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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         DAVID CRAMER, Appellant.

                              No. 1 CA-CR 14-0157
                               FILED 7-28-2015


            Appeal from the Superior Court in Maricopa County
                         No. CR2012-005939-001
                 The Honorable Jeanne M. Garcia, Judge

                         AFFIRMED AS MODIFIED


                                    COUNSEL

Office of the Attorney General, Phoenix
By William Scott Simon
Counsel for Appellee

Office of the Maricopa County Public Defender, Phoenix
By Terry J. Reid
Counsel for Appellant
                           STATE v. CRAMER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Peter B. Swann joined.


G O U L D, Judge:

¶1            Defendant, David Cramer, appeals from his convictions and
sentences for one count of possession of narcotic drugs for sale and six
counts of misconduct involving weapons. He challenges two of the trial
court’s evidentiary rulings, and he contends the prosecutor engaged in
misconduct. Defendant also argues the drug charge is duplicitous. Lastly,
Defendant contends he is entitled to an additional day of presentence
incarceration credit. For the reasons that follow, we agree that the court
erred in computing Defendant’s sentence. In all other respects, we affirm.

                             BACKGROUND

¶2             As police were surveilling Defendant’s home for potential
illicit drug activity, they observed D.S. arrive at the residence, enter, and
drive away ten minutes later. Officers followed D.S., and Detective
Buffington effectuated a traffic stop. D.S. informed Buffington that there
were “pills” in his car, and upon further questioning, D.S. admitted he had
just purchased the pills from Defendant. Two of the pills were oxycodone,
a narcotic that D.S. had been buying from Defendant for the past year. Soon
thereafter, police arrested Defendant as he drove from his home.

¶3            During a search later that evening of Defendant’s home and
vehicles pursuant to a warrant, officers discovered a number of pills,
including oxycodone, and prescription bottles for oxycodone and other
medications bearing Defendant’s name. Police also found on Defendant’s
cell phone multiple text messages from D.S. and other individuals
requesting to purchase oxycodone. Texts between Defendant and D.B. just
before Defendant’s arrest indicated Defendant was going to meet D.B. to
purchase 15 oxycodone pills for $42.00 to $43.00 each. Defendant had
approximately $600.00 in his pocket when he was arrested. Further, police
discovered two handguns in Defendant’s kitchen and two in the master
bedroom. A “drug ledger” was located in one of Defendant’s vehicles.




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                           STATE v. CRAMER
                           Decision of the Court

¶4           The State charged Defendant with one count of possession of
narcotic drugs for sale, two counts of possession of dangerous drugs for
sale, and eight counts of misconduct involving weapons. The weapons
charges were based on allegations that Defendant was a prohibited
possessor and that he knowingly used or possessed the four handguns
during the commission of the drug offenses.

¶5            The court entered a judgment of acquittal as to two of the
misconduct involving weapons charges. The jury acquitted Defendant of
the two charges relating to dangerous drugs and returned guilty verdicts
as to the remaining counts. The court ordered concurrent sentences of
imprisonment and credited Defendant with 568 days of presentence
incarceration. Defendant appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -
4033(A)(1).1

                              DISCUSSION

I.    Prior Consistent Statements

¶6            D.S. testified at trial that he purchased oxycodone from
Defendant, and he also explained he was testifying pursuant to a
testimonial agreement with the State. After D.S. testified, and over
Defendant’s objection on hearsay grounds, the court admitted in evidence
a video recording of D.S.’s police interview wherein D.S. made statements
consistent with his trial testimony. The court reasoned the recording was
admissible under Arizona Rule of Evidence (“Rule”) 801(d)(1)(B) (2013)2 as
a prior consistent statement to rebut Defendant’s express or implied charge
during D.S.’s cross-examination that D.S. fabricated testimony because of
the plea agreement with the State. Defendant subsequently moved for a
mistrial, arguing the recorded interview did not fall within the gambit of
Rule 801(d). The court denied the motion.

¶7           Rule 801(d)(1)(B) allows for the admission of a trial witness’s
prior statements that are consistent with his or her testimony “to rebut an
express or implied charge that the declarant recently fabricated” statements
made at trial. Ariz. R. Evid. 801(d)(1)(B). To be admissible, the prior



1     We cite to a statute’s current version unless otherwise noted.

2      Because the rule was amended and renumbered effective January 1,
2015, we cite the version in effect at the time of trial.


