                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                 DARREL SCOTT FRANCIS, Appellant.

                         No. 1 CA-CR 16-0051
                              FILED 1-3-17


           Appeal from the Superior Court in Navajo County
                       No. S0900CR201500087
                            S0900CR201500700
                The Honorable Dale P. Nielson, Judge

                    REVERSED AND REMANDED


                              COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee

Criss Candelaria Law Office, PC, Concho
By Criss E. Candelaria
Counsel for Appellant
                            STATE v. FRANCIS
                            Opinion of the Court


                                 OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Thomas C. Kleinschmidt joined.1 Judge Jon W. Thompson
dissented.


J O H N S E N, Judge:

¶1           Darrel Scott Francis was convicted of two counts of
promoting prison contraband by possessing a cell phone. On appeal, he
argues the superior court erred by failing to instruct the jury that the State
was required to prove he knew the cell phone was contraband. Because the
crime requires proof a defendant knew what he or she possesses or obtains
is contraband, we reverse and remand.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Francis was detained at the Show Low Jail Annex on charges
unrelated to this appeal. Officers took Francis's clothing, boots and cell
phone, and stored them in a property bag. While in custody, Francis asked
to call his attorney. After the officer on duty could not find the lawyer's
phone number, Francis volunteered that the lawyer's number was stored
on his cell phone. The officer then retrieved Francis's cell phone from his
property bag, activated it and located the phone number. Later that day,
Francis was transported to Navajo County Jail in Holbrook. There, another
officer noticed Francis was holding the cell phone and confiscated it.

¶3            Francis was charged with two counts of promoting prison
contraband – one count for allegedly possessing the cell phone inside the
Navajo County Jail, and the other for possessing the cell phone while inside
the annex or while being transported from the annex to the jail. Before trial,
the State asked the Court to rule it did not have to prove that Francis knew
his cell phone was contraband. In the alternative, the State asked for leave
to introduce "other acts" evidence to prove Francis knew the phone was
contraband. The court ruled the State did not have to prove Francis knew
the phone was contraband, and therefore precluded the other-acts evidence


1      The Honorable Thomas C. Kleinschmidt, Retired Judge of the Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.



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                            Opinion of the Court

as irrelevant. The court also ruled Francis could not argue to the jury that
the State needed to prove he knew the cell phone was contraband.

¶4            At trial, the State presented evidence that inmates are not
allowed to possess cell phones, that personal property (including cell
phones) is kept in a secure office out of the reach of inmates, and that
officers do not permit inmates to handle cell phones for any reason. The
court instructed the jury:

       The crime of promoting prison contraband requires proof that
       the defendant knowingly:

       Took contraband into a correctional facility or the grounds of
       a correctional facility; or

       Obtained, or possessed contraband while being confined in a
       correctional facility; or

       Obtained, or possessed contraband while being lawfully
       transported or moved incident to correctional facility
       confinement.

¶5           The jury found Francis guilty of both charges and also found
he committed the offenses while on release from another felony charge. The
court sentenced him to two concurrent five-year prison terms.

¶6            We have jurisdiction over Francis's timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A) (2016), 13-4031 (2016) and -4033
(2016).2

                               DISCUSSION

¶7            Francis was charged with promoting prison contraband by
"knowingly . . . obtaining or possessing contraband while being confined in
a correctional facility or while being lawfully transported or moved
incident to correctional facility confinement." A.R.S. § 13-2505(A)(3) (2016).
As defined by statute, contraband means:

       [A]ny dangerous drug, narcotic drug, marijuana, intoxicating
       liquor of any kind, deadly weapon, dangerous instrument,


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


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                             Opinion of the Court

       explosive, wireless communication device, multimedia
       storage device or other article whose use or possession would
       endanger the safety, security or preservation of order in a
       correctional facility or a juvenile secure care facility as defined
       in § 41-2801, or of any person within a correctional or juvenile
       secure care facility.

A.R.S. § 13-2501(1) (2016). At trial, there was no dispute that Francis knew
he possessed the cell phone; the issue on appeal is whether § 13-2505(A)(3)
required proof he knew the cell phone was "contraband," within the
meaning of § 13-2501(1).

