                             NOTICE: NOT FOR PUBLICATION.
      UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
             LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                       IN THE
                ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                          STATE OF ARIZONA, Appellee,

                                           v.

                     DONNIE MONROE TWIGGS, Appellant.

                                No. 1 CA-CR 13-0305
                                 FILED 12-02-2014


              Appeal from the Superior Court in Maricopa County
                           No. CR2012-009266-001
                    The Honorable Robert E. Miles, Judge

                                     AFFIRMED


                                      COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

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



                          MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in which
Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.


N O R R I S, Judge:

¶1            Donnie Monroe Twiggs appeals his convictions and sentences for
three counts of possession of narcotic drugs and two counts of possession of drug
paraphernalia. On appeal, Twiggs argues the superior court should not have, first,
denied his motion to dismiss for prosecutorial vindictiveness and second,
enhanced his sentences because a jury did not find he was on community
supervision at the time of his offenses. As we explain, we disagree with Twiggs’
first argument, and the record fails to demonstrate reversible error as to his second
argument. We therefore affirm his convictions and sentences.

                 FACTS AND PROCEDURAL BACKGROUND

¶2            At about midnight on September 17, 2011, Twiggs fled from the
police when they attempted to stop him for not having a fixed light on his bicycle.
After stopping Twiggs, one of the officers saw Twiggs throw something. The
police searched the route Twiggs had fled and discovered two baggies of crack
cocaine and a bottle of morphine pills. Subsequently, a grand jury indicted Twiggs
on one count of possession of crack cocaine, one count of possession of morphine,
and one count of possession of drug paraphernalia, specifically “bag(s) and/or pill
bottle” (“2011 case”).

¶3            During trial, Twiggs moved to preclude admission of the larger
baggie of crack cocaine, arguing that although the police had field-tested what was
in the bag they had failed to submit it to a laboratory for confirmation of the
results. The superior court precluded testimony on the nature of the substance in
the larger baggie.

¶4             Despite the prosecutor’s attempts to limit the testimony from an
officer who had seized the larger baggie but had not conducted the field testing,
the officer repeatedly referred to the contents as crack cocaine. As a result, over
the prosecutor’s objection, the superior court granted Twiggs’ request for a
mistrial. The superior court noted, however, that “the record should be
abundantly clear that there was nothing that was done wrong by the State, and I
don’t think there was any malus [sic] from the officer.” At that time, the


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                                 STATE v. TWIGGS
                                Decision of the Court

prosecutor stated that in light of defense counsel’s arguments, which he expected
would be renewed at the next trial, he was going to have the baggie tested, and
might file additional charges.

¶5            The prosecutor subsequently obtained a new indictment against
Twiggs (“2012 case”). The grand jury indicted Twiggs for a second count of
possession of crack cocaine and for a second count of possession of drug
paraphernalia, along with the original count of possession of morphine, for a total
of five counts, instead of three. On the State’s motion, the court then dismissed
the 2011 case without prejudice. The prosecutor also filed an additional allegation
of aggravating circumstances other than prior convictions, that is, “indicia of sale.”

¶6             Twiggs moved to dismiss the 2012 case for prosecutorial
vindictiveness. Twiggs argued the timing and the absence of any evidentiary
necessity for the additional two charges, and the absence of any new information
to support the “indicia of sale” aggravator demonstrated the prosecutor was
motivated by a desire to punish Twiggs for obtaining a mistrial. The court denied
the motion, reasoning that under the totality of the circumstances, “the decision to
re-charge can be best explained and characterized here as an attempt to ensure
proper admission of evidence at trial and not as a penalty imposed on the
defendant for obtaining a mistrial.”

                                    DISCUSSION

I.      Alleged Prosecutorial Vindictiveness

¶7            Twiggs argues that the superior court abused its discretion in
denying his motion to dismiss the 2012 case for prosecutorial vindictiveness. On
this record, we disagree. State v. Brun, 190 Ariz. 505, 506, 950 P.2d 164, 165 (App.
1997) (appellate court reviews superior court’s ruling on prosecutorial
vindictiveness for abuse of discretion).

