Opinion
No. 2 CA-CR 2014-0150
05-28-2015
THE STATE OF ARIZONA, Appellee, v. JUAN ALVARADO CHACON, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20130963001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer concurred. VÁSQUEZ, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 After a jury trial, Juan Chacon was convicted of aggravated driving with an illegal drug in his body while his license was suspended, revoked, or restricted—in violation of A.R.S. § 28-1381(A)(3)—and possession of drug paraphernalia. The trial court sentenced him to mitigated, concurrent terms of imprisonment totaling eight years. On appeal, he argues there was insufficient evidence to support his (A)(3) conviction; the court erred by denying his motion to continue and his request for a Daubert hearing; and his due process rights to notice of the charges against him were violated. He also contends that, if this court vacates his (A)(3) conviction, we should vacate his sentence for possession of drug paraphernalia and remand for resentencing on that offense. We affirm.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Chacon's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In February 2013, Pima County Sheriff's Deputy Joel Landry observed Chacon driving slowly in the right lane, almost hitting the right curb, and the vehicle's taillights were not working. After stopping the vehicle, Landry noticed that "the entire front driver's side was damaged and that the wheel was completely deflated as though it had sidewall damage, a puncture." Landry "could also see that there was vegetation, a tree branch in the hood on the driver's side of the car." Landry and another deputy, Alejandro Alcantara, both could smell an odor of intoxicants coming from Chacon. Chacon had difficulty getting out of the vehicle, slurred his speech, and swayed as he stood. Chacon stated he did not have a driver's license and did not have any identification with him.
¶3 Chacon refused to participate in field-sobriety tests and was arrested for driving under the influence of an intoxicant. During a subsequent search, Landry found a cannabis grinder in one of Chacon's pockets. Landry obtained a search warrant for a blood draw, which he completed with Alcantara's assistance. Estuardo Miranda, a criminalist with the Arizona Department of Public Safety (DPS), tested the sample for tetrahydrocannabinol (THC), the psychoactive component of marijuana, and cocaine. Miranda reported that he found Carboxy-Tetrahydrocannabinol (Carboxy-THC), a metabolite of THC. A grand jury indicted Chacon for aggravated driving under the influence of an intoxicant while his license was suspended, revoked, or restricted; aggravated driving with an illegal drug in his body while his license was suspended, revoked, or restricted; and possession of drug paraphernalia.
Landry described the cannabis grinder as something "used to grind marijuana buds into smaller particles for consumption."
Chacon originally was indicted for aggravated driving under the influence of an intoxicant and aggravated driving with an alcohol concentration of .08 or more, both while his license was suspended, revoked, or restricted. However, based on Miranda's report, the case was remanded to the grand jury for a redetermination of probable cause.
¶4 Before trial, Chacon filed a motion to continue, arguing our supreme court's then forthcoming decision in State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), may affect the charges against him and his trial should be continued until the decision was issued. Specifically, Chacon asserted, "If the Arizona Supreme Court holds that carboxy-THC in one's system does not violate [§ 28-1381(A)(3)], that Count of the Indictment against [him] should be dismissed." At a hearing on the motion, the prosecutor argued that "there's [no] legal basis to hold up this trial." Trying to distinguish this case from Harris, the prosecutor continued:
The other thing is that what will come out at trial, I believe, is that the carboxy THC in the defendant's blood was the only drug reported officially by the criminalist, but he did have under the cutoff levels of both the active ingredient THC about one and a half nanograms and also some cocaine, which . . . may come in also.In response, Chacon argued that "evidence of other drugs that are below the cutoff" should not be admitted at trial because "DPS didn't feel comfortable reporting those." After questioning why the conviction could not be vacated later if the case proceeded to trial and if Harris ultimately was decided in Chacon's favor, the trial court denied the motion to continue.
¶5 On the first day of trial, Chacon requested a Daubert hearing to determine "if drug amounts below the cutoff amount and therefore not published . . . in [Miranda's] report" were admissible. The state responded: "The only way Daubert really applies . . . [is] to the retrograde analysis, gas chromatography, mass spectrometer. Those are the things that are used by these criminalists in both drug and alcohol cases so it's without question that they apply under Daubert." The state further distinguished the drugs Miranda had found in Chacon's blood from the cutoff levels, explaining DPS uses the cutoff levels to "verify with lab certainty that the[] amounts are very exact," and the amounts are "all relative," such that the jury was free to reject the evidence.
