The Arizona Court of Appeals in State v. Francis, No. 1 CA-CR 16-0051 (1/3/17), held that the crime of promoting prison contraband requires proof the defendant knew the item of property was in fact prison contraband.
In the case, the defendant was detained at a Jail Annex on unrelated charges. Officers took the defendant’s clothing, boots and cell phone, and stored them in a property bag. While in custody, the defendant asked to call his attorney. After the officer on duty could not find the lawyer’s phone number, the defendant volunteered that the lawyer’s number was stored on his cell phone. The officer then retrieved the defendant’s cell phone from his property bag, activated it and located the phone number. Later that day, the defendant was transported to a County Jail. There, another officer noticed Francis was holding the cell phone and confiscated it.
The defendant was charged with two counts of promoting prison contraband – one count for allegedly possessing the cell phone inside the County Jail, and the other for possessing the cell phone while inside the annex or while being transported from the annex to the jail.
Prior to trial, at the State’s request, the trial judge ruled the State did not have to prove the defendant knew the phone was contraband. The judge also prohibited the defendant from arguing to the jury that the State needed to prove he knew the cell phone was contraband.
Evidence presented at trial included that jail 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 crime of promoting prison contraband requires proof that, the defendant “knowingly…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.”
The defendant was convicted on both counts and sentenced to concurrent five year sentences.
On appeal the court of appeals reversed the convictions and did so by holding the crime of promoting prison contraband requires proof the defendant knew that the item (the cell phone) was prison contraband.
The issue in the case was, what did “knowingly” mean. Did Knowingly only require proof the defendant knew the item was a cell phone; or, that the defendant knew both that the item was a cell phone and that a cell phone was prison contraband?
A.R.S. § 13-105(10)(b) (2016) defines “Knowingly” as, “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.”
The court of appeals said that section does not answer the question of 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 knew he possessed an item and knew it was contraband.
The court then applied, A.R.S. § 13-202 (2016), “Construction of statutes with respect to Culpability. “That section says, “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.” Using that statute the court said in this case “knowingly” applies to all of the elements of the crime including the element of “prison contraband.” The court therefore said the State must also prove the defendant knew the item (the cell phone) was prison contraband, and not simply that the defendant knew it was a cell phone.
The court therefore reversed the convictions.
The dissenting judge said that under A.R.S. § 13-105(10)(b) the State need only prove the defendant knowingly possessed a cell phone and not that he knew the cell phone was contraband.
The case made be found at:
Click the link below to read another recent Arizona Court of Appeals decision regarding cell phones:
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