                            IN THE
                   ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                    USEF LATRICE SIMMONS II,
                           Appellant.

                     No. 2 CA-CR 2014-0193
                     Filed November 23, 2015


        Appeal from the Superior Court in Cochise County
                        No. CR201300111
           The Honorable James L. Conlogue, Judge

           AFFIRMED IN PART; VACATED IN PART;
             REMANDED WITH INSTRUCTIONS


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee

Joel A. Larson, Cochise County Legal Defender, Bisbee
Counsel for Appellant
                        STATE v. SIMMONS
                        Decision of the Court


                             OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Judge Howard and Judge Kelly1 concurred.


V Á S Q U E Z, Presiding Judge:

¶1           Following a jury trial, Usef Simmons was convicted of
eleven drug-related offenses. The trial court sentenced him to a
combination of consecutive and concurrent, presumptive prison
terms. On appeal, Simmons challenges two of his convictions for
violating A.R.S. § 13-3417(A), which prohibits using any wire or
electronic communication to facilitate or to conspire to commit
certain offenses. The primary issue we must decide is whether
Simmons, as the principal/seller in a buy-sell drug transaction,
could be convicted of violating § 13-3417(A), where there is no
evidence of a wire or electronic communication by Simmons with
any person except the other principal/buyer. Because we conclude
the answer is no, we vacate Simmons’s five convictions and
sentences for violating § 13-3417(A). For the reasons expressed in a
separate memorandum decision, we remand for clarification of
Simmons’s remaining sentences.2 We otherwise affirm.

                Factual and Procedural Background

¶2           We view the facts in the light most favorable to
sustaining Simmons’s convictions. See State v. Sarullo, 219 Ariz. 431,
¶ 2, 199 P.3d 686, 688 (App. 2008). In January 2013, narcotics agents


      1The  Hon. Virginia C. Kelly, a retired judge of this court, is
called back to active duty to serve on this case pursuant to orders of
this court and our supreme court.
      2Simmons    raises other sentencing issues that do not meet the
criteria for publication. See Ariz. R. Sup. Ct. 111(b). We address
them in a separate, simultaneously filed memorandum decision. See
Ariz. R. Sup. Ct. 111(h); Ariz. R. Crim. P. 31.26.


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                       STATE v. SIMMONS
                       Decision of the Court

with the Arizona Department of Public Safety received information
that Simmons was selling drugs. On January 28, an undercover
agent began communicating with Simmons via a cellular telephone
number associated with him. The following day, the agent arranged
via that phone number to meet Simmons to purchase
methamphetamine from him, and the transaction occurred as
scheduled.

¶3          On January 30 and 31, the undercover agent contacted
Simmons at the same cell phone number and arranged another
purchase for the evening of January 31. But the woman who was to
deliver the drugs did not show up, and the transaction did not
occur. On February 5, the agent set up another drug purchase with
Simmons at the same phone number.              One of Simmons’s
codefendants, Cristy Mast, sold the agent methamphetamine at the
arranged location.

¶4          The undercover agent next communicated with
Simmons on February 11 via the same cell phone number. He and
Simmons arranged a methamphetamine transaction for the same
day. The sale, however, did not take place because the agent was
the only person who showed up. The next day, February 12, the
agent again initiated contact with Simmons via Simmons’s cell
phone and arranged to buy methamphetamine later that day.
Simmons’s other codefendant, Shannon Curry, met the agent at the
arranged time and place but sold him rock salt instead of
methamphetamine.

¶5          Officers with the Sierra Vista Police Department
arrested Simmons about two weeks later. When they searched him,
they found a small plastic baggie containing marijuana in his front
left pants pocket. He also had in his possession a cell phone
associated with the number that the agent had been using to contact
him.

¶6           A grand jury indicted Simmons, Mast, and Curry. The
indictment alleged the following charges against Simmons, listed by
offense date:




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                      STATE v. SIMMONS
                      Decision of the Court

     January 29
     Count one: Knowingly transporting methamphetamine
     Count two: Knowingly selling methamphetamine
     Count three: Using a wire or electronic communication to
     facilitate a felony or to conspire to commit a drug felony

     January 31
     Count four: Using a wire or electronic communication to
     facilitate a felony or to conspire to commit a drug felony

     February 5
     Count six: Knowingly selling methamphetamine
     Count eight: Using a wire or electronic communication to
     facilitate a felony or to conspire to commit a drug felony

     February 11
     Count nine: Using a wire or electronic communication to
     facilitate a felony or to conspire to commit a drug felony

     February 12
     Count ten: Possessing an imitation drug with the intent to
     distribute
     Count twelve: Using a wire or electronic communication to
     facilitate a felony or to conspire to commit a drug felony

     February 27
     Count thirteen: Possessing marijuana

     January 28 through February 12
     Count fourteen: Conspiring to sell methamphetamine3

¶7           The jury found Simmons guilty of all eleven charges,
and the trial court sentenced him as described above. This appeal
followed.     We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A).


