                                                                     FILED BY CLERK
                            IN THE COURT OF APPEALS                      NOV 30 2007
                                STATE OF ARIZONA                         COURT OF APPEALS
                                  DIVISION TWO                             DIVISION TWO




THE STATE OF ARIZONA,                       )
                                            )
                               Appellee,    )         2 CA-CR 2006-0319
                                            )         DEPARTMENT B
                  v.                        )
                                            )         OPINION
ENIS JOHN CHERAMIE, III,                    )
                                            )
                              Appellant.    )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                               Cause No. CR20052668

                          Honorable Charles S. Sabalos, Judge

                       AFFIRMED IN PART; VACATED IN PART


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Joseph L. Parkhurst                                    Tucson
                                                                Attorneys for Appellee

Robert J. Hooker, Pima County Public Defender
 By Michael J. Miller                                                           Tucson
                                                                Attorneys for Appellant


V Á S Q U E Z, Judge.
¶1            A Pima County grand jury indicted appellant Enis John Cheramie for

transportation of a dangerous drug for sale, possession of drug paraphernalia, and second-

degree escape. Following a jury trial he was convicted of possession of a dangerous drug,

possession of drug paraphernalia, and third-degree escape. On appeal, Cheramie argues that

possession of a dangerous drug is not a lesser-included offense of transportation of a

dangerous drug for sale, and therefore his conviction on this count violated his right to

notice of the charges against him under the Arizona and United States Constitutions. He

also argues that the trial court improperly commented on the evidence in violation of the

Arizona Constitution, that he was prejudiced by the court’s instruction on reasonable doubt,

and that he was entitled to a jury trial on the issue of whether he had an historical prior

felony conviction. For the reasons discussed below, we affirm in part and vacate in part.

                           Facts and Procedural Background

¶2            We view the evidence presented in the light most favorable to sustaining the

convictions. State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408, supp. op., 206 Ariz.

153, 76 P.3d 424 (2003). A City of Tucson police officer stopped Cheramie’s car and

arrested him for two outstanding misdemeanors. Two officers searched the car incident to

the arrest and found an aerosol can with a false bottom on the floor of the car behind the

front passenger seat. The can contained two plastic bags filled with approximately forty-two

grams of a substance later determined to be methamphetamine. The officers also found

between $400 and $500 in the car’s center console. While being transported to the police


                                             2
station in a patrol car, Cheramie escaped. He was eventually recaptured and charged as

stated above.

¶3              Several police officers testified at trial for the state about the events

surrounding Cheramie’s arrest and the discovery of drugs in his car. The state’s other

witnesses included Cheramie’s parole officer, who identified Cheramie, and a criminalist,

who verified that the substance seized from Cheramie’s car was methamphetamine. The

state had also planned to call an expert on the “for sale” element of the transportation for

sale charge. However, this expert failed to appear. As a result, after the state rested its case,

the trial court granted Cheramie’s motion for judgment of acquittal on that charge pursuant

to Rule 20, Ariz. R. Crim. P. Over Cheramie’s objection, the court substituted for that

charge the charge of possession of a dangerous drug, believing it to be a lesser-included

offense of transportation for sale.

¶4              The jury found Cheramie guilty of possession of a dangerous drug, possession

of drug paraphernalia, and third-degree escape. At sentencing, Cheramie requested a jury

trial on the state’s allegation that he had an historical prior felony conviction for sentence

enhancement purposes. He also challenged, as he does on appeal, the sufficiency of the

evidence to support the prior conviction. The trial court found Cheramie’s prior violent

crime and dangerous nature offense conviction disqualified him from the mandatory

probation provisions of A.R.S. § 13-901.01. It sentenced him to concurrent, presumptive

prison terms of 4.5 years for the possession of a dangerous drug count, and 1.75 years each


                                               3
for the drug paraphernalia and escape counts. This appeal followed; we have jurisdiction

under A.R.S. § 13-4033(A).

