No. 2 CA-CR 2015-0433.


Court of Appeals of Arizona, Division Two.

Attorney(s) appearing for the Case

Mark Brnovich , Arizona Attorney General.

Joseph T. Maziarz , Chief Counsel, Phoenix, By Amy M. Thorson , Assistant Attorney General, Tucson Counsel for Appellee.

Rosemary Gordon Pánuco , Tucson Counsel for Appellant.

Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Howard concurred.



See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.


ECKERSTROM, Chief Judge.

¶1 Milton Barnett appeals from his convictions and sentences resulting from a police sting operation involving marijuana. On appeal, he raises multiple claims of trial error. For the following reasons, his convictions and sentences are affirmed.

Factual and Procedural Background

¶2 In November 2012, A.H. was arrested for possession of marijuana. He had approximately two pounds of marijuana with him at the time of his arrest. In an interview, A.H. claimed he had been in the process of making a deal to sell the marijuana for $2,000 a pound. He claimed he had already met with a man in a blue four-door sedan to discuss the deal, but that he did not know that man's name. A detective with the Casa Grande Police Department decided to use A.H. as a confidential informant. The police initiated a "tactical operation" using A.H.

¶3 A.H., under the direction of a detective, texted D.S. to arrange the drug deal. D.S. told A.H. the buyers would arrive in a brown truck. At the site chosen for the deal, a blue car and a brown truck entered the parking lot together. The officers stopped both vehicles. A man named R.T. was the driver of the blue car, and Barnett was in the passenger seat. Barnett had $3,000 in his pocket, and officers found a revolver on the floor of the passenger seat. The driver of the blue car, R.T., told police that the men intended to rob A.H. rather than purchase the marijuana.

¶4 After a jury trial, Barnett was convicted of conspiracy to possess marijuana for sale and attempted possession of marijuana for sale, both in an amount of at least two pounds but less than four pounds, conspiracy to commit armed robbery, attempted armed robbery, and two counts of misconduct involving weapons. He was sentenced to enhanced, aggravated, concurrent prison terms, the longest of which was twenty years.

Sufficiency of the Evidence

¶5 Barnett challenges the trial court's denial of his motion for judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., as to several of the counts against him. "Th[e] question of sufficiency of the evidence is one of law, subject to de novo review on appeal." State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). In our review, we determine whether substantial evidence, that is, evidence that a reasonable person could accept as sufficient to support a finding of guilt, supports the jury's verdicts. State v. Miller, 234 Ariz. 31, ¶ 33, 316 P.3d 1219, 1229 (2013). In so doing, we view the facts in the light most favorable to upholding the convictions. State v. Pena, 235 Ariz. 277, ¶ 5, 331 P.3d 412, 414 (2014).2

Conspiracy/Attempt to Commit Armed Robbery

¶6 Barnett first challenges the trial court's ruling denying his motion for judgment of acquittal on the charges of attempted armed robbery and conspiracy to commit armed robbery. He claims there was no evidence that he intended to rob A.H. But the driver of the blue car, R.T., gave a pretrial statement to the police saying that the two had planned a "lick," meaning a robbery. R.T. also claimed Barnett had told him they would need a gun, and a loaded revolver was found on the floor of the passenger seat. R.T. later recanted, claiming Barnett had never told him to get a gun or talked to him about a robbery. But R.T. also stated, when asked why he had changed his story, that he would "make [Barnett] look as . . . innocent as possible" in order to protect himself. Because the state presented testimony that Barnett and R.T. intended to rob A.H., even though R.T. later denied his statement, the evidence was sufficient to support Barnett's convictions for the robbery-related offenses. See State v. Donahoe, 118 Ariz. 37, 42, 574 P.2d 830, 835 (App. 1977) ("Evidence is not insufficient simply because testimony is conflicting."); see also State v. Hernandez, 112 Ariz. 246, 248, 540 P.2d 1227, 1229 (1975) ("[T]he credibility of witnesses when their stories conflict is a question of fact for the jury.").

