State v. Reyes, 232 Ariz. 468

Reyes was indicted on seven counts of possession of marijuana for sale, plus money laundering, conspiracy, and illegal control of an enterprise; two counts (conspiracy and illegal control) were dismissed on a Rule 20 motion at the close of the State’s case.
The jury convicted Reyes of six counts of the lesser-included offense (possession of marijuana), acquitted him on one sale count, and was hung on the money-laundering count.
Reyes did not object at trial to the court’s failure to instruct the jury about the dismissed counts before deliberations.
The trial court ordered Reyes to submit to statutorily-required DNA testing and later entered an order requiring him to pay the cost of testing.
Reyes appealed, arguing (1) fundamental error from omission of a jury instruction regarding dismissed counts and (2) that the court lacked authority to assess the DNA testing fee against him.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Reyes)	Held
Failure to instruct jury about dismissed counts	No error; court properly instructed on counts before jury; curative instruction not required	Omission was error and fundamental because jurors might penalize or speculate without instruction	No fundamental error; no duty to sua sponte tell jurors why counts were dismissed; no prejudice shown; convictions affirmed
Court’s authority to require defendant to pay DNA testing costs	Court can impose fines/surcharges; fund supports DNA system so fee is proper	§ 13-610 does not authorize imposing testing cost on defendant; statute silent and legislature created fund funded by surcharges instead	Court erred to impose direct payment obligation; vacated the portion of sentence requiring Reyes to pay DNA testing costs

State v. Henderson, 210 Ariz. 561 (app. 2005) (standard for fundamental error review)
State v. Newell, 212 Ariz. 389 (app. 2006) (presumption that jurors follow instructions)
State v. Barnett, 111 Ariz. 391 (sup. Ct. 1975) (instruction about dismissed co-defendant not required as comment on evidence)
United States v. Montgomery, 150 F.3d 983 (9th Cir. 1998) (curative instruction about co-defendant dismissal does not create presumption against others)
Moore v. Browning, 203 Ariz. 102 (app. 2002) (statutory interpretation de novo; legislative intent focus)
State v. Powers, 154 Ariz. 291 (sup. Ct. 1987) (statutorily-authorized fees must be imposed in open court)
Jackson v. Schneider (State), 207 Ariz. 325 (app. 2004) (sentence void as to excess portion when court exceeds sentencing authority)