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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  DARRELL SCOTT FRANCIS, Appellant.

                             No. 1 CA-CR 16-0051
                               FILED 3-13-2018


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

                                  AFFIRMED


                                   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
                            Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Jon W. Thompson and Chief Judge Samuel A. Thumma joined.


J O H N S E N, Judge:

¶1            Darrell Scott Francis was convicted of two counts of
promoting prison contraband. The superior court imposed enhanced
sentences after the jury found he committed the offenses while on release.
On appeal, a majority of this court reversed the convictions, holding the
superior court erred when it refused to permit Francis to argue that the State
was required to prove that he knew the cell phone he possessed was
contraband. State v. Francis, 241 Ariz. 449 (App. 2017). The supreme court
vacated our decision, holding the superior court did not err by forbidding
Francis from arguing he did not know the cell phone was contraband. The
court remanded the matter to this court so that we could consider Francis's
further argument that the superior court abused its discretion by refusing
to preclude a witness who was not timely disclosed. State v. Francis, ___
Ariz. ___, 2018 WL 700091 (Ariz. Feb. 5, 2018). Having now considered the
disclosure issue, we affirm Francis's convictions and resulting sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2             The only facts relevant to this decision are those pertaining to
the jury's finding that Francis committed the contraband offenses while on
release in another felony matter. The State had disclosed, and the court
admitted in evidence, a packet of documents pertaining to other criminal
matters involving Francis that were pending at the time he committed the
contraband offenses. In addition, over Francis's timeliness objection, the
State called a witness it conceded it had not disclosed before trial – a lawyer
who represented Francis in the other matters. The court allowed Francis to
interview the lawyer before she testified and also offered to continue the
proceeding, but Francis declined the continuance. The lawyer testified that
Francis was out of custody, either released on bond or on his own
recognizance, when he appeared by telephone at a court conference in the
other matters on September 15, 2014, roughly two weeks before he
committed the contraband offenses on October 2, 2014.

¶3          The jury found Francis had been on release on bond or his
own recognizance for felony offenses when he was taken into custody,


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                            STATE v. FRANCIS
                            Decision of the Court

jailed and thereafter committed the offenses of promoting prison
contraband. The superior court sentenced Francis to two concurrent terms
of five years' imprisonment; each sentence included a two-year
enhancement under Arizona Revised Statutes ("A.R.S.") section 13-708(D)
(2018) because of the jury's finding that he committed the offenses while on
felony release.1 We have jurisdiction of Francis's appeal pursuant to Article
6, Section 9, of the Arizona Constitution, and A.R.S. § 12-2103(A) (2018).

                               DISCUSSION

¶4            Francis's sole remaining argument on appeal is that the
superior court erred by allowing the State to call the lawyer to testify
because it had not disclosed her as a witness before trial. The State admits
that it did not disclose the witness, but contends its nondisclosure was
inadvertent and that Francis suffered no prejudice from the court's ruling.
We review a superior court's ruling on a disclosure issue for an abuse of
discretion. State v. Roque, 213 Ariz. 193, 205, ¶ 21 (2006), overruled on other
grounds by State v. Escalante-Orozco, 241 Ariz. 254, 267, ¶¶ 13-14 (2017). An
abuse of discretion occurs only when "no reasonable judge would have
reached the same result under the circumstances." State v. Naranjo, 234 Ariz.
233, 242, ¶ 29 (2014) (quoting State v. Armstrong, 208 Ariz. 345, 354, ¶ 40
(2004)).

¶5            Under Arizona Rule of Criminal Procedure 15.7, a defendant
may move for sanctions if the State fails to make a required disclosure. Rule
15.7(a). The court need not impose sanctions if the nondisclosure was
harmless. Rule 15.7(b)(1). When deciding whether to preclude a witness,
the superior court must examine "the significance of the information," "the
violation's impact on the overall administration of the case, the sanction's
impact on the party and the victim, and the stage of proceedings" in which
disclosure was made. Rule 15.7(c).

¶6            The superior court did not abuse its discretion in allowing the
lawyer to testify because her testimony was cumulative to other evidence
before the jury; the disclosure violation therefore was harmless. Exhibit 6,
which Francis does not challenge on appeal, contained certified copies of
an information in CR2013-00068 and an information in CR2013-00071, both
issued on April 8, 2013, which together charged Francis with six felonies,
and another information issued in CR2013-00116 on May 29, 2013, charging
him with two additional felonies. In addition, Exhibit 6 included a certified


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


                                      3
                           STATE v. FRANCIS
                           Decision of the Court

copy of an information charging Francis with three counts of "Failure to
Appear" on June 12, 2014 for court proceedings each of the three pending
matters. Exhibit 6 also included a copy of the booking report showing
Francis was booked into the Apache County Jail on October 3, 2014, having
been transferred from the Navajo County Jail. According to the booking
report, Francis had been arrested on a charge of "failure to appear" at a
hearing on the then-pending felony charges. Finally, Exhibit 6 included a
certified copy of a minute entry order dated October 20, 2014, reflecting that
Francis pled guilty to two felony charges in the other pending matters. The
minute entry reflected the court's order "exonerating any bond(s)."

¶7            Even apart from the lawyer's testimony, the documents in
Exhibit 6 were a sufficient basis on which the jury could find that Francis
committed the contraband offenses while on release on the other criminal
offenses. The jury knew from the charging documents that Francis was
charged in three other separate criminal matters, and also knew that he was
charged with "failing to appear" in those three matters. Further, it knew
from the booking report that he was in jail on the occasion of the contraband
offenses because he had been arrested for "failure to appear" in the other
three criminal matters. From these documents alone, along with the
October 20 order "exonerating any bond(s)" in the other matters, the jury
could have concluded that Francis was on release on bond or on his own
recognizance on the other felony matters when he committed the jail
contraband offenses in early October 2014.

                               CONCLUSION

¶8            For the reasons stated, we affirm Francis's convictions and the
resulting sentences.




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




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