Opinion
No. 1 CA-CR 14-0614
05-31-2016
STATE OF ARIZONA, Appellee, v. SIDNEY DONNELL MCFADDEN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Terry M. Crist Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Tennie B. Martin Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2013-433413-001
The Honorable Brian Kaiser, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Terry M. Crist
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Tennie B. Martin
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Maurice Portley joined.
GEMMILL, Judge:
¶1 Sidney McFadden appeals his convictions for two counts of aggravated driving under the influence of intoxicating liquor or drugs ("DUI"). He claims his convictions were based on the presence of an inactive metabolite in his blood and were therefore not supported by sufficient evidence. Because the State presented sufficient evidence, we affirm.
BACKGROUND
¶2 In November 2012, McFadden drove into the car in front of him after stopping at a traffic light. Officers at the scene conducted field sobriety tests. McFadden showed indicators of impairment in each test. In the horizontal gaze nystagmus ("HGN") test, an officer saw four out of six indicators of impairment. During the walk and turn test, McFadden could not follow instructions, keep his balance, or walk in a straight line. When asked to perform the one-leg stand, McFadden again did not follow instructions, lost his balance, did not hold his foot high enough off the ground, and skipped several numbers when counting. McFadden was argumentative during the entire process and at one point he grabbed an officer's hand and tried to direct the pen used for the HGN test.
¶3 Officers detained McFadden and drew a blood sample from him almost two hours after the collision. The blood was found to contain benzoylecgonine ("B.E."), a metabolite of cocaine. Brandon Nabozny, a toxicologist for the Arizona Department of Public Safety Crime Lab, testified that although cocaine itself has an effect on the human body, B.E. does not. The presence of B.E. merely indicates that cocaine was recently in the system. According to Nabozny, cocaine is a fast metabolizing drug that converts to B.E. quickly.
¶4 The State indicted McFadden on two counts of aggravated DUI. The case proceeded to trial and, after the close of the State's case, McFadden unsuccessfully moved for a judgment of acquittal, claiming the State had not presented sufficient evidence to support a conviction. After the close of the evidence, the jury found McFadden guilty on both counts. After considering his four prior felony convictions, the court sentenced McFadden to mitigated concurrent prison terms of nine years for each count, with appropriate presentence incarceration credit. McFadden appeals, and we have jurisdiction in accordance with Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031 and 13-4033.
ANALYSIS
¶5 We will uphold a jury's verdict if substantial evidence supports it. State v. Rivera, 226 Ariz. 325, 327, ¶ 3 (App. 2011); accord Ariz. R. Crim. P. 20(a). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996). That evidence may be direct or circumstantial. State v. Henry, 205 Ariz. 229, 232, ¶ 11 (App. 2003). And in reviewing the evidence, we draw all reasonable inferences that support the verdict. State v. Fulminante, 193 Ariz. 485, 494, ¶ 27 (1999).
¶6 McFadden contends that under State ex rel. Montgomery v. Harris, 234 Ariz. 343 (2014), he cannot be convicted for DUI based solely on the existence of a non-impairing metabolite in his system. He further contends the State misled the jury into believing B.E. had the same impairing effects as cocaine.
I. Driving with a Drug or Its Metabolite in a Person's Body
¶7 "It is unlawful for a person to drive or be in actual physical control of a vehicle in this state . . . [w]hile there is any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person's body." A.R.S. § 28-1381(A)(3). Cocaine is a narcotic drug defined in A.R.S. § 13-3401. See 13-3401(5) & (20)(z). Montgomery, however, interpreted the term "metabolite" in § 28-1381(A)(3) to include only "a proscribed substance's metabolites that are capable of causing impairment." 234 Ariz. at 347, ¶ 24. Therefore, the mere existence of a non-impairing metabolite is not sufficient to prove a violation under A.R.S. § 28-1381(A)(3).
