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State v. Dunbar

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-CR 13-0625 (Ariz. Ct. App. Jun. 26, 2014)

Opinion

No. 1 CA-CR 13-0625

06-26-2014

STATE OF ARIZONA, Appellee, v. JACOB JEROME DUNBAR, Appellant.

Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Louise Stark Counsel for Appellant


NOTICE: NOT FOR PUBLICATION.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 Maricopa County

No. CR 2012-111170-002

The Honorable Jerry Bernstein, Judge Pro Tempore


AFFIRMED


COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Louise Stark
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Maurice Portley joined. KESSLER, Judge:

¶1 Jacob Jerome Dunbar ("Dunbar") appeals from his conviction of aggravated DUI under a suspended license with a blood alcohol content ("BAC") of .08 or more. Dunbar filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Counsel requests that this Court search the record for fundamental error.

¶2 In the Anders brief, Dunbar raised the following concerns: (1) continuance of a scheduled pre-trial hearing to allow the State's witness to be present when the officer was on vacation; (2) admission of a blood test result when blood was drawn more than two hours after driving, and a retrograde calculation to a time within two hours was admitted at trial; and (3) admission of evidence of priors despite late disclosure of certified copies of documents and late disclosure of the witness who proved Dunbar's identity. For the reasons that follow, we affirm Dunbar's conviction and sentence.

FACTUAL AND PROCEDURAL HISTORY

¶3 On February 25, 2012, Dunbar was feeling ill, had taken Theraflu, and had slept for two hours the night before. He also "shotgunned" two cans of beer at approximately eight to nine p.m. At approximately 11:30 p.m., Dunbar drove to McDonald's to get food for his children.

Dunbar describes "shotgunning" as poking a hole in the bottom of the drink, opening the top, and then drinking the beverage from the bottom.

¶4 Arizona Department of Public Safety highway patrolman, JG, pulled Dunbar over for making an illegal turn. JG smelled a strong odor of intoxicants coming from the vehicle. JG determined Dunbar's driving privileges were suspended. JG conducted six field sobriety tests. Dunbar failed each test, and JG placed Dunbar under arrest for driving under the influence.

¶5 JG obtained a search warrant to obtain a blood sample after Dunbar stated he was afraid of needles. A phlebotomist completed the blood draw at 2:06 a.m., thirty-two minutes outside the two-hour window immediately following the suspected impaired driving. The lab tested the sample for the BAC at the time it was drawn and the result was .161. The analyst also presented a retrograde analysis to the jury. Those results ranged from .165 to .177.

¶6 Dunbar was indicted by the grand jury for aggravated DUI and aggravated DUI with a BAC over .08. The jury found Dunbar guilty of the latter count. At a separate trial on prior felonies and sentencing, the court found the State met its burden of proving Dunbar's two historical prior felonies. Under the enhanced sentencing statute for repetitive offenders, see Ariz. Rev. Stat. ("A.R.S.") § 13-703(C), (J) (Supp. 2013), Dunbar received a slightly mitigated sentence of seven years, with one year to be served under community supervision, at least one year of using an ignition interlock device, and revocation of driving privileges. Dunbar was also ordered to pay $4,635.50 in fines.

The charges were aggravated DUIs because Dunbar's privilege to drive was suspended. See Ariz. Rev. Stat. ("A.R.S.") §§ 28-1383(A)(1) (Supp. 2013), -1381(A)(1)-(2) (2012). The State Motor Vehicle Division ("MVD") mailed ten notices of Dunbar's suspension of driving privileges to his prior address in Peoria. Dunbar testified he never received any of the MVD notifications.

We cite the current versions of the applicable statutes when no revisions material to this decision have since occurred.

¶7 Dunbar timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).

DISCUSSION

¶8 In an Anders appeal, this Court must review the entire record for fundamental error. Error is fundamental when it affects the foundation of the case, deprives the defendant of a right essential to his defense, or is an error of such magnitude that the defendant could not possibly have had a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To obtain a reversal, the defendant must also demonstrate that the error caused prejudice. Id. at ¶ 20.

¶9 After careful review of the record, we find no meritorious grounds for reversal of Dunbar's conviction or modification of the sentence imposed. The evidence supports the verdict, the sentence imposed was within the sentencing limits, the proceedings were held in accordance with the Arizona Rules of Criminal Procedure, and Dunbar was represented at all stages of the proceedings below. I. Sufficiency of the Evidence

¶10 In reviewing the sufficiency of evidence at trial, "[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). "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) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)).

