Court of Appeals of Arizona, First Division, Department E
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Coconino County Cause No. S0300CR201000692 The Honorable Joseph J. Lodge, Judge
Thomas C. Horne, Attorney General By Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals/Capital Litigation Section and Matthew H. Binford, Assistant Attorney General Attorneys for Appellee
Coconino County Public Defender By H. Allen Gerhardt Attorneys for Appellant
JOHN C. GEMMILL, Judge
¶1 Renetta King appeals her convictions and sentences imposed for two counts of the sale or transfer of dangerous drugs. For the reasons that follow, we affirm the convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On appeal, we view the facts in the light most favorable to sustaining the verdict. State v. Cox, 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269 (2007) .
¶3 On June 28, 2010, King sold .67 grams of methamphetamine to a police informant in Flagstaff. King received the money from the informant and directed an 18 year-old, C.A., to deliver the drugs. The drug sale was captured on video by a concealed camera worn by the informant. The transaction was also videotaped by undercover police officers who were parked nearby monitoring the situation through a listening device. Two days later, King sold the informant an additional 1.27 grams of methamphetamine. This transaction was also observed and videotaped by police officers.
¶4 King was charged with two counts of the sale or transfer of dangerous drugs (methamphetamine), class two felonies under Arizona Revised Statutes ("A.R.S") section 13-3407(A)(7) (Supp. 2012). At trial, the jury was presented video, audio, and photographs of both transactions. The jury convicted King on both counts and the trial court sentenced King to consecutive five year terms. King timely appeals. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1)(2003) and 13-4033(A)(1)(2010).
¶5 On appeal King argues that prosecutorial misconduct and structural error require reversal, and, alternatively, that the trial court erred in imposing consecutive sentences.
¶6 King first argues the State committed prosecutorial misconduct when the prosecutor filed a memorandum with the court which cited an unpublished decision. On the second day of trial, the State filed a memorandum as a response to the defense counsel's argument that the State had improperly shifted the burden of proof to the defense. The memorandum discussed several decisions bearing on the issue including an unpublished decision by this court. The motion conceded that this case "does not create binding precedent and is a memorandum opinion, however the State felt it was instructive on the issue before the court."
¶7 "A defendant seeking reversal of a conviction for prosecutorial misconduct must establish that (1) misconduct is indeed present; and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying [the] defendant a fair trial." State v. Dixon, 226 Ariz. 545, 549, ¶ 7, 250 P.3d 1174, 1178 (2011) (internal citation omitted and quotations omitted). In addition, reversal is only required if misconduct is "so pronounced and persistent that it permeates the ...