State v. Farid

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JACOB ALI FARID, Appellant.

No. 1 CA-CR 19-0527
FILED 07-23-2020

Appeal from the Superior Court in Mohave County
No. S8015CR201802032

The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Rideout Law P.L.L.C., Lake Havasu City
By Bradlee Rideout, Wendy Marcus
Counsel for Appellant
 STATE v. FARID
Opinion of the Court

OPINION

Judge David B. Gass delivered the opinion of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

G A S S, Judge:

¶1 Jacob Ali Farid appeals his conviction for importing
marijuana into the state under A.R.S. § 13-3405.A.4.1 Farid argues the
superior court erred by instructing the jury it could convict him without
proof he imported marijuana “for sale.” Because § 13-3405.A.4 does not
require proof a defendant who knowingly imported marijuana did so “for
sale,” the instruction correctly stated the law. Farid’s conviction, therefore,
is affirmed.

FACTUAL AND PROCEDURAL HISTORY

¶2 The State charged Farid with importation or transportation of
marijuana for sale (count 1) and possession of marijuana for sale (count 2),
both class 2 felonies. The charges stemmed from a traffic stop in Mohave
County that revealed 214 one-pound packages of marijuana in the truck
Farid was driving. Each package had a prescription label identifying it as
“Medical Cannabis California” and certifying the contents were packaged
in compliance with California’s medical marijuana statutes. Farid told the
officer he and his passenger were travelling from Lake Tahoe to Houston.

¶3 The superior court instructed the jury as follows regarding
the importation charge at issue:

The crime of transportation of marijuana for sale requires
proof that the defendant:

1. Knowingly transported marijuana for sale or imported
marijuana into Arizona; and

1 Farid also was convicted of possessing marijuana for sale. A separate
memorandum decision filed simultaneously with this opinion, State v.
Farid, 1 CA-CR 19-0527, rejects Farid’s other challenges to both convictions.
See Ariz. R. Sup. Ct. 111(h); Ariz. R. Crim. P. 31.19(f).

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 STATE v. FARID
Opinion of the Court

2. The substance was in fact marijuana.

“Import into Arizona” means to bring into Arizona from
another state or country.

¶4 Based on the language used in count 1 of the indictment, the
superior court also instructed the jury on separate acts:

The defendant is accused of having committed the crime of
transportation of marijuana for sale in [c]ount 1. The
prosecution has introduced evidence for the purpose of
showing that there is more than one act upon which a
conviction on [c]ount 1 may be based. Defendant may be
found guilty if the proof shows beyond a reasonable doubt
that he committed any one or more of the acts. However, in
order to return a verdict of guilty to [c]ount 1, all jurors must
agree that he committed the same act. It is not necessary that
the particular act agreed upon be stated in your verdict.

¶5 Farid did not object to either instruction. During closing
arguments, the State raised the separate-acts instruction, telling the jury
proof of importation alone is sufficient to convict. Farid did not object.

¶6 After final instructions and closing argument, the jury begin
its deliberations. Unable to reach a decision, the jury recessed for the day.
Before recessing, a juror submitted the following question:

I need clarification on the transportation of marijuana for sale.
On our jury rules it shows

1. Knowingly transported marijuana for sale OR imported
marijuana into Arizona; and

2. The substance was in fact marijuana.

The charge states for sale but the description shows the or
option which does not say anything about sale. Can more
specifics be given to us on the law please.

(Emphasis original).

¶7 The superior court addressed the question with counsel the
following morning, and initially proposed the following answer:

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 STATE v. FARID
Opinion of the Court

The crime of transportation of marijuana for sale requires
proof that the defendant knowingly either transported
marijuana for sale or imported marijuana into Arizona and
the substance was in fact marijuana.

(Emphasis added).

¶8 Farid’s counsel objected to adding anything to the
instructions the superior court had already given, saying “I think adding
‘either,’ I object specifically to that.” The State did not object to removing
the word “either” from the superior court’s proposed answer. The superior
court then gave its proposed response, but omitted the word “either.” Farid
did not immediately renew his objection and the jury resumed its
deliberations.

¶9 Approximately thirty minutes later, Farid’s counsel asked the
superior court to reconvene to discuss an objection to the answer. At this
point, counsel said the Revised Arizona Jury Instructions (RAJI) Standard
for importing marijuana required proof the marijuana was for sale.2
Counsel then asked the superior court to reinstruct the jury. The State asked
the superior court to deny the request, noting “at no point does [the statute]
put ‘import into the state’ next to ‘for sale.’”

¶10 The superior court denied Farid’s motion, noting if counsel’s
representation was accurate, the RAJI itself was incorrect.3 The superior
court went on to say, “if the ‘for sale’ was supposed be included with the
‘import,’ it would have said . . . import for sale into this state” or import
into this state for sale.

¶11 The jury found Farid guilty on both counts. The superior
court sentenced Farid to concurrent 4-year terms of imprisonment with 37
days’ presentence incarceration credit. Farid timely appealed. This court

2 Farid’s trial counsel did not identify which RAJI edition she was
quoting. This court, however, takes judicial notice of the language used in
the outdated Third edition RAJI, which counsel accurately quoted the to the
superior court. See In re Sabino R., 198 Ariz. 424, 425, ¶ 4 (App. 2000); RAJI
(Criminal) STCI 34.0541 (3d ed. 2013).
3 This court also takes judicial notice of the language used in the
Fourth edition RAJI—current at the time of Farid’s trial—which does not
include a “for sale” element in the crime of importing marijuana. See RAJI
(Criminal) STCI 34.0541 (4th ed. 2018).

