                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   TIMOTHY OLIVER BOGIE, Appellant.

                             No. 1 CA-CR 15-0039
                               FILED 3-31-2016


          Appeal from the Superior Court in Maricopa County
                        No. CR2014-11700-001
        The Honorable Carolyn K. Passamonte, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                              STATE v. BOGIE
                             Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Margaret H. Downie joined.


G O U L D, Judge:

¶1            Timothy Bogie (“Defendant”) appeals from his convictions
and sentences for possession of a dangerous drug, and possession of drug
paraphernalia.1 Defendant argues the trial court’s ruling precluding him
from cross-examining a police officer regarding allegedly exculpatory
statements he made at the time of his arrest was error. Defendant claims
the court’s ruling violated his right to confront witnesses and present a
necessity defense. He also argues the court’s ruling violated Arizona Rule
of Evidence 106. For the following reasons, we affirm.

                   FACTS AND PROCEDURAL HISTORY

¶2            Shortly before 9 p.m. on April 11, 2014, officers conducted a
traffic stop on Defendant because his semi-truck did not have a license
plate. Defendant did not stop at first; as he drove, the officers could see him
moving and reaching around in the cab. Defendant eventually pulled over,
and one of the officers approached his truck. The officer walked towards
the truck and when he made eye-contact with Defendant through the side
mirror, Defendant drove away. The officers pursued and Defendant
ultimately stopped a few blocks later. This time, Defendant was arrested
for unlawful flight.

¶3           Officers conducted an inventory search of Defendant’s
vehicle and found a cigar box directly behind the driver’s seat. The cigar
box contained methamphetamine, a spoon with residue, a scale, and a pipe.

¶4           After being Mirandized the officer and Defendant had the
following conversation about the items:

          Question: What was the crystal like substance found behind
          your driver’s seat?


1         Defendant does not appeal his conviction and sentence for unlawful
flight.

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                            STATE v. BOGIE
                           Decision of the Court

       Answer: Meth.

       Question: Is this meth yours?

       Answer: No, it’s not mine.

       Question: Why is there meth in the vehicle?

       Answer: It belongs to my girlfriend who’s in the hospital and
       now she is clean so I wanted to throw it out.

       Question: Where did you get the meth?

       Answer: At her home in Mesa.

       Question: What time did you get the meth?

       Answer: Between 6 and 7 p.m.

       Question: Why were you driving around with meth in your
       vehicle for a couple of hours?

       Answer: Because I wanted to find a place to throw it away.

       Question: Why didn’t you just throw it in the garbage or the
       toilet?

       Answer: Because I didn’t think of that.

¶5           Defendant was charged with one count of unlawful flight, one
count of possession of a dangerous drug, and one count of possession of
drug paraphernalia.

¶6             Before trial, Defendant filed a motion in limine seeking to
preclude evidence he was attempting to locate a prostitute or soliciting sex
prior to the traffic stop. Specifically, evidence that when the officers first
observed Defendant’s truck, he was illegally parked in front of a homeless
shelter asking women to accompany him in his truck. In addition, there
was writing on the side of Defendant’s truck appearing to solicit
prostitution, and offering to pay money on a weekly basis. In addition, the
officers found some “sex toys” when they searched Defendant’s truck.

¶7            Defendant argued this was other act evidence that was
irrelevant to the charged offenses and would unduly prejudice the jury.
The court granted Defendant’s motion; however, the court did not rule on


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                            STATE v. BOGIE
                           Decision of the Court

whether the evidence could be used to impeach Defendant’s testimony
regarding his necessity defense should he choose to testify.

¶8            Defendant’s girlfriend’s testimony was also precluded in its
entirety because the court found that compelling her to testify could violate
her 5th Amendment rights. Any evidence Defendant could hope to elicit
from his girlfriend to support his necessity defense would require her to
make statements that could result in her being prosecuted for drug
possession. Thus, Defendant was required to elicit his self-serving
statements to the officer or to testify himself in order to support his
necessity defense.

¶9            Following the preclusion of Defendant’s girlfriend, the State
moved to preclude Defendant from introducing his comments to the police
that the methamphetamine belonged to his girlfriend and he was
attempting to dispose of it. The court granted the State’s motion to preclude
Defendant’s statements. Accordingly, the officer testified at trial regarding
his conversation with Defendant as follows:

      Question: Did the defendant make any statements about his
      knowledge of what the item was that you recognized as
      meth?

      Answer: Yes, he told me it was meth.

      Question: Did the defendant admit to knowingly possessing
      it?

      Answer: Yes.

¶10           Defendant argued the court’s ruling improperly deprived
him of his right to confront and cross-examine the officer because he could
not develop his necessity defense or attack the drug possession charge. The
State countered that the statements were irrelevant to the charges filed
against Defendant. Defendant was convicted of all three counts. He timely
appealed.

                              DISCUSSION

I.    Standard of Review

¶11          In the trial court, Defendant argued the precluded statements
were relevant to (1) his defense of necessity and (2) the element of
possession for the drug charge. We review the trial court’s evidentiary



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                            Decision of the Court

rulings for an abuse of discretion. State v. Tucker, 205 Ariz. 157, 165, ¶ 41
(2003). Issues of constitutional and statutory interpretation, however, are
reviewed de novo. State v. Nordstrom, 230 Ariz. 110, 114, ¶ 8 (2012).

II.    The Necessity Defense

¶12          Defendant argues preclusion of the statements improperly
prohibited him from establishing a necessity defense.