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                            Decision of the Court

statement must have been made before the motive to fabricate arose. State
v. Martin, 135 Ariz. 552, 553 (1983).

¶8             Defendant argues that the record does not support the trial
court’s determination that D.S.’s plea agreement provided the motive to
testify falsely; rather, Defendant contends D.S.’s motive arose before the
interview when D.S. was stopped by police. In support, Defendant points
to D.S.’s testimony regarding his belief that if he cooperated with the
officers investigating Defendant’s drug activity, he would not face
prosecution for his own illicit possession of prescription pills. Indeed,
Defendant asserts: “[I]t was clear that [D.S.] believed an agreement [with
police] had been reached.” Defendant also contends he attacked D.S.’s
credibility “on multiple fronts[;]” thus, the court erred in finding Defendant
focused on the plea agreement as the basis for challenging D.S.’s veracity at
trial. We review the court’s admission of evidence for an abuse of
discretion. State v. Tucker, 205 Ariz. 157, 165, ¶ 41 (2003).

¶9            We agree with Defendant that the record indicates D.S.
wanted to cooperate with police in their investigation of Defendant’s drug
dealings. Thus, D.S. arguably had a motive to untruthfully implicate
Defendant when police interviewed him. However, the record does not,
contrary to Defendant’s argument, indicate D.S. had an agreement with the
State to cooperate in the investigation at the time he was interviewed.
Rather, D.S. subjectively believed his cooperation would result in favorable
treatment with respect to his illegal activity. Moreover, the record also
clearly demonstrates that Defendant impeached D.S. with, among other
things, his subsequent plea agreement with the State. Indeed, during her
opening statement, Defense counsel asserted:

       You will hear that [D.S.] in exchange for getting up on that
       stand and telling you his story has received a very favorable
       plea agreement from the state for testifying during the course
       of this trial, and for getting up on that stand and testifying for
       the state he spared himself significant time in custody because
       he's getting up on that stand.

¶10           On this record, we cannot conclude that the court abused its
discretion in admitting the recorded interview pursuant to Rule
801(d)(1)(B) to rebut Defendant’s use of the plea agreement to impeach D.S.3


3      Because we conclude the court did not abuse its discretion in
admitting the recorded interview, we need not separately address the
court’s denial of Defendant’s motion for mistrial.


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                            STATE v. CRAMER
                            Decision of the Court

In any event, even if the court did err in admitting this evidence, the error
was harmless based on the overwhelming evidence of Defendant’s guilt,
including D.S.’s trial testimony, the pills and drug ledger found in
Defendant’s home and vehicles, and the text messages on Defendant’s
phone regarding sales of oxycodone. Furthermore, D.S. was subjected to
thorough cross-examination at trial. See State v. Hoskins, 199 Ariz. 127, 144,
¶ 66 (2000) (concluding that any error in admitting a witness’s prior
consistent statements was harmless when they were included in witness’s
testimony and the witness was thoroughly cross–examined).

II.    Text Messages Regarding Sales

¶11          At trial, the State introduced text messages from “Mondo”
seeking to purchase narcotics from Defendant. Defendant argues this
evidence is improper other-act evidence under Rule 404(b) admitted to
show his propensity for selling narcotics. We disagree.

¶12           Rule 404(b) prohibits evidence of other acts “to prove the
character of a person in order to show action in conformity therewith.” The
text messages here are not evidence of Defendant’s other conduct used to
prove he possessed narcotics for sale. Rather, the messages between
Defendant and Mondo constitute relevant circumstantial evidence that
Defendant knowingly possessed narcotics, not merely for his own personal
use, but to sell. See State v. Chavez, 225 Ariz. 442, 444, ¶ 9 (App. 2010)
(concluding text messages between prospective drug purchasers and
defendant are circumstantial evidence of defendant’s possession of drugs
for sale). As such, Rule 404(b) is inapplicable, and we reject Defendant’s
argument.

III.   Prosecutorial Misconduct

¶13            Defendant contends numerous instances of prosecutorial
misconduct denied him a fair trial. Specifically, he argues the prosecutor
(1) improperly argued facts that were not in evidence; (2) invited the jury
to “speculate and guess” as to why Defendant possessed empty oxycodone
bottles; and (3) improperly elicited inadmissible hearsay.

