State v. Koch

• Decision Date: 12 May 2020
• Docket Number: No. 1 CA-CR 19-0143,1 CA-CR 19-0143
• Parties: STATE OF ARIZONA, Appellee, v. ANTHONY MICHAEL KOCH, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee, v. ANTHONY MICHAEL KOCH, Appellant.

No. 1 CA-CR 19-0143

ARIZONA COURT OF APPEALS DIVISION ONE

May 12, 2020

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Mohave County

No. S8015CR201701173

The Honorable Billy K. Sipe Jr., Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Brian R. Coffman

Counsel for Appellee

Mohave County Legal Advocate's Office, Kingman

By Jill L. Evans

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Randall M. Howe and Judge Joshua D. Rogers¹ joined.

THUMMA, Judge:

¶1 Defendant Anthony Michael Koch appeals his convictions and sentences for possessing dangerous drugs for sale, possessing narcotic drugs, tampering with evidence and two counts of possessing drug paraphernalia. He asserts the evidence was insufficient to support certain jury findings and the superior court committed multiple trial and sentencing errors. Because Koch has shown no error, his convictions and sentences are affirmed.

FACTS² AND PROCEDURAL HISTORY

¶2 One day in August 2017, law enforcement was dispatched to a gas station to check on someone—Koch as it turned out—who had been in the restroom for two hours. When Koch opened the restroom door and saw officers, he kicked an object under the sink vanity and placed something in his mouth.

¶3 Officers took Koch into custody. A silicone dab container and brown-stained piece of cotton fell from his mouth, but Koch would not expel the other contents. Officers transported him to a hospital, where he suffered an apparent overdose. Medical personnel extracted a piece of plastic from Koch's mouth that contained a trace amount of heroin. Meanwhile, at the gas station, officers found a sunglass case under therestroom sink vanity that held three syringes and a plastic bag containing 47.1 grams of methamphetamine.

¶4 The State charged Koch with possessing dangerous drugs for sale (methamphetamine), possessing drug paraphernalia for methamphetamine, possessing narcotic drugs (heroin), possessing drug paraphernalia for heroin, and tampering with physical evidence. A jury found Koch guilty as charged, that he committed the possession-for-sale offense with the expectation of pecuniary gain and that he committed all the offenses while on felony release.

¶5 The court sentenced Koch as a repetitive offender to concurrent and consecutive prison terms, each of which the court enhanced by an additional two years. See Ariz. Rev. Stat. (A.R.S.) § 13-708(D) (2020)³ (enhancement of sentence for offense committed while on felony release). On the possession-for-sale count, the court sentenced Koch to a total of 20 years' imprisonment, comprised of an aggravated 18-year term plus the two-year enhancement under § 13-708(D). The court imposed a concurrent presumptive sentence of 5.75 years' imprisonment, which included the two-year enhancement, for the methamphetamine paraphernalia conviction. The court sentenced Koch to a consecutive presumptive term of 5.75 years' imprisonment for the tampering-with-evidence conviction, which also included the two-year enhancement. For the heroin possession and paraphernalia convictions, the court suspended imposition of sentence and imposed one day of probation conditioned on jail time already served. This court has jurisdiction over Koch's timely appeal under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).

DISCUSSION

I. Statements of Prospective Jurors Did Not Contaminate the Empaneled Jury.

¶6 Koch complains that statements made by prospective jurors in open court during voir dire biased the empaneled jurors against him. This court reviews the superior court's decision whether to strike a jury panel for an abuse of discretion. See State v. Glassel, 211 Ariz. 33, 45 ¶ 36 (2005); State v. Lujan, 184 Ariz. 556, 560 (App. 1995). Because Koch did notobject to the empaneled jury, he must establish fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 140 ¶ 12 (2018).

¶7 During voir dire, one potential juror said he knew Koch through his employment as "a detention officer with the sheriff's department." When asked whether that prior contact would prevent him from serving fairly and impartially, he said it would, "because I'm also the disciplinary grievance officer." The court dismissed this potential juror. Other prospective jurors stated they could not consider the case impartially because of personal experiences involving drugs, which they related in general detail. The court dismissed those prospective jurors as well. After doing so, the court asked the remaining members of the jury pool whether hearing the responses of others raised concerns about their own impartiality. One potential juror said yes, and the court dismissed her.

