State v. Soza

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ANDREW RAY SOZA, Appellant.

No. 1 CA-CR 19-0003
FILED 5-14-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-117718-002
The Honorable Monica S. Garfinkel, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
 STATE v. SOZA
Opinion of the Court

OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani
joined.

M c M U R D I E, Judge:

¶1 Andrew Soza appeals from his convictions and sentences for
possessing dangerous drugs for sale, possessing narcotic drugs for sale,
four counts of possessing drug paraphernalia, and false reporting to a law
enforcement agency. Because we hold that a defendant who simultaneously
possesses multiple objects of drug paraphernalia commits only one
violation of Arizona Revised Statutes (“A.R.S.”) section 13-3415(A), we
vacate three of Soza’s convictions and the resulting sentences under that
statute. We otherwise affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 A police officer pulled over a car driven by Soza’s wife for a
traffic violation. When the officer asked Soza, who was in the passenger
seat, for identification, he provided a false name and date of birth. He also
claimed that he did not have any identification or know his Social Security
number. Soza eventually disclosed his identity.

¶3 The officer arrested Soza for false reporting and searched him
incident to the arrest. Soza was carrying “two small micro baggies,” an
identification card, and $305 in cash. Because Soza’s wife was driving with
a suspended license, the officers impounded and searched the car. In the
trunk, an officer found several packages of methamphetamine and heroin,
a glass pipe, multiple micro baggies, and a digital scale with “white
residue” and a “black tar-like smudge” on its surface.

¶4 The State charged Soza with possessing dangerous drugs for
sale (methamphetamine), possessing narcotic drugs for sale (heroin), four
counts of possessing drug paraphernalia (micro baggies for

1 We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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Opinion of the Court

methamphetamine, micro baggies for heroin, a scale for methamphetamine,
and a scale for heroin), and one count of false reporting to a
law-enforcement agency. The jurors found him guilty as charged, and the
court sentenced him as a category-three repetitive offender to presumptive,
concurrent prison terms, the longest being 15.75 calendar years. Soza
appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).

DISCUSSION

A. The Act of Possession Defines the Allowable Unit of Prosecution
for Possessing Drug Paraphernalia Under A.R.S. § 13-3415(A).

¶5 The jury found Soza committed four separate violations of
A.R.S. § 13-3415(A): possessing micro baggies for methamphetamine,
possessing micro baggies for heroin, possessing the scale for
methamphetamine, and possessing the same scale for heroin. Soza argues
that he committed only one prosecutable violation of A.R.S. § 13-3415(A).
We agree.

¶6 Imposing multiple punishments for the same offense violates
the Double Jeopardy Clause, which constitutes fundamental error. State v.
Jurden, 239 Ariz. 526, 528–29, ¶¶ 7, 10 (2016). Whether Soza’s convictions for
possessing drug paraphernalia implicate double jeopardy requires us to
determine what the “allowable unit of prosecution” is under A.R.S.
§ 13-3415(A). See Jurden, at 529, ¶ 11 (quoting United States v. Universal C.I.T.
Credit Corp., 344 U.S. 218, 221 (1952)). Put another way, what is “the scope
of conduct for which a discrete charge can be brought”? Id.

¶7 Soza argues that the unit of prosecution under A.R.S.
§ 13-3415(A) is an “act” of possession—regardless of the number or kind or
intended use of the paraphernalia possessed. The State, in turn, argues that
A.R.S. § 13-3415(A) makes each “object” of paraphernalia a separate
offense. Under its interpretation, this court would vacate one of Soza’s
convictions because he possessed only one scale, not two.

