                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                       KURT JAY STIEFEL, Appellant.

                             No. 1 CA-CR 14-0532
                              FILED 9-10-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-114027-001
             The Honorable Pamela Hearn Svoboda, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Officer, Phoenix
By Terry J. Adams
Counsel for Appellant
                             STATE v. STIEFEL
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge John C. Gemmill and Judge Kenton D. Jones joined.


K E S S L E R, Judge:

¶1             Appellant Kurt Jay Stiefel (“Stiefel”) was tried and convicted
of one count of possession of dangerous drugs with the intent to sell (Count
1), a class 2 felony, and two counts of possession of drug paraphernalia
(Counts 2 & 3), class 6 felonies. He was sentenced to concurrent terms of
twelve and one half years in prison and a $1000 fine for Count 1 and three
years’ imprisonment each for Counts 2 and 3. Stiefel’s counsel filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark,
196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no arguable issues to raise,
counsel requests that this Court search the record for fundamental error.
For the reasons that follow, we affirm Stiefel’s convictions and sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶2            The Phoenix Police Department received a tip that drugs were
being sold in a house in Maricopa County. A team of detectives conducted
surveillance on the residence for about two hours and witnessed “at least
five or six” people visit the house for five to ten minutes and then leave.
Detective T got a search warrant for the house, which SWAT executed.

¶3             SWAT removed three people from the house, including
Stiefel. Upon searching the house, the police found an Arizona Public
Service (“APS”) utility bill for the residence bearing Stiefel’s name, 246
grams of methamphetamine, three digital scales, a large quantity of small
plastic bags, and $4410 in cash, all in the southwest bedroom of the house.
When the search was complete, the officers arrested Stiefel.

¶4            The jury found Stiefel guilty of all three counts. At the
aggravation phase, Stiefel admitted to committing the crimes for pecuniary
gain. After an evidentiary hearing, the trial court found Stiefel had four
prior felony convictions, which made him a category three repetitive
offender. See Ariz. Rev. Stat. (“A.R.S.”) §§ 13-105(22) (West 2015), 13-703(C)




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                             STATE v. STIEFEL
                            Decision of the Court

(West 2015).1 After considering mitigating and aggravating factors, the
court sentenced Stiefel to mitigated prison sentences and a $1000 fine with
an 83% surcharge for a total of $1830.

¶5             Stiefel timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 (West
2015), -4033(A)(1) (West 2015).

I.     The evidence was sufficient for all three counts.

¶6             We find no fundamental error in the proceedings, and the
State produced sufficient evidence for the convictions. In an Anders appeal,
this Court must review the entire record for fundamental error. Error is
fundamental when it affects the foundation of the case, deprives the
defendant of a right essential to his defense, or is an “error of such
magnitude that the defendant could not possibly have received a fair trial.”
See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005)
(quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). To
reverse, the defendant must also show that the error was prejudicial. Id. at
¶ 20. “We construe the evidence in the light most favorable to sustaining
the verdict, and resolve all reasonable inferences against the defendant.”
State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). “Reversible
error based on insufficiency of the evidence occurs only where there is a
complete absence of probative facts to support the conviction.” State v. Soto-
Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113
Ariz. 423, 424–25, 555 P.2d 1117, 1118–19 (1976)).

¶7             For possession of dangerous drugs with the intent to sell, the
State has the burden of proving Stiefel knowingly possessed nine grams or
more of methamphetamine with intent to sell it. See A.R.S. §§ 13-3407(A)(2)
(West 2015) (knowingly possess for sale), -3401(6)(c)(xxxviii) (West 2015)
(methamphetamine is a dangerous drug), -3401(36)(e) (threshold amount is
nine grams). To prove possession, the State had to prove Stiefel actually or
constructively possessed the methamphetamine. See A.R.S. § 13-105(35);
State v. Chabolla–Hinojosa, 192 Ariz. 360, 363, ¶ 13, 965 P.2d 94, 97 (App.
1998). Mere presence where the methamphetamine was found is
insufficient to show constructive possession. See State v. Gonsalves, 231 Ariz.
521, 523, ¶ 11, 297 P.3d 927, 929 (App. 2013). When a defendant’s personal
possessions are found in close proximity to the drugs indicating that the
defendant resides in or is staying in a room with the drugs, the jury can


1We cite the current version of applicable statutes because no revisions
material to this decision have since occurred.


                                       3
                             STATE v. STIEFEL
                            Decision of the Court

infer constructive possession. See State v. Jung, 19 Ariz. App. 257, 261, 506
P.2d 648, 652 (1973).

¶8            At trial, Detective C testified about the layout of the house and
the discovery of the methamphetamine, $4410 in cash, small bags, scales,
and the APS bill bearing Stiefel’s name in the southwest bedroom. A
forensic scientist with the Phoenix Police Department Crime Lab testified
the items seized from the house included 246 grams of methamphetamine.
Detective T testified that he witnessed several people coming to the house
by various means, remaining for a few minutes, then departing, which he
testified was consistent with someone selling drugs in the house.

