NOTICE: NOT FOR PUBLICATION.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA

, Appell ee ,

v.

DONNIE MONROE TWIGGS

, Appell ant

.

No. 1 CA

- CR 13

- 0305

Appeal from the Superior Court in Maricopa County

No. CR2012

- 009 26 6

- 001

The Honorable Robert E. Miles

, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix By Myles A. B raccio Counsel for Appell ee

Maricopa County Public Defender ’s Office

, Phoenix By Terry J. Reid

C ounsel for Appell antSTATE 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 possessio n 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 sentence s because a jury did not find he was on community supervision at the time of h is 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

co caine 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 , T wiggs moved to preclude admission of th e 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 l aboratory for confirmation of the

results

. T he 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, t he superior court granted Twiggs ’ request for a

mistrial. The superior court noted, however, that “ th e record should be abundantly clear that there was no thing that was done wrong by the State, and I

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

Decision of the Court

3 prosecutor s tat ed that in light of defense counsel’s arguments, which he expected
would be renewed at the next trial, he w as 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 poss ession 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 prejud i ce

. T he 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 a ddition al 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. T he 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. A lleged Prosecutorial Vindictiveness

¶7 Twiggs argues that the superior court abused its discretion in denying h is motion to dismiss the 2012 case for prosecutorial vindictiveness

. On this record, we disagree. State v. Brun, 190 Ariz. 505, 506, 950 P.2d 16 4, 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 n ot bring additional charges, however, s imply 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 vindict iveness, i.e., he ‘may prove th rough 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 p resumption of vindictiveness if the circu mstances
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 circumst ances, “a realistic likelihood that the added charge was motivated by prosecutorial vindictiveness.” See id. at 448

- 49, ¶¶ 15

- 17, 239 P.3d at 1261

- 6 2

. “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 t he presumpt ion

.

¶12 The prosecutor state d , “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 an d 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 potent ial 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 n oted the char ge was arguably duplicitous, but any problem with duplicity could be cured through instructions

and a n 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’sSTATE 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 s ale, which is a class 2 felony and the state exercised restraint ori ginally in charging it.”

He stated he had reviewed “the tactics of the defense, the arguments that succeeded, what happened in the first t rial,” 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. T he 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.

2 014)

. 1 T he 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 (o f prior convictions )

, that is, 12 years

. The S tate 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 rebut ted any presumption of vindictiveness as well, and accordingly c onclude the superior

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

II. Enhanced Sentencing

¶14 Relying on Alleyne v. Uni ted States

, ___ U.S. ___, 133 S. Ct. 2151 , 186

L. Ed. 2d 314 (2013)

, Twiggs next argues we should vacate his sentence s 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 Alley ne in State v. Large , 234

Ariz. 274 , 321 P.3d 439 (App. 201 4 )

, and h e ld 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 2 78

- 8 0, ¶ ¶ 1 2

- 16

, 321 P.3d at

443

- 4 5

.

1 Although the Arizona Legislature amended certain statutes cited in this

deci sion after the date of Twigg s 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 Twigg s , because Alleyne announced a new rule of constitutional law, its holding is appli cable 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, ¶ 1 8 , 321 P.3d at 445

.

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

and release status

, Twiggs’ parole officer testified Twigg s 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 p rior convictions, including the one in CR

2002

- 018026. Twigg s did not challenge th e 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 evide nce, 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 i n 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.