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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             ANTHONY ANDREW KRZNARICH, Appellant.

                             No. 1 CA-CR 15-0034
                               FILED 1-21-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2013-460304-001
         The Honorable Richard L. Nothwehr, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Peter C. Rosales
Counsel for Appellant
                          STATE v. KRZNARICH
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.


T H U M M A, Judge:

¶1            Anthony Andrew Krznarich appeals his conviction for
possession or use of methamphetamine and resulting probation grant.
Krznarich argues the superior court improperly allowed testimony
regarding his “possession” of methamphetamine that lacked foundation
and violated his right to confront witnesses. Because he has shown no
reversible error, Krznarich’s conviction and probation grant are affirmed.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2            In December 2013, Krznarich (who was not a probationer at
that time) drove a probationer friend to a probation office in Scottsdale so
his friend could meet with his probation officer. Individuals who enter the
probation office must undergo a security screening, akin to one at a
courthouse or airport, including a requirement that wallets be searched.

¶3           A security officer, who did not testify at trial, contacted adult
probation supervisor Dana Shepherd and asked her to come to the security
area. When she arrived, Officer Shepherd met an individual she later
learned was Krznarich, who was seated in the lobby. Officer Shepherd saw
a container with an open wallet; on top of the open wallet was a small
plastic baggy containing a white crystalline substance. Given a concern
about the baggy, Officer Shepherd then contacted Scottsdale Police, and
officers promptly arrived at the probation office.

¶4            Officer Shepherd met with the police officers, explained the
situation and directed them to the security area. She observed court security
bring the container containing the wallet and baggy to the police officers.
Officer Matthew detained Krznarich and took him and the container with
the wallet and baggy into an interview room and read Krznarich his rights


1This court views the evidence in the light most favorable to sustaining the
conviction and resolves all reasonable inferences against the defendant.
State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).

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                          STATE v. KRZNARICH
                           Decision of the Court

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Krznarich agreed to
answer questions and, in his presence, Officer Matthew removed and
inspected the contents of the wallet. Among other things, the wallet
contained Krznarich’s driver’s license and social security card. Officer
Matthew asked Krznarich questions related to the wallet and baggy and
described Krznarich as acting “somewhat dejected.” Officer Matthew
recounted:

              When I asked him about the substance or the
              baggy and asked him what it was, he looked
              down at the ground and said, “It’s meth.”

              And I asked him for clarification. I said, “I’m
              sorry. I didn’t hear you.” And he looked up and
              said, “It’s meth, man.”

Officer Matthew testified that Krznarich did not express surprise, or offer
any explanation for the methamphetamine or claim that someone else had
placed the baggy in the wallet. Officer Matthew then arrested Krznarich.
After he was arrested, Krznarich admitted to using methamphetamine with
his probationer friend just before arriving at the probation office.

¶5            After he was arrested, an inventory search of Krznarich’s car
revealed a scale, a pipe and two pill bottles. One pill bottle had Krznarich’s
name on it and contained a baggy of marijuana. The pipe contained burnt
residue identified as the result of smoking marijuana. The other pill bottle
had the probationer’s name on it and contained methamphetamine. Testing
on the powder in the baggy showed the white substance was
methamphetamine. Krznarich was charged with possession or use of
methamphetamine, a dangerous drug, a Class 4 felony, possession or use
of marijuana, a Class 6 felony, and possession of drug paraphernalia, a
Class 6 felony.

¶6           As noted above, the security officer who first encountered
Krznarich did not testify at trial. As relevant to this appeal, Krznarich
claims the superior court twice allowed testimony from witnesses who
lacked proper foundation. First, on direct examination, the State asked
Officer Shepherd about her interaction with the police officers:

              Q.     And do you recall what you told
              [police]?

              A.     Our normal procedure is I meet them in
              the back of the building. We don’t like to have


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                        STATE v. KRZNARICH
                         Decision of the Court

            police cars in the front. So I met them in the
            back, explained to them that the defendant in
            this matter had brought in another probationer.
            While he was going through security, security
            had located a substance --

            [Krznarich’s counsel]: Objection. Foundation.

            THE WITNESS: -- a baggy of question.

