STATE v. ETCHISON

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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. ) ) SCOTT DEAN ETCHISON, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 11/13/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 12-0102 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-138731-001 SE The Honorable Phemonia L. Miller, 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 Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 sentences Scott for Dean two Etchison counts of appeals his aggravated convictions driving under and the influence. Counsel for Etchison 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 Etchison 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 entire record for State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). favorable to We view the facts in the light most sustaining the conviction and resolve all reasonable inferences against Etchison. State v. Guerra, 161 Ariz. (1989). 289, 293, 778 P.2d 1185, 1189 Finding no reversible error, we affirm. ¶3 Etchison was charged with one count of aggravated driving while impaired to the slightest degree, in violation of Arizona Revised Statutes ( A.R.S. ) section 28-1381(A)(1) (2012), 1 and one count of aggravated driving while exceeding the blood alcohol (2012). limit, in violation of A.R.S. § 28-1381(A)(2) Both were charged as class four felonies because the offenses were committed while Etchison s driver s license was suspended. The following evidence was presented at trial. 1 Absent material revisions after the date offense, we cite the statute s current version. 2 of an alleged ¶4 On the morning of July 27, 2011, Etchison drank a couple of beers and some vodka after doing yard work for a friend, finishing his last drink around 1:00 in the afternoon. Later, he went to his ex-girlfriend s ( B.D. ) house, who lived in the same neighborhood. brought to ride through Using a bike and a skateboard he the neighborhood, returned a couple of times. house, Etchison was upset Etchison left and Each time he returned to B.D. s and emotional. He profanities and broke a window on B.D. s home. also yelled When Etchison came back a final time at approximately 2:45 p.m., B.D. called 9-1-1. ¶5 At some point while B.D. was on the phone with the 9-1-1 operator, B.D. s daughter talked to Etchison at the door to try and convince him to leave, which eventually he did. Standing by the front window of her home, B.D. saw Etchison driving his van. She told the operator, he s driving away; he s driving up Harris Street now towards Main . . . He s going Southbound on Harris. She testified that she knew it was Etchison because she could see his profile in the van and she was familiar with his vehicle. ¶6 Etchison parked his car approximately 200 feet South of B.D. s house in an apartment complex parking lot and returned to B.D. s backyard on foot. When Etchison saw the police vehicle, he attempted to flee but the officers were eventually 3 able to detain him. The officers noticed that Etchison exhibited signs of impairment, such as the smell of alcohol on his breath, bloodshot coordination when transported Etchison eyes, swaying standing, to the and main and general slurred police lack speech. station for of They further investigation. After being informed of his Miranda 2 rights, Etchison ¶7 agreed to undergo a DUI investigation. After some preliminary questioning, the officer observed all six cues of the Horizontal Gaze Nastagmus ( HGN ) test, indicating a blood alcohol content of .08 or greater and impairment. A blood draw confirmed the HGN test result, showing Etchison s blood alcohol content to be .219. ¶8 At trial, the parties stipulated that Etchison s driver s license had been suspended at the time of the incident and that he knew or should have known of this suspension. jury found Etchison guilty as charged on both counts. hearing on historical sentenced priors, the aggravated Etchison to court DUI found felony minimum, Etchison conviction. concurrent had A After a one prior The court three-year prison terms, with a credit for 182 days of presentence incarceration. This timely appeal followed. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 4 ¶9 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 Etchison 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 was within statutory limits. Based on the foregoing, we affirm Etchison s convictions and sentences. ¶10 Upon the filing of this decision, counsel shall inform Etchison 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. 5 582, 584-85, 684 P.2d 154, 156-57 (1984). Etchison 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/ ___________________________________ ANDREW W. GOULD, Judge /s/ ___________________________________ DONN KESSLER, Judge 6

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