No. 2 CA-CR 2016-0327
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Pánuco, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pinal County
The Honorable Steven J. Fuller, Judge
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court. --------
¶1 Benny Roseman appeals from his convictions and sentences for one count of criminal damage and one count of driving under the influence of an intoxicant ("DUI"), raising multiple claims of error. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In September 2013, Officer C.C. of the Maricopa Police Department responded to a single-vehicle collision in which a sport utility vehicle knocked over a thirty-foot-tall tree. The officer encountered the driver, Roseman, and a passenger, D.M., Roseman's wife. Roseman explained that he had blacked out while driving. The officer observed the odor of alcohol coming from Roseman and, when the officer asked him whether he had anything to drink, Roseman said he had consumed "half a can of a Mexican drink." The officer also discovered an open water bottle containing vodka in an armrest cup holder. D.M. told the officer the beverage was hers and insisted Roseman had not been drinking from it. Officer C.C. arrested Roseman on suspicion of DUI. At the police station, Roseman submitted to a blood test that returned positive for the presence of tetrahydrocannabinol ("THC"), a psychoactive chemical found in marijuana.
¶3 Following trial, the jury found Roseman guilty of criminal damage and DUI. The trial court suspended the imposition of sentence and imposed a three-year term of probation. Roseman timely appealed. We have jurisdiction. A.R.S. §§ 13-4031, 13-4033.
¶4 Roseman first argues that the trial court erred by denying his motion to suppress because Officer C.C. did not have probable cause to arrest him for DUI. "Whether an illegal arrest occurred is a mixed question of fact and law . . . ." State v. Boteo-Flores, 230 Ariz. 105, ¶ 11, 280 P.3d 1239, 1241 (2012), quoting State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996). We review factual findings for an abuse of discretion, but review Fourth Amendment determinations de novo. State v. Gilstrap, 235 Ariz. 296, ¶ 6, 332 P.3d 43, 44 (2014).
¶5 An officer has probable cause to arrest "when reasonably trustworthy information and circumstance would lead a person of reasonable caution to believe that a suspect has committed an offense." State v. Hoskins, 199 Ariz. 127, ¶ 30, 14 P.3d 997, 1007-08 (2000). In the DUI context, an officer need not show the driver was factually under the influence, "[o]nly the probability" of impairment. State v. Moran, 232 Ariz. 528, ¶ 10, 307 P.3d 95, 99 (App. 2013), quoting State v. Aleman, 210 Ariz. 232, ¶ 15, 109 P.3d 571, 576 (App. 2005) (alteration in Moran). Such probabilities "are not technical," but "are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id., quoting State v. Dixon, 153 Ariz. 151, 153, 735 P.2d 761, 763 (1987).
¶6 At the hearing on the motion to suppress, Officer C.C. testified he decided to arrest Roseman based on the bad driving implied by the accident, the odor of alcohol emanating from Roseman, and his admission to consuming "half a can of a Mexican drink" in response to a question about whether he had been drinking. See State v. Peltz, 242 Ariz. 23, ¶ 35, 391 P.3d 1215, 1224 (App. 2017) (single vehicle crash, odor of intoxicating beverage, and admission of drinking support determination of probable cause for DUI). Taken together, these facts indicate a more than reasonable probability that Roseman had been driving while impaired by an intoxicant to the slightest degree. See Moran, 232 Ariz. 528, ¶ 10, 307 P.3d at 99.
¶7 Roseman points to a number of facts that weigh against a finding of intoxication, including the lack of field sobriety tests, a horizontal gaze nystagmus test, or a preliminary breath test; a lack of symptoms of intoxication such as watery eyes and slurred speech; and his explanation for the odor of alcohol. However, an officer may develop probable cause from the totality of the circumstances. See State v. Lawson, 144 Ariz. 547, 553, 698 P.2d 1266, 1272 (1985). Therefore, the fact that contradictory evidence existed is not dispositive. See State v. Crowley, 202 Ariz. 80, ¶ 26, 41 P.3d 618, 627 (App. 2002) (noting "probable cause . . . not negated by fact there may be innocent explanation"). Thus, we cannot say that the trial court erred in denying Roseman's motion to suppress.
Sufficiency of the Evidence
¶8 Roseman next contends the trial court erred by denying his motion for judgment of acquittal, made pursuant to Rule 20, Ariz. R. Crim. P., challenging the sufficiency of the evidence as to both counts. Sufficiency of the evidence is a question of law we review de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). We will not reverse a conviction if it is supported by substantial evidence, that is, evidence "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id., quoting Mathers, 165 Ariz. at 67, 796 P.2d at 869. In making this determination, we consider both direct and circumstantial evidence. Id. If reasonable minds may differ, "the case must be submitted to the jury." Id. ¶ 18, quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).
