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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        SHERRIE YOUNG, Appellant.

                             No. 1 CA-CR 16-0361
                               FILED 9-14-2017


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201500092
                The Honorable Robert J. Higgins, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Saline Law Group, PLLC, Snowflake
By Jon H. Saline
Counsel for Appellant
                            STATE v. YOUNG
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Patricia A. Orozco1 joined.


B R O W N, Judge:

¶1           Sherrie Young appeals her convictions and sentences for sale
of marijuana and misconduct involving weapons. For the following
reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On December 17, 2013, two detectives working as part of a
multi-agency drug trafficking team enlisted the help of a confidential
informant to conduct a “controlled buy” from R.J., the target of an
investigation. After a purchase was arranged, the detectives searched the
informant and his car to ensure he did not have drugs, paraphernalia, or
money. The detectives then photographed five twenty-dollar bills, gave
them to the informant for the drug purchase, equipped the informant with
a recording device, and followed the informant in separate cars to R.J.’s
residence.

¶3             After briefly entering the residence, the informant went back
to his car, accompanied by R.J. and an unidentified woman. The three of
them drove to a local gas station, with the detectives following at an
inconspicuous distance. Once the informant parked his car, R.J. exited and
approached a white Dodge Durango also parked at the gas station. R.J.
briefly sat inside the Dodge and then returned to the informant’s car. At
that point, the informant drove back to R.J.’s house (followed by the
detectives), dropped off his passengers, and then met the detectives at a
predetermined location for a search and debriefing. As evidenced by the
search, the informant had no money, but did have a plastic baggie with
black lettering on the upper-corner that contained a green, leafy substance
later identified as marijuana.



1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.


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                            STATE v. YOUNG
                           Decision of the Court

¶4             Meanwhile, one of the investigating detectives requested that
a patrol officer follow the Dodge and effectuate a stop if the driver
committed a traffic violation. The responding patrol officer followed the
Dodge immediately after it exited the gas station parking lot and turned on
his police lights once he observed the Dodge speeding. As the patrol officer
approached the stopped car, he observed a handgun on the passenger front
seat and noticed that the hammer was in a firing position. He immediately
asked the driver, Young, for the firearm. After Young gave him the gun,
the officer noted that he smelled fresh marijuana, and Young acknowledged
that she had marijuana in a brown paper bag and she consented to a search.
Inside the bag, the officer found individually-packaged baggies of
marijuana and brownies, as well as six twenty-dollar bills. Young,
however, showed the officer her medical marijuana card, and the officer
determined no basis existed to believe she had committed a drug violation.
Nonetheless, before permitting Young to leave, the officer photographed
the drugs and money.

¶5            When the investigating detectives later viewed the patrol
officer’s photographs of the drug baggies and money, they realized that
Young possessed the same five twenty-dollar bills that they had given to
the informant (identical serial numbers) and noted that Young’s plastic
baggies contained the same black lettering in the upper-corners as the
marijuana baggie the informant purchased. The State charged Young with
one count of sale of marijuana and one count of misconduct involving
weapons based on possession during the commission of a felony offense.

¶6            At trial, Young testified that she was acquainted with R.J. and
knew he was a medical-marijuana cardholder. She explained she had
previously transferred free marijuana to him on at least three occasions and,
on the day in question, R.J. contacted her and she agreed to meet him at the
gas station and give him marijuana. She claimed that after she handed R.J.
the requested marijuana and he exited her car, he “threw some money”
through her open window in an apparent “afterthought.” Though Young
did not intend to receive any compensation and wanted to return the
money, she decided to wait until the next time they met because the parking
lot was “very crowded.” When asked about the individually packaged
marijuana baggies, Young explained that she preferred to separate different
strains of marijuana, and reaffirmed that all the marijuana she possessed
was intended for her personal use. Indeed, she unequivocally denied ever
selling marijuana.




