State v. Reed

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

GEORGE M. REED, Appellant.

No. 1 CA-CR 19-0701
FILED 03-30-2021

Appeal from the Superior Court in Maricopa County
No. CR2016-005718-001
The Honorable Sally Schneider Duncan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

The Law Office of Kyle T. Green, Tempe
By Kyle T. Green
Counsel for Appellant
 STATE v. REED
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Cynthia J. Bailey joined.

C A T T A N I, Judge:

¶1 George M. Reed appeals his conviction and sentence for sale
or transportation of narcotic drugs (heroin), a class 2 felony. For reasons
that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2016, detectives from the Arizona Department of Public
Safety and Phoenix Police Department conducted a year-long investigation
of illegal drug activity at an apartment complex. Undercover detectives
identified and began using Eddie Flores, who lived at the complex, as a
“middleman” to procure drugs from others in the complex.

¶3 In July 2016, detectives met Flores outside of the apartment he
shared with Reed and asked to buy a quarter ounce of heroin. Flores
telephoned someone to obtain the drugs, and a short time later, Reed
arrived and walked into the apartment. Flores followed Reed into the
apartment. A few minutes later, Flores returned and delivered a bag of
heroin to the detectives. The detectives gave Flores an extra $10 for
arranging the deal.

¶4 In August 2016, a detective sent a text message to Flores
saying he had a friend who wanted to purchase “a ball from OG Reed.”
The detective later testified that “ball” meant 3.5 grams of heroin and that
“OG Reed” was Reed’s nickname. Later that day, detectives met Flores at
the apartment complex, and Flores told them they could meet Reed at
another location to get the heroin. Flores then made a phone call to Reed,
and the detectives heard Flores tell him “they just picked me up,” then ask
Reed if he wanted to meet at a gas station. The detectives recorded the call.

¶5 The detectives drove Flores to the gas station and waited in
the parking lot. While they were waiting for Reed, the detectives gave
Flores $175 for the heroin. Reed eventually pulled up in a van, and Flores
walked over to the van and got in the front passenger seat. Flores then
returned to the detectives’ car with a small plastic bag containing heroin.

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Decision of the Court

¶6 The State charged Reed, as a principal or an accomplice, with
two counts of sale or transportation of narcotic drugs—the first count for
the July 2016 sale and the second count for the August 2016 sale. The jury
acquitted Reed of the first count but convicted him of the second count. The
superior court sentenced Reed as a repetitive offender on felony release at
the time of the offense to 14 years’ imprisonment. See A.R.S.
§§ 13-703(J), -708(D).

¶7 Reed appealed, and we have jurisdiction under A.R.S. § 13-
4033(A)(1).

DISCUSSION

I. Sufficiency of the Evidence.

¶8 Reed argues that the evidence did not support his conviction,
asserting that the State did not establish that he intended to sell drugs to the
detectives. We determine de novo whether the evidence supports a
conviction, viewing the facts in the light most favorable to sustaining the
verdict. State v. Burns, 237 Ariz. 1, 20, ¶ 72 (2015).

¶9 We review this type of claim by assessing whether substantial
evidence supports the jury’s findings. State v. Tison, 129 Ariz. 546, 552
(1981). Evidence is substantial if reasonable jurors could conclude that it
supports a finding of guilt beyond a reasonable doubt. State v. West, 226
Ariz. 559, 562, ¶ 16 (2011).

¶10 To convict Reed, the State had to prove that he knowingly
transported for sale, offered to transport for sale, sold, transferred, or
offered to sell or transfer a narcotic drug or was an accomplice in such a
transaction. A.R.S. §§ 13-3408(A)(7), -303(A)(3). An accomplice is someone
who intendeds to aid or counsel another person in planning or committing
an offense or “[p]rovides means or opportunity to another person to
commit the offense.” A.R.S. § 13-301(2), (3). Generally, criminal intent is
shown by circumstantial evidence because it reflects a defendant’s “state of
mind,” State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009) (quoting State v.
Routhier, 137 Ariz. 90, 99 (1983)), and we do not distinguish “between the
probative value of direct and circumstantial evidence” in assessing the
defendant’s state of mind. See State v. Bible, 175 Ariz. 549, 560 n.1 (1993).

¶11 Reed does not challenge the State’s evidence showing that
Flores sold heroin to the detectives or that he provided heroin to Flores. He
instead argues that (1) the State did not present evidence that he knew
Flores would sell the heroin to the detectives or that he intended to aide

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Decision of the Court

Flores in the sale of the heroin, and (2) his sale or transfer of drugs to Flores
was a discrete transaction different from Flores’s sale to the detectives.

