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State v. Francis

Court of Appeals of Arizona, First Division

January 3, 2017

STATE OF ARIZONA, Appellee,
v.
DARREL SCOTT FRANCIS, Appellant.

         Appeal from the Superior Court in Navajo County No. S0900CR201500087 S0900CR201500700 The Honorable Dale P. Nielson, Judge

         REVERSED AND REMANDED

          Arizona Attorney General's Office, Phoenix By Michael F. Valenzuela Counsel for Appellee

          Criss Candelaria Law Office, PC, Concho By Criss E. Candelaria Counsel for Appellant

          Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Thomas C. Kleinschmidt joined. [1] Judge Jon W. Thompson dissented.

          OPINION

          JOHNSEN, Judge.

         ¶1 Darrel Scott Francis was convicted of two counts of promoting prison contraband by possessing a cell phone. On appeal, he argues the superior court erred by failing to instruct the jury that the State was required to prove he knew the cell phone was contraband. Because the crime requires proof a defendant knew what he or she possesses or obtains is contraband, we reverse and remand.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Francis was detained at the Show Low Jail Annex on charges unrelated to this appeal. Officers took Francis's clothing, boots and cell phone, and stored them in a property bag. While in custody, Francis asked to call his attorney. After the officer on duty could not find the lawyer's phone number, Francis volunteered that the lawyer's number was stored on his cell phone. The officer then retrieved Francis's cell phone from his property bag, activated it and located the phone number. Later that day, Francis was transported to Navajo County Jail in Holbrook. There, another officer noticed Francis was holding the cell phone and confiscated it.

         ¶3 Francis was charged with two counts of promoting prison contraband - one count for allegedly possessing the cell phone inside the Navajo County Jail, and the other for possessing the cell phone while inside the annex or while being transported from the annex to the jail. Before trial, the State asked the Court to rule it did not have to prove that Francis knew his cell phone was contraband. In the alternative, the State asked for leave to introduce "other acts" evidence to prove Francis knew the phone was contraband. The court ruled the State did not have to prove Francis knew the phone was contraband, and therefore precluded the other-acts evidence as irrelevant. The court also ruled Francis could not argue to the jury that the State needed to prove he knew the cell phone was contraband.

         ¶4 At trial, the State presented evidence that inmates are not allowed to possess cell phones, that personal property (including cell phones) is kept in a secure office out of the reach of inmates, and that officers do not permit inmates to handle cell phones for any reason. The court instructed the jury:

The crime of promoting prison contraband requires proof that the defendant knowingly:
Took contraband into a correctional facility or the grounds of a correctional facility; or
Obtained, or possessed contraband while being confined in a correctional facility; or
Obtained, or possessed contraband while being lawfully transported or moved incident to correctional facility confinement.

         ¶5 The jury found Francis guilty of both charges and also found he committed the offenses while on release from another felony charge. The court sentenced him to two concurrent five-year prison terms.

         ¶6 We have jurisdiction over Francis's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections ...


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