¶9             The evidence is sufficient to show Stiefel lived in the
southwest bedroom, thus showing he had dominion and control over the
drugs and paraphernalia. Not only did the police find the APS bill in
Steifel’s name in that bedroom, but also found Steifel’s clothes in the same
bedroom. Detectives T and C testified that when SWAT removed Stiefel
from his house, he was missing at least one shoe and was either shirtless or
wanted a jacket. About two hours after serving the warrant, Detective T
informed Stiefel that he was going to be charged and taken to jail. Stiefel
then asked Detective T to retrieve his clothes from the southwest bedroom.
When Detective T could not locate them, he escorted Stiefel to the
southwest bedroom, and Stiefel located and retrieved his clothes.
Detectives T and C both testified that Stiefel entered the southwest bedroom
to retrieve his clothes, and Detective T testified that Stiefel verbally asserted
ownership of the southwest bedroom.2

¶10            Read in the light most favorable to upholding the jury’s
verdict, there is sufficient evidence to show that the methamphetamine was
found in Stiefel’s bedroom. Given the amount of methamphetamine, the
large amount of cash, and the officer’s testimony that several people were




2 Based on the record, Stiefel was not read his Miranda rights before he asked

for and retrieved his clothes. See Miranda v. Arizona, 384 U.S. 436 (1966).
Thus, the officers should not have been permitted to testify about those
actions. See Michigan v. Mosley, 423 U.S. 96, 100 (1975); State v. Montes, 136
Ariz. 491, 494, 667 P.2d 191, 194 (1983); State v. Zamora, 220 Ariz. 63, 68, ¶
10, 202 P.3d 528, 533 (App. 2009). However, the error was harmless because
the location of his clothes was derived from his voluntary statements. See
United States v. Patane, 542 U.S. 630, 636 (2004).



                                       4
                            STATE v. STIEFEL
                           Decision of the Court

coming and going from the house, the evidence is sufficient to show Stiefel
intended to sell the methamphetamine.

¶11            For possession of drug paraphernalia the State must prove
that Stiefel possessed drug paraphernalia and intended to use it to “pack,
repack, store, contain, [or] conceal” or analyze methamphetamine, A.R.S. §
13-3415(A) (West 2015). Bags and scales can be drug paraphernalia. A.R.S.
§ 13-3415(F)(2)(e), (j). The court instructed the State had to prove that the
scales were used or intended to be used to weigh or measure the
methamphetamine and the baggies were used or possessed with the intent
to repack, store or contain the methamphetamine.3

¶12            The State proved that Stiefel possessed 246 grams of
methamphetamine. The three scales and numerous plastic bags were found
in the southwest bedroom, along with the methamphetamine. Based on the
proximity of the bags and scales to the methamphetamine the jury could
infer that these items were drug paraphernalia.

II.    The sentencing and fine were within the statutory requirements.

¶13            For Count 1, possession of dangerous drugs with the intent to
sell, the court sentenced Stiefel to twelve and one half years of
imprisonment, see A.R.S. § 13-703(J); a $1000 fine with a surcharge of 83%,
see A.R.S. § 13-3407(H); a $13 penalty assessment, see A.R.S. § 12-116.04(A)
(West 2015); a $20 time payment fee, see A.R.S. § 12-116(A) (West 2015); an
$80 surcharge, see A.R.S. § 16-954(A) (West 2015); and a $20 probation
assessment, see A.R.S. § 12-114.01(A) (West 2015).4


3 While A.R.S. § 13-3415(A) does not define “analyze,” it is defined as “to
break apart (any whole) into its parts so as to find out their nature,
proportion, function, relationship, etc.” Analyze, Webster’s New Universal
Unabridged Dictionary (2nd ed. 1983). We can turn to dictionary
definitions when the statutes do not define the term. State v. Peña, 235 Ariz.
277, 279, ¶ 6, 331 P.3d 412, 414 (2014). As analyzing requires breaking apart
and determining proportions, the court did not err in using the terms to
weigh or measure in lieu of the statutory term “analyze.”
4 The court refers to the probation assessment as a “probation surcharge.”

In 2010, the legislature substituted “surcharge” for “assessment,” but the
assessment is properly imposed even if the court refers to it as a surcharge.
See State v. Pelaez, 235 Ariz. 264, 265–66, ¶¶ 4–5, 330 P.3d 1021, 1022–23
(App. 2014).



                                      5
                             STATE v. STIEFEL
                            Decision of the Court

¶14            The mitigated prison sentence imposed was within the
statutory range for a category three repetitive offender convicted of a class
2 felony. See A.R.S. § 13-703(J). The court gave Stiefel 90 days of
presentence incarceration credit; however, he was only incarcerated for
eighty-four days before sentencing. Additionally, the fine was also
significantly lower than that required by A.R.S. § 13-3407(H).5 The State
did not appeal the unlawfully lenient fine or excessive presentence
incarceration credit, and we lack subject matter jurisdiction to correct either.
See State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990).

¶15            The mitigated sentences for Counts 2 and 3, possession of
drug paraphernalia, are within the statutory range for a category three
repetitive offender convicted of class 6 felonies. See A.R.S. § 13-703(J).

                               CONCLUSION

¶16           After careful review of the record, we find no meritorious
grounds for reversal of Stiefel’s convictions, sentences or fines and
surcharges. The evidence supports the verdicts; the sentences imposed are
within the sentencing limits; the proceedings were held in accordance with
the Arizona Rules of Criminal Procedure; Stiefel was permitted to speak at
sentencing; and Stiefel was represented at all critical stages of trial.
Accordingly, we affirm his convictions, sentences, fines and surcharges.




5Section 13-3407(H) imposes a fine of $1000 or three times the value of the
drugs involved in the offense, whichever is greater. Stiefel had 246 grams
of methamphetamine. Detective C testified that the wholesale value of the
drugs was at least $3000. Thus, the court should have imposed a $9000 fine.


                                       6
                             STATE v. STIEFEL
                            Decision of the Court

¶17            Upon the filing of this decision, counsel shall inform Stiefel of
the status of the appeal and his options. Defense counsel has no further
obligations, unless, upon review, counsel finds an issue appropriate for
submission to the Arizona Supreme Court by petition for review. See State
v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57 (1984). Stiefel shall
have thirty days from the date of this decision to proceed, if he so desires,
with a pro per motion for reconsideration or petition for review.




                                    :ama




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