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                             STATE v. YOUNG
                            Decision of the Court

¶7           After a two-day trial, the jury convicted Young as charged.
The trial court sentenced Young to a three-year probation term on these
charges and an unrelated drug conviction. Young timely appealed.

                               DISCUSSION

A.     Alleged Preclusion of Arizona Medical Marijuana Act (“AMMA”)
       Immunity Defense

¶8             Before trial, the State moved in limine to preclude Young from
presenting an AMMA defense, and the court summarily granted the
motion. On the first day of trial, before jury selection, defense counsel asked
the trial court to explain why it granted the motion in limine, specifically
noting that Young disputed certain facts relevant to the AMMA. The court
stated that it was “not deciding any disputed facts,” but simply denying an
AMMA defense because the AMMA does not immunize a cardholder from
prosecution for marijuana sales.             In response, defense counsel
acknowledged the sale of marijuana is not lawful under the AMMA, but
argued the court’s ruling presupposed “that a sale occurred,” a fact Young
disputed. The court then clarified that Young could deny that a sale
occurred, but could not claim that a sale was AMMA compliant. As a
follow-up, defense counsel questioned the court’s procedure, inquiring
whether the jury would render a preliminary “factual finding” regarding
the existence of a sale, and if the jury concluded no sale had occurred,
whether the court would “then decide to apply” immunity or simply “go
with what [the jury] decide[d].” The court answered that the existence of a
sale was a “factual issue for the jury,” and if the jury determined that “there
was no sale,” the verdict would be, accordingly, “not guilty.”

¶9            After the State presented its case-in-chief, defense counsel
objected to the trial procedure and asserted that the court was violating
Young’s right to present a full defense by failing to submit to the jury, under
a preponderance of the evidence standard, the disputed factual issue
regarding the existence of a sale. The court responded that Young could
testify and deny the existence of a sale, but could not offer any legal opinion
that her conduct was lawful under the AMMA.

¶10           Citing State v. Fields, 232 Ariz. 265 (App. 2013), Young argues
the trial court erred by failing to have the jury determine whether a sale
occurred, under a preponderance of the evidence standard, before the court
evaluated whether statutory immunity applied and submitted the charges
to the jury. In Fields, the defendant was arrested after he sold six grams of
marijuana to an undercover officer. 232 Ariz. at 266, ¶ 2. When the State



                                      4
                             STATE v. YOUNG
                            Decision of the Court

presented the matter to a grand jury, a detective testified that officers seized
18 marijuana plants from the defendant’s home, which exceeded the
permissible number of plants for qualifying cardholders under the AMMA.
Id. at ¶ 3. The defendant later moved to dismiss the indictment or remand
for a redetermination of probable cause, arguing the State failed to present
the “clearly exculpatory” evidence sheet, which listed only 11 plants seized,
and the police photographs of his home, which showed fewer than 18
plants. Id. at 267, ¶ 4. On special action review, this court held that a
defendant seeking statutory protection under the AMMA must “plead and
prove” by a preponderance of the evidence that his conduct “fall[s] within
the range of immune action.” Id. at 269, ¶ 15. When a defendant does so, a
jury must resolve all factual disputes and the trial court “then determines
whether those facts are sufficient to establish immunity.” Id. (quoting
Chamberlain v. Mathis, 151 Ariz. 551, 554 (1986)). In the event the defendant
fails to establish immunity, the State “still must prove all elements of the
charged offenses beyond a reasonable doubt at trial.” Id.

