IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DARREL SCOTT FRANCIS, Appellant.

No. 1 CA-CR 16-0051

Appeal from the Superior Court in Navajo County

No. S0900CR201500087

 S0900CR201500700

The Honorable Dale P. Nielson, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Michael F. Valenzuela

Counsel for Appellee

Criss Candelaria Law Office, PC, Concho

By Criss E. Candelaria

Counsel for Appellant
STATE v. FRANCIS

Opinion of the Court

2

OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in 

which Judge Thomas C. Kleinschmidt joined.

1 Judge Jon W. Thompson 

dissented.

J O H N S E N, Judge:

¶1 Darrel Scott Francis was convicted of two counts of 

promoting prison contraband by possessing a cell phone. On appeal, he 

argues the superior court erred by failing to instruct the jury that the State

was required to prove he knew the cell phone was contraband. Because the 

crime requires proof a defendant knew what he or she possesses or obtains 

is contraband, we reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 Francis was detained at the Show Low Jail Annex on charges 

unrelated to this appeal. Officers took Francis's clothing, boots and cell 

phone, and stored them in a property bag. While in custody, Francis asked 

to call his attorney. After the officer on duty could not find the lawyer's

phone number, Francis volunteered that the lawyer's number was stored 

on his cell phone. The officer then retrieved Francis's cell phone from his

property bag, activated it and located the phone number. Later that day, 

Francis was transported to Navajo County Jail in Holbrook. There, another 

officer noticed Francis was holding the cell phone and confiscated it.

¶3 Francis was charged with two counts of promoting prison 

contraband – one count for allegedly possessing the cell phone inside the 

Navajo County Jail, and the other for possessing the cell phone while inside 

the annex or while being transported from the annex to the jail. Before trial, 

the State asked the Court to rule it did not have to prove that Francis knew 

his cell phone was contraband. In the alternative, the State asked for leave 

to introduce "other acts" evidence to prove Francis knew the phone was 

contraband. The court ruled the State did not have to prove Francis knew 

the phone was contraband, and therefore precluded the other-acts evidence 

 

1 The Honorable Thomas C. Kleinschmidt, Retired Judge of the Court 

of Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article VI, Section 3 of the Arizona Constitution.
STATE v. FRANCIS

Opinion of the Court

3

as irrelevant. The court also ruled Francis could not argue to the jury that

the State needed to prove he knew the cell phone was contraband.

¶4 At trial, the State presented evidence that inmates are not 

allowed to possess cell phones, that personal property (including cell 

phones) is kept in a secure office out of the reach of inmates, and that 

officers do not permit inmates to handle cell phones for any reason. The 

court instructed the jury:

The crime of promoting prison contraband requires proof that 

the defendant knowingly:

Took contraband into a correctional facility or the grounds of 

a correctional facility; or

Obtained, or possessed contraband while being confined in a 

correctional facility; or

Obtained, or possessed contraband while being lawfully 

transported or moved incident to correctional facility 

confinement.

¶5 The jury found Francis guilty of both charges and also found 

he committed the offenses while on release from another felony charge. The

court sentenced him to two concurrent five-year prison terms.

¶6 We have jurisdiction over Francis's timely appeal pursuant to 

Article 6, Section 9, of the Arizona Constitution and Arizona Revised 

Statutes ("A.R.S.") sections 12-120.21(A) (2016), 13-4031 (2016) and -4033 

(2016).

2

DISCUSSION

¶7 Francis was charged with promoting prison contraband by 

"knowingly . . . obtaining or possessing contraband while being confined in 

a correctional facility or while being lawfully transported or moved 

incident to correctional facility confinement." A.R.S. § 13-2505(A)(3) (2016). 