¶9 Roseman first asserts that no evidence demonstrated he had acted recklessly leading up to the collision. See A.R.S. §§ 13-105(10)(c), 13-1602(A)(1). "A person commits criminal damage by . . . [r]ecklessly . . . damaging property of another person." A.R.S. § 13-1602(A)(1). "'Recklessly' means . . . a person is aware of and consciously disregards a substantial and unjustifiable risk" and "the risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." A.R.S. § 13-105(10)(c). Recklessness is ordinarily "ascertained by inference from all relevant surrounding circumstances." In re William G., 192 Ariz. 208, 213, 963 P.2d 287, 292 (App. 1997).
¶10 Roseman asserts the state produced no evidence that he had "disregarded a risk of having an accident," "that the road was hazardous," or that disregard of either risk was a gross deviation. Instead, Roseman urges he drove in, at most, a civilly negligent manner because there was no alcohol in his system and no admissible evidence could correlate the amount of THC in his system to impairment.
¶11 However, we need not decide whether driving with the level of THC found in Roseman's blood constituted recklessness. Officer C.C., based on his training, experience, and observations at the scene—including the length of the skid marks and the extensive damage to both the tree and the vehicle—testified that Roseman had been driving sixty to sixty-five miles per hour in a residential area with a posted speed limit of twenty-five miles per hour. A jury could determine that such conduct was reckless. See State v. Chekmizoff, 82 Ariz. 176, 179-80, 309 P.2d 796, 798 (1957) ("reckless driving is to be determined from all the surrounding circumstances"); Fraser v. State, 589 S.E.2d 329, 330 (Ga. Ct. App. 2003) ("speeding, unaccompanied by other traffic violations, can form the basis for a reckless driving conviction if the state presents evidence 'that a defendant was driving at an excessive rate of speed given the posted speed limit and the driving conditions'"), quoting Klaub v. State, 564 S.E.2d 471, 474 (Ga. Ct. App. 2002); Norfolk v. State, 360 P.2d 605, 609 (Wyo. 1961) (jury instruction that "mere speed" could support conviction for reckless driving, in some circumstances, not misleading).
¶12 Viewing the evidence in the light most favorable to upholding the verdict, the state produced sufficient evidence by which a rational trier of fact could have found beyond a reasonable doubt that Roseman recklessly damaged the property of another. See West, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191. Thus, we cannot say that the trial court erred by denying Roseman's Rule 20 motion as to the criminal damage count and submitting the matter to the jury. See id. ¶ 18.
Impaired to the Slightest Degree
¶13 Roseman next argues the evidence did not show he was either under the influence of an intoxicating substance or that he was impaired to the slightest degree. See A.R.S. § 28-1381(A)(1). Section 28-1381(A)(1) states, "[i]t is unlawful for a person to drive . . . [w]hile under the influence of . . . any drug . . . if the person is impaired to the slightest degree." Roseman contends the state presented no evidence to establish that a blood-THC concentration of three nanograms per milliliter was sufficient to impair his driving. See State v. Gallow, 185 Ariz. 219, 221, 914 P.2d 1311, 1313 (App. 1995) (although concentration of intoxicant in blood is probative evidence, jury must still find defendant was "impaired to slightest degree"), quoting former A.R.S. § 28-692(A)(1), predecessor to A.R.S. § 28-1381(A)(1).
¶14 Here, substantial evidence supported the verdict. The state's expert, a forensic scientist, testified that Roseman's blood contained three nanograms of THC per milliliter, and that THC is "psychoactive," meaning "it affects [one's] cognitive . . . and . . . psychomotor skills," altering response time, balance, perception of distances, decision-making, driving skills, and one's ability to manage divided-attention tasks. The scientist also testified that within three to five hours of use, blood-THC levels would abate "quickly below . . . 2.0" nanograms per milliliter, the lower limit below which the lab does not report. Moreover, Roseman lost control of his vehicle and crashed into a stationary object. See Peltz, 242 Ariz. 23, ¶ 35, 391 P.3d at 1224 (single-vehicle collision probative of impairment). Whether and how much to credit the scientist's testimony and whether the THC in Roseman's system was the cause of his poor driving were matters for the jury to determine, and we will not disturb its decision in light of the substantial evidence supporting its verdict. See State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995).