¶11 To obtain a DUI conviction, the State must prove the following: (1) the defendant drove or was in actual physical control of a vehicle; (2) the defendant had an alcohol concentration of .08 or more within two hours of driving or being in actual physical control of the vehicle; and (3) the alcohol concentration resulted from alcohol consumed either before or while driving or being in actual physical control of the vehicle. A.R.S. § 28-1381(A)(2). To obtain an aggravated DUI conviction, the State must also prove the defendant's driver's license or privilege to drive was suspended, cancelled, revoked, refused, or restricted at the time the defendant was driving or in actual physical control and the defendant knew or should have known of such fact at the time of the offense. A.R.S. § 28-1383(A)(1); see also State v. Cifelli, 214 Ariz. 524, 527, ¶ 12, 155 P.3d 363, 366 (App. 2007) ("Driving under the influence is a strict liability offense, but aggravated DUI based on a suspended license requires proof that the defendant drove a motor vehicle under the influence of alcohol while his license was suspended, and that he knew or should have known of the suspension.").

¶12 The record supports the conviction. First, Dunbar testified to driving the vehicle on February 25, 2012. As to the second and third elements of the crime, there is evidence that Dunbar had a blood alcohol concentration of .08 or more within two hours of driving as a result of alcohol consumption. Dunbar testified he consumed alcohol prior to driving that evening. While other factors may have influenced Dunbar's results in the field sobriety tests, such as his learning difficulties, his sleep deprivation, his flu symptoms and flu medication, that does not detract from the evidence presented from which the jury could have found that Dunbar had a BAC of .08 as a result of alcohol consumption. Dunbar performed and failed six field sobriety tests. Although the blood sample returning the .161 result was taken thirty-two minutes outside the two hours immediately following driving, the retrograde analysis calculated to within the two-hour window returned a result ranging between .165 and .177.

¶13 As to the fourth and fifth elements, there is sufficient evidence to support the jury's finding that Dunbar knew or should have known his privilege to drive was suspended. The Arizona Motor Vehicle Division ("MVD") mailed ten notices of suspension of privilege to drive to Dunbar at his last address on record. An MVD analyst testified to the accuracy of MVD notices with Dunbar's photograph and a unique customer number associated with his records, which state that Dunbar's privilege to drive was suspended on the date of his arrest.

¶14 Accordingly, we conclude that there is sufficient evidence to support Dunbar's conviction. II. Concerns on Appeal

¶15 Dunbar asked us to address three concerns on appeal. First, he raises whether the court abused its discretion in granting a continuance of a pre-trial hearing on admission of evidence. We find no fundamental error. Granting continuances is "within the sound discretion of the trial judge whose decision will not be disturbed unless there is a clear abuse of discretion, and unless denial of the motion is shown to be prejudicial to the defendant." State v. Jackson, 112 Ariz. 149, 154, 539 P.2d 906, 911 (1975).

¶16 A pretrial evidentiary hearing was initially scheduled on May 10, 2013. On that date, the State moved to continue because its witness, the officer to testify, was on vacation. The officer reported he had not received a subpoena for the hearing. Additionally, the court needed to be evacuated on the date of the evidentiary hearing as a result of a bomb threat. Dunbar was present, and took off from work in order to be present. Dunbar's witness was also present and prepared to testify. Defense agreed to reschedule on May 17, 2013.

¶17 On May 17, the State's witness was present; however, Dunbar's witness was unavailable. The court denied the State's request to continue the entire hearing, and started the hearing on May 17 with the State's witness. On May 22, the hearing continued and the State and Dunbar's witnesses were present. There is no clear abuse of discretion.

¶18 Second, Dunbar questions the trial court's admission of the retrograde analysis. Arizona courts have long recognized that retrograde analysis has achieved general acceptance in the scientific field. Ring v. Taylor, 141 Ariz. 56, 69 n.6, 685 P.2d 121, 134 n.6 (App. 1984), superseded by statute as recognized in State ex rel. Montgomery v. Miller, 234 Ariz. 289, 295 n.3, ¶ 4, 321 P.3d 454, 460 n.3 (App. 2014). "[O]nce a scientific theory, principle, or test is generally accepted in the relevant scientific community, the jury has the task of 'weighing the significance of any errors that may have occurred in applying generally accepted principles to the facts of a particular case.'" Wozniak v. Galati, 200 Ariz. 550, 553-54, ¶ 11, 30 P.3d 131, 134-35 (App. 2001) (quoting State v. Van Adams, 194 Ariz. 408, 419, ¶ 34, 984 P.2d 16, 27 (1999)).

