State v. Berliew ( 2018 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    ROBIN LORANN BERLIEW, Appellant.
    No. 1 CA-CR 17-0093
    FILED 5-22-2018
    Appeal from the Superior Court in Yavapai County
    No. P1300CR201501127
    The Honorable Patricia A. Trebesch, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    The Hopkins Law Office, P.C., Tucson
    By Cedric Martin Hopkins
    Counsel for Appellant
    STATE v. BERLIEW
    Decision of the Court
    MEMORANDUM DECISION
    Judge Maria Elena Cruz delivered the decision of the Court, in which
    Presiding Judge Michael J. Brown and Judge Patricia A. Orozco1 joined.
    C R U Z, Judge:
    ¶1             Robin Berliew appeals from her convictions and resulting
    probation for two counts of forgery, non-dangerous, non-repetitive, Class 4
    felonies. Berliew argues that the State failed to present evidence of her
    intent to defraud and that the charges for forgery were multiplicitous. We
    hold that (1) the State presented sufficient evidence of her intent to defraud,
    and (2) because possession and presentation are separate acts, they are
    distinct offenses, which though multiplicitous, did not result in prejudice
    since Berliew was not double-punished for the two offenses. We therefore
    affirm.
    FACTUAL AND PROCEDURAL HISTORY
    ¶2             On October 7, 2014, Berliew visited a physician’s assistant in
    Surprise for a checkup and prescription refills. She sought refills for several
    prescriptions including the controlled substance Norco. The physician’s
    assistant found it odd that Berliew sought refills in Surprise when Berliew
    lived in Prescott Valley. She also reviewed the Arizona State Board of
    Pharmacy controlled substances website and noticed Berliew had filled
    prescriptions for thirty days’ worth of Norco and Alprazolam only fourteen
    days earlier. She informed Berliew that she would not be able to fill the
    prescriptions that day because the refills were early. However, after
    Berliew asked her to reconsider, she wrote the prescriptions using black ink,
    dated them October 25, 2014, and informed Berliew she could not refill the
    prescriptions before that date.
    ¶3            On October 23, 2014, Berliew dropped off the Norco
    prescription at the Spring Valley Pharmacy. The pharmacist noted that the
    prescription appeared to have been altered because some of the elements of
    1      The Honorable Patricia A. Orozco, retired Judge of the Court of
    Appeals, Division One, has been authorized to sit in this matter pursuant
    to Article 6, Section 3, of the Arizona Constitution.
    2
    STATE v. BERLIEW
    Decision of the Court
    the prescription had been written over in blue ink, the date had been
    altered, and additional zeros and slashes had been added in blue ink. The
    prescription also had “erythromycin,” an address, and a phone number
    handwritten on it, which the pharmacist testified was an indication the
    prescription had been previously presented to another pharmacy. The
    pharmacist contacted the prescriber, who confirmed that the prescription
    had been altered since it was written.
    ¶4            Once the prescriber confirmed the prescription had been
    altered, the pharmacist called the Yavapai County Sheriff’s Office. An
    officer interviewed both the pharmacist and the prescriber, and the
    prescriber provided a carbon copy of the original Norco prescription. The
    carbon copy showed the prescription had been altered since the prescriber
    had written it.
    ¶5            The State charged Berliew with two counts of forgery, both
    Class 4 felonies, and a jury found her guilty as charged. The superior court
    suspended Berliew’s sentence and placed her on probation for three years.
    ¶6            Berliew timely appealed. We have jurisdiction pursuant to
    Arizona Constitution Article 6, Section 9, and Arizona Revised Statutes
    (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A).
    DISCUSSION
    I.    Rule 20 Motion
    ¶7            Berliew argues the superior court erred by denying her
    Arizona Rule of Criminal Procedure (“Rule 20”) motion because the State
