from the Superior Court in Maricopa County No.
CR2016-102423-001 The Honorable Alfred M. Fenzel, Judge
Arizona Attorney General's Office, Phoenix By Elizabeth
B. N. Garcia Counsel for Appellee
Heath Law Firm PLLC, Mesa By Mark Heath Counsel for Appellant
Maria Elena Cruz delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe
Ramone Devitt Trammell appeals his convictions and sentences
for crimes including possession of narcotic drugs. He argues
the superior court erred by instructing the jury on a
lesser-included offense. We hold that when a defendant
asserts an entrapment defense, the court may grant the
State's request for a lesser-included jury instruction if
the crime is a lesser-included offense and the evidence is
sufficient for a reasonable jury to find that only the lesser
offense has been proved. Because those circumstances are
present here, the convictions and sentences are affirmed.
FACTS AND PROCEDURAL
Trammell was charged with five crimes involving the sale or
transportation of narcotic drugs to undercover detectives. As
an affirmative defense, Trammell admitted he knowingly sold
narcotic drugs, but argued the sales resulted from entrapment
by the government. Ariz. Rev. Stat. ("A.R.S.")
§ 13-206(A). Over Trammell's objection, the court
instructed the jury it could find him guilty on the
lesser-included offense of possession of a narcotic drug. The
jury found him guilty of one count of possession of a
narcotic drug and four counts of sale of narcotic drugs. He
was sentenced to concurrent sentences amounting to 17.75
Trammell timely appealed his convictions and sentences. We
have jurisdiction pursuant to Article 6, Section 9 of the
Arizona Constitution, and A.R.S. §§
12-120.21(A)(1), 13-4031, and -4033(A)(1).
Although Trammell objected to the lesser-included jury
instruction at trial, he did not specify the ground of his
objection. See State v. Toney, 113 Ariz. 404, 408
(1976). For that reason, we review for fundamental error.
State v. Moody, 208 Ariz. 424, 455, ¶ 120
(2004). To prevail on appeal, he must show that the superior
court committed fundamental error and that the error caused
him prejudice. State v. Escalante, 245 Ariz. 135,
140-42, ¶¶ 16-21 (2018) (clarifying fundamental
error review). Trammell concedes the jury instruction was not
material to his convictions for sale of a narcotic drug.
Therefore, we review only the conviction for simple
possession of a narcotic drug, count one.
Generally, the court may instruct the jury on a necessarily
included offense "when [the crime] is lesser included
and the evidence is sufficient to support giving the
instruction." State v. Wall, 212 Ariz. 1, 3,
¶ 14 (2006). The evidence is sufficient when the jury
could reasonably find that only the lesser offense has been
An exception to the general rule regarding lesser-included
offenses applies when a criminal defendant asserts an
entrapment defense. First, to assert an entrapment defense,
the defendant must admit all elements of the offense charged.
A.R.S. § 13-206(A); State v. Soule, 168 Ariz.
134, 135 (1991) (citing State v. Nilsen, 134 Ariz.
431 (1983)). Once admitted, a defendant may not then negate
any of the elements of the offense by advancing the
inconsistent theory of having committed some lesser offense
instead. Soule, 168 Ariz. at 137. The principle that
a defendant may not assert inconsistent defenses has stood
firm in the twenty-seven years since the Soule court
reasoned that to allow otherwise would foster perjury by the
defendant and may result in jury confusion. Id. at
136-37; see also State v. Gray, 239 Ariz. 475, 478,
¶ 11 (2016). We do not contradict that sound reasoning
This principle does not, however, bar the State from
asking for a lesser-included offense instruction when the
defense asserts entrapment. The State is in a much different
position than a defendant. The State has the burden of
proving the elements of the offense, and it may argue to the
jury without inconsistency that the defendant is guilty of a
greater offense but, if proof of a particular element somehow
fails, that he is nevertheless guilty of a lesser offense.
This position does not carry the same risk of perjury or
confusion that would result, as discussed in Soule,
from a defendant's simultaneous argument of entrapment on
a greater offense but guilt on the lesser offense because he
did not commit the greater offense. Moreover, prohibiting the
State from seeking a lesser-included offense when a defendant
chooses entrapment as an affirmative defense would improperly
transfer the charging decision from the ...