¶8 Nothing in the record indicates that statements by prospective jurors who were not empaneled prevented those selected from considering the evidence fairly and impartially. The court dismissed all potential jurors who indicated they could not be fair and impartial, and it gave the empaneled jurors multiple opportunities to raise concerns of potential bias, including bias based on statements made by fellow members of the jury pool. The court emphasized to jurors that Koch was presumed innocent, the State was required to prove guilt beyond a reasonable doubt, and jurors should not form any opinions about Koch's guilt until they were instructed to deliberate. None of the selected jurors gave any indication they could not follow these instructions. Koch fails to show error, let alone fundamental prejudicial error, in the empanelment. See Lujan, 184 Ariz. at 560; State v. Reasoner, 154 Ariz. 377, 383-84 (App. 1987).

II. Sufficient Evidence Supports Koch's Conviction of Possessing Methamphetamine for Sale.

¶9 Koch contends his conviction for possessing dangerous drugs for sale should be reversed because the State presented insufficient evidence that he possessed the methamphetamine or intended to sell it. This court reviews challenges to the sufficiency of evidence de novo, considering all facts and resolving all evidentiary conflicts in the light most favorable to sustaining the conviction. State v. Pena, 235 Ariz. 277, 279 ¶ 5 (2014). A claim of insufficient evidence fails where the verdict is supported by "substantial evidence," which is "evidence that 'reasonable persons could accept as enough to support a guilty verdict beyond a reasonable doubt.'" Id. (quoting State v. Hausner, 230 Ariz. 60, 75 ¶ 50 (2012)).

¶10 A defendant "possesses" an illegal drug by "knowingly . . . hav[ing] physical possession or otherwise . . . exercis[ing] dominion or control" over the drug. A.R.S. § 13-105(34). Although a defendant's "[e]xclusive control of the place in which the narcotics are found is not necessary" to show possession, State v. Jenson, 114 Ariz. 492, 493 (1977) (quoting State v. Villavicencio, 108 Ariz. 518, 520 (1972)), a defendant's "mere presence" at that location is not sufficient, State v. Gonsalves, 231 Ariz. 521, 523 ¶ 10 (App. 2013). Put another way, "specific facts or circumstances" beyond mere presence are necessary to establish possession. Id.

¶11 Here, jurors could reasonably find Koch possessed the methamphetamine found in the gas station's restroom given evidence he was the only occupant for hours before the drugs were found; he tried to conceal the methamphetamine when he realized law enforcement was present; and the drugs and paraphernalia were contained in a sunglass case found at the front edge of the sink vanity visible to a person standing in the restroom — even after Koch kicked it. See, e.g., State v. Murphy, 117 Ariz. 57, 61-62 (1977) (sufficient evidence defendant possessed marijuana where it was found "in a place where [defendant] would have knowledge of its presence" even if defendant was not sole occupant); State v. Curiel, 130 Ariz. 176, 179-80, 184 (App. 1981) (evidence that defendant tried to conceal drugs and had related paraphernalia in her purse sufficient to establish drug possession despite absence of exclusive control).

¶12 Jurors could also reasonably find Koch possessed the methamphetamine for sale — i.e., in "exchange for anything of value or advantage, present or prospective." A.R.S. § 13-3401(32). The State's expert testified that a typical use of methamphetamine was 0.1 gram, with longtime users potentially able to tolerate 1.5 grams over a five-day period. By the expert's calculation, Koch was carrying enough methamphetamine for 471 uses, which would take even a single, heavy user more than five months to use.⁴ Koch was also carrying multiple cell phones when he was arrested which, according to the expert, tended to show criminal activity. Together, the evidence and uncontroverted expert testimony provide substantial evidence to support Koch's conviction of possessing methamphetamine for sale.

III. Testimony Implying Koch had a Criminal Record Did Not Warrant a Sua Sponte Mistrial.

¶13 One of the first police officers to arrive at the gas station testified that when Koch opened the restroom door, other officers present "identified [him] as Anthony Koch. I guess they had known him from previous—." Defense counsel objected before the testifying officer could complete his statement, and the court sustained the objection. The prosecutor then asked the testifying officer, "So they recognized him?" Defense counsel did not object, and the officer responded affirmatively. Koch now argues the superior court should have declared a mistrial sua sponte because the officer's testimony implied Koch had a criminal record, thereby preventing him from obtaining a fair trial.

¶14 "The decision to grant a mistrial is left to the sound discretion of the trial court." State v. Adamson, 136 Ariz. 250,...