Opinion
No. 2 CA-CR 2013-0297
03-25-2014
THE STATE OF ARIZONA, Appellee, v. JOSE NATALIO JASSO, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Isabel G. Garcia, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20120463001
The Honorable Howard Hantman, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Jose Jasso appeals his convictions and sentences for two counts each of aggravated driving under the influence of alcohol while impaired to the slightest degree and aggravated driving with a blood alcohol content of 0.08 or greater, based on the presence of two minors in his vehicle. He argues that two of the charges were impermissibly multiplicitous because they related to only one act of driving, despite the presence of two minors in the vehicle. For the following reasons, we affirm Jasso's convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Jasso's convictions and sentences. State v. Ramsey, 211 Ariz. 529, ¶ 2, 124 P.3d 756, 759 (App. 2005). Jasso was arrested in January 2012 for driving under the influence of intoxicating liquor with two minor children in his vehicle. Following a jury trial, he was convicted of four counts of aggravated driving, all class six felonies. The trial court suspended the imposition of sentence on all counts and placed Jasso on concurrent three-year terms of probation. Jasso timely appealed from the judgment and sentence.
Discussion
¶3 Jasso argues the trial court erred by denying his motion to dismiss two of the four charges against him as multiplicitous. He claims he committed a single act of driving under the influence, despite the presence of the two minors in the car. He argues that while the presence of any number of minors is sufficient to aggravate the offense of driving while intoxicated, the number of minors in the car was irrelevant to the number of offenses committed through one act of driving. He thus urges he should have been charged with only one count of driving under the influence while impaired to the slightest degree and one count of driving with a blood alcohol content of 0.08 or greater and requests that this court dismiss the other two counts.
¶4 An objection to an indictment must be raised at least twenty days before trial. Ariz. R. Crim. P. 13.5(e), 16.1(b); see also State v. Anderson, 210 Ariz. 327, ¶¶ 16-17, 111 P.3d 369, 377-78 (2005) (defendant precluded from challenging indictment as duplicitous where objection made during and not before trial). This rule allows the state to correct any alleged defect in the indictment before trial begins. Id. ¶ 17; see also State v. Rushton, 172 Ariz. 454, 455-56, 837 P.2d 1189, 1190-91 (App. 1992). Jasso failed to object to the indictment prior to trial, waiting instead until the close of evidence to note that although "it seem[ed] late" to raise the issue, he should have been charged differently. He has thus forfeited any objection to the indictment absent fundamental error. State v. Paredes-Solano, 223 Ariz. 284, ¶ 6, 222 P.3d 900, 903 (App. 2009); see also State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005).
¶5 Fundamental error is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial." State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. Jasso, however, has failed to allege fundamental, prejudicial error, nor has he provided any argument thereon. He therefore has waived the issue on appeal. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see also State v. Musgrove, 223 Ariz. 164, ¶ 4, 221 P.3d 43, 45 (App. 2009).
Jasso alleges in his reply brief that multiplicitous convictions constitute fundamental error, but arguments "raised for the first time in a reply brief . . . are waived" and we do not consider them. See State v. Brown, 233 Ariz. 153, ¶ 28, 310 P.3d 29, 39 (App. 2013); Ariz. R. Crim. P. 31.13(c)(3) ("reply brief shall be confined to a response to questions of law or fact raised by the appellee's brief").
Although we will not ignore fundamental error when we see it, we generally exercise our discretion to remedy waived errors when fundamental error is evident. E.g., State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (vacating illegal sentence imposed under inapplicable sentencing statute). While multiplicitous convictions potentially could amount to fundamental error by violating constitutional principles of double jeopardy, see State v. Nereim, 317 P.3d 646, 652-53 (App. 2014), the question whether DUI convictions such as Jasso's are multiplicitous has not been established, and we cannot conclude fundamental error is apparent without further inquiry.
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¶6 Jasso argues for the first time in his reply brief that the state waived its objection to the untimeliness of his challenge to the indictment. He claims that because the state did not raise this objection in response to his motion at trial, it cannot now claim on appeal that his motion is barred as untimely. But Jasso fundamentally misstates the law. He relies on case law that requires a party to "state distinctly the matter [to] which he objects and the grounds of his objection" in order to preserve an issue for appeal. E.g., State v. Baca, 102 Ariz. 83, 87, 425 P.2d 108, 112 (1967). But it is Jasso, as the party who is appealing the trial court's ruling, who is charged with preserving the issue, not the state. Further, Jasso has provided no authority suggesting Rule 16.1(b) requires the state to object to a defendant's argument in order for the rule to have preclusive effect. Thus even were this argument not waived, see Brown, 233 Ariz. 153, ¶ 28, 310 P.3d at 39, it is without merit.
Disposition
¶7 For the foregoing reasons, Jasso's convictions and sentences are affirmed.