Opinion text
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DAMIAN CHRISTOPHER ANDRE, Petitioner,
v.
STATE OF ARIZONA, Respondent.
No. 1 CA-SA 25-0308
FILED 07-24-2026
Petition for Special Action from the Superior Court in Yavapai County
No. S1300CR202480448
The Honorable Michael R. Bluff, Judge
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL
Apfel Law Group, Phoenix
By Seth Apfel
Co-Counsel for Petitioner
Hallam Law Group, PLLC, Phoenix
By Josephine Hallam
Co-Counsel for Petitioner
Yavapai County Attorney's Office, Camp Verde
By Jason Nunez
Counsel for Respondent
ANDRE v. STATE
Opinion of the Court
OPINION
Presiding Judge James B. Morse Jr. delivered the opinion of the Court, in
which Judge Veronika Fabian and Judge Kent E. Cattani joined.
M O R S E, Judge:
¶1 In this special action, Damian Christopher Andre ("Andre")
challenges the superior court's denial of his motion to dismiss his
indictment for providing marijuana to a minor ("J.M."). We accept
special-action jurisdiction but deny relief. Although the Arizona Smart and
Safe Act, A.R.S. §§ 36-2850 to -2865 (the "Act") preempts certain penalties
for a minor possessing marijuana, a minor's possession is still prohibited
under A.R.S. § 13-3405. Therefore, the State can properly charge an adult
under A.R.S. § 13-3409 for providing marijuana to a minor.
FACTS AND PROCEDURAL BACKGROUND
¶2 Andre, a 49-year-old teacher at 14-year-old J.M.'s school, gave
J.M. a vape cartridge filled with THC. In August 2024, the State charged
Andre with four counts, including one count of providing (i.e., selling,
transferring, or offering to sell or transfer) marijuana to a minor, in violation
of A.R.S. § 13-3409(A)(2). Andre moved to dismiss that count. See Ariz. R.
Crim. P. 16.4(b). The superior court denied the motion, finding Andre's
indictment sufficient as a matter of law. This special-action petition
followed.
JURISDICTION
¶3 On October 24, 2025, this Court declined to exercise
special-action jurisdiction. On March 4, 2026, our supreme court granted
Andre's petition for review, vacated this Court's order declining
jurisdiction, and remanded for this Court to consider the merits of his
petition. Accordingly, we accept jurisdiction. See Ariz. R. Spec. Act. P. 12(a)
(stating that we have discretion whether to accept jurisdiction "unless a
statute or an order requires the court to accept jurisdiction").
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ANDRE v. STATE
Opinion of the Court
DISCUSSION
¶4 Andre argues the State cannot charge him with violating
A.R.S. § 13-3409 because the Act supersedes that statute. Alternatively,
Andre argues that even if A.R.S. § 13-3409 survives, sentencing him under
that statute would violate the prohibition against cruel and unusual
punishment under the Eighth Amendment. Andre's first argument fails on
the merits, and his second argument is premature because it cannot be
raised unless and until he is convicted and sentenced.
I. Prosecution Under A.R.S. § 13-3409.
¶5 Andre argues it is improper to prosecute him under A.R.S. §
13-3409 because J.M.'s possession is "prosecutable only under [the Act],"
and J.M.'s possession of marijuana no longer violates A.R.S. § 13-3405. He
argues the Act provides that "a person who is under [21 years old] who
possesses, uses, transports, transfers, or solicits marijuana or cannabis,
particularly in an amount below the [Act's] threshold, is not committing an
offense under Title 13, Chapter 34." Andre also asks us to consider the
voters' intent in passing the Act, specifically to curtail overly harsh
punishments for non-serious marijuana offenses.
¶6 The superior court must dismiss a charge if, on the
defendant's motion, it "finds that the indictment, information or complaint
is insufficient as a matter of law." Ariz. R. Crim. P. 16.4(b). We review the
denial of a motion to dismiss based on the insufficiency of the indictment
for an abuse of discretion. State v. Holmes, 250 Ariz. 311, 313, ¶ 5 (App.
2020). However, we review questions of statutory interpretation de novo.
State v. Mangum, 214 Ariz. 165, 167, ¶ 6 (App. 2007). "When interpreting
statutes, we begin with the text," Franklin v. CSAA Gen. Ins. Co., 255 Ariz.
409, 411, ¶ 8 (2023), and "interpret statutory language in view of the entire
text, considering the context and related statutes on the same subject,"
Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 11 (2019). "When it appears that
two statutes conflict, 'whenever possible, we adopt a construction that
reconciles one with the other, giving force and meaning to all statutes
involved.'" Rueschenberg v. Rueschenberg, 219 Ariz. 249, 252, ¶ 12 (App. 2008)
(quoting UNUM Life Ins. Co. of America v. Craig, 200 Ariz. 327, 333, ¶ 28
(2001)).
