                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                    FREDDIE LEE ANTWINE, Appellant.

                             No. 1 CA-CR 17-0519
                               FILED 8-9-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-001222-002
               The Honorable Warren J. Granville, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                            STATE v. ANTWINE
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Diane M. Johnsen joined.


M c M U R D I E, Judge:

¶1            Freddie Lee Antwine appeals his conviction and sentence for
attempted possession of marijuana for sale. He argues the superior court
erred by refusing to give a Willits instruction to the jury. He also claims the
State failed to prove by sufficient evidence he had two prior felony
convictions for sentencing enhancement. Lastly, he argues the superior
court erred by imposing a mandatory fine for a completed offense when he
was convicted of a preparatory offense. For the following reasons, we
affirm Antwine’s conviction and prison sentence but vacate and remand to
the superior court for redetermination of the fine.

             FACTS 1 AND PROCEDURAL BACKGROUND

¶2            As police officers conducted surveillance on Antwine and two
other men, Craig Evans and Francisco Contreras, they followed the three
men to a residence, where they saw Evans and Contreras load cardboard
boxes into the trunk of a vehicle. Antwine exited the house and drove away
with the other men in the vehicle. Officers eventually stopped the vehicle
and found bales of marijuana inside the cardboard boxes.

¶3             The jury found Antwine guilty of attempted possession of
marijuana for sale. The superior court imposed a fine and sentenced him to
five years in prison. Antwine timely appealed his conviction and sentence.
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), 13-4031, and -4033(A)(1).




1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Antwine. See State v.
Harm, 236 Ariz. 402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).


                                      2
                            STATE v. ANTWINE
                            Decision of the Court

                               DISCUSSION

   A. The Superior Court Properly Refused to Give the Willits Jury
      Instruction.

¶4             During cross-examination, the officer who found the
marijuana when he unpacked the boxes admitted he disposed of the boxes.
Antwine moved for a Willits instruction, arguing the potential absence of
his fingerprints on the boxes would have been useful to his mere presence
defense. The court denied Antwine’s request for the instruction. We review
rulings regarding a Willits instruction for abuse of discretion. State v.
Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014).

¶5             In Willits, our supreme court held a superior court must
provide a jury instruction that is adverse to the state when the state loses or
destroys evidence that would have been useful to the defense, even if the
destruction was not done in bad faith. State v. Willits, 96 Ariz. 184, 191
(1964). To receive the instruction, the defendant must prove that “(1) the
state failed to preserve material and reasonably accessible evidence that
could have had a tendency to exonerate the accused, and (2) there was
resulting prejudice.” Glissendorf, 235 Ariz. at 150, ¶ 8 (internal quotations
and citation omitted). The defendant must do more than simply speculate
about the helpfulness of evidence in proving a “tendency to exonerate.” Id.
at ¶ 9. While the defendant need not show that the evidence had the
potential to completely absolve the defendant, there must be “a real
likelihood that the evidence would have had evidentiary value.” Id. at
¶¶ 9–10.

¶6             Antwine does not show how the destroyed cardboard boxes
were material and had the tendency to exonerate him. His claim that testing
the boxes for fingerprints may have helped his defense is speculative. If his
fingerprints were found on the boxes, they would have provided the State
with more incriminating evidence. Further, the boxes’ evidentiary value is
not clear. Attempted possession of marijuana for sale does not hinge on
whether the defendant touched the container containing the drugs.
Although the State could have tested the boxes for fingerprints, a defendant
is not entitled to a Willits instruction simply because the State could have
conducted a more thorough investigation. See State v. Murray, 184 Ariz. 9,
33 (1995).

¶7            Even if Antwine could prove the boxes were material, he does
not establish how he was prejudiced by their loss. The inability to test the
boxes for fingerprints did not cripple his mere presence defense. The



                                      3
                           STATE v. ANTWINE
                           Decision of the Court

evidence before the jury allowed Antwine to argue Contreras alone
committed the crime. Additionally, even absent the Willits instruction, the
court permitted Antwine to argue during closing that the State’s disposal
of the boxes made it less likely he committed the crime.

