State v. Fierro

206 P.3d 786, 220 Ariz. 337, 546 Ariz. Adv. Rep. 3, 2008 Ariz. App. LEXIS 178
CourtCourt of Appeals of Arizona
DecidedDecember 22, 2008
Docket2 CA-CR 2007-0369
StatusPublished
Cited by20 cases

This text of 206 P.3d 786 (State v. Fierro) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fierro, 206 P.3d 786, 220 Ariz. 337, 546 Ariz. Adv. Rep. 3, 2008 Ariz. App. LEXIS 178 (Ark. Ct. App. 2008).

Opinion

OPINION

VÁSQUEZ, Judge.

¶ 1 Following a jury trial, appellant Armando Fierro was convicted of transporting marijuana weighing two pounds or more for sale, a class two felony, in violation of A.R.S. § 13-3405(A)(4). The trial court sentenced him to a mitigated, four-year term of imprisonment. On appeal, Fierro argues the court erred in instructing the jury on the mental state required for the commission of the offense. He further contends the court’s instruction on the elements of § 13-3405(A)(4) was ambiguous and might have misled the jury. For the following reasons, we affirm.

Factual and Procedural Background

¶ 2 We review the facts in the light most favorable to sustaining the jury’s verdict. State v. Tucker, 205 Ariz. 157, n. 1, 68 P.3d 110, 113 n. 1 (2003). At approximately 7:25 a.m. on June 30, 2004, an Arizona Department of Public Safety officer stopped a red Ford Ranger pickup truck on Interstate 10 for a vehicle equipment violation. Fierro was the driver and sole occupant of the truck. As the officer approached, he detected an odor of marijuana coming from the bed of the truck, which had a fiberglass cover concealing its contents. When the officer asked him questions, Fierro avoided eye contact, appeared nervous, and repeatedly glanced at the bed of the truck. He consented to a search of the vehicle, which revealed forty-nine bales of marijuana, weighing a total of 629 pounds, in the bed of the truck.

¶ 3 After Fierro had been arrested and informed of his Miranda 1 rights, he stated that he had been attempting to earn money by performing odd jobs when a man had asked if he would drive a truck from one gas station to another in exchange for $1,000. When Fierro asked the man what he would be transporting, the man replied “drugs.”

Discussion

¶4 Fierro first contends the trial court improperly gave the state’s requested jury instruction regarding the element of “knowledge” because the instruction “relieved the state of its burden of proving that Fierro was aware or believed that his cargo was marijuana.” Thus, he argues “the error violated [his] state and federal constitutional due process and fair trial rights.” We review for abuse of discretion a trial court’s decision to give a requested jury instruction. State ex rel. Thomas v. Granville, 211 Ariz. 468, ¶ 8, 123 P.3d 662, 665 (2005). But we review de novo whether jury instructions accurately state the law. State v. Bocharski, 218 Ariz. 476, ¶ 47, 189 P.3d 403, 414 (2008). In making this determination, we consider the instructions in their entirety “to ensure that the jury receive[d] the information it need[ed] to arrive at a legally correct deci *339 sion.” Granville, 211 Ariz. 468, ¶ 8, 123 P.3d at 665.

¶ 5 To support a conviction under § 13-3405(A)(4), the state had to prove Fierro knew the truck was carrying marijuana. At trial, the state presented no direct evidence that Fierro actually knew he was transporting marijuana rather than some other drug. Although Fierro told the detective who interviewed him that he knew there were drags in the bed of the truck, he stated he did not know what type of drugs he was transporting. Thus, the state requested what it termed a “deliberate ignorance” jury instruction. Over Fierro’s objection, the trial court instructed the jury as follows:

The State is required to show the defendant knew that he was transporting marijuana. That knowledge can be established ... by showing that the defendant was aware of the high probability that the package[s] contained marijuana, and that he acted with conscious purpose to avoid learning the true contents of the packages.

¶ 6 The language of the instruction was taken from State v. Diaz, 166 Ariz. 442, 803 P.2d 435 (App.1990), vacated in part on other grounds, 168 Ariz. 363, 813 P.2d 728 (1991), a ease factually similar to this case. 2 There, the defendant admitted transporting an illegal substance but claimed ignorance of the specific type of substance he had transported. Id. at 444, 803 P.2d at 437. In Diaz, this court commented that the requisite knowledge can be proved by showing that a defendant “was aware of the high probability that the packages contained [the] narcotic drag [the defendant was charged with transporting] and that he acted with a conscious purpose to avoid learning the true contents of the packages.” Id. at 445, 803 P.2d at 438.

¶ 7 Fierro contends either the language from Diaz is dictum or, if central to the court’s holding, then Diaz misstates the law. Thus, he argues, the jury instruction improperly equated “knowingly” with the lesser mens rea of “recklessly” and effectively informed the jury that it could find Fierro “knowingly transported marijuana if he only recklessly did so.” We disagree.

¶ 8 In State v. Haas, 138 Ariz. 413, 420, 675 P.2d 673, 680 (1983), our supreme court used substantially the same language in affirming the defendant real estate agent’s convictions on five counts of fraudulent scheme and artifice arising from various real estate transactions. In challenging his convictions, the defendant argued that, although his purchasers may have been involved in an underlying scheme to defraud the sellers, he was not aware of the fraudulent nature of their scheme, and he denied that he intentionally participated in it. Id. The supreme court characterized the “issue of whether defendant acted knowingly and intentionally [ ]as a judgment of his credibility.” Id. In determining the evidence was sufficient to support the jury’s verdict, the court stated: “[T]he jury could easily have concluded that even if defendant had no actual knowledge of the fraud, he was aware of the high probability that the scheme was fraudulent and deliberately shut his eyes to avoid learning the truth. Such a conclusion justifies the ultimate inference of knowing participation.” Id. at 420, 675 P.2d at 680, citing United States v. McDonald, 576 F.2d 1350, 1360 n. 17 (9th Cir.1978); see also United States v. Lopez-Martinez, 725 F.2d 471, 472-73 (9th Cir.1984) (approving instruction similar to instruction here).

¶ 9 We conclude the instruction the trial court gave accurately stated the law applicable to this case.

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Bluebook (online)
206 P.3d 786, 220 Ariz. 337, 546 Ariz. Adv. Rep. 3, 2008 Ariz. App. LEXIS 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fierro-arizctapp-2008.