State v. Cheramie

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0001-PR
)
Appellee, ) Court of Appeals
) Division Two
) No. 2 CA-CR 06-0319
v. )
) Pima County
) Superior Court
ENIS JOHN CHERAMIE, III, ) No. CR20052668
)
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Pima County
The Honorable Charles S. Sabalos, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
217 Ariz. 212, 171 P.3d 1253 (2007)

VACATED IN PART
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel,
Criminal Appeals Section
Joseph L. Parkhurst, Tucson
Assistant Attorney General
Attorneys for State of Arizona

ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By Michael J. Miller, Deputy Public Defender
Attorneys for Enis John Cheramie, III
________________________________________________________________

B E R C H, Vice Chief Justice

¶1 We have been asked to decide whether possession of a
dangerous drug under Arizona Revised Statutes (“A.R.S.”) section

13-3407(A)(1) (2001)1 is a lesser-included offense of

transportation for sale of a dangerous drug under § 13-

3407(A)(7). We hold that it is.

I. FACTS AND PROCEDURAL HISTORY

¶2 On June 8, 2005, a police officer stopped Enis John

Cheramie for a civil traffic violation. Cheramie, the sole

occupant of the vehicle, was arrested for unrelated criminal

offenses. Officers searched Cheramie’s vehicle and discovered

several hundred dollars in the center console and an aerosol can

on the floorboard of the rear passenger seat. Upon closer

inspection, the officers discovered that the can had a false

bottom; hidden inside were two baggies containing 41.9 grams of

methamphetamine.

¶3 A grand jury indicted Cheramie for transportation for

sale of a dangerous drug in violation of A.R.S. § 13-3407(A)(7).2

After the State’s witness failed to appear to testify at trial

regarding the “for sale” element of the transportation for sale

charge, the court granted Cheramie’s motion for a judgment of

1
Unless otherwise indicated, we cite the current version of
our statutes as they have not changed since the commission of
the offenses.
2
Cheramie was also indicted for possession of drug
paraphernalia and second degree escape. See A.R.S. §§ 13-
3415(A) (paraphernalia), 13-2503(A)(2) (escape). Those charges
are not at issue in this appeal.
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acquittal. See Ariz. R. Crim. P. 20. Over Cheramie’s

objection, however, the judge instructed the jury on possession

of a dangerous drug under § 13-3407(A)(1). The jury convicted

Cheramie of the possession offense.

¶4 The court of appeals reversed in a divided opinion.

State v. Cheramie, 217 Ariz. 212, 220, ¶ 27, 171 P.3d 1253, 1261

(App. 2007). The majority held that submission of the

possession charge to the jury was error because possession of

drugs is not a lesser-included offense of transportation of

drugs for sale. Id. at 215-17, ¶¶ 6-14, 171 P.3d at 1256-58.

The court so held because it read State v. Moreno, 92 Ariz. 116,

120, 374 P.2d 872, 875 (1962), as imposing a judicially crafted

“usable quantity” element on the possession offense, while no

such element exists for the transportation for sale offense.

Cheramie, 217 Ariz. at 215-16, ¶¶ 6-7, 171 P.3d at 1256-57. The

majority therefore concluded that allowing the possession charge

to be submitted to the jury would deprive Cheramie of fair

notice of the charges against him. Id. at 216-17, ¶¶ 11, 14,

171 P.3d at 1257-58. The dissenting judge, on the other hand,

reasoned that possession is a lesser-included offense because

one cannot transport dangerous drugs without possessing them.

Id. at 220, ¶ 28, 171 P.3d at 1261 (Espinosa, J., dissenting).

He believed that the “usable quantity” discussion in Moreno

addressed only the sufficiency of the evidence to show knowing
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possession and did not add a new element to the offense. Id. ¶¶

28-29.

¶5 We granted the State’s petition for review to decide

this recurring issue of statewide importance. See Ariz. R.

Crim. P. 31.19. We have jurisdiction pursuant to Article 6,

Section 5(3) of the Arizona Constitution and A.R.S. § 13-4036

(2001).

II. DISCUSSION

¶6 In Arizona, methamphetamine is a “dangerous drug.”