¶11            Unlike Fields, in this case the “factual dispute” relevant to the
AMMA was also an element of the charged offense, namely, whether
Young exchanged marijuana for anything of value. Stated differently, to
convict Young of sale of marijuana as charged, the State had to prove she
knowingly exchanged marijuana “for anything of value,” Arizona Revised
Statutes (“A.R.S.”) sections 13–3401(32), –3405(A)(4), and to invoke the
protection of AMMA statutory immunity, Young had to demonstrate
“nothing of value” was “transferred in return” for the marijuana, A.R.S. §
36–2811(B)(3). Because the questions of immunity and culpability turned
on the same disputed fact, no preliminary factual issue existed for a jury to
determine under a preponderance of the evidence standard. Thus, because
the immunity and culpability issues were coextensive, the State essentially
bore the burden of proving Young did not qualify for AMMA immunity
under the higher standard of beyond a reasonable doubt, and bifurcated
jury proceedings were therefore unnecessary. Cf. State v. Larin, 233 Ariz.
202, 212, ¶ 38 (App. 2013) (explaining the jury did not need to make a
specific finding when the finding is “inherent in the crime”).

¶12          During Young’s case-in-chief, Young testified that both her
and R.J. had medical marijuana cards and that on three prior occasions she
had transferred free marijuana to R.J. She also testified that although R.J.
gave her money, she had not intended to receive any money and wanted to
return it. Moreover, in its final instructions to the jury, the trial court
informed the jurors that a registered qualifying patient may lawfully
provide marijuana to another registered qualifying patient “if nothing of



                                       5
                             STATE v. YOUNG
                            Decision of the Court

value is transferred in return.”2 Young therefore had the opportunity to
present her full defense that she and R.J. were qualified cardholders and
that her transfer of marijuana to him, with no intent to receive any form of
compensation, was authorized under the AMMA.

B.     Denial of Motion for Judgment of Acquittal

¶13           Young contends the trial court erred by denying her motion
for judgment of acquittal on both charges. We review de novo a trial court’s
ruling on a motion pursuant to Arizona Rule of Criminal Procedure
(“Rule”) 20. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). “[T]he relevant
question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (internal
quotations omitted). Sufficient evidence upon which a reasonable jury can
convict may be direct or circumstantial and “is such proof that reasonable
persons could accept as adequate” to “support a conclusion of defendant’s
guilt beyond a reasonable doubt.” State v. Borquez, 232 Ariz. 484, 487, ¶¶ 9,
11 (App. 2013) (internal quotations omitted). A motion for judgment of
acquittal should be granted only when “there is no substantial evidence to
warrant a conviction.” Ariz. R. Crim. P. 20(a).

¶14           Moreover, a defendant who presents a defense following the
denial of a Rule 20 motion “waives any error if his case supplies evidence
missing in the state’s case.” State v. Bolton, 182 Ariz. 290, 308 (1995). In such
circumstances, we consider all the evidence presented at trial. Id. As

2      Citing her proposed jury instructions, Young contends the trial court
erroneously failed to instruct the jury on AMMA statutory immunity under
a preponderance of the evidence standard. The record does not reflect that
Young submitted an immunity instruction. Regardless, the court properly
instructed the jury that the State bore the burden of proving each element
of the offenses beyond a reasonable doubt. Had the court also instructed
the jury that Young had to prove by a preponderance of the evidence that
she received nothing of value in the transfer, as she argues on appeal, the
jurors would have been presented with inconsistent and potentially
confusing standards for evaluating the evidence regarding this disputed
fact. To the extent Young also argues that the court erred by failing to
determine whether she was entitled to AMMA immunity, we again note
that the issue of immunity turned on the factual issue of whether Young
received anything of value in the transfer, both a disputed fact and an
essential element of the offense, and therefore the court could not make
such a ruling before the jury rendered its verdicts.


                                       6
                            STATE v. YOUNG
                           Decision of the Court

charged in this case, a person commits sale of marijuana by knowingly
exchanging marijuana “for anything of value or advantage, present or
prospective,” A.R.S. §§ 13–3401(32), –3405, and misconduct involving
weapons by knowingly using or possessing a deadly weapon during the
commission of a felony, A.R.S. § 13–3102(A)(8).

