State v. Fender

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    RICHARD LEE FENDER, Appellant.

                             No. 1 CA-CR 19-0586
                                FILED 10-22-2020


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201700603
           The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

               AFFIRMED IN PART; VACATED IN PART


                                   COUNSEL

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

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                             STATE v. FENDER
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.


W I N T H R O P, Judge:

¶1            This appeal is filed in accordance with Anders v. California, 

386 U.S. 738

(1967), and State v. Leon, 

104 Ariz. 297

(1969). Richard Lee Fender
was convicted of one count of transportation of dangerous drugs for sale
and one count for possession of dangerous drugs for sale, each a Class 2
felony; he was sentenced to seven years for each count, to be served
concurrently. Counsel for Richard Lee Fender has advised this Court of a
potential prejudicial error in Fender’s conviction of and sentencing for a
lesser-included offense, and asks us to search the record for other
fundamental error. Fender has filed a supplemental brief in propria persona,
which we have considered. After reviewing the record, we affirm Fender’s
conviction and sentence for the transportation for sale offense but vacate
his conviction and sentence for the possession for sale offense.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In April 2017, Arizona State Trooper Shed stopped Fender for
a suspended vehicle registration in Lake Havasu City. Fender admitted his
registration had been suspended, and Trooper Shed noted Fender seemed
in a hurry. When Trooper Shed asked if Fender had anything illegal on his
person, Fender admitted he had methamphetamine in his boot. Trooper
Shed searched Fender and found more than $1,900 in cash, but did not find
any drugs. Fender said the drugs must be in his vehicle, and upon
searching the vehicle, Trooper Shed found more than six grams of
methamphetamine in a pillowcase. As he was searching the vehicle,
Trooper Shed heard an alert from a cell phone in plain view and saw a
message on the screen that read “I need white.” When questioned
concerning such message, Fender initially admitted only to using
methamphetamine daily and told Trooper Shed he did not have steady
employment, but worked side jobs in construction. In light of the large

1      “We view the facts and all reasonable inferences therefrom in the
light most favorable to upholding the verdicts.” State v. Tamplin, 

195 Ariz. 246

, 246, ¶ 2 (App. 1999).


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                            STATE v. FENDER
                           Decision of the Court

amount of cash, significant amount of methamphetamine, and the message
on the phone, Trooper Shed suspected Fender was also selling
methamphetamine. After Trooper Shed arrested Fender and transported
him to the police station, Fender explained, “Everybody who uses it also
sells it” and “[I’m] not trying to build an empire.”

¶3             At Trooper Shed’s request, Arizona Department of Safety
Detective Creager prepared a search warrant for Fender’s cell phone. At
trial, Detective Creager testified that he was unable to find a text message
that read “I need white” on Fender’s phone, but that the message may have
been sent through a social messaging application; if so, it would not appear
in the phone’s data.

¶4           A grand jury indicted Fender on one count of transportation
of a dangerous drug for sale, a Class 2 felony; one count of possession of
dangerous drugs for sale, a Class 2 felony; one count of possession of
narcotic drugs, a Class 4 felony; and one count of possession of dangerous
drugs, a Class 4 felony. Fender pleaded not guilty and was held on a
$10,000 bond. The court held a hearing regarding the State’s plea offer
pursuant to State v. Donald, 

198 Ariz. 406

(App. 2000), and Fender ultimately
rejected the offer. The State later moved to dismiss the charges for
possession of narcotic drugs and possession of dangerous drugs, and the
court dismissed the charges with prejudice.

¶5           Fender borrowed the money to post bail from his brother,
who later sought to revoke the bail. But because his brother gave the money
directly to Fender and Fender’s name was listed on the bond
documentation, the court determined it could not release the funds to the
brother.