¶6 When the trial court asked if there was a disclosure issue as to the THC and cocaine results, the prosecutor replied no and Chacon's counsel did not answer. The court denied the request for a Daubert hearing, finding it to be untimely. The court also stated, "I don't know that the issue of drugs found . . . under some cutoff that they don't usually report is a Daubert issue. The question is whether this is scientifically reliable, and I don't see why there's any difference between amounts found under the cutoff versus over the cutoff."
¶7 At trial, Miranda testified that his testing of Chacon's blood revealed the presence of Carboxy-THC, as well as THC and Benzoylecgonine (BE), a metabolite of cocaine. He explained however that the THC and BE were "[n]ot in a reportable quantity." In describing a "reportable quantity," Miranda said DPS has "protocols that indicate what is a minim[um] amount . . . or quantity of [a] specific [substance] that [they] can report." He explained that DPS uses these cutoff levels primarily because "some instruments are more sensitive than others" and they want to "keep it consistent throughout . . . the state."
¶8 At the close of the state's case, Chacon moved for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P. The trial court granted the motion on the charge of aggravated driving under the influence of an intoxicant but denied it as to the other two counts. The jury found Chacon guilty of the remaining counts. As to the (A)(3) conviction, the jury found Carboxy-THC, THC, and BE all were present in Chacon's body at the time of the offense. The court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Sufficiency of the Evidence
¶9 Chacon challenges the sufficiency of the evidence to support his (A)(3) conviction. We review de novo the sufficiency of the evidence to support a conviction. State v. Pena, 235 Ariz. 277, ¶ 5, 331 P.3d 412, 414 (2014). "We will reverse only if no substantial evidence supports the conviction[]." State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013). "Substantial evidence is 'evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.'" State v. Fimbres, 222 Ariz. 293, ¶ 4, 213 P.3d 1020, 1024 (App. 2009), quoting State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 913-14 (2005).
¶10 Section 28-1381(A)(3) provides: "It is unlawful for a person to drive or be in actual physical control of a vehicle . . . [w]hile there is any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person's body." The offense is aggravated if committed "while the person's driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive." A.R.S. § 28-1383(A)(1). Among the drugs listed in § 13-3401 are marijuana, which is defined to include THC, and cocaine. See § 13-3401(4)(b); (5); (19); (20)(w), (z).
¶11 After Chacon initiated this appeal, our supreme court issued its decision in Harris. There, the defendant was charged with violating § 28-1381(A)(3) after a blood test showed the presence of Carboxy-THC. Harris, 234 Ariz. 343, ¶¶ 2-3, 322 P.3d at 160. The defendant moved to dismiss the charge, "arguing that the blood test revealed neither the presence of THC nor 'its [primary] metabolite' Hydroxy-Tetrahydrocannabinol ('Hydroxy-THC')." Id. ¶ 4. The trial court dismissed the charge, and our supreme court upheld the dismissal. Id. ¶¶ 5, 25. The court reasoned that, based on the legislature's purpose in enacting the statute, "the 'metabolite' reference in § 28-1381(A)(3) is limited to any of a proscribed substance's metabolites that are capable of causing impairment." Id. ¶¶ 23-24. The court explained, "Drivers cannot be convicted of the (A)(3) offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana." Id. ¶ 24. It concluded the defendant could not be convicted of violating § 28-1381(A)(3) because Carboxy-THC, the only metabolite found in his blood, does not cause impairment. Id. ¶ 25.
¶12 Chacon asserts that his (A)(3) conviction "cannot be based on either Carboxy-THC or BE in light of Harris, because they are both non-impairing metabolites." We agree. At trial, Miranda testified that a person cannot be impaired by either Carboxy-THC or BE. Because neither Carboxy-THC nor BE can cause impairment, Chacon could not be convicted of the (A)(3) offense based solely on their presence in his blood. See id. ¶ 24.
¶13 Chacon further contends that his (A)(3) conviction cannot be based on the THC found in his blood because "[t]he rationale of Harris compels that an insignificant, trace amount of THC under the cutoff is insufficient to support an (A)(3) conviction." On this point, we disagree.
