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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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 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)
STATE v. STIEFEL

Decision of the Court

3

(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. SotoFong, 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 

 

1 We cite the current version of applicable statutes because no revisions 

material to this decision have since occurred.
STATE v. STIEFEL

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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). 
STATE v. STIEFEL

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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). 
STATE v. STIEFEL

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¶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.

 

5 Section 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.
STATE v. STIEFEL

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7

¶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.