State v. Nietzke

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. GARY WAYNE NIETZKE, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 06-08-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0312 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR-2008-0036 The Honorable Steven F. Conn, Judge AFFIRMED ________________________________________________________________ Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Joseph Maziarz Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Mohave County Public Defender s Office Kingman By Jill L. Evans, Mohave County Appellate Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Presiding Judge ¶1 Appellant Gary Wayne Nietzke appeals his convictions and sentences for possession of dangerous drugs for sale, a class two felony, and possession of drug paraphernalia, a class six felony. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 When reviewing the record, we view the evidence in the light most favorable to supporting the verdict. State v. Torres-Soto, 187 Ariz. 144, 145, 927 P.2d 804, 805 (App. 1996). On August 20, 2007, several Kingman Police Department officers gathered outside Nietzke s home to execute a search warrant. As they prepared to enter the home, Nietzke drove up in his pickup truck. One officer stayed outside with Nietzke while the others went inside. They were met at the door by Nietzke s grandson, who was five or six years old, and Nietzke s daughter was also inside. ¶3 After the officers secured the home, Kingman Police Sergeant T went outside to interview Nietzke. Sergeant T apprised him of his Miranda1 rights and then asked if he knew why the police were at his home. Nietzke said he knew [the police] were coming because they had been making meth busts around town and he felt that he d be the next one because he was dealing methamphetamine. He told Sergeant T he was a delivery boy, explaining he would send money through Western Union to someone in Phoenix, drive to Phoenix to pick up the drugs, and deliver the drugs to a third-party in Kingman. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Nietzke received gas money, two hundred dollars cash, or an amount of methamphetamine in return for his services. ¶4 Nietzke directed the police to where drugs were hidden in the home. The police recovered a plastic baggy containing 0.67 grams of methamphetamine, a paper bindle containing 0.048 grams of methamphetamine, a plastic baggie with a white powder residue inside, empty plastic baggies, a digital scale, and a syringe from the hallway closet. In various other locations throughout the house they also found a spoon holding 0.14 grams of methamphetamine, a glass pipe used for smoking methamphetamine that had residue on it, and a couple of broken syringes. ¶5 Nietzke was charged with possession of drug paraphernalia (Count One), possession of dangerous drugs (Count Two), and possession of dangerous drugs for sale (Count Three). After a one-day trial, a jury found Nietzke guilty of all three counts. The trial court later dismissed Count Two, finding it merged with Count Three. Nietzke was sentenced to mitigated, concurrent terms of six months imprisonment for Count One and six years appealed, Section Statutes imprisonment and 9, of we the ( A.R.S. ) have for Count jurisdiction Arizona sections Three. Nietzke pursuant to Constitution and 12-120.21(A)(1) and -4033(A)(1) (2010). 3 timely Article Arizona (2003), 6, Revised 13-4031, ANALYSIS ¶6 Nietzke contends that the State presented insufficient evidence that he possessed any drugs for the purpose of sale and that the trial court should have granted his motion for judgment of acquittal on Count Three. We disagree and find there was sufficient evidence to support the conviction. ¶7 A judgment of acquittal is appropriate only if there is no substantial evidence to warrant a conviction. State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993) (quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990)). Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt. (citations Landrigan, 176 Ariz. at 4, 859 P.2d at 114 omitted). circumstantial, but The if evidence reasonable may be direct or minds can differ on inferences to be drawn therefrom, the case must be submitted to the jury. ¶8 Id. Nietzke argues the evidence did not establish that he intended to sell the methamphetamine found in his home rather than use the drugs himself, as the State was required to prove to convict him of possession of dangerous drugs for sale under A.R.S. § 13-3407(A)(2). See State v. Arce, 107 Ariz. 156, 160, 483 P.2d 1395, 1399 (1971) (to convict of possession of drugs 4 for sale prosecution must also show that the possession was for the purpose of sale ). Nietzke points out that the methamphetamine found in the closet was in a small baggie and a paper bindle and was not pre-packaged for sale and that he admitted to police he had used methamphetamine for twenty-five years, and he suggests the small amount of methamphetamine indicates it was intended for personal use rather than sale. ¶9 There was sufficient evidence, however, from which the jury could infer that Nietzke possessed drugs for sale rather than personal use. 0.048 grams) of Nietzke s home. The police recovered 0.718 grams (0.67 plus methamphetamine from the hallway closet in In the same closet, the police found a scale and empty plastic baggies. A police officer testified that the scale was used for weighing methamphetamine to prepackage it for sale. He stated that the plastic baggies, in conjunction with the digital scale [indicate] that this is exactly what this is for . . . to weigh and then to sell later. ¶10 Regarding the amount of methamphetamine, two officers testified at trial that the amount was sufficiently large that it could be divided for sale. One officer testified: [I]f you take one gram and cut it up in tenths . . . take one tenth of that and then cut it up in tenths and then . . . half of that would . . be [a] usable quality (sic). And Nietzke told officers that he would often trade methamphetamine for goods, 5 such as electronics and tools. See A.R.S. § 13-3401 ( Sale or sell means an exchange for anything of value or advantage. ). ¶11 In his opening brief, Nietzke asserts he told police that, after his most methamphetamine, he methamphetamine for recent had trip kept to Phoenix approximately personal use. He to 0.75 argues pick up grams of this amount matches the amount found in the hallway closet and suggests the jury therefore could not have reasonably found he possessed the methamphetamine for sale rather than personal use. ¶12 We disagree. First, we have not found where in the record Nietzke said he kept the 0.75 grams for personal use. Nietzke told an officer he would sometimes keep some methamphetamine for personal use as payment for his delivery services. Regarding the .75 grams of methamphetamine from his most recent trip to Phoenix, however, Nietzke told a police officer that he took some of the meth out to the swap meet on Thompson where he left some of it out there and then he said he came back to his residence quarters of a gram of meth. probably with about, oh, three- He did not specifically say the methamphetamine was for his personal use. ¶13 Second, even if we assume Nietzke made such statements to the police, the jury as the finder of fact had to weigh the evidence and determine the credibility of witnesses. See State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 6 2009). The jury was free to rely on the officers testimony over Nietzke s self-serving statements in reaching the verdict. CONCLUSION ¶14 For the foregoing reasons, Nietzke s convictions and sentences are affirmed. _______/s/___________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ____/s/____________________________ PATRICIA K. NORRIS, Judge ____/s/____________________________ MAURICE PORTLEY, Judge 7

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