Opinion
2 CA-CR 2012-0054
10-18-2012
THE STATE OF ARIZONA, Appellee, v. KIMBERLY DIANE DEGEER, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Alan L. Amann Tucson Attorneys for Appellee Lori J. Lefferts, Pima County Public Defender By Michael J. Miller Tucson Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20102239001
Honorable Clark W. Munger, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Alan L. Amann
Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller
Tucson
Attorneys for Appellant
HOWARD, Chief Judge. ¶1 After a jury trial, appellant Kimberly Degeer was convicted of criminal damage, and two driving while under the influence of intoxicating liquor charges (DUI), one while impaired to the slightest degree, and one for driving with an alcohol concentration (AC) of .08 or more. On appeal, Degeer argues the state produced insufficient evidence to support her driving under the influence convictions, and as a result insufficient evidence supported her criminal damage conviction. She further contends the trial court erred in admitting evidence about the cost to repair her criminal damage under the business records exception to the hearsay rule. Because the court did not err, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the verdicts. State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). While driving home from a bar, Degeer drove her car into a guardrail in front of a wall on a residential street. Police arrived on the scene, she was taken to a hospital, and a blood sample later revealed she had an AC of .270. Degeer subsequently was charged with one count of criminal damage, two counts of DUI, and one count of extreme DUI. ¶3 During trial, over defense counsel's objection, the court admitted the state's estimate of the cost to fix the guardrail under the business records exception to the hearsay rule. At the close of the state's case, Degeer moved for a judgment of acquittal, pursuant to Rule 20, Ariz. R. Crim. P., and the court granted her motion as to the extreme DUI charge, but denied her motion for the remaining charges. Degeer was convicted of criminal damage and both counts of driving while under the influence. The court placed her on concurrent, three-year terms of probation. She appeals from these convictions.
Sufficiency of the Evidence
¶4 Degeer argues the evidence was insufficient to support the jury's verdicts finding her guilty of the DUI charges. She further contends the state therefore produced insufficient evidence that she had driven recklessly as required for her criminal damage conviction under A.R.S. § 13-1602(A)(1). ¶5 Ordinarily we would review de novo a sufficiency of the evidence claim, see State v. West, 226 Ariz. 559, ¶¶ 15, 19, 250 P.3d 1188, 1191, 1192 (2011), but if a party invites error at trial, she may not argue the error she affirmatively introduced into the record is reversible. See State v. Lucero, 223 Ariz. 129, ¶¶ 26, 31, 220 P.3d 249, 257, 258 (App. 2009) (invited error doctrine meant to "preclude appellate review of an issue when a party attempts to inject the error into the record for strategic purposes"); State v. Pandeli, 215 Ariz. 514, ¶¶ 48-50, 161 P.3d 557, 571 (2007) (counsel who does not object to admission of evidence and provides court with legal basis for its admission invites any error in its admission); State v. Roque, 213 Ariz. 193, app.7, 141 P.3d 368, 407 app.7 (2006) (defense invites error in prosecution using prejudicial phrase by using same phrase first). The purpose of the invited error doctrine is to prevent a party from "'inject[ing] error in the record and then profit[ing] from it on appeal.'" State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001), quoting State v. Tassler, 159 Ariz. 183, 185, 765 P.2d 1007, 1009 (App. 1988). ¶6 During closing arguments defense counsel conceded Degeer was "driving while under the influence of alcohol and [that] her BAC was over a [.]08 . . . [a]t the time of driving." Defense counsel further encouraged the jury to find Degeer guilty of the DUI charges, stating "Find her guilty of the DUI's, that's fine." Counsel apparently made a tactical decision to attempt to build credibility with the jury, but Degeer cannot reap that benefit and then argue on appeal that what counsel encouraged the jury to find was error. See Lucero, 223 Ariz. 129, ¶¶ 26, 31, 220 P.3d at 257, 258. Accordingly, we may decline to review whether sufficient evidence supports those convictions. See Logan, 200 Ariz. 564, ¶¶ 9, 11, 30 P.3d at 632-33. ¶7 But even if Degeer's counsel had not invited the error concerning her DUI convictions, her sufficiency of the evidence argument fails. We review de novo whether sufficient evidence supports her DUI and criminal damage convictions. See West, 226 Ariz. 559, ¶¶ 15, 19, 250 P.3d at 1191, 1192. Substantial evidence is "such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). Either circumstantial or direct evidence may be sufficient to support a conviction. State v. Rivera, 226 Ariz. 325, ¶ 3, 247 P.3d 560, 562 (App. 2011). Further, the fact-finder may draw reasonable inferences from the evidence presented. See State v. Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993). We will reverse a conviction on appeal only in the face of a "'complete absence of probative facts.'" Rivera, 226 Ariz. 325, ¶ 3, 247 P.3d at 562, quoting State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000). ¶8 To prove driving while impaired to the slightest degree, the state must show that the person drove or was in actual physical control of a vehicle while under the influence of intoxicating liquor and was impaired to the slightest degree. A.R.S. § 28- 1381(A)(1). To prove driving with an AC above .08, the state must prove the person drove or was in actual physical control of the vehicle and had an AC of .08 or more within two hours that was the result of drinking alcohol before or during the driving. A.R.S. § 28-1381(A)(2). To support a class five felony criminal damage conviction, the state must show the defendant recklessly damaged the property of another and caused two thousand dollars or more, but less than ten thousand dollars, in damage. A.R.S. § 13-1602(A)(1), (B)(3). ¶9 Degeer argues insufficient evidence supported the jury's verdicts finding her guilty of two DUIs and recklessly damaging city property because no evidence showed she was intoxicated at the time of the accident. But viewing the evidence in the light most favorable to upholding Degeer's convictions and resolving all reasonable inferences against her, see