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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  ROBIN LORANN BERLIEW, Appellant.

                             No. 1 CA-CR 17-0093
                               FILED 5-22-2018


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201501127
              The Honorable Patricia A. Trebesch, Judge

                                  AFFIRMED


                                   COUNSEL

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

The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant
                            STATE v. BERLIEW
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Patricia A. Orozco1 joined.


C R U Z, Judge:

¶1             Robin Berliew appeals from her convictions and resulting
probation for two counts of forgery, non-dangerous, non-repetitive, Class 4
felonies. Berliew argues that the State failed to present evidence of her
intent to defraud and that the charges for forgery were multiplicitous. We
hold that (1) the State presented sufficient evidence of her intent to defraud,
and (2) because possession and presentation are separate acts, they are
distinct offenses, which though multiplicitous, did not result in prejudice
since Berliew was not double-punished for the two offenses. We therefore
affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             On October 7, 2014, Berliew visited a physician’s assistant in
Surprise for a checkup and prescription refills. She sought refills for several
prescriptions including the controlled substance Norco. The physician’s
assistant found it odd that Berliew sought refills in Surprise when Berliew
lived in Prescott Valley. She also reviewed the Arizona State Board of
Pharmacy controlled substances website and noticed Berliew had filled
prescriptions for thirty days’ worth of Norco and Alprazolam only fourteen
days earlier. She informed Berliew that she would not be able to fill the
prescriptions that day because the refills were early. However, after
Berliew asked her to reconsider, she wrote the prescriptions using black ink,
dated them October 25, 2014, and informed Berliew she could not refill the
prescriptions before that date.

¶3            On October 23, 2014, Berliew dropped off the Norco
prescription at the Spring Valley Pharmacy. The pharmacist noted that the
prescription appeared to have been altered because some of the elements of


1      The Honorable Patricia A. Orozco, retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.



                                      2
                           STATE v. BERLIEW
                           Decision of the Court

the prescription had been written over in blue ink, the date had been
altered, and additional zeros and slashes had been added in blue ink. The
prescription also had “erythromycin,” an address, and a phone number
handwritten on it, which the pharmacist testified was an indication the
prescription had been previously presented to another pharmacy. The
pharmacist contacted the prescriber, who confirmed that the prescription
had been altered since it was written.

¶4            Once the prescriber confirmed the prescription had been
altered, the pharmacist called the Yavapai County Sheriff’s Office. An
officer interviewed both the pharmacist and the prescriber, and the
prescriber provided a carbon copy of the original Norco prescription. The
carbon copy showed the prescription had been altered since the prescriber
had written it.

¶5            The State charged Berliew with two counts of forgery, both
Class 4 felonies, and a jury found her guilty as charged. The superior court
suspended Berliew’s sentence and placed her on probation for three years.

¶6            Berliew timely appealed. We have jurisdiction pursuant to
Arizona Constitution Article 6, Section 9, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A).

                              DISCUSSION

I.    Rule 20 Motion

¶7            Berliew argues the superior court erred by denying her
Arizona Rule of Criminal Procedure (“Rule 20”) motion because the State
failed to present evidence Berliew intended to defraud the pharmacy.

¶8            We review the superior court’s denial of a Rule 20 motion de
novo, and we review to determine “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
State v. West, 226 Ariz. 559, 562, ¶¶ 15-16 (2011). We resolve conflicting
evidence in favor of sustaining the verdict. State v. Bearup, 221 Ariz. 163,
167, ¶ 16 (2009).

¶9            A person commits forgery if, with intent to defraud, the
person: (1) “[f]alsely makes, completes or alters a written instrument;” (2)
“[k]nowingly possesses a forged instrument;” or (3) “[o]ffers or presents,
whether accepted or not, a forged instrument or one that contains false
information.” A.R.S. § 13-2002(A). “An intent to defraud may be inferred


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                           STATE v. BERLIEW
                           Decision of the Court

from circumstantial evidence[.]” State v. Thompson, 194 Ariz. 295, 297, ¶ 13
(App. 1999). A defendant’s “conduct and comments are evidence of [her]
state of mind.” State v. Routhier, 137 Ariz. 90, 99 (1983).

¶10             The evidence is sufficient as to both counts of forgery, for
possession and presentation respectively. Berliew does not dispute that the
Norco prescription was altered or that she presented it to be filled.
Furthermore, Berliew’s actions support the conclusion that she intended to
defraud. Berliew travelled from Prescott to Surprise to request the refill for
multiple prescriptions for controlled substances, but she had refilled a
thirty-day supply of those same prescriptions two weeks earlier. Carbon
copies of the prescriptions demonstrated the prescriptions had been altered
since they were written, and the prescriber denied altering the prescriptions
in any way after she wrote them. The prescriber testified because Berliew
sought to have the Norco prescription filled earlier than the allowable thirty
days and was insistent that returning at a later date would cause a hardship,
she finally wrote the prescription, but said Norco prescription was
postdated to be filled no sooner than October 25, 2014. She explained to
Berliew why the prescription was postdated and that she could not have
the prescription filled before October 25, 2014. The prescriber also testified
she never used blue ink to write her prescriptions, and the alterations to the
prescription were made in blue ink. Additionally, the pharmacist testified
the handwritten “erythromycin,” date, and phone number on the
prescription indicated that the prescription had been previously presented
to another pharmacy. Finally, when the pharmacist told Berliew she could
not fill the prescription and that she had contacted the sheriff’s department,
Berliew asked if she was going to be in trouble and if she could have the
prescription back. Viewing this evidence in the light most favorable to the
prosecution, West, 226 Ariz. at 562, ¶ 16, we hold that sufficient evidence
supported the court’s denial of Berliew’s Rule 20 motion.

