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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             No. 1 CA-CR 14-0040
                               FILED 10-8-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-115567-001
        The Honorable Lisa Ann VandenBerg, Judge Pro Tempore
                The Honorable Dawn M. Bergin, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Scott Simon
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
                             STATE v. GOETTL
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in which
Judge Andrew W. Gould and Judge Patricia K. Norris joined.


K E S S L E R, Presiding Judge:

¶1            Appellant Kurt Andrew Goettl appeals his convictions and
sentences for possession of dangerous drugs for sale (methamphetamine),
possession of drug paraphernalia (plastic baggies), and possession or use
of narcotic drugs (hydrocodone). Goettl argues that the superior court
abused its discretion by failing to suppress and admitting text message
evidence obtained from his cell phone during a warrantless search in
violation of the Fourth Amendment. Goettl argues his convictions should
be reversed, and admission of the text messages was not harmless error
because such evidence was “the only direct evidence supporting [his]
confession” that he possessed methamphetamine for sale and “absent the
text messages . . . the jury would give less weight to [his] confession . . . .”
(Emphases added.) Because we determine any error in admitting the text
message evidence was harmless beyond a reasonable doubt, we affirm his
convictions and sentences.

               FACTUAL AND PROCEDURAL HISTORY

¶2             Detective G observed Goettl run a red light on his bicycle.
Thereafter, Detective G surveilled Goettl and watched as he met a woman
on a bicycle. As Goettl and the woman walked together with their bicycles
Goettl opened a saddle bag on the back of his bicycle and then made a
“hand-to-hand transaction” with the woman. Goettl and the woman then
rode away from each other. Observing the hand-to-hand transaction was
significant to Detective G because such a transaction “is when typically a
drug item is transferred from one person to the other” for drugs or
payment. Detective G followed Goettl, arrested him, and searched him.1
During the search, Detective G found a bag of pills later determined to
contain hydrocodone, $480 in cash, and a bag containing a crystal substance
later determined to be one gram of methamphetamine. In Goettl’s saddle

1A different officer followed the woman, but no drugs were found when
she was searched.



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                              Decision of the Court

bag, Detective G found more bags containing a substance later determined
to total two grams of methamphetamine as well as small clear plastic bags
that were empty.

¶3           Detective G also viewed and later photographed text
messages on Goettl’s phone purportedly reflecting that the purpose of
meeting the woman was to sell her drugs. Goettl was taken to the city jail
where he was given Miranda2 warnings and interviewed by Detective G.

¶4           Goettl moved to suppress the text messages arguing they
were obtained in violation of his Fourth Amendment rights. The superior
court refused to suppress the text messages after determining that cell
phones are “containers” which may be searched incident to arrest.3

¶5             At trial Detective G testified that during the police interview
Goettl stated that the woman wanted to buy drugs from him, but he talked
her out of that and gave her some money. Although Goettl did not tell
Detective G that he was selling drugs that day, Goettl stated he did not have
a job, his only source of income was selling methamphetamine, and that the
$480 was cash he made from selling methamphetamine. Goettl said that he
got the methamphetamine with which he was found earlier that day from
his supplier and stated that he typically bought one half ounce to one ounce
from his supplier. Detective G also testified that Goettl admitted that he
used methamphetamine earlier that day. Goettl told Detective G that he
believed the pills he had were Vicodin and he had traded
methamphetamine for them because sometimes people asked for pills.
After Goettl’s hearsay objection was overruled, Detective G read into
evidence the text message conversation that took place between Goettl and
the woman before their encounter. In addition, the photographs of the
messages were admitted into evidence.

¶6            Detective M testified about his training and experience for
eighteen years as a patrol officer and narcotics detective and opined that
based on the totality of the circumstances the methamphetamine Goettl
possessed was for the purpose of sale. Detective M testified about what he
takes into account when forming such opinions and stated that he formed
his opinion in Goettl’s case after reviewing the police reports, evidence, and


2   Miranda v. Arizona, 384 U.S. 436 (1966).

3The superior court made this ruling before the United States Supreme
Court decided Riley v. California, 134 S. Ct. 2473 (2014). See infra ¶ 11 and
Footnote 4.


