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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS D IVISION O NE

S TATE OF ARIZONA , Appellee ,

v.

D ONNIE ROMONE TWIGGS , Appellant

. No. 1 CA -CR 19-0588

A ppeal 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

Moh ave County Legal Advocate’s Office , Kingman By Jill L. Evans C ounsel for Appellant

M EMORANDUM DECISION Judge David B. Gass delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined. FILED 10-22-202 0STATE v. TWIGGS Decision of the Court

2 G A S S , Judge:
¶1 D onnie Romone Twiggs appeals his conviction and sentence for possession of dangerous drugs for sale. Twiggs argues the S tate did not present sufficient evidence to satisfy the “for sale” element

. He also argues the S tate did not present sufficient evidence to support the aggravating factor of committing the offense for pecuniary gain. We affirm b ecause sufficient evidence s upport s 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 weigh s evidence and assess es witness cr edibility, 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 Ser geant s J.Y. and S.P. followed Twiggs , an inmate at a prison in Mohave County, as he walked to hi s 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. O ne bindle was tested and proved to be “s pice ”— 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 s pice is a soug ht

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. Th e aggressive effects make s pice a danger to guards and inmates alike

. Corrections officers also testified th e way Twiggs’s spice was packed is consistent with packag ing 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, b ut 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 drug s for sale ; and (3) possession of drug paraphe rnalia. T he 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,STATE v. TWIGGS Decision of the Court

3 t he superior court sentence d Twiggs to concurrent sentence s 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 drug s 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 S tate 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 s pice was packed in pea
- sized bindle s. Prisoners use pea

- sized bindles to facilitate quicker, more discrete exchange during sales. T he amount of spice Twiggs possessed exceede d threefold the amount a prisoner would possess for personal use. Sp ice is in high demand in the prison where Twiggs was incarcerated and carried with it a high price. T he amount of spice Twigg s possessed and how it was package d is sufficient for a jury to conclude he possessed the spice for sale. See Felix , 237 Ariz. at 283, ¶ 2 ; s ee also State v. Jernigan , 221 Ariz. 17, 19, ¶ 5 (App. 2009 )STATE v. TWIGGS Decision of the Court

4 (“ 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 consider ing the pecuniary

- gain aggravating factor b ecause substantial evidence d oes 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 , t his 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

. S ee i d. If Twiggs establishes the third prong , he need not make no separate showing of prejudice and a new trial must be granted. See i d. ¶11 Because the jury found Twiggs possessed the s pice 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. S ubstantial 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.