                                         Discussion

Violation of right to notice of charge

¶5            Cheramie argues that possession of a dangerous drug is not a lesser-included

offense of transportation for sale, thus his conviction for possession violated his right under

the Arizona and United States Constitutions to be tried for an offense with which he had

been charged and for which he had been given proper notice. This court reviews

constitutional issues and purely legal issues de novo. State v. Moody, 208 Ariz. 424, ¶ 62,

94 P.3d 1119, 1140 (2004).

¶6            “‘An offense is lesser included when the greater offense cannot be committed

without necessarily committing the lesser offense.’” State v. Cruz, 127 Ariz. 33, 36, 617

P.2d 1149, 1152 (1980), quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772

(1980). In other words, to be a lesser-included offense of another, an offense must not

require any element not also required by the greater offense. In its interpretation of

Arizona’s dangerous drug statute, A.R.S. § 13-3407(A), our supreme court has held that to

be convicted of possession, a defendant must possess a sufficient quantity of the drug to be

useable under the known practices of addicts. State v. Moreno, 92 Ariz. 116, 120, 374 P.2d

872, 875 (1962). However, our supreme court has consistently rejected such a “useable

quantity” requirement for convictions for the sale of drugs. State v. Ballinger, 110 Ariz.


                                              4
422, 425, 520 P.2d 294, 297 (1974); State v. Ballesteros, 100 Ariz. 262, 265, 413 P.2d

739, 741 (1966); State v. Espinosa, 101 Ariz. 474, 476, 421 P.2d 322, 324 (1966). The

same reasoning applies to the transportation of drugs for the purpose of sale. See

Ballesteros, 100 Ariz. at 265, 413 P.2d at 741 (“[T]he required intent is established by the

[transportation] of any amount when the accompanying circumstances indicate an intent to

sell.”). “It is the sale of any amount of [dangerous drugs] which is prohibited.” Espinosa,

101 Ariz. at 476, 421 P.2d at 324 (emphasis added).

¶7            The offense of possession of a dangerous drug requires the element of

possession of a useable quantity of drugs, and the offense of transportation for sale does not.

Possession, therefore, cannot be a lesser-included offense of transportation for sale. While

this result is in some respects counterintuitive, and the dissent cites a number of cases that

suggest a contrary conclusion,1 the distinction between the physical act of “possession” and

the offense of “possession” as defined by our supreme court is critical. See Moreno, 92 Ariz.

at 120, 374 P.2d at 875. Courts in California, where there is a similar useable quantity rule,



       1
        We agree with Cheramie that although we reached the opposite conclusion with
regard to the marijuana statute, A.R.S. § 13-3405, in two previous decisions, in neither did
we address the elements of the offenses, and one focuses on whether possession is a lesser
offense, rather than a lesser-included offense. See In re Pima County Juvenile Delinquency
Action No. 12744101, 187 Ariz. 100, 101, 927 P.2d 366, 367 (App. 1996); State v.
Moroyoqui, 125 Ariz. 562, 564, 611 P.2d 566, 568 (App. 1980). And we disagree with the
dissent that State v. Chabolla-Hinojosa is not distinguishable from the present case, because
the lesser offense in that case did not require the additional element of possession of a
useable quantity. 192 Ariz. 360, ¶ 13, 965 P.2d 94, 97 (App. 1998).


                                              5
have held that “simple possession of a controlled substance cannot be a necessarily lesser

included offense of selling or offering to sell—although it could be a lesser related

offense—because the former crime contains elements a sales offense does not: knowing

possession of a usable quantity.” People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316, 316

(App. 1994) (citations omitted). Although our supreme court has not ruled directly on the

issue, its definition of the two offenses leaves us no option but to conclude that possession

of a dangerous drug is not a lesser-included offense of transportation for sale. State v.

Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App. 2003) (court of appeals

constrained by decisions of supreme court and not permitted to disregard them).

¶8            We next turn to whether the trial court’s amendment of the charge in this case

afforded Cheramie proper notice as required by the Sixth Amendment of the United States

Constitution and article II, §§ 24 and 30 of the Arizona Constitution. “The charging of a

criminal offense is regulated by the requirement found in the Sixth Amendment that ‘[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and

cause of the accusation.’” State v. Sanders, 205 Ariz. 208, ¶ 16, 68 P.3d 434, 439 (App.

2003), quoting U.S. Const. amend. VI. This means that an indictment “must describe the

offense with sufficient specificity so as to enable the accused to prepare a defense.” Id. ¶ 16.