¶12 Both of Reed’s arguments fail because the State proffered
evidence that Reed and Flores were accomplices selling heroin to the
detectives. First, the quantity of drugs involved in the transaction
permitted the jury to infer Reed’s knowledge of Flores’s sale to the
detectives. And Flores contacted Reed after a detective texted Flores and
asked to buy drugs from “OG Reed.” The detective testified that he told
Flores he wanted to buy heroin from Reed because Reed was someone he
could trust, further explaining at trial that he “always ask[ed] for a large
quantity of heroin in order to find out who the main dealer was in the
complex.” The detective’s requested quantity of heroin matched the
amount Reed gave Flores, and the jury could reasonably infer that Reed
knew that Flores was not intending to keep the heroin for his personal use
based on the quantity involved. See, e.g., State v. Cheramie, 218 Ariz. 447,
450, ¶ 18 (2008); State v. Arce, 107 Ariz. 156, 161–62 (1971).

¶13 Additionally, Flores’s transactions were directly traceable to
Reed. Although each transfer was arguably a discrete event, Reed was
involved in the overall transaction with the detectives. See, e.g., State v
Brown, 217 Ariz. 617, 620–21, ¶ 10 (App. 2008). After Flores told the
detectives they could meet Reed somewhere else to get the heroin, Flores
called Reed, telling him that “they just picked me up,” and that they would
meet him at a convenience store. Once Reed arrived, Flores approached
Reed’s van, and Reed gave him the heroin. Flores later told the detectives
that if Reed “didn’t like something, he would have driven off,” but he did
not do so, and one of the detectives testified that he looked at Reed, the
driver and only occupant of the van, for a few seconds before Reed left the
parking lot. And finally, although the jurors acquitted Reed of the charge
relating to the July sale, they heard evidence of his involvement in that sale.
The acquittal did not prevent the jury from considering this other-act
evidence because it was properly admitted under a lesser standard of proof
than that required for conviction of the offense. Cf. State v. Yonkman, 233
Ariz. 369, 374, ¶ 15 (App. 2013).

¶14 Based on this evidence, a reasonable juror could infer that
Reed promoted or facilitated the August 2016 transaction or provided the
means for its occurrence. See, e.g., Cheramie, 218 Ariz. at 450, ¶ 18; see also
State v. McNair, 141 Ariz. 475, 480–81 (1984) (noting that a jury can infer
criminal intent from the relationship of the parties and their conduct before
the crime occurred). Accordingly, Reed’s conviction is supported by
substantial evidence.

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Decision of the Court

II. Alleged Due-Process Violations Under A.R.S. § 13-303(A)(3).

¶15 For the first time on appeal, Reed argues that he was
convicted “under a natural and probable or reasonably foreseeable
consequence theory” and that his conviction on that basis violates due
process. Reed asserts that (1) a jury instruction on the natural and probable
or reasonably foreseeable consequences doctrine allowed the jurors to
apply a lesser mens rea in convicting him as an accomplice than the mens
rea required for a principal, and (2) the language describing the reasonably
foreseeable consequences doctrine in A.R.S. § 13-303(A)(3), which the jury
instruction tracked, is unconstitutionally vague. Because Reed did not
object at trial, we review this issue only for fundamental, prejudicial error.
See State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018).

¶16 Section 13-303(A)(3) imposes criminal liability for the actions
of another person if the defendant is an accomplice to the other’s offense,
and it extends accomplice liability to “include[] any offense that is a natural
and probable or reasonably foreseeable consequence of the offense for
which the person was an accomplice.” But here, Reed was not convicted
under the reasonably foreseeable consequences theory of liability. As
discussed above, substantial evidence that established Reed was Flores’s
accomplice in the sale or transportation of a narcotic drug. The prosecutor
never argued to the jurors that Reed was guilty under the reasonably
foreseeable consequences doctrine, and there was no other offense of which
the sale to the detectives was a reasonably foreseeable consequence.
Instead, Reed’s conduct in selling heroin to the detectives constituted “the
offense for which [Reed] was an accomplice.” See State v. Lee, 236 Ariz. 377,
382, ¶ 16 (App. 2014). Because Reed was convicted as an accomplice of
Flores in the commission of the drug offense itself (not of some other offense
resulting in the drug offense, or vice versa), the challenged aspect of the
statute was not at issue, and we need not address his remaining arguments
challenging its constitutionality.

CONCLUSION

¶17 For the foregoing reasons, we affirm Reed’s conviction and
sentence.

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