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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                            SILAS DEON WHITE,
                                 Appellant.

                             No. 1 CA-CR 18-0248
                               FILED 8-1-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-124716-001
             The Honorable Roland J. Steinle, Judge, Retired

               AFFIRMED IN PART, VACATED IN PART


                                   COUNSEL

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

Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant

Silas Dean White, San Luis
Appellant
                             STATE v. WHITE
                            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            Silas Deon White 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 a narcotic drug for sale
and transporting or transferring a narcotic drug for sale, both Class 2
felonies. White's counsel has searched the record on appeal but found no
arguable question of law that is not frivolous and asks this court to search
the record for fundamental error. 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).
White has filed a supplemental brief, which we address below.

¶2           This Court's subsequent 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
White's conviction of possession of a narcotic drug for sale and the resulting
sentence but affirm his conviction and the sentence imposed for
transporting or transferring a narcotic drug for sale.

             FACTS AND PROCEDURAL BACKGROUND

¶3             White carried a package into a post office, laid the package on
the counter and paid cash to mail it to Milwaukee. A postal inspector who
saw the transaction thought the package was suspicious and asked a postal
inspector in Milwaukee to intercept the package. In Milwaukee, a K-9
officer alerted to the possible presence of drug contraband. The Milwaukee
postal inspector obtained a search warrant and opened the package, which
contained approximately 374 grams of cocaine. Fingerprints lifted from the
package, including prints on the inside flap of the box, matched White's
fingerprints.

¶4           The State charged White with one count of possession of a
narcotic drug for sale and one count of transporting or transferring a
narcotic drug for sale. See Ariz. Rev. Stat. ("A.R.S.") § 13-3408(A)(2), (7)




                                       2
                             STATE v. WHITE
                            Decision of the Court

(2019).1 A 12-person jury found him guilty of both charges. After finding
White had two historical prior felony convictions, the superior court
sentenced him as a category-three repetitive offender to concurrent
presumptive sentences of 15.75 years, with 116 days' presentence
incarceration credit. See A.R.S. § 13-703(C), (J) (2019).

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

                                DISCUSSION

A.     The Supplemental Brief.

¶6           In his supplemental brief, White argues misconduct by the
superior court judge violated his due-process right to a fair trial.

¶7             A defendant has a right to a trial presided over by a judge
who is impartial and free of bias or prejudice. State v. Brown, 124 Ariz. 97,
99 (1979). Although cases "generically refer to 'judicial bias' as structural
error, the defendant must allege a type of bias that would implicate his due
process rights, such as bias based on a 'direct, personal, substantial
pecuniary interest,' in order to constitute such error." State v. Granados, 235
Ariz. 321, 325, ¶ 11 (App. 2014) (quoting Tumey v. Ohio, 273 U.S. 510, 523
(1927)). Otherwise, claims of personal bias or prejudice do not implicate
structural error review. Granados, 235 Ariz. at 325, ¶ 11. In Arizona, a
defendant is "entitled to a change of judge if the party shows that the
assigned judge's interest or prejudice would prevent a fair and impartial
hearing or trial." Ariz. R. Crim. P. 10.1(a). "If a defendant fails to object on
the basis of a trial judge's bias . . . by filing a motion and affidavit pursuant
to Rule 10.1, he forfeits review for all but fundamental, prejudicial error."
Granados, 235 Ariz. at 326, ¶ 13.

¶8            White does not assert his trial judge acted based on any
constitutionally impermissible motives.         We therefore review his
arguments for fundamental error because he failed to file a motion
pursuant to Rule 10.1 in the superior court. See Granados, 235 Ariz. at 326,
¶ 13. "[T]he first step in fundamental error review is determining whether



1      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.



                                       3
                               STATE v. WHITE
                              Decision of the Court

trial error exists." State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).2 If trial
error exists, we must determine whether "(1) the error went to the
foundation of the case, (2) the error took from the defendant a right essential
to his defense, or (3) the error was so egregious that he could not possibly
have received a fair trial. . . . The defendant bears the burden of persuasion
at each step." Id. (emphasis omitted).