State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008), the evidence was sufficient. The evidence showed Degeer began drinking at 7:00 p.m., consumed "four beers and three shots," attempted to drive herself home after leaving a bar, and, around 10:20 p.m., crashed her car into a guardrail in front of a wall in a residential neighborhood. Paramedics arrived at the scene shortly thereafter and transported her to a hospital for treatment. A police officer testified he had seen "apparent skid marks up to the point of collision," allowing the jury to infer Degeer had attempted to stop suddenly before crashing into the guardrail. She also told an officer the accident had occurred on a different street than it did. A blood sample taken at 11:03 p.m. showed she had an AC of .270. ¶10 The jury reasonably could have inferred that this collision did not go unnoticed for two hours in a residential neighborhood. It also reasonably could have found based on the nature of the crash, the timing of the emergency personnel's response, Degeer's own statements, and the .270 AC blood sample that she was intoxicated with an AC above .08 at the time of the crash. Further, based on all the same evidence, the jury reasonably could have found beyond a reasonable doubt that Degeer was impaired to the slightest degree at the time of the crash. Because the jury could find that Degeer was intoxicated and impaired at the time of the crash, it also could have found she recklessly damaged city property. Defense counsel's concessions during closing argument that Degeer was intoxicated at the time of the crash and "[a]t the time of driving her BAC was over [.]08" further support the reasonableness of these findings. Accordingly, substantial evidence supports her DUI and criminal damage convictions.
Business Records Evidence
¶11 Degeer further argues the trial court erred when it admitted, over Degeer's hearsay objections, a cost itemization sheet showing the cost of repairs for the damage Degeer's crash caused to the guardrail and by allowing a representative of the Tucson Risk Management Division to testify about the sheet. "We review a trial court's ruling on the admissibility of evidence for a clear abuse of discretion." State v. King, 213 Ariz. 632, ¶ 7, 146 P.3d 1274, 1277 (App. 2006). ¶12 Although hearsay generally is inadmissible under Rule 802, Ariz. R. Evid., a number of exceptions are allowed under Rule 803, Ariz. R. Evid. One of these exceptions, commonly known as the business records exception, permits the admission of business records if
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;Ariz. R. Evid. 803(6). The trial court must use its discretion in determining whether business records are sufficiently reliable to satisfy this exception. State v. McCurdy, 216 Ariz. 567, ¶ 7, 169 P.3d 931, 935 (App. 2007). ¶13 Degeer argues inadequate foundation was laid to admit the cost itemization sheet from the city, detailing its cost to repair the guardrail, under the business records exception, because, she claims, the witness did not know exactly how the records she used were made, who made them, how the city workers' hours were compiled, or how the contractor's receipt was verified. However, as the state points out, the exception does not require that "'the person whose first-hand knowledge was the basis of the entry be identified, so long as it was the business entity's regular practice to get information from such a person.'" State v. Petzoldt, 172 Ariz. 272, 275, 836 P.2d 982, 985 (App. 1991), quoting Saks Int'l Inc. v. M/V "Export Champion," 817 F.2d 1011, 1013 (2d Cir. 1987). As long as the witness can be subjected to meaningful cross-examination about how the records are made, the evidence may be admitted as a business record. See Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 360-61, 701 P.2d 851, 856-57 (App. 1985) (holding evidence inadmissible when witness did not know how records made and cross-examination could not help court evaluate accuracy and trustworthiness). Any failure on the state's part to identify precisely who made the records affects only the weight, not the admissibility of the evidence. See State v. Silva, 137 Ariz. 339, 342, 670 P.2d 737, 740 (App. 1983). ¶14 The representative from the city's risk management division in charge of coordinating repair costs for damaged city property testified she generated the report in response to notice that the city's property had been damaged. In doing so, she utilized information, which included a contractor's estimate, about the cost of materials and labor provided by city employees from the department in charge of the damaged property. She also testified that the cost itemization sheet was a standard record kept in the course of the city's business, that the city made these records in every case of damage to its property, and that she generally was responsible for creating these reports for the city. Defense counsel had an ample and meaningful opportunity to cross-examine the witness on her role in creating the report and the records she drew on to create it. That she did not know exactly who had drafted certain documents she relied on is not dispositive, because unlike in Trout, 145 Ariz. at 360-61, 701 P.2d at 856-57, here the witness had a clear idea how the report was made—she created it. Moreover, no evidence indicated the report lacked trustworthiness. Based on this testimony, we cannot say the trial court abused its discretion when it admitted this evidence under Rule 803(6).
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness . . . ; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
On appeal, Degeer argues for the first time that the records were prepared in anticipation of litigation, and she claims this ground falls within the scope of her foundation objection below. Because an objection on one ground does not preserve an objection on another, unstated ground, State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008), and Degeer has not argued fundamental, prejudicial error, see State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005), she has waived this argument on appeal, see State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995); State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008).
Conclusion
¶15 For the foregoing reasons, we affirm Degeer's convictions and sentences.
______________
JOSEPH W. HOWARD, Chief Judge
CONCURRING: ______________
PETER J. ECKERSTROM, Presiding Judge
______________
J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed August 15, 2012.
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