¶8 In this case, however, the State introduced more than the mere presence of B.E. as evidence of cocaine in McFadden's system. The presence of B.E. in a person's system indicates that there was recently cocaine in that person's system, and although B.E. itself apparently does not affect the human body, cocaine does. Nabozny testified that the effects of cocaine in a person's system included agitation and loss of coordination and motor functions. McFadden was agitated during his interaction with officers and he failed many of the field sobriety tests designed to detect impairment.
¶9 The presence of B.E. in McFadden's system indicated he recently had cocaine in his system. Two hours passed between the accident
and the blood draw, enough time for cocaine to metabolize. His agitation and poor results on field sobriety tests were consistent with the effects of cocaine and were not otherwise explained. Accordingly, reasonable jurors could conclude beyond a reasonable doubt that McFadden had cocaine in his system at the time he was driving his vehicle.
II. Driving While Impaired to the Slightest Degree
¶10 Under A.R.S. § 28-1381(A)(1), it is unlawful for a person to drive a vehicle while under the influence of drugs or alcohol when impaired to the slightest degree. For the reasons already stated, see supra ¶ 8, the evidence supports that McFadden was impaired while driving. But McFadden alleges the State misled the jury during its initial closing argument regarding Nabozny's testimony to make them believe B.E. had an impairing effect, thus improperly proving the impairment element of § 28-1381(A)(1).
¶11 Because McFadden did not object to the argument at the time, we review only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). "Accordingly, [McFadden] bears the burden to establish that (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice." State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citations omitted). To prevail under a fundamental error review, McFadden must show that an error took from him "a right essential to his defense" and was "of such magnitude that the defendant could not possibly have received a fair trial." State v. Hunter, 142 Ariz. 88, 90 (1984).
¶12 During closing argument, the State remarked that "[Nabozny] also testified that the cocaine or B.E., the metabolite, could make people get agitated" and could affect judgment, distance, and time. The State also said "[y]ou heard from Brandon Nabozny, you heard the [effects] of the cocaine and/or its metabolite, B.E." By grouping cocaine and B.E., the State implied that both substances had similar effects on a person, contrary to what expert Nabozny actually testified.
¶13 "We have long recognized that wide latitude is given in closing argument, and that counsel may comment on and argue all inferences which can reasonably be drawn from the evidence adduced at trial." State v. Woods, 141 Ariz. 446, 454 (1984). However, such latitude must be constrained to that which has been introduced in evidence. See State v. Prince, 204 Ariz. 156, 161, ¶ 23 (2003). Here, the State's comments went beyond Nabozny's actual testimony.
¶14 McFadden has not shown, however, that such comments rise to the level of fundamental, prejudicial error. The jury was instructed that the lawyers' arguments were not evidence, and McFadden was free to counter the State's argument by clarifying what Nabozny actually said. See State v. Lynch, 238 Ariz. 84, 96, ¶ 26 (2015) ("When defense counsel can correct the misstatement at trial . . . we are hesitant to find reversible error."), petition for cert. filed, (U.S. Feb. 29, 2016) (No. 15-8366); see also State v. Manuel, 229 Ariz. 1, 6, ¶ 25 (2011) (the supreme court presumes juries follow their instructions). Also, substantial evidence supports that McFadden was impaired, and according to Nabozny, cocaine would cause impairment but B.E., by itself, would not.
¶15 Based on the record and jury instructions, the State's argument, although incorrect, did not rise to the level of reversible error. See State v. Lamar, 205 Ariz. 431, 441-2, ¶ 54 (2003) (proper jury instructions regarding closing arguments may cure inappropriate comments); State v. Hernandez, 170 Ariz. 301, 308 (App. 1991) ("closing arguments and the jury instructions must be considered together in determining whether the prosecutor's statements constituted fundamental error.").
CONCLUSION
¶16 Because substantial evidence supports the verdicts and no reversible error occurred, we affirm the convictions and sentences.