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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      RACHEL BOYS SPRY, Appellant.

                             No. 1 CA-CR 16-0363
                               FILED 5-2-2017


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201300520
             The Honorable John Neff Nelson, Judge (Retired)

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant
                            STATE v. SPRY
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.


D O W N I E, Judge:

¶1             Rachel Boys Spry appeals her conviction for endangerment.
For the following reasons, we modify the endangerment conviction to
reflect that it is a class one misdemeanor. We otherwise affirm Spry’s
convictions and sentences.

                FACTS AND PROCEDURAL HISTORY

¶2            Three-year-old D.N. and his younger brother lived with
their parents. Spry, who is D.N.’s grandmother, previously lived in the
home but was asked to move because she owned a gun, and D.N.’s
mother did not want guns in the home.

¶3            After being asked to retrieve her personal items, Spry
arrived at the home with a gun in her backpack. D.N. asked to use the
bathroom while Spry was in that room, and Spry gave the boy permission
to do so. While in the bathroom, D.N. fatally shot himself with Spry’s
gun. A search of Spry’s backpack revealed the gun and its magazine,
candy, a methamphetamine pipe, and a Sucrets box containing a rolled-up
baggie with a crystal-like substance. Spry told police officers she had put
the gun back in the backpack after D.N. shot himself.

¶4            Spry was charged with second-degree murder, misconduct
involving weapons, possession of dangerous drugs, possession of drug
paraphernalia, and endangerment. A jury found her guilty of all charges
except second-degree murder; as to that charge, she was convicted of the
lesser-included offense of negligent homicide. Spry was sentenced to two
consecutive 2.5-year prison terms and three concurrent 36-month terms of
probation upon her release from prison.

¶5            Spry timely appealed, challenging only her endangerment
conviction. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 13-4033(A)(1).




                                    2
                             STATE v. SPRY
                           Decision of the Court

                              DISCUSSION

¶6          Spry was charged with recklessly endangering D.N. with a
substantial risk of imminent death based on the presence of
methamphetamine in her backpack. Jurors, however, found Spry guilty of
endangerment with a substantial risk of physical injury, not death.1

¶7            Spry challenges the sufficiency of the evidence to support
the endangerment conviction. “We review the sufficiency of evidence
presented at trial only to determine whether substantial evidence supports
the jury’s verdict, ‘viewing the facts in the light most favorable to
sustaining the jury verdict.’” State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007)
(citation omitted). Substantial evidence is evidence that “reasonable
persons could accept as sufficient to support a guilty verdict beyond a
reasonable doubt.” Id.

¶8               “A person commits endangerment by recklessly
endangering another person with a substantial risk of imminent death or
physical injury.” State v. McGill, 213 Ariz. 147, 152, ¶ 17 (2006) (quoting
A.R.S. § 13-1201(A)). As relevant here, a person acts recklessly if she is
“aware of and consciously disregarded a substantial and unjustifiable
risk” that her “actions would place another person in substantial risk.”
Id.; see also A.R.S. § 13-105(10)(c) (defining recklessly).

¶9           The trial evidence was sufficient to establish that the crystal-
like substance found in Spry’s backpack was methamphetamine.
Although the substance was not tested, it was in a clear plastic baggie, and
testimony established that methamphetamine is typically packaged in that
fashion. Spry’s backpack also contained a methamphetamine pipe with
residue, indicating prior use. A blood test revealed that Spry had
methamphetamine in her system, and testimony established she was
under the influence of methamphetamine when interrogated after the
shooting.

¶10          Substantial evidence supports the determination that Spry
recklessly endangered D.N. with a substantial risk of imminent physical
injury. Her backpack was accessible to the young child, who had, on a


1    Spry incorrectly argues in her opening brief that the verdict forms
did not require jurors to state whether they found her guilty of
endangering D.N. by creating a risk of imminent death or a risk of
imminent physical injury.



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                             STATE v. SPRY
                           Decision of the Court

prior occasion, gotten into the backpack and “pulled out a pipe.” D.N.’s
mother had confronted Spry about that incident. Because the child could
have seen candy along with the methamphetamine in her backpack, jurors
could reasonably conclude there was a substantial risk that D.N. would
ingest the methamphetamine under the mistaken belief it was candy.

¶11           As the State concedes, however, the court improperly treated
the endangerment count as a class six felony at sentencing. Because the
jury found Spry guilty of creating a substantial risk of physical injury, as
opposed to death, she was guilty of a class one misdemeanor, and we
modify her endangerment conviction to so reflect. See A.R.S. § 13-1201(B)
(“Endangerment involving a substantial risk of imminent death is a class 6
felony. In all other cases, it is a class 1 misdemeanor.”). Re-sentencing is
not required because 36 months of supervised probation is within the
legal range for a class one misdemeanor, see A.R.S. § 13-902(A)(4), (5), and
the 36-month probation term runs concurrent with the probation terms
imposed for Spry’s convictions for possession of dangerous drugs and
possession of drug paraphernalia.

                              CONCLUSION

¶12           For the reasons stated, we modify Spry’s endangerment
conviction to reflect that it is a class one misdemeanor. In all other
respects, we affirm Spry’s convictions and sentences.




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




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