¶9              A trial judge is presumed to be free from bias. State v. Henry,
189 Ariz. 542, 546 (1997). "Bias and prejudice means a hostile feeling or
spirit of ill-will . . . towards one of the litigants." State v. Myers, 117 Ariz. 79,
86 (1977). Judicial rulings alone rarely support a finding of bias or partiality
in the absence of proof of an extrajudicial source of bias. See State v. Ellison,
213 Ariz. 116, 129, ¶ 40 (2006). "[A]dverse rulings to which a party assigns
no error" cannot demonstrate judicial bias. State v. Curry, 187 Ariz. 623, 631
(App. 1996).

¶10            By the same token, "judicial remarks during the course of a
trial that are critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or partiality
challenge[,] [but] . . . they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible." Liteky v.
United States, 510 U.S. 540, 555 (1994). "A judge's ordinary efforts at
courtroom administration – even a stern and short-tempered judge's
ordinary efforts at courtroom administration – remain immune." Id. at 556.
We must review allegations of bias "in light of the judge's duty to 'require
order and decorum in proceedings before the court.'" Granados, 235 Ariz. at
326, ¶ 14 (quoting Ariz. R. Sup. Ct. 81, Canon 2.8(A)).

¶11           White first argues that, in the presence of the jury, the judge
informed White's counsel that he would overrule any evidentiary
objections White's counsel made.              This contention, however,
mischaracterizes the record. At the beginning of the second day of trial and
outside the presence of the jury, the prosecutor mentioned to the court that
White's counsel had indicated he did not want a particular law-enforcement
witness to testify that he had arrested White. White's counsel then
acknowledged that the defense would object to such testimony on

2      White's counsel moved for a mistrial after the court reprimanded
him during trial. Counsel filed another motion for a mistrial after the court
made a ruling that, as counsel characterized it, prevented him from cross-
examining a witness about a discrepancy in weight of the cocaine. The
court denied both motions, and White does not challenge either of these
rulings on appeal.


                                         4
                            STATE v. WHITE
                           Decision of the Court

relevance grounds. The judge replied that, because the defense had not
raised the issue in a pretrial motion in limine, he would not entertain
argument on the matter. White's counsel then asked, "You mean during the
trial[?]" To which the judge responded, "I'm just saying if you're going to
object, then I'll tell you ahead of time that I'm going [to] overrule the
objection."

¶12           We do not understand the cited exchange to mean that the
judge was stating he would overrule any defense objection to any witness's
testimony. Instead, the judge was stating his ruling on a specific
evidentiary objection. When the State later offered evidence of White's
arrest, White's counsel once again objected based on relevance and the
judge overruled the objection. See Curry, 187 Ariz. at 631.

¶13           White next argues that "at one point during the trial the judge
ordered the court reporter not to record anything said by defense counsel."
Again, the record does not support White's contention. During the State's
case, the prosecutor handed a witness an exhibit to refresh the witness's
memory. Then, as the witness began responding to the prosecutor's
question, White's counsel interrupted the witness by saying, "What are [sic]
reading from, Your Honor? He's supposed to refresh his recollection." At
that point, the judge dismissed the jury and told White's counsel the
following:

      Please listen very carefully because I'm giving you an
      admonition. . . . If you do not object until the witness starts
      answering the question, you have to wait until the end, and
      then move to strike.

      Either interpose your objection before he starts, . . . but you
      can't interrupt the witness. We're taking a record here, and
      the court reporters cannot take down two things, and they're
      going to stay with the witness, and they're going to take what
      the witness says, and they're not going to put in their reporter
      notes your objection. . . . So did the court reporters
      understand, if [the witness is] answering, just continue to take
      his answer. Whatever [White's counsel] says, you don't have
      [to] worry about, then he has to deal with it on the bottom
      end. Correct court procedure, and we're going to make a
      record and make it correct.

¶14           The judge's statements to White's counsel, though stern,
reflected nothing more than courtroom administration consistent with a



                                     5
                             STATE v. WHITE
                            Decision of the Court

judge's duty to "require order and decorum in proceedings before the
court." Ariz. R. Sup. Ct. 81, Canon 2.8(A). The judge did not state or imply
that the court reporter should not record White's counsel's objections when
they were properly made; he simply told counsel to object before or after a
witness is speaking so the court reporter could accurately record the
objection. See Liteky, 510 U.S. at 556.