Retrograde analysis is a process used to determine what a blood alcohol rate was at a specified time prior to the taking of the blood sample. State ex rel. Montgomery v. Miller, 234 Ariz. 289, 295, ¶ 5, 321 P.3d 454, 460 (App. 2014).

¶19 Dunbar filed a motion in limine to preclude evidence of Dunbar's BAC at a point later than two hours after driving as not relevant to his BAC at the time of driving and that it would be unfairly prejudicial. The motion specifically states that "[w]ithout relation back testimony, only testimony regarding the presence of alcohol, rather than the specific alcohol level, is admissible." When the court later asked whether Defense was trying to bar the blood test results, Defense stated they were not. The trial court did not err in denying the motion in limine on Dunbar's BAC results. The retrograde analysis avoided any issue as to the BAC outside of the two-hour relevant time period.

The court explicitly asked counsel: "What about the - you're trying to bar the results of the -- the blood test results or just the breath?" to which counsel responded, "[j]ust the breath."

¶20 Third, Dunbar asks us to address whether the court erred in admitting the evidence of prior felonies because the certified copies of documents and the witness who proved Dunbar's identity were untimely disclosed. On November 1, 2012, Dunbar requested the State to disclose the witnesses the State would use to support priors. The State did not respond to that letter nor disclose the witnesses. On December 7, 2012, the State alleged Dunbar's two historical prior felonies. After the conclusion of the jury trial, Dunbar moved to preclude evidence of prior felony convictions pursuant to Arizona Rules of Criminal Procedure 15.6, because the State did not disclose proof of Dunbar's prior convictions until after the jury trial was over.

"Unless otherwise permitted, all disclosure required by this rule shall be completed at least seven days prior to trial." Ariz. R. Crim. P. 15.6(c).
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¶21 The court denied Dunbar's motion. The court reasoned that, although the State's failure to timely disclose was "very bad form," the failure was harmless because the State alleged the priors before the trial on priors. On July 18, the day before the aggravation phase, the State disclosed it would be using a probation officer to prove Dunbar's priors. On July 19, at the aggravation phase, Dunbar unsuccessfully re-urged the preclusion of evidence of the priors for late disclosure. However, Dunbar requested and was granted a continuance until August 9, 2013. On August 9, a probation officer testified to Dunbar's prior felony convictions.

¶22 When a party fails to disclose evidence in compliance with Rule 15, the court may impose "any sanction it finds appropriate." Ariz. R. Crim. P. 15.7(a). "[D]iscovery rules are 'designed to implement, and not to impede, the fair and speedy determination of cases.'" Jimenez v. Chavez, 234 Ariz. 448, 452, ¶ 18, 323 P.3d 731, 735 (App. 2014) (citation omitted). "In reviewing a trial court's choice and imposition of sanctions under Arizona Rule of Criminal Procedure 15.7, we will find an abuse of discretion only when 'no reasonable judge would have reached the same result under the circumstances.'" State v. Naranjo, 234 Ariz. 233, 242, ¶ 29, 321 P.3d 398, 407 (2014) (citing State v. Armstrong, 208 Ariz. 345, 354, ¶ 40, 93 P.3d 1061, 1070 (2004)).

¶23 We find no abuse of discretion. Although the State should have disclosed the evidence it was going to offer for the aggravation phase prior to July 18, the court granted Dunbar almost a month continuance which would have allowed him to prepare for that phase of the trial.

CONCLUSION

¶24 Upon the filing of this decision, counsel shall inform Dunbar of the status of the appeal and his options. Defense counsel has no further obligations, 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). Dunbar shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review.


Summaries of

State v. Dunbar

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-CR 13-0625 (Ariz. Ct. App. Jun. 26, 2014)
Case details for

State v. Dunbar

Case Details

Full title:STATE OF ARIZONA, Appellee, v. JACOB JEROME DUNBAR, Appellant.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 26, 2014

Citations

No. 1 CA-CR 13-0625 (Ariz. Ct. App. Jun. 26, 2014)