State v. Force
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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. ) ) DANIEL EDWARD FORCE, SR., ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 03/02/2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CR 09-0341 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-153286-001 DT The Honorable Pamela Hearn Svoboda, Judge Pro Tem AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix Daniel Edward Force, Sr., Appellant In Propria Persona Phoenix D O W N I E, Judge ¶1 his Daniel Edward Force, Sr. ( defendant ) timely appeals convictions for aggravated driving or actual physical control while under the influence ( DUI ) pursuant to Arizona Revised Statutes ( A.R.S. ) sections 28-1381 (Supp. 2009) and -1383 (2009).1 Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has searched the record and found no arguable question of law. Counsel requests that we review the record for fundamental error. 857 P.2d 388, See State v. Richardson, 175 Ariz. 336, 339, 391 (App. 1993). Defendant was given an opportunity to file a supplemental brief in propria persona, and he has done so. On appeal, we view the evidence in the light most favorable to sustaining the convictions. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 About 4:00 p.m. on August 25, 2008, Officer P.M. was off-duty, shopping with his wife. He saw an individual, later identified as a walking. Defendant stumbled and used P.M. s vehicle to regain his balance; stumbling. defendant, he then having continued hard on time walking standing again and though Defendant s eyes were red, blood shot and watery. 1 We cite the current version of relevant statutes because no revisions material to this decision have occurred. 2 P.M. s wife called 9-1-1. P.M. watched as defendant got into a truck and backed out of a parking space. Defendant had trouble navigating out of the parking space, but then drove past P.M., looked directly at him, waved, and drove off. P.M. watched defendant s vehicle until police officers arrived; he saw no one exit the vehicle, and defendant was the only person P.M. saw get into the vehicle. ¶3 Officer J.W. responded to the 9-1-1 call. defendant seated in the passenger seat. He found When Officer J.W. drove his marked police vehicle past the truck, defendant slouched down in the passenger seat so it would be hard to see him. Officer J.W. observed defendant until back-up arrived; the truck was stationary the entire time. Officer J.W. smelled an intoxicating or an alcohol-type beverage . . . emanating off [defendant s] breath. Defendant stumbled out of the truck and put his arms over the bed of the truck and laid there for a couple of minutes, requiring Officer J.W. to tap him on the shoulder to get answers to his questions. Defendant couldn t stand forth. straight, he was swaying back and Defendant admitted drinking about eight beers, but denied driving the truck, explaining his wife moved the vehicle to where it was now . . . took the keys and hid them . . . and then got in her vehicle and drove off. Officer J.W. found the truck keys on the floorboard of the back seat. 3 ¶4 After being arrested and receiving Miranda warnings, defendant admitted consuming alcohol at a nearby bar. When asked to rate his ability to drive on a scale of one to ten, defendant answered 7, indicating moderately impaired ability to drive. Defendant said he would be unable to go to work in his present condition and answered hell no when asked whether he would drive his children or allow someone else to drive them in his condition. Breath tests revealed defendant s blood alcohol level to be .307 at 5:09 p.m. and .313 at 5:16 p.m. Defendant was charged with four counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs. ¶5 At trial, a Department of Public Safety criminalist testified that the machine used for the breath functioning properly, and the tests were valid. of records for the Motor Vehicle Division testing was The custodian ( MVD ) testified defendant s driver s license privileges were under revocation on August 25, 2008, and that defendant was notified of this status by letter mailed to his address of record. ¶6 Defendant s wife testified that she drove him to the parking lot during the noon hour. She drove because both she and defendant knew he didn t have a license. defendant argued. The wife and She got out of the truck and threw the keys toward the back seat before walking home and returning to 4 work. Defendant did not testify. State orally moved to amend The jury was excused, and the counts 1 and 2 technical defect in the charging document. to correct a The motion was granted without objection. ¶7 The jury found defendant guilty of all counts. For sentencing purposes, defendant stipulated to a prior aggravated DUI conviction in 1998. After engaging in a colloquy with defendant, the court accepted his waiver of a jury trial and admission of the prior offense. presumptive assessments; term of he 4.5 was Defendant was sentenced to the years and given ordered thirty to pay days fines and pre-sentence incarceration credit. DISCUSSION ¶8 We have read and considered the briefs submitted by defendant and his counsel and have reviewed the entire record. State v. Leon, 104 Ariz. at 300, 451 P.2d at 881. fundamental error. We find no All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. present at all critical represented by counsel. instructed. The offenses charged. jury phases of the Defendant was proceedings and The jury was properly impaneled and instructions were consistent with the The record reflects no irregularity in the deliberation process. 5 ¶9 his In the opening and supplemental briefs, defendant and counsel identified several issues. We address each separately.2 1. ¶10 Juror Question Defendant questions whether he should have present when the court considered a juror question. demonstrates defendant s represented that defense presence.3 and counsel When protected by a was present defendant s counsel, his The record and waived position presence required when the court considers a jury question. been is is not See State v. Lawrence, 123 Ariz. 301, 305-07, 599 P.2d 754, 758-60 (1979); State v. Swoopes, 216 Ariz. 390, 401-02, ¶¶ 33-39, 166 P.3d 945, 956-57 (App. 2007). 