IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
DARREL SCOTT FRANCIS,
Appellant.
No. CR-17-0062-PR
Filed February 5, 2018
Appeal from the Superior Court in Navajo County
The Honorable Dale P. Nielson, Judge
Nos. CR-2015-00087; CR-2015-000700
_________________
Opinion of the Court of Appeals, Division One
241 Ariz. 449 (App. 2017)
VACATED AND REMANDED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Michael Valenzuela (argued),
Assistant Attorney General Criminal Appeals Section, Phoenix, Attorneys
for State of Arizona
Criss E. Candelaria (argued), Criss Candelaria Law Office P.C., Concho,
Attorneys for Darrel Scott Francis
STATE V. FRANCIS
Opinion of the Court
Randy McDonald (argued), Osborn Maledon, P.A., Phoenix; Keith J.
Hilzendeger, Assistant Federal Public Defender, Phoenix; and Carol
Lamoureux, Law Offices of Hernandez & Hamilton, PC, Tucson, Attorneys
for Amicus Curiae Arizona Attorneys for Criminal Justice
JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICES
BRUTINEL, TIMMER, and GOULD, and JUDGE MORAN joined.*
JUSTICE BOLICK, opinion of the Court:
¶1 We consider in this case whether the state must prove that a
defendant knew an item he possessed was “contraband” to convict the
defendant under A.R.S. § 13-2505(A) of knowingly possessing contraband
while being confined in a correctional facility or transported to it. We hold
that when such a defendant possesses an item that is statutorily defined as
contraband, the state need prove only that the defendant knowingly
possessed the item, not that the defendant knew it was contraband.
BACKGROUND
¶2 In October 2014, officers booked Darrel Scott Francis into the
Navajo County Jail Annex on charges unrelated to this case. Upon booking,
officers took and bagged Francis’ personal property, including clothing and
a cellphone. The next day, Francis asked to call his attorney. When the
officer could not find the attorney’s number, Francis told her he had it in
his cellphone, which the officer retrieved to obtain the number. Later,
Francis was transferred to the main jail, where an officer confiscated a
cellphone held by Francis.
¶3 The State charged Francis under A.R.S. § 13-2505(A)(1) and
(A)(3) with two counts of promoting prison contraband, one for obtaining
*Justice John R. Lopez IV has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Mark R.
Moran, Presiding Judge of the Coconino County Superior Court, was
designated to sit in this matter.
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STATE V. FRANCIS
Opinion of the Court
or possessing the cellphone in the jail annex or during transport and the
other for taking it inside the jail grounds. Before trial, the superior court
ruled that the State need not prove that Francis knew the cellphone was
contraband. The jury found Francis guilty, and the court sentenced him to
two concurrent five-year prison terms.
¶4 The court of appeals reversed Francis’ convictions and
sentences, applying A.R.S. § 13-202(A) to conclude that the State had to
prove that Francis knew that the cellphone was contraband. State v. Francis,
241 Ariz. 449, 452–54 ¶¶ 12–21 (App. 2017). In light of its ruling, the court
of appeals declined to address Francis’ argument that the trial court also
erred by allowing the State to call his former lawyer to testify about Francis’
prior convictions. Id. at 454 ¶ 24 n.6.
¶5 We granted review to clarify what the state must prove to
convict a defendant under A.R.S. § 13-2505(A), a recurring issue of
statewide importance. We have jurisdiction under article 6, section 5(3) of
the Arizona Constitution and A.R.S. § 12-120.24.
DISCUSSION
¶6 We review issues of statutory interpretation de novo.
Fitzgerald v. Myers, 243 Ariz. 84, 88 ¶ 8 (2017). When the statutory language
is clear and has only one reasonable construction, we apply it according to
its plain meaning. State v. Burbey, 243 Ariz. 145, 147 ¶ 7 (2017). As this case
involves the intersection of multiple statutes, we construe them together, id.
at 148 ¶ 13, seeking to give meaning to all provisions. Collins v. Stockwell,
137 Ariz. 416, 419 (1983).
¶7 Francis was convicted of promoting prison contraband by
“knowingly taking contraband into a correctional facility or the grounds of
a correctional facility” and “knowingly . . . obtaining or possessing
contraband while being confined in a correctional facility or while being
lawfully transported or moved incident to correctional facility
confinement.” A.R.S. § 13-2505(A)(1), (A)(3). Section 13-2501(1) defines
“contraband” as “any dangerous drug, narcotic drug, marijuana,
intoxicating liquor of any kind, deadly weapon, dangerous instrument,
explosive, wireless communication device, multimedia storage device or
other article whose use or possession would endanger the safety, security
or preservation of order in a correctional facility.” It is uncontested that
Francis knew he possessed a cellphone at the relevant times and that a
cellphone is a “wireless communication device” defined as contraband
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STATE V. FRANCIS
Opinion of the Court
under § 13-2501(1).
¶8 Francis argues, and the court of appeals majority agreed, that
the State had to prove that he knew that the cellphone was contraband. The
court of appeals relied on A.R.S. § 13-202(A), which provides that “[i]f a
statute defining an offense prescribes a culpable mental state that is
sufficient for commission of the offense without distinguishing among the
elements of such offense, the prescribed mental state shall apply to each
such element unless a contrary legislative purpose plainly appears.”
