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.”
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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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