2. ¶11 Weighing Evidence Defendant asserts three issues relating to the jury s weighing of evidence. First, he states he did not drive the 2 In addition to the topics discussed, defendant raised several issues we do not address because they have no basis in the record. For example, he asserts the jury was denied by the Court to see the original police report. The record does not support this contention. Defendant also claims that the 9-1-1 caller was used as the evidence against me in the secondary person and yet there s no evidance [sic] to the accusations against me from her. No statements from the 9-1-1 caller were admitted into evidence. 3 The jury report. The have all the Counsel did not question asked where is [Officer J.W. s] . . . trial court s proposed answer was that jurors evidence that has been introduced at trial. object to this answer. 6 truck and was thus innocent. Second, he says reasonable doubt existed because a witness testified the truck was parked in the same location. Lastly, he contends the off-duty police officer was less credible because he did not write a report and his wife did not testify. ¶12 The jury, not the appellate court, weighs the trial evidence and chooses between contradictory versions. State v. Thomas, 104 Ariz. 408, 411, 454 P.2d 153, 156 (1969) (internal citations omitted). The credibility of a witness is for the trier of fact and not this Court. State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991) (citation omitted). ¶13 The State presented evidence that the truck was fully operational and defendant had the keys. he saw defendant drive the truck. Officer P.M. testified Officer P.M., Officer J.W., and defendant s wife testified about the location of the truck when they last saw it. The locations noted by Officers P.M. and J.W. were consistent with each other, but different from the wife s. Defendant s wife couldn t remember exactly where she parked the truck, but stated she returned later that day to an area that I remember going to. A reasonable jury could have found the State s evidence to be more credible. 3. ¶14 not Previous Conviction Defendant asserts his previous misdemeanor DUI should have been brought up and 7 used against him. In the alternative, he contends he should have received credit for time served on that offense. ¶15 A DUI offense is aggravated when a person commits a third or subsequent violation of . . . § 28-1382. 1383. A.R.S. § 28- Defendant s prior DUI offenses were violations of A.R.S. § 28-1382 (Supp. 2009) and were, therefore, relevant to the elements of the current charges against him. Section 13-712 (Supp. 2009) allows pre-sentence incarceration credit for [a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced (Emphasis added.) to imprisonment for such offense. Defendant was not entitled to credit for time spent in custody for prior offenses. 4. ¶16 Additional Time to View Fingerprints Defendant asserts his attorney should have objected when the State sought additional time for its expert to review his fingerprints. Ineffective assistance of counsel claims must be brought in proceedings pursuant to Rule 32, Arizona Rules of Criminal Procedure. Any such claims improvidently raised in a direct appeal . . . will not be addressed by appellate courts regardless of their merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). 8 5. Amendments ¶17 Defendant contends the trial court should not have granted the State s unopposed motion to amend the indictment to conform to the evidence. ¶18 We disagree. Arizona Rule of Criminal Procedure 13.5(B) permits the charging document to be amended to correct technical defects . . . to conform to the evidence adduced at any court proceeding. The indictment on count 1 referenced defendant s prior conviction on case No TR000050091 and on count 2, case number CR 2000050091. The MVD analyst testified that the correct case number for both counts was TR 0500996. The State moved to correct just the technical defect of the case numbers without changing the substance of the charges. The trial court the conduct appropriately granted the motion. 6. Conduct or Complaint File ¶19 Defendant asserts he was denied or complaint file of Officer P.M. and that having this information may have been helpful to understand his character. Rules of Evidence witness s allow, credibility under to be certain impeached untruthfulness or criminal conviction. Arizona circumstances, by evidence a of See Ariz. R. Evid. 607 (allowing the credibility of a witness to be attacked by any party); 608(a) character for (allowing credibility truthfulness or 9 to be attacked untruthfulness ; by 609(a)(2) (allowing credibility to be attacked by prior conviction of crime involving dishonesty or false statement ). ¶20 The State moved to preclude evidence about an ongoing integrity investigation of a witness. Because the investigation was in its preliminary stages, no information about an integrity file or the outcome of the investigation was available. The trial court granted the motion, stating the investigation does not involve any allegations of veracity . . . so I believe that it would be highly prejudicial to introduce evidence of that nature at trial, especially when he hasn t even been formally charged in the investigation, so he is presumed to be innocent. The trial court has considerable discretion regarding evidentiary matters, which will not be disturbed on appeal absent clear abuse. State v. Salazar, 173 Ariz. 399, 405, 844 P.2d 566, 572 (1992). We find no abuse of discretion here. CONCLUSION ¶21 We affirm defendant s conviction and sentence. Counsel s obligations pertaining to defendant s representation in this appeal have ended. Counsel need do nothing more than inform defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 10 156-57 (1984). On the court s own motion, defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 11
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