Court of Appeals of Arizona, First Division, Department B
Appeal from the Superior Court in Maricopa County Cause No. CR2009-007880-001 The Honorable Carolyn K. Passamonte, Judge Pro Tempore
Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Acting Chief Counsel, Criminal Appeals/Capital Litigation Section and Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee.
Ballecer & Segal Phoenix by Natalee E. Segal and Law Office of Neal W. Bassett Phoenix by Neal W. Bassett Attorneys for Appellant
MAURICE PORTLEY, Presiding Judge.
¶1 Defendant Garland Reyes, III, appeals his convictions and sentences for possession of marijuana, including the order requiring him to pay for statutorily-mandated DNA testing. For the reasons that follow, we affirm his convictions and sentences, but vacate the order requiring him to pay the DNA testing fee.
FACTS AND PROCEDURAL HISTORY
¶2 After he was discovered mailing marijuana through the U.S. Postal Service, Reyes was indicted on seven counts of possession of marijuana for sale, as well as money laundering, conspiracy, and illegal control of an enterprise. At the close of the State's case, Reyes successfully moved for a judgment of acquittal on the conspiracy and illegal control of an enterprise charges. The jury subsequently convicted Reyes of six counts of the lesser-included crime of possession of marijuana, acquitted him of one count of possession of marijuana for sale, and was unable to reach a verdict on the money laundering charge. This appeal followed.
¶3 Reyes contends that the court erred by failing to instruct the jury about the dismissal of the conspiracy and illegal control of an enterprise charges before deliberation. Because Reyes failed to object below, we review his claim for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005).
¶4 Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." Id. "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. at ¶ 20; see also State v. King, 110 Ariz. 36, 40, 514 P.2d 1032, 1036 (1973) ("[O]missions in the giving of instructions which were not raised at trial will not be considered unless the error is so fundamental that it is manifest the defendant did not receive a fair trial."). And, we review jury instructions in their entirety to determine whether the jury was properly guided in arriving at a correct decision. Pima Cnty. v. Gonzalez, 193 Ariz. 18, 20, ¶ 7, 969 P.2d 183, 185 (App. 1998).
¶5 Here, Reyes asserts that the court committed error by failing to instruct the jury that two counts had been dismissed on directed verdict and that the dismissals should not affect their deliberations. Reyes, however, does not cite, nor does our research reveal, any case holding that failure to instruct the jury about dismissed counts is in fact error.
¶6 Reyes points to several cases where Arizona and federal circuit courts have noted that the jury was instructed not to speculate or consider why a particular count or co-defendant was dismissed. Our review of those cases reveals that the instructions were not required by law. See, e.g., State v. Barnett, 111 Ariz. 391, 393, 531 P.2d 148, 150 (1975) (reasoning that the trial court's instruction not to speculate about co-defendant's dismissal was not a comment on the evidence); Young v. Envtl. Air Prods., Inc., 136 Ariz. 206, 213, 655 P.2d 88, 95 (App. 1982) (noting that it was proper to instruct the jury about a co-defendant's dismissal to avoid confusion since the jury was told in closing arguments it could base its decisions on the dismissed co-defendant's conduct); United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir. 1998) (rejecting appellant's argument that the trial court's curative instruction regarding co-defendant's dismissal due to insufficient evidence created a presumption of sufficient evidence against the remaining defendants). Moreover, the court told the jurors what charges they were to consider, the elements of those charges, and how they were to consider whether the State had proved the charges beyond a reasonable doubt. Although the court could have told the jury not to speculate about why the two charges were dismissed, it was not required to do so, and the failure to sua sponte give the instruction was not error.
¶7 Additionally, Reyes has failed to demonstrate any prejudice resulting from the alleged error. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. Although Reyes speculates that the jury may have guessed that the conspiracy and illegal control counts had been dismissed for lack of evidence, thereby creating a presumption that there was sufficient evidence to convict on the remaining charges, there is no support for his speculation. The jury was properly instructed, and we presume the jury followed its instructions to "decide each count separately on the evidence with the law applicable to it." See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006) ("We presume that the jurors followed the court's instructions.") . The fact that the jury acquitted Reyes of one count of selling marijuana, found him guilty of lesser-included offenses and was hung on the money laundering charge shows that it carefully ...