A.R.S. § 13-3401(6)(b)(xiii) (Supp. 2007). It is a crime for

any person to “knowingly . . . [p]ossess . . . a dangerous

drug.” Id. § 13-3407(A)(1). Nor may any person “knowingly

. . . [t]ransport for sale . . . a dangerous drug.” Id. § 13-

3407(A)(7). We must decide whether the former, known as the

“possession” offense, is a lesser-included offense of the

latter, the “transportation for sale” offense.

¶7 If possession is a lesser-included offense of

transportation for sale, then the trial court’s instruction was

proper because a defendant is deemed to have notice of crimes

necessarily included in the offense with which he is charged.

E.g., State v. Wall, 212 Ariz. 1, 4, ¶ 18, 126 P.3d 148, 151

(2006) (requiring lesser-included offense instruction when

evidence supports conviction of lesser-included offense); State

v. Kelly, 123 Ariz. 24, 26, 597 P.2d 177, 179 (1979) (finding no
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prejudicial error when indictment was amended from armed robbery

to robbery); see also Gov’t of V.I. v. Bedford, 671 F.2d 758,

765 (3d Cir. 1982) (finding that lesser-included offense

substitution under federal rule generally permissible); cf.

Ariz. R. Crim. P. 23.3 (requiring trial court to provide verdict

forms “for all offenses necessarily included in the offense

charged”).

¶8 Today’s inquiry presents a question of law, which we

review de novo. See State v. Pandeli, 215 Ariz. 514, 530, ¶ 61,

161 P.3d 557, 573 (2007).

A. Lesser-Included Offense Analysis

¶9 “To constitute a lesser-included offense, the offense

must be composed solely of some but not all of the elements of

the greater crime so that it is impossible to have committed the

crime charged without having committed the lesser one.” State

v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983); accord

State v. Miranda, 200 Ariz. 67, 68, ¶ 2, 22 P.3d 506, 507

(2001); State v. Kinkade, 147 Ariz. 250, 253, 709 P.2d 884, 887

(1985). The legislature defines crimes and their elements, and

“[c]ourts may not add elements to crimes defined by statute.”

Miranda, 200 Ariz. at 69, ¶ 5, 22 P.2d at 508. Our analysis is

therefore limited to the elements of the two relevant offenses

as set forth in Arizona’s criminal code.

¶10 The crime of transportation for sale requires the state
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to prove that the defendant knowingly (1) transported (2) for

sale (3) a dangerous drug. A.R.S. § 13-3407(A)(7). The crime

of possession requires the state to prove that the defendant

knowingly (1) possessed (2) a dangerous drug. Id. § 13-

3407(A)(1). The transportation for sale offense imposes a “for

sale” element not found in the possession offense. Thus, unless

proof of “possess” under § 13-3407(A)(1) requires a showing of

something more than proof of “transport” under § 13-3407(A)(7),

the elements of possession are all included within the elements

of transportation for sale, making possession a lesser-included

offense.

¶11 Arizona’s criminal code defines “possess” to mean

“knowingly to have physical possession or otherwise to exercise

dominion or control over property.” A.R.S. § 13-105(30) (2001).

The code does not define “transport,” but the ordinary

definition means “to carry, move, or convey from one place to

another.” Webster’s College Dictionary 1368 (2d ed. 1997); see

also A.R.S. § 1-213 (2002) (requiring words in statutes to be

construed according to their ordinary meaning); State v. Braun,

185 Ariz. 245, 247, 914 P.2d 1337, 1339 (App. 1995) (applying

similar definition of “transport”). Given Arizona’s broad

definition of “possess,” we cannot conceive how a person can

“transport” drugs without having possession of or dominion or

control over them.
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¶12 The court of appeals reached a similar conclusion in

State v. Chabolla-Hinojosa, 192 Ariz. 360, 965 P.2d 94 (App.

