Appeal from the Superior Court in Cochise County. No. CR201300111. The Honorable James L. Conlogue, Judge.
Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee.
Joel A. Larson, Cochise County Legal Defender, Bisbee, Counsel for Appellant.
Presiding Judge Vásquez authored the opinion of the Court, in which Judge Howard and Judge Kelly concurred.
VÁSQUEZ, Presiding Judge.
[¶1] Following a jury trial, Usef Simmons was convicted of eleven drug-related offenses. The trial court sentenced him to a combination of consecutive and concurrent, presumptive prison terms. On appeal, Simmons challenges two of his convictions for violating A.R.S. § 13-3417(A), which prohibits using any wire or electronic communication to facilitate or to conspire to commit certain offenses. The primary issue we must decide is whether Simmons, as the principal/seller in a buy-sell drug transaction, could be convicted of violating § 13-3417(A), where there is no evidence of a wire or electronic communication by Simmons with any person except the other principal/buyer. Because we conclude the answer is no, we vacate Simmons's five convictions and sentences for violating § 13-3417(A). For the reasons expressed in a separate memorandum decision, we remand for clarification of Simmons's remaining sentences. We otherwise affirm.
Factual and Procedural Background
[¶2] We view the facts in the light most favorable to sustaining Simmons's convictions. See State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). In January 2013, narcotics agents with the Arizona Department of Public Safety received information that Simmons was selling drugs. On January 28, an undercover agent began communicating with Simmons via a cellular telephone number associated with him. The following day, the agent arranged via that phone number to meet Simmons to purchase methamphetamine from him, and the transaction occurred as scheduled.
[¶3] On January 30 and 31, the undercover agent contacted Simmons at the same cell phone number and arranged another purchase for the evening of January 31. But the woman who was to deliver the drugs did not show up, and the transaction did not occur. On February 5, the agent set up another drug purchase with Simmons at the same phone number. One of Simmons's codefendants, Cristy Mast, sold the agent methamphetamine at the arranged location.
[¶4] The undercover agent next communicated with Simmons on February 11 via the same cell phone number. He and Simmons arranged a methamphetamine transaction for the same day. The sale, however, did not take place because the agent was the only person who showed up. The next day, February 12, the agent again initiated contact
with Simmons via Simmons's cell phone and arranged to buy methamphetamine later that day. Simmons's other codefendant, Shannon Curry, met the agent at the arranged time and place but sold him rock salt instead of methamphetamine.
[¶5] Officers with the Sierra Vista Police Department arrested Simmons about two weeks later. When they searched him, they found a small plastic baggie containing marijuana in his front left pants pocket. He also had in his possession a cell phone associated with the number that the agent had been using to contact him.
[¶6] A grand jury indicted Simmons, Mast, and Curry. The indictment alleged the following charges against Simmons, listed by offense date:
Count one: Knowingly transporting methamphetamine
Count two: Knowingly selling methamphetamine
Count three: Using a wire or electronic communication to facilitate a felony or to conspire to commit a drug felony
Count four: Using a wire or electronic communication to facilitate a felony or to conspire ...