As defined by statute, contraband means:

[A]ny dangerous drug, narcotic drug, marijuana, intoxicating 

liquor of any kind, deadly weapon, dangerous instrument, 

 

2 Absent material revision after the date of an alleged offense, we cite 

a statute's current version.
STATE v. FRANCIS

Opinion of the Court

4

explosive, wireless communication device, multimedia 

storage device or other article whose use or possession would 

endanger the safety, security or preservation of order in a 

correctional facility or a juvenile secure care facility as defined 

in § 41-2801, or of any person within a correctional or juvenile 

secure care facility.

A.R.S. § 13-2501(1) (2016). At trial, there was no dispute that Francis knew 

he possessed the cell phone; the issue on appeal is whether § 13-2505(A)(3)

required proof he knew the cell phone was "contraband," within the 

meaning of § 13-2501(1).

¶8 We review de novo the superior court's ruling on a matter of 

statutory interpretation. See State v. Falcone, 228 Ariz. 168, 170, ¶ 9 (App. 

2011). "In construing a statute, our primary goal is to discern and give effect 

to the legislature's intent." State v. Fell, 203 Ariz. 186, 188, ¶ 6 (App. 2002). 

We look to the plain language of the statute and "give words their plain and 

ordinary meaning, unless the legislature has clearly expressed an intent to 

give a term special meaning." State v. Cotton, 197 Ariz. 584, 586, ¶ 6 (App. 

2000). If the plain meaning is unclear, we consider other factors such as "the 

statute's context, history, subject matter, effects and consequences, spirit, 

and purpose." Fell, 203 Ariz. at 188, ¶ 6. Toward that end, we examine 

statutes that are in pari materia, meaning those of the same subject or general 

purpose. See State v. Gamez, 227 Ariz. 445, 449, ¶ 27 (App. 2011); Fell, 203 

Ariz. at 188, ¶ 6.

¶9 Francis argues State v. Bloomer, 156 Ariz. 276 (App. 1987),

establishes that the crime of possession of contraband requires proof the 

defendant knew what he possessed was contraband. The defendant in 

Bloomer argued he could not be convicted under § 13-2505(A) because he 

was charged with possession of gunpowder when the evidence showed he 

thought he possessed marijuana, not gunpowder. 156 Ariz. at 279. This

court stated that "the state was required to prove . . . that appellant, while 

confined in a correctional facility, possessed a substance which was 

contraband, that he knowingly possessed the substance, and that he knew 

it was contraband." Id. It did not matter what variety of contraband the 

defendant possessed, because he admittedly knew both that he possessed 

marijuana and that marijuana is contraband within the meaning of the 

statute. Id.

¶10 The State argues the discussion of the issue in Bloomer is 

dictum and instead directs our attention to the definition of "knowingly" in 

the criminal code:
STATE v. FRANCIS

Opinion of the Court

5

"Knowingly" means, with respect to conduct or to a 

circumstance described by a statute defining an offense, that 

a person is aware or believes that the person's conduct is of 

that nature or that the circumstance exists. It does not require 

any knowledge of the unlawfulness of the act or omission.

A.R.S. § 13-105(10)(b) (2016). Under this provision, the crime of knowing 

possession of contraband requires proof that the defendant was "aware or 

believe[d]" that he possessed contraband, but the statute does not answer

whether the State need prove only that the defendant knew he possessed 

an item (that in fact was contraband), or whether it must prove he possessed 

something he knew was contraband.

¶11 The State argues that under the second sentence of § 13-

105(10)(b), when a defendant is charged with "knowingly" committing an 

act, the State need not prove the defendant had "any knowledge of the 

unlawfulness of the act." See also State v. Soltero, 205 Ariz. 378, 381, ¶ 11 

(App. 2003) (ignorance of the law is no excuse). The issue, however, is not 

whether Francis knew what he was doing was unlawful; it is whether the 

requisite culpable mental state of "knowingly" applies not only to "making, 

obtaining or possessing" an object while in custody; but also to the fact that 

the object falls within the statutory definition of "contraband." A.R.S. § 13-

2505 (A)(3).