Francis, 241 Ariz. at 452 ¶ 12. Because § 13-2505(A) requires a defendant to
“knowingly” obtain or possess contraband, the court construed it “to
require proof not only that the defendant knowingly obtained or possessed
a proscribed object, but also that the defendant knew the object was
contraband, within the meaning of the statute.” Id. at 453 ¶ 16.
¶9 The statutory scheme as a whole, however, does not require
proof that Francis knew the cellphone was statutorily defined as
“contraband.” Section 13-105(10)(b) defines “knowingly” in this context to
mean “that a person is aware or believes that the person’s conduct is of that
nature or that the circumstance exists. It does not require any knowledge
of the unlawfulness of the act or omission.” Section 13-204(B) further
establishes that “[i]gnorance or mistake as to a matter of law does not
relieve a person of criminal responsibility.”
¶10 Reading the statutes together refutes Francis’ argument and
the court of appeals’ conclusion that it was necessary for the State, in
addition to proving that Francis knew he had a cellphone, to also prove he
knew it was contraband. Had § 13-2505(A) proscribed possession of
wireless communication devices instead of listing it among other items
under the category “contraband,” there would be no question that the State
would only have to prove that Francis knew he possessed a cellphone
because “knowingly” would relate directly to the wireless communications
device. The outcome is not different merely because the legislature defined
contraband in a separate section. Because “contraband” is a statutorily
defined term, § 13-2505(A) effectively prohibits the “knowing” possession
of the items listed in § 13-2501(1). It does not by its terms require a
defendant to know that such items cannot be lawfully possessed while in a
correctional facility or while being transported to one, which comports with
the other statutes generally declaring that knowledge of unlawfulness is not
an element of crimes and that ignorance of the law is not a defense. Francis’
unawareness that his cellphone was contraband was “ignorance or mistake
as to a matter of law,” which is not a defense and thus knowledge of his
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STATE V. FRANCIS
Opinion of the Court
cellphone’s legal status is not an element of the crime unless the legislature
clearly so states. See § 13-204(B).
¶11 This construction gives effect to all five statutes at issue. It
requires proof that Francis knowingly committed every element of the
crime (§ 13-202(A)), including that he knowingly obtained or possessed
(and took into a correctional facility) contraband (§ 13-2505(A)(1), (A)(3)),
the definition of which includes cellphones (§ 13-2501(1)), but knowledge
of its unlawfulness is not an element of the crime (§ 13-105(10)(b)), and
about which Francis’ ignorance or mistake is not a defense (§ 13-204(B)).
¶12 Our decision is in line with United States Supreme Court
jurisprudence. That Court has repeatedly held that knowledge of an act,
even without understanding its legal significance, can establish the
culpable mental state necessary for conviction of a crime that must be
“knowingly” committed. See McFadden v. United States, 135 S. Ct. 2298
(2015); Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513 (1994). In
McFadden, the statute at issue made it unlawful to knowingly manufacture,
distribute, or possess with intent to distribute the “analogues” to the
substances listed on the federal controlled substances schedules. 135 S. Ct.
at 2302. The Court held that the requisite culpable mental state could be
established in two ways. The government could show that the defendant
knew that the substance was controlled or an analogue, even if he did not
know its identity. Id. Or, more relevant here, he could be convicted if he
“knew the specific features of the substance that make it a ‘controlled
substance analogue.’” Id. (quoting 21 U.S.C § 802(32)(A)). As the Court
explained, “[a] defendant who possesses a substance with knowledge of
those features knows all of the facts that make his conduct illegal,” and need
not know of the statute making it a controlled substance. Id. at 2305. See
also Posters ‘N’ Things, 511 U.S. at 524 (“[A]lthough the government must
establish that the defendant knew that the items at issue are likely to be
used with illegal drugs, it need not prove specific knowledge that the items
are ‘drug paraphernalia’ within the meaning of the statute.”); Hamling v.
United States, 418 U.S. 87, 123 (1974) (“[T]o require proof of a defendant’s
knowledge of the legal status of the materials would permit the defendant
to avoid prosecution by simply claiming that he had not brushed up on the
law.”).
¶13 State v. Bloomer, 156 Ariz. 276 (App. 1987), on which Francis
and the court of appeals rely, does not persuade us to reach a different
result. Bloomer involved a slightly different context. There the defendant
believed that the substance concealed in his body was marijuana, but it was
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STATE V. FRANCIS
Opinion of the Court
actually gunpowder. Id. at 278. Section 13-204(A)(1) provides a defense for
mistake of fact if “it negates the culpable mental state required for
commission of the offense.” Because both marijuana and gunpowder were
statutorily defined as contraband, and the defendant knew that marijuana
was contraband, the court concluded that the defendant knowingly
possessed contraband. Bloomer, 156 Ariz. at 278–79. Bloomer reached the
right result, but the opinion was incorrect to the extent it held that a
defendant may be convicted only if he knows a particular item is
contraband.
¶14 We hold that a defendant is guilty of possessing contraband
if he knowingly possesses one of the items specifically proscribed by
§ 13-2505(A), and the trial court correctly ruled that the State did not have
to prove that Francis knew the cellphone was contraband.
CONCLUSION
¶15 For the foregoing reasons, we vacate the court of appeals’
opinion and remand the case to that court to consider the second issue not
previously decided.
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