¶8             A prosecutor has broad discretion over charging decisions, and is
entitled to amend the charges or file new charges before trial as the matter
proceeds and new facts come to light. See, e.g., United States v. Goodwin, 457 U.S.
368, 381-84, 102 S. Ct. 2485, 2492-94, 73 L. Ed. 2d 74 (1982); State v. Jahns, 133 Ariz.
562, 568-69, 653 P.2d 19, 25-26 (App. 1982). The prosecution may not bring
additional charges, however, simply to penalize a defendant for exercising his
legal rights. Blackledge v. Perry, 417 U.S. 21, 27-29, 94 S. Ct. 2098, 2102-03, 40 L. Ed.
2d 628 (1974).

¶9             A defendant may demonstrate “prosecutorial vindictiveness” in two
ways.    State v. Mieg, 225 Ariz. 445, 447, ¶ 11, 239 P.3d 1258, 1260 (App. 2010).


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                                 STATE v. TWIGGS
                                Decision of the Court

“First, a defendant may show actual vindictiveness, i.e., he ‘may prove through
objective evidence that a prosecutor acted in order to punish him for standing on
his legal rights.’” Id. at 447, ¶ 11, 239 P.3d at 1260 (citations omitted). Twiggs has
not claimed that the prosecutor in this case acted with actual vindictiveness.

¶10            Second, “because ‘motives are complex and difficult to prove,’ a
defendant may rely on a presumption of vindictiveness if the circumstances
establish a ‘realistic likelihood of vindictiveness.’” Id. at 448, ¶ 11, 239 P.3d at 1261
(citations omitted). The presumption arises only if the defendant demonstrates,
under the totality of the circumstances, “a realistic likelihood that the added
charge was motivated by prosecutorial vindictiveness.” See id. at 448-49, ¶¶ 15-
17, 239 P.3d at 1261-62. “If a defendant makes a prima facie showing that the
charging decision is ‘more likely than not attributable to vindictiveness’ by the
prosecutor, the burden shifts to the prosecutor to overcome the presumption ‘by
objective evidence justifying the prosecutor’s action.’” Id. at 448, ¶ 12, 239 P.3d at
1261 (citations omitted).

¶11           The superior court did not indicate whether it had concluded Twiggs
had made a sufficient showing to rely on a presumption of vindictiveness. Even if
we assume the court reached such a conclusion, the prosecutor provided sufficient
objective evidence to overcome the presumption.

¶12           The prosecutor stated, “the refiling, the new charges [are] all in
response to the arguments the defense made in the original trial . . . .” The
prosecutor explained that if he had simply submitted the larger baggie of crack
cocaine for testing and offered it at a second trial along with the smaller baggie to
prove the one count of possession of crack cocaine originally charged, Twiggs no
doubt would have moved to dismiss the charge for duplicity. The prosecutor thus
avoided this potential duplicity problem in the 2012 case by charging two counts
of possession of crack cocaine for the two bags seized by the police. And, the
prosecutor explained he had sought the additional possession of drug
paraphernalia charge to avoid a potential duplicity problem with the original
single count of possession of drug paraphernalia based on either possession of the
“bag(s) and/or pill bottle.” Although the court in the 2011 case had refused to
dismiss this charge for duplicity, it nevertheless noted the charge was arguably
duplicitous, but any problem with duplicity could be cured through instructions
and an appropriate verdict form that required the jury to specify whether it
unanimously found that Twiggs possessed the bottle, the bags, or both. The
prosecutor avoided this duplicity problem in the 2012 case by obtaining an
indictment for two counts of possession of drug paraphernalia, one for the bottle,
and the other for the bags used to contain the crack cocaine. The prosecutor’s




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                                 STATE v. TWIGGS
                                Decision of the Court

presentation of this objective evidence was sufficient to rebut any presumption of
vindictiveness for filing the two additional charges.