The Arizona Constitution contains a similar right for an accused to “demand the nature and

cause of the accusation against him, to have a copy thereof,” and states that “[n]o person




                                               6
shall be prosecuted criminally in any court of record for felony or misdemeanor, other than

by information or indictment.” Ariz. Const. art. II, §§ 24, 30.

¶9            Amendment of a charge to a lesser-included offense of the original charge does

not violate the Sixth Amendment. Sanders, 205 Ariz. 208, n.2, 68 P.3d at 441 n.2.

However, the substitution of an offense that includes elements that differ from those of the

offense actually charged violates both the fundamental Sixth Amendment right to notice, id.

¶ 20, and Arizona’s “constitutional guarantees that an accused stand trial with clear notice

of the crime with which he is charged.” State v. Martin, 139 Ariz. 466, 471, 679 P.2d 489,

494 (1984); see State v. Rivera, 207 Ariz. 69, ¶ 8, 83 P.3d 69, 72 (App. 2004) (right to

notice under Arizona Constitution equivalent to Sixth Amendment right).

¶10           In Sanders, the state moved at the conclusion of its case-in-chief to amend an

assault charge from an offense requiring a “knowing touching with intent to injure, insult,

or provoke” to an offense requiring an intent to place another in reasonable apprehension

of imminent physical injury. 205 Ariz. 208, ¶ 9, 68 P.3d at 212. In that case, Division One

of this court stated that a proposed amendment could impermissibly change the nature of the

offense “either by proposing a change in factual allegations or a change in the legal

description of the offense.” Id. ¶ 25. In the second category, the court in Sanders cited two

cases, Gray v. Raines, 662 F.2d 569 (9th Cir. 1981), and Government of the Virgin Islands

v. Joseph, 765 F.2d 394 (3d Cir. 1985). Id. ¶¶ 26-30. In Gray, the Ninth Circuit Court of

Appeals vacated a conviction on a statutory (second-degree) rape charge that had been


                                             7
added during trial to the original charge of forcible (first-degree) rape, reasoning that

“[b]ecause first and second degree rape are distinct offenses, and second degree rape is not

an included offense, the state was obligated to comply with the Sixth Amendment notice

requirement when bringing a second degree rape charge.” 662 F.2d at 572. In Joseph, the

Third Circuit Court of Appeals found the addition of a third-degree rape charge after the

close of evidence violated the Sixth Amendment because third-degree rape had an

element—the age of the victim—not present in the original charge. 765 F.2d at 396-97.

¶11           Here, the amendment of the charge from transportation of a dangerous drug

for sale to possession of a dangerous drug similarly constituted a change in the legal

description of the offense. Because the amended charge included an element—possession

of a useable quantity—not present in the original charge, the amendment violated

Cheramie’s Sixth Amendment rights.

¶12           Further, “[w]hen the Sixth Amendment is violated by an amendment that

‘actually modifies an essential element of the offense charged . . . it is reversible per se.’”

Sanders, 205 Ariz. 208, ¶ 20, 68 P.3d at 440, quoting Hunter v. New Mexico, 916 F.2d

595, 599 (10th Cir. 1990). When a charge is amended during a trial such that the nature of

the offense is changed, “the record of that trial is useless as a tool to determine whether a

defendant was prejudiced by the amendment.” Id. ¶ 22. We must therefore conclusively

presume prejudice. Id. ¶ 20.




                                              8
¶13           The current case squarely illustrates the reasons for this prejudice per se rule.

Cheramie was not originally charged with a crime requiring possession of a useable quantity

of drugs. The court did not amend the charges against him until the final day of testimony

in a three-day jury trial, after the state had rested its case. Cheramie therefore had no reason

to address whether the drugs found in his car constituted a useable amount, either in his

opening statement or in his cross-examination of the state’s witnesses. And, he in fact did

not do so. Nor did he have a realistic opportunity to call his own witnesses to testify on the

issue at that late stage of the proceedings. Thus, “we can never know from [the] record

whether the evidence of the amended charge could have withstood a well-prepared cross-

examination, a different justification defense, or any other of the many testing devices

inherent in our adversarial process.”2 Id. ¶ 24.