¶12 To resolve that question, we look instead to A.R.S. § 13-202 

(2016), "Construction of statutes with respect to culpability." Section 13-

202(A) addresses precisely the issue before us, which is whether a specified

requisite mental state for the commission of a crime applies to each element 

of the crime:

If a statute defining an offense prescribes a culpable mental 

state that is sufficient for commission of the offense without 

distinguishing among the elements of such offense, the 

prescribed mental state shall apply to each such element 

unless a contrary legislative purpose plainly appears.

A.R.S. § 13-202(A). Under this rule, "[if] a statute requires a certain mental 

state but does not specify which elements require that mental state, it 

applies to every element in the absence of legislative intent to the contrary." 

State v. Rivera, 226 Ariz. 325, 328, ¶ 4 (App. 2011).

¶13 A host of cases teach how to apply § 13-202(A) in construing

criminal statutes that, like § 13-2505(A)(3), prescribe a single culpable 

mental state without distinguishing among the elements. For example, in 
STATE v. FRANCIS

Opinion of the Court

6

State v. Witwer, 175 Ariz. 305 (App. 1993), the defendant was convicted 

under A.R.S. § 13-1404 (2016) of committing sexual abuse by "intentionally

or knowingly engaging in sexual contact with any person who is fifteen or 

more years of age without consent of that person." On appeal, the 

defendant argued the superior court erred by failing to instruct the jury that 

the State needed to prove he knew the victim had not consented to the 

contact. Citing § 13-202(A), this court found no contrary legislative purpose 

and held the statute indeed required proof that the defendant knew that the 

sexual contact he committed was without the consent of the victim. Witwer, 

175 Ariz. at 308.

¶14 Other cases likewise have followed the dictate of § 13-202(A) 

to determine that a single specified culpable mental state applies to each 

element of the crime at issue. See State v. Kemper, 229 Ariz. 105, 106-07, ¶ 5

(App. 2011) ("knowingly engaging in sexual intercourse or oral sexual 

contact with any person without consent of such person" under A.R.S. § 13-

1406(A) (2016) requires proof defendant knew victim did not consent); State 

v. Rivera, 226 Ariz. 325, 328-29, ¶ 4 (App. 2011) ("intentionally discharging 

a weapon from a motor vehicle at a person" under A.R.S. § 13-1209(A)

(2016) requires proof defendant intentionally targeted a particular person); 

State v. Norris, 221 Ariz. 158, 161, ¶ 9 (App. 2009) ("knowing[]" possession 

or possession for sale of marijuana under A.R.S. § 13-3405(A) (2016)

requires proof defendant knew what he or she possessed was marijuana);

State v. Cabanas-Salgado, 208 Ariz. 195, 197, ¶ 17 (App. 2003) ("knowing[] . . . 

[t]ransport [of narcotic drug] for sale" under A.R.S. § 13-3408(A)(7) (2016)

requires proof defendant knew he or she transported a narcotic drug for 

sale); State v. Bridgeforth, 156 Ariz. 58, 59 (App. 1986) (prosecution of "any 

person who pursuant to a scheme or artifice to defraud knowingly obtains 

any benefit by means of false or fraudulent pretenses, representations,

promises or material omissions" under A.R.S. § 13-2310(A) (2016) requires 

proof both that defendant was "aware or believe[d] that the scheme or 

artifice [was] fraudulent and that by means of false or fraudulent pretenses, 

representations, promises or material omissions, he receive[d] some 

benefit"); State v. Rineer, 131 Ariz. 147, 148-49 (App. 1981) (assault by 

"intentionally placing another person in reasonable apprehension of 

imminent physical injury" under A.R.S. § 13-1203(A)(2) (2016) requires 

proof of intent to "produce the essential result" of "apprehension of 

imminent physical injury").

¶15 Cases considering the culpable mental state specified in other 

criminal statutes have ruled consistently with the rule set out in § 13-202(A). 

