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.
)
)
ADRIAN OLDHAM,
)
)
Appellant. )
__________________________________)
No. 1 CA-CR 10-0642
DEPARTMENT E
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
DIVISION ONE
FILED: 06/02/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-100701-001 DT
The Honorable Cari A. Harrison, Judge
AFFIRMED
Thomas C. Horne, 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
Joel M. Glynn, Deputy Public Defender
Attorneys for Appellant
Phoenix
Adrian Oldham
Appellant
Phoenix
S W A N N, Judge
¶1
Adrian
Oldham
(“Defendant”)
timely
appeals
his
conviction for driving with a suspended license while under the
influence of alcohol and driving with a suspended license with a
body alcohol concentration of 0.08 or more. See A.R.S. §§ 281381(A)(1), (2), -1383(A)(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
advised
us
that
a
thorough
search of the record has revealed no arguable question of law,
and requests that we review the record for fundamental error.
See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391
(App.
1993).
Defendant
was
given
an
opportunity
to
file
a
supplemental brief in propria persona and did so.1
FACTS AND PROCEDURAL HISTORY2
¶2
In October 2009, the Surprise Police Department tested
Defendant’s blood alcohol level.
An officer informed Defendant
that if the test came back demonstrating “he’s over .08” that
“later the courts will suspend his license” for 90 days or 12
months.
¶3
On
January
Tarleton
was
on
duty
5,
2010,
about
Surprise
10
p.m.
and
Police
saw
Officer
Defendant’s
Kara
car
“weaving around the medians” in a shopping center parking lot.
She also observed that Defendant alternated speeds as he drove,
1
We grant the Motion to Accept Appellant’s Supplemental Brief in
Propria Persona received by this court April 19, 2011.
2
“We view the evidence in the light most favorable to sustaining
the verdicts and resolve all inferences against appellant.”
State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App.
1997).
2
ran through a stop sign, entered a main street without stopping,
and
stopped
“about
a
half
car
length
Tarleton
flashed
her
lights
and
“diagonal
across
some
parking
past”
Defendant
spaces.”
a
stop
parked
When
she
sign.
his
car
approached
Defendant’s vehicle, Tarleton saw him “fumbling around trying to
get his driver’s license and registration.”
Defendant handed
her an Arizona driver’s license; she asked him whether “there
was
any
suspension
of
any
kind,
anything
wrong
with
license,” and Defendant answered, “I do not know.”
his
Tarleton
noticed that Defendant “was extremely sweaty,” had “bloodshot
watery
eyes”
and
“was
very
nervous.”
She
also
smelled
an
“extremely strong odor of alcohol coming from the vehicle” and
saw
a
“nearly
floorboard.
empty”
vodka
bottle
on
the
passenger-side
Defendant’s speech was “mumbled” and the officer
had a difficult time distinguishing his words because they “all
just
kind
of
flow[ed]
in
a
monotone,
one
consistent
word.”
Tarleton performed a Horizontal Gaze Nystagmus field sobriety
test (“HGN”) and observed that Defendant displayed the “maximum
number
of
cues
of
impairment,”
which
indicated
an
alcohol
concentration greater than 0.08.
¶4
Tarleton arrested Defendant and transported him to the
Surprise Police Department.
She issued Miranda warnings, which
Defendant acknowledged he understood.
Defendant told Tarleton
that he last ate at 9 a.m. and had been drinking vodka from 10
3
a.m. until 8 p.m. that day.
“suspended”
and
said
he
He confirmed that his license was
knew
this
because
something in the mail telling him that.”
he
had
“received
Defendant agreed to
take a breathalyzer test and tested 0.297 and 0.294.
¶5
suspended
A grand jury indicted Defendant for driving with a
license
while
under
the
influence
of
intoxicating
liquor (Count 1) and driving with a suspended license with a
body alcohol concentration of 0.08 or more (Count 2).
day trial was held.
A three-
At the conclusion of the state’s case,
Defendant moved for a judgment of acquittal pursuant to Ariz. R.
