Opinion
No. 2 CA-CR 2014-0064
12-09-2014
THE STATE OF ARIZONA, Appellee, v. BENJAMIN THOMAS HANSEN, Appellant.
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 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in Pima County
No. CR20130282001
The Honorable Brenden J. Griffin, 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 Scott A. Martin, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 After a jury trial, Benjamin Hansen was convicted of driving under the influence (DUI) while impaired to the slightest degree and aggravated driving with an illegal drug or its metabolite in his body while his license was suspended, revoked, or restricted. The trial court sentenced him to a mitigated term of eight years' imprisonment for the aggravated driving conviction and to time served for the DUI conviction. On appeal, Hansen argues the jury may have returned a nonunanimous verdict on his aggravated driving conviction based on State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), which prohibits a conviction when the marijuana metabolite present in his body is non-impairing. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining Hansen's convictions. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 2, 185 P.3d 135, 137 (App. 2008). In October 2011, two Pima County Sheriff's deputies stopped Hansen's vehicle after they "ran [his license] plate and found there was a mandatory insurance suspension." When one of the deputies asked for his driver's license, Hansen responded that it was suspended. The other deputy approached the passenger-side door and "noted an odor of burnt marijuana coming from the interior of the vehicle." The deputy "asked [Hansen] if he had smoked any marijuana," and Hansen admitted he had.
¶3 After Hansen performed field-sobriety tests and exhibited signs of impairment, the deputies arrested him and drew a sample of his blood. A blood test revealed the presence of THC, "the active ingredient in marijuana," as well as a non-active metabolite of marijuana, Carboxy-THC, which "does not play a role or have an effect on the human body."
Tetrahydrocannabinol.
Carboxy tetrahydrocannabinol.
¶4 A grand jury indicted Hansen for aggravated DUI while his license was suspended, revoked, or restricted and aggravated driving with an illegal drug in his body while his license was suspended, revoked, or restricted. The jury found him not guilty of aggravated DUI, but guilty of the lesser-included offense of DUI while impaired to the slightest degree, and found him guilty of aggravated driving with an illegal drug or its metabolite in his body. The trial court sentenced Hansen 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)(1).
Nonunanimous Verdict
¶5 As we understand his argument, Hansen contends his conviction for aggravated driving with an illegal drug or its metabolite in his body was "based on a verdict that could be nonunanimous, in violation of his right to a unanimous verdict under the Arizona Constitution." He asserts the state relied "on the alternative theories that [his] blood contained both THC and Carboxy-THC," but under State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), a person cannot be convicted of this offense based on the mere presence of the non-impairing metabolite Carboxy-THC. Hansen concludes we "cannot assume the jury returned a unanimous verdict on the THC theory" because the jury was not provided with a special verdict form specifying which theory it had relied on and, therefore, there is "insufficient evidence" to affirm his conviction.
Hansen's opening brief addresses the sufficiency of the evidence first and then asserts he was prejudiced by the nonunanimous jury verdict. it appears, however, that he has conflated the sufficiency of the evidence, see Ariz. R. Crim. P. 20; State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013), with the prejudice analysis this court applies when considering the possibility of a nonunanimous verdict, see State v. Waller, 235 Ariz. 479, ¶¶ 33-36, 333 P.3d 806, 817 (App. 2014), or an instruction on an improper theory of liability, see State v. Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d 1282, 1286 (App. 2013).
¶6 The jury instruction for aggravated driving with a drug in the body required only that the jury determine whether Hansen "had in his body any drug or a metabolite of any drug." Hansen did not object to the instruction or verdict form for this offense. But, Hansen argues a defendant has no obligation to request a special verdict form when the state prosecutes on alternative theories. He thus seems to suggest we should review for harmless error or, "if this Court breaks with controlling Arizona Supreme Court precedent," the error was fundamental. He asserts "our supreme court expressly places the responsibility of providing interrogatory verdicts on the trial court." To support his argument, Hansen relies on State v. Smith, in which our supreme court cautioned, "as a matter of sound administration of justice and efficiency in processing murder cases in the future," that trial courts give alternate forms of verdict when a case is submitted to a jury on alternate theories of premeditated and felony murder. 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989); see also State v. Lopez, 158 Ariz. 258, 264, 266, 762 P.2d 545, 551, 553 (1988) (first-degree murder conviction set aside because felony murder unsupported by evidence and verdict form did not specify whether jury considered alternative theory of premeditated murder). Hansen argues that because Smith "makes no mention that the defendant must request interrogatory verdict forms for each of the State's theories," the responsibility is on the trial court to provide the correct verdict form. We disagree.
¶7 Rule 21.2, Ariz. R. Crim. P., provides that parties must submit to the trial court their written requests for instructions and forms of verdict. And, "[n]o party may assign as error on appeal the court's giving or failing to give any instruction or portion thereof or to the submission or the failure to submit a form of verdict unless the party objects thereto." Ariz. R. Crim. P. 21.3(c). "If a party fails to object to an error or omission in a jury instruction . . . he waives the issue on appeal, absent a finding of fundamental error." State v. Valenzuela, 194 Ariz. 404, ¶ 2, 984 P.2d 12, 13 (1999); State v. Hargrave, 225 Ariz. 1, ¶ 32, 234 P.3d 569, 579 (2010) (reviewing failure to object to verdict forms for fundamental error).