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 STATE v. FARID
Opinion of the Court

has jurisdiction under Article 6, Section 9, of the Arizona Constitution, and
A.R.S. §§ 12-120.21.A.1, 13-4031, and 13-4033.A.1.

ANALYSIS

¶12 Farid’s appellate counsel argues the superior court’s
instructions “removed an element of the crime that the jury must find to
convict, that the marijuana was imported into the state for sale.”4 This court
reviews a decision to give a jury instruction for abuse of discretion but
reviews de novo whether the instruction correctly states the law. See State v.
Solis, 236 Ariz. 285, 286, ¶ 6 (App. 2014).

¶13 When interpreting a statute, the primary goal is to give effect
to the legislature’s intent, using the statute’s “plain language as the best
indicator of that intent.” See Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz.
320, 323, ¶ 11 (App. 2017). If the language is clear and unambiguous, courts
“must give effect to that language without employing other rules of
statutory construction.” Id.

¶14 Section 13-3405 states, in relevant part:

A. A person shall not knowingly:

....

4 Counsel purports to quote the Fourth edition RAJI to support this
position. In truth, the argument is largely based on language used in the
Third edition RAJI. As stated above, the Third edition was not current at
the time of Farid’s trial. This court assumes counsel made a typographical
error and intended to cite the outdated Third edition. Further:

In 1996, [the Arizona Supreme Court] determined that [it]
would “no longer issue qualified approvals for any jury
instructions.” As a result, the State Bar of Arizona created
standard jury instructions and renamed them the “Revised
Arizona Jury Instructions.” A notice accompanying the
instructions warns users of the new RAJI that “these
instructions, as a group, have not received any approval from
the Arizona Supreme Court.”

See State v. Logan, 200 Ariz. 564, 566, ¶ 12 (2001) (quoting RAJI (Criminal) iii
(2000)).

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 STATE v. FARID
Opinion of the Court

4. Transport for sale, import into this state or offer to transport
for sale or import into this state, sell, transfer or offer to sell or
transfer marijuana.

(Emphasis added).

¶15 Contrary to Farid’s contention, the phrase “for sale” modifies
“transport.” It does not modify “import.” “We presume that the legislature
states its meaning as clearly as possible and that, if it wants to limit the
application of a statute, it does so expressly.” State v. Sanchez, 209 Ariz. 66,
69, ¶ 11 (App. 2004). “Expressio unius est exclusio alterius—the expression of
one item implies the exclusion of others—is appropriate when one term is
reasonably understood as an expression of all terms included in the
statutory grant or prohibition.” City of Surprise v. Ariz. Corp. Comm’n, 246
Ariz. 206, 211, ¶ 13 (2019).

¶16 Here, the presence of the phrase “for sale” in relation to
“transport” but not “import into this state”—not once but twice in the same
paragraph—shows its absence as to “import into this state” was intentional.
Accord State v. Chabolla–Hinojosa, 192 Ariz. 360, 364, ¶ 16 (App. 1998) (noting
in dicta, “an importation charge has no ‘for sale’ element”).

¶17 The statute’s history also supports this interpretation. See
Manic v. Dawes, 213 Ariz. 252, 255, ¶ 14 (App. 2006) (absent clearly
expressed legislative intent to the contrary, unambiguous statutory
language is conclusive). The previous version said, in relevant part:

A. A person shall not knowingly:

....

3. Transport, import into this state, sell, transfer or offer to
transport, import into this state, sell or transfer marijuana.

A.R.S. § 13-3405.A.3 (1986). The legislature added the current language in
1987. See 1987 Ariz. Sess. Laws, ch. 307, § 18 (1st Reg. Sess.).

¶18 The legislature’s decision to add “for sale” after “transport”
but not after “import into this state” strongly indicates the “for sale”
element only applies to the crime of transporting marijuana, not to the
crime of importing marijuana. See generally Manic, 213 Ariz. at 255, ¶ 16
(insertion of notice-of-right-to-jury-trial language into substantive driving
under the influence statute demonstrated legislative intent); Ariz. State
Univ. Bd. of Regents v. Ariz. State Ret. Sys., 242 Ariz. 387, 389, ¶ 7 (App. 2017)

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 STATE v. FARID
Opinion of the Court

(this court strives to “give meaning to each word, phrase, clause, and
sentence . . . so that no part of the statute will be void, inert, redundant, or
trivial.”) (alteration original; internal quotation omitted).

¶19 Consistent with the statute’s plain language and history, a
defendant may be convicted under subsection 13-3405.A.4 by importing
marijuana into the state without proof the defendant imported it “for sale.”
The superior court’s instruction, therefore, “closely tracked the language of
the current statute [and] did not misstate the law.” See State v. Morales, 198
Ariz. 372, 374, ¶ 4 (App. 2000).

CONCLUSION

¶20 For the above reasons and those in the related,
simultaneously-filed memorandum decision, Farid’s convictions are
affirmed.

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

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