     3Counts   five and seven involved Mast, while Curry was
charged in count eleven.


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                        STATE v. SIMMONS
                        Decision of the Court

                             Discussion

¶8            Simmons argues that his convictions for counts nine
and twelve, which are based on § 13-3417(A), “must be vacated
because they involve non-existent offenses.” That section provides,
“It is unlawful for a person to use any wire communication4 or
electronic communication5 as defined in [A.R.S.] § 13-3001 to
facilitate the violation of any felony provision or to conspire to
commit any felony provision of [chapter 34] or chapter 23 of
[title 13].” Chapter 34 of title 13 deals with “Drug Offenses,” while
chapter 23 addresses “Organized Crime, Fraud and Terrorism.”

¶9           Simmons points out that the offenses charged in counts
nine and twelve involved the sale of rock salt, which falls under
chapter 34.1, “Imitation Substance or Drug Offenses,” not chapter 34
or 23. He therefore reasons that the offenses “do not exist” under
§ 13-3417(A) and that “it was fundamental error to instruct the jury
on a non-existent theory of liability.” The state responds that
Simmons “violated § 13-3417 . . . by using his cell phone to
communicate with the officer on February 11 and 12” regarding the
sale of a dangerous drug and that whatever happened after their
communications is of no consequence. The state suggests that the
underlying offense facilitated or conspired to commit need not be
completed for § 13-3417(A) to apply.



      4“‘Wire    communication’ means any aural transfer that is made
in whole or in part through the use of facilities for the transmission
of communications by the aid of any wire, cable or other like
connection between the point of origin and the point of
reception . . . .” A.R.S. § 13-3001(14).
      5“‘Electronic  communication’ means any transfer of signs,
signals, writing, images, sounds, data or intelligence of any nature
that is transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system,” excluding
“wire or oral communication,” “communication through a tone-only
paging device,” and “communication from a tracking device.”
A.R.S. § 13-3001(4).


                                  5
                        STATE v. SIMMONS
                        Decision of the Court

¶10             In the course of our review, we questioned whether the
record contained sufficient evidence that Simmons used a wire or
electronic communication to “facilitate” or “conspire to commit”
these offenses. § 13-3417(A); see State v. Fernandez, 216 Ariz. 545,
¶ 32, 169 P.3d 641, 650 (App. 2007) (“Although we do not search the
record for fundamental error, we will not ignore it when we find
it.”); State v. Stroud, 209 Ariz. 410, n.2, 103 P.3d 912, 914 n.2 (2005)
(“‘It is . . . fundamental error to convict a person for a crime when
the evidence does not support a conviction.’”), quoting State v.
Roberts, 138 Ariz. 230, 232, 673 P.2d 974, 976 (App. 1983). We thus
ordered supplemental briefing on whether a defendant, as a
principal in a buy-sell drug transaction, can be convicted of using a
wire or electronic communication to facilitate or conspire with the
other principal, in violation of § 13-3417(A), where there is no
evidence of a wire or electronic communication by the defendant
with any person except the other principal.6

¶11           We begin by noting that the language of § 13-3417(A) is
not a model of clarity. Even so, no published case has interpreted
the statute during its twenty-five-year existence. Accordingly, we
must consider the language of § 13-3417(A) to ascertain whether
evidence of a wire or electronic communication between two
principals in a buy-sell drug transaction is sufficient for a violation
of the statute. This necessarily requires us to determine the meaning
of “facilitate” and “conspire” as used in the statute.