¶14 In reaching its conclusion in Harris, our supreme court noted that "[t]he (A)(3) charge establishes that a driver who tests positive for any amount of an impairing drug is legally and irrefutably presumed to be under the influence." Id. ¶ 22. The court further explained, "[R]egardless of impairment, [marijuana users] violate (A)(3) if they are discovered with any amount of THC or an impairing metabolite in their body." Id. ¶ 24. Thus, Chacon's (A)(3) conviction could be based on the presence of THC, regardless of the amount.
¶15 Chacon nevertheless asserts this language in Harris is dicta. He points out that, "in Harris, the (A)(3) charge was based solely on Carboxy-THC" and "there was no allegation that the defendant's blood contained any amount of an impairing drug." He therefore reasons that "any discussion in Harris about an (A)(3) charge based on [the mere presence of] an impairing drug was not at issue or briefed in that case" and "need not be followed."
¶16 But, Chacon does not acknowledge that there are two types of dicta, which carry different weight. "[J]udicial dictum is a statement the court expressly uses to guide parties in their future conduct." Alejandro v. Harrison, 223 Ariz. 21, ¶ 12, 219 P.3d 231, 235 (App. 2009). Such dictum therefore is "authoritative." State v. Fahringer, 136 Ariz. 414, 415, 666 P.2d 514, 515 (App. 1983). By contrast, obiter dictum is "a statement of general law made by a court which is unnecessary to its decision and thus not precedential, but merely persuasive." Alejandro, 223 Ariz. 21, ¶ 12, 219 P.3d at 235.
¶17 In Harris, our supreme court differentiated between impairing and non-impairing substances. 234 Ariz. 343, ¶¶ 22-23, 322 P.3d at 164. The court determined that unlike non-impairing metabolites, "the legislature intended to prohibit driving with any amount of an impairing substance resulting from a drug proscribed in § 13-3401 in the body." Id. ¶ 23. And, the court recognized that THC is "the primary substance [in marijuana] that causes impairment." Id. ¶ 16. Thus, the court was providing guidance by explaining that a person violates (A)(3), and can be criminally liable, if any amount of THC is present in the body. See id. ¶ 24. Such language therefore is judicial dicta and binding. See Fahringer, 136 Ariz. at 415, 666 P.2d at 515.
¶18 Moreover, even without guidance from Harris, we would reach the same conclusion. Section 28-1381(A)(3) plainly provides that the offense is committed when "there is any drug" listed in § 13-3401 "in the person's body." It does not require a certain quantity of those drugs.
¶19 Here, Alcantara and Landry both testified they had observed improper driving, the vehicle did not have working taillights, and both deputies smelled the odor of alcohol and observed other symptoms of impairment. Miranda testified that subsequent testing of Chacon's blood revealed the presence of 1.52 nanograms of THC. He also stated that THC in that amount, "in and of itself, can be impairing on the human body" and explained, "Anytime you have THC in the system, it can have an impairment." In addition, the state presented evidence that, on the day of the incident, Chacon's driving privileges were "suspended and revoked." Sufficient evidence therefore supports Chacon's (A)(3) conviction. See Pena, 235 Ariz. 277, ¶ 5, 331 P.3d at 414.
Chacon cites several studies to support his argument that "an (A)(3) charge cannot be based on an insignificant trace amount of THC," reasoning that THC can be present in one's blood long after using marijuana or even after being exposed to secondhand marijuana smoke. In response, the state asserts Chacon is asking this court "to draw factual conclusions about the level of THC necessary to impair a driver based on authorities never presented to the trial court." We agree with the state. Although studies may be cited on appeal, as Chacon argues in his reply brief, our review nonetheless is limited to the record before the trial court. See State v. Herrera, 232 Ariz. 536, ¶ 24, 307 P.3d 103, 113 (App. 2013).
Motion to Continue
¶20 Chacon also argues the trial court erred by denying his motion to continue the trial pending our supreme court's decision in Harris. The decision on a motion to continue is left to the sound discretion of a trial court. State v. Laffoon, 125 Ariz. 484, 486, 610 P.2d 1045, 1047 (1980). We will not reverse that decision absent a clear abuse of discretion and resulting prejudice. State v. Mendoza, 170 Ariz. 184, 193, 823 P.2d 51, 60 (1992); see also State v. VanWinkle, 230 Ariz. 387, ¶ 7, 285 P.3d 308, 311 (2012) (defendant's burden to show prejudice).
