NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DONNIE MONROE TWIGGS, Appellant.

No. 1 CA-CR 13-0305

Appeal from the Superior Court in Maricopa County

No. CR2012-009266-001

The Honorable Robert E. Miles, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Myles A. Braccio

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Terry J. Reid

Counsel for Appellant
STATE v. TWIGGS

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in which 

Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.

N O R R I S, Judge:

¶1 Donnie Monroe Twiggs appeals his convictions and sentences for

three counts of possession of narcotic drugs and two counts of possession of drug 

paraphernalia. On appeal, Twiggs argues the superior court should not have, first,

denied his motion to dismiss for prosecutorial vindictiveness and second,

enhanced his sentences because a jury did not find he was on community 

supervision at the time of his offenses. As we explain, we disagree with Twiggs’ 

first argument, and the record fails to demonstrate reversible error as to his second 

argument. We therefore affirm his convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 At about midnight on September 17, 2011, Twiggs fled from the 

police when they attempted to stop him for not having a fixed light on his bicycle. 

After stopping Twiggs, one of the officers saw Twiggs throw something. The 

police searched the route Twiggs had fled and discovered two baggies of crack 

cocaine and a bottle of morphine pills. Subsequently, a grand jury indicted Twiggs 

on one count of possession of crack cocaine, one count of possession of morphine, 

and one count of possession of drug paraphernalia, specifically “bag(s) and/or pill 

bottle” (“2011 case”). 

¶3 During trial, Twiggs moved to preclude admission of the larger

baggie of crack cocaine, arguing that although the police had field-tested what was 

in the bag they had failed to submit it to a laboratory for confirmation of the 

results. The superior court precluded testimony on the nature of the substance in 

the larger baggie. 

¶4 Despite the prosecutor’s attempts to limit the testimony from an 

officer who had seized the larger baggie but had not conducted the field testing, 

the officer repeatedly referred to the contents as crack cocaine. As a result, over 

the prosecutor’s objection, the superior court granted Twiggs’ request for a 

mistrial. The superior court noted, however, that “the record should be 

abundantly clear that there was nothing that was done wrong by the State, and I 

don’t think there was any malus [sic] from the officer.” At that time, the 
STATE v. TWIGGS

Decision of the Court

3

prosecutor stated that in light of defense counsel’s arguments, which he expected 

would be renewed at the next trial, he was going to have the baggie tested, and 

might file additional charges.

¶5 The prosecutor subsequently obtained a new indictment against 

Twiggs (“2012 case”). The grand jury indicted Twiggs for a second count of 

possession of crack cocaine and for a second count of possession of drug 

paraphernalia, along with the original count of possession of morphine, for a total 

of five counts, instead of three. On the State’s motion, the court then dismissed

the 2011 case without prejudice. The prosecutor also filed an additional allegation 

of aggravating circumstances other than prior convictions, that is, “indicia of sale.”

¶6 Twiggs moved to dismiss the 2012 case for prosecutorial 

vindictiveness. Twiggs argued the timing and the absence of any evidentiary 

necessity for the additional two charges, and the absence of any new information 

to support the “indicia of sale” aggravator demonstrated the prosecutor was 

motivated by a desire to punish Twiggs for obtaining a mistrial. The court denied 

the motion, reasoning that under the totality of the circumstances, “the decision to 

re-charge can be best explained and characterized here as an attempt to ensure 

proper admission of evidence at trial and not as a penalty imposed on the 

defendant for obtaining a mistrial.”

DISCUSSION

I. Alleged Prosecutorial Vindictiveness 

¶7 Twiggs argues that the superior court abused its discretion in 

denying his motion to dismiss the 2012 case for prosecutorial vindictiveness. On 

this record, we disagree. State v. Brun, 190 Ariz. 505, 506, 950 P.2d 164, 165 (App. 

1997) (appellate court reviews superior court’s ruling on prosecutorial 

vindictiveness for abuse of discretion).