Conspiracy/Attempt to Possess Marijuana for Sale

¶7 Barnett also claims the evidence is insufficient to support his convictions for conspiracy to possess marijuana for sale and attempt to possess marijuana for sale, both for an amount of at least two pounds but less than four pounds, because the evidence did not demonstrate that the amount of marijuana seized actually weighed more than two pounds. But factual impossibility is not a defense to an attempt crime. See State v. Carlisle, 198 Ariz. 203, ¶ 17, 8 P.3d 391, 396 (App. 2000). Rather, conviction for attempt is allowed if the defendant "intentionally engages in conduct which would constitute an offense if the attendant circumstances were as such person believes them to be." A.R.S. § 13-1001(A)(1). Likewise, as to the conspiracy charge, "[t]he fact that an offense remains inchoate . . . does not preclude a conviction for conspiracy to commit that offense." State v. Newman, 141 Ariz. 554, 560, 688 P.2d 180, 186 (1984); see United States v. Palmer, 203 F.3d 55, 64 (1st Cir. 2000) ("Because the essence of a conspiracy is an agreement, a failure to achieve the objective, even if factually impossible, is not a defense.") (citation omitted).

¶8 The state, therefore, was not required to demonstrate that the marijuana in question actually weighed two pounds to prove either the attempt charge or the conspiracy charge. Indeed, the state could have proven these charges even if there had been no actual marijuana involved. See State v. McElroy, 128 Ariz. 315, 316, 317, 625 P.2d 904, 905, 906 (1981) (conviction for attempted possession of dangerous drugs upheld where defendant purchased pills he believed to be amphetamines, though pills were not actually dangerous drugs of any kind). Accordingly, even assuming arguendo that the evidence was insufficient to show that the amount of marijuana was at least two pounds, the trial court did not err in denying Barnett's motion for acquittal.

Confrontation Clause

¶9 Barnett next claims the trial court erred in allowing the jury to view the video deposition of A.H. despite his objection that doing so would violate his constitutional right to confront witnesses against him. "[W]e review a trial court's determination of a Confrontation Clause violation de novo." State v. Parks, 211 Ariz. 19, ¶ 23, 116 P.3d 631, 636 (App. 2005).

¶10 In April 2015, A.H. gave a deposition. Counsel for Barnett was present, had the opportunity to cross-examine A.H., and in fact did cross-examine him. However, at the time of that deposition, Barnett had only been charged with the counts involving weapons misconduct, the drug offenses, and theft. The state subsequently dismissed those charges and filed a new indictment, dismissing the theft charge, including the drug and weapon-related charges, and adding the attempted robbery and conspiracy charges.

¶11 Barnett claims that, because the deposition was taken before the charges related to the robbery were added, he never had an opportunity to cross-examine A.H. as to those charges and was thus denied his right to "an opportunity for effective cross-examination." State v. King, 180 Ariz. 268, 276, 883 P.2d 1024, 1032 (1994), quoting United States v. Owens, 484 U.S. 554, 559 (1988). However, Barnett stipulated to the admissibility of A.H.'s video deposition. And "parties are bound by their stipulations, unless relieved therefrom by the trial court." Rutledge v. Ariz. Bd. of Regents, 147 Ariz. 534, 549, 711 P.2d 1207, 1222 (App. 1985). A court may set aside a stipulation if there is a showing of "a change in the underlying conditions that could not have been anticipated," id. at 550, 711 P.2d at 1223, but Barnett never requested such relief.3 Because Barnett was bound by his stipulation to admit A.H.'s deposition, we conclude the court did not err.4

Prosecutorial Vindictiveness

¶12 Barnett argues the trial court erred in denying his motion to dismiss the charges against him on the basis of prosecutorial vindictiveness. We review a trial court's decision on a motion to dismiss for prosecutorial vindictiveness for an abuse of discretion. State v. Mieg, 225 Ariz. 445, ¶ 9, 239 P.3d 1258, 1260 (App. 2010).

¶13 Barnett claims the state re-indicted him with additional charges as a punishment for exercising his right to trial rather than accepting a plea offer. "Due process prevents a prosecutor from charging a defendant with a higher charge because the defendant has exercised his rights," but "[a] higher charge can be filed after a defendant has exercised his rights if a change in circumstances justifies filing the higher charge." State v. Webb, 140 Ariz. 321, 323, 681 P.2d 473, 475 (App. 1984).