¶15           During its case-in-chief, the State presented evidence that the
informant had no drugs on his person at the time he entered R.J.’s residence
and only five twenty-dollar bills that investigating detectives had given him
to purchase marijuana in the controlled buy. A short time later, however,
after R.J. accompanied the informant to a gas station and briefly sat in
Young’s car, the informant had no money but did have a baggie containing
approximately a quarter-ounce of marijuana. When an officer stopped
Young moments after she exited the gas station parking lot, she had a gun
in the front seat, the five twenty-dollar bills the detectives gave the
informant, and individual marijuana baggies containing black lettering
matching the markings on the informant’s marijuana baggie.

¶16            Although Young correctly notes that the State failed to
provide any direct evidence that she transferred the marijuana to R.J. and
that R.J. transferred the money to her, the State presented sufficient
circumstantial evidence such that a reasonable jury could infer those
transactions occurred. Moreover, Young testified that she expressly agreed
to provide R.J. marijuana and admitted that he gave her cash for the drugs,
albeit she claimed she never intended to receive or keep the compensation.
Given these facts, sufficient evidence existed from which a reasonable jury
could find that Young knowingly exchanged marijuana for money and
possessed a firearm during the transaction. Therefore, the trial court did
not err by denying Young’s Rule 20 motion.

C.    Alleged Admission of Hearsay Evidence

¶17           At trial, the State did not call R.J. or the informant as
witnesses, nor did it present the informant’s recording from the day in
question as evidence. Instead, the State introduced narrative evidence
regarding the events that transpired on December 17, 2013 through the
testimony of two investigating detectives and a patrol officer. Young
contends the trial court improperly permitted an investigating detective to
testify regarding statements either the informant or R.J. made, arguing such
evidence was hearsay. The State counters that if the trial court erred by
admitting hearsay testimony, any resulting error was harmless.




                                     7
                            STATE v. YOUNG
                           Decision of the Court

¶18            In general, an out-of-court statement offered to prove the
truth of the matter asserted is inadmissible. Ariz. R. Evid. 801(c), 802. “To
be admissible, a court must find that the out-of-court statement fits within
one of the exceptions to the rule against hearsay.” State v. Tucker, 205 Ariz.
157, 165, ¶ 41 (2003). “We review admissions of evidence under exceptions
to the rule against hearsay for an abuse of discretion.” Id.

¶19           After eliciting testimony that the investigating detective could
not recall whether he listened in real time to the informant’s conversations
with R.J., the prosecutor asked the detective whether R.J. had sufficient
marijuana to fulfill the requested drug buy. Over objection, the detective
stated that he “learned” R.J. “did not have enough of what we ordered,”
and explained that the informant had “contacted” him so he was aware that
they would be traveling to a secondary location. Although the detective
did not recount a direct out-of-court statement with this testimony, he
implied that the informant stated that relocation would be necessary. In
addition, the detective’s testimony that he “learned” R.J. had an insufficient
quantity of marijuana implied the detective had heard a statement to that
effect. But on this record, it is unclear whether such statement was part of
(1) the informant’s notice that the parties would be relocating, (2) the
recorded conversations between the informant and R.J., or (3) the
informant’s debriefing after the transaction occurred.

¶20            On redirect, the prosecutor asked the detective whether
changing locations for a controlled buy was unusual, and the detective
explained that dealers commonly relocate drug buys for purposes of
obtaining additional drugs from third-party suppliers. The prosecutor then
asked, over objection, whether the informant “confirm[ed]” the detective’s
“assumption[]” that the site of the drug buy changed because R.J. had an
insufficient quantity. The trial court sustained the hearsay objection.
Immediately thereafter, the prosecutor asked the detective, over objection,
whether he listened to the informant’s audio recording to gain a greater
understanding of the events that transpired. After the trial court overruled
defense counsel’s hearsay objection, the detective confirmed that he
listened to the recording to understand what occurred. Again, the detective
did not recount a direct out-of-court statement with this challenged
testimony. Nonetheless, Young argues that the detective’s response that
the audio recordings helped him understand what transpired on the day in
question implied that either R.J. or the informant made a recorded
statement that was consistent with the detective’s earlier testimony that R.J.
had insufficient marijuana and relocation to a secondary site was therefore
necessary.



