                                                                FILED BY CLERK
                           IN THE COURT OF APPEALS                  DEC 22 2008
                               STATE OF ARIZONA
                                 DIVISION TWO                       COURT OF APPEALS
                                                                      DIVISION TWO



THE STATE OF ARIZONA,                      )
                                           )
                              Appellee,    )      2 CA-CR 2007-0369
                                           )      DEPARTMENT B
                   v.                      )
                                           )      OPINION
ARMANDO GALAVIZ FIERRO,                    )
                                           )
                             Appellant.    )
                                           )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR-20042470

                         Honorable Howard Hantman, Judge

                                    AFFIRMED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Amy M. Thorson                                    Tucson
                                                           Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
  By Stephan J. McCaffery                                                  Tucson
                                                           Attorneys for Appellant


V Á S Q U E Z, Judge.
¶1            Following a jury trial, appellant Armando Fierro was convicted of transporting

marijuana weighing two pounds or more for sale, a class two felony, in violation of A.R.S.

§ 13-3405(A)(4).     The trial court sentenced him to a mitigated, four-year term of

imprisonment. On appeal, Fierro argues the court erred in instructing the jury on the mental

state required for the commission of the offense. He further contends the court’s instruction

on the elements of § 13-3405(A)(4) was ambiguous and might have misled the jury. For the

following reasons, we affirm.

                          Factual and Procedural Background

¶2            We review the facts in the light most favorable to sustaining the jury’s verdict.

State v. Tucker, 205 Ariz. 157, n.1, 68 P.3d 110, 113 n.1 (2003). At approximately 7:25 a.m.

on June 30, 2004, an Arizona Department of Public Safety officer stopped a red Ford Ranger

pickup truck on Interstate 10 for a vehicle equipment violation. Fierro was the driver and

sole occupant of the truck. As the officer approached, he detected an odor of marijuana

coming from the bed of the truck, which had a fiberglass cover concealing its contents.

When the officer asked him questions, Fierro avoided eye contact, appeared nervous, and

repeatedly glanced at the bed of the truck. He consented to a search of the vehicle, which

revealed forty-nine bales of marijuana, weighing a total of 629 pounds, in the bed of the

truck.

¶3            After Fierro had been arrested and informed of his Miranda1 rights, he stated

that he had been attempting to earn money by performing odd jobs when a man had asked



         1
         Miranda v. Arizona, 384 U.S. 436 (1966).

                                              2
if he would drive a truck from one gas station to another in exchange for $1,000. When

Fierro asked the man what he would be transporting, the man replied “drugs.”

                                         Discussion

¶4            Fierro first contends the trial court improperly gave the state’s requested jury

instruction regarding the element of “knowledge” because the instruction “relieved the state

of its burden of proving that Fierro was aware or believed that his cargo was marijuana.”

Thus, he argues “the error violated [his] state and federal constitutional due process and fair

trial rights.” We review for abuse of discretion a trial court’s decision to give a requested

jury instruction. State ex rel. Thomas v. Granville, 211 Ariz. 468, ¶ 8, 123 P.3d 662, 665

(2005). But we review de novo whether jury instructions accurately state the law. State v.

Bocharski, 218 Ariz. 476, ¶ 47, 189 P.3d 403, 414 (2008). In making this determination, we

consider the instructions in their entirety “to ensure that the jury receive[d] the information

it need[ed] to arrive at a legally correct decision.” Granville, 211 Ariz. 468, ¶ 8, 123 P.3d

at 665.

¶5            To support a conviction under § 13-3405(A)(4), the state had to prove Fierro

knew the truck was carrying marijuana. At trial, the state presented no direct evidence that

Fierro actually knew he was transporting marijuana rather than some other drug. Although

Fierro told the detective who interviewed him that he knew there were drugs in the bed of

the truck, he stated he did not know what type of drugs he was transporting. Thus, the state

requested what it termed a “deliberate ignorance” jury instruction. Over Fierro’s objection,

the trial court instructed the jury as follows:



                                                  3
                      The State is required to show the defendant knew that he
               was transporting marijuana. That knowledge can be established
               . . . by showing that the defendant was aware of the high
               probability that the package[s] contained marijuana, and that he
               acted with conscious purpose to avoid learning the true contents
               of the packages.

¶6             The language of the instruction was taken from State v. Diaz, 166 Ariz. 442,

803 P.2d 435 (App. 1990), vacated in part on other grounds, 168 Ariz. 363, 813 P.2d 728

(1991), a case factually similar to this case.2 There, the defendant admitted transporting an

illegal substance but claimed ignorance of the specific type of substance he had transported.

Id. at 444, 803 P.2d at 437. In Diaz, this court commented that the requisite knowledge can

be proved by showing that a defendant “was aware of the high probability that the packages

contained [the] narcotic drug [the defendant was charged with transporting] and that he acted

with a conscious purpose to avoid learning the true contents of the packages.” Id. at 445, 803

P.2d at 438.

¶7             Fierro contends either the language from Diaz is dictum or, if central to the

court’s holding, then Diaz misstates the law. Thus, he argues, the jury instruction improperly

equated “knowingly” with the lesser mens rea of “recklessly” and effectively informed the

jury that it could find Fierro “knowingly transported marijuana if he only recklessly did so.”

We disagree.

¶8             In State v. Haas, 138 Ariz. 413, 420, 675 P.2d 673, 680 (1983), our supreme

court used substantially the same language in affirming the defendant real estate agent’s


       2
       Although the practice is discouraged, a trial court may employ language from an
appellate opinion when drafting a jury instruction if the instruction accurately states the law.
See State v. Rutledge, 197 Ariz. 389, ¶ 11, 4 P.3d 444, 447 (App. 2000).