    failed to present evidence Berliew intended to defraud the pharmacy.
    ¶8            We review the superior court’s denial of a Rule 20 motion de
    novo, and we review to determine “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, ¶¶ 15-16 (2011). We resolve conflicting
    evidence in favor of sustaining the verdict. State v. Bearup, 
    221 Ariz. 163
    ,
    167, ¶ 16 (2009).
    ¶9            A person commits forgery if, with intent to defraud, the
    person: (1) “[f]alsely makes, completes or alters a written instrument;” (2)
    “[k]nowingly possesses a forged instrument;” or (3) “[o]ffers or presents,
    whether accepted or not, a forged instrument or one that contains false
    information.” A.R.S. § 13-2002(A). “An intent to defraud may be inferred
    3
    STATE v. BERLIEW
    Decision of the Court
    from circumstantial evidence[.]” State v. Thompson, 
    194 Ariz. 295
    , 297, ¶ 13
    (App. 1999). A defendant’s “conduct and comments are evidence of [her]
    state of mind.” State v. Routhier, 
    137 Ariz. 90
    , 99 (1983).
    ¶10             The evidence is sufficient as to both counts of forgery, for
    possession and presentation respectively. Berliew does not dispute that the
    Norco prescription was altered or that she presented it to be filled.
    Furthermore, Berliew’s actions support the conclusion that she intended to
    defraud. Berliew travelled from Prescott to Surprise to request the refill for
    multiple prescriptions for controlled substances, but she had refilled a
    thirty-day supply of those same prescriptions two weeks earlier. Carbon
    copies of the prescriptions demonstrated the prescriptions had been altered
    since they were written, and the prescriber denied altering the prescriptions
    in any way after she wrote them. The prescriber testified because Berliew
    sought to have the Norco prescription filled earlier than the allowable thirty
    days and was insistent that returning at a later date would cause a hardship,
    she finally wrote the prescription, but said Norco prescription was
    postdated to be filled no sooner than October 25, 2014. She explained to
    Berliew why the prescription was postdated and that she could not have
    the prescription filled before October 25, 2014. The prescriber also testified
    she never used blue ink to write her prescriptions, and the alterations to the
    prescription were made in blue ink. Additionally, the pharmacist testified
    the handwritten “erythromycin,” date, and phone number on the
    prescription indicated that the prescription had been previously presented
    to another pharmacy. Finally, when the pharmacist told Berliew she could
    not fill the prescription and that she had contacted the sheriff’s department,
    Berliew asked if she was going to be in trouble and if she could have the
    prescription back. Viewing this evidence in the light most favorable to the
    prosecution, 
    West, 226 Ariz. at 562
    , ¶ 16, we hold that sufficient evidence
    supported the court’s denial of Berliew’s Rule 20 motion.
    II.    The Indictment
    ¶11           Berliew argues the charges in the indictment were
    multiplicitous because there was only one act that was charged in both
    counts. We agree that Berliew was convicted of multiplicitous charges, but
    we do not vacate the conviction and sentence, see State v. Welch, 
    198 Ariz. 554
    , 558, ¶ 13 (2000) (stating this Court may correct the error of convicting
    a defendant to multiplicitous charges by vacating the conviction and
    sentence for the lesser-included crime), because Berliew does not show she
    was prejudiced by the error, see State v. Perez, 
    233 Ariz. 38
    , 41, ¶ 9 (App.
    2013) (providing that failure to argue fundamental error on appeal waives
    argument).
    4
    STATE v. BERLIEW
    Decision of the Court
    ¶12            Whether charges are multiplicitous is a question of law that
    we review de novo. State v. Burns, 
    237 Ariz. 1
    , 22, ¶ 83 (2015). Because
    Berliew did not argue that the charges were multiplicitous at the trial level,
    we only review the claim for fundamental error. 
    Id. at ¶
    84. To prevail on
    fundamental error review, Berliew must “establish both that fundamental
