State v. Olivier ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CASANDRA DONNELLE OLIVIER, Appellant.
No. 1 CA-CR 22-0294
FILED 3-7-2023
Appeal from the Superior Court in Yavapai County
No. V1300CR202080064
The Honorable Debra R. Phelan, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Bain & Lauritano, P.L.C., Glendale
By Sheri M. Lauritano
Counsel for Appellant
STATE v. OLIVIER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Daniel J. Kiley joined.
C R U Z, Judge:
¶1 This appeal was filed in accordance with Anders v. California,
386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969). Counsel for
Casandra Donnelle Olivier has advised this Court that counsel found no
arguable questions of law and asks us to search the record for fundamental
error. Olivier appeals her convictions and sentences for one count of
possession of dangerous drugs for sale, a class 2 felony (“count 1”), and one
count of possession of drug paraphernalia, a class 6 felony (“count 2”). She
does not appeal her conviction and sentence on a charge of failure to appear
in the first degree. After reviewing the record, we affirm Olivier’s
convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 We review the facts in the light most favorable to sustaining
the conviction and resolve all reasonable inferences against Olivier. See
State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
¶3 In January 2020, after an informant reported
methamphetamine was being sold at Olivier’s father’s trailer, a Yavapai
County Sheriff’s Office Deputy, together with the Camp Verde Marshall’s
Office, obtained and executed a search warrant at that location. One
detective found a safe in the trailer containing approximately one ounce of
methamphetamine divided into sellable quantities: three baggies
containing one sixteenth of an ounce of methamphetamine and seven
baggies containing one eighth of an ounce of methamphetamine. The
detectives also located methamphetamine in a kitchen cabinet and found
drug paraphernalia for methamphetamine use including spoons, unused
sandwich bags, and pipes and a scale with residue.
¶4 Olivier admitted to traveling to Phoenix to pick up
methamphetamine for her father; daily going into the trailer to care for her
father; knowing methamphetamine was in the trailer; and sending
individuals to the trailer to buy methamphetamine from her father. Cell
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STATE v. OLIVIER
Decision of the Court
phone evidence from Olivier’s phone confirmed her trip to Phoenix and
showed text messages with various individuals discussing
methamphetamine sales.
¶5 In January 2020, a grand jury indicted Olivier on one count of
possession of dangerous drugs for sale and one count of possession of drug
paraphernalia. At trial, Olivier denied intent to sell methamphetamine
with her father, cutting or parceling methamphetamine, or writing on the
baggies containing methamphetamine. Olivier testified the text messages
referencing methamphetamine sales were not on her SIM card and were
sent before she received the phone from her father’s friend who was on
parole and involved with methamphetamine. Olivier also testified she did
not know her friend was buying methamphetamine on the trip to Phoenix,
and she claimed to only know methamphetamine was in her father’s trailer
because she moved it out of reach of the children the morning of the search.
Olivier testified she was innocent but stipulated she saw methamphetamine
and methamphetamine paraphernalia in her father’s trailer and the
substances law enforcement seized were methamphetamine.
¶6 In July 2021, the jury convicted Olivier on both counts and
found the presence of an accomplice to be an aggravating factor. Olivier
absconded before sentencing but was arrested five months later.1 In June
2022, the superior court conducted a sentencing hearing in compliance with
Olivier’s constitutional rights and Arizona Rule of Criminal Procedure
(“Rule”) 26. The court found Olivier’s prior conviction within the last ten
years to be an aggravating factor and found her drug addiction, strong
family support, completed counseling, and attempts to improve herself
while in custody to be mitigating factors. The court sentenced Olivier to a
term of 7 years’ imprisonment with a presentence incarceration credit of
231 days and imposed the applicable fines and fees.
1 Although Olivier delayed sentencing for more than ninety days by
absconding, the record does not show the superior court informed her
before trial that, pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-
4033(C), her voluntary absence could result in forfeiture of her right to
appeal from a judgment of conviction. As such, we consider her appeal.