¶8 Hansen nevertheless maintains that he could not have raised this argument below because his trial occurred six months before our supreme court decided Harris, in which the court held the phrase "any drug defined in [A.R.S.] § 13-3401 or its metabolite" does not include Carboxy-THC, a non-impairing metabolite of marijuana. 234 Ariz. 343, ¶ 1, 322 P.3d at 160.
¶9 We agree that Hansen could not have relied on Harris during his trial in 2013. But he could have raised the argument generally, as the defendant did in Harris, based on the facts of this case and the law existing at the time of Hansen's trial. For example, the Revised Arizona Jury Instructions (RAJI) for a § 28-1381(A)(3) offense recommend specific instructions, including "the name of the particular drug, . . . which is in the body or has been metabolized in the body." State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Stat. 28.1381(A)(3) (2012); State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Stat. 28.1383(A)(1)-4 (2012) (including "name of drug" in instruction). And, here, evidence was presented at trial that Carboxy-THC does not cause impairment. Thus, Hansen waived the issue for all but fundamental error when he failed to request more specificity as to the particular drug or metabolite at issue. See Valenzuela, 194 Ariz. 404, ¶ 2, 984 P.2d at 13.
¶10 To prevail under the fundamental error standard of review, "a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." State v. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d 601, 607 (2005). 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). A violation of the right to a unanimous jury verdict is fundamental error. State v. Davis, 206 Ariz. 377, ¶ 64, 79 P.3d 64, 77 (2003); see Ariz. Const. art. II, § 23. An instruction that "potentially 'improperly relieve[s] the State of its burden of proving an element of the offense'" constitutes fundamental error as well. State v. Dickinson, 233 Ariz. 527, ¶ 12, 314 P.3d 1282, 1286 (App. 2013), quoting State v. Kemper, 229 Ariz. 105, ¶ 5, 271 P.3d 484, 486 (App. 2011); see State v. Ontiveros, 206 Ariz. 539, ¶ 17, 81 P.3d 330, 333 (App. 2003) (instruction "on a non-existent theory of liability is fundamental error").
¶11 Pursuant to A.R.S. § 28-1381(A)(3), "[i]t 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." Marijuana is listed in § 13-3401(19). See also § 13-3401(20)(w). If a person violates § 28-1381(A)(3) while his or her driver's license is suspended, revoked, or restricted, the offense is aggravated. A.R.S. § 28-1383(A)(1).
¶12 Hansen's reliance on Harris to support his argument is misplaced. In Harris, the defendant was charged with violating § 28-1381(A)(3), after a blood test revealed he had Carboxy-THC in his blood while driving. 234 Ariz. 343, ¶¶ 2-3, 322 P.3d at 160. Before trial, the defendant moved to dismiss the charge, "arguing that the blood test revealed neither the presence of THC nor 'its metabolite' Hydroxy-Tetrahydrocannabinol ('Hydroxy-THC')." Id. ¶ 4. The trial court dismissed the charge. Id. ¶ 5. On review, our supreme court upheld the dismissal. Id. ¶ 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 further 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.
¶13 Based on Harris, we agree with Hansen that the jury could not convict him of aggravated driving with an illegal drug or its metabolite in his body while his license was suspended, revoked, or restricted based on the Carboxy-THC found in his blood. See Ontiveros, 206 Ariz. 539, ¶ 17, 81 P.3d at 333. But, even if the trial court's verdict form could have allowed a juror to rely on that improper theory, and that error could be characterized as fundamental, see Davis, 206 Ariz. 377, ¶ 64, 79 P.3d at 77; Dickinson, 233 Ariz. 527, ¶ 12, 314 P.3d at 1286, Hansen has not met his burden of establishing prejudice, see Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607.
¶14 The showing required to establish prejudice varies from case to case because it depends on the type of the error that occurred and the facts of the case. Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d at 1286. The possibility of a nonunanimous verdict "on the manner in which [a criminal] act was performed" does not result in prejudice if no reasonable jury could have failed to find the defendant guilty under one of the valid theories presented. State v. Payne, 233 Ariz. 484, ¶ 90, 314 P.3d 1239, 1264 (2013); State v. Waller, 235 Ariz. 479, ¶ 36, 333 P.3d 806, 817 (App. 2014).