¶21 A trial court must grant a continuance "only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice." Ariz. R. Crim. P. 8.5(b). In making that determination, the court must "consider the rights of the defendant and any victim to a speedy disposition of the case." Id. A continuance "may be granted only for so long as is necessary to serve the interests of justice." Id.
¶22 Chacon asserts that "all the Rule 8.5(b) factors militated toward granting the continuance." In particular, he maintains "[i]t was certainly 'in the interests of justice' that [he] not be tried for conduct that was most likely not, in fact, prohibited by law" and, because this was a non-accident case, there were "no victims . . . with a right to a speedy disposition." Based on Harris, Chacon contends he "is entitled to the relief promised by the trial court: vacation of his (A)(3) conviction."
¶23 We cannot say the trial court abused its discretion by denying Chacon's motion to continue. See Mendoza, 170 Ariz. at 193, 823 P.2d at 60. That motion to continue was his third—the court had granted the first two on different grounds. Although Chacon is correct that "DUI is considered a victimless crime," State v. Olquin, 216 Ariz. 250, ¶ 22, 165 P.3d 228, 232 (App. 2007), he has provided no authority, and we are aware of none, indicating it is necessary in the interests of justice to continue a trial that possibly may be affected by a pending appellate case. The continuance here would have been for an indefinite period of time because neither the parties nor the court had any way of knowing when Harris would be decided. And, as the court noted, the (A)(3) conviction could have been vacated if necessary after Harris was decided. See Ariz. R. Crim. P. 24.2 (motion to vacate judgment), 31.17(b) (disposition on appeal), 32.1 (post-conviction relief).
¶24 Moreover, Chacon has not alleged any prejudice resulting from the trial court's denial of his motion to continue. See VanWinkle, 230 Ariz. 387, ¶ 7, 285 P.3d at 311; Mendoza, 170 Ariz. at 193, 823 P.2d at 60. And, we are aware of none. As discussed above, even though Chacon's (A)(3) conviction cannot be based on the presence of Carboxy-THC in his blood after Harris—the concern stated in the motion to continue—his conviction nonetheless is supported by the presence of THC.
Daubert Hearing
¶25 Chacon further claims the trial court erred by denying his request for a Daubert hearing to determine the reliability and admissibility of Miranda's testimony about the THC and BE results. We review decisions on the admissibility of expert testimony for an abuse of discretion. State v. Favela, 234 Ariz. 433, ¶¶ 4, 12, 323 P.3d 716, 717, 720 (App. 2014). However, we review the interpretation of court rules de novo. State v. Salazar-Mercado, 234 Ariz. 590, ¶ 4, 325 P.3d 996, 998 (2014).
¶26 Rule 702, Ariz. R. Evid., permits a witness "who is qualified as an expert by knowledge, skill, experience, training, or education" to provide opinion testimony if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.This rule was amended in 2012 to conform to "the reliability-assessment framework" announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Salazar-Mercado, 234 Ariz. 590, ¶ 9, 325 P.3d at 999. "The amended rule imposes a 'gatekeeper' obligation on trial judges to admit only relevant and reliable expert testimony." Id. Although trial courts typically hold hearings to evaluate proposed expert testimony, they are not required to do so. State v. Perez, 233 Ariz. 38, ¶ 19, 308 P.3d 1189, 1194 (App. 2013).
¶27 Chacon first argues "the trial court's finding that '[his] request for a Daubert hearing is untimely,' was unfounded." He maintains he "was not put on notice that the State might attempt to base its (A)(3) prosecution on the trace THC or BE evidence until the prosecutor brought it up at the hearing on [his] motion to continue" and he "then made his motion for a Daubert hearing [nine] days later." In support of his argument, Chacon relies on Rule 16.1(c), Ariz. R. Crim. P., which provides that any motion not made timely "shall be precluded, unless the basis therefor was not then known, and by the exercise of reasonable diligence could not then have been known."
