from the Superior Court in Navajo County No. S0900CR201500087
S0900CR201500700 The Honorable Dale P. Nielson, Judge
Arizona Attorney General's Office, Phoenix By Michael F.
Valenzuela Counsel for Appellee
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. 
Judge Jon W. Thompson dissented.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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
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
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.
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