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Not for Publication -Rule 111, Rules of the Arizona Supreme Court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 Maricopa County Cause No. CR2010-161789-001 The Honorable Samuel A. Thumma, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section and Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee
Ballecer & Segal, LLP, By Natalee Segal Attorneys for Appellant
MICHAEL J. BROWN, Judge
¶1 Francisco Alcantar Castro appeals his convictions for transportation of marijuana for sale and possession of drug paraphernalia. Castro contends his conviction for possession of drug paraphernalia should be dismissed on double jeopardy grounds. Specifically, he argues that possession of drug paraphernalia is a lesser-included offense of transportation of marijuana for sale and therefore his conviction on the paraphernalia charge violates double jeopardy principles because the two charges constitute a single offense. We disagree and affirm the convictions and sentences.
¶2 The convictions stem from an incident in which the police found a plastic tub containing a twenty-pound bale of marijuana in the trunk of Castro's vehicle after stopping him for speeding. The drug paraphernalia charge was based on the plastic tub in which the bale of marijuana was located. According to Castro, "[b]ecause it is impossible to possess a drug without a container (the paraphernalia), the paraphernalia charge is a lesser-included offense which must be dismissed." Whether a conviction violates the prohibition against double jeopardy is a question of law that is reviewed de novo. State v. Welch, 198 Ariz. 554, 555, ¶ 5, 12 P.3d 229, 230 (App. 2000). Because Castro failed to raise the issue of double jeopardy below, our review is limited to fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶3 As an initial matter, we reject the factual premise of Castro's lesser-included offense argument that "it is impossible to possess a drug without a container." A person can readily possess a drug without a container by simply holding it in one's hand. But even if we ignore this point, Castro's double jeopardy claim is not well-taken.
¶4 The Double Jeopardy Clauses in the United States and Arizona Constitutions bar multiple prosecutions and punishments for the same offense. Lemke v. Rayes, 213 Ariz. 232, 236, ¶ 10, 141 P.3d 407, 411 (App. 2006). Consequently, a defendant may not be convicted for both an offense and its lesser-included offense, because they are considered the "same" offense for double jeopardy purposes. Brown v. Ohio, 432 U.S. 161, 168 (1977). A "lesser-included offense" is one "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, 660 P.2d 849, 852 (1983). When, as in the instant case, "the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932); accord State v. Eagle, 196 Ariz. 188, 190, ¶ 6, 994 P.2d 395, 397 (2000).
¶5 In determining whether offenses are the "same" for double jeopardy purposes, we focus on the statutory elements of the offenses, not the particular facts used to prove them. State v. Siddle, 202 Ariz. 512, 516, ¶ 10, 47 P.3d 1150, 1154 (App. 2002). The elements of an offense are the constituent parts of the offense "that must be proven by the prosecution in order to sustain a conviction." State v. Bernini, 230 Ariz. 223, 226, ¶ 10, 282 P.3d 424, 427 (App. 2012) (citation omitted).
¶6 The elements of the offense of possession of drug paraphernalia require that the State prove the defendant: (1) used (or possessed with intent to use); (2) drug paraphernalia; (3) "to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body" an illegal drug. Ariz. Rev. Stat. ("A.R.S.") § 13-3415(A). "Drug paraphernalia, " in turn, is defined as "equipment, products and materials of any kind which are used, intended for use or designed for use" in the (among other things) "packaging, repackaging, storing, containing, [or] concealing" a prohibited drug. A.R.S. § 13-3415(F)(2) .
¶7 In contrast, to convict a defendant of transportation of marijuana for sale, the State must prove the defendant: (1) knowingly; (2) transported; (3) marijuana; (4) for sale. A.R.S. § 13-3405(A)(4). Because the offenses of possession of drug paraphernalia and transportation of marijuana for sale each require proof of elements that the other does not, neither is a lesser-included offense of the other. Accordingly, there is no double jeopardy violation in Castro being convicted of the two offenses based on his conduct in transporting the marijuana stored in the plastic tub.
¶8 For the foregoing reasons, we affirm the convictions and ...