            [Krznarich’s counsel]: Objection. Foundation.

            THE COURT: The objection is overruled. You
            can go ahead.

            THE WITNESS: They located that and that I
            needed that to be looked at by a police officer
            and that we were also going to be taking the
            probationer into custody as well.

Second, on direct examination, the State asked Officer Matthew about
questions he asked Krznarich:

            Q.     What did you ask [Krznarich]?

            A.      After the defendant was brought back to
            the back, he was detained, again, for officer
            safety reasons. I believe the court security or the
            security personnel there brought back a box
            with a wallet that had a small plastic baggy
            containing a white crystalline substance in it. I
            removed the wallet. There was also a driver's
            license and a social security card with Anthony
            Krznarich’s name and information on it, if you
            will. Based on that, Mr. Krznarich had already
            been read Miranda rights. I made sure he was
            still aware he was under Miranda rights, and I
            asked him questions related to his wallet and
            the small baggy with white crystalline
            substance found within.

            [Krznarich’s counsel]: Objection as to the
            substance found in it, in the wallet. Foundation.




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                           STATE v. KRZNARICH
                            Decision of the Court

              THE COURT: Overruled.

On cross-examination, both witnesses conceded that they had not
personally seen Krznarich in possession of the wallet or the baggy.

¶7             The superior court denied Krznarich’s motion for judgment
of acquittal after the conclusion of the State’s case and, at the conclusion of
trial, the jury deliberated and found Krznarich guilty on all three counts.
The superior court suspended sentence and placed Krznarich on intensive
probation for three years.2 This court has jurisdiction over Krznarich’s
timely appeal pursuant to the Arizona Constitution, Article 6, Section 9, and
Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and -
4033 (2016).3

                               DISCUSSION

I.     The Superior Court Properly Overruled Krznarich’s Foundation
       Objections.

¶8            Krznarich argues the superior court should have sustained
his foundation objections to the testimony by Officers Shepherd and
Matthew quoted above because they lacked personal knowledge. See Ariz.
R. Evid. 602. As applicable here, “[a] witness may testify to a matter only if
evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter.” Id. This court reviews the superior
court’s rulings for an abuse of discretion and will affirm “absent a clear
abuse or legal error and resulting prejudice.” Lohmeier v. Hammer, 214 Ariz.
57, 60 ¶ 6 (App. 2006). “[A]n abuse of discretion ‘is discretion manifestly
unreasonable, or exercised on untenable grounds, or for untenable
reasons.’” Lashonda M. v. Ariz. Dep’t of Econ. Sec., 210 Ariz. 77, 83 ¶ 19 (App.
2005) (quoting Quigly v. Tucson City Court, 132 Ariz. 35, 37 (1982)). Prejudice
results and the conviction will be reversed if there is “a reasonable
probability that the verdict would have been different had the evidence not
been admitted.” State v. Hoskins, 199 Ariz. 127, 143 ¶ 57 (2000) (citation
omitted). With these standards in mind, the court addresses Krznarich’s
arguments on appeal in turn.


2In this appeal, Krznarich does not challenge his conviction for possession
or use of marijuana and possession of drug paraphernalia and resulting
probation grants.

3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

                                       5
                          STATE v. KRZNARICH
                           Decision of the Court

¶9            Officer Shepherd was asked during direct “do you recall what
you told [police?]” Krznarich’s counsel did not object to the question when
asked. After Officer Shepherd had described in several sentences what she
told police (including that Krznarich and his friend had come to the
probation office), she continued with a sentence stating: “While he was
going through security, security had located a substance . . .” At that point,
Krznarich’s counsel objected “Foundation,” Officer Shepherd continued “a
baggy of question,” Krznarich objected again “Foundation” and the court
overruled the objection. Krznarich has not shown Officer Shepherd lacked
foundation to provide this testimony. The question (to which no objection
was made originally) called for what she recalled telling the police,
information over which Officer Shepherd had personal knowledge and the
appropriate foundation to provide. Similarly, Krznarich does not dispute
that “a baggy of question” was located by security or that Krznarich was
going through security at that same time, which is what prompted the call
to Officer Shepherd in the first instance. Accordingly, Krznarich has not
shown the superior court allowed the evidence on untenable grounds. See
Lashonda M., 210 Ariz. at 83 ¶ 19.

