                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38675

STATE OF IDAHO,                                   )     2013 Unpublished Opinion No. 487
                                                  )
          Plaintiff-Respondent,                   )     Filed: May 8, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
KIRK JULLIARD GOSCH,                              )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
          Defendant-Appellant.                    )     BE CITED AS AUTHORITY
                                                  )

          Appeal from the District Court of the First Judicial District, State of Idaho,
          Kootenai County. Hon. Benjamin R. Simpson, District Judge.

          Judgment of conviction and sentences for two counts of trafficking in
          marijuana, affirmed; order denying I.C.R. 35 motion for reduction of
          sentence, affirmed.

          Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________
LANSING, Judge
          Kirk Julliard Gosch appeals following his conviction for two counts of trafficking in
marijuana. He asserts that the evidence was insufficient to support one count of trafficking, that
the court made an erroneous evidentiary ruling at trial, and that the court abused its discretion at
sentencing and at his Idaho Criminal Rule 35 hearing. For the reasons set forth below, we
affirm.
                                                 I.
                                        BACKGROUND
          In February 2010, law enforcement officers arranged for an informant to attempt to
purchase marijuana from Gosch. On February 2, while officers observed, the informant met with
Gosch in a parking lot. Gosch threw a bag into the informant’s car and the informant gave



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Gosch cash. Shortly thereafter, the informant delivered a bag containing approximately one
pound of marijuana to the officers. 1 The following day, law enforcement officers executed a
search warrant at Gosch’s residence and seized two vehicles regularly driven by Gosch and his
girlfriend, Kasie Gordon. 2 Seven bags containing a total of 2.88 pounds of marijuana were
discovered in Gosch’s vehicle.
       The State charged Gosch with one count of trafficking for possessing or delivering at
least one pound of marijuana to the informant on February 2, and with a second count of
trafficking in marijuana for the possession of at least one pound of marijuana on February 3.
Idaho Code § 37-2732B(a)(1)(A). The State also alleged that Gosch was subject to a persistent
violator sentence enhancement because he had previously been convicted of at least two felonies.
I.C. § 19-2514. At trial, the jury returned a guilty verdict on each of the two counts of trafficking
in marijuana, and Gosch pleaded guilty to the persistent violator sentencing enhancement. The
district court imposed concurrent unified sixteen-year sentences with six-year determinate terms
for each count. Gosch subsequently moved for a reduction of his sentence pursuant to Rule 35,
but the district court denied the motion. Gosch appeals.
                                                 II.
                                           ANALYSIS
A.     Sufficiency of the Evidence
       Gosch asserts that the evidence supporting count one was insufficient because the State
did not prove that the bag of marijuana provided to the police by the informant was the same bag
that Gosch delivered to the informant, and thus that the State failed to prove that Gosch
possessed or delivered the marijuana. Appellate review of the sufficiency of the evidence is
limited in scope.    In assessing the sufficiency of evidence, we will uphold a judgment of
conviction entered upon a jury verdict so long as there is substantial evidence upon which a


1
        The marijuana delivered by the informant weighed slightly less than one pound.
However, “the weight of the controlled substance as represented by the person selling or
delivering it is determinative if the weight as represented is greater than the actual weight of the
controlled substance.” I.C. § 37-2732B(c).
2
        Both vehicles were titled in Gordon’s name, but she testified that she was the primary
driver of one of the vehicles, and Gosch was the primary driver of the other. For purposes of this
opinion, we will refer to the vehicles as “Gordon’s vehicle” and “Gosch’s vehicle,” respectively.