¶8             We review de novo the superior court's ruling on a matter of
statutory interpretation. See State v. Falcone, 228 Ariz. 168, 170, ¶ 9 (App.
2011). "In construing a statute, our primary goal is to discern and give effect
to the legislature's intent." State v. Fell, 203 Ariz. 186, 188, ¶ 6 (App. 2002).
We look to the plain language of the statute and "give words their plain and
ordinary meaning, unless the legislature has clearly expressed an intent to
give a term special meaning." State v. Cotton, 197 Ariz. 584, 586, ¶ 6 (App.
2000). If the plain meaning is unclear, we consider other factors such as "the
statute's context, history, subject matter, effects and consequences, spirit,
and purpose." Fell, 203 Ariz. at 188, ¶ 6. Toward that end, we examine
statutes that are in pari materia, meaning those of the same subject or general
purpose. See State v. Gamez, 227 Ariz. 445, 449, ¶ 27 (App. 2011); Fell, 203
Ariz. at 188, ¶ 6.

¶9            Francis argues State v. Bloomer, 156 Ariz. 276 (App. 1987),
establishes that the crime of possession of contraband requires proof the
defendant knew what he possessed was contraband. The defendant in
Bloomer argued he could not be convicted under § 13-2505(A) because he
was charged with possession of gunpowder when the evidence showed he
thought he possessed marijuana, not gunpowder. 156 Ariz. at 279. This
court stated that "the state was required to prove . . . that appellant, while
confined in a correctional facility, possessed a substance which was
contraband, that he knowingly possessed the substance, and that he knew
it was contraband." Id. It did not matter what variety of contraband the
defendant possessed, because he admittedly knew both that he possessed
marijuana and that marijuana is contraband within the meaning of the
statute. Id.

¶10           The State argues the discussion of the issue in Bloomer is
dictum and instead directs our attention to the definition of "knowingly" in
the criminal code:


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                            STATE v. FRANCIS
                            Opinion of the Court

       "Knowingly" means, with respect to conduct or to a
       circumstance described by a statute defining an offense, that
       a person is aware or believes that the person's conduct is of
       that nature or that the circumstance exists. It does not require
       any knowledge of the unlawfulness of the act or omission.

A.R.S. § 13-105(10)(b) (2016). Under this provision, the crime of knowing
possession of contraband requires proof that the defendant was "aware or
believe[d]" that he possessed contraband, but the statute does not answer
whether the State need prove only that the defendant knew he possessed
an item (that in fact was contraband), or whether it must prove he possessed
something he knew was contraband.

¶11            The State argues that under the second sentence of § 13-
105(10)(b), when a defendant is charged with "knowingly" committing an
act, the State need not prove the defendant had "any knowledge of the
unlawfulness of the act." See also State v. Soltero, 205 Ariz. 378, 381, ¶ 11
(App. 2003) (ignorance of the law is no excuse). The issue, however, is not
whether Francis knew what he was doing was unlawful; it is whether the
requisite culpable mental state of "knowingly" applies not only to "making,
obtaining or possessing" an object while in custody; but also to the fact that
the object falls within the statutory definition of "contraband." A.R.S. § 13-
2505 (A)(3).

¶12           To resolve that question, we look instead to A.R.S. § 13-202
(2016), "Construction of statutes with respect to culpability." Section 13-
202(A) addresses precisely the issue before us, which is whether a specified
requisite mental state for the commission of a crime applies to each element
of the crime:

       If a statute defining an offense prescribes a culpable mental
       state that is sufficient for commission of the offense without
       distinguishing among the elements of such offense, the
       prescribed mental state shall apply to each such element
       unless a contrary legislative purpose plainly appears.

A.R.S. § 13-202(A). Under this rule, "[if] a statute requires a certain mental
state but does not specify which elements require that mental state, it
applies to every element in the absence of legislative intent to the contrary."
State v. Rivera, 226 Ariz. 325, 328, ¶ 4 (App. 2011).

¶13          A host of cases teach how to apply § 13-202(A) in construing
criminal statutes that, like § 13-2505(A)(3), prescribe a single culpable
mental state without distinguishing among the elements. For example, in


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                            STATE v. FRANCIS
                            Opinion of the Court

State v. Witwer, 175 Ariz. 305 (App. 1993), the defendant was convicted
under A.R.S. § 13-1404 (2016) of committing sexual abuse by "intentionally
or knowingly engaging in sexual contact with any person who is fifteen or
more years of age without consent of that person." On appeal, the
defendant argued the superior court erred by failing to instruct the jury that
the State needed to prove he knew the victim had not consented to the
contact. Citing § 13-202(A), this court found no contrary legislative purpose
and held the statute indeed required proof that the defendant knew that the
sexual contact he committed was without the consent of the victim. Witwer,
175 Ariz. at 308.

