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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                GERALD DWAYNE SNETHEN, Appellant.

                             No. 1 CA-CR 17-0258
                               FILED 3-1-2018


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201501387
            The Honorable Steven F. Conn, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                           STATE v. SNETHEN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Peter B. Swann and Judge James P. Beene joined.


T H O M P S O N, Presiding Judge:

¶1            Appellant Gerald Dwayne Snethen (Snethen) challenges his
convictions for three counts of sale of dangerous drugs
(methamphetamine), a class two felony. See Ariz. Rev. Stat. (A.R.S.) § 13-
3407(A)(7), (B)(7) (2010). 1 For the reasons that follow, we affirm Snethen’s
convictions and associated sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶2              All three subject counts charged Snethen for knowingly
selling methamphetamine in violation of A.R.S. sections 13-3407(A)(7), (E),
(F), (K), -3401 (2010), -701 (2010), -702 (2010), and -801 (2010). The counts
(1, 2, and 3) respectively related to events occurring on May 12, June 17, and
August 5 of 2015. The sales arose after another individual, Blake Johnson
(Johnson) agreed to work as a confidential informant, and purchase drugs
from dealers for the Lake Havasu City Police Department. Johnson and
three detectives from the police department testified about the associated
events for the state. Snethen did not testify. The following was established
by the testimony, and other evidence, at trial:

¶3           Before each sale, Detectives Chris Sautner, Ryan Huerta, and
Derrick Wilson set up surveilling equipment, met with Johnson in a
designated location to search Johnson’s person and his vehicle, placed
video and audio recording devices on Johnson, and gave him money to
purchase the drugs. For each sale, Johnson called Snethen “directly” to set
up the purchase.

¶4           The first sale occurred on May 12, 2015, at a gas station on the
north side of Lake Havasu City. Johnson rode his motorcycle to the gas
station “visually followed” by Detectives Sautner and Huerta. Detective


1     We cite to the current version of the relevant statutes unless revisions
material to this decision have occurred.



                                      2
                           STATE v. SNETHEN
                           Decision of the Court

Sautner “peeled off” from directly following Johnson and parked in a
Walmart parking lot south of the gas station, “out of sight,” and listened in
on audio recording. Snethen arrived at the gas station in a Nissan pickup
truck. Snethen left the truck, entered the gas station, and another person,
Lenny, exited the truck, walked over to Johnson and they conversed. Lenny
and Johnson walked back over to the truck, as they discussed Lenny had
been working on the truck for Snethen, Lenny ultimately put the
methamphetamine into Johnson’s pocket, and Johnson handed Lenny the
money he received for the purchase. Snethen returned from inside the gas
station, “possibly” pumped gas, and met with Johnson “at the back of the
vehicle.” Detective Wilson observed Johnson and Snethen make contact.
After the purchase, Johnson rode his motorcycle back to the designated
meeting location and gave Detective Sautner what was subsequently
confirmed to be .76 grams of methamphetamine.

¶5            The second sale occurred on June 17, 2015. Johnson waited in
a Walmart parking lot to make the buy. Snethen drove into the parking lot,
let Lenny out of his vehicle, and drove by Johnson. Lenny walked up to
Johnson and subsequently placed a baggie of meth in Johnson’s left pocket;
Johnson gave him the cash he received from the detectives. Lenny then
went back to Snethen and the two men walked toward Walmart. Detective
Sautner recognized Snethen’s voice during this transaction. Johnson
returned to meet Detective Sautner and gave the detective what later tested
to be 1.42 grams of methamphetamine.

¶6           At trial, Johnson testified that it was not unusual for Snethen
to use someone else, as “a secondary cover up,” to conduct a drug
transaction when he had “been up for a few days” and “would get paranoid
with deals.”

¶7            The third sale took place on August 5, 2015, and Johnson met
directly with Snethen. The transaction occurred at a Home Depot when
Snethen pulled a baggie of methamphetamine “out of his right shoe,”
handed it to Johnson, and Johnson gave Snethen money. Detective Wilson
observed the two men make contact, and Detective Sautner heard the phone
conversation between Johnson and Snethen agreeing to meet up for the
buy. Snethen was subsequently arrested and he admitted that he “sold
meth” to help support his mother and his own meth habit. The baggie
Johnson received from Snethen was confirmed to contain .92 grams of
methamphetamine.

