State v. Acuoth

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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. JOHN JOK ACUOTH, Appellant. DIVISION ONE FILED: 11/15/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0600 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-171909-001 DT The Honorable Carolyn K. Passamonte, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Theresa M. Armendarez, P.L.C. by Theresa M. Armendarez Attorney for Appellant B A R K E R, Judge Phoenix Manteo, NC ¶1 John for six sentences Jok felonies. Acuoth counts appeals of from his DUI, aggravated convictions all class and four Acuoth s 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 this court that after searching the entire arguable ground for reversal. record on appeal, he finds no Acuoth was granted leave to file a supplemental brief in propria persona, but did not do so. ¶2 of We have jurisdiction pursuant to Article 6, Section 9 the Arizona Constitution and Arizona Revised Statutes ( A.R.S ) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 12-4033(A) (2010). reversible error. We are required to search the record for Finding no such error, we affirm. Facts and Procedural Background 1 ¶3 At about 10:45 on the evening of November 13, 2009, officers observed headlight. Acuoth driving with only one functioning The officers followed Acuoth in order to conduct a traffic stop. They observed as he approached a red light with his right turn signal on, turned right at the light without stopping, and turned into the middle lane. The officers pulled Acuoth over. 1 We view the evidence in the light most favorable to sustaining the conviction. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 ¶4 While talking with Acuoth, the officers noticed his bloodshot, watery eyes and the odor of alcohol emanating from the car. no. When they asked him if he had been drinking, he said The officers called a DUI officer to the scene. The DUI officer performed an HGN test on Acuoth; he exhibited all six cues. The officer also noted Acuoth s bloodshot, watery eyes. Acuoth was arrested and taken to a DUI processing van where his blood was drawn at about 11:40 pm. ¶5 After being placed under arrest, the officer advised Acuoth of his Miranda rights. Acuoth told the officer that he had been operating the vehicle, but he continued to deny that he had been drinking. However, Acuoth s blood alcohol content was found to be 0.145. Acuoth also admitted to the officer that he had been convicted of a DUI on two occasions, in 2007 and in 2008, and that his license was both suspended and revoked as a result of those convictions. Acuoth was also required to have an ignition interlock device installed on any vehicle he would operate after reinstating his license. ¶6 Acuoth was charged with six counts of aggravated DUI arising out of this incident. 2 At trial, the State introduced 2 Specifically: count 1, driving while under the influence while his license was revoked or suspended; count 2, driving with an alcohol concentration of 0.08 or more while his license was revoked or suspended; count 3, driving under the influence while under a court order to equip the vehicle with a certified ignition interlock device; count 4, driving with an alcohol 3 evidence content that of Acuoth s 0.145. blood The test State returned showed that a blood Acuoth s alcohol driver s license had been revoked and suspended as of November 13, 2009, that he had received notice of the revocation, that he was required to have an ignition interlock device installed, and that he had two charged offense. two prior DUI November 13. DUI convictions within placed convictions and of the that he had been drinking on After a four-day trial, Acuoth was convicted on Acuoth on two completion following years While testifying, Acuoth admitted that he had all six counts by an eight-person jury. court seven years of four As to each count, the of months supervised in the probation Department Corrections, to run concurrently on each count. of Acuoth timely appealed. Disposition ¶7 We have reviewed the record and have found no meritorious grounds for reversal of Acuoth s convictions or for modification of the sentences imposed. 744; Leon, 104 Ariz. at 300, 451 See Anders, 386 U.S. at P.2d at 881. Acuoth was concentration of 0.08 or more while under a court order to equip the vehicle with a certified ignition interlock device; count 5, driving under the influence and having been previously convicted of two prior DUIs within 84 months of the current offense; and count 6, driving with an alcohol concentration of 0.08 or more and having been previously convicted of two prior DUIs within 84 months of the current offense. 4 present, or his presence was waived, at all critical stages of the proceedings and was represented by counsel. All proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. ¶8 Accordingly, we affirm. After the filing of this decision, counsel s obligations in this appeal have ended subject to the following. Counsel need do no more than inform Acuoth 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). Acuoth 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. /s/ ____________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ ANN A. SCOTT TIMMER, Presiding Judge /s/ ____________________________________ PATRICK IRVINE, Judge 5

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