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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

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 C ounsel for AppellantSTATE v. S TIEFEL Decision of the Court

2 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 drug s 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 C ount 1 and three years ’ imprisonment each for C ounts 2 and 3

. Stiefel’s c ounsel 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 conviction s and sentences

.

FACTUAL AND PROCEDURAL HISTORY

¶2 The Phoenix Police Department re ceived 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. De tective 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 b e aring Stiefel’s n ame, 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)STATE v. S TIEFEL Decision of the Court

3 ( West 2015 )

. 1 After considering mitigating and aggravating factors, the
court sente nced Stiefel to mitigated prison sentence s 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 conviction s

. 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 defend ant 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

. “ W e 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),

- 34 01(6) (c) (xxxviii) ( West 2015 ) (methamphetamine is a dangerous drug),

- 3401(36)(e) (threshold amount is nine grams )

. T o prove possession, the State had to prove Stiefel actually or constructively possessed the methamphetamine. See A

. R

. S

. § 13

- 105(3 5 ) ; State v. Chabolla

– Hinojosa , 192 Ariz. 360, 363, ¶ 13, 965 P.2d 94, 97 (App. 1998)

. M ere presence where the methamphetamine was found i s 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

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

.STATE v. S TIEFEL Decision of the Court

4 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 b e aring Stiefel’s name in the southwest bedroom

. A forensic scientist with the Phoenix Police Department Crime Lab testified
t he 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 f ew 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

. N ot 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. Detective s T and C testified that w hen SWAT removed Stiefel from his house, he was missing at least one shoe and was either s hirtless or wanted a jacket

. A bout 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 Stief el verbally asserted ownership of the southwest bed room. 2

¶10 Read in the light most favorable to uphold ing the jury ’s verdict , t here 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 Ar iz. 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, 63 6 (2004)

.STATE v. S TIEFEL Decision of the Court

5 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 S tate 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 S t ate 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 t he proximity of the bags and scales to the methamphetamine the jury could infer that the se items were drug paraphernalia.

II. The sentencing and fine were within the statutory requirements

. ¶13 For C ount 1 , possession of dangerous drugs with the intent to sell
, the court s entenced Stiefel to twelve and one half years of imprisonment, see A.R.S. § 1 3

- 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 surcharg e, see A.R.S. § 16

- 954(A) (West 2015); and a $20 probation
assessment , s ee 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 p arts so as to find out their nature, proportion , function, relationship, etc

. ” Analyze , Webster ’ s New Universal Unabr idged Dictionary (2nd ed. 1983) . We can turn to dictionary definitions when the statutes do not define the term. State v. Pe ñ a, 235 Ariz. 277, 279, ¶ 6, 331 P.3d 412, 414 (2014). As analyzing requires breaking apart and determining proportions , the cour t 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 i s properly imposed even if the court refers to it as a surcharge. See State v. Pelaez , 235 Ariz. 264, 26 5

– 6 6, ¶ ¶ 4

– 5, 330 P.3d 1021, 102 2

– 2 3 (App. 2014).STATE v. S TIEFEL Decision of the Court

6 ¶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, t he fine was also significantly lower than that required by A.R.S. § 13

- 3407(H)

. 5 T he S tate did not appeal the unlawfully lenient fine or excessive presentence incarceration credit
, and we lack subject matter jurisdiction to correct e it her

. S ee State v. Dawson , 164 Ariz. 278, 286, 792 P.2d 741, 749 (1990)

. ¶15 The mitigated sentences for C ounts 2 and 3 , possession of drug paraphernalia, are within the statutory range for a category three repetitive offender convicted of class 6 felon ies

. 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 conviction s , sentences or fines and surcharges . Th e evidence supports the verdict s ; the sentence s imposed are within the sentencing limits ; the proceedings were h eld 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 conviction s , sentences, fines and surcharges

.

5 Section 13

- 3407(H) imposes a fine of $1000 or three times the value of the drugs involved in the o ffense, 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.STATE v. S TIEFEL Decision of the Court

7 ¶17 Upon the fi ling 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 fo r 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.