Crim. P. 20, arguing that the state failed to prove that he knew
or had reason to know that his driver’s license was suspended.
The motion was denied.
witness.
Defendant testified and presented one
At the conclusion of Defendant’s case, the state put
on a rebuttal witness, after which Defendant again moved for a
judgment of acquittal contending the state failed to present
sufficient evidence for a jury to find Defendant had notice of
the license suspension.
The court denied his motion.
After
deliberations, the jury found Defendant guilty of both counts.
Defendant was sentenced to serve 120 days incarceration and two
years’ supervised probation for each count.
187 days of presentence incarceration.
¶6
Defendant timely appeals.
4
He was credited for
DISCUSSION
¶7
We have read and considered the briefs submitted by
Defendant
and
counsel,
and
have
reviewed
Leon, 104 Ariz. at 300, 451 P.2d at 881.
error.
the
the
entire
record.
We find no fundamental
All of the proceedings were conducted in compliance with
Arizona
Rules
of
Criminal
Procedure,
imposed was within the statutory range.
and
the
sentence
Defendant was present
at all critical phases of the proceedings and represented by
counsel.
jury
The jury was properly impaneled and instructed.
instructions
were
consistent
with
the
offenses
The
charged.
The record reflects no irregularity in the deliberation process.
I.
RULE 20 MOTION
¶8
A judgment of acquittal is appropriate only when there
is “no substantial evidence to warrant a conviction.”
Substantial
evidence
is
such
proof
that
“reasonable
Rule 20.
persons
could accept as adequate and sufficient to support a conclusion
of
defendant’s
Mathers,
165
guilt
Ariz.
beyond
64,
a
doubt.”
796
67,
reasonable
866,
P.2d
869
State
v.
(1990).
“Reversible error based on insufficiency of the evidence occurs
only where there is a complete absence of probative facts to
support the conviction.”
State v. Soto-Fong, 187 Ariz. 186,
200, 928 P.2d 610, 624 (1996).
¶9
For the jury to find Defendant guilty of Count 1, the
state had to prove Defendant was driving a motor vehicle while
5
under the influence of intoxicating liquor and that his ability
to
drive
was
intoxication.
impaired
to
the
slightest
A.R.S. § 28-1381(A)(1).
degree
because
of
For Count 2, the State
had to prove that Defendant had an alcohol concentration of 0.08
or more within two hours of driving and that that concentration
resulted from alcohol consumed either before or while driving.
A.R.S. § 28-1381(A)(2).
For both counts, the state also had to
prove that Defendant’s driver’s license was suspended on January
5 and that Defendant knew or should have known that.
A.R.S. §
28-1383(A)(1).
¶10
Here, sufficient evidence was presented to support the
jury’s finding that Defendant was guilty of both counts.
A.
¶11
Driving a Motor Vehicle While Under the Influence of
Intoxicating Liquor
Defendant admitted he was driving that night.
But
while he admitted to drinking vodka until a couple of hours
before he was stopped, Defendant denied that he was “drunk” when
Tarleton stopped him.
¶12
Tarleton testified that Defendant had bloodshot eyes,
that there was a “nearly empty” bottle of vodka on the passenger
floorboard, that she smelled a “strong odor of alcohol,” that
the HGN test results indicated Defendant’s alcohol content was
greater than 0.08, and that the breathalyzer tests performed
later that night registered at 0.297 and 0.294.
6
¶13
A criminalist testified that the breathalyzer used to
test Defendant was in “proper working order” that night.
She
also testified that “[e]verybody is impaired to operate a motor
vehicle
above
a
.08
alcohol
concentration”
and
described
alcohol’s “continuum of effects” on driving to include weaving
and alternating speeds.
She affirmed she could “calculate the
amount of alcohol in a person’s system at the time a breath test
was
taken”
if
she
knew
the
person’s
weight,
alcohol
concentration and gender, and that Defendant “would have to have
consumed at least 27 . . . 12 ounce beers or 27 shots of liquor”
to “reach a breath alcohol concentration of a .294.”