¶8           After the state rested at trial, and the jury left the courtroom,
Snethen’s trial counsel moved to summarily dismiss counts 1 and 2


                                      3
                            STATE v. SNETHEN
                            Decision of the Court

pursuant to Arizona Rule of Criminal Procedure (Rule) 20 (judgment of
acquittal). Counsel alleged the state violated the notice requirement. 2 The
motion was based on the fact, established at trial, that Lenny, not Snethen,
sold the methamphetamine on the dates constituting counts 1 and 2.
Snethen’s counsel argued Snethen was entitled to notice if the state
intended “to have Snethen be responsible for conduct of another,” but the
charging documents made no reference to A.R.S. § 13-303 (2010) (criminal
liability based upon the conduct of another). Counsel commented that the
charging document also failed to provide language tending to indicate
criminal liability was premised on another’s conduct. Counsel also argued
that, as to all three counts, the presented evidence was insufficient to
support the charges.

¶9            In ruling on the Rule 20 motion, the trial court acknowledged
that, as to counts 1 and 2, it would have been most efficacious for the
charging documents to cite to A.R.S. § 13-303 or A.R.S. § 13-301 (2010)
(defining accomplice liability). The court also noted that all could agree
“that the defendant is not the one who made the exchange on incidents
number 1 and 2; and that if he’s going to be found guilty, it would have to
be solely on the basis of accomplice liability.” Nonetheless, the court
opined that given what had been testified to, discovery must have put
Snethen on notice that accomplice liability would be the theory for counts
1 and 2, and the court was thus unconvinced that the defense had been
blindsided. The court then denied the motion.

¶10           There was no motion to amend the charging documents.
However, the court provided the jury with accomplice liability instructions.
The court also recognized the defense’s objection to those instructions.

¶11           After the court read instructions to the jury, the parties
proffered their closing arguments. The jury found Snethen guilty as to all
three counts. The court sentenced Snethen to three concurrent terms of nine
years’ incarceration in the Arizona Department of Corrections.




2       See U.S. Const. amend. VI (requiring that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be informed of the
nature and cause of the accusations”); see also State v. Freeney, 223 Ariz. 110,
115, ¶ 29 (2009) (citations omitted) (“[T]he touchstone of the Sixth
Amendment notice requirement is whether the defendant had actual notice
of the charge, from either the indictment or other sources.”).


                                       4
                            STATE v. SNETHEN
                            Decision of the Court

¶12          Snethen timely appealed to this court. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§
12-120.21(A)(1) (2018), 13-4031 (2010), and -4033(A) (2010).

                               DISCUSSION

¶13            On appeal, Snethen challenges the jury’s verdicts. He
contends that no substantial evidence supported the verdicts and he should
have been acquitted. Snethen does not raise issues relating to the
sufficiency of notice provided by the charging document, nor does he argue
he was prejudiced by the court’s accomplice liability instruction to the jury,
or that the court erred in providing such instructions. Claims related to
these issues not raised are therefore waived. Carrillo v. State, 169 Ariz. 126,
132 (App. 1991) (citation omitted) (“Issues not clearly raised and argued on
appeal are waived.”). In reviewing Snethen’s noted challenges, we view
the trial evidence in the light most favorable to sustaining the jury’s
verdicts, see State v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007), and resolve
all reasonable inferences against Snethen, see State v. Mincey, 141 Ariz. 425,
432 (1984).

¶14          Snethen specifically argues that “no substantial evidence
existed to show that [he] actually sold methamphetamine on any of the
three occasions charged.” Snethen requests we therefore reverse his
convictions and vacate his sentences. We find no reversible error.

¶15            “Reversible error based on insufficiency of the evidence
occurs only where there is a complete absence of probative facts to support the
conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting State v.
Scott, 113 Ariz. 423, 424-25 (1976)) (emphasis added). On review, we do not
assess the credibility of witnesses, and recognize the weight of all evidence,
including testimony, and the determination of a witness’s credibility was
for the jury. See, e.g., State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004)
(stating “we do not weigh the evidence”); State v. Moran, 151 Ariz. 378, 382-
83 (1986) (credibility determinations are the jury’s prerogative); State v.
Anthony, 104 Ariz. 133, 135 (1969) (“The weight of all testimony was for the
jury.”). In deciding whether a defendant should be acquitted on a premise
of evidence insufficiency, a court “must determine whether upon the
evidence, giving full credence to the right of the jury to determine
credibility, weigh the evidence, and draw justifiable inference[s] therefrom,
a reasonable person could fairly conclude the defendant is guilty beyond a
reasonable doubt.” State v. Clifton, 134 Ariz. 345, 348 (App. 1982). “The
sufficiency of the evidence must be tested against the statutorily required
elements of the offense.” State v. Pena, 209 Ariz. 503, 505, ¶ 8 (2005).


