State v. Langston

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

RAE ANN KAY LANGSTON, Appellant.

No. 1 CA-CR 19-0302
FILED 6-16-2022

Appeal from the Superior Court in Maricopa County
No. CR2018-103323-001
The Honorable John R. Hannah, Jr., Judge

AFFIRMED AS MODIFIED

COUNSEL

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

Ortega & Ortega, PLLC, Phoenix
By Alane M. Ortega
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.

C R U Z, Judge:

¶1 Rae Ann Kay Langston appeals her convictions for possession
of drug paraphernalia. For the following reasons, we affirm as modified.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mesa police pulled Langston over for a traffic violation one
evening in 2018. The stop turned into a DUI investigation, and police
arrested and searched Langston. During the search, police found
methamphetamine in Langston’s clothing. An officer interviewed
Langston at the police station, and she disclosed that she was a “low-time
dealer” and had more drugs at her residence.

¶3 Officers searched Langston’s residence and found marijuana,
methamphetamine, drug paraphernalia, and a gun. The State charged
Langston with two counts of possession of dangerous drugs for sale (counts
1 and 2), possession of marijuana for sale (count 3), two counts of
misconduct involving weapons (counts 4 and 5), attempted tampering with
physical evidence (count 6), and four counts of possession of drug
paraphernalia (counts 7, 8, 9, and 10).

¶4 On the State’s motion, one of the misconduct involving
weapons charges was dismissed. Langston was convicted as charged on
the remaining misconduct involving weapons charge and the drug-related
charges, including all four counts of possession of drug paraphernalia. The
jury acquitted her of attempted tampering with physical evidence. The
superior court sentenced Langston to mitigated, concurrent terms—10.5
years for counts 1 and 2, 6 years for count 3, 8 years for count 4, and 2.25
years for counts 7, 8, 9, and 10. Langston timely appealed.

¶5 Defense counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which we struck for its failure to comply with Anders
and related cases. Our August 2020 order striking the Anders brief directed
Langston’s counsel to file an advocate’s brief setting forth any non-frivolous
issues, including “whether any of appellant’s drug paraphernalia

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Decision of the Court

convictions should be vacated, given this court’s recent opinion in State v.
Soza, 249 Ariz. 13, 14, ¶ 1 (App. 2020) (holding “that a defendant who
simultaneously possesses multiple objects of drug paraphernalia commits
only one violation of A.R.S. § 13-3415(A)”).

¶6 Instead of filing an advocate’s brief, counsel filed another
Anders brief. Noting that counsel had failed to comply with our August
2020 order, we again ordered counsel to file an advocate’s brief, and counsel
did so in January 2021.

¶7 In February 2021, before filing its answering brief, the State
moved to stay this appeal because the Arizona Supreme Court had granted
review in Romero-Millan v. Barr, 253 Ariz. 24 (2022), and was to decide issues
relevant to Langston’s drug paraphernalia convictions. We stayed
Langston’s appeal until the Supreme Court issued its opinion in Romero-
Millan on April 19, 2022.1 Thereafter, we lifted our stay, the State filed its
answering brief, and Langston filed a reply brief. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A).

DISCUSSION

¶8 The State charged Langston separately for possessing a scale
for weighing methamphetamine, a scale for weighing marijuana, a baggie
associated with methamphetamine, and a baggie associated with
marijuana, and she was convicted of and sentenced to 2.25 years in prison
for all four counts. Langston argues, and the State agrees, that her four drug
paraphernalia convictions should be merged into a single count, with a
single sentence imposed. See Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 14 n.4 (App.
2004) (the proper remedy for duplicative sentences is merger). Because this
issue was not raised below, we review for fundamental error. State v.
Jurden, 239 Ariz. 526, 528, ¶ 7 (2016).

¶9 The Romero-Millan court did not answer the question of
whether drug paraphernalia convictions could be divisible by type of drug.
However, as the State acknowledges, under Soza, our opinion (which the
State agrees was correctly decided), the State may not charge a defendant
with separate counts of drug paraphernalia for simultaneously possessed
objects. 249 Ariz. at 18, ¶ 23. Acts of possession that are sufficiently distinct

1 In Romero-Millan, the Arizona Supreme Court ultimately declined to
answer either question certified to it by the Ninth Circuit Court of Appeals
pertaining to drug paraphernalia. 253 Ariz. at 26-27, ¶¶ 2, 7, 11.

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Decision of the Court

in time and place may qualify for multiple counts of drug paraphernalia
possession. Id. at 18, ¶ 23 n.3. Because the record here shows that Langston
simultaneously possessed the baggies and scales found by police in her
home on the evening of the search, she committed only one violation of
A.R.S. § 13-3415(A). Accordingly, we vacate Langston’s convictions on
counts 8, 9, and 10 for possession of drug paraphernalia and merge the
sentences for counts 8, 9, and 10 into count 7 to reflect a single sentence of
2.25 years in prison.

CONCLUSION

¶10 For the foregoing reasons, we affirm Langston’s conviction
and sentence for drug paraphernalia on count 7. We further modify by
merging her convictions and sentences for counts 8, 9, and 10 into count 7
to reflect a single conviction and sentence.

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

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