¶8 Determining the allowable unit of prosecution requires us to
interpret the statute at issue, which we do de novo. Jurden, 239 Ariz. at
528-29, ¶¶ 7, 11; see also State v. McPherson, 228 Ariz. 557, 560, ¶ 5 (App.
2012) (“The intent of the legislature in defining and fixing the punishment
for an offense is a question of law we review de novo.”). The ultimate
objective is to divine the legislature’s intent, and we begin by looking to the
statutory text. Jurden, 239 Ariz. at 530, ¶ 15. If the language is clear, our
examination ends there. Id. If the language is ambiguous, “we consider

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Opinion of the Court

secondary principles of statutory interpretation, such as the context of the
statute, the language used, the subject matter, its historical background, its
effects and consequences, and its spirit and purpose.” Id. We also “consider
the policy behind the statute and the evil it was designed to remedy.” State
v. Korzep, 165 Ariz. 490, 493 (1990); see also A.R.S. § 13-104 (requiring
criminal statutes to “be construed according to the fair meaning of their
terms to promote justice and effect the objects of the law”). The “context”
of the statute under consideration and “related statutes on the same
subject” also bear on our interpretation. Nicaise v. Sundaram, 245 Ariz. 566,
568, ¶ 11 (2019).

¶9 Section 13-3415(A) reads:

It is unlawful for any person to use, or to possess with intent
to use, drug paraphernalia to plant, propagate, cultivate,
grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale or otherwise introduce into the
human body a drug in violation of this chapter. Any person
who violates this subsection is guilty of a class 6 felony.

Section 13-3415(F)(2) defines “drug paraphernalia” using comparable
language:

all equipment, products and materials of any kind which are
used, intended for use or designed for use in planting,
propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting,
ingesting, inhaling or otherwise introducing into the human
body a drug in violation of this chapter.

The statute goes on to enumerate a long list of items intended to fall within
the definition of drug paraphernalia, including kits for growing and
manufacturing drugs, scales for measuring drugs, and containers for
compounding, packaging, and storing drugs. A.R.S. § 13-3415(F)(2).

¶10 Section 13-3415(A) does not set forth “the scope of conduct for
which a discrete charge can be brought.” Jurden, 239 Ariz. at 529, ¶ 11. As a
general matter, the term “paraphernalia” may be used to describe items in
the singular or plural. See Am. Heritage Dictionary 1279 (5th ed. 2011); cf.
A.R.S. § 1-214(B) (“Words in the singular number include the plural, and
words in the plural number include the singular.”). Section 13-3415 uses the

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Opinion of the Court

term in both respects. Therefore, the statute is ambiguous because it can
reasonably be read as endorsing an act-based unit of prosecution, as the
defendant urges, or an object-based unit of prosecution, as the State
proposes.

¶11 We also find A.R.S. § 13-3415(A) amenable to an intent-based
interpretation, under which the unit of prosecution would turn on the
defendant’s intent to use the drug paraphernalia in a manner resulting in a
specific drug crime. In this case, an intent-based unit of prosecution would
support two convictions under A.R.S. § 13-3415(A)—one for possession of
paraphernalia relating to the sale of dangerous drugs and one for
possession of paraphernalia relating to the sale of narcotic drugs.

¶12 Having found the text of the statute ambiguous, we turn to
secondary methods of construction. The statute’s legislative history is bereft
of helpful information. Our legislature enacted A.R.S. § 13-3415 (formerly
A.R.S. § 13-3411) in 1982 and has made few amendments to the statute since
that time. See 1982 Ariz. Sess. Laws, ch. 216 (2d Reg. Sess.); 1986 Ariz. Sess.
Laws, ch. 256, § 8 (2d Reg. Sess.); 1987 Ariz. Sess. Laws, ch. 307, §§ 23, 27
(1st Reg. Sess.); 1996 Ariz. Sess. Laws, ch. 217, § 5 (2d Reg. Sess.). The statute
is patterned on—and nearly identical to—the Model Drug Paraphernalia
Act drafted by the United States Department of Justice Drug Enforcement
Administration. See Dale Joseph Gilsinger, Annotation, Construction and
Application of State Drug Paraphernalia Acts, 23 A.L.R. 6th 307, § 2 (2007);
Annotation, Validity, Under Federal Constitution, of So-called “Head Shop”
Ordinances or Statutes, Prohibiting Manufacture and Sale of Drug Use Related
Paraphernalia, 69 A.L.R. Fed. 15, § 1[c] (1984) (containing the full text of
model act).

