State v. Scott

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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. CHRISTOPHER LEE SCOTT, JR., Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 11/08/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 11-0124 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-104734-001 DT The Honorable Pamela D. Svoboda, Judge Pro Tempore AFFIRMED Thomas C. Horne, 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 Peg Green, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 This appeal was timely filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following Christopher Lee Scott, Jr. s conviction of aggravated driving under the influence (impaired) and aggravated driving under the influence (alcohol level), both Class 4 felonies. Scott s counsel has searched the record on appeal and has found no arguable question of law that is not frivolous. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Scott was given the opportunity to file a supplemental brief, but did not do so. Counsel now asks this court to search the record for fundamental error. She also advises that Scott has asked her to raise several issues for our review, which we address below. After reviewing the entire record, we affirm Scott s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 Phoenix Police Officer Cary Bryant saw a car driving at a very high rate of speed. 1 pull into a parking lot. Bryant followed the car and saw it The parking lot was small, and the driver had nowhere to go. Scott exited the driver s side door of the car and ran to hide behind a bush, but eventually emerged peacefully. Scott had a moderate bloodshot, watery eyes and was swaying. odor of alcohol, had Scott said he had not been driving and that the driver had fled by jumping over a 12- 1 We view the facts in the light most favorable to sustaining the jury s verdicts and resolve all inferences against Scott. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 foot wall. Bryant testified, however, that he never lost sight of the car between when he saw it stop and when he saw Scott get out of the car. The officer said he did not see anyone else exit the vehicle. ¶3 Scott was transported to a DUI processing van, where an officer drew his blood. The blood was tested by a forensic scientist, who determined Scott had an alcohol concentration of 0.111 grams per 1,000 milliliters, or at least 0.105 within two hours of driving. ¶4 At trial, a Motor Vehicle Division investigator and records custodian testified that at the time of the incident, Scott s license was both suspended and revoked and that Scott had been notified of the suspension and revocation. ¶5 the A jury found Scott guilty of aggravated driving under influence (impaired) and aggravated driving under the influence (alcohol level) pursuant to Arizona Revised Statutes ( A.R.S. ) sections 28-1383 (2009). prior The superior court then found Scott had two historical convictions offenses. (2008), -1381(A)(1) and -1381(A)(2) The and court was on probation sentenced Scott at to the time concurrent of the 10-year sentences and awarded him 167 days presentence incarceration credit. 3 ¶6 Scott timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033 (2011). 2 DISCUSSION A. Fundamental Error Review. ¶7 was The record reflects Scott received a fair trial. represented by counsel at all stages of the He proceedings against him and was present at all critical stages. The court held appropriate pretrial hearings. ¶8 The State presented both direct and circumstantial evidence sufficient to allow the jury to convict. properly court composed properly of eight instructed members the jury with on one the The jury was alternate. The elements the of charges, the State s burden of proof and the necessity of a unanimous verdict. The jury returned a unanimous verdict, which was juror confirmed by polling. The court received and considered a probation violation report, addressed its contents during the sentencing hearing and imposed legal (presumptive) sentences for the crimes of which Scott was convicted. B. ¶9 Issues Raised by Scott. Scott first argues composed of all females. that the jury was improperly The Equal Protection Clause prohibits 2 Absent material revisions after the date offense, we cite a statute s current version. 4 of an alleged a party gender. from exercising peremptory strikes on the basis of J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 140-46 (1994) (applying Batson v. Kentucky, 476 U.S. 79, 85-89 (1986), to gender). A party challenging a peremptory strike first must make a prima facie showing of discrimination. 514 U.S. 765, 767 (1995). Purkett v. Elem, The party attempting to exercise the strike then must give a non-discriminatory explanation for the strike. which Id. at 768-69. the parties in We have no record of the manner in this case exercised their peremptory strikes, and the record does not reflect either party making a Batson challenge. Scott therefore cannot meet even the first part of the test, as he cannot make a prima facie showing of discrimination. Unless there are objective indications jurors prejudice, we will not presume its existence. of State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, 344 (1981). ¶10 Scott next argues there was insufficient evidence that he was driving or in actual physical control of the car. In support of this contention, he points out that the car keys were not found on his person or in the car. Sufficient evidence supports the conviction if there exists substantial evidence from the entire record from which a rational trier of fact could have found guilt beyond a reasonable doubt. P.2d at 362. evidence Id. at 553, 633 Reversible error based on insufficiency of the occurs only where there 5 is a complete absence of probative facts to support the conviction. 187 Ariz. omitted). 186, We 200, 928 conclude P.2d that the 610, State v. Soto-Fong, 624 evidence (1996) (quotation recounted above is sufficient evidence from which a rational jury could have found that Scott was driving or was in actual physical control of the vehicle. See A.R.S. § 28-1381(A)(1), (A)(2). ¶11 Scott next argues that there were problems with the chain of custody of the blood sample taken by the police. The officer who took the sample followed all standard procedures to ensure the security of the blood. He placed safety labels over the vials to prevent tampering, placed the vials in a cradle in a bag and resealed them in Scott s presence. The safety labels on the vials, the plastic bag containing them and the outside of the kit all were labeled with Scott s name. The officer then took the blood sample to the property management bureau, where a crime lab technician picked it up. received the Scott s sample, name. The it was forensic When the forensic scientist properly sealed scientist s and report marked with contains the chain of custody information for the blood sample from the time it arrived at the property management bureau. Nothing in the record indicates the chain of custody was compromised. ¶12 Finally, Scott argues his counsel was ineffective. A claim of ineffective assistance of counsel may not be reviewed on direct appeal. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 6 415, ¶ 20, 153 P.3d 1040, 1044 (2007); State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002) (ineffective assistance of counsel claim must be raised in Arizona Rule of Criminal Procedure 32 proceeding). We therefore do not reach the merits of Scott s argument that his counsel was ineffective. CONCLUSION ¶13 We have reviewed the entire record for reversible error and find none. ¶14 See Leon, 104 Ariz. at 300, 451 P.2d at 881. After the filing of this decision, defense counsel s obligations pertaining to Scott s representation in this appeal have ended. Defense counsel need do no more than inform Scott of the outcome of this appeal and his future options, 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). On the court s own motion, Scott has 30 days from the date of this decision to proceed, if he wishes, with a pro per motion for reconsideration. Scott has 30 days from the date of this decision to proceed, if he wishes, with a pro per petition for review. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ PATRICIA A. OROZCO, Judge /s/ LAWRENCE F. WINTHROP, Judge 7

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