State v. White

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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. ) ) ) JODY COLLIN WHITE, ) ) Appellant. ) ___________________________________) DIVISION ONE FILED: 05-04-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0445 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Yavapai County Cause No. CR 82008-0149 The Honorable Warren R. Darrow, Judge AFFIRMED ________________________________________________________________ Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix DeRienzo & Williams, PLLC by Craig Williams Attorneys for Appellant Prescott Valley ________________________________________________________________ W E I S B E R G, Judge ¶1 Jody convictions and Collin White sentences ("Defendant") imposed after appeals a jury from his trial. His counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738, 744 (1967), and State v. Leon, 104 Ariz. 297, 299, 451 P.2d 878, 880 (1969), advising this court that after a search of the entire record on appeal, he finds no arguable ground for reversal. This court granted Defendant an opportunity to file a supplemental brief, but none was filed. Counsel now requests that we search the record for fundamental error. Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). ¶2 We Statutes have jurisdiction ("A.R.S.") to Arizona Revised 12-120.21(A)(1) sections pursuant (2003), 13-4031 (2010), and 13-4033 (A) (2010). Finding no reversible error, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶3 We review the facts in the light most favorable to sustaining the verdicts. See State v. Stroud, 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005). unlawful flight from a law Defendant was indicted for enforcement vehicle, a class 5 felony; driving while under the influence of alcohol and being impaired to the slighted degree, a class 1 misdemeanor; and having a blood alcohol concentration of .08 or more within two hours of driving or being in actual vehicle, a class 1 misdemeanor. 2 physical control of a ¶4 A jury trial took place on March 18, 19, and 20, 2009. Deputy J. testified Sutton that of on the Yavapai February 23, County 2008, he Sheriff s was in Office, complete uniform and driving a police vehicle that was fully marked with decals on both sides and the rear. His vehicle also had LED lights on top, strobe lights in the head lights and the headlights. ¶5 other The deputy had made a traffic stop and there were two marked vehicles traffic could pass. were on. When that had pulled off the road so that The overhead lights on all police vehicles contact with the stopped vehicle was nearly completed, Deputy Sutton heard tires skidding, turned, and saw a jeep coming toward the officers. The jeep stopped, made a U- turn, and drove away. ¶6 The deputy thought that the driver was avoiding me, avoiding officers. He got into his vehicle with his overhead lights still on, made a U-turn, and pursued the jeep. He first saw the jeep parked on a side street with its lights off. the deputy turned around, the jeep was no longer parked. When He followed the jeep and activated his siren, but the driver of the jeep did not stop. The deputy continued to follow the jeep onto a dirt path, but the driver still gave no indication he was going to stop. Finally, after driving out into the desert, the jeep came to rest in a wash. 3 ¶7 The deputy stopped, exited weapon, and approached the jeep. his vehicle, drew his After he escorted the driver, later identified as Defendant, to his patrol vehicle, the deputy noticed an odor of intoxicant, bloodshot eyes. The deputy performed a horizontal gaze nystagmus test and noted four cues of impairment. ¶8 The deputy took Defendant into custody. At the jail, the deputy read Defendant the implied consent form and Defendant consented to a blood draw and a breath test. The deputy also read Defendant his Miranda warnings, and Defendant agreed to be questioned. Defendant told the deputy that he had consumed at least two whiskey and coke drinks that evening. The deputy gave Defendant an intoxylizer test and reported the results as .102 and .101, both in excess of the legal limit of .08. 1 ¶9 A licensed Defendant s blood at criminalist testified practical 1:27 that nurse a.m. on duplicate testified that February 24, testing showed she drew 2008. a A blood alcohol concentration ( BAC ) of .1234 and .1199 and that the blood had been drawn within two hours of when police stopped Defendant. 1 Deputy D. Raiss testified that he maintained the Sheriff s Department Intoxylizer 8000 breath testing machine and had performed a quality assurance test of the machine on February 6, 2008. The machine was working properly on that date. 4 ¶10 A.D., Defendant s girlfriend, testified that she was with Defendant when the jeep got stuck in the wash and that soon after, she noticed lights behind them and a man s voice telling them to get out of the jeep. hearing a siren. Defendant She testified she did not remember testified that when he saw the police cars and people outside the vehicles, he didn t want to get in the middle of the situation, so he made a U-turn and went back toward home. He denied that he ever pulled over and turned off his lights. He stated that when the jeep got stuck, he tried to rock it out of the ditch and said that was the first time he saw lights coming behind him. Defendant also testified that he did not hear a siren. ¶11 suspended The jury found Defendant guilty as charged. Defendant s sentences, placed him on The court two years standard probation, and ordered 10 days in jail but suspended all but 24 hours of that upon completion of drug and alcohol screening. The court ordered a fine of $250, a surcharge of $210, a probation surcharge of $10, and various assessments. CONCLUSION ¶12 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. We find none. See Leon, 104 All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, Defendant 5 was represented by counsel at all stages of the proceedings, sufficient evidence existed for the jury to find that Defendant had committed the offenses, and the disposition imposed was authorized by law. ¶13 After obligations appeal have the pertaining ended. filing to of this Defendant's Counsel need do decision, counsel's representation no more than in this inform Defendant of the status of the appeal and of his future options, unless counsel's review reveals 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, 15657 (1984). On the court's own motion, Defendant has thirty days from the date of this decision to proceed, if he desires, with a motion for reconsideration or petition for review in propria persona. ¶14 Accordingly, we affirm Defendant s convictions and sentences. /s/_____________________________ SHELDON H. WEISBERG, Presiding Judge CONCURRING: /s/___________________________________ PHILIP HALL, Judge /s/___________________________________ JOHN C. GEMMILL, Judge 6

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