¶14 Here, the state provided a number of reasons for the addition of the new charges, wholly unrelated to Barnett's invocation of his right to trial. The state obtained additional evidence from Barnett's co-defendants who, after the original indictment, agreed to testify against him. The state also obtained evidence from cell phones seized from Barnett's co-defendants. Prior to obtaining this evidence, the state claimed it was unaware that Barnett intended to steal, rather than purchase, the marijuana from A.H. Notably, because of information obtained during the investigation, the state dropped a charge and an allegation of an aggravating factor that proved to be unsupported by the evidence at the same time it added the additional charges.

¶15 Barnett claims the state's reasons for re-indicting him with additional charges are not credible. But he has not provided any evidence that the state's explanation was not true, and has thus failed to meet his burden of showing the trial court abused its discretion in accepting that explanation and denying his motion to dismiss. Cf. State v. Fell, 242 Ariz. 134, ¶ 5, 393 P.3d 475, 477 (App. 2017) (trial court abuses its discretion if it "makes a discretionary finding of fact that is not justified by reason").

Willits Instruction

¶16 Finally, Barnett claims the trial court should have given his requested Willits5 instruction. He requested the instruction on the basis that the police allowed A.H. to "leave the police station with the phone he used to set up the drug deal that ultimately resulted in Barnett's arrest." We review a trial court's decision whether to give a Willits instruction for an abuse of discretion. State v. Glissendorf, 235 Ariz. 147, ¶ 7, 329 P.3d 1049, 1052 (2014).

¶17 To be entitled to a Willits instruction, a defendant must show both that "the state failed to preserve material and reasonably accessible evidence that could have had a tendency to exonerate the accused" and that "there was resulting prejudice." Id. ¶ 8, quoting State v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988). To meet the first prong of the test, a defendant must show that the lost evidence was potentially useful to a defense theory of the case supported by the evidence. Id. ¶ 10.

¶18 Barnett asserts two bases for his claim that evidence on A.H.'s phone could have supported his theory of defense. First, he claims A.H.'s texts and calls might have shown that A.H. sold some of the marijuana, thereby supporting his claim that A.H. did not actually possess two pounds of marijuana at the time of the attempted sale. But, as we have explained above, it was irrelevant whether or not A.H. actually possessed two pounds of marijuana. Second, Barnett claims that, if the phone did not demonstrate any direct contact between himself and A.H., it would have supported his theory "that he was not a party to the sale of [A.H.]'s marijuana." But the state's theory of the case acknowledged there had not been any direct telephone contact between A.H. and Barnett. Rather, the state claimed the transaction had been accomplished through the use of middlemen. Because the state never claimed there had been any direct contact between A.H. and Barnett, even if A.H.'s phone had confirmed that lack of contact, it would not have been helpful to Barnett's defense. Id. Accordingly, the trial court did not abuse its discretion in denying Barnett's requested instruction.


¶19 For the foregoing reasons, Barnett's convictions and sentences are affirmed.


1. The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
2. Barnett argues that the video deposition of A.H., which was played for the jury but was not transcribed, is not properly part of the record on appeal. We need not consider this issue, because even assuming arguendo that the deposition is not included in the record, the evidence is still sufficient to support Barnett's convictions and sentences.
3. To the extent a Confrontation Clause objection could be considered an implicit request to set aside the stipulation, Barnett made no such argument to the trial court or to this court on appeal. Moreover, whether a party should be relieved from a stipulation is a substantively distinct issue from whether testimony should be admitted over a Confrontation Clause objection. Although the trial court did not rely on Barnett's stipulation in ruling on his objection, we may uphold a trial court's ruling for any reason supported by the record. See State v. Childress, 222 Ariz. 334, ¶ 9, 214 P.3d 422, 426 (App. 2009).
4. In his reply brief, Barnett claims the testimony should also have been excluded as hearsay. Barnett's stipulation would bar this claim, as well, and, at any rate, an issue raised for the first time in a reply brief comes too late. See State v. Cohen, 191 Ariz. 471, ¶ 13, 957 P.2d 1014, 1017 (App. 1998).
5. State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).


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