                                      5
                             STATE v. SNETHEN
                             Decision of the Court

¶16            To support a conviction for sale of dangerous drugs, as
charged, the state’s evidence had to prove, beyond a reasonable doubt,3
Snethen knowingly “transport[ed] for sale, import[ed] into this state,
offer[ed] to transport for sale or import into this state, sell, transfer or offer
to sell or transfer a narcotic drug,” A.R.S. § 13-3408(A)(7) (2010).
“Knowingly” means that a defendant acted with awareness of or belief that
his conduct is of that nature or the circumstances of his conduct constitute
the offense. See A.R.S. § 13-105(10)(b) (2010). Section 13-3401(6) assigns
methamphetamine as a “dangerous drug.” Sale is defined as “an exchange
for anything of value . . . .” A.R.S. § 13-3401(32).

¶17           “A person may be guilty of an offense committed by such
person’s own conduct or by the conduct of another for which such person
is criminally accountable . . . or both.” A.R.S. § 13-302 (2010). A person is
criminally liable for the commission of an offense if he “is an accomplice”
to another person’s commission of the offense. A.R.S. § 13-303. A person
is an “accomplice” if he (1) “Solicits or commands another person to commit
the offense;” (2) “Aids, counsels, agrees to aid or attempts to aid another
person in planning or committing an offense;” or (3) “Provides means or
opportunity to another person to commit the offense.” A.R.S. § 13-301.

¶18            Here, drawing the necessary inferences in support of the
jury’s verdicts, we conclude its verdicts were supported by substantial
evidence. Particularly as to count 3, the case facts are clearly inconsistent
with Snethen’s appellate argument that he was not the person who
“actually sold” the methamphetamine on August 5. As noted, Snethen and
Johnson were the only individuals involved in the transaction on this date.
Furthermore, as to all three counts, the jury was free to make inferences and
draw conclusions, in furtherance of its verdicts, from its assessment of
Johnson’s and the detectives’ credibility based on their uncontroverted
testimony. From the relevant testimony, the jury had sufficient evidentiary
basis to find Snethen knowingly used Lenny as an intermediary to conduct
the first two sales of methamphetamine to Johnson, and that Snethen
directly sold the methamphetamine constituting count 3 to Johnson.

¶19           Contrary to the defense’s suggestion, Johnson’s testimony is
not undermined by the mere fact of him being an informant, or his “trying
to avoid a lengthy prison term cooperating with police.” The jury could
have, for example, undoubtedly believed Johnson would have benefited



3     State v. Portillo, 179 Ariz. 116, 122 (1994), vacated in part on other
grounds, 182 Ariz. 592 (1995).


                                        6
                            STATE v. SNETHEN
                            Decision of the Court

most by properly complying with whatever agreement he had with the
police, and testifying truthfully.

¶20            Moreover, the court instructed the jury that it could impeach
Johnson based on his prior felony conviction. 4 The court also instructed the
jury that a defendant is not guilty of a crime due to his mere presence at the
crime scene or knowledge that a crime was being committed. See, e.g., State
v. Noriega, 187 Ariz. 282, 284 (App. 1996) (citing State v. Portillo, 179 Ariz.
116, 119 (1994), vacated in part on other grounds, 182 Ariz. 592 (1995)) (“Guilt
cannot be established by the defendant’s mere presence at a crime scene or
mere association with another person at a crime scene. The fact that the
defendant may have been present does not in and of itself make the
defendant guilty of the crimes charged.”). We presume the jury followed
these instructions, State v. Dann, 205 Ariz. 557, 570, ¶ 46 (2003), and Snethen
has not rebutted this presumption.

                               CONCLUSION

¶21          For the foregoing reasons, we affirm Snethen’s convictions
and associated sentences.




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




4      Ariz. R. Evid. 609(a) (stating that for the purpose of attacking the
credibility of a witness, evidence that he has been convicted of a felony shall
be admitted if the court determines the probative value of this evidence
outweighs the prejudicial effect).


                                         7
