Opinion
No. 1 CA-CR 13-0381
06-17-2014
STATE OF ARIZONA, Appellee, v. CALBERT RAY CHEE, Appellant.
White Law Offices, PLLC, Flagstaff By Wendy F. White Counsel for Appellant Arizona Attorney General's Office, Phoenix By Myles A. Braccio Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. P1300CR201200010
The Honorable Cele Hancock, Judge
AFFIRMED
COUNSEL
White Law Offices, PLLC, Flagstaff
By Wendy F. White
Counsel for Appellant
Arizona Attorney General's Office, Phoenix
By Myles A. Braccio
Counsel for Appellee
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Andrew W. Gould joined. PORTLEY, Judge:
¶1 Calbert Ray Chee appeals his conviction for aggravated driving under the influence of alcohol ("DUI"). He argues that the court erred by denying his motion for judgment of acquittal and that there was insufficient evidence to support the jury's guilty verdict. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On the night before New Year's Eve 2011, a police officer stopped to investigate a truck stopped on the side of Glassford Hill Road, north of Prescott, that another officer had seen earlier with its lights on. Inside the truck, the officer discovered Chee, unconscious and sitting in the driver's seat of the vehicle. The officer opened the driver's side door and noted a strong smell of alcohol coming from Chee. When the officer removed Chee from the vehicle, he appeared disoriented and unstable on his feet. Chee was subsequently arrested. Blood-alcohol analysis later confirmed that Chee was intoxicated at the time of his arrest.
¶3 Chee was tried and found guilty of aggravated DUI with a blood-alcohol concentration of 0.20 or greater, a class four felony. He was subsequently sentenced to ten years in prison.
Chee was originally tried and found guilty of three counts of aggravated DUI, however, prior to sentencing, counts two and three were dismissed.
DISCUSSION
¶4 Chee argues that the superior court erred by denying his motion for judgment of acquittal pursuant to Arizona Rule of Criminal Procedure ("Rule") 20 and that the evidence did not support the jury's verdict. Specifically, he challenges the sufficiency of the evidence to demonstrate he was driving or in actual control of the vehicle while intoxicated. He, however, does not dispute that he stipulated at trial that he knew his driver's license was suspended on December 30, 2011.
¶5 We engage in de novo review of the denial of a Rule 20 motion for judgment of acquittal, State v. Cota, 229 Ariz. 136, 149, ¶ 63, 272 P.3d 1027, 1040 (2012), and also whether sufficient evidence exists to support a jury verdict, State v. Snider, 233 Ariz. 243, 245, ¶ 4, 311 P.3d 656, 658 (App. 2013). We will affirm if substantial evidence exists, that 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, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)); accord Snider, 233 Ariz. at 245, ¶ 4, 311 P.3d at 658. Substantial evidence may be demonstrated by either direct or circumstantial evidence. State v. West, 226 Ariz. 559, 562, ¶ 16, 250 P.3d 1188, 1191 (2011). "In determining whether substantial evidence exists, we view the facts in the light most favorable to sustaining the jury verdict and resolve all inferences against [the defendant]." State v. Stroud, 209 Ariz. 410, 412, ¶ 6, 103 P.3d 912, 914 (2005); accord Cota, 229 Ariz. at 149, ¶ 63, 272 P.3d at 1040.
¶6 An individual may be convicted of aggravated DUI, pursuant to Arizona Revised Statutes sections 28-1382(A)(2) and -1383(A)(1), in pertinent part, if within two hours of driving or being in actual control of a vehicle, he or she has an blood-alcohol concentration of 0.20 or greater and was driving while his or her license is suspended. Driving or being in actual control of a vehicle may be demonstrated by circumstantial evidence. State ex rel. O'Neill v. Brown, 182 Ariz. 525, 527, 898 P.2d 474, 476 (1995) ("The law makes no distinction between circumstantial and direct evidence."). Whether an individual was in actual physical control of a vehicle requires "the trier of fact to consider the totality of the circumstances" and to weigh factors such as:
We cite to the current version of all applicable statutes unless revisions material to this decision have since occurred.