¶15            Finally, White argues that "during the trial and in the presence
of the jury, [the judge] would not permit [his counsel] to question
witness(es) about missing evidence in the case." We disagree. At trial, the
Milwaukee postal inspector testified he weighed two plastic bags, which
were taped closed and contained the suspected cocaine, and determined
that they weighed 448 grams. Later, a forensic chemist called by the State
testified she weighed the suspected cocaine as well as the plastic wrapping
around the substance, but that she subtracted the weight of the plastic bags
"to get just the weight of the [cocaine]," which she determined to be about
374 grams.

¶16             The interaction to which White objects on appeal occurred
when White's counsel was cross-examining the forensic chemist regarding
the discrepancy in the two weights. White's counsel stated, "we've heard
testimony in this court that it was the weight of two baggies that were
wrapped in black plastic tape, with suspected cocaine, which is Exhibits 2
and 3, and that it weighed 448 grams." The State objected to this statement
and the judge sustained the objection. Later, White's counsel stated, "I'm
going to ask it again, Judge. If this was the question that was objected to,
then I'll give them an opportunity to object. If we heard that the weight was
440," but the judge interrupted counsel and stated:

       [T]he reason the objection was sustained is the law says: One
       witness will not comment on the testimony of any other
       witness. That's why we have the Rule of Exclusion. One
       witness doesn't hear the other witness's testimony, so the
       objection is sustained. The form of your question that you're
       asking is not proper.

White's counsel then asked the witness, "Were you ever asked to . . . account
for close to three ounces of missing cocaine?" The State objected to this
question, asserting it "[c]all[ed] for a conclusion," the judge sustained the
objection and White's counsel ended his cross-examination.

¶17          After examining the record, we disagree with White's
contention that the judge impermissibly prevented his counsel from



                                      6
                              STATE v. WHITE
                             Decision of the Court

questioning the witness. The judge simply sustained an objection based on
the form of the question, leaving counsel free to explore the discrepancy in
weight by asking a question that did not violate the rules of evidence or by
presenting affirmative evidence. Additionally, as the judge later stated,
White's counsel was free to discuss the discrepancy in his closing argument,
and counsel did do so. See Curry, 187 Ariz. at 631.

¶18            White also argues that the trial transcript related to his
counsel's cross-examination about the discrepancy in weight did not
accurately reflect what went on at trial. We have reviewed the recording of
the trial and have found nothing to support White's contention.

¶19            Besides these specific instances of alleged judicial
misconduct, White cites an order by the Arizona Commission on Judicial
Conduct as evidence that he was deprived of a fair trial. After the trial,
White filed a complaint with the Commission arguing the judge had
violated the Arizona Code of Judicial Conduct during his trial. White
alleged the judge displayed "habitual intemperance" and "conduct
prejudicial to the administration of justice that brings the judicial office into
disrepute." After investigating, the Commission issued a warning letter to
the judge, finding he "failed to be patient, dignified and courteous to
[White's] attorney" in violation of Rule 2.8(B) of the Arizona Code of
Judicial Conduct.

¶20             Contrary to White's contention, the Commission's finding
does not mean the judge was biased against him. Rule 2.8(B) does not
address bias or prejudice, but rather addresses judicial decorum, requiring
a judge to be "patient, dignified, and courteous" toward all parties. A
violation of Rule 2.8(B) does not establish that a judge had a "hostile feeling
or spirit of ill-will . . . towards one of the litigants," Myers, 117 Ariz. at 86,
let alone that there was fundamental error, Escalante, 245 Ariz. at 142, ¶ 21.

¶21           White further contends the judge's "comportment toward [his
lawyer] was so egregiously hostile and intemperate" that it "forced" him to
fire his counsel at the conclusion of the trial for fear of further "animus"
from the judge during sentencing. White, however, does not explain how
proceeding pro se during sentencing prejudiced him, particularly given that
he stipulated with the State to ask the judge to impose presumptive
sentences.

¶22          After reviewing the entire record, we conclude it does not
reveal "such a high degree of favoritism or antagonism as to make fair
judgment impossible." Liteky, 510 U.S. at 555. White has shown neither an



                                        7
                              STATE v. WHITE
                             Decision of the Court

extrajudicial source of bias nor fundamental error. See Escalante, 245 Ariz.
at 142, ¶ 21.

B.     Double Jeopardy Violation.

¶23          In his Penson brief, White argues his two convictions and
sentences violate double jeopardy principles. We agree.

¶24            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, ¶¶ 16-18.