See State v. Arce, 107 Ariz. 156, 160 (1971) (unlawful possession of narcotics 

requires proof defendant knew "that the substance [in his possession] was 
STATE v. FRANCIS

Opinion of the Court

7

a narcotic"); State v. Diaz, 166 Ariz. 442, 445 (App. 1990) ("knowing[]

transport[] or transfer[] [of] a narcotic drug" under A.R.S. § 13-3408(A)(7) 

requires proof defendant "knew that what he was transporting was a 

narcotic drug"); State v. Frustino, 142 Ariz. 288, 293-94 (App. 1984) (extortion 

by "knowingly participat[ing] in any way in the use of any extortionate 

means to collect or attempt to collect any extensions of credit or to punish 

any person for the nonrepayment thereof" under A.R.S. § 13-2304(A) (2016)

requires proof defendant knew his conduct was threatening to debtor).

¶16 Like the statutes in the cited cases, the statute under which 

Francis was convicted prescribes just one mental state – "knowingly" –

"without distinguishing among the elements of [the] offense" ("knowingly 

. . . obtaining or possessing contraband while being confined in a 

correctional facility or while being lawfully transported or moved incident 

to correctional facility confinement"). See A.R.S. § 13-2505(A)(3). As 

directed by § 13-202(A), therefore, absent a plain "contrary legislative 

purpose," we must comply with the legislative mandate to construe § 13-

2505(A)(3) to require proof not only that the defendant knowingly obtained 

or possessed a proscribed object, but also that the defendant knew the object 

was contraband, within the meaning of the statute.

¶17 The State argues that a contrary legislative purpose is 

apparent in the text of § 13-2505(A)(3). The focus of the crime, the State 

argues, is on the "knowing actions" of the defendant in "making, obtaining 

or possessing" the object, not on the defendant's knowledge of the

proscribed nature of the object. But we see no such mandate in the statute

that guides us to construe it differently than the cases cited above have 

construed other criminal statutes consistent with the requirements of § 13-

202(A).

¶18 The State points to cases holding that a defendant charged 

with sexual assault of a minor can be convicted in the absence of proof the 

defendant knew the age of the victim. See, e.g., Falcone, 228 Ariz. at 171-72, 

¶ 14 (construing A.R.S. § 13-1405(A) (2016)). But courts have traced the 

evolution of the several related statutes and have discerned a plain 

"legislative purpose" that the State generally need not prove a defendant 

knew the victim's age. As we explained in Falcone, at the same time the 

legislature enacted § 13-1405, it also enacted A.R.S. § 13-1407 (2016), which 

establishes a defense to § 13-1405 when the victim is 15, 16 or 17 years old 

and the defendant "did not know, and could not reasonably have known," 

that the victim was younger than 18. Falcone, 228 Ariz. at 171, ¶ 12. Thus, 

statutes in pari materia with § 13-1405 evidenced a "contrary legislative 

intent" to applying the normal rule of § 13-202, under which the specified 
STATE v. FRANCIS

Opinion of the Court

8

culpable mental state would have to be proved with respect to each element 

of the crime. Falcone, 228 Ariz. at 171, ¶ 13.3

¶19 Examining § 13-2505(A), we see no similar indication that the 

legislature did not intend the normal rule of § 13-202(A) to apply to the 

contraband statute. Accordingly, and consistent with Bloomer, we must 

conclude that the crime of "knowingly . . . possessing contraband" under § 

13-2505(A)(3) requires proof the defendant knew that what he or she 

possessed was contraband.

¶20 This construction of § 13-2505(A) is particularly appropriate, 

given that the meaning of the statutory term "contraband" is not selfapparent. In ordinary usage, the word means something that is illegally 

possessed or transported. See Contraband, Random House Webster's

Unabridged Dictionary (2005).4 Thus, one must know whether the law 

forbids possessing or transporting an object before one can know whether 

the object constitutes contraband. 