¶14           Prosecutorial misconduct is not merely “legal error,
negligence, mistake, or insignificant impropriety, but, taken as a whole,
amounts to intentional conduct which the prosecutor knows to be improper
and prejudicial.” Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984). To
justify reversal, the misconduct “must be ‘so pronounced and persistent
that it permeates the entire atmosphere of the trial.’” State v. Lee, 189 Ariz.
608, 616 (1997) (citations omitted). Even then, reversal is not required


                                      5
                            STATE v. CRAMER
                            Decision of the Court

unless the defendant was denied a fair trial. State v. Bible, 175 Ariz. 549, 600
(1993).

       A.     A.C.

¶15           During their surveillance, police officers trailed a vehicle
leaving Defendant’s home. The officers testified that the driver, A.C., did
not immediately pull over when they attempted a traffic stop. After A.C.
eventually stopped, he consented to a search of his vehicle, and the officers
found no drugs. Detective Buffington testified that A.C. could be the
“Mondo” who had texted Defendant earlier that day about purchasing
oxycodone.

¶16           During the officers’ direct testimony, the court sustained
Defendant’s objections when the prosecutor specifically asked whether
A.C. delayed pulling over for a long enough time to “get rid of something”
or to “take two or three small pills and get rid of them[.]” During cross-
examination Defense Counsel questioned one of the officers involved in the
stop. The line of questioning indicated that the officers had not observed
A.C. throw any drugs out the window of his vehicle. On redirect, the
prosecutor elicited testimony showing that the officers were not in a
position to observe whether drugs were thrown out of the car.

¶17           Defendant argues the prosecutor committed misconduct
during closing arguments when he stated: ”If you will remember when
[A.C.] was pulled over he didn’t pull over right away. It was getting dark
and the officers didn’t get a good view. Could he have gotten rid of the two
pills he purchased from the Defendant? I would suggest yes.”

¶18             Defendant did not object to the prosecutor’s statements; thus,
we review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567,
¶ 19 (2005) (failure to object to alleged trial error results in fundamental
error review). To obtain relief under fundamental error review, Defendant
has the burden to show that error occurred, the error was fundamental and
that he was prejudiced thereby. See id., at, 567-68, ¶¶ 20-22. Fundamental
error is error that “goes to the foundation of his case, takes away a right that
is essential to his defense, and is of such magnitude that he could not have
received a fair trial.” Id. at 568, ¶ 24. The showing required to establish
prejudice “differs from case to case.” Id. at 568, ¶ 26. A defendant “must
show that a reasonable jury, applying the appropriate standard of proof,
could have reached a different result.” Id. at 569, ¶ 27.

¶19           Defendant’s argument fails. The prosecutor’s arguments are
reasonable inferences based on the evidence. The testimony of the officers


                                       6
                            STATE v. CRAMER
                            Decision of the Court

established that they were not able to view whether A.C. had thrown drugs
out of his car before he was stopped. See supra at ¶ 16.

       B.     Dustin H. Text Messages

¶20           When Defendant was arrested, an officer drove Defendant’s
car back to Defendant’s home. The officer found a cell phone in the vehicle.
Another officer retrieved the phone and placed it in the garage. Thus, while
Defendant was detained by police, his cell phone was in his garage where
officers waited for Detective Buffington to obtain the search warrant.

¶21           During this time, someone named “Dusty” sent a text to
Defendant’s phone indicating that he was on the way to Defendant’s home
to purchase narcotic pills. In response, two outgoing texts on Defendant’s
phone read: “Yeah just got out of the shower. Come on over. When you
getting here?” Minutes later, at 10:43 p.m., a text message indicates “Dusty”
arrived.

¶22            At trial, Detective Cano testified Dustin H. walked into
Defendant’s garage between 10:25 p.m. and 11:10 p.m. whereupon Cano
arrested and Mirandized4 Dustin. The trial court sustained objections to the
State’s attempts to illicit testimony connecting “Dusty” to Dustin H. The
State did elicit testimony, however, from Detective Buffington that during
drug investigations when a person is arrested, his or her phone may
thereafter ring, and “sometimes officers answer those phones.” Defendant
successfully objected to the State introducing evidence of a particular officer
responding to Dusty’s text messages on Defendant’s phone.