¶14           Given our conclusion that possession of a dangerous drug cannot be a lesser-

included offense of transportation for sale, we find Cheramie’s conviction for possession of




       2
        Cheramie also argues that the state failed to present adequate evidence that he
possessed a useable amount of methamphetamine. Conversely, the dissent counters that
there was sufficient evidence for a jury to have found Cheramie possessed a useable quantity
of the drug. However, a conviction for a charge other than that for which the defendant was
indicted “cannot be justified on the basis that there is evidence in the record to support the
amended charge.” State v. Sanders, 205 Ariz. 208, ¶ 24, 68 P.3d 434, 441 (App. 2003).
Because Cheramie’s conviction is thus reversible per se, we need not address this argument.

                                               9
a dangerous drug violated the Sixth Amendment of the United States Constitution and

article II, § 30 of the Arizona Constitution. We therefore vacate this conviction.3

Jury instructions

¶15           Next, Cheramie argues the trial court’s instruction about police officers’

reports and transcripts was an improper comment on the evidence which violated his rights

under the Arizona Constitution. This court reviews de novo constitutional issues and

questions of whether a jury instruction properly states the law. Moody, 208 Ariz. 424, ¶ 62,

94 P.3d at 1140 (constitutional issues); State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325,

1327 (1997) (jury instructions).

¶16           Article VI, § 27 of the Arizona Constitution provides, in pertinent part:

“Judges shall not charge juries with respect to matters of fact, nor comment thereon, but

shall declare the law.” To violate this constitutional prohibition against commenting on the

evidence, “‘the court must express an opinion as to what the evidence proves’ or ‘interfere

with the jury’s independent evaluation of that evidence.’” State v. Roque, 213 Ariz. 193,

¶ 66, 141 P.3d 368, 388 (2006), quoting State v. Rodriguez, 192 Ariz. 58, ¶ 29, 961 P.2d

1006, 1011 (1998).



       3
       Because the effect of a judgment of acquittal was not briefed by the parties, we do
not make a decision on this issue. We note, however, that the issue was considered in
Sanders, 205 Ariz. 208, ¶ 68, 68 P.3d at 449. In that case, Division One of this court
concluded that the constitutional prohibition on double jeopardy barred retrying the
defendant on the original charge but did not preclude the state from refiling the charge as
amended. Id.

                                            10
¶17           At trial, Cheramie attempted to impeach several Tucson Police Department

officers called by the state by questioning them about police reports and transcripts of

statements that appeared to be inconsistent with their testimony, particularly with regard to

his physical appearance. The trial court’s jury instruction on these reports and transcripts

stated in relevant part:

              During the trial, you have heard references to reports and
              transcripts concerning events and statements in this case. The
              evidence on which you will base your deliberations includes
              testimony of witnesses concerning the information contained in
              these reports and transcripts. The reports and transcripts
              themselves are not evidence unless admitted into evidence. . . .
              You should consider the testimony of the witnesses concerning
              the information contained in these reports and transcripts,
              together with the other evidence in the case, in your
              deliberations.


Cheramie argues this instruction interfered with the jury’s independent evaluation of the

evidence. We disagree. Whether to admit or exclude evidence is within the trial court’s

discretion. State v. Greene, 162 Ariz. 431, 433, 784 P.2d 257, 259 (1989). The court has

a “duty to instruct the jury . . . upon matters vital to a proper consideration of evidence.”

State v. Evans, 109 Ariz. 491, 493, 512 P.2d 1225, 1227 (1973). And the constitutional

prohibition against commenting on the evidence “does not prevent the trial court from

instructing the jury on the limited usage of the evidence.” State v. Spinks, 156 Ariz. 355,

361, 752 P.2d 8, 14 (App. 1987).




                                             11
¶18           In this case, the trial court had the discretion to exclude the reports and

transcripts,4 and the duty to instruct the jury to consider the evidence accordingly. We are

not persuaded by Cheramie’s contention that the court’s instruction implied that the reports,

transcripts, and their contents “were in some unspecified way questionable.”

¶19           Next, Cheramie argues the trial court erred by failing to give the jury the Hash5

instruction on reasonable doubt when the jurors requested further instruction on the issue.

We review the sufficiency of jury instructions de novo. Orendain, 188 Ariz. at 56, 932 P.2d

at 1327. There are two distinct parts to Cheramie’s argument. First, he claims that a court

must provide a clarifying instruction on reasonable doubt when so requested by a jury.