¶13           Criminal defendants are constitutionally guaranteed the right
to present a complete defense and to confront adverse witnesses. State v.
Riggs, 189 Ariz. 327, 331 (1997) (citing U.S. Const. amend. VI, amend XIV);
State v. Abdi, 226 Ariz. 361, 367, ¶ 27 (App. 2011). The right to cross-
examination is integral to the right of confrontation. Riggs, 189 Ariz. at 331;
Abdi, 226 Ariz. at 367, ¶ 27. However, this right is not without limitation;
“[a] defendant’s fundamental right to confront and cross-examine adverse
witnesses is ‘limited to the presentation of matters admissible under
ordinary evidentiary rules, including relevance.’” Riggs, 189 Ariz. at 333
(quoting State v. Dickens, 187 Ariz. 1, 14 (1996)). A defendant does not have
a constitutional right to cross-examine a witness on irrelevant or
inadmissible matters.

¶14          The necessity defense provides: “[c]onduct that would
otherwise constitute an offense is justified if a reasonable person was
compelled to engage in the proscribed conduct and the person had no
reasonable alternative to avoid imminent public or private injury greater
than the injury that might reasonably result from the person’s own
conduct.” A.R.S. § 13-417(A).

¶15           Under the plain language of the statute, the precluded
statements do not constitute evidence to support a necessity defense.
Defendant was not faced with an imminent private injury; according to the
statements, his girlfriend was currently in the hospital being treated for her
addiction. The presence of the drugs in the house did not present an
imminent threat of relapse. Additionally, the precluded statements
indicate Defendant drove around with the drugs in his vehicle for two to
three hours.

III.   The Drug Possession Charge

¶16           Defendant also argues his statements were relevant and
admissible to show that he did not “possess” the methamphetamine found
in his truck.



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                             STATE v. BOGIE
                            Decision of the Court

¶17           Under A.R.S. § 13-105(34) possession is defined as follows:
“knowingly to have physical possession or otherwise to exercise dominion
or control over property.” The statutory definition contemplates two kinds
of possession: “actual possession (‘to have physical possession’) and
constructive possession (‘or otherwise to exercise dominion or control over
property’).” State v. Ottar, 232 Ariz. 97, 99, ¶ 5 (2013) (quoting A.R.S. § 13-
105(34)). Actual, physical possession “requires some exercise of dominion
or control.” Id. at 100, ¶ 7; State v. Gonsalves, 231 Ariz. 521, 523, ¶ 9 (App.
2013) (same).

¶18           Defendant’s statements that the methamphetamine in the
vehicle belonged to his girlfriend did not alter the fact that he “possessed”
the methamphetamine in violation of A.R.S. §§ 13-3407, -105(34). His
statements establish that he took the drugs from his girlfriend’s house in
Mesa and drove around with them for a couple of hours. During that time
the drugs were in his physical possession and under his control. His
purported intent to dispose of the drugs rather than use them is immaterial
to the charged offense. See State v. Cox, 217 Ariz. 353, 356, ¶¶ 17-21 (2007)
(declining to interpret an “intent to use” mental state into the charge of
possession).

¶19            Furthermore, Evidence Rule 106 did not require admission of
the exculpatory statements simply because they were made in the same
conversation as Defendant’s inculpatory statements. Under Rule 106, “[i]f
a party introduces all or part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any other part . . . that
in fairness ought to be considered at the same time.” Ariz. R. Evid. 106.
“[O]nly the portion of a statement ‘necessary to qualify, explain or place
into context the portion already introduced’ need be admitted.” State v.
Cruz, 218 Ariz. 149, 162, ¶ 58 (2008) (quoting State v. Prasertphong, 210 Ariz.
496, 499, ¶ 15 (2005)). “Rule 106 does not create a rule of blanket admission
for all exculpatory statements simply because an inculpatory statement was
also made.” Id.

¶20           The statements Defendant sought to introduce would not
qualify, explain or place into context his admission to possession of the
methamphetamine. In fact, they would present an inaccurate picture to the
jury. Defendant wished to introduce the statements to cast himself as a
loving boyfriend who was forced to possess the drugs in order to protect
his recovering drug-addict girlfriend. However, the circumstances
surrounding Defendant’s arrest present a much different picture.




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                             STATE v. BOGIE
                            Decision of the Court

¶21           When the officers first contacted Defendant he was parked in
front of a homeless shelter apparently seeking to solicit prostitution. In
addition to the methamphetamine and drug paraphernalia, Defendant had
“sex toys” stashed in the cab. Defendant successfully precluded all
evidence tending to suggest he was involved in solicitation at the time of
his arrest. Fairness required the court to also preclude Defendant from
introducing self-serving hearsay through the officer to suggest that his sole
purpose that evening was to drive around in his truck until he could
dispose of his girlfriend’s drugs. The trial court did not abuse its discretion
by excluding the statements. Abdi, 226 Ariz. at 367, ¶ 27.

IV.    The Drug Paraphernalia Charge

¶22          Finally, Defendant argues for the first time on appeal that the
statements were relevant to his intent to use the drug paraphernalia found
in his truck. Because this argument was not raised below, it has been
waived for all but fundamental error. State v. Williams, 236 Ariz. 600, 604-
05, ¶ 21 (App. 2015). Defendant bears the burden of showing “that error
occurred, that it was fundamental, and that it prejudiced him.” State v.
Moreno-Medrano, 218 Ariz. 349, 354, ¶ 16 (App. 2008). However, Defendant
does not argue on appeal that the preclusion of the statements as to the drug
paraphernalia charge was fundamental error. Williams, 236 Ariz. at 604-05,
¶ 21; Moreno-Medrano, 218 Ariz. at 354, ¶ 17. Therefore, the issue has been
waived. Id.

                              CONCLUSION

¶23           For the reasons above, we affirm Defendant’s convictions and
sentences.




                                   :ama




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