STATE v. KAUAKAHI

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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. ) ) KASEY DARNELL KAUAKAHI, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 09/27/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 11-0742 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-129452-001 DT The Honorable Pamela H. Svboda, Judge Pro Tempore 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 Charles R. Krull, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 sentences Kasey for Darnell two Kauakahi counts of appeals aggravated his convictions driving under and the influence. Counsel for Kauakahi 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 searching the arguable record grounds for on appeal, he reversal. was unable Kauakahi to any granted was find the opportunity to file a supplemental brief in propria persona, but he has not done so. ¶2 Our obligation reversible error. is to review the 289, sustaining 293, record for We view the facts in the light most the conviction reasonable inferences against Kauakahi. Ariz. entire State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable to 778 P.2d 1185, 1189 and resolve all State v. Guerra, 161 (1989). Finding no reversible error, we affirm. BACKGROUND ¶3 Kauakahi was indicted on one count of aggravated driving while impaired to the slightest degree, in violation of Arizona Revised Statutes ( A.R.S ) § 28-1381(A)(1) (2012), 1 and one count of aggravated driving while exceeding the blood alcohol limit, in violation of A.R.S. § 28-1381(A)(2). Both counts were charged as class four felonies under A.R.S. § 281383(A)(1) (2012), because the 1 offenses were Absent material revision after the date offense, we cite the statute s current version. 2 committed of the while alleged Kuakahi s driver s license was suspended. The following evidence was presented at trial. ¶4 Early in the morning on January 9, 2010, D.K. heard a loud crash. As he walked outside in front of his condominium unit, he saw that a truck had crashed into a fence surrounding the community pool. He also noticed that an individual in the driver s seat, later identified as Kauakahi, was trying to back the truck off of a curb, but the tires kept spinning. called the police, who arrived at the scene within D.K. a few minutes. ¶5 Kauakahi told Officer Callies that a friend had been driving the vehicle when it crashed. Kauakahi also explained, however, that he later operated the vehicle in an attempt to move it away from the wall where it crashed into. Kauakahi also mentioned he was with someone at a bar and that she s just a friend and it is cool. In context, these statements made no sense asked to Callies, so he for identification, whereupon Kauakahi handed him his Arizona State ID card, chapstick, and a gentleman s club card. Kauakahi also had a set of car keys. Confused at Kauakahi s actions and statements, Callies told him you are not making any sense, . . . tell me the truth about what happened. Kauakahi then admitted he was the driver of the vehicle. Callies conducted several field sobriety tests, which Kauakahi could not perform satisfactorily. 3 Kauakahi was arrested and taken to a hospital for a blood draw, which revealed a blood alcohol concentration of .240, three times the legal limit. Callies then took Kauakahi to the police station, gave Kauakahi Miranda 2 warnings and asked additional questions. Kauakahi admitted suspended, he his had driver s been license drinking was alcohol, most and he likely had been driving the vehicle. ¶6 Evidence at trial also demonstrated that Kauakahi s driver s license was suspended at the time of the accident. A letter notifying Kauakahi of his driver s license suspension was properly mailed to his address on file with the Arizona Motor Vehicle Department. A jury found Kauakahi guilty as charged on both counts. The court sentenced Kauakahi to concurrent four- month terms prison followed by three years of supervised probation, with credit for 29 days of presentence incarceration. This timely appeal followed. DISCUSSION ¶7 We have searched error and find none. the entire record for reversible All of the proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. The record shows Kauakahi was present and represented by counsel at all pertinent stages of the proceedings, was afforded the opportunity to speak before sentencing, and the sentence imposed 2 Miranda v. Arizona, 384 U.S. 436 (1966). 4 was within statutory limits. Additionally, as explained below, the court did not commit fundamental error in denying Kauakahi s motion to suppress. ¶8 Kauakahi moved to suppress the statements he made to Callies at the accident scene because Miranda warnings were not provided and because the statements were not given voluntarily. We find Miranda does not apply to Callies on-the-scene questioning of Kauakahi because he was not in custody. See Miranda, 384 U.S. at 477-78 (explaining that general on-thescene questioning as to facts surrounding a crime does not require Miranda warnings); State v. Bainch, 109 Ariz. 77, 79, 505 P.2d 248, 250 (1973) (noting that a key factor in deciding whether a person is in custody is whether he was deprived of his freedom of action in any significant manner ). ¶9 The initial questions from Callies took place at the scene of the accident, where officers were engaged in routine investigatory questioning of those who may have been involved in or witnessed the accident. answers, Callies merely When Kauakahi provided incoherent requested clarification. The record supports the trial court s determination that Kauakahi was not in custody at the time of Callies questions at the scene of the accident. ¶10 Kauakahi s We also agree with the trial court s conclusion that admission was voluntary. 5 Nothing in the record suggests there was any threat, promise, or coercion. Callies statement to Kauakahi that he should tell me the truth about what happened is not coercive. See State v. Pettit, 194 Ariz. 192, 196, 979 P.2d 5, 9 (App. 1998) (threshold of determining voluntariness is whether a defendant s will was overborne as a result of coercive police conduct). Thus, the trial court did not err in denying Kauakahi s motion to suppress. CONCLUSION ¶11 Based on the convictions and sentences. foregoing, we affirm Kauakahi s Upon the filing of this decision, counsel shall inform Kauakahi of the status of the appeal and his options. Defense counsel has no further obligations unless, upon review, counsel finds 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, 156-57 (1984). 6 Kauakahi shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. /S/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /S/ ________________________________ MARGARET H. DOWNIE, JUDGE /S/ ________________________________ RANDALL M. HOWE, JUDGE 7

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