See State v. Bolding, 227 Ariz. 82, 88, ¶ 20 (App. 2011) (waiver of right to
appeal pursuant to § 13-4033(C) requires the defendant “has been informed
he could forfeit the right to appeal” by absconding).
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STATE v. OLIVIER
Decision of the Court
¶7 Olivier timely appealed, and we have jurisdiction pursuant to
Arizona Constitution Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and -4033(A)(1).
DISCUSSION
I. Sufficiency of the Evidence
¶8 We review the entire record for reversible error. See State v.
Thompson, 229 Ariz. 43, 45, ¶ 3 (App. 2012). Prior counsel for Olivier, Nicole
Countryman, has advised this Court that after a diligent search of the
record, counsel has found no arguable question of law.2 However, in her
pro per supplemental brief, Olivier argues the superior court erred in
denying her Rule 20(a)(1) motion for acquittal because the State “failed to
meet its evidentiary burden.” We review the superior court’s denial of a
Rule 20 motion de novo. State v. Boyston, 231 Ariz. 539, 551, ¶ 59 (2013).
¶9 Before the verdict, a defendant may move for a judgment of
acquittal under Rule 20(a)(1) “if there is no substantial evidence to support
a conviction.” “Substantial evidence is more than a mere scintilla and is
such proof that reasonable persons could accept as adequate and sufficient
to support a conclusion of defendant’s guilt beyond a reasonable doubt.”
State v. Mathers, 165 Ariz. 64, 67 (1990) (citation and internal quotation
marks omitted). “[T]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.” State v. West, 226 Ariz. 559, 562, ¶ 16 (2011) (citations
and internal quotation marks omitted).
¶10 On count 1, the statute required the State to show Olivier
(1) knowingly possessed, (2) a dangerous drug (methamphetamine), (3) for
purposes of sale. See A.R.S. §§ 13-3407(A)(2), -3401(6)(c)(xxxviii).
Possession includes constructive possession “when the prohibited property
is found in a place under [the defendant’s] dominion [or] control and under
circumstances from which it can be reasonably inferred that the defendant
had actual knowledge of the existence of the [property].” State v. Cox, 214
2 Ms. Nicole Countryman was initially assigned as appellate counsel.
After the superior court granted her motion to withdraw, the court
appointed Sheri Lauritano. We denied Ms. Lauritano’s motion to extend
the time to file an opening brief because Olivier had already filed a pro per
supplemental brief.
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STATE v. OLIVIER
Decision of the Court
Ariz. 518, 520, ¶ 10 (App. 2007) (citation and internal quotation marks
omitted). For sale means “exchang[ing]” methamphetamine “for anything
of value or advantage, present or prospective.” A.R.S. § 13-3401(32).
¶11 The evidence at trial showed Olivier admitted to previously
living in the searched trailer, entering the trailer daily to care for her father,
knowing her father stored and sold methamphetamine in the trailer, and
sending customers to her father to buy methamphetamine. She also
stipulated that the located substances were methamphetamine and
admitted to moving an ounce of methamphetamine across county lines for
her father. The State also presented testimony from a law enforcement
officer knowledgeable in drug sales that the quantity and packaging of the
methamphetamine, as well as the baggies, safe, and scale, were indicative
of possession for sale. See A.R.S. § 13-3407(A)(2). No evidence was
presented showing the amount of methamphetamine was consistent with
personal use, and not for the purpose of sale.
¶12 On count 2, the statute required the State to show Olivier
used, or possessed with the intent to use, “drug paraphernalia to . . . pack,
repack, store, contain, [or] conceal” methamphetamine. See A.R.S. § 13-
3415(A). Drug paraphernalia includes “equipment, products and materials
of any kind that are used, intended for use or designed for use” in the
“packaging, repackaging, storing, containing, [or] concealing” a drug in
violation of the law. A.R.S. § 13-3415(F)(2).