¶12           “We review issues of statutory interpretation de
novo . . . .” State v. Barnett, 209 Ariz. 352, ¶ 7, 101 P.3d 646, 648
(App. 2004). “‘Our goal in interpreting statutes is to ascertain and
give effect to the intent of our legislature,’ and the plain language of

      6Because   this issue is dispositive, we need not address the
others. See State v. Amaya-Ruiz, 166 Ariz. 152, 173 n.1, 800 P.2d 1260,
1281 n.1 (1990) (when resolution of one issue dispositive of
argument, court need not address other issues implicated by
argument). Simmons alternatively contends that counts nine and
twelve “must be designated class 6, and not class 4 felony
convictions” and that he should be resentenced accordingly.
However, we likewise do not address this argument.


                                   6
                         STATE v. SIMMONS
                         Decision of the Court

the statute is the best and most reliable indicator of that intent.”
State v. Lockwood, 222 Ariz. 551, ¶ 4, 218 P.3d 1008, 1010 (App. 2009),
quoting State v. Garcia, 219 Ariz. 104, ¶ 6, 193 P.3d 798, 800 (App.
2008). “‘When a statute is clear and unambiguous, we apply its
plain language and need not engage in any other means of statutory
interpretation.’” State v. Gongora, 235 Ariz. 178, ¶ 5, 330 P.3d 368,
369 (App. 2014), quoting State v. Arellano, 213 Ariz. 474, ¶ 9, 143 P.3d
1015, 1018 (2006).

¶13          We construe penal statutes “according to the fair import
of their terms, with a view to effect their object and to promote
justice.” A.R.S. § 1-211(C); see also State v. Peek, 219 Ariz. 182, ¶ 11,
195 P.3d 641, 643 (2008). Thus, “[a] statute is to be read and applied
in accordance with any special statutory definitions of the terms it
uses.” State v. Hazlett, 205 Ariz. 523, ¶ 27, 73 P.3d 1258, 1266 (App.
2003); see also A.R.S. § 1-213 (“Technical words and phrases and
those which have acquired a peculiar and appropriate meaning in
the law shall be construed according to such peculiar and
appropriate meaning.”). When terms are not specifically defined,
“courts apply common meanings and may look to dictionaries.”
State v. Pena, 235 Ariz. 277, ¶ 6, 331 P.3d 412, 414 (2014) (internal
citation omitted); see also § 1-213.

¶14           Here, the legislature has defined the crimes of
“facilitation” and “conspiracy” in title 13. Section 13-1004(A),
A.R.S., provides, “A person commits facilitation if, acting with
knowledge that another person is committing or intends to commit
an offense, the person knowingly provides the other person with
means or opportunity for the commission of the offense.” And
A.R.S. § 13-1003(A) explains,

                    A person commits conspiracy if, with
             the intent to promote or aid the
             commission of an offense, such person
             agrees with one or more persons that at
             least one of them or another person will
             engage in conduct constituting the offense
             and one of the parties commits an overt act
             in furtherance of the offense . . . .



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                         STATE v. SIMMONS
                         Decision of the Court

¶15           We are thus bound by these definitions when
interpreting the language of § 13-3417(A), including the meaning of
“facilitate” and “conspire.” See Hazlett, 205 Ariz. 523, ¶ 27, 73 P.3d at
1266; see also State v. Wilson, 200 Ariz. 390, ¶ 20, 26 P.3d 1161, 1168
(App. 2001) (“When a statutory scheme expressly defines certain
terms, we are bound by those definitions in construing a statute
within that scheme.”). The state, however, urges us to apply the
common meaning of “facilitate” and “conspire,” suggesting that we
use broad dictionary definitions.          See The American Heritage
Dictionary 393, 632 (5th ed. 2011) (defining “conspire” as “[t]o plan
together secretly to commit an illegal or wrongful act or accomplish
a legal purpose through illegal action” and “facilitate” as “[t]o make
easy or easier”). But we resort to common meanings and dictionary
definitions only when statutory terms are not otherwise defined by
our legislature. See Pena, 235 Ariz. 277, ¶ 6, 331 P.3d at 414.