¶14
Although Defendant testified that he was not “drunk,”
a reasonable juror could have found the testimony of Tarleton
and the criminologist more credible and found that Defendant was
impaired.
See State v. Cox, 217 Ariz. 353, 357, ¶ 27, 174 P.3d
265, 269 (2007) (“No rule is better established than that the
credibility of the witnesses and the weight and value to be
given
to
their
testimony
are
questions
exclusively
for
the
Defendant’s
car
jury.”).
B.
¶15
Impaired to the Slightest Degree
Tarleton
testified
that
she
saw
“weaving” through a parking lot and alternating speeds, which
she had been trained to recognize as signs of driver impairment.
She
also
testified
that
he
ran
7
through
a
stop
sign
in
the
parking
lot,
entered
a
main
street
without
stopping
first,
stopped “ahead” of a stop sign, and parked diagonally across
parking spaces when he finally stopped.
¶16
Defendant testified that his driving that night may
have looked “erratic” because he was following the road through
the empty parking lot rather than ignoring the parking spaces
and “zip[ping] straight across.”
through
a
stop
sign
but
admitted
He did not “recall” running
it
was
“possible”
failed to stop when leaving the parking lot.
that
he
He also admitted
that he stopped ahead of the stop sign because he could not see
on-coming traffic from behind the line, and he parked diagonally
across parking spaces when pulled over because he wanted to
“stop the car as quickly and safely as possible” in response to
the patrol car and “wasn’t very picky about lining up.”
¶17
Again, the credibility and weight of testimony is for
the jury to decide.
Cox, 217 Ariz. at 357, ¶ 27, 174 P.3d at
269.
C.
¶18
Alcohol Concentration of 0.08 or More Within Two Hours
of Driving Resulting From Alcohol Consumed Either
Before or While Driving
Tarleton saw Defendant’s car weaving “after” 10 p.m.
January 5.
The HGN test results obtained at the scene indicated
Defendant had an alcohol content greater than 0.08.
was arrested about 11 p.m.
readings
of
0.297
at
Defendant
The breathalyzer tests resulted in
11:25
p.m.
8
and
0.294
at
11:31
p.m.
Defendant admitted he had been drinking vodka from the bottle in
his car until a couple of hours before he was stopped.
¶19
The jury was instructed that it could not consider
Defendant “under the influence” simply because he admitted to
drinking, but that a rebuttable presumption existed that he was
“under the influence” if he had “0.08 or more concentration of
alcohol” within two hours of driving.
The jury, however, was
also instructed that it was “free to accept or reject” that
presumption
“after
considering
circumstances of this case.”
instructions.
all
of
the
facts
and
We presume a jury follows its
State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132
P.3d 833, 847 (2006).
¶20
From
the
evidence
presented
at
trial,
a
reasonable
jury could have concluded that Defendant had an alcohol content
of 0.08 or more within two hours of driving, resulting from the
vodka he admittedly consumed earlier that night.
D.
¶21
Knew or Should
Suspended
Have
Known
Driver’s
License
Was
The Arizona Motor Vehicle Department (MVD) is required
to send a written notice to a driver to the address on record
when
a
license
is
suspended.
A.R.S. § 28-3318(A)(1), (C).
“Service of the notice . . . is complete on mailing.”
A.R.S.
§ 28-3318(D).
actual
“The
state
is
not
9
required
to
prove
receipt of the notice or actual knowledge of the suspension
. . . .” A.R.S. § 28-3318(E).
¶22
Here, Defendant’s MVD “face sheet” documented that the
December letter had been mailed to Defendant’s address.
The
letter detailed that Defendant’s license would be suspended from
January 4, 2010, until April 4, 2010.