¶23            During closing arguments, defense counsel argued that,
because Defendant was detained at the time of the aforementioned text
conversation with Dusty, “[i]t is not [Defendant]. . . . I suggest to you that
there is a reasonable doubt whether that phone at all is [Defendant’s] phone
since there are texts going out of that phone long after he was in custody.”
In rebuttal, the prosecutor argued:

       We also know for about an hour and a half the officers were
       waiting in that garage and other areas for the search warrant
       to be signed because they went into the house at about
       midnight. So if that phone is sitting there, there are officers
       standing around waiting and there are text messages coming in,



4      Miranda v. Arizona, 384 U.S. 436 (1966).


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                            STATE v. CRAMER
                            Decision of the Court

      should I come over; should I come over. It is not a huge leap of logic
      that one of them may have picked it up.

      [DEFENSE COUNSEL]: Objection, facts not in evidence.

      THE COURT: Overruled. You may continue.

      [PROSECUTOR]: It is not a huge leap of logic to think that one of
      them may have picked it up and said yeah, sure come on by and we
      will see who shows up and we will talk to them. Can I tell you that
      that's what happened? No, because nobody stood up there
      and testified to that but that's a logical inference and it
      explains where there would be a text message after he is in
      custody. The fact is the vast majority of these text messages
      and really the most important ones are from the Defendant
      himself and they are from before he was in custody despite
      what the defense tries to tell you. (Emphasis added).

¶24           Defendant contends the italicized language amounted to an
improper invitation to the jury “to consider unsworn evidence that a police
officer responded to a text message, that Dustin [H.] was the Dusty in the
text messages, and to infer that Dustin [H.] was a criminal suspect as he was
provided with Miranda warnings.”

¶25           We disagree. The prosecutor’s comments are reasonable
inferences from the evidence to explain the existence of text messages on
Defendant’s phone while he was in custody, especially in response to
Defendant’s closing argument asserting the cell phone in question did not
belong to him. See State v. Zaragoza, 135 Ariz. 63, 68 (1983) (“Wide latitude
is given in closing arguments and counsel may comment on the evidence
and argue all reasonable inferences therefrom.”). No misconduct occurred,
let alone misconduct that deprived Defendant a fair trial.

      C.     Empty Prescription Bottles

¶26          Referring to empty medication bottles discovered in
Defendant’s home, the prosecutor argued the following during closing:

      What is kind of interesting is he has also got one or two empty
      bottles of Oxycodone laying around. Now, why do you do
      that? Well, I guess we could speculate about that; but if you
      are going to go get additional Oxycodone not with a
      prescription, you would probably want a container to put
      those in that has your name and Oxycodone as a prescription


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                           STATE v. CRAMER
                           Decision of the Court

       on it. So if you get caught with them, you don't get in trouble.
       That might be a reason that you have empty Oxycodone
       bottles laying around.

¶27           Defendant asserts the prosecutor’s argument reflects an
improper invitation to the jury to “speculate and guess” as to Defendant’s
“intent[.]” Again, Defendant did not object to the prosecutor’s argument;
thus, we review for fundamental error.

¶28           The record does not support Defendant’s contention. The
prosecutor’s comments are reasonable inferences based on the undisputed
evidence of the empty bottles found on his property. This is especially so
based on the wide latitude afforded counsel during closing arguments.

       D.     Conversation at Pharmacy

¶29           During the investigation into Defendant’s suspected drug
activities, Detective Buffington trailed Defendant to a pharmacy where
Buffington observed Defendant attempting to fill a prescription.
Buffington testified that, while he was inside the pharmacy, he observed
Defendant at the drive-through window and engage in a conversation with
a pharmacy technician. The court sustained an objection by Defendant and
ruled Buffington could not testify about statements the technician made,
but he could testify as to his observations of the encounter between
Defendant and the technician. Thereafter, defense counsel questioned
Detective Buffington about his observations of the pharmacist’s interaction
with the Defendant.

¶30           On rebuttal, the prosecutor asked Buffington if he could hear
what the pharmacy technician stated to the Defendant. Defense counsel
objected on the grounds of hearsay and the objection was overruled by the
court.

¶31            Regarding the questions on rebuttal, Defendant argues: “This
incident illustrates the prosecutor’s disregard for [Defendant’s] right to a
fair trial conducted within the rules of evidence. The prosecutor did not call
the pharmacy technician to testify, therefore, any statements by the
technician were inadmissible hearsay. However, the prosecutor’s line of
questioning left no doubt as to what the technician said.”