¶15 As Roseman notes, certain evidence tended to show that he was not impaired. Roseman relies on the testimony of a second officer, J.P., who attempted to administer the breath test. Officer J.P. testified he did not note any signs of impairment in his report regarding the incident. Roseman also points out he prevented the vehicle from either rolling over or hitting a nearby wall. But it is the jury's role to weigh the evidence and resolve any conflicts therein. State v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App. 2004). Here, reasonable minds can differ about whether the evidence produced at trial proved beyond a reasonable doubt that Roseman had been impaired to the slightest degree, and therefore, sufficient evidence supported the jury's verdict. West, 226 Ariz. 559, ¶ 18, 250 P.3d at 1192. Accordingly, we cannot say that the trial court erred by denying Roseman's Rule 20 motion regarding the DUI charge.
¶16 Finally, Roseman contends the trial court erred when it denied his motion for a mistrial after the forensic scientist improperly correlated the amount of THC in his blood with impairment. "We review the denial of a mistrial motion for an abuse of discretion." State v. Miller, 234 Ariz. 31, ¶ 23, 316 P.3d 1219, 1228 (2013). In our review, we generally defer to the trial court's discretionary determination "because the trial judge is in the best position to assess the impact of a witness's statements on the jury." State v. Dann, 205 Ariz. 557, ¶ 43, 74 P.3d 231, 244 (2003).
¶17 "A declaration of a mistrial . . . is 'the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted.'" Id., quoting State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). In determining whether to grant a mistrial, courts consider "(1) whether the jury has heard what it should not hear, and (2) the probability that what it heard influenced [it]." Miller, 234 Ariz. 31, ¶ 25, 316 P.3d at 1228, quoting State v. Laird, 186 Ariz. 203, 207, 920 P.2d 769, 773 (1996) (alteration in Miller).
¶18 Here, the trial court had precluded the scientist from numerically correlating Roseman's blood-THC concentration with a general standard of impairment and ruled that any such testimony would be stricken. Nevertheless, after testifying on direct examination that she had found three nanograms per milliliter of THC in Roseman's blood, the scientist testified on re-direct that a particular "impaired person"—the subject of a single study—"ha[d] . . . 1.6 THC nanogram[s] per milliliter" in his blood. Roseman immediately objected and moved for a mistrial. The court struck the testimony, but denied Roseman's motion. The court also instructed the jury that it should disregard the testimony "regarding levels of THC or a level of THC and impairment," and that the issue of impairment was to be decided by them and them alone.
¶19 Undoubtedly, the testimony correlating blood-THC concentration with impairment violated the court's order and the jury should not have heard it. We must therefore determine whether that improper testimony influenced the jury's decision notwithstanding the trial court's instruction to disregard it. On the facts here, this is a close and difficult question. We presume that juries follow instructions. Dann, 205 Ariz. 557, ¶ 48, 74 P.3d at 245. However, in rare cases, limiting instructions may be ineffective. See, e.g., State v. Woodward, 21 Ariz. App. 133, 135, 516 P.2d 589, 591 (1973) ("[W]e are all aware of the difficulty and futility of attempting to erase improper statements from a juror's mind by presenting an objection with a motion to strike."); State v. Hunt, 2 Ariz. App. 6, 15, 406 P.2d 208, 217 (1965) ("highly questionable" whether jurors could "completely expunge" entire, prejudicial testimony of two witnesses and portions of two others related to counts dismissed during trial).
¶20 Here, jurors might have used the improper evidence to infer Roseman had been impaired based solely on his blood-THC concentration—a concentration nearly double the level present in the impaired subject of a referenced study. But, this isolated statement did not so pervade the state's theory and evidence that jurors would have had difficulty restricting deliberations exclusively to properly admitted evidence. See Hunt, 2 Ariz. App. at 15, 406 P.2d at 217. Further, because there is no indication the state called attention to the improper testimony, we have no reason to think the jury had difficulty following the court's instruction to disregard it. Cf. State v. Lopez, 157 Ariz. 23, 26, 754 P.2d 352, 355 (App. 1988).
¶21 We emphasize that because the expert's testimony struck at the jugular of the defendant's theory of the case, the state's evidence of impairment by THC was not overwhelming, defense counsel had properly moved to preclude that testimony in advance of trial, and the trial court had precluded it, the court would have acted well within its discretion if it had instead granted a mistrial. Nevertheless, because the trial court is in the best position to observe the jury and discern the impact improper testimony may have had, we defer to its determination that the violation did not rise to the level of a mistrial. See Dann, 205 Ariz. 557, ¶ 43, 74 P.3d at 244. Thus, we cannot say the trial court abused its discretion by denying Roseman's motion for a mistrial.
¶22 For the foregoing reasons, we affirm Roseman's convictions and sentences.