Opinion
No. 2 CA-CR 2018-0337
07-29-2019
THE STATE OF ARIZONA, Appellee, v. RAUL GRANILLO BUSTAMANTE, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson 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NOT FOR PUBLICATION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. CR20162522001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee James Fullin, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Raul Bustamante appeals from his convictions of four felony DUI counts on the ground that the evidence was insufficient to support the verdicts. Specifically, Bustamante argues the state failed to present sufficient evidence to support its claim that he was impaired and presented no evidence to rebut his affirmative defense that he was taking a prescription opiate in accordance with his doctor's instructions. We have jurisdiction pursuant to A.R.S. §§ 12-120.21, 13-4031, and 13-4033. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We review the evidence in the light most favorable to affirming the convictions. State v. Cropper, 205 Ariz. 181, ¶ 2 (2003). In July 2015, Bustamante stopped at a sobriety checkpoint and encountered a Pima County Sheriff's Department deputy. Bustamante's thirteen-year-old stepson was riding in the vehicle. Upon noticing that Bustamante's eyes were glossy and his pupils were extremely constricted, the deputy asked Bustamante to get out of his vehicle. The deputy testified that Bustamante was unsteady on his feet. The deputy administered several field sobriety tests, including a horizontal gaze nystagmus test, a modified Romberg balancing test, a finger-to-nose test, and a walk-and-turn test. The officer chose the latter three tests to accommodate Bustamante's spinal injury. The deputy testified that the horizontal gaze nystagmus test did not indicate impairment, but the remaining three tests did. The deputy observed that Bustamante swayed during the balancing test. He never successfully touched the tip of his nose during the finger-to-nose test. He was unsteady and unbalanced during the walk-and-turn test and had to hold his arms out at a ninety-degree angle to maintain balance; and on more than one occasion he demonstrated an inability to follow the deputy's directions, including taking an incorrect number of steps on both legs of the walk-and-turn test. The deputy further testified that the National Highway Traffic Safety Administration (NHTSA) has validated the walk-and-turn test as reliable, but not the Romberg and finger-to-nose tests. Upon receiving his Miranda warnings, Bustamante confirmed he had taken oxycodone.
¶3 A blood sample showed more than 250 nanograms per milliliter (ng/ml) of oxycodone and approximately 6.7 ng/ml of oxymorphone, a metabolite of oxycodone, in Bustamante's blood. The technician who analyzed Bustamante's sample testified that the machine was only calibrated to read amounts up to 250 ng/ml for testing purposes and that a therapeutic range of oxycodone would typically show a blood concentration between five and fifty ng/ml of oxycodone.
¶4 At trial, Bustamante introduced as evidence his prescription for 120 doses of oxycodone tablets. Bustamante testified that he was taking the medication for pain management following his spinal injury, that he followed his doctor's instructions, that he did not feel impaired, and that his difficulty with the field sobriety tests stemmed from his injury and injury-related pain. He further testified on cross-examination that the deputy required him to stand on one leg, although the deputy testified that he did not require this test because of Bustamante's back pain.
¶5 The jury convicted Bustamante of all four counts of aggravated DUI.
Discussion
¶6 Bustamante argues, first, that the state failed to prove he was impaired to the slightest degree, as necessary to satisfy A.R.S. § 28-1381(A)(1). He asserts the state failed to prove his impairment because: (1) two of the four tests the deputy performed are not NHTSA-validated and thus are not sufficient to prove impairment; (2) the deputy did not perform a complete twelve-step drug-impairment investigation; (3) the deputy's observations of Bustamante's symptoms were not uniformly consistent with the symptoms typical of the medication he was taking; and (4) the state's expert could not definitively testify Bustamante was impaired based on the blood analysis. Second, Bustamante argues the state failed to rebut his affirmative defense, brought pursuant to § 28-1381(D), to the charges brought under § 28-1381(A)(3), specifically that he used the prescription medication in accordance with his physician's instructions. Accordingly, Bustamante argues the state failed to present sufficient evidence to support his convictions.
¶7 We review de novo whether the evidence at trial was sufficient to support Bustamante's conviction. State v. West, 226 Ariz. 559, ¶ 15 (2011). "We review the sufficiency of evidence presented at trial only to determine if substantial evidence exists to support the jury verdict." State v. Stroud, 209 Ariz. 410, ¶ 6 (2005). "Substantial evidence is more than a mere scintilla and is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125 Ariz. 417, 419 (1980)). "The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Sufficiency of the Evidence to Prove Bustamante's Impairment
¶8 To show a defendant was impaired to the slightest degree to sustain a conviction under § 28-1381(A)(1), the state must prove the defendant was, in fact, impaired while driving or in control of the vehicle. See Ishak v. McClennen, 241 Ariz. 364, ¶ 12 (2016) (jury's acquittal on § 28-1381(A)(1) charge indicated state had not proven beyond a reasonable doubt defendant was impaired to slightest degree).
¶9 The state presented abundant evidence to support that charge. That evidence included: (1) Bustamante's unsteadiness upon exiting his vehicle and while performing the walk-and-turn test; (2) his swaying during the modified Romberg balancing test; (3) his inability to maintain his balance without holding his arms to the side during the walk-and-turn test; (4) his inability to touch his finger to his nose after multiple attempts; (5) his failure to take the correct number of steps on both legs of the walk-and-turn test; (6) his inability to follow the deputy's instructions during the tests. Although some of Bustamante's difficulties performing the tests might be explained by his recent spinal injury, it is the jury's role to weigh such explanations. And some of the evidence presented would be unaffected by his spinal injury. At a minimum, a reasonable jury could conclude that he was unsteady, could not remember instructions, and could not reliably touch his finger to his nose, and that, together, this evidence was sufficient to prove Bustamante's impairment beyond a reasonable doubt.
Bustamante also argues the results of the field sobriety tests were unreliable because two of the four tests were not validated by the NHTSA. However, that argument addresses the weight rather than the admissibility or sufficiency of the test evidence. --------
The State's Burden with Respect to Bustamante's Affirmative Defense
¶10 We agree with the state that Bustamante bore the burden of proving his affirmative defense and that the state was not required to rebut his assertion that he took the medication in accordance with his physician's instructions. As with most affirmative defenses, § 28-1381(D) "requir[es] a defendant to prove by a preponderance of the evidence that he or she did not abuse prescription drugs." State v. Bayardi, 230 Ariz. 195, ¶ 11 (App. 2012); see also A.R.S. § 13-205(A) ("Except as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the evidence.").
¶11 Although Bustamante entered into evidence his prescription for oxycodone and testified that he was taking it in accordance with his physician's instructions, he presented no further evidence to support that assertion. For example, Bustamante offered neither sworn testimony nor an unsworn statement from a physician or medical practitioner authorized to prescribe oxycodone to support his claim.
¶12 The jury was entitled to weigh the credibility of Bustamante's claims against the other evidence in the case. That evidence did not compel a reasonable jury to accept his assertion that he took the medication in conformity with his prescription. Indeed, the quantity of oxycodone in Bustamante's blood suggested otherwise. The jury heard and weighed Bustamante's evidence and rejected his affirmative defense by finding him guilty of violating § 28-1381(A)(3). We find no error in that conclusion.
Disposition
¶13 For the foregoing reasons, we affirm Bustamante's convictions.