¶14             Other cases likewise have followed the dictate of § 13-202(A)
to determine that a single specified culpable mental state applies to each
element of the crime at issue. See State v. Kemper, 229 Ariz. 105, 106-07, ¶ 5
(App. 2011) ("knowingly engaging in sexual intercourse or oral sexual
contact with any person without consent of such person" under A.R.S. § 13-
1406(A) (2016) requires proof defendant knew victim did not consent); State
v. Rivera, 226 Ariz. 325, 328-29, ¶ 4 (App. 2011) ("intentionally discharging
a weapon from a motor vehicle at a person" under A.R.S. § 13-1209(A)
(2016) requires proof defendant intentionally targeted a particular person);
State v. Norris, 221 Ariz. 158, 161, ¶ 9 (App. 2009) ("knowing[]" possession
or possession for sale of marijuana under A.R.S. § 13-3405(A) (2016)
requires proof defendant knew what he or she possessed was marijuana);
State v. Cabanas-Salgado, 208 Ariz. 195, 197, ¶ 17 (App. 2003) ("knowing[] . . .
[t]ransport [of narcotic drug] for sale" under A.R.S. § 13-3408(A)(7) (2016)
requires proof defendant knew he or she transported a narcotic drug for
sale); State v. Bridgeforth, 156 Ariz. 58, 59 (App. 1986) (prosecution of "any
person who pursuant to a scheme or artifice to defraud knowingly obtains
any benefit by means of false or fraudulent pretenses, representations,
promises or material omissions" under A.R.S. § 13-2310(A) (2016) requires
proof both that defendant was "aware or believe[d] that the scheme or
artifice [was] fraudulent and that by means of false or fraudulent pretenses,
representations, promises or material omissions, he receive[d] some
benefit"); State v. Rineer, 131 Ariz. 147, 148-49 (App. 1981) (assault by
"intentionally placing another person in reasonable apprehension of
imminent physical injury" under A.R.S. § 13-1203(A)(2) (2016) requires
proof of intent to "produce the essential result" of "apprehension of
imminent physical injury").

¶15            Cases considering the culpable mental state specified in other
criminal statutes have ruled consistently with the rule set out in § 13-202(A).
See State v. Arce, 107 Ariz. 156, 160 (1971) (unlawful possession of narcotics
requires proof defendant knew "that the substance [in his possession] was


                                       6
                            STATE v. FRANCIS
                            Opinion of the Court

a narcotic"); State v. Diaz, 166 Ariz. 442, 445 (App. 1990) ("knowing[]
transport[] or transfer[] [of] a narcotic drug" under A.R.S. § 13-3408(A)(7)
requires proof defendant "knew that what he was transporting was a
narcotic drug"); State v. Frustino, 142 Ariz. 288, 293-94 (App. 1984) (extortion
by "knowingly participat[ing] in any way in the use of any extortionate
means to collect or attempt to collect any extensions of credit or to punish
any person for the nonrepayment thereof" under A.R.S. § 13-2304(A) (2016)
requires proof defendant knew his conduct was threatening to debtor).

¶16            Like the statutes in the cited cases, the statute under which
Francis was convicted prescribes just one mental state – "knowingly" –
"without distinguishing among the elements of [the] offense" ("knowingly
. . . obtaining or possessing contraband while being confined in a
correctional facility or while being lawfully transported or moved incident
to correctional facility confinement"). See A.R.S. § 13-2505(A)(3). As
directed by § 13-202(A), therefore, absent a plain "contrary legislative
purpose," we must comply with the legislative mandate to construe § 13-
2505(A)(3) to require proof not only that the defendant knowingly obtained
or possessed a proscribed object, but also that the defendant knew the object
was contraband, within the meaning of the statute.

¶17            The State argues that a contrary legislative purpose is
apparent in the text of § 13-2505(A)(3). The focus of the crime, the State
argues, is on the "knowing actions" of the defendant in "making, obtaining
or possessing" the object, not on the defendant's knowledge of the
proscribed nature of the object. But we see no such mandate in the statute
that guides us to construe it differently than the cases cited above have
construed other criminal statutes consistent with the requirements of § 13-
202(A).