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rational trier of fact could conclude that the prosecution proved all essential elements of the
crime beyond a reasonable doubt. State v. Severson, 147 Idaho 694, 712, 215 P.3d 414, 432
(2009). Evidence is substantial if a reasonable trier of fact would accept it and rely upon it in
determining whether a disputed point of fact has been proven. Id. On appeal, this Court must
view the evidence in the light most favorable to the prosecution. State v. Sheahan, 139 Idaho
267, 286, 77 P.3d 956, 975 (2003). Further, we will not substitute our own judgment for that of
the jury on matters such as the credibility of witnesses, the weight to be given to certain
evidence, and the reasonable inferences to be drawn from the evidence. Severson, 147 Idaho at
712, 215 P.3d at 432.
       Gosch correctly asserts that the informant did not testify at trial, that no witness identified
the bag the informant delivered to the police as the same bag that Gosch threw into the
informant’s car, and that the police did not search the bag for fingerprints. However, the State
presented overwhelming circumstantial evidence that Gosch possessed or delivered the
marijuana.
       The State introduced an audio recording of a telephone call between the informant and
Gosch in which the informant seemed to arrange the purchase of one pound of marijuana for
$2,800. 3 In preparation for the controlled buy, the police provided the informant with marked
bills to purchase the marijuana, equipped him with a recording device, and searched his person
and vehicle. Several officers observed as the informant met with Gosch and Gordon in a gas
station parking lot. One of the officers testified that Gosch exited Gordon’s vehicle, opened the
trunk, retrieved what “looked like a small package, possibly plastic-type grocery bag kind of
wrapping” from the trunk of the car, and then returned to speak with the informant. Gordon
testified that a few seconds after Gosch opened the trunk, Gosch threw a bag into the informant’s
car and the informant gave Gosch money. On the recording, Gosch can be heard counting the




3
        On the recording, the informant can be heard requesting to meet “somewhere we could
weigh it,” and informing Gosch that he has enough money to purchase a “full one,” and both
Gosch and the informant can be heard discussing a price of $2,800. At trial, a law enforcement
officer testified that a “full one” was slang for a pound, and that a pound of marijuana typically
sold for between $2,500 and $3,500.


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money and arguing with the informant because it was $500 short, 4 and the informant suggested
that he would provide the remaining cash and purchase an additional “quap,” slang for a quarter
pound, later that afternoon. The informant met the officers approximately ten to fifteen minutes
later, and delivered a plastic grocery bag containing approximately one pound of marijuana. The
following day, the police executed a search warrant at Gosch’s residence. A total of $365 of
cash from the controlled buy was discovered in Gosch’s wallet. Based on this evidence, a
rational trier of fact could conclude that the prosecution proved that Gosch knowingly possessed
or delivered the marijuana to the informant in violation of Idaho Code § 37-2732B(a)(1)(A).
B.     Relevance of Testimony
       At trial, defense counsel questioned an officer about a search that was conducted at a
house belonging to Gosch’s parents. The State objected on relevance grounds, and the district
court sustained the State’s objection. On appeal, Gosch asserts that the district court erred in
excluding the testimony because the testimony would have shown that no incriminating evidence
was found at the home, making it “somewhat less likely that Mr. Gosch was the person
responsible for the delivery of marijuana to the informant and responsible for trafficking in
marijuana by possessing the marijuana found in the two vehicles.”
       Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Idaho Rule of Evidence 401.        Evidence that is not relevant is not
admissible. I.R.E. 402. On appellate review, questions of relevance are reviewed de novo. State
v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993); State v. Critchfield, 153 Idaho
680, 683, 290 P.3d 1272, 1275 (Ct. App. 2012). Gosch did not reside with his parents and was
not charged with keeping marijuana at their house. Therefore, evidence that no marijuana or
other incriminating evidence was discovered at Gosch’s parents’ home had little or no tendency
to make it more or less probable that Gosch delivered marijuana to the informant, or that he
possessed the marijuana that was discovered in his vehicle.
       However, even if we were to assume that the evidence was relevant, and therefore
admissible, any error in excluding the evidence was harmless. Trial error will be deemed
harmless if the reviewing court is convinced beyond a reasonable doubt that the error did not

4
       The informant later admitted to the police that the missing $500 was hidden under a floor
mat in his car, where it was discovered during a search following the controlled buy.