II.    The Indictment

¶11           Berliew argues the charges in the indictment were
multiplicitous because there was only one act that was charged in both
counts. We agree that Berliew was convicted of multiplicitous charges, but
we do not vacate the conviction and sentence, see State v. Welch, 198 Ariz.
554, 558, ¶ 13 (2000) (stating this Court may correct the error of convicting
a defendant to multiplicitous charges by vacating the conviction and
sentence for the lesser-included crime), because Berliew does not show she
was prejudiced by the error, see State v. Perez, 233 Ariz. 38, 41, ¶ 9 (App.
2013) (providing that failure to argue fundamental error on appeal waives
argument).


                                      4
                            STATE v. BERLIEW
                            Decision of the Court

¶12            Whether charges are multiplicitous is a question of law that
we review de novo. State v. Burns, 237 Ariz. 1, 22, ¶ 83 (2015). Because
Berliew did not argue that the charges were multiplicitous at the trial level,
we only review the claim for fundamental error. Id. at ¶ 84. To prevail on
fundamental error review, Berliew must “establish both that fundamental
error exists and that the error in [her] case caused [her] prejudice.” State v.
Henderson, 210 Ariz. 561, 567, ¶ 20 (2005). Fundamental error is “error going
to the foundation of the case, error that takes from the defendant a right
essential to [her] defense, and error of such magnitude that the defendant
could not possibly have received a fair trial.” Id. at ¶ 19.

¶13             “Charges are multiplicitous if they charge a single offense in
multiple counts.” Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 12 (App. 2004). Offenses
are not multiplicitous if each requires proof of a fact that the other does not.
Id.; see Blockburger v. United States, 284 U.S. 299, 304 (1932).

¶14            Section 13-2002(A)(2) provides that “[a] person commits
forgery if, with intent to defraud, the person . . . [k]knowingly possesses a
forged instrument.” Section 13-2002(A)(3) provides that “[a] person
commits forgery if, with intent to defraud, the person . . . [o]ffers or
presents, whether accepted or not, a forged instrument or one that contains
false information.” Although possession and presentation are separate acts,
State v. Morris, 2 CA-CR 2015-0277, 2017 WL 1366925, at *8, ¶ 35 (Ariz. App.
Apr. 13, 2017) (mem. decision), a textual comparison of the elements
demonstrates that the elements of A.R.S. § 13-2002(A)(2) are a subset of
A.R.S. § 13-2002(A)(3), State v. Welch, 198 Ariz. 554, 557, ¶ 9 (2000). Because
both offenses are listed in A.R.S. § 13-2002(A), which requires the person
who commits either crime do so “with intent to defraud,” the intent is the
same for both crimes. See Welch, 198 Ariz. at 557, ¶ 10.

¶15           The next question is whether a defendant is able to “[o]ffer[]
or present[] a forged instrument or one that contains false information”
without “knowingly possessing a forged instrument.” The answer is “no.”
Although offering or presenting a forged instrument requires further
factual proof than knowingly possessing a forged instrument, a defendant
must knowingly possess a forged instrument in order to offer or present
that instrument. Given the broad definition of “possess,” 2 it is impossible

2      “Possess means knowingly to have physical possession or otherwise
to exercise dominion or control over property.” A.R.S. § 13-105(34). A
person “who exercises dominion or control over property has constructive
possession of it even if it is not in his physical possession.” State v.
Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App. 2013).


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                          STATE v. BERLIEW
                          Decision of the Court

to offer or present a forged instrument without first possessing the forged
instrument. Consequently, possession of a forged instrument is a lesser
included offense of the greater crime of offering or presenting a forged
instrument. As such, alleging both offenses result in a multiplicitous
charge. But multiplicitous charges are not illegal “so long as multiple
punishments are not imposed.” See Merlina, 208 Ariz. at 4, ¶ 14.

¶16           Additionally, Berliew does not argue she was prejudiced by
the multiplicitous charge. Nor can she; the superior court suspended the
imposition of sentence and placed Berliew on supervised probation for
three years.3 Therefore, Berliew cannot show she was subjected to double
punishment, because she was not ordered to serve any additional time on
probation for the lesser included offense than the time she was ordered to
serve for the greater offense. Because Berliew has not shown she was
subjected to double punishment for the same act, we affirm her convictions
and sentence.

                              CONCLUSION

¶17           For the foregoing reasons, we affirm Berliew’s convictions
and the resulting imposition of the probation term.




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




3      The maximum statutory period of probation for a Class 4 felony is
four years. A.R.S. § 13-902(A)(3).


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