 

3 The State also cites Benevolent & Protective Order of Elks v. State 

Department of Liquor Licenses & Control, 239 Ariz. 121, 126, ¶ 32 (App. 2016), 

which affirmed a fine imposed by the Arizona Department of Liquor 

Licenses and Control under A.R.S. § 4-244(26) (2016), under which it is 

unlawful "[f]or a licensee or employee to knowingly permit unlawful 

gambling on the premises." We held there that such a violation may be 

established without proof the licensee knew the gambling was unlawful.

The State does not contend that § 13-202(A), which guides our construction 

of culpable mental states in criminal statutes, applies to the civil regulatory 

authority of the Department of Liquor Licenses and Control; in any event, 

as noted, the general principle is that one may be held in violation of a law 

without knowledge of the unlawfulness. See Elks, 239 Ariz. at 126, ¶ 31.

4 Contraband, Random House Webster's Unabridged Dictionary 

(2005).

1. anything prohibited by law from being imported or 

exported.

2. goods imported or exported illegally.

3. illegal or prohibited trade; smuggling.
STATE v. FRANCIS

Opinion of the Court

9

¶21 Our dissenting colleague accepts the State's argument that the 

question we must resolve is controlled by the principle stated in A.R.S. § 

13-105(10)(b) that the mental state of "knowingly" "does not require any 

knowledge of the unlawfulness of the act or omission." But that argument 

proves too much; it would effectively eliminate application of § 13-202(A) 

to any statute establishing an offense that may be committed "knowingly." 

The dissent also cites People v. Romero, 64 Cal. Rptr. 16 (App. 1997), but we 

do not agree that case bears on our analysis. The defendant in Romero was 

convicted of possession and transportation of a "controlled substance." The 

defendant argued on appeal that his convictions should be reversed 

because he mistakenly thought the cocaine he possessed was marijuana. In 

interpreting the applicable statute, the California court did not apply any 

statute of construction like A.R.S. § 13-202(A), which must guide our 

construction of the Arizona criminal code. Even so, however, the court's 

reasoning was consistent with our conclusion here: It held that although 

the statute did not require proof that the defendant knew the chemical 

composition of the drug he possessed, it did require proof he knew that 

whatever he possessed was a "controlled substance," and the jury was so 

instructed. 64 Cal. Rptr. at 20. 

¶22 Finally, the State argues that if the superior court erred by 

refusing to instruct the jury that the State was required to prove Francis

knew his cell phone was contraband, the error was harmless. It contends 

the jury heard "overwhelming" evidence that Francis knew he was not 

allowed to possess his cell phone.

¶23 We decline the State's invitation to weigh the evidence in such 

a manner. Officers took Francis's cell phone from him at intake, but they 

took all of his personal property at that time. According to the evidence, it 

is beyond doubt that some of the items officers routinely seize from inmates 

(officers confiscate any colored underwear) do not fall within the statutory 

definition of contraband. And although the State presented evidence that 
STATE v. FRANCIS

Opinion of the Court

10

officers keep inmates' personal property in a secure office, the State 

presented no evidence that inmates were informed that cell phones 

constitute contraband.

5

CONCLUSION

¶24 For the reasons stated, we conclude that the crime of 

promoting prison contraband under § 13-2505(A) requires proof the 

defendant knew the object at issue was contraband. Accordingly, we 

reverse Francis's convictions and the resulting sentences.

6

T H O M P S O N, Judge, dissenting:

¶25 Francis knew he possessed a cell phone. By statute, a cell 

phone in jail is contraband. Whether he knew, or did not know, that a cell 

phone in jail is defined by statute as prohibited contraband is not relevant 

in determining whether he is guilty of possession of contraband, because 

proof of knowledge "does not require any knowledge of the unlawfulness 

of the act or omission." Ariz. Rev. Stat. (A.R.S.) § 13-105(10)(b) (2010).

