State v. Gentry

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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 ) ) Appellee, ) ) ) ) ) ) Appellant. ) ) ) STATE OF ARIZONA, v. GARY EDWARD GENTRY, DIVISION ONE FILED: 12/21/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 10-0077 DEPARTMENT E MEMORANDUM DECISION (Not for Publication - Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR-2007-179147-001 DT The Honorable Lisa Ann Vandenberg, Judge Pro Tempore AFFIRMED ________________________________________________________________ Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Peg Green, Deputy Public Defender Attorney for Appellant ________________________________________________________________ H A L L, Judge ¶1 Defendant, Gary Edward Gentry, convictions and the sentences imposed. forth below, we affirm. appeals from his For the reasons set ¶2 Defendant s appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising that, after a diligent search of the record, she was unable to find any arguable grounds for reversal. The brief also advised that defendant asked the court to consider issues on appeal. This court granted defendant supplemental brief, which he did. an opportunity to file a See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). He presented two issues: the police officer s probable cause to conduct a traffic stop and the right to a speedy trial. ¶3 to We review for fundamental error, which is error going the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quotation omitted). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Alvarado, 219 Ariz. 540, 541, ¶ 2, 200 P.3d 1037, 1038 (App. 2008). ¶4 Finding no reversible error, we affirm. Defendant was indicted for two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs, class four felonies. 2 ¶5 The following evidence was presented at trial. Former police officer K.V. testified that he was on patrol on July 16, 2007 at approximately 10:05 p.m., when he noticed a white car make a u-turn into the middle lane on Scottsdale Road, drive under the posted speed limit, and driv[e] out of its marked lane of travel, by about a tire width or so . . . three or four times. The car was swerving between all three lanes of travel. K.V. decided to stop the driver1 based on the [t]he lane travel and the driving under the speed limit. 2 ¶6 smell After K.V. began speaking with defendant, he could the [odor] of intoxicants coming from [defendant s] breath, and that [defendant s] eyes were bloodshot and watery, and his speech . . . kind of slow and mumbled. K.V. conducted field sobriety tests on defendant and observed that defendant was unsteady on his feet, had heavy mood swings, and a possible neurological dysfunction . . . caused by alcohol. failed the field sobriety tests. Defendant K.V. stated that defendant denied consuming any alcohol that evening and defendant admitted 1 K.V. identified the driver as defendant. 2 Defendant argues in his supplemental brief that K.V. s reason for stopping defendant was an illegal u-turn, which K.V. later retracted at trial. We disagree. K.V. specifically testified that although he had seen defendant make a u-turn, he was unsure whether defendant had committed a violation because he had not seen whether the light was red or green at the time of the uturn. Therefore, K.V. did not stop defendant because he made a u-turn. 3 that his driver s defendant s license symptoms of had been intoxication, suspended. his Based on and the driving, outcome of the field sobriety tests, K.V. arrested defendant. ¶7 Adelle defendant that Wieck, night. a phlebotomist, Criminalist drew Jennifer blood Valdez from tested defendant s blood and determined that he had a blood alcohol concentration of 0.265. Valdez estimated that defendant had consumed a minimum of twelve or thirteen drinks at the time the blood was drawn. ¶8 Defendant testified that he had consumed three beers prior to driving on a suspended license on July 16, 2007. ¶9 The jury found defendant guilty of one count of aggravated driving or actual physical control while under the influence of intoxicating slightest degree, a class liquor four or drugs, felony, impaired and one to count the of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs, alcohol concentration of 0.08 percent, a class four felony. The court sentenced defendant to concurrent prison terms of four months with thirtysix days of presentence incarceration credit. The court placed defendant on probation for four years upon his release from prison. ¶10 Defendant timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, 4 Section 9, and Arizona Revised Statutes sections 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010). ¶11 Defendant first asserts that K.V. lacked [p]robable/[r]easonable cause to initiate a traffic stop. An investigatory stop of a vehicle for a traffic violation is a seizure pursuant to the Fourth Amendment. State v. Gonzalez- Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). Police officers, however, need only possess a reasonable suspicion, and not probable cause, that a driver has committed an offense in order to properly conduct a traffic stop. Id.; State v. Livingston, 206 Ariz. 145, 147, ¶ 9, 75 P.3d 1103, 1105 (App. 2003). A traffic violation alone is sufficient to establish reasonable suspicion. United States v. Choudry, 461 F.3d 1097, 1100 (9th Cir. 2006) (citation omitted). ¶12 Defendant maintains that a court at some level had ruled that tire width lane travel is not a legal reason for a traffic stop. We believe he is referring to Livingston, which held trial that the court properly granted the motion to suppress evidence because the police officer lacked reasonable suspicion to stop a vehicle when the driver s right side tires crossed the white shoulder line on one occasion on a rural, curved road with no traffic. 75 P.3d at 1105, 1106. 206 Ariz. at 147, 148, ¶¶ 4-5, 12, This case, however, is distinguishable from Livingston because K.V. testified that defendant s vehicle 5 was swerving between three lanes of travel and he was driving under the speed limit on a busy road in the city of Scottsdale. We therefore conclude that K.V. properly conducted a traffic stop based on reasonable suspicion. ¶13 trial Next, defendant maintains that his right to a speedy had been violated. A speedy trial issue cannot be presented for the first time on appeal and we therefore decline to address it. See State v. Guerrero, 159 Ariz. 568, 570-71, 769 P.2d 1014, 1016-17 (1989) ( [D]efendant cannot . . . allow the trial to continue to verdict and sentence, and then, for the first time, raise the speedy trial issue and claim the need for reversal. ). ¶14 error. none. We have searched the entire record for reversible See Leon, 104 Ariz. at 299, 451 P.2d at 880. We find All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentence imposed was within statutory limits. ¶15 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 his future options, unless counsel s review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. 6 See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for reconsideration or petition for review. CONCLUSION ¶16 For the foregoing reasons, we affirm defendant s convictions and sentences. _/s/______________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/_______________________________ SHELDON H. WEISBERG, Judge _/s/_______________________________ PETER B. SWANN, Judge 7

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