¶6            The court held a two-day jury trial on the remaining two
charges, at which the parties stipulated to the amount of methamphetamine
recovered from the search of Fender’s vehicle. Trooper Shed testified to his
encounter with Fender, including Fender’s admissions and the phone alert
message, and Detective Creager testified as to the street value of
methamphetamine in Mohave County and content found on Fender’s cell
phone. After the State rested its case, Fender moved for a directed verdict
under Arizona Rule of Criminal Procedure (“Rule”) 20. The court denied
the motion, citing the amount of methamphetamine and cash recovered,
Trooper Shed’s testimony that Fender admitted to using and selling drugs,
and the phone message. The State requested a lesser-included offense
instruction for simple possession, but Fender, through his attorney,
opposed the request to pursue an “all or none” strategy. The court


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                            STATE v. FENDER
                           Decision of the Court

determined the State presented a “possession for sale type of case” and
denied the request to instruct the jury on a lesser-included offense.

¶7            Although he attended the first day of trial and the morning of
the second day, Fender failed to return to the courtroom after the lunch
recess on the second day. His attorney was unable to contact Fender, and
the trial continued in his absence. The eight-person jury found Fender
guilty on both counts. Because Fender failed to return to trial, the court
ordered his pretrial bond forfeited.

¶8            The superior court later conducted a sentencing hearing in
compliance with Fender’s constitutional rights and Rule 26. Fender
addressed the court at length, contending his attorneys failed to adequately
represent his interests, admitting he possessed methamphetamine, and
contesting much of Trooper Shed’s trial testimony. The court found one
aggravating factor, that Fender committed the offense for pecuniary gain.
The court also found the following mitigating factors: the amount of
methamphetamine; Fender’s medical conditions; and Fender’s “unresolved
drug addiction.” For each count, the court sentenced Fender to a mitigated
term of seven years in the Arizona Department of Corrections, to be served
concurrently. Fender received 295 days of presentence credit for each
count. The court also ordered Fender to pay the following: a $1,830 fine; a
$20 probation assessment; a $13 assessment fee to the Department of Public
Safety; and a $2 victims’ rights fee.

                                ANALYSIS

¶9            We review the entire record for reversible error. State v.
Thompson, 

229 Ariz. 43

, 45, ¶ 3 (App. 2012). Counsel for Fender has advised
of a potential prejudicial error. In his supplemental brief, Fender raises a
series of arguments, which we address in turn.

      I.     Double Jeopardy Violation

¶10             Counsel for Fender argues the convictions for both possession
of dangerous drugs for sale, in violation of Arizona Revised Statutes
(“A.R.S.”) section 13-3407(A)(2), and transportation of dangerous drugs for
sale, in violation of A.R.S. § 13-3407(A)(7), violate Fender’s constitutional
protection against double jeopardy because the possession for sale charge
is a lesser-included offense of transportation for sale. We agree.

¶11           “[W]hen a person is convicted of an offense, the prohibition
against double jeopardy protects against further prosecution for that or any
lesser-included offense.” State v. Chabolla-Hinojosa, 

192 Ariz. 360

, 362-63,


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                             STATE v. FENDER
                            Decision of the Court

¶ 10 (App. 1998). A lesser-included offense is “composed solely of some
but not all of the elements of the greater crime so that it is impossible to
have committed the crime charged without having committed the lesser
one.” State v. Celaya, 

135 Ariz. 248

, 251 (1983). Where a charge for
possession of dangerous drugs for sale is incidental to a charge for
transportation of dangerous drugs for sale, the possession charge is a lesser-
included offense. See State v. Cheramie, 

218 Ariz. 447

, 449, ¶ 11 (2008)
(“Given Arizona’s broad definition of ‘possess,’ we cannot conceive how a
person can ‘transport’ drugs without having possession of or dominion or
control over them.”); State v. Salcido, 

238 Ariz. 461

, 465-66, ¶ 17 (App. 2015);

Chabolla-Hinojosa, 192 Ariz. at 365

, ¶ 21. Fender’s convictions on both
counts violate the prohibition against double jeopardy and constitute
fundamental, prejudicial error. See 