¶28 But Rule 16.1(c) also requires the party making the motion to do so "promptly upon learning of [the basis]." And, Chacon concedes he waited to request a Daubert hearing until the first day of trial, which was nine days after learning the state intended to present the THC and BE evidence. The trial court did not err in finding such a delay not excused under Rule 16.1(c). See State v. Madsen, 137 Ariz. 16, 19, 667 P.2d 1342, 1345 (App. 1983) (trial court correctly granted untimely motion to preclude evidence where made "as soon as [party] became aware of the evidence").
¶29 Chacon next asserts the trial court erred by concluding that "the issue of drugs found that are under some cutoff . . . is [not] a Daubert issue." He argues that, by prefacing its conclusion with "I don't know," the court must have "harbored questions about the reliability of this evidence." He also maintains the focus of the Daubert hearing would have been on the methodology used by Miranda and not Miranda's test results.
¶30 The principles announced in Daubert assist trial courts in determining the admissibility of scientific expert testimony under Rule 702. Salazar-Mercado, 234 Ariz. 590, ¶ 9, 325 P.3d at 999. In making that determination, courts are concerned with the evidence's reliability based on the methodology used by the expert and the expert's application of that methodology to the case. See Ariz. R. Evid. 702(c), (d); State ex rel. Montgomery v. Miller, 234 Ariz. 289, ¶¶ 23-27, 321 P.3d 454, 463-64 (App. 2014).
¶31 Here, the issue raised by Chacon turns on reliability but not, as he suggests, reliability related to methodology. Chacon disputes the reliability of Miranda's THC and BE results because they were below the DPS cutoff levels for reporting. He does not challenge the methodology of the testing process used by Miranda or its application to this case. Although on appeal Chacon suggests Miranda's methodology would have been the topic of the Daubert hearing, as he must, see Daubert, 509 U.S. at 594-95 (focus under Rule 702 on principles and methodology), he does not explain how that would have helped him prove the results were not reliable merely because the quantities of THC and BE found in his blood were below the reporting cutoffs established by DPS. Notably, Chacon did not challenge the very same methodology used in determining the Carboxy-THC results.
¶32 Moreover, the trial court's gatekeeper function under Rule 702 is "not intended to supplant traditional jury determinations of credibility and the weight to be afforded otherwise admissible testimony." Ariz. R. Evid. 702 cmt. to 2012 amend.; see also State v. Bernstein, 711 Ariz. Adv. Rep. 10, ¶ 18 (Apr. 23, 2015) ("In close cases, the trial court should allow the jury to exercise its fact-finding function . . . ."). Miranda's testimony on the amounts of THC and BE found in Chacon's blood raised only an issue of the weight to be given to such evidence, not its admissibility. Cf. State v. Davolt, 207 Ariz. 191, ¶ 70, 84 P.3d 456, 475 (2004) (expert's qualifications go to weight of testimony not admissibility). Chacon was able to challenge Miranda's testimony through cross-examination and competing evidence. And, the jury was free to reject the THC and BE evidence. The court did not abuse its discretion by denying Chacon's request for a Daubert hearing. See Favela, 234 Ariz. 433, ¶¶ 4, 12, 323 P.3d at 717, 720.
Having reached this conclusion, we need not address the state's argument that, even assuming the trial court erred by denying Chacon's request for a Daubert hearing, any error was harmless. See State v. Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d 601, 607 (2005) ("Harmless error review places the burden on the state to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence."); cf. United States v. Mendoza, 244 F.3d 1037, 1046-47 (9th Cir. 2001) (harmless error where defendant did not object to qualifications and where record adequately established witness's expert qualifications).
Due Process
¶33 Chacon additionally argues the trial court lacked subject matter jurisdiction to enter judgment on the (A)(3) offense based on the presence of THC in his blood when the grand jury only heard evidence of Carboxy-THC as part of his indictment. He reasons this error violated his due process rights "to be given notice of the offenses he would be tried for."
¶34 Chacon argues this is an issue of "subject matter jurisdiction," which constitutes structural error. The state, however, characterizes this issue as a "lack of notice," which it contends we concluded was not structural in Fimbres, 222 Ariz. 293, ¶ 36, 213 P.3d at 1030. And the state argues that, because Chacon did not raise this issue below, we should review only for fundamental error.
