brief, to be convicted of an offense and its lesser-included
offense based on the same operative facts is double jeopardy and amounts
to fundamental error. Id. at 448-49, ¶¶ 9-12, 189 P.3d at 375-76; State v.
Ortega, 220 Ariz. 320, 323-24, ¶¶ 7-9, 206 P.3d 769, 772-73 (App. 2008)
(holding that to convict a defendant of an offense and its lesser-included
offense is fundamental, prejudicial error because they are considered the
same offense for purposes of double jeopardy); State v. Chabolla-Hinojosa,
192 Ariz. 360, 362-63, ¶ 10, 965 P.2d 94, 96-97 (App. 1998). In such a case,
the proper remedy is to vacate the conviction of the lesser-included
sentence. State v. Welch, 198 Ariz. 554, 557, ¶ 13, 12 P.3d 229, 232 (App.
2000).

¶17          Smith was convicted of knowingly transporting a narcotic
drug for sale and its lesser-included offense, knowingly possessing a
narcotic drug for sale. Both convictions are based on the same sale and
possession of morphine. Accordingly, we vacate Smith’s conviction and
sentence as to the lesser-included crime: count three, possession of
narcotic drugs for sale.

   IV.    DNA Testing

¶18           As part of Smith’s sentence, the trial court required him to
submit to and pay for DNA testing pursuant to A.R.S. § 13-610 (Supp.
2013). After the court imposed Smith’s sentence, we held in State v. Reyes,
232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013), that there is no basis
under that section to require a convicted defendant to pay the cost of his
DNA testing. Therefore, we vacate that portion of Smith’s sentence that
requires him to pay the cost of his DNA testing.

                              CONCLUSION

¶19           For the foregoing reasons, we affirm Smith’s convictions and
sentences for counts one, two, and four, but vacate his conviction and
sentence for count three and that portion of his sentence that requires him
to pay the cost of his DNA testing. Upon the filing of this decision,
counsel shall inform Smith of the status of the appeal and his options.
Defense counsel has no further obligations unless, upon review, counsel



                                     7
                            STATE v. SMITH
                           Decision of the Court

finds an issue appropriate for submission to the Arizona Supreme Court
by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d
154, 156-57 (1984). Smith shall have thirty days from the date of this
decision to proceed, if he so desires, with a pro per motion for
reconsideration or petition for review.




                                   :MJT




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