Salcido, 238 Ariz. at 465-66

, ¶ 17. We
therefore vacate Fender’s conviction for possession of dangerous drugs for
sale and the seven-year sentence for that conviction.2

       II.    Fender’s Supplemental Brief 3

¶12            We now turn to the arguments raised in Fender’s
supplemental brief. None of these arguments were properly raised before
the superior court, and we review only for fundamental error. See State v.
Bible, 

175 Ariz. 549

, 572 (1993). Fundamental error goes “to the foundation
of the case [and] takes from the defendant a right essential to his defense,
and [is] of such magnitude that the defendant could not possibly have
received a fair trial.” State v. Hunter, 

142 Ariz. 88

, 90 (1984).




2      The record reflects a discrepancy between the hearing transcript and
the minute entry regarding the presentence credit awarded on the
possession of dangerous drugs for sale count. The record reflects the court
intended to credit Fender with 295 days for each count, despite the minute
entry showing zero days of presentence credit. See State v. Bowles, 

173 Ariz. 214

, 216 (App. 1992). This discrepancy is moot, however, because we vacate
the sentence for this count.

3      Fender also filed a motion to deem his appeal submitted based on
his opening brief and the record, noting the State did not file an answering
brief under Rule 31.13. Pursuant to our order filed April 6, 2020, “the filing
of an answering brief by [the State] shall await the further order of this
Court.” Because we did not order the State to file an answering brief, we
deny Fender’s motion as moot.



                                       5
                             STATE v. FENDER
                            Decision of the Court

              A.     Search and Seizure Violations

¶13             Fender alleges the warrantless search of the container4 in
which Trooper Shed located the methamphetamine went beyond the
permissible scope of the initial search, requiring the drugs to be excluded
at trial. But the record indicates Fender consented to a search of his vehicle
when he told Trooper Shed the drugs were in his vehicle. See Birchfield v.
North Dakota, 

136 S. Ct. 2160

, 2185 (2016) (“[A] search is reasonable when
the subject consents, and . . . consent to a search need not be express but
may be fairly inferred from context.” (citations omitted)); see also 

Tamplin, 195 Ariz. at 246

, ¶ 2. We therefore reject Fender’s reasoning that Arizona v.
Gant, 

556 U.S. 332

(2009), required the exclusion of the methamphetamine
evidence. Cf.

id. at 343-44

(permitting law enforcement officers to conduct
“a search incident to a lawful arrest” where “the offense of arrest [supplies]
a basis for searching the passenger compartment of an arrestee’s vehicle
and any containers therein”).

¶14            He also argues that by searching the vehicle prior to advising
him of his rights pursuant to Miranda v. Arizona, 

384 U.S. 436

(1966), Trooper
Shed “deprived [Fender] of his . . . right to counsel at such an obvious
critical stage.” This is contrary to authority: “In Arizona, that point [in
which Miranda warnings are required] is said to occur when police have
both reasonable grounds to believe that a crime has been committed and
reasonable grounds to believe that the person they are questioning is the
one who committed it.” State v. Pettit, 

194 Ariz. 192

, 195, ¶ 15 (App. 1998).
Fender’s brief reflects Trooper Shed provided Miranda warnings after
finding the drugs in a search of Fender’s vehicle; as such, he has not
demonstrated fundamental error. And to the extent Fender argues the
timing of the Miranda warnings violated his Sixth Amendment right to
counsel, we note this right is generally triggered by an initiation of formal
charges, such as an indictment. See State v. Sallard, 

247 Ariz. 464

, 468, ¶¶ 11,
15 (App. 2019).

¶15           Throughout his brief, Fender alludes to a “contrived” or
“fabricated” confession but does not identify the alleged statement(s) he is
referencing. Trooper Shed testified that Fender admitted to using
methamphetamine, admitted to having methamphetamine on his person
and then in his vehicle, and made statements suggesting he also sold
methamphetamine. In the absence of any indication as to which potentially

4     At trial, Trooper Shed referred to the container as a “pillowcase.”
Fender refers to a “backpack” in his brief. The discrepancy does not affect
our analysis.