                                      8
                               STATE v. YOUNG
                              Decision of the Court

¶21           Assuming that the trial court erred by admitting hearsay
testimony, we must determine whether the error was harmless. In
determining whether an error is harmless, “a reviewing court will affirm a
conviction despite the error . . . if the state, in light of all of the evidence, can
establish beyond a reasonable doubt that the error did not contribute to or
affect the verdict.” State v. Valverde, 220 Ariz. 582, 585, ¶ 11 (2009) (internal
quotation omitted). “The inquiry . . . is not whether, in a trial that occurred
without the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” Id. (internal quotation omitted).

¶22             Here, the inadmissible evidence supported the State’s theory
that R.J. and the informant went to the gas station to obtain marijuana from
Young. Without this information, the jury would have still heard that: (1)
R.J. and the informant left R.J.’s house and went to the gas station; (2) R.J.
left the informant’s car to get into Young’s car; (3) the informant no longer
had the marked money but had a marijuana baggie when he returned to his
car; and (4) the informant’s baggie had the same markings as the baggies in
Young’s car that she told the patrol officer was for her personal use. The
evidence further showed that Young possessed the same five twenty-dollar
bills that the detectives gave to the informant. Moreover, the content of the
hearsay evidence was not in dispute. Young testified that R.J. asked her to
meet him at the gas station for marijuana and that she supplied R.J. with
the marijuana that was ultimately transferred to the informant. Thus, when
viewed in light of all the evidence presented at trial, the admission of
hearsay evidence was harmless beyond a reasonable doubt. See State v.
Weatherbee, 158 Ariz. 303, 305 (App. 1988) (explaining the erroneous
admission of hearsay evidence is harmless when the improperly admitted
hearsay is “entirely cumulative”); see also State v. Williams, 133 Ariz. 220, 226
(1982) (“Since the defendant, himself, had testified to substantially the same
information as that contained in the hearsay statements, the issue which the
statements tended to prove . . . was uncontested and the error was
harmless.”).

D.     Preclusion of Entrapment Defense

¶23          Young contends that the trial court improperly precluded her
entrapment defense. To raise an entrapment defense, a person “must admit
by the person’s testimony or other evidence the substantial elements of the
offense charged.” A.R.S. § 13–206(A); see also State v. Gray, 239 Ariz. 475,
478, ¶ 14 (2016) (“[I]n order to raise an entrapment defense, the accused
must affirmatively admit, by testimony or other evidence, the substantial
elements of the offense.”). The “substantial elements of the offense”


                                         9
                             STATE v. YOUNG
                            Decision of the Court

includes all the requisite elements. Gray, 239 Ariz. at 478, ¶ 14; see State v.
Nilsen, 134 Ariz. 431, 432 (1983) (“Our cases have consistently held that to
avail himself of the defense of entrapment, a defendant must admit all the
elements of the offense.”). This admission requirement precludes a
defendant from introducing evidence or arguing in a manner inconsistent
with the defense. Gray, 239 Ariz. at 477, ¶ 8 (explaining a defendant “who
wishes to avail himself of a defense of entrapment” may not deny
“knowledge of the crime”).

¶24           Young was charged with knowingly selling marijuana, in
violation of A.R.S. §§ 13–3401(32) and 13-3405. At trial, Young denied
selling marijuana and testified that she never intended to receive anything
of value in exchange for her transfer of marijuana to R.J. Because Young
did not admit the substantive elements of the charge, and indeed
unequivocally denied committing the offense, she was statutorily
precluded from raising an entrapment defense.

                                CONCLUSION

¶25           For the foregoing reasons, we affirm Young’s convictions and
sentences.




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




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