¶16          We acknowledge that nothing within the plain
language of § 13-3417(A) incorporates the definitions of facilitation
and conspiracy provided in §§ 13-1003(A) and 13-1004(A), unlike the
definitions for wire and electronic communications in § 13-3001. But
the legislature is not required to specifically incorporate statutory
definitions into a statute. See State v. Cutshaw, 7 Ariz. App. 210, 219,
437 P.2d 962, 971 (1968) (“When the legislature has used a word to
which it has given a prescribed definition, that definition should be
followed by the courts.”). And if the legislature had intended
different meanings for the terms “facilitate” and “conspire” in § 13-
3417(A), it could have said so. See State v. Garza Rodriguez, 164 Ariz.
107, 111, 791 P.2d 633, 637 (1990) (“We presume that the legislature
knows the existing laws when it enacts or modifies a statute.”); State
v. Flynt, 199 Ariz. 92, ¶ 5, 13 P.3d 1209, 1211 (App. 2000) (we
construe statutory provisions to be “‘harmonious and consistent’”
within statutory scheme), quoting State ex rel. Larson v. Farley, 106
Ariz. 119, 122, 471 P.2d 731, 734 (1970).

¶17         Incorporating these definitions of facilitation and
conspiracy into § 13-3417(A), the statute plainly proscribes using a
wire or electronic communication to: (1) “with knowledge that
another person is committing or intends to commit an offense, . . .
knowingly provide[] the other person with means or opportunity for


                                   8
                        STATE v. SIMMONS
                        Decision of the Court

the commission of the offense,” § 13-1004(A), or (2) “with the intent
to promote or aid the commission of an offense, . . . agree[] with one
or more persons that at least one of them or another person will
engage in conduct constituting the offense and one of the parties
commits an overt act in furtherance of the offense,” § 13-1003(A).7
This language plainly requires at least two parties to the wire or
electronic communication who are arranging to commit a particular
offense. See Gongora, 235 Ariz. 178, ¶ 5, 330 P.3d at 369.

¶18           Abuelhawa v. United States, 556 U.S. 816 (2009), supports
our conclusion. There, the issue was whether a defendant violated
21 U.S.C. § 843(b), the analogous federal counterpart to § 13-3417(A),
by “making a misdemeanor drug purchase because his phone call to
the dealer can be said to facilitate the felony of drug distribution.”
Abuelhawa, 556 U.S. at 818. The Supreme Court refused to apply the
plain meaning of the term “facilitate,” which would have
criminalized the defendant’s conduct because his use of the
telephone “‘allow[ed] the transaction to take place more efficiently.’”
Id. at 819 (alteration in original). The Court noted that such an
interpretation “sits uncomfortably with common usage.” Id. at 820.
It explained:

            Where a transaction like a sale necessarily
            presupposes two parties with specific roles,
            it would be odd to speak of one party as
            facilitating the conduct of the other. A
            buyer does not just make a sale easier; he
            makes the sale possible. No buyer, no sale;

      7At  oral argument, the state insisted that if we incorporate the
definition of conspiracy into § 13-3417(A), an overt act must be
completed during the wire or electronic communication for a
violation of that statute. Generally, “[i]n order to sustain a
conviction for conspiracy, it is essential that an overt act by one or
more of the conspirators to effect the object of the conspiracy be
alleged and proved.” State v. Olea, 139 Ariz. 280, 294, 678 P.2d 465,
479 (App. 1983). But we disagree that the overt act must be
completed during the wire or electronic communication for a
violation of § 13-3417(A) to occur.


                                  9
                        STATE v. SIMMONS
                        Decision of the Court

             the buyer’s part is already implied by the
             term “sale,” and the word “facilitate” adds
             nothing.    We would not say that the
             borrower facilitates the bank loan.

Id.

¶19           The Court further observed that “facilitate” generally
refers to “the efforts of someone other than a primary or necessary
actor in the commission of a substantive crime.” Id.; see also People v.
Watson, 981 N.E.2d 265, 269-71 (N.Y. 2012) (applying New York
facilitation statute to defendant who brought undercover officer to
dealer, providing dealer opportunity to sell drugs to officer). Opting
to apply this more limited definition, which it determined was
consistent with “terms like ‘aid,’ ‘abet,’ and ‘assist,’” the Court
reversed the court of appeals, which had upheld the defendant’s
conviction based on the common meaning of “facilitate,” and
remanded for further proceedings. Abuelhawa, 556 U.S. at 819-21,
824.

¶20         Similarly, where there is an agreement “to commit an
offense which can only be committed by the concerted action of the
two persons to the agreement, such agreement does not amount to a
conspiracy.” State v. Chitwood, 73 Ariz. 161, 166, 239 P.2d 353, 356
(1951). The law on conspiracy “presupposes that the conspirators
have agreed to commit a specific crime, i.e., conspiring to sell
narcotic drugs.” State v. Stevenson, 171 Ariz. 348, 350, 830 P.2d 869,
871 (App. 1991). Consequently, a simple buy-sell drug transaction
does not constitute a conspiracy. See id.

