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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JENSEN EDWARD THOMAS, Appellant.

                             No. 1 CA-CR 15-0159
                               FILED 4-5-2016


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201300151
              The Honorable Lawrence C. Kenworthy, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant
                           STATE v. THOMAS
                           Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Michael J. Brown delivered the decision of the Court, in which
Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.


B R O W N, Chief Judge:

¶1            Jensen Edward Thomas was convicted of possession of
dangerous drugs for sale, a Class 2 felony (Count I), possession of
dangerous drugs, a Class 4 felony (Count II), and possession of drug
paraphernalia, a Class 6 felony (Count III). He was sentenced to a mitigated
6-year term of imprisonment on Count I, a concurrent, presumptive 2.5-
year term of imprisonment on Count II, and a 3-year term of probation on
Count III, scheduled to commence upon his release. Thomas argues he was
wrongly convicted of Count II “because simple possession of dangerous
drugs is a necessarily lesser-included offense of possession of dangerous
drugs for sale.” The State agrees, but we are not bound by the State’s
confession of error. State v. Sanchez, 174 Ariz. 44, 45 (App. 1993). For the
reasons that follow, we affirm Thomas’ convictions and sentences.

¶2            On February 2, 2013, law enforcement officers were
positioned outside Thomas’ residence, waiting until he returned home to
execute a search warrant on his residence and vehicle. When Thomas
arrived, the officers approached his truck with their weapons drawn and
identified themselves. Thomas was seated in the driver’s seat with two
female passengers, later identified as his girlfriend and her adult daughter.
After the officers informed Thomas they were there to execute a search of
his property, he commented that “[w]hatever you find in the house is mine.
It’s personal use. It doesn’t belong to the girls.” Moments later, after an
officer read the warrant, Thomas added that “[t]here’s going to be
methamphetamine inside the residence—it’s going to be personal use.”

¶3            While executing the search warrant, the officers seized two
separate portions of methamphetamine from Thomas’ residence, one
weighing 0.40 grams, found inside a green cup that was located in plain
view in the living room, and the other weighing 13.3 grams, found in a
hidden, locked “ammo” box (the key to the box was in Thomas’ vehicle)
located in a different room, as well as scales with a crystalline residue in
plain view. The officers also found two cell phones containing text



                                     2
                            STATE v. THOMAS
                            Decision of the Court

messages from a local telephone number that appeared to be requests to
purchase drugs.

¶4            Thomas contends the State should not have been permitted to
“segment the facts” and “assign[] some [facts] . . . to the possession for sale
charge and the remainder to the simple possession charge.” Specifically,
Thomas argues “that the smaller quantity of drugs found in plain view
were in all likelihood ‘sales samples’ or product that had been removed
from the main stash for ready sale,” and therefore the charges for both
possession for sale and simple possession were multiplicitous. As a
corollary, Thomas further asserts that his convictions for both simple
possession and possession for sale violate the double jeopardy protections
set forth in the federal and state constitutions. Because Thomas did not
raise these arguments in the trial court, we review only for fundamental
error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). “Whether
charges are multiplicitous is a matter of law, which we review de novo.”
State v. Burns, 237 Ariz. 1, 22, ¶ 83 (2015). We likewise review de novo
whether double jeopardy applies. State v. Siddle, 202 Ariz. 512, 515, ¶ 7
(App. 2002).

¶5             A charging document is multiplicitous when the conduct
underlying multiple charges constitutes a single offense rather than
separate and distinct acts. See State v. Via, 146 Ariz. 108, 116 (1985). In a
similar vein, the Double Jeopardy Clause “protects defendants against both
multiple prosecutions and multiple punishments for the same offense.”
State v. McGill, 213 Ariz. 147, 153, ¶ 21 (2006) (internal quotation omitted).
Therefore, the dispositive issue before us on both of Thomas’ claims is
whether the simple possession and possession for sale counts for which he
was charged and convicted constituted a single offense.

¶6             Thomas correctly notes that, when predicated on the same
facts, “[p]ossession of drugs for personal use is a lesser-included offense of
possession of drugs for sale.” See Gray v. Irwin, 195 Ariz. 273, 276, ¶ 12
(App. 1999). Thus, we agree that if the officers had only seized the 13.3
grams of methamphetamine from the ammo box, or only the .40 grams
inside the green cup, there would be insufficient evidence to support both
charges. The evidence presented at trial, however, supports both Counts I
and II, namely, (1) Thomas’ dual admissions, and self-serving statements,
that any drugs found in the house were for his personal use, when
considered together with the small quantity of methamphetamine found in
the green cup in his residence (supporting the charge of simple possession),
and (2) the larger quantity of methamphetamine found in the ammo box in



                                      3
                           STATE v. THOMAS
                           Decision of the Court

his residence, along with the scales and cell phone texts (supporting the
charge of possession for sale).

¶7            Although much of the State’s evidence related to Thomas’
involvement in selling methamphetamine, the prosecutor noted that
Thomas had “fallen on the sword” by admitting he possessed drugs for
personal use. The State also presented evidence that the typical “street-
level” sale quantity for personal use is one-tenth of a gram up to one gram,
and therefore the 0.40 gram was consistent with personal use and the 13.3
grams were consistent with possession for sale. In his closing argument,
the prosecutor argued that Thomas was both a “small-time” drug dealer
and “a user,” and urged the jury to convict Thomas of simple possession
based on the drugs found in the green cup (0.40 gram), as well as possession
of dangerous drugs for sale and possession of drug paraphernalia.
Therefore, because discrete facts support each of those charges, we affirm
Thomas’ convictions and sentences.




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