¶13 The language and context of A.R.S. § 13-3415 demonstrate
that its purpose is to deter the commission of drug crimes, both by
bolstering the effectiveness of existing drug laws and by preventing the
violation of those laws before they occur. The statute is contained in the
chapter addressing drug offenses and is violated only upon evidence that
the defendant’s intended conduct would result in a drug offense. See A.R.S.
§ 13-3415(A), (F)(2). Although, in theory, an act-based, object-based, or
intent-based unit of prosecuting paraphernalia possession each would
ultimately help deter the commission of drug crimes, as explained below,
construing the prosecutable offense as the act of possession is more faithful
to the text of the statute, while still fulfilling the goal of deterring drug
crimes.

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Opinion of the Court

¶14 An object-based unit of prosecution offers the poorest fit,
considering the language and purpose of A.R.S. § 13-3415. The State relies
on A.R.S. § 13-3415(E)’s use of the term “object” to support its argument,2
but all that shows is that “drug paraphernalia” is not limited to plural
objects. Indeed, the State’s interpretation is difficult to reconcile with
specific examples of “drug paraphernalia” enumerated in A.R.S.
§ 13-3415(F)(2). For example, “kits” are used to cultivate or manufacture
drugs. See A.R.S. § 13-3415(F)(2)(a), (b). By definition, a “kit” refers to
multiple items, many of which might independently meet the definition of
“drug paraphernalia” under the State’s object-focused construction. See
Am. Heritage Dictionary 970 (5th ed. 2011) (variously defining “kit” as a
“set of articles or implements used for a specific purpose”; a “set of parts or
materials to be assembled”; or “a packaged set of related materials”). Our
legislature knows how to draft a statute that makes each object possessed
separately prosecutable. See, e.g., State v. Gutierrez, 240 Ariz. 460, 465–67,
¶¶ 18–25 (App. 2016) (considering A.R.S. § 13-3102(A)(8), which allows a
separate charge for each deadly weapon possessed during the commission
of a drug offense); McPherson, 228 Ariz. at 560–61, ¶¶ 6–8 (considering
A.R.S. § 13-3553(A)(2), which makes each image of child pornography
possessed a separate offense “even when those images are acquired at the
same time”). Section 13-3415(A) is not so drafted.

¶15 Nor does an object-based unit of prosecution squarely
respond to the harm A.R.S. § 13-3415(A) seeks to prevent. There is nothing
inherently offensive or perilous about an object that is determined to be
drug paraphernalia—which can be as innocuous and commonplace as a
spoon or plastic bag. What makes the object illicit is the possessor’s use or
intended use of the object. Because the harm addressed by A.R.S.
§ 13-3415(A) is not the baggie or scale per se, but rather the commission, or
intended commission, of a drug crime, an object-based unit of prosecution
does not squarely address the policy objective of A.R.S. § 13-3415(A).

¶16 Our examination of a statute analogous to A.R.S. § 13-3415(A)
is instructive. In State v. O’Laughlin, 239 Ariz. 398 (App. 2016), we addressed
whether A.R.S. § 13-1505, which prohibits “possession of burglary tools,”

2 Section 13-3415(E) directs courts and other authorities to consider
various factors in “determining whether an object is drug paraphernalia,”
including statements by the owner “of the object concerning its use, . . . the
proximity of the object to drugs,” and the presence of drug residue. See
A.R.S. § 13-3415(E)(1), (4), (5).

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involved “separate offenses based on the nature or type [or number] of
tool[s] or a single offense.” Id. at 401, ¶ 6. O’Laughlin contended the jury
did not convict him of violating A.R.S. § 13-1505 by a unanimous verdict
because the court instructed the jurors to find him guilty if they found he
possessed a “flashlight, knife, [and/or] gloves.” Id. at 400, ¶ 4. In essence,
he argued that the unit of prosecution under A.R.S. § 13-1505 was
object-based. We disagreed. Finding the purpose of the statute to be the
prevention of property crime, we held that the allowable unit of
prosecution under A.R.S. § 13-1505 was “unaffected by the number of
tools” possessed. Id. at 401, ¶ 6. Whether O’Laughlin violated the statute by
possessing “a flashlight, gloves, or a knife [did] not alter the harm.” Id. at
402, ¶ 10. See also State v. Hoffman, 78 Ariz. 319, 328 (1955) (holding the
defendant’s conviction of two counts of selling assets with intent to defraud
constituted double jeopardy because the offense was defined by the sale
conduct, not the number or type of objects sold); State v. Reisig, 128 Ariz. 60,
62 (App. 1980) (defendant’s “simultaneous possession of nine articles of
property without serial numbers” constituted a single violation of the
statute prohibiting “[p]ossession of altered property” (citing A.R.S.
§ 13-2306)).

