                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

              RAMONE DEVITT TRAMMELL, Appellant.

                         No. 1 CA-CR 17-0265
                           FILED 11-27-2018


          Appeal from the Superior Court in Maricopa County
                       No. CR2016-102423-001
           The Honorable Alfred M. Fenzel, Judge (Retired)

                             AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

The Heath Law Firm PLLC, Mesa
By Mark Heath
Counsel for Appellant



                              OPINION

Judge Maria Elena Cruz delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.
                           STATE v. TRAMMELL
                            Opinion of the Court

C R U Z, Judge:

¶1            Ramone Devitt Trammell appeals his convictions and
sentences for crimes including possession of narcotic drugs. He argues the
superior court erred by instructing the jury on a lesser-included offense.
We hold that when a defendant asserts an entrapment defense, the court
may grant the State’s request for a lesser-included jury instruction if the
crime is a lesser-included offense and the evidence is sufficient for a
reasonable jury to find that only the lesser offense has been proved.
Because those circumstances are present here, the convictions and
sentences are affirmed.

                  FACTS1 AND PROCEDURAL HISTORY

¶2            Trammell was charged with five crimes involving the sale or
transportation of narcotic drugs to undercover detectives.             As an
affirmative defense, Trammell admitted he knowingly sold narcotic drugs,
but argued the sales resulted from entrapment by the government. Ariz.
Rev. Stat. (“A.R.S.”) § 13-206(A). Over Trammell’s objection, the court
instructed the jury it could find him guilty on the lesser-included offense of
possession of a narcotic drug. The jury found him guilty of one count of
possession of a narcotic drug and four counts of sale of narcotic drugs. He
was sentenced to concurrent sentences amounting to 17.75 years’
imprisonment.

¶3            Trammell timely appealed his convictions and sentences. We
have jurisdiction pursuant to Article 6, Section 9 of the Arizona
Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

¶4            Although Trammell objected to the lesser-included jury
instruction at trial, he did not specify the ground of his objection. See State
v. Toney, 113 Ariz. 404, 408 (1976). For that reason, we review for
fundamental error. State v. Moody, 208 Ariz. 424, 455, ¶ 120 (2004). To
prevail on appeal, he must show that the superior court committed
fundamental error and that the error caused him prejudice. State v.
Escalante, 245 Ariz. 135, 140-42, ¶¶ 16-21 (2018) (clarifying fundamental
error review). Trammell concedes the jury instruction was not material to



1      We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013) (citation omitted).


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                          STATE v. TRAMMELL
                           Opinion of the Court

his convictions for sale of a narcotic drug. Therefore, we review only the
conviction for simple possession of a narcotic drug, count one.

¶5             Generally, the court may instruct the jury on a necessarily
included offense “when [the crime] is lesser included and the evidence is
sufficient to support giving the instruction.” State v. Wall, 212 Ariz. 1, 3,
¶ 14 (2006). The evidence is sufficient when the jury could reasonably find
that only the lesser offense has been proved. Id.

¶6            An exception to the general rule regarding lesser-included
offenses applies when a criminal defendant asserts an entrapment defense.
First, to assert an entrapment defense, the defendant must admit all
elements of the offense charged. A.R.S. § 13-206(A); State v. Soule, 168 Ariz.
134, 135 (1991) (citing State v. Nilsen, 134 Ariz. 431 (1983)). Once admitted,
a defendant may not then negate any of the elements of the offense by
advancing the inconsistent theory of having committed some lesser offense
instead. Soule, 168 Ariz. at 137. The principle that a defendant may not
assert inconsistent defenses has stood firm in the twenty-seven years since
the Soule court reasoned that to allow otherwise would foster perjury by the
defendant and may result in jury confusion. Id. at 136-37; see also State v.
Gray, 239 Ariz. 475, 478, ¶ 11 (2016). We do not contradict that sound
reasoning today.

¶7             This principle does not, however, bar the State from asking for
a lesser-included offense instruction when the defense asserts entrapment.
The State is in a much different position than a defendant. The State has
the burden of proving the elements of the offense, and it may argue to the
jury without inconsistency that the defendant is guilty of a greater offense
but, if proof of a particular element somehow fails, that he is nevertheless
guilty of a lesser offense. This position does not carry the same risk of
perjury or confusion that would result, as discussed in Soule, from a
defendant’s simultaneous argument of entrapment on a greater offense but
guilt on the lesser offense because he did not commit the greater offense.
Moreover, prohibiting the State from seeking a lesser-included offense
when a defendant chooses entrapment as an affirmative defense would
improperly transfer the charging decision from the State to the defendant.
By rule, any charge in an indictment encompasses “all necessarily included
offenses.” Ariz. R. Crim. P. 13.1(e). Defendants cannot use the selection of
a defense to determine which offenses the State may press.

¶8           Citing State v. Altman, Trammel argues the superior court
erred by instructing the jury on the lesser-included offense because his
admissions conclusively proved the elements of the greater crime. 107 Ariz.


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                           STATE v. TRAMMELL
                            Opinion of the Court

93 (1971). Altman affirmed the denial of a lesser-included offense
instruction sought by a defendant who had alleged entrapment as a
defense. Id. at 96. The court reasoned that in such a case, the jury
necessarily could not conclude that the State had failed to prove the greater
and convict on the lesser: “If the jury believed that entrapment occurred
they would be required to acquit appellant; however, if they did not believe
the defense of entrapment then they would be required to convict of the
crime charged.” Id.

¶9             We decline to apply that reasoning to a conviction obtained
after the State sought the lesser-included offense instruction. As noted, any
charge in an indictment or information is “a charge of that offense and all
necessarily included offenses.” Ariz. R. Crim. P. 13.1(e). No logic supports
the notion that a defendant has the power to limit the State’s discretion to
pursue a lesser-included offense by choosing to assert entrapment.
Moreover, notwithstanding Altman’s reasoning, as the finder of fact, a jury
is free to weigh and assess witness credibility, which includes a testifying
defendant’s motivation. See, e.g., State v. Clemons, 110 Ariz. 555, 556-57
(1974) (citations omitted) (“No rule is better established than that the
credibility of the witnesses and the weight and value to be given to their
testimony are questions exclusively for the jury.”). Indeed, in Clemons, our
supreme court affirmed the conviction of a defendant who alleged
entrapment as a defense to attempted sale of drugs. Id. at 557-58. The
defendant argued that his account of facts constituting entrapment was
undisputed, but the court held the defendant’s credibility was for the jury
to decide: “The jury had the right to disbelieve the whole of appellant’s
testimony or believe in part and disbelieve in part.” Id. at 557.

¶10            By the same token, the jury was free to accept all of
Trammell’s admission, or part of it, or none of it. Id.; see also State v. Ruiz,
236 Ariz. 317, 323, ¶ 16 (App. 2014). Possession of narcotic drugs is a lesser-
included offense of sale of narcotic drugs. See State v. Cheramie, 218 Ariz.
447, 449, ¶ 11 (2008). Under the evidence presented, a reasonable jury could
find that while Trammell was entrapped into selling narcotic drugs to the
undercover officer—and therefore not criminally liable for that offense—he
was nonetheless guilty of simple possession of narcotic drugs because his
possession of the drugs before the sale was not the result of any police
interaction.

¶11           We hold that when there is evidence of possession of drugs
independent of any entrapment conduct, and the State so requests, the
court may instruct the jury on the lesser-included offense. Accordingly, the
court did not err, let alone fundamentally err, in instructing the jury.


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                 STATE v. TRAMMELL
                  Opinion of the Court

                      CONCLUSION

¶12   Trammell’s convictions and sentences are affirmed.




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




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