                                       6
                              STATE v. FENDER
                             Decision of the Court

incriminating statement—of many—Fender considers inappropriate, we
lack sufficient information to review his claim.

               B.     Trooper Shed’s Testimony

¶16           Fender argues Trooper Shed’s testimony about the “I need
white” message constituted inadmissible hearsay. Generally, text messages
on a defendant’s cell phone asking for drugs do not constitute hearsay if
they are offered as “circumstantial evidence that [the defendant] had drugs
for sale.” State v. Chavez, 

225 Ariz. 442

, 444, ¶ 9 (App. 2010). The actual “I
need white” text message was not offered as evidence but was presented
through Trooper Shed’s testimony.                Such testimony regarding
communications about prospective drug purchases are treated similarly to
the communications themselves. See United States v. Rodriguez-Lopez, 

565 F.3d 312

, 314-15 (6th Cir. 2009) (cited with approval by 

Chavez, 225 Ariz. at 444

, ¶ 9). Because this type of evidence is not considered hearsay, we find
no fundamental error in the admission of the testimony describing the
content of the message.

¶17             Fender also alleges Trooper Shed committed perjury by
testifying that Fender admitting to selling methamphetamine to support his
own use and that the message appeared on Fender’s phone. A witness
commits perjury by making “[a] false sworn statement in regard to a
material issue, believing it to be false.” A.R.S. § 13-2702(A)(1). Mere
inconsistencies in testimony do not constitute perjury, and any
inconsistencies go to the witness’ credibility, which is resolved by the jury.
See State v. Ferrari, 

112 Ariz. 324

, 334 (1975); State v. Felix, 

234 Ariz. 118

, 120-
21, ¶¶ 10-11 (App. 2014). Fender has not demonstrated fundamental error.

¶18           Fender contends Trooper Shed should not have been
permitted to testify in his uniform. But he cites no authority prohibiting a
law enforcement officer from doing so, and we do not address Trooper
Shed’s choice of dress at trial any further. See State v. Perez, 

233 Ariz. 38

, 41,
¶ 10 (App. 2013) (explaining an argument on appeal must be supported by
authority and citations to the record).

               C.     Fair Trial

¶19          Related to his arguments regarding Trooper Shed’s
testimony, Fender alleges the assigned prosecutor engaged in misconduct
in permitting Trooper Shed to commit “perjury” by submitting testimony
about the phone message. A prosecutorial misconduct claim requires the
defendant to establish that (1) misconduct is in fact present and (2) there is
a reasonable likelihood the misconduct could have affected the jury’s


                                         7
                            STATE v. FENDER
                           Decision of the Court

verdict, denying the defendant a fair trial. See State v. Anderson, 

210 Ariz. 327

, 340, ¶ 45 (2005). We have already determined that the testimony about
the phone message was admissible and that Fender has not demonstrated
Trooper Shed’s testimony constituted perjury. Accordingly, Fender has not
satisfied the first condition of a prosecutorial misconduct allegation, and we
find no arguable merit to this claim.

¶20          Fender also alleges ineffective assistance of trial counsel.
Such claims “are to be brought in Rule 32 proceedings. Any such claims
improvidently raised in a direct appeal . . . will not be addressed by
appellate courts regardless of merit.” State v. Spreitz, 

202 Ariz. 1

, 3, ¶ 9
(2002). Accordingly, we do not consider this claim.

¶21           After the State rested its case, Fender moved for a directed
verdict pursuant to Rule 20, which the court denied. He renews that
argument here, this time arguing that because Trooper Shed’s testimony
provided the only evidence “to tie the ‘meth’ to Appellant,” the State
presented “insufficient evidence to convict.” We have already determined
no fundamental, reversable error arose from Trooper Shed’s testimony, so
Fender’s argument essentially challenges the credibility of Trooper Shed
and the weight of the evidence presented at trial. But these considerations
belong to the jury, and we do not revisit such matters on review. State v.
Williams, 

209 Ariz. 228

, 231, ¶ 6 (App. 2004).