¶35 As a preliminary matter, we must determine our standard of review: structural, harmless, or fundamental error. See State v. Valverde, 220 Ariz. 582, ¶ 9, 208 P.3d 233, 235 (2009). Because Chacon failed to raise this argument below, harmless error review is unavailable, and we are limited to reviewing only for either structural or fundamental error. See id. ¶ 11. "Structural error 'deprive[s] defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.'" Id. ¶ 10, quoting State v. Ring, 204 Ariz. 534, ¶ 45, 65 P.3d 915, 933 (2003) (alteration in Valverde). If structural error is found, prejudice is presumed and "reversal is mandated regardless of whether an objection is made below." Id. In contrast, 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. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005), quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). Under this standard of review, the defendant has the burden of establishing "both that the error was fundamental and that the error caused him prejudice." Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d at 236.
Chacon asserts he raised this argument below at the hearing on his motion to continue when he said he did not think evidence of the THC or BE would be admissible at trial. We disagree, however, because he never raised a notice issue based on the grand jury's indictment. See State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) (general objection insufficient to preserve issue for appeal; objection on one ground does not preserve issue on another ground).
¶36 We find Fimbres instructive. There, the defendant argued his convictions for credit-card forgery violated his due process rights. 222 Ariz. 293, ¶ 26, 213 P.3d at 1028. He maintained "it [wa]s unclear whether he was convicted under A.R.S. § 13-2104(A)(1) or (2)" and argued the trial court lacked subject matter jurisdiction to enter judgments of conviction pursuant to § 13-2104(A)(1) because he was not indicted under that subsection. Id. This court first recognized some of our older cases "indicated that the sufficiency of an indictment is an issue of subject matter jurisdiction." Id. ¶ 28. However, we then pointed out that "[m]ore recent authority . . . calls [that] into question" because "'[s]ubject matter jurisdiction is the power of a court to hear and determine a controversy.'" Id. ¶ 29, quoting State v. Bryant, 219 Ariz. 514, ¶ 14, 200 P.3d 1011, 1014 (App. 2008). We concluded the right to an indictment under article II, § 30 of the Arizona Constitution is a "personal right rather than a limitation on subject matter jurisdiction." Id. ¶ 31.
¶37 Having determined the error alleged was not one involving subject matter jurisdiction, this court went on to determine whether the alleged error was structural or fundamental. Id. ¶ 33. We concluded the alleged error "d[id] not fall within the same category of cases that ha[d] been found to be structural error," such as a biased trial judge or the denial of defense counsel. Id. ¶ 36. We noted that "the alleged error involved at best an issue of notice which did not affect the determination of [the defendant's] guilt" and therefore applied the fundamental-error standard of review. Id.
¶38 Similarly, here, Chacon's argument concerns the state's lack of timely notice that it intended to use THC and BE to prove the (A)(3) charge. The alleged error involves "a deprivation of a right essential to [Chacon's] defense," which properly is characterized as fundamental error. Id. ¶ 35. It does not affect the jury's determination of guilt, which would constitute structural error. See id. We therefore review for fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607 (under fundamental error, defendant bears burden of showing fundamental error and prejudice).
¶39 Chacon maintains that "the only (A)(3)-based charge [he] was on notice of was the Carboxy-THC charge" because the grand jury only heard evidence about that substance as part of his indictment. He further asserts the state "essentially added two additional (A)(3)-based felony charges" for THC and BE without obtaining an indictment.
¶40 Defendants have a due process right to reasonable notice of the charges against them. State v. Blakley, 204 Ariz. 429, ¶ 47, 65 P.3d 77, 87 (2003). Accordingly, Rule 13.2(a), Ariz. R. Crim. P., requires an indictment include "a plain, concise statement of the facts sufficiently definite to inform the defendant of the offense charged." Defendants cannot be convicted of crimes not presented to the grand jury as part of the indictment process. State v. Cummings, 148 Ariz. 588, 590, 716 P.2d 45, 47 (App 1985).