¶21          For example, in United States v. Lennick, 18 F.3d 814, 816
(9th Cir. 1994), the defendant was convicted of conspiracy to
manufacture, distribute, or possess marijuana and manufacturing
marijuana in excess of fifty plants, both with intent to distribute. On
appeal, among other arguments, the defendant challenged the
sufficiency of the evidence to support his conspiracy conviction. Id.
at 818. The court first noted that “[c]onspiracy, by its nature,
requires the government to prove that at least two persons had an
agreement to commit the underlying offense.” Id. The state had
presented evidence that the defendant sold or gave marijuana to


                                  10
                        STATE v. SIMMONS
                        Decision of the Court

several individuals; however, the court explained that such evidence
only proved distribution, not conspiracy. Id. at 818-19.

¶22            Citing other federal circuit cases, the court observed
that “conspiracy requires proof of ‘an agreement to commit a crime
other than the crime that consists of the sale itself.’” Id. at 819,
quoting United States v. Lechuga, 994 F.2d 346, 347 (7th Cir. 1993) (en
banc); cf. Chitwood, 73 Ariz. at 166, 239 P.2d at 356 (“[W]here one
person agrees with a public official to pay the latter a bribe in
consideration of some illegal benefit to be received by the payer[,]
. . . the agreement to commit bribery merges in the completed act.”).
The court acknowledged that the defendant’s conviction could “still
be valid, notwithstanding the lack of any evidence that [the
defendant] conspired with any particular individual, if the
government proved that [he] must have conspired with some other
individual (known or unknown) in order to accomplish his illegal
purposes.” Lennick, 18 F.3d at 819. But the court found nothing in
the record to support this inference. Id. at 820. Accordingly, it
reversed the defendant’s conspiracy conviction. Id.

¶23           We agree with this reasoning and conclude that a
defendant cannot be convicted of violating § 13-3417(A) when he
acts as a principal in a buy-sell drug transaction between two parties
and there is no evidence of any wire or electronic communication by
the defendant with any person except the other principal. We now
turn to the facts of this case to determine whether the state presented
sufficient evidence showing that Simmons violated § 13-3417(A), as
alleged in counts three, four, eight, nine, and twelve. See Stroud, 209
Ariz. 410, n.2, 103 P.3d at 914 n.2.

¶24          Count three stems from the only transaction in which
Simmons himself was present for the sale of methamphetamine to
the undercover agent. The state relied on evidence that Simmons
had communicated over his cell phone with the agent to arrange the
meeting to show a violation of § 13-3417(A). Such evidence,
however, is insufficient. Simmons was the seller, while the agent
was the buyer; both were necessary principals to the drug
transaction. The state presented no evidence that Simmons used his
phone to “facilitate” the efforts of a third party to complete the sale,



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                        STATE v. SIMMONS
                        Decision of the Court

see Abuelhawa, 556 U.S. at 818, or to “conspire” with a third party to
do so, see Chitwood, 73 Ariz. at 166, 239 P.2d at 356.

¶25           Notably, Simmons’s defense to this particular
transaction was that an acquaintance by the name of “Rayquan” sold
the undercover agent the methamphetamine after Simmons refused.
Rayquan was in the same vehicle as Simmons at the time of the sale
and physically handed the methamphetamine to the agent.
Evidence of the involvement of a third party to the transaction might
suggest that Simmons facilitated Rayquan’s efforts or otherwise
conspired with him.           However, Simmons and Rayquan’s
communications were in person and not over any wire or electronic
device, as required to commit the offense proscribed by § 13-
3417(A). The state therefore presented insufficient evidence to prove
that Simmons violated § 13-3417(A) on January 29. Accordingly, we
vacate Simmons’s conviction for count three. See State v. Garfield,
208 Ariz. 275, n.1, 92 P.3d 905, 907 n.1 (App. 2004) (if evidence
insufficient to support jury’s verdict, we must vacate conviction).

¶26           As to count four, no drug transaction actually occurred
on January 31 because the undercover agent was the only person
who showed up. To show a violation of § 13-3417(A), the state
nevertheless relied on evidence that Simmons used his cell phone to
communicate with the agent to arrange the meeting on January 31.
But, for the same reasons as discussed with count three, that is
insufficient. Both Simmons and the agent were necessary principals
to the transaction. Consequently, we vacate Simmons’s conviction
for count four. See Garfield, 208 Ariz. 275, n.1, 92 P.3d at 907 n.1.