¶8 A prosecutor has broad discretion over charging decisions, and is 

entitled to amend the charges or file new charges before trial as the matter 

proceeds and new facts come to light. See, e.g., United States v. Goodwin, 457 U.S. 

368, 381-84, 102 S. Ct. 2485, 2492-94, 73 L. Ed. 2d 74 (1982); State v. Jahns, 133 Ariz. 

562, 568-69, 653 P.2d 19, 25-26 (App. 1982). The prosecution may not bring 

additional charges, however, simply to penalize a defendant for exercising his 

legal rights. Blackledge v. Perry, 417 U.S. 21, 27-29, 94 S. Ct. 2098, 2102-03, 40 L. Ed. 

2d 628 (1974).

¶9 A defendant may demonstrate “prosecutorial vindictiveness” in two 

ways. State v. Mieg, 225 Ariz. 445, 447, ¶ 11, 239 P.3d 1258, 1260 (App. 2010). 
STATE v. TWIGGS

Decision of the Court

4

“First, a defendant may show actual vindictiveness, i.e., he ‘may prove through 

objective evidence that a prosecutor acted in order to punish him for standing on 

his legal rights.’” Id. at 447, ¶ 11, 239 P.3d at 1260 (citations omitted). Twiggs has 

not claimed that the prosecutor in this case acted with actual vindictiveness. 

¶10 Second, “because ‘motives are complex and difficult to prove,’ a 

defendant may rely on a presumption of vindictiveness if the circumstances 

establish a ‘realistic likelihood of vindictiveness.’” Id. at 448, ¶ 11, 239 P.3d at 1261 

(citations omitted). The presumption arises only if the defendant demonstrates, 

under the totality of the circumstances, “a realistic likelihood that the added 

charge was motivated by prosecutorial vindictiveness.” See id. at 448-49, ¶¶ 15-

17, 239 P.3d at 1261-62. “If a defendant makes a prima facie showing that the 

charging decision is ‘more likely than not attributable to vindictiveness’ by the 

prosecutor, the burden shifts to the prosecutor to overcome the presumption ‘by 

objective evidence justifying the prosecutor’s action.’” Id. at 448, ¶ 12, 239 P.3d at 

1261 (citations omitted). 

¶11 The superior court did not indicate whether it had concluded Twiggs 

had made a sufficient showing to rely on a presumption of vindictiveness. Even if 

we assume the court reached such a conclusion, the prosecutor provided sufficient 

objective evidence to overcome the presumption.

¶12 The prosecutor stated, “the refiling, the new charges [are] all in 

response to the arguments the defense made in the original trial . . . .” The 

prosecutor explained that if he had simply submitted the larger baggie of crack 

cocaine for testing and offered it at a second trial along with the smaller baggie to 

prove the one count of possession of crack cocaine originally charged, Twiggs no 

doubt would have moved to dismiss the charge for duplicity. The prosecutor thus 

avoided this potential duplicity problem in the 2012 case by charging two counts 

of possession of crack cocaine for the two bags seized by the police. And, the 

prosecutor explained he had sought the additional possession of drug 

paraphernalia charge to avoid a potential duplicity problem with the original 

single count of possession of drug paraphernalia based on either possession of the 

“bag(s) and/or pill bottle.” Although the court in the 2011 case had refused to 

dismiss this charge for duplicity, it nevertheless noted the charge was arguably 

duplicitous, but any problem with duplicity could be cured through instructions 

and an appropriate verdict form that required the jury to specify whether it 

unanimously found that Twiggs possessed the bottle, the bags, or both. The 

prosecutor avoided this duplicity problem in the 2012 case by obtaining an 

indictment for two counts of possession of drug paraphernalia, one for the bottle, 

and the other for the bags used to contain the crack cocaine. The prosecutor’s 
STATE v. TWIGGS

Decision of the Court

5

presentation of this objective evidence was sufficient to rebut any presumption of 

vindictiveness for filing the two additional charges. 