¶18           The State points to cases holding that a defendant charged
with sexual assault of a minor can be convicted in the absence of proof the
defendant knew the age of the victim. See, e.g., Falcone, 228 Ariz. at 171-72,
¶ 14 (construing A.R.S. § 13-1405(A) (2016)). But courts have traced the
evolution of the several related statutes and have discerned a plain
"legislative purpose" that the State generally need not prove a defendant
knew the victim's age. As we explained in Falcone, at the same time the
legislature enacted § 13-1405, it also enacted A.R.S. § 13-1407 (2016), which
establishes a defense to § 13-1405 when the victim is 15, 16 or 17 years old
and the defendant "did not know, and could not reasonably have known,"
that the victim was younger than 18. Falcone, 228 Ariz. at 171, ¶ 12. Thus,
statutes in pari materia with § 13-1405 evidenced a "contrary legislative
intent" to applying the normal rule of § 13-202, under which the specified


                                       7
                              STATE v. FRANCIS
                              Opinion of the Court

culpable mental state would have to be proved with respect to each element
of the crime. Falcone, 228 Ariz. at 171, ¶ 13.3

¶19           Examining § 13-2505(A), we see no similar indication that the
legislature did not intend the normal rule of § 13-202(A) to apply to the
contraband statute. Accordingly, and consistent with Bloomer, we must
conclude that the crime of "knowingly . . . possessing contraband" under §
13-2505(A)(3) requires proof the defendant knew that what he or she
possessed was contraband.

¶20           This construction of § 13-2505(A) is particularly appropriate,
given that the meaning of the statutory term "contraband" is not self-
apparent. In ordinary usage, the word means something that is illegally
possessed or transported. See Contraband, Random House Webster's
Unabridged Dictionary (2005).4 Thus, one must know whether the law
forbids possessing or transporting an object before one can know whether
the object constitutes contraband.



3      The State also cites Benevolent & Protective Order of Elks v. State
Department of Liquor Licenses & Control, 239 Ariz. 121, 126, ¶ 32 (App. 2016),
which affirmed a fine imposed by the Arizona Department of Liquor
Licenses and Control under A.R.S. § 4-244(26) (2016), under which it is
unlawful "[f]or a licensee or employee to knowingly permit unlawful
gambling on the premises." We held there that such a violation may be
established without proof the licensee knew the gambling was unlawful.
The State does not contend that § 13-202(A), which guides our construction
of culpable mental states in criminal statutes, applies to the civil regulatory
authority of the Department of Liquor Licenses and Control; in any event,
as noted, the general principle is that one may be held in violation of a law
without knowledge of the unlawfulness. See Elks, 239 Ariz. at 126, ¶ 31.

4         Contraband, Random House Webster's Unabridged Dictionary
(2005).
          1. anything prohibited by law from being imported or
          exported.

          2. goods imported or exported illegally.

          3. illegal or prohibited trade; smuggling.




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                            STATE v. FRANCIS
                            Opinion of the Court

¶21           Our dissenting colleague accepts the State's argument that the
question we must resolve is controlled by the principle stated in A.R.S. §
13-105(10)(b) that the mental state of "knowingly" "does not require any
knowledge of the unlawfulness of the act or omission." But that argument
proves too much; it would effectively eliminate application of § 13-202(A)
to any statute establishing an offense that may be committed "knowingly."
The dissent also cites People v. Romero, 64 Cal. Rptr. 16 (App. 1997), but we
do not agree that case bears on our analysis. The defendant in Romero was
convicted of possession and transportation of a "controlled substance." The
defendant argued on appeal that his convictions should be reversed
because he mistakenly thought the cocaine he possessed was marijuana. In
interpreting the applicable statute, the California court did not apply any
statute of construction like A.R.S. § 13-202(A), which must guide our
construction of the Arizona criminal code. Even so, however, the court's
reasoning was consistent with our conclusion here: It held that although
the statute did not require proof that the defendant knew the chemical
composition of the drug he possessed, it did require proof he knew that
whatever he possessed was a "controlled substance," and the jury was so
instructed. 64 Cal. Rptr. at 20.

¶22           Finally, the State argues that if the superior court erred by
refusing to instruct the jury that the State was required to prove Francis
knew his cell phone was contraband, the error was harmless. It contends
the jury heard "overwhelming" evidence that Francis knew he was not
allowed to possess his cell phone.