    error exists and that the error in [her] case caused [her] prejudice.” State v.
    Henderson, 
    210 Ariz. 561
    , 567, ¶ 20 (2005). Fundamental error is “error going
    to the foundation of the case, error that takes from the defendant a right
    essential to [her] defense, and error of such magnitude that the defendant
    could not possibly have received a fair trial.” 
    Id. at ¶
    19.
    ¶13             “Charges are multiplicitous if they charge a single offense in
    multiple counts.” Merlina v. Jejna, 
    208 Ariz. 1
    , 4, ¶ 12 (App. 2004). Offenses
    are not multiplicitous if each requires proof of a fact that the other does not.
    Id.; see Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932).
    ¶14            Section 13-2002(A)(2) provides that “[a] person commits
    forgery if, with intent to defraud, the person . . . [k]knowingly possesses a
    forged instrument.” Section 13-2002(A)(3) provides that “[a] person
    commits forgery if, with intent to defraud, the person . . . [o]ffers or
    presents, whether accepted or not, a forged instrument or one that contains
    false information.” Although possession and presentation are separate acts,
    State v. Morris, 2 CA-CR 2015-0277, 
    2017 WL 1366925
    , at *8, ¶ 35 (Ariz. App.
    Apr. 13, 2017) (mem. decision), a textual comparison of the elements
    demonstrates that the elements of A.R.S. § 13-2002(A)(2) are a subset of
    A.R.S. § 13-2002(A)(3), State v. Welch, 
    198 Ariz. 554
    , 557, ¶ 9 (2000). Because
    both offenses are listed in A.R.S. § 13-2002(A), which requires the person
    who commits either crime do so “with intent to defraud,” the intent is the
    same for both crimes. See 
    Welch, 198 Ariz. at 557
    , ¶ 10.
    ¶15           The next question is whether a defendant is able to “[o]ffer[]
    or present[] a forged instrument or one that contains false information”
    without “knowingly possessing a forged instrument.” The answer is “no.”
    Although offering or presenting a forged instrument requires further
    factual proof than knowingly possessing a forged instrument, a defendant
    must knowingly possess a forged instrument in order to offer or present
    that instrument. Given the broad definition of “possess,” 2 it is impossible
    2      “Possess means knowingly to have physical possession or otherwise
    to exercise dominion or control over property.” A.R.S. § 13-105(34). A
    person “who exercises dominion or control over property has constructive
    possession of it even if it is not in his physical possession.” State v.
    Gonsalves, 
    231 Ariz. 521
    , 523, ¶ 9 (App. 2013).
    5
    STATE v. BERLIEW
    Decision of the Court
    to offer or present a forged instrument without first possessing the forged
    instrument. Consequently, possession of a forged instrument is a lesser
    included offense of the greater crime of offering or presenting a forged
    instrument. As such, alleging both offenses result in a multiplicitous
    charge. But multiplicitous charges are not illegal “so long as multiple
    punishments are not imposed.” See 
    Merlina, 208 Ariz. at 4
    , ¶ 14.
    ¶16           Additionally, Berliew does not argue she was prejudiced by
    the multiplicitous charge. Nor can she; the superior court suspended the
    imposition of sentence and placed Berliew on supervised probation for
    three years.3 Therefore, Berliew cannot show she was subjected to double
    punishment, because she was not ordered to serve any additional time on
    probation for the lesser included offense than the time she was ordered to
    serve for the greater offense. Because Berliew has not shown she was
    subjected to double punishment for the same act, we affirm her convictions
    and sentence.
    CONCLUSION
    ¶17           For the foregoing reasons, we affirm Berliew’s convictions
    and the resulting imposition of the probation term.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    3      The maximum statutory period of probation for a Class 4 felony is
    four years. A.R.S. § 13-902(A)(3).
    6
    

Document Info

Docket Number: 1 CA-CR 17-0093

Filed Date: 5/22/2018

Precedential Status: Non-Precedential

Modified Date: 5/22/2018