¶13             The prosecutor also presented objective evidence to rebut any
presumption of vindictiveness in the filing of the additional aggravator for
“indicia of sale.” The prosecutor told the superior court the case had originally
been “referred to the county attorney as possession of narcotic drugs for sale,
which is a class 2 felony and the state exercised restraint originally in charging it.”
He stated he had reviewed “the tactics of the defense, the arguments that
succeeded, what happened in the first trial,” and had considered the likelihood
that defense counsel would argue addiction as a mitigating factor, and filed the
“indicia of sale” aggravator solely to rebut any such argument. The addition of a
second aggravator for “indicia of sale” exposed Twiggs to the possibility of three
additional years in prison. See Ariz. Rev. Stat. (“A.R.S.”) § 13-703(C), (J) (Supp.
2014).1 The prosecutor explained however, that he had no intention of
recommending a longer sentence than he had indicated he would be seeking in
the prior trial based on the single aggravator (of prior convictions), that is, 12 years.
The State did ultimately recommend that Twiggs be sentenced to 12 years in
prison, not explicitly relying on “indicia of sale,” but rather on a past criminal
history of selling narcotic drugs and resisting arrest, “precisely what occurred in
this case as well.” We are persuaded that this objective evidence rebutted any
presumption of vindictiveness as well, and accordingly conclude the superior
court did not abuse its discretion in denying the motion to dismiss.

II.    Enhanced Sentencing

¶14           Relying on Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186
L. Ed. 2d 314 (2013), Twiggs next argues we should vacate his sentences because
the superior court and not the jury found he was on community supervision at the
time of the offenses and thus the court improperly imposed enhanced sentences.

¶15           In Alleyne, the Supreme Court held that any fact that increases the
mandatory minimum sentence must be submitted to the jury and proved beyond
a reasonable doubt. Id. at 2163. This court followed Alleyne in State v. Large, 234
Ariz. 274, 321 P.3d 439 (App. 2014), and held that the fact that a defendant was on
release at the time of commission of the offenses, and thus subject to enhanced
sentencing pursuant to A.R.S. § 13-708 (Supp. 2014), must be found by a jury
beyond a reasonable doubt. See Large, 234 Ariz. at 278-80, ¶¶ 12-16, 321 P.3d at
443-45.

       1Although   the Arizona Legislature amended certain statutes cited in this
decision after the date of Twiggs offenses, the revisions are immaterial to the
resolution of this appeal. Thus, we cite to the current version of these statutes.


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                                STATE v. TWIGGS
                               Decision of the Court


¶16           Although Alleyne was decided two months after the court sentenced
Twiggs, because Alleyne announced a new rule of constitutional law, its holding is
applicable to all cases pending on direct review. See id. at 280, ¶ 16, 321 P.3d at
445. Moreover, although Twiggs did not object to the error, we follow Large in
concluding that under the circumstances such error is nevertheless subject to
review for harmless error. See id. at 280, ¶ 18, 321 P.3d at 445.

¶17           Here, the error was harmless. At the hearing on prior convictions
and release status, Twiggs’ parole officer testified Twiggs was on community
supervision for a prior criminal case, CR2002-018026, at the time of the offenses.
The State also presented testimony that Twiggs’ fingerprints matched those on a
certified copy of a pen pack showing his prior convictions, including the one in CR
2002-018026. Twiggs did not challenge the parole officer’s testimony, or offer any
evidence to dispute the fact that he was on community supervision at the time of
the offenses. Based on the uncontroverted evidence, no reasonable jury could have
concluded that Twiggs was not on community supervision at the time of the
offenses. See id. at 280, ¶19, 321 P.3d at 445 (error in not submitting parole status
to jury was harmless, because no reasonable jury could have found that defendant
was not on parole at the time).

                                    Conclusion

¶18           For the foregoing reasons, we affirm Twiggs’ convictions and
sentences.




                                     :gsh




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