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Appeal from the Superior Court in Pima County. No. CR20121779004. The Honorable Paul E. Tang, Judge.
Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Amy Pignatella Cain, Assistant Attorney General, Tucson, Counsel for Appellee.
The Law Offices of Stephanie K. Bond, P.C., Tucson, By Stephanie K. Bond, Counsel for Appellant.
Judge Vásquez authored the opinion of the Court, in which Presiding Judge Kelly and Judge Howard concurred.
[236 Ariz. 554] VÁSQUEZ, Judge:
[¶1] After a jury trial, Craig Williamson was convicted of various conspiracy charges for his participation in a plan to commit a home invasion robbery to steal drugs. The trial court found he had two or more historical prior felony convictions and sentenced him to presumptive, concurrent terms of imprisonment totaling 15.75 years. On appeal, Williamson argues the court erred by denying his motions: (1) to dismiss for outrageous government conduct; (2) for a mistrial when a police officer gave an opinion on an ultimate issue while testifying at trial; (3) for a jury instruction concerning the state's destruction of evidence; and, (4) for a judgment of acquittal and a new trial. He also argues the court erred when it required him to stipulate to the elements of the offenses in order to receive a jury instruction on the affirmative defense of entrapment. For the following reasons, we affirm the convictions and sentences.
Factual and Procedural Background
[¶2] We view the evidence presented at trial in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Williamson. See State v. Snider, 233 Ariz. 243, ¶ 2, 311 P.3d 656, 658 (App. 2013). In April 2012, Tucson police officers Miguel Verdugo and Brandon Angulo were working undercover with the Special Investigations Division, Street Crimes Interdiction Unit. Both officers had worked with M.C., a confidential informant who informed Angulo " there was a home invasion crew lined up to go to work." The officers asked the informant to set up a meeting for which they would use a " back story" they had devised: Verdugo, using the name " Emilio," would be introduced as the nephew of a Mexican narcotics trafficker and Angulo, using the name " Julian," as Verdugo's cousin. The persons under investigation would be told that Verdugo and Angulo traffic cocaine from Mexico and distribute it in Arizona but, because Verdugo was " dissatisfied with [his] role in th[e] enterprise," both men wanted to " rip off [Verdugo's] uncle" by stealing drugs from a stash house.
[¶3] On April 11, 2012, the informant introduced the officers to Williamson's brother, Chris, in the parking lot of an apartment complex. Chris told the officers he was " [r]eady to do some work." When he stated " he had done burglaries before," " Angulo made it very clear to him that there wasn't going to be a burglary." Angulo stated " that it would be basically a robbery of a stash of drugs and that people would be guarding it and that people would be armed." The officers and Chris agreed to meet later to " discuss things."
[¶4] On April 13, the officers met Williamson, Chris, and Randy Chapman at a restaurant. During that meeting, the officers said there were as many " as 40 kilos" of cocaine they wanted the defendants to steal from a drug stash house guarded by two men with assault rifles and another man " possibly with a handgun." Williamson told the officers he had committed other home invasions and stated he had a shotgun " he was ready to use" and he had a " cattle prod that he intended to use during the home invasion." Williamson also " requested that [the officers] give him some firearms."
[236 Ariz. 555] [¶5] When the officers asked Williamson and the others what they expected as payment for the home invasion, they said they wanted half. And, " if they got 20 kilos of cocaine, they wanted to cash out ten of it for cash. So if they had ten kilos for 19,000, that would be $190,000 that they wanted to get cashed out and keep the additional ten kilos of cocaine for themselves." Angulo told the defendants that if they wanted to walk away, they could do so. All of them responded that " they're in." At the next meeting on April 17, the Williamson brothers and Chapman introduced the officers to the fourth co-conspirator, Preston Adams, and Angulo explained the details of the home invasion to him.
[¶6] On the afternoon of May 2, the officers met the Williamson brothers in a grocery store parking lot to give them $60. They had requested the money to buy masks, gloves, pepper spray, and plastic zip ties for the home invasion. The final meeting between the officers and all four defendants took place later that evening in the parking lot of a shopping mall. Verdugo and Angulo drove to the meeting in separate undercover vehicles, one of which would be provided to the defendants for the home invasion. The officers opened the trunk of one of the vehicles and showed Williamson and the others four assault rifles and four ballistic vests inside a duffel bag. Two defendants removed the duffel bag from the trunk and the defendants " start[ed] to divide up the rifles and the ballistic vests amongst themselves." " Williamson was also putting on rubber gloves at that time." Verdugo and Angulo drove away, and a SWAT team immediately moved in and took the defendants into custody. During a search of the vehicle, Williamson and the others had driven to the meeting, officers found pepper spray, masks, rubber gloves, and plastic zip ties.
