Opinion
No. 2 CA-CR 2018-0233
04-02-2019
THE STATE OF ARIZONA, Appellee, v. PEDRO ALFONSO ALVAREZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Alexander M. Taber, Assistant Attorney General, Tucson Counsel for Appellee Nicole Countryman, Phoenix Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pima County
No. CR20170768001
The Honorable Gus Aragon, Judge
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Alexander M. Taber, Assistant Attorney General, Tucson
Counsel for Appellee
Nicole Countryman, Phoenix
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.
EPPICH, Presiding Judge:
¶1 After a jury trial, Pedro Alvarez was convicted of two counts of aggravated driving under the influence of an intoxicant (DUI), specifically: DUI with a suspended or revoked license and driving with a blood alcohol concentration (BAC) at or above .08 with a suspended or revoked license. The trial court sentenced him to concurrent, 3.5-year prison terms for each offense. On appeal, Alvarez contends there was insufficient evidence he drove or was in actual physical control of a vehicle at the time he was impaired by alcohol or his BAC was .08 or greater. We affirm.
¶2 We view the evidence in the light most favorable to sustaining the jury's verdict. State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In the early morning of February 7, 2017, E.A. was watching television at her mother's home when she heard a car door slam. When she looked out the window, she saw an unfamiliar vehicle in the driveway. She then went outside but did not see anyone.
¶3 At about the same time, a police officer driving nearby saw Alvarez running toward him. When the officer told him to stop and sit down, Alvarez threw a set of keys onto the ground before complying. Alvarez was extremely intoxicated, and, according to the officer, said "Something to the [e]ffect of you're going to arrest me for parking a car[? Y]ou can't arrest me for parking a car." The keys Alvarez had discarded were for the vehicle in E.A.'s mother's driveway. An empty beer can and beer bottle were found in the vehicle. Although Alvarez claimed to have had only two beers, there was expert testimony at trial that he would have had to consume a minimum of nine drinks to have the .193 BAC later determined by testing a sample of his blood.
¶4 To show Alvarez committed the DUI offenses alleged, the state was required to prove he had driven or been in actual physical control
of a vehicle while impaired by alcohol to the slightest degree and that, as a result of alcohol consumption before or while driving or controlling the vehicle, his BAC had been .08 or greater within two hours of driving or being in actual physical control of a vehicle. See A.R.S. § 28-1381(A)(1), (2). To convict Alvarez of aggravated DUI as charged, the state was required to show that he committed a DUI offense while his license was suspended or revoked. See A.R.S. § 28-1383(A)(1).
¶5 On appeal, Alvarez argues there was insufficient evidence he drove the car while impaired or with a BAC at or above .08. He notes that nobody saw him in the car, there was no evidence when or how long the car had been parked in the driveway, and there was "no proof that he consumed any alcohol prior to" parking the car, apparently suggesting he could have consumed sufficient alcohol after parking the car for his blood to have the BAC found in testing.
¶6 We review de novo whether the evidence is sufficient to support a conviction and, again, we view that evidence in the light most favorable to upholding the jury's verdict. State v. Pena, 235 Ariz. 277, ¶ 5 (2014). Evidence is sufficient if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. West, 226 Ariz. 559, ¶ 16 (2011) (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). "And in reviewing the sufficiency of the evidence, we do not distinguish circumstantial from direct evidence." State v. Borquez, 232 Ariz. 484, ¶ 11 (App. 2013).
¶7 We agree with the state that Alvarez's argument ignores ample circumstantial evidence that he drove or was in actual physical control of the vehicle while he was impaired. Alvarez admitted driving the vehicle, and the jury readily could conclude he had been intoxicated when he did so given the large quantity of alcohol he must have consumed to have a BAC of .193 despite only two beer containers were found in the car—far less than would have been required to achieve such a high BAC, he had parked the car in a stranger's driveway, and there was no evidence he consumed any additional alcohol in the driveway or after leaving the car there.
¶8 We affirm Alvarez's convictions and sentences.