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Knowingly Possessing Cellphone Was Arizona Felony Promoting Prison Contraband

Posted on December 7, 2021 in

In this appeal from two felony convictions of promoting prison contraband, defendant knowingly possessed a cellphone in the jail or prison facility, but claimed he did not know it was contraband. After harmonizing five statutes, the Arizona Supreme Court held the State must only prove the defendant “knowingly” possessed a cellphone. The prosecution need not prove the defendant knew a cellphone was contraband. Ignorance or mistake of law is no defense.

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The Arizona Supreme Court vacated the opinion of the Arizona Court of Appeals and remanded for further proceedings.

Defendant Got His Cellphone Back After Booking

Events leading up the contraband charges are uncomplicated. In 2014, Francis was booked into the Navajo County Jail Annex on unrelated charges. As standard procedure during booking, his personal property – including his cellphone – was taken, inventoried, and bagged.

The following day, Francis asked to call his criminal defense attorney. However, the officer was unable to locate the lawyer’s telephone number. When the defendant said his attorney’s contact number was saved on his cellphone, the officer gave it back to Francis for the purpose of retrieving the attorney’s contact information. Defendant did not return the cellphone to police custody. Instead, it remained in Francis’ possession while he was transported to the main jail. At that point, the cellphone was confiscated by another officer as contraband.

Defendant was charged with two felony counts of promoting prison contraband. A key pre-trial issue was whether the State had to prove defendant knew the cellphone in his possession was contraband before he could be convicted under Arizona law. Francis knew the cellphone was on his person, but claimed ignorance about it being prison contraband. Further reasoning he lacked the mental state element of promoting prison contraband and should not have been convicted. As a matter of statutory construction, the supreme court disagreed.

Felony Contraband in Correctional Facility or In Transport to Jail

In Arizona, it is a Class 5 Felony to knowingly take contraband into a correctional facility or possess it while being transported to jail. ARS § 13-2505 provides in part:

A. A person, not otherwise authorized by law, commits promoting prison contraband:

1. By knowingly taking contraband into a correctional facility or the grounds of a correctional facility; or

3. By knowingly making, obtaining or possessing contraband while being confined in a correctional facility or while being lawfully transported or moved incident to correctional facility confinement.

G. Promoting prison contraband if the contraband is a deadly weapon, dangerous instrument or explosive is a class 2 felony. Promoting prison contraband if the contraband is a dangerous drug, narcotic drug or marijuana is a class 2 felony. In all other cases promoting prison contraband is a class 5 felony. Failure to report a violation or attempted violation of this section is a class 5 felony. [Emphasis added.]

During pre-trial proceedings, the Superior Court ruled the State did not have to prove defendant knew his cellphone was contraband to be convicted under ARS § 13-2505(A)(1 and 3). The jury found Francis guilty on two counts of felony promoting prison contraband. That is, for “obtaining or possessing the cellphone” in a Navajo County jail annex or while being transported to the main jail; and for bringing the cellphone into the main jail grounds. Defendant was convicted on both contraband charges and sentenced to serve two concurrent five-year prison terms. Francis appealed.

On appeal, defendant first argued the trial court erred by not requiring the State prove he had knowledge a cellphone was contraband. Secondly, he claimed the trial court erred in allowing prior convictions testimony from his former lawyer. (Remanded for a decision on the latter issue.)

In analyzing the statutory construction of ARS § 13-2505 with respect to culpability (applying ARS § 13-202), the Arizona Court of Appeals reversed both two convictions and sentences. Inverse to the trial court’s ruling, the appeals court held the State was required to prove defendant also knew his cellphone was contraband in order to convict. Because the legislature intended two levels of “knowingly,” a defendant must knowingly obtain or possess the item and know it was contraband under Arizona law.

What Is the Meaning of “Knowingly”?

In construing the meaning of “knowingly” in ARS § 13-2505(A)(1 and 3), the Arizona Supreme Court harmonized five statutes, as follows:

  • A culpable mental state, or mens rea, applies to every element of the crime per ARS § 13-202(A); and
  • Felony if knowingly obtained or possessed contraband per ARS § 13-2505(A)(1,3) and carried it into a correctional facility; and
  • Cellphones are contraband per ARS § 13-2501(1); and
  • Knowledge of unlawfulness in possessing the cellphone is not an element of the crime per ARS § 13-105(10)(b); and
  • Ignorance or mistake of law is no defense per ARS § 13-204(B).

The supreme court held, in a case of statutorily defined contraband as here, the State must only prove defendant knowingly possessed the contraband, nothing more. That defendant knew the cellphone was prison contraband is not an element of the crime. To “knowingly” possess or carry a cellphone during transport to or inside a prison facility is the single mental state required to convict.

Without question, defendant knew he had a cellphone on him. In Arizona law, cellphones are considered contraband when in a jail or prison facility. The statutory definition of “contraband” includes any “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” along with narcotics, dangerous drugs, weapons, explosives, and more. ARS § 13-2501(1).

Ignorance or Mistake of Law Is No Defense

Also relying on ARS § 13-105(10)(b)’s definition of “knowingly,” the Supreme Court determined that a person need not know his act or omission was unlawful to commit the crime. Furthermore, ARS § 13-2014(B) codified the legal maxim that “[i]gnorance or mistake as to a matter of law does not relieve a person of criminal responsibility.”

Rejecting Arizona v. Bloomer, 156 Ariz. 276 (Ariz. Ct. App. 1987), as contextually distinguishable and incorrect, the supreme court’s analysis was more consistent with federal precedent. The court relied on several U.S. Supreme Court decisions, namely McFadden v. US, 135 SCt 2298 (2015); Posters ‘N’ Things, Ltd. v. US, 511 US 513 (1994); and Hamling v. US, 418 US 87 (1974).

Affirming the trial court, the Court of Appeals opinion was vacated with the case remanded. The sole issue on remand was whether the trial court erred in allowing the State to call defendant’s former attorney as a witness to testify on defendant’s prior conviction history.

Arizona v. Francis, CR-17-0062-PR (Feb. 5, 2018)

Arizona v. Darrel Scott Francis (2018)

For precise language, please read the court’s original opinion. Legal citations have been omitted.