                                               4
convictions on five counts of fraudulent scheme and artifice arising from various real estate

transactions. In challenging his convictions, the defendant argued that, although his

purchasers may have been involved in an underlying scheme to defraud the sellers, he was

not aware of the fraudulent nature of their scheme, and he denied that he intentionally

participated in it. Id. The supreme court characterized the “issue of whether defendant acted

knowingly and intentionally []as a judgment of his credibility.” Id. In determining the

evidence was sufficient to support the jury’s verdict, the court stated: “[T]he jury could

easily have concluded that even if defendant had no actual knowledge of the fraud, he was

aware of the high probability that the scheme was fraudulent and deliberately shut his eyes

to avoid learning the truth. Such a conclusion justifies the ultimate inference of knowing

participation.” Id. at 420, 675 P.2d at 680, citing United States v. McDonald, 576 F.2d 1350,

1360 n.17 (9th Cir. 1978); see also United States v. Lopez-Martinez, 725 F.2d 471, 472-73

(9th Cir. 1984) (approving instruction similar to instruction here).

¶9            We conclude the instruction the trial court gave accurately stated the law

applicable to this case. It properly informed the jury that Fierro’s claim that he lacked the

requisite knowledge for the commission of the offense entailed a credibility determination

for the jury to make. By its verdict, the jury resolved this issue against Fierro, and it is not

the role of this court to second-guess that assessment. See State v. Scott, 113 Ariz. 423, 425,

555 P.2d 1117, 1119 (1976). Thus, we find no error in the challenged instruction to the jury.

See State v. Rutledge, 197 Ariz. 389, ¶ 11, 4 P.3d 444, 447 (App. 2000).

¶10           Additionally, the trial court accurately defined “knowingly” in another

instruction, taking its language directly from A.R.S. § 13-105(9)(b). It instructed the jury on

                                               5
the statutory elements required to find Fierro guilty of the crime of transporting marijuana

for sale. It also instructed the jury on the distinction between actual and constructive

possession and explained that Fierro’s mere presence at the scene with the marijuana was

insufficient to support a conviction. We therefore conclude the trial court’s instructions,

taken as a whole, conveyed the information the jury needed “to arrive at a legally correct

decision.” Granville, 211 Ariz. 468, ¶ 8, 123 P.3d at 665.

¶11           Fierro next argues the instruction concerning the statutory elements of

transporting marijuana for sale was ambiguous and might have misled the jury. Because he

failed to raise this issue below, however, we review only for fundamental error. See State

v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). “To establish fundamental

error, [Fierro] must show that the error complained of goes to the foundation of his case,

takes away a right that is essential to his defense, and is of such magnitude that he could not

have received a fair trial.” Id. ¶ 24. He must also establish that the error caused him

prejudice. Id. ¶ 20.

¶12           The trial court instructed the jury on the elements of the offense of

transportation of marijuana for sale as follows:

                     The crime of transporting marijuana for sale requires
              proof of the following two things:

                     One, the defendant knowingly transported marijuana for
              sale; and,

                       Two, the defendant knew that it was marijuana.

Fierro contends the jury might have interpreted this instruction as though the term

“knowingly” applied only to “transported” and not also to “for sale.” Thus, he contends the

                                              6
instruction omits “the requirement that [he] knew the marijuana was for sale.” Again, we

disagree.

¶13            The instruction tracked the language of § 13-3405(A)(4). As used in both the

statute and the instruction, “knowingly” applies to all of the elements of the offense. In

accordance with the statute, the court’s instruction placed the mens rea before the elements

of the offense without distinguishing among them. Generally, when “a statute defining an

offense prescribes a culpable mental state that is sufficient for commission of the offense

without distinguishing among the elements of such offense, the prescribed mental state shall

apply to each such element.” A.R.S. § 13-202(A). Because the instruction correctly stated

the law without ambiguity, the trial court did not err.

¶14            Furthermore, even assuming any ambiguity in the instruction, it was mitigated

during closing arguments. See State v. Morales, 198 Ariz. 372, ¶ 5, 10 P.3d 630, 632 (App.

2000) (alleged ambiguity in instruction alleviated by prosecutor’s closing argument); State

v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) (“Closing arguments of

counsel may be taken into account when assessing the adequacy of jury instructions.”). The

prosecutor explained the “for sale” element of the offense as follows: “Now, the last part of

this is . . . knowledge . . . the defendant has to know that he was transporting this load of

marijuana for sale . . . . [H]e [has to] know[] that he’s transporting it and it’s . . . going to be

sold.” In closing argument for the defense, counsel stated: “So he has to know that he’s

transporting, and he has to know that it’s marijuana, and he has to know that it’s for sale. All

three of those things he has to know.” Defense counsel also stated: “If you decide that the

State has not proven beyond a reasonable doubt that Mr. Fierro knew that whatever was in

                                                 7
that truck was for sale, you can’t find him guilty of transportation of marijuana for sale.”

Thus, the jury was properly informed that, to find Fierro guilty, it had to find that he knew

he was transporting marijuana and knew the marijuana was for sale. We find no error,

fundamental or otherwise, in the instruction given.

                                        Disposition

¶15           For the reasons stated above, we affirm Fierro’s conviction and sentence.




                                              ____________________________________
                                              GARYE L. VÁSQUEZ, Judge

CONCURRING:



____________________________________
PETER J. ECKERSTROM, Presiding Judge



____________________________________
PHILIP G. ESPINOSA, Judge




                                             8