Second, he maintains that on the issue of reasonable doubt, such a clarifying instruction

must be the Hash instruction. We do not agree with either of these contentions.

¶20           In State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995), our

supreme court adopted a uniform reasonable doubt instruction to be used in criminal trials.

Although Portillo did not explicitly overrule Hash, it did disapprove of the use of varying

definitions of reasonable doubt, finding them to “detract[] from the goal of a uniform and

equal system of justice.” 182 Ariz. at 596, 898 P.2d at 974. Cheramie provides no post-

Portillo authority to support his position that a trial court must give the Hash instruction

       4
       The record indicates that these reports and transcripts were not admitted because
Cheramie did not move for their admission. See State v. Logan, 200 Ariz. 564, ¶ 11, 30
P.3d 631, 633 (2001) (party may not inject error into record then profit from it on appeal).
       5
       Hash v. State, 48 Ariz. 43, 57, 59 P.2d 305, 310-11 (1936).

                                             12
as clarification.6 To the contrary, as Portillo suggests, our supreme court disfavors

definitions of reasonable doubt, such as those contained in Hash, which vary from the

Portillo definition. Id.; see also State v. Garza, 216 Ariz. 56, ¶ 45, 163 P.3d 1006, 1016-

17 (2007); State v. Ellison, 213 Ariz. 116, ¶ 63, 140 P.3d 899, 916 (2006); State v. Dann,

205 Ariz. 557, ¶ 74, 74 P.3d 231, 249-50 (2003).

¶21           Furthermore, “‘[w]hen a jury asks a judge about a matter on which it has

received adequate instruction, the judge may in his or her discretion refuse to answer, or may

refer the jury to the earlier instruction.’” State v. Ramirez, 178 Ariz. 116, 126, 871 P.2d

237, 247 (1994), quoting Des Jardins v. State, 551 P.2d 181, 190 (Alaska 1976). See Ariz.

R. Crim. P. 22.3 (“After the jurors have retired to consider their verdict . . . if they or any

party request additional instructions, the court may recall them to the courtroom and . . .

give appropriate additional instructions.”) (emphasis added).7 Courts are thus given broad

discretion in determining whether and how to respond to jury questions.



       6
        Cheramie cites a single case, State v. Soto-Fong, 187 Ariz. 186, 198, 928 P.2d 610,
622 (1996), which he claims “appears to recognize [Hash] as an acceptable alternative to
the ‘Portillo’ instruction.” He is mistaken. As the portion he quotes shows, the trial in that
case occurred before the effective date set by our supreme court for the use of the Portillo
instruction.
       7
        We note that in the series of cases cited by Cheramie, the Ninth Circuit only found
reversible error in a failure to issue supplementary instructions when jurors’ notes indicated
they had “misinterpreted the law or the instructions.” Beardslee v. Woodford, 358 F.3d
560, 575, supp op., Beardslee v. Brown, 393 F.3d 1032 (9th Cir. 2004). These cases are
not persuasive in the present case, because there is no evidence that the jury misinterpreted
either the law or the instructions.

                                              13
¶22            In this case, the record shows the trial court gave the Portillo reasonable doubt

instruction, as mandated by our supreme court. 182 Ariz. at 596, 898 P.2d at 974. The trial

court, therefore, adequately instructed the jury on the issue. Sullivan, 205 Ariz. 285, ¶¶ 14-

15, 69 P.3d at 1009 (App. 2003) (Portillo instruction mandated by supreme court; court of

appeals constrained by that decision). Thus, when the jury subsequently requested the court

to provide a definition of reasonable doubt, the court acted within its discretion in referring

the jury to its earlier instruction.

Request for jury trial on prior conviction

¶23            Finally, relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348

(2000), Cheramie argues the trial court erred in denying his request for a jury trial to

determine whether he had an historical prior felony conviction as the state had alleged. This

is a constitutional issue which we review de novo. Moody, 208 Ariz. 424, ¶ 62, 94 P.3d at

1140.