¶25            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). In determining
whether offenses are the same for purposes of double jeopardy, we look to
the elements of the offenses and not to the particular facts that will be used
to prove them. See State v. Price, 218 Ariz. 311, 313, ¶ 5 (App. 2008).

¶26           The crime of possession of a narcotic drug for sale requires
proof of the following: (1) the defendant knowingly possessed a narcotic
drug; (2) the substance was in fact a narcotic drug; and (3) the possession
was for purposes of sale, see A.R.S. § 13-3408(A)(2) (emphasis added),
where sale means an exchange for anything of value or advantage, present
or prospective. A.R.S. § 13-3401(32) (2019); cf. Rev. Ariz. Jury Instr. ("RAJI")
Stand. Crim. 34.082 (4th ed. 2018). The crime of transporting or transferring
a narcotic drug for sale requires, as relevant here, proof of the following: (1)
the defendant knowingly transported or transferred a narcotic drug for sale;
and (2) the substance was in fact a narcotic drug. See A.R.S. § 13-3408(A)(7)
(emphasis added); cf. RAJI Stand. Crim. 34.0871 (4th ed. 2018).

¶27           The only difference between the two crimes is that § 13-
3408(A)(2) requires proof that the defendant possessed the drug for sale,
while § 13-3408(A)(7) requires proof the defendant transported or
transferred the drug for sale. Interpreting A.R.S. § 13-3407 (2019), which


                                        8
                              STATE v. WHITE
                             Decision of the Court

uses precisely the same nomenclature with respect to a "dangerous drug,"
our supreme court held in State v. Cheramie, 218 Ariz. 447 (2008), that
possession of a drug is a lesser-included offense of transporting or
transferring the drug. "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." Id. at 449, ¶ 11.

¶28           We likewise conclude that a person cannot transfer or
transport a narcotic drug without first having physical possession of or
dominion or control over the narcotic drug. Accordingly, possession of a
narcotic drug for sale under § 13-3408(A)(2) is a lesser-included offense of
transporting or transferring a narcotic drug for sale under § 13-3408(A)(7).
See Lemke, 213 Ariz. at 238, ¶¶ 16-18; Chabolla-Hinojosa, 192 Ariz. at 363, ¶ 12
("[W]hen the charged possession [of marijuana] for sale is incidental to the
charged transportation for sale, it is a lesser-included offense, for a person
cannot commit the transportation offense without necessarily committing
the possession offense.").

¶29           In its brief, the State argues that White's carrying of the
package to the counter could be prosecuted as possession, while his paying
money to mail the package could be prosecuted as transferring or
transporting it for sale. But even under that theory, White's possession of
the drug was incidental to his transfer or transport of the drug. The State
offers no legal authority to support its argument that carrying a package of
drugs into a post office and paying to mail the package of drugs may be
punished under both statutes.

¶30           Because a double jeopardy violation constitutes fundamental,
prejudicial error, see State v. McGill, 213 Ariz. 147, 153, ¶ 21 (2006), we vacate
White's conviction of possession of a narcotic drug for sale and the resulting
sentence, see Chabolla-Hinojosa, 192 Ariz. at 365, ¶ 21.

C.     Due Process Review.

¶31           The record reflects White received a fair trial. He was
represented by counsel at all stages of the proceedings against him and was
present at all critical stages. The State presented both direct and
circumstantial evidence sufficient to allow the jury to convict White of the
crime of transporting or transferring a narcotic drug for sale. The jury was
properly comprised of 12 members. The court properly instructed the jury
on the elements of the charges, the State's burden of proof, the presumption
of innocence and the necessity of a unanimous verdict. The jury returned a
unanimous verdict, which was confirmed by juror polling. The court



                                        9
                             STATE v. WHITE
                            Decision of the Court

received and considered a presentence report, addressed its contents
during the sentencing hearing and imposed a legal sentence for the crime
of transporting or transferring a narcotic drug for sale of which White was
convicted.

                               CONCLUSION

¶32           We vacate White's conviction and sentence on the charge of
possession of a narcotic drug for sale, but affirm White's conviction and
resulting sentence on the remaining charge. See Leon, 104 Ariz. at 300.
Although the court granted White 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).

¶33            Defense counsel's obligations pertaining to White's
representation in this appeal have ended. Counsel need do no more than
inform White 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, White has 30 days to
proceed, if he wishes, with a pro per motion for reconsideration. White 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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