¶13 The prosecutor also presented objective evidence to rebut any

presumption of vindictiveness in the filing of the additional aggravator for 

“indicia of sale.” The prosecutor told the superior court the case had originally 

been “referred to the county attorney as possession of narcotic drugs for sale, 

which is a class 2 felony and the state exercised restraint originally in charging it.” 

He stated he had reviewed “the tactics of the defense, the arguments that 

succeeded, what happened in the first trial,” and had considered the likelihood 

that defense counsel would argue addiction as a mitigating factor, and filed the 

“indicia of sale” aggravator solely to rebut any such argument. The addition of a 

second aggravator for “indicia of sale” exposed Twiggs to the possibility of three 

additional years in prison. See Ariz. Rev. Stat. (“A.R.S.”) § 13-703(C), (J) (Supp. 

2014).

1 The prosecutor explained however, that he had no intention of 

recommending a longer sentence than he had indicated he would be seeking in 

the prior trial based on the single aggravator (of prior convictions), that is, 12 years.

The State did ultimately recommend that Twiggs be sentenced to 12 years in 

prison, not explicitly relying on “indicia of sale,” but rather on a past criminal 

history of selling narcotic drugs and resisting arrest, “precisely what occurred in 

this case as well.” We are persuaded that this objective evidence rebutted any 

presumption of vindictiveness as well, and accordingly conclude the superior 

court did not abuse its discretion in denying the motion to dismiss. 

II. Enhanced Sentencing 

¶14 Relying on Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 

L. Ed. 2d 314 (2013), Twiggs next argues we should vacate his sentences because 

the superior court and not the jury found he was on community supervision at the 

time of the offenses and thus the court improperly imposed enhanced sentences. 

¶15 In Alleyne, the Supreme Court held that any fact that increases the 

mandatory minimum sentence must be submitted to the jury and proved beyond 

a reasonable doubt. Id. at 2163. This court followed Alleyne in State v. Large, 234 

Ariz. 274, 321 P.3d 439 (App. 2014), and held that the fact that a defendant was on 

release at the time of commission of the offenses, and thus subject to enhanced 

sentencing pursuant to A.R.S. § 13-708 (Supp. 2014), must be found by a jury 

beyond a reasonable doubt. See Large, 234 Ariz. at 278-80, ¶¶ 12-16, 321 P.3d at 

443-45.

 

1Although the Arizona Legislature amended certain statutes cited in this 

decision after the date of Twiggs offenses, the revisions are immaterial to the 

resolution of this appeal. Thus, we cite to the current version of these statutes.
STATE v. TWIGGS

Decision of the Court

6

¶16 Although Alleyne was decided two months after the court sentenced 

Twiggs, because Alleyne announced a new rule of constitutional law, its holding is 

applicable to all cases pending on direct review. See id. at 280, ¶ 16, 321 P.3d at 

445. Moreover, although Twiggs did not object to the error, we follow Large in 

concluding that under the circumstances such error is nevertheless subject to 

review for harmless error. See id. at 280, ¶ 18, 321 P.3d at 445.

¶17 Here, the error was harmless. At the hearing on prior convictions 

and release status, Twiggs’ parole officer testified Twiggs was on community 

supervision for a prior criminal case, CR2002-018026, at the time of the offenses. 

The State also presented testimony that Twiggs’ fingerprints matched those on a 

certified copy of a pen pack showing his prior convictions, including the one in CR 

2002-018026. Twiggs did not challenge the parole officer’s testimony, or offer any 

evidence to dispute the fact that he was on community supervision at the time of 

the offenses. Based on the uncontroverted evidence, no reasonable jury could have 

concluded that Twiggs was not on community supervision at the time of the 

offenses. See id. at 280, ¶19, 321 P.3d at 445 (error in not submitting parole status 

to jury was harmless, because no reasonable jury could have found that defendant 

was not on parole at the time). 

Conclusion

¶18 For the foregoing reasons, we affirm Twiggs’ convictions and 

sentences.