Court of Appeals of Arizona, First Division, Department C
Appeal from the Superior Court in Mohave County Cause No. S8015CR201100733 The Honorable Derek C. Carlisle, Judge Pro Tempore.
Thomas C. Horne, Arizona Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Michael T. O’Toole, Assistant Attorney General Attorneys for Appellee.
Jill L. Evans, Mohave County Appellate Defender Kingman Attorney for Appellant.
PETER B. SWANN, Presiding Judge.
¶1 Andrew William Hines appeals from his conviction and sentence for the class 5 felony of promoting prison contraband. We affirm because the court properly treated the class 5 felony of which Hines was convicted as a lesser-included offense of the offense with which he was charged, the class 2 felony of promoting prison contraband.
FACTS AND PROCEDURAL HISTORY
¶2 In June 2011, a grand jury indicted Hines for promoting prison contraband "by possessing, a dangerous instrument in a correctional facility, . . . a Class 2 Felony" under A.R.S. § 13-2505(A)(3) and (F). Hines pled not guilty and the matter proceeded to a jury trial.
¶3 At trial, the state presented evidence that when Hines was incarcerated at a state prison in May 2011, prison officers strip-searched him and found a cellophane-wrapped object in his sock. The object was made of solid plastic, had an angled point, and resembled a box-cutter. One of the prison officers and a prison investigator testified that inmates commonly fashion such objects for use as weapons; commonly wrap them in cellophane to allow grip, protect their hands, and eliminate fingerprints; and commonly hide them in their clothing. The officer and the investigator further testified that the object found in Hines's sock could be used as a stabbing or cutting device to seriously injure or kill prison staff or other inmates.
¶4 At the close of the state's case-in-chief, Hines moved for a judgment of acquittal under Ariz. R. Crim. P. 20. The court concluded that the state had failed to prove that the seized object was a "dangerous instrument" -- an essential element of the class 2 felony. A.R.S. § 13-105(12) defines a "dangerous instrument" as "anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury, " and the court found that the state had put forth no evidence that Hines used, attempted to use, or threatened to use the object. The court therefore granted Hines's motion with respect to the class 2 felony offense of promoting prison contraband by possessing a dangerous instrument, but ruled that the class 5 felony offense of promoting prison contraband by possessing an "article whose use or possession would endanger the safety, security or preservation of order in a correctional facilit[y]" was a lesser-included offense that the jury could consider.
¶5 Hines did not immediately object to the court's ruling. But later, after he had presented evidence and the state had presented its rebuttal case, Hines argued that because the state "indicted a certain charge" and "hadn't met their burden of proof on that [charge], " it was "improper to continue on a lesser included." Hines acknowledged, however, that had the class 2 felony gone to the jury, he would have requested a lesser-included jury instruction. The court overruled Hines's objection and instructed the jury on the class 5 felony, defining the offense as "requir[ing] proof that the defendant knowingly possessed contraband while being confined in a correctional facility, " with "'[c]ontraband' mean[ing] any article whose use or possession would endanger the safety, security or preservation of order in a correctional facility or of any person within a correctional facility."
¶6 The jury found Hines guilty. The court found that Hines had two historical prior felony convictions and sentenced him to a presumptive five-year prison term.
¶7 Hines timely appeals, contending that the class 5 felony of promoting prison contraband is not a lesser-included offense of the class 2 felony of promoting prison contraband. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
STANDARD OF REVIEW
¶8 We review de novo whether an offense is a lesser-included offense of another crime. In re James P., 214 Ariz. 420, 423, ¶ 12, 153 P.3d 1049, 1052 (App. 2007). The state contends that under State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005), and State v. Lopez, 217 Ariz. 433, 434-35, ¶ 4, 175 P.3d 682, 683-84 (App. 2008), we must review only for fundamental error because Hines's objection at trial was not directed to the characterization of the class 5 felony as a lesser-included offense. But even assuming that fundamental error analysis applies, a conviction and sentence for a non-lesser-included offense will always constitute fundamental error and cause prejudice. Cf. State v. Larson, 222 Ariz. ...