¶7 Determining whether the Act conflicts with A.R.S. § 13-3409
requires us to work through multiple cross-referencing statutes. We begin
with A.R.S. § 13-3409(A)(2), which prohibits the transfer of marijuana to a
minor "if its possession is prohibited by [§ 13-3405]." Section 13-3405
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ANDRE v. STATE
Opinion of the Court
prohibits the knowing possession of marijuana "except as provided in §§
36-2852 and 36-2853 [of the Act]."
¶8 Turning to the Act, A.R.S. § 36-2852(A) allows personal
possession of marijuana "except as specifically [] provided in §§ 36-2851 and
36-2853 . . . ." And two subsections of A.R.S. § 36-2851 address possession
by a minor and transfer of marijuana to a minor. Section 36-2851(4)
provides that the Act "[d]oes not allow an individual who is under [21]
years of age to purchase, possess, transport or consume marijuana or
marijuana products." Section 36-2851(5) provides that the Act "[d]oes not
allow the sale, transfer or provision of marijuana . . . to an individual who
is under [21] years of age."
¶9 Tracing these interlocking statutes, A.R.S. § 13-3405(A)
continues to prohibit the knowing possession of marijuana unless A.R.S. §§
36-2852 or -2853 provide otherwise. Here, they do not provide otherwise.
Neither of those sections allow a minor to possess marijuana or provide any
sort of immunity for transferring marijuana to a minor. Instead, A.R.S. §
36-2852, through its reference to A.R.S. § 36-2851, expressly disclaims both.
¶10 Section 36-2853(B) of the Act provides that "[n]otwithstanding
any other law, a person who is under [21] years of age and who possesses"
marijuana shall pay a $100 civil penalty for a first offense, with increasing
penalties for repeat offenses up to a class 1 misdemeanor for a third
violation. This provision thus provides penalties that preempt those
provided elsewhere for marijuana possession by a minor. However, the
plain language of A.R.S. § 13-3405(A) continues to prohibit a minor's
possession of marijuana, and A.R.S. § 13-3409 continues to criminalize the
transfer of marijuana to a minor. Because nothing in the Act purports to
allow a minor to possess marijuana or to allow the transfer of marijuana to
a minor, there is no conflict between the Act and A.R.S. § 13-3405(A).
¶11 Andre asks us to conclude that, because there is a conflict
between the relatively minor penalties provided for a minor's possession of
marijuana under the Act and the harsher penalties for marijuana possession
under A.R.S. § 13-3405(B)–(H), a minor's possession of marijuana is no
longer prohibited by A.R.S. § 13-3405(A). We will not create a conflict
where one does not exist. The Act expressly excludes possession by a minor
and transfer to a minor from its protections such that there is no conflict
between A.R.S. § 13-3405(A) and the Act. This interpretation is consistent
with the text of both the Act and A.R.S. §§ 13-3405(A) and -3409. Therefore,
there is no basis from which to conclude that it is improper to prosecute an
adult for transferring marijuana to a minor under A.R.S. § 13-3409(A)(2).
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ANDRE v. STATE
Opinion of the Court
See State v. Santillanes, 256 Ariz. 534, 539 ¶ 16 (2024) ("[R]epeals by
implication are not favored, and will not be indulged, if there is any other
reasonable construction." (internal quotation omitted)); see also Hernandez v.
Ariz. Bd. of Regents, 177 Ariz. 244, 249 (1994) ("[W]henever possible, this
[C]ourt interprets two apparently conflicting statutes in a way that
harmonizes them and gives rational meaning to both."). The superior court
did not err in denying Andre's motion to dismiss his indictment.
II. Cruel and Unusual Punishment.
¶12 Andre argues that sentencing him under A.R.S. § 13-3409
would violate the Eighth Amendment's prohibition against cruel and
unusual punishment because he could be sentenced within a range of 13–
27 years in prison with his three other counts mandated to run
consecutively. See U.S. Const. amend. VIII; A.R.S. §§ 13-3409(B), -705(E).
Alternatively, if sentenced under the Act, Andre would likely only be
subjected to fines. See e.g., A.R.S. § 13-802. Accordingly, Andre contends
that sentencing him under A.R.S. § 13-3409 would constitute cruel and
unusual punishment because of the "evolving national consensus against
lengthy incarceration for low-level drug offenses."
¶13 The Eighth Amendment's prohibition against cruel and
unusual punishment does not apply "until after the conviction and
sentence." Graham v. Connor, 490 U.S. 386, 392 n.6 (1989); see also Ingraham
v. Wright, 430 U.S. 651, 671 n.40 (1977) ("[T]he State does not acquire the
power to punish with which the Eighth Amendment is concerned until after
it has secured a formal adjudication of guilt in accordance with due process
of law."). Because Andre has not yet been convicted or sentenced, we do
not address this argument.
CONCLUSION
¶14 For the foregoing reasons, we accept jurisdiction but deny
relief.
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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