¶22            Fender argues “[t]here were so many errors in this matter”
that the cumulative effect “so deprived Appellant of Due Process of Law
that he was irreparably egregiously prejudiced.” Fender appears to argue
his conviction was the result of the cumulative effect of the alleged
prosecutorial misconduct and perceived ineffective assistance of counsel.
We have found nothing improper regarding the State’s presentation of its
case, and we do not on direct appeal address the performance of Fender’s
counsel. Accordingly, we do not find Fender was denied his due process
rights to a fair trial on this ground. State v. Bocharski, 

218 Ariz. 476

, 492,
¶ 75 (2008) (“Absent any finding of misconduct, there can be no cumulative
effect of misconduct sufficient to permeate the entire atmosphere of the trial
with unfairness.”).

¶23            After Fender failed to return to trial, the superior court
forfeited his bond; the court denied Fender’s multiple requests to return his
bail money. He alleges this constitutes “double punishment” for his
convictions—presumably in violation of the Fifth Amendment—and that
“keeping his money (a fine) precluded the trial court from sentencing
Appellant to prison.” We disagree. “The primary purpose of an


                                      8
                             STATE v. FENDER
                            Decision of the Court

appearance bond is to assure a defendant’s appearance at the trial or other
hearings.” State v. Bonds, 

201 Ariz. 203

, 208, ¶ 19 (App. 2001). An
appearance bond—and the court’s discretionary determination to forfeit
all, part, or none of the bond—is a procedure distinct from a trial verdict or
related sentencing.

              D.     Pensions and the Fourteenth Amendment

¶24            Finally, Fender alleges the trial judge had an improper
financial interest in the trial’s outcome. Specifically, he argues “ALL
Arizona judges receive pecuniary gain from ALL convictions that lead to
imprisonment, through the ‘Elected Officials And Judges Pension Fund’
which is invested in the ‘Private Prisons’” that operate in Arizona. His
argument relies on Tumey v. Ohio, in which the United States Supreme
Court held that where a judge personally received a portion of the assessed
court costs, such pecuniary interest disqualified him as impartial. 

273 U.S. 510

, 535 (1927). We disagree that any alleged pension fund investments in
corporations operating private prisons constitutes a “direct, personal,
substantial pecuniary interest” as to deprive defendants, including Fender,
of due process under the Fourteenth Amendment. See

id. at 523.

The
relationship between a judge and the financial policies and investment
decisions of the pension system administrators is “too remote to warrant a
presumption of bias toward conviction in prosecutions before” the judge.
See Ward v. Village of Monroeville, 

409 U.S. 57

, 60-61 (1972) (describing Dugan
v. Ohio, 

277 U.S. 61

(1928)).

¶25           We have read and considered counsel’s brief and Fender’s
supplemental brief, and we have fully reviewed the record for reversible
error. See 

Leon, 104 Ariz. at 300

. Save for the double jeopardy violation
discussed above, we find none. So far as the record reveals, counsel
represented Fender at all stages of the proceedings, and the sentence
imposed was within the statutory guidelines. See A.R.S. § 13-3407(A)(7),
(B)(7), (E). We decline to order any further briefing.

¶26            Upon the filing of this decision, defense counsel shall inform
Fender of the status of the appeal and of his future options. Counsel has no
further obligations unless, on review, counsel finds an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 

140 Ariz. 582

, 584-85 (1984). Fender shall have thirty days from
the date of this decision to proceed, if he desires, with an in propria persona
motion for reconsideration or petition for review.




                                      9
                           STATE v. FENDER
                          Decision of the Court

                              CONCLUSION

¶27           For the foregoing reasons, we affirm Fender’s conviction and
sentence for transportation of dangerous drugs for sale and the court-
ordered fees and assessments, but we vacate his conviction and sentence
for possession of dangerous drugs for sale.




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




                                       10
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