¶13 Olivier admitted giving her father the safe he used to store
and conceal his methamphetamine and paraphernalia. Because she
admitted entering the trailer daily, knowing her father sold
methamphetamine from the trailer, and moving the methamphetamine out
of children’s reach the morning of the search, jurors could “reasonably
infer[]” Olivier “had actual knowledge of the existence of the” baggies,
scale, spoons, and other drug paraphernalia located in the trailer. See Cox,
214 Ariz. at 520, ¶ 10 (citation omitted). Substantial evidence supports both
convictions, and the court properly denied Olivier’s Rule 20(a)(1) motion
for acquittal.
II. Lesser-Included Jury Instruction
¶14 Olivier also argues that, although the superior court
instructed the jury that it may find her guilty of possession of
methamphetamine for sale (separately defining “sale”) or the lesser-
included offense of possession of methamphetamine, the court erred by
listing only the elements of the former, but not the latter. Olivier claims this
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STATE v. OLIVIER
Decision of the Court
failure to restate the elements of simple possession of methamphetamine
was fundamental error requiring reversal.
¶15 “Fundamental error is error going to the foundation of the
case, error that takes from the defendant a right essential to his defense, and
error of such magnitude that the defendant could not possibly have
received a fair trial.” State v. Robles, 213 Ariz. 268, 272, ¶ 12 (App. 2006)
(citations and internal quotation marks omitted). “To prevail under this
standard of review, a defendant must establish both that fundamental error
exists and that the error in his case caused him prejudice.” Id.¶16 The jury instructions read, in pertinent part, as follows:
Possession of Dangerous Drugs for Sale (Methamphetamine)
In COUNT 1, the defendant is charged with Possession of
Dangerous Drugs for Sale (Methamphetamine), which crime requires proof
of the following:
1. The defendant knowingly possessed a dangerous drug;
and
2. The substance was in fact a dangerous drug, and
3. The possession must be for purpose of sale. “Sale” means
an exchange for anything of value or advantage, present
or prospective.
...
Lesser Included Offense to Possession of Dangerous Drugs for Sale
The crime of Possession of Dangerous Drugs for Sale
(Methamphetamine) includes the lesser offense of Possession of Dangerous
Drugs (Methamphetamine). You may consider the lesser offense of
Possession of Dangerous Drugs (Methamphetamine) if either:
1. You find the defendant not guilty of Possession of
Dangerous Drugs for Sale, or
2. After full and careful consideration of the facts, you cannot
agree on whether to find the defendant guilty or not guilty
of Possession of Dangerous Drugs for Sale.
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STATE v. OLIVIER
Decision of the Court
You cannot find the defendant guilty of Possession of
Dangerous Drugs (Methamphetamine) unless you find that the State has
proved each element of Possession of Dangerous Drugs
(Methamphetamine) beyond a reasonable doubt.
¶17 Assuming arguendo that a lesser-included jury instruction on
simple possession was necessary, the instruction on possession of
methamphetamine for sale laid out the elements of possession of
methamphetamine and separately defined the term “sale,” such that
members of the jury could easily differentiate between the elements of the
crime for the greater and lesser offenses.
¶18 “In non-capital cases, when the defendant requests a lesser
included offense instruction that is supported by the evidence, failure to
give it constitutes fundamental error if the failure impedes the defendant’s
ability to present his defense.” State v. Valenzuela, 194 Ariz. 404, 407, ¶ 15
(1999). At trial, Olivier did not request any version of the lesser-included
offense instruction on possession of methamphetamine. In fact, defense
counsel noted that “[t]his [was] a possession-for-sale case, not a possession
case.” Because Olivier did not request the lesser-included offense
instruction, failed to object to the proposed version of the instruction, and
even suggested it was altogether unnecessary, she cannot now argue that
failure to provide a separate definition of the lesser-included offense was
error. See State v. Fish, 222 Ariz. 109, 132, ¶ 79 (App. 2009) (“We will not
reverse a judgment on a ground which is allegedly erroneous, even if the
error was fundamental, when the appellant invited that error.”).