¶41 In support of his argument, Chacon relies on State v. Mikels, 119 Ariz. 561, 582 P.2d 651 (App. 1978). There, the defendant was indicted for sodomy, which was alleged to have occurred around February 25, 1977, in the shower stall of a jail cell. Mikels, 119 Ariz. at 562, 582 P.2d at 652. At trial, the victim testified that the shower-stall incident took place earlier in February and that a different act of sodomy occurred around February 25 in a cell bunk. Id. The defendant was convicted, apparently based on the cell-bunk incident. Id. On appeal, we vacated the conviction because the grand jury had not determined the defendant should stand trial for the cell-bunk incident. Id. at 563, 582 P.2d at 653. In rejecting the state's arguments that "the grand jury was laboring under a mistake of fact as to where the act took place" and that the indictment could be amended to conform to the evidence, we pointed out that these "were two separate and distinct acts of sodomy." Id.
¶42 This case is distinguishable from Mikels because it does not involve separate and distinct (A)(3) offenses allegedly committed on different occasions. Here, the state alleged that during the single, discrete incident when the deputies observed Chacon driving a vehicle, Chacon had multiple illegal drugs or metabolites in his body—specifically, Carboxy-THC, THC, and BE. In compliance with Rule 13.2(a), the indictment alleged that "[o]n or about the 20th day of February, 2013," Chacon "drove or was in actual physical control of a vehicle while there was any drug defined in § 13-3401 or its metabolite in his body while his driver license or privilege to drive was suspended, canceled, revoked or refused" and cited the appropriate statutes. See State v. Miller, 100 Ariz. 288, 297, 413 P.2d 757, 763 (1966) (indictment in language of statute sufficient).
¶43 "The indictment itself need not inform the defendant of the theory by which the state intends to prove that charge so long as the defendant receives sufficient notice to reasonably rebut the allegation." State v. Rivera, 207 Ariz. 69, ¶ 12, 83 P.3d 69, 73 (App. 2004). For example, in Rivera, although the state's alternate theory of the offense was not presented to the grand jury, we found the defendant had been provided sufficient notice. Id. ¶ 13. We pointed out that defense counsel knew at least twenty days before trial that a witness had changed her story and at least three days before trial that the state would be pursing the alternate theory. Id.
¶44 Although the grand jury only heard evidence about the presence of Carboxy-THC to support the (A)(3) offense, Chacon nonetheless had sufficient notice that the state also planned to introduce evidence of THC and BE. Nine days before trial, the prosecutor indicated at a hearing that he planned to elicit Miranda's testimony on both the THC and BE results. Chacon's counsel acknowledged the evidence at that time. And, on the first day of trial when the court asked whether there was a disclosure issue as to this evidence, Chacon's counsel changed the subject without answering. Because Chacon had sufficient notice that the state would pursue the (A)(3) charge based on THC and BE, he has not met his burden of showing fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607.
Chacon also argues his conviction cannot be "sustained on the ground that the trial court could have amended the indictment" pursuant to Rule 13.5(b), Ariz. R. Crim. P. However, because we find no error with the indictment or the notice Chacon received, we need not reach this argument.
¶45 Moreover, Chacon has not met his burden of demonstrating prejudice. See id. ¶ 20. He summarily claims he "was prejudiced because he was compelled to defend against felony charges based on THC and BE when he was unprepared to do so." But, as the state points out, Chacon knew from the time he was indicted that the state had evidence his blood contained a metabolite of marijuana, and also that, when he was arrested, officers found a cannabis grinder in his pocket. We thus fail to see how he could claim surprise that the state would rely on the presence of THC in his blood to establish the (A)(3) charge. In addition, Chacon has failed to explain how the case would have been different had he known sooner about the state's intention to present evidence of the THC and BE. Notably, after learning that the state intended to admit the evidence, Chacon did not request a continuance of the trial to obtain evidence to counter the state's new theory or to change his defense. See State v. Arnett, 158 Ariz. 15, 19, 760 P.2d 1064, 1068 (1988).
Sentence for Drug Paraphernalia
¶46 Chacon finally contends that, if we vacate his (A)(3) conviction, we also should vacate his prison sentence for possession of drug paraphernalia and remand for resentencing to probation pursuant to A.R.S. § 13-901.01. However, he acknowledges that, if we affirm his (A)(3) conviction, this argument "should be considered abandoned." Therefore, because we do not vacate Chacon's (A)(3) conviction, we consider this argument abandoned and do not address it further.
Disposition
¶47 For the foregoing reasons, we affirm Chacon's convictions and sentences.