Hansen relies on State v. Delgado, 232 Ariz. 182, 303 P.3d 76 (App. 2013), to suggest the possibility of a nonunanimous verdict is necessarily prejudicial. In Delgado, this court considered whether "fundamental error resulted from a duplicitous information and duplicitous charges to the jury." Id. ¶ 18. Because duplicitous errors "'present[] a hazard of a non-unanimous jury verdict," we consider cases like Delgado informative. See id., quoting Davis, 206 Ariz. 377, ¶ 54, 79 P.3d at 76. But even a duplicitous charge may be subject to a prejudice analysis. See State v. Payne, 233 Ariz. 484, ¶ 90, 314 P.3d 1239, 1264 (2013); State v. Waller, 235 Ariz. 479, ¶ 36, 333 P.3d 806, 817 (App. 2014).
¶15 In this case, there was substantial evidence that Hansen had THC in his body while driving. When deputies stopped his vehicle, they smelled the "odor of burnt marijuana," noticed Hansen "had a slight sway" as he spoke, and "[h]is eyes also appeared to be red, watery and bloodshot." During field sobriety tests, Hansen exhibited eyelid and body tremors and his "heels did not stay together as [he was] instructed." One deputy even "asked [Hansen] to stick his tongue out" and noted "the back . . . had a greenish-white tint to it and raised taste buds," which, the deputy testified, indicated the use of marijuana. Hansen told the deputies he "smoked a joint earlier before driving," and after his arrest, clarified he had "smoked a roach three hours [prior]" to the stop. He also admitted he did not "think [he] should be driving" and he still "fe[lt] the [e]ffects of what . . . [he] smoked."
To the extent Hansen argues there was "insufficient evidence supporting [his] conviction," we reject that argument for the same reason. See State v. Fimbres, 222 Ariz. 293, ¶ 4, 213 P.3d 1020, 1024 (App. 2009) ("When considering claims of insufficient evidence, 'we . . . reverse only if no substantial evidence supports the conviction.'"), quoting State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App. 2005).
¶16 At trial, the state's expert confirmed that marijuana impairment could cause each "sign and symptom" noted by the deputies. The expert also explained, "[I]t's the active THC that . . . may cause impairing effects," and that Carboxy-THC "does not . . . have an effect on the human body." Thus, Hansen's impairment necessarily was caused by presence of the active THC in his body.
¶17 Citing State v. Detrich, 178 Ariz. 380, 873 P.2d 1302 (1994), Hansen suggests we must nevertheless assume some jurors relied on the Carboxy-THC theory. In that case, our supreme court set aside a general verdict for first-degree murder based on theories of premeditated and felony murder. Id. at 382-84, 873 P.2d at 130406. It determined that the instructions for the underlying felony were improper. Id. And, because the trial court had not provided a special interrogatory on the alternative theories of felony murder and premeditated murder, our supreme court concluded it could not assume the jury would have returned a unanimous verdict on premeditated murder alone. Id.
¶18 The present case is distinguishable from Detrich. Here, the jury necessarily determined that Hansen did not merely have the non-impairing metabolite Carboxy-THC in his body when it found him guilty of driving under the influence of any drug while impaired to the slightest degree. See § 28-1381(A)(1). As the state points out, the "verdict form on the offense of impaired to the slightest degree by marijuana was a de facto special interrogatory with respect to the offense of driving with marijuana or its metabolite in his body."
¶19 In response, Hansen argues "[a]ny purported fact-finding underlying the jury verdict in Count One has no bearing on this Court's review of the sole legal issue raised on appeal challenging its verdict on Count Two." He relies on a line of cases for the proposition that "consistency in a verdict on different counts of an indictment is not necessary." State v. Flynn, 109 Ariz. 545, 548, 514 P.2d 466, 469 (1973); see also State v. DiGiulio, 172 Ariz. 156, 162, 835 P.2d 488, 494 (App. 1992) ("There is no constitutional requirement that verdicts be consistent.").
¶20 It is true this court cannot "second-guess juries on the logic of their verdicts" when, in an act of leniency, they render inconsistent verdicts. State v. Jordan, 105 Ariz. 250, 251, 462 P.2d 799, 800 (1969); see State v. Garza, 196 Ariz. 210, ¶ 7, 994 P.2d 1025, 1027 (App. 1999). But the prejudice analysis here does not require us to second-guess the jury's logic. Instead, Hansen must show that no reasonable jury could have reached the verdict rendered by the jury in this case under one of the theories presented. See Payne, 233 Ariz. 484, ¶ 90, 314 P.3d at 1264; Waller, 235 Ariz. 479, ¶ 36, 333 P.3d at 817. And, because Hansen has not met this burden, we cannot say the jury verdict here constituted fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607.
Hansen also points out the jury returned inconsistent verdicts as to the license-suspension element common to both charged offenses, arguing it "further demonstrat[es] the uncertainty of what its verdicts would have been if it had been asked to render a verdict on both the drug theory and the inactive metabolite theory." But a defendant cannot meet his burden of proving prejudice based on mere speculation. State v. Munninger, 213 Ariz. 393, ¶ 14, 142 P.3d 701, 705 (App. 2006); see also State v. Soloman, 125 Ariz. 18, 23, 607 P.2d 1, 6 (1980). We therefore reject this argument.
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Disposition
¶21 For the reasons stated above, we affirm Hansen's convictions and sentences.