1998), when addressing whether a person can transport marijuana

for sale without possessing it. The court held that Arizona’s

broad definition of “possess” means that one cannot transport

drugs without possessing them. Id. at 363, ¶¶ 12-13, 965 P.2d

at 97. Although Cheramie urges us to overrule Chabolla-

Hinojosa, we decline to do so. The court in Chabolla-Hinojosa

appropriately analyzed and rejected that defendant’s arguments,

which parallel the arguments Cheramie makes here. See id.; see

also In re Pima County Juvenile Delinquency Action No. 12744101,

187 Ariz. 100, 101, 927 P.2d 366, 367 (App. 1996) (holding that

possession of marijuana is a lesser-included offense of sale of

marijuana); State v. Moroyoqui, 125 Ariz. 562, 564, 611 P.2d

566, 568 (App. 1980) (holding that possession of marijuana is a

lesser-included offense of possession for sale and

transportation).

B. The Usable Quantity Requirement

¶13 Cheramie argues that State v. Moreno and its progeny

make possession of a “usable quantity” an element of the

possession offense, while the transportation for sale offense

has no such element. See State v. Ballesteros, 100 Ariz. 262,

265, 413 P.2d 739, 741 (1966) (holding that a “usable quantity”

is not required for sale offenses). Therefore, he reasons, each
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offense requires proof of an element not found in the other –

that is, possession requires a “usable quantity” element and

transportation for sale requires a “for sale” element. Thus, he

would have us conclude that possession cannot be a lesser-

included offense of transportation for sale. Although our

jurisprudence on this subject has not been a model of clarity,

we do not agree.

¶14 Moreno, the case on which Cheramie primarily relies,

must be viewed in context. In 1935, the legislature passed the

Arizona Uniform Narcotics Act of 1935. 1935 Ariz. Sess. Laws,

ch. 26 (Reg. Sess.). The 1935 Act made it “unlawful for any

person to manufacture, possess, have under his control, [or]

sell . . . any narcotic drug . . . .” Id. § 3. Absent from the

1935 Act was a required mental state. Like courts in other

jurisdictions that had adopted similar statutes, Arizona courts

hesitated to conclude that the legislature intended to impose

strict liability for narcotics offenses. See State v. Hunt, 91

Ariz. 149, 153, 370 P.2d 642, 645 (1962) (requiring knowledge of

presence of narcotic drug for possession conviction); Carroll v.

State, 90 Ariz. 411, 412, 368 P.2d 649, 650 (1962) (same). This

Court issued several opinions, including Moreno, that explored

the mental state required for conviction under the 1935 Act.

¶15 Moreno involved a defendant charged with possession of

heroin after officers discovered “a plastic bag containing two
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eye-droppers, one eye-dropper bulb, a plastic needle case with

needles in it, and four cotton wads.” 92 Ariz. at 117, 374 P.2d

at 873. The cotton wads contained approximately 0.2 milligrams

of heroin residue. Id. at 118, 374 P.2d at 873. To prove that

Moreno possessed narcotics, given the minute amount of heroin

found, the prosecution offered evidence that narcotics users

could “wipe[] the tip of the hypodermic needle with a cotton

wad,” save its residue, dissolve it in water, and inject the

resulting solution as a “booster” shot. Id. at 117, 374 P.2d at

873.

¶16 The primary issue in Moreno was “the sufficiency of the

evidence to sustain the conviction” under the 1935 Act. Id. at

118-19, 374 P.2d at 874. The court looked to other

jurisdictions with similar statutes and concluded that “the

correct rule . . . is that where the amount of a narcotic is so

small as to require a chemical analysis to detect its presence,

the quantity is sufficient if useable under the known practices

of narcotic addicts.” Id. at 120, 374 P.2d at 875. Because

testimony existed that 0.2 grams could be used as a narcotic and

the jury was instructed that the defendant had to knowingly

possess the substance, the trial court did not err. Id.

¶17 The inclusion of a “usable quantity” component in

Moreno was not grounded in the notion that the state must show

any particular quantity of drugs to sustain a conviction.
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Indeed, the court noted that “any” amount of narcotics could

suffice. Id. at 119, 374 P.2d at 874. Moreno’s “usable

quantity” statement affirmed that Arizona’s narcotic statute

requires something more than mere possession: it requires

knowing possession. Thus, if the presence of the drug can be

discovered only by scientific detection, to sustain a conviction

the state must show the presence of enough drugs to permit the

inference that the defendant knew of the presence of the drugs.