¶32             We find no misconduct here. Detective Buffington did not
testify as to the content of any statement made by the pharmacy technician,
he merely testified he could hear and understand him while the technician
spoke with Defendant. However, even if “the prosecutor’s line of


                                      9
                             STATE v. CRAMER
                             Decision of the Court

questioning left no doubt as to what the technician said,” and therefore
amounted to an improper admission of hearsay evidence, this legal error
does not rise to the level of misconduct. See Pool, 139 Ariz. at 108-09. And
any error in this respect was harmless, because D.S., in the recorded police
interview, stated Defendant had informed him of the pharmacist’s refusal
to refill a prescription. See, e.g., State v. Shearer, 164 Ariz. 329, 339-40 (App.
1989) (holding that the introduction of inadmissible evidence was harmless
error when said evidence was cumulative to and consistent with other trial
testimony).

¶33          Because we conclude none of the examples Defendant raises
amount to prosecutorial misconduct individually, we reject his argument
that they cumulatively denied him a fair trial.

IV.    Duplicitous Charge

¶34            Defendant argues the trial court fundamentally erred in
allowing the State to proceed on a duplicitous charge because the jury’s
verdict on the possession of narcotics for sale did not indicate whether the
sale to D.S. constituted the criminal act or, alternatively, whether the sale to
A.C. did. According to Defendant, the prosecutor argued that Defendant
committed two criminal acts, one sale to D.S. and one to A.C., and the court,
in order to ensure unanimity of a verdict, was required either to order the
State to choose which act it was proceeding with or to instruct the jury that
it must unanimously agree on the act to which it was rendering a verdict.

¶35            When evidence of more than one criminal act is introduced at
trial to prove a single charged offense, a defendant faces inadequate notice
of the charge he must defend, there exists the danger of a non-unanimous
jury verdict, and pleading double jeopardy in a later prosecution can be
impossible. State v. Klokic, 219 Ariz. 241, 244, ¶ 12 (App. 2008). Arizona
courts have referred to this scenario as a “duplicitous charge” as opposed
to a “duplicitous indictment,” the latter of which refers to an indictment
that charges two or more separate acts in a single count. Klokic, at 243-44,
¶¶ 10-12.

¶36           If the State presents evidence of multiple criminal acts to
prove a single count, the trial court “must either require ‘the state to elect
the act which it alleges constitutes the crime, or instruct the jury that they
must agree unanimously on a specific act that constitutes the crime before
the defendant can be found guilty.’” Id. at ¶ 14, quoting State v. Schroeder,
167 Ariz. 47, 54 (App. 1990) (Kleinschmidt, J., concurring). Violation of the




                                       10
                           STATE v. CRAMER
                           Decision of the Court

right to a unanimous verdict can constitute fundamental error. State v.
Davis, 206 Ariz. 377, 390, ¶ 64 (2003).

¶37           Here, Defendant did not face a duplicitous charge and its
attendant problems. The State charged him with a single count of
possession of narcotic drugs for sale pursuant to A.R.S. § 13-3408(A)(2).
Had the State charged him with a single count of sale of narcotic drugs under
A.R.S. § 13-3408(A)(7), the evidence presented in this case regarding the
separate sales to D.S. and A.C. could have resulted in a duplicitous charge.
However, based on the charge in the indictment, the separate sales served
as circumstantial evidence that Defendant committed one criminal act,
possessing narcotics for sale. Moreover, Defendant challenged the charge
by arguing he possessed the narcotics for personal use. Thus, the court’s
failure to cure whatever defect occurred as a result of the evidence of
multiple sales did not deny Defendant his right to present his defense.
Defendant, therefore, suffered no prejudice. See State v. Whitney, 159 Ariz.
476, 480. No fundamental error occurred.

V.    Sentence

¶38           Defendant asserts, and the State concedes, that the trial court
incorrectly calculated Defendant’s time served. We agree. The record
reveals that Defendant was taken into custody on July 25, 2012. He
remained in custody until he was sentenced on February 14, 2014.
Defendant, therefore, was incarcerated for a total of 569 days prior to
sentencing, and he should be awarded one additional day of presentence
incarceration credit. We modify the sentence accordingly. See Ariz. R.
Crim. P. 31.17(b); State v. Stevens, 173 Ariz. 494, 495–96 (App. 1992)
(correcting a miscalculation in credit by modifying the sentence without
remanding to the trial court).




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                         STATE v. CRAMER
                         Decision of the Court

                            CONCLUSION

¶39           We award Defendant an additional day of presentence
incarceration credit. In all other respects, Defendant’s convictions and
sentences are affirmed.




                                 :ama




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