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[1] [W]hether the vehicle was running or the ignition was on;State v. Love, 182 Ariz. 324, 326, 897 P.2d 626, 628 (1995).
[2] where the key was located;
[3] where and in what position the driver was found in the vehicle;
[4] whether the person was awake or asleep;
[5] if the vehicle's headlights were on;
[6] where the vehicle was stopped (in the road or legally parked);
[7] whether the driver had voluntarily pulled off the road;
[8] time of day and weather conditions;
[9] if the heater or air conditioner was on;
[10] whether the windows were up or down; and
[11] any explanation of the circumstances advanced by the defense.
¶7 Here, a police officer testified that he observed Chee sitting in the driver's seat of the truck, unconscious, slouched over, and smelling of alcohol, and that although the truck was not running, the gear shift was in drive and the key was in the ignition in the "on" position. The officer also testified that he shook Chee several times before Chee finally regained consciousness and when he subsequently removed Chee from the truck, he appeared disoriented and unstable on his feet. A criminalist then testified that at the time the officer made contact with Chee, his blood-alcohol concentration was between 0.24 and 0.30. Consequently, there was sufficient circumstantial evidence to support a finding that Chee was either driving or in actual control of the vehicle. Accordingly, we find no error in the superior court's denial of the Rule 20 motion or the jury's guilty verdict.
¶8 Chee argues, however, that because the truck was inoperable at the time of his arrest he could not have been in actual control. At trial, the officer testified that he attempted to start the truck, but the battery was dead and the engine would not turn on. Although Arizona previously applied a bright-line test to determine actual control that required proof that the defendant had the "apparent ability to start and move the vehicle," State v. Zavala, 136 Ariz. 356, 359, 666 P.2d 456, 459 (1983) (citation omitted) (internal quotation marks omitted), we have since adopted a totality of the circumstances test, Love, 182 Ariz. at 326-27, 897 P.2d at 628-29. See, e.g., Potter v. Ariz. Dep't of Transp., 204 Ariz. 73, 77, ¶ 14, 59 P.3d 837, 841 (App. 2002). As such, whether a vehicle is inoperable is only one element that the fact-finder may consider when determining whether a defendant was in actual control of a vehicle. Love, 182 Ariz. at 326, 897 P.2d at 628; State v. Dawley, 201 Ariz. 285, 288, ¶ 7, 34 P.3d 394, 397 (App. 2001) ("[W]e question whether the ability to 'start' a vehicle is necessarily dispositive of [actual physical control]"); State v. Larriva, 178 Ariz. 64, 65, 870 P.2d 1160, 1161 (App. 1993) ("[O]perability of the vehicle is only tangentially relevant to the determination of actual physical control."). Accordingly, we find that a jury could infer from the circumstantial evidence presented that Chee was in actual control of the vehicle on Glassford Hill Road.
¶9 Chee also argues that the State failed to present any evidence that he drove the truck while intoxicated. Specifically, Chee argues that there was no evidence presented regarding his blood-alcohol concentration at the time he was alleged to be driving because the criminalist only testified regarding his level of intoxication at the time of his arrest. Because the criminalist testified that Chee's blood-alcohol concentration at the time his arrest was between 0.24 and 0.30, the truck was seen earlier by the side of the road with its lights on, and Chee stipulated that he knew his driver's license was suspended, a jury could infer that Chee drove the truck to the Glassford Hill Road location on a suspended license with a blood-alcohol level of at least 0.20 within the two hours prior to that time. See Larriva, 178 Ariz. at 66-67, 870 P.2d at 1162-63 (Espinosa, J., specially concurring) (noting that DUI may be properly prosecuted under a theory of driving while intoxicated "regardless of whether [a defendant] was in 'actual physical control' of an immobilized vehicle"). Consequently, we find sufficient evidence to support the finding.
CONCLUSION
¶10 Based on the foregoing, we affirm his conviction and sentence.