See id. at 120, 374 P.2d at 875.

¶18 Four years later, this Court applied Moreno’s analysis

in Ballesteros, a case involving the sale of narcotics. 100

Ariz. at 264-65, 413 P.2d at 740-41. Like the statute at issue

in Moreno, the statute in Ballesteros required neither a

particular quantity of drugs nor a mental state.3 Ballesteros

argued that the prosecution failed to prove he possessed a

“usable quantity,” as required by Moreno. Id. at 265, 413 P.3d

at 741. This Court rejected that argument noting that, like all

crimes, the crime of possession “requires a union of act and

intent.” Id. We stated that “the intent necessary to establish

the crime of possession is not present when the amount is so

minute as to be incapable of being applied to any use, even

3
The statute, A.R.S. § 36-1002.02 (Supp. 1963), provided
that “[e]very person who transports [or] sells . . . any
narcotic drug other than marijuana . . . shall be punished by
imprisonment.”
- 10 -
though it might be identifiable as narcotics by chemical

analysis.” Id. (emphasis added). Whether a defendant possesses

a usable quantity rarely arises in the context of selling drugs,

however, because one generally cannot sell a non-usable amount.

Thus, the state can establish the mental state by simply

demonstrating “the transfer of any amount [of drugs] when the

accompanying circumstances indicate an intent to sell.” Id.;

see State v. Ballinger, 110 Ariz. 422, 425, 520 P.2d 294, 297

(1974) (no usable quantity requirement for sale); State v.

Altman, 107 Ariz. 93, 97, 482 P.2d 460, 464 (1971) (same); State

v. Espinosa, 101 Ariz. 474, 476, 421 P.2d 322, 324 (1966)

(same).

¶19 Moreno and Ballesteros guided the courts on this issue

for more than a decade. See State v. Arce, 107 Ariz. 156, 161,

483 P.2d 1395, 1400 (1971) (requiring knowledge for possession);

State v. Quinones, 105 Ariz. 380, 382, 465 P.2d 360, 362 (1970)

(citing Moreno with approval). In 1978, however, the

legislature overhauled Arizona’s criminal code, and also added

the mental state of “knowingly” to the narcotics possession

statute in title 36. 1978 Ariz. Sess. Laws, ch. 201, § 633 (2d

Reg. Sess.).

¶20 Since 1978, we have addressed the “usable quantity”

requirement only once. In State v. DeRosier, 133 Ariz. 154, 650

P.2d 456 (1982), we examined whether the trial court erred in
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denying an instruction permitting the jury to consider the

defendant’s voluntary intoxication as a defense to illegal

possession. In the course of holding that the jury was not

“misled” by a jury instruction that did not track the statutory

language, we stated that it was not improper for the trial court

to instruct the jury that a “usable quantity” is an element of

possession. Id. at 156-57, 650 P.2d 458-59. On that latter

point, we misspoke. To the extent that language in DeRosier

suggests that a “usable quantity” is a required “element” of the

possession offense, we disapprove it.

¶21 A “usable quantity” is neither an element of the

possession offense nor necessary to sustain a conviction for it.

Rather, it is simply evidence from which a factfinder may infer

intent. Because Moreno and its progeny were decided under a

statute that imposed no mental state, proof of a “usable

quantity” helped to ensure that defendants were convicted only

after knowingly committing a proscribed act. The statute now

expressly requires a knowing mental state, and establishing a

“usable quantity” remains an effective way, in a case involving

such a small amount that one might question whether the

defendant knew of the presence of drugs, to show that the

defendant “knowingly” committed the acts described in A.R.S. §

13-3407.

¶22 Nonetheless, possession of a dangerous drug under
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A.R.S. § 13-3407(A)(1) does not require proof of a usable

quantity. Possession therefore is a lesser-included offense of

transportation for sale of a dangerous drug under § 13-

3407(A)(7). The trial court’s instruction on possession was not

improper.

III. CONCLUSION

¶23 For the foregoing reasons, we vacate paragraphs five

through fourteen of the opinion of the court of appeals and

affirm Cheramie’s conviction.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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