¶19 Olivier also has not shown prejudice from the failure to give
a complete definition of the lesser-included offense because the alleged
failure did not present an impediment to Olivier presenting a complete
defense. See Valenzuela, 194 Ariz. at 407, ¶ 15. At trial, although inconsistent
with statements made to law enforcement, Olivier claimed she had no
knowledge that her friend was traveling to Phoenix to pick up an ounce of
methamphetamine or that her father sold methamphetamine from his
trailer. Instead, she advanced the defense theory that she had no connection
with the methamphetamine, never possessed the methamphetamine, and
was unaware her father was selling methamphetamine. Olivier therefore
foreclosed the necessity of the lesser-included offense instruction because
there was no evidence, or even argument offered, to support a theory that
Olivier may have possessed methamphetamine for personal use. As such,
the lesser-included offense jury instruction was unwarranted in this case.
Olivier has failed to show fundamental error. See Robles, 213 Ariz. at 272,
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STATE v. OLIVIER
Decision of the Court
¶ 12 (citation omitted). The superior court did not err when it instructed
the jury.
III. Prosecutorial Misconduct3
¶20 Olivier also alleges prosecutorial misconduct. For reversal, a
defendant must show a prosecutor’s alleged misconduct “so infected the
trial with unfairness as to make the resulting conviction a denial of due
process” and was “so pronounced and persistent that it permeate[d] the
entire atmosphere of the trial.” State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998)
(citations and internal quotation marks omitted).
¶21 Olivier argues “no evidence was presented to the jury from
which one could reasonably infer that Olivier sent the text messages”
discussing methamphetamine sales. Although Olivier argued at trial that
the text messages were not from her SIM card and she therefore did not
send them, the State presented evidence that Olivier admitted to law
enforcement during the search that she sent the text messages discussing
methamphetamine sales to various individuals and sent those individuals
to her father to buy methamphetamine.
¶22 Olivier also claims, “no evidence was presented that any
substance not tested was methamphetamine,” but Olivier stipulated “the
substances seized by law enforcement in this case were . . . sent to the
Department of Public Safety crime lab for testing . . . [and] are in fact
methamphetamine.” (Emphasis added.)
¶23 Olivier last alleges the State “blatantly misstate[d]” her
testimony and claims that although she now knows her father was selling
methamphetamine, she was unaware when speaking to law enforcement.
While law enforcement executed the search warrant on her father’s trailer,
Olivier admitted she knew her father was selling methamphetamine from
his trailer. And she admitted to moving an ounce of methamphetamine
3 As our supreme court has explained, the term “prosecutorial
misconduct” broadly encompasses any conduct that violates a defendant’s
constitutional rights and “sweeps in prosecutorial conduct ranging from
inadvertent error or innocent mistake to intentional misconduct.” State v.
Murray, 250 Ariz. 543, 548, ¶ 12 (2021) (quoting In re Martinez, 248 Ariz. 458,
469, ¶ 45 (2020)). Consistent with the court’s directive in Martinez, we refer
to prosecutorial “error” because Olivier has not expressly alleged
intentional misconduct or an ethical violation on the prosecutor’s part. See
Martinez, 248 Ariz. at 470, ¶ 47.
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STATE v. OLIVIER
Decision of the Court
across county lines for him, sending people to him to buy
methamphetamine, and providing him with a safe to store his
methamphetamine and paraphernalia. Olivier has not shown misconduct.
See id.
CONCLUSION
¶24 We have read and considered counsel’s brief, Olivier’s
supplemental brief, and fully reviewed the record for reversible error, see
Leon, 104 Ariz. at 300, and find none. All proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. So far as the
record reveals, counsel represented Olivier at all stages of the proceedings,
and the sentences imposed were within the statutory guidelines. We
decline to order briefing and affirm Olivier’s convictions and sentences.
¶25 Upon the filing of this decision, defense counsel shall inform
Olivier of the status of the appeal and of her future options. Counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Olivier shall have
thirty days from the date of this decision to proceed, if she desires, with a
pro per motion for reconsideration or petition for review.
¶26 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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