[¶7] A grand jury indicted Williamson for conspiracy to commit: kidnapping, armed robbery, aggravated robbery, and possession of a narcotic drug. Williamson was convicted of the charges and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. § § 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Outrageous Government Conduct
[¶8] Williamson argues the trial court erred when it denied his motion to dismiss based on outrageous government conduct. He maintains " the State's extensive involvement in dreaming up this fictitious scheme--including the arbitrary amount of drugs and illusory need for weapons and extra associates--transcends the bounds of due process." We generally review a trial court's ruling on a motion to dismiss criminal charges for an abuse of discretion, but review constitutional issues de novo. State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 306-07 (App. 2000); see also United States v. Garza-Juarez, 992 F.2d 896, 903 (9th Cir. 1993) (district court's decision on due process claims reviewed de novo). " We defer to the trial court's factual findings that are supported by the record and not clearly erroneous." Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d at 307.
[¶9] The outrageous government conduct defense first was recognized by the United States Supreme Court in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). There, the Court speculated that it " may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Id. at 431-32. The Court stated that the government's conduct must be so egregious that it violates notions of " 'fundamental fairness'" and is " 'shocking to the universal sense of justice.'" Id. at 432, quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960). But, although the Court has recognized the defense, to date, it has not reversed a conviction on the basis of outrageous government conduct. And, we are aware of only two reported cases in which federal appellate courts have granted relief on that basis. See United States v. Twigg, 588 F.2d 373, 382 (3d Cir. 1978); Greene v. United States, 454 F.2d 783, 787 (9th Cir. 1971).
[¶10] Although a claim of outrageous government conduct and the defense of entrapment
[236 Ariz. 556] are similar in some respects, they are legally distinct. The former is grounded in due process principles and is resolved by the trial court as a matter of law before trial. United States v. Mosley, 965 F.2d 906, 908-09 & 909 n.3 (10th Cir. 1992). In contrast, the latter is based upon public policy considerations and is determined by the trier of fact in light of the evidence presented at trial. State v. Preston, 197 Ariz. 461, ¶ ¶ 5, 8, 4 P.3d 1004, 1007-08 (App. 2000). Additionally, the entrapment defense focuses on whether the defendant was predisposed to commit the crime, whereas a claim of outrageous government conduct focuses on the government's conduct. Mosley, 965 F.2d at 909.
[¶11] To establish a claim of outrageous government conduct, a defendant must show either: (1) the government " 'engineer[ed] and direct[ed] a criminal enterprise from start to finish,'" United States v. Williams, 547 F.3d 1187, 1199 (9th Cir. 2008), quoting United States v. Gurolla, 333 F.3d 944, 950 (9th Cir. 2003), or (2) the government used " excessive physical or mental coercion" to induce the defendant to commit the crime, United States v. McClelland, 72 F.3d 717, 721 (9th Cir. 1995). The defense is " often raised but is almost never successful." United States v. Gamble, 737 F.2d 853, 857 (10th Cir. 1984). " [I]t is not outrageous for the government to induce a defendant to repeat or continue a crime or even to induce him to expand or extend previous criminal activity." Mosley, 965 F.2d at 911. In inducing a defendant to repeat or expand his criminal activity, it is not improper for the government to suggest the illegal activity and provide supplies and expertise. Id. at 911-12. And, " coercion of any type must be particularly egregious before it will sustain an outrageous conduct defense." Id. at 912. " '[G]overnment agents may employ appropriate artifice and deception in their investigation,'" " make 'excessive offers,'" and " even utilize 'threats or intimidation [if not] exceeding permissible bounds.'" Id., quoting United States v. Lambinus, 747 F.2d 592, 595 (10th Cir. 1984), and United States v. Biswell, 700 F.2d 1310, 1314 (10th Cir. 1983) (alterations in Mosley ). " In short, a defendant must meet an extremely high standard." United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991).
[¶12] There is no single test for resolving a claim of outrageous government conduct. " Rather, the inquiry appears to revolve around the totality of the circumstances in any given case." Mosley, 965 F.2d at 910. Here, in denying Williamson's motion to dismiss, the trial court applied the factors identified in United States v. Black, 733 F.3d 294, 303 (9th Cir. 2013), that previous cases have considered " relevant to ...