¶10            Similar to Officer Shepherd, Officer Matthew was asked
during direct “[w]hat did you ask [Krznarich]?” Again, Krznarich’s counsel
did not object to the question when asked. After Officer Matthew had
described in several sentences their discussion, he continued “I asked him
questions related to his wallet and the small baggy with white crystalline
substance found within.” At that point, Krznarich’s counsel objected:
“Objection as to the substance found in it, in the wallet. Foundation.” The
superior court then overruled that objection. The testimony Krznarich
objected to, however, was ambiguous in that it either could be construed as
referring to the baggy being found within the wallet (a topic on which this
witness likely did not have personal knowledge) or that the white
crystalline substance was found within the baggy (a topic on which the
witness did have personal knowledge). Given that ambiguity, Krznarich
has not shown the superior court abused its discretion in denying the
objection. Moreover, two questions later, Officer Matthew testified without
objection to the following: “Q. What did you see generally inside that
baggy? A. Again, there was a white, crystalline white substance contained
within the plastic baggy that was inside the wallet.” This evidence, to which
Krznarich did not object, resolved any ambiguity in the earlier questioning.




                                      6
                          STATE v. KRZNARICH
                           Decision of the Court

II.    The Confrontation Clause.

¶11             Krznarich argues for the first time on appeal that his right to
confront his accusers was violated because the security officer did not
testify at trial. The Confrontation Clause of the Sixth Amendment to the
United States Constitution prohibits the admission of testimonial
statements at a criminal trial unless the declarant is available at trial for
cross-examination. Crawford v. Washington, 541 U.S. 36, 59, 68 (2004). The
Confrontation Clause, however, “does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter
asserted.” Id. at 59 n.9; accord Ariz. R. Evid. 801(c). Because Krznarich did
not raise the issue in the superior court, this court will review for
fundamental error. See State v Boggs, 218 Ariz. 325, 333, ¶ 31 (2008).
“Accordingly, [Krznarich] ‘bears the burden to establish that “(1) error
exists, (2) the error is fundamental, and (3) the error caused him
prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citations
omitted). Krznarich has the burden of showing prejudice. State v Henderson,
210 Ariz. 561, 567 ¶ 19 (2005).

¶12           As explained above, the statements Krznarich challenges on
appeal were made by witnesses who testified and were extensively cross-
examined by Krznarich. No hearsay objection was made to the two
questions challenged on appeal. Officer Shepherd was asked what she told
the police to explain why they had been called, information offered to
describe the investigation. Officer Matthew was asked what he personally
asked Krznarich during an interrogation. Those statements were
information necessary to place the Krznarich statements in context;
Krznarich’s answers were admissible as statements of an opposing party.
Such evidence is not hearsay and is not subject to Confrontation Clause
analysis. United States v. Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012)
(holding that Confrontation Clause does not apply to defendant’s own
statements).

¶13           Even if the statements had violated Krznarich’s Confrontation
Clause rights, he has not shown resulting prejudice. In this case, there was
substantial additional evidence tying Krznarich to the baggy. When the
baggy was given to police, it was on top of a wallet that contained two forms
of Krznarich’s identification, and Krznarich did not deny ownership or
possession of either the wallet or baggy. Additionally, when asked about
the baggy, and without any need to associate the baggy with the wallet,
Krznarich immediately identified the contents of the baggy as
methamphetamine. Krznarich also went beyond simply identifying what
was in the baggy to admitting having used methamphetamine shortly


                                      7
                         STATE v. KRZNARICH
                          Decision of the Court

before arriving at the probation office. Krznarich has not shown the
admission of these statements violated his Confrontation Clause rights, let
alone that such an error was fundamental and resulted in prejudice. See
Henderson, 210 Ariz. at 567 ¶¶ 19-20; James, 231 Ariz. at 493 ¶ 11.

                             CONCLUSION

¶14        Krznarich’s conviction for possession or               use   of
methamphetamine and resulting probation grant are affirmed.




                                :ama




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