¶17 Section 13-3415(A) is similar in significant respects to the
burglary tools statute. Both aim to deter a broad category of crime by
criminalizing the possession of otherwise innocuous items made illicit by
the possessor’s intended use. In neither case is there a natural correlation
between the kind or number of tools or paraphernalia possessed on a single
occasion and the amount of potential harm. Absent such a relationship,
permitting each object of paraphernalia to support a separate charge under
A.R.S. § 13-3415(A) would create a misalignment between the policy
objective of the statute and its consequences in practice. Cf. Jurden, 239 Ariz.
at 531, ¶ 23 (where the harm is the same regardless of the number of victims,
permitting separate charges for each victim would “not further the statute’s
purpose”). By contrast, consider Gutierrez, in which we noted that allowing
a separate charge under A.R.S. § 13-3102(A)(8) for each weapon promoted
the statute’s purpose because “[e]ach weapon a defendant uses or possesses
renders the predicate offense incrementally more dangerous.” 240 Ariz. at
467, ¶ 24.

¶18 Excluding an object-based unit of prosecution leaves us with
deciding between an intent- or act-based offense. An intent-based
construction does have some statutory support. First, A.R.S. § 13-3415(A)
expressly requires the State to prove the defendant intended to use the
paraphernalia in a manner that would cause a violation of Arizona’s drug
laws. Second, Arizona voters have decided that one type of violation under

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A.R.S. § 13-3415(A)—paraphernalia possessed for personal use not
involving methamphetamine—should be treated more leniently than
possession for other purposes. See A.R.S. § 13-901.01(A), (H)(4) (probation
available if paraphernalia associated with personal use not involving
methamphetamine, approved by voters in 2002 and 2006).

¶19 Ultimately, however, these statutory considerations do not
convince us that an offense under A.R.S. § 13-3415(A) turns on the
defendant’s intent to commit a particular drug crime. The composition of
A.R.S. § 13-3415(A) favors an act-based unit of prosecution over an
intent-based construction. The provision does not refer to a specific type of
drug crime, and the title of the statute refers simply to “[p]ossession . . . of
drug paraphernalia” without further distinction. Cf. State v. Forrester, 134
Ariz. 444, 447 (App. 1982) (considering the title of a statute in determining
whether it describes “a single offense which may be committed in more
than one way” or distinct acts describing separate crimes). The language of
A.R.S. § 13-3415 makes it conceivable, even if unlikely under real-world
circumstances, that a defendant could be found guilty of possessing drug
paraphernalia without evidence linking the paraphernalia to a specific drug
offense. These considerations suggest that the emphasis of A.R.S.
§ 13-3415(A), and the conduct on which the offense turns, is the act of
possession.

¶20 The history of the Model Drug Paraphernalia Act, whose
provision prohibiting paraphernalia possession is identical in all relevant
respects to A.R.S. § 13-3415(A), provides further support for an act-based
interpretation. The drafters of the model act indicated that its intent
language was designed to eliminate the potential for constitutional
vagueness concerns—not to delineate the scope of conduct for which a
discrete charge could be brought. See Linda B. Corwin, Anti-Drug
Paraphernalia Laws: Void for Vagueness, 60 B.U. L. Rev. 453, 463–66 (1981).