¶27          Count eight involved a third person, Simmons’s
codefendant, Mast. There was thus “someone other than a primary
or necessary actor” whose efforts might have been facilitated by
Simmons or with whom he might have conspired. Abuelhawa, 556
U.S. at 820. But, in order to violate § 13-3417(A), Simmons needed to
use a wire or electronic device to communicate with Mast. The state,
however, presented no evidence showing how the two
communicated regarding the February 5 transaction. In fact, a
detective testified that he was unable to retrieve any data from




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                        STATE v. SIMMONS
                        Decision of the Court

Simmons’s cell phone prior to February 22. 8 The evidence is
therefore insufficient to show that Simmons used it to “facilitate” or
“conspire to commit” a sale of methamphetamine. § 13-3417(A). We
vacate Simmons’s conviction for count eight. See Garfield, 208 Ariz.
275, n.1, 92 P.3d at 907 n.1.

¶28          Like count four, no transaction actually occurred with
respect to count nine because the undercover agent was the only
party to show up to the scheduled meeting on February 11. Also, as
with count four, to prove Simmons violated § 13-3417(A) as alleged
in count nine, the state relied solely on evidence that Simmons used
his cell phone to communicate with the agent. But again both
Simmons and the agent were principals in the transaction, and their
communications alone are insufficient to prove that Simmons
violated § 13-3417(A). See Abuelhawa, 556 U.S. at 820; Chitwood, 73
Ariz. at 166, 239 P.2d at 356. Consequently, we vacate Simmons’s
conviction for count nine. See Garfield, 208 Ariz. 275, n.1, 92 P.3d at
907 n.1.

¶29           Lastly, like count eight, count twelve involved a third
person, Simmons’s other codefendant, Curry, who sold the
undercover agent rock salt. However, also like count eight, the state
presented no evidence to show how Simmons and Curry
communicated. There was no evidence that Simmons used his cell
phone to agree with Curry to sell the agent rock salt or
methamphetamine.         Accordingly, because the state presented
insufficient evidence to prove that Simmons violated § 13-3417(A)
on February 12, we vacate his conviction for count twelve. See
Garfield, 208 Ariz. 275, n.1, 92 P.3d at 907 n.1.

¶30         Fundamental error is an “exceptional rule” with a
“narrow applicability.” State v. Diaz, 168 Ariz. 363, 365-66, 813 P.2d
728, 730-31 (1991). However, we will not hesitate to apply this
doctrine under appropriate circumstances. See Fernandez, 216 Ariz.
545, ¶ 32, 169 P.3d at 650. We conclude this case presents such

      8According  to Simmons, the cell phone he had with him when
he was arrested was new to him and had been activated to receive
calls at his number on February 22.


                                  13
                        STATE v. SIMMONS
                        Decision of the Court

circumstances.        Simply put, Simmons’s convictions, and
corresponding sentences, for violating § 13-3417(A) cannot stand
because his conduct, as presented at trial, was not proscribed by the
statute.9 See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601,
607 (2005); Stroud, 209 Ariz. 410, n.2, 103 P.3d at 914 n.2.

                             Disposition

¶31         For the foregoing reasons, we vacate Simmons’s
convictions and sentences for counts three, four, eight, nine, and
twelve. For the reasons discussed in our separate memorandum
decision, we remand for clarification of Simmons’s sentences on the
remaining counts. We otherwise affirm.




      9By  contrast, Simmons’s conspiracy conviction under § 13-
1003(A) in count fourteen is supported by sufficient evidence. “Any
action sufficient to corroborate the existence of the agreement and to
show that it is being put into effect is sufficient to support the
conspiracy.” State v. Verive, 128 Ariz. 570, 581, 627 P.2d 721, 732
(App. 1981). Here, the undercover agent communicated with
Simmons via his cell phone to arrange the various drug transactions,
but Mast and Curry each showed up on different days to complete
the sales. And, each of the women referred to Simmons during their
verbal exchange with the agent. See State v. Arredondo, 155 Ariz. 314,
317, 746 P.2d 484, 487 (1987) (“Criminal conspiracy need not be, and
usually cannot be, proved by direct evidence.”).


                                  14
