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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DONNIE ROMONE TWIGGS, Appellant.
No. 1 CA-CR 19-0588
FILED 10-22-2020
Appeal from the Superior Court in Mohave County
No. S8015CR201801789
The Honorable Billy K. Sipe, Jr., Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee
Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
STATE v. TWIGGS
Decision of the Court
G A S S, Judge:
¶1 Donnie Romone Twiggs appeals his conviction and sentence
for possession of dangerous drugs for sale. Twiggs argues the State did not
present sufficient evidence to satisfy the “for sale” element. He also argues
the State did not present sufficient evidence to support the aggravating
factor of committing the offense for pecuniary gain. We affirm because
sufficient evidence supports the conviction and the aggravating factor.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court reviews the facts in the light most favorable to
sustaining the jury’s verdict, resolving all reasonable inferences against
Twiggs. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015). Because the
jury weighs evidence and assesses witness credibility, this court will not
invade those duties. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004).
¶3 On March 7, 2018, Department of Corrections Sergeants J.Y.
and S.P. followed Twiggs, an inmate at a prison in Mohave County, as he
walked to his dormitory. Once there, J.Y. and S.P. conducted a strip search.
As Twiggs removed a sock, six pea-sized paper bindles fell out. Five of the
six bindles contained a green leafy substance. One bindle was tested and
proved to be “spice”—a type of synthetic marijuana. Twiggs said he did not
know what the bindles contained, saying he found them as he walked to
his dormitory and wanted to find out what they were.
¶4 At trial, corrections officers testified that spice is a sought-
after drug in prison. Spice costs much more in prison than it does on the
street. Though spice generally has a depressive effect, it causes some to
become aggressive. The aggressive effects make spice a danger to guards
and inmates alike. Corrections officers also testified the way Twiggs’s spice
was packed is consistent with packaging for sale. The pea-sized bindles are
used for quicker, more concealed transfers between inmates when sold.
Typically, one or two bindles in an inmate’s possession is consistent with
personal use, but more than that indicates the bindles are meant for sale.
¶5 A jury convicted Twiggs of three counts: (1) promoting prison
contraband; (2) possession of dangerous drugs for sale; and (3) possession
of drug paraphernalia. The jury also found, as an aggravating factor,
Twiggs committed count 2 “as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value.” See A.R.S. §§ 13-
701.D.6. After considering the aggravating and mitigating circumstances,
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STATE v. TWIGGS
Decision of the Court
the superior court sentenced Twiggs to concurrent sentences of 15.75 years
for count 1, 18 years for count 2, and 3.75 years for count 3.
¶6 Twiggs timely appealed his conviction and sentence for count
2, possession of dangerous drugs for sale. He did not appeal the other two
convictions and sentences. This court has jurisdiction under Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031, and -4033.A.1.
ANALYSIS
I. The State presented sufficient evidence for the jury to convict
Twiggs of possession of dangerous drugs for sale.
¶7 To convict Twiggs of possession of dangerous drugs for sale,
the State needed to show beyond a reasonable doubt: (1) Twiggs knowingly
possessed a dangerous drug; (2) the substance was in fact a dangerous
drug; and (3) he possessed the drug “for sale.” See A.R.S. § 13-3407.A.2; Rev.
Ariz. Jury Instr. Stand. Crim. § 34.072 (5th ed. 2019). “‘Sale’ . . . means an
exchange for anything of value or advantage, present or prospective.”
A.R.S. § 13-3401.32. On appeal, Twiggs does not challenge the first two
elements. Instead, Twiggs argues the State did not produce sufficient
evidence to establish he possessed the drugs for purposes of sale.
¶8 This court reviews de novo whether the State presented
substantial evidence to support a conviction. State v. Watson, 248 Ariz. 208,
212, ¶ 11 (App. 2020). Substantial evidence is proof “reasonable persons
could accept as adequate and sufficient to support a conclusion of
[Twiggs’s] guilt beyond a reasonable doubt.” See State v. Goudeau, 239 Ariz.
421, 461, ¶ 169 (2016). The issue then 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. Tillmon, 222 Ariz. 452, 456, ¶ 18 (App. 2009). This court considers
direct and circumstantial evidence when “determining whether substantial
evidence supports a conviction.” Watson, 248 Ariz. at 212, ¶ 11.
¶9 Here, Twiggs’s spice was packed in pea-sized bindles.
Prisoners use pea-sized bindles to facilitate quicker, more discrete exchange
during sales. The amount of spice Twiggs possessed exceeded threefold the
amount a prisoner would possess for personal use. Spice is in high demand
in the prison where Twiggs was incarcerated and carried with it a high
price. The amount of spice Twiggs possessed and how it was packaged is
sufficient for a jury to conclude he possessed the spice for sale. See Felix, 237
Ariz. at 283, ¶ 2; see also State v. Jernigan, 221 Ariz. 17, 19, ¶ 5 (App. 2009)
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STATE v. TWIGGS
Decision of the Court
(“evidence may be completely circumstantial”). We will not second guess
the jurors. See Williams, 209 Ariz. at 231, ¶ 6.
II. Because the superior court properly considered the pecuniary-gain
aggravator, Twiggs suffered no fundamental, prejudicial error.
¶10 Twiggs argues the superior court erred by considering the
pecuniary-gain aggravating factor because substantial evidence does not
support the jury’s verdict he possessed the spice for “pecuniary value.” See
A.R.S. § 13-701.D.6. Because Twiggs did not object at sentencing, this court
reviews for fundamental error. See State v. Trujillo, 227 Ariz. 314, 317, ¶ 9
(App. 2011). Twiggs, therefore, must first prove error exists. See State v.
Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). Twiggs must then show either: (1)
the error went to the foundation of the case; (2) the error took from him a
right essential to his defense; “or (3) the error was so egregious that he could
not possibly have received a fair trial.” See id. (emphasis original). If Twiggs
establishes prongs one or two, he must also demonstrate prejudice. See id.
If Twiggs establishes the third prong, he need not make no separate
showing of prejudice and a new trial must be granted. See id.
¶11 Because the jury found Twiggs possessed the spice for sale—
meaning “an exchange for anything of value or advantage, present or
prospective”—the jury necessarily could find he possessed it for pecuniary
gain—meaning “as consideration for the receipt, or in the expectation of the
receipt, of anything of pecuniary value.” See A.R.S. §§ 13-701.D.6, -3401.32,
-3407.A.2. Substantial evidence supports the presence of the aggravating
factor, so we find no error, let alone fundamental error, in the superior court
considering the factor. See Escalante, 245 Ariz. at 142, ¶ 21.
CONCLUSION
¶12 We affirm Twiggs’s conviction and sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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