¶23            We decline the State's invitation to weigh the evidence in such
a manner. Officers took Francis's cell phone from him at intake, but they
took all of his personal property at that time. According to the evidence, it
is beyond doubt that some of the items officers routinely seize from inmates
(officers confiscate any colored underwear) do not fall within the statutory
definition of contraband. And although the State presented evidence that




                                      9
                             STATE v. FRANCIS
                             Opinion of the Court

officers keep inmates' personal property in a secure office, the State
presented no evidence that inmates were informed that cell phones
constitute contraband.5

                               CONCLUSION

¶24          For the reasons stated, we conclude that the crime of
promoting prison contraband under § 13-2505(A) requires proof the
defendant knew the object at issue was contraband. Accordingly, we
reverse Francis's convictions and the resulting sentences.6




T H O M P S O N, Judge, dissenting:

¶25            Francis knew he possessed a cell phone. By statute, a cell
phone in jail is contraband. Whether he knew, or did not know, that a cell
phone in jail is defined by statute as prohibited contraband is not relevant
in determining whether he is guilty of possession of contraband, because
proof of knowledge "does not require any knowledge of the unlawfulness
of the act or omission." Ariz. Rev. Stat. (A.R.S.) § 13-105(10)(b) (2010).

¶26            Francis argues, citing inter alia State v. Bloomer, 156 Ariz. 276,
279, 751 P.2d 592, 595 (App. 1987), that the state was required to prove that
he knew he possessed contraband, i.e., that he knew that his possession of
a cell phone in jail was prohibited by law. In Bloomer the defendant, charged
with possession of contraband and gunpowder, believed he possessed
marijuana, also contraband. Id. This court affirmed his conviction in spite
of his mistake, because, either way, he possessed contraband. Id. at 282, 751
P.2d at 598. Bloomer's knowledge that he possessed contraband was
sufficient, though not necessary to his conviction. If he had been aware that

5    The State further argues that any error is harmless because Francis
argued to the jury that he did not know his cell phone was contraband. In
the absence of a proper jury instruction, however, we cannot conclude the
jury understood it was the State's burden to prove Francis knew he
possessed contraband. See State v. Reyes, 232 Ariz. 468, 471, ¶ 7 (App. 2013)
(we presume the jury followed its instructions).
6     Because the convictions are reversed, we need not address Francis's
argument that the superior court erred by allowing the State to call his
former lawyer to testify about his prior conviction.


                                       10
                             STATE v. FRANCIS
                           Thompson, J., Dissenting

what he possessed was gunpowder but did not know gunpowder is
prohibited by law as contraband he would still have been guilty. This is
because Bloomer is an application of the law regarding mistake of fact,
which may negate the requisite culpable mental state—but only "if, were
the circumstances as the accused believed them to be, 'the accused would
not be guilty of the offense.'" United States v. Zachary, 61 M.J. 813, 824 (A. Ct.
Crim. App. 2005) (internal citation omitted). Thus Bloomer was guilty
because if he had possessed marijuana, as he thought, he would have been
guilty of possessing contraband.

¶27             A California case quite similar to Bloomer makes the pertinent
point. In People v. Romero, 55 Cal. App. 4th 147, 64 Cal. Rptr.2d 16 (1997),
the defendant was charged with warehousing marijuana and cocaine for a
cartel. The defendant testified he thought he only took possession of
marijuana, not cocaine. Id. at 150, 64 Cal. Rptr. at 19. Though he saw the
packaged cocaine, he said he believed the packages contained marijuana.
Id. Acknowledging that the People's proof had to include defendant's
"knowledge of the object's narcotic character," the court of appeal noted
"specific intent to violate the law is immaterial." Id. at 152, 64 Cal. Rptr. at
21 (citing People v. Winston, 46 Cal. 2d 151, 158, 293 P.2d 40, 47 (1956)). The
requisite knowledge was proved by showing the defendant's "knowledge
that the facts exist which bring the act . . . within the provisions of [the]
code." Id. Romero's knowledge that he possessed marijuana, brought his
"'act . . . within the provisions of [the] code,'" whether he did or did not
know the latter fact. Id. (citation omitted). Contrary to the majority's
assertion, that Romero knew he possessed illegal drugs was sufficient,
though not necessary, to support the conviction. If he had known he
possessed cocaine, but did not know cocaine is a narcotic drug, Romero
would still have been guilty.

¶28            I agree with the majority that A.R.S. § 13-202(A) is applicable,
and reject the state’s assertion that legislative purpose is to the contrary.
The state is required to show that Francis knew he possessed contraband.
However, I conclude that the requisite mens rea may be demonstrated
either by proof that the defendant knew, as in Bloomer and Romero, that
what he possessed was proscribed, although he was mistaken as to the
precise nature of what he possessed, or that he knew what he possessed,
but may not have known it was illegal, as here.




                                       11
                          STATE v. FRANCIS
                        Thompson, J., Dissenting

¶29            Francis's knowledge that he possessed a cell phone in jail,
whether he did or did not know it constituted contraband as defined by
statute, sufficed to establish the requisite mens rea. Accordingly, I would
affirm.




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



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