¶24            In Apprendi the United States Supreme Court held “that the Sixth and

Fourteenth Amendments of the United States Constitution require a jury to find, beyond a

reasonable doubt, any fact that would ‘expose the defendant to a greater punishment than

that authorized by the jury’s guilty verdict’ alone.” State v. Brown, 209 Ariz. 200, ¶ 7, 99

P.3d 15, 17 (2004), quoting Apprendi, 530 U.S. at 494, 120 S. Ct. at 2365. However, the

Court expressly exempted “the fact of a prior conviction” from its jury trial requirement.

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. Our supreme court has also recognized

                                              14
this exception. State v. Fell, 210 Ariz. 554, ¶ 8, 115 P.3d 594, 597 (2005). But Cheramie

claims the reasoning in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219

(1998), in which the Court first enunciated the prior conviction exception, “does not stand

up in light of the reasoning in Apprendi.” However, we rejected this very argument in State

v. Keith, noting that “[w]e are not allowed to anticipate how the Supreme Court may rule

in the future.” 211 Ariz. 436, ¶ 3, 122 P.3d 229, 230 (App. 2005).

¶25           Cheramie nevertheless argues Apprendi’s reasoning for the exception, that

“procedural safeguards attach[] to any ‘fact’ of prior conviction,” indicates that the

exception only applies to determining the existence of a prior conviction. 530 U.S. at 488,

120 S. Ct. at 2362. He contends because there are no similar procedural safeguards in

identifying the defendant as the same person who was previously convicted, such an

identification should be a matter for a jury. However, neither Apprendi nor its progeny

supports such an interpretation.

¶26           Cheramie also suggests the court erred in concluding the state had established

he was the person referred to in the documents. He contends his identification was “based

entirely” on the judge’s comparison of Cheramie with a photograph, taken nine years before,

included in a certified copy of his Arizona Department of Corrections records. However,

this is not the case. Cheramie’s parole officer, C. W. Lee, identified Cheramie at trial. Lee

had met with Cheramie the day after he was released from custody for the prior conviction

and had been responsible for his community supervision for the six months between his

                                             15
release and his arrest on the current charges. Lee’s testimony was incorporated into the

sentencing, and Cheramie did not contest the validity of his identification by Lee at trial; nor

does he on appeal. See State v. Soto-Fong, 187 Ariz. 186, 207, 928 P.2d 610, 631 (1996)

(court may consider at sentencing phase evidence properly admitted during guilt phase).

Thus, there was more than sufficient evidence to support the court’s finding that Cheramie

previously had been convicted of aggravated assault with a deadly weapon/dangerous

instrument, Pima County case number CR-52569. And the trial court did not err in ruling

Cheramie was not entitled to a jury trial on this issue.

                                         Conclusion

¶27           For the reasons stated, we affirm Cheramie’s convictions and sentences for

possession of drug paraphernalia and third-degree escape, but vacate his conviction and

sentence for possession of a dangerous drug.




                                               ____________________________________
                                               GARYE L. VÁSQUEZ, Judge


CONCURRING:



____________________________________
PETER J. ECKERSTROM, Presiding Judge




                                              16
E S P I N O S A, Judge, dissenting in part.


¶28           I agree that the jury was correctly instructed and that Cheramie’s prior

conviction was properly established. But I cannot agree with the majority’s unprecedented

determination that simple possession of methamphetamine cannot be a lesser-included

offense of transportation of methamphetamine for sale and that Cheramie’s conviction on

that charge violated his Sixth Amendment rights. As the state points out, it is impossible to

transport methamphetamine for sale without, at a minimum, possessing methamphetamine

because “a person cannot commit the transportation offense without necessarily committing

the possession offense.” State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, 97

(App. 1998). The court in Chabolla-Hinojosa reasoned:

              “‘Possess’ means knowingly to have physical possession or
              otherwise to exercise dominion or control over property.”
              [A.R.S. § 13-105(30).] . . . One who exercises dominion or
              control over property has constructive possession of it even if it
              is not in his physical possession. See State v. Villalobos
              Alvarez, 155 Ariz. 244, 245, 745 P.2d 991, 992 (App. 1987).
              Given the broad definition of “possess,” when a possession for
              sale charge is incidental to a transportation for sale charge, the
              former is a lesser-included offense, for one cannot possibly be
              guilty of the transportation for sale charge without also being
              guilty of the possession for sale charge.