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contribute to the verdict. Chapman v. California, 386 U.S. 18, 24 (1967); State v. Perry, 150
Idaho 209, 226-27, 245 P.3d 961, 978-79 (2010). As discussed above, the State’s evidence
demonstrated that Gosch arranged to sell one pound of marijuana, accepted $2,800 in payment
from the informant, and delivered a package of marijuana to the informant. Part of the buy
money was later found in Gosch’s wallet.          Seven bags of marijuana weighing a total of
2.88 pounds were discovered in Gosch’s vehicle and Gosch’s fingerprint was discovered on one
of the bags. In view of this compelling evidence, we are convinced beyond a reasonable doubt
that even if the court erred by excluding testimony indicating that no incriminating evidence was
found during the search of the home belonging to Gosch’s parents, that error did not contribute
to the verdict.
C.      Sentence Review
        Gosch asserts that the district court abused its discretion by imposing concurrent
sentences of sixteen years with six years determinate, and again abused its discretion by denying
his motion to reduce his sentence. Appellate review of a sentence is based on an abuse of
discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000).
Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and
thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992).
A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the
facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of
confinement is reasonable if it appears at the time of sentencing that confinement is necessary
“to accomplish the primary objective of protecting society and to achieve any or all of the related
goals of deterrence, rehabilitation or retribution applicable to a given case.” State v. Toohill, 103
Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the
sentencing court imposed an excessively harsh sentence, we conduct an independent review of
the record, having regard for the nature of the offense, the character of the offender, and the
protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.
App. 1982). When reviewing the length of a sentence, we consider the defendant’s entire
sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
        A motion for reduction of sentence under Idaho Criminal Rule 35 is essentially a plea for
leniency, addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319,
144 P.3d 23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In


                                                 5
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of a Rule 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987); State v. Lopez, 106 Idaho 447, 449-51, 680
P.2d 869, 871-73 (Ct. App. 1984).
       Gosch does not allege that his sentence exceeds the statutory maximum (a potential
sentence of life imprisonment due to the persistent violator enhancement), and he thus bears the
burden of proving a clear abuse of discretion. At sentencing Gosch expressed remorse, made
attempts to accept responsibility for his actions, indicated that he had family support, and
demonstrated a positive work history.      However, the district court concluded that Gosch
continued to blame others for his crimes, that he had not demonstrated that he was a good
candidate for rehabilitation, and that incarceration was necessary both for the protection of
society and “to send a message that we don’t tolerate drug trafficking in this community.” At the
hearing on Gosch’s Rule 35 motion, defense counsel presented argument regarding an intensive
long-term drug counseling program to which Gosch had been “all but accepted.” The district
court determined that a reduction of Gosch’s sentence would be inappropriate.
       Between 2000 and 2005, Gosch was convicted of one felony count of theft, and two
misdemeanors: possession of drug paraphernalia and possession of marijuana. In 2006, he was
convicted of three additional felonies: manufacturing a controlled substance, possession of a
controlled substance with intent to manufacture or deliver, and possession of more than three
ounces of marijuana. As a result of the three felony convictions, Gosch was sentenced to a five-
year unified term of imprisonment with one year fixed but the sentence was suspended, and he
was placed on probation. While on probation, Gosch was charged with two drug-related crimes
that were eventually dismissed, and was charged and convicted of felony eluding a police officer
resulting in an additional five-year sentence. He also committed multiple probation violations
resulting in the execution of his previously suspended sentence. Gosch was incarcerated and
subsequently released on parole. While on parole, he was convicted of inattentive or careless
driving, reduced from a charge of driving under the influence, was sentenced to fifty-two days of




                                               6
jail time, and was given credit of fifty-two days for time served. He was still on parole when he
committed the instant offenses of trafficking in marijuana.
       Having reviewed the record and considered the sentencing factors, including the nature of
the crime and Gosch’s criminal history, we conclude that the sentences imposed do not constitute
a clear abuse of discretion, and that the district court did not abuse its discretion when it denied
Gosch’s Rule 35 motion.
                                                III.
                                         CONCLUSION
       The State presented sufficient evidence to demonstrate that Gosch trafficked in
marijuana, and the exclusion of testimony regarding a search conducted at the home of Gosch’s
parents did not constitute reversible error. Gosch has not demonstrated that the district court
abused its discretion by imposing concurrent sentences of sixteen years with six years
determinate or by denying his Rule 35 motion. Accordingly, Gosch’s judgment of conviction,
sentences, and the district court’s order denying his Rule 35 motion are affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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