Opinion
2 CA-CR 2023-0065
02-27-2024
The State of Arizona, Appellee, v. Michael Anthony Henry Jr., Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee. Rosemary Gordon Panuco, Tucson Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR201702477 The Honorable Patrick K. Gard, Judge.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Amy M. Thorson, Assistant Attorney General, Tucson Counsel for Appellee.
Rosemary Gordon Panuco, Tucson Counsel for Appellant.
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE.
¶1 Michael Henry appeals from his convictions for aggravated driving under the influence (DUI). For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 The material facts are undisputed. Early one morning in 2017, an officer with the Florence Police Department witnessed a car attempting to make a U-turn down a narrow street in front of a bar. As the car backed up, it struck another vehicle that was parked on the side of the road. Police identified Henry as the driver of the car, which contained open containers of alcohol. Henry's eyes were bloodshot and watery, and he had a moderate odor of alcohol on his breath. Field sobriety testing revealed multiple cues of impairment.
¶3 Henry admitted to having consumed alcohol in the bar, to driving, to hitting the other vehicle, and that his license was suspended. He consented to a blood draw, which occurred less than two hours after the collision. Testing revealed a blood alcohol concentration (BAC) of .152. Henry had never been issued an Arizona driver license, and his privilege to drive in Arizona had indeed been suspended.
¶4 The state charged Henry with aggravated DUI while impaired to the slightest degree, A.R.S. § 28-1381(A)(1), and aggravated DUI with a BAC of .08 or more within two hours of driving, § 28-1381(A)(2), both while his license or privilege to drive was suspended or revoked, A.R.S. § 28-1383(A)(1). In June 2019, after a two-day trial at which Henry did not appear, a jury found him guilty as charged. In aggravation, the jury further found that Henry had been on community supervision when he committed the crimes. The trial court issued a warrant for his arrest.
¶5 In July 2022, over three years later, the warrant was executed. In February 2023, the trial court sentenced Henry to two concurrent terms of ten years in prison. This appeal followed.
Jurisdiction
¶6 The parties agree that we have jurisdiction over this appeal. However, because we have no authority to entertain an appeal over which we lack jurisdiction, we have an independent obligation to determine whether this appeal is properly before us. State v. Nunn, 250 Ariz. 366, ¶ 4 (App. 2020).
¶7 Pursuant to A.R.S. § 13-4033(C), a criminal defendant is barred from appealing a conviction "if the defendant's absence prevent[ed] sentencing from occurring within ninety days after conviction and the defendant fail[ed] to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary." However, our supreme court has concluded this statute is enforceable to abrogate the constitutional right to appeal only if the state has shown that a defendant "was notified that delaying sentencing by absconding for more than ninety days could result in a waiver of the right to appeal." State v. Brearcliffe, 254 Ariz. 579, ¶ 16 (2023). Here, the state concedes it cannot make this showing "because the trial court did not give Henry adequate notice" during any of his pretrial appearances. See Nunn, 250 Ariz. 366, ¶ 8 (finding equivalent warnings inadequate due to absence of language regarding consequences for delay of sentencing).
¶8 Because Henry was not adequately warned that his voluntary absence would waive his right to appeal if it delayed sentencing by more than ninety days, he did not knowingly and intelligently waive his right to appeal. See Brearcliffe, 254 Ariz. 579, ¶ 16. We therefore have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶9 On the first day of trial, the police officer who had watched the collision testified. He identified certain photographs as depicting the parked vehicle Henry had struck while trying to turn around in the street. The officer confirmed that the images "fairly and accurately show what that parked vehicle looked like" on the date of the incident. Henry objected to their admission on foundation grounds. The trial court overruled the objection. The officer then testified that one of the challenged photographs showed "[t]he damage that occurred" when Henry had backed into the parked vehicle with the car he was driving. However, on prompting by the state, the officer conceded that he did not have a chance to fully inspect the damaged vehicle prior to the collision and that it "is possible that perhaps that damage was there before [Henry] backed into it." The officer then testified that the damage in the challenged photographs was consistent with the crash he had observed.
¶10 On appeal, Henry contends the trial court abused its discretion in admitting the challenged photographs over his objection. He argues that insufficient foundation was laid for their admission because the state offered no evidence that Henry had caused the damage to the parked vehicle.
¶11 "Trial courts have great discretion in the admission of photographs." State v. Clark, 126 Ariz. 428, 433 (1980). We will not disturb a decision to admit a photograph, including the determination of adequate foundation, absent an abuse of that discretion. State v. Morris, 215 Ariz. 324, ¶ 69 (2007); State v. McCray, 218 Ariz. 252, ¶ 8 (2008).
¶12 Our rules for authenticating and identifying a particular piece of evidence require its proponent to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Ariz. R. Evid. 901(a). This requirement can be satisfied through the testimony of a "witness with knowledge" that the "item is what it is claimed to be." Ariz. R. Evid. 901(b)(1). When the item is a photograph, foundation can be established by a witness "testifying that it fairly and accurately depicts events perceived by the witness." State v. Steinle, 239 Ariz. 415, ¶ 26 (2016).
¶13 That is precisely what occurred here. An officer who was present at the scene confirmed that the photographs "fairly and accurately" depicted the parked vehicle on the date of the incident. He further testified that the damage they showed was consistent with the crash he had witnessed. The trial court correctly concluded that this testimony satisfied the requirements of the rule for authenticating evidence. See id.; see also Lohmeier v. Hammer, 214 Ariz. 57, ¶¶ 8-11 (App. 2006). Henry correctly observes, as the officer conceded, that the damage depicted in the photographs may have preexisted the collision. But this qualifies the weight of the evidence, not its admissibility. Cf. State v. Lacy, 187 Ariz. 340, 349 (1996) (lack of positive identification of shoeprints shown in photographs "goes to the weight of evidence, not its admissibility"). Thus, the court did not abuse its discretion in admitting the challenged photographs into evidence.
¶14 Moreover, any theoretical error in admitting the photographs was harmless. Neither of the aggravated DUI charges required the state to prove that Henry had damaged the parked vehicle. Rather, the charges turned on whether Henry had driven a vehicle while impaired to the slightest degree or with a BAC of at least .08 while his license or privilege to drive was suspended. See §§ 28-1381(A)(1), (2), 28-1383(A)(1). The state presented overwhelming evidence on all of those elements. To the extent the jury concluded Henry had caused the damage to the parked vehicle, that evidence was cumulative to far more persuasive evidence of Henry's impairment to the slightest degree. See State v. Fish, 222 Ariz. 109, ¶ 8 (App. 2009).
Disposition
¶15 For the foregoing reasons, we affirm Henry's convictions and sentences.