Id., ¶ 13. Although the lesser offense in Chabolla-Hinojosa was possession of marijuana

for sale, the distinction is inconsequential because the court’s reasoning in that case turned

on the physical act of possession, not the purpose or intended outcome of that possession.

Simply stated, “possession is a necessary element of transportation.” Id. ¶ 18. Indeed, so

                                              17
well established is this principle that this court has flatly stated “[p]ossession of drugs for

personal use is a lesser-included offense of possession of drugs for sale,” without discussion.

Gray v. Irwin, 195 Ariz. 273, ¶ 12, 987 P.2d 759, 762 (App. 1999); see also In re Pima

County Juvenile Action No. 12744101, 187 Ariz. 100, 101, 927 P.2d 366, 367 (App. 1996)

(“it is not possible to complete a sale of marijuana without possessing it”); State v.

Moroyoqui, 125 Ariz. 562, 564, 611 P.2d 566, 568 (App. 1980) (possession of marijuana

is a lesser-included offense of possession of marijuana for sale and transportation of

marijuana); State v. Ballinger, 19 Ariz. App. 32, 37, 504 P.2d 955, 960 (1973) (“Possession

of heroin is a lesser[-] included offense of the greater offense of possession of heroin for sale,

since the second cannot be committed without necessarily committing the first.”).

¶29            The majority adopts Cheramie’s reasoning, which relies on State v. Moreno,

92 Ariz. 116, 374 P.2d 872 (1962), and a California case to engraft the element of “useable

amount” onto the lesser-included offense analysis. But in Moreno, our supreme court

addressed a challenge to the sufficiency of the evidence to sustain a conviction for

possession of heroin because only trace amounts of the drug had been detected on cotton

swabs used for wiping the tips of hypodermic needles. The court held:

               [W]here the amount of a narcotic is so small as to require a
               chemical analysis to detect its presence, the quantity is
               sufficient if useable under the known practices of narcotic
               addicts. We hold that only in those cases where the amount is
               incapable of being put to any effective use will the evidence be
               insufficient to support a conviction.




                                               18
Id. at 120, 374 P.2d at 875. Significantly, the question whether simple possession of a

narcotic could be a lesser-included offense of transportation with intent to sell the drug was

not at issue in Moreno. And, indeed, that question is subject to a different analysis than that

for evaluating a challenge to a conviction based on sufficiency of the evidence. It is also

clear that this case does not involve the question whether an “amount of a narcotic is so

small as to require a chemical analysis to detect its presence,” as was the case in Moreno.

Id.

¶30           Our supreme court recently reiterated that a lesser-included offense instruction

is required when “(a) . . . the state [has] failed to prove an element of the greater offense and

(b) . . . the evidence is sufficient to support a conviction on the lesser offense.” State v.

Wall, 212 Ariz. 1, ¶ 18, 126 P.3d 148, 151 (2006); see Ballinger, 19 Ariz. App. at 37, 504

P.2d at 960 (court has duty to instruct on lesser-included offense of possession of heroin if

evidence reasonably supports conviction on that offense); see also United States v.

Hernandez, 476 F.3d 791, 799-801 (9th Cir. 2007) (evidence supporting possession of 159

grams of methamphetamine with intent to distribute did not preclude jury from rationally

finding drug could have been possessed for personal use rather than sale notwithstanding no

evidence of personal use, and lesser-included-offense instruction should have been given).

¶31           Although here the state did not introduce any expert testimony on what may

constitute a “useable amount,” it was not required because the jury readily and reasonably

could have found, without any need for additional evidence, that the forty-two grams of



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methamphetamine in Cheramie’s possession were without question a useable quantity of the

drug as a matter of common sense and common knowledge. See generally State v. Aguilar,

169 Ariz. 180, 182, 818 P.2d 165, 167 (App. 1991) (jurors may rely on common sense and

experience). And, under the well-settled case law noted above and Arizona rules of criminal

procedure, Cheramie could not have lacked notice that he could be found guilty of its

possession as a lesser-included offense. See Ariz. R. Crim. P. 13.2(c). Accordingly, I would

uphold Cheramie’s conviction for possessing the sizeable quantity of methamphetamine that

he was transporting.




                                             ____________________________________
                                             PHILIP G. ESPINOSA, Judge




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