State v. Oldham

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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. ) ) 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 ) __________________________________) No. 1 CA-CR 10-0642 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) DIVISION ONE FILED: 06/02/2011 RUTH A. WILLINGHAM, CLERK BY: DLL Appeal from the Superior Court in Maricopa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

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