¶26 Francis argues, citing inter alia State v. Bloomer, 156 Ariz. 276, 

279, 751 P.2d 592, 595 (App. 1987), that the state was required to prove that 

he knew he possessed contraband, i.e., that he knew that his possession of 

a cell phone in jail was prohibited by law. In Bloomerthe defendant, charged 

with possession of contraband and gunpowder, believed he possessed 

marijuana, also contraband. Id. This court affirmed his conviction in spite 

of his mistake, because, either way, he possessed contraband. Id. at 282, 751 

P.2d at 598. Bloomer's knowledge that he possessed contraband was 

sufficient, though not necessary to his conviction. If he had been aware that 

 

5 The State further argues that any error is harmless because Francis 

argued to the jury that he did not know his cell phone was contraband. In 

the absence of a proper jury instruction, however, we cannot conclude the 

jury understood it was the State's burden to prove Francis knew he 

possessed contraband. See State v. Reyes, 232 Ariz. 468, 471, ¶ 7 (App. 2013)

(we presume the jury followed its instructions).

6 Because the convictions are reversed, we need not address Francis's 

argument that the superior court erred by allowing the State to call his 

former lawyer to testify about his prior conviction. 
STATE v. FRANCIS

Thompson, J., Dissenting

11

what he possessed was gunpowder but did not know gunpowder is 

prohibited by law as contraband he would still have been guilty. This is 

because Bloomer is an application of the law regarding mistake of fact, 

which may negate the requisite culpable mental state—but only "if, were 

the circumstances as the accused believed them to be, 'the accused would 

not be guilty of the offense.'" United States v. Zachary, 61 M.J. 813, 824 (A. Ct. 

Crim. App. 2005) (internal citation omitted). Thus Bloomer was guilty 

because if he had possessed marijuana, as he thought, he would have been 

guilty of possessing contraband.

¶27 A California case quite similar to Bloomer makes the pertinent 

point. In People v. Romero, 55 Cal. App. 4th 147, 64 Cal. Rptr.2d 16 (1997), 

the defendant was charged with warehousing marijuana and cocaine for a 

cartel. The defendant testified he thought he only took possession of 

marijuana, not cocaine. Id. at 150, 64 Cal. Rptr. at 19. Though he saw the 

packaged cocaine, he said he believed the packages contained marijuana. 

Id. Acknowledging that the People's proof had to include defendant's 

"knowledge of the object's narcotic character," the court of appeal noted 

"specific intent to violate the law is immaterial." Id. at 152, 64 Cal. Rptr. at 

21 (citing People v. Winston, 46 Cal. 2d 151, 158, 293 P.2d 40, 47 (1956)). The 

requisite knowledge was proved by showing the defendant's "knowledge 

that the facts exist which bring the act . . . within the provisions of [the] 

code." Id. Romero's knowledge that he possessed marijuana, brought his 

"'act . . . within the provisions of [the] code,'" whether he did or did not 

know the latter fact. Id. (citation omitted). Contrary to the majority's 

assertion, that Romero knew he possessed illegal drugs was sufficient, 

though not necessary, to support the conviction. If he had known he 

possessed cocaine, but did not know cocaine is a narcotic drug, Romero 

would still have been guilty. 

¶28 I agree with the majority that A.R.S. § 13-202(A) is applicable, 

and reject the state’s assertion that legislative purpose is to the contrary. 

The state is required to show that Francis knew he possessed contraband. 

However, I conclude that the requisite mens rea may be demonstrated 

either by proof that the defendant knew, as in Bloomer and Romero, that 

what he possessed was proscribed, although he was mistaken as to the 

precise nature of what he possessed, or that he knew what he possessed, 

but may not have known it was illegal, as here.
STATE v. FRANCIS

Thompson, J., Dissenting

12

¶29 Francis's knowledge that he possessed a cell phone in jail, 

whether he did or did not know it constituted contraband as defined by 

statute, sufficed to establish the requisite mens rea. Accordingly, I would 

affirm.