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                            STATE v. GOETTL
                           Decision of the Court

police interview of Goettl. Detective M explained that when forming his
opinions about whether drugs are for sale as opposed to personal use, a
person’s statements to police are the most important factor. According to
Detective M, his opinion was largely based on the statements provided by
Goettl during the police interview including that Goettl traded a bag of
methamphetamine for Vicodin, that he did not have a regular job, and that
Goettl told police that the $480 in cash with which he was found was drug
sale proceeds. Detective M explained that selling drugs is a “cash business”
and people selling drugs typically carry “bulk cash.” He also thought that
Goettl’s statement about trading methamphetamine for Vicodin because
sometimes people asked for Vicodin indicated that Goettl was a person who
sells drugs and wanted to have product on hand if someone asked for it.

¶7             Apart from Goettl’s statements, Detective M’s opinion that
Goettl possessed the methamphetamine for sale was based on Goettl
possessing multiple small plastic bags, typical of those used by drug
dealers, which contained methamphetamine, as well as other unused small
plastic bags. Detective M explained that in his experience, drug sellers tend
to buy a quantity of drugs and then repackage the drugs in smaller
quantities for resale using small plastic baggies like the ones Goettl had.
According to Detective M if a person intended the drugs for personal use,
there would be no reason to have multiple small bags of drugs. In addition,
Detective M noted that Goettl was not found with any tools to use drugs,
such as a syringe or pipe that a typical drug user carries. Detective M also
testified about the current approximate value of methamphetamine and
stated that a gram was worth $50 to $60.

¶8            Detective M testified about how in general drug dealers set
up drug deals including that drug users usually contact the dealer via cell
phone, or some type of electronic communication, or in person, or through
another party. Later in his testimony, Detective M was asked about the
relevance of the text message conversation between Goettl and the woman.
Detective M indicated that when he worked undercover he would order
drugs in a similar fashion to the text message conversation by concealing
the true nature of his request through the use of certain code words to
communicate the desire for drugs and the quantity requested. This was the
only testimony Detective M provided with respect to the text message
conversation.

¶9          In closing arguments the State twice referred to the text
message conversation:




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                            STATE v. GOETTL
                           Decision of the Court

       When the case began back on March 20, 2012, the defendant
       was out engaging in his illegal business of selling
       methamphetamine and he received a text message from [a
       woman]. And we talked about those. And [the woman]
       wanted to get a dime. She wanted to get high. And
       eventually the defendant told her through the conversation,
       Okay. I’m at the McDonalds.

                                    ....

       The text messages are in evidence. You’ll be able to review
       them if you’d like. The text messaging pretty clearly shows
       that [the woman] wanted to buy drugs off the defendant and
       the defendant admitted, Yeah, she wanted to buy drugs off of
       me and that’s why I met her. And later he did deny selling
       drugs to her, but nevertheless, [the woman] wanted to buy
       drugs off of him and that was the purpose of the meeting.



¶10           Goettl timely appealed from his convictions and sentences.
We have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and Arizona Revised Statutes (“A.R.S.”) section 13-4031
(2010), -4033(A)(1) (2010).

                               DISCUSSION

¶11            Relying upon Riley v. California, 134 S. Ct. 2473, 2495 (2014),
Goettl argues it was reversible error to admit the text message evidence.4
The State argues that even if the search was unlawful under Riley, the good
faith exception applies which would allow the evidence to be admitted and
that even if admission was erroneous, it was harmless error given the other
evidence.

¶12           For purposes of resolving Goettl’s appeal, we assume without
deciding that the cell phone search was unconstitutional and the good faith
exception did not apply because “[e]rror, be it constitutional or otherwise,

4Riley held that the contents of cell phones cannot be searched pursuant to
the “incident to arrest” exception to the warrant requirement. 134 S. Ct. at
2493-94 (leaving open the possibility that “other case-specific exceptions
may still justify a warrantless search of a particular phone” such as exigent
circumstances).