   B. Sufficient Evidence Established Antwine’s Prior Convictions for
      Sentencing Enhancement.

¶8             Prior to sentencing, the State offered certified minute entries
to prove Antwine had two prior felony convictions for sentencing
enhancement. The State sought to link the minute entries to Antwine by
showing they bore his name and birthdate; the fingerprints on the minute
entries were only partially visible so the State could not secure testimony
from a fingerprint expert. The court found the State presented sufficient
evidence to prove his prior felonies. We review the proof of a prior felony
conviction for sentencing enhancement de novo. State v. Derello, 199 Ariz.
435, 437, ¶ 8 (App. 2001).

¶9            The State must prove prior felony convictions by clear and
convincing evidence. State v. Cons, 208 Ariz. 409, 415, ¶ 15 (App. 2004).
While the preferred method of proving convictions is to use certified
conviction documents bearing the defendant’s fingerprints, courts may
consider other kinds of evidence. State v. Robles, 213 Ariz. 268, 273, ¶ 16
(App. 2006). In the absence of evidence casting doubt on the identification,
certified minute entries containing the defendant’s name and birthdate are
sufficient proof. State v. Kinney, 225 Ariz. 550, 558, ¶ 26 (App. 2010).

¶10           Here, the State presented sufficient evidence to prove
Antwine’s prior felony convictions. Considering the certified minute
entries bearing his name and birthdate, we find no persuasive evidence to
discredit the identification. The minute entries all identify the convicted
person as Freddie Lee Antwine with a birthdate of November 12, 1976.
Antwine identified himself in court as Freddie Lee Antwine, Jr. and said his
birthdate was November 12, 1976. He argues that the addition of the suffix
“Jr.” undermines the validity of the minute entries, but on this record, the
evidence of the same birthdate and the unique nature of Antwine’s name,
including the same middle name, was sufficient to prove his two prior
felony convictions.

   C. The Superior Court Incorrectly Imposed a Mandatory Fine.

¶11           As urged by the State and without objection from the defense,
the court calculated the value of the seized marijuana and multiplied that
value by three to impose a fine of $72,000 pursuant to A.R.S. § 13-3405.


                                      4
                            STATE v. ANTWINE
                            Decision of the Court

Antwine argues the superior court erred by imposing a mandatory fine for
a completed offense under A.R.S. § 13-3405 when he was convicted of a
preparatory offense under A.R.S. § 13-1001. We review for fundamental
error because he failed to object. State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005). However, the “imposition of an unauthorized fine renders a
criminal sentence illegal,” and an illegal sentence is fundamental error. State
v. McDonagh, 232 Ariz. 247, 248–49, ¶ 7 (App. 2013).

¶12           Antwine is correct. A.R.S. § 13-3405(D) states, in relevant part:

       . . . the court shall order a person who is convicted of a
       violation of any provision of this section to pay a fine of not
       less than seven hundred fifty dollars or three times the value
       as determined by the court of the marijuana involved in or
       giving rise to the charge, whichever is greater . . .

The statute only applies to offenses listed in A.R.S. § 13-3405, and the only
offenses listed are completed offenses. The mandatory fine does not apply
to other offenses. Attempt is a preparatory offense that is “separate and
distinct from substantive offenses.” State v. Cornish, 192 Ariz. 533, 536, ¶ 10
(App. 1998) (citation omitted).

¶13          The jury found Antwine guilty of attempted possession of
marijuana for sale, a preparatory offense proscribed by A.R.S. § 13-1001.
Therefore, the mandatory fine specified by § 13-3405 does not apply to
Antwine. The State concedes error, and both parties recommend
remanding the case for a redetermination of the fine. We agree.

                               CONCLUSION

¶14          We affirm Antwine’s conviction and prison sentence, but
vacate the fine imposed and remand to the superior court for
redetermination of the fine consistent with A.R.S. § 13-801(A).




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




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