¶21 The probation-eligibility provisions of A.R.S. § 13-901.01 do
not alter our interpretation. Treating personal possession of
non-methamphetamine-related paraphernalia more leniently does not, by
itself, show an intent to associate the unit of prosecution under A.R.S.
§ 13-3415(A) with the defendant’s intent to commit a particular drug crime.
Cf. State v. West, 238 Ariz. 482, 490, ¶ 22 (App. 2015) (child abuse statute
defines a single offense even though it provides for different punishments
depending on the defendant’s mental state). Indeed, our legislature’s
decision to classify every paraphernalia possession as a Class 6 felony—
regardless of the paraphernalia’s intended use—suggests it did not
envision using A.R.S. § 13-3415(A) as a means to distinguish between

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Opinion of the Court

different harms created by different drug conduct. Considering its place in
the statutory scheme, the paraphernalia statute is reasonably read as a
complement to other drug laws, and defendants charged with possessing
paraphernalia remain subject to the punishments imposed under those
laws. Cf. Jurden, 239 Ariz. at 532, ¶ 25 (reasoning that the resisting-arrest
statute does not require a victim-based unit of prosecution to fulfill the
purpose of protecting individual officers because state assault statutes
separately offer that protection).

¶22 We are, therefore, unpersuaded by the State’s contention that
treating a defendant who possesses multiple items of drug paraphernalia
for producing or distributing drugs the same as a defendant who possesses
one item of paraphernalia for personal use would lead to an “absurd
result.” Statutes other than A.R.S. § 13-3415(A) already respond to the
different harms caused by those variations in conduct. The State offers no
decision, nor have we uncovered one in our research, in which consecutive
sentences were imposed for multiple convictions of possessing drug
paraphernalia on a single occasion.

¶23 We conclude that the act of possessing drug paraphernalia
best reflects the unit of prosecution under A.R.S. § 13-3415(A) because it
best fits with the language of the statute while addressing its policy
objectives within the statutory scheme as a whole. Because the record
shows that Soza simultaneously possessed the baggies and scale found to
be drug paraphernalia in this case, he committed only one violation of
A.R.S. § 13-3415(A).3 See State v. Williams, 232 Ariz. 158, 160–61, ¶ 9 (App.
2013) (citing Ball v. United States, 470 U.S. 856, 864 (1985), for the rule that a
second conviction for the same offense must be vacated even if a concurrent
sentence is imposed).

3 Our decision does not prevent the State from charging a defendant
with multiple counts under A.R.S. § 13-3415(A) if the defendant committed
sufficiently distinct acts of possession based on time or location. See United
States v. Dyer, 750 F. Supp. 1278, 1298–99 (E.D. Va. 1990) (prosecution for
each offer for sale of paraphernalia consistent with allowable unit of
prosecution).

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B. There Is No Error Concerning Soza’s Prior Convictions.

¶24 Soza testified at his trial, which subjected him to
impeachment with his prior felony convictions. See Ariz. R. Evid.
609(a)(1)(B). Before trial, the superior court limited the prosecution to
impeaching Soza with only three specified priors, even though Soza had
many more.

¶25 On direct examination, defense counsel preemptively asked
Soza whether he had three prior felony convictions, and Soza responded in
the affirmative. Defense counsel continued, “Now, about those three prior
convictions, did you take plea agreements in those cases?” Soza answered,
“Yes, I did,” and the State objected. At a sidebar, the court stated it would
sustain the State’s objection because the circumstances of Soza’s prior
convictions were irrelevant and defense counsel’s question “create[d] a
false impression” that Soza “only ha[d] three priors.” The court did not
inform the jury it had sustained the objection, and defense counsel
proceeded to a different line of questioning without the court striking
Soza’s answer.

¶26 Soza argues on appeal that by sustaining the State’s objection,
the superior court improperly prevented defense counsel from
rehabilitating his credibility by showing that he had accepted responsibility
in the prior cases. However, the jurors heard that Soza pled guilty for his
previous convictions, and the State did not ask the court to strike the
answer. Whether sustaining the objection at the sidebar was error is not an
issue before us because it had “no consequence” in the trial. State v. Reese, 26 Ariz. App. 251, 254 (1976).

CONCLUSION

¶27 We vacate three of Soza’s convictions and sentences for
possession of drug paraphernalia and modify the judgment to reflect a
single conviction under A.R.S. § 13-3415(A). We affirm the other
convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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