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                             STATE v. GOETTL
                            Decision of the Court

is harmless [and does not require reversal] if we can say, beyond a
reasonable doubt, that the error did not contribute to or affect the verdict.”
State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). Thus, “we
consider the error in light of all of the evidence,” to determine whether the
State has met its burden to prove that “‘the guilty verdict actually rendered
in this trial was surely unattributable to the error.’” Id. (quoting Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993)); accord State v. Valverde, 220 Ariz. 582,
585, ¶ 11, 208 P.3d 233, 236 (2009).

¶13           Goettl maintains that because the State “referred repeatedly”
to the text messages during closing arguments, and Detective M based his
opinion in part on the text messages, “it is likely, absent the text messages,
that the jury would give less weight to [Goettl’s] confession” that he
possessed the methamphetamine for sale.5 Goettl directs us to Detective
M’s testimony that a drug dealer’s clients normally make contact by cell
phone, and his opinion that Goettl possessed the drugs for sale as opposed
to personal use.

¶14           We disagree that the text message evidence contributed to the
guilty verdict here. See Bible, 175 Ariz. at 588, 858 P.2d at 1191. First,
Detective M emphasized that although he considered the totality of the
evidence, Goettl’s statements to police were the most important factor in
forming his opinion that Goettl possessed the methamphetamine for sale.
Goettl’s statements to police established the elements of the offense
independent of the other circumstantial evidence or Detective M’s opinion
about the evidence. See A.R.S. §§ 13-3407(A)(2) (Supp. 2015), -
3401(6)(c)(xxxviii) (Supp. 2015). Goettl does not dispute that he was in

5 To support this contention, Goettl claims that his “confession was not
commensurate with the facts of the case,” because: (1) although police
observed Goettl’s hand-to-hand transaction with a woman, when police
stopped the woman she did not possess any drugs; and (2) Detective M
testified that a typical amount of methamphetamine sold to a user is about
one gram and the total weight of the methamphetamine Goettl possessed
was only three grams. We disagree that Goettl’s confession was not
commensurate with the facts of the case. His confession that the woman
wanted to buy drugs he had for sale, but Goettl convinced her not to, is not
inconsistent with the fact that the woman did not have drugs when the
police searched her. In addition, that Goettl had a total of three grams of
methamphetamine including one gram in one bag and the remainder in
multiple other bags is not inconsistent with Detective M’s opinion that a
typical amount of methamphetamine sold to a methamphetamine user is
one gram.


                                       6
                             STATE v. GOETTL
                            Decision of the Court

possession of methamphetamine when he was arrested and that he told
police the woman he met with wanted to buy drugs from him but he talked
her out of it. It is also undisputed that Goettl told police the $480 he had
was from methamphetamine sales, that his only source of income was
selling methamphetamine, and that he had met with his supplier earlier
that day.

¶15            In addition, Detective M stated that his opinion was based on
other circumstantial evidence that the methamphetamine Goettl had was
for sale including that the quantity of methamphetamine Goettl possessed
was enough to be sold, the drugs were packaged in a way typical to drugs
for sale, Goettl was in possession of multiple small bags like those typically
used to repackage and sell methamphetamine, Goettl had a bulk cash on
him and no utensils to use drugs that are often carried by users.

¶16           Regardless of whether we agree with Goettl that the text
message evidence was the only “direct” evidence supporting his confession,
there was a wealth of circumstantial evidence supporting not only his
confession, but also the elements of the offense. See State v. Harvill, 106 Ariz.
386, 391, 476 P.2d 841, 846 (1970) (stating the probative value of direct and
circumstantial evidence carry the same evidentiary weight).

¶17            For these same reasons we also disagree that the State’s
reference in closing argument that the purpose of meeting the woman was
to sell methamphetamine contributed to the guilty verdict. Goettl’s
confession and the wealth of circumstantial evidence that Goettl possessed
the methamphetamine for sale convinces us that any error in admitting the
text messages was harmless beyond a reasonable doubt. See Bible, 175 Ariz.
at 588, 858 P.2d at 1191.

                               CONCLUSION

¶18          For the reasons stated, any error in admitting the cell phone
text message evidence was harmless beyond a reasonable doubt and does
not constitute reversible error. We affirm Goettl’s convictions and
sentences.




                                    :ama

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