Defendant
told
suspended
because
Additionally,
her
a
January
he
had
Surprise
5
that
received
Police
Tarleton testified that
he
knew
his
“something
Department
license
in
the
officer
was
mail.”
testified
that he told Defendant in October 2009 that his license could be
suspended if his blood alcohol test came back showing a level
greater than 0.08.
¶23
On
acknowledged
cross-examination,
that
the
the
“certified
MVD
custodian
duplicate”
of
of
the
records
December
letter did not contain “a stamp” indicating it was “actually
sent”
on
a
particular
day
and
was
not
initialed
by
an
MVD
employee, even though she had seen such a stamp on copies of MVD
letters “in the past.”
The custodian also acknowledged that MVD
did not have a process to note within its system whether a
letter was returned as undeliverable, and that MVD destroys such
letters without notation in its records.
But the custodian
unequivocally testified that the MVD records indicated that the
December letter was sent, even if she could not say whether
Defendant “did or didn’t” receive it.
10
¶24
Defendant, however, testified that he never received
any correspondence from MVD, that the address MVD had was a
“temporary living situation,” and that he was aware of “one
instance” where a letter sent there had been returned to sender
because
his
name
was
not
on
the
mailbox.
Defendant
also
testified that he agreed with Tarleton that his license had been
suspended because he did not want to appear “misinformed” about
its status, but that on January 5 he believed his license was
valid.3
Defendant also denied having any knowledge that his
license would be suspended because of the October 2009 incident,
and that he did not “recall” that the Surprise Police officer
informed him it could be.
¶25
As
we
stated
above,
the
jury
weighs
presented and makes a credibility determination.
at 357, ¶ 27, 174 P.3d at 269.
the
evidence
Cox, 217 Ariz.
From the evidence presented
here, a reasonable jury could have concluded that Defendant knew
or had reason to know that his driver’s license was suspended.
II.
IMPEACHMENT EVIDENCE
¶26
At trial, defense counsel moved to admit “10 motor
vehicle records . . . pulled from [his] other cases” to impeach
the
MVD
custodian’s
testimony.
3
Counsel
asserted
that
his
On cross examination, Defendant clarified that his memory was
“a vague recollection of something related to insurance” and not
“necessarily even something [he] got in the mail.”
11
documents
purposes
constituted
only
that
testimonial
were
exempt
evidence
from
for
disclosure
impeachment
pursuant
to
Arizona court rules and case law.
On the state’s objection, the
court
motion,
denied
defense
counsel’s
and
Defendant
now
contends the court’s action “denied [his] right to put on a
proper defense.”
¶27
Here,
the
MVD
custodian
testified
that
she
familiar with the “stamp” because she had seen it before.
was
When
prompted on cross-examination to explain why the December letter
did not have it, the custodian “guess[ed]” that the department
may have “discontinued” its use.
Defense counsel then requested
a break in trial because he had “impeachment evidence that the
State has not previously seen.”
The state objected because the
documents had not been previously disclosed.
After reviewing
legal authority cited by defense counsel, the court precluded
admission of the documents due to counsel’s failure to disclose
them and because they were “prejudicial” because “there’s no
opportunity to look into any issues of normal practices or the
jury is left to speculate as to whether that’s a policy that’s
been violated.”
¶28
Ariz. R. Crim. P. 15.2(c) requires a defendant to make
available to the prosecutor:
(1) The names and addresses of all persons,
other than that of the defendant, whom the
defendant intends to call as witnesses at
12
trial, together with their relevant written
or recorded statements;
(2) The names and addresses of experts whom
the defendant intends to call at trial,
together with the results of the defendant's
physical examinations and of scientific
tests, experiments or comparisons that have
been completed; and
(3) A list of all papers, documents,
photographs and other tangible objects that
the defendant intends to use at trial.
Impeachment evidence “is that which is designed to discredit a
witness, i.e., to reduce the effectiveness of his testimony by
bringing forth evidence which explains why the jury should not
put faith in him or his testimony.”
Zimmerman v. Super. Ct.
(Stanford), 98 Ariz. 85, 90, 402 P.2d 212, 215 (1965).
“Cross-
examiners may not impeach by implying the existence or nonexistence of facts they are not prepared to prove.”
State v.
Nordstrom, 200 Ariz. 229, 252 n.14, ¶ 75, 25 P.3d 717, 740 n.14
(2001).
See also State v. Hines, 130 Ariz. 68, 71, 633 P.2d
1384, 1387 (1981) (“Impeachment by insinuation occurs when the
cross-examiner asks questions for which there is no basis in
fact.”).
¶29
Here, defense counsel sought to introduce letters that
had the stamp from client files unrelated to Defendant’s case,
but he never planned to offer testimony about MVD policy -- a
fact that was noted in the court’s decision to deny admission of
13
those files.4
Additionally, although defense counsel asserted
that the “only reason” he sought to admit the records was to
impeach
the
MVD
custodian,
the
custodian
did
not
testify
regarding the MVD policy; instead, during cross-examination she
merely “guess[ed]” why the December letter did not contain the
stamp.
¶30
At trial, defense counsel asserted that the documents
were “testimonial evidence” for impeachment purposes only, and
were therefore exempt from disclosure.
See Osborne v. Super.
Ct. (McBryde), 157 Ariz. 2, 5, 754 P.2d 331, 334 (1988) (finding
that
disclosure
impeachment
is
of
prior
governed
inconsistent
by
Ariz.
R.
statements
used
for
Evid.
that
the
and
prosecutor need only be provided an opportunity to review the
statement
at
the
time
it
is
used
to
impeach).
Testimonial
evidence is a “person’s testimony offered to prove the truth of
the
matter
2009).
asserted.”
Here,
counsel
Black’s
Law
characterized
Dictionary
his
case
640
(9th
ed.
documents
as
“testimonial” because they included “someone’s initials saying
that this document was sent out on a specific date.”
is
true
that
the
documents
would
have
shown
when
While it
they
were
mailed, they would not have explained the MVD policy regarding
use of the stamp or why the “certified copy” of the Defendant’s
4
The Defendant’s Notice of Defenses, Witnesses and Evidence did
not identify any MVD witnesses or policy statements to be used
in his defense.
14
letter
--
computer
a
“duplicate
storage
of
devices”
the
–-
information
did
not
contained
contain
the
stamp
the
in
and
handwritten initials of a MVD employee noting when it was sent.
Neither were the documents evidence of the MVD custodian’s prior
statement that could be introduced at trial pursuant to the
holding in Osborne.
In fact, the MVD custodian testified that
she did not know the MVD policy regarding the use of the stamp.
Because this evidence was a document that Defendant intended to
use at trial, it should have been disclosed pursuant to Rule
15.2.
¶31
Before
restricting
introduction
of
evidence
as
a
sanction for a discovery violation, the court should consider
the vitality of the evidence to the proponent’s case; the degree
to
which
prejudicial
the
to
evidence
the
or
sanctionable
opposing
party;
conduct
whether
the
has
been
conduct
was
willful or motivated by bad faith; and whether a less stringent
sanction would suffice.
State v. Mesa, 203 Ariz. 50, 57, ¶ 32,
50 P.3d 407, 414 (App. 2002).
Defendant’s
failure
to
Here, the court concluded that
disclose
the
documents
element of taking everybody by surprise.”
the
documents
“prejudicial”
to
the
was
“for
the
The court also found
state’s
case
witness was scheduled to testify about MVD policies.
because
no
Defendant
extensively cross-examined the MVD custodian about the stamp,
and she admitted both that she had seen it used in the past and
15
that the December letter did not have it.
find
no
error,
much
less
fundamental
On this record we
error,
in
the
court’s
refusal to admit the evidence.
CONCLUSION
¶32
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,
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/
___________________________________
PETER B. SWANN, Presiding Judge
CONCURRING:
/s/
____________________________________
PATRICK IRVINE, Judge
/s/
____________________________________
MAURICE PORTLEY, Judge
16
