State v. Korab

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PAUL PIERRE KORAB, Appellant.

No. 1 CA-CR 20-0374
FILED 9-9-2021

Appeal from the Superior Court in Mohave County
No. S8015CR201901159
The Honorable Billy K. Sipe Jr., Judge Pro Tempore

REVERSED AND REMANDED IN PART; AFFIRMED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
 STATE v. KORAB
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge David D. Weinzweig and Judge Paul J. McMurdie joined.

S W A N N, Judge:

¶1 Paul Pierre Korab seeks reversal of his convictions for
possession of dangerous drugs for sale and possession of narcotic drugs for
sale. He contends that the superior court abused its discretion by denying
his request for a lesser-included-offense instruction. We agree that there
was sufficient evidence to support the instruction with respect to the count
regarding dangerous drugs. We therefore reverse Korab’s conviction on
that count and remand to the superior court for further proceedings
consistent with this decision. We affirm the remaining convictions and
sentences.

FACTS AND PROCEDURAL HISTORY

¶2 During a search of Korab’s home, police discovered in
Korab’s pants pocket three baggies of methamphetamine, two baggies of
heroin, a heat torch, and a package of unused baggies. In Korab’s car, police
found glass pipes, a digital scale, and a rifle. Korab admitted to selling
drugs out of his home, giving the names of his biggest customers and his
supplier to police. Korab also admitted using methamphetamine but he
denied using heroin. A grand jury indicted Korab for possession of
dangerous drugs for sale (Count 1), possession of narcotic drugs for sale
(Count 2), and two counts of misconduct involving weapons (Counts 3 and
4). Count 4 was ultimately dismissed.

¶3 At trial, the lead detective testified that two of the baggies of
methamphetamine were consistent with personal use, but the third was
packaged for sale. The detective said it was common for sellers to be users
and to carry firearms, scales, and unused baggies. Korab testified on his
own behalf. Departing from what he had admitted to the police, he denied
selling drugs and claimed his roommates had been selling drugs out of his
home. Consistent with what he had told the police, Korab admitted to
using methamphetamine daily, but not heroin. He also claimed that the
police planted the baggies of methamphetamine and heroin on him.

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 STATE v. KORAB
Decision of the Court

¶4 Korab requested a lesser-included jury instruction of
possession for personal use on Counts 1 and 2. The superior court denied
the request. The jury convicted Korab on all three counts and found that
Counts 1 and 2 were committed with the expectation of pecuniary gain. The
court sentenced Korab to concurrent aggravated prison terms of twenty
years on Counts 1 and 2 and a consecutive ten-year prison term on Count
3. Korab appeals.

DISCUSSION

¶5 Korab contends that the superior court erred by denying his
request for a lesser-included jury instruction on Counts 1 and 2. We review
the denial of a lesser-included jury instruction for an abuse of discretion.
State v. Robles, 213 Ariz. 268, 270, ¶ 4 (App. 2006).

¶6 A jury instruction for a lesser-included offense is required
when the lesser-included offense is necessarily included in the greater
offense. State v. Wall, 212 Ariz. 1, 3, ¶ 14 (2006). “Necessarily included”
means that the offense

is lesser included and the evidence is sufficient to support
giving the instruction. In other words, if the facts of the case
as presented at trial are such that a jury could reasonably find
that only the elements of a lesser offense have been proved,
the defendant is entitled to have the judge instruct the jury on
the lesser-included offense.

Id.; see also Ariz. R. Crim. P. 21.4(a)(1) (“On request by any party and if
supported by the evidence, the court must submit forms of verdicts to the
jury for . . . all offenses necessarily included in the offense charged.”).
“[T]he evidence in the record can be sufficient to require a lesser-included
offense instruction even when the defendant employs an all-or-nothing
defense.” Wall, 212 Ariz. at 6, ¶ 30. But a lesser-included-offense
instruction is not justified when the evidence would not permit the jury to
find only the lesser-included offense. See State v. Lara, 183 Ariz. 233, 235
(1995).

¶7 As the state concedes, possession of drugs for personal use is
a lesser-included offense of possession of drugs for sale. Gray v. Irwin, 195
Ariz. 273, 276, ¶ 12 (App. 1999). The parties dispute only whether the
record contained sufficient evidence to make the lesser-included offense
necessarily included with respect to Counts 1 and 2.

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 STATE v. KORAB
Decision of the Court

¶8 We conclude that the superior court did not abuse its
discretion by denying the lesser-included offense instruction with respect
to Count 2, the narcotics offense, because there was not sufficient evidence
to support the instruction. Korab’s defense with respect to Count 2 was that
the police planted the drugs on him. That defense, which the state rebutted
with body camera footage, challenged whether Korab knowingly possessed
the drugs. Knowing possession is an element of both possession for sale
and possession for personal use. A.R.S. § 13-3407(A)(1)–(2). The defense
therefore did not create a basis for a conviction on the lesser-included
offense only. Moreover, Korab consistently denied using heroin, and the
lead detective testified that one of the baggies of heroin found on Korab
contained enough drugs for nearly seventy uses. That evidence, together
with the circumstantial evidence of sales, supported the greater offense
only.

¶9 However, we conclude that there was sufficient evidence to
support the lesser-included jury instruction for Count 1, the
methamphetamine offense. Korab admitted to using methamphetamine
daily, and the lead detective testified that the heat torch found in Korab’s
pocket was a common methamphetamine-smoking device. The detective
further conceded that only one of the three baggies of methamphetamine
found in Korab’s pocket was of a quantity consistent with being packaged
for sale, and that the other two baggies of methamphetamine were of
quantities consistent with personal use. At trial, Korab denied selling
methamphetamine and claimed that his roommates were selling drugs out
of his home. The state presented no corroborating evidence to support
Korab’s interview admissions regarding his sales, buyers, and suppliers. A
jury could reasonably believe that Korab lied to the police. And the
circumstantial evidence of sales was never tied specifically to either of the
drugs found in Korab’s possession. Therefore, a jury could reasonably
believe that Korab possessed the unused baggies, scale, and firearm to sell
heroin, not methamphetamine, and that he possessed the
methamphetamine for his personal use only. Based on the evidence in the
record, the superior court erred by not giving the lesser-included jury
instruction of possession for personal use on Count 1.

¶10 We generally reverse a conviction when a defendant has not
received a warranted lesser-included-offense instruction unless the state
proves beyond a reasonable doubt the error was harmless. State v. Burch, 247 Ariz. 376, 379–80, ¶ 10 (App. 2019). The state did not meet that burden
here.

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 STATE v. KORAB
Decision of the Court

CONCLUSION

¶11 We reverse Korab